“Yesterday the Federal justice department announced a plan to canvass the entire federal prison … to find inmates who committed low-level crimes and could be released early.”

So said today’s Boston Globe; the announcement wa also liberally tweeted. We are glad to hear of this. We fully approve.

In 1980 the entire Federal prison population totaled 24,363. Today 216,285 people live in federal prisons. Over 2,2000,000 people live imprisoned in America’s federal, state, and local prisons. It’s by far the highest number of any first-world nation.

People live their whole adult lives in American prisons. Prisoners aged 65, 75, even 85 and 90 years old abound in America’s jails. Hardly any other civilized nation keeps people locked up in old age. we do. Why ?

Aged prisoners are expensive to keep; much of their time is spent in hospitals or being medicated (when they’re not simply left untreated, maybe to die).

Finally, after thirty years of wielding the lock and key, the shackles and cells, our federal government — and a few states — are saying ‘enough.” Prison henceforth is to be strictly for the violent felon. That’s how it should be.

The pardon power and the authority to grant clemency have been central to governance since Roman imperial days and before. They are venerable, not novel. Presidents used to use their clemency and pardon powers liberally ; let punishment of crime use the stick and. in some cases, the carrot. But of late, through rear of what happens when a prisoner granted clemency commits a horrendous new crime — one thinks of Willie Horton in 1987, a murderer who, while on furlough, killed again, heinously — politicians have become unwilling to pardon or be clement. President Obama, accused by opponents of being a radical leftist (which he most definitely is not), has pardoned almost no one. The same is true of our own state’s Governor Deval Patrick.

This was, and is, a huge mistake.

Sentencing itself has been revised in recent years. Gone are the draconian penalties attached to drug dealing; drug use has become almost accepted. States and the federal government have seen that drug crimes are more a matter of taste than criminal minds. In this era of stringent government budgeting, the cost of trying and imprisoning drug offenders looks quite unacceptable.

The pardon and clemency now being planned thus arises from financial rather than moral considerations. This we dislike. Clemency and pardon are moral decisions, a hand of friendship, a restorative by which offender and community are re-united. The financial motive at work today does matter; government has an obligation to spend wisely. but the cost savings in clemency and pardon fall far short of the moral benefit of granting them.

we hope that when the federal pardons and clemency now being assessed are finally on the president’s desk gor signing, he will add to his many signings many words of restoration, re-union, and rightfulness.

—- Mike Freedberg / Here and Sphere



The United States Attorney General, Eric Holder, announced this weekend that he is taking action to change the incarceration results of Federal prosecutions.

Specifically, he has memo’d all United Stated Attorneys to no longer specify the amount of drugs seized in criminal indictments, thereby avoiding mandatory sentencing laws that have led to a huge expansion, these past 30 years or so, in numbers of people incarcerated.

Holder’s action is a positive step indeed. Incarceration has for far too long ruled the justice system in our nation. As many have noted, America totals five percent of the world’s people but a full 25 percent of the world’s prisoners. This would be an intolerable condition, morally and otherwise, in any modern nation. How can it possibly be true of the country that we who live in it call “the land of the free” ?

Again, as many have noted, almost half of those incarcerated have committed non-violent, usually drug crimes. Others are elderly or have served the major portion of their sentences — terms handed to them by overly harsh, mandatory sentencing laws enacted thirty years ago and more. Trial judges used to have discretion in sentencing, as well they should, given that they see the entire trial process as it plays out before their eyes. Every case is different; discretion to the judge allowed him or her to include these differences into the record as it applied to sentencing. Mandatory sentence laws did both defendants and judges a great disservice, not to mention the harsh edge that it imposed on the entire system.

The 1980s were a time of obsession about crime brought about the advent, on the street, of “crack,” a smoked form of cocaine that drove its users to crazy acts. The same decade saw the rise of an hysteria that child-abuse was going on at day care centers. Many day care center people were prosecuted and hounded– lives ruined — as in the 1692 Salem witch trials (an d those of us who call Salem our native city know the horrors of that hysteria only too well.) As it turned out, every single one of these day care hysteria cases was overturned and the lives of those impacted restored to them as best could be. Incarcerations for non-violent offenses, however, have taken far longer to reform.

Holder supports his move by making it a cost issue. This is not mere eyewash. Incarceration costs states and the Federal government almost $ 100 billion a year. As almost two million of us are incarcerated, the dollar amount equals about $ 50,000 per prisoner — most of it being paid as wages to prison guards, wardens, medical people, and the maintenance of prison buildings and systems. Because there is huge money involved, the movement to reduce incarceration actually began, not with Holder’s recent move, but with conservative “red” states such as Texas. Obsessed by huge costs that must be paid for by taxes, these states have been first to remove non-violent offenders from the incarceration system wherever feasible. Little wonder, then, that the numbers of Americans incarcerated has fallen in each of the past three years — and the rate of decrease is accelerating.

