Prisons and Public Safety: Learning from the "Gitmo North" debate

President Obama's announcement that the federal government will buy a mothballed supermax prison in northern Illinois (the fact that the such a facility was empty is itself an intriguing signal that the war on crime is drawing down) is bringing a new wave of criticism (mostly from Republicans) that this endangers public safety. As Helene Cooper and David Johnston, reporting in the NYTimes, summarize the thrust of concern:

“The administration has failed to explain how transferring terrorists to Gitmo North will make Americans safer than keeping terrorists off of our shores in the secure facility in Cuba,” Mitch McConnell of Kentucky, the Senate Republican leader, said in a statement. Representative John A. Boehner of Ohio, the House Republican leader, told reporters he would not vote to “spend one dime to move those prisoners to the U.S.”

The upcoming debate is unlikely to be inspiring, but it will be revealing of two features of contemporary American political culture that have helped sustain mass incarceration.

1. Prisons are never enough to make us feel safe. We want them and gated communities. Even when we have a supermax prison it would be much better if those prisons that are separated by water and national borders. Now its true that the fear being expressed is not simply of the super terrorists themselves (who will apparently have a virtually 1:1 ratio with guards), but their colleagues who may decide to retaliate against ordinary Americans. But that "logic" does not hold up. What stops the terrorists now from retaliating against "ordinary Americans" by blowing up strip malls in northern Illinois or northern Kentucky for that matter? What is being expressed here instead is the profound influence of the "container" metaphor turned toward its carceral core.

2. Congress, whichever party is in or out of power, finds it very hard to be on the side of providing less protection to Americans against criminal violence of any kind. I argued in Governing through Crime, that Congress (and state legislatures) now find it natural to view themselves as representing American crime victims as the idealized citizens of the Republic. I predict plenty of Democrats will join with Republicans to block any actual transfer of prisoners.

If the Republicans get away with spinning this as Obama making ordinary Americans vulnerable in order to please liberal cosmopolitan elites (mostly in Europe), they will have effectively reprised the Nixon v. Ramsey Clark moves of 1968, despite a period of declining crime and rising environmental threat.

Crime Politics and Racial Signals: Evidence from Houston

In the 1960s, racial conservatives (defenders of the Jim Crow order that was crumbling) used the language of "tough on crime" as a new discourse in which they could appeal to potential allies outside the South, without having to defend the indefensible. Politicians like Richard Nixon and Ronald Reagan helped forge that link into an important anchor of the Republican Party's "Southern strategy." But forty plus years later it is clear that the discourse of crime fear has long ago slipped its bonds to racial conservatism to become a far more general logic with appeal to voters across the spectrum of opinion on racial issues. Yesterday's Houston Mayoral election was a case in point. The voters handed a solid victory to Annise Parker, a Democrat, recently that city's comptroller, and the first openly Gay or Lesbian politician to be elected mayor of one of the major American cities. But in the competitive race her opponent, Gene Locke, also a Democrat and formerly Houston's city attorney, made crime and whether Parker was "soft on crime" his main issue. Now the crime talk may have offered a way for Locke to send a signal to anti-Gay conservatives, or to anti-feminists, but one thing it clearly did not seek was to send a signal to Houston's remaining racial conservatives. Indeed the consensus on the eve of the election (read James McKinley's article in the NYtimes) was that the best opportunity for Locke, an African American, to overtake Parker's steady lead, was to produce a large turn out of African American voters.

Pre Crime: Why are we so confident that we can prevent acts of terrible violence?

As politicians and officials in Washington (state) and Arkansas battle over who should have stopped Maurice Clemmons before he apparently shot to death four Washington state police officers outside a strip mall coffee shop near Tacoma last weekend before being shot dead by Seattle police, we can observe a very enduring if not endearing American obsession-- our conviction that we might have stopped the tragedy (read William Yardley's summary of the blame game in the NYTimes). Clemmons, sent to prison with a hundred year plus term for violent crimes as a teenager, received clemency and parole from then Arkansas governor Mike Huckabee (who made no secret of his religious belief in the possibility of redemption and change). Both Washington State and Arkansas officials appear to have missed opportunities (in retrospect) to turn up the control pressure on Clemmons. More should be learned over the next news cycle or two.

