history

Japan’s 99.8% criminal conviction rate

history, law, politics / /

From Hiroshi Matsubara’s “Trial By Prosecutor” (Legal Affairs: March/April 2003):

In 1990, a retired high-court judge gave an influential speech that indicted the criminal justice system [of Japan], citing the nation’s 99.8 percent conviction rate as evidence that prosecutors, not courts, decide the fate of criminals. Criminal trials, he declared, are merely “formal ceremonies” en route to conviction. …

Prosecutors are vested with tremendous authority, and courts routinely defer to prosecutorial judgment. The prosecutor, in collaboration with law enforcement, is expected not only to enforce the laws but to decide how to use them to serve the public good. He is given far broader powers of investigation than his American counterpart, including the ability to search, seize, and interrogate without the interference of defense counsel. Justice in Japan is often equated to cooperating with the prosecutor. One of the earliest changes made by legislators to the American legal framework was the addition of a “societal duty” to submit to questioning upon arrest.

Because of their importance in the Japanese system, prosecutors have an overwhelming need to be right. A single loss can end their career. Prosecutors nearly always go to trial with a confession in hand, meaning that criminal courts are rarely asked to decide guilt or innocence. At trial, the counsel for the defendant usually spends his time trying to demonstrate the client’s contrition, his chances of being rehabilitated, and the low risk he poses to society – factors that affect the sentence, not the verdict.

Even in contested cases, the outcome for defendants is bleak. In American federal courts, about one-fifth of all criminal defendants plead innocent – and of those, one-third are subsequently convicted (state numbers indicate a similar trend). Meanwhile, in Japan, despite the fact that only 7 percent of defendants choose to contest their prosecution, the conviction rate in such instances is still about 99 percent. …

But in the aftermath of this unlikely victory, the system turned on Mainali. A higher court stayed his acquittal and ordered him detained while the finding at trial was reconsidered. In the United States, where defendants are protected against double jeopardy, Mainali’s acquittal would have ensured that he went free. Japan has no such standard: The opportunity to appeal a criminal acquittal is just one more weapon in the prosecutorial arsenal. Critics have pointed out that the stigma of losing a case puts prosecutors under great pressure to appeal each and every acquittal. In the notorious Kabutoyama case, prosecutors spent 21 years unsuccessfully appealing not-guilty verdicts handed down against a teacher charged with killing one of her students. …

Japanese prison terms, for both violent and nonviolent offenses, are shorter than those for comparable crimes in the United States. Murder, for instance, can carry a sentence of as little as three years. What is indisputable, however, is that in failing to emphasize procedural justice – a system based on rights and vigorous advocacy – Japan entrusts the integrity of its system to the good judgment of its prosecutors.

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Colonialism at its most obvious

history, language & literature, politics / /

From Adam Goodheart’s “The Last Island of the Savages” (The American Scholar, Autumn 2000, 69(4):13-44):

Then [in the 1860s], suddenly, the hostilities [by the Andaman Islanders] ceased almost entirely. There was one cataclysmic battle – fifteen hundred naked warriors came charging out of the jungle, straight up against the guns of a British warship, with predictably ghastly results – and after that, only a few desultory clashes. Quite unaccountably, the natives started wandering out into the settlement and behaving like friends: odd, bright-eyed little people whose merry air suggested that they had forgotten there had ever been bloodshed. The Andamanese would ask for gifts (coconuts, bananas, and, before long, tobacco and liquor) and make amiable sport with the British soldiers, plucking at the brigadesmen’s red coats and pulling on their whiskers. They even began coming voluntarily to live in the “Andamanese Home,” an institution for their welfare that the British established on Ross Island.

But in some ways, their presence was now even more nettlesome than it had been before. The Andamanese had certain noteworthy talents, but few that could profitably be applied to the needs of a colonial settlement. They were excellent bow-men, amazingly proficient swimmers (some could even shoot arrows accurately while treading water), uncanny mimics, and skilled jungle trackers, able to communicate across miles of forest by banging out signals on the buttress roots of certain trees. So the British put them to use hunting down escaped convicts – a reasonable occupation, though hardly enough to occupy them full-time. A few of the natives were employed as nannies, since it was quickly noticed that they were remarkably affectionate with children, the Europeans’ as much as their own. Others were kept as objects of amusement in Port Blair households, to be dressed up and coddled – at least until their masters’ tours of duty ended, when they were left to fend for themselves. “The Government of [British] India,” one official noted approvingly, “[has] adopted a policy towards the aborigines of the Andaman Islands which has made them, above all races of savages, the most carefully tended and petted.” Here are some names given to Andamanese in the nineteenth century by the British, which I came across in various old documents: Topsy, Snowball, Jumbo, Kiddy Boy, Ruth, Naomi, Joseph, Crusoe, Friday, Tarbaby, King John, Moriarty, Toeless, Punch, Jacko, Jingo, Sambo, and Queen Victoria.

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Lost tribe hoaxes

commonplace book, history, technology / /

From Adam Goodheart’s “The Last Island of the Savages” (The American Scholar, Autumn 2000, 69(4):13-44):

Even so, every few years there is a report of one “lost tribe” or another – usually in the Amazon rain forest or the highlands of New Guinea – staggering naked from the jungle into the dazzling glare of modernity. Such stories are almost invariably followed by a retraction: the tribesmen turn out to have T-shirts and cigarettes stashed back in their huts, and the original report turns out to have been a mistake or a fraud. (The most famous such incident was the so-called Tasaday hoax of 1971, involving a supposed Stone Age tribe in the Philippines; the tribesmen were Filipino farmers whom local politicians had coerced into posing as naked cave-men for the camera crews from CBS and National Geographic.)

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Smallest state park in the USA

commonplace book, history, politics / /

From Gideon Lewis-Kraus’s “The Water Rush” (Oxford American):

Anywhere else, the four and a half acres of muddy, flat grass cross-hatched by asphalt paths and crowned by a green-pink-and-white gazebo would be the town park. Here in Berkeley Springs[, West Virginia], population 663, “the country’s first spa,” it is a state park. It is, in fact, the smallest state park in the nation. Along the embankment on the west side of the park is a camp of low-slung yellow-brick buildings that house the Berkeley Springs, font of the town’s hydrocentric entertainments. Besides the springs, the town’s attractions include antique malls, craft shops, acupuncturists, and a homeopathy museum.

