Cross posted from Prawfsblawg
Tuesday, June 23, 2015
Cross posted from Prawfsblawg
Saturday, May 9, 2015
Yes. I mean, let's be honest about what's going on here. Executions could be carried out painlessly. There are many jurisdictions there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide, and I assume that those are carried out with little, if any, pain. Oklahoma and other States could carry out executions painlessly. Now, this Court has held that the death penalty is constitutional. It's controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They're free to ask this Court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain?
Saturday, January 3, 2015
My criminological colleagues will be cringing. Cannonical doctrine suggests that while better policing may lead to better public safety results, even the worse police department is better than none at all. In a famous natural experiment in 1944, documented by criminologist Johannes Andeneas, the Nazi's arrested the entire police force of occupied Copenhagen (fearing that they would aid an Allied effort to liberate the city). Despite the Nazi's own credible threats to execute criminals on site, and what one might expect to be strong feelings of solidarity among the citizens of the occupied city, robberies and larcenies soared; similar results have emerged from police strikes (see a summary by Lawrence Sherman of some studies here).
But we need not consider replacing the police with nothing. The real question is why, despite a century and a half of incredible urban and political change in industrial democracies, we still cling to the idea of the police invented in the early 19th century to contain the dangerous classes of London and New York? I'm not ready to float a comprehensive proposal now but a few thoughts to get our collective imagination going while we wait to see how NYPD's Copenhagen experiment plays out.
- Most criminologists acknowledge that individual willingness to obey the law (because it seems legitimate to do so), and collective efficacy at naming and blaming those who do not obey the law, are more important than formal efforts at social control carried out by police and courts. Indeed the latter can do little without the former.
- Arrogant, aggressive police tactics that cause individuals to lose their sense of the law's legitimacy, and interrupt the communities capacity to enforce norms of civility, may encourage more crime than they deter.
- Police departments are really conglomerations of services: traffic, detectives (homicide, robberies), narcotics/vice, SWAT team, patrol. In our current model, the generalist patrol officer who can wield a gun and a pair of handcuffs is the paradigm and all other variations have to come through this central paradigm. Perhaps we should take a lesson from our neoliberal corporate friends and think about breaking up this conglomerate, reshuffling the segments so they can develop training methods and cultures conducive to their greatest efficacy.
- In reimagining the police, questions of level of governance are worth considering. Some functions, like detectives or SWAT teams, seem best organized and deployed from the center of the city with equal application to all neighborhoods. Patrol, in contrast, might well be organized very differently in different neighborhoods to achieve the optimal forms of police presence in the community.
- In 1970, Berkeley voters considered a proposal, supported by radical members of UC Berkeley's School of Criminology, to break up the police department into three neighborhood units and require police officers to live in the neighborhoods they policed. The initiative was defeated overwhelmingly but that was at the height of the crime wave of the 1960s and at a time when middle class voters were becoming collectively traumatized by crime fear.
I would not want to rely on individual consent and collective efficacy to keep crime low on their own indefinitely. We need something like the police, but not "the police" as we've known them. Police are important, but they are not like air. We can live without them when that is necessary. And we can reinvent them.
Friday, December 5, 2014
The gulf seems wide indeed. No wonder President Obama and Mayor Bill DeBlasio wring their hands, utter somber statements about bridging the gap between police and community, and suggest more training. But the gap between police and the black community has always been wide (its ironic that yesterday was the 45th anniversary of the execution style police killing of Chicago civil rights leader and Black Panther Fred Hampton in 1969: an event that made this then 10 year old wanna be political activist, permanently afraid of the police), and today's police have never been better trained and equipped (especially the much vaunted NYPD). The problem I believe is not the people or the police, its the political "war on crime" that simultaneously valorizes cops as warriors in an existential struggle with violent crime and compels them to engage in a necessarily brutal campaign to clear the streets of those widely perceived not just by police but by the majority culture and their politicians, as a threat to public safety, i.e., young men of color.
The war on crime may be a metaphor, but as George Lakoff and Mark Johnson (Metaphors We Live By) taught us long ago, metaphors are a political DNA that reorganize institutions and lives. Wars are about three things: territory, populations, and security. The goal in war is to dominate a territory by eliminating or repressing resistance, pacifying the population, and establishing a regime of security that maintains both states of affairs (just pay some attention to the Israel/Palestine conflict if you need a refresher on what that looks like in its explicit form). America's war on crime, declared by top political leaders of both parties in the face of the high violent crime rates, and political polarization of the 1960s (see chapters 1 and 2 of my book, Governing through Crime), has made local police forces the frontline troops of a relentless campaign to clear urban areas of those perceived to be a threat to public safety. Whether dubbed "STRESS" (as it was in Detroit in the 1970s), Broken Windows (the 1980s) or Zero Tolerance policing (1990s), this war strategy has required police officers (sometimes with powerful work place disciplinary techniques) to confront young men of color on a daily basis, and to use the opportunity of minor criminal violations to both clear the streets of them and create a security regime in which they choose to avoid public spaces.
