Governing through Crime

Policing Disorder: Oakland's curious commitment to criminalizing occupy

2012-01-29T18:11:00.000-08:00

If you accept Oakland Mayor Jean Quan's framing of the problem here Saturday night, a crowd of unruly and overgrown children had a tantrum/play-date at the expense of Oakland's hard pressed citizens when some of the displays on the ground floor of Oakland's City Hall were vandalized (see the pictures in the SFChron here). Attacking a century old model of the city seems pathetic and mean spirited. But that framing places the attention on the second act of an event which began when an overwhelmingly peaceful march and a long telegraphed "take over" of the empty Henry J. Kaiser convention center on the shores of Lake Merritt and close to the campus of Laney College was confronted by a violent all out assault from Oakland riot police supported by units from nearby police agencies (read the reporting of David Baker and Vivian Ho in the SFChron here). It is clear that the vandalism in City Hall, pathetic as it is, was a response to police violence and not a provocation for it.

Why exactly was it necessary to use violence against citizens, and expend no doubt large amounts of money, to prevent Occupy protesters from setting up a symbolic protest occupation in the shell of an unused property that provides a potent symbol not only of Oakland's industrial past but also of the role of government in creating an economy for the 99 percent (Kaiser being the ultimate New Deal entrepreneur, see Alonzo Hamby's 1993 review of The New Dealers, by Jordan A. Schwarz, in the NYTimes here).

The Mayor's stated positions in speeches and interviews amounts to "its illegal". But that is a bit like those on the far right who find in the "illegal" status of people here without citizenship or proper visas, justification to strip people of civil and sometimes human rights. Just because its "illegal" does not mean that government should adopt a repressive response, let alone violent means to address it.

What if Mayor Quan had welcome the take over of the Kaiser Center with a speech about the role the New Deal had played in building a middle class centered economy for Oakland and then laid out the following conditions:

The "occupiers" must coordinate with the Oakland police to assure the HJK center is a safe environment for women, children, and all who are involved in or visiting the symbolic take over and that living conditions in the Center remain decent.

The "occupiers" must maintain a decent and healthy physical environment in the HJK Center and its surrounding landscapes, and commit themselves to undertake repairs sufficient to make sure the occupation is safe and that the building is in better shape after the occupation than before.

The "occupiers" must not use the HJK Center to stage acts of violence against people or property anywhere.

Why are the Oakland police and the Oakland political establishment so committed to criminalizing the occupiers? Oakland has enough real crime for the police to focus on. Why not negotiate a security arrangement appropriate to any "occupation" and then back off, taking advantage of the positive social organization that will take place around any active "occupy" site, and redeploy police to crime hotspots? These crowds, which include lots of people of all ages, including parents with children, should be welcomed in every part of Oakland. Frankly the city needs the energy. You simply did not read about Oakland in newspapers like the UK's Guardian website/newspaper before the Occupy Movement.

Talking ourselves down: Watching the Obama strategy on immigration deportation

2012-01-19T16:28:00.000-08:00

Julia Preston offers a meaty story on the Obama administration's initiative to use prosecutorial discretion to ease the severity of the nation's immigration law (read it here). At first blush, the story has little to suggest that this policy provides any help to those of use looking move the criminal justice system away from its rigid laws and policies channeling those arrested toward incarceration. After all, those who may receive a resolution of their deportation case will not be the ones with criminal convictions, who will be targeted as deportation priority cases. In some of the most sympathetic cases, profiled in the story, the detained aliens seeking release only became illegalized because of rigid state laws requiring notification of the Immigration Control and Enforcement agency and rigid federal laws preventing immigration judges from considering the individual circumstances of the person who is often in a family with citizens and contributing through legal work and good behavior to the community.

Still, this program is about moving people out of detention (albeit civil) through prosecutorial discretion legitimized by a reasoned effort to identify higher risks and to concentrate the government's coercive power on them while moving low risk individuals back into the community with as little harm to them and their families, and as little cost to the government as possible. The same reasoning applies to many of the two million Americans behind jail or prison bars as a result of rigid laws that in the name of public safety require incarceration with little consideration of the risk posed by the individual or the positive contributions they might be making to the community. California's "realigment" of correctional authority, which is moving thousands of felony convictions from state prison to county corrections and giving county decision makers more power to withhold incarceration for those posing low risk.

The move toward a more overtly risk based system brings serious human and civil rights concerns. How is risk assessed? Do dynamic factors get due weight or only static qualifications (like early arrest) that are partially determined by law enforcement? Still, our current approach in both immigration and criminal justice is worst, imposing higly alarmist risk perspective on entire categories of people.

Pardon Season

2012-01-10T05:09:00.000-08:00

It is January, the month when among other things political officials who have lost election, termed out of office, or simply decided to quit, leave their offices and their successors. Thus you'll always think of Presidents by their election year, but Obama became President in 2009, January 2009. In any event, historically the passing of executive leaders and the start of terms (or sometimes just the New Year itself) has been associated with the practice of pardoning prisoners. Sometimes, that meant all the prisoners, but more typically it has meant a select few. This kind of celebratory pardon, that marks the change in executives, as opposed to those based on meritorious consideration of a legal request for pardon based on changed circumstances or new evidence, is a fascinating reminder of the "old logic" of punishment, when the power to punish was an expression of personal sovereignty and its remission a sign of benevolence at the top. It also recalls a time when releasing prisoners was a populist gesture, intended to warm the hearts of the public and cause celebrating in the towns and villages to which sons and nephews thought dead or lost. It is in perfect keeping with this old logic that North Korea's communist monarchy marked the ascension of the latest Kim to rule nation with a sweeping pardon of prisoners.

In late modern democracies however, pardons are something of a scandal (recall what happened when Bill Clinton made sudden burst of pardons as he left office, some of them seemingly warranted by special generosity in donations to his Presidential library among other things. American politicians in the age of Governing through Crime never want to appear to be sympathizing with a criminal. Thus pardons even much merited by inequities in the original sentence and excellent behavior in prison and sitting presidents and governors tend to reserve their pardons for symbolic gestures to sometimes dead prisoners whose families have sought to clear their names. It is a sign that punishment is seen as an entitlement of the general public, a small "d" democratic festival of pain in which not executive charisma but public safety is the coin of the realm.

Well God Bless Mississippi. That's where you want to be on the day the world ends because everything happens there a couple of years or maybe a couple of decades late. Thus I should not have been suprised at today's AP story by Holbrook Mohr (read it here in the SFChron) describing Governor Haley Barbour's pardoning of five prisoners, four of them in prison for murder, as his term ended in Jackson, citing tradition. The recipients in this case invoked another old tradition, one that survived in many state houses through at least the 1960s (but I suspect has disappeared almsot everywhere else than Mississippi), inmate "trusties" who serve the governor and his family in their mansion. This tradition, which also invokes the monarchical logic of personal sovereignty (and slavery of course) generally involved prisoners serving life (who paradoxically had the most to lose since parole was expected but could be lost by bad acts). Barbour, who is nothing if not a traditionalist, defended his acts as a required gesture in no way intended to disrespect the victims of the crimes committed by the prisoners pardoned. Not surprisingly this was scene as anything but a populist gesture and was quickly seized upon by the opposing party.

The pardons outraged victims' relatives as well as Democratic lawmakers, who called for an end to the custom of governors' issuing such end-of-tenure pardons.

"Serving your sentence at the Governor's Mansion where you pour liquor, cook and clean should not earn a pardon for murder," Public Service Commissioner Brandon Presley, a Democrat, posted Monday on his Facebook page.

No doubt it is hard to defend the traditions of celebratory pardons or of having life prisoners working as personal servants for the governor. But its hard not to admire any mechanism that ends a lengthy imprisonment no longer required by public safety or respect for the seriousness of the crime, or that showcases trust in the potential for people who commit even the worst act to change for the better. Pardoning seemed old fashioned in the mid-20th century when prison sentences were often short anyway and when parole was reqularly used to release even those convicted of murder. Today, when a generation of tough on crime politics has eliminated parole in many states and led to an epic increase in the length of sentences for crimes, when ex-prisoners face a lifetime of economic and social exclusion, and when many states are struggling under the cost of maintaining historically huge prisoner populations we need to invent some new forms of remission.

Vietnam and Bad Habits

2012-01-02T10:25:00.000-08:00

NPR's Alix Spiegel offers up a fascinating feature on the contemporary social science of behavior change that sheds light on a forgotten corner of the war on drugs with lots of implications for present conundrums of criminal justice reform (read, What Vietnam Taught us about Bad Habits). When President Nixon described illegal drugs as "public enemy number 1" in his now famous June 1971 speech announcing the formation of a presidential "Special Action Office of Drug Abuse" he was responding specifically to a spike of public concern and media attention based on reports from two Congressmen who had toured Vietnam in May, that 15% of servicemen in Vietnam were addicted to heroin. As Spiegel notes "at that point heroin was the bete noir of American drugs" considered almost impossible to recover from. Those who had already sacrificed by doing combat service seemed poised for a life of drug addiction and despair.

Spiegel introduces us to Jerome Jaffe (remarkably still alive), the psychiatrist and drug addiction expert that President Nixon appointed to head up his new executive initiative, one aimed at developing effective practices to treat heroine addiction generally and in this Vietnam cohort in particular. Under this remarkable and little discussed project perhaps the most comprehensive effort in history to identify, treat, and follow up the treatment of heroine addiction was undertaken under the direction of one of the leading social scientists of her time, Dr. Lee Robins of Washington University (read her Wikipedia entry here).

Soon a comprehensive system was set up so that every enlisted man was tested for heroin addiction before he was allowed to return home. And in this population, Robins did find high rates of addiction: Around 20 percent of the soldiers self-identified as addicts.

Those who were addicted were kept in Vietnam until they dried out. When these soldiers finally did return to their lives back in the U.S., Robins tracked them, collecting data at regular intervals. And this is where the story takes a curious turn: According to her research, the number of soldiers who continued their heroin addiction once they returned to the U.S. was shockingly low.

"I believe the number of people who actually relapsed to heroin use in the first year was about 5 percent," Jaffe said recently from his suburban Maryland home. In other words, 95 percent of the people who were addicted in Vietnam did not become re-addicted when they returned to the United States.

This dramatic experiment is actually just the lead-in to Spiegel's real story, which is on what this incident teaches us about how bad habits are shaped and how we can change them. I want to return to her lead in a moment, but a few notes on this fascinating episode of politics, social science, policy, and power.

The Vietnam connection is a fascinating and little discussed aspect of the war on drugs. The specter of a drug addicted army surely played a crucial role in formulating the political culture around crime that we are still trying to recover from. Vietnam in 1971 was already considered a lost war and one that Nixon had promised to end. The heroin story surely helped lift some of the blame for the war from the politicians who had chosen it, and onto the backs of the very soldiers who had been largely conscripted to fight it.

Not only were they not going to receive a hero's welcome home, they were now stigmatized as drug addicts. As Spiegel notes, this seemed tragic but it also must have been alarming. At a time when Americans were already deeply fearful of violent crime often linked in the media with robberies committed to sustain a heroin habit, they were being told that a large minority of Vietnam vets were likely to be heroin addicts for the rest of their lives (without of course, knowing who, and therefore suspecting all). Whatever stigma the anti-war movement may or may not have caused Vietnam veterans through talk about war crimes in Vietnam, we can agree that it must pale behind this. Needless to say the impact must have been particularly profound for Black and Latino veterans whose expectation that military service would accelerate their economic and political progress in American society was at least in part undone.

The Robins study is fascinating on a number of different dimensions:

It highlights the fact that Nixon was perhaps our most social science oriented president (even though modern day conservatives have treated any social science other than economics and electoral political science as something akin to treason).

It also reminds us that a war on drugs, for Nixon was still much about treatment and rehabilitation rather than punishment. This was an era that still believed science based policies could address rising crime. It was fall to later politicians, both right and center left, to embrace a nothing works but prison attitude.

The self report finding of 20 percent is staggering (how many were reluctant to self identify?). Apparently what WWI was to cigarettes, Vietnam was to heroin, the launching of a consumer culture of addiction with lethal consequences. Surely this shadow of war has proved far more deadly (at least in the case of the expansion of cigarette use) than the actual fighting by a multiple.

The fact that those who did admit to being addicted to heroin were then subject to something a kin to involuntary detention in Vietnam for purposes of drug treatment makes this an extraordinary (if justified) chapter in the history of civil commitment.

Why did the good news that heroin addiction in veterans could be beaten (with fewer than five percent returning to heroine use) get so little cultural uptake (Spiegel suggests it was controversial but does that mean it was widely publicized?) May be the truth was just too far out of line with the cultural narrative about heroin to be convincing (which suggests just how unrealistic most "evidence based policy" aspirations may be). The result was disastrous. What might have been a just in time reminder that rehabilitation may be a realistic was to prevent crime, was lost on the eve of a shift in our penality toward exclusionary punishments.

Going back, briefly, to Spiegel's story about behavior change, recent research seems to provide a satisfying explanation for why Robin's 1970s study found such low recidivism rates. Vietnam soldiers were most people who were exposed to and got addicted to heroin in Vietnam. After being treated they returned to their communities in the US. While much our post Vietnam narrative is committed to describing that return as troubled, it appears to for the vast majority it was a world in which they no longer felt compelled to use heroin.

According to the behavioral psychologists interviewed by Spiegel, Wendy Wood of USC and David Neal, a great deal of our behavioral control is implemented through our spatial environment which routines are response so that we do not need to (or get to) think about much of what we do. For addicts this means that the routine spatial associations for use are a trigger that can and usually does overwhelm will based efforts to not use. The example given is smoking at the entry of an office building. For an addicted smoker, the approach to the building is a powerful signal to light up.

In the language of behavioral psychology we "outsource" behavioral control to the environment (something sociologists and anthropology also recognizes in Pierre Bourdieu's concept of "habitus") this suggest that self conscious efforts to change behavior, even if reinforced by a coercive state effort through police, courts, and corrections, face an up-hill battle unless they coincide with radical efforts to reshape the environment that a person is habitually acting in. This is likely not only to be true of classic addictive behaviors like drug use, but also other criminally relevant behaviors like aggression and theft.

Two quick notes on this behavioral lead of Spiegel's story (which is reflecting on the low odds that many of us will fulfill our behavioral new years resolutions).

Vietnam was not just another place, it was a place where soldiers were killed and being killed. Heroin use was not just another behavior, it was a behavior with a particular relevance to relieving the pain of inhuman conditions created by war. This suggests that the Robin's study may be less relevant to behaviors less determined by such extreme conditions (that is people whose addiction is associated with great pain may be easier to treat if the pain goes away). At the same time it may have particular relevance for behaviors associated with crime, which may be rooted in experiences of inhumanity, whether child abuse, grinding poverty, or degradation at the hands of the youth control complex (see Victor Rios, Punished).

This research seems particularly relevant to the problems of trying to reduce dependence on prisons in California. Prison first of all, is a particular environment, to the degree that we move large numbers of Californians out of regular contact with prisons we may actually have an opportunity to promote better behavior among the people we have been routinely sending to that highly criminogenic environment (change is not, of course, guaranteed by a change in environment, just facilitated). But second, to the degree that measure the success of alternatives to imprisonment in terms of behaviors like drug use and gang associations, we will face a difficult struggle so long as most people leaving prison are returning to environments that got them into trouble with drugs or gangs to begin with. We need to make sure our assessments acknowledge this "legacy effect" so that we do not prematurely dismiss innovative efforts to change behavior.

A Tale of Two Joes: Captain America and America's Toughest Sheriff

2011-12-16T08:14:00.000-08:00

The Obama-Holder Justice Department's full scale legal challenge to the man who has long called himself "America's Sheriff" (read Marc Lacey's reporting in the NYTimes here) is another indicator that the war on crime is continuing to wane, both in the commitment of federal and state budget to crime control activities, and in the ideological grip of "tough on crime" over the American political imagination. Joe Arpaio, five times elected Sheriff of Maricopa County Arizona (Phoenix) has been fixture on the Republican right in Arizona and nationally for years now, but he has also largely been above reproach from more moderate leaders of either party despite engaging behavior that ranges from clownish (dying the jail bologna green and the underwear pink) to obscene and degrading (jail webcams trained on showers, see Mona Lynch's article on Jail Cam in Punishment and Society here). The fact that the Justice Department is going after him now may be based on convenient timing (the investigation began under Bush and comes at a time when Latino votes are the key to Obama winning Arizona and perhaps the whole election) but it also indicates that the most cautious political team in the business calculates that tough on crime is no longer a shield of legitimacy.

As Sheriff Joe is hustled off the stage of history, let us not mistake this clownish thug for an aberrant example of our demented celebrity political culture (although is his as well). His basic program of cruelty, racism, and entertainment in the name of public safety is one that continues to be defended and practice in most states and by a Justice Department that has arrested and deported more foreign nationals than any administration in recent history (proportionate to its time in office). Nor have we seen the President make even the slightest move to challenge the orthodoxy of mass incarceration in America.

If Sheriff Joe is a comic book character it is reflection of our national decline. Consider Captain America (whose creator, Joe Simon, died this week at 98, read his obit here) whose inaugural issue in January 1940 depicted him punching Adolph Hitler (then romping over Europe)in the jaw. Our hero's used to beat up bullies; in the age of Sheriff Joe they became bullies.

Riots and Respect

2011-12-08T05:44:00.000-08:00

In another move that confirms its stature as the most innovative newspaper and news website in the English language world, the Guardian has been collaborating with a team of London School of Economics social scientists, headed up by (friend and) criminologist Tim Newburn, in an extraordinary qualitative study of participants from this past summers riots in London and a few other UK cities (read the series, Reading the Riots). The study confirms that at its core the rioting was a response to long term resentment over police tactics, particularly stop and search and above all the routine disrespect that lower class urban youth experience in their interactions with police. Most newspapers would have felt it sufficient to let right and left wing experts and pundits tell us what the riots meant. Asking rioters why is considered hopelessly naive if not perverse; as their behavior must be punished by silencing even beyond legal sanctions. But as Newburn brilliantly summarizes it (read his column in the Guardian here):

Indeed, we should listen because they have something important to tell us about policing in modern Britain. The concepts that young people – young rioters – referred to most frequently in relation to policing were "justice" and "respect". Their focus was on what they perceived to be a lack of each. Police officers – by no means all, but enough – target them, are rude, and sometimes bully them, they said. Much of what these young people talk about is, for them, just the daily grind of their interactions with "the feds". It is the sense that every time they are out on the streets, they face the prospect of being stopped, challenged and, from time to time, abused.

Newburn notes that the shared anger at the police among lower class urban youth stands in contrast to the "general public" which expresses confidence in the police in standard national crime surveys. Tellingly, however, this sentiment cuts across the behavioral divide that many assume away in their presumptions about such youth. While rioters were predominantly from this group they included many youth who are not part of a gang or criminal life style, they hold jobs, go to school, and operate inside Britain's increasingly exclusionary economy. It doesn't matter to the "Feds" who police them based on demography (and all too often race above all) rather than on the "reasonable suspicion"celebrated by law.

Needless to say this is all of vastly more than academic interest to those of us in the US. We have very much the same long term deficit of respect accumulating among our urban youth and very much the same policing logic as Victor Rios documents in his great book on policing and urban youth, Punished (I don't think this is a case of policy transfer so much as independent paths to the same bad practices, but read Newburn's book with Trevor Jones on Policy Transfer). The Occupy Wall Street protests have documented that the police have plenty of disrespect to pass around, despite decades of training (or at least talk about) in community policing, even to the predominantly middle class young adults that have made up its stalwarts. With the economy very likely in the pits, global warming doing its thing, and Obama and a Republican opponent locked in a campaign for the 5 percent of white suburban voters that are still undecided in July, it could be a long hot summer.

Let it snow, let it snow, let it snow

Zombies, Humanitarians, and the Twilight Zone Between Dignity and Security

2011-12-01T06:27:00.000-08:00

The shock is palpable. For those of us used to United States criminal justice as a baseline the decision seemed in explicable. According the news that broke yesterday, Norway's prosecutors have decided that Anders Behring Breivik is insane and should not face criminal prosecution (read the AP report here). Breivik was arrested last summer after methodically gunning down scores of Norwegian youths and young adults on an island conference center after allegedly setting off a deadly bomb blast near government buildings in Oslo. He himself described those acts as part of war to save Norway from Muslim immigrants. Prosecutors, based on the evaluation of their own forensic psychiatric experts, concluded that Breivik lives in a “delusional universe,” and should not be held criminally responsible. If their decision is approved by a judicial process, Breivik will go to a secure psychiatric hospital for at least three years, after which he could be released if found to be no longer a danger, rather than to a trial and imprisonment.

In the US insanity is also a possible basis for dropping a prosecution or acquitting a defendant with a similar result; only it rarely happens and certainly not in high profile cases. Consider the on going prosecution of Jared Lee Loughner, who killed several people at a Tucson store last Spring and critically wounded Representative Gabrielle Giffords; and who everybody agrees was deeply psychotic, but where the prosecution is fighting to the keep the case on track for a criminal trial and possible death sentence. By strange coincidence, yesterday also brought news that John Hinckley, who shot President Reagan in 1981, is seeking leave a psychiatric hospital for visits of up to several weeks at his mother's home, more than 30 years after being acquitted by reason of insanity. News that Hinckley would escape "punishment" and "prison" led to popular outrage and a significant shift in state and federal law to narrow the grounds on which a person may be acquitted by reason of insanity. Now even people who both prosecution and defense agree are and were deeply psychotic, and who killed in the midst of severe delusions, are likely to be convicted of murder and sent to prison for life or perhaps even executed (so long as they are not insane at the time of execution). In the meantime the suggestion that, Hinckley who has been in remission for decades and has apparently threatened no one since being hospitalized, be released is raising strong opposition from present and former prosecutors.

The contrast between the two nations should shock us. But the question is what kind of conclusion to draw about which nation is extreme. San Francisco Chronicle columnist Debra Saunders offers in vivid terms what I suspect many of my fellow citizens (and possibly even readers) think (read her column here):

So why do I think Oslo's chosen experts have decided that Breivik was insane? They're so sublime, they don't know how to recognize evil.

Saunders sees Norway as epitomizing a perverse and elitest commitment to humanitarian values like dignity,while no non-sense American justice delivers security to ordinary citizens by dealing harshly with those that would harm them. In Saunder's view, admittedly drawn from the nightmare world of US popular media, people like Norway's prosecutors or Americans who oppose capital punishment and mass incarceration, are practically allies of the evil doers.

In AMC's zombie series "The Walking Dead," tensions build between an old-fashioned veterinarian farmer named Hershel Greene - who thinks zombies have a disease that may be cured someday - and a caravan of gun-packing refugees led by Deputy Rick Grimes. Because Hershel wants to protect the zombies he has hidden in his barn, he orders Rick and company to leave his property - even though leaving could make Rick, his family and friends easy pickings for the undead.

It's disturbing how self-congratulatory humanitarians can be willing to endanger the lives of others in order to maintain their worldview.

As a columnist Saunders often has the lonely task of defending conservative views in admirably witty style, to liberal San Francisco, but on this note I suspect she's singing with the chorus not only here but in most of California, and thus her logic is worth a closer examination for what it tells us about our penal imaginary. Saunders sees people who commit violent crimes, or may be all criminals, as zombies, monsters who have forfeited all claim on our humanity, and who can never change their instinctual drive to kill innocent humans. Those who think they can change them are not only pathetic, but dangerous themselves, because they can use their cultural and legal power to stop righteous avengers from using violence or permanent imprisonment to destroy or incapacitate the monsters.

It is all too tempting as a criminologist to dismiss columnists like Saunders as, well, delusional. But her vision accurately reflects a culture of fear in the Golden State, built up by a variety of social, media and political trends over the past four decades and which has produced nearly a thousand people on death row and a prison system holding more than four times the portion of Californians incarcerated in the 1970s (when serial killers were actually common in the state). The prisons, whose overcrowding and humanitarian crises shocked even the US Supreme Court in Brown v. Plata hold tens of thousands of seriously mentally ill prisoners, most of whom probably committed their crimes due to untreated mental illness and who are not receiving adequate treatment to control their disease while in prison.

For not only Debra Saunders, but many Californians, prisons are acceptable (despite their obvious failures) because they contain monsters who would otherwise be in your community or house. In this view, it is civil rights lawyers and and hapless humanitarians who endanger Californians by demanding dignity and human rights for prisoners. In reality, security is more of a twilight zone, where extreme efforts to punish and incapacitate our way to safety regularly backfire (remember Abu Grhaib) and where creating real security requires both courage and dignity. Consider San Francisco where Saunder's lives or at least writes from. There in 2008 a teenage girl was almost beheaded by a knife wielding man. The girls family sued the state for failing to protect her. Was he released early by some naive humanitarian parole board? Hardly, according to Saunder's newspaper, the San Francisco Chronicle (read it here):

The suit claims Scott Thomas, who was suffering from bipolar disorder, was never treated during his months in solitary confinement in San Quentin. After he was released without supervision on May 18, 2007, Thomas randomly stabbed Loren Schaller, now 16, and 60-year-old Kermit Kubitz at a bakery near Miraloma Park.

Thomas, 26, who was sent to prison nine times for nonviolent crimes between 2000 and 2007, has been declared mentally incompetent to stand trial and is incarcerated at Atascadero State Hospital.

Dealing with those who commit terrible acts of violence, whether psychotic or not, will always pose the gravest of problems for government committed to law and human rights. Punishment as an expression of social solidarity, as well as to provide a guaranteed minimum of incapacitation has its place. People may be responsible for buying into hateful beliefs about others, even when their disease leads them to make deranged judgments based on those beliefs that no healthy person would make. Norway has chosen a strikingly different path to the ours. I'm not sure its the right one. Did the prosecutors give enough weight to his racist ideology? But I do respect Norway's sense of penal restraint. As Saunder's notes, even if Breivik was convicted he could not have faced either the death penalty or life without parole, sanctions which are both inhuman and unnecessary but common in California. But he is also likely to spend a lot longer than three years in secure psychiatric confinement, where Norwegian authorities can hold him for the rest of his life if they deem it necessary for public safety. In the meantime in California, where both Debra Saunders and I live, we have proven that abandoning your humanity and dignity in in the name of security, cannot make anybody safe.

