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Playlist: Nancy Mullane's Portfolio


Life of the Law explores the relationship of law to American society and culture, reaching into the parallel worlds of scholars and journalists, engaging the listener’s imagination through sound-rich narrative storytelling, and presenting investigative reporting and thoughtful analysis over multiple platforms, including broadcast radio, podcasts, blogs, an interactive website and live storytelling events.

Visit the www.lifeofthelaw.org to access exclusive blog posts and more information on our podcast episodes.

Nancy Mullane, Executive Producer
Shannon Heffernan, Co-Founder & Contributing Producer
Julia Barton, Editor & Reporter
Alisa Roth, Editor & Reporter
Kaitlin Prest, Producer & Reporter
Mary Adkins, Blog Director, Live Law Producer & University Outreach
Ashleyanne Krigbaum, Post Production Editor & Production Assistant Hide full description

Life of the Law explores the relationship of law to American society and culture, reaching into the parallel worlds of scholars and journalists, engaging the listener’s imagination through sound-rich narrative storytelling, and presenting investigative reporting and thoughtful analysis over multiple platforms, including broadcast radio, podcasts, blogs, an interactive website and live storytelling events. Visit the www.lifeofthelaw.org to access exclusive blog posts and more information on our podcast episodes. Nancy Mullane, Executive Producer Shannon Heffernan, Co-Founder & Contributing Producer Julia Barton, Editor & Reporter Alisa Roth, Editor & Reporter Kaitlin Prest, Producer &... Show full description


Life of the Law #01 - The Secret Power of Jury Nullification

From Life of the Law | Part of the Life of the Law series | 11:47

Juries have a little known power that allows them to ignore the law and vote with their own instincts. This piece explores how juries have used that power and whether it is legal or ethical.


Paul Butler  grew up in a black neighborhood on the Southside of Chicago. He was a smart, talented kid and ended up going to Harvard law school. When he graduated, he wanted to do something to give back to his community. Crime was at an all time high and he knew black people were the most likely people to be crime victims. So he became a prosecutor. “I thought I [was] going to go in as this undercover brother and make a difference from the inside,” he said.

But as a prosecutor, Butler’s biggest job was to put people behind bars, “And it turned out I was good at that,” says Butler. “I was this clean-cut black guy and most of the jurors were these older black people. They would just beam at me when I said my name is Paul Butler and I represent the government. They’d be like, you go boy. They’d almost do whatever I wanted”

Almost. Except when it came to petty drug cases. Even when it was very clear someone was guilty of a drug crime, juries came back with an not guilty verdict. Butler was confused, “Why would they let someone they knew was guilty of a drug charge go free?”

Then, one day, he was prosecuting a routine crack cocaine possession case.

“The defendant was a young, good looking African-American kid. And the defense was something like, ‘Yeah, the police caught me with the drugs, but they weren’t mine’,” said Paul, laughing. “I was like okay, for the law it doesn’t matter, it’s what’s called a strict liability crime. So you’re guilty. The judge even told that to the jurors.” Paul was sure he had this one in the bag.

“But then the jury came back with a big fat not guilty. I was like, Oh my god! What’s up?”

Paul waited outside the jury room. And as the jury filed out, he tried to talk to the jurors. “None of the black jurors would talk to me and then the only white woman stopped for a moment. I said, ‘What happened?’ She said, ‘We all knew he was guilty but he’s so young.’”

Even if the jurors thought the boy was too young, the law was still the law. Butler asked the more experienced prosecutors what was going on. It turned out it has a name: jury nullification.

When a jury nullifies, it finds a defendant not guilty, although the jurors may actually believe he is guilty. And because it’s illegal to retry someone, the person goes free. Jury nullification happens when jurors don’t agree with a law, or think there should be an exception.

For example, if someone assists a terminally ill spouse in pain with a suicide, it’s a murder according to the law. But often, juries will find these people innocent. And increasingly, juries are finding people with minor drug offenses innocent, despite overwhelming evidence to the contrary.

The senior prosecutors Butler talked to hated jury nullification. They thought it weakened the legal system. But Butler couldn’t shake the feeling that these older black jurors were up to something important. He left the prosecutors office and when into academia. The first thing he wanted to study was jury nullification.

The History of Jury Nullification

Jury nullification dates all the way back to English common law. It was designed as a check and balance on the government’s power, and it has played a big role in American history. During the revolutionary war it was illegal to speak out against the British. But juries would just find the defendants innocent. And during prohibition, juries nullified to keep bootleggers out of jail.

But the history that really made Butler start considering the power of nullification was how it was used during slavery. In 1850 it was illegal to help a slave escape. But juries often refused to convict the defendants. According to Butler those nullifying jurors helped set up the conditions to abolish slavery. “What would you do?” asks Butler.

For Butler, it was an easy answer. Slavery’s wrong.

But jury nullification has a dark history too. Jeff Cramer is the managing director of Kroll Investigations and has tried at least 100 jury trials. “I don’t think anyone could really advocate for a system where the juries can really do anything they want to do,” he says.

Cramer says historically, juries have used nullification to do things we look back on as being right. But they’ve also used nullification to do things that we look back on as being really wrong.

The most infamous examples are from the civil rights movement. In August of 1955 two white men killed Emmett Till, a black 14 year-old who they said whistled at a white woman. The evidence was clear. Later, the two white defendants would even admit to the murder. But the all white jury found the white defendants innocent. That was nullification, too.

“The risk is people get away with murder,” says Crammer. “And they get away with murder because the juries in those cases regarded the defendants as more valuable than the victims. So if we allow jury nullification, it doesn’t work, system’s over. It’s broken.”

Contemporary Jurors

Shari Diamond is a professor Northwestern Law school. Jury deliberation is usually very private, but Diamond got an unusual level of access to study them in action. She’s observed hours and hours of juries deliberating. Her conclusion? Nullification doesn’t happen very much.

“No one disputes that juries take their work very seriously,” says Diamond. “The jurors will say I sure don’t agree with that law, but we don’t have a choice.”

Of course juries are a cross section of society, so they tend to have the same prejudices and sensitivities of a general population. But Diamond says you have to remember that in order to be on jury, you have to first get through a selection process. That weeds out people with biases, people who might nullify.

According to Diamond, “The jury is us, but perhaps a better us.” That better us nullifies only in rare circumstances, usually when our accepted morals don’t match up with the letter of the law. “One way of saying it is this a sort of safety valve,” says Diamond. “We tolerate it, officially it’s not the law, and there are in fact court opinions that say they have no right to do it. But of course, we build a system where the jury has the power to do it.”

Paul Butler, the prosecutor who was having trouble getting guilty verdicts, thinks it may be the most direct form of democracy we have. Twelve people, in a room, charged with coming to a single conclusion. And like any piece of democracy, like voting, people will sometimes make bad decisions.

He left the prosecutors office and became a professor at George Washington University [note: Butler is now a professor at Georgetown University Law Center]. Butler now believes those jurors who nullified in all those drug cases were on to something. “There are more blacks under criminal supervision now, than there were slaves in 1850,” says Butler.

Butler thinks drug laws are to blame for those high incarceration numbers. Statistically, there are fewer black drug users, but more blacks in prison for drugs.

So just like the jurors nullified the fugitive slave laws, Butler thinks modern jurors should nullify drug laws. “Sometimes the law really is unfair and sometimes jurors really should say people are not guilty, even if they committed the crime, especially if it’s a drug case, because the drug laws are selectively enforced and I don’t think it’s fair. So if a citizen has a power then she should use it.”

Keeping The Secret

Now despite the role nullification plays in our justice system, chances are you haven’t heard of it. And there’s a reason for that.

Most people in the legal system think juries shouldn’t nullify. It’s too dangerous to put so much power in the hands of just twelve people. Still they can’t take away jurors ability to nullify without taking away other basic rights enshrined in the Constitution.

But there are three ways the legal system tries to discourage nullification.

First, as a juror, you take an oath that says you will uphold the law. Second, defense lawyers aren’t allowed to tell a jury to nullify. Third, most judges give instructions to a jury that basically tell them that they must find a defendant guilty if they broke the law. So juries may be able to nullify, but the system is set up to hide that.

But some activists are working to spread the word about nullification.

Julian Heicklin describes himself as, “the biggest pain in the ass in the world.” He’s a small, older man with a lot of big opinions. Heicklin is a member of the Fully Informed Jury association, a mostly libertarian group. Their goal is to make sure jurors know that they can nullify.

Heicklin stands outside courtrooms handing out literature and talking to people. Heicklin thinks nullification is a good strategy for all kinds of laws he sees as unfair, including gun laws.

In August of 2011 the US government charged Heicklin with jury tampering– a serious offense. The case got a lot of attention. Especially when the judge denied Heicklin a jury trial, because, after all, it would be another opportunity for him to tell jurors how to nullify.

But if courts want to keep this jury nullification thing on the down low, then Heicklin says, the joke has been on them, “They made a national issue of this, they did something I could have never done by myself.” Heicklin says he is just a shabby old man with a few pamphlets, but by prosecuting him, the courts handed out “the biggest pamphlet ever.”

Since I spoke with Heicklin, the case against him has been dropped. But he plans to be outside those courtrooms again soon, for better, or worse, making sure the secret power of nullification is a little less secret.

Life of the Law #02 - Jailhouse Lawyers

From Life of the Law | Part of the Life of the Law series | 14:10

In California, there are hundreds if not thousands of people practicing criminal law though they’ve never passed a bar exam. They don’t wear suits. They don’t have secretaries. And they can’t bill for their time. They’re called Jailhouse Lawyers. They’re inmates who pursue the equivalent of a lawyer’s education and who work as lawyers from within prison walls.


“As a non lawyer, you cannot pretend to be a lawyer for somebody else,” said Charles Carbonne, a prisoners rights attorney based in San Francisco. “If you’re a free citizen, you got to go to law school, pass the bar if you wanna pretend to be a lawyer. Except if you’re in prison. Jailhouse lawyers usually begin by investigating their own cases. That’s usually how most jailhouse lawyers cut their teeth. They dig into their case, usually reading volumes of cases, criminal cases”

Carbonne is one of the few lawyers outside of prison who will represent people behind bars pro bono or for free after they’ve been convicted. “It is a professional and personal interest of mine. I take it very seriously in terms of the quality of representation that I provide.”

Carbonne explains that in America, once you’ve been tried, convicted and sentenced to prison, at that point, you lose your right to an attorney who is provided by and paid for by the state. If you’re on death row, the state will still pay for an attorney to represent you for an appeal. But if you’re not on death row and you want to challenge your sentence, you have to come up with the money yourself to hire a private attorney.

“There are very few lawyers or firms that provide pro bono parole appeal representation,” Carbonne says, sitting in his second floor, bare brick office, “very, very few. You can count them on one hand. The number of cases brought every year by a pro bono attorney or firm. It’s very difficult if not impossible.”

So, Carbonne adds, short of turning to people like him, prisoners have to teach themselves the law. And, he says, many do.

Reuben Ruiz Martinez is serving time at Pelican Bay, a “supermax prison” in the far north of California. I have to get through eleven locked doors and sally ports just to interview him.

Ruiz’s cell is about 6’ x 9’. There’s a fixed cement pad for a bed and it looks like it’s full of papers and books, at least from what I can see of it.

Walking up to his cell door, I introduce myself and explain to Ruiz that it is difficult to see him looking through the rust colored sheet of metal covering his cell door. Martinez is a middle-aged man with military style cropped hair, deep set brown eyes and a full, gentle mouth.  “I had no idea a legal world existed. I didn’t even know the law that I was charged with and convicted of. I was 17. I just turned 17 and I went into a liquor story to buy some beer. I was a kid. I thought, ‘Hey. We can get away with it,’ from that moment on.”

Today, Martinez says he is serving a life sentence without the possibility of parole, “It was a fight in a liquor store. We didn’t see no clerks around and we were going to try to run out with the beer, which you’ve probably heard as a beer run. In our attempt to do so we were confronted by the clerks of the store. They physically confronted us. We didn’t have no weapons. One of them had a baseball bat. Hit us with the baseball bat and in that fight, we took the bat and one of them subsequently got hit in the head with the bat and later died. Cause of death was a blow to the head.”

Martinez was convicted of felony murder. That’s when you’re out with someone and you commit a felony together. If anyone dies or is murdered, then you are responsible for that murder, even if you didn’t actually commit it. “I had no concept of what felony murder was,” Martinez says, “Self defense is not a defense against the felony murder rule. Under normal circumstances, it was a much better likelihood I would have been convicted of voluntary manslaughter, and [I would have] done four to six years.”

Martinez says he understands that now, but didn’t 21 years ago when he was charged, convicted and sent to prison, “I was represented by a couple of different attorneys. I learned the arguments they were making were arguments that had been made in other instances and failed. I started to follow up on all the lawsuits, researching it  in a backwards fashion.”

Eventually, Martinez decided to file is own appeal, “I started to look for ways to reintroduce claims of my own.” When I ask if he was successful, Martinez shakes his head, “No. Not on my behalf.”

He says he partly blames his failure to win his appeal on the bad access he has had to legal materials while he’s been locked up inside Pelican Bay. “I rarely if ever go to the law library,” Martinez says, looking out at me through the small round holes of his cell door, “Most of the legal research I do is throughout the paging system. There’s forms which you could request in particular case law. If I submit a request to go the law library, it could take two to three months and that just doesn’t suffice to do the necessary research in whatever you’re doing.”

“There are people who are very well versed in the law,” Charles Carbonne says, “inmates who are fairly well studied in the law. Pretty good at research and writing and legal drafting and then there are other inmates that are absolutely atrocious at it and the courts don’t receive it well. Their cases get denied. You really only get one bite at these apples. You don’t get three or four. You show up on your own. You present garbage. You often can’t revisit that later.”

And that, Carbonne says, is the problem for Reuben Martinez and thousands of other inmates trying to appeal their convictions. If the judge says the appeal doesn’t have merit, that’s it. The inmates can’t file another appeal based on the same challenge. He says prison law libraries are supposed to help inmates get that one bite at the legal apple, “Most of the law libraries inside prison are filled with old law books that have been torn up and are very difficult to use. They have very little resources and sometimes that effects the quality of the work. Sometimes, miraculously, it doesn’t.”

Under California law, all inmates in state prisons are supposed to get at least four hours a week of access to a prison law library. Obviously, that’s not been working out so well for Reuben Martinez who says he waits two to three months to get inside the law library at Pelican Bay.

San Quentin State prison just outside San Francisco is supposed to have the best law library in the whole state. One Tuesday morning, San Quentin’s Public Information Officer, Sargent Gabe Walters, agrees to show off the library. As we get closer to the front door, we see more than a dozen other inmates standing outside. They’re holding worn file folders stuffed with papers and booklets.

“It’s locked again,” says Juan Haines, one of the inmates standing outside the locked library door, “They cut the hours.”

The public information officer is a little embarrassed, “I didn’t know it was closed.”

A few days later, the law library is open. The law library may be new, but it’s cramped. Prisoners sit, huddled at small round tables taking notes and pouring over legal documents. One man sitting in front of a stack of manila envelopes looks up, “It’s unfortunate most of us who get in trouble with the law don’t know much about the law after we got into a situation we need help to get out of.”  Lequan Hayes says he’s been coming to the law library, “for the last ten years that I’ve been incarcerated. They discovered that my sentence was an error.”

Recently, a judge found in Hayes favor and overturned his case on appeal. Now, because of a writ that Hayes wrote on appeal, he’s going home. “We begin to read our own cases. We come to the library. We ask others for advice. We rely on one another. We begin to get an understanding of the law. I think it’s very important to know some law. I’m more than willing to help as much as I possibly can.”

But before Hayes gets out of prison, he’s trying to help as many of his fellow inmates as possible with their legal documents.  The most successful jail house lawyers get themselves and fellow inmates freed. But then what? As a jail house lawyer, Hector Oropeza was able to help a lot of people tell their story. Today he sits at the kitchen table in his new apartment just south of San Francisco. Thirty years ago, Oropeza was sent to prison for murder. But while he was in prison, he wrote his own appeal and got himself out.

“Whatever the truth is,” Oropeza, a dark, muscular man in his mid fifties says, “You got the D.A.’s truth. You got the defense truth. You got The Truth that comes in the middle of it.”

Oropeza says it wasn’t easy to articulate that truth. He says when he first went to prison, it was all about sitting in his cell and doing time. Then one day, an attorney slipped him a legal self-help book. He says he devoured it, “I’m not just a guy in a box,” Oropeza says, “I’m a guy in a box educating myself.”

Over time, Oropeza says the book changed his life. Not just because it helped with his own case. He says he also learned how to represent other inmates, “By doing jail house lawyer work, you give somebody the opportunity to tell their truth. What they believe happened. And hopefully win and go home.”

Oropeza says he got 12 of his fellow inmates out of prison on parole. But now that he’s on the outside, he legally can’t represent anyone and he says, the guys who are still locked up, have no one else, “I left a hundred cases pending somewhere. You come out here and they don’t give you a car. They give you $200 and that’s gone the first day.”

Now on the outside of the prison walls, Oropeza can’t practice the law without being admitted to The Bar, and with a felony conviction on his record, that’s highly unlikely.

“I need to get paid,” Oropeza says, “I need to pay my bills. It’s sad because they want more. They want more from you. I know they want the education, the degree. They don’t understand. They don’t see the experience. All that hands-on experience that you get, you know how to deal with people. It’s hard. The experience should count for something.”

Eventually, Oropeza says he would like to go to college and get an education that would prepare him for a law degree. But that’s expensive. For now he’s getting part time work wherever he can, “It would be nice to get some formal training. Once I get that, I know I could compete with these guys.”

By ‘these guys’, Oropeza means lawyers, just lawyers. No ‘jail house’ attached.

Life of the Law #03 - Two Sides of A River

From Life of the Law | Part of the Life of the Law series | 16:17

The riverbank is a public space open for everyone. But people do not always agree on how to best spend a hot summer day.


I live on the bank of the Deschutes River. In this stretch of about a block, the river divides two distinct sides of our city, the east and the west. The riverbank is a public space open for everyone. But people do not always agree on how to best spend a hot summer day.

Davis Park is on the East side of the river. It has the perfect combination of shade and privacy for people to hang out, let loose. Teenagers used to come here to make-out, or drink some beers. Now, on hot days, it’s where many go to cool off, including the ‘down-and-out.’

On the West side of the river, where I live, things like birding, jogging, and swimming are the norm. It is a different kind of park over here.

I am riding along with Officer Marc Tisher as he patrols his beat of more than 50 city parks. We stop at an intersection and I see two tanned guys chilling at a bus stop. Tisher rolls his window down and gets their attention.

I recognize the men. For the past two summers, these two have often made Davis Park their daytime home. In a way, they have come to represent the character of the park. “You guys been keeping Davis Park clean for me?” Officer Tisher asks them.

“Yeah,” Matt, one of the men answers in an upbeat, friendly voice, “We’re going to the rapids. So meet us down there.”

Tisher laughs and says, “Alright. Are you guys going to body surf it today?”

Matt replies, “It’s eighty, I might get wet.”

It’s a light hearted moment of laughter on a hot summer day.

For years though, Davis Park’s shenanigans went un-policed, so Davis Park has become the place, which all cities and towns have, where local customs are at odds with city laws. But about a year ago, the parks department proposed building a bridge between the two sides. That got people’s attention on my block.

