New York court imposed false paternity on prisoner

U.S. law today legally establishes million of men as fathers through legal paternity procedures involving undue influence, mis-representation, and mis-service. William Brennan, probably the most influential U.S. Supreme Court justice in the twentieth century, observed that in the field of contested paternity, “the truth is so often obscured because social pressures create a conspiracy of silence or, worse, induce deliberate falsity.” English common law long held that a husband was legally the father of his wife’s child even if he could prove beyond reasonable doubt that he did not engage in sex that could have led to her conceiving that child. Today, a more common deliberate falsity is invoking the emotive claim of “best interests of the child” where that claim has no more relevance than an excuse to transfer money from a man to the child’s mother.

A case concerning false paternity of a prisoner in New York State illustrates the extent to which the law mocks cuckolded men.  Under the title “Adultery Case Dismissed Despite Man Being in Jail,” the Post-Standard of Syracuse in 1975 reported:

An ex-convict whose wife had four children while he was doing a nine-year stretch in prison for robbery has failed to win a divorce on grounds of adultery. Although prison records do not show the prisoner’s wife ever visited him in jail, the judge ruled she had “many possibilities of access” to the prison. The ex-convict, Theodore Walker of Bay Shore, N.Y., says he now fears his wife will get a court order forcing him to support the four children.

Walker produced in court depositions from prison officials which stated that he never left the prison during the entire length of his term and that there was no record of his wife ever visiting him. But New York State Supreme Court Justice Victor Orgera said in his decision, handed down on May 13, there were ‘‘many possibilities of access” to the prison for Walker’s wife, Margaret, and therefore Walker had failed to prove that he was not the father of the children.

Mrs. Walker, who is now living in Thomasville, N.C., with the four children and an older daughter who Walker concedes is his, did not appear in court to contest the divorce. To complicate Walker’s woes, he never was able to obtain a birth certificate for his wife’s youngest child, believed born in 1971, so Orgera ruled that there was insufficient proof of her pregnancy. The youngest child was the only one at issue in the case since New York State’s five-year statute of limitations on adultery ruled out consideration of the other three youngsters. Walker’s lawyer said he will appeal the case if he can find witnesses to the time of Margaret’s last pregnancy.

Travesties of justice such as this serve merely as amusing articles in newspapers. They generate no public action. Instead, state departments of corrections promote further punishment of prisoners with child-support debt and pay “experts” to shame prisoners into legally assuming paternity for children that may not actually be their biological children.

imposing false paternity on prisoners

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Source note:

The above article was distributed by United Press International (UPI). It was printed in the Post-Standard (Syracuse, NY), “Can for 9 Years Still Said Dad,” July 24, 1975 (p. 2).  Versions were also printed in the Lincoln Star (Lincoln, NE),”Adultery Case Dismissed Despite Man Being in Jail,” Sept. 30, 1975 (p. 9), the Chicago Tribune, “Loses adultery plea: Walks out of jail a ‘father’ of 4,” July 24, 1975 (section 1, p. 5), and other newspapers across the U.S. The judge was Justice Victor Orgera. He apparently served in the Suffolk County Supreme Court of New York (10th Judicial District). I have not been able to get the case opinion or the case documents.

[image] Costa – Horse Stock 11. Thanks to Aussiegal7.

communicative shock of being detained in jail

Smart phones now continually and richly connect persons to their social networks.  Imagine having your smart phone taken away from you in a new, threatening environment.  That would happen to you if you were arrested, booked, and held in a police lockup in suspicion of having committed some crime.

jail wall creates communicative shock

You lack important communicative rights upon arrest.  The Miranda warning is a well-known U.S. constitutional requirement.  You have the right to remain silent.  But you don’t have the right to use your smart phone to tell your loved ones where you are.  You have the right to speak to an attorney.  But you don’t have the right to consult your social network using now ordinary communication tools to find the best attorney with whom to speak.  New technologies have increased incredibly personal communication capabilities.  If you’re arrested, you surely will desperately want to contact someone.  You won’t be able to use now normal communication technologies to seek help.

Being arrested and held overnight in a police lockup is a relatively frequent event.  Detaining a person overnight or longer occurs in the U.S. about 21 million times per year.[1]  The number of person held in jail a week or longer is only about two-thirds that figure.  On any given day, about 2.2 million persons are in jails or prisons.  U.S. incarceration is extraordinarily high by international standards.  But incarceration’s reach is much broader than just the number of persons in jail or in prison on any given day.  During a year, many more persons experience criminal justice detention overnight, but for less than a week.

The communicative shock of criminal justice detention increases suicide risk.  The age-adjusted suicide rate for U.S. jail inmates is 4.4 times higher than that for the U.S. resident population.  About 14% of jail suicides occur within the first day of confinement, 23% within the first two days, 48% within the first week, and 65% within the first 30 days.  About 35% of inmate deaths in jails are suicides, compared to only about 6% suicides among deaths in prisons.  Persons sent to prison typically have already spent considerable time incarcerated.  By far the greatest risk for suicide is the very first day a person spends in criminal justice detention.