Adding Injury to Insult: Campus Police and University Administrations

2011-11-19T17:27:00.000-08:00

Students today at public universities like the University of California and the California State University systems have significant reason to feel insulted. In just the past decade tuition has more than doubled at UC and nearly tripled at the Cal State system. They have to listen to lectures from people like me who went to UC for almost nothing and have had, in many cases, great opportunities to pursue our ambitions and passions, while they face the prospect of graduating with tens of thousands in debt into a job market that is likely to be stagnated for years.

Mobilized by the nationwide "Occupy Wall Street" movement, and with perfect reason (noting the relationship between government for the 1% and the long term strangulation of public higher education) students at several UCs have undertaken non-violent occupations in settings, like Sproul Plaza in Berkeley, that pose no significant burden to ordinary University activities. But rather than finding that University administrations have their back, students, and those faculty and staff protesting with them have been violently set upon by police.

The week before last it was the Berkeley campus, where police used batons on non-violent demonstrators linking arms around a tent encampment (videos and reporting from Bay Citizen here). Yesterday it was UC Davis, where videos clearly show police calmly pepper spraying passive sitting students preparatory to arresting them (NYTimes coverage here).

The Chancellors at both universities have called for investigations, but the real question is why police were ever deployed to clear these assemblies at all. Since 9/11 campuses have begun to define even non-violent protest and civil disobedience as an unacceptable threat to security the prevention of which warrants the ready use of police violence. Videos show a policing approach in which casual use of chemical weapons, non-lethal guns that look like automatic weapons (but shoot cotton pellets), and batons. In the absence of reasonable suspicion of violence, non-lethal offensive police weapons should not be brought to or displayed at peaceful campus protests. They serve only to chill speech, provoke panic, and become a moral hazard in favor of violence. Using police force to clear peaceful campus protests should be a last resort only when negotiations and passive measures have failed to restore vital university functions.

The focus of investigations should not just be on individual police misconduct but on misguided university administration policies that have treated their own students as an intolerable threat to university security. More than even the tuition increases these policies raise the question of whose benefit these universities are operating for.

Governing the Occupy Movement through Crime

2011-11-15T07:16:00.000-08:00

In many cities, including most prominently Oakland and New York, tent encampments on public spaces by the Occupy Wall Street movement have been cleared in early morning raids by police (read about the Oakland situation here). This time, at least, police violence seems to have been minimal. But what is regrettable is the use by city leaders of the lame excuse that "crime" problems necessitated the end of the encampments. It may be that the Occupy Wall street movement must generate new meaningful actions to build its momentum, but the claims that the encampments were generating unacceptable levels of crime is both false and reflexive.

To the latter point first. The gist of the argument behind this blog, and the book, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear,is that political leaders facing a chronic legitimacy deficit since the late 1960s have frequently used protecting citizens from crime as the least problematic way of justifying the exercise of power.

In Oakland this played out in almost comic precision. Hemmoraging legitimacy after first clearing the plaza in a violent police sweep and then letting the Occupy encampment be reestablished Mayor Jean Quan seemed paralyzed with indecision about what to do about the camp until a murder on the periphery of the encampment last week gave her a crime cover. Having supported the goals of the occupation and accepted encampment as a protest tactic the Mayor now found an imperative requiring the preventive clearing of the site (read the full story in the SFChron here):

"The encampment became a place where we had repeated violence and, this week, a murder. We had to bring the camp to an end before more people were hurt."

[Based on radio reports this morning, Mayor Bloomberg is also citing public safety as a prime reason for clearing Zuccatti Square.]

While the details of the murder investigation are unknown to me, there is little reason to believe from what we know thus far that the encampment created a context that made such a killing more likely. Far from it. As media attention to the encampment has disclosed to many casual observers, Oakland has loads of homeless men, many of them battling symptoms of mental illness, life long drug abuse, and the soul destroying impact of mass incarceration. The city also has lots of young men punished and pushed out of schools and toward jail (read Victor Rios' superb book Punished for more on that) whose search for dignity takes them into deadly games of gang competition and related honor violence. These troubled populations, frequently churned by law enforcement, prison, and parole, has been a source of crime and insecurity in Oakland for decades; Occupy Oakland didn't bring it there, and based on published reports did not make it worst.

Indeed, as a criminologist I would suspect the encampment may have provided a temporary context and social network that was very positive for individuals marginalized by the empty rungs on Oakland's post-industrial economic ladder and generally punished by government interventions. For a short period, many of these individuals found themselves gathered in a common political and social enterprise with highly educated and employed people who generally don't share the same social network. A more confident mayor of Oakland might have invited the Occupy Oakland movement to set up satellite Occupy encampments in some of the hard pressed Oakland neighborhoods where young people desperately need a positive pro-social movement to be involved in which gives them hope and dignity while teaching them tools of political involvement and non-violence.

What ever the Occupy movement does next it should be judged on cogency of its message and the dignity of its tactics, and not stigmatized by a crime problem that belongs to Oakland, its Mayor and its police department.

The Police Are Not There to Create Disorder....

2011-11-10T07:52:00.000-08:00

Other gray hairs will recall this as the first clause of one of the late Mayor Richard J. Daley of Chicago (a man my father honored by calling Joseph Stalin the Daley of world history, read his wikipedia entry here) most famous malapropisms; becoming exasperated at a press conference during the disastrous Democratic National Convention of 1968 the Mayor exclaimed: "Gentlemen, get the thing straight once and for all– the policeman isn't there to create disorder, the policeman is there to preserve disorder."

But create disorder the police did in Chicago, smashing heads of anti-Vietnam war protesters and journalists alike, and leaving the city with an image of violence and disorder that would replace that of Al Capone for a generation. The violence may have played well in the Mayor's reactionary machine politics base, but nationally and internationally it gave the city a black eye. As for the Chicago police, an entire generation grew up thinking of them as fascist thugs, a sentiment exuberantly exorcised by John Belushi and Dan Ackroyd in the ballet like destruction of numerous Chicago Police cars in the movie Blues Brothers (1980).

In contrast, where we lived in a south side neighborhood adjoining the University of Chicago, the tumultuous late '60s and early '70s passed with nary an exciting police-student clash. University of Chicago President Ed Levi (who died in 2000 and whose centenary is this year) tried an unconventional strategy to deal with the campus strife of the 1960s. Levi had a university police force that was reputed to be the third largest force in the state of Illinois at his disposal, but when students dug trenches on the quads and tried to mount a Columbia/Harvard type take over, he resolutely ignored them and refused to call out the police. Eventually, boredom and the Chicago winter cleared the camps without a dramatic media centric confrontation. Levi came out of the period with a reputation as the best university president of his time and was appointed Attorney General of the United States by President Ford. His successful efforts to restore confidence in the legality of executive power in the aftermath of the Watergate and Ford's pardon of former President Richard Nixon, made him one of the top AGs of the 20th century.

Berkeley in contrast suffered multiple violent incidents as anxious administrators, opportunistic politicians like Governor Ronald Reagan regularly unleashed police and ultimately military power to repress the genuine anguish of a generation ripped apart by an an unwinnable or even explainable war. But the University kept repeating its mistakes. I was an eye witness to the most violent incident between People's Park and the present, the "Shanty-town riot" of 1985 (read about the events here). Twenty five years ago this spring, with the apparent approval of Chancellor Ira Mike Heyman (who was off campus that day and I hope badly misled by his advisers) the University authorized a massive police onslaught against a group of mostly student protesters who had built "shanty" structures of found wood and cardboard in the broad lane adjoining California Hall to protest the University's continued investment in corporations doing business in South Africa. Multiple police forces deployed with riot gear to clear a peaceful Shanty town in an ironic role play of real Apartheid tactics in South Africa.

Disinvestment turned out to be a winning cause ultimately endorsed by even the Republican Party and widely credited with helping speed the transition in South Africa. There was no danger that Spring night that warranted a violent police assault on a group that the University was presumably in a relationship of responsibility toward. Outraged students confronted police with the most sustained counter attack they had seen since People's Park. The alleged violent resistant by yesterday's demonstrators (of which I see no evidence) pales in comparison to the rocks and missiles thrown at police that night. I saw it all from the jail bus where I had been tossed along with fellow law student legal observer Osha Neumann before the attack on Shanty town began. The riot left scores of students injured, numerous lawsuits by injured protesters and several nearly wrecked Alameda County Sheriff's buses (yours truly faced felony charges and an official two week ban from coming to campus; the former eventually dropped and the latter promptly ignored).

Unbelievably, despite this clear history, UC Berkeley's leadership has once again over reacted to student demonstrations by calling out not just the campus police, but the infamous Alameda County Sheriff's officers (the Blue Meanies of the 1960s) who as so many times before marched in like the Imperial storm troopers in Star Wars and beat students for no apparent reason (see the youtube video here). What possible reason was there for this senseless creation of disorder that outstripped the disorder it was intended to prevent by a significant degree? Why was preventing a tent encampment on Sproul Plaza deemed a matter of urgency sufficient to risk the injury or even death of students and other protesters? What better place is there for such an encampment than Sproul plaza, a space dedicated to free speech? It is also a space where students can easily participate in a potentially historically important moment of democratic awakening in this country, and without having to miss classes (and which prevents no one else from attending classes or getting to their lab or library as building occupations do).

Our students (as well as everyone else here) are facing the worst economy since the Great Depression, and the rapid disappearance of a public higher education that was delivered to the generations of Californians. The protest sought to tie the rapid decline of public higher education to the disastrous financial crisis brought on by the casino capitalism promoted by the financial industry for its own benefit. They deserve our sympathy and our support, not a boot or a baton in the face.

Mayor Daley had it right the first time. The police are not there to create disorder. Chancellor Birgeneau and his leadership team must explain to this community (both academic and otherwise) the rationale behind decisions that led to this incredibly damaging result; one which has endangered our students, our faculty, and confirmed our reputation as a university that regularly mismanages protest.

Ed Levi where are you when we need you?

David Onek for SF DA

2011-11-05T18:04:00.000-07:00

California's dramatic pivot toward giving counties primary responsibility for punishment over a wide swath of persons convicted of felonies, a policy known as realignment, is the most important move toward dismantling mass incarceration in this state in forty years. As I have argued here before, there is both great promise and peril in this experiment. If counties end up sending most of these felons into already often over-stretched county jails for longer sentences than such jails have ever been used for, mass incarceration will only have broken up, like a bubble in a water filled souvenir snow globe, only to reappear in a panoply of fragments. However, if large urban counties where many felony convictions originate, but also where many of the skills necessary to manage crime related risks are concentrated, vigorously pursue alternatives to incarceration, combining smarter risk management with restorative justice methods, California could once again lead the nation in reinventing penality (this time in a good way).

This high risk experiment will play out in each county, and no figure is more crucial to how it comes out than the District Attorney, that is, the elected chief prosecutor who determines what charges to bring and what sanctions to seek for every criminal charge brought in California. In chapter 2 of my book Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear,I argued that prosecutors had emerged as the strongest political expression of the war on crime. While DAs have often moved up into higher office, the war on crime had given them an even more powerful momentum, and had reshaped the aspirations of higher executive officers like mayors, governors, and presidents, who often seemed to vie to be a kind of "prosecutor in chief." As the primary political beneficiaries of growing public concern about crimes, prosecutors played a crucial role as accelerators of mass incarceration; using their wide discretion to send people to prison who don't need to be there, and to send others to prison for decades longer than they need to be there. But that same discretion gives them enormous potential to steer us away from mass incarceration if they choose to, a potential magnified by realignment.

Thus the most important thing voters (especially in California) can do to reduce mass incarceration and help realignment work out in the best direction, is to elect District Attorneys that have their eyes on that prize and have the skill set to achieve it. I wish I knew more about the DA candidates on the ballot up and down the state this Tuesday, and could make recommendations. However I do know enough to make a recommendation in the San Francisco race. I had the opportunity to work with David Onek when he directed the Berkeley Center for Criminal Justice. I have nothing bad to say about any of the other candidates (but I wouldn't want the former police chief of San Francisco to be its DA for a host of reasons that have nothing to do with the current incumbent, but would take several longer posts to explain). David has a unique skill set for this job, combining administrative skill, a powerful commitment to finding innovative ways to reduce crime and increase a sense of justice, and tremendous insight in the research relevant to making the best possible use of the enhanced opportunities created by realignment. If you live in SF, please vote David Onek for DA. If you have friends or relatives who vote there, please send them this post and ask them to consider voting for David.

The main criticism of David is that he has never worked as a prosecutor. But elected DA's do not try cases (unless they want the glory for political reasons), they help set policies for the office and assure that they are carried out effectively. Experience can be a great benefit, but today we have a unique need for leaders who can navigate through dramatic and uncharted change. What we need now, more than ever, are prosecutor-leaders who have not bought into the war on crime/mass incarceration paradigm (which is a risk of anyone who has had too much experience), and who have the leadership skills to bring their line prosecutors into the decarceration strategy. We also need visionary leaders who can help set the agenda for other counties. David is a tremendous listener and communicator (watch his interviews with criminal justice leaders on the Berkeley Law website here) who could define the best practices for realigment throughout the state.

Early Release

2011-11-01T07:49:00.000-07:00

Today marks the beginning of a process that is likely to see thousands of federal prisoners convicted under the notorious 1980s anti-crack laws set free years earlier than their original sentences called for. These laws set a 100:1 ratio between crack and powder cocaine for sentencing purposes under federal laws. Harsh mandatory minimum prison sentences (a fad during the late 1980s) that kicked in for people caught possessing more than 500 grams of powder cocaine (a large scale dealer one would imagine), kicked in for someone carrying a mere 5 grams of crack cocaine (who could be merely a user contemplating a binge).

The difference in treatment, which has proven indefensible in criminological or pharmacological terms, had an undeniable racial impact, selecting blacks for especially long sentences. After years of criticism, Congress finally enacted a reform law reducing (but not completely eliminating) the differential and President Obama signed it into law last year. As a result, according to Jessica Gresko's reporting for the AP (read it here) as many as 2000 federal prisoners will go free this year and as many as 12,000 over the next several years, based on sentence recalculations carried out to implement the law by the US Sentencing Commission.

But as much as there is to be said about the perniciousness of the crack cocaine sentencing law, the other part of the story is the importance of the precedent that has been set here about early release. In recent decades, politicians have locked themselves into the view that no one sent to prison, should ever be released early (remember Wilie Horton). As a result most states and federal justice system are criss-crossed with rigid laws, like California's absurd three-strikes law, that lock in very long sentences and guaranteeing that our prisons will become the new retirement system for the middle aged.

That is why despite the distinctive politics behind the crack cocaine sentencing revision, it is a precedent that should be generalized. The releases beginning today are powerful testimony that harsh laws, enacted in the glare of alarming media coverage of a crime "trend" (in that case the new super drug "crack cocaine" that was supposedly turning the inner cities into zombie lands), can be revised. The resulting effects, which will hopefully be carefully studied by criminologists, may offer evidence of the enormous gain our stricken society could gain from pursuing a much broader early release agenda that would see the repeal of so called "truth-in-sentencing" laws that prevent early release through parole and reconsideration of many sentences "super-sized" in the era of boundless prison expansion. Over the coming months and years, thousands of people whose incarceration was once deemed essential for public safety are going to be released. The federal government will save millions of dollars. Thousands of families will be reunited producing incalculable ripples of pro-social effects. Given that most people released are in their thirties and forties, and have served years already in prison, the likelihood is very little new crime will result.

Who sets the captive free

2011-10-19T08:14:00.000-07:00

Looking at the pictures of Israeli soldier Gilad Shalit being released from six years of captivity under the Hamas regime in Gaza, and the scenes of scores of Palestinian fighters being released from prisons in Israel, I could not help but think of the verse in the traditional Jewish morning prayers, the Amidah, in which the worshiper praises God for many kinds of acts on behalf of humans including, "who sets free the captive" (in some translations). Those words have always amazed me. I understand why we would need God to raise the dead, and perhaps to heal the very sick, but cannot we free prisoners on our own?

There is of course, an interesting theme in TORAH concerning the role of God in human decisions about freedom (think of Pharaoh's heart being "hardened" against freeing the Israelites); as if the almighty were daring us to raise the more fundamental question of when humans really can choose anything freely. But it also reminds us that there is something divine in the freeing of any prisoner, an act of trust, faith, and belief in the possibility that tomorrow will be different, and that we who hold the captive can escape our own prison of fear.

For now, as Ethan Bronner reports (here) in today's NYTimes, the site of prisoners being released has hardened hearts on both sides of the Israel/Palestine conflict.

Israelis, at first thrilled at the sight of their liberated soldier, were angered by how he looked — frail, wan and underfed.

Hamas officials said their members had been subject in Israeli prisons to “torture, compulsion and revenge.”

The overall strategic assessment, appears equally bleak, with the deal having strengthened to two elements in the Israel/Palestine sovereignty conflict most associated with rejection of compromise, Hamas and Netanyahu. Call me an optimist but I think the shifting of the conflict, even temporarily to the prisoner front is a good thing. Each side and the world should now look hard at these prisoners and demand an accounting for how they were treated.

In that regard Hamas should hang its head in shame for releasing Shalit in a visibly emaciated and sickly state. Any claim in the world that they represent the legitimate aspirations of Palestinian people is put into question by this image, and by their decision to deny Red Cross access to their prisoner. Shalit's own testimony will tell us more about the conditions under which he was kept. Perhaps Hamas can convince us that it's own status as a hunted outlaw organization, and the all seeing eye of Israeli intelligence, explains the necessity of both conditions, but it will be against a heavy burden of proof on a regime that has all the attributes of statehood other than legitimacy.

At the same time, they should present their prisoners to the world to back up their claims of "torture, compulsion and revenge." These are the right questions to ask of the means and motive of any regime of imprisonment, no matter how presumptively valid (Hamas might want to look into the mirror of "compulsion and revenge" while they are at it). Israel also must regret its ill advised decision just this September to strip Palestinian prisoners of many of their opportunities for communication and education, to increase pressure on Hamas to release Shalit. Nobody assumes Israeli prisons are as crude as the conditions under which Gilad Shalit was held, but long term imprisonment presents a path to degradating and inhuman treatment just as inexorable as bad conditions and lack of nourishment. Things that can seem like frills in the abstract, communication and education, become essential to the maintenance of human dignity when the years turn to decades. Israel must also question the validity of holding so many prisoners and for so long. Mass incarceration makes no more sense as a military strategy than it does as a crime control one. Suicide bombing has stopped because of the barrier wall and the political choice of Hamas to rely on rockets, not because there are not enough demoralized young people to carry them.

I am most hopeful because the debate about the prisoners has the chance to elevate a conflict that has been for too long about blood and soil, and bring it back to the real interests of the human beings on both sides. The Egyptian video-taped interview of Gilad Shalit as he was transferred from the custody of Hamas may raise ethical questions, but you could not escape the simple dignity of Shalit's quiet and deliberate answers to the journalist's questions. The story of a mother fainting on hearing the news that her daughter, an attempted suicide bomber, would be on the bus returning after twelve years in prison (read Chris McGreal's reporting in the Guardian) reminds us of the shear physical power of our bonds to our children.

The captive, stripped of the elements, bomb belts and uniforms, which once made him or her a threat in the eyes of the captors, becomes, in the end, a human being, and a representative of the divine in all of us.

Realignment and Beyond

2011-10-07T07:04:00.001-07:00

Earlier this year, Governor Edmund G. Brown Jr. signed Assembly Bill (AB) 109 and AB 117, historic legislation that will enable California to close the revolving door of low-level inmates cycling in and out of state prisons. It is the cornerstone of California’s solution for reducing the number of inmates in the state’s 33 prisons to 137.5 percent design capacity by May 24, 2013, as ordered by the U.S. Supreme Court.

As the above quote from the California Department of Corrections and Rehabilitation's realignment website, suggests, it is the most important shift in penal policy in California in forty years, but few appear to care about it. Desultory media coverage is matched by the equally desultory opposition of the formidable crime warriors that line the corridors of the California legislature. The title is vague, and perhaps designed to sound boring (even if it hints of profound change). Even while describing it as historic, the Governor has largely suggested it is a necessity for complying with the recent mandates of the federal court with the modest goal of achieving a prison population that is at 137.5 percent of design capacity by 2013. But make no mistake about it, realignment legislates the end of mass incarceration as we've known it.

Realignment has lots of moving parts but two particularly significant elements. The first redefines the punishments available for felonies in the state. Historically, following the common law tradition, California law defined as a general matter, death, or state prison, as the authorized punishments for all felonies (unless otherwise prescribed by the specific offense terms), with a limited option for county jail for a period not to exceed one year. Realignment would remove that one year cap, making county jail a potential sentence for felonies. The law however excludes "serious" or "violent" felonies (technical terms including scores of specific offenses, some not as serious or violent as you might imagine), as well as a laundry list of non-serious, non-violent offenses that law enforcement wanted excluded (mysteriously including "dealing in horse meat"). (download a legislative summary here).

This provision might seem to only trade one form of incarceration, state prison, for another, county jail time; a cynical shell game designed to relieve court pressure without altering our basic addiction to incarceration. There is more potential for change here than meets the eye. Historically it was assumed that persons sentenced to more than one year of incarceration were better off in prisons which were larger facilities, with more opportunities for education, rehabilitation, and employment. Today, after decades of building warehouse prisons aimed achieving only custody, the state prison system is a humanitarian disaster. County jails may have their own problems, but they are typically located closer to the communities that California's prisoners come from, permitting family ties to be sustained and opening access to educational and rehabilitative resources that are far more available, at least in the urban counties from which the vast majority of prisoners come. Potentially more importantly, the law grants broad new authority to counties to assign "low risk" inmates in county jail to home arrest and electronic monitoring. This gives counties the option to replace traditional brick and mortar custody with enhanced supervision and surveillance methods, a move that criminologists have been advocating for decades, but which has been considered an anathema in California's "total incapacitation" penal policy.

Equally important, realignment fundamentally reshapes parole supervision in California. Since the late '70s, virtually all California state prisoners faced a 3 year period of parole supervision in the community under the authority of state parole officers and subject to return to prison for even technical violations of parole. Once parole worked as reentry agency with the ambition of keeping prisoners from going back to prison. But as documented in my first book, Poor Discipline: Parole and Social Control of the Underclass, 1890 to 1990s, California turned its system into a fast-track system for recycling parolees back to prison. Starting in the 1980s, roughly half of California prison admissions have come from parole revocation. The resulting churning of this population, with very short prison sentences (typically 4 to 6 months) for revocation, followed by release with little planning or provision, has been widely condemned for wreaking havoc with prisons while providing less than zero crime control benefits (in effect creating crime). Realignment keeps the three years of post-release supervision but moves responsibility for that supervision to county probation agencies for a significant portion of the prisoners (excluding the serious and violent offenses, as well as various sex offenses). Parolees under county supervision will no longer be subject to return to state prison for technical parole violations and by the authority of the Board of Parole Hearings. Now county courts, the same authorities that sentence offenders charged with crimes, will have to decide on the appropriate sanctions (which could include county jail).

As this blog has advocated before, reducing the role of state parole supervision is by itself a step forward. County probation, while subject to resource constraints, has sustained an institutional culture more oriented toward rehabilitation and reentry than state parole which was assimilated into the custody oriented approach of the prison system decades ago. Moreover, by channeling decision making from the rubber stamp Board of Parole Hearings, which rarely rejects re-imprisonment for parole violations, to county judges, realignment ends the perverse incentive to use state prison as a tool for all kinds of low level violation behavior. Judges who see both parole violators and newly criminally charged defendants can apply a common standard of public safety to both groups.

These two aspects, widening the role for counties in the punishment of felonies and eliminating (or at least significantly reducing) the wholesale recycling of parolees back to state prison for technical violations, go a long way to ending the policy of mass incarceration in California. The heart of that policy was the assumption that removing offenders of all sorts from their communities and placing them in state prisons would make those communities safer. This indiscriminate quality to mass incarceration is a significant part of what led the scale of imprisonment to grow beyond any reasonable bounds and become a humanitarian crisis in California. It also contributed to abandonment of any ambition to provide rehabilitative programming in California prisons or to invest in significant reentry efforts for those leaving. If crime goes down simply by locking more potential criminals up, than rehabilitation and reentry are irrelevant.

These changes are historic and great credit goes to the Coleman and Plata litigations (culminating in the Brown v. Plata, Supreme Court decision in May 2011) which has dragged the state's political class into a long delayed reckoning with our fatally flawed penal system. But realignment leaves in place, and indeed reinforces, one crucial remaining aspect of mass incarceration, the extreme extension of sentences for serious and violent crimes. California prisons are increasingly filled with prisoners sentenced to lengthy or even life terms. The lifers, a group that due to Three-Strikes now includes roughly a fifth of the entire prison population, faces decades in prison and poor prospects for ever being paroled (although there are signs the parole process may be becoming unfrozen). Realignment will only increase the concentration of such prisoners in the state prison system. This will leave us with a smaller prison population perhaps, but one made up of prisoners with little hope or incentive to creating a dignified and safe culture inside prisons. Indeed the management problems created by such a concentration of hopelessness could make our prisons even more degrading than they are today for both prisoners and prison staff.

California needs to fundamentally revisit its sentencing policies for serious and violent crimes. Three-Strikes needs to go and parole release mechanisms recalibrated to assure that prisoners who avoid conflicts and work on their risk factors see a realistic path to freedom. These will be far more controversial moves than realignment and opposition from both Democrats and Republicans in the legislature (and presumably the Correctional Officers union) will be fierce. One step, however, that the Brown administration could take now and with no legislative authorization needed, would be to announce the end of the supermax regime in place at units of Pelican Bay and Corcoran state prisons among others. It is these units, Secured Housing Units, as they are described in California, that are the main focus of the hunger-strike by prisoners both in and out of the SHU, which is continuing across multiple California prisons this week.