Paul Stell is the Natural Resources Manager for the Bend Parks and Recreation District. He says they’ve tried most everything to enforce local laws and regulations in city parks. The Parks Department even got rid of the park rangers, “Because they did not have full authority,” Stell says, “because they couldn’t make citations or arrest or you know, carry a fire-arm and take care of business.”

Now there’s a parks cop. That’s who you met earlier, Officer Tisher.

The increased law enforcement, Stell says, is necessary because city parks still serve a critical function. “On a hot summer day it’s a great place for anybody. They can be there from when the park opens ‘til the park close. And if they don’t have any other place to be that’s a good place to be but there are rules and we need to follow the rules. That’s the only issue.”

Here in Bend the rules are basic; no criminal activity, no endangering the peace and safety of others, no drinking alcohol or possessing an open container without a proper permit. If people can agree to this, Stell says, those living close to city parks have an obligation to “let it be” for the entire public.

“Living next to a park is a commitment,” Stell says, laughing.

Stell does not finish his thought. But I know what he means. Residents have no control over public land bordering their property. And there is a steady flow of different people and habits.

On my block, some homeowners, want to project their idea of how the other side of the river should be. People on the West side engage the police like my neighbor, who I’ll call Sam. She didn’t want her real name used. “You know, we tried to figure out how to solve this problem.”

I ask, “What problem?”

“The problem,” Sam says, “of unhealthy and unsafe behavior dominating a small community park.”

Sam says a group of men show up around ten each morning in Davis Park.  They claim a picnic table and spend all day there, drinking and smoking. “And that would happen every sunny day,” Sam says. “Two people would come and secure that picnic table. The hotter it was, the earlier they’d come. So that they’d make sure they had it for the whole day.”

I ask Sam what she means by ‘unhealthy.’

“Unhealthy is open container drinking,” she says, “people getting so intoxicated or high on something that they’re yelling at people in the park and across the river, including children.”

Marion Davidson lives across the street from Sam. She’s another block matriarch. She also wishes Davis Park felt less menacing. But says she still likes it here, “There’s a wildness about living next to moving water the voice of god as the Old Testament says. The sound of water, is… I forget but you can look it up.”

Marion says people in Davis Park should be more discrete. “Being part of the community, if you are going to drink, you should do it surreptitiously rather than out in the open and not get so drunk that you yell at people and cause a disruption. I mean it’s against the law having an open container in a park I do believe.”

Marion is a retired lawyer. She spent decades representing people like those across the river. But the way she says that, ‘it’s against the law,’ it’s an easy way to make a grey situation black and white. We all do it. So I push her to give me a sense of how she feels about it on a human level.

“You know what I was thinking about was when I went to college?” Marion asks me as she prepares a summertime meal. “We studied the contract philosophers; Locke, Barclay, and Hume. And the problem with Davis Park is there are some folks that really don’t have any reason. They’re homeless and down-and-out. Sound like having issues with drink and drugs and so they have no reason to abide by the rules of the community. So there is no social contract. So the question becomes well how do you enforce laws with people like that?”

“My name is Chris Clouart, Managing Director of the Bethlehem Inn, Central Oregon’s largest shelter serving men, women and families.”

Marion got me thinking about social contracts and how exactly we establish customs and laws in places like Davis Park. Clouart, a longtime Bend local, says for a city the size of Bend, the scale of social services here is too small. That means individuals in our community must provide support. And Clouart says, that support is not just food and shelter. “It’s a wonderful quote,” Clouart says, “which is that the law prohibits equally a rich man and a poor man from sleeping under a bridge. A rich man would never need to sleep under a bridge. But the thought that there’s a sense of equality, that there’s an equivalence there, is ridiculous. It’s absolutely ridiculous.”

Bend has an oversupply of brew pups and golf clubs. So if a person with a bit of disposable income wants to crack a beer on a hot day, they’ve got plenty of places to go. But Clouart says many people in Bend have a tough go of it. “Their choices in life are fairly limited. So if you don’t have much money and it’s a nice summer day, where are you going to go? You are either going to go to a library, or your going to go to a local park. Which is your park as much as it is anybody else’s park. The question has to be what are the modes of behavior in that park?”

Clouart makes an important distinction between law and custom. “So, law is the thing we tell ourselves we want to do, custom is what we allow to happen.”

Right now, those two concepts are not aligning at Davis Park. Clouart is a humanist. He sees the need for dialogue between all the park’s users. But until that happens, it falls to the police to decide what’s allowed and what isn’t.

Tisher and I are back at the bus stop where we ran into Ron and Matt. After they head off to the river, Tisher shows me their records. He points out a few thefts and DUI charges from back in the early 90’s. After a few more hours driving around, Tisher decides to check in on Ron and Matt at the park.

We are on the West side of the river, looking into Davis Park. We bump into my neighbor Marion walking her dog, “Everybody’s out. It’s sort of like  Alaska. This is one of the first lovely days. Everybody’s sort of getting their sun. Hey Officer Tisher. Our champion. I have a spotting scope if you need one. ”

Tisher jumps in his patrol car. He says approximately six people are partying in Davis Park, among them, two guys on parole who shouldn’t be drinking. They could possibly face jail time. Tisher also says one of the parolee can be difficult when he is drunk so he calls for a backup. By the time we have driven Davis Park, two officers in a police car pull in behind us.

Tisher questions Ron, Matt and another guy I know as Mr. Mills. Tisher is interested in their backpacks. He scans for open containers. “How about the main container or the main pocket?” asks Tisher, pointing to a backpack.

Ron Fields, the man Tisher is speaking to about his backpack asks if Tisher has a warrant.

Tisher says, “This is what I got to do.”

Mr. Mills says, “I got closed beers in there buddy. Closed ones, all right?”

“That’s all right,” Tisher says.

The conversation escalates. Tisher demands Mr. Mills take a seat, “Mr. Mills sit down right there.”

“Ok.” Mills says. “Whatever dude.”

Mills face reddens. His muscles tighten. About now, Tisher calls for a third backup. He then asks Mr. Mills if he is on probation.

“No I’m not on nothing buddy,” says Mills. “Not since August 8th of 2000, homeboy.”

“Why are you upset, Mr. Mills?” Tisher asks.

“Because,” Mr. Mills says, “You want to walk around here and throw some guys around here. Let me get the hell out of here. This is the last time. I ain’t coming down here no more. Every time I come down here the police show up.”

The fourth officer shows up. Ron, Matt, and Mr. Mills all seem glad to see him. “Hey,” Mr. Mills says, “It’s about time.”

Officer Tisher opens his ticket pad and writes Fields a citation and an exclusionary notice, meaning he cannot enter a city park for three months. Here’s how Ron Fields feels about all this.

“Mr. Tisher?”

“Mr. Fields.”

“We’re not friends anymore,” says Fields.

Tisher replies, “You told me that three months ago.”

“I know,” Fields responds. “We’re not friends. I ain’t hurt nobody down here.”

“This place cleared out pretty fast,” Tisher says. Tisher and I walk back to the police car. As we walk along a gravel path, Tisher asks if I noticed how fast this situation could have gone “south.”

Had I been watching this scene from across the river, besides the cops, it would have seemed normal; Ron, Matt, and the merry-makers pretty much keeping to themselves. But here is the thing. I am at the river daily. I notice most people break some sort of law or rule here; some drink alcohol openly, dogs run amok off-lease–all against city code. And I’m talking most visitors, just regular folks. No different than Ron and Matt, whose biggest crime perhaps is treating Davis Park like their living room. Yeah, I have seen Ron and Matt get too drunk, yell at people. But it has been rare.

There has been no dialogue. No discussion of what the customs in Davis Park should be. The law has been enforced, but I’m unsure we have made our block a better place. Certainly it is less welcoming. And the band of rag-tag men- they will simply move on, maybe to another park. The problems unresolved.

Later this summer, on another scorcher, I floated a section of the Deschutes with my two children. Life jackets on, we jumped in a mile upstream from downtown. We carelessly floated, our bodies bobbing all the way. Near downtown, we got out and sun dried. I looked across the street at the bus stop. There stood Matt, one of the usual suspects at Davis Park. Although this time he did not look the part. His body exposed to the sun, his arm around his little girl. He had been floating the river too.

Life of the Law #04 - Law in Translation

From Life of the Law | Part of the Life of the Law series | 10:20

Vietnamese fishing communities are still finding themselves grounded by the BP oil spill, one of the largest environmental disasters of the century. These fishermen and women are without adequate interpretation services and legal representation and are having a hard time keeping afloat.


NEW ORLEANS: There are a lot of languages spoken these days on Louisiana’s Gulf Coast, many beyond English, Spanish, and Creole French.  One of the big languages here now is Vietnamese. As refugees started coming to the United States after the Vietnam War, quite a few made their way here for one big reason: fishing.

Those immigrants who already knew how to fish found they could make pretty good money in the Gulf. Mini-fishing empires developed. But then disaster struck.

Daniel Nguyen is Vietnamese-American, born in Louisiana. “IIt all started April 20, 2010. I remember that day,” Nguyen told The Life of The Law.

On that morning, a fireball swallowed a deepwater drilling rig in the Gulf of Mexico. None of the fail-safe mechanisms worked, and the well began vomiting thousands of gallons of oil in what would become the largest oil spill  in U.S. History.

Nguyen described how he got involved with relief efforts. “At that time, I was still bussing tables downtown, and a friend of mine came to eat at the restaurant that worked here and said “look, the fisher folk are displaced….we need interpreters. So, I said ‘OK, I’d be willing to volunteer my time.’”

The Vietnamese fisher folk had largely been self-reliant. But self-reliance wasn’t enough as the BP disaster tossed them into a foreign world—that of the US legal system. A complex claims system was the only way they could get compensation for all the income they were losing as fishing shut down in the Gulf.

Vietnamese immigrants made up roughly a third of the shrimpers here, and shrimpers were hard hit. For them, the spill illustrated how fragile their solid livelihoods really were.  And Nguyen says, it showed how much the outside world didn’t know how to communicate with them.

“BP had people coming in from Vietnam who were using the wrong dialect, offiensive dialects. There’s post and pre-1975 language. With post-1975 language, you have a split, you have American-based Vietnamese and you Vietnamese-based Vietnamese, and that’s considered Communist Vietnamese, so they were using Communist terminology, which was really offensive to people here, who fled from the Communist regime.”

Nguyen says the Vietnamese community in Louisiana started getting organized after Hurricane Katrina.  But the community development organization where he volunteered, MQVN,  had a whole new set of problems on its hands after the BP disaster

  ”We had 50-100 fisher folks lined up outside of our office starting at midnight.”

Daniel and his colleagues were helping people file compensation claims with the Gulf Coast Claims Facility.  In the process, they found out that those in the fishing community weren’t just losing income—they were losing their own food supplies as well. Vietnamese fishermen relied on their catch to feed their families, and to barter for other goods and services. But he compensation process was aimed more at purely commercial fishermen.

Nguyen explained that important elements of the industry were ignored. “One of the things that wasn’t being compensated for was subsistence use.”

Leanne Hanh sells her catch at a New Orleans farmers market on weekends. She was born in Vietnam and came to the U.Sin 1983, when she was 13. She came to Louisiana when she married. Her boat and her husband’s were grounded after the oil spill, but BP had promised to rent local fishing boats during the cleanup. Hahn says for her, that never happened.

“I do own a boat, too. And it’s go now, too, but then they didn’t call me to work, and we had to wait. Because everybody signed a contract, so we all have to wait to hear the phone call, sit at home to wait for the phone call.”

But fruitless waiting  or bad interpreters weren’t the biggest problems facing the Vietnamese fishing community in Louisiana.  After the oil spill there was a lot of people who um, felt that they were signed up for legal representation without fully knowing it,” Nguyen explained to The Life of The Law. “And then lawyers, or the attorneys would just take their claims and checks and we couldn’t really do anything about it because they were represented by an attorney.”

Nguyen and says the whole experience made clear vulnerabilities that some in the community had already perceived. But despite the bad experience they’ve had, many are still turning to the

legal system to try to regain some of what they lost from the oil spill. Some have joined class action suits against BP in the hopes that bundled together, their claims can make a dent in the system.

Attorney Ravi Sangisetty is a Louisiana native who’s working with the Vietnamese community on their claims. He described some of the barriers he has come across.

“Speaking to you about what I think about the legal system, there’s just in general a lack of access for poorer or middle class folks. Uh, I mean I get it all the time, I can’t take the case, or I can’t take this case or that case because it’s just, they can’t afford it. I mean, if we’re talking about communities that are disadvantaged in a  lot of ways, those problems are exacerbated. It’s just even worse.”

Sangisetty is optimistic that the class action suits may succeed where individual ones failed, if only because private attorneys will be more interested in the profit from representing many clients at once. And, in binding together as a class, the Vietnamese fisher folk may have found an approach to the legal system that best matches their own immigrant experience. “You’ve got a real self-sufficient attitude,” Sangisetty affirmed. “And they’re insular in that they will rely on members of their community and kind of navigate a disaster like this together.”

BP offered a settlement in April of 2012, but many fisher folk worry the spill could create long-term problems for the ecosystem they depend on. Scientists are trying to determine the spill’s impact on Gulf marine life. There are no guarantees that the fisheries will bounce back. But the settlement is on the table right now. That creates a dilemma for Vietnamese fisher-folk. They have to decide whether to chart a course towards class-action, or tie up at the dock, take the money, and give up the right to future claims.

Life of the Law #05 - Tough Crowd

From Life of the Law | Part of the Life of the Law series | 12:16

Is the law ever a laughing matter? We present to you a brief history of attempted comedy in the toughest room in the country—the Supreme Courtroom.

Justices-sized1_small The worst joke ever wasn’t told by a comedian. It wasn’t told in a comedy club. And it wasn’t shown on TV.

The worst joke ever was told by a lawyer on December 13, 1971:

“Mr. Chief Justice, may it please the Court. It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.”

Thus spoke Jay Floyd, an attorney for the state of Texas, opening an argument in front of the US Supreme Court. He was arguing against a plaintiff whose real name was Norma McCorvey, although she was given a different name by the court and her attorney, Sarah Waddington.  Those were the “two beautiful ladies” in the joke.

They were all at the Supreme Court to argue whether there was a fundamental right to abortion in the United States. If you haven’t guessed by now, the name the Court gave Norma McCorvey was Jane Roe.  And, as they say, the rest of Roe v. Wade ishistory.

But why did Jay Floyd decide to make history this way? Ryan Malphurs is an expert on the high court and the author of a book titled “Rhetoric and Discourse in Supreme Court Oral Arguments.”

“Working within Texas, and specifically within Dallas and the Eastern District of Texas, it is not uncommon for Texas attorneys to use humor in their statements to jurors. It’s also not unusual for attorneys to come to the Supreme Court and bring their same style of argument that they’ve developed over years and years of experience,” Malphurs says.

Indeed, when we think about attorneys, it’s easy to imagine Richard Gere in the musical Chicago, using his charm to delight the jury. But there’s a big difference between humor in front of a jury and humor at the Supreme Court.

“I think there’s a classic form for a speech where you open a speech with a joke. I think that’s a disaster at an oral argument,” says Linda Coberly, a former clerk for Justice Breyer and Vice Chair of the Appellate Division at the law firm Winston & Strawn.

“If you are an advocate you want to open with the reason why you should win your case. If the first thing that comes out of your mouth is a joke, I think you’ve really wasted an opportunity,” Coberly says.

Legal scholar Ryan Malphurs has spent a lot of time in the Supreme Court, which he says feels more like a church sanctuary than a courtroom.

“It has pews, it has chancel railings, it has areas that the lay public are not allowed to go.”

And these formal spaces share another thing in common. They’re both places where Latin phrases are more common than jokes. But that doesn’t keep lawyers from trying to make jokes anyway.

Take for example, United States v. Stevens, a case about whether the First Amendment protects so-called “crush videos.” The less you know about crush videos, the better for your life as a human being. Suffice to say they are depictions of animal cruelty.

Malphurs was in the courtroom at the time. To understand what happened, you should know that Justice Antonin Scalia hates it when advocates talk about legislative history. In this situation, the advocate was talking about legislative history and turned directly to Justice Scalia and remarked:

“I realize that is not relevant to you, but it may be to others on the court.”

“There were gasps and loud laughter that echoed through the court at the time,” Malphurs recalls. “And you noticed immediately Justice Scalia jump up from his chair almost and lean forward.”

To put it mildly, the lawyer messed with the wrong guy. The first five minutes had been controlled by the attorney. But the remaining 25 minutes were Scalia’s.

“He completely dominated that advocate’s oral argument and prevented him from being able to articulate a clear and cohesive argument to the rest of the Court,” Malphurs says. With one joke, “this advocate woke a sleeping dragon.”

He would go on to lose his case, and by a lot. In the end he had eight justices against him and only one on his side.

Surprisingly, though, some advocates are able to use humor and use it well at the Supreme Court. If you asked court-watchers to name the best lawyer working today, you’d expect to hear Paul Clement’s name come up a lot. In some of the Court’s recent big cases—The Affordable Care Act, the Arizona immigration law, and others—he argued one of the sides.  And within the legal field, Clement isn’t just one of the best advocates, he’s one of the funniest.

Here’s Clement bringing the house down in a case from 2007:

Justice Scalia: “When do you think the bad old days ended?”

Paul Clement: “Patterson was 1989. I don’t think anybody thinks Patterson was the bad old days.”

Justice Scalia: “I’m sorry, I’m thinking of Sullivan.”

Paul Clement: “The bad old days ended when you got on the Court, Mr. Justice Scalia.”

Um, so maybe you’re not rolling on the floor, but there is a bigger point here.

Here’s how Clement himself breaks down one of his biggest laugh lines, from a 2007 case called Hein v. Freedom From Religion Foundation. Vocabulary primer: “colloquy” is a formal term for a conversation—in this case between Paul Clement and the justices on the court.

“This colloquy, if I remember it right, comes after Justice Scalia has been beating me up over the distinctions that we had drawn in our brief. But of course, we hadn’t made these distinctions on our own. These were the distinctions that the court had drawn in its own establishment clause cases,” Clement recalls.

“And so, after having gotten beat up basically trying to defend the court’s precedents, Justice Alito gave me what is probably one of the friendlier questions I’ve ever gotten at the Court.”

Justice Alito: “Are you arguing that these lines that you’re drawing make a lot of sense in an abstract sense? Or are you just arguing that this is the best that can be done that this is the best that can be done within the body of precedent that the Court has handed down in this area?”

Paul Clement: “The latter, Justice Alito. And I appreciate… I appreciate the question.”

“Why didn’t you say so?”

Justice Alito: “I… I’ve been trying to make sense out of what you’re saying.”

Paul Clement: “Well, and I’ve been trying to make sense out of this Court’s precedents.”

So this isn’t hilarious—it’s dense banter, but an attorney’s skill at this high-wire act can make all the difference.

“One of the things you really see when he argues is a very conversational style. It’s a delicate balance because you don’t want to be too conversational, in the sense of losing the respect for the judges. And I think Paul walks that line very, very well,” Linda Coberly says. She spent a term with the Justices, and she thinks they do appreciate a little levity now and then.

“They like nothing better than a good joke. Now, they’re very, very serious about the work they’re doing. But as colleagues, they’re very comfortable with one another and see a place for humor,” she says.