Suicide rates increase greatly with decreasing jail population size.  Jails holding less than 50 inmates have about six times as high suicide rates as the 50 largest jails in the U.S.  Smaller jails have higher inmate turnover, less staff training in suicide prevention, and less psychiatric services for inmates.  These circumstances increase effects of communicative shock from criminal justice detention.

The demographics of jail suicides are consistent with communicative shock.  The suicide rate for women inmates relative to the suicide rate among the U.S. women population is nearly twice that for men.[2]  Women typically engage more in social communication than do men.  Because many more men are incarcerated than are women and the criminal justice system’s front-line personnel are predominately men, women inmates have worse opportunities for same-sex communication within the criminal justice system than do men.  Suicide rates for black male inmates relative to the U.S. resident population of black men are much lower than the corresponding ratio for other demographic groups.  Incarceration has sadly become well-integrated into black men’s life experience and culture.[3]  Incarceration is thus less of a shock to black men.

New communication technologies could lessen jail suicides and support justice under law.  With appropriate provisions for public safety, persons taken into criminal justice detention should be able to use communication technology equivalent to the smart phones that persons now regularly carry with themselves at all times.  Lessening the communicative shock of having one’s smart phone taken away in unexpected criminal justice detention surely would lessen jail suicides.  Persons taken into criminal justice detention should be able to use modern communications technology to seek legal counsel and help making bail.  The right to legal counsel and the right to reasonable bail depends on detained persons having reasonable means for seeking and communicating with lawyers, family, and friends.  Communicative shock upon criminal justice detention punishes persons before they have been legally established as guilty of any crime.

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Data: suicide among inmates in U.S. jails and prisons (Excel version)


[1] Because some persons are detained multiple times by the criminal justice system in the course of a year, the number of unique persons detained for a night or longer per year is much smaller than the number of corresponding events per year.  A good national estimate for the ratio of criminal justice detentions in the course of a year to unique persons detained over the year is not available.  The distribution over a year of detentions per unique person is highly skewed.  Analysis of some jail records suggests that the ratio of jail admissions to unique detained persons averages roughly three or four.  Hence roughly six million unique persons are detained overnight or longer in the U.S. per year.  The total U.S. adult population is about 240 million.

[2] These statistics don’t imply that more resources should be directed toward preventing women’s suicides than preventing men’s suicide.  Jail inmates are predominately men.  Suicide rates for men are much higher than suicide rates for women.  From 2000 to 2011, thirteen times as many male inmates died from suicide as did female inmates.

[3] On racial disproportion in U.S. incarceration, see Western (2006).


Western, Bruce. 2006. Punishment and Inequality in America. New York, Russell Sage Foundation.

criminal law doesn’t accommodate men’s sex differences

Why are ten times as many men held in prisons and jails as are women?  That’s because men are more aggressive and more risk-taking, if not just more evil, than women.  Why are five times as many men in the U.S. Congress as are women?  That’s because of discrimination against women and social devaluation of women.  If you don’t know those answers to those questions, you’re not well-educated and don’t belong in polite society.

criminalizing and incarcerating men

Criminal law accommodates sex differences, but not to reduce criminalization and punishment of men.  A leading neuroscientist’s best-selling books provide insight into sex differences and social development.  She describes men as providing the baseline of criminal behavior:

The social and scientific view of innate good behavior in girls is a misguided stereotype born out of the contrast with boys.  In comparison, girls come out smelling like roses. … By all standards, men are on average twenty times more aggressive than women, something that a quick look around a prison system will confirm. [1]

Criminal law doesn’t accommodate men’s greater aggressiveness.  Criminal law does, however, accommodate effects of women’s reproductive biology:

adolescent girls and adult women have regular, dramatic shifts in their moods and behavior because, in fact, the very structure of their brains is changing, from day to day and from week to week.  The medical name for an extreme emotional reaction during the weeks before the period, triggered by ovarian estrogen and progesterone hormones, is premenstrual dysphoric disorder (PMDD).  Women who have committed crimes while suffering from PMDD have successfully used it as a defense in France and England by establishing temporary insanity. [2]

In 2001, a woman in Texas confessed to drowning her five children.  At trial in 2002, a jury found her guilty of murder. That verdict was reversed due to the false testimony of an expert witness.  In a subsequent trial in 2006, another jury found her not guilty by reason of insanity.  A leading biological anthropologist provided the sort of view that evidently became influential:

the woman who drowned her five children in the bathtub in Texas is a tragic example of the need for a support system.  “She should not have been alone in that house with five young kids and a record of depression – it’s a no-brainer.  Not even a mentally healthy woman should have to be in that situation.” [3]

The need to have more persons at home with kids to prevent killings underscores the importance of improving men’s opportunities to withdraw from the paid labor force and spend time at home with their children.  More generally, most legal systems at least formally endorse equal justice under law.  But sex differences are significant to criminal law.  The neuroscientific scholar of sex differences observed:

pretending that women and men are the same, while doing a disservice to both men and women, ultimately hurts women. [4]

Human societies reflect human biological nature developed and expressed socially.  Human societies, like other primate societies, are gynocentric.  Humans, with their extraordinary intellectual capabilities and highly developed social institutions, have proven capable of acknowledging sex differences when they hurt women.  At the same time, human societies criminalize men with no regard for sex differences.