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Why it’s hard for prisoners to sue prison systems

history, law, politics, security / /

From Daniel Brook’s “The Problem of Prison Rape” (Legal Affairs: March/April 2004):

When inmates seek civil damages against the prison system, as [Roderick Johnson, a 35-year-old African-American who is suing the Texas Department of Criminal Justice] has done, they must prove not merely that prison officials should have done more to prevent abuse but that they showed “deliberate indifference” – that is, that they had actual knowledge that an inmate was at risk and disregarded it. Showing that a prison guard should have known is not enough, no matter how obvious the signs of abuse.

This standard was established by the Supreme Court in the 1994 case Farmer v. Brennan, in which a transsexual inmate imprisoned for credit card fraud sued federal prison officials for ignoring his rape behind bars. While the court affirmed that prison rape is a violation of an inmate’s constitutional rights and stated plainly that sexual assault is “not part of the penalty that criminal offenders pay for their offenses,” it set up formidable barriers to establishing the culpability of corrections staff. At the cellblock level, the “deliberate indifference” standard discourages prison guards from shining a light into dark corners. What they don’t know can’t hurt them.

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History & numbers on prison rape

history, law, politics, security / /

From Daniel Brook’s “The Problem of Prison Rape” (Legal Affairs: March/April 2004):

In his 18 months at [the maximum-security Allred Unit in Iowa Park, Tex.], [Roderick Johnson, a 35-year-old African-American who is suing the Texas Department of Criminal Justice] did time as the property of the Bloods, the Crips, the Mandingo Warriors, and the Mexican Mafia, all of whom forced him to have sex with their members. They also sold his services to other inmates, usually for between $5 and $10. (A cigarette in Allred goes for $1.50.) …

The prevalence of rape in prison is fearsome. Line officers recently surveyed in one southern state estimated that one in five male prisoners were being coerced into sex; among higher-ranking officials, the estimate was one in eight. Prisoners themselves estimated one in three. (Female prisoners are the victims of rape as well, though they are usually assaulted by male guards, not other inmates; the phenomenon of male-on-male prison rape is generally studied separately.) …

The traditional rationale for prison rape is the lack of women, but most psychologists consider this facile. They see prison rape mainly as a means by which people who have been stripped of control over the most basic aspects of their lives – when to eat a meal, take a shower, or watch TV – can reclaim some sense of power. As one Louisiana prisoner, Wilbert Rideau, wrote, “the psychological pain involved in such an existence creates an urgent and terrible need for reinforcement of [a prisoner’s] sense of manhood and personal worth.” Others believe that prisoners become rapists out of fear of becoming victims themselves; it’s a choice between becoming predator or prey. The psychologist Daniel Lockwood, in his study Prison Sexual Violence, calls this strategy “pre-emptive self-defense.” …

IN 1826, IN WHAT WAS LIKELY THE FIRST PUBLISHED MENTION of prison rape in the history of the republic, the Rev. Louis Dwight wrote that “Boys are Prostituted to the Lust of old Convicts” throughout the institutions he surveyed from Massachusetts to Georgia. Dwight, the founder of the Prison Discipline Society of Boston, a prison reform group, wrote that “Nature and humanity cry aloud for redemption from this dreadful degradation.” It was not until the 21st century, however, that the nation saw its first anti-prison-rape legislation.

Last year, Congress passed the Prison Rape Reduction Act, which allocates $60 million to support rape-prevention programs run by federal, state, and local corrections staff and to aid investigations and punishment of perpetrators. The bill, which enjoyed bipartisan support in the House and the Senate, also requires states to collect statistics on prison rape.

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Why courts don’t use legal-size documents any longer

history, law / /

From Suzanne Snider’s “Old Yeller” (Legal Affairs: May/June 2005):

The legal-size legal pad has been under attack since as early as 1982, when then Chief Justice Warren Burger banished legal-size documents from federal courts. One informal survey estimated Burger’s move saved almost $16 million through more efficient use of storage space. Several states followed the federal government’s lead …

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A history of the public notice

business, history, law, politics / /

From Sasha Issenberg’s “On Notice” (Legal Affairs: July/August 2005):

In the Middle Ages, the Crown designated a half-dozen sites in London where a herald would read proclamations from the king. These announcements first found their way into print in 1665 when the London Gazette, considered the first English-language newspaper (at least as we now understand the term), began publishing. It was the Crown that put out the Gazette, and thus the newspaper was little more than a broadsheet filled with public notices.

In the 1690s, private competition reached the London newsstand. Yet even those newspapers that were not published directly by the government continued to seek its consent and imprimatur. In 1704, across the Atlantic, a newspaper called The Boston Newsletter hit the streets of the Hub; like many early American newspapers, it bore the slogan, “Published by Authority.” Though newspapers had ceased to exist merely for the purpose of publishing government decrees, they continued to run the notices as proof of the papers’ journalistic credibility. “Unlike in our day, it was looked at as an act of authenticity,” says Charles Clark, a professor emeritus of history at the University of New Hampshire who wrote about early American newspapering in a book called The Public Prints.

Sometimes these announcements appeared under the rubric “Proclamations for Royal Government,” Clark explained, but usually papers “just printed the notices in what we would think of as the news columns – even though that distinction is a bit of a stretch for those days. In many instances the notices constituted the news.” (Toward the end of the 18th century, according to Clark, newspapers also began to feature private-sector legal announcements: creditors demanding payment were popular. “The most frequent things,” Clark said, chuckling, “are men putting in notices: ‘My wife is leaving my bed and board. I shall no longer be responsible for her debt.’ “) …

In 1789, among the acts of the first session of the Congress was a directive to the secretary of state to publish all bills, orders, resolutions, and votes in at least three newspapers.