As an overall trait, this American confidence that better technique and method could stop violence is largely admirable, small "d" democratic, and great for the criminal law and policy reform business (which includes fairly or not, academics). Overall it may make us prone to waves of generally temporary civil liberties destruction in the name of personal security (as we have seen). My objection, however, is limited to two points.

continue reading this post on prawfsblawg.

Strike Against Prisons not Education

With a heavy heart I am not joining many of my students and colleagues who are striking against classes and educational activities at UC Berkeley and other UC campuses across the state beginning tomorrow (and through Friday the 20th). We ought to be united in mobilization to save higher education in California. But in choosing to make the fight a convenient and ideologically satisfying (but for the most part phony) story about privatization, down-sizing, and pernicious, corporate minded university leadership, UC's unions and their student and faculty allies are missing a historic opportunity to engage our fellow citizens in a critical dialog about our state's future.

That future has been mortgaged to expensive dysfunctional prisons and a bipartisan law-enforcement establishment that is committed to mass incarceration at any price. But across three decades in which that project of exiling tens of thousands of largely poor and minority Californians to a prison archipelago of mammoth proportions (which yet remains grotesquely overcrowded) has been constructed, the supporters of higher education in this state have remained silent, assuming that the incarceration of people who don't go to college anyway is not our problem. Now the chickens have come home to roost.

A day of protest in Sacramento to demand an end to mass incarceration and a reinvestment of justice and revenue into problem solving in all our communities would be a cause worth canceling classes for, driving (in car pools) up 1-80 and joining in public debate and education of all our fellow citizens. But to waste three precious days of our semester to engage in self righteous, predictable, and largely irrelevant rites of denunciation against UC's administration? Not so much.

I would ask this of the unions who, having failed to achieve negotiation successes with the university administration, now seek to join grievances with disgruntled students and faculty (whose interests are largely quite different when it comes to dividing up UC's shrinking fiscal pie): where were you when the state built thirty prisons and enacted laws like 3-Strikes? Where are you now in mobilizing your supporters in the legislature to reduce prison populations by any means necessary?

Update from the Penal State: Court keeps the pressure on

As reported by Denny Walsh in yesterday's SACBEE, the special three judge federal court in the Plata-Coleman prison overcrowding mega case rejected the state's arguments that an inmate cut of less than half of what the court had asked for was good enough given legislative resistance and public safety concerns.

The claim of public safety is particularly outrageous given how much of the courts massive August 4th ruling was devoted to examining public safety and how population reduction could be done without prejudice to it. The court significantly cut down the number in order to allow an extra measure of reassurance.

When I find the new ruling I'll post it here. Here is the plaintiff's motion for contempt filed a couple of weeks ago.

California Inmates Seek Contempt Order Against Governor Schwarzenegger

California's epic prison mess is heading back into court with the inmate plaintiff's asking the three judge panel to enforce their historic August 4th call for a reduction of some 40,000 inmates over two years with a contempt order against Governor Schwarzenegger. As Denny Walsh reports in the Sac Bee:

Saying the Schwarzenegger administration is thumbing its nose at three federal judges with a flawed plan to ease overpopulation of prisons, inmates' attorneys Thursday asked the judges to find the governor in contempt.

Rather than complying with the three-judge panel's Aug. 4 order, a defiant Gov. Arnold Schwarzenegger and Corrections Secretary Matt Cate "essentially have told the court that they will reduce the state prison population as the state sees fit, to a level the state deems appropriate, and in a time frame the state has set for itself," the attorneys wrote.

The Governor whose low approval ratings and general fatigue at governing may have already peaked with his less than cordial greeting at a San Francisco Democratic Party event (the Guv was invited to "kiss my Gay ass" by Tom Amiano, read Carla Maranucci's reporting in the SF Chron), may rightly feel that he has tried to comply since his own plan was amended by the Democratic controlled legislature which backed off many of the cuts and the promise of a sentencing commission. But if Arnold wants to go out as an action hero he can still lead. As governor he can stop denying parole to scores of California lifers who have served decades and demonstrated substantial rehabilitation. He can order, as Ronald Reagan did, parole units to stop returning parolees to prison for minor violations of parole. With these steps alone he could bring the system into compliance before leaving office.