In fact, Ryan Malphurs compares oral argument to meeting a romantic partner’s family for the first time.. “You’re sitting down to a large dinner, and there’s nine to 12 people in front of you and they begin asking questions.”

As with your in-laws, you might want to do your homework before trying to be even the slightest bit funny. And even then, you probably still shouldn’t risk it.

Which brings us back to the opening joke from Roe v. Wade. I first learned about the joke in an undergrad class when my professor mentioned it one day in passing. But I keep thinking about it.

“It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word. Before I proceed to the original issue in this case.”

In the Court’s recording, you can hear Jay Floyd pause for nearly three seconds waiting for laughter.  And he was greeted with silence.  Three seconds with more than 40 years of ramifications.

“In this situation, which I really think is one of the biggest legal flops of all time, I think that Jay Floyd felt that he had a dead ringer of a joke that he could trot into the justices,” Coberly says.

Since first hearing about this clip a decade ago I’ve both become a lawyer and an improv comedian. Through all that I’ve had this joke in the back of my mind.  To me, the most amazing thing is not just how bad the joke was—but how bad it was for the setting.  Arguing in 1971, in the midst of a cultural revolution, Jay Floyd should have done everything he could to downplay abortion as women’s rights issue. Instead he highlighted gender roles, and in all the wrong ways.

Roe v. Wade would actually be argued a second time, and that time Jay Floyd wouldn’t get to represent the state. Jane Roe’s lawyer had been too unfocused on the first argument, but she came ready on the second trip and found an argument that would persuade the court.  In essence, with his corn-pone humor, Jay Floyd ruined the state’s best opportunity for a knock-out blow.

Maybe he should have read Section 3 of the Supreme Court’s Guide for Counsel. One of the pieces of advice in there:

“Attempts at humor usually fall flat.”

Music featured in this episode by Matthew Daher, Kyle Kaplan and the Big Basie Band.

Special thanks to Jerry Goldman, who created and maintains the Oyez Project (http://www.oyez.org), where you can find audio for all of the oral arguments featured in this piece.

Life of the Law #06 - Block Boss (Explicit)

From Life of the Law | Part of the Life of the Law series | 12:16

On every city block, there are rules. Some are unspoken, some require friendly reminders, some are enforced by the law. Is it ever OK to break the rules in order to prevent others from breaking the rules themselves?


On every city block, there are rules. Some are unspoken, some require friendly reminders, some are enforced by the law. There are people who take it upon themselves to make sure neighborhood rules are being followed. Are there ever circumstances where it’s OK to break rules in order to prevent others from breaking the rules?

Henry Rivera (not his real name) grew up with his mom in Greenpoint, Brooklyn.

“I wasn’t supposed to be born,” Rivera says. His mother was in love with a doctor who was married.

“Whatever happened happened, and I came along. They beat her up trying to kill me.  She was seven months pregnant, so they induced an early birth. I came out with no damage whatsoever. At the age of 14, I was almost 200 pounds of solid muscle.”

Rivera’s neighborhood, like many in New York in the 80s and 90s, was a little rough around the edges. He explains that back in the day there were certain lines in the neighborhood you couldn’t cross if you didn’t want to get beat up. It was a matter of survival. For better or for worse, he loved it. He loved his community. He says it was always a family neighborhood.

Rivera got older and started a family of his own there. He came to take on an important role. He became that guy that people would rely on to take care of things. Pablo Airaldi met Rivera when he opened a bike shop on the main stretch of Greenpoint. Airaldi introduced Rivera to me.

“Henry came into the shop and went right up to the counter to introduce himself…..just to introduce himself,” Airaldi recalls. “We were the new kids on the block and it’s his block. He knows everybody on that block because he makes sure that people know him. It wasn’t obvious from the beginning what Henry did. You just knew that there was a reason to respect him. I don’t usually question those kinds of gut instincts. I just went ahead and respected the man wholeheartedly.”

Airaldi came to think of Rivera as a block boss figure. Others call Rivera the mayor of the block. One thing is certain: You do not want to get on his bad side.

“If you need a hug I’ll give you a hug, if you need a smack I’ll give you a smack, that’s the community that I lived in,” Rivera says.

There a lot of communities like Riveras around the United States—people who take the law into their own hands.

Laura Beth Neilsen, a research professor at the American Bar Foundation, says this kind of thing arises most often when people’s desire for order is not addressed by whatever legal authority is in charge.

“Sometimes other systems are working just as well, you don’t need the police. There’s research about tight knit but very crime ridden areas where a lot of the policing is actually done through networks of mothers and grandmothers,” she says.  Or by people like Henry Rivera.

Neighbors say in the worst of times, he tried to keep the block safe when no one else would. Laura Hoffman was one of those neighbors. She’s lived in Greenpoint all of her life. In the 90s, Hoffman was bringing up six kids in a low-income housing apartment right around the corner from Rivera.

“I used to have to get up maybe a half hour, 45 minutes early in the morning, just so I could sweep up the crack vials and needles and stuff that was hanging out in our hallway,” she says. ‘My kids knew what I meant when I said, ‘Hit the dirt!’”

Hoffman says she turned to the police for help. As soon as something started going wrong, she’d call her local precinct, but she rarely got a response. Over the years, Hoffman has filed over 20 official complaints and showed up at the precinct in person but to no avail.  In her mind, the 94th precinct was an R&R precinct.

“A rest and relaxation precinct.”

I spoke with Johnny Barela, the former sergeant at the 94th precinct. He says in the precinct’s defense, “Sometimes the police can’t do everything.  We did a lot with a little.”

Barlea worked in Greenpoint at the time Hoffman was bringing up her kids, when crime rates and drugs were really a problem in the neighborhood. Barela grew up there too.

“The department politicians, they handcuff you,” he says. “They don’t allow you to do the job the way you should do it or really want to do it. They’re always crunching numbers and looking for this and that. You don’t really care about the paperwork. Your job is to get the bad guy.  But then you have to understand the paperwork’s important because you gotta prosecute ‘em. That’s part of the job. Checks and balances.”

Barela admits that things had gotten pretty bad in Greenpoint.

“There were murders, everyone knew about, unfortunately everyone was either a victim or knew someone close or relatively close to them that was a victim of some sort of crime either by a larceny break in, car theft, burglary or worse. So people did not feel safe.”

This is where a guy like Henry Rivera comes in. He says he understands what the police are up against.

“Cops have to run by all these laws, gathering evidence and all that I mean. I don’t have to. That’s it. I don’t have to. Nor am I going to waste my time,” says Rivera.

Hoffman says that if you had a problem, Rivera was there. He was able to do what the 94th precinct wasn’t able to do. That could be any variety of things.

One example involved a group of crack addicts. There was one particular corner where they liked to hang out, and Rivera says children lived nearby. One night there were a couple of drug users on the corner, and this is how Rivera handled it.

“I walked downstairs, like a normal Puerto Rican would do, in his boxers. Enchancletas.

As I walk out the door, there are two garbage cans there. One metal and one plastic. I pick the plastic one up. I swing. I do a full 360. I clobber the guy. Right?  I mean he is done. One shot done. There was garbage in this plastic one. The silver one was empty. I picked the silver one up. I’ve never….whatever I enjoyed it. Fuck it. I clobbered her over the head with it. She fell and shut the fuck up.”

This is only one of many stories Rivera has about keeping the neighborhood in shape. Once he caught a kid stealing an older woman’s purse:

“I didn’t stop kicking him. It would have been self defense if I gave him three kicks instead of 35 of them. And you know? I’m sorry, but he was mugging someone. It was an older lady.”

Rivera’s methods are a little extreme. Despite Barela’s issues with police effectiveness in the neighborhood, the retired sergeant is adamant that vigilantism is wrong.

“This man’s justice or penalty is a beating—one time he might make a mistake. Wrong person’s going to be victimized! Then I get involved because he just committed an assault. Either way he’s committed an assault,” Barela says.

Laura Hoffman is not of the same opinion. “I’m not going to say I like it when somebody has to use that kind of force, but sometimes people have to do what they have to do to keep their corners livable. He’s the kind of person if he felt that it was needed, I would trust him. If he had to resort to something like that, then he had his reasons.”

In the eyes of the law, Rivera is a criminal. In the eyes of the community, he’s a keeper of the peace. Laura Beth Neilsen explains that if Rivera has the backing of his community, there is a way in which it is legitimate.

She says, “When taken to the extreme, say he takes out a baseball bat or a gun, no that’s not legitimate. As long as he’s not doing serious violence and it’s a shared norm in the neighborhood, that’s …community. That’s what we call community.”

But Rivera’s methods are crossing the line that Neilsen is talking about, the serious violence line. However, if we’re talking about community norms, especially at this particular time in Greenpoint, this type of behavior was pretty common. Even Laura Hoffman swung a baseball bat from time to time.

Rivera asserts, “If I’m a product of my surroundings,  I’m a happy product of my surroundings, I would never let anyone get away with bullshit.”

Even if his methods are in harmony with the norms of the community, they are in conflict with the norms of the general public. His use of violence is what pushes his role in the neighborhood from neighborly to potentially criminal. I asked why he feels the need to take things so far.

Rivera answered with a question.

“When you see tough guys beating people up for no reason? What do you feel like doing? I’ll ask you that question. Running?”

Cowering a little, I say, “….kind of.”

“I’m sorry to say it like this,” Rivera responds, “but the gangster in me is coming out. It’s pussies like you, OK, that piss me off. Because when you stand around watching someone get hurt and don’t do shit about it? That’s a big fucking problem. And a lot of people do that.”

Former police sergeant Barela says he too had the same emotional reaction to crime, “but you can’t do that.  It’s not going to work. There’s always somebody tougher. So it just comes into war and battle and it’ll never stop. He’s just a thug.”

Still, Rivera is more than just a thug. He shows up at city council meetings. He lobbies for things he thinks are important. He coaches little league baseball. He’s all for what he calls “good cops.” But only to a certain point.

“We have laws on the books for a reason. They fit in when the cops are taking care of things. When they’re not taking care of things, they don’t fit in at all.”

Rivera’s been arrested, but has never done time. “Once they found out what really happened,” he says,  “They let him go. ”

Nowadays, Greenpoint is mostly gentrified. There seems to be less of a drug problem—at least out in the open. Rivera spends less time beating up crack heads and more time building movie sets and doing standup comedy. Though you’d better know for sure he’ll still give you a smack if he thinks you deserve one.

Life of the Law #07 - Felony Factory

From Life of the Law | Part of the Life of the Law series | 13:00

You’ve just been arrested, charged with a felony and can’t afford to pay your bail, let alone hire a lawyer. You know you have the right to a trial by jury or judge, but what happens when the legal system is too busy to see you? Public defenders in Cook County, Illinois, struggle to fill the gap at one of the busiest court complexes in the nation.

Public-defenders-resized_small Public defender Victor Erbring has worked in Cook County’s main criminal courthouse for more than a decade, but he still keeps a map of the place over his desk to make sure he doesn’t get lost.

The jail complex here is roughly four square blocks in size. It houses roughly 15,000 people, which is about the size of a medium-sized American city. It is all filled with people who are charged with crimes or are serving sentences of 365 days or less.

Erbring’s office represents most people jailed and convicted here. Over the past decade, that’s nearly 220,000 people–enough to fill Chicago’s largest sports stadium, Soldier Field, more than three-and-a-half times over. On any given day, roughly 9,500 people sit in Cook County jail. Most are in limbo, waiting for their cases to wind through the courts. Critics call this place a “felony factory.”

One of the few breaks inmates get are when their cases are called up for some kind of review. Then they’re taken through the maze of tunnels that connect the jails to the courthouse.

At the start of the day here, I follow Erbring’s partner Peter Benesh to the place where public defenders meet many of their new clients, the “lockup.”

The lockup area is a 10- by 20-foot cage with steel bars around it. There are usually two next to one another, and both are usually filled to capacity, which means 40-50 people in each lockup.

When you walk into the lockup, one of the first things that you notice is the loud echo of voices. The inmates here are chatty and excited, and their voices bounce off the concrete floors.

Erbring’s clients have usually been living in the court complex for weeks by the time he meets them. They’ve been through bond court, felony review and arraignment. Still, Erbring says he doesn’t usually have much more than a file folder with an arrest report to go on when he meets many of them. And the most important thing in that folder? It’s usually the prosecutor’s offer.

The offer is how much the client’s sentence can be reduced if they plead guilty instead of arguing their innocence in a jury trial.

“If the prosecutor…writes down an offer, which often they do on cases that don’t involve serious violent offenses, the next thing that we tell them [is that] the state made this offer,” Erbring explains. “If you look at this from a client’s perspective, we are giving them bad news, then we’re giving them more bad news, then we’re telling them what would happen if they plead guilty.”

Typically, the next time Erbring sees his clients is in the courtroom, which is just down the hallway from the lockup.

Erbring describes Courtroom 602 as “one of those rooms that you may have seen in a movie.

“It’s a big formal courtroom as opposed to these small rooms that we refer to as fishbowls,” he says.

The pace on a typical day can be dizzying. Within 30 minutes, 12 defendants are called to the bench. Erbring or another public defender represent seven of those called.

The hearings are short. Within three minutes (usually less), the clerk has stamped the case file, the judge has set the next court date, and a deputy has whisked the defendant back to the lockup.

“This goes on month after month,” says Locke Bowman, the head of the Roderick MacArthur Justice Center, a legal clinic at Northwestern University. “The jail is not an attractive place. It’s not a pleasant place to be confined. Folks are separated from their lives, from their families, and pressure builds to get out. To find some kind of resolution.”

Bowman and others say it’s not just those behind bars who want the cases resolved. The public defenders have so many clients, they need to keep things moving.

“The attorneys are hardened to the worst kinds of cases,” former Cook County public defender Leonard Cavise says.

“I remember this happening to me. I remember clients telling me, you know, the cops beat this confession out of me. It isn’t that I had a ho-hum response, but I’d heard that many times before,” Cavise recalls. “Or a person would say to me, ‘I’m innocent! I’m innocent! I want to go to trial.’ And my response would be, ‘Fine, you want to go to trial, you can go to trial. But there’s a terrible risk associated with going to trial. That’s what we call the jury tax. You’re going to get punished a whole lot more severely.’”

So you have attorneys under pressure to close cases, plus antsy clients; Cavise and others say this is why most cases never make it to trial.

Public defenders don’t write the laws. They’re doing their best to find a workable outcome. And nearly eight out of 10 times, they say, that outcome is a plea bargain. A plea bargain is when a defendant takes the offer I mentioned before. The bargain is that they plead guilty, and in exchange their sentence is reduced. But they are also agreeing to a permanent criminal record, instead of convincing a jury of their innocence and being released.

Plea deals are criticized because they’re awfully convenient for the overloaded court system. But public defender Peter Benesh says they’re not always bad, and he insists they don’t point to weak lawyering.

“There are a lot of cases where I have put in every bit as much time on a plea as you would on a trial. And what you’re trying to do is get the best result for your client. And to that end, oftentimes the best result for your client is limiting their exposure [to a harsher sentence],” Benesh says.

Lawyer groups, like the American Bar Association, have been critical of the caseloads that public defenders have to carry. They say that it slights justice. In a perfect world, caseloads would be capped at 150 per year.

A handful of public defender offices across the country have taken a stand against the caseloads over the past few years. Some places have responded by setting new protections, like caseload standards. In other places, the courts have simply forced public defenders offices to take more cases.

Erbring has little hope that public defenders offices will get more funds to hire enough lawyers and investigators. “How do you convince taxpayers and legislators to properly fund an office like ours when most people believe that what we do is represent guilty people—criminals?” he asks.

The attorneys in Courtroom 602 aren’t exactly keeping score on how many cases they get. According to Cook County’s recent records, each attorney working in a felony courtroom took an average of 236 cases a year.

In the eyes of former public defender Leonard Cavise, Cook County’s system is designed so bureaucracy beats justice: across the courtroom aisles, prosecutors, defenders, and judges all struggle under the same crushing load.

“They have to work so carefully together on plea bargains [and] they have to make a lot of deals with each other: ‘I’ll give you two years in this case, but I want you to give me in that other case, give me the four years that you promised me or that you said that you would think about in another case,’” Cavise says.

“Yes, we like to say in the United States that we’re in an adversarial system where the defendant has all these rights, including the right to a trial by jury, or a right to a trial by the judge…That’s all a lot of bologna,” Cavise believes.

While Erbring isn’t exactly quick to defend the status quo, he says that public defenders in Cook County give their clients not just an adequate defense, but an exceptional one.

“Most public defenders are willing to go further in most cases than other attorneys in trying to find some way to get their client a better outcome,” Erbring says. “That doesn’t always mean finding that last witness who’s going to be the linchpin witness for them and find them not guilty. But it means digging deeper and finding out more information so their client can have better opportunities.

“And I don’t think anyone does that better than public defenders,” he says.

Life of the Law #08 - Redesigning Justice

From Life of the Law | Part of the Life of the Law series | 11:48

Red Hook is an isolated neighborhood of Brooklyn, NY, once known as the “crack capital of America.” In 2000, residents banded together to create a community justice center more responsive to the needs of the neighborhood. Can a more humane courthouse get better results?

Ep8-redhook-outsidefar_small Red Hook is part of Brooklyn, NY, but it doesn’t feel like the rest of the borough. It’s isolated along the water, cut off by a highway. I had to take several buses to get here, because the subway doesn’t go to Red Hook. It feels a little like an island.

When New York’s crime wave reached its peak in the late 1980s, Life magazine called Red Hook “the crack capital of America.” And it just got worse: In 1992, a devoted school principal here named Patrick Daly was shot and killed. Red Hook residents say that was a turning point; they knew they needed to take collective action. With the help of the district attorney and several judges, they established the Red Hook Community Justice Center, an experimental court people hoped would rebuild a sense of community and maybe turn around a generation of lost youth.

A decade later, it’s thriving. Adam Mansky, the director of operations for the Center for Court Innovation, worked with residents to select a site back in 2000. Everyone agreed an abandoned Catholic school at the center of Red Hook was the best choice—though it took some vision.

“When we first came to look at this building, it was filled with wild animals. There were crack vials everywhere; people had stolen every possible fixture. So [the residents] wanted to see something positive done to restore this space,” Mansky says.

The school has huge windows with lots of light, and high ceilings. The stone façade still has a pair of side doors labeled “boys” and “girls.” Inside, the residents could design a courtroom that cares. Mansky says, “The traditional vocabulary of a court has been things designed to create sense of awe and gravitas by a litigant and respect for the law, things like dark wood, marble.” In other words, they’re intimidating.

The Community Justice Center is still a courthouse. There are cops everywhere. You have to put your things through X-ray scanners to get in. But every room is designed with a touch of humanity, even the jail.

“First and foremost, there are no bars,” notes Julian Adler, the project director. “We use shatterproof glass, and there’s natural light, which you would not find in traditional holding area. There’s a private bathroom with a partition. In most holding areas it’s a public bathroom, which is not ideal.”

No, those bathrooms are usually a hole in the ground.

“It’s still a holding area. You’ve been produced in handcuffs—it’s not an experience anyone wants,” Adler says. “But we try to restore some dignity to the process and to the extent that we can under the situation, treat you like a member of our community and hope that the next time you come to the justice center, you come through the front door, not back door.”

The courtroom also has bright windows, light-colored wood, white walls—and one more important detail. “We consciously lowered the height of the judge’s bench,” Mansky says.