For its efforts at transparency, the fledgling government was rewarded with an increasingly suspicious press. During the 1790s, the Philadelphia-based Gazette of the United States made it clear that government would not be left to speak for itself through notices; the paper placed a correspondent in Congress. “He reported what he saw, not the official words,” Clark said. After the election of George Washington, the colonial press that had cuddled with government gradually became American media that sought to establish distance from it. In addition to soliciting the government for announcements, the press began to cover the government journalistically. …

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The Mann Act as problematic law

history, law / /

From Roderick M. Hills, Jr.’s “The Federalist Capers” (Legal Affairs: May/June 2005):

BY CONTRAST WITH THE COURT’S RECORD IN ECONOMIC MATTERS, the pre-New-Deal court was oddly reluctant to impose any limits on federally sponsored cultural conservatism. The Mann Act, which prohibited any person from aiding in the interstate transportation of a “woman or girl” for “prostitution, or debauchery, or for any other immoral purpose,” provides a useful illustration of the limits that judicially enforced federalism will go to.

Congress enacted the Mann Act in 1910 by comfortable majorities, in the wake of a national furor over allegations that young women were being kidnapped by syndicates of brothels and forced to work as prostitutes. In retrospect, historians explain the panic over “white slavery” as largely attributable to anxieties over immigration (the syndicates were said to be run by foreigners, especially foreign Jews) and urbanization, which led to a rise in the numbers of unaccompanied single women visible in public places.

Although the act was inspired by fears of coerced prostitution, it was soon enforced by the federal government as part of a crusade against nonmarital sex in general. As David Langum has shown in Crossing Over the Line, a large majority of the FBI’s Mann Act investigations during the 1920s was for noncommercial offenses, typically prosecutions of unmarried but romantically involved couples who crossed state lines. Even the purpose of protecting women from coercion was soon dropped. The Department of Justice took the view that the female “victim” should generally be prosecuted as a co-conspirator if she consented to “immoral” travel. Charges were frequently foregone if the “victim” married the perpetrator, suggesting that the statute was really a federal effort to protect males’ control over their wives and daughters. Though the federal government abandoned the effort to enforce the Mann Act in the 1930s against noncommercial sex, J. Edgar Hoover later used it in raids on brothels to collect information about public persons, like Charlie Chaplin, whom he regarded as subversive.

In short, the Mann Act was everything that you would expect from centralized enforcement of sexual morality – oppressive, gratuitous, and subject to all the abuses of prosecutorial discretion. The regulation of interstate transportation was a thin pretext for federal intervention, given that the act’s authors surely were not concerned that the states were somehow incompetent to regulate sexual morality within their boundaries.

In light of all of these concerns, you might expect that the Supreme Court would have found the Mann Act to be an easy case for invalidation under principles of federalism. But the court unanimously upheld the act in 1913 in Hoke v. United States, and then also upheld its application to noncommercial consensual sexual liaisons four years later in Caminetti v. United States.

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Bird in Flight, Brancusi, & US Customs law

business, history, law / /

From Stéphanie Giry’s “An Odd Bird” (Legal Affairs: September/October 2002):

After a weeklong journey from France, crates of sculptures by Constantin Brancusi arrived in New York harbor on the steamship Paris, escorted by the artist Marcel Duchamp. It was October 1926 and the sculptures were to be exhibited in the city at the avant-garde Brummer Gallery. United States Customs officials opened the crates and uncovered 20 mysterious disks, eggs, and flame-like forms of carved wood, polished metal, or smooth marble. One work in particular left them dumbfounded: a thin, 4 1/4-foot-tall piece of shiny yellow bronze with a gently tapering bulge called Bird in Space. It didn’t look like a bird to the officials, so they refused to exempt it from customs duties as a work of art. They imposed the standard tariff for manufactured objects of metal: 40 percent of the sale price, or $240 (about $2,400 in today’s dollars). …

Under pressure, the customs office agreed to reconsider its decision. In the meantime, it released Bird in Space and other sculptures, on bond and under the classification “Kitchen Utensils and Hospital Supplies,” so they could be exhibited at the Brummer Gallery and then at the Arts Club in Chicago.

Both shows were successes, but in February 1927 the federal customs appraiser F.J.H. Kracke confirmed his office’s initial finding that any sculptures Brancusi sold in the United States, like Steichen’s Bird, would be subject to duty. In an interview with the New York Evening Post, Kracke explained his ruling: “Several men, high in the art world were asked to express their opinions for the Government…. One of them told us, ‘If that’s art, hereafter I’m a bricklayer.’ Another said, ‘Dots and dashes are as artistic as Brancusi’s work.’ In general, it was their opinion that Brancusi left too much to the imagination.”

The next month, Steichen filed Brancusi v. United States to appeal customs’ decision. Abstract Art was now on trial. …

Six influential figures testified for Brancusi: Steichen, who was an established photographer; the sculptor Jacob Epstein; Forbes Watson, the editor of the review The Arts; Frank Crowninshield, the editor of Vanity Fair; William Henry Fox, the director of the Brooklyn Museum of Art; and the art critic Henry McBride. The witnesses for the government, the sculptors Robert Aitken and Thomas Jones, now long forgotten, enjoyed great academic reputations at the time. Judge Young was new to the Customs Court. The 75-year-old Waite had been serving on it and its earlier incarnation, the Board of General Appraisers, for 25 years.

Also present in the courtroom as Exhibit 1 was the Bird, which sat on a table, shimmering and soaring toward the ceiling while the lawyers debated whether it was an “original sculpture” or a metal “article or ware not specially provided for” under the 1922 Tariff Act. For the Bird to enter the country duty-free under the act, Steichen’s lawyers had to prove that Brancusi was a professional sculptor; that the Bird was a work of art; that it was original; and that it had no practical purpose.

By 1927 and after four one-man shows in New York, there was little question that the 51-year-old Brancusi was recognized as a professional sculptor – controversial perhaps, but definitely well-known. There was also little question that the Bird had no utility, even though the customs office had released it under the classification “Kitchen Utensil.”

But because Brancusi had shown four other bird sculptures like Steichen’s at the Brummer show, it wasn’t clear whether Steichen’s was the only one of its kind. And it was far from clear whether the Bird could be called art, because it looked like nothing anyone had ever seen before.