The fact that this war on crime descended on American policing at a moment when it was only beginning to address the culture of ethnic and racial hierarchy that dominated mid-20th century police forces left much of this culture intact and carried it over into the greatly expanded (and much more diverse) forces of the 21st century.
If that sounds familiar may be its time to stop focusing on individual cops like Darren Wilson and Daniel Pantaleo and whether or not they get indicted (does anyone here in Oakland really feel that much better because Oscar Grant's killer was prosecuted, convicted, and went to prison?). Instead we need to place responsibility at the top, where leaders in the White House, Governor's mansions and Mayor's offices have glorified the war on crime as a patriotic American mission. Its time President Obama and other leaders to come forward and formally declare this war over. The damage it is has done to our society through mass incarceration, militarized policing, and wartime judicial retreats on human rights is already immense. Just as important, the context has changed enormously. Violent crime is down to historic lows (and neither prisons or policing have made more than a partial contribution to that) and many of the sociological processes that drove high crime in the period 1965-1995 (deindustrialization, suburbanization, mass addiction to novel drugs) have run their course. As Bill DeBlasio's campaign for mayor demonstrated, voters today are increasingly repelled by the war on crime and believe that the city and nation face other challenges.
A formal declaration of an end to the war on crime should include several key elements.
1. Recognition that the war on crime was an undeclared state of emergency that severely comprised the legal and political rights of Americans.
2. Instruction to law enforcement agencies that this state of emergency is over and they are to return to maximum fidelity to the principles of our constitution including respect for the dignity, liberty, and equality of every person.
3. Creation of new human rights agencies to enforce point 2 and to identify the steps necessary to remediate point 1.
Tuesday, October 21, 2014
The debate on Proposition 47 has mostly turned on how dangerous these crimes and the people who commit them are. Proponents, supported by most criminological research, argue that prison is a costly (approximately 62K a year for the average prisoner in California) and unnecessary way to address these non-violent crimes. Probation and if necessary some jail time have at least as good a chance of curbing future criminal behavior (our prisons have had a very high rate of recidivism and make no effort at rehabilitation) and with lower costs fewer prisoners means more money that Proposition 47 would channel into law enforcement, drug treatment, and victim compensation. Opponents, most of the state's District Attorneys, claim that the law would weaken their ability to send truly dangerous people who have been convicted of a relatively minor crime to state prison and use the threat of state prison to compel less dangerous people to accept drug treatment as part of felony probation (probation is also an option for many of these non-violent, non-serious felonies, at least for first offenders).
But the real issue is not crime (which remains at historically low levels throughout California); it is mass imprisonment. Beginning in the late 1970s and early 1980s, California embraced prison as the answer to what was then a historically high level of crime in the state and began to swell its prison population from around 20,000 prisoners in 1975 to nearly 180,000 in 2006. (This was a national trend but California took a typically extreme approach, read more about the causes in chapter 2 of Mass Incarceration on Trial). This explosion in prisoners was a product of two different changes in sentencing. First (and the part that Proposition 47 addresses) prosecutors began using their discretion to seek state prison time for crimes that could be charged as misdemeanors and had been historically. This meant tens of thousands of people with relatively short prison sentences flooded our prisons and clogged (along with tens of thousands of technical parole violators) the reception centers where prisoners are supposed to be classified and assigned longer term housing but which instead became packed irregular wards with overcrowding approaching 300 percent of design capacity. Second, law makers (aided by the Determinate Sentence Law of 1976 which gave the legislature power to set prison sentences) lengthened the sentences of most felony crimes, especially violent crimes. This meant that tens of thousands of prisoners who in the past would have left prison as they aged out of serious criminal behavior (generally by 40), remained in prison into and in many cases beyond middle age, when chronic illness begins to generate increasing suffering and costs.
