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Last month a Tennessee judge overseeing a burglary case
rejected a pretrial motion in which the prosecution requested
that it not be referred to as “the Government” because that term is
“derogatory.” In the May 22 motion,
Assistant District Attorney General Tammy J. Rettig noted with
alarm that “it has become commonplace during trials for attorneys
for defendants, and especially Mr. [Drew] Justice [the defendant’s
lawyer], to refer to State’s attorneys as ‘the Government’
repeatedly during trial.” Rettig worried that “such a reference is
used in a derogatory way and is meant to make the State’s attorneys
seem oppressive and to inflame the jury.” She added that “attempts
to make the jury dislike the State’s attorney have no place in the
courtroom.” She therefore urged Williamson County Circuit Court
Judge Michael Binkley to bar Justice from using the
g-word during the trial and instead refer to her as
“General Rettig, the Assit District Attorney General, Mrs. Rettig,
or simply the State of Tennessee.”

In his response,
Justice argued that such an order would violate the First
Amendment. Should Judge Binkley nevertheless see fit to comply with
Rettig’s request, Justice said, he also should consider a few other
speech limits in the interest of neutral terminology:

First, the Defendant no longer wants to be called “the
Defendant.” This rather archaic term of art, obviously has a fairly
negative connotation. It unfairly demeans, and dehumanizes Mr.
Donald Powell. The word “defendant” should be banned. At trial, Mr.
Powell hereby demands be addressed only by his full name, preceded
by the title “Mister.” Alternatively, he may be called simply “the
Citizen Accused.” This latter title sounds more respectable than
the criminal “Defendant.” The designation “That innocent man” would
also be acceptable.

Moreover, defense counsel does not wish to be referred to as a
“lawyer,” or a “defense attorney.” Those terms are substantially
more prejudicial than probative….Rather, counsel for the Citizen
Accused should be referred to primarily as the “Defender of the
Innocent.” This title seems particularly appropriate, because every
Citizen Accused is presumed innocent. Alternatively, counsel would
also accept the designation “Guardian of the Realm.” Further, the
Citizen Accused humbly requests an appropriate military title for
his own representative, to match that of the opposing counsel.
Whenever addressed by name, the name “Captain Justice” will be
appropriate. While less impressive than “General,” still, the more
humble term seems suitable. After all, the Captain represents only
a Citizen Accused, whereas the General represents an entire
State.

Along these same lines, even the term “defense” does not sound
very likeable. The whole idea of being defensive, comes across to
most people as suspicious. So to prevent the jury from being
unfairly misled by this ancient English terminology, the opposition
to the Plaintiff hereby names itself “the Resistance.” Obviously,
this terminology need only extend throughout the duration of the
trial—not to any pre-trial motions. During its heroic struggle
against the State, the Resistance goes on the attack, not just the
defense.

The good news is not only that Justice triumphed but that even
the Government concedes that “the Government” has a negative
connotation.

[Thanks to Allen St. Pierre for the tip.]

Last month a Tennessee judge overseeing a burglary case
rejected a pretrial motion in which the prosecution requested
that it not be referred to as “the Government” because that term is
“derogatory.” In the May 22 motion,
Assistant District Attorney General Tammy J. Rettig noted with
alarm that “it has become commonplace during trials for attorneys
for defendants, and especially Mr. [Drew] Justice [the defendant’s
lawyer], to refer to State’s attorneys as ‘the Government’
repeatedly during trial.” Rettig worried that “such a reference is
used in a derogatory way and is meant to make the State’s attorneys
seem oppressive and to inflame the jury.” She added that “attempts
to make the jury dislike the State’s attorney have no place in the
courtroom.” She therefore urged Williamson County Circuit Court
Judge Michael Binkley to bar Justice from using the
g-word during the trial and instead refer to her as
“General Rettig, the Assit District Attorney General, Mrs. Rettig,
or simply the State of Tennessee.”

In his response,
Justice argued that such an order would violate the First
Amendment. Should Judge Binkley nevertheless see fit to comply with
Rettig’s request, Justice said, he also should consider a few other
speech limits in the interest of neutral terminology:

First, the Defendant no longer wants to be called “the
Defendant.” This rather archaic term of art, obviously has a fairly
negative connotation. It unfairly demeans, and dehumanizes Mr.
Donald Powell. The word “defendant” should be banned. At trial, Mr.
Powell hereby demands be addressed only by his full name, preceded
by the title “Mister.” Alternatively, he may be called simply “the
Citizen Accused.” This latter title sounds more respectable than
the criminal “Defendant.” The designation “That innocent man” would
also be acceptable.