During the hearing, Judges Young and Waite placed great emphasis on the Bird’s title. The Tariff Act didn’t require that sculptures be realistic, but under a 1916 Customs Court decision called United States v. Olivotti sculptures qualified as art works only if they were “chisel[ed]” or “carve[d]” “imitations of natural objects,” chiefly the human form representing such objects “in their true proportions.” …

When he was 26, according to legend, Brancusi set out on foot on the 1,200-mile journey to Paris; however he got there, in 1904 he enrolled at the prestigious école des Beaux Arts. The decade that followed was marked for him by poverty, hard work, and eventually a place in the avant-garde community among Duchamp, Ezra Pound, Amedeo Modigliani, and Erik Satie, who would become his friends and transforming influences. At an exhibit in Paris in 1906, Auguste Rodin, then the towering figure in sculpture, spotted one of Brancusi’s pieces and invited him to work in his studio. Brancusi declined because he believed “nothing grows well in the shadow of a big tree.” …

But to Thomas Jones, a professor at Columbia who testified for the customs office, the Bird was “too abstract and a misuse of the form of sculpture.” Robert Aitken, the government’s other witness, said that art should “arouse an unusual emotional reaction” and “[stir] the esthetics, the sense of beauty.” …

Every work [by Brancusi] was unique and made of a different material, with different proportions and a different harmony. Brancusi had carved variations of the Bird out of white, yellow, and black marble and bronze of varying composition, each time coaxing the stone or the metal to reveal something new about the form. As Brancusi explained, all of those pieces were part of the same search: “All my life I’ve been looking for one thing, the essence of flight.” …

The court’s sensibility favored Brancusi. In its decision of November 1928, drafted by Judge Waite, the court held:

The object now under consideration … is beautiful and symmetrical in outline, and while some difficulty might be encountered in associating it with a bird, it is nevertheless pleasing to look at and highly ornamental, and as we hold under the evidence that it is the original production of a professional sculptor and is in fact a piece of sculpture and a work of art according to the authorities above referred to, we sustain the protest and find that it is entitled to free entry.

Judge Waite’s decision was seen as a victory not only for Brancusi but also for avant-garde art, because it dismissed the Olivotti requirement and recognized the importance of a new school that “portray[ed] abstract ideas rather than … imitate natural objects.” …

But the decision’s focus on the decorative qualities of the Bird made the ruling just as perishable as the standard in the 12-year-old one it replaced. And its reliance on the judges’ personal taste made its application perhaps more arbitrary and restrictive. Many of the works that made the renown of Duchamp, the chaperon of the Bird on its trip to New York and one of its staunchest defenders, would not have passed the test, for example. Duchamp’s “ready-made” sculptures of a bottle rack (Bottle Dryer, 1914) and a urinal (Fountain, 1917), objects he borrowed from daily life and, with more than a hint of irony, labeled works of art, would not have satisfied Judge Waite’s taste for the “beautiful,” “symmetrical,” and “ornamental.”

The Brancusi decision may have done away with the requirement that sculptures must be figurative to be art, but it took years for customs law to shed other unreasonable limitations on the free import of artwork. In 1931, tapestries were deemed dutiable because they were made of wool – the material determined the artistic merit. In 1971, the customs court found that six carved door panels destined for a church were dutiable because, as part of the doors, they were utilitarian objects. It wasn’t for 61 years, until the Harmonized Tariff Schedule of 1989, that customs law allowed free entry to works that are both artistic and functional.

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Arnold Rothstein, criminal kingpin

business, history, law, security / /

From Daniel A. Nathan’s “The Big Fix” (Legal Affairs: March/April 2004):

THE BLACK SOX SCANDAL was the sports crime of the 20th century. In a complicated and poorly conceived and executed conspiracy, several prominent Chicago White Sox ballplayers teamed up with gamblers to lose the 1919 World Series to the Cincinnati Reds. …

Of those artfully deceitful manipulators, Arnold Rothstein was the most skillful, a criminal kingpin who had his hand in all manner of illicit endeavors. Known as “the Big Bankroll” and “the Great Brain,” Rothstein helped invent organized crime, and his influence survived his death in 1928. …

There is no denying that Rothstein was clever. A former pool shark, Rothstein managed to graduate from being a small-time bookmaker to what one historian describes as an important “intermediary between the underworld and upper world of New York.” He established successful gambling houses in New York City and Saratoga (then, as now, a popular summer resort town for the well-to-do, especially for those who like to play the ponies) and political connections with Tammany Hall. Rothstein, Pietrusza notes, “pretty much invented the floating crap game,” the illicit diversion later made famous by the Broadway musical Guys and Dolls, on his way to becoming “America’s most notorious gambler.” He was a bootlegger, a labor racketeer, a racetrack owner, a real estate magnate, a bail bondsman, a loan shark, a fence, and, according to [David Pietrusza, author of Rothstein: The Life, Times, and Murder of the Criminal Genius Who Fixed the 1919 World Series], the “founder and mastermind of the modern American drug trade.”

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The history of solitary confinement

history, law, science, security / /

From Daniel Brook’s “A History of Hard Time” (Legal Affairs: January/February 2003):

Dickens wasn’t the first European intellectual who had crossed the Atlantic to visit Eastern State Penitentiary. A decade earlier, Alexis de Tocqueville had been sent by the French government to study the Philadelphia prison. …

What drew the attention of Americans and Europeans was an innovative method of punishment being pioneered at the prison called solitary confinement. While the practice had roots in medieval monasteries, where it was used to punish disobedient monks, solitary confinement came to prominence as a form of criminal punishment in the United States soon after the Revolution. …

In colonial America, capital punishment had been common, and not just for murder – burglary and sodomy could earn an offender the death penalty as well. For less serious offenses, criminals were generally subjected to physical punishments meted out on the public square. In a frontier nation of small towns, public embarrassment was seen as the key to deterring crime. Physical punishment, whether in the form of the stockade or the whipping post, was combined with the psychological punishment of being shamed in front of the community. Jails existed, but they were used mainly to hold criminals before trial and punishment. There were no cells and few rules: Men and women were housed together, and alcohol was often available. …

In 1787, at a soiree held in Benjamin Franklin’s living room, [Dr. Benjamin Rush of Philadelphia, a signatory of the Declaration of Independence & widely regarded as America’s foremost physician] presented an essay titled, “An Enquiry Into the Effects of Public Punishments Upon Criminals, and Upon Society.” Rush declared that “crimes should be punished in private, or not punished at all.” He claimed that public punishment failed to rehabilitate the criminal and risked letting the convict become an object of community sympathy. In lieu of public, physical punishments, Rush endorsed the creation of a “house of repentance.” Grounded in the Quaker principle that each individual is blessed with “Inner Light,” Rush envisioned a place of anonymity, solitude, and silence, where prisoners could dwell on their crimes, repent, and return rehabilitated into society. …

In 1821, the reformers finally convinced the Pennsylvania legislature to approve funding for Eastern State Penitentiary, which would be the largest public building in the country; with a price tag of nearly $800,000, it was likely the most costly one as well. No expense was spared: To prevent disease, each cell in the new prison was equipped with a toilet, a rare luxury at the time. When the penitentiary opened in 1829, President Andrew Jackson was still using an outhouse on the White House lawn.