The inability to manage these mounting problems of overcrowding and health care led to the remarkable 2011 decision of the Supreme Court in Brown v. Plata to uphold a massive population reduction. The State responded with the realignment package in November 2011 that sent most people convicted of non-serious, non-sexual, non-violent felonies to county jail or probation rather than prison. Proposition 47 expands realignment by taking the least serious of these offenses out of the felony category altogether. That is important because even under realignment, courts can sentence people to years of incarceration (only in county jail rather than state prison); classifying these low level crimes as misdemeanors assures that they have a better chance of receiving probation and caps any jail sentence at 1 year. Moreover, felony convictions on your record make it much more likely that you will go to state prison for your next offense. Eliminating minor offenses that do not warrant the felony label makes that kind of criminal record enhancement inherently fairer and more objective. It is also important because the label felon continues to have important negative consequences that last years or even decades for employment, housing, and social benefits. Conviction of a felony makes it much harder for people to rebound from crime and punishment to become productive citizens.
Another important group of prisoners that Proposition 47 might help are those who are serving an enhanced "second strike" sentence under the original 3-Strikes law (which had the effect of adding 10 years to the sentence for any felony if the person was convicted of a violent or serious felony previously) but who were not aided by the last 3-Strikes reform (which applied to 3-strikers). This could involve relief for thousands of existing prisoners facing years more imprisonment; helping the state meet its Brown v. Plata obligations with little risk to public safety.
Beyond helping to directly reduce the number of people actually in prison or exposed to it for minor crimes, the most important feature of a significant victory for Proposition 47 is the signal it sends that the toxic crime politics of the 1980s and 1990s is truly behind us. In those decades a media frenzy about violent crime produced ballot initiatives that pushed crime policy significantly toward the extreme, leaving politicians scrambling to catch up with matching legislation. If Proposition 47 wins it will be the second election cycle in a row in which voters have signaled they want more reform than Sacramento can deliver. Voters are correct. Today's leading politicians in both parties are talking about reform, but their vision is so cautious that we are unlikely to escape mass incarceration through legislated reform alone.
So far polls suggest Proposition 47 could win handily, even in an election cycle expected to be weak for younger more liberal voters. Prosecutors and victim organizations tightly aligned with law enforcement are kicking up their opposition. The opposition argument comes down to two points, trust and fear. Prosecutors say "trust me" with the discretion to use felony power even on minor crimes and I'll find the truly dangerous criminals before they commit a bigger offense. That was the argument for Three-Strikes (the classic example of toxic crime politics at its worst) and voters are rejecting it now. Instead opponents are increasingly relying on a second tactic, fear, bringing up demonized examples of offenders who might "benefit" from the changes. Two key examples are people caught in possession of rape drugs and people caught in possession of stolen weapons. Assuming the street values of the drugs and the guns were below $950, the possessors could no longer be charged with felonies. Big deal. First of all police and prosecutors have many options in charging. If someone is possessing rape drugs with the intent of raping someone, that is the crime of attempted rape. If someone is in possession of stolen weapons, they may also be guilty of a burglary in which they stole the weapons. Prosecutors will say that it is difficult to convict people of serious crimes, and much easier to use possession offenses to go after the bad guys. But that is exactly the thinking that got us into mass incarceration and what we have to use the initiative system to escape. Besides, Proposition 47 leaves plenty of of "protection" in place. The reduction to misdemeanor status does not apply to people previously convicted of murder, rape, or certain sexual and gun crimes (many of the same folks the prosecutors are demonizing). Moreover, misdemeanor conviction allows for probation or a sentence of up to a year in a county jail, methods address criminal behavior at least as effectively as imprisonment.
Approving Proposition 47 is a simple and effective way for voters to take another step in leading California away from the moral precipice of mass incarceration. We cannot trust Jerry Brown or the legislature to remove the taint of barbarism that hangs over a prison system that the Supreme Court declared "uncivilized." Brown gave us the law enforcement friendly Determinate Sentencing Law in 1976 which helped speed mass incarceration in California, and he has now aligned himself with protecting the status quo in our prisons. While his re-election is inevitable, voters cannot wait another four years for leadership on restoring dignity and human rights to California's legal system. We will need to do more. With half of California's prisoners now serving death, life without parole, life with parole, or multi decade determinate sentences our prisons are rapidly becoming even more degrading and expensive as they concentrate on aging prisoners with little hope. Incarcerating the vast majority of these older, sicker prisoners makes no penal sense and will continue to limit the availability of tax revenues to solve the state's pressing environmental and educational needs. To change that we will need an initiative to roll back sentences on violent crime. Yes, you read me right, we need shorter sentences for violent crimes. The vast majority of people convicted of an offense against the person (what California's penal code calls violent crimes) are no more likely to commit such an act in the future than those who have not been convicted but come from the same social circumstances and situation. Most violence is situational, ignited by complex combinations of conflicts, propensities and accelerants like drugs and alcohol. For the few that have a long term propensity to violence, proper risk assessment and the use of some indeterminacy in our sentencing laws for violent crime could allow for selective incapacitation. There are far better ways to spend money on reducing violence than incarcerating aging prisoners who once did something violent. But for now few even in the anti-mass incarceration community are ready to take on that fight. Please join me.
