Jim Webb on the Incarceration Crisis

Cross-posted at Raising Kaine

This comes a little late, but a week ago Senator Jim Webb was on the ABC show This Week with George Stephanopolous and said something which took me by delighted surprise.

We've -- this is a chance to put a lot of issues on the table. One of the issues which never comes up in campaigns but it's an issue that's tearing this country apart is this whole notion of our criminal justice system, how many people are in our criminal justice system more -- I think we have two million people incarcerated in this country right now and that's an issue that's going to take two or three years to try to get to the bottom of and that's where I want to put my energy.

Yesterday I had the chance to thank Senator Webb in person for bringing up this virtually invisible issue at Brian Moran's pancake breakfast and told him how grateful I am as a criminal defense attorney to see a United States Senator calling attention to this enormous crisis. He immediately (and impressively) off the top of his head started reciting the facts and figures of incarceration and expressed dismay that an entire segment of our sociey, the young black male, is growing up incarcerated or under court supervision. He said "it's terrible that you can make a mistake when you're 18 years old and have it follow you around for the rest of your life. We have to change that." He added that this issue is as important as the war and economic fairness. For information on some of those facts and figures see this New York Times article Plight Deepens for Black Men, Studies Warn

Senator Webb mentioned an article he wrote for Parade Magazine in 1984 on the Japanese prison system. What We Can Learn From Japanese Prisons. While I would never endorse the Japanese practice of interrogating prisoners and having them sign confessions without a lawyer present, we could learn something from the Japanese sense of fairness and honesty in dealing with prisoners. An American former prisoner told Webb

he prefers Japan's legal system to ours. Why? "Because it's fair," he says. "They never tried to trick me, even in interrogation. They were always trustworthy. I could have got five years and they gave me two. The Americans who were helping them wanted me to get 20. The guards at Fuchu were hard, but they never messed with you unless there was a reason. You didn't have to worry about the other prisoners coming after you, either. And the laws of Japan are for everybody. That's the main thing. The laws in this country depend on how much you can pay. I'd rather live under a hard system that's fair."

Having represented dozens of people suckered by detectives and private security personnel into confessing, usually on the promise of release or of lenient treatment, I say a change would do the entire system good. The bitter fact is that the police lie. They lie all the time. Their lying is trained into them at the academy and accepted by the courts with nary an eyelash batted. They lie about the evidence; they lie about the statements of suspected co-defendants; they lie about the legal effect of a conviction; they lie about their power to affect the outcome of the case once it has gone to the prosecutor. Having been forbidden to use force on criminal suspects they resort instead to interrogation techniques designed to elicit confessions, but not necessarily the truth, and they have little understanding of just how their techniques can in fact result in injustice. It is the poor and uneducated who are most susceptible to these techniques, which can account at least in part for the feeling among many of my young, poor, uneducated, and minority clients that their involvement with the system is an inevitability, perhaps even a rite of passage. Moreover, there is a sense among them that the only difference between their dishonest approach to life and the government's is that the government has power and that is why cops can lie to get what they want while the suspect is punished.

On top of this is the acceptance within our society of brutality and rape of prisoners within our prison system. People talk of such things with a smile and a wink instead of as the appalling thing it is.

Added to this are the extraordinary rates of incarceration, often for decades, for crimes which often involve only dishonesty or non-violent drug offenses. I asked Senator Webb to look into the skewed results produced by mandatory minimum sentencing in which all the power rests with the prosecutor - who chooses what charges to bring against defendants in order to bring about particular dispositions - and reduces the judges to mere clerks imposing sentences based on worksheet calculations.

I asked the Senator to consider the problems of the mentally ill. Few services are available for the mentally ill and they are often incarcerated for crimes committed while in the grip of their delusions or their compulsions. Many of them have fallen through the cracks and are off their medications when they commit their crimes. Don't get me started on how much of this is related to unavailability of mental health treatment services even in so-called "good" health benefit plans. We are warehousing the mentally ill in our jails and prisons.

Last, in a zero-tolerance state like Virginia, where possession of any drug but marijuana is a felony, I have seen long time resident aliens and undocumented aliens either deported for their drug felonies (one ecstasy pill is all it takes for a felony conviction) or denied the ability to apply for citizenship because of their status as felons. Senator Webb replied that he hopes some day soon to hold hearings on this issue and I wished him success.