If, as seems increasingly likely, this whole case ends up in the Supreme Court sooner than later, look for several interesting legal flash points:

1. The three judge court in Plata and Coleman has suggested that the Prison Litigation Reform Act of 1995 (signed into law by Bill Clinton 13 years ago this month) need not be a barrier to court based structural reform of prison systems including prisoner release. The three judge panel, in my view, has put together an awesome record that will be hard for the Supreme Court to override, but look for Justice Alito in particular to focus on the federalism, public safety, and democratic accountability concerns embedded in the strong anti judicial intervention language of PLRA

2. I just taught the Supreme Court's 2005 Samson v. California case in which the power under California law to search all parolees without any suspicion by all peace officers (both parole and police) was upheld against a 4th Amendment challenge. The very complex case, which throws a lot of 4th Amendment doctrine into doubt, turns heavily on a bizarre (and in my view grossly incorrect) understanding of the same California parole revocation mess that will be at the center of a Plata Coleman decision. I will post more on this theme, but main point is that the Supreme Court in Samson took California's high revocation rate to prove that parolees were so dangerous they needed to be exempted from 4th Amendment protections (even the watered down special needs version of them). How will that square with the current view of the State of California, that parolees are so safe that most of them can be put on a form of "parole lite" in which revocation is not a possibility, supervision does not happen, and parole is reduced to the single fact of being exempt from search and seizure protections?

cross posted at prawfsblawg

Workplace Violence? Making Sense of Annie Le's Murder

Am I the only one that was bothered by the effort of the New Haven Police Chief to make sure we didn't think the murder of Annie Le had anything to do with either New Haven or Yale? In their coverage in the New York Times Javier Hernandez and Serge Kovaleski write:

Chief James Lewis of the New Haven police would not speak about a possible motive, but said, “It is important to note that this is not about urban crime, university crime, domestic crime, but an issue of workplace violence, which is becoming a growing concern around the country.”

In a statement,Richard C. Levin, the Yale president, said the supervisor “reports that nothing in the history of his employment at the university gave an indication that his involvement in such a crime might be possible.

Urban crime? Last time I checked New Haven counted as a city (maybe not a major city). Does this just mean that the accused, Raymond Clark, happens to be white? He was after all otherwise a local. University crime? I'm not sure what that is meant to include except perhaps political violence like the 1969 bombing of a research lab in Wisconsin, or more recent violence by animal rights militants. Domestic crime? Ok, there is no hint that Annie Le had any kind of relationship with Raymond Clark. But where does the Chief get off hinting darkly that there is a growing problem of "workplace" crime?

It is true that people spend a lot of time at work, so its not surprising that they are sometimes victims of crime there. That is particularly true of domestic violence. When partners separate, work may be the easiest place for the abusive partner to arrange a confrontation. Many workplaces, like retail stores, are targets for robberies. Here is where you can find a copy of the federal government's last published report on workplace violence. Published in 2001 and reviewing data from 1993 through 1999, the report shows violence in the workplace going down along with violence generally in America in those years. In 1999 there were a little over 600 workplace homicides out of more than 15 thousand nationwide. Perhaps there is a new trend emerging in more recent data that the Chief is aware of. Otherwise it is irresponsible to suggest that workplaces are a place that would benefit from even more fear of crime than Americans generally already feel.

As for the university, like many employers they have already invested in crime background checks, and apparently closed circuit video taping around its animal labs (probably to combat animal rights activists). College or university teachers already enjoy the lowest level of occupational violence of any studied group (as of 2001) at only 2 incidents per 1,000 teachers.

I'm no expert on criminal motivation. She was a petite and beautiful young woman. He was a physically powerful and apparently heterosexual young man. We may never know more than that. Let us accept grief at a promising life brutally ended, and some gratitude at the prospect of legal justice thanks to what appears to have been an effective investigation (although some questions about crime scene management have emerged). Let us not seek to invest even more of our life-world with the apparatus of crime control in the pursuit of a level of perfect security that does not exist.

Wishing all of you a happy new year (on the Jewish calendar, 5770)

[cross posted at Prawfsblawg]