Tag Archives: criminal justice

Once and Always a Criminal?

Andrew Falk, left, a senior fellow at the Sagamore Institute, works with Michelle Jones on a housing policy proposal at the Indiana Women’s Prison. ANDREW SPEAR FOR THE MARSHALL PROJECT


Audio brought to you by curio.io, a Hedgehog Review partner.

A convicted murderer is accepted into Harvard University’s graduate history program only to have university officials override the admissions decision for fear of what news reports might say, among other stated and unstated concerns: If you didn’t read this compelling story, reported by Eli Hager at The Marshall Project, a nonprofit group focused on criminal justice, and published in the New York Times, you should. It is a forceful reminder of how we fail to think adequately about the ends and means of justice.

Michelle Jones, who is starting work on her Ph.D. at New York University this fall, was released from prison last August after serving twenty years of a fifty-year sentence for murdering her four-year-old son. The story of how she managed to become a published scholar of American history while incarcerated at an Indiana state prison—with no access to the Internet—is impressive in its own right. According to Hager, not only did Jones, now 45, lead “a team of inmates that pored through reams of photocopied documents from the [Indiana State Archives] to produce the Indiana Historical Society’s best research project last year. As prisoner number 970554, Ms. Jones also wrote several dance compositions and historical plays, one of which is slated to open at an Indianapolis theater in December.”

The details of why Harvard overrode the history department’s decision to admit Jones (one of eighteen selected from more than 300 applicants) are not entirely clear. However, Hager uncovered a memo from two American studies professors who examined Jones’s acceptance (she was a top alternate) and “questioned whether she had minimized her crime ‘to the point of misrepresentation.’” One of the professors, John Stauffer, further noted that “frankly, we knew that anyone could just punch her crime into Google, and Fox News would probably say that P.C. liberal Harvard gave 200 grand of funding to a child murderer, who also happened to be a minority. I mean, c’mon.”

C’mon indeed. Probably unintentionally, Stauffer voiced one of the unspoken presumptions of America’s criminal justice system: once a criminal, always a criminal. This presumption too often becomes a self-fulfilling prophecy because of the collateral consequences those with criminal convictions face after release from incarceration, including restrictions on access to employment, student loans, public housing, and other federal benefits.

But there is more for us to consider.

The one thing we know for sure is that Jones’s possible “misrepresentation” and “minimizing” version of her crime was cause for concern. Her crime was unquestionably a terrible one. After getting pregnant at fourteen as a result of what she called nonconsensual sex with a high-school senior, her mother beat her in the stomach with a board and she was placed in a series of group homes and foster family situations. This damaged and completely unprepared mother ultimately confessed to beating her four-year-old son and leaving him alone for days in their apartment, eventually returning to find him dead. Jones was twenty when she committed this horrible crime, which a personal statement accompanying her Harvard application described as the result of a “psychological breakdown after years of abandonment and domestic violence.”

Her statement that she killed her son partly because of her own trauma and psychological breakdown speaks to an unresolved tension in our thinking about crime. On one hand, we need to believe that there are reasons why people commit crimes; otherwise, we fear that anyone could become a victim or a perpetrator of violence at any moment. At the same time, we can give only so much credence, or even thought, to the explanation of why a crime was committed; too much understanding might cause us to question our criminal justice system’s reliance on incarceration as the most efficacious response to crime.

The belief that offenders should accept their responsibility and repent of their wrongdoing is so baked into our criminal justice system that it rewards offenders by taking months and sometimes years off their sentences if they say the magic words. As a federal public defender, I have counseled clients about their allocution to the court before they are sentenced. After all the lawyers have spoken, what should defendants say in those final moments before the gavel drops? The general advice is always to avoid blaming anyone else—or even pointing to conditions beyond one’s control—because the American myth of self-reliance and autonomy requires the defendant to bear the full weight of the offense in that moment. And when defendants offer their mea culpas, they give us all permission to think that justice has been well and fairly served.

After Jones spent many of the best years of her life in prison, why should it matter now how she describes something she did a little more than two decades ago? It matters because we need to ask ourselves whether the actions of someone as bright and capable as Jones were largely the result of forces beyond her reasonable control, namely intense trauma and extreme psychological duress.

And if we conclude, reasonably, that they were, we might further ask if fifty years of incarceration was an appropriate sentence in the first place. Would fifteen years have sufficed? Would psychiatric hospitalization have been a better response? Undeniably, Jones’s crime was horrific, but she fulfilled her end of the bargain, doing everything that the sentencing court and the Indiana Department of Correction asked of her, and then some. The Sentencing Project estimates that 161,957 people were serving life sentences as of 2016. The other two million adults currently incarcerated in the United States will be released someday. If Jones is not entitled to have her debt declared repaid in full, what hope can we extend to them?