Judge Alex Calabrese loves it. “The judge’s bench is actually lower than most people, so I’m often looking up to people!” he laughs.

Calabrese is a stocky, energetic guy who is street-wise and book-smart. After “Superstorm” Sandy flooded Red Hook, the judge was out in full force.

“I mean, he was out there with the people,” says Albert Barnes, a long-time resident who works at the justice center. “He was going to apartments to make sure people were taken care of. He was checking on the seniors. He came to my apartment to make sure I was OK and my family’s OK.”

I saw that kind of compassion while Judge Calabrese held court. I wasn’t allowed to record in the courtroom, but the Judge let me sit behind him. At one point, he was questioning a woman arrested for heroin. He asked if she wanted to get clean. That question surprised me.

Julian Adler says, “There’s a lot of research on the efficacy of drug courts and other problem-solving courts, and a lot of it does come back to the relationship between the judge and the defendant through conversations like that. It doesn’t surprises me that he intuitively asks those kinds of questions, because that’s what a good clinician would ask in drug treatment. And he’s asking those questions from the bench.”

After half an hour, Calabrese turned around asked if I had any questions. At a loss for words, I asked why he was being so nice. I’m not the first person to ask that.

“Many times, I’ve had defendants come to me after their process and say, I’ve never been treated like this before by police or court officers. Why is everyone so nice?” says Adam Manksy. “And I’ve also had court officers come to me and say, I can’t believe how nice public is, they are always so respectful and aren’t trying to escalate things.”

“The general philosophy here is to treat people with respect, and it goes further than sounding like a nice thing for anyone to say,” says Judge Calabrese. “It helps people be in compliance.”

Compliance is whether a defendant actually follows the judge’s orders. Normally, courts are divided into civil, family and criminal law. Judge Calabrese is trained in all three, which gives him flexibility. Also, in New York State, the age of criminality is 16, which means that teenagers can have vastly different sentences based on a dividing line that can feel artificial.

“So if you’re 15 and 364 days old, you’re sent to family court. If you’re one day older, you’re sent to criminal court,” says Mansky. “The consequences can be very significant, and in fact we’re involved in a large project to divert more of the young people who are in criminal right now, out of it.”

The judge has many services at his disposal. He can send offenders to drug treatment or anger management. For minor offenses like graffiti, disorderly conduct or truancy, the Judge can send teenagers to a non-binding youth court, run by Sabrina Carter. “I got involved because I’m from the Red Cook community,” she explains. She joined youth court at the age of 14 in 2002.

Youth court is held in what used to be the principal’s office of this Catholic school. A petite African-American girl plays the role of judge, administering the oath to a motley group of teenagers. The pledge is this: I solemnly swear or affirm to keep everything I hear during this youth court session to be completely confidential.

This is not your typical after school activity. These kids are real do-gooders. Some of them want to be lawyers when they grow up. “Every role like in a regular court is fulfilled,” Carter says. “We have a bailiff, the judge, jury members that could range from six to eight members, a youth advocate which is a defense attorney in this case and a community advocate which would be like the DA or the prosecuting attorney.”

Today’s case is about a 10th grader who skipped school. The community advocate is a well-spoken girl who argues that truancy harms a school’s reputation. The youth advocate is a boy who never looks up from his notes. He admits the 10th grader has a poor GPA, but she’s working towards improving her record and reaching her goal: to join the Army. The jury questions her for 15 minutes. They adjourn for a verdict, and come back to recommend that she take a motivational workshop.

“Sometimes the kids are like, ‘Whew, you know, great! It’s a different kind of court. It’s a second chance. I don’t have to see real judge,’” says Carter. “Whereas others are like, ‘This is a joke! There are other teenagers, why are they doing to judge me and tell me what I’m doing wrong?’”

But Judge Calabrese trusts them 100 percent. He boasts, “The only proof you need is that their compliance rate, which is a voluntary compliance, is higher than my compliance rate where I can send people to jail if they fail to do what they need to do. Their compliance is over 90 percent; mine is over 70 percent. The traditional court, by the way, is 55 percent.”

Compliance is one way to measure if the community justice center approach is working. Another is cutting down the rate of incarceration. “You know, we’re a country that incarcerates one in every hundred people,” Calabrese adds. “I sent significantly less people to jail here, and yet we hold people accountable. It’s also been shown that when people go to jail at the Justice Center, they actually go to jail longer.”

Community courts are popping up around the U.S. and beyond. A judge in Liverpool, England, actually modeled his court after the one in Red Hook. At the very least, Judge Calabrese hopes he can inspire other courts to take a fresh look at how they work.

“When I was in the traditional court and didn’t have a lot of these services, I found it frustrating because I could take care of the case the legal way, but I knew I wasn’t really getting to the problem that brought the offender to court,” he says. “And unless you get you get to that problem, that person is going to keep recycling through the court system time and time again.”

Life of the Law #09 - Reporter on Death Row

From Life of the Law | Part of the Life of the Law series | 27:37

What do we really know about death row in California? When we don’t know we create, we imagine.


I’ve been reporting on prisons in California since June 2007. Every time I’d walk through the Sally Port of the prison, there to the left was death row. It was always a place that was off limits.

Whenever I would ask, and I asked almost every time I went inside, are you sure I can’t go inside Death Row? The Public Information Officer would make it very clear that it was a flat no. No one in the press goes inside Death Row. I would ask them why, and they would say, there’s safety and security concerns. And that’s kind of the standard response, safety and security of the institution. The only person who can really say, ‘You can go inside Death Row,’ is the Secretary of the Department of Corrections and Rehabilitation, Matt Cate.

One day in 2012, I had my chance to ask him to say yes.

“Matt Cate, apparently you are the only one who can actually authorize press access. So I want to ask you directly. I’d be willing to sign any waiver. I’d be willing to wear any protective clothing. Would it be possible to have press access inside these facilities? Death penalty. Protective Housing Unit and Adjustment Center?”

“Well, it’s a difficult problem,” Secretary Cate said, looking me in the eye, “as you know it’s complicated. I’ll consider it. I’m happy to have a further conversation about. I do want people to see the conditions there for example, because we’ve done a lot to improve the conditions at San Quentin. I go there myself on a pretty regular basis because it was pretty bad only five, six, seven years ago. The conditions there were really bad. And so I do want people to see that.”

The interview ended. And about two weeks later I got a phone call from the press office and they said, ‘We’re giving you access to Death Row.’ And that’s when it all started.

As we approach the entrance to the first of San Quentin’s three Death Row cellblocks, an officer calls out to Lieutenant Sam Robinson, the prison’s Public Information Officer and my guide through the prisons’s Death Rows, “Good afternoon, Lieutenant.”

“How ya doing brother?” Robinson calls back.

“Big man, big man,” the officer responds.

It’s now June 11th . I’m headed into San Quentin State Prison with Lieutenant Sam Robinson to visit for the first time any press has been on, in Death Row in the State of California in eight years.

A gate closes behind me and then another opens, a long line of officers with guns are standing on a rail that goes up the wall. Their guns are aimed down, their eyes are steeled on the wall of cell blocks, five stories of caged men.

There are three different sections of Death Row. The Adjustment Center is where everybody starts their death sentence and if they behave badly, it’s where they go back to. North Segregation is for a select few who have behaved well for years. And East Block is for everyone else. Five hundred men are sentenced to end their days in East Block.

“East Block structurally mirrors our major housing units here at San Quentin,” says Lieutenant Robinson as we enter the block of cells. “That they’re all five stories high.”

I ask Lt. Robinson if I can interview the inmates in their cells. He says I can interview any inmate willing to talk to me. I approach the cell of a middle-aged man named Walter Cook. “Hello,” I say as the large man moves toward the gate of his cell, the front of  the bars covered in a sheet of black perforated steel.

“How ya doing?” Cook says.

In 1994, a jury convicted him of three counts of murder and sentenced him to death.

“So you have a phone in front of your cell,” I ask, “why?”

“Make legal calls,” Cook says, “talk to family, friends.”

“How long do you have access to the phone?” I ask.

“We get the phone like every other day, like once in the morning and once at night,” Cook says.

Cook has been here on Death Row for 20 years. He has two kids. One twenty, and one twenty-one. They visit every other week.

“You’re not in contact with your family, you have nothing. You have something to keep your sanity. We’re not like people portray us up on the movies, crazy, deranged people. I get it from tv, everybody child molester, rapist. You know. It seems like that’s the stereotype that everybody here, that’s what they are. Even the people that’s innocent, they be all, if you’re here, you got to be guilty. That’s not necessarily true.”

“Are you?” I ask.

“No, I’m not guilty,” Cook says.

“You’re not guilty?” I ask again.

“I’m not guilty,” he says again, a little laughter in his voice, as if he knows how that must sound.

“You’re innocent.” I say.


“You did not do it.” I say again, “Are you sure?”

“I’m positive,” Cook says, this time more serious.

“I really appreciate you taking the time to talk with me,” I tell Cook.

“Alright,” Cook says, easily “No problem.”

We move on to the farthest end of the tier. I notice there’s a pink sign attached to the gate of the last cell. It identifies the inmate as visually impaired. His name is Justin Helzer.


“Hello,” the man of about 30-35 calls back.

“How are you?” I ask

“I have a lot of medical problems,” Helzer says, his voice slurred, his eyes darting up and down.

“Oh, I see. Ok.” I say as an offer to leave if he wants me to. “I’m just doing a story about the conditions on Death Row. How do you feel about the conditions on Death Row?”

“Speaking from a medical standpoint,” Helzer says, sitting on the edge of his single bunk, leaning against the narrow edge of the cell wall. “It’s hard to see the doctor. For instance I only see the doctor once every two or three months unless it’s a visible problem. Then the nurse will schedule an appointment to see the doctor prior to my scheduled rotation.”

“How long,” I ask, “have you been here?”

“I’ve been here since 2005,” Helzer says, “but I was arrested since 2000. I was fighting my case from county jail for five years.”

“Are you guilty,” I ask, ready for him to say no.

“Yes,” Helzer says, “I kill people. Yes I do.”

“You did kill people?” I ask, surprised.

“Yes, I killed two people,” Helzer repeats, no hesitation in his voice. “Point is, I’m not. I wrote a letter of apology to the family members of the deceased. I apologized. It was so misdirected. I’m so sorry and it’s like a past life. I’m so not that person anymore. And so I don’t have a problem admitting what I did. I’ve taken responsibility for it. I’m not proud of it. To say it was a mistake is a huge understatement. I can’t express how sorry I am. It was so unnecessary. But I don’t want to talk about my case.”

“So you’re vision impaired?” I ask, changing the subject.

“I’m totally blind. What it was,” Helzer says, stumbling a bit, “It was a suicide attempt. I stuck two five-inch pens into my brain through my eye sockets. It didn’t kill me.”

“When did you do that?” I ask, trying to make sense of what he has just said.

“About a year and a half ago,” Helzer says.

“Oh, I see.”

“So it left me blind and partially paralyzed,” he says. “I was just tired of Death Row. And it was a failed suicide attempt.”

When he said that, I didn’t know what to say. I just felt like I had to stay in my role as a reporter. If he was going to say it so straight up, I felt like I had to take it straight up and just keep going, and that’s what we did. So while we talk he’s sitting on the edge of his bunk and he turns his face away from the cell door. I ask him what he thinks about the Death Penalty.

“It’s all politics,” Helzer says flat out, like this isn’t he first time he’s thought about it and now he has come to a conclusion, “Oh Death Row, tough on crime. It’s not a deterrent. The Death Penalty is not a deterrent. I’ll tell you why. One, is when people do commit crimes, they are not thinking, ‘Oh my gosh, I might get the death penalty, I better not do this.’ They’re in the moment. They want what they want. They have short-sighted. They don’t forsee the consequences of their actions because they’re impulsive. They do whatever they do, whatever crime it is. Now thinking about the ramifications. So that the notion that the death penalty is somehow a deterrent is a false premise.”

“What if people say they want the death penalty,” I ask, “just because they want people to be punished.”

“Let me tell you,” Helzer says. Then he laughs. “You can punish people plenty by giving them LWOP.” (He means life without the possibility of parole or LWOP.) “Besides, there are people here on Death Row for thirty, forty years and they haven’t gotten killed. And they have so many more appeals left to them. So no one’s getting killed. No one’s getting executed.”
“How do you see the rest of your life?” I ask.

“I don’t know,” Helzer says, “I just take one day at a time. Just one day at a time.”

So we are now going into the Adjustment Center.

“Once we step inside the facility,” Lt. Robinson tells me, his voice dropping, serious, “the officer at the door is going to want to see your ID. Again, he’s going to ID you and then as soon as we step inside and the door closes behind us, there’s what we call the Unit Isolation Log, which details all the movement in and out of the facility, whether it be inmate or staff entering and exiting the facility, we document all of the movement in and out of here. And so we’ll sign into that as we enter the Adjustment Center. Again, the Adjustment Center is a prison within a prison. Our staff don’t have the ability to leave the facility, the Adjustment Center themselves. There’s an officer on the exterior of the facility who controls the key that allows their egress and, in and out of the facility.

The Adjustment Center is the place where every person sentenced to Death Row in the State of California, unless they’re a woman, starts their Death Row sentence and they’re put in boxes. Like individual cement contained boxes. These individuals live in these cells alone twenty-three and a half hours a day.

They’ve brought me out a green vest. “What kind of vest is this, Sam?”

“This is a stab-proof vest,” Lt. Robinson says, “inside a prison we’re not necessarily worried a whole lot about people shooting at us. We’re more worried about inmates having crude items they’ve manufactured to stab us or punch us with. So this vest here protects all of your vital organs. Just because a guy is handcuffed and is escorted by two staff members here in the facility, it doesn’t negate them from acting out violently, such as kicking our staff. There’s actually one individual in here. This individual is identified in cell 1AC4. His name is Tuliapa. Over the course of the last couple of decades, he’s actually successfully retired four of our staff members here in this facility due to assaults he’s perpetuated on them. Those individuals were assaulted to the point that their injuries were extremely severe and they were never, ever able to return to duty.”

This is the place in California where the most dangerous individuals, who have commited the worst crimes, often times gang leaders are kept. This is the worst of Death Row.

“If you’re here in the Adjustment Center, you’re not functioning well in any other facility. And this is the highest security housing unit we have at this facility. I worked here in the Adjustment Center for three years as a supervisor and I’m an African-American male. And so it would seem like I would be offended by someone throwing out the N word to me on a regular basis, right? Or it would seem like I would have some type of sensibility about that. But working here in the Adjustment Center it just goes right over my head. I’ve been called that so much here in this facility that it’s almost like saying ‘blue’ or ‘orange’ or whatever the case may be. It has no value or no meaning to it.”

He says when he was there, the cell doors were just bars and the inmates would throw feces and urine on the officers. They called it gassing. But in 2004, prison officials made that impossible.

“It was drama here in the facility,” Lt. Robinson says, “we changed the physical structure in here in that we removed all of the cell bar fronts and replaced them with solid concrete cell fronts. So the front of the cell was concrete. The sliding door in front of the cell was concrete. And so that’s prevented the individuals from committing those assaults of gassings and darting our staff here in the facility.

I stand along and listen and watch. Down the empty hall I see a white envelope on a clear line of filament slide out from under one of the solid cell doors. It sits there for a moment. Then another white envelope attached to another line of clear filament shoots out over the filament of the first. While I’m watching the envelopes slide up and down the floor of the tier, Robinson walks up.

“How do they do that?” I ask.

“Lots of practice,” Lt. Robinson says.

“So how do they do it? They put it on a string…”

“Put it on a string,” Lt. Robinson says, “slide it through a little sliver under their door, which is less than half of an inch.”

“But how does,” I ask, watching the now four envelopes slide up and down the floor, “that was way down there. That must have been six cells down. But how does he get it to come all the way down here?”

“With a little bit of inertia,” Lt. Robinsons says, “he’s able to get it going in one direction and then he gets help from someone in the cell next to him and they keep moving it down the facilty.”

By now there are five envelopes shooting up and down the cement floor. The mail has arrived. “The mail has arrived,” Lt. Robinson says, “and many times in this facility it’s not just mail. It’s something more obvious than that.”

Robinson turns from the tier and waves Officer Taylor over. “Hey Paul, somebody just fished something to cell number 10.” He lowers his voice. I can’t hear exactly what he’s saying, but it’s serious.  In seconds, a team of six officers appear, canister of pepper spray and handcuffs are hanging from their thick belts. As they prepare to enter the tier, officers place thick protective glasses over their eyes and disposable gloves on their hands. As the first gate slides back, Lt. Robinson orders me to turn and follow him out of the area.

“Can I watch? Let me watch. I mean I want to see what happens. No?”

I’m not allowed. Officers direct me out a back door to a yard of cages. There Lt. Robinson stops to explain what is happening. “Essentially, what’s just taken place is we observed inmates receiving contraband because anything they send down a tier on a fish line is considered contraband. If it leaves their cell headed to another individual, it’s illegal inside the facility and so essentially, our staff is going down the tier to remove that individual from his cell.

“Why can’t I witness that treatment?” I ask.

“Because as you can see,” Lt. Robinson says, “the facility, the physical structure of the Adjustment Center, there’s not a lot of space in here and if things go sideways inside of there you and I would just really be in the way. There’s nothing that we could do…”

“If they had to move that inmate out of that inmate out of that environment…” I begin.

“Well, they are moving the inmate out of his cell,” Lt. Robinson says, “cause they have to go inside and search his cell.”

“Could they hold him out in that open area?” I ask.

“They could either hold him out in the open area, or they bring him to the middle to the center holding cell that we walked past in the facility,” Lt. Robinson explains.

“Would he resist that?” I ask.

“You never know. You never know,” Lt. Robinson says.

Robinson says I can talk to any inmate who will talk to me.

An officer asks an inmate returning to his cell from his time out in a cage on the yard, “Want to talk to the media?” The inmate looks at me and shakes his head.

“As you see can see,” Robinson says, “when we move them, we move them one inmate into the facility at a time. In comes the next inmate.”

“He doesn’t want to talk to me either?”

I’m surrounded by officers. The inmate has an officer at either elbow and an officer behind him with a baton. “You want to talk to her?” Lt. Robinson asks the inmate being moved back to his cell.

I’m supposed to say, ‘What would you like to tell me about your life inside solitary confinement in the Adjustment Center, on the record, for public radio. And each of the inmates looks at me, “Are you sure you don’t want to talk to me?” like am I crazy?

“No I can’t. I’m sorry,” one of the inmates standing a few feet in front of me says, officers holding tight to his elbows. “Why can’t you?” I ask.

“I don’t want to,” he says.

“Do you think you’ll get in trouble or something?”

“No I just don’t want to.”

“You know they have to go back to the yard and deal with their comrades,” an officer says.

Then, one of the inmates, a tall, lean black man takes a look at me and says yes.

The inmate is places inside the black holding cell in the hallway, his handcuffs stay on.

And he turns around and he looks at me.

“My name is Carmen Ward. Conditions here in the Adjustment Center are horrendous, unfair, biased. It is restricted in everything you do. Everything. What the Adjustment Center is for is for a brief punishment, right? Prison is violent, I get that. But at some point, people have to be told when their punishment ends.”