The SHU regime of being locked down to your cell for nearly 23 hours a day every day (and in California amazingly you are in many cases sharing this tiny space with a second prisoner) in adds sustained physical suffering and potential psychological disintegration to the already degrading circumstances facing long term inmates. Assignment to a supermax or SHU unit is an administrative decision taken within the Department (which is the executive branch) and not part of the legal sentence imposed by judges based on legislation. Moreover the evidence about violence inside the prison system suggests it is increasingly difficult to justify the SHU as a management tool. An announcement that the SHU system would be wound down and replaced by new strategies for addressing those prisoners who do pose a serious risk to prison staff and other prisoners within two years (that is by the time the Brown decision requires the population reduction target to be reached) would send a ray of hope into this dark core of mass incarceration that is, as yet untouched by realigment. In subsequent posts I will address some of what these new strategies could look like.

Cupcakes, Affirmative Action and Mass Incarceration

2011-09-28T06:25:00.000-07:00

Yesterday Berkeley's College Republicans were generating big crowds on Sproul Plaza and big media coverage with a retread of an old bit of anti-affirmative action agit-prop; a cupcake sale in which prices were set by race (just like academic "preferences" for students of color in admissions, get it). (read Nanette Asimov's reporting in the SFChron here). There was already a large crowd of counter-protesters and reporters on hand by the time I rolled my bike onto campus, otherwise I might have fought my way to the BCR table to buy a half-a-dozen or so. I've always thought affirmative action was a hugely good deal for America (especially white Americans); purchasing, at a very small price, a modicum of legitimacy as it seeks to lead in a world awash in diversity and in the governance of a tremendously unequal and coercive society at home.

However I was disappointed that my fellow progressives mostly fell into predictable response patterns; denouncing any opposition to affirmative action as racist, trying to explain why price discrimination (which of course is a routine feature of our society, try "buying" a loan if you are living in a traditionally Black or Latino neighborhood) is wrong but affirmative action is not, or claiming to have suffered emotional injury by the BCR's tactics. The right loves talking about affirmative action. It's a winning "wedge" issue for them.

An alternative would have been actions focused on California's mammoth prison system and the vast network of sentencing laws that keep it filled largely with people of color (laws which Republicans have supported with unbridled enthusiasm). If College Republicans are offended by educational admissions policies that allow race and gender to be considered as part of a holistic individualized look at the application, what do they think of a state run system in which virtually every aspect of life from cell assignment to job assignment to who cuts your hair is determined by race? Do they support laws that guarantee a steady flow of admissions to prison of men of color, with little regard for their individual culpability or the risk they pose to the community? Where is their outrage for a state that cooperates in handing prisoners over to racist prison gangs so they can return to their communities scarred by racist ideologies, bound into criminal networks, and shadowed by real and imagined enemies?

This system, which has been repeatedly condemned by the right leaning US Supreme Court, has become a vast sink hole into which the state's fiscal and moral capital has been poured, and California's Republican legislators have demanded to keep digging. The truth is that whatever you think of affirmative action in college admissions, it's a tempest in a teapot compared to the category five hurricane of mass incarceration which threatens the health of this state in every sense.

That message would also have put students on the side of thousands of California prisoners who are beginning a hunger strike this week to demand the most basic and humble of human rights. The right not to be confined in isolation from any meaningful activity for years or your entire sentence. The right to have your fate determined by laws and due process rather than invisible administrative judgments. The right to nutritious food, and to not having food used as a punishment. (Read their five core demands here).

Cupcake anyone?

Executing the Innocent: Time to Boycott Georgia and Texas

2011-09-21T21:40:00.000-07:00

I believe the death penalty is an inherently degrading and dehumanizing punishment that should not be used even on the most heinous criminals. But when a state executes individuals with substantial doubt about their actual innocence they have crossed a different line. They are not only human rights violators, they are a clear present danger to every person who lives in or visits them. With the execution of Troy Davis in Georgia tonight (read the Guardian account of the final moves here); and the execution of Cameron Todd Willingham in Texas in 2004 (read David Grann's account in the New Yorker from 2009 here), two US states have now carried out executions in cases where the major prosecution evidence against defendants who have consistently insisted on their innocence has collapsed.

Despite an outpouring of global attention and emails, don't expect Georgia or Rick Perry's Texas to mend their ways soon. Solid majorities in those states not only support the death penalty, but celebrate a vigilante culture in which questions of due process and innocence count for little in the face of demands for vengeance. Politicians in those states will not respond until they feel powerful economic pain. In the meantime the attrition of the death penalty elsewhere may eventually lead the Supreme Court to strike down the death penalty as a regional eccentricity but not in my lifetime.

Its time to focus on these two major human rights abusers with the only language they understand, money. Its time for a grassroots boycott of these states. The tens of thousands around the world who sent emails and letters opposing Troy Davis' execution should now direct their activism in a new direction, to mobilize their fellow citizens for a boycott of the entire economy of each these two states until they declare a moratorium on executions. That means circulating lists of products made in those states (Georgia peaches, and Dell computers in Texas for example). That means avoiding tourism, conferences, or investments in any businesses in those two states. Let Georgia and Texas understand what it means to be an international pariah. It is true that these means letting other states go on executing prisoners. That is hard. Death is different, but so is executing the innocent. The boycott, as it grows will help keep the focus on these revealing cases and pressure on both states to justify their outlier status.

LWOP

2011-09-14T20:33:00.000-07:00

The New York Times earlier this week published a strong editorial criticizing America's increasing use and abuse of life without parole (LWOP) sentences (read it here). The use of such sentences was largely unknown in the past and remains rare outside the US. Even murderers who did not get the death penalty could be virtually certain of parole within ten or twenty years at the most.

For many LWOP represents a hopeful alternative to capital punishment. But as the death penalty declines, LWOP is growing much faster. According to the Times the number of LWOP sentences tripled from around 12,453 in 1992 to 41,095 in 2008. The sentences being imposed not just for capital murder, but for many other homicides as well as crimes like kidnapping and drug dealing.

LWOP combines the eliminationist logic of the death penalty with the control problems of incarceration. How do you motivate compliant behavior for those who have no hope of being released no matter how good their record is? The result is an inevitable degradation for both prisoners and keepers, reflected in our increased reliance on supermax prisons to punish and isolate those who have nothing to lose.

LWOP highlights a paradox of American mass incarceration at this juncture. The soft end of the penal state, the over use of prison for drug users, parole violators and female property offenders is increasingly discredited and in varying degrees being reduced. But the commitment to long incapacitative prison sentences for violent crime remains as strong as ever. Yet our outsized prison population and highly disproportionate racial profile of prisoners will remain unless we revisit our excessive sentences for violent crime.

LWOP functions as the anchoring point for a structure of excessive punishment. With LWOP widely available, life sentences with parole are rapidly increasing from an average time served of 20 years to 29 years in the past two decades. Having established a harsh and flat sentencing system for murder it becomes easy to justify sending robbers and burglars to prison for decades.

I agree with the Times that LWOP should be limited to those cases that would otherwise attract a death penalty and even these cases should be exceedingly rare and open for review. Punishment can be proportionate without being harsh. There are no coherent moral principles the require natural life as a sentence for any crime, even for murder, and most criminologists would agree that the risk of future dangerousness drops toward zero for most offenders after 40. Instead we should look to human dignity to set an appropriate cap for even the worst crimes at around 25 years with few sentences of longer than 10. Beyond these boundaries, continued imprisonment becomes degrading for both prisoners and prison officers. A sentencing structure built around those principles would leave plenty of room to mark the seriousness of different crimes, have little if any effect on deterrence while producing a far smaller, healthier and more cooperative prison population.

Attica, Forty Years On

2011-09-09T08:54:00.000-07:00

On the editorial pages of the NYTimes, historian Heather Thompson reminds us all of how profoundly the Attica prison uprising and its violent suppression, forty years ago this week, shaped our penal imagination and prepared the grounds for what we now call "mass incarceration."(read it here) The prisoners who took nine correctional officers hostage and gained control over most of the prison had in mind mostly rather basic rights, decent medical care, an end to lingering racial discrimination among them. For a moment, the sudden media attention on a prison being run by its inmates in a rather democratic and orderly way--including careful protection of the hostages and the absence of violence among inmates which had long been associated with classic prison riots--, seemed like it might deepen the already sympathetic view of prisoners many Americans had in the early 1970s.

Then Governor Rockefeller authorized an army of correctional officers and state police to violently retake the prison (despite five days of progressing negotiations). Thirty-nine men, twenty-nine prisoners and ten hostages, were killed, every one by the incoming bullets of state forces. Eager to cover-up what amounted to a massacre (and one followed by physical torture of the survivors) the state lied outrageously and told the media that the hostages had been killed with their throats slashed and in some cases castrated. The resulting fire storm of media coverage would reset the imagination of a generation. As Professor Thompson puts it:

We have all paid a very high price for the state’s lies and half-truths and its refusal to investigate and prosecute its own. The portrayal of prisoners as incorrigible animals contributed to a distrust of prisoners; the erosion of hard-won prison reforms; and the modern era of mass incarceration. Not coincidentally, it was Rockefeller who, in 1973, signed the law establishing mandatory prison terms for possession or sale of relatively small amounts of drugs, which became a model for similar legislation elsewhere.

Forty years on it feels like America may be ready to abandon the demons of Attica even as we finally come to some historical reckoning with what it meant. Forty years seems to be about the length of time it takes dramatic changes in the social imaginary to run their course. The Israelites left Egypt in one day, but as the Book of Numbers tells us, it took forty years to leave slavery behind. Today in California, with this summer's prison hunger strike against our cruel and degrading SHU (supermax) units having achieved totally unexpected media coverage and political response, and the spring's Brown v. Plata decision by the US Supreme Court calling on the state to recognize the humanity of its prisoners; signs abound that mass incarceration has itself become a scandal. But scandals only change things if people are committed to using them to promote a new way forward. Forty years ago the events of Attica would be seized upon to promote the war on crime and shift it from a focus on police to one on prisons. Today there is for those ready to seize it, an opportunity to re-imagine both safety and dignity for another generation.

The Feds: The English riots and the limits of governing through crime

2011-09-04T23:26:00.000-07:00

Its been much debated whether the August 2011 English riots should be characterized as politics or crime. The absence of a clear political narrative is cited by many of those supporting the latter. But some aspects of the narrative such as it was, suggests that the politics of the riots was about the politics of crime (or as this blog would put it, governing through crime). For example, one phrase many of the rioters seemed to have shared was calling the London metropolitan police "feds" , a term apparently drawn from television dramas ((according to Jon Henley's reporting in the Guardian). It is not likely that rioters confused the English police for US federal law enforcement (no matter how often they show up on British tv), nor that they are making a claim about policy transfer. Talk about the "feds" seems to be a way of referencing American style governing through crime with its degrading policing and harsh punishment of young lower class and especially lower class minority men. Indeed the most impressive change in British life over the last generation, perhaps more consequential than the housing boom that for a while reshaped many former industrial towns, was the doubling of Britain's incarceration rate during the long rule of the previous Labour government.

Consider also what has become one of the iconic sound bytes of the riots for Britain's tabloids one youth in an interview with the BBC (although I cannot find the actual BBC story) said "'What are they gonna do? Give me an Asbo? I'll live with that.' While that has been taken by some (read Damien Gayle's assessment in the Mail Online) to suggest the insufficiency of criminal sanctions, it also suggests something much more damning (and less counter-intuitive given the significant increases in punishment over the 1990s) i.e., that chronic overuse of criminal justice as a ready made tool for addressing social insecurity under Neo-liberal economic assumptions has led to collapse of both deterrence and legitimacy. Tony Blair's signature governing through crime initiative, one that summed up his ambition to be simultaneously tough on crime and tough on the causes of crime (in this case anti-social behavior) now stands for a pervasive sense of disrespect of both the governed and the governors.

Actions speak louder than words and can be readily interpreted. Police, all over, but especially in England, are a symbol for law itself. Whatever other motives last month's looting and riotous behavior had, it was clearly intended to embarrass the police (the "feds") already on the defensive after the phone hacking scandal and various failures to anticipate disorders associated with student fee protests. The police clearly understood that the rioting was mostly aimed at them and responded in kind. In Damien Gayle's summary for the mailonline:

Police took revenge on dozens of riot looters last night as they kicked in their front doors and hauled them into the street.

Riot officers armed with battering rams descended on a string of properties as they looked for pay back over the chaos that swept the country.

The officers collared one suspect at a home in Brixton after receiving a tip off that he had been involved in the disturbances.

The August 2011 riots followed by a decade a more contained but alarming riot that broke out under Tony Blair in the norther English town of Bradford in July of 2001 (thanks to the Guardian's history links you can read Martin Wainright's reporting from 2001 here). Those riots had a disturbing racial edge that was apparently not dominant last month (although some reports of cross racial attacks mix with reports that the rioters were drawn from all races and cultures) but one can also read the growing contempt for government authority as such.

Arrests climbed to more than 40 as detectives followed up hours of video film showing rioters - mostly young Asians making little or no attempt to disguise themselves - torching cars and hurling missiles at riot police.

In a separate operation, police scoured an outlying estate for a gang of 20 white skinheads, some described as 13 or younger, who ransacked an Asian restaurant and Asian-owned garage in the quiet suburb of Greengates late on Sunday.

Tony Blair and his Home Secretary David Blunkett insisted that the lawlessness was no more than crime to be dealt with by tougher law enforcement means.

Tony Blair condemned the rioting as "thuggery" and said protesters attacking the police had ended up "destroying their own community".
In a statement on the disturbances, Mr Blair endorsed the view of the home secretary, David Blunkett, that the trouble was a "law and order issue", and his spokesman confirmed that the government was prepared to consider permitting police to use water cannons.

A decade later and with British policy options restricted by the escalating costs of mass imprisonment political leadership seems trapped in a rhetorical enclosure that resists any attempt to escape the crime policies and politics that have failed for a whole generation.

California Reconsiders (Its) Penal Isolation

2011-08-24T07:44:00.001-07:00

A hearing yesterday in Sacramento of the Assembly Public Safety Committee was another remarkable sign that California's once frozen penal policies are beginning to thaw and change. Isolation of "high risk" prisoners, in a lock-down environment designed to promote security to the exclusion of all other penal objectives has been a pillar of California's prison system since the state opened one of the largest supermax prisons in the country, the Secure Housing Unit (or SHU in the inevitable bureaucratic parlance) of California State Prison Pelican Bay in 1989. Today California houses more than 3,000 prisoners in SHU conditions at Pelican Bay, Corcoran, and in smaller units at two other prisons (read Keramet Reiter's recent study here). Despite three decades of criticism, a massive court intervention in the 1990s, and piles of academic research suggesting that holding prisoners in such circumstances for prolonged periods was dangerous and counter productive, California's prison officials have always steadfastly maintained that the regime is an essential barrier against the dominant gang culture among prisoners. At yesterday's hearing however, a representative of the California Department of Corrections and Rehabilitation was promising real change (read Sam Stanton's reporting in the Sac Bee here):

"I'm not talking about having another study," Scott Kernan, undersecretary at the California Department of Corrections and Rehabilitation, said at a legislative hearing. "I'm talking about having some substantive changes."

The Department's change talk may in fact be coverage to buy more time and do more studies but there are other indicators that whether sincerely desired or not change is coming.

* The hunger strike led by prisoners in the Pelican Bay SHU this July, which reached as many as 6,000 prisoners statewide, received significantly more media attention and expressions of public concern than the Department (or me for that matter) expected. This strike was particularly effective in getting attention to how extreme California's practice of supermax is, especially the long time prisoners spend in theses conditions (an average of 6.8 years according to the testimony yesterday) and the fact that it is imposed not for particular crimes or violations but as a preventive measure taken against supposed gang involvement.

* The Supreme Court decision in Brown v. Plata handed down in May not only took away any legal hope that the state could shrug off lower court orders to reduce prisoner populations by tens of thousands, but also painted California's overall penal system as distended, irrational, and degrading. The ongoing budget crisis makes the super-expensive style of incarceration especially hard to defend but Brown may be even more important is a cultural shift that is making the whole enterprise of mass incarceration morally harder to defend. A former SHU prisoner, Earl Frears, who testified yesterday put it powerfully,""I am human, and by being human I do have certain rights … ." I think that is message Californians are increasingly able to hear.

Fixing California's extreme SHU practices is overdue, as is a fix for crazy sentencing laws like Three Strikes under which many SHU prisoners serve time without end, but if this moment is as promising for change as I think it is, we need to push this reconsideration of isolation in two further ways.

First, California has isolated itself for decades from national and international concerns about prison conditions and the tolerable scale of imprisonment in a democratic society that maintains respect for human rights. Our fear decades of high crime and paranoia during the 1970s and 1980s, left the state with a kind of political PTSD in which any measure against crime, no matter how costly, futile, and inhuman, was acceptable if it painted criminals/prisoners as monsters with no claim on human dignity. As a result prison policy has lived in a moral and intellectual lock-down in which the news that prisoners are humans has a startling quality to it. (Germany didn't end up where it found itself in 1945 overnight either).

Second, we need to end the larger policy of addressing community insecurity by isolating individuals in state prison. The era of big prison government must be declared dead and over. Prison remains an appropriate penal response to the most serious crimes and threatening criminal records. We cannot, however, make communities more secure by incarcerating whole neighborhoods full of residents. Realignment must become more than a way to hide prisoners from the federal courts; it must become a commitment to addressing community insecurities precisely and directly rather than through mass incarceration.

Justice and Social Control? Neither support harsh sentences for rioters

2011-08-17T19:08:00.000-07:00

Does punishment restore a state of justice that has been ruptured by a crime, or is it a tool of social control? That is a question on which a great deal of punishment and society scholarship turns. It is also one raised a new by the latest turn in the London riot of 2011 story, the wave of very harsh sentences for riot related crimes. As Polly Curtis and Vikram Dodd report in the Guardian (read the whole story here) that legal experts in the Liberal Democratic party have expressed grave misgivings about the substantial prison terms being handed down in many such cases, while Prime Minister David Cameron has praised judges for using their considerable sentencing discretion to send a message on rioting. The debate may force a confrontation within the coalition at a time of high stress.

Lord Macdonald, who led the prosecution service in England and Wales for five years, warned that the courts risked being swept up in a "collective loss of proportion", passing jail terms that lack "humanity or justice".

Meanwhile his fellow Liberal Democrat peer Lord Carlile, the barrister who was until this year the government's independent adviser on terrorism strategy, warned against ministerial interference in the judicial process, arguing that "just filling up prisons" would not prevent future problems.

David Cameron, who last week promised severe punishments for rioters, saying he hoped courts would use "exemplary" sentences to deter future riots, praised the sentencing decisions, which have included two jailed for four years each for inciting riots on Facebook – riots that never took place – and one person sent to prison for six months for stealing £3.50 worth of water.

Is it just to punish someone more harshly because the crime they committed took place in the context of an alarming collective disorder? It depends on whether the crime was itself aimed at taking advantage of an existing social disorder. Those that rob people who are fleeing from a natural disaster, knowing there is not likely to be much help for them, or who burglarize their vacated houses, arguably deserve more severe punishment. But in the case of the riots the crimes are themselves, in aggregate, what makes the disaster. Indeed, once we acknowledge the collective aspect of riots, there is an argument that participants are less culpable for their crimes since they are giving into a much observed tendency to follow the example of others. Instead, this appears to violate one of our central values about criminal punishment, that people face punishments proportionate to the their desert and uniformly with equally culpable individuals. Instead we have the price of crimes moving like equity prices to reflect gyrations in public anxiety.

Nor is it clear that tough sentences for rioters is good social control for the increasingly tight resources of the UK and the US. As Lord Carlisle suggested in the passage quoted above, there is no reason at this point in our history to view expanded incarceration as a good way to bolster social control. England has more than twice the incarceration rate it had in the mid-1990s, a period of few if any riots. Some no doubt believe that future rioters will heed the harsh lesson being taught their cousins. No doubt Charlie Gilmore, university student (and son of Pink Floyd guitarist David Gilmore) who was given a 16 month prison sentence for participating in some disorderly events during the student fee demonstrations last December (read Stephen Bates' reporting in the Guardian) is unlikely to offend in that way again. That may be true for some of the individuals being punished now as well, although we will never know whether far more lenient but still undesired sentences would accomplish. But it is not clear it is true for the next Charlie Gilmore or young riot looter.

Chairman of the Board

2011-08-13T10:40:00.000-07:00

Whether you view him as the archetype of the neoliberal marketization of security or the urban miracle worker who reduced crime while healing the reputation of police force tarnished by racism (at least in LA), Bill Bratton, who has been police chief of both New York City and Los Angeles and is now chair of Krull an international private security consulting firm, is the world's most influential police thinker (the Patrick Colquhoun of our time). Announced plans by British PM David Cameron to meet with Bratton prompted interviews with the chairman of the board of Krull in both the Guardian [read David Batty's story here](which calls Bratton the PM's new crime adviser) and the New York Times [read Al Bakers story here].

While the upper ranks of British policing are sure to bridle at yet another sign of the PMs contempt for the current leadership, Bratton's public profile is one they might, in fact, benefit from as they negotiate a budgetary modus vivendi with the real power man in White Hall, Chancellor George Osborne. For one thing, Bratton's LA profile is very much about winning the hearts and minds of frontline communities that experience the brunt of the war on crime and drugs. The PMs Dickesian rant this week in which he battered the police for not snuffing out the riot to start with and held out harsh justice as the only way to curb the feral children of the underclasses is not compatible with Bratton's public statements or profile. In both interviews he stated baldly that "“You can’t just arrest your way out of the problem,” adding in the NYT that “It’s going to require a lot of intervention and prevention strategies and techniques" and in the Guardian that:

"Arrest is certainly appropriate for the most violent, the incorrigible, but so much of it can be addressed in other ways and it's not just a police issue, it is in fact a societal issue,"

Neither statement is compatible with Cameron's Victorian celebration of the Big Society as the simple solution to most social problems. Nor is Bratton's focus on putting racial justice into practice inside the police going to sit easily with a government that thus far has regularly made vaguely Malthusian statements about immigrants and the limits of community tolerance for diversity.

Intriguingly, Bratton and the New York effort he led in the 1990s is perhaps best known for using effective policing to drive down reliance on incarceration, thus helping New York to be come the leading state thus far to have abandoned the practice of mass incarceration which is destroying government and society in California and much of the nation. Given the disappointing recent follow ups to the coalition government's once promising objectives of reducing the UK's incarceration rate, Cameron could do worst than to listen to Bratton and Ed Miliband should schedule a chat too.

Finally, police in the UK should appreciate that Bratton's strategy has not generally been a plan for community disinvestment. Like most surge strategies, it can only be viewed as cost reducing in the long run when tied to real reductions in incarceration.

There is a dark side to the Bratton rap, however, and that is the emphasis on fighting gangs with sophisticated technologies and strategies. Gang talk should always be filtered through two facts. One is that people, and young people in general, almost always act in and through social networks. So behind the term "gang" we have no problem finding something real. On the other hand police, politicians, and ironically some usually incarcerated "gang members" have a huge huge huge incentive to blow up that social network reality into something far bigger and badder than it really is. Gangs will be with us always, especially as long as we cling on to war on crime metaphors that favor a way of imagining crime as an organized army of enemies.

Bibliographic resource:

The debates that Bratton's intervention are likely to unleash will involve urban geography and race in countless and overlapping ways. Fortuitously I've just learned from Stuart Elden that the journal Society and Space--Environment and Planning D, has posted "virtual theme issue" on "urban disorder and policing" that includes some classic and more current papers from the journal on issues of race, policing, and urban disorder. The issue will be open for reading without the usual electronic subscriptions until October.

Culture or Poverty? Try Dignity

2011-08-11T08:44:00.000-07:00

British Prime Minister David Cameron's speech (listen to excerpts here) to Parliament yesterday on the recent rioting dripped with all the racially charged rhetoric of forty years of war on crime in both the US and the UK (read the Guardian's backgrounder by Nicholas Watt here):

This is not about poverty, it's about culture. A culture that glorifies violence, shows disrespect to authority, and says everything about rights but nothing about responsibilities. In too many cases the parents of these children – if they are still around – don't care where their children are or who they are with, let alone what they are doing. The potential consequences of neglect and immorality on this scale have been clear for too long, without enough action being taken."

Cameron was clearly hoping that Labour Party leader Ed Miliband, would fall into some Michael Dukakis like time warp and begin to blame the rioting on Cameron's severe cuts in social spending. No such luck, predictably Miliband attacked instead on the New Labour ground that the coalition has imposed cuts on police budgets all over the country. Everyone seemed to agree that the police, perhaps aided by the army, were the thin blue line separating civilization from the chaos spread by the brawny spawn of the underclasses. Even the left oriented Guardian's writers have speculated on whether announced plans to reduce incarceration has sapped the deterrent threat of prisons (read Zoe William's interesting column discussing criminological views of the riots).

Observers should be reluctant to embrace either the view that rioting is the inevitable or at least direct result of increasing poverty on the one hand, or the product of a culture, i.e., practices of child rearing, which produce violent and narcissistic adults, on the other. The alternative view is well expressed in another Guardian comment by Seamus Milne (read it here) who notes that riots, unlike the dangerous classes, are not with us always, but why?

This time, the multi-ethnic unrest has spread far further and faster. It's been less politicised and there's been far more looting, to the point where in many areas grabbing "free stuff" has been the main action. But there's no mystery as to where the upheaval came from. It was triggered by the police killing a young black man in a country where black people are 26 times more likely to be stopped and searched by police than their white counterparts. The riot that exploded in Tottenham in response at the weekend took place in an area with the highest unemployment in London, whose youth clubs have been closed to meet a 75% cut in its youth services budget.

For my money it is not poverty that links the cuts in social benefits, to rioting, but dignity, or one should say, indignity. While many of the cuts have yet to take place yet, the communication of who has standing in our societies has come through loud and clear. The world's leaders tremble over the narcissistic rage of bond holders whose pursuit of shameless risk free profits in investments they should have known were gambles, has placed them and the entire global financial structure in peril. But in Washington and London (and one suspects in Paris and Berlin as well) there is no element of urgency about the situation of communities locked into degrading helplessness by anomic and dysfunctional education and employment practices. It is this sense of relative deprivation that goes to the basic sense of dignity, the equality of which is essential to the survival of any truly democratic society. The reason young people, apparently of many races and in some cases classes, are so prone to riot, I would suggest, is not their lack of impulse control or high discount rate on the future, but their heightened sense of dignity/indignity.