Moreover, defense counsel does not wish to be referred to as a
“lawyer,” or a “defense attorney.” Those terms are substantially
more prejudicial than probative….Rather, counsel for the Citizen
Accused should be referred to primarily as the “Defender of the
Innocent.” This title seems particularly appropriate, because every
Citizen Accused is presumed innocent. Alternatively, counsel would
also accept the designation “Guardian of the Realm.” Further, the
Citizen Accused humbly requests an appropriate military title for
his own representative, to match that of the opposing counsel.
Whenever addressed by name, the name “Captain Justice” will be
appropriate. While less impressive than “General,” still, the more
humble term seems suitable. After all, the Captain represents only
a Citizen Accused, whereas the General represents an entire
State.

Along these same lines, even the term “defense” does not sound
very likeable. The whole idea of being defensive, comes across to
most people as suspicious. So to prevent the jury from being
unfairly misled by this ancient English terminology, the opposition
to the Plaintiff hereby names itself “the Resistance.” Obviously,
this terminology need only extend throughout the duration of the
trial—not to any pre-trial motions. During its heroic struggle
against the State, the Resistance goes on the attack, not just the
defense.

The good news is not only that Justice triumphed but that even
the Government concedes that “the Government” has a negative
connotation.

[Thanks to Allen St. Pierre for the tip.]

The ACLU released a new
report this week examining the growing trend of judges
sentencing nonviolent offenders to life in prison without parole.
The ACLU found, perhaps unsurprisingly, that the War on Drugs,
mandatory minimums, and “tough-on-crime” policies are to blame.

The report,
A Living Death: A Life Without Parole for Nonviolent Offenders,
profiles 110 of the 3,278 inmates currently serving their life
sentences for nonviolent crimes. Most of the offenders were
charged with crimes like possession of small amounts of drugs or
petty theft.

For instance, one inmate, Timothy Jackson, stole a $159 jacket,
which, combined with three other minor shoplifting charges, met the
threshold for Louisiana’s Four-Strikes law. Jackson received a
mandatory sentence of life without parole. Inmate Fate Vincent
Winslow is serving his life sentence for selling $10 worth of
marijuana to an undercover cop. Like Jackson, Winslow’s crime was
his fourth offense in Louisiana.

Another inmate’s story, that of Dicky Joe Jackson, is
reminiscent of the plight of Breaking
Bad protagonist Walter White. To pay for his
son’s $250,000 life-saving bone marrow transplant, Jackson started
transporting methamphetamine. Before long, however, he was caught
selling to an undercover officer. SWAT teams raided his family’s
home, and Jackson was thrown in federal prison. He is nearly twenty
years into his lifelong sentence.

In addition to the inmate profiles—which are a horribly
depressing, but worthwhile read—the report discovered several
interesting facts about life without parole (LWOP) in the US.

The Number of LWOP Sentences Has Been Growing For
Decades

Offenders serving life without parole, whether violent or not,
has been one of the most rapidly growing populations in the prison
system. According to the report: “The number of people sentenced to
LWOP quadrupled nationwide between 1992 and 2012, from 12,453 to
49,081.”

LWOP Is Due to the War on Drugs, Mandatory Minimums, and
Other “Tough on Crime” Policies

Nearly 80 percent of non-violent LWOP offenses are for drug
crimes. Among the cases the ACLU surveyed, 83 percent of offenders
were placed there because of mandatory minimums or three-strike
laws—in other words, the judges had no choice. As the ACLU
said:

The prevalence of LWOP sentences for nonviolent offenses is a
symptom of the relentless onslaught of more than four decades of
the War on Drugs and “tough-on crime” policies, which drove the
passage of unnecessarily harsh sentencing laws, including
three-strikes provisions…and mandatory minimum sentences.

There Are Racial Disparities

Like most aspects of the criminal justice system, there are
stark racial disparities in life without parole sentences.
Sixty-five percent of LWOP inmates are black, while in some states
the disparity is even higher. In Louisiana, 91 percent are black.
In the federal system, blacks are 20 times more likely to be
sentenced to LWOP than whites.

This Is A Uniquely American Problem

The US is part of the mere 20 percent of countries that even
offer LWOP sentences. And of those countries, the vast majority
“place stringent restrictions on where they can be issued and limit
their use to crimes of murder.” As a result, the US’s LWOP prison
population dwarfs that of other countries’. According to the
University of San Francisco’s report
on U.S. Sentencing Practices in a Global Context, the US’s LWOP
population is 51 times greater than Australia’s and 173 times
greater than England’s.