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[1] Brizendine (2006) p. 29.  Sarah Blaffer Hrdy, a leading anthropologist, described id. as “a timely, insightful, readable, and altogether magnificent book” (quotation on book jacket).

[2] Id. p. 48.

[3] Sarah Blaffer Hrdy, in Dowling et al. (2003).

[4] Brizendine (2006) p. 161.

[image] Shata Prison.  Thanks to Ori and Wikipedia.


Brizendine, Louann. 2006. The female brain. New York: Morgan Road Books.

Dowling, Claudia Glenn, Jenny Gage, and Tom Betterton. 2003. “The Hardy Sarah Blaffer Hrdy.” Discover 24(3).

reducing recidivism depends on inmate communications

In many U.S. prisons and jails, inmates communicate with family and friends in the free world via written correspondence, in-person visits, and telephone calls.  Written correspondence and in-person visits are expensive to monitor systematically.  They can be means of introducing physical contraband into prisons and jails.  Making electronic messaging and video conferencing available to inmates on reasonable terms can increase inmates’ communication with family and friends, increase public safety, and reduce the likelihood of recidivism.  Modernizing inmate communications benefits everyone.

The potential net public benefit of modernizing inmate communications appears to be large.  For example, prisons in Oregon currently hold about 15,000 persons.  The direct cost of incarcerating a person in Oregon prisons is $85 per day.  Prisoners’ median length of stay in Oregon prisons, excluding prisoners with a life or death sentence, is 3.4 years.  The total direct cost to the state of the median incarceration spell is $105,000.  About 27% of prisoners finish their sentences of imprisonment, fail to re-integrate into law-abiding society, and are sent back to prison.  That’s a costly failure for the prisoner, for the new crime victim, and for the public.  The Oregon Department of Corrections estimates that reducing recidivism by merely 1% avoids $4.3 million in annual victim and taxpayer costs.[1]

Increasing prisoner communication with friends and family can reduce recidivism.  Imagine trying to re-integrate yourself into law-abiding society after spending a few years in prison.  You have lost your job, your place to live, and probably many of your possessions and much of your money.  Relationships with family and friends are crucial for prisoner reintegration into law-abiding society.  Maintaining relationships with law-abiding persons outside prison depends on maintaining communication with them.

In Oregon prisons, inmates can electronically receive photos, exchange text messages, and engage in video visitation with screened family and friends.  The Oregon Department of Corrections offers these services to inmates in conjunction with inmate service provider Telmate.[2]  At the U.S. Federal Communication Commission’s (FCC’s) workshop on reforming inmate calling services’ rates, Telmate Chief Executive Officer Richard Torgersrud stated:

Phones are just one component of what’s going on.  The industry is changing.  The young generation doesn’t even make phone calls.  They don’t know how to call anybody.  They don’t talk on the phone.  They text, they put status updates, they exchange photos.  Families today expect to be able to video visit and see each other at home.  … In the last couple of months alone, we have provided over a quarter million video visits remotely, half a million photos shared and messages. [3]

Data filed publicly in the FCC’s docket on inmate calling rates suggests that Oregon prisoners receive 5.2 photos, send or receive 18 electronic messages, and engaged in 1 video call per month.[4]  That electronic message rate is roughly consistent with federal prisoners’ monthly electronic messaging rate.   Photos, which prisoners can receive but not send, are quite popular.  Few prisons or jails offer that communication service for prisoners.  Video visitation is developing rapidly, but many inmates and their loved ones currently lack that communication option.

Broad perspectives are crucial for the development of inmate communications.  Federal communications law directs the FCC to ensure that communications services have reasonable charges (prices).[5]  Unreasonably high inmate communication prices discourage the use of communication services and hence limit potential reductions in recidivism through better communication.  But the challenge is not just a matter of prices.  Communication service prices do not vary across Oregon prisons, but communication service usage per inmate varies considerably.[6]  Detailed, technical operational procedures significantly effect inmates’ use of communication services.  Prison and jail officials need to recognize the broad public interest in promoting modern, systematically monitored and supervised inmate communications offered at reasonable prices.

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Data: Oregon DOC inmate communication services workbook (Excel version)

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[1] Data from presentation, Oregon Department of Corrections (DOC), Implementing Enhanced Operating Technologies (Dec. 11, 2013), filed by Telmate on 1/13/2014 in FCC WCB Docket 12-375.  Recidivism rates of roughly a third within three years are common across the U.S.

[2] Here’s information on the Oregon Department of Corrections inmate communications services.

[3] FCC Workshop on Reforming Inmate Calling Services Rates, July 10, 2013, from transcript, pp. 258-9.

[4] See Oregon inmate communications services workbook, summary sheet.

[5] U.S. Communications Act of 1934, as amended, Title I, Sec. 1 (47 U.S.C. 151).