In the meantime, it is not lost on those rioters that the deep financial crisis that has cast both the US and the UK into huge budget deficits was caused by behavior which has been frequently and obviously compared to looting. Where is Prime Minister Cameron's outrage at the poor parenting and deformed culture of his class peers in the executive suites of the top London and Edinburgh banks? Where is London Mayor Boris Johnson's statement that the City of London's efforts to aid corporate clients in avoiding lawful taxes (thus furthering the deficit crisis) was "criminality, pure and simple"? And while both Cameron and Johnson are invoking painful punishment to malefactors as the only sensible government response to rioting, there has yet to be a single prosecution in either the US or the UK for behavior involved in causing the crash (put aside criminals like Madoff whose crimes were discovered because of the crash). If there is a failure of deterrence, it is there.

Policing the Crisis

2011-08-09T08:47:00.000-07:00

One of the more interesting angles on the violent rioting going on in parts of London over the past three nights is the increasingly toxic relationship between the Conservative party dominated coalition government and the police (especially London's Metropolitan Police Department). In an insightful backgrounder in the Guardian, Sandra Laville points out that when Margaret Thatcher faced similar rioting in the 1980s over a poor economy and cuts to government social benefits, she could count on her close relationship to police on whom she frequently lavished ideological support and which was a part of government she did not seek to cut. In contrast, David Cameron's mix of law and order populism and cross the board cuts in government spending have put his government increasingly at odds with police forces around the UK that are facing both severe cuts and the prospect of rule by locally elected police commissioners (a move many have described as an effort to unleash more American style populist pressure on policing).

At the same time, both Conservatives and the Metropolitan police leaders have been badly damaged by their close association with Rupert Murdoch's toxic tabloid newspapers, especially the now terminated News of the World which has been shown to have engaged in wholesale violations of privacy laws by "hacking" into the mobile phone voice mails of countless celebrities, politicians, Royals, and most outrageously, murder victims and the families of military personnel killed in Afghanistan. Metropolitan Commissioner Sir Paul Stephenson announced his resignation last month after facing massive criticism for the fact that his own media adviser was a News of the World heavy and that one of his top commanders, John Yates, had rejected a renewed investigation of the phone hacking scandal after it was brought back to life by coverage in the Guardian during 2009. Stephenson, whose resignation was not rejected by either London Mayor Boris Johnson (a Conservative) or Prime Minister Cameron, publically slammed the PM by drawing the not fantastical parallel with the Prime Minister's employment of Andy Coulson, former editor of the News of the World who had resigned that job because of hacking problems, as his major media adviser during the 2010 general election as during the first half year of his government (Coulson resigned as the hacking issue heated up again in December). [The fact that both party leadership and police leadership were operating on political scripts written by tabloid media wizards adept in playing on the themes of fear and scandal is worthy of a post its own right.]

Against this tense background, the coalition government's commitment to substantial cuts in almost all government spending program (excluding some health, but that is facing its own coalition led upheavals) and student fee increases for university students has generated increasing public order problems for the police, especially in London. Since the spending cuts were announced last Fall, there have been several massive demonstrations in London that have spilled over into riotous behavior by fringe groups and major embarrassments for both the police and the government. And now, the worst rioting in a generation. To add to the sense of existential crisis for the tradition rich Metropolitan Police, according to Laville, Cameron would like to see former New York Police Commissioner (and since global security entrepreneur) Bill Bratton as the new Commissioner in London.

Like Ronald Reagan in the US, Thatcher could combine hostility to government welfare and regulation while strongly identifying with the military and criminal justice aspects of state power. That option seems to be foreclosed precisely as the global economic restructuring of the once rich west picks up its pace and seems likely to place governments of all parties in the position of cutting military and security budgets while continuing to generate excess insecurity for their populations. It will take a leader in the UK or the US of real vision to talk their respective publics down from the crime fear based consensus on security that Reagan and Thatcher helped promote, and which both Clinton and Blair expanded on, while navigating toward a new economic model that can produce sustainable economic growth (rather than debt based construction booms and busts). Both David Cameron and Barack Obama once looked like leaders who might have such a vision. Right now I wouldn't bet on either.

Punished: The Culture of Control as Seen from Oakland

2011-07-28T07:19:00.000-07:00

Punished:Policing the Lives of Black and Latino Boys by UC Santa Barbara sociologist Victor Rios and should be on your summer reading list if you are interested in how the culture of control works. Rios closely studied a group of 40 Oakland youths of color as they navigated the terrain of poverty in a city governed through crime. Rios, who himself came up in the Oakland gang scene before receiving a doctorate from UC Berkeley, has an unparalleled set of insights into how the logic of crime control has pervaded the institutions of everyday life in a city like Oakland and come to shape the identities and aspirations of young men of color.

The most powerful insights in the book take us into how routine physical and especially verbal harassment by police of young men of color erodes their often significant positive aspirations and anticipates the pains of formal criminalization and punishment. The police ethno-theory of crime is that young men of color are so full of pride and arrogance that only a constant stream of insults and injuries can dissuade them from delinquency and drift. Nothing could be further from the truth. It is not just, or even primarily racialized assumptions about these youth, but deeply faulty assumptions about the crime risk they (police) themselves face in low income urban neighborhoods, that drives these logics.

The study does far more than critique, however. By giving insight into how the effects of routine degradation push youth toward seeking a more dignified life in gangs, Rios points the way to truly effective crime reduction strategies. It is a cliche, but in this case true, that this book should be on the desk of every police chief, school principal, and community agency director in urban America.

Hunger Strike for Human Rights in California Supermax

2011-07-15T01:06:00.000-07:00

Since the start of this month prisoners at California's notorious Pelican Bay supermax style prison (known as the Secured Housing Unit, or SHU, in California prison bureaucracy language) have been refusing food and in some cases water in support of demands to modify the rules that keep prisoners in isolation regardless of their disciplinary record and practices which have been found to reduce human beings to the point of mental illness. According to Sam Quinones reporting in the LA Times, as many as 400 prisoners at Pelican Bay are participating in the hunger strike, and they have been joined in solidarity by prisoners at 11 other prisons of the state's massive system.

The prisoners' demands are the following (read the full statement here):

1. End Group Punishment & Administrative Abuse ...

2. Abolish the Debriefing Policy, and Modify Active/Inactive Gang Status
Criteria..

3. Comply with the US Commission on Safety and Abuse in America's Prisons
2006 Recommendations Regarding an End to Long-Term Solitary Confinement –...

4. Provide Adequate and Nutritious Food – cease the practice of denying
adequate food, and provide a wholesome nutritional meals including special
diet meals, and allow inmates to purchase additional vitamin supplements....

5. Expand and Provide Constructive Programming and Privileges for
Indefinite SHU Status Inmates....

Note that these demands are hardly "revolutionary" except in the basic deprivation of humanity that they reflect. Mostly prisoners want contact with family, warmer clothing, tolerable food, adequate health care and due process.

So far the CDCR has refused to negotiate with the prisoners or a mediating committee approved by the prisoners. Despite the recent decision of the Supreme Court in Brown v Plata upholding findings of chronic and grossly unconstitutional conditions throughout California's distended prison system, the strikers and their demands have gotten very little attention from California politicians or the media. It is time for citizens to press Governor Brown and the CDCR to agree to a broad re-examination of the whole supermax model in California. The Pelican Bay SHU reflects in concentrated form the pathological policies that have brought California prisons to a state of crisis. People are sent to the SHU not because of what they have done, or for proportionate terms, but based on unproven assumptions that they are gang members and without any viable path toward progress or release. Instead of programming, work, or education, to provide prisoners a meaningful way to serve their time, the SHU relies on shear deprivation and isolation to produce order. The resulting conditions have been found to diminish the mental health of normal adults subjected to them to the point of insanity. The prison is intended to protect security in the broader prison system by incapacitating suspected prison gang activists but has left a system that most observers agree is organized around gangs.

Like mass incarceration in general, supermax or SHU imprisonment is a scandal that unconstitutionally deprives prisoners of their human dignity while failing to protect anyone. If California wants to guarantee its prisoners safety from racist prison gangs they should implement a one prisoner to one cell policy and begin providing work, education, and health care practices that can give prisoners a constitutional civic order in which to serve their sentences.

Contact Governor Brown here

Lone Star Justice

2011-06-26T12:54:00.001-07:00

Today's NYTimes carries an obituary for Randall Dale Adams, who died last year of a brain tumor, with only local media taking note. Adams was the unintended star of Errol Morris' epic documentary on Texas justice, The Thin Blue Line (1988). Texas has no dearth of serious miscarriages of justice, including the execution of Cameron Todd Willingham, a very likely innocent man. But no miscarriage was ever better covered than Adam's wrongful conviction and death sentence for the murder of a Dallas police officer. Adam's came within three days of execution before the Supreme Court stepped in to review the case based on errors by the trial judge in dismissing jurors who expressed misgivings about capital punishment, but a willingness to follow the law. Perhaps realizing they had the wrong man, the governor quickly commuted Adam's sentence to life in prison, rather than allow further litigation. Adam's may well have spent the rest of his ultimately short life in the Texas Department of Corrections but for Morris' documentary. Morris went to Texas to do a documentary on the infamous Dr. Grigson (better known as Dr. Death), a forensic psychiatric "expert" who routinely testified for the prosecution in Texas capital cases (where future dangerousness is a required finding for death sentences) that defendant was dangerous, usually without bothering to even interview the subjects. But Morris became fascinated with Adam's case (he was one of Grigson's victims) and decided to focus the documentary on him.

The Thin Blue Line is perhaps the best movie ever made about contemporary criminal justice and should be watched by anyone interested in law enforcement and especially anyone who still supports the death penalty. It was a primer in why states cannot be trusted to wield the power to execute persons (or perhaps even the power to imprison them for life). When a police officer is murdered there is a consensus among law enforcement officials that someone must pay, preferably with their life, no matter what it takes, even if its the wrong man. The title comes from the frequent metaphor for the way police protect society, which was repeated by the trial judge in an interview with Morris, expressing why he felt so strongly that the officer's death must be avenged. The police and prosecutors in Dallas actually had a suspect that was almost certainly the right man, unfortunately (for the prosecutors), David Harris was 16, too young to receive a death penalty in Texas. But when Harris blamed the shooting (which was done with a gun that belonged to Harris' father) on Randall Dale Adams, who Harris had picked up hitch-hiking and then spent the day before the murder smoking pot and drinking beer with, Texas law enforcement knew they had their man. Adams was a perfect suspect, he was newcomer to the state, with no local friends or supporters, and no resources to pay for an adequate defense (he actually ended up with an excellent lawyer but there was little she could do to overcome the prosecution's cooked evidence). Despite the absence of a criminal record or a motive (which Harris had plenty of), Texas decided he was executable and pinned the murder on him.

The prosecution case was a textbook example of how to wrongfully convict a man. The police hid evidence that pointed to Harris and provided incentives for witnesses to come forward to identify Adams (the prosecutors after all, have a "get out of jail free" card to give anyone they want help from). Not only was Adam's almost executed, and deprived of years of freedom (and probably his health), but David Harris, a young man on an escalating curve of crime, went on to kill another man, and for that crime was himself eventually executed. Thus two unnecessary deaths were caused by the prosecutors in Dallas. In a just society, some of them would have spent years behind bars for their crimes, but none of them was ever even disciplined (nor ever apologized) and Adams was never compensated.

Now you know why I like to say, go ahead, Mess with Texas! a state that never looks back and still executes more than almost the rest of the states in the union combined. If Governor Rick Perry, the man who authorized the execution of Cameron Willingham, runs for president, hopefully Texas justice will get some long overdue national attention. (Read Ta-NeHisi Coates excellent column in the NYTimes discussing Perry and Willingham)

(Governing through) Crime Wave Strikes UK

2011-06-22T22:54:00.000-07:00

Rates of crime reported to the police in the UK appear stable, maintaining a long term downward trend of over a decade. The politics of crime however is very much on the rise in England and and from where I write in Edinburgh (ironically, Northern Ireland, where sectarian rioting took place this week, crime policy remains on a steady course of reform). My earlier optimism that I would observe the UK moving away from governing through crime in my year long sabbatical here, is rapidly proving misguided as I prepare to return to a state and nation nearly ruined by those politics.

More than six months after the new coalition government in the UK Parliament proposed significant measures to reverse the rise of mass incarceration in England Wales, the Justice Minister on Tuesday was forced to admit the abandonment of most of those proposals. Meanwhile the Prime Minister (the man who once earned the wrath of the tabloids by defending hoodie wearing youths from ASBOs) held his own press conference to bring out some vintage Tory tough on crime talk,including an old new "two strikes and you're out" law with life sentences for repeated serious offenses, and hoary rhetoric about citizens' rights to use force against intruders (read Richard Garside's commentary in the Guardian). Meanwhile, Labour party and opposition leader Ed Miliband, whose own "shadow" Justice minister had generally approved of the government's plans to reduce reliance on imprisonment, continued channeling Tony Blair, using his opportunity to question the Prime Minister in the House yesterday to beat him around the head with another government reform proposal to reduce somewhat the range of persons subjected to having their DNA held by the police (read Alan Travis' analysis in the Guardian). Miliband once again invoked rape victims, already symbolically deployed in the past several weeks to wound the government's proposed sentencing discount for early guilty pleas (see my earlier post).

Meanwhile, here in Scotland, the new Scottish National Party (SNP) government, just a month away from its smashing victory over a Scottish Labour party that tried impotently to attack them as soft on crime, has unfurled its own headline driven crime agenda. One measure directed at Glasgow's notoriously sectarian football fans (the main "old firm" teams are identified along Protestant and Catholic lines) threatens a five year prison sentence for those making offensive remarks likely to incite listeners at or around football matches. In the Holyrood Parliament on Tuesday, the government's Community Safety Minister admitted that under the new law, singing "God Save the Queen," or making a sign of a cross, could be illegal (read Tom Peterkin's article in the Scotsman). This comes after weeks in which SNP leader, and Scotland's First Minister, Alex Salmond (whose popularity was largely credited with the SNP's election victory) has carried on a running diatribe against the UK Supreme Court and human rights lawyers in general, for the reversal of a Scottish murder conviction in Human Rights Act challenge (read Andrew Whitaker and John Robertson's reporting in the Scotsman).

What explains this sorry season? I have always argued that governing through crime is about the search for legitimacy in an age when political parties no longer adhere to coherent social and economic philosophies. In most cases, crime talk is a "second best" approach for politicians that no longer feel confident about their approach to governing. Here in the UK, the Conservative Party turned to "prison works" rhetoric in the early 1990s, after the wheels started coming off full strength economic Thatcherism, and Tony Blair found his footing on crime as he led the "New" Labour party to abandon its commitment to socialism.

In the UK parliament, with a coalition government for the first time in more than half a century, none of the major parties has a coherent narrative to offer on social or economic policy, or for that matter on Europe, human rights, on military intervention, on climate change. Tory leader and Prime Minister David Cameron has talked about a "Big Society," and intimated in all kinds of ways that he is not a naive Thatcherite on the role of the state; but so far his government is largely known for the massive budget cuts it is planning to impose on the British people (where most spending goes) and plans to increase the private sector's role in both the NHS and schools. Labour leader Ed Miliband struggles to provide any kind of picture of what a Labour government would do if it got back in power (failing in an infamous BBC interview last Fall to even explain who the "middle" was in his frequent rhetoric about needing to held Britain's "squeezed middle"). The Lib-Dem leader, and deputy Prime Minister, Nick Clegg, who has suffered the most sustained political losses in the recent elections (losing the party's base in local councils in Northern England and in the Scottish regional government, and losing its signature Alternative Voting referendum, all by wide margins), has offered mostly self pitying statements about his own feelings and experiences rather than a political vision for the country. Thus although none of the three leaders has the kind of visceral instinct to govern through crime that Tony Blair did, all of them are falling back on it in the face of a broadly scary historical juncture and public communications environment (media, popular subjectivity) still powerfully oriented toward fear of crime and victim centered anger.

In Scotland the May elections seem to have worked the other way around. The SNP's unexpected triumphs may have been a mixed blessing for a party that is now expected to forcefully proceed toward its existential goal of an independent Scotland and show case the kind of government they would bring to such a nation. But the SNP is a coalition of its own with a base that shares little agreement on how Scotland should be governed.

All in all its a disappointing end to what has been a fascinating political cycle (which began in the May 2010 UK national elections) to observe. Of course much more is at stake than my edification. As in the US, accumulating social, economic, and foreign policy challenges mount while politics degenerates into an increasingly incoherent jumble of recycled themes.

Note: Read Ian Loader's commentary at the New Stateman's blog on the same turn of direction here.

Troubling Questions on the Border between the Prison and Hospital

2011-06-17T03:05:00.000-07:00

Deborah Sontag's outstanding feature on the murder of a psychiatric facility worker by a schizophrenic patient with a history of violence is a great overview of one of the most complicated corners of our domestic security governance problem. As recently as the 1970s there were still far more people in mental hospitals than there were in the nation's prisons (read Bernard Harcourt's article on this). The situation today is vastly different, with the prison system bigger by a factor of nearly 10. Of course most of the residents of mental hospitals then and now have nothing to do with crimes, let alone violent crime. But for a small portion of people with serious mental illness, perhaps less than one percent, a history of violence tinged psychotic ideation, and actual violence, is a strong predictor of future violence (but only if the person is untreated). Meanwhile a shockingly high level, perhaps 20 to 30 percent, of our inflated prison population suffers from a major mental illness.

Twenty seven year old Deshawn James, accused of murdering 25 year old Stephanie Moulton in a Massachusetts "group home," came from a strong church background and gave little indication of being headed for trouble, before symptoms of schizophrenia emerged in late adolescence. Since then James has been in both prison and in group homes. At least according to his mother, James responded well to medication. But like many people with serious mental illness, he went off his medication with frequency. Massachusetts current regime, although better than most nationally, is under going both budget cuts and a philosophy shift toward ending state oversight for patients.

The murder trial is on hold for now since James, who was clearly psychotic at the time of his arrest, was found incompetent to stand trial, which means he will continue to be held and treated in a secured hospital for at least a few months with the aim of resuming the proceedings if treatment makes it possible for him to assist in his own defense (if not he may be committed under civil powers). The civil suit, being brought by Stephanie Moulton's mother, is proceeding. The case is likely to put the group home operators on trial for failing to identify the level of risk posed by James (because of his criminal record) and the light staffing.

The primary response to the risks posed by someone like Deshawn James over the last thirty years has been criminal prosecution and incarceration. His trajectory underscores some of the ways that approach fails. Someone whose violence is triggered by psychotic ideation is not likely to be deterred by prison, and years of stable behavior cannot preclude a resumption of violence if the psychosis resumes. At the same time, the tens of thousands of California prisoners with serious mental illness were revealed by the Brown v. Plata case to be utterly failed by the prison mental health system which leaves them to decline into deeper illness frequently in overcrowded and degrading conditions sure to exacerbate their paranoia.

As we think about rebalancing our approach to public safety, people like Deshawn James, and the much larger population of prisoners with serious mental illness who have no history of violence, should be a prime focus of reform efforts. We must be able to do abetter than a system that manages on its penal side to be both ineffective and unsustainably expensive, while on its civil side weak and inconsistent.

Following Brown v. Plata, California and other states should clearly seek to divert almost all their prisoners with a serious mental illness to a hospital setting. Prisons are not suitable places for people with serious mental illness and their presence their creates unacceptable risks both to them and others. These hospitals could be specialized prisons, but in the great many cases where it is apparent that untreated mental illness was the primary cause of the crime, states should ultimately clear their criminal record in favor of a long term mental health treatment plan, enforceable by a mental health court with long term jurisdiction and the power to order involuntary commitment to a secured hospital setting.

State mental health powers ought to be concentrated in specialized courts that are expert both at therapeutic jurisprudence and identifying evidence tested risk factors that require tighter supervision. Currently, the power to forcibly treat and if necessary confine to a closed treatment hospital, is limited to episodes where the person poses a clear and imminent risk, and then only within strict time limits. Laws should be changed to give courts long term powers over adults with serious mental illnesses who have ever met the criteria for emergency hospitalization and forced treatment. Serious mental illness is a chronic disease. While treatments are effective in preventing the most alarming and dangerous symptoms of disease, they do not "cure" people, and ultimately long term management of their condition is a personal and social value that deserves to be honored.

The courts that exercise this power must be infused with a commitment to human rights and to protect the dignity of both people with mental illness, and potential victims of people whose serious mental illness makes them prone to violence. Honoring the first means always using the least restrictive alternative and directly respecting the autonomy and preferences of people with mental illness who are under the court's jurisdiction. Honoring the second means taking maximum advantage of known risk factors to closely supervise and when necessary confine individuals prone to violent behavior when their symptoms worsen and or when they seek to self medicate with drugs like speed and cocaine.

Existing institutions like the Behavioral and Mental Health Court of San Francisco provide a good model for a court that can do both. Its work should be overseen by a human rights agency, perhaps modeled on the European Committee for the Prevention of Torture (read my previous post on the CPT and prisons).

Foucault Effect

2011-06-13T07:48:00.000-07:00

Twenty years ago, and after Foucault had been dead for nearly seven years, a book titled The Foucault Effects: Studies in Governmentality was published (by Chicago, at least in the US). For me it had a powerful effect, renewing my interest in following Foucault's leads in analyzing institutions of confinement and control in contemporary society, and offering me a new set of tools for analyzing a face of power less visible in Foucault's masterpiece studies of prison, the asylum, and the clinic; the forms of power that are exercised on the relations among people and groups of people, forms of power that are often the domain of government (although not always within the state as such).

Reading Foucault's work with my undergraduate mentor, Hubert L. Dreyfus, and later engaging with Foucault at Berkeley in the research seminars that were set up through Bert and Paul Rabinow, had set me on a course of interest modern institutions of control which I pursued through a dissertation on parole and the social control of the underclass. With Foucault's death, however, the sense of a research enterprise that I found so exciting in both the work and the man, were quickly being replaced by the processes of intellectual ossification in which a living scholar is transformed into part of a canon, whether of sociology, philosophy, history, or literary studies. The Foucault Effect, which combined a piece of one of Foucault's most celebrated lecture courses at the College de France (then almost completely unavailable, certainly in English, now much of them have thankfully been published) with both commentary and substantive research work by some of his students, for me shattered the crystalline structure of concepts which cannon debate about Foucault was producing and once again liberated the will to use the tools rather than define them (not that conceptual work isn't valuable, only that it is far more so when frequently honed in the business of interpreting the present).

Last month I had the chance to participate in a conference at Birkbeck College of the University of London, celebrating the book, and bringing together some of its original contributors and editors, along with others whose work was inspired by that effect. For me it was a great moment to meet and thank the editors and contributors who have been and continue to be instrumental in bringing the oral expression of Foucault, his interviews and lectures, to an English readership. I used my time to reflect on some features of the transformational Supreme Court decision in Brown v. Plata. Thanks to the fantastic IT people at Birkbeck, and the Backdoor Broadcasting Company, this entire day and half of presentations and discussions is now available for streaming in excellent audio, here.

Blindness to the consequences

2011-06-10T09:25:00.000-07:00

I'm ending my work week with a large Amen to a column just published by Stephen Yair Liebb and Hector Oropeza on the Brown v. Plata case which offers a California prisoner perspective on the opinion and a response to the dissents. Liebb has served 30 years of a life sentence for murder and Oropeza has just been released after 20, also on a life sentence for murder (neither would have served more than 10 years before sentences for murder were politicized in the 1990s). I have met them both at San Quentin during seminars and discussion groups I've participated in at the prison, and been impressed by their insights about the prison system, violence, and justice.

A small but poignant part of the column addresses what I've also considered the opinion's chief accomplishment, the powerful reassertion of dignity as a value underlying the 8th Amendment (and thus the operation of prisons).

However, the U.S. is still a symbol of freedom across the world. How we treat the most despised of our own citizens is important if we are to have credibility and moral authority in advocating for human rights in other countries. The Court noted that the Constitution protects the “essence of human dignity in each person.”

Most to the column, however, is a precise and forceful refutation of the dissents by Justice Alito and Scalia. The former, you will recall, dispensed with reasoned argument and invoked the emotional (fear) based center of war on crime complex.

“His description of the consequences of the Supreme Court’s decision is an example of the hyperbole and hysteria used by Justices who are required to exercise sound reasoning in deciding cases...

That for over a decade California has subjected prisoners to standards that amount to cruel and unusual punishment while maintaining an extraordinarily high rate of incarceration reflects an erosion of fundamental values of American society.

To Scalia's argument that the case will benefit healthy (and dangerous) prisoners rather than those with genuine medical problems, the authors remind us of the horrendous truth of this case, that exposure to disease, ill-health, and degradation was widespread, occurring to hundreds of thousands of Californians incarcerated over more than a decade of unconstitutional conditions.

Justice Scalia also claims, without proof, that “Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”

Justice Scalia ignores the reality that gyms have been used to house prisoners for many years, which is part of the problem brought on by overcrowding. Overcrowding and lockdowns compromise the immune systems of prisoners due to a lack of fresh air and exercise. The lack of sanitary conditions in these gyms exacerbates the spread of disease. Weights have not been available in California prisons for more than a decade.

California Needs a More than an Office of the Inspector General, We Need a California Committee for the Prevention of Torture

2011-06-06T05:54:00.000-07:00

It was the pictures that did it. When the Supreme Court was compelled to look at pictures of the refugee camp like chaos and overcrowding in California's supposedly secure prisons, and the "dry cels", i.e., vertical cages in which mentally ill and suicidal prisoners are locked up for weeks and months because no treatment beds are available, they were clearly disturbed and five of them voted to uphold jot for jot, the 3-Judge court's order that California reduce its prison population (read Brown v. Plata here) and to make it clear, appended the photos themselves to their opinion.

