Several of my articles and I are referenced in Judge Posner’s latest book, Improving the Federal Judiciary – Second Edition – Staff Attorney Program, The Plight of the Pro Se’s, and the Televising of Oral Arguments. While it is quite flattering to have the attention of such a renowned legal scholar, the important point is that this brings important information to many, many more people. The book is available from Amazon for only $18.00 … a great gift any time of year!
Here are some Excerpts from Judge Posner’s Book:
Kenneth Abraham can be reached at his internet address above or by telephoning him at 302-423-4067. He is very sociable, so don’t be shy about writing or calling him with matters relating to his wide field of interest (and competence). But here is an interesting wrinkle. Abraham served several years in prison for drug-related offenses. When he was released, his prison experiences— for example of brutalization by prison guards— were instrumental to his becoming a recognized, voluble, in fact inexhaustible, expert on prison abuses. And his evolution from prisoner to prison expert and partner of mine in assisting pro se’s makes a point that must never be forgotten: that one must not write off a person on the basis of his or her history; that bad people often outgrow their badness, and the badness might as in Abraham’s case be a source of future goodness. And this is a point with decisive significance for the issue of the length of prison sentences: most of them are too long.
Mr. Abraham, a former lawyer, argues powerfully for prison reform, on his website “citizens for criminal justice,” www.citizensforcriminaljustice.net/, where on October 10 of this year he published an illuminating article on Claire Matteis’s effort (discussed earlier in this chapter) at reform of the Delaware prison system. And recently he sent me two very interesting articles that he had written. One, available online at http:// www.citizensforcriminaljustice.net and stored at http://www.citizensforcriminaljustice.net/how-the-war-on-drugs-has-destroyed-justice/, reports that “more Americans are killed by overdoses than by guns,” that “84 to 92% of all crime is drug related,” “mandatory minimum” drug sentences heavily punish persons who commit utterly trivial drug offenses, sentences for identical crimes differ widely, wrongful convictions (some based on perjury by witnesses) for drug offenses are common often because of misconduct by police or prosecutors, who are skilled at intimidating defendants to plead guilty rather than go to trial, and finally “the criminal justice system is overloaded.”
The other article, entitled “Why only prosecution and imprisonment will stop prison abuse and police abuse! Demand it!! How to avoid the deaths of more prison guards!,” and available online at www.citizensforcriminaljustice.net/ prosecution-imprisonment-will-stop-prison-abuse-demand-avoid-deaths-prison-guards/, focuses on the frequency of brutal misconduct in prisons by prisoners against each other and against guards, and guards against prisoners, and against measures for reducing such frequency.
Also on October 10 Abraham had published on his website a powerful indictment of what is apparently a growing practice in some states, such as Oklahoma, of incarcerating criminals in factories rather than prisons— factories that often, as he explains, “are little more than lucrative work camps for private industry.” That in itself needn’t spell hardship, but it turns out that Many of the factories are chicken processing plants, which as Abraham explains “are notoriously dangerous and understaffed. The hours are long, the pay is low and the conditions are brutal.” Those who are hurt and can no longer work are sent to prison, and to avoid prison many of the injured workers continue to work at the factory despite the pain.
Of course Abraham is not alone in pointing to abusive behavior in prison. I recently came across a prison chaplain’s complaint that the state prisons where he provides counseling, along with other facilities that he has inspected, are horrible. The meals, medical services, bedlam, confusion, and general living conditions are often cruel and would be inappropriate for warehousing brute animals. Many state systems, rather than serving as places of healing and rehabilitation, exacerbate problems and thereby contribute to expanding the cycle of crime and recidivism. Abraham is inexhaustible on the subject of prison abuse. For a recent (October 13, 2017) cluster of articles by him on prison abuse, police brutality, the war on drugs, and mental illness of prisoners, see Citizens for Criminal Justice, “Other Issues,” www.citizensforcriminaljustice.net/ other-issues/.
See also Ken Abraham’s article “Sex Offender Registries Endanger the Lives They’re Meant to Protect,” posted on October 26, 2017, in Featured, Mental Illness, Other Issues. Here is an excerpt from the article: A Michigan man we’ll call John Doe met a woman in 2005 at a club open only to those aged 18 and up. He didn’t know when they slept together [that] she actually was 15. Today, 23 years later, they are married with two children. But John was also arrested and placed on Michigan’s sex offender registry for the rest of his life. He has lost countless jobs when employers learned of his status. He’s been periodically homeless, unable to live with his wife and kids. He can’t even attend his own children’s basketball games or see them graduate from high school. Recently the Court of Appeals for the Sixth Circuit pointed out that registries may actually increase offending and have at best no impact on recidivism, probably because they make it so hard for registrants to get and keep a job, find housing, and reintegrate into their communities.
