Author: Dan Filler


Taking Supermax Seriously

supermax.jpgJustice Posner’s description of a Supermax prison, in Scarver v. Litscher rekindled my discomfort with such facilities. Posner draws a clear picture of life at the prison’s “Level One” where all prisoners begin their stay and some continue for several months:

Inmates…are locked in windowless single-person cells for all but four hours of the week; the four hours are for recreation in a small windowless room not much larger than the cells. The cells are illuminated 24 hours a day so that the guards can watch the inmates, although they glance in only intermittently. The cells are not air-conditioned, and so, being windowless, they become extremely hot during the summer–the heat index sometimes rises above 100 degrees, and often above 90. The inmates are not allowed to have mechanical or electronic possessions, such as a television set, a clock, or even a watch–just one religious text, one box of legal documents, and 25 personal letters.

Perhaps it reflects my own lack of an inner life, but this sounds like hell on earth. I think I would quickly go mad in that little box. Although Level One is clearly the worst of the worst, it appears – looking over some of the prison handbooks for Level 2 – 5, available here – that life in the Supermax doesn’t get hugely better. Although Level 5 offers a small TV, you’re still locked in that room almost all day and night.

This all brings up two issues. First, is Supermax punishment so cruel that it is inherently unconstitutional? Second, even if not, should legislatures have to specifically authorize Supermax sentences for particular crimes?

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Law School Recruiting: Location, Location, Location

Law school recruiting season is in full swing. This means, not surprisingly, that our faculty is waiting to hear back from a candidate to whom we’ve extended a job offer. What’s the delay? As is often the case, when you’re recruiting to Tuscaloosa, Alabama, geography can be an significant issue. Many lawyers-turned-aspiring-profs make significant compromises – school quality, package, salary, etc – in order to land in a desirable city. This makes sense, but it is my impression – grounded only in anecdotes – that geography drives the hiring process more in law teaching than in other academic disciplines. Compared to law teaching candidates, aspiring liberal arts profs appear to weigh department quality more heavily, and geography less so.

If I’m right – and I’m curious whether others think I am – why is this so? Two reasons come to mind initially. First, those who attend graduate school for the express purpose of finding an academic job spend more time buying into the education hierarchy and coming to grips with the geographic compromises they are likely to face. Law teaching is often an afterthought for law students and, in any case, they certainly don’t spend three years kvetching about how they’ll have to move to Stillwater once they graduate.

Second, because profs in most fields make less than law profs, perhaps they prefer less popular (read: cheaper) locations. A salary of $35,000 a year gets you a good life in Tuscaloosa. In Boston, it buys a load of ramen.


Big Mac Attack on Clinical Legal Education

Heather MacDonald, a conservative writer, has launched an attack on clinical legal education. An abbreviated form of the screed surfaced in the Wall Street Journal last week, but a more complete version just came out in the City Journal. Basically, MacDonald argues that law school clinics are stuck in the 1960’s, training students to be social activists, pursuing a left wing agenda on just about every issue.

MacDonald’s claims surely excited some conservatives – and why not? What is juicier than proof, proof, of a vast left wing conspiracy. MacDonald announces a couple of big non-news stories: law school faculties are generally liberal, and clinicians are even more so. And yes, it turns out that these progressive clinicians tend to direct their clinics to serving poor people and non-profits rather than, say, landlords and state prisons (her suggestions, not mine.) If MacDonald’s point was simply to argue for more clinics doing conservative work, I wouldn’t have a beef with her. (As a hiring chair, I might have trouble finding business lawyers looking to leave their million dollar practices for jobs on the clinical tenure track, but that’s another matter.)

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Playing the Illegal Alien Card

HalePicBio.jpgFor the past few weeks, I’ve been following a local Birmingham story on undocumented aliens. Mike Hale, the Jefferson County sheriff, has decided to join the battle against illegal immigration. He announced that his office will create a database of undocumented immigrants found in the county. According to the Birmingham News , “any illegal immigrant who comes in contact with deputies – whether as an offender, a county jail inmate or even a victim – is fair game for the database.” The data will be shared with the federal Bureau of Immigration and Customs Enforcement. (Local sheriffs apparently don’t have jurisdiction to arrest individuals for violation of immigration laws.)

Notwithstanding the need to maintain border control, this expansive policy strikes me as troubling.

First, I worry that it will stifle crime reporting by undocumented crime victims. This is bad all around. The victims cannot rest safe because the culprits are still loose. And since some offenders repeat their crimes, the policy will leave these folks free to target others – documented and undocumented alike. The sheriff’s office is apparently aware of this risk, but simply does not care. When asked about the danger of deterring crime reporting, a department spokesman said: “I hope that’s not a byproduct of this, and if it is, it’s unfortunate. However, we believe the greater good is having information on the people who are in our country illegally.”

Another problem: how will sheriffs know when they come into contact with an undocumented alien? The obvious approach would be to demand that anyone who is not fluent in English, or looks “foreign,” to prove her citizenship or produce a visa. This is pretty unappealing, but as far as I can tell, Hale hasn’t suggested a better idea. Sadly, policies that target minority populations fit too neatly into an Alabama political tradition. Birmingham Blues captures the views of some progressive Alabamians in this regard. I wonder if this sort of policy is common, or is simply a trial balloon.