Californians need to look at those pictures and ask whether that is how they want their state to be represented to the world. Make no mistake, writing from Europe I can assure you that the rest of the world sees no moral light between California and the practice of degradation and inhuman treatment at Abu Ghraib and Guatanamo, indeed California is worst because it has been subjecting tens of thousands to these degrading conditions for decades. Californian's need to look at these pictures and ask, who is responsible for hiding these truths from us, and how can we make sure it never happens again.

As for the hiding of the truth, blame belongs with the alliance of politicians, the correctional officers union, and the professional "victims for vengeance" lobby which for decades have conspired to hysterically raise the threat that hordes of Charles Manson like fiends will pour forth from our prisons if we ever modify our rigid and punitive sentencing laws (read Josh Page's excellent column in the LA Times on this alliance, and his excellent book on the how that alliance created California's version of mass incarceration).

As for preventing this from happening again, we need to create an institution capable of making sure that truth is never hidden again, and of countering the strategic of use of fear and intimidation by the prison alliance. What we know thus far, is that our normal political institutions, including the legislature, the office of governor, the California Supreme Court, the political parties and the media have failed us completely in preventing this horrific situation from ever forming. The Council of Europe, whose members include virtually ever state in Europe (its far bigger than the European Union) has an organ designed precisely to protect the human rights of Europeans against the real risk of abuse behind the closed doors of prisons, asylums, and detention centers. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) was created in 1989 under the Council of Europe's “European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment” (read more about the CPT here). Consisting of independent legal, medical, and academic experts from every member state, the CPT is empowered to visit any place of confinement in any member state with no advance warning. They issue reports to the member state itself providing detailed study of any conditions that risk producing torture, or degrading or inhuman treatment. These reports are generally made public by the member states and taken quite seriously as a starting point for reforms. If they are not, the CPT can issue a public rebuke designed to the call the attention of all member states and their citizens to the real risk that exists of human rights being trampled.

California does have an Office of the Inspector General (visit its website) tasked with guarding the integrity of the Department of Corrections, but despite being led by people of good will and intention, the Office has neither the power nor the independence to protect the human rights of incarcerated Californians. As Harry Shearer points out regularly on Le Show, the whole idea of an inspector general is problematic since they are neither generals (they have no troops) nor inspectors (they have no spooks). Even in its weak form, the Office has regularly been attacked by the prison alliance and could easily be eliminated altogether by a future governor or legislature.

Governor Brown should acknowledge that given the gross politicization of prison policies in the decades between his terms in office, neither he nor any other politician can guarantee that Californians will learn the truth about what is being done in their name. Governor Brown should present the legislature with a bill to amend the California Constitution to forbid not only cruel unusual punishment, but "torture and inhuman or degrading treatment or punishment," and to create a "California Committee for the Prevention of Torture, and Inhuman and Degrading Treatment or Punishment."Governor Brown should acknowledge that given the gross politicization of prison policies in the decades between his terms in office, neither he nor any other politician can guarantee that Californians will learn the truth about what is being done in their name. This Cal CPT should be led by independent legal, medical, and academic experts with both human rights and penal institutions expertise. They should have the mandate and the power to visit any prison, jail, mental hospital, or detention facility in the state at the time of their choosing, and to produce a public report to the governor and the legislature, detailing any evidence that conditions in those facilities are at risk of producing torture, inhuman, or degrading treatment or punishment.

The Housing Index and the Prison Bubble

2011-05-30T14:19:00.000-07:00

Just think of prisons as a kind of housing, the new public housing, and it may seem less crazy to wonder if the decline of the portion of Americans who are homeowners may coincide with a decline in the portion of Americans who make their home in a prison. As David Streitfeld reports in the New York Times:

Even as the economy began to fitfully recover in the last year, the percentage of homeowners dropped sharply to 66.4 percent from a peak of 69.2 percent in 2004. The ownership rate is now back to the level of 1998, and some housing experts say it could decline to the level of the 1980s or even earlier.

The astounding rise of American prison populations, which began in the late 1970s (when hyper inflation was keeping homeownership down), seems to have ended in the early 2000s, while homeownership was still trending up. The two are not tightly aligned, but in a recent article (may be access limited) I offer some reasons to be believe that expansion of homeownership to the solid majority of Americans, accomplished by the late 1960s, helped prepare a public more inclined to fear crime and to look to imprisonment as an answer to it.

First, homeowners have a geographically defined risk in the market valuation of their home (to which they are tied typically by massive debt, but later by some substantial investment of their own money) which is highly sensitive to crime associations and which is not easily spread (you cannot buy insurance for housing price loss, other than the mortgage itself which as long as you can pay it, enables you to stay in the home, but little more). Crime is not the only risk that can taint property, but it is one of the most widely publicized and thus active. It is little wonder that people look to recent crime mapping websites as realestate hunting tools (along with school testing websites) and that the location of sex offenders on websites maintained by some states have created measurable losses in the home prices of nearby properties. Renters fear crime as well, but not the reputation impact of crime on their property.

It less obvious, but I suspect the homeownership based crime fear fits with a cluster of solutions that include reliance on prisons, private fire arms, and living in a more securitized community (like a suburb, preferably with a gate). These are property based solutions that respectively isolate known criminals in non-sensitive real estate (usually located in a predominantly rural area less sensitive to home price concerns), allow a person to defend their home from attack or invasion (or give the illusion of allowing such a defense), and signal to the market of potential buyers that your home is particularly safe.

Police, at least in their role independent of arrest (where they are ushering people into imprisonment), in their preventive role, are associated with protecting people in public. When it comes to the home, the police are more associated with showing up to investigate the crime scene after you've murdered or raped (or filling a report for something less serious). Moreover, since police tend to go where the crime is, they create their own negative signals about the crime vulnerability of real estate.

Homeowners or renters, Americans are likely to stay pretty concerned with crime (although less so if it remains down in a sustained way). But a declining homeownership index may mean a steady shrinkage in the segment of the American public most prone to supporting (now obviously unsustainable) mass incarceration policies. The implicit renter majority that may follow, could be far more attracted to innovative police based crime control strategies.

Brown v. Plata: Dignity is Coming to the USA

2011-05-24T14:51:00.000-07:00

"Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment."

Brown v. Plata, No. 09–1233, Kennedy, J. May 23, 2011

Much will be written in the weeks and months ahead about the Supreme Court's 5-4 ruling upholding the 3-Judge court's population reduction order in the California prison case, Brown v. Plata (read the slip opinion here). For now just consider one word, "dignity." That word has long been held to be an important value underlying the Eighth Amendment's ban on "cruel and unusual punishment." But in recent decades it has fallen into a kind of oblivion, providing little basis to inform the way American prisons are evaluated and run. Brown v. Plata represents a turning point.

For now the reappearance of dignity may seem of minimal importance. After all, the 3-Judge court's findings of facts represented a litany of medical and administrative malfeasance so dramatic that Justice Kennedy in his majority opinion did not flinch from using the word "torture" in relationship to it. California's unprecedented combination of a prison system designed without consideration of the fact that prisoners have bodies with organs that are vulnerable to disease and massive prolonged overcrowding may render it an outlier with little relevance to the operation of prisons in much of the rest of the country. But that is to ignore the fact that both these features lie close to the heart of the system of mass incarceration that has animated the growth of prison populations throughout the US over the past several decades.

Moreover, once it is admitted that the Eighth Amendment requires that the state's discretion to set penal policy is limited by the recognition of the human dignity of prisoners, a great deal is open to review by courts. In Europe, for example, dignity has been held to require prison regimes that promote individualization, normalization, and the preparation of all prisoners for the possibility of return to the community (see Dirk van zyl Smit and Sonia Snacken, Principles of European Prison Law and Policy (2009))

The Court was forced to confront the humanity of prisoners, and their claim on dignity, by the shear magnitude of California's penal depravity as reflected in photos of chaotic scenes from overcrowded prisons and inhumane conditions that were included in the appendix to the majority opinion. Perhaps no single practice seared the Court's conscience more than California's use of vertical cages to hold suicidal psychotic prisoners for weeks and months before they could be transferred to treatment beds. In December's oral arguments Justice Breyer had confronted the State's lawyer with a picture of just such a "dry cell," noting that California had a "big human rights problem" on its hands, and that photo was also included in the appendix. Like the pictures from Abu Ghraib,these photos locate California's penal practices in a place of inhumanity, degradation, and torture that cannot be tolerated (even by judges disciplined by decades of punitive populism and crime fear).

The Court's opinion also recognized that this case goes beyond individual instances of cruelty to a political system that facilitates inhumane and degrading punishment and cannot be trusted to reform itself.

"In addition to overcrowding the failure of California’s prisons to provide adequate medical and mental health care may be ascribed to chronic and worsening budget shortfalls, a lack of political will in favor of reform, inadequate facilities, and systemic administrative failures."

In short, this is the first decision to move beyond evaluating prison conditions, to place mass incarceration itself on trial.

The dissents by Justices Scalia and Alito (joined by Justice Thomas and Chief Justice Roberts, respectively) avoided any consideration of the inhuman and degrading conditions in California's prisons.

Justice Scalia simply and profoundly disagrees with the very notion that courts have a role to play in remedying institutions that produce unconstitutional conditions, being limited instead to handing out individual remedies to petitioners. In Scalia's universe, a court could order the release of a prisoner from Auschwitz, but not the closing of Auschwitz. This is a coherent vision of the Constitution, but one that renders the Constitution largely irrelevant to modern society.

Still I agree with Scalia's assessment of the importance of this decision.

"Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history."

Justice Alito, as he did in oral argument, falls back on the notion that even unconstitutional conditions are acceptable if done in the name of protecting citizens from criminal violence. Most of his opinion amounts to a disagreement with the 3-Judge Court's fact finding on the question of whether the population reduction order was necessary (abandoning the clear standard of review which requires deference to the factual findings of trial courts). The real force of his argument, however, amounts to a metaphoric invocation of the war on crime in which the 3-Judge court is condemned for releasing an army of criminals on the public.

"The three-judge court ordered the premature release of approximately 46,000 criminals—the equivalent of three Army divisions."

The road from Brown v. Plata to a humane and dignified prison system will be a long one. But this opinion represents a turning point. The system of mass incarceration depends deeply and irretrievably on a simple condition, the denial of the humanity of prisoners. Yesterday the Supreme Court overturned that denial.

New Labour Lives: Tony Blair is Still Gone but his Instinct to Govern through Crime is Back

2011-05-18T09:35:00.000-07:00

Sometimes legal academics can seem like prophets (or just very lucky). Just last evening we were hearing from Professor Nicola Lacey of All Souls College Oxford, for the University of Edinburgh, Centre for Law and Society Lecture, on the vulnerable status of the UK Coalition governments tentative plans to step down the long prison sentences built up by the previous New Labour government and the growing prison population those policies have bequeathed (long sentences are the gift that keeps on giving because each year a new cohort of people will be sentenced to them while their predecessors remain, leading to an escalation in the pace of growth). Nicky's point, in part, based on her book The Prisoners' Dilemma: Political Economy and Punishment in Contemporary Democracies (The Hamlyn Lectures), was that coalition politics affords a potential opening for penal moderation because the logic of competitive two party dominated electoral systems (typically with first past the post election rules)has been to ratchet up penal severity in a unidirectional bidding game about law and order. The Tory's and New Labour demonstrated that in the 1990s, when first John Major, and Michael Howard his Home Secretary, and then Tony Blair (himself shadow Home secretary before his election as Labour leader) bid up the rhetoric and ultimately the prison sentences on crime in an effort to prove the toughest on crime and the most loyal to citizens as crime victims.

In the era of the Conservative Liberal Democratic coalition that began one year ago, however, there were clear signs of penal moderation breaking out. Here the moving force was one Justice Secretary Kenneth Clark, a conservative former Home Secretary with a liberal skepticism about prison working all that well. Clark, who has combined some refreshingly candid appraisals of penal policy along with the politically dangerous tendency to speak off-the-cuff (and off the script) as well as to nod off at meetings of the Commons (where the frontbench is televised almost non-stop) not surprising in a man admittedly near retirement. Professor Lacey, pointing out the underlying tensions in the Conservative Party presented by Clark's penal moderation policies (which have more a constituency with the Lib Dems) was speculating on when Clark might have to be sacked to appease right of the Conservative back benchers or to perry a New Labour like thrust to the right on crime from Ed Miliband.

Today it happened. Clark hasn't quit yet, but the story has legs. A brief recap (here is the Guardian's coverage). First, a Justice consultation paper (an early version of a policy put out for commentary) was recently getting attention in the press, in which the government raised the possibility of increasing (it already exists) the discount given criminal defendants for pleading guilty at the earliest possible procedural point (thus saving the government the costs of prosecution and the victim the challenges of appearing as a witness in court) to as much as 50% (this would be a guideline for judges, but they would retain the sentencing discretion, as they do now). Second, the classic crime baiting tabloid press jumped on this in today's papers, some of them unabashedly reaching out for rape (the most evocative of violent crimes), proposing that the government wanted to cut rape sentences in half leading to sentences as little as 15 months (a slightly abbreviated statement of the policy). To head this off, Justice Secretary Clarke was placed on BBC Radio 5 Live, where instead of pouring oil on the waters, Clarke stirred them. First, trying to explain why most sentences would be much longer than 15 months because judges already apply guidelines to select sentences from between 30 months to life imprisonment that reflect the severity of the rape facts (violence, etc.), Clarke conflated the issue with the fact that some crimes that meet the statutory definition of rape, which in England and Wales includes under-age but consensual sex. He started using the phrase "serious rapes", implying that some rapes were not serious. Second, while at the station (on air?) Clarke was confronted with a weeping rape victim who declared his policy a "disaster". Clarke ended up returning to BBC no fewer than two more times attempting to clarify his position.

Little time had passed, however, before Prime Minister's Question Time afforded a chance for Labour leader Ed Miliband to demand the PM take a stand on Clarke's wording and also "sack him." More important, he went beyond criticizing the Justice Secretary's inept articulations with the underlying policy, underscoring that Labour is prepared to treat any walking back of prison sentences as a betrayal of victims (despite any evidence that long sentences make victims or potential victims better off). In short, New Labour is back.

Clearly this is a sign of desperation from a promising leader who had signaled his interest in rebalancing Labour's priorities and politics, but who has failed in recent regional and local elections where Labour made gains at expense of Lib Dems, except in Scotland where a party that has rejected governing through crime and was attacked for it by Scottish Labour, won big (as well as in the Alternative Vote referendum which he tepidly supported and which crashed and burned)

Monsters on the Block

2011-05-15T10:47:00.000-07:00

Attack the Block is taut, scary, funny and ultimately insightful movie that just opened here about crime and fear of crime in a south London council estate. Sam, a young female nursing student, attractive and white, is mugged by a gang of juveniles led by an aggressive and large (and like his victim, physically very attractive) black teenager, Moses. Most of the others are also adolescent youth of color (African, Caribbean,Arabian?). The attack is quite vicious, frightening, and physically abusive. Sam is pushed to the street. A ring is forcibly pulled from her fingers, and a knife brandished. She escapes during the confusion of an explosion of a nearby car. (Fire works are going off all over London, is this a holiday, or a crisis of some kind? We cannot yet tell.) . Sam is badly shaken, even after reporting the crime to the police. Taking temporary refuge in the apartment of a neighbor Sam finds herself orally agreeing with the neighbor, an older white woman, that boys like Moses and his gang are "monsters." Later we follow her as she rides with the police looking for the attackers.

The crime events are soon overtaken by another plot-line that develops after the explosion which allows Sam to escape without further injury (although having been robbed of her phone, money, and ring). The neighborhood, and possibly much more of London, seems to be under concerted attack by aggressive aliens with shark-like teeth and predatory intelligence to go with it. Sam is soon thrown together with Moses and his boys.

Attack the Block has some insightful things to say about the experience of being the victim of a violent crime and about juvenile crime, but most importantly it raises the question of under what terms and circumstances middle class publics in places like the US and the UK might be able to revisit the penal imaginary in which young men like Moses are cast not just as criminals, but as monsters. That question hangs over the larger problem of steering away from mass incarceration in the US and avoiding further moves toward it in England. Mass incarceration relies in no small part on seeing people convicted of serious crimes as monsters who can only be contained by penal coercion but otherwise remain a toxic risk to the peace of their communities. This pushes any consideration of risk toward an extreme and unchanging assessment of the prisoner and toward more and longer prison sentences.

Sam discovers a more nuanced view of Moses and his friends as they join in the fight for their and the block's survival. She does not need to abandon her view of them has having grossly violated her rights and done her harm, to change her view that they are monsters.

We cannot of course hope for an alien invasion to hit the reset button on a penal imaginary that was shaped most profoundly in the 1970s and has been reproduced ever since by a network of media, law enforcement, and political actors. As Rod Serling brilliantly captured in his Twighlight Zone script, The Monsters are Due on Maple Street, reports of the aliens closing in can just as easily set off cycles of deepening fear and imagining your neighbors have become monsters. But we do not lack for real life events that open the opportunity (and risk) of re-imagining those we have cast as the criminal underclass. Hurricane Katrina, in 2005, produced just such a crisis in New Orleans. A population that included a very high concentration of formerly incarcerated people survived with extraordinary dignity, and achieved a great deal of self help under extreme conditions of abandonment by government. Katrina might have been a moment to reimagine those we feel must be locked up for our safety. In that case, however, the fear scenario beat the hope story out of the block. New Orleans was, we were told, falsely it eventually emerged, under attack by monstrous criminals engaged in rapes, robberies, and murders of helpless people. That time the fear reinforcing story was told much earlier and more powerfully, maybe next time the hope reinforcing story will match it.

Movies like Attack the Block, although some will see them as reinforcing stereotypes about crime from young black men in council housing, is a vital reminder that stereotype or not we need to confront the monster image that hangs over urban crime.

A New Medical Model

2011-05-11T08:24:00.000-07:00

While there is a great deal of work to be done in extricating American states from mass incarceration and in clearing the social and individual wreckage it has created, in another sense it is over. Lou Reed would say, "stick a fork in it and turn it over, its done." In California Governor Schwarzenegger acknowledged as much when he called the parole system broken and agreed to allow the courts to take over running the prison medical service. Governor Brown, through his proposed realignment plan (shifting resources and choices from the state to the counties) and is parole policies has also signaled that he wants to steer the state away from mass incarceration. Plata/Coleman, the giant prison health care case now before the Supreme Court has exposed inhumanity of mass incarceration and its rigid inability to actually protect public safety (for example by mismanaging preventive mental health care).

But penal history suggests that regime change requires a new vision of how to bring order to prisons while affirming the values of larger society. Mass incarceration had a moral account of its own, one that stressed the imperative of keeping Californians safe by physically isolating troubled individuals in their communities with a propensity toward crime and graduated levels of custodial security inside. In a sense, mass incarceration was a crude public health strategy, prisons prevent crime by quarantining those who would spread it. While this account is increasingly in tatters, it is not clear what replaces it. A return to the rhetoric of rehabilitation and penal welfarism, while predicted in some quarters, is quite unlikely (and probably not desirable). Neither prisoners or the community is likely to embrace a narrative of prison as a hospital to cure individual diseases of the will.

I believe the humanitarian medical crisis that California's prisons are now experiencing holds some promising clues to a path back toward legitimacy in prisons. Humanitarian medicine is political/therapeutic project that emerged more than one hundred and fifty ago with the Red Cross in Europe. The Red Cross sought to relieve the suffering of the dying and wounded abandoned to their fates on battle fields. Since World War II it has expanded its jurisdiction to natural disasters and pandemics, and from a focus on rescue the suffering to telling their story. While prison health care poses different dilemmas than the battle field or the site of catastrophic disasters, it shares some important features, especially the isolation of prisoners from the normal structures of knowledge and action that link individuals in post-industrial societies and the burden of stigma and fear associated with their crimes.

In Europe a version of this humanitarian medical model for prisons has emerged through the work of the European Community organs like the European Committee for the Prevention of Torture and the Committee of Ministers of the Council of Europe, as well as the European Court of Human Rights. Since the early 1990s, these organs have begun to highlight health care as the crucial framework for preserving dignity in prison. Through a series of reports, guidelines, and through the European Prison Rules, these agencies have made improving prison health care both an upward wedge toward improved prison conditions and regimes overall, and a stopper against regression through overcrowding or violence.

The US constitutional system does not have such innovative human rights organs as the Committee for the Prevention of Torture. But federal courts have enormous power when they encounter unconstitutional conditions. In California the courts have confronted a massive unconstitutional complex that is also a humanitarian medical crisis. Whatever happens in the Supreme Court, California is likely to be grappling with resolving that crisis for years to come. In the short term, the humanitarian medical model itself can provide a crucial tool kit for restoring the legitimate order to our prisons.

I'll be speaking on this topic tonight at the Scottish Centre for Crime and Justice Research annual lecture in Edinburgh. When I get back I'll try to elaborate a bit more in this or future posts.

Revenge, Retribution, Justice: Killing Osama bin Laden

2011-05-04T01:49:00.000-07:00

President Obama said "justice has been done." Many headlines were more direct. "Revenge" was the headline in the Scotsman, here in Edinburgh, while the the New York Daily News went right for "Rot in Hell you Bastard." Whatever our emotions on learning the news, the killing of Osama bin Laden by a Navy Seals "kill" team raises questions about the relationship between revenge, retribution and justice. Specifically, does revenge and retribution remain an essential core meaning of penal justice, and, if so, can it be made compatible with the premise that punishment should not be "degrading" in the words of the Universal Declaration of Human Rights (article 5)

To be sure, whatever the truth about whether bin Laden was given the option of surrendering alive (more on that in a bit), this was a military not a judicial operation. Whatever instructions they had, the Seals were not carrying a warrant for bin Laden's arrest. But whatever the legal status of the act, its interpretation raises questions of justice.

While I'm not inclined to join crowds of flag waivers in the streets of New York or DC (even if I were there), I have to admit to a fair amount of agreement with a sense of satisfaction at both the fact and the manner of bin Laden's death. In a weird coincidence, I found myself imagining precisely his end last Saturday night as the operation against him unfolded (clearly I had no advanced briefing). My brother-in-law, a Bellingham, Washington, fire fighter, was visiting us here in Edinburgh and the topic of tall buildings on fire somehow came up at the dinner table. My son, nearly 11, asked about the fire at the World Trade Center. How come, he wanted to know, did so many people jump to their deaths as the towers burned. My wife and I started to explain to him about the terrible choice so many faced between the unbearable heat coming from the building and the yawning abyss below it. I realized I was becoming quite emotional. Later, while washing the dishes, I turned to my brother-in-law and unprovoked said, "I wouldn't mind learning that bin Laden was shot in the head." I'm not a believer in capital punishment, not even for a Hitler or bin Laden. But thinking of him that night, still free, and seemingly able to defy the most powerful military apparatus in the world while continuing to play on the terror he had created, filled me with a real sense of rage and, yes, injustice.

The kind of revenge fantasy that I was having (and that played out a few hours later) has its roots, I believe, in very ancient associations between justice and war. Long before the power to punish was exercised through courts and legal offices, the ability of the king, duke, or clan leader, to slay his violent enemies in battle was an integral part of reproducing what we would call sovereignty. After legal authority replaced pure battle, the trial and the execution of punishment continued to include simulations of battle. As Foucault documented in the unforgettable chapters of Discipline and Punish on scaffold executions,the rituals of the scaffold were a kind of theater in which a now quite fixed battle between the King and his enemy, the felon, were played out before an audience expected to experience the emotions of triumph.

Clearly the memory of this kind of battle justice remains in modern societies and exercises at least a metaphoric hold on our practices of penal justice. The evolution of modern penality for a long time has been toward repressing and transforming this memory (albeit in incomplete and inconsistent ways) and replacing it with reform, rehabilitation, or more recently in the US, incapacitation. In my view this is an evolution dictated not only by the larger cultural contexts of modernity, but also by the internal needs of justice. Revenge, as the old expression goes, "is a meal best served cold", i.e., quickly, without undue reflection or debate, and without unseemly acts of passion. But legal justice can never be served cold in this way. The process of trial, appeals, clemency petitions, etc., guarantees reflection, debate, and considerable passion.

The modern criminal, caught up in the disciplinary apparatus of prisons, parole, probation, and policing, is rarely the clear enemy of the people (or the King) and typically excites little need for revenge or retribution in the Durkheimian sense. Even in the rare case, like terrorists, where the heinous killing of an absolute innocent person is carried out by responsible person unmarred by mental illness, the processes of legal justice assure that the attempt to enact revenge or retributive justice will always be unsatisfying. That is why the execution of Tim McVeigh (for the Oklahoma City bombing which killed hundreds) could not produce the same kind of satisfaction that bin Laden's killing produced. Stretched out on a gurney, after some years of legal proceedings and debates, with ample time to tell his story and become a more complicated figure rather than a demon, McVeigh became a human being snuffed out by a massive bureaucracy before a silent closed circuit television audience. Killing him could bring no honor to his slayer (which is why execution procedures always allow for multiple actors who cannot be certain they are the actual cause of death) but was an inherently degrading and degraded act.

I conclude that however unsatisfying reform and incapacitation are (and we might improve them with elements like restorative justice) they must remain the dominant values of penal justice, anchored not in positivist science, but in the values of dignity enshrined in human rights law.

If revenge is to work, to be served cold, it must be delivered by military, not judicial operations. Uncertainty has now arisen as to how and whether bin Laden was resisting and whether, in fact, he had an opportunity to surrender. From my perspective it does not matter. He was the subject of a legitimate military operation with the aim of killing an enemy. True, had he greeted the incoming helicopters with a white flag, prostrated himself on the ground and announced his surrender, killing him would have violated the laws of war and been degrading to both him and the men who carried it out. But there is not a shred of evidence thus far supporting that scenario. Having greeted the incoming Seals with armed resistance (whether by himself or more likely through his security guards) bin Laden was a fair target for killing. Had the guards been successful at shooting down the helicopters and wounding the Seals, it is hard to imagine they would have been shown mercy.