[6] On a per inmate basis, photos received vary from 3.7 to 6.1, electronic messages from 8.5 to 25.4, and video calls from 0.0 to 2.3.  Total communications vary from 13.0 to 32.3.  The variations don’t obviously correlate with security level or inmate sex.  See Oregon inmate communications services workbook, summary sheet.

prayer for release from incarceration in Libro de buen amor

old prison window

A prayer for release from incarceration has partially survived from the fourteenth-century Spanish work Libro de buen amor.  Even just a few stanzas from the prayer convey its anguish and its urgent pleading:

Oh Lord, who from the lions saved the Prophet at his cry,
Who saved St. James’s relics when the Gentiles’ grasp was nigh,
Who let not St. Marina in the dragon’s belly die,
Deliver me, my God, out of this prison where I lie.

Oh Lord, the lovely St. Susanna you did liberate
From false witness of the elders, with scorn and full of hate;
Deliver me, my God, out of this sorely anguished state,
Give me your mercy now, your wrath against me now abate.

Jonah the Prophet, too, out of the belly of the whale
Wherein he spent three days amid the ocean’s stormy gale,
You brought, as from a cozy dwelling, whole and sound and hale.
Saviour, save me without blame and pain from jail! [1]

This prayer for release from incarceration forms the beginning stanzas of Libro de buen amor.  Libro de buen amor identifies its author as Juan Ruiz, Archpriest of Hita.  Concluding paratext declares that the Archpriest of Hita wrote Libro de buen amor while imprisoned by order of Cardinal Gil, Archbishop of Toledo.  Cardinal Gil de Albornoz was Archbishop of Toledo from 1337 to 1350.[2]  However, the paratextual declaration that the Archpriest of Hita was imprisoned exists in only one of the three surviving manuscripts of Libro de buen amor.[3]  Scholars have debated whether the author of Libro de buen amor actually was incarcerated.  Perhaps the prayer for release from incarceration refers metaphorically to being bound by personal sin or oppressive social circumstances.

Whether the author of Libro de buen amor actually was incarcerated is relatively unimportant.  Much more important is for readers to imagine the anguish and pain of persons incarcerated.  That’s particularly true in the United States.  The United States currently has an extraordinarily high level of incarceration within a practically lawless criminal justice system.

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[1] Libro de buen amor, s. 3-5, from Old Spanish trans. Daly (1978) p. 21, with some minor changes that I’ve made.  The Old Spanish text is available online here.  For the last verse quoted above, Daly has “Saviour, save me without guilt or penalty from jail!”  The Old Spanish is “Mexías, tú me salva sin culpa e sin pena.”  From a Christian perspective, the salvation that Christ (the Messiah / Saviour) offers encompasses both guilt and penalty.  To convey a broader understanding of salvation, a literal translation of “e”, and a round-vowel-sound echo of the previous verse, I substituted, “Saviour, save me without blame and pain from jail!”  Stanza 4, verse 2 in Daly has “scorned and full of hate.”  Scorned refers to Susanna; full of hate, to the elders.  I’ve clarified the implicit references by using “with scorn” rather than “scorned.”

[2] Willis (1972) p. xxxix.  Recent studies identify Juan Ruiz as Juan Ruiz de Cisneros.  Juan Ruiz’s father, Arias Gonzalez de Cisneros, is thought to have spent about twenty-five years in prison in Grenada.  Juan Ruiz was born to Arias in Grenada and lived there under Muslim rule until age nine.  For a brief review in English of recent studies on Juan Ruiz’s biography, see Monroe (2011) pp. 28-30, and Haywood (2004) pp. 24-6.

[3] The three surviving manuscripts of Libro de buen amor are called the Salamanca, Gayoso, and Toledo manuscripts.  Only the Salamanca manuscript contains paratextual section headings and concluding paratext.  The concluding paratext is in the hand of Alfonso de Paradinas.  He copied Libro de buen amor early in the fifteenth century.

[image] adapted from photo of old prison window in Bullfrog Jail in the ghost town of Bullfrog, Nevada; thanks to Wikipedia and Finetooth.


Daly, Saralyn R., trans. and Anthony N. Zahareas, ed. 1978. Juan Ruiz. The book of true love {Libro de buen amor}. University Park: Pennsylvania State University Press.

Haywood, Louise M. 2004. “Juan Ruiz and the Libro de buen Amor: Contexts and Milieu.” Pp. 21-38 in Louise M. Haywood and Louise O. Vasvári. 2004. A Companion to the Libro de buen amor. Rochester, N.Y.: Tamesis.

Monroe, James T. 2011. “Arabic literary elements in the structure of the Libro de buen amor.” Al-Qanṭara. 32 (1): 27-70; 32 (2): 307-332.

Willis, Raymond S., ed. 1972. Juan Ruiz, Arcipreste de Hita. Libro de buen amor. Princeton N. J: Princeton University Press.

inmate telephone calling rates, commissions, and provider shares

The US Federal Communications Commission (FCC) has been conducting a proceeding on inmate calling rates.  That proceeding, “In the mater of Rates for Interstate Inmate Calling Services,” resulted in an order and further notice of proposed rulemaking released on Sept. 26, 2013.   You can find that order and notice here.  The FCC’s order declining petitions to stay (released Nov. 21) is available here.  Here’s an informal description of the order.  All the public filings in this proceeding are available in Docket 12-375, online in the FCC Electronic Comment Filing System (ECFS).  Here’s a link to the filings in that ECFS docket.