Ward’s been in the Adjustment Center for seven years and says he has no idea when he’ll be able to leave. Robinson says there’s a process for getting out of the Adjustment Center but that Ward has yet to follow it. One thing that’s become clear to me is that a prisoner’s quality of life on Death Row is heavily impacted by whether they follow the prison rules. If inmates behave in accordance with the rules, if they’re compliant, there’s a chance they can be transferred to North Segregation.

Robinson and I walk to a cage at the end of a long walkway. He reaches over for a phone at the side of the cage.

“Drop the bucket,” he says in the receiver before hanging it back up.

I ask him what that means.

“Drop the elevator. North Segregation is actually six stories up and it’s an isolated housing unit that was designed many, many years ago to house our Death Row population.”

North Segregation. The most desired unit of Death Row. North Seg is where you get to go if you don’t have any problems. If you are good on Death Row, this is where you want to be. On the other hand it’s where they send you on a death watch. So when you are up for an execution, that’s where you go.

When we reach the top, we step out to a hallway and a series of locked gates that lead to one floor of sixty-eight cells.

“The inmates who live in this facility are in a much different environment than the one we just witnessed over in the Adjustment Center. In that they’re walking around pretty freely in a contained environment. In the Adjustment Center, no one walks the tier freely. Here in North Seg, they walk the tier freely. I believe they release them out of their cells at about seven in the morning and essentially they hang out until about 1:30 in the afternoon.”

We’re going up some stairs from the cells to the yard.

“To the yard for North Segregation,” Robinson says.

At the top of the stairs, the door opens out to a roof and a beautiful west-facing view of Mt. Tamalpais. “Wow. What a view.”

Most of the men on the other side of the fence are just standing over in the distance and I’m looking at them, and they’re looking at me. “Hello,” I say.

“How’s it going?” Lt. Robinson says to some of the officers and men on the yard. One of the men wearing dark sunglasses approaches me and we start to talk. His name is Curtis Ervin.

“This particular program is not a true reflection of the entire Death Row because this is quote, unquote, ‘an honor program.’”

“What’s the honor part of it?” I ask.

“There are more privileges than East Block Death Row,” Ervin says, “more movement.”

“How do you get on North Block Death Row?” I ask.

“Waiting list,” Ervin says, “no write-ups, no 115’s.”

You have the opportunity to put your name on a list and the only way someone’s going to get off the top of the list is if they are executed or they die of natural causes or they commit suicide.

“How do I know if somebody’s is willing to talk to me?” I ask Lt. Robinson.

“Ask,” Lt. Robinson says.

“Should I just yell out?”

We make our way back down to the North Segregation tier and I’m allowed to walk along the tier and interview, again, anyone.

One of the cells I approach is the cell of Douglas Mickey, “Oh, you have nice lighting. How did you design that?”

“Just put a piece of paper on a lamp,” Mickey says, “it’s better than a bright light.”

There’s kind of a glow, like an orange glow in his cell. He sleeps on the floor and uses the surface of his bed as a desk. And he says he was a country boy. “How long have you been here?” I ask.

“Since ’83,” he says.

“Murder 1?”

“Actually, I got it for jaywalking. That’s what you’re here for on Death Row.”

In 1980, he was convicted of two first-degree murders and sentenced to death, “And I’ve been a hunt, fishing guy in Alaska, and I really love the outdoors. But I could survive in here. I can stay productive.”

This hunting, fishing man has been locked up in this cell for 32 years.

“You don’t have any trees though,” I say, wondering how he survives without nature.

“I’ve got one right here,” Mickey says.

So he reaches down, says he has a tree. And I’m thinking a tree? And he reaches down and he holds up, “Bonsai,” this six-inch high macramé tree in his hand. “She’s taking a picture of your tree.”
“Pull it back just bit,” I ask, so I can take a picture of his tree.

“Take it easy,” I say as I walk down the tier.

“Tell Jerry I said hi,” Mickey says as we leave. I think he means Jerry Brown, the Governor of California.

Down at the end of the tier, inside the very last cell, a man is sitting on his bunk, playing the guitar.

“And this is…Mr. Ervin. You’re playing.”
He stops briefly, but I encourage him to continue, “Keep playing, I want to record.”

Just as Ervin begins to play, Robinson says it’s time to go, “We got to get going.”

I follow Robinson back down the tier, through the security gate and out through the big steel doors, passing guards and guns.
“Bye. Bye. Bye.”

It’s a relief to be out of the cellblock, walking in the warm sunshine. It’s a feeling the condemned men I’ve just left behind will probably never have and it occurs to me, that the men I’ve just spent time with are probably never going to see another reporter in their lifetime.

Now when I ask if I can go back on Death Row. I ask if any other reporters are going on Death Row and it’s no. Do you have any plan for letting any reporters go on Death Row, no. It was a one shot deal.

Life of the Law #10 - Dibs!

From Life of the Law | Part of the Life of the Law series | 12:34

After a big snowstorm, the streets of many northern cities start to get cluttered with furniture. Why? Because of “dibs,” the practice of claiming a shoveled-out parking spot. Some see it as a necessity, others as a dangerous nuisance, and still others as an expression of John Locke’s theory of property rights.


Sometimes, it’s the unwritten rules – like calling dibs – that have the most impact. The on-line urban dictionary defines “dibs” as the act of expressing priority over something.” It also cites dibs as “…the most powerful force in the universe; used to call possession of a certain object or idea.”

You might have heard the cry “dibs” when your brother or sister grabbed the last donut out of the box. That’s the one they claimed had their name on it. When Neil Armstrong and Buzz Aldrin planted the American flag on the moon, that act was one big national “dib.”

In my town of Boston, the concept of dibs seems just as monumental. Especially after snowstorms, as drivers dig themselves out and then go searching for spots to put their cars.

The custom here is that after you shovel out your car and pull out, you get to save that space with some object such as furniture or a trash can. One family even used a bust of Elvis Presley’s head. Yes, it’s a public street. But these “dibs” are your way of saying, ‘no one else gets to park here.’

To some, this may seem like a small thing. But parking is scarce in Boston. According to Professor Susan Silbey, who heads the Anthropology Department at the Massachusetts Institute of Technology, there’s a bigger argument about property rights at work here.

“They spend several hours shoveling out a parking spot, to get their car out of the snow and when they come back from work where they have been paid for their sweat, they want a place to put their car.

“They are announcing a moral and ethical and historic principle,” says Silbey. She states the argument succinctly as “I worked, therefor it’s mine.”

But it didn’t feel very moral and ethical when it was me driving around looking for parking. After all, these are public streets, presumably available to all. About a week after a blizzard hit New England, in the neighborhood of South Boston, it was nearly impossible to find a spot that didn’t have a chair or another obstacle in the way. And even when I discovered an empty, shoveled out space, it was too intimidating to park there. I’ve lived in Boston long enough to know that otherwise innocent drivers have suffered retaliation for breaking the unwritten rules about shoveling and dibs.

David Carmichael, a resident of Boston’s Mattapan neighborhood supports the unwritten rules. There are few options, he says.

“When the city says you have to get your car off the street, they don’t give people places to put them…some people take hours to dig their spots out. They should be able to hold their spot.”

David, his wife Michelle, and their four year old son live on a narrow street. Cars are parked on both sides. When I visited their home recently, in the evening after work, I was glad I had left my car at home and taken the bus. Michelle Carmichael says neighbors on her block are protective of each other but when it comes to parking, sometimes it’s retaliate first, ask questions later.

“We had a neighbor who had her tires slashed,” she said, noting that her neighbor had lost her parking space to someone else who had tossed her space saving objects aside. When her neighbor parked in a different spot on the block, says Carmichael, her tires were slashed by another neighbor who had called dibs.

To some, this incident would be an argument against calling dibs.

But David Carmichael said that when drivers see a parking spot dug out of the snow, they should know that spot “belongs” to someone else.

“The thing is God didn’t make those spots. The way it was before, everybody knew if you dug out a spot, that was your spot. Now the way the Mayor has it, everything’s up in the air and people feel they can park there.”

According to police, drivers who didn’t follow the law of “dibs” after a recent blizzard, reported everything from scratches on their cars to smashed windshields.

In the winter of 2004, Boston’s Mayor Tom Menino decided to take on “dibs.” He told public works crews to start collecting the furniture and other markers as trash. In a press release, Menino said “Streets in Boston belong to the people. I respect the tradition of reserving shoveled spaces, but enough is enough.”

The Mayor’s actions caused an uproar. The late city councilor Jim Kelly of South Boston made national news with his efforts to fight the mayor and preserve the right to “dibs.”

Finally, the city compromised. Boston now allows dibs on parking spaces during official snow emergencies and up to 48 hours once the emergency is declared over.

This isn’t just about Boston, where traffic laws sometimes seem more like suggestions to the locals. “Dibs” happen in other northern cities every winter. Chicago’s former mayor Richard Daley once said he’d never challenge the practice. But some Chicagoans have declared, like Boston’s mayor, that “enough is enough.”

“One of the things I see in Chicago when there’s a lot of snow,” says Andrew Kasprzycki, who along with colleagues at his advertising agency started the Chair Free Chicago campaign in 2010, “is people helping to push someone’s car out of the snow when it gets stuck. I’ve never heard of anyone, when they do that, though, claim they have some right to use that car.”

Supporters of Chair-Free Chicago say “dibs” is selfish behavior, plain and simple, and turns neighbors against one another. The group offers downloads of signs and flyers for people who want to discourage the practice and declare their neighborhoods “chair-free zones.” The tone of these messages vary, depending upon how angry you are about the practice and which city’s behavior you emulate. Available signs include Minneapolis mad about dibs which takes a friendly approach and New York mad for people who are much more pissed off.

It’s the battle over dibs that really interests MIT Professor Susan Silbey.

In a 2007 article for the Journal of Comparative Law, Silbey drew parallels between dibs and the philosophy of property rights that underscore our economy. Her study of political discourse and the arguments over dibs give her perspective on our snow-bound frustrations.

“They are making arguments about what is fair and what is just. And so when somebody puts a chair in the snow, they are making an argument that my labor is worth something. But here comes the weather, and it disturbs our lovely plan.”

So what is the best way to get our plan back on track? Probably just wait for Spring. Which is the time when lawn chairs can finally go back to where they belong in cities—on the sidewalk.

This story was produced with help from Kaitlin Prest, Julia Barton, Nancy Mullane and Shannon Heffernan.
Also, check out MIT Professor Susan Silbey’s video essay on spot dibs and Chair Free Chicago .

Life of the Law #11 - Without Means

From Life of the Law | Part of the Life of the Law series | 10:30

More than 30,000 people died by guns in 2011 in the US. Of those, close to 20,000 died by suicide. Many still do not make a connection between gun availability and suicide rates, but a growing body of research suggests otherwise. What role do these “other” gun deaths play in our discussion of gun laws?


Cathy Barber is a researcher who studies violent deaths and injuries. A number of years ago, she was helping to develop a new system for the federal government called the National Violent Death Reporting system.

“In the process of doing that, I would read through thousands of suicides, little thumbnail sketches of suicides,” Barber recalls. “I was surprised at how many suicides involved some sort of triggering event on the same day as the suicide—like an argument, or an arrest, or somebody getting kicked out of school.”

Barber was surprised because, like many others, she assumed that suicide is deliberative, something people plan. But these little sketches showed people acting impulsively.

Barber got curious. She found some research on people who survived a nearly fatal suicide. They were asked how long it was between the time they decided to attempt suicide and the moment they tried it.

“Twenty-four percent said less than five minutes, two-thirds said under an hour, [and] only 16 percent said a day or more.  You’d think, ‘This is such a huge decision.’ You’d think it would be a more deliberative one,” she says.

Barber says these people may have suffered long battles with depression, but the decision to go through suicide is fast, and it passes quickly.

This matters, Barber says, because if people could get through that tiny window of time and not complete a suicide, then they would have a chance. Many people never re-attempt suicide, although that’s a common assumption.

So Barber came to conclusion that is so simple, it’s surprising we don’t’ talk about it more. Harmful things—easily available harmful things—are what matter in that little tiny window.

“There is a huge difference across methods of suicide in how likely they are to actually kill,” Barber says. “Firearms are actually at the top of the heap.”

When you try to kill yourself with a gun, you almost always die. By contrast, poisoning, for instance, hardly ever works.

Gun deaths add up. In 2011, of the 30,867 gun deaths in the U.S., 19,766 were suicides. So public health researchers like Barber have started to think about guns in terms of something called “means restriction.”

The term comes from the U.K., where gas—sticking your head in the oven—was once a leading means of suicide.

“Back in the 1960s, they started replacing the source of gas with a non-toxic source, and suddenly suicides in Great Britain went down by a third,” Barber says. “And so that’s when we started realizing means restriction actually can save lives.”

But of course, with guns in the U.S., “means restriction” is not so simple.

Most of the gun laws currently under debate address homicide, not suicide. Laws that restrict the overall availability of guns in a home might curb suicides, but those kinds of laws are unlikely to ever be on the table.

Episode11-gun suicides-poster

So Barber’s approach is to provide crucial people with information and resources about firearm suicide. Her project, based at Harvard University, is called Means Matters. She focuses on developing leadership with gun owners. For example, one project equips gun shop owners in suicide intervention.

But our nation’s strong feelings about gun laws sometimes spill over to affect these public health approaches.

Dr. Joseph O’Neil lives in Indiana. He used to work as a family doctor. As part of his regular checkup routine, he’d ask about general health and safety concerns.

“When I was talking about car seats, when I was talking about seatbelt use, I often asked families if there was a firearm in the house. And I had several families take exception to that,” O’Neil recalls.

Some patients were so upset with the question about guns that they switched doctors, he says. But O’Neil didn’t stop asking. He’d had patients injured by firearms. And he didn’t feel like he was doing his job if he didn’t bring up the question of guns in the home.

O’Neil later went on to become part of the Indiana Violent Death Prevention project.

They trained clergy in suicide prevention. Most of the clergy said they had counseled a suicidal person before. More than a third said they had actually lost someone in their congregation to suicide.

“Clergy felt more empowered to say, ‘By the way, I know you feel this way. Is there a gun in the home, would you be willing to get it out of the house?’” O’Neil says.

But O’Neil’s group never got the chance to follow up to see how well the project worked. Their funding, which was from a private foundation, ran out.

Funding is scarce for research on firearm injuries. The Centers for Disease Control (CDC) funds research on causes of death and injury. But since 1996, the US Congress—under pressure from the National Rifle Association—has restricted most CDC research on firearms. And the Consumer Product Safety Commission, which researches and legally regulates most household products, doesn’t oversee firearms.

O’Neil says compared with vehicles or toys, there just isn’t the same oversight or information on firearms.

“Since 1975, we’ve reduced the number of infants killed in motor vehicle accidents by 75 percent. For toddlers, [by] 50 percent. I wish we could do that for firearm injuries,” he says.

But for now, O’Neil said the restrictions on funding make it hard for him and others to develop the good kind of public health approaches that would get those results. “It’s sort of like going without a compass. We don’t know where we’ve been and we don’t know where we are going unless we have the data.”

O’Neil is passionate about addressing firearm suicides in his state. He says it can be really frustrating to see the need and not be able to provide any solutions.

Harvard researcher Cathy Barber has faced similar issues. She says that while homicides often get public attention, suicides are kept quieter.

“I think what looms so large in people’s eyes is the thing you can’t control—the stranger who is trying to rob you,” she says of the public debate about guns. “Whereas you think, ‘Well, I am not going to commit suicide and my family is not.’”

But for Lindsay Van Sickle, it’s no longer possible to think that way.

She says her father was a fun loving guy who had plenty of friends.  He was very outgoing, loved Jimmy Buffett, and was always the life of the party. “And I guess this kind of comes up with his death, but one of his hobbies was collecting guns and going to the shooting range,” she says.

Lindsay Van Sickle’s dad shot himself in July of 2011. A few years earlier, her mother had died in a traffic accident. Both deaths were sudden and difficult for Van Sickle. But she says the feelings of being a suicide survivor are unique, unlike anything else.

Lindsay Van Sickle with her father. Van Sickle says her father was outgoing and affectionate.  Courtesy of Lindsay Van Sickle

Lindsay Van Sickle with her father. Van Sickle says her father was outgoing and affectionate.
Courtesy of Lindsay Van Sickle

She remembers lying and saying her dad died of a heart attack, just so she wouldn’t have to explain what really happened.

“Because you don’t know what to say… I’ve told people my dad took his life. They give this shocked look. At least if it was cancer, you can at least [say] ‘Oh, I am so sorry.’ But what do you say [when someone tells you] ‘Oh yeah, my dad shot himself?’”

Van Sickle says her dad grew up hunting. He collected guns from World War II. And she says he was always very responsible, stressing safety, locking things properly. His cousins and friends, who also were gun hobbyists, were shocked that he’d use something he loved and respected so much to end his own life.

It’s only now that anyone can imagine the gun as something that would end up hurting him.

“If you have a gun, even if it’s for hunting or protection, there may come a time in your life that you may be depressed. And that may be a means to take your life. So, yeah, I am definitely more nervous and scared about guns now based on what my dad did to himself,” Van Sickle says.

For the most part, she tries not to wonder about what could have gone differently. It’s just too hard, she says. But watching the national conversation about guns, she does think about what place suicide has as we talk about firarms. And waits for the rest of us to ask that question too.

This story was produced with help from Kaitlin Prest, Julia Barton, and Nancy Mullane in collaboration with WBEZ’s Front and Center series on guns.

Life of the Law #12 - Games and Law

From Life of the Law | Part of the Life of the Law series | 12:55

Online, multi-player games create addictive, all-encompassing competitive worlds for players. But sometimes, players disturb the fantasy with abusive behavior. Through trial and error, game developers have found that “virtual judiciaries” can help solve problems in their virtual worlds, and the results have real-world consequences.

Ep12_gameslaw_banner_small Christian Rivera was a champion, among the best in his league. He won large cash prizes, had major corporate sponsors and fans around the world. But you won’t hear about Christian Rivera on ESPN because he’s a professional gamer: his sport happens completely online.

Rivera plays something called League of Legends , a multiplayer online game set in a fantasy world. The game involves two teams fighting against each other via avatar “Champions,” such as Alistar the minotaur, and Evelynn the assassin. A team wins once they’ve raided and destroyed the other team’s base.

In an annual report, market research firm DFC Intelligence listed League of Legends as the most played PC game in North America and Europe.  The creators of League of Legends, Riot Games, say 32 million people play the game for more than a billion hours each month.

Most players of League of Legends do so over the Internet from the comfort of their homes. But for professional gamers like Rivera, competition happens in public “cyber arenas” with large crowds watching both in person and online. Teams compete for enough big money that the game is their full-time job.

Christian Rivera was on one such team. The was buzz that they were even on their way to becoming one of those world champions in this year’s season of competitive play. But at the end of last year, Rivera’s ambitions were suddenly put on hold as Riot Games made an unprecedented announcement to ban him from competing in its top tournament for one year. The charges against him? In-game harassment, verbal abuse, and offensive language.

The one year ban from this virtual sport has real world consequences for Rivera’s life and finances. He’ll have to start his climb to the top all over again, winning far less money along the way. And since the average pro gaming career lasts only five years, Rivera may never get back to where he was before burning out.

Never before had a League of Legends player—let alone a professional player—been punished so drastically for behavior while playing the game. The body that handed down Rivera’s sentence was something called the Tribunal, a “virtual judiciary” that is built into League of Legends . A panel of Rivera’s skilled gaming peers reviewed the evidence against him and decided the punishment.

