Massachusetts Federal District Court Judge Nancy Gertner’s sentencing opinion in U.S. v. Haynes is the sort of thing that culture wars are made of.  From Doug Berman over at Sentencing Law and Policy, consider:

At the time of sentencing, Haynes had already served approximately thirteen months in pretrial detention, longer than the sentence he served for the 1998 conviction.  The recommended sentence under the United States Sentencing Guidelines Manual, 33-41 months, was driven exclusively by the quantity of drugs for which he was responsible (on those two occasions in May 2006), the location of the sales, and his criminal history (Criminal History Category II). The government argued that the lower end of the Guidelines, 33 months, was entirely appropriate, not just because the Guidelines recommended it, but because “public safety,” one of the factors in 18 U.S.C. § 3553(a), demanded it.

I found otherwise. While public safety certainly calls for the incapacitation of some, there is another side to the equation, which, after United States v. Booker, 543 U.S. 220 (2005), may finally be given the serious consideration it deserves.  The facts presented by Haynes’ case force the Court to confront the inescapable fact that disadvantaged communities like Bromley-Heath are injured both by crime and by the subsequent mass incarceration of their young men.  See Donald Braman, Criminal Law and the Pursuit of Equality, 84 Tex. L. Rev. 2097, 2114-17 (2006). Compare Randall Kennedy, Race, Crime, and the Law 373-76 (1997), with Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse (2007).  Courts may no longer ignore the possibility that the mass incarceration of nonviolent drug offenders has disrupted families and communities and undermined their ability to self-regulate, without necessarily deterring the next generation of young men from committing the same crimes.

Haynes is an individual for whom continued incarceration beyond thirteen months makes no sense. Indeed, here, public safety seems to require the opposite of the government’s request; it requires that Haynes be permitted to return to his children so that they do not repeat his errors. Thus, I sentenced Haynes to time served: the thirteen months he had already served in pretrial detention plus a carefully considered supervised release program.

Ah, when those crazy justices in Washington opened the door to judges ignoring the belovedly harsh and inflexible guidelines, this is exactly what the “spare the prison, spoil the criminal” crowd feared.  Here comes those “activists” judges, coming up with their liberal schemes to let all the criminals out of jail to return to our their community to rape our wimmens.

Judge Gertner’s opinion is tantamount to heresy; If prison is good, more prison is better.  That’s how “justice” works in these United States.

Of course, as many commenters here and elsewhere have already made clear, “disadvantaged neighborhoods” aren’t made that way because of our many laws imposing extreme incarceratory punishments, lack of education, racial prejudice, lack of opportunity, but because their residents are just a bunch a darn criminals who make the choice to rape our wimmens.

Just to be clear, they shouldn’t commit crimes.  But without more, they’re likely to continue to pursue a lifestyle that others prefer they wouldn’t.  One of the things that must happen, in tandem with the primary need of better education, is to maintain a family culture that provides support for education and work ethic, positive role models and a belief that there is a way out of the cycle of poverty and crime.

It’s hard to do when a significant percentage of the males of the community aren’t coming home for 121 months. leaving children fatherless.  The solution to changing this culture isn’t easy, but it isn’t necessarily helped by locking up all the men for as long as we can. 

Judge Gertner’s opinion deals with a non-violent drug felony, not some psycho who has gone around and raped our wimmens.  She can’t force state and local governments to dedicate the funds needed to provide their children with a decent education, or shift the culture to one that supports positive vision of the future and vests them in a law-abiding life.  But she is doing what she can to change things.

Why?  Because the continuation of doing what we have been doing is both inordinately expensive and hasn’t worked.  If the definition of insanity is to continue to do something over and over, that has failed in the past (about 2.3 million times at the moment), expecting the outcome to be different, then this decision is at least an attempt to change our cycle of failure.

Someone over at Doug’s blawg commented,

This is a bit much. I suppose the next step is for district judges to argue that incarceration itself reduces public safety because it costs money that could be better spent on other social programs, and on that basis sentence everyone to the statutory minimum (or no sentence at all if there’s no minimum).

Sarcastic extreme notwithstanding, what if it worked?  What if spending all the money we now flush down the prison toilet to change the culture of the ghetto served to change the lives of many, maybe even most, and ended the cycle of crime?  Would it break your heart, and give you no one to dump on?

But since we have never made a real commitment to try to change the factors that breed failure and crime, and since it all sounds like a neo-con’s nightmare of coddling the criminals, the poor, the downtrodden, stealing their money to give it away to welfare queens driving Cadillacs, we just keep trying the same old failed “solution” of mass incarceration.  It doesn’t work.  In never worked.  But at least it makes the taxpayers feel like their money isn’t wasted.