Finally, having come to view dignity as the central value (even more than life) that should be sustained in both war and justice, I do not believe that bin Laden's death, at least as it has been described, represented an act of degradation. He had sought, and was granted, a warriors death. Had he sought to surrender, he would have been repudiating the dignity of the warrior. To have killed him then, unnecessarily, would have been a degrading act. That did not happen. Moreover, there is no evidence that his body was mutilated and the US clearly took steps to assure him a dignified burial at sea (even if it failed to satisfy every Islamic rule of proper burial).

Moments like this, where revenge and justice are together enacted in an act of both courage and dignity, are certain to be rare. We should take them for what they are; experience whatever healing and sanctifying work they can do; and carry on with the business of creating forms of penal justice that transcend revenge and retribution to achieve dignity.

Europe's Dignity Gap between Punishment and Immigration Control

2011-04-30T11:59:00.001-07:00

During my year in Scotland I've become increasingly impressed with the way dignity as a public value promoted by the European Convention on Human Rights and various European governmental bodies has influenced prison law and policy, setting limits on popular punitiveness and preventing the formation of something like California's humanitarian crisis of prisons. However as sociologist Vanessa Barker pointed out to me during a seminar in Stockholm last week, the great gap in European human rights involves immigrants who have been subjected to detention and deportation practices that seem far out of line with European norms in the penal field. The mass deportations of Roma in France last summer, and Italy's treatment of Tunisian and Libyan nationals (some of whom may be refugees) evidence an indifference to human dignity that is at odds with the respect for dignity in the exercise of the power to punish (even though the practices themselves may be functionally the same including detention, involuntary removal, and even death).

One case in point is the death of Jimmy Mubenga, an Angolan man who died while being forcibly deported on a commercial flight waiting to take off from Heathrow airport last fall. Most recently, his wife and others have asked the United Nations to investigate his death (read Matthew Taylor and Paul Lewis reporting on this story in Guardian). Mubenga, whose deportation to Angola after years of living in the United Kingdom was separating him from his wife and five children who remained in England, died while being forcibly restrained by a team of employees of G4S, a private security firm with a contract to conduct deportations for he UK government. Alarmed fellow passengers were told rebuffed by the security guards when they expressed concerns about Mubenga's apparent pain and difficulty breathing.

Whether or not the death is ultimately ruled criminal, there is a lot about the episode the raises grave concerns from a dignity point of view. First of all, private firms should not be delegated to carry out functions that necessarily involve extreme coercion in the name of the state. The employees of G4S are there to make money for the company, not to make sure that the public values of the United Kingdom are protected (as they were not). Second, the fact that Mubenga was deported on a commercial flight meant that the predictable anguish he was going to experience in being forcibly separated from his family (not to mention being killed) was going to be witnessed by numerous strangers; it become a kind of public punishment.

The US also relies heavily on private firms to exercise coercive functions with immigrants, but our penal system is also deeply degrading.

It's So Predictable: Oakland, Violent Crime, and the Press

2011-04-26T10:24:00.000-07:00

There have been a string of brazen gun crimes in Oakland, and once again a Mayor with the right instincts is getting politically nailed by a newspaper columnist speaking in the "common sense" about crime----it is all so predictable.

In this case the crimes are the type that shake the confidence of anyone who loves urban life--- a brazen shooting in a restaurant, a bungled robbery, killing two and wounding four. Earlier this month an Oakland restaurant owner was killed in another robbery. The Mayor, Jean Quan who came into office only this January, dares to suggest something other than the tried and truely failed strategies of a police "crack down" or a new harsh penalty for violent crime (as if we could get much higher than the sentences which currently prevail for violent crime in California). In this case the columnist, Chip Johnson (read his column), is no hack, but instead a veteran and often perceptive observer of Oakland's social scene.

Johnson takes the mayor to task for failing to deter crimes like these.

Her response to a restaurant shooting early Monday in downtown Oakland that killed two people and wounded four others was particularly disappointing.

"I assure you that it is a high priority and the Police Department will schedule increased patrols in the area as they continue to investigate the circumstances," Quan said in a prepared media statement.

Quan believes in providing young people, including those hell-bent on shooting other people, with positive alternatives.

Nothing wrong with that, but that alone is not going to deter crime on the mean streets of Oakland. She needs a clearer, more comprehensive approach that includes spelling out for residents the Oakland Police Department's role.

Actually it's Johnson's analysis that is disappointing. Let's start with what is predictable.

It is predictable that Oakland will continue to suffer from periodic spasms of violent gun crime. We have a large population of extremely alienated young males (older teens and young adults) who have accepted a path to "honor" paved in guns, blood, imprisonment, and early death. Post-industrial cities have that problem not just in America, but, minus the big factor of guns, everywhere in the old industrial world. Urban industries permitted aging young men with limited educations to obtain a life of honor (if not glory) by embracing working class values and objectives. We let our industrial economy die and failed to replace it with any viable alternative. Angry young men stay angry until age and prison break them to a life of low level degradation, pushing a shopping cart across the empty lots of post-industrial cities, collecting cans and bottles. There are societies that chose not to allow their industrial economy to disappear, Germany for instance, and they have far less crime with remarkably low levels of policing or punishment.

It is predictable that any effort to stray from one side of the other of the deterrence equation (more policing or more punishment) will be ridiculed as naive and ineffective. As Johnson writes (with the conviction no doubt shared by most of his readers even in liberal Oakland):

Sad as it is, all the community involvement in the world couldn't stop the bullets that ended the life of Jesus "Chuy" Campos earlier this month. The Fruitvale restaurateur was shot to death April 8 while opening his business.

Of course Chip is right. Better social policies cannot stop bullets fired in the present any more than stopping smoking can stop a malignant tumor from growing in your lung --- but the truth is, nothing we have is going to stop that tumor now. No amount of aggressive patrolling and indiscriminate arrests is going to alter the basic incentives that lead those bullets to fly. Where Johnson falls victim to his own "common sense" is in believing there is a way to deter those bullets today (or the hands firing them). But everything we know from empirical research and the experience of our own failed war on crime is that young men do not put enough stock in the future to be deterred by crackdowns and long prison terms (they already accept those consequences).

Programs aimed at keeping youth in school, creating places to go other than the streets at night, and shaping a policing strategy less likely to drive impressionable younger men into the arms of the gangs are all worth doing because they may, at the margins, diminish the number of bullets flying five years from now. At least these strategies are less destructive and costly than the tried and truly failed war on crime tactics. More realistic would be an economic strategy aimed at producing a new generation of good working class jobs in Oakland and providing the kind of high school education necessary to prepare the current ten year olds for those futures.

What to do about the current young men with guns? Police tactics precisely aimed at deterring them from carrying their guns is one possibility. It worked in New York, but it requires a mass mobilization of police that Oakland cannot afford on its own and California does not have the current budget to support. It also means ignoring the Constitution's bar against unreasonable searches and seizures (but that's for another post).

Another approach would be turbo charging our current juvenile and adult probation with electronic monitoring and low case loads that allow both surveillance and daily engagement with offenders, but that also costs money we cannot afford until Governor Brown's realignment from state prison to country law enforcement happens (currently locked out by the budget impasse).

There is little Mayor Chuan can do on her own to make any of these strategies available in Oakland. She can help lead a real discussion of why Oakland is so violent and what strategies might produce a less violent Oakland in the future, but to do that she'll have to survive the all too predictable common sense promoted by the media.

The Wall

2011-04-19T03:03:00.000-07:00

Earlier this month I went with my family for four days of walking through the countryside of Northumbria in the United Kingdom along some of the largest and most stunningly situated remains of what is known as Hadrian's Wall. Built in a remarkable five year period on the orders of the Roman emperor Hadrian (in power from 117-138) the wall originally stood fifteen feet high, at least four feet thick, 80 miles across the breadth of Northumbria from present day New Castle in the east, to Carlisle in the west, and along the west coast.

For a student of crime and social control the wall is a subject of endless fascination. We know it was built to significantly upgrade the security of Roman control over what they called Brittania (military documents left at the contemporary and nearby Roman fort of Vindolanda make reference to the locals as more or less "dirty little Brits"). Only a decade earlier a rebellion to the south, led by Queen Boudicca, had led to the trashing of several Roman cities including London, and the massacre of Roman civilians (in retaliation for abuses against locals). But Brittania was hardly the most dangerous outpost in the Empire, perhaps just the most dangerous one where a wall would be helpful because of the relatively narrow parts of the long island.

How was the wall supposed to work? It is tempting to view it as a security perimeter designed to separate an untamed North from the docile and controlled South (that feeds into much of the later historic imaginary of Scotland as a wilder and less tamed region). But we know that Boudicca's rebellion had come from the South. Moreover, the wall was part of a larger military zone which ran from a ditch dug just north of the wall, to an even wider ditch with raised ramparts running a bit further to the south. Indeed, Hadrian's Wall interacted with a previous infrastructure, the Roman military road which ran parallel approximately two miles south and along which the Romans had already constructed forts including Vindolanda and several others at which they stationed large units of auxiliary troops (so called because these units composed of non-Roman citizens were considered of lower status than the legions but almost equally well trained and led).

Instead of a barrier, the Wall seems to have been both a demonstration of Rome's sheer power (the amazing views we enjoyed reflect the fact that it was built across high ridges and crags where attackers or traders were unlikely to come but from where it could be seen for miles). It was also a demonstration of Rome's disciplinary technology, with defensive turrets and wall forts designed to control (and tax) traders entering into the Roman zone spaced every 1/3 of a Roman mile even where that placed them on top of a high crag that no trader would ever visit. It may also have been an instrument for introducing these disciplinary patterns into the Celtic populations along both sides of the wall. Whether coming from the south or the north, locals seeking to visit family or trade across the wall would have had to deal with the disciplinary matrix of the military zone along the wall and learn to conform themselves to its demands. Indeed, this aspect of the Wall seems to have survived its demise (Rome abandoned it and Britain in the 5th century) to linger in the cultural imagination of the British. For example the common reference in British usage to a fortnight (or two weeks) comes from the period of time during which Roman soldiers would rotate through duty on the Wall where they patrolled the along the wall and slept in the turrets and wall forts (thus fortnight).

There is a story of crime here as well in the Wall's survival. Although many of its well dressed outer stones have been robbed to build churches and farm houses, the fact that this area between England and Scotland was a zone frequently visited by raiding parties from both sides (some of them known as Reavers) kept the area from being more fully developed until union of the two kingdoms brought relative peace in the 18th century, at which time a sense of preservation about the wall had begun to develop.

The Hardman

2011-04-08T05:58:00.000-07:00

Chris and I saw the new production of The Hardman, directed by Philip Breen, in Edinburgh through Saturday I believe and then moving on to Glasgow (check out dates here if you are in Scotland). The play written by the late Tom McGrath, and Jimmy Boyle, the famous gangster turned artist whose early life it retells. Criticized when it was first produced in the Seventies for glamorizing violence, the play is an unrelenting encounter with the horror of violence. It is an exercise in the most courageous kind of truth telling (especially given that Boyle was still in prison and seeking parole release from a life sentence for murder) which spares little in describing Boyle's escalating violence as a young man turned gangster, a pattern that only accelerates initially when it meets the routinized violence of Scottish prisons in the period. Interestingly Boyle's character, Johnny Bond, is better at exhibiting violence physically (and the production fo the revival in this respect is brilliant and wonderfully acted by Alex Ferns) the explaining it analytically (he says at one point that he cannot read his DNA). Instead, the most insightful lines are given to the racist (anti-Catholic) and sadistic prison officer Paisley:

...And the other...screws don't like me because they know I'm the one that does the dirty work for them.

They know what this prison would be like if we didn't get tough from time to time. They don't want to walk in fear of their life from day to day when they're going about their job, any more than you would. So they tolerate me. I'm (their) hardman. And they feel a wee bit guilty about me because I'm an aspect of themselves they don't like to admit to. Just like you should be feeling guilty about us because we're the garbage disposal squad for the social sewage system. You people out there, that's the way it works for you --- you've got a crime problem so you just flush it away one thug after another in behind bars and safely locked away. The cistern's clanked and you can think you can leave it floating away from you to the depths of the sea. Well, ah've goat news fur you --- its pollution. Yir gonnae huv tae look ut it. Because if yae don't, wun day its gannae destroy yae. But in the meantime, dirties like me, well, lets just say we're a necessary evil. Very necessary.

Post Conflict Violence in Northern Ireland

2011-04-04T12:21:00.000-07:00

Shortly after I departed Northern Ireland, this past Saturday, a new page was being written in the story of post-conflict violence. That afternoon, in Omagh, a 25 year old recent recruit to the Police Service of Northern Ireland (PSNI), was killed by a bomb booby trapped to explode when he used his car to commute to his post as a police officer (read the Guardian coverage here). To speak of post-conflict violence sounds contradictory, but it is not. The conflict is over because the major organized forces that pursued it for three decades have laid down their arms and now participate quite cooperatively in a set of political institutions negotiated to end the conflict. The lethal attacks and threats that continue to be carried out show that the conflict is not over for everyone, but those acts take place against a background of agreement that conditions their logic. Thus while no group has claimed credit for the latest Omagh bomb, it is widely assumed that the operators were part of the rejectionist wing of the Republican/Catholic side, which insists that the armed struggle to reunite Northern Ireland with the Irish Republic must continue. The fact that they targeted a Catholic police officer, in an effort interpreted by others as one aimed at preventing the PSNI from achieving the integrated force composition that is a key part of its own post-conflict make-over into a reflection of the peace and to differentiate themselves from the much criticized Royal Ulster Constabulary which was widely viewed as siding with Protestant militants during the troubles. Both the PSNI and the rejectionist Republicans are pursuing what can fairly be called post-conflict strategies.

The rejectionist Republicans who are also blamed for the mass killing of 29 people in Omagh in 1998 at the time of the peace accords, believe that they can trigger the kind of repression of poor Catholic neighborhoods that during the conflict period helped sustain popular legitimacy for the IRA among Catholics. The PSNI which has invested considerable effort in branding itself as a successful model for post-conflict policing globally (see Graham Ellison and Conor O'Reilly, "'Ulster's policing goes global': The police reform process in Northern Ireland the creation of of a global brand," Crime Law and Social Change (2008) 50:331-351), knows that they cannot afford to alienate Catholic communities by a repressive crackdown. The only question is whether the political dynamics within the Loyalist/Protestant community can resist the impulse toward a crackdown.

Another prime theme of the conflict that is being brought into play in the post-conflict is the politics of informers. Ron Dudai, a post graduate student at Queens, School of Law, is exploring the post conflict politics of informers and the legacy of reprisal violence carried out against suspected informers (read a brief essay available on the web by Ron on this general topic). Informers played a crucial role during the conflict in both the British effort to combat the IRA, and in the IRA's effort to maintain legitimacy among the Catholic population. The rejectionist Republican militias are clearly seeking to extend that logic while the older Sein Fein/IRA has now taken the extraordinary step of asking Catholic community members to inform the PSNI about violent militias (read the Guardian story here).

Finally, the incident is a lesson in how the availability of weapons has changed the political calculus of militia violence. As Queens law professor and transitional justice scholar Kieran McEvoy told me while I was visiting Belfast, the IRA struggled during most of the troubles with a very limited access to high quality weapons. The highly unstable home made bombs relied on in the early phase frequently killed as many IRA members in accidents as they did victims in intentional terror acts. Only after they obtained high quality arms from Libya's Muamar Quaddafi could the IRA go on to its major terror successes in the 1980s, events that laid the groundwork for resolution in the 1990s. The use of fire arms was therefore highly regulated by the IRA leadership during the conflict. Tight control on weapons went along with a human capital strategy in which the cooperation of many individuals and whole communities was necessary to sustain the armed struggle. In contrast, the relatively tiny membership of the rejectionist IRA militias has access to relatively sophisticated weaponry that can achieve great lethality (the previous Omagh bombing killed 29, the largest during the entire conflict) which they can use with virtually no base of popular support. It is hard to see how that can be reversed which suggests a very long tail to violent conflicts.

Governing through Crime in Post Conflict Societies: Notes from Belfast

2011-03-29T03:30:00.000-07:00

Reporting to you from Queens University, School of Law in Belfast, Northern Ireland, where I am in the middle of a fascinating two week visit at the kind invitation of the Institute of Criminology and Criminal Justice, where I will deliver the annual lecture tomorrow at 4 pm (it is open to the public so please join us if you can get here by then).

Belfast is a beautiful and vibrant city full of young people and wonderfully preserved old buildings. It gets overlooked in comparison to its flashier cousin in the South, Dublin, but has many many charms with very few pretenses and better prices (think Melbourne compared to Sydney, Strasbourg compared to Paris,Manchester compared to London). Yes the wounds of the conflict are still visible and felt, but they share the present with evolving experiments in constructing the future; often visible in the extraordinary collection of murals painted on buildings all over the city which memorialize the conflict and interpret its meaning for the future.

For those who share my interest in both criminology and human rights there are few law schools in the world that combine the depth of expertise in both fields with collaborative engagement between them (Shadd Maruna who is Director of the Institute of Criminology and Criminal Justice sits in an office with a sign on the door saying "Centre for Comparative and International Human Rights Law", which he attributes to office assignment vagaries but seems to me highly appropriate, if confusing). Professors Kieran McEvoy and Phil Scraton both combine criminological and human rights themes in their research.

While here I am holding conversations with these and other colleagues and the very strong group of post-graduate students here at the law school around two themes. First, how influential are governing through crime logics in a post conflict polity like Northern Ireland (with its own devolved Assembly but still part of the United Kingdom)? I have two hypotheses. First, it may be that post conflict societies like NI are resistant to governing through crime since efforts to appeal to an idealized crime victim "everyman" is refracted through the politicized nature of both interpersonal and state violence. This community has powerful memories of violence that is terrible but not "senseless" in the sense of beyond understandable and human narratives. Second, it may be that in post conflict societies the enduring deposits of power in security forces and institutions will work ceaselessly to create a new foundation for legitimacy, perhaps through turning from violence to less political crimes involving drugs and anti-social behavior.

The other topic I am learning about is the role of hope and dignity as values that helped carry people through the conflict in shaping a new agenda for post-conflict justice. There are tremendously motivated cadres of educators, social workers, lawyers, and human rights advocates in this city whose perspective has been shaped by growing up in the midst of the conflict and who bring these values to bear in constructing strategies to address the more mundane but consequential problems of poverty, educational failure, and disempowerment. I am interested in learning how post-conflict themes can shape a new agenda for restoring legitimacy to institutions deformed in the US by mass incarceration, particularly police, prisons, and the juvenile justice system.

Bill Stuntz and the Pathological Politics of Crime Control

2011-03-21T03:33:00.000-07:00

Those of us concerned with mass incarceration, and friends of the rule of law everywhere have lost a great friend and teacher. Harvard Law Professor William Stuntz has died of metastatic cancer at the age of 52 (read the NYTimes obituary here). Bill's crucial 2001 article in the Michigan Law Review, "The Pathological Politics of Criminal Law," (download it from ssrn here) took on the widely held view that excessive punishment in America was a result primarily of electoral politics. Instead, it was the interaction between electoral politics, influencing legislatures, and institutional design problems, primarily the unchecked power of local prosecutors, that combined to produce incentives for over punishment. The correction was crucial for helping us understand why excessive punishment continues even in periods when electoral politics moves on to other issues (as it has mostly since the late 1990s).

Stuntz will be remembered as well for his humility as a thinker and his extraordinary capacity for empathy. An evangelical Christian with right of center political values, Bill always sought to look beyond his personal value intuitions to the objective structure of institutions that operated to produce trends that only retrospectively looked to be driven by values. Burdened with an extremely painful back condition since the 1990s, Bill faced daily pain, and later the onslaught of terminal cancer with an equanimity that inspired all who crossed his path even briefly (which was my circumstance). His writings included newspaper articles and blog postings that reflected on the human condition through the lens of his own suffering, but also expressed tremendous concern for the suffering of others, especially the poor.

Committed to an intellectual life of service, Bill took precious time away from his family to complete a book on the larger structure of over punishment in our time. Thankfully he was able to complete this and the book, Fighting Crime: Race, Crime, and Democracy in America, will be published in the fall by Harvard University Press.

Back on prisoner voting and dignity

2011-03-18T06:05:00.000-07:00

I'm still pondering the prisoner voting controversy over here (see my last post). At first I thought it was a rather trivial issue, at least to one who is primarily concerned with mass incarceration and the deplorable conditions in many prisons in the US. After all many states of the United States strip prisoners of their right to vote for years after they have been released from prison, while the UK restores voting rights as soon as a prisoner is on parole. But as I've continued to listen to the debate here I find it more and more interesting. Here are some more (somewhat random) observations:

Many UK politicians seem to find it so obvious that prisoners should have no right to vote simply because they are prisoners, without regard to the nature of their crime or their overall sentence, that hardly any one has even discussed what a less blanket ban should look like (listen to an interesting interview on BBC Radio's Law-in-Action, with the UK Attorney General on this issue here). The European Court of Human Rights, Grand Chamber, whose 2005 decision in Hirst v. UK was ignored for five years until a second decision of the Court this November put it back on the agenda), is treated as if this simply came out of far left field, even though a majority of other European countries do permit prisoners to vote. The Grand Chamber's opinion only indicated that given the centrality of voting rights to contemporary European citizenship the denial of voting to prisoners requires at least debate and justification, if not selectivity. But Prime Minister David Cameron took the position that he had only to consult his stomach to determine that the ban was correct, declaring that it made him physically ill to even contemplate prisoners voting.

But why is it so obvious that stripping the vote from prisoners is an appropriate punishment? In contemporary society punishment appears to have two major goals (1) to create a sense of deprivation for those who commit crimes by taking away something they enjoy or impose something that is onerous (like a fine);(2) to incapacitate them from committing crimes or endangering the security of other citizens. We can put aside rehabilitation and reform which are not much celebrated in either the US or the UK today. Yet the curious thing about voting is that it is neither a pleasure nor a danger. Imagine that Queen Elizabeth announced that in honor of the upcoming Royal wedding, all prisoners in Her Majesty's Prisons could choose one of three privileges normally denied prisoners: (1) a night home with the wife (or husband or significant other); (2) a night out with the lads (or lassies) at the local pub; (3) the right to vote in the next general election. How many prisoners do you think would choose the voting booth over the bed or the pub?

Nor is it easy to see how prisoner voting could compromise the security of their fellow citizens. Even imagining that prisoner votes in a particular constituency might swing a close election, there is no reason to assume those votes would lead politicians to adopt policies of leniency or lax law enforcement in order to win those prisoner votes (because they would lose far more votes in doing so). Instead prisoners probably will vote for candidates on the same grounds that many other members of their social class (generally poor) do, in favor of more welfare, fewer cuts, etc.

This brings us to an important point. The only real reason to deny voting as punishment is to degrade prisoners, to underscore that they lack not just freedom, but equality in society. But that is exactly what the ban on degrading punishments in the European Convention on Human Rights (and the Universal Declaration of Human Rights that the US is also bound by) is all about banning.

Proud to Be from Illinois: Land of Lincoln becomes 16th State to Abolish Capital Punishment

2011-03-09T14:18:00.000-08:00

Illinois today became the 16th state to ban capital punishment when Governor Pat Quinn, recently elected Democrat signed into a law a bill abolishing capital punishment and passed by the Illinois legislature several weeks ago (read John Schwartz and Emma Fitzsimmons reporting in the NYTimes here). Governor Quinn's statement highlighted the "new abolitionism" themes that are bringing the death penalty down in the USA (Illinois is the 3rd state to remove an existing death penalty law in the past several years, along with New Jersey and New Mexico, and was a far heavier user of the sentence than either of the other recent abolishing states). Having stated his support for the death penalty if applied carefully and justly in the campaign only last fall, he said this on signing the law:

“Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it,” Mr. Quinn said in a statement. “With our broken system, we cannot ensure justice is achieved in every case.”

These recent legislative abolitions are a real break with the politics of governing through crime in which legislatures have defined themselves above all as on the side of crime victims, a group publicly represented mostly by families of murder victims who embrace capital punishment. When courts abolish the death penalty as unconstitutional, they tend to play into this politics by appearing as an elite institution favoring sympathy for criminals over victims. But as Frank Zimring has pointed out, when legislatures abolish, and governors, who generally position themselves as champions against crime, sign off on abolition, a very different dynamic is taking places.

Quinn's statement emphasized the danger of wrongful conviction, a theme etched in Illinois by a string of gross miscarriages of justice and framed several years ago by Governor George Ryan's mass commutation of the entire Illinois death row at the time. But implicit is a broader critique, i.e., that the death penalty is fundamentally unable to deliver justice and does not provide anymore real protection against crime than prisons do. If it did, it would be hard for politicians in the era of governing through crime to withdraw it notwithstanding highly visible errors, for to do so would be to favor a criminal class (most death row inmates having committed other crimes in the past) over the victim as everyman. It is only because the death penalty is increasingly perceived as rotten in its fundamental uselessness that the wrongful conviction issue can have the power it does. After all we know plenty of people are in prison for wrongful convictions as well, many more in fact than are held by death rows, but it has not led to any substantial movement to reduce prison sentences let alone abolish prisons.

Two key features, the prolonged delay of executions almost everywhere (other than Texas and Virginia) and the uncertainty of correctness now associated with death penalty sentences. This produces a punishment that maximizes the degradation of both prisoner and murder victim families. The prisoner suffers something almost as bad as the old death penalty, spending years, sometimes decades on death row, with the possibility of execution hanging over them, and all the while their time in prison appears not to be no punishment to the victims and the public at all (which of course it is) so long as they continue fighting their death penalty-- but to abandon one's appeals is a form of suicide, and act which is inherently degrading. For victims, the prolonged wait and complex pattern of litigation assures a constantly open wound without any sense that justice is being served, even if their loved ones killer has been in prison serving hard time for decades. This is the point now effectively being made by dozens of murder victim family members who signed a letter supporting the abolition bill.

“To be meaningful, justice should be swift and sure,” they wrote. “The death penalty is neither,” and the trials and appeals “drag victims’ loved ones through an agonizing and lengthy process, which often does not result in the intended punishment.”