The principles of the penitentiary system – silence, solitude, surveillance, and anonymity – were incorporated into the architectural plan. Eastern State was designed by John Haviland, a young architect, who proposed a hub-and-spokes model that allowed for constant surveillance. Inmates were housed in 8-by-12-foot cells arranged along a series of cellblocks radiating out from a central observation tower.

Each prisoner remained in his cell at all times, save for a brief daily exercise period held in an individual pen adjoining each cell. Prisoners ate their meals in their cells and did small-scale prison labor there like shoemaking. On the rare occasions when prisoners were allowed to leave their cells, they were prevented from interacting with other prisoners by hoods they were forced to wear to protect their anonymity. They were also forced to use numbers instead of names for the same reason. Silence was maintained at all times in the prison, and reading the Bible was the only activity other than labor that was permitted. Reformers believed that cutting inmates off from the world would foster meditation that would lead to rehabilitation, so visits from family or friends were prohibited. On average, inmates spent two to four years alone in their cells, underneath a single round skylight, known in the prison as the “eye of God.”

The expense of the building limited its influence in the United States, but Eastern State was widely copied in Europe and even in Latin America and Japan, where economic conditions made the model more attractive. Over 300 prisons were built on Eastern States’ hub-and-spokes model, in cities as diverse as London, Paris, Milan, St. Petersburg, and Beijing. Architectural historians consider the hub-and-spokes penitentiary to be the only American building type to have had global influence until the first skyscrapers began to rise in Chicago and New York in the 1880s. …

Dickens, who also interviewed prisoners at Eastern State, was far more skeptical. In his travelogue, American Notes, he described Philadelphia’s system of “rigid, strict, and hopeless solitary confinement” as “cruel and wrong.” …

Dickens didn’t accept that the penitentiary represented human progress over the days of floggings on the public square, or as his prose suggested, even the medieval torture chamber. “I hold this slow and daily tampering with the mysteries of the brain to be immeasurably worse than any torture of the body.” …

In New York, at the Auburn prison near Syracuse and later at Sing Sing in Westchester County, a modified system of solitary confinement was being put into practice. While inmates spent their nights in solitary cells, they worked together silently in a common area during the day. This allowed wardens to set up profitable prison industries that could offset the costs of prison construction. …

Despite this vehement defense of the solitary system, in the period after the Civil War, the regimen at Eastern State was slowly abandoned. … Without enough funding to keep the system running, inmates were frequently doubled up in cells. In 1913, the solitary system was officially abandoned. Solitary confinement became a short-term punishment for misbehaving prisoners rather than the prison’s standard operating procedure. …

More than half of all U.S. prisons in use today were built in the past 25 years, to house a prison population that has risen almost 500 percent over roughly the same period. The United States has the highest incarceration rate in the world. In raw numbers, it has more prisoners than China, a country with over four times as many people. …

Supermax prisons – high-tech, maximum-security facilities – were the answer politicians and corrections departments were looking for to solve the problem of increasing violence in prisons. Following Marion’s lead, corrections departments around the country began building supermax prisons, or adding supermax wings to their existing prisons to handle the growing number of violent prisoners who could not be controlled in the traditional prison system. Today there are 20,000 supermax inmates in the United States, roughly 2 percent of the total prison population, though in some states the proportion is much higher: In Mississippi, 12 percent of prisoners live in supermax units.

The system of punishment in supermax units resembles nothing so much as the system of punishment pioneered at Eastern State. The Pelican Bay Security Housing Unit, which cost California taxpayers a quarter of a billion dollars, is perhaps the most notorious supermax. From the air it looks like a high-tech version of the Philadelphia prison: Its hub-and-spokes design is clearly descended from John Haviland’s 19th-century architectural plan. Inmates in the SHU (known as “the shoe”) are kept in their cells close to 24 hours a day. As at Eastern State, inmates eat in their cells and exercise in isolated attached yards. …

Dr. Stuart Grassian, a Harvard Medical School psychiatrist who was given access to SHU inmates to prepare for providing expert testimony in lawsuits against the California Department of Corrections, has concluded that the regimen in security housing units drives prisoners insane, and he estimates that one-third of all SHU inmates are psychotic. He writes of what he calls “the SHU syndrome,” the symptoms of which include self-mutilation and throwing excrement.

Dr. Terry Kupers, a psychiatrist who has interviewed supermax inmates, writes that a majority of inmates “talk about their inability to concentrate, their heightened anxiety, their intermittent disorientation and confusion, their experience of unreality, and their tendency to strike out at the nearest person when they reach their ‘breaking point.’ ” Even those inmates who don’t become psychotic experience many of these symptoms. Those least likely to become mentally ill in solitary confinement are prisoners who can read, because reading prevents the boredom that can lead to insanity. (The human psyche appears not to have changed since the days of Eastern State, when an inmate told Alexis de Tocqueville that reading the Bible was his “greatest consolation.”) Because roughly 40 percent of U.S. prisoners are functionally illiterate, however, reading can provide solace and sanity to only a fraction of those behind bars.