Lisa Lorish is an assistant federal public defender in the Western District of Virginia and a graduate of the University of Virginia School of Law.

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The Murderer’s Reckoning:
An Interview with John J. Lennon


john and mom CROP_FLAT5

John J. Lennon’s essay “The Murderer’s Mother” appears in our 2016 summer issue. In this interview, Lennon, who is incarcerated at Attica for a drug-related murder, tells us more about his background, how he came to writing, and what it’s like to be a journalist behind bars.

The Hedgehog Review (THR): What was life like growing up?

John J. Lennon (JJL): I grew up poor, with a single mother, in a Brooklyn housing project. But I had more opportunities than most kids in the projects because my mother made money running hot dog stands. She was able to send me away to boarding school from fifth to eighth grade. It was mostly upper class, privileged kids, about thirty of us, living in a mansion on the Hudson River. In the seventh grade, I won second prize in an essay-writing contest. They gave me a $75 savings bond. (Two years later, I would swipe it from my mom’s drawer, cash it at a discount, and buy drugs.) Things got bad in my adolescent years. I’d learned my real father committed suicide and then we moved to Hell’s Kitchen. Mom enrolled me in public school, and all of a sudden, life was much less sheltered. At the time, the reputation of a murderous Irish mob called the Westies—most of whom were sent away to federal prison in the 1980s—seemed to rule the neighborhood.

Just to give you a flavor of the time, here’s a short anecdote: It was 1991 when I first met Danny, a then-thirty-something Westie who had somehow managed to avoid indictment. My friend Terrence and I were holding down our street corner. Full of swagger with dark hair and blue eyes, Danny winked at me when he walked by, “What’s up, kid?” “You know,” Terrence told me after he passed by, “Danny killed a guy before.” When I heard that, it wasn’t just fear I felt, but admiration, too. It was then that I began to see murder more as a revered deed among gangsters than as the mortal sin it was among civilians.

THR: Tell us more about the crime that sent you to prison.

JJL: Alex, the man I killed, was, like me, in the drug game. At the outset, the murder was about money, drugs, and respect. As sick as it sounds, it was also about this need for me to complete my image. (I think many murders committed within gangster culture have a lot to do with broken boys and young men who want to earn status in a subculture that they otherwise cannot earn in mainstream culture.) I shot Alex several times with an AR-15 while he sat in a car, then dumped his body off a pier. It was a terrible crime, for which I’m deeply sorry. This all happened in December 2001. Continue reading

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Outlaw or Criminal?

The Pursuit of D.B. Cooper, a 1981 film version starring Robert Duvall

The Pursuit of D.B. Cooper, a 1981 film version starring Robert Duvall

Last week the FBI announced that it was ending its forty-five-year manhunt for D.B. Cooper. In case you are unfamiliar with the case, Cooper (real name unknown) famously hijacked a passenger plane from Oregon to Seattle in 1971 by claiming he had a bomb on board, freeing thirty-six passengers in exchange for $200,000 in cash (equivalent to about $1.2 million today), and taking off again with the pilot and a small crew. What made Cooper a legend in our popular imagination, however, is that Cooper subsequently managed to parachute out of the plane with the ransom money—and was never seen again. Before formally ending the search last week, the FBI interviewed hundreds of people, amassing a file that reportedly measures more than forty feet long (much of it now on-line) including information on more than 1,000 suspects.

Viewed dispassionately, the case against Cooper is straightforward and obvious: Cooper threatened violence, endangered the lives of many people by forcing an emergency landing, and stole a lot of money. These are serious crimes. Yet, he is viewed by many as more of an inspirational outlaw who pulled off an amazing heist than a true villain. His story has inspired movies, books, songs, a pretty funny Far-Side cartoon, an annual festival with a look-alike contest, and Mad Men conspiracy theories. Google “D.B. Cooper,” and if you are like me, you’ll get a little thrill at the fact that he pulled off something that seems so impossible today. Continue reading

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Throwing Away the Key

When he was eighteen, Rene Lima-Marin and a friend robbed two Colorado video stores of around $11,500 in total, threatening the employees of both establishments with a gun. Both men were charged with two counts of first-degree burglary and three counts of aggravated robbery. Under pressure from years of rising gang violence in Denver, Colorado’s 18th Judicial Court answered the growing public outcry with tough, new sentencing protocols. Lima-Marin found himself labeled a chronic offender, likely to commit further crimes if he remained free. Offered seventy-five years if he pled guilty, he decided to risk going to trial, hoping that a lenient judge would find some or all of the evidence inadmissible. That didn’t happen, and Lima-Marin ended up paying what the National Association for Criminal Defense Lawyers call a “trial penalty”: a far greater sentence resulting from the efforts of prosecutors to make good on their threats to add extra charges if an individual goes to trial. Convicted, Lima-Marin was sentenced to ninety-eight years.