Anyone interested in studying inmate telephone calling services can find much useful information in the FCC docket.  To make some of the publicly filed data more easily accessible in a machine-readable form, I’ve compiled it into an online spreadsheet workbook.  The workbook includes the Human Rights Defense Center’s compilation of inmate calling rates for inmates held in state Departments of Corrections (DOCs) and commissions paid from inmate service providers to state DOCs.  The source for that data are state DOC contracts with inmate phone service providers.  The workbook collates those data with US Bureau of Justice Statistics data on state DOC inmate populations.  The workbook also includes some additional public data on inmate service provider sizes by number of contracts held.

Two inmate calling service provides account for a large share on inmate calling services.  With respect to state DOC inmates, Global Tel*Link and Securus serve an estimated 55% and 21% of state DOC inmates, respectively.  Measured by contracts and including inmate calling services to jail jurisdictions, Global Tel*Link and Securus account for an estimated 24% and 60% of all U.S. inmate calling service provider contracts.  Contract shares that include jail jurisdictions are shaped by the large number of jails that in total hold only a small share of jail inmates.  A recent Bloomberg news article on the prison phone market stated:

Global Tel*Link, based in Mobile, Alabama, has about 50 percent of the correctional phone services market, followed by Dallas-based Securus with almost 30 percent, according to Standard & Poor’s.

Those shares of the inmate phone services market are plausible shares by inmates served for both state DOC inmates and jail inmates.  By that measure, two inmate phone service providers in total provide an estimated 80% of the U.S. inmate calling services.

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Data: inmate telephone rates, commissions, and provider shares (Excel version)

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incarceration facility size distribution for U.S. about 2006

The U.S. Bureau of Justice Statistics regularly issues statistics on inmates incarcerated in jails and prisons.  These reports provide inmate populations by incarceration jurisdictions: federal (Federal Bureau of Prisons), state (state Departments of Corrections), and local (jail jurisdictions, usually counties and cities).[1]  Jurisdictions are not the same as physically and administratively separate incarceration facilities.  Within large incarceration jurisdictions are multiple incarceration facilities of widely varying sizes.  For example, the Florida Department of Corrections encompasses about 160 incarceration facilities ranging from ones holding about 2000 prisoners to ones holding under 20 prisoners.  Statistics on the U.S. incarceration facility size distribution, measured by number of inmates held, aren’t readily available in published statistical reports.  The underlying data, however, are publicly available.  To make statistics on the U.S. incarceration facility size distribution more readily available, I’ve compiled the relevant data for about the year 2006 and made it publicly available in a statistics spreadsheet workbook.

Facility shares and inmate shares differ greatly as descriptions of the incarceration facility size distribution.  Most incarceration facilities are small.  Most inmates are held in large incarceration facilities.  For example, 28% of non-federal incarceration facilities each hold under 50 inmates.  They hold in aggregate only 1% of non-federal inmates.  At the other end of the distributions, only 2% of non-federal incarceration facilities each hold 2500 or more inmates.  But those facilities hold in aggregate 18% of all non-federal inmates.

The distinction between jurisdictions and facilities is relevant only for the largest jail jurisdictions.  About 2006, the U.S. had about 3000 jail jurisdictions encompassing about 3300 physically and administratively separate jail facilities.  These jail statistics do not include physically separate temporary holding facilities such as drunk tanks and police lockups that do not hold persons longer than 72 hours or after arraignment.  Many thousands of such very small, temporary incarceration facilities exist.[2]  At the other end of the size distribution of jail jurisdictions are Los Angeles and New York.  Those jail jurisdictions each hold about 20000 inmates and have 9 and 13 separate jail facilities, respectively.[3]

The federal prison system encompasses persons detained on federal charges before case disposition and persons sentenced to incarceration for federal crimes.  Case disposition in the U.S. means in practice either a prosecutor or judge dismissing the case or the defendant making a guilty plea under plea bargaining.  For non-federal charges, jails hold persons detained before case disposition and persons sentenced to short spells of incarceration (typically under a year).  The federal system holds anyone detained or sentenced under federal charges.  While data aren’t readily available on smaller federal incarceration facilities, available data on federal facilities illustrates the variety of incarceration facilities.   These include detention centers, work camps, low-security correctional institutions, and high-security penitentiaries.

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Data:  U.S. incarceration facility size distribution (prisons and jails, c. 2006) (Excel version)

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[1] The word inmates tends to be used for persons held in jails, and the word prisoners, for persons held in state and federal prisons.  But inmates and prisoners are also used generically to refer to all persons held in all incarceration facilities.  Here’s more on incarceration terminology.

[2] These facilities are relevant for estimating the number of spells of legal detention for a night or longer.

[3]  The number of jail facilities are based on data reported in the U.S. Census of Jail Facilities, 2006.  That source is the basis for the jail statistics included in the U.S. incarceration facility size distribution.

prosecutors’ decisions have driven growth in U.S. prison population

The number of persons held in U.S. prisons has risen since 1980 to extraordinary heights.  Neither incarceration for drug offenses nor longer prison sentences factually accounts for the enormous growth of incarcerated persons.  The most important factor is prosecutors’ decisions; specifically, an increasing proportion of arrests for which prosecutors file felony charges.[1]  The pressures, incentives, and regulations that shape prosecutors’ decisions largely make the barbaric U.S. criminal justice system.