Thursday, September 18, 2014
Course threads are intended to encourage Berkeley students to integrate their knowledge of particularly important contemporary themes across the disciplines they study. They do not replace majors (like Sociology, Physics, or German) or create a “minor” (which are generally also disciplinary), instead a course thread is a way for students to deepen their knowledge of a subject whose pervasive influence on human life spills-over the boundaries of existing disciplines and professions. The “thread” connects existing courses (and we hope their faculty and Graduate Student Instructors). Students who complete three courses in a thread, and participate in a course threads symposium (offered each semester), will have the course thread noted on their official university transcript.
Incarceration belongs among those topics. After several decades of rising imprisonment rates (and the aggressive policing, prosecution, and jailing that is required to produce that), Americans live in an environment that is unmistakably carceral. While its most violent aspects are highly concentrated in communities of color and poverty, the carceral imperatives has touched virtually all communities. Whether you live in a high crime neighborhood with many abandoned buildings, open air drug markets, and regular police actions, a “gated community” in the suburbs, or a newly gentrifying neighborhood on the periphery of a revitalizing downtown, the forms of life, ways of building and dwelling, ways of exercising power, are marked by America’s experiment with mass incarceration which has placed 1 percent of American men in prison (10 percent of African American men), more than 3 percent of the American population in some form of correctional custody, and by some estimates, as many as 1 in 3 Americans have their names in searchable police and court records.
Students will explore a range of foundational questions including: How do we understand the historical and juridical relationship between carcerality and conceptions of human being? How do the domains of carcerality move across a range of global sites and scales? How does this relationship inform concepts of time, place, culture, policy, etc.? How have artists, scholars, and activists, including those who have experienced incarceration, produced representations of, knowledge about, and challenges to carceral life?
This moment is right to raise these questions also because of the historic and contemporary importance of Berkeley and the Bay Area as a hub for students, faculty, and activists engaged in contesting mass incarceration. The growing body of formerly incarcerated students and (soon) faculty at Berkeley and other leading institutions are at the core of this intellectual in-gathering and the opportunity it offers to understand and overcome this dire period in our common American history. Just as California has been the Mississippi of mass incarceration (see chapter 2 of Mass Incarceration on Trial), California's premier public university should be the leading national center of research, resistance, and restorative justice work.
The kind of synthetic thinking that a course thread invites is particularly critical at this moment when signs of change are everywhere and yet evidence of mass incarceration shape shifting and hardening into the American landscape is undeniable. Compared with the mid 1990s, when a broad consensus on expanding extreme punishments (life imprisonment, the death penalty) for felons that were perceived as threatening every corner of America, including its supposedly safe suburbs (remember Polly Klass), the climate of political discussion has changed dramatically. Decriminalizing or even legalizing soft drugs like cannabis, and ending routine incarceration for even dealers in hard drugs has become politically acceptable, while a wide range of political leaders call for strategies to reduce our reliance on incarceration for public safety (read Barry Krisberg's contemporaneous article here, may require library id). For three years, from 2009 to 2013, the nation’s prison population actually dropped in absolute numbers as releases crept over admissions. At the same time, powerful narratives of the imperative to incarcerate “violent”, “sexual”, and “serious” crime remain fully active despite a dramatic drop in violent crime since the 1990s. These terms, are inextricably embedded in racial meanings that are likely both historical and cognitive in operation, which means a carceral geography refocused on repressing crimes of these types will produce the same kinds of degrading policing, prosecution and imprisonment that we have now (only slightly smaller in scale). We do not even have confidence that the latter point will be true. In 2013, according to the federal government’s latest statistics (the prison population ticked up by a fraction (thanks to immigration based population growth our incarceration rate, prison population compared to overall national population, continued to tilt down). The struggle to overcome mass incarceration and its pervasive effects on the US population and landscape will take a generation or more, and it will require large numbers of active citizens with a commitment to see the job done. Those citizens will need not a broad toolkit of analytical frames and historical insights to address not just mass incarceration as it exists today but in the myriad of forms it is likely to take as the current crisis of legitimacy either deepens or stabilizes (its is already shape shifting before our very eyes).