Riot Games and other makers of multiplayer online games could just outright delete the accounts of troublesome players like Rivera from their games. Online games are not democracies, after all. But quasi-judicial processes like the Tribunal do exist within many multiplayer online games. Simon Ferrari, a doctoral student at the Georgia Institute of Technology, says that to understand how they came to be, you first need to know more about the history of virtual crime in virtual worlds.

“It’s this kind of experimental look at a model and almost an alternate history. Like, given a society that doesn’t have law, can we record first-hand as this changes to a more democratic system? Because we’ve only got incomplete records of what has happened in real world nations in the past,” Ferrari says.

Online gaming has been around since the late 1970s, with most of the earliest multiplayer online games modeled on the old pen-and-paper Dungeons and Dragons fantasy game. Players interacted with each other via rudimentary text-based chat rooms inputting commands that would display certain actions to other players. Ferrari explains.

“So, if my character’s name was Simon [and] I wrote ‘talk: hello everyone,’ – then the game would tell everyone in the room: ‘Simon says hello everyone’. The other command was emote – to express action or emotion. So if I type ‘emote: feels very happy today,’ everyone in the room would read, ‘Simon feels very happy today.’”

As with Dungeons and Dragons , players had to use their imaginations to get the most out of the game. Some highly skilled players could even program new elements into the game. Typically, they’d craft dramatic narratives or magical items that other players could then interact with in good faith they’d be taken on a rollicking quest for treasure and glory. But in the early 1990s, Ferrari says, that norm was violated inside one game’s most public chat room.

“One night, a character called Mr. Bungle entered the living room with an item described as a “voodoo doll”—kind of a digital voodoo doll.” The so-called voodoo doll was in fact a programming hack that commandeered the game. Ferrari continues, “The problem with Mr. Bungle possessing this voodoo doll was that he was able to fake emotes from other players. And using that ability he created this scene where multiple women within the game were seen violating themselves and each other in horrific and graphic ways.”

Eventually, the game’s developers stopped Mr. Bungle’s grisly scene, but his actions had real world effects on the game’s community. An article later written in The Village Voice about the incident described what Mr. Bungle had done as “cyberrape.” One woman whose character was violated by Mr. Bungle said she suffered from bouts of post-traumatic stress following the attack.

Following the event, players of the game had to come together to figure out how to punish Mr. Bungle, and keep other virtual crimes like his from being committed again. At first, they called for the erasure of Mr. Bungle from the game, but the game’s developers hesitated. They knew that as the game became more popular, more malicious players could be drawn to it. And the developers  knew didn’t have the time or manpower to hear every case and ban every player who acted horribly.

So after some deliberation, they decided to create one of the very first “virtual judiciaries” to deter future in-game crime. “It was basically an adjudication or arbitration system,” Ferrari says. “This was a way of asking one uninterested third party to come in and judge the facts of a case—like in the case of a virtual rape—and determine if there was fault and what the punishment should be.”

With video games, reviewing the facts of a case is the easy part. “Factual evidence is recorded at all times by the game system itself,” Ferrari says. “Every movement of a player: you know exactly where two given players are at any given time. So unlike the real world, where so much of the judicial process is built around this fact that you have firsthand accounts […] delivered via people’s memories and voices that cause all these problems and doubts; in a virtual world, there’s never that doubt. You see it.”

In the case of League of Legends’ Tribunal, if players can find a reported player guilty by majority vote, usually the reported player’s username and IP address are banned for a few days. Their “harassment score”—a metric used by the game to track problem players over time—also goes up. Usually all that is enough for most players to check themselves next time they log onto the game.

Christian Rivera, however, had been through the Tribunal nine times and punished eight. Rivera’s accumulated harassment score at this time had him among the worst-behaved of all North American players and the number one worst ranked pro player. The trouble for these virtual worlds is that problematic players like Mr. Bungle and Christian Rivera tend to spread negativity, bringing out the worst in other players. Game makers will tell you that they want to discourage behavior like this in order to help bring about a sort of virtual world peace.

But Rutgers University law professor Greg Lastowka says that game makers’ motivations aren’t just altruistic. “If a company focuses on the short term and disregards certain users just in order to make a buck, I think that may be profitable in the short term, but ultimately it’s going to mean that the platform has less respect,” he says. Less respect means fewer people want to play to the game.

Lastowka is author of Virtual Justice, a book exploring the social phenomenon of multiplayer online games and how they relate to the law. He believes that “virtual judiciaries” play an important role in keeping real world courts out of the gaming picture

“To the extent that a game company creates clear rules that people understand, that people respect, and doesn’t act in arbitrary ways and gives some degree of due process to gamers when they’re accused of violating rules, then that actually makes the community more healthy and makes the company more profitable,” Lastowka says

After the League of Legends Tribunal banned him from the Championship Series, Christian Rivera released a statement. In it, he apologized for offending other players and his fans. He said he understands professional players are role models and should act accordingly. And he vowed the ban won’t end his aspirations as a professional player.

“League of Legends is my life, and I will do everything in my power to play as long as possible,” he said.

Life of the Law #13 - A Life on the Bench

From Life of the Law | Part of the Life of the Law series | 13:25

What does it take to become a judge? No one starts their legal career as a jurist. First they work as a lawyer advocating for one side of a case over another. But transitioning from lawyer to judge means hearing both sides of a case objectively and then making decisions that carry the weight of the court. In a break from our usual feature format, this week Life of the Law’s Executive Producer, Nancy Mullane talks with James R. Lambden, an Associate Justice on the California Court of Appeal about living a life immersed in the law.

Gavel_small What does it take to become a judge? No one starts their legal career as a jurist. First they work as a lawyer advocating for one side of a case over another. But transitioning from lawyer to judge means hearing both sides of a case objectively and then making decisions that carry the weight of the court. In a break from our usual feature format, this week Life of the Law’s Executive Producer, Nancy Mullane talks with James R. Lambden, an Associate Justice on the California Court of Appeal about living a life immersed in the law.

Life of the Law #14 - An Architect's Code

From Life of the Law | Part of the Life of the Law series | 17:04

In its code of ethics, the American Institute of Architects requires members to “uphold human rights.” But what does that mean when it comes to prisons—specificially, those that confine inmates largely to their cells with little to do? Raphael Sperry is an architect in San Francisco and president of Architects, Designers, and Planners for Social Responsibility. He wants his profession to refuse to design facilities for solitary confinement or execution.

Lotl_logo_3_small The fundamental ethical precept of medicine is that doctors first do no harm. This led the American Medical Association to adopt Opinion 2.06 of the AMA Code of Medical Ethics in 1992: “An individual’s opinion of capital punishment is the personal moral decision of that individual. A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.” It goes on from there.

Lawyers have an ethics code. Journalists have an ethics code. So it shouldn’t be a surprise that architects do as well. The American Institute of Architects ethical standard 1.4 covering human rights states simply: “Members should uphold human rights in all their professional endeavors.”

A number of architects have taken a stance that there are some buildings  that should not have been built. (And they don’t just mean the ugly ones.) They say that, by design, these buildings violate standards of human rights.

Specifically, they mean prisons that keep inmates alone in cells with little to do and minimal human contact. Inmates have names for these places: The Box. The Bing. On the outside, we know them as Supermax facilities, or the SHU, for security housing unit.

It’s up for debate as to whether the SHU is solitary confinement—because there is, in fact, no legal definition of solitary confinement. The United Nations doesn’t have one, the Department of Justice doesn’t have one, and neither does the California Department of Corrections and Rehabilitation.

The CDCR maintains that no prisoners in California are kept in solitary confinement. They refer to the SHU as a “segregation” unit. But a number of groups, including Amnesty International and Human Rights Watch DO call the SHU solitary confinement. There’s a lot of controversy surrounding a SHU at a Northern California prison called Pelican Bay.

Pelican Bay State Prison was designed by San Francisco-based architecture firm KMD. KMD declined to speak with us for this story. But Jim Mueller, an architect with KMD who worked on Pelican Bay, did talk with Architect magazine about the prison. He said, “The inmates have no contact with other inmates during the vast majority, if not all, of the day. They are only allowed out of their cells for very short periods of time for constitutionally required exercise periods.”

Life inside a SHU means 22 to 23 hours a day inside of tiny room 80 or so square feet. Nancy Mullane, a radio reporter with Life of the Law, managed to get access to the SHU in Pelican Bay State Prison in California. She went inside one of the cells and had an inmate, Robert Luca, describe the room…

“Basically, it’s six by nine [feet], or six by twelve,” one inmate, Robert Luca, said of his cell. “The bunk is your living room, the center is walking area, and two steps to the right is bathroom, pretty much.”

The official measurements are actually seven-and-a-half by 12 feet. It’s not a space that’s designed to keep you comfortable. But it’s not just these architectural features that concern humanitarian activists and psychiatrists. It’s the amount of time many prisoners spend in that cells, alone, without any meaningful activity.

“Long term-solitary confinement, which is either for months or years, or goes on forever, as at Pelican Bay, connected with absolute idleness—that is,  the individual is socially isolated to the extreme, but also has nothing meaningful to do: This causes human breakdown. This destroys people as human beings,” says Terry Kupers, a psychiatrist who specializes in forensic work. Kupers has served as an expert witness on over 20 class action lawsuits concerning prison conditions.  He says there’s a whole litany of effects that solitary can have on a person, including massive anxiety, paranoia, insomnia, depression and suicidal thoughts. Kupers says people often pace and clean their cells compulsively. Furthermore, their eyesight suffers from not being able to look at a distance. Inmates find it hard to concentrate enough to read, Kupers says.

Above all, he says, inmates report being terrified that anger at their circumstances will “get out of control, and theyll be in more trouble, and they’ll have a longer term in solitary.”

That’s just for a normal, stable person, Kupers says. For prisoners with a history of, or predisposition to mental illness, solitary can bring on a breakdown.

Life of the Law reporter Nancy Mullane says that compared with other prisons she has visited, there are actually some good design elements in the Pelican Bay SHU. Inmates can get natural light from skylights outside of their cells, which drifts in through doors made of a perforated metal. These porous doors also allow for inmates to communicate with each other, even though there are no lines of sight to any prisoner from within the cell.

But on the other hand, cells don’t have windows. Inmates never get to see the horizon. The only times prisoners get to leave the cell is to visit the shower, or the exercise yard, an empty, windowless room not that much bigger than a cell, with 20-foot high concrete walls. And while many SHU prisoners have a cellmate, Terry Kupers says that sharing a cell is often worse than being alone. If not solitary confinement, per se , call it a kind of “binary confinement.”

In 2011, Juan Méndez, the UN Special Rapporteur on Torture, said anything over 15 days in solitary confinement is a human rights abuse, which other sources have interpreted as torture.

“I actually don’t like the 15 day standard,” Terry Kupers says. “Some people fall apart in two days.”

And this happens in buildings specifically designed to maximize the isolation—or “segregation”—of prisoners for the duration of their time in the SHU.  So if it is the ethical code of architects to promote human rights, what is their responsibility to the people who are incarcerated in their buildings?

Raphael Sperry is an architect in San Francisco and president of Architects, Designers, and Planners for Social Responsibility (ADPSR). A few years ago, he had been following the news from Guatanamo Bay and reading up on mass incarceration in the US. One day in 2010 he saw an article in the San Francisco Chronicle about the redesign of San Quentin prison in California.

“The [San Francisco] Chronicle ran a picture supplied by the Justice Department that was the [3D] CAD model of the execution chamber suite of rooms,” Sperry recalls. “And I was like, ‘They’re using the same tools that I use to make residential additions, to make schools, only this project is going to kill people.’ That was totally shocking.”

You can aruge there’s a difference between designing a death room and designing a SHU. But Sperry views both as immoral, and in violation of the human rights that architects swear to uphold. He wants architects—and the profession of architecture as a whole, at least in the US—to stop building SHUs, or any structures that are designed for long-term solitary confinement, or are designed to put people to death. He’s not talking about all prisons or jails, just the ones where isolation is baked in to the physical structure, such as the AIA-architect-designed SHU at Pelican Bay prison.

“In Argentina, the military regime tortured people in a former auto body shop,” Sperry says. “Nobody’s going to say that the architects who designed the auto body shop are somehow responsible ,or even that the car mechanics who used to own it, no of course not.”

But Sperry says SHUs are different. “When you’re specifying that kind of space for that, and you’re making sure that all the doors  can be operated without seeing another human being; when you make sure the outdoor space is only going to be occupied by one person at a time, that there’s nowhere for people to actually be together…then that is a design intent,” he says. “When used as intended, human rights violations will result.”

Pelican Bay State Prison is hours from any major California city. It opened in 1989 to house suspected gang members and people who are seen to pose the greatest threat to officers and other inmates. It was modeled after a prison in Arizona, and has since inspired design for other prisons across the country, even buildings in Guantanamo Bay.

“The key to making this prison design work in our favor is not just the design of it but how it’s managed,” Pelican Bay corrections officer Rick Graves told Nancy Mullane. “Historically, Pelican Bay has done a very good job of dealing with the worst of the worst in the state. This prison was designed and built was meant to deal with the five percent of the prison population…that were causing the majority of crimes in the other prisons throughout the state.”

The way that Pelican Bay, or any prison, is managed is really the determining factor in what life is like for prisoners. The way these prisons are used isn’t the only way they could be used. For instance, prison management could decide that SHU prisoners could be allowed to go outside of the building in a secure, gated area, or that the exercise yard could be repurposed as a communal dining hall.

But for Raphael Sperry, the key here is design intent . Pelican Bay is managed the way it is, and the prisoners’ day-in-day-out experiences happen a certain way because that’s how architects imagined that the place to work during the design process.

And Sperry, along with ADPSR, say it’s time to stop building the prisons that are designed for what he sees as solitary confinement, or  any other kind of torture, or execution.

“It seems like the least archiects could do is demonstrate commitement to public heatlth, safety and wellbeing, is to say, ‘When you enter one of our buildings, it’s not intended to kill you or torture you,’” Sperry says.

Which brings us back to the rather minimal statement in the AIA code of ethics and professional conduct. Ethical standard 1.4: “Members should uphold human rights in all their professional endeavors.”

“Human rights is not a term that US courts use, and it’s not a term in the US Constitution,” Sperry points out. “It’s actually something bigger than that. If they said, ‘members should uphold the Constitution,’ that would be different.”
Sperry and ADPSR are petitioning the AIA to adopt a new clause in its ethics code: “Members shall not design spaces intended for execution or for torture or other cruel, inhuman, or degrading treatment or punishment, including prolonged solitary confinement.”

“So if you find yourself in prison, you should know that because your prison was designed by an architect, you won’t be subjected to inhuman degrading punishment or get killed there,” Sperry says.

So far, the San Francisco chapter of the AIA has recommended the proposal. If the AIA national adopts this amendment, it will become part of the ethics code for all AIA architects: virtually every practising architect in the US.

Regardless of how you feel about prisons—whether we should be rehabilitate people, or whether we should lock them up and throw away the key—it’s important to keep in mind that these attitudes have changed over time. From around the 1890s to the 1950s, the US had a really different take on prison: the emphasis was on curing, or rehabilitating people from a life of crime. Granted, some really terrible things happened in prisons during that time, but the emphasis, at least, was on getting prisoners to become productive members of society again. A big shift came with the war on drugs, which sent a lot more people to prison, and then there was the violence of the prison riots, or uprisings, that happened through the 1970s. And from the point of view of prison officials, locking people in their cells for most of the time started looking like a good option.

Hence, the SHU. But when you create a building that has a very extreme design, with little variability, you’re locking prisoners into that current mindset for the lifespan of the prison. Tamms Correctional Center, a supermax prison in Illinois, was closed in early 2013 to make up for a state budget shortfall. It turns out that it costs twice as much to house an inmate in a SHU than in an ordinary prison. Widespread budgetary pressure, and possibly the influence of anti-solitary confinement activists, is also causing states governments to reduce the number of supermax prisoners in Mississippi, Maine, and Colorado. Raphael Sperry may find that he has a strange and powerful ally in his fight to stop architects building supermax prisons: broke state governments.

But even if supermax facilities fall out of fashion, Sperry says it’s still important to establish ethical guidelines that distinguish architecture as a profession.

“It’s professional ethics that set aside a profession aside from other occupations…when you join a licensed profession monopoloy to provide services in that sector,” he says. “Not everyone can be an architect; in fact, one of AIA’s duties is patrolling people holding themselves out as architects, but aren’t. In exchange for the public monopoloy we get as a group, we need to adopt professional ethics that put public interests first. And the way that we do that is the way that doctors do that, by saying we’re not going to do anything to injure any of you intentionally.”

Life of the Law #15 - New Frontiers of Family Law

From Life of the Law | Part of the Life of the Law series | 15:18

Today, fewer than 50 percent of American families are married. Half of the Unites States is in a non-traditional, non-nuclear family. What do these families look like? You might know a few.


Howard had always envisioned becoming a father. He came from a big family.

Callie said she’d have kids…eventually. At least she promised she would.

Mallory, much to her mother’s delight, decided she did after all want to have children. She was looking into having a child on her own. She was starting to get into the details.

Howard and Callie Sinclair had their daughter Abbey in 2009. They aren’t using their real names, because of the unique situation they later found themselves in. Callie is a hydrologist; Howard works in Web development. They were young when they got married. Howard waxes romantic, Callie is a pragmatist, but they both agree that they felt they belonged together.

They were both surprised when they met Mallory. She’s a geochemist. And, they say, it was magic all over again. They never thought they would fall in love again, but they did. Mallory joined the family when Abbey was two years old, which was two years ago.

The set-up they’ve chosen for their relationship is typically called a “polyamorous triad.” Polyamory is an approach to relationships that accepts the notion that someone can love more than one person at once.

“When you love and trust people, a family is an easy thing to organize,” Howard says. “It’s the same for two people as it is for three people, anyone who’s in a really functional marriage understands.  You love and respect and trust each other. It’s straightforward in that sense.”

But while things are straightforward within the home, outside of it, things aren’t so easy.

“The reactions from our immediate families were…in my case, the reactions were quite negative,” Callie says. “The reaction in Howard’s case the reaction was also quite negative.”

Sometimes, the negative reactions sometimes have legal implications. One of the most public cases was in 1998.  April Divilbiss and her two partners came out as polyamorous on an MTV documentary show. Soon after, Divilbiss received an emergency protective custody order telling her that daughter was now in the custody of her paternal grandparents.

The charge the grandparents brought was against the family was “moral degradation.” There were no other allegations of child abuse or anything of the like. Polyamorous people often have their rights as parents challenged, the same way many same sex couples do.

Diana Adams is an attorney and mediator in New York City. She has built her law practice representing what she calls non-traditional families: polyamorous triads; couples, straight and gay, who might want to choose not to get married; people who want to co-parenting who aren’t in a romantic relationship, such as two single mothers or sisters who decide that they want to co-parent children and share a household.

The problem that these families face, Adams says, is that the only way to be recognized as a family unit is to be married. To get married, in most states, you have to be a man and a woman unrelated by blood, of legal age, and embarking on a sexual relationship. You pay about 50 dollars for a marriage license, and there you have it: in the eyes of the law, you are considered to be a unit.

When you don’t meet these criteria, but you’re trying to live as a unit, raise kids, or share a household, the legal system doesn’t have a lot to offer you in terms of short cuts, Adams says.

“I think we would benefit from other options besides marriage. It would be a useful thing for our government to get out of the business of deciding whether a sexual relationship merits being in a marriage that gives you tax benefits. Marriage should be something that we can do in your church your mosque your hippie festival,” she says.

Adams is rooting for more general legal recognition of alternative families structures:  Breaking away from the two-people-in-love-forever model and generating more options.

Changing legislation is a lifetime goal for Adams. In the meantime, she is working in the legal system as it currently exists, figuring out creative solutions for those navigating the uncharted terrain of family law for families that aren’t married. People like the polyamorous triad, the Sinclairs.

Sharing finances, for one, are a big challenge for Callie, Mallory and Howard. They want to be able to do what other families do: pay taxes together, share a bank account, share health insurance, life insurance, property. Howard and Callie are already doing that, but the legal system is not set up for three people to do that. So as it stands now, Mallory is always left out.

Mallory describes her experience trying to register a life insurance policy over the phone with a customer service representative:

“He asked, ‘Who’s your first beneficiary?’ I listed Howard’s name. He asked, ‘What’s your relationship?’ I said, ‘partner.’ He says, ‘We usually reserve that for gay couples.’ I say, ‘just wait.’” The three laugh.

But much more serious, for the Sinclairs, are issues of child custody and guardianship.

“Since we’ve been together, Abbey has had two accidents that took her to the ER,” Mallory says. “The idea of being shut out of the room… There’s no way we can put anything in place that would let me come into the room or be involved in her health care,” she says with tears in her eyes.

The Sinclairs realized they needed a lawyer. Diana Adams was one of two lawyers listed on a polyamorous-friendly legal help webpage. They saw the other lawyer first because he lived closer. They say he was terrible.

“His mentality about it seemed to be trying to protect ourselves from each other, rather than building anything to help us overcome the challenges we were facing,” Howard says. “He made us feel like we were doing something wrong. It was just ridiculous stuff. We were like, ‘Really? You sound like you’re from the 40s!”

They were relieved when they found Adams.

First, she started them out writing wills and health care proxy forms, so that in the event that one of the triad gets sick or worse, there could be something legally binding saying that the chosen family, not their parents or relatives, would make decisions about their health and in the worst case scenario, inherit property.

Next Adams took on the issue of sharing finance. In this department, Adams tells the Sinclairs to abandon family law entirely. She is helping them form a corporation.

“What’s a corporation? It’s a group of people who’ve decided to live together and work together and forge their way together. What’s a marriage? In most senses it’s a corporation at the legal level,” Howard explains.

Diana Adams elaborates: “They can buy property. They can pay taxes together. They can share common bank accounts. They can buy common health insurance.  It’s a way to get around the government evaluating whether their relationship passes muster. They’re not trying to fit into a Judeo-Christian marriage model. They’re just trying to fit into an existing legal structure that allows people to pool finances.”

While corporations are in many ways legally recognized as “people” in the U.S., forming a corporation won’t help the Sinclairs with their parental status under family law.

Howard, Callie and Mallory want Mallory to be recognized as one of Abbey’s parents, so she, the non-biological parent, can have the same rights to visitation, custody and care as the biological parents, regardless of whether or not they stay together.  Adams drafted a co-parenting agreement, which is a document that acknowledges that they all agree to these terms.

Still, Adams is skeptical about whether it will hold up in court.

“It would be a radical thing for the court to do, but it has happened. That’s up to the proclivities of that one family court judge and whatever county he’s in,” she says.

“All of these decisions about parenting are based on the very subjective standard: ‘the best interest of the child.’

“What does that mean? To a judge in New York City that could mean living on a lesbian commune. I’ve had cases like that. In upstate new York, that could mean that’s inappropriate for a child to live in a home where the parents aren’t married.”

Adams says the best the Sinclairs can hope for, in the event they ever end up in family court, is a sympathetic judge. In her experience, though, nontraditional families try to avoid court if possible. Which is why, Adams says, the legal system doesn’t change. It’s a vicious cycle.

“The legal system, and especially the legislative system, is often 20 years behind culture in terms of change with families,” she says.

Legal precedent still favors the nuclear family as the best place for children to grow up. Adams says that decades of social science research have proven that what’s most important for child rearing is stability.

“A proxy for stability has been marriage. Often times, these studies will jump to the conclusion that because instability is damaging for children that marriage is the answer. When in actuality, stability is the answer,” Adams says. “So I help these families where they are now, with the existing structure. [There are] lots of ways they can still protect their rights even while the law is catching up.”

And, she believes, “Doing that kind of work helps the law catch up.”

Life of the Law #16 - Call NOW!

From Life of the Law | Part of the Life of the Law series | 21:45

When things go bad, all you need to do is pick up the phone and CALL. Or so the late-night ads on basic cable tell us. Since the US Supreme Court allowed lawyers to advertise in the 1970s, the practice has skyrocketed, with often shoddily-produced results. Are tacky lawyer ads bringing down the profession or simply making it more accessible to those who might not otherwise know an attorney?


I have always been so impressed by lawyer commercials on TV, and by impressed I mean…totally confused. I’m always like, “Who told you that disaster footage or wooden readings from cue cards or your cousin wearing a judge’s robe would be a great way to represent your law practice?” But then I stumbled into the engine room of lawyer advertising regulation. And learned about the silent era before these ads were even allowed. And the Big Bang after which they couldn’t be contained. And the subtle, possibly endless civil war in Lawyer Nation over how and even whether attorneys should advertise their services—whether lawyers have doomed themselves as a profession with all these swiveling gavels and toll-free numbers, or whether they’re reaching the aggrieved, attorney-less masses while exercising their First Amendment rights to free speech.

If you want to know more, click on the audio above. Hammers await you. Flaming cars and talking cars and possibly aliens await you. Seriously, do not delay: CLICK NOW.

Life of the Law #17 - Redefining Rape (Explicit)

From Life of the Law | Part of the Life of the Law series | 15:58

(This episode contains explicit language)

Most of us have an idea of what the crime of rape is. But the legal meaning of the word rape varies widely, depending on which state you’re in. And in 25 states, what we may think of as rape... isn’t called that at all.


In August of 2011, 25-year-old Lydia Cuomo had just gotten a job teaching second grade at a school in the south Bronx of New York City. She lived in the Inwood neighborhood of upper Manhattan, and her principal lived nearby. Cuomo planned to get a ride from her on her first day of work. They were planning to meet at 6:15. 

“I left my apartment early, eager beaver, super excited first day of work,” said Cuomo. “Someone came up to me and asked me for directions to the 1 train, which is not a weird thing in New York. People ask you for directions to the subway all the time. It didn't throw me off guard at all in the beginning. The second time he said something, it was clear something was off. He was a little too close to me, and he said you're going to come with me.”

Cuomo said no, and the man showed her his gun. He put it against her waist, and walked her toward an alley. Cuomo said her knees buckled, and she tried to hold on to a fence, and offered him her jewelry, cellphone, and wallet. 

“When he said no, and didn't want any of my things, I knew pretty clearly I was going I was going to be raped. There's really no other alternative at that point. So he ushered me into this little alleyway . . . and raped me.” 

The perpetrator was off-duty police officer Michael Pena. He penetrated Cuomo: vaginally, anally, and orally. You might think all three of these acts are rape. But New York State law only considers one of them to be—the vaginal penetration. The other two are called “criminal sexual acts” in the state’s legal code.

Life of the Law #18 - Forensics in Flames

From Life of the Law | Part of the Life of the Law series | 16:26

Over the past 20 years, there’s been a revolution in the science of arson investigations. Many of the clues that had been used for decades to determine that a fire was not accidental, especially the analysis of burn patterns on walls and floors, have been proven to be false. Reporter Michael May explores the role of changing forensic science in two of the biggest arson cases -- and how that science meant life or death to those charged with the crime.

Lime_street_fire1_small Here is some advice that I hope you are not looking for: if you want to kill someone?and get away with it, you might try burning their house down. Not only are fires?notoriously deadly, but it is possible to commit the crime and destroy all the evidence?at the same time. It is not surprising that law enforcement began to look for clues in?the smoldering remains of homes: anything that might tip them off to the cause and?origin of the fire.

Over the years, firefighters took notice of patterns left by fires. Sometimes they would?be able to tell that a fire started in several parts of the house at the same time. The?cumulative experience was passed on from investigator to investigator. A consensus?emerged. It became the forensic science of fire investigations. And it helped solve?crimes.

“You know, in arson cases, the scientific evidence tends to be quite central to the case,” says Jennifer Laurin, a law professor at the University of Texas. “We know the structure burned down. It’s gone—nobody disputes that. But how did it burn down? Usually there’s nobody there to say. Usually there aren’t witnesses to these crimes. And what the scientific evidence permitted the state to do in these arson cases is to say that this was no accident. We know that someone came in and intentionally set this house on fire.” These scientific techniques were based on years of observations, but they would never been subjected to the scientific method. That has turned out to be a problem. A big problem.

Life of the Law #34 - Necessity Defense

From Life of the Law | Part of the Life of the Law series | 21:04

It’s odd to think cannibals, cannabis-growers, Vietnam War protesters, and prison escapees all have something in common. But they do: the necessity defense. We explore the origins and uses of this rare long-shot defense argument, which says in essence, “Yes, I’m guilty of committing a crime...but I had to do it."


In 1992, Harry Jack Spakes was serving out a burglary sentence in a prison near Amarillo, Texas. He did his time in a large dormitory with inmates who’d been convicted on similar charges. He’d perhaps made some bad choices in his life, but he was about to be faced with a series of impossible choices.

“On a Friday night, two officers came in cussing and turned the light on, and told me to—excuse me—‘Pack my shit.’ And this worried me.  Move me where? What? I haven’t done anything,” Spakes says.

He was transferred to a four-man, maximum security dorm. No explanation was given. His new cellmates were still in their late teens, all convicted of capital murder.

“One was in there for chopping up his girlfriend with a hatchet. Another one was in there for shooting a convenient store clerk for like, three or four dollars.  And the other one was there for burglarizing and killing a man and woman in their trailer and setting their trailer on fire,” he says.

Spakes had reason to believe he was being set up, being placed with men like this. At his previous prison, he’d filed a grievance that got a corrections officer demoted. Jack heard through the inmate grapevine that the officer was looking for revenge.

This scared Spakes. “When an officer makes a threat like that, you know it is viable. You know it can be done. Once a threat is made, you have to listen to it.”

Spakes believed this threat was now in action. But he tried to lie low and get along with his new cellmates. Then after a couple of weeks, his cellmates told him they planned to escape. They’d made a knife from a tin can top. Spakes says they wanted to hold it to a female officer’s throat, steal her keys, and escape out the back door of the prison. And if Spakes didn’t come with them, they’d kill him.

“They couldn’t leave me behind, because they were afraid that I would tell the control center that they were escaping,” he says.

And now that he knew of the plan, his cellies were watching him. “They were always there. You know, it’s never dark, you’re never alone, it’s never quiet,” Spakes says.

His choice was to break the law and bust out with these violent men, or ask a prison system he didn’t trust to protect him.

Spakes chose to escape. But he figured he could convince his cellmates to try something less dangerous and thus save both his life and the guard’s. He had once worked in construction, so he came up with a plan to get out through the prison’s ventilation system. He knew the boiler room door to the outside, by law, had to remain unlocked to prevent people from getting trapped inside.

“It worked just like that. And soon as we opened the door into the alley, closed the door, they took off, running across the street and I went in a different direction. I didn’t want to have anything to do with them.”

Here Spakes had another choice. He knew under the law, that he should turn himself in. But he was afraid to do that in this jurisdiction. He just wanted to get somewhere he felt safe.

“I wanted to contact my attorney first and I thought if I call my attorney, come get me, then we’ll take care of this,” he says

He decided to walk to the neighboring county. He walked for hours in the cold until he reached a church. “So I went inside and got a drink, and this gentlemen came out and said, ‘What did I need?’ and I said ‘I would like to make a phone call and call my attorney.’ And he said, ‘All right Jack, we know who you are.’”

The man happened to be an off-duty police officer. He brought Spakes back to prison. Now he faced escape charges—a serious felony. “Well, the jury came back and gave me 60 years. I didn’t think that I really should really get that,” Spakes says. “I felt that I was justified in committing an escape because it was the lesser of two evils. Should I die? Should I let them kill somebody?”

Spakes spent day after day in the prison’s law library. Surely the law had something to offer him. And it did – a little. Spakes came across something called “the defense of necessity.”

“In other words, I did this but I’m not guilty,” says Spakes.

The necessity defense is one of the biggest longshots in the law books. Under it, a defendant basically tells a judge: “Yes, I broke the law. I admit it. But I had no choice. And you should be merciful.”

“Why does the defense of necessity exist? It exists because there needs to be a place in the law to deal with extreme and rare situations where there are really no other defenses available to be considered,” says Joshua Dressler, a professor of law at Ohio State University. He wrote about necessity in a casebook used by hundreds of law schools. “The necessity defense is saying that people should be entitled to cause harm if it’s to prevent a greater harm and that the law is on your side.”

Dressler says necessity is not a popular defense in the U.S. because it almost never succeeds. To understand why, you actually have to go back to a case that happened in England more than a hundred years ago:Regina versus Dudley and Stephens.

Jim Brown is a local historian in Southampton, U.K.  He brought me to the memorial stone of the victim of the case. The stone is made of granite, laid down flat, with big, bold print etched onto its surface. A bouquet of fresh flowers lies in front. He reads out the etching: “Richard Parker was killed and eaten by Tom Dudley and Edwin Stephens to prevent starvation. Regina versus Dudley and Stephens, 1884, established the precedent that necessity is no defense against a charge of murder. Concerning survival, cannibalism, following the shipwreck, the case overturned the folklore of the Custom of the Sea.”

The dinghy used by the four seamen after a storm wrecked their boat, The Mignonette Copyright:  130 years old (taken at a charity event to raise funds for the accused)

The dinghy used by the four seamen after a storm wrecked their boat, The Mignonette
Copyright: 130 years old (taken at a charity event to raise funds for the accused)

The case goes back to a journey by a British yacht on its way to Australia. After nearly two months at sea, things took a turn for the worse with a tropical storm. The ship’s stern was damaged, and it  started to sink. The crew managed to get the ship’s 13-foot dinghy over the side, but then were stranded at sea in this vessel.

“They had no water except for the rains that came, and they had nothing to eat except a couple of tins of turnips,” says Dressler. “So basically, after three weeks, they were starving…and they didn’t have any reason to think they were going to be rescued anytime soon.”

The 17-year-old cabin boy, Richard Parker, had been weakened by drinking sea water. The other three “discussed the idea of that maybe one of the men should be sacrificed, and then the others could eat the remains of that person in order to survive long enough to be rescued,” Dressler relates.

And so, Jim Brown says, the captain and one other crew member killed Richard Parker: “They cut his throat, drank his blood, any moisture they could get and they ate his liver and his heart, while it was still hot, cut it into strips. And that continued for the next five days. Then they were rescued by a passing boat.

After the rescue, Dudley was convinced that others would accept what happened. Cannibalism by stranded sailors is harsh, but not unheard of. “And so when they returned to land, he was very up front up about, explained what had happened and so was very surprised when he and Stephens were charged with murder,” Dressler says.

They went on trial in December 1884. The publicity was huge on both sides of the Atlantic. In the end, the presiding judge, Lord Coleridge, ruled that the sanctity of life trumped all other concerns for survival. Dudley and Stephens were convicted of murder and sentenced to death.

“That decision basically suggests that there is no defense of necessity when a person kills an innocent individual, even if it saves five lives or one hundred lives, it won’t matter,” Dressler says

Although they lost on paper, Dressler says public support for the sailors remained so high that their death sentences were eventually commuted to just six months imprisonment. Even the family of the victim, Richard Parker, sided with his killers.

The memorial to Richard Parker in Southampton, England (a recreation of the original). Etched into its surface is: “Lord lay not this sin to their charge”, suggesting the family forgave both Dudley and Stephens for murdering Parker. Photo credit: Cheryl Brumley, 2014

The memorial to Richard Parker in Southampton, England (a recreation of the original). Etched into its surface is: “Lord lay not this sin to their charge”, suggesting the family forgave both Dudley and Stephens for murdering Parker.
Photo credit: Cheryl Brumley, 2014

Historian Jim Brown is a distant relative of Parker’s by marriage. He says the family struggled with the wording of the memorial: “’Lord, lay not this sin to their charge’ was put there at request of Richard’s older brother, because they had a lot of sympathy for those who ate him and killed him actually because it was almost the law of the sea, out of necessity,” says Brown. “They saw the logic in it, he was dying anyway and in his death, he could save others. So they felt it was justified, it was simple as that really,” he adds.

Still, the judge felt otherwise. And it’s his verdict lives on in the United States today. As a result, Dressler says, it would be almost impossible to argue here that you had to murder an innocent person. But necessity does come up from time to time in other cases.

Call it the Hail Mary Defense. That’s the position Gerald Uelman says he found himself in. Uelman served as pro-bono counsel in the 1990s for a group of marijuana cultivators, the Oakland Cannabis Buyers Collective . The group had grown and distributed medical marijuana legally in California until the federal government ordered them to stop. They refused on the grounds of “medical necessity,”arguing that marijuana made life bearable for clients with chronic conditions like AIDs, glaucoma, and cancer.

Gerry Uelman is no stranger to tough cases. He was a member of OJ Simpson’s so-called Dream Team. But he says arguing necessity before the Supreme Court? That was tough. “The result was pre-ordained. There’s no way that they were going to permit this regardless of what arguments we made,” he says.

Still, it kept the cause alive a little bit longer. And maybe that’s why necessity was also popular argument on the part some Vietnam War protesters charged with trespassing and other crimes.

“They would argue that…I’m trying to do stop a war…therefore I’m doing the lesser of two harms by trespassing, non-violently on property in order to prevent violence in Vietnam,” Dressler says. “And usually when those kind of cases occurred, judges wouldn’t even permit the jury to consider the defense of necessity.”

So cannibals, cannabis-growers, and activists all tried and failed with the necessity defense. But there is one place—at least in US law—where it sometimes works: prison escapes. Back in Texas, inmate Jack Spakes was serving an extra 60 years on his sentence for escape. But the necessity argument gave him hope. He’d run across a case from the 1970s, “The People v. Lovercamp ,” which set out five conditions for necessity to escape.

So Spakes worked up an argument with his attorney. In court, though, the judges weren’t sure whether he met the final condition: “The person immediately reports to the proper authorities when he has obtained a position of safety from the immediate threat.”

Spakes argued in return that the prison he escaped from was not a safe place. His case made it up to the Texas Court of Criminal Appeals, the highest court in the state, and a place necessarily known for taking an inmate’s side.

In the end, the judges made a surprising ruling in Spakes’s favor. They weren’t just thinking about Spakes’s situation; they were also reviewing how lower state courts had handled necessity. In the end, the judges held that Texas courts actually have no business denying the necessity defense: Not to Jack Spakes, nor anyone armed with a credible necessity argument who is brave enough to try it out on a judge or jury. The Court would leave that up to the satelegislature to decide whether the defense could or could not apply to a specific charge.

“I know of frankly no other state that takes that position. Whether other states will look to Texas, remains to be seen,” says Dressler.

“It’s a landmark decision in the state of Texas now. I feel proud that I was able to put the pieces together and make a complete picture of the puzzle,” Spakes says. He is now out of prison on parole.

But he still goes back to talk with inmates about getting an education. And once, he was approached by one of the former cellmates—apprehended the same day as he was—who’d forced him to choose between escape or death. “He started crying, and he came to me and hugged me. He said: ‘I am so glad I did the things you told me to do. I started studying the law. I’m going to start getting an education.’ I told him, ‘The more you learn the more you put in your head. They can’t take that away from you. Get off the weights. The weights won’t keep you out of prison. But knowledge is something that will never be taken away from you.’”

Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College was the scholarly advisor on this story.

Cheryl Brumley works at the London School of Economics, producing narrative podcasts for their award-winning academic blogs.   She is also a freelance radio reporter, producer and researcher, and worked at the BBC World Service/Global News division and for the weekly radio show, The Forum. Previous to working in radio, Cheryl worked in the British House of Lords and at an NGO in Amman, Jordan.

Life of the Law #33 - The Hardest Time: Moms In Prison and an interview with Piper Kerman

From Life of the Law | Part of the Life of the Law series | 24:57

Mother’s Day is the one day of the year we set aside to honor mothers. Some do it with flowers and cards. For women who are in prison and their children who are being raised by grandmothers, aunts or guardians on the outside, the day can be especially difficult. In California, non-profit organizations, volunteers and the prison system work together to bring the children of incarcerated mothers to the prisons throughout the month of May so they can spend one day celebrating motherhood. Throughout June, Get on the Bus works to bring children to see their father’s who are incarcerated in celebration of Father’s Day.


On a recent Saturday, I went to Folsom State Prison Women’s Facility to see what “Get on the Bus” is all about.  It took more than an hour for the toddlers and teens and their guardians to get through security, but when they finally burst through the doors and onto the women’s yard where 30 mothers were waiting, it was pure happiness.

Part 1

Prison Nurseries

By Audrey Quinn

The ongoing separation of imprisoned mothers from their children is fraught for everyone involved including the prison system itself.  Life of the Law sent reporter Audrey Quinn out to look at some alternatives to this kind of traumatic separation. The programs are few and far between, but show ways the system can lessen the punishment on young children as their mothers serve time.

Audrey’s Story:

On January 29th 2013, Diana was on her way to get a sonogram.

“And the minute I turned on my car,” she remembers, “they pulled up on the side and told me to get out the car. They put the handcuffs on me and took me in.”

Diana asked us not to use her last name for reasons related to her arrest. She’s a 23 year old from Queens, New York. That day in January, she found herself in a jail cell at Rikers Island, seven months pregnant.

“They had told me that I was under arrest because of what my boyfriend did,” she says.

Her boyfriend, the baby’s father, had gone to jail ten days earlier. He’d sold drugs to an undercover cop. The cop had come to their home and caught the sale on video.

“I was in my room minding my business,” she says of that day, “when the officer came in, and my boyfriend had called me and told him to pass him a bag that was in the room. And that’s where the drugs came out of. And that’s what I’m in the video doing, just giving the black bag.”

Diana faced a felony charge as an accomplice to a drug deal. She says nobody at Rikers would really tell her what was going on.

“At first it was like I couldn’t sleep,” she recalls. “I was scared of, maybe if I’m sleeping somebody decides to come behind me and hurt me or something. Because I’m pregnant and they feel like I can’t defend myself. It was really hard.”

She says she did get medical care. “They would give me my prenatal pills. If I were to get sick or whatever they would take care of me, they had their nurses who would help us.

“They fed us, “ she continues. “I mean, the schedule wasn’t all that great and the food wasn’t all that great but at least they fed us. I would sometimes not even eat because the food was so nasty. But I was pregnant: I had to feed my son so I had to force myself to eat.”

Diana later found out that pregnant women at Rikers get taken to a hospital to give birth. But she didn’t know that while she was at the jail.

“I was just thinking the crazy things that would go on if I was to give birth in there,” she says. “I just thought, honestly, that they would take the baby away, and either a family member had to pick him up and take care of him, or the system took him.”

Diana’s story is more common than you might expect. Four percent of women prisoners enter prison pregnant – that results in thousands of babies born in the correctional system each year. But as far as what to do with these babies, or their mothers, the US lacks any national policy .

In most European countries , incarcerated mothers keep their newborns in prison with them through preschool age. The US followed the same protocol until the 1950s, but by the seventies, most states had ended these programs.

New York is one of the only states that still has a small prison nursery program, and Bedford Hills Correctional facility has the oldest prison nursery in the country. In 1998, Mary Byrne , a professor at Columbia University School of Nursing, visited Bedford Hills with some students.

“As I discovered the prison nursery,” she says, “my question was…‘Is this good idea?’”

Byrne wondered if kids could develop normally after starting life in prison. Advocates believed that keeping a baby together with his or her imprisoned mom could help the mother-child bond, but few had researched the topic. Byrne decided to study prison nursery moms and their kids.

Women who are pregnant when they come to Bedford Hills can apply for the prison nursery. Only a few dozen are accepted – the rest have to give up child custody while they serve out their sentences. The prison superintendent at Bedford Hills makes that decision, and those who are chosen are allowed to keep their babies in prison for a year, sometimes longer if they’re getting out soon.

“To me,” Byrne says, “what I would liken it to, as I watched the mothers raise these infants in this setting, is that it was very much like working mothers on the outside.”

While Byrne was at Bedford, two or three mom and baby pairs shared a room, housed in a separate wing from the other prisoners. These days, there are fewer women in the nursery, so each pair has a room to itself. In the mornings, moms go off to their prison jobs and their babies go to the nursery, like kids outside of prison go to daycare. The moms also receive parenting classes.

A Department of Corrections study found having a baby in a prison nursery makes a woman twice as likely to stay out of prison later. Byrne decided to conduct her own research , following sixty of the babies from the Bedford prison nursery until the age of eight She compared their development to kids in the general population.

“The children overall did very well,” Byrne concludes. “The children are for the most part in their grade for their age level and doing well in school. And their parents send us pictures and report cards, unbidden, and letters, and are really so very proud of their children’s achievements.”

Byrne’s most surprising finding has to do with attachment.

“There’s a process,” she explains, “that goes on through the first two years of a child’s life, related to being able to identify a primary caregiver, investing trust in that caregiver, and knowing that that caregiver will be there in times of fear, or illness, or loneliness. So the child can wander away and try out new things, but has a secure base to return to, and feel protected.”

Byrne interviewed moms in the nursery, and found most of them lacked this kind of secure attachment with their own parents. Most researchers agree that if a mother lacked attachment growing up, she will find it difficult to ensure that her own children attach. But Byrne found that 70 percent of the babies she studied managed to form secure attachment with their moms – more than in the outside world.

Despite these findings, prison nurseries are extremely rare. Byrne once counted all the available spots in prison nurseries across the United States and found only 135. Which means, for all intents and purposes, a baby born to a mom in a US prison is a baby that will not know his or her mom, maybe for a long while.

Georgia Lerner leads the Women’s Prison Association in New York. She says support for moms shouldn’t have to be found in prison.

“They are not really places that are supposed to be schools, psychiatric hospitals, medical hospitals, childcare facilities. They were not designed to provide all of these services. And it’s one of the reasons I don’t think it makes a whole lot of sense to send so many people to prison when there are so many issues that could be better addressed in the community where we already have schools, we already have healthcare facilities, we already have mental health providers.”

The Women’s Prison Association started in the early 1800s. Back then, they had to make sure woman got their own prisons, apart from men. These days, they focus on keeping women out of prison when possible – including Diana.

After seven weeks at Rikers, Diana got out on bail just before she gave birth. Her grandmother took her in, to her apartment in Queens. Diana was still going back and forth to court. If she didn’t plead guilty, the judge told her she’d face three to five years in prison.

If Diana did plead guilty, she could get into a drug recovery program instead of doing time – a common occurrence for drug offenders, even non-addicts like Diana. But the drug program was residential, so she’d have to leave her son.

Fortunately, the district attorney put Diana’s public defender in touch with the Women’s Prison Association. They’ve convinced courts to try community-based alternatives, programs that let women stay at home with their kids. They interviewed Diana to make sure she was a good fit for an alternative to incarceration program, and eventually accepted her. For six to eight months, Diana will meet with a counselor and go to group sessions, all while she’s on probation.

Even though alternative to incarceration programs are expanding, more and more women are still going to prison. The US now incarcerates six times as many women as it did thirty years ago. Many of those women are mothers.

Tamar Kraft-Stolar is the director of the Women in Prison Project at the Correctional Association of New York, an organization that monitors women’s prisons in the state.

“If you had to pick probably a defining legacy of the incarceration of women,” Kraft-Stolar says, “it would really be the destruction of families.”

Two months into her alternative to incarceration program, Diana says, “I honestly wish it wouldn’t ever be over.

“I thought [the program] was just going to be about jail and drugs, but it’s not,” she continues. “It’s more so learning about yourself and listening to others stories. I really like group.”

Diana’s support group meets every Friday, and her counselor comes to the house three times a week. She has another four to six months to go, depending on the judge’s determination of her progress.

The boyfriend is serving a nine-year sentence in an upstate New York prison. Diana and the baby visit him every couple of weeks, but Diana’s counselor’s helping her move on as a single mom. She’s still living at her grandma’s place, but she’s working on financial stability, applying for jobs in retail.

She’s also thinking about going back to school, getting a degree. But for now, Diana says she just feels lucky to be with her son.

“He makes my day just got by faster,” she says with a smile. “He doesn’t really cry much; he’s just a happy baby. I’m blessed.”

Part 2

Pregnancy and Prison

By Nancy Mullane

Nancy Mullane with Piper Kerman

Nancy Mullane with Piper Kerman

Piper Kerman spent nearly a year in federal prison, and tells the true story about her experiences in the book, “Orange is the New Black.” The book is also the basis for the Peabody Award -winning series on Netflix. The show’s dark humor and plot twists have both surprised and disturbed viewers, particularly when it comes to pregnant inmates. She’s not an activist for prison reform, and speaks out on behalf of prisoner rights. Recently, I had the chance to speak with Kerman in San Francisco for the City Arts and Lecture’s series. Afterwards, I asked her about how pregnant women and mothers are treated in America’s prisons. Kerman believes women who are pregnant should not be incarcerated at all, unless it is absolutely necessary.

Piper Kerman and Nancy Mullane


City Arts and Lectures, San Francisco, March 31, 2014

Get on the Bus Program

Life of the Law #44 – Living With Wolves

From Life of the Law | Part of the Life of the Law series | 16:25

Bringing wolves back to the West has tested the legal system’s tolerance for restoring wild places ­­ Especially when humans live nearby. This year, the Endangered Species Act is at the center of a debate that will determine how that landscape looks in the future and whether wolves will still live there.


The gray wolf only roams a fraction of its historic range. While it used to inhabit huge parts of the

U.S., it’s now confined to just a few states. But last winter, the US Fish and Wildlife Service proposed taking it off the endangered species list throughout the entire lower 48 states, because in that small area, wolves are thriving. It’s the first step in what could be a radical reinterpretation of the Endangered Species Act, with ramifications far beyond wolf country.

Since the Endangered Species Act (ESA) passed in 1973, the government’s had lots of experience with listing species as endangered. Not so much on the delisting side of things. In 40 years, only 60 or so species have come off the list. We don’t really have a consistent standard for when to call a species recovered, in part because we can’t agree on what “recovered” means.

Where the wolves live big pie or small pie?

Photo Credit: Jason Albert  Caption: An abandoned wolf den in Yellowstone’s Lamar Valley.

Photo Credit: Jason Albert
Caption: An abandoned wolf den in Yellowstone’s Lamar Valley.

To make these decisions, we need to understand a key word: “range.” The ESA says a species should live where they’re meant to live where they’ve always lived.

Dan Rohlf of Lewis and Clark College School of Law has written a definitive guide to the ESA.  “The law basically says we want to prevent human actions from causing the extinction of species,” he says.

As we work to recover species and ultimately remove them from the endangered list, we need to decide where in fact a species is endangered and where it’s recovered. “The Endangered Species Act also includes a legal definition of endangered species as a species in danger throughout all or a significant portion of its range,” says Rohlf. “And so that leads to the question of well what is a significant portion of the range of a species?”

More importantly, he adds is the question, does that mean a significant portion of the historic range, or a significant portion of the current†range? In the case of wolves, these are two very different things, and what the law means depends on which one you choose.

Let’s think about it in terms of the size of a pie. The wolf’s historic range is almost the whole lower 48 states. Rohlf says that would be a pie like your grandma might have made. “That pie is a big juicy delicious pie,” he says. “A significant portion of that pie is a lot of pie. But if you’re talking about a little prepackaged tiny pie that you buy in the convenience store, that’s a very small pie.”

In July 2014, The US Fish and Wildlife Service basically said wolves now only live in a small pie just five states. But in those five states, they’re doing well. This way of interpreting the law may have major implications for biodiversity. “The effect of that determination is that we can call species recovered,” says Rohlf. “We can say we have achieved conservation success, that their future is relatively secure. But their distribution will be only a small portion of their historic distribution.”

I set up an interview with the US Fish and Wildlife Service. But then a federal judge ruled in a critical case involving gray wolves in Wyoming. They cancelled the interview, and emailed me to say that they’d be able to “reengage after the dust has settled”. But the gist of their stance on wolves has two threads.

First, they say, it’s costly to restore a species, and resources are scarce. Second, and it’s worth mentioning this again, under their new interpretation of the Endangered Species Act, gray wolves don’t actually need more restoring. In the places where they’ve recovered, they’re thriving. Thus, the reasoning goes, they’re recovered in a significant portion of their current range.

The letter vs the spirit of the law

Photo Credit: Jason Albert  Neil Courtis points towards a game trail in Yellowstone’s Lamar Valley.

Photo Credit: Jason Albert
Neil Courtis points towards a game trail in Yellowstone’s Lamar Valley.

In 1973, Congress recognized that a complete ecosystem had “esthetic, ecological, educational, recreational, and scientific value to our Nation and its people.” The ESA is the law that enshrines those values.

But focusing on species current, rather than historic, range, means we might be preserving an approximation of nature as it was. Rohlf says this perspective has critics. “The main criticism you see of that idea is that it’s really a museum approach to conservation,” he says. “It’s almost like we put these species under glass and we say, if you want to see Gunnison’s Prairie Dogs you go to this little tiny area over here. And if you want to see wolves you go to Yellowstone National Park. And we are really just preserving remnants of a species population as if we were preserving artifacts in a museum.”

There are also practical reasons to preserve species in more than a small area. John Vucetich, a wolf ecologist at Michigan Tech University, says the findings section of the ESA the section of the law explaining why we need it in the first place addresses the fundamental reasons the government should use a species’ historic range when making determinations about recovery. “The findings section of the ESA indicates that species have a variety of values and one of the values is ecological value,” he says. The government should be cautious about delisting any species. Thriving species contribute to healthy ecosystems. And until we fully understand those systems’ complexity, he says, we should do our best to keep them intact.

“If a species is valuable for its ecological function, it would have to exist in the places it’s supposed to exist,” he says. “Not just in the fewest number of places possible to prevent it from going extinct.”

Living with wolves

Wolves on the landscape may benefit ecosystem health, but how we interpret the law has a more immediate effect on where wolves live and how we live with them. That’s particularly true in Idaho where I meet wolf hunter Nick Brown. It’s legal to hunt wolves in Idaho, and Brown secures his wolf hunting tag for $11.50 from Idaho Fish and Game.

We drive about an hour north of Boise. Brown hops out of his pickup and chambers a round in a slick looking AR15 rifle. With the rifle slung over his shoulder, we begin walking down an old logging road.

“I started hunting wolves a couple years back,” Brown tells me. “I’ve always hunted big game animals, elk, and deer…ever since I was a young kid. And in just my lifetime I’ve noticed a huge decline in the amount of mule deer and elk.”

Brown sees hunting wolves as a way to increase the populations of the big game he likes to hunt. He’s of the school that fewer wolves mean more elk and deer and that’s a good thing. Hunting is big time here. That’s the core of the conflict: humans and wolves compete directly for the same prize. But it doesn’t necessarily mean they’re enemies. In my search to find a wolf hunter who’d talk to me on the record, I was thinking I’d only find someone downright pissed: pissed that wolves were back on the scene, angry in a “get off of my land” kind of way. But Brown has a more complex view of things.

“I was probably in third grade when they reintroduced wolves to the state of Idaho,” he recalls. “My entire school went into the cafeteria and we watched them release wolves and I just thought that was the coolest thing in the world…cool enough that I went home and asked my mom to take me to the public library so I could get books on wolves. I have no personal vendetta against the wolves,” he adds.

The conditions aren’t ideal for hunting wolves. It’s bone dry and hot, and wolves are hard to track without snow. But even in perfect conditions, Brown hunts methodically? relying on craft and a huge dose of patience. He tells me that last winter he spent 10 weekends in a row hunting an isolated group of wolves. He ultimately had them within a square mile. But one day, after stalking the wolves up and over a ridge, he lost their trail. “They were gone like a ghost,” he says. “They just disappeared.”

Brown says there’s a stereotype of a wolfcrazy hunter, hunting them to extinction. He said that’s not reality. I ask him how many rounds he shot in those 10 weeks. “Zero,” he says. “Zero.”

The court weighs in

Photo Credit: Jason Albert  As of late September 2014, Wyoming’s gray wolves were returned to the Endangered Species List.

Photo Credit: Jason Albert
As of late September 2014, Wyoming’s gray wolves were returned to the Endangered Species List.

Idaho and Montana issue thousands of wolf tags each year. Even though wolves can be hard to find, those kills add up. There are about 1500 wolves in that region now for perspective, scientists consider around 1,000 wolves the minimum viable population. The question of numbers came up in Wyoming last September. That’s when a federal judge in D.C. relisted wolves as endangered there. This is the big case about gray wolves in Wyoming I mentioned earlier.

Jim Magagna is the executive vice president of the Wyoming Stock Growers Association. He says ranchers are at odds with wolves since they occasionally prey on livestock. Since the ruling, it’s been a topsyturvy few weeks for his group. One day, in most of the state wolves were legally categorized as predators anyone could hunt them at any time. The next day, after the ruling no wolf hunting.

The issue was Wyoming’s system of dividing wolf territory into “predator” areas and “trophy” areas. The predator areas were shootatwill, while trophy game areas had annual limits. It was the state’s way of trying to follow federal law while allowing ranchers a lot of freedom.

In the trophy area, Wyoming was obligated to maintain a “buffer” population of wolves. But that obligation rested on little more than a handshake. “Ah, you know in the old west your handshake was your bond,” says Magana. “And so the socalled handshake between the state of Wyoming and the US Fish and Wildlife Service should have been honored by the judge.”

By which he means: the specific rules for the trophy area were never part of the law. They were just taken on good faith. Unfortunately, handshakes often don’t hold up well in federal court. In her ruling, judge Amy Berman Jackson refers to the trophy area as the weak link.

She writes: “the court concludes that it was arbitrary and capricious for the Service to rely on the state’s non-binding promises to maintain a particular number of wolves…” The handshake wasn’t good enough.

Still, her ruling didn’t change the bottom line: even though there’s a little legal confusion in Wyoming, she agreed with US Fish and Wildlife that wolves are still basically recovered.