How come it was so difficult for states to get an effective death penalty going again after the Supreme Court's temporary abolition in the early 1970s? That is a crucial question that scholarship should focus on. Capital punishment came back by the late 1970s, but it was like the pets in Stephen King's Pet Sematary there was something not quite right about it. It is remarkable, in the end, that all the effort of the Supreme Court and Congress in the 1980s and 1990s to normalize the death penalty failed and its days are now numbered although it will stagger on for as much as another decade or more.

The Face of the "Monster:" Lori Berenson's Saga as the Criminal Other in the heart of Peru

2011-03-06T00:30:00.000-08:00

Jennifer Egan provides a moving account in the NYT Magazine of Lori Berenson's life since being sentenced to life in prison as a terrorist by the Peruvian government of dictator Alberto Fujimori, and since being released on parole (in fits and starts beginning last fall). Berenson a 25 year old American, was convicted in 1996 of collaborating with the Tupac Amaru revolutionary movement, whom the government claimed (apparently with some reason since) was planning a violent seizure of Peru's parliament. Despite the fact that Berenson was at best a minor participant in the plot, including renting an apartment for the group and if the government's case is to be believed, scouting the parliament using her cover as a journalist (something that as Berenson notes, anyone could do since it was a public building), she has long been vilified by ordinary Peruvians as the very face of terror, and her legal travails and recent parole release have been subjects of enormous media frenzies.

Now released to parole in the city of Lima, Berenson is still subject to hateful comments by Lima residents as she goes about the city with her young son Salvador (born in prison). Egan describes going for a walk with Berenson and Salvador

Berenson insisted we wait until dark to go out; since her parole, she has been hounded by strangers who scream obscenities or call her “assassin” and “murderer.” Just that day, on her way back from the playground with her mother and Salvador, “this woman said: ‘You’re under house arrest! You should be in your house!’ She was with a cellphone, taking pictures. I don’t like going to the park, because people stare at you and make you feel as though you’re not welcome.”

One explanation given for this hatred is the enormous trauma that Peru suffered during the years of terrorism and its repression by the Fujimori regime. Some 70,000 Peruvians are estimated to have been killed, more than half by the government. But while Fujimori is long since disgraced and himself serving a lengthy prison sentence for his crimes in office, and the exposure that so much of the violence was due to the government itself, there is little evidence that Peruvians view Berenson in any more redeeming light, despite the fact that she served 15 years in harsh prison conditions with apparently no trouble or resistance.

Egan's article suggests a number of reasons why Berenson exceeded many far more responsible militants in becoming the face of terror for Peruvians. As a foreigner and especially an American who came to Peru after involvement with left wing groups in Central America, it must have been a relief to Peruvians to see the evil infecting their country as coming from the outside. Perhaps most importantly, according to Egan, Berenson's initial appearance before the media after her arrest was a grimacing and shouting performance that seems to have convicted her before the public, even before her trial.

Five weeks after her arrest, on Jan. 8, 1996, Berenson was taken to a small auditorium in the headquarters of Dincote, Peru’s antiterrorist police, and presented to the press. Her performance was indelible: she took the stage bellowing in Spanish, hands clenched at her sides, long dark hair tumbling down both sides of her face. After denouncing suffering and injustice in Peru, she denied that she was a terrorist by shouting: “In the M.R.T.A. there are no criminal terrorists. It is a revolutionary movement!” — words that, to Peruvian ears, amounted to a confession. She looked scary: big, ungoverned and enraged. To this day, clips from that 15-year-old tirade are part of any news story about her on Peruvian TV; stills from it, in which she appears to be baring her teeth, appeared on the front pages of Peruvian newspapers when she was paroled. Her father told me ruefully: “Forty-four seconds, and it ruined her life. It doesn’t take much.”

As Egan reports, the security forces had carefully stage managed the performance, keeping Berenson isolated in terrible conditions before the media show, and (falsely) telling her that she would have to yell because there were no microphones. But her own emotions and idealism must have played a role as well.

What is fascinating about the Berenson saga and troubling for those of us struggling with our own legacy of war on crime and terror in the US, is the way the creation of criminal/terrorist monsters for political purposes, endures in the emotions of a population for years after the circumstances and even the politicians are gone. As Egan notes, the Fujimori regime reaped major benefits in public relations at a time when the far more threatening Shining Path terrorist organization was in full operation, by presenting this foreign threat to Peru and showing that the police and judicial apparatuses could stop her. Yet decades later, and after the reality of Fujimori's dictatorship and its own responsibility for violence, death and terror are fully known to all Peruvians, the regime's construction of Berenson as a monster lives on.

Thnking Allowed about the Death Penalty

2011-02-23T09:23:00.001-08:00

David Garland discussed his important new book on America's death penalty (Peculiar Institution) on BBC Radio Four's Thinking Allowed this afternoon (listen here). Along with host Laurie Taylor and former Director of Public Prosecutions, Ken (Lord) MacDonald, David focused on the paradoxes of American capital punishment in the age of abolition. For Garland, America's death penalty is not a reflection of our archaic commitment to blood and vengeance, but a product of a constitutional structure that places such an extraordinarily potent symbolic issue in the hands of locally elected legislatures, prosecutors, and judges (not to mention juries). The result is an extraordinary variegated institution that amounts to largely a symbolic legal statement in most states, and a reason to actually kill someone every month or so, in a couple of state (especially Texas).

While reminding us that more than a 1,000 people have been killed since the restoration of capital punishment in the late 1970s, Garland argues that the real value of capital punishment lies much more in the discursive opportunities it presents for politicians to signify their identity with vulnerable citizens, for the media to stroke existential anxieties that Americans share with most other people around the world, and in large part, to obscure the vastly larger system of mass incarceration which condemns millions to losing part of all of their lives in degrading prisons.

The happiest part of the discussion (for me) was the end where David talked about the possible path to abolition. The end game (which we are hopefully in) is all about states with symbolic death penalties choosing to abolish for cost savings issues. New Jersey and New Mexico have already done that. Illinois passed a law through its legislature but it looks like it may die on the desk of the new Republican governor. If such a process were to unfold, leaving the death penalty an all southern institution, it is possible that even a court dominated by conservatives and cautious liberals would decide that such a sectional institution was inherently cruel and usual (especially if they at least subrosa considered the international pattern).

I fear, however, there will be considerable resistance to this path by those who will argue that keeping even a symbolic death penalty is necessary to block the efforts of reformers to reduce mass incarceration by reducing lengthy sentences for non-capital murderers. This was the precisely the recent argument of conservative San Francisco pundit Debra Saunders (read her column here):

Is the answer to get rid of the death penalty because it's too expensive? Hell, no. As soon as the death penalty is gone, thug huggers will use the same appeals system to go after life without parole.

This suggests that the campaign for abolition must become part of the larger struggle against mass incarceration rather than a special pleading that often promotes longer punishments (like LWOP).

Sarkozy’s battle with the French magistrates

2011-02-13T13:34:00.000-08:00

(Read Angelique Crisafis reporting in the Guardian here)

Special report from Simon Grivet, Paris

Her beautiful smile was everywhere. As soon as Laetitia’s disappearance appeared to be the result of a crime, her picture made front page news. She was an 18 year-old young woman living in Pornic, a small and tranquil seaside resort near Nantes. Hints of a tragedy soon accumulated as the police and gendarmerie intensified their search: her scooter was found, wrecked, on the side of the road; her boyfriend revealed text messages she sent the night of her disappearance in which she said she had been raped; moreover, the police finally arrested one Tony Meilhon, a 32-year-old marginal who had been seen with her the final night. Meilhon had a long record: at age 16 in jail he put a stick in the rectum of another inmate, sentenced for sexual crimes. Meilhon received a 5-year prison sentence he executed entirely. His life was never stable and he accumulated 14 other convictions for theft, robbery and his latest for contempt of the court. He was free under probation but had not yet met with his counselor and recently, in contradictions with the terms of his probation, moved to a new address. Meilhon stubbornly denied having kidnapped, molested or voluntary killed Laetitia. Confronted with such heavy hints of guilt as Laetitia’s blood and DNA in the trunk of his car, he stuck to the same improbable story: he had had a traffic accident with the young woman and, as he saw her dead after the shock, he threw her body in the river Loire. After harrowing days of wait for Laetitia’s family and friends, marked by silent demonstrations, the gendarmerie discovered parts of Laetitia’s body in a pond where the main suspect used to go fishing. The first investigation of the body would indicate that Laetitia had been strangled. Meilhon remains to this day defiant and mute.

On February 3rd, Nicolas Sarkozy came to the city of Orleans – 80 miles south of Paris – for one of his favorite duty: the inauguration of the a new police station. Sarkozy held the post of minister de l’intérieur Head of the Home Office between 2002 and 2005 and built his successful presidential bid in 2007 on a very determined and energetic “law and order” ideology. Security, the “fight against crime and criminals”, those he called “rabble” needed to be taking care of, even if it meant that some urban areas had be “cleaned with a Kärcher”. This tough talk almost immediately brought hostile reactions among civil rights advocates, lawyers and some magistrates. Once elected president, Sarkozy and his first Justice secretary, Rachida Dati, carried out a draconian program to impose a new severity against crime: in 2007 tougher sentencing guidelines for recidivists, in 2008 an almost unique law in Europe enabling the State to keep behind bars a criminal who would have done all his sentence but would have been adjudged “dangerous” by a special panel of magistrates and psychiatrists, etc. These policies have had debated results: more people are incarcerated than never before in France (62 000); at the same time, some French prisons are in disrepair and globally there are not enough spots in prison, overpopulation reaches 120%; crime statistics offer a mixed bag of conflicting results as delinquency appears to be declining but not the specific violence “against the person”, i.e. acts of violence, rape, murder, etc. are increasing. More generally, 15 months before the presidential elections, Sarkozy’s political situation is uncomfortable to say the least. He has lost every local elections held in France since 2007 and his approval ratings are stuck at 30%.

In this context, a couple of days after the discovery of Laetitia’s body, Sarkozy made the following comments about this affair:

“When a person like the presumed guilty is allowed to come out of prison without being sure that he would be followed by a probation officer, it is wrong. Those who have committed this fault or let it happened will be punished, it’s the rule.” And he added “When there is such a wrong which led to such a trap, our fellow countrymen would not understand if there weren’t any punishment.”

Those comments immediately stirred an intense emotion in the Nantes’ court were Meilhon had been sentenced for contempt of the court. First, many observers were surprised that Sarkozy would call Meilhon “the presumed guilty” as a suspect is of course presumed innocent until proved guilty. But magistrates more profoundly felt abused by Sarkozy’s comments as the President seemed to be implying that judges were somehow complicit in this tragic murder. Magistrates argued that they had warned their hierarchy many times that probation officers did not have an adequate workload: in spite of the recommended 60 cases they had 120 or more. Also, the Nantes’ court had only 3 juge d’application des peines (JAP) – a specific judge in France whose specific duty it is to follow and control probation and conditional releases of criminals – when they should have 4. In short, magistrates immediately reminded Sarkozy of the dire state of the justice system in France. Ranked only 37th out of 43 European countries for its justice system budget, France has had those issues for a long time. With only 7 billion Euros, the Justice department is supposed to run some 170 courts, pay all his personnel, their pensions and also run the prison system! Many courts in France are plagued with endemic and pitiful delays: a relatively simple criminal offense like speeding could take 6 to 9 months before being examined.

In Nantes and shortly in all other courts in France, magistrates postponed non urgent matters and adopted protestations motions against Sarkozy. Those actions were already exceptional in a group which by law has no right to strike and by tradition remains conservative and cautious about any involvement in the political arena. But to the surprise of many, especially older magistrates, the movement did not weaken. It led to an historic protest last Thursday when hundreds of magistrates, wearing their black robes, joined by lawyers and police officers, expressed their anger at Sarkozy and ask for better funding.

The fight between Sarkozy and the magistrates thus followed simple lines. Confronted with an original protest from a group he had previously castigated, Sarkozy and his allies presented themselves as the voices and representatives of the victim, close to the people and sharing his simple but essential indignation against such a terrible murder. Members of the government denounced a “corporatist, selfish” movement, “led by unions” and unable to understand the feelings of the population. The media named the magistrates’ movement “a Fronde” which is not a very pleasant denomination as historically the Fronde designated the nobility’s revolt against Anne d’Autriche, Mazarin and the young Louis XIV in 1648-53, a movement of the privileged few, compared to the great Revolution of 1789.

However a poll showed that 65% of the French understand the magistrates’ movement. Thursday night, Sarkozy spent 15 minutes in his 2 and a half hour televised show on the topic of security and justice. On the issues, he did not bulge: if mistakes were made in the Meilhon’s case, sanctions will be handed out. Moreover there will not be any new funding for the justice system. But he had to reassure the millions of viewers that “the immense majority of the French magistrates are doing an excellent job”. The following day, the magistrates’ unions expressed their disappointment and called for a continuance of the movement. Non urgent cases will be postponed again next week and it remains to be seen how the movement will end.

This episode illustrates several traits of the French political situation in a time of “government through crime” in all Occidental nations. First, Sarkozy plays the well-known “law and order” tactic: not only does he present himself as tough on crime and deeply concerned with victims but he also strongly criticizes the magistrates for being either incompetent or guilty of laxity. Second, the magistrates did react to this direct aggression although clumsily at times. The apprehension born out of the massive Outreau scandal – a dozen innocents spent 2 to 3 years in prison for imaginary pedophile crimes – has not disappeared. Sarkozy did play the Outreau card Thursday night reminding viewers that the main investigative magistrate responsible for it had only received a reprimand from his peers. However, the magistrates managed to set up an organized movement which was well received by the public opinion. Sarkozy’s operation of blaming the magistrates for the shortcomings of his policies might well fail this time.

Simon Grivet
History teacher, France

Should murderers have the right to vote in prison?

2011-02-09T10:26:00.000-08:00

The fact that I'm even thinking about this issue is a testament to the cognitive difference of living in the European Community for the past six months. Five years ago, the Grand Chamber of the European Court of Human Rights held in the case of HIRST v UK, Application No. 74025/01 (read the case online here) that the UK must revise its law banning all prisoners from voting in at least Parliamentary elections. Hirst, who was convicted of manslaughter and sentenced to a discretionary life sentence with a tariff of fifteen years (the minimum term prior to any possible parole, based on retributive and deterrent considerations), claimed among other things, that the voting ban violated his rights under Article 3 of Protocol No. 1 of the European Convention of Human Rights, which provides that:

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

The Court declined to specify which prisoners had to be able to vote, noting that in this area, the "margin of appreciation is wide" within which courts should defer to legislative judgments about the purposes of punishment and the conduct of elections; but they clearly implied that under Article 3 of Protocol No. 1, some prisoner must be given the right to vote.

In November, a chamber (roughly the equivalent of appellate court panels in the US) of the European Court of Human Rights took notice of the fact that five years and at least one national election had gone by since the decision in HIRST and the UK had still not revised its law. IN, CASE OF GREENS and M.T. v. THE UNITED KINGDOM, Applications nos. 60041/08 and 60054/08 (read it here) the Court ordered the UK to come up with a new law within six months, and ordered them to pay 5000 Euros in expenses to prisoners with claims currently before the court (with the strong implication that a similar payment would be required for any future litigation, perhaps multiplied by thousands of prisoners who could be expected to bring cases should the government continue to ignore the court).

As noted in yesterday's post, there is something of a backbench rebellion going on among both Tory and Labour MPs who would like to snarl at the European Court and denounce it for interfering with sovereignty. The government, however, is clearly moving rapidly toward a new law (the old one dates back to 1870). This morning on BBC4 radio, Justice Secretary Ken Clarke indicated as much (listen to it here, note there is along interlude on the finances of the Supreme Court before they get to the voting issue), and while he would not say where the government wants to draw the line, he did trot out the clear cases of those who would be excluded, murderers and rapists.

While the European Court may well approve not only the exclusion of murderers and rapists, but lots of other persons sent to prison for significant sentences (after all they did talk about "the margin of appreciation" being "wide" for the political choice element), there are some good reasons why a government less committed to populist punitiveness might well recognize a duty to let even murderers vote and an outside chance the Court will make them do it.

First consider that the Court declined in HIRST itself to question the legitimacy of the governments goal of punishing offenders through denying them the vote (choosing instead to focus on proportionality). But they may have to reach this issue in the next case. Is denying a murderer the right to vote for Parliament a legitimate form of punishment? In HIRST, the Grand Chamber did say this in paragraph 69 of its judgment:

In this case, the Court would begin by underlining that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention.

This expresses a theme elaborated even more by the The European Prison Rules (Recommendation No. R (87) 3 of the Committee of Ministers of the Council of Europe) which states in paragraph 64:

Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.

While the recommendations of the Committee of Ministers are not binding on the Court, they have been influential. The essence of the argument is that, at least in Europe, punishment is limited to deprivation of liberty (and all that may be administratively necessary to accomplish that). Moreover, if there is to be a surplus beyond deprivation of liberty (the express argument of the UK government in HIRST), it surely cannot be one focused on status degradation, which offends the dignity principle running through much of the binding treaty law to which the UK is a signatory. For example, Article 10 International Covenant of Civil and Political Rights provides:

"1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." (emphasis added)

I am taken, for the moment, with an analogy suggested in the Grand Chamber's judgment in HIRST to a prisoner's family status. In paragraph 69, the Court articulated examples of rights that prisoners do not lose by being imprisoned, and the very first one, other than the right not to be abused that they mention is "they continue to enjoy the right to respect for family life."

Should a murderer have their parental rights and duties terminated by conviction and imprisonment (beyond those duties made impossible by loss of liberty and penal segregation)? Is not being a parent just as honorable a status in our societies as being a voter? In fact, both mix duty and honor.

Beyond punishment, the UK government could claim that banning murderers and rapists is essential to preserve the integrity of the electoral process. Even assuming that murderers and rapists would vote their class interest in weakening criminal laws and law enforcement, what plausible argument is there that any competitive candidate standing for MP would seek to attract such votes by advertising their desire to be as lenient as possible with murderers and rapists, or weakening law enforcement to assure that fewer of them would get caught.

Perhaps there is an argument that if all prisoners were allowed to vote in the Parliamentary constituency where they are currently serving time they could swing a close election. But the government has a easy solution to that problem. It can allow prisoners to vote in the constituency in which they lived prior to incarceration (which is more likely to be their relevant community in any event). Even under conditions of mass incarceration (and just between the two cases, the numbers of potentially effected prisoners in the UK had grown by tens of thousands), there is no plausible scenario under which prisoner votes would alter the policy positions taken by candidates on law and justice issues.

On the other side there are compelling arguments that voting is an example of pro-social, non-self interested behavior that should be an integral part of the rehabilitative process which the UK remains committed to (at least in theory).

Prisoner Voting and Penal Populism in the UK

2011-02-07T10:16:00.000-08:00

Last fall Justice Minister Ken Clarke issued a green paper [read the consultation paper here] on penal policy signaling a course correction from the mass incarceration policies promoted by New Labour during its 13 years in power (and indeed for the last two years of the Tory government which proceeded). Better use of community corrections for less serious crimes, reconsideration of mandatory minimums on life sentences, and restorative justice across the range of cases were all to be considered, with the goal of avoiding the continued growth of incarceration in England Wales. So far these signs have not been reversed. But the potential limits of the coalitions' experiment with reversing the larger constellation of penal populism, from which mass incarceration is a predictable result, are now on display as the government confronts a renewed call by the European Court of Human Rights to address a five year old mandate, utterly ignored by the previous government, to give most British prisoners the ability to vote in elections for parliamentary bodies (regional, national, or European), or face paying compensation damages to all otherwise eligible prisoners beginning with the upcoming regional elections (for the Scots parliament and the Welsh Assembly) [read the Guardian's coverage of the Novemeber decision].

Prime Minister David Cameron indicated that he would probably comply in order to avoid the hit on the exchequer of having to pay millions in compensation, but not without telling Parliament that it made him "physically ill" to think of prisoners voting [see it on YouTube here]. The PM chose an apt metaphor (I assume it was meant that way) to describe his response, since the attachment to voters through penal populism is required to be visceral. The fulle exchange should be viewed to see how committed the British polity seems to be to penal populism.

The exchange begins with a Tory backbencher asking whether hte Prime Minister agrees with him that the Human Rights Court's decision is "wrong" "because incarceration should mean a loss of rights, and that must surely include the right to vote." The PM said he "completely agreed" before sharing his bodily fluids issue. This exchange is followed by a labor backbencher who asks how the PM would look at "prisoners voting to to elect the crime commissioner or police chief." When Cameron attempts to pass it off, the Speaker to laughter (suggesting agreement) requests the PM to answer, after which he reiterates what a great point it is, before restating that it would be even more wrong to pay prisoners compensation money.

The implication, apparently shared by both the Conservative party and Labour (leaving Liberal Democrats possibly to resist on this), is that prisoners should lose all their rights, "certainly including a right to vote." The opposing view is now widely shared among European Human Rights experts. As Thomas Hammarburg, Europe's Commission for Human Rights, argued a few days ago in a Guardian Op-ed:

Convicts are human beings, with human rights. I hope the British authorities will respect the court ruling on voting rights for prisoners. They could do that knowing that most other member states of the Council of Europe already allow prisoners to vote – and this has caused no real problems and is not even an issue in these countries.

Hammarburg points out that the very idea of universal suffrage was a hard fought battle for equality won against the strong presumption that status should determine whether an adult citizen could vote or note. The UK is nearly alone in Europe in maintaining that prisoner status is an exception to that revolutionary democratic principle.

Whether the current British government will ultimately fulfill the mandate is unclear. The government faces a brewing backbench rebellion on the issue, and one prominent conservative think tank has now called for the UK to withdraw from the jurisdiction of the European Court of Human Rights, despite being one of its founding members some 60 years ago. [read Patrick Wintour's analysis in the Guardian here]

As if to solidify his presence as a "tough on crime" leader, David Cameron took the opportunity of a report on the previous government's role in forwarding Libya's appeals on behalf of Abdelbaset al-Megrahi (convicted as the Lockerbie bomber, but released more than a year and a half ago by Scottish authorities on compassionate grounds that he was dying of cancer), to let everyone know that he believed al-Megrahi should have "died in prison." [On the report see Severin Carrell's reporting in the Guardian here]

War on Crime Anyone? How to respond and not respond to January's heavy toll of outrageous murders and attempted murders

2011-01-26T10:21:00.000-08:00

In case anyone has been hiking in desert for the month of January, we are the midst of a wave of frightening murders and attempted murders including the attempted assassination of Representative Gabrielle Gifford in Tucson, and in the same incident the murder of a federal judge and three other victims (including a 9 year old girl) and of quite a number of police officers in Detroit, Miami, Indiana, and Oregon. It seems inevitable that despite the gravity of the economic and environmental threats facing us (if anything, underplayed in the President's state of the union speech) fear of violent crime seems poised to jump again to a high position on the agenda of Americans.

As any reader of this blog will know, a reversion to the national obsession about crime strikes me as the worst possible thing we could do at this moment when we are still trying to wind down a disastrous and expensive war on crime (the prison population went down last year for the first time in 30+ years) that we cannot sustain even if we weren't in such dire straights. Here's a few not terribly well organized thoughts (but what are blogs for and I'm just off an all night flight from Chicago to Edinburgh via Dublin).

While it is impossible to pin down the motives behind all of these incidents at this point (and in some cases we may never really know) we do not seem to be in the midst of new crime wave. Violent crime, including murder, remains very very low by the standards of the last forty years. The trend since the early 1990s has been down nationally and in 2009, the US enjoyed a homicide rate as low as any it has experienced since yours truly was 1 year old in 1960.

It is unlikely there is an organized war on government and law enforcement going on ether, but time will tell (read Jim Gold's reporting on that possibility on msnbc's website here). However, this is clearly not a time that governments should be continuing to cut police forces which has been happening due to the severe state and local fiscal crisis. At least in some locales it is pretty clear that more and better policing has helped to drive down crime. Keep in mind that unlike prison systems which have expanded enormously since the 1970s, police forces have increased only a fraction. And unlike prison spending, an expanded police force can address a wide range of community needs other than investigating crimes. As community problem solvers they can add enormously both to our efforts to keep neighborhoods safer from all kinds of routine threats and they are also a major factor in the resiliency of a community facing a catastrophic blow (as we saw all too clearly in NYC on September 11, 2001, and all too clearly did not see in New Orleans after Hurricane Katrina in September, 2005.

In response to widespread horror and fear, about these killings, some will undoubtedly call for harsher punishment for those who kill or attempt to kill. This would be a huge mistake. The US already provides by far the harshest overall punishments for murder in the world. While other countries may execute more people for murder (including China and Iran), almost no other country imprisons so many killers for what is likely to be the rest of their natural lives.

I realize that many Americans assume that murderers deserve no less than to spend their natural lives incarcerated (if not be executed). This is understandable. Killing for us is the cardinal offense (what treason and blasphemy were to the past). We may have different intuitions about how much punishment is enough but we all ought to reflect on at least three penal considerations.

First of all, given the fact that punishment for killing has increased very very substantially in recent decades there is little reason to believe these recent murders and attempted murders would have been deterred if only harsher punishments were in place. Jared Loughner of Arizona carried out his mass murder in a state that has and uses the death penalty frequently and which keeps other murderers in prison increasingly for the rest of the natural lives. Even if he was not deranged by severe mental illness (which he appears to have been) there is zero reason to believe he would have been deterred by a harsher penal threat. The same goes for the police shootings in Florida.

Nor do we need to keep people in prison for decades and decades just to assure that they will not kill again. Even when we used to let murders out, recidivism was extremely rare. Once someone has spent ten or twenty years in prison, and almost certainly aged to the point where they are over 35, there is very very little reason to fear them, unless their individual prison behavior (like being an enforcer for their racist gang) indicates they have committed themselves to a permanent state of violence. Parole (where it has not been eliminated or reduced to near paralysis by earlier waves of crime fear) allows us to keep those individuals incapacitated while giving the others a huge incentive to do the work on themselves they will need to reassure officials.

Keep in mind that 99+ percent of all murders are done by someone who has never killed before and may never even have been imprisoned for any crime. If you really want to stop a killing before it happens, reducing access to guns for high risk individuals is the only realistic strategy, although more police on the streets and more mental health screening and treatment for those with alarming psychotic behavior could not hurt.

