How serious do Americans think our incarceration crisis is? Their word choice provides a clue.

How serious do Americans think our incarceration crisis is? Their word choice provides a clue.

It may be wonkish and nerdy to admit, but I enjoy the etymological side of public policy quite a bit.

Wait, that sentence itself is pretty incomprehensible. So let me start again.

We may all know “mass incarceration” when we see it (especially in the United States). But where did the term come from? Who used it first? And is it a neutral phrase, or laden with ideological baggage?

That is the conceptual adventure a reader embarks on when they begin a recent article on the Brennan Center website titled “Just Facts: Quantifying the Incarceration Conversation.

In the article, Oliver Roeder explains the roots of the term mass incarceration. That alone makes the article worth your time.

But of special interest is the kind of research that a digitized knowledge base allows us. The existence of digitized articles and scholarship permits talented people like Roeder to track trends in word use. Because of that, he’s able to explain, among other things, how use of the phrase ramped up, and to compare it to the increasing size of our prison population. Here is an example of one of his tables:

Mass incarceration table Brennan Center

Roeder earned his economics Ph.D. at the University of Texas in Austin. Perhaps not coincidentally, Texas is one of the states trying to make inroads in the mass incarceration challenge.

A few years ago, I wrote a story about the possibility for altered sentencing laws in Arizona. It appeared way back in 2012, when the prospects had brightened and then dimmed.

But if Roeder’s analysis shows anything, it is that the concept of mass incarceration has entered the collective consciousness. Supporters and detractors both understand that they must wrestle with the propriety of a historically large prison population.

So maybe it’s time for an updated look. What do you think?

judicial elections report cover

Let me talk (for a few days) about judge elections and judicial merit selection.

Before you change the channel, I want to pass on some news that is, y’know, actually new. (Next week, I may write about what I call merit-selection fatigue, which afflicts anyone who has watched its fortunes wax and wane over a generation.)

The news is the release of a new report called “The New Politics of Judicial Elections.” It is a joint effort of the Brennan Center for Justice at the NYU School of Law, the National Institute on Money in State Politics and advocacy group Justice at Stake.

Brennan Center for Justice_logoThe 64-page report paints a pretty bleak picture of the current state of judge elections. In three chapters, the authors explore the money trail, record spending on TV ads, and the sour political climate that surrounds judicial elections.

You can read the complete report here. From the same page, you also can view the TV ads that they examine in the report. (Those videos are available as in video form and as storyboards.)

(Arizona, which has merit selection for appellate courts and the three largest counties, was mentioned in the study in regard to political fights over judicial selection. I wrote about one high-profile judicial retention election here.)

The fight over Arizona's judicial merit-selection model is described in the report "The New Politics of Judicial Elections 2011-12."

The fight over Arizona’s judicial merit-selection model is described in the report “The New Politics of Judicial Elections 2011-12.”

To mark the report’s launch, the groups held a media call last Friday morning. Here’s what they said on the call.

Bert Brandenberg, Executive Director of Justice at Stake, opened the dialogue by calling the politicization of judicial elections “one of the biggest democracy issues flying under the media radar screen.”

In recent years, “Millions of dollars raised by special interest groups were turning judges into fundraisers, raising fears that justice is for sale.”

In 2011-12, a record $56.4 million was spent in judicial elections, which Brandenberg calls “the new normal.” And that has become a trap for the judges, an arms race.

If we imagined that we could view matters transparently, Brandenberg reminded press on the call that 97 percent of all funds raised went to independent groups obliquely supporting or opposing candidates—not to candidates themselves. Those groups have no public reporting requirements.

“We depend on courts to be different from the other branches,” Brandenberg said. “But we ask judges to be Huey Long on the campaign trail, but then turn into Solomon on the bench.”

Justice at Stake logoAlso speaking on the call was Alicia Bannon, counsel at the Brennan Center. She opened by describing the “unprecedented spending” on judge election TV ads, coming in at more than $33 million in 2011-12.

As troubling as the dollar figures, she said, is the subject matter. More and more of the ads are becoming inflammatory—charging campaign opponents of protecting rapists or freeing terrorists. This “carnival atmosphere,” as she described it, is making judicial election ads almost indistinguishable from other political ads.

Bannon described reforms that the Brennan Center seeks: stronger disclosure laws to see who is trying to influence elections; stronger rules surrounding judge recusals; and public financing for judicial races.

At my request, Bannon kindly sent links for more about the Brennan Center’s work on “recusal reform.” Their 2011 report provides model rules for recusal standards. Their website also includes ABA testimony discussing their recommendations. As she said, “This work builds on a 2008 report which provides detailed analysis of the problem and our proposed solutions.”

The dialogue over how to sustain an independent but accountable judicial branch continues. Tomorrow, I’ll share some local news about merit selection. It arose at a recent terrific panel discussion (by coincidence, the same day as the media call), and when the unrelated topic of judicial elections arose, one panelist—a Texas judge—candidly offered his thoughts. And who doesn’t enjoy candid?

Here are two legal happenings worth noting.

The first may be of interest to every citizen whose life will be affected by the redistricting that follows on the heels of a national Census—which should be most of us.

The Brennan Center for Justice is releasing its 2010 edition of A Citizen’s Guide to Redistricting.  Fifty state governments—including Arizona’s—will soon begin redrawing legislative lines. As the Brennan Center says, “Political insiders will invariably seek to tilt the process to partisan ends.”

The new volume has tables, illustrations and maps. According to the center, “It will help citizens and journalists as we try to hold accountable this otherwise murky process.”

More information is here.

(And as a related reminder, you might seek out the documentary film Gerrymandering. More detail about it is here. And it looks like it will be shown on December 17 at The Screening Room in Tucson—but check with the theater first.)

The second event takes place in Washington, DC, but is worth noting.

Tomorrow, the Law Library of Congress will celebrate Human Rights Day with a program on “Cultural Property Rights of Indigenous People.”

As the Law Library says:

“Human rights are rights and freedoms inherent to all human beings without discrimination on the basis of nationality, ethnic origin, gender, creed, religion, language or any other distinction. The panel discussion is designed to promote understanding and recognition of the inherent dignity and inalienable rights of all members of the human family. 

“Moderated by Law Librarian of Congress Roberta I. Shaffer, the panel will include Helen Stacy of Stanford Law School; Betsy Kanalley of the U.S. Forest Service; and Kelly Buchanan and Stephen Clarke of the Law Library of Congress.”

The event will be held at the Library of Congress at 1 p.m. on Friday, Dec. 10 in the Mumford Room, located on the sixth floor of the James Madison Building at 101 Independence Ave. S.E., Washington D.C. 20540.

More information is here.

A brief item today, using this coolio Internet blog technology to tout—books.

That’s right, we’re blogging it old school today to be sure you’ve perused the newest site dedicated to those marvelous dead-tree reading tools.

The Brennan Center for Justice launched its Just Books page a few weeks ago, and it’s worth bookmarking. For the lawyer at the keyboard, or anyone concerned about injustice issues in a cruel, cruel world, this is a site to come back to again and again.

So get reading here.