Most U.S. criminal charges are resolved through plea bargaining.  Among federal criminal cases in which prosecutors brought charges in 2009, 88% were resolved through plea bargaining.  Judges dismissed 9% of those cases.  Only 3% of cases went to trial.  Among cases tried, only 16% did not result in a conviction.  Cases that go to trial probably represent defendants who greatly misjudge how the criminal justice system actually works, or who insist on principle on having a trial.  The government has much greater ability to marshal and expend legal resources than do most defendants.  Not surprisingly, the vast majority of federal defendants lose at trial.  Public interest in the functioning of the criminal justice system hasn’t been sufficient to impel the difficult task of collecting and compiling nationally state statistics on criminal court case dispositions.  State criminal case statistics, which are less comprehensive than federal statistics, indicate that only 4% of prosecuted felony cases are resolved through trials.[2]

Plea bargaining is largely lawless.  U.S. criminal law has become a heap of over-lapping statues that collectively allow almost unlimited punishment of anyone.  The Aaron Swartz case provides a tragic example of the possibility to threaten punishment far beyond any common understanding of justice.  The Anti-Deficiency Act, under which federal government workers were furloughed, arguably makes voluntary work by a furloughed federal employee a felony crime with punishment of up to two years imprisonment and a $5,000 fine.[3]  Moreover, like many criminal laws, the number of counts that can be brought isn’t well specified.  A prosecutor could bring a separate count for each “act” of work, such as a quarter-hour timesheet work increment.  So an employee who voluntarily spends six hours responding to 100 emails demanding to know what the effect of the furlough will be on a government proceeding could face charges threatening up to 48 years of imprison (one count of voluntary work for each 15 minutes of work) or 200 years of imprisonment (one count of voluntary work of each act of email returned).  The prosecutor could offer the defendant-worker a guilty plea to an act of prostitution and sex offender registration in return for dropping the charges of voluntary work.  That’s legal in the U.S. criminal justice system.  A prudent defendant might well choose to accept that plea bargain.  That’s obviously not just.  To the extent that justice is done in the U.S. criminal system, it occurs mainly through prosecutors’ personal respect for doing justice.

Political, legal, and ethical checks on prosecutors’ decisions are largely non-existent.  Elections of prosecutors are generally not contested, and many prosecutors serve many years in office.  More political pressure on prosecutors isn’t likely to advance justice, but as for any official, complacency, arrogance, and corruption are risks with entrenched power.  In Connick v. Thompson (2011), a district attorney was absolved of liability for prosecutors’ failure to give to the defense evidence indicating that the defendant was innocent.  Only after an investigator uncovered that evidence was the defendant’s conviction overturned.  The convicted defendant faced imminent execution after having been held in prison for fourteen years.[4]  Prosecutors are seldom disciplined for ethical violations.  In 381 homicide cases in 1999 for which prosecutors’ misconduct resulted in a reversed conviction, not a single prosecutor was publicly sanctioned.  In 707 cases in California between 1997 and 2009 in which judges explicitly found prosecutors’ misconduct, less than seven prosecutors were publicly subject to professional disciplinary action.[5]  Hundred of prosecutors across the country sell the use of their letterhead to debt-collection agencies.  Like all humans, prosecutors respond to incentives and constraints.  Prosecutors have very weak constraints on their professional behavior and professional incentives to imprison persons.

Every single person, including victims of crime and alleged criminal offenders, deserves to receive justice.  Creating a system that does justice in the real world is difficult.  Perfection cannot be expected.  Yet one must recognize systemic reality: the U.S. imprisons an extraordinary number of persons with almost no due process of law.  That’s unjust and shameful.

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Data: U.S. criminal case disposition statistics (Excel version).

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[1] Pfaff (2011).  Pfaff has written a series of blog posts outlining the argument.  See his posts on prison growth, defining drug crimes (part 1 & part 2), evidence against the war on drugs causing mass incarceration, evidence against war on drugs causing racial composition of prisons, more complicated arguments about drugs and prisons, longer sentences haven’t caused prison population growth (part 1 & part 2), better explanations for growth of prison population, central role of prosecutors in prison growth, and prosecutors have driven prison admissions.  Pfaff discusses how the standard story about drug criminalization and imprisonment lacks a sound factual basis, but is nonetheless continually repeated, included in well-regarded publications.  He also documents appallingly superficial “expert” discussion of media violence and violent crime.  His discussion of allocation of criminal justice authority is provocative.  Pfaff’s work, in my judgment, is by far the highest quality empirical work available on the criminal justice system.  For Pfaff’s academic-style articles, see his SSRN author page.

[2] Based on U.S. Bureau of Justice Statistics, Federal Justice Statistics 2009 – Statistical Tables, Table 4.12; and Felony Defendants in Large Urban Counties, 2006, Table 11.  Non-federal cases have a higher share of cases dismissed relative to federal cases (23% compared to 9%) and a higher share of other dispositions (8% compared to 0% reported).