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Alcatraz: reality & Hollywood

history, law, politics, security / /

From Dashka Slater’s “Lights, Camera, Lockdown” (Legal Affairs: May/June 2003):

The first two Alcatraz films, Alcatraz Island and The Last Gangster, arrived in theaters in 1937; the most recent, Half Past Dead, came out last November. In the 65 years in between, Alcatraz has been the subject of some two dozen movies and has made guest appearances in many more. There have been prison movies, horror movies, comedies, romances, action films, cartoons, and even porn flicks set on Alcatraz. It’s rare for a Hollywood set to last even a few weeks after a film is complete, but the prison is so popular with filmmakers that a meticulous replica of its cellblock, first created for the Clint Eastwood film Escape From Alcatraz, has resided on a Culver City soundstage for more than 20 years. It has provided penal ambience for hundreds of movies, television shows, commercials, and music videos. …

THE FEDERAL PENITENTIARY AT ALCATRAZ opened on August 22, 1934. It was to be a prison like no other, a high-tech, escape-proof, super-maximum warehouse for the nation’s most incorrigible bad guys. …

The secrecy had been designed to deflate the celebrity reputations of gangsters like Al Capone, who had enjoyed special treatment at other prisons. James A. Johnston, the prison’s first warden, believed that egoism was the chief failing of recidivists. His prescription was total isolation and total anonymity. At Alcatraz, he promised, Capone and his ilk would become “forgotten men.” …

The articles emphasized the prison’s harshness and brutality, chronicling its excruciating rule of silence, which required prisoners to stay mute except during a two-hour recreation period on Sundays, and describing the dank “Spanish dungeons” where prisoners were sent for disobeying rules.

Many of these accounts were embellished, and some of the more lurid tales were pure fabrications. Alcatraz was tough but not barbaric. Inmates were guaranteed the basics of food, shelter, clothing, and medical attention; everything else – work, exercise, visitors – had to be earned. Minor infractions – failing to finish the food on your plate, talking while in the cellhouse, sassing a guard – brought a swift reduction in privileges. More serious violations, like taking a swing at a guard, sent prisoners to the chilly darkness of “the hole.” Particularly obstreperous prisoners were hosed down with cold water from the bay, a practice that earned the warden the nickname “Saltwater” Johnston.

Alcatraz was hardly a country club, but it was still one of the better-run prisons in the United States. Inmates had their own cells, an improvement over bunking with another con. These five-by-nine-foot cells were cramped, but each had its own light and running water, and prisoners could order as many books as they wanted from the prison library. The cellblock was kept at a comfortable 70 degrees and the food was considered some of the best in the prison system. …

Throughout the ’30s, ’40s, and ’50s, films like Train to Alcatraz, Prison Train, King of Alcatraz, San Francisco Docks, and The House Across the Bay picked up the mythology of the “Inside Alcatraz” accounts and ran with it, depicting the prison as a place that made even hardened cons quake in their leg irons. …

… fewer than 300 prisoners [were] kept there at any one time …

The island’s reputation was increasingly out of step with the times, and the prison was facing more tangible problems as well. After years of exposure to the salt air, the fortress was literally falling apart, and the cost of repairs was prohibitive. The prison closed in 1963 …

IN 1972, AFTER LANGUISHING IN BUREAUCRATIC LIMBO for nearly a decade, Alcatraz became a national park, a move that allowed Hollywood to begin making movies on the Rock itself. …

The Park Service originally thought interest in the prison would peter out within five years. Instead, the park receives 1.5 million visitors a year, about five times as many as Antietam or Little Big Horn and nearly as many as Mt. Rushmore. …

Hollywood is responsible, in large part, for making the former penitentiary recognizable as a prison rather than just a decaying collection of empty Depression-era buildings. Escape From Alcatraz brought fresh coats of paint to the mess hall and D block, as well as the yellow stripes (which never existed when the prison was open) that now run down the main cellhouse corridor. Murder in the First funded the restoration of a guard tower on the dock, and The Rock paid for the removal of hazardous waste. Leftover Hollywood props – metal detectors, cell cots, benches, even pillows – have stayed on as permanent adornments, giving tourists a sense of what the penitentiary was like when it was operating. Over time it has become difficult to distinguish Hollywood’s Alcatraz from the real one.

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Poems dug up from the grave

history, language & literature / /

From Wikipedia’s “Dante Gabriel Rossetti“:

[Dante Gabriel Rossetti’s wife Elizabeth Siddal] had taken an overdose of laudanum shortly after giving birth to a dead child. Rossetti became increasingly depressed, and buried the bulk of his unpublished poems in her grave at Highgate Cemetery. … During these years, Rossetti was prevailed upon by friends to exhume his poems from his wife’s grave. This he did, collating and publishing them in 1871.

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Modern mercenaries

business, history, law, politics, security / /

From Rebecca Ulam Weiner’s “Sheep in Wolves’ Clothing” (Legal Affairs: January/February 2006):

YOU WON’T FIND THE WORD “MERCENARY” on the homepage of the International Peace Operations Association, the trade group for the private military industry. While many of the IPOA’s member companies are staffed by elite former soldiers of the United States military who now make a living hiring themselves out, the so-called “M word” isn’t in the IPOA’s corporate vocabulary. Members are known as private military companies (often called PMCs) or military service providers, who specialize in “private peace operations.” …

In recent years, private contractors have increasingly taken on important military functions, operating in some 50 countries and earning an estimated $100 billion in annual revenue. They provide security to civilian aid workers, other contractors, and even military forces. They train local armies for combat, develop future American soldiers (the firm MPRI helps run ROTC), and interrogate prisoners. At times, they’ve engaged in combat. During the invasion and occupation of Iraq, the U.S. has relied heavily on their support – private contractors make up a workforce of about 20,000, double the British troop presence. …

During the Iraq war, contractors have run the computers that control Predator drones, operated guided missile systems on naval ships, and maintained aerial surveillance and communications systems. In the Persian Gulf war of 1991, the ratio of soldiers to contractors was 50 to 1. In the current Iraqi conflict, it is 10 to 1 and falling.

This proliferation has worried many – in the academy, Congress, the media, and, increasingly, the military – because contractors operate outside the military chain of command and most legal jurisdictions. PMCs have no clear place under the framework of the Geneva Conventions – they aren’t noncombatants, because they carry weapons, but they aren’t lawful combatants, because they don’t wear uniforms. Nor do they fit the anachronistic definitions of mercenaries found in international treaties and resolutions, because those definitions generally require engagement in direct combat.