Looking back, I realize I piled a lot on his plate in a two minute conversation, but at least he's willing to pay attention to this crisis. Once again, thank goodness that Jim Webb won that election instead of George Allen.

Senator Webb Sheds Light on the Matter, Lampshade or Not

In keeping with his status as a rising star in national politics Senator Webb was interviewed on Face the Nation and declared a Person of Interest on the McLaughlin Group today.

Bob Scheiffer on Face the Nation started off asking Senator Webb what he thought of the peace rally which took place yesterday. Webb replied that "one of our greatest strengths is we have the right to stand before the people in power and state our views." He went on to distinguish the turmoil of Iraq from that of Vietnam, noting that along with the war many other issues had been involved in the protests, and that 8 years after the Gulf of Tonkin resolution the majority of Americans supported our assistance to the South Vietnamese government.

He went on to point out that he was not so much against the Iraq war as he and others of long military background and experience thought it would be strategically bad idea. There was no endpoint, no strategic plan. He said we cannot keep increasing troop numbers on the theory that when all else fails we are going to throw more military in. The preponderance of evidence is that it will not work.

Scheiffer then asked what Webb suggested. He replied that what is needed is something like the Dayton accords. The problem cannot be solved militarily but requires a political solution in which the parties can be brought in and assume ownership of the issue and responsibility for its resolution.

On Scheiffer's inquiry about his response to SecDef Gates's statement that the Senate opposition was "emboldening" the enemy, and Vice President Cheney's statement that Webb's opposition to the increase was "hogwash", Webb replied that throughout the history of this war Cheney's statements have been "off and wrong". As to Gates's comments, he said they were wrong and a Defense Secretary should not take such positions. He questioned which enemy Gates was talking about: Iran? Al Queda? Al Sadr? In a situation in which the enemies are many the solution is to "boldly step aside and invite them to the table" to negotiate. By starting this war "we lost the place we had in the world before we began this".

Next was the question of the resolution. What should happen if the President does not listen? Webb replied that there will be other congressional actions. We need a strategy with clearly articulable endpoint and Congress will take the steps necessary to accomplish that. He noted also concern about the way the money is being spent. He hopes soon to "put on a lampshade, er, eyeshade, and really analyze the situation. There has been no accountability and a lot of sweetheart deals for the contractors," and he is going to see how the money’s been spent.

Webb went on to say that when he first arrived Senator McCain met with him and said there needs be no impugning of the patriotism of either side. He hopes Senator McCain remembers this because recently he has been seeing something bordering on charges of disloyalty from the Republican side. He pointed out that "our military is diverse and we should not presume to speak for the troops. What we’re doing is trying to define how it can be a win."

Once again Senator Webb hammers home his major points about strategic necessity and context in our actions rather than mere tactical moves. He noted again that we cannot be trapped into trying to solve this matter militarily. I wondered if he misspoke and said lampshade because he really is trying to shed some light on how this war should be conducted and on the other troublesome aspects, including the abject failure to establish accountability with respect to contractors.

On to the McLaughlin Group. John McLaughlin declared Senator Webb a Person of Interest, reviewed his impressive resume, and asked if Senator Webb heading for national leadership or will he burn out? UPI's Martin Walker said Webb will be a national statesman who was "absolutely right" in his challenge to the President. He called him "brilliantly bipartisan" in his choice to refer to two Republican presidents and said "this guy is going to be a sage of this country."

Do Hagel and Webb have special authority as combat veterans? inquired McLaughlin. Pat Buchanan opined that Webb lends great authenticity to the war debate, a tough guy who "wrote a great book". He has "capacity to be a president but in that party it would be very tough for him." Eleanor Clift described him as a serious man who is among people who were in student council during Vietnam. Among administration voices are the chickenhawks, and they're flocking.

Tony Blankley didn't like the chickenhawk comment, but declared that Webb is a virile man in a party led by two women and the Democratic "nuts" now have a real man around the house. Was hoping Clift would succeed in her attempt to launch herself at his throat.

The admiring Walker summed up by saying this war is more and more about people sent into a less and less hopeful fight, and now there is a war hero to say so. He cited with approval Webb's statement that Americans will fight and die when called but the President owes a corresponding obligation to be extremely thoughtful about the battles into which he sends them.

There you have it. A year ago Jim Webb was a private citizen who had already just about made up his mind not to run for office. Now he's on a fast track to becoming one of the nation's elder statesmen and among the most influential members of the Senate. Astounding.