[3] See 31 USC § 1342 – Limitation on voluntary services and 31 USC § 1350 – Criminal penalty.  Matt Kaiser, a federal criminal defense attorney, discusses the significance of these laws in “Congress Hates Federal Employees So Much That Employees Who Volunteer for the Government During a Shutdown Can Go to Prison,” Huffington Post, Sept. 27, 2012.

[4] Here’s the Connick v. Thompson majority opinion and dissent.

[5] Keenan et al. (2011) p. 220.


Keenan, David, Deborah Jane Cooper, David Lebowitz and Tamar Lerer. 2011. “The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct.” 121 Yale L.J. Online 203 (2011).

Pfaff, John F. 2011.   “The Causes of Growth in Prison Admissions and Populations.” Social Science Research Network (SSRN).  July 12, 2011.

Josaphat Buddha’s reign of just acts began with care for prisoners

Starting about 1800 years ago, stories of the life of Buddha diffused from Sanskrit texts in India, into Manichaean texts in central Asia, then into Middle Persian, Arabic, Hebrew, Syriac, Georgian, Greek, and vernacular languages across western Eurasia and northern Africa.  A Georgian version probably from the ninth century was the source for a late-tenth-century Greek version that subsequently diffused widely in Christian circles.  The Buddha became re-interpreted and re-incarnated as the Christian Saint Josaphat.  In the early, influential Georgian Christian version, Josaphat Buddha established a distinctive reign of justice in half of his father’s kingdom.  Josaphat Buddha began this new reign of justice with care for prisoners.

Historical Buddha at a young age; sculpture from late 6th/early 7th-century China

Josaphat Buddha did not desire to become a worldly ruler.  After a spiritual crisis, he became a Christian ascetic.  Josaphat Buddha’s father, a king, sought to turn him back from that way.  First the father challenged the son to a public debate about the best way of life.  The son’s way prevailed despite a conspiracy to vanquish it.  Then the father sought to seduce his son with beautiful women.  The allure of beautiful women did not divert Josaphat Buddha from his way.  Finally, the father gave his son half of his kingdom to rule.  The father believed that the worldly burden of rulership would make impossible Josphat Buddha’s spiritual way.   Worldly rule, however, became a means for Josaphat Buddha to realize spiritual values.[1]

In Josaphat Buddha’s farewell audience with his father-king before journeying to his new kingdom, Josaphat Buddha requested that all his father’s prisoners be released to him.  Josaphat Buddha forgave the taxes owed for prisoners held for unpaid taxes.  He paid the debts of persons imprisoned for debts to others.  Those prisoners were thus free.  For prisoners “detained for acts of wickedness and murder,” he allocated sufficient funds “to provide for them amply in prison until God’s will might be made known as to what their fate should be.”  After caring for prisoners, Josaphat Buddha cared for others worthy of compassion: “he ordered great quantities of treasure to be distributed among the disabled, the poor and the feeble.”[2]  Only after these acts did Josaphat Buddha set off for his new kingdom.

As a ruler, Josaphat Buddha favored just acts over fine words.  He explained:

no one is better entitled to address his subjects with words of mildness than a king who goes among his people administering justice with equity. … But if there is one placed in authority over the people, a man merciless, bloodthirsty and rapacious, then he too will have recourse to honeyed words whereby to disguise the wickedness of his acts. Again, if some ignorant novice should succeed to the throne, he will use them to conceal his incompetence until he shall have mastered the art of government. But he who diffuses justice among the people and administers their affairs well, not robbing the honourable of their honour nor the weak of their just deserts, a man who sharpens the sword of justice for the defence of the entire nation—such a one as this has no need to resort to the use of fair words. I for my part have come among you to excel not by my eloquence, but by executing righteous justice.

Josaphat Buddha lived his beliefs:

{he} selected a place of modest appearance, neither a royal palace nor a poor man’s cabin, and ordered it to be made ready for his occupation; and he had it furnished in a style neither majestic nor mean

He had “steeds and garments, decorations for thrones, and many kinds of royal adornments” sent far away to be sold off.  He distributed the proceeds to the needy.   However, he did not just provide gifts to the needy.  He helped them to become self-sufficient:

He helped them to build themselves farms and provided them with the necessary seed corn, until he succeeded in abolishing poverty and misery altogether. Thenceforth everyone became prosperous, for which they glorified God with united voice; and there was not a single man to be found in Iodasaph’s {Josaphat’s} domains who needed to go begging for his daily bread or for alms. [3]

The kingdom became prosperous and populous.  The superiority of Josaphat Buddha’s way was clear to see.

That was a story of Josaphat Buddha in a ninth-century Georgian text.  It’s an important story.  New leaders should act as Josaphat Buddha did.

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[1] Plot overview of The Balavariani, from Georgian trans. Lang (1966), pp. 122-154.  In its introduction, id. describes the story’s source in accounts of the life of the Buddha, the development of an Arabic version, Bilauhar and Budasaf (Bilawhar wa-Būdhāsaf), and the diffusion of Christian versions that came to be called Barlaam and Josaphat.  Here’s more on the textual history of Barlaam and Josaphat.

