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My mother is Swedish and German. When I was a boy, anxious to find out what my heritage meant, I asked her to tell me about the Swedes. “Swedes,” she said, having just had a falling-out with her father, “are the most stubborn people on Earth.” I didn’t know quite what to make of that. Being the “most” seemed good, especially when it covered the entire planet. It sounded like a championship of some sort. But the few times I’d heard the word stubborn, the context had convinced me it was not a good thing. A few days later, I asked her about Germans. “Germans,” she said, “are even more stubborn than Swedes.” I struggled a little with this. It seemed to conflict somewhat with the “World’s Greatest Stubbornness” title already awarded the Swedes. But if there was room in Mom’s head for one group to be the most stubborn on Earth and another group to be more stubborn, I determined there would be room in mine. My emulation of my mother has left me with a mind that many in the bar consider distressingly capable of accommodating conflicting ideas. This has led them over the years to describe me as either “an original thinker, unfettered by dogma,” or “erratic as hell,” depending on whether I’d ruled for or against them. It seems my mother unwittingly imbued me with the most important characteristic of all appellate judges. Having now spent five years reading petitions for rehearing filed on cases written by me and my colleagues, I realize we all share this one trait: We all have minds that are somehow blind to the obvious incompatibilities of diametrically opposed ideas. At one time or another, we all demonstrate the ability to conceive of “most” being exceeded by “even more.” NEW IDEAS IN PENOLOGY Which reminds me of something else Mom taught me: “As goofy as the Swedes are, the Norwegians are even worse.” I offer this both as advice for those who would petition the California Supreme Court for hearing after losing in my court, and as explanation for an article this summer in The Wall Street Journal. Seems the Norwegians have the same problem we’ve struggled with here in California for years: not enough prison space. In California, we “solve” the problem by building more prisons. Norway has taken a different approach. They put the criminals on a waiting list. That’s right. A waiting list. A “queue,” as they so quaintly put it. The Wall Street Journal informs me that fully half of Norway’s convicted criminals are walking the streets waiting for a bed to open up in prison. Without any idea when that bed will become available. Norwegian sentencing hearings must be as confusing as my early conversations with my mother: “I find you guilty, and I sentence you to three years in prison. You’re free to go.” “I beg your pardon, sir?” “You’re free to go.” “I’m sorry, sir. Didn’t you just find me guilty and sentence me to three years in prison?” “Yes, I did, but we’re a little booked up right now. You’ll just have to wait. We’ll let you know when we have room for you. Leave your home phone with the bailiff on your way out, please. Next?” “Excuse me, sir . . . uh . . . just when might that be? That you have room for me?” “Hard to say. Depends on how many people do worse stuff than you. Could be weeks, could be years. Next?” The Journal article tells the story of Vidar Sandli, sentenced to three years in prison for possessing hashish. By the time they sent him a letter telling him to report to prison the next day, his crime was five years old. He had married, bought a house, and had a child. He was Ozzie Nelson, for crying out loud. And he had not told his wife about his conviction. He called her at the office when he got his “Get Into Jail Now” letter and suggested she come home for lunch. Apparently he felt the news that he was a convicted dope dealer and would be leaving for prison the next day might require more time than was available between dinner and “Trading Spaces.” Can you imagine? The next day. How do you suppose this happens on such short notice? A death? An escape? “Dear Mr. Sandli, we are pleased to inform you that a serial murderer escaped yesterday, so we have room for you now. Please report tomorrow to Devil’s Armpit State Prison to begin serving your three-year sentence. We would appreciate it if you would show up two hours early for your appointment, to complete the necessary paperwork.” Needless to say, they see things differently in Norway. “Nils Christie, a criminologist at the University of Oslo, calls the queue ‘a sign of a civil and humane society because it indicates that most criminals are ordinary people, able to wait in line just like other people.’ “ Excuse me? Able to wait in line? I’ve spent 15 years as a prosecutor and another 15 as a judge. My experience is that a great number of criminals are criminals precisely because they aren’t “able to wait in line just like other people.” The concept of delayed gratification is not big in the criminal community. But more important than that, I’m not sure I see this as something a “humane society” comes up with. Sounds more like something Rod Serling or Stephen King dreamed up. Suspend for a moment your feelings about whether our prison system or any other is “humane,” and tell me which seems less humane: telling someone he has to go to prison now, or telling someone he has to go to prison but we won’t tell him when? Imagine the predicament of poor Ole or Thor or Anders, who’s been convicted of fraud and sentenced to six months. His conviction makes him perfect for a job as a television evangelist, but his prospective employer sees that he’s going to need six months off sometime in the near future to go break rocks at the big house. Six months will almost certainly include either Christmas or Easter, and that’s the busy season. We can’t have that. The job offer evaporates and poor Ole/Thor/Anders finds himself back on a street corner running a game of three-card monte until the prison board finds room for him or he hears back on his job application to the insurance company. Not to mention the effect this must have on victims. True story, related by the Journal: “Eva Frivold, a lawyer in Askim, said one of her clients was beaten by her husband, who got a sentence of several months in prison. Before reaching the front of the queue, the man attacked the woman again, forcing her to flee to a women’s shelter.” Well, duh! “You, sir, are a scummy wife-beater. I find you guilty, and I sentence you to prison. Now go home to your wife until we find room for you.” TO STEAL OR NOT TO STEAL Yet the Norwegians can’t understand why their crime rate is burgeoning. According to the Journal, “In the past four years, the line of convicts waiting to do their time nearly tripled to 2,762 — roughly the same size as the entire Norwegian prison population of 2,900 inmates.” One judge laments the fact that even in his little town near the Swedish border, “There’s more violence, more drugs, more thefts . . . more stubbornness.” How can this surprise them? Posit Brunhilde. Brunhilde is tired of waiting to be rich. She doesn’t know any Norwegian criminologists, so she doesn’t know she’s capable of waiting her turn “just like other people.” So she decides to steal something. She analyzes the possibilities: If she gets away with it, she’ll have what she has now plus what she stole, and she’ll be out of prison. If she gets caught, she’ll have what she has now, and she’ll be out of prison. If she doesn’t steal, she’ll have what she has now, and she’ll be out of prison. The downside of theft is damned near invisible. Especially when you consider what their prisons must be like. The Journal says, “One Norwegian prison in Bastoy is on an island where inmates live in wooden cottages and can fish, raise vegetables and cook out.” We have those, too. We call them vacation homes, and only the wealthy can afford them. Especially vacation homes on islands. Those are pretty much the exclusive preserve of CEOs. Which, when you consider what they did to get those homes, suggests that maybe the Norwegians aren’t too different from us after all. We both put criminals on islands where they fish and cook out. The difference is, the Norwegians convict them first. Thanks to my mother, I know what this means. The United States has the worst penal system in the world. And Norway’s is worse. William W. Bedsworth is an associate justice at the Fourth District Court of Appeal in Santa Ana, Calif. He can be reached at [email protected]. This article first appeared in The Recorder, the American Lawyer Media newspaper in San Francisco.

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