In a separate article, Abraham has mounted a strong challenge to prosecuting attorneys associations, which as he shows oppose many widely proposed reforms in criminal justice, including reforms aimed at reducing the use of the death penalty and the length of prison sentences, and Florida’s “direct-file” policy, which allows prosecutors to send juveniles as young as 14 directly to adult court without a hearing; as a result of that policy, Florida sends more kids to adult prison than any other state in the country. See Abraham, “Prosecutors Are Banding Together to Prevent Criminal-Justice Reform,” Backgress, October 21, 2017. And for another painful example of prosecutorial overreach, see Emily Bazelon, “She was convicted of killing her mother, prosecutors withheld the evidence that would have freed her. By the time Noura Jackson’s conviction was overturned, she had spent nine years in prison. This type of prosecutorial error is almost never punished.” New York Times.
… Returning for a moment to Ken Abraham, I note a powerful recent criticism by him of sex registries, in an article entitled “Sex Offender Registries Endanger the Lives They’re Meant to Protect,” in Citizens for Criminal Justice, October 26, 2017. He discusses among other cases that of a Michigan man who slept with a 15-year-old woman not knowing that she was below the age of consent. Later they married and had two children, but the husband was arrested and placed on Michigan’s sex offender registry for the rest of his life, lost countless jobs when employers learned of his status, has been periodically homeless, and is forbidden to attend his own children’s basketball games or see them graduate from high school.” The article explains that such savage treatment of harmless people by the authorities is commonplace. Abraham points out that the scientific consensus is that registries don’t actually do anything to prevent sex offenses, and in fact are dangerous because they push registrants to the margins of society, making it harder for them to get jobs or education, find homes or take care of their families. Draconian restrictions mean registrants face years in prison if they do something as simple as borrow a car without immediately notifying the police.
Yet comparable to Florida is Mississippi. Ken Abraham and I had this to say about criminal punishment in a recent Op Ed entitled “No Justice in Mississippi?,” published under the title “No Safety Valve for Prisoners in Mississippi,” Delaware State News, Nov. 3, 2017, p. A4:
We write to express our concern about an apparent deficiency of interest in justice in the state of Mississippi. Specifically, we address the issue of inmates wrongly convicted– actually innocent– and inmates who have been given unduly harsh [“ this is grossly unjust and makes no sense!”] kinds of sentences, as too often has been the case with “habitual offenders” (three strikes) or mandatory minimum sentences. Most states have a “safety valve” procedure, called an Application for Clemency (or in some states called Commutation of Sentence), to deal with these kinds of cases. If the inmate qualifies, one can file such an Application requesting the sentence be reduced. The process is at the discretion of the appropriate state agency (Usually, the Board of Pardons) and in most states, the Governor, but it does provide a path toward justice where otherwise none may exist. Mississippi has no such process, and to our knowledge, is the only state in the country lacking such a safety valve.
Mr. Abraham recently called the Attorney General’s office in Mississippi to ascertain whether his understanding of the situation was accurate, after talking with the Mississippi Board of Parole and reviewing the forms for Clemency in Mississippi. The Governor’s office had already confirmed it. After explaining the issue … a safety valve to get innocent people and some others out of prison … the top prosecutor in the Attorney
General’s office, a Mr. Stan Alexander, said: “Well, I am the top prosecutor in this office, so I have no interest in getting anybody out of prison”, and hung up! Wow. Mr. Abraham himself was a prosecutor, so he understands that the prosecutor’s job is to do justice, not simply to incarcerate people. Mr. Alexander’s attitude speaks volumes as to why Mississippi may not have the safety valve provided by every other state in America. We call upon the Mississippi legislature and the Governor to create a meaningful process to release from prison some inmates who, by any standard of decency and fairness, should be released before the completion of their current sentence.
Sincerely, Richard Posner, retired Judge of the Seventh Circuit Court of Appeals, Chicago, IL, and founder of Team Posner Law Group: Improving Access to American Courts, and Kenneth Abraham, Deputy Attorney General of Delaware 1974-1979, founder of Citizens for Criminal Justice, Dover, DE.
Abraham of Delaware, the jack of all trades whom I introduced to the reader in Chapter 1. Among other distinctions, he is, as I mentioned in that chapter, a leading expert on prisoner abuse throughout the United States, and he will be available to advise lawyers in all parts of the country who represent or are interested in representing prisoner pro se’s (about half of all pro se’s involved in litigation are prison inmates) but have limited understanding of and experience with prison abuse of prisoners— though such abuse is rampant, as Mr. Abraham has shown. (See also Stephen Hampton and Ken Abraham, “Prison Reform Not Moving at Lightning Speed.”
Abraham, I wrote the following note to a distinguished lawyer in Florida named James V. Cook: “My name is Dick Posner. I am a recently retired federal court of appeals judge in Chicago and since my retirement the head of the firm that employs Ken Abraham. I want to thank you for the superb evaluation you sent Ken about Joel Kerscher, which Ken forwarded to me. I don’t know what the next move in the case will be, but obviously you’ll know how to handle it and I hope you will stick with the case. We’ll be happy to compensate you if Mrs. Kerscher is unable to.” (Mrs. Kerscher is the mother of Joel Kerscher, who died of neglect of medical care in a federal prison.
Ken Abraham and William Bond, But a number of other lawyers whom I know, think highly of, and believe would derive greater satisfaction from representing pro se’s in litigation than from the more conventional forms of legal practice, will I hope join my enterprise, which will operate nationwide.