Soldiers are subject to rules of engagement and can be court-martialed for breaking the law. Contractors are governed most directly by the terms of their contracts – their extraterritorial activities and corporate status make them virtually immune from federal law. …

Worse, critics argue, because the military has no direct control over its contractors, it won’t accept responsibility for their actions. And PMCs allow the Pentagon to evade accountability to Congress, because they circumvent caps on the number of troops approved for deployment and their casualties aren’t counted.

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James Jesse Strang, Mormon King of Michigan

history, politics, religion / /

From Geoffrey Gagnon’s “King James I, of Michigan” (Legal Affairs: September/October 2005):

One letter that isn’t on display is the one that James Jesse Strang said he received from Smith just before the Mormon leader was murdered in June 1844. In the letter, which now resides in a university library, Smith bequeaths the nascent Mormon Church to Strang – a new friend, a Mormon of just five months, and, of all things, a lawyer. “If evil befall me,” Smith wrote to Strang in the letter, “thou shalt lead the flock to pleasant pastures.”

Strang’s rivals, among them Brigham Young, dismissed the missive as a forgery and Strang as an unworthy successor to Smith. Yet a couple of hundred church members – Joseph Smith’s widow, mother, brother, and sisters among them – believed the letter was authentic and that it granted church leadership to Strang. A disgusted Brigham Young took his followers west to Utah and built what is now the fastest growing religion in the United States. Strang took his followers to a remote island in Lake Michigan and declared the place his sovereign kingdom.

Hold up the palm of your right hand and you’re looking at a map of Michigan’s lower peninsula. Thirty miles off the coast of your ring finger sits Beaver Island, a 55-square-mile island on the inland sea of Lake Michigan. Only one building survives from Strang’s sojourn, a museum in which Strang artifacts fill one room. …

An old metal press, long since disappeared, once filled the building’s big front room. Strang used the press to spit out the Northern Islander, the region’s first newspaper, and to print his magnum opus, The Book of the Law of the Lord. The long-winded tome of decrees includes what Strang described as the lost transcription of the meeting between Moses and God on Mount Sinai. …

He settled, for the time being, on being a lawyer. “I should rather be the best hunter in an Indian tribe than a commonplace member of the New York bar,” he wrote. But a decade of legal practice yielded little more than common accomplishments, and little more power than that which was afforded him in his capacity as the postmaster of Chautauqua County. …

Strang met the church’s leader after making the acquaintance of Smith’s brother Aaron, who lived near Strang in Wisconsin. Initially, he wasn’t impressed with Joseph Smith, describing him in his diary as a man of “meager education.” Smith, however, seems to have been smitten with Strang’s intelligence. Within weeks of meeting Strang, Smith baptized him, and just weeks after that, he named him a church elder.

Strang, who as a teen was tossed out of the local Baptist church for questioning its precepts, had called himself the “perfect atheist” before moving West, but once on the frontier he realized he might command from the pulpit the power that had eluded him. Strang didn’t bother to familiarize himself with Mormon doctrine until long after he was a church leader. …

In June of 1844, an anti-Mormon crowd killed Joseph and Hyrum Smith. At the instant Smith met his demise, Strang claimed that he received a visit from an angel who anointed his head with oil and declared him the leader of the Mormons. A few days later, a letter to the same effect, purportedly mailed by Joseph Smith before his death, arrived in Strang’s hand. His years as a postmaster, perhaps, had not been wasted. …

Strang and his followers arrived on Beaver Island in the spring of 1847 and spent three difficult summers recruiting followers before he was convinced he had enough subjects to make a respectable kingdom. In 1850, with 200 followers on hand in an unfinished log tabernacle, Strang enlisted a traveling Shakespearean actor named George Adams to muster all the pomp and circumstance he could. Strang appeared before an audience of several hundred on a moss-stuffed seat, wearing a giant red flannel robe trimmed in white. Adams came before the crowd and placed a makeshift crown on Strang’s head, anointing him King James the First. Taking hold of a two-foot wooden pole, Strang returned the favor and named Adams his prime minister.

IN THE SPRING OF 1851, NOT YET A YEAR after Strang had taken royal possession of Beaver Island, the sound of waves helped cover the midnight approach of a rowboat full of troops and U.S. Marshals. Carrying government-issue revolvers, the men slipped toward the glow of an oil lamp in a square log house. Expecting a fight, they instead found the small village of St. James asleep. Marines lay on the deck of the iron-hulled Michigan, armed and ready to charge the beach. But no shots were fired. Within an hour of coming ashore, the landing party had matter-of-factly taken the king into custody. …

President Millard Fillmore, who had entered office the day after Strang’s coronation, reportedly received news of the frontier king from his brother, Charles Fillmore, who lived in Detroit. He soon began hearing about the king from prominent members of his party as well, who pressured the president to take action. Among them was Abraham Lincoln’s 1858 Senate rival, Stephan Douglas, who was wary of giving the South a secession movement to point to in the North. Fillmore instructed his attorney general and the secretary of the Navy to arrest the king. …

Judge Ross Wilkins told the prosecution that because the king and his followers hadn’t engaged in war against the United States or aided enemies of the nation in doing so, the king couldn’t be convicted of treason. That left the federal government with charges against Strang of trespassing on federal land, counterfeiting coins, and obstructing the mail. …

The next morning they delivered a verdict of not guilty. …

STRANG RETURNED FROM DETROIT AND DECLARED HIS TRIAL VICTORY a mandate for his absolute rule. He modernized the kingdom with roads (the King’s Highway, recently resurfaced, is still traveled), managed a lumber export business and a booming fishing trade, and enacted progressive conservation laws (“Ye shall preserve the trees by the wayside. And if there be none, ye shall plant them”). He even appointed garbagemen to keep the kingdom clean.

A year after his win in court, Strang won election to the Michigan Legislature, representing the island and a huge swath of the northern woods, and he commuted to the mainland to serve a pair of two-year terms. He deigned to recognize Michigan’s government, he said, because he saw that as engaging in international relations with a neighboring country. …

After his court victory, Strang’s absolute power began to corrupt him, if not quite absolutely, then bizarrely. He had a fixation with fashion that led him to decree that, for reasons of health, women should wear only loose fitting, knee-length bloomers as opposed to anything that “pinches or compresses the body or limbs.” The king’s stance, and the resulting uproar, unraveled the kingdom. When a collection of outspoken wives refused to don their new pants, Strang had their husbands flogged with a willow whip for “endeavoring to incite mischief and crime.” He reprimanded his subjects in print as well. “We laugh in bitter scorn at all these threats,” he wrote, using the royal we, in what proved to be one of the final issues of the Northern Islander.