Rene and Jasmine Lima-Marin on their wedding day in June 2013 with their son Josiah, left, and Jasmine's son Justus. Courtesy the Lima-Marin Family via change.org.

Rene and Jasmine Lima-Marin on their wedding day in June 2013 with their son Josiah, left, and Jasmine’s son Justus. Courtesy the Lima-Marin Family via change.org.

What makes the case remarkable is what happened next. In what his attorney legitimately believed was the result of an appeal (but was in fact the product of clerical error), Lima-Marin came up for parole after serving only a decade of what was essentially a life sentence. Released, he immediately moved in with his former girlfriend and became stepfather to her son. He found and held jobs. The couple married, became regular church-goers, bought a home, and had a son together. Lima-Marin mentored at-risk youth and coached his stepson’s soccer team. He committed no new crimes and successfully completed his five years on parole.

Then, five years and eight months after he was released, Lima-Marin received a call notifying him that his release had been a mistake and that a judge had signed the order for his arrest. He was picked up the very same day and, after a quick hearing, was taken back to prison where he faced at least seventy-five more years before possible parole.

All students of criminal law learn that there are five different justifications for the punishment of those who commit crimes: retribution, deterrence, rehabilitation, restoration, and incapacitation. In federal criminal practice, these rationales are explicitly spelled out by statute. And yet with all of these considerations supposedly in play, the vast majority of criminal sentences in the United States are handled with two tools, sometimes combined: financial fines and incarceration (often followed by a period of supervised release or probation). Our bluntest tool—incarceration—takes account of retribution (punishing a societal wrong), incapacitation (keeping someone dangerous off the streets), and deterrence (providing a disincentive for committing this kind of criminal behavior). Financial penalties reflect the need for restoration (making a wrong right), at least in cases of fraud and theft, although for the vast majority of offenses that result in fines (driving offenses or other crimes against “society”), the imposition of a monetary payment appears to be more about retribution and deterrence than anything else. Moreover, when fines with quickly accruing interest go unpaid, incarceration often results.

But while fines and incarceration satisfy most justifications for punishment, it would be hard to argue they do anything for rehabilitation. Indeed, with many jails and prisons now offering prisoners little or no any access to educational opportunities (sometimes even basic GED classes), vocational training, or mental-health or addiction treatment, few would say that incarceration is serving any rehabilitative purpose.

Although not alone, philosopher Jonathan Jacobs makes a persuasive case that incarceration, far from rehabilitating, usually has a corrosive effect on the character of prisoners. He points to several contributing factors: a lack of autonomy, the (at least seeming) arbitrariness of disciplinary regulations and sanctions, the constant threat of violence, the lack of meaningful social interactions, and inadequate mental-health care. Additional post-incarceration hurdles faced by a convicted felon (lack of access to government benefits and loans; severely limited employment possibilities) only increase the likelihood that he or she will be driven back to crime.

The most recent Bureau of Justice statistics on recidivism provide rates for state prisoners released from incarceration in 2005, but the results are staggering nonetheless. Two-thirds of the state prisoners tracked in this study were re-arrested (not necessarily re-convicted) within three years of their release. That number jumped to three-quarters within five years of release.

The case of Lima-Marin should make us stop and ask why we punish, and what happens to those we punish. The system of parole (abolished federally and in many states) used to provide for indeterminate sentences with the possibility of earlier release depending on a defendant’s behavior and demonstrated rehabilitation. The movement to abolish parole in the 1990s coincided with the push to legislate mandatory minimum sentences, the aim of both being the elimination of discretion, and therefore discrepancies, among criminal sentences.

But uniform sentencing is both a blessing (arguably counteracting racial and other biases) and a curse (removing the ability of a judge or parole board to individually assess an offender). Perhaps more important, eliminating parole removes the political risk of a recently paroled offender’s committing a new and grisly crime and the public outcry in response. Ultimately, though, the demise of parole sends a deeply demoralizing message to the incarcerated: We don’t care what you do to try to rebuild your life while you are in prison. In a much publicized contrast to the American system, Norway caps criminal sentences at twenty-one years, extending them in five-year increments only if it is determined that an offender is not rehabilitated by the end of his or her initial term.

Lima-Marin beat the odds on rebuilding his life without committing another crime within five years after his release, and he did so after serving only about a one-tenth of his sentence. In addition to causing us to think about the sheer length of the sentence he received at age 18, might not his story suggest that rehabilitation needs a more prominent place in our thinking about the means and ends of punishment?

Lisa Lorish is an assistant federal public defender in the Western District of Virginia and a graduate of the University of Virginia School of Law.

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