[2] Id. p. 154 (sec. 52).  The source for the Georgian version seems to have been the Arabic non-Christian work Bilauhar and Budasaf.  For a modern French translation, Gimaret (1971).  Bilauhar and Budasaf does not include Josaphat Buddha’s acts of mercy for prisoners.  The translation of the Georgian into Geek, mistakenly attributed to John of Damascus, re-ordered and abbreviated Josaphat Buddha’s worldly compassion:

After this he searched the prisons, and sought out the captives in mines, or debtors in the grip of their creditors; and by generous largesses to all he proved a father to all, orphans, and widows, and beggars, a loving and good father, for he deemed that by bestowing blessings on these he won a blessing for himself.

From ancient Greek Barlaam and Josaphat, trans. Woodward & Mattingly (1914) Ch. XXXIII.

[3] Id. p. 154-5 (sec. 53), p. 155 (sec. 54) (previous three quotes above).  Corresponding text doesn’t exist in the Arabic Bilauhar and Budasaf.  The concern for just acts rather than eloquent words and modest royal accommodations contrasts with practices in the Abbasid court.  That implicit contrast suggests plausible circumstances for writing the Balavariani and the above text in particular: about the time of Ashot I‘s ascension to the throne of Iberia in modern-day Georgia in 813.

[image] My photograph of a sculpture of the historical Buddha as a young man; sculpture made in late 6th-early 7th century, Sui dynasty or early Tang dynasty, China; Hemp cloth, lacquer, wood, metal wire, and glass with traces of pigment and gilding; H: 99.5 W: 72.5 D: 56.7 cm; in Freer Gallery, Washington DC, item F1944.46.


Gimaret, Daniel, trans. 1971. Le livre de Bilawhar et Būḏāsf: selon la version arabe ismaélienne. Genève: Droz.

Lang, David Marshall, ed. and trans. 1966. The Balavariani (Barlaam and Josaphat). Berkeley: University of California Press.

Woodward, George Ratcliffe, and Harold Mattingly, trans. 1914. St. John Damascene: Barlaam and Ioasaph. London: W. Heinemann.

incarceration of child-support debtors in Massachusetts

Debt imprisonment still exists for child-support debtors.  According to a recent survey of county sheriffs, persons committed from the Massachusetts Probate and Family Court to incarceration facilities numbered about 800 per year from 2009 to 2011.  Almost all of these commitments to incarceration are likely to have been ordered for child-support debts.  About twenty-five times more men than women were incarcerated.  That’s consistent with the large gender bias against men in financial child-support orders plus apparent additional gender bias in propensity to incarcerate for child-support debt.

The Massachusetts figure for child-support commitments to incarceration is low relative to the corresponding figure for South Carolina.  Massachusetts and South Carolina have about the same number of child-support cases with arrears due.  High-quality data for South Carolina indicates that on average during the year 2005, about 1800 persons were in jail for child-support debts.  Since jail terms for child-support debt are typically considerably less than a year, the number of commitments to South Carolina jails for child-support debt was much higher than 1800 persons.  The Massachusetts figure of about 800 child-support commitments to incarceration per year is probably under five times less than the corresponding figure for South Carolina.  That large difference suggests that the Massachusetts figure may be significantly under-reporting the number of persons actually incarcerated for child-support debt.

Many possibilities exist for under-reporting of child-support incarcerations.  The Massachusetts child-support incarceration data doesn’t include data for the Boston Municipal Court.  The Boston Municipal Court’s jurisdiction includes paternity and child-support actions.  Incarcerations from that court apparently weren’t counted.  Sheriffs reported the number of incarcerations.  Incarcerations can proceed from a sheriff executing a warrant.  They can also occur as a result of a hearing to which the respondent appears of his or her own volition.  Whether the sheriffs counted incarcerations proceeding from the later circumstances isn’t clear.  Moreover, persons who are subject to child-support orders and are jailed are required to continue to make child-support payments while they are in jail.  That’s difficult in many cases.  Thus persons jailed on other charges can be kept in jail because they accumulate child-support arrears while they are in jail.  These persons are also effectively incarcerated for child-support debt.

Incarcerating persons for child-support debt is unjust and counterproductive.  The U.S. has 2.2 million persons in jails and prisons.  U.S. per capita incarceration is among the highest in the world and far higher than other high-income democracies.  Debt imprisonment is a particularly bad use of incarceration.  Persons incarcerated are deprived of opportunities to earn money to pay off debts.  Moreover, imprisoning child-support debtors deprives children of the most important form of child support: their parents’ loving physical presence in their lives.

The highly disproportionate imprisonment of men for child-support debt exacerbates deep gender inequalities.  Men have no reproductive rights.  Men have financial fatherhood legally forced upon them for doing nothing more than having consensual sex and being confronted with unplanned biological parenthood.  Legally forcing financial fatherhood on men is bad enough.  Imprisoning men who find themselves buried under child-support debts is even worse.  Men who aren’t the biological father of the child can suffer such incarceration through both direct paternity judgments and default paternity judgments.  An additional injustice is the lack of public discussion of these issues.  The public silence is an astonishing and revealing social feat.

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Data: incarcerations from Massachusetts Probate and Family Court, 2001-2011 (Excel version).  Terry Brennan, an independent justice researcher, painstakingly requested and compiled these incarceration data.  He deserved honor and praise for his public service.

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