Less than two weeks later, a mob of angered husbands, still smarting from their willow lashings, ambushed the king. Strang was pistol-whipped and then felled by an assassin’s bullet. … When Strang fell, pillaging mainlanders flooded the island to drive the Mormons away. The kingdom was scattered and soon forgotten to all but a handful of us Michiganders.

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Posse Comitatus Act

history, law / /

From Geoffrey Klingsporn’s “The Secret Posse” (Legal Affairs: March/April 2005):

What do these scenarios have in common? Under current military policy, both fall under the heading of “Information Operations,” officially defined as “actions taken to affect adversary information and information systems while defending one’s own information and information systems.” …

The law that, in effect, prevents the Army from acting as a national police force is the Posse Comitatus Act, an 1878 statute that prohibits law enforcement officers from using military personnel as a posse comitatus—Latin for “power of the county” or, in the vernacular of the Old West, a “posse”—to enforce domestic law, except with the express authorization of the president or Congress. …

“The use of military forces to seize civilians,” wrote the U.S. Court of Appeals for the Eighth Circuit, “can expose civilian government to the threat of military rule and the suspension of constitutional liberties,” and can chill free speech and other fundamental rights, creating the atmosphere of an enemy occupation. …

Since the 1980s, though, the statute has been weakened by laws that allow the military to help address the problems of drug trafficking, natural disasters, and terrorist attacks. It is now routine for soldiers and sailors to help state and local police with training, equipment, and logistics; to detect and monitor suspected smugglers; and to keep order in disaster areas. … But the courts generally have ruled that it is well within the discretion of the president and Congress to allow the military to help in nonmilitary situations, including cases of terrorism. In 1988, a federal district judge in Washington, D.C., ruled that the Posse Comitatus Act was not violated when the FBI used the Navy to help capture a suspected terrorist in international waters and transport him to the United States.

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Henry Wirz, the Demon of Andersonville

history / /

From Carolyn Kleiner’s “The Demon of Andersonville” (Legal Affairs: September/October 2002):

During the last 14 months of the Civil War, nearly 13,000 Union prisoners of war died at the Confederate prison camp in Andersonville, Georgia – more than at Antietam, one of the war’s bloodiest battles, and more than at any of the other hundred or so Civil War prisons. Reports of atrocities at Andersonville and other Southern jails had been widely circulated in the North during the war, along with photos of severely emaciated inmates who to 21st-century eyes bear an unnerving resemblance to prisoners at Nazi concentration camps. Captain Henry Wirz was the commandant of the prison and, by the end of the war, he was one of the most infamous men in America. By a special military commission, he was convicted of conspiracy to intentionally harm Union prisoners and of personally murdering at least ten soldiers. The noose was for him. …

Many captured Union soldiers were kept in and around Richmond, but as the front lines edged south and Dixie jails started to overflow, the Confederate government planned a new facility in the small, out-of-the-way town of Andersonville. The site was chosen for its easy railroad access, an abundance of pine forests, and a clear creek that ran across the property – and because the town’s 20 or so residents didn’t object. The first load of prisoners arrived in February 1864, before construction was complete. From that point on, the trains never stopped.

Built with the official name of Camp Sumter, the Andersonville prison consisted of a sixteen-and-a-half-acre dirt pen (later enlarged to twenty-six and a half acres), surrounded by a stockade made of rough-hewn, 15-foot-tall pine logs placed so close together it was impossible to see outside.

Though conditions were initially a vast improvement over Richmond detention centers, problems grew in proportion to the number of inmates. By late summer 1864, the prison population made Andersonville one of the largest cities in the Confederacy. At its peak in August, the “bullpen,” built to lodge up to 10,000 enlisted men, held 33,000 grimy, gaunt prisoners, each one crammed into a living area the size of a coffin. Their only protections from the sun were “shebangs,” improvised shelters constructed from blankets, rags, and pine boughs, or dug into the hard, red Georgia clay.

As the war dragged on and the Rebel government fell further into disarray, its resources and supplies depleted more each day, Andersonville became increasingly ill-equipped to provide for its wards. Daily prison rations usually consisted of coarse cornmeal with small bits of cob still in it (very rough on Northern stomachs accustomed to wheat bread), around two ounces of beef or pork, often served raw and moldy, and occasionally beans or molasses. (Guards got the same gruel.) Too many inmates meant not enough water to go around, as well as too much human waste, and the once-clear stream that ran through the camp became polluted, covered with a thin layer of green slime. The stench of the place carried as far as the town of Americus, ten miles away. Prisoners suffered from afflictions ranging from diarrhea and dysentery to scurvy and a condition described in death records as “nostalgia,” when men seemed to stop wanting to live.

Between March and June of 1864, the number of casualties per month more than tripled, reaching 2,994 at the end of the summer – or around 100 men a day. …

After arriving in Andersonville, Wirz initiated a record system and reorganized the prisoners into small details of 90 men each. A believer in strict discipline, he preferred forms of punishment like putting a prisoner in stocks or shackling him to a ball and chain. He was concerned about escapes, so he built a “deadline” of posts approximately 15 feet inside the prison walls; if inmates crossed the line, they were to be shot, no questions asked. Hungry dogs were sent after any who managed to break out. …

Andersonville closed for good the day after Lee surrendered at Appomattox on April 9, 1865. Twelve thousand, nine hundred and twelve of the 45,000 men who did time there as inmates remained behind forever, buried shoulder to shoulder in the prison cemetery. …

The Union government had been loath to recognize the Confederacy as a separate nation during the war, but now that it was over the government made an exception, in order to prosecute Captain Wirz squarely. He was charged as a foreign enemy who had violated the international laws of war. The fact that he was born abroad may have made it easier for Americans to swallow the notion of a fellow citizen being tried for criminal behavior in a military commission. The rules of the commission provided more room to maneuver and allowed for a broader range of admissible evidence.

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