That leaves the question of how long we need to imprison someone for the purpose of communicating both the killer and to the broader community, our outrage that they have denied the essential dignity and immeasurable value of our fellow human being. I do not claim that there are any easy answers to that question whether in criminology or theology. I do not believe however that someone needs to die, or die in prison of old age in order to accomplish that and at no prior stage of our history in the common law world did we ever commit ourselves to such a perspective. Keep in mind that in harsh justice days of Blackstone (an 18th century textbook author on the common law of England much beloved by the authors of the US Constitution) while some killers who were considered especially heinous in their means or motives were hanged (and despite the fact that some people were hanged for stealing) most first time killers received a branded M on their thumbs along with less than a year in jail (through a now largely forgotten legal procedure called 'benefit of clergy' which was, in a way, a form of parole).

My own view is that 10 years of imprisonment under appropriately austere conditions (even by general prison standards) ought to be enough for most first time killers, followed by a comparable period of intensive parole supervision in the community. I would combine that with a requirement that they labor while in prison and on parole to pay off a substantial financial judgment to the family of the victim. For those who kill for heinous motives (like terrorism, monetary benefit, or to stop law enforcement) I would think doubling or tripling the prison portion of that punishment would be enough.

Setting some limits to our scale of punishment for this most provocative of crimes is, in my view, crucial to putting our currently excessive penal appetite (and unsustainable prison population) under control.

I had a chance to discuss some of these issues about murder with a wonderful audience of lawyers, prosecutors, and law students at Marquette University Law School's amazing brand new state of the art law building on Monday the 24th (here is a link to a summary).

The US Death Penalty: A European Perspective

2011-01-22T08:35:00.000-08:00

Watching America's death penalty moves from a half year into my stay in Europe has been interesting. As Erik Eckholm and Katie Zezima report in Saturday's NYTimes, the ability of US states to get the drugs for their lethal injection cocktails has been hampered by the complete resistance of any and almost every European country. European Community treaties not only forbid any member states from using a death penalty, they commit them to working to eliminate the death penalty internationally. In the latest instance, the American company that produces sodium theopental does so in Italy, which will not allow it to export drugs for execution purposes. Even the country governed by Silvio Berlusconi, arguably George Bush's best friend in Europe next to Tony Blair (but unlike Tony, still in power for a few more minutes at least) won't give us our death drugs.

It is not that any one obstacle like this will halt the death penalty in the US, but drip by drip they are a reminder that strong opposition to America's use of capital punishment is a uniform and accepted value by virtually all players in the European political spectrum. You will not find conservative European leaders (outside perhaps the racist fringe parties and perhaps not all of them) who will back the US on capital punishment. Even leaders, who unlike Silvio Berlusconi, have political capital to spare, like David Cameron in the UK and Angela Merkel in Germany, are not going to waste it supporting America's execution habit. While many of their constituents continue to say they would like to have death penalty available, they do not hold their leaders even a tiny bit accountable for not giving them one.

Many Americans assume that Europeans couldn't possibly understand our death penalty needs. They may assume that European societies are low violence, relatively homogenous racially, and generally pacifists when it comes to punishing criminals. This picture is as badly out of date as the parallel assumption that the US has a more successful economy for average people. In fact violence remains low by US standards (remember most of Europe does not tolerate private gun ownership beyond hunting weapons and then with strict licensing), but fear of violent crime is a powerful feature of politics in all of the major European countries, much of it fueled by the loss of homogeneity and anxiety about immigration. Nor our Europeans any longer to be counted as "soft on crime." They do not use imprisonment nearly as indiscriminately (another reason their economies may be doing better) but they are increasingly punishing violent crime with long sentences and demanding better police efforts to solve and prevent violence. What they appreciate, even the ones that wouldn't mind having a death penalty, is that capital punishment would contribute next to nothing to protecting them from violent crime and would cost a lot of capital (Euros or Pounds) that nobody wants to pay more taxes for.

That idea is also just beginning to spread across the United States.

Progress and Peril in California's Prison Crisis

2011-01-10T03:59:00.000-08:00

Maria Lagos of the SF Chron provided an excellent year start summary and analysis of where things stand with California's both chronic and acute prison crisis.

Progress? Only 8,200 prisoners are sleeping in "non-traditional" quarters, like day rooms and gyms, down from 20,000 in 2006. But almost all of this improvement has come from shipping prisoners out of state to public and private prisons elsewhere (Schwarzenegger's major experiment in government by emergency decree), a practice that is both fiscally irresponsible and violations of the right of access to visits by family and friends that that is a component of all non-degrading punishments.

Perhaps the most striking point is that the state never built a single additional cell of the 53,000 it authorized back in 2007 in AB900, which was supposed to solve the chronic overcrowding problem through new jail space as well as specialized prison centers for re-entry and for incarcerated mothers. Infrastructure, is no doubt hard to build in California for all kinds of environmental and fiscal reasons, for zero additional space in more than three years is powerful evidence that the factors which once made prison space easy to build in California, are over. But it also suggests that the state's capacity to stay on mission regarding prison reform, without the whip of the federal courts, is illusory (despite their bold protests during oral arguments late last year).

The peril? That California might choose limp on, squeezing under the court's limbo pole of 40,000 fewer inmates (about 30K to go), without fundamentally altering our unsustainable commitment to mass incarceration. On the positive side, Ryan Sherman, a spokesperson for the California Professional Peace Officers Association (the union of California's prison officers and parole agents), was quoted dismissing the potential for California to build her way out of the current crisis.

"The state cannot build its way out of the overcrowding prison problem," he said. "If they build more beds, we will fill up more beds and continue to be overcrowded. Until we figure out how to reform and reorganize the department so it's efficient and accountable, and take into consideration the limited budget and what's best for the state, I don't anticipate anything improving a great deal."

The union would like to focus on the organization of the Department of Corrections and Rehabilitation (which clearly needs a re-boot). Whether they would support a serious effort to downsize permanently the state's imprisonment caseload remains unclear.

One way for Governor Brown to signal that he will not accept a muddle through solution to unwinding mass incarceration to ask the legislature to reauthorize AB900 funds, not for new cells, but to make sure that complying with the court order in Plata does not mean more crime in California by re-hiring laid off police officers around the state and purchasing evidence based recidivism reducing programing both in prisons and in direct re-entry costs. This would be well spent on public security and economic stimulus to California's hard hit communities. It will also build support for more substantial reworking of California's public safety strategy which was last designed to protect us from Charles Manson and needs to protect us from a massive failure of infrastructure combined with natural disasters.

The Other White Meat: Governing through Crime, Race, and Gender

2011-01-08T09:31:00.000-08:00

The intricacy with which the politics of crime and the politics of race are intertwined in the US is distinctive but not unique. The latest example comes from the country which is arguably the world's second most obsessive "culture of control" and from one the architects of New Labour's long experiment in governing through crime. Former Home Secretary (under Blair) and now veteran Labour stateman Jack Straw (I can never hear his name without thinking of the Grateful Dead song) speaking on BBC Newsnight about the conviction of two men of Pakistani ethnic background of raping and exploiting several young women who were of white (Anglo-Saxon?) background. (Read the Guardian story by David Batty)

"Pakistanis, let's be clear, are not the only people who commit sexual offences, and overwhelmingly the sex offenders' wings of prisons are full of white sex offenders.

"But there is a specific problem which involves Pakistani heritage men ... who target vulnerable young white girls.

"We need to get the Pakistani community to think much more clearly about why this is going on and to be more open about the problems that are leading to a number of Pakistani heritage men thinking it is OK to target white girls in this way."

Straw called on the British Pakistani community to be "more open" about the issue. "These young men are in a western society, in any event, they act like any other young men, they're fizzing and popping with testosterone, they want some outlet for that, but Pakistani heritage girls are off-limits and they are expected to marry a Pakistani girl from Pakistan, typically," he said.

"So they then seek other avenues and they see these young women, white girls who are vulnerable, some of them in care ... who they think are easy meat.

"And because they're vulnerable they ply them with gifts, they give them drugs, and then of course they're trapped."

Pakistani ethnicity has become the UK equivalent of African American in the US racial formation. Historic discrimination against this community which grew through immigration after World War II ("Paki-bashing" was a "sport" among "skin-head" racist youth in the '80s) has only become more intense since the recent upsurge of Jihadi terrorism in the UK. But the potential for invoking prejudice in this example is eclipsed by the striking absence of any analytic value. The fact is that men have long divided the world into women who are marriageable and women who are rape-able. There is no policy pay off to attending to the specific features of Pakistani culture that play into this near universal and invidious pattern of gender domination. The only purpose of invoking Islam or Pakistani "heritage girls" is to reinforce a linkage between fear of crime and fear of racialized others. Straw, on the verge of retirement and a seat in the House of Lords (or he was) has little to gain from such a statement. Instead,as an example of political slips of tongue, it reveals, why crime governance was such an important part New Labour's electoral strategy in a series of administrations that failed to improve the economic foundations of the UK's fragile middle class.

Metaphors we live by, part ?: "Imprisoned in their homes"

2011-01-02T08:18:00.000-08:00

The home, and especially home ownership, is one of the most powerful anchor metaphors for citizenship in our post-modern democracy. In past generations, idealized citizens were imagined taking action in the public, whether the battle field or through mobilized public citizenship, and above all the commercial market place, for baby boomers and subsequent generations the homeowner has been valorized as the major way people contribute to the public good of their communities. I've argued in some recent publications that this kind of home ownership is also the anchor for citizen as crime victim, which drives "governing through crime" and the war on crime/drugs/terror. In particular, of all the ways that a polity might choose to be "tough on crime," the form of mass incarceration is shaped the influence of this homeowner as crime victim conception.

Against this the words of New York's new Governor Andrew Cuomo inaugural address as reported by Danny Hakim and Nicholas Confessore in the NTYtimes, drew my attention:

Mr. Cuomo described residents as being imprisoned in their homes, which are losing value even as their tax bills keep climbing.

“Nothing is going up in their lives,” Mr. Cuomo said. “Their income isn’t going up, their banking account isn’t going up, their savings aren’t going up. They can’t afford the never-ending tax increases in the state of New York, and this state has no future if it is going to be the tax capital of the nation.”

New York is far from as messed up as California by mass incarceration so the irony of describing homeowners as imprisoned in their homes is not as sharp as it would be if Jerry Brown said it. The fact that his sympathies are completely with the people as homeowners, rather than workers, families, etc. is worrisome. I'll have more to say in the near future about his political agenda , but on the metaphors we live by level, not inspiring to say the least. No doubt this guy wants to be President...

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On the Joana Yeates case I blogged about in my last post, Steven Morris has an insightful piece in the Guardian exploring why victims like Joanna are so compelling to the media and the public out of all the murder victims, young and old, that accumulate in the UK.

The Strangers We Know

2010-12-30T09:25:00.000-08:00

As sociologists of urban American have powerfully documented, our inner city neighborhoods of highly concentrated poverty have suffered under a powerful stigma of crime fear that influences almost all aspects of economic and social life from the unwillingness of retail enterprises to open in such neighborhoods even when federal welfare transfers assure a profitable market for at least some essentials (like groceries) to the willingness of the police to assume that virtually anyone of the right age and gender on the street is involved in gangs and crime. In many respects this stigma has now replaced (and arguably reproduced) the stigma once associated with non-White racial status in American (and especially "Blackness"). The other side of this equation is the huge "pass" middle class Americans give neighborhoods that are coded as middle class (where most people have jobs and a plurality of them, at least, are white. For many individual "consumers", and for the businesses that serve them, these neighborhoods signify safety and security, places where violent crime, if it happens at all, is an aberrant event created by the penetration of outsiders.

Of course that kind of thinking is a textbook example of what sociologists since the mid-20th century have called the "ecological fallacy," the false presumption that a statistical portrait of a place gives you an understanding of the individuals who occupy that place. The irony is that while violent crime is far less of a risk than many people imagine, those kinds of violent crime that people may fear the most, stranger abductions and murders, often for sexual purposes, may be the part of that risk least able to be strategically avoided through ecological discrimination in residential and commercial life.

A terrible crime here in the United Kingdom (where I am spending this Hogmanay), illustrates these themes (read the latest coverage by Steven Morris in the Guardian). The Monday before Christmas, 25 year old Joanna Yeates, a landscape architect with a close family and recently living with her boyfriend went missing in Bristol, a city of around 450 thousand (in a met area of more than a million). The case quickly capture media attention in a society almost as crime focused as the US. Her parents made a public appeal for help. When her frozen body was found Christmas morning on the edge of a street in a suburban area about three miles from her home the palpable horror in the country cut through the holiday frenzy.

Today, just a day before the Hogmanay holiday (New Years Eve to those of you reading outside of Scotland), the Avon and Somerset Police announced the arrest of a suspect, Chris Jeffries, her landlord and a slightly flamboyant retired English teacher at the local equivalent of a community college. The coverage of this makes clear that the police consider him a suspect rather than a witness, a judgment that could come undone, police at least in the US have a long history of focusing on weird suspects who may come across to jurors as alien in some respect and thus possibly a murderer.

The coverage now carries the predictable but nonetheless illuminating statements of other neighbors who can add to their shock at having one of their neighbors murdered, the shock that one of their neighbors, perhaps this very well established figure in the block, might be the murderer.

A resident, Tony Buss, 51, said that one of the cars towed away by police belonged to Jefferies. "Today's news is a shock and surprise," he said.

Another neighbour, a 26-year-old man who did not want to be named, said: "It's all been pretty scary, especially for my girlfriend as I'm away most of the week so it's been pretty scary for her to be home alone. We chose the area of Clifton to live in because we thought it was safe."

Note especially the language of about neighborhood and crime risk. "We chose the area of Clifton to live in because we thought it was safe." Its a nice one line summary of just how important crime fear is in how middle class people live even in the UK. Even if the case against Jeffries holds up it may not do much to alter the willingness of people to invest in the ecological fallacy. When terrible crimes are committed by the residents of "safe" neighborhoods there is an automatic presumption that it reflects a deep psychological flaw in the killer rather than anything about the neighborhood. This is indeed one of the origins of the serial killer as a crucial folk devil of late modern crime fear. The crimes they commit may be gruesome, but it is the threat they pose to the whole ecological crime security strategy of so many middle class citizens in both the US and the UK that makes them monsters.

Homeroom security

2010-12-14T10:43:00.000-08:00

Even though my blurb reads like a teaser aimed at security minded parents of school age children anxious to find out what research can tell them about how to avoid the next Columbine, Aaron Kupchik's important new book on the securitization of American schools helps us understand how much the compulsion to hard wire schools for security against a variety of real and imagined crime threats (too often imagined). Kupchik's work is part of an important wave of new empirical studies by criminologists, political scientists and sociologists that is probing the practice of crime control inside schools more than a decade of the passage of the landmark School Safety Act of 1994, at the height of Clinton's war on crime.

Kupchik's well designed qualitative and quantitative research helps make clear that while some of this an extension of racialized versions of coding the identity of minority youth in disadvantaged communities as defined by crime, much of it cuts across race and class demarcations. An obsessive emphasis on crime security has become part of the way we imagine adequate schooling in all kinds of communities. As Kupchik shows, these strategies are more often than not counter productive, and systematically ignore the real factors that drive school violence in those settings where it is a real problem, while increasing the chances that youth in those communities will end up out of school and ready for drafting into the criminal justice system. Safe schools are a must for all parents, and there are ways school stakeholders can attend to that without allowing the performance of security adequacy through visible and symbolic measures to overwhelm schools themselves.

This is another reminder of how much it is costing America to give crime and other forms of "stranger danger"undue sway over our institutions. Schools are there to educate in ways that open the door to economic opportunity, citizenship, and a life of integrity. The first factor has become increasingly important in the globalized and insecure labor market our young people face. We have become ever more critical of the ability of schools to achieve these goals over the last 20 years, during the same period we have allowed crime to mission creep its way into our educational practices. The much discussed No Child Left Behind law contained significant and hardly ever discussed provisions that demand more "availability" for school crime information on a comparative basis (so like test scores it can become the fodder for reflex and decontextualized searches for school comparisons).

“A big human rights problem”

2010-12-10T07:17:00.000-08:00

One of the big take aways for me of the Plata oral argument was the very explicit mention of human rights and the unnamed but palpable presence of dignity values in the 8th Amendment. Justice Breyer described the conditions in the underlying Plata and Coleman cases (dealing with physical and mental health respectively) as presenting "a big human rights problem". That was not a phrase used by the briefs for the prisoners, and it was not repeated during the oral argument, but it underscored a palpable sense among many of the Justices (a majority) that the underlying denial of adequate medical and mental health care was horrifying (Breyer uses the term "horrendous") and beyond the range of ordinary prison condition litigation.

Justice Breyer invoked this sense of horror by talking about a photograph he had seen in an amicus brief filed by a group of religious organizations. I believe he was referring to this:

It is from one of the filings in the Coleman case, involving failure to adequately treat mental illness, and it depicts cages "without toilets, sinks, or beds" in which suicidal prisoners were confined for days awaiting treatment. Justice Breyer's questioning of Mr. Philip's indicates that these photographs cut through the record as a whole for him, and the Justice challenges the advocate to show him something in the record that proves the state is able to make that horror go away without the population cap ordered by the 3-Judge court.

JUSTICE BREYER: What would I look at to find this? It's a big record. What I did was I -- it refers to on-line evidence, and I went and looked at the pictures, and the pictures are pretty horrendous to me. And I would say page 10 of the religious group's brief, for example, shows you one of them. (20) ...

Now, you've looked at them. I've looked at them. And what is the answer to that? So how can I -- or you if you were in my position -- what would you say

Interestingly, Carter Philips, for the state, not only did not challenge the depiction of the treatment of prisoners as horrendous and a human rights violation, he embraced it, describing the core constitutional violation involved as:

culture of disregard for the inmate

While suggesting that the conditions were a lot better (without showing the court was clearly erroneous in finding otherwise) Philips acknowledged that the problem was a distinctive and radical, justifying the unprecedented quality of placing the entire prison health care system under a receiver rather than the more typical special master.

California Style Mass Incarceration

2010-12-06T13:30:00.000-08:00

Socio-legal scholars have long spoken of "naming, blaming, and claiming" (Felstiner, Abel, and Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, and Claiming, 1981) to describe how disputes arise and move toward legal realization. If the same may be said of polities, than the Supreme Court's oral arguments a couple of days ago, in the great California prison population case (Schwarzenegger v. Plata) may mark the moment when the harm of mass incarceration in America broke out of its canyons of attention, and became a public dispute for the US.

For the Court's "liberals", the staggering portrait drawn by the many experts who testified before both original courts and the 3-Judge panel of the way physical and mental health needs are unmet appears to have broken through their own instincts to defer on criminal matters. The routine way in which California prisoners met death not through lethal injections, but by fatal neglect of their obvious and remediable medical needs, or by suicide after florid psychotic symptoms were ignored, animated a livelier questioning of the state in a criminal matter than in a long time. The Court's "conservatives", stripped of their preferred grounds of deference to the state's penological rationality, by the sheer scale of California's organizational failures over a twenty year period, were left to rest on the primal fear of violent crime and the biblical conviction that keeping people locked up must mean fewer crimes. Of course even if the Supreme Court (5-4), upholds the population cap, it will not end mass incarceration, that claim was not yet before the Court (and probably never will be).

The New York Times editorial today does a nice job of condensing the naming and blaming and moving toward the kind of claiming that would be needed to move from an end to cruel and unusual punishment in California to an end to mass incarceration. Their title, The Crime of Punishment in California, names the harm, that punishment in California is itself fundamentally wrong (not just badly carried out or underfunded). The editorial goes on to further specify the where the blame lies, with "California style mass incarceration" These cases are not about imprisonment, per se, or any particular prison conditions, it is about the wholesale and systematic policy of expanding the prison population as an end in itself, with no serious effort to maintain the medical and mental integrity of its inmates let alone reform or discipline them. Not every state has embraced this "style" of imprisonment, it seems to flourish most in the sunbelt (see Mona Lynch's key book Sunbelt Justice, on Arizona), but it is a part of the political culture that sustains high incarceration levels across much of the US and which continues to spread to Europe. The editorial draws its claim, from the growing consensus among American criminologists that mass incarceration (many of the leading lights of which are in the Criminology and Public Policy issue referenced in the editorial) is a massive failure, even at the business of crime control.

Among experts, as a forthcoming issue of the journal Criminology & Public Policy relates, there is a growing belief that less prison and more and better policing will reduce crime. There is almost unanimous condemnation of California-style mass incarceration, which has led to no reduction in serious crime and has turned many inmates into habitual criminals.

America’s prison system is now studied largely because of its failure — the result of an expensive approach to criminal justice shaped by fear-driven ideology. California’s prisons embody this overwhelming failure.

The harm named is "mass incarceration" as bio-political phenomenon. The blame is laid at a "politic of fear" that has little to do with public safety in empirical terms. The claim is that public safety can be upheld and enhanced by abandoning California style mass incarceration.

Of course none of this means you should short your mass incarceration stocks tomorrow. Its going to take years and possibly decades to dismantle mass incarceration. But the essential elements of the public conversation that can end mass incarceration are now out there in official discourse to a degree I would not have expected in 2005.

The Fire This Time

2010-12-03T07:19:00.000-08:00

The dangerous wildfire spreading in Northern Israel is yet another reminder of how desperately the world community needs to pivot toward global environmental risk as the primary focus of security. It is also a reminder of the virtuous moral shift that would quickly follow a new "war on environmental disaster" to replace out spent and disastrous "war on terror." The blaze, which began in forested areas near Carmel, Israel, and now threatens the outskirts of Haifa (read Haaretz coverage in English here), has already killed 40, mostly young prison officer trainees who were rushing to aid the evacuation of a prison when a tree collapsed on the bus, trapping most of the rescuers in the conflagration.

With dozens of countries sending aid, and Israel's well organized air force now taking control of an international fleet of fire fighting equipment and personnel, the fire will hopefully be under control soon. When it is, perhaps Israelis, whose palpable sense of fear and isolation has grown in recent years along with the nation's insistence on a "go it alone" approach to its occupation of Palestinian territories (and International Law more generally), will consider how different it feels to confront environmental risks. Even though the blaze claimed more lives in one day than years of Hamas rocketing in the years before Israel's 2008 war on Gaza, Israel was not isolated this time. Instead dozens of countries immediately offered aid, including Muslim and Arab countries, and first of all, apparently, Turkey, the Muslim powerhouse whose once good relationship with Israel has gone sour over the Gaza situation and this summer's preemptive attack on the Turkish aid vessel bound for the strip. Meanwhile, the Netanyahu coalition government, which is fond of reminding the world that Israel looks to no one but itself for security, showed no hesitation in defining the need for and accepting international assistance. In its long war with the Palestinians, Israel has not only lost many of its friends around the world, it is increasingly divided on the inside, both between Arab and Jew, and among Jews. In the fire, by contrast, Arab and Jewish Israelis were together among the population threatened by the fire, on the bus of young rescuers who perished, and even the inmates in the jail they were speeding toward rescuing (they did get out).

Why is it so different when security is defined as about terrorists or criminals, than when the security problem is an environmental disaster? Think of risk as a kind of mirror in which a society sees and acts upon itself. In the mirror of terrorism/crime we see vulnerable victims and motivated capable aggressors (although we may not agree always on who is who, and we are very likely to read racial, class, and religious otherness into the classification scheme). Reacting to that image, we feel empathy with the victims (as we see them) and anger toward the aggressors (as we see them). How dare they? We seek to make them pay a punishing price which will surely change their motivations. Failing that we seek to build walls around the aggressors, or at least between the victims and the aggressors, who are imagined to share no characteristics, dependencies, or sympathies.

In the mirror of the Carmel fire (or the Haitian Earthquake, the 2005 South East Asian Tsunami, or New Orleans after Hurricane Katrina), we see a population that includes potential victims and potential rescuers, regardless of race, nationality, and religion. We see governments and people who are both part of the problem (because they failed to prepare and created life styles that made them more vulnerable and perhaps disasters more likely) and a necessary part of the solution. We see that the past no longer matters; nor who did what to whom. All that matters is how we can work together to survive on a planet whose margin for human habitation is far smaller and more fragile than we have learned to imagine.

While both Israelis and the world often act as if the Israeli-Palestinian conflict (and extended conflicts with countries like Iran) is the only one that matters to security in the Middle-East, the fire is a reminder of the vast environmental problems within the region (especially around water) and the potentially devastating consequences of world environmental events (like a sea-level rise of 2 or 3 feet by the middle of this century). The need to face up to these environmental risks and give them the kind of political, economic, and cultural attention we give to terrorism and crime is not one of either objective necessity or moral preference, it is both. We cannot wish crime and terror away, but we can see other threats. In this problem/opportunity Israel is hardly alone. The whole world, whether developed or still developing faces a disaster roulette whose odds seem to be getting worst while their internal politics are getting sharper (especially in the US). The irony is that when we choose to allow ourselves to get really scared by this threat, we may end up far more confident in ourselves and each other.

People are going to die

2010-12-01T09:23:00.000-08:00

I have been arguing for some time that mass incarceration rests almost completely on an exaggerated fear of the risks of homicide that America in general, and California in particular, embraced after the bloody 1970s, and which remains seared into our political consciousness more than thirty years later, despite substantial drops in homicides and violent crime since the early 1990s. You can talk about the war on drugs, tough sentences for burglars, and over imprisonment of technical parole violators; but they all come down to a fear of citizens being murdered by someone that state could have stopped first.

This logic was on display in today's Supreme Court Oral arguments over California's appeal from the important 3-Judge panel decision ordering population reduction in order to remedy long standing medical and mental health conditions in California prisons. As commentator Hadar Aviram points out in her analysis, almost all of the Justices (save Scalia and Thomas) seemed to appreciate the extent of California's mismanagement. Where there seemed to be the most concern was that the population reduction might lead to more crime in California. The Justice seemed particularly horrified by California's 70 percent recidivism rate for parolees (failing to comprehend that most of this is for technical violations that are a symptom rather than a cause of exaggerated