Wednesday, June 18, 2014

Congress, The Evangelical Lutheran Church in America and Me: Part II, Quotes From The Study

What follows are direct quotes from the 50-page final social statement adopted by the ELCA.

Social Statement Document

Because mass incarceration causes significant harms, both personal and social, the ELCA strongly urges those who make and administer correctional policies to take all appropriate measures to limit the use of incarceration as a sanction for criminal offenses. Toward that end this statement identifies three specific paths: pursue alternatives to incarceration, reform sentencing laws and policies, and closely scrutinize national drug policy.

A fundamental transformation of mindset about criminal justice is required that challenges the logic equating more punitive measures with more just ones.


As this statement is adopted, one in 34 adults in the United States is under some form of correctional control and more citizens are imprisoned as percentage of the population than in any other country on earth, even those with comparable crime rates. The U.S. spends 60 billion dollars every year for corrections alone and they who work in the criminal justice system of then feel stressed to the breaking point. People of color and people living in poverty are disproportionately harmed by problems within the system. Concerned that so many cries- from victims, the incarcerated, their families, communities, those wrongly convicted, those who work in the system- have not heard, the ECLA is prompted to speak and act.

Often we have been negligent or allowed fear or bias to dictate responses to crime.

Over the past generation, the adjudicative process has been significantly affected by changes to sentencing policies. This church affirms the importance of equal treatment in sentencing, but expresses the concern that sentencing reform has become synonymous with increasingly harsher sentences.


Massive overcrowding contributes considerably to the dehumazing problems in the U.S. prison system. Inmates fear physical and sexual violence from each other and staff and worry about threats of future violence if reported. Gangs often control the culture of prisons. Inmates are powerless in interactions with correctional staff, some of whom degrade inmates through language and physical intimidation. All inmates experience despair from lack of control and inexpressible loneliness from separation.

Massive overcrowding today worsens conditions to the point of inhumane treatment of the incarcerated. Dangers to physical safety are real and declining health through poor conditions is likely. Cost-saving measures have caused some governments to contract with private firms to incarcerate offenders, raising many ethical questions.

A contributing factor to inhumane conditions involves the increased proportion of the mentally ill in jails and prison, currently well over half of the population. As the institutionalized mental illness population of the U.S. has been reduced by more than 80 percent over recent decades, many of those released have ended up homeless or in prisons. Imprisonment is not therapeutic by nature. Placement in jails and prisons has the effect of criminalizing mental illness, and puts the mentally ill at risk for exploitation by other inmates. The incarceration of those with special needs without sufficient services contributes considerably to prison volatility. The ELCA has addressed the needs of people living with mental illness and noted problems related to the incarcerated in its 2012 social message “The Body of Christ and Mental Illness.”

Reform sentencing laws and policies

Numerous sentencing policies have been adopted since the 1980s, including mandatory minimum sentences, habitual offender laws, truth-in-sentencing laws and sentencing guidelines. Their implementation has led to increases in the use of incarceration and in the length of sentences, and has limited judicial discretion in the sentencing process.

Mandatory minimum sentences that impose lengthy fixed punishments on offenders and prohibit judges from considering mitigating factors, have been used most extensively in response to drug-related offenses.

There is mounting and persuasive evidence that the war on drugs has had a disproportionate impact on people living in poverty and people of color. Law enforcement practices regarding drug offenses often have targeted disadvantaged communities, and the sentencing policies regarding drug crimes have had racially disparate effects. Despite the fact that Caucasians and African Americans engage in drug offenses (both possession and distribution) at similar rates, Black people have been far more likely than White people to be arrested for drug offenses.

First, the criminal justice system must acknowledge the racial disparities, and address the implicit and explicit racism that persists there; second, it must recognize the special needs of juvenile offenders; third, it must stop the privatization of prison facilities; and fourth, it must foster the full reintegration of ex-offenders into the community.

Racial discrimination

Acknowledge racial disparities and end discrimination

Recognize the special needs of youth offenders

Aware of the mounting evidence of the system’s deep and abiding problems, the ELCA calls for the adoption of a variety of reforms. The leading concern is to decrease the incarcerated population, but other reforms delineated in this statement are significant in their own right.

At a deeper level, however, this statement recognizes that a more fundamental transformation in thinking about criminal justice is required. It calls for a transformed mindset, one that counteracts the logic equating more punitive measures with more just ones. This mindset challenges current undertones of vengeance, violence and racism and permits everyone in the criminal justice system to be seen as members of human communities, created in the image of God and worthy of appropriate and compassionate response.

The ELCA recognizes that retreat from unduly harsh sentencing policies and the over-utilization of the incarceration may be motivated by economic factors, rather than by a moral critique of the way the system functions. Improvement for any reason is important to the individuals involved, but this church maintains that responses to criminality should be made on theological, moral and rational grounds as well. Changes made simply for economics are less likely to endure.