Here and Sphere has no objection to using money issues as a reason to reduce incarceration. Nonetheless, we cannot avoid the moral and common sense concerns. In what way does incarceration of non-violent, mostly drug, offenders, supersede rehabilitation, community service, and detox centers ? Nor is it morally right that mandatory incarceration has fallen overwhelmingly on men of color. Almost one-third of all American men of color have been incarcerated at least once during their lives ! Indeed, more American men of color have experienced incarceration than were held in slavery at the timer of the Civil War. Men of color comprise five percent of the population but 40 percent of those in prison on death row.

Holder’s action will not alter the death row statistic; but his move will certainly and justifiably ease the disproportion that has put so many men of color on a path to long incarceration. For this, we applaud Holder’s action more loudly than because of its money saving.


^ Judge Shira Schendlin of Federal Court for the New York District

Note : today, as we write this editorial, the news has come of a New York Federal Judge’s finding that New York City’s notorious “stop and frisk” police practice is unconstitutional. Specifically, District Judge Shira Scheindlin found that “stop and frisk” policy has profiled people of color, violating their civil rights protected by both the 4th and 14th Amendments to the Constitution. As Scheindlin said, “many police practices may be useful for fighting crime — preventive detention or coerced confessions, for example — but because they are unconstitutional, they cannot be used no matter how effective.”

One could add to the list of unconstitutional police practices the taser-ing of citizens, not to mention the shooting of unarmed suspects. Nonetheless, Scheindlin’s decision is most welcome and a timely companion to Attorney General Holder’s move. Perhaps the word ” justice ” will now begin to mean something just as well as something punitive.

—- Michael Freedberg / Here and Sphere



No fewer than four murder trials now have the American public – indeed, much of the world, fascinated and attentive,. Of those four trials, three are underway or in preparation in Massachusetts alone. (The fourth one, that of George Zimmerman, is a Florida event.) That Massachusetts be the focus of murder crime may surprise many. Our state’s reputation is that of a progressive, educated citizenry who follow highly moral missions and do their duty to everyone. And our reputation is not a mis-impression. We are all that. Educated, highly moral, committed to the well being of all of our neighbors.

Still, in a society as populous and diverse as Massachusetts, there are many, many agendas going on. Not everyone in Massachusetts works the community’s mission. Our three accused murderers, James “Whitey” Bulger, Dzhokhar Tsarnaev, and Aaron Hernandez had their own agendas even as they lived among the rest of us.

Bulger 1Aaron 1Dzhokhar

Nothing in itself is wrong with that. No society would be worth belonging if it were not open to opt-outs. No society gets it entirely right. Still, it takes an act of will for someone to separate frrom the general opinion. Many acts of will are beneficial : inventors, entrepreneurs, political opponents all go against the societal grain to society’s ultimate betterment.

But some dissents are criminal. By “criminal,” I mean acts that society cannot tolerate, that not only dissent from the society’s mission but portend immediate, actual harm to it and to those who live in it. This, of course, is a commonplace. What is not so commonplace is our fascination with criminal dissent. Why does the criminal do it ? Does he realize that he is acting criminally ? Does it just happen somehow  ? Does he like his criminal self ?

These questions motivate our fascination with the crime events now on trial in Massachusetts or soon to be.

We marvel at their diversity as well as their intensity. There is the old line, noir-movie, city gangster, Whitey Bulger. There’s the terrorist, Dzhokhar Tsarnaev, religious and ioung. And there is the sports star gang-banger, Aaron Hernandez. None has the slightest similarity to any of the others; not motive, not background, not the manner of act. They are linked only by being accused of committing murder — in Massachusetts.

Each probably despises the others. Criminal will is often like that. It defends its own will in the same breath that it condemns other wills. The criminal HAS IT BOTH WAYS. He (or she) breaks the social covenant, but also passionately defends it against others who break it. The criminal gets to be a good citizen and a bad one, both.

This fascinates us, and it should. The cliche “having your cake and eating it too” is a commonplace because we all want to do it – but few of us ever do. The criminal gets to actually do it. How can he NOT fascinate us ?

We wonder how the criminal gets to be so free from taboos even while maintaining a  dedicationl to them. At the trial we see some of how he (or she)  did what he did, and of why, but even at trial the question of how did it get to that is rarely answered even partially. Still, that is the question we want – need – to have answered. Because it is rarely answered in a trial, we follow the trial intently seeking in what is testified to an answer to that question.

We fear, and rightly, that the criminal acts as he does because he likes being criminal. He can condemn the criminal acts of others as vigorously as we do and commit other such acts as we do not. He likes having it both ways ? Maybe not. But what if he does ?

Why did Whitey Bulger choose a life of extortion, gambling, violence, ratting, and killing ? Perhaps because he liked it. Perhaps Tsarnaev liked being his older brother’s loyal helpmate. Maybe Aaron Hernandez liked the power and  swagger, the anger and dominance, that violence to his associates engendered. There is nothing freer than to be free of societal taboos. When one sees that one can do anything, it is hard to walk away. Hard for some, anyway. Fortunately, it is not hard for most of us to eschew doing whatever we want. In any case, we can watch the trials of Hernandez, Tsarnaev, and Bulger and imagine ourselves having it both ways : doing what they did and not doing it. Living it and condemning it.

No wonder that criminal trials fascinate us.



— Michael Freedberg / Here and Sphere