Today it is important to join with others of good will to challenge the flawed public consensus about crime and criminal justice. Until a shift occurs in the public consensus, criminal justice policies likely will persist that recognize neither the injustice nor the inefficiency of many of our current responses to the crime.

The ELCA therefore recommits itself to ministry with, for, to and among the many, many people whose voices cry out within our criminal justice system. “For what does the LORD require of you but to do justice, and to love kindness, and to walk humble with your God?” (Micah 6:8)


Related to mass incarcerated rates is the troubling emergence of much more punitive attitude toward the incarcerated. As the population grows, services are being greatly reduced or eliminated, such as educations and recreational opportunities or access to counseling and spiritual care.

Since 2004, more than 20 states have enacted or proposed legislation to reform sentencing policies. These legislative changes have focused on several types of reform. Primary attention has been given to increasing sentencing options that divert drug offenders from incarceration to community-based treatment alternatives and expanding sentencing alternatives to incarceration for other non-violent offenders.

Author’s note: Compressing 50 pages into two and a half is not the best way to pay justice to the task force and all the work they did conducting the study over the five years, but it is a start in echoing the words of wisdom found in the report. They are well written and coincide with many of the philosophies of my own work.


Wednesday, June 11, 2014

Congress, The Evangelical Lutheran Church in America and Me: Part I

Through the power of free speech, it is discovered that some minds are actually aligned with the author on these issues.

Sentencing Reform Pushed In Congress

Key Quotes from the Reading Eagle, 1-5-14:

"About half of the nation's more than 218,000 federal inmates are serving time for drug crimes and virtually all of them faced some form of mandatory minimum sentencing."

"...the Smarter Sentencing Act. It would expand a so-called safety valve already on the books that gives judges discretion for a limited number of nonviolent drug offenders. The new law would give judges the same latitude for a larger group of drug offenders facing mandatory sentences."

On Jan. 5, 2014, the Sunday edition of The Reading Eagle published a story titled "Sentencing Reform Pushed In Congress." President Obama, along with his cabinet and Congress, raised the issue of a change in mandatory sentencing, particularly for nonviolent drug offenders. For my readers, does this ring a bell? As a result, Congressional sub-groups are pursuing are pursuing the elimination or the drastic change in mandatory minimum punishments amid growing concerns that the sentences are both unfair and expensive on the dollars again, does this ring a bell?

The Evangelical Lutheran Church in America
I was not aware that about the time I began writing my book, Justice or Just This: A Constitutional Trespass, a blue ribbon committee of criminal justice experts from different parts of the country had begun in 2005 a five-year study that culminated in a 50-page social statement. It immediately faced two years of study and discussion and was completely adopted at the national E.L.C.A. Church Assembly in Pittsburgh in August 2013.
I learned of this work when the study was published three years ago. I am proud to say that I then participated, along with Bishop Samuel Zeiser, in the 15 county regional education seminars organized by the Northeast Synod of the ELCA (visit to learn more about this process).
I can summarize the work of those who developed the social statement by simple stating that I agree with its contents entirely. The report underlines the unanticipated and, thus unpredictable by-products, of our country's, 'tough on crime' philosophy, which has produced thousands of examples of incorrect, unjust unfair and illogical tragedies that criminal justice professionals have witnessed with horror, but were powerless to do anything about it.
"There's a Monster on the Loose." Sadly, that's what exists because so many people recognize the wrongs that have been created, but legislators do not pass laws to return sentencing discretion to the judiciary by nullifying mandatory minimum sentencing and disbanding the Pennsylvania Commission on Sentencing. Judges are practically in office for life (at least one 10-year term) and thus are about the only people who can impose the sentences that need to be ordered rather than what is popular for re-election by throwing everyone in jail regardless of circumstances. I have mentioned several times that Pennsylvania legislators, both on and off the record, have admitted their mistake, but that they are afraid to eliminate mandatory minimum sentencing because the average voter will listen to the soft on crime rhetoric released by their opponents. Obviously the legislators fear that they will be voted out of office for not being tough. Tough on crime, what ever that means, is the image they seek. Soft on crime, which again is an arbitrary phrase, is a campaign flaw in the eyes of the average voter. We must insist that our elected officials slay the monster or it will continue to grow.
Please keep in mind that the term 'prison overcrowding' is a recent phenomenon that began immediately after Pennsylvania Commission of Sentencing became law in 1982. Within two years, Pennsylvania began building more new prisons (16 in the next 14 years) than the eleven built during the entire 160 years 1982!
I implore the reader to demand the elimination of the Pennsylvania Sentencing Commission, which in reality really determines what sentences are imposed in our state. Elimination is the only improvement that can be made because nearly everyone follows the Commission's guidelines as if they are gospel. Consequently, even judges, year after year, follow the guidelines, and thus sentences are consistent with the commission's guidelines 90% of the time. Mandatory minimum sentencing must also be eliminated. When these reforms are applied, judges will be forced to intelligently decide every sentence in Pennsylvania. The judge will be responsible, not the prosecutor or the sentencing commission. And that is the way it has to be.
I must stress that both mandatory minimum sentencing and commissions on sentencing are recent events. Both grew in acceptance and thus opened throughout the U.S, in the last 40 years. For our entire history, Pennsylvania judges did the sentencing until someone got the bright idea to control judicial discretion and make sentencing a numbers game. The sentence is now determined by what point values are placed by the commission on prior offenses. That point value is then plotted against the new offense. The point values and the plotting of them allow anyone to compute the standard, aggravated and mitigated sentencing ranges for the prosecutor to offer as a plea deal.
The concept spread to all states and to federal government only because it was a no-brainer for legislators to vote to pass the laws. To do so shows they are tough on crime. It was free publicity stating that the legislator is doing his/her job by controlling sentencing and ensuring that judges impose sentences consistent with each other based on the plotting of the two factors. Simply put, everybody is treated the same. Justice requires that sentencing be consistent and the legislator is assuring that result. It is a simple winning concept.
The only problem is this is a myth. Offenses are charged and negotiate differently throughout the state depending on many variables: 1) the age, experience and philosophy of the police officer; 2) the volume of cases in the municipality; 3) the justice philosophy of the prosecutor; 4) the volume of criminal cases in the system and how many full is the jury trial list; 5) the age, health and related factors of the victim determining the likelihood that the victim will be available to testify at a trial; 6) how much of a priority a guilty plea is to save further exposure of the victim to reliving the case by testifying in a jury trial; 7) whether the defendant has private council or a public defender; 8) the experience, ambition and capabilities of the defense lawyers; 9) whether witnesses are cooperating and willing to testify. 10) whether the socioeconomic and political strata of the electoral voting public that elects the prosecutor and the mayor of the police department is blue collar or white collar.
The President, Congress, and the E.L.C.A. have all (finally) raised the need for reform. More citizens are learning that sentencing commissions and mandatory minimum sentencing practices were not the answer, and that their existence actually made matters worse. When will it change?
Next week in Part II: Quotes from sections of the 50-page report of the Task Force of the Evangelical Lutheran Church in America.

Wednesday, June 4, 2014

Nature’s Call?

       From my archives of more than 20 years is a news story that delivers the message that truth is stranger than fiction. Truth can be strange because people do strange things. But, we are only human, and that applies to every class, race, sect, religion and profession. We all make mistakes. Is there a second message here?

     People with great authority do sometimes abuse it and this has been seen many times in many places, including police departments, both large and small. That’s the other side of the coin. The tragedy is that some of these abuses have resulted in years of punishment for people who could not be proven guilty beyond a reasonable doubt without such police misfeasance. The sadness continues when the abuse by the officer is sometimes justified by saying: ‘He’s just a thug and is probably guilty of something or will be in the future. What’s the harm?’ That is a discussion for another time. Most importantly, these are exceptions to the norm; in fact, the vast majority of police officers do their job in a fair, professional and ethical manner. 

    But with regards to this case, is the strange behavior/ actual or attempted abuse, a combination or neither? You be the judge. 


Nature’s call or not, trooper guilty

Judge ignores testimony on a hurry-up call – claimed and denied – as an excuse for speeding, and levies fines on the state officer for speeding and fleeing.
By Dave Mowery

Eagle/Times (published in the mid 90s)

Nature’s call had no bearing in a case against an off-duty Pittsburgh-based state trooper found guilty of failing to pull over properly after being clocked for speeding.

Trooper Nelson Bryant, 38, a 13-year police veteran, was in Berks County Court Wednesday hoping to wipe out a summary charge that he fled police or purposely failed to pull off the road.

After a 2 ½ hour hearing, Judge Jeffrey K. Sprecher denied the request and fined Bryant $67 for speeding and $200 for fleeing police.

Trooper Michael J. Mescavage, who is now retired but who was assigned to the Hamburg barracks at the time of the incident, testified that he clocked Bryant at 76 mph in a 55 mph zone March 14 on westbound Interstate 78 in Tilden Township.

Mescavage, a trooper for 23 ½ years, said he pursued Bryant for about two miles with the cruiser lights flashing before Bryant pulled over. The retired trooper said Bryant told him he had diarrhea and was not trying to outrun the pursuit car.

Bryant disputed that, claiming he pulled over as soon as Mescavage turned on the overhead light of the cruiser. Bryant also said he never offered a reason for speeding.

He did not contest the speeding citation, but he denied he was driving 120 mph during the chase, as Mescavage claimed. 

After Bryant pulled over, he displayed a state police identification card in his wallet when asked for his license and registration, Mescavage said.

“I told him I didn’t want to see an identification card,” Mescavage said.

He said Bryant explained he had diarrhea and got out of the car and walked into the weeds along the road to relieve himself.

Mescavage said he contacted a supervisor, who indicated he could issue the citations later. He said he returned the next day to search the weeds where he believed he stopped Bryant, but found nothing.

Bryant said his identification card was near his driver’s license in his wallet, and he did not offer it to Mescavage. And, he said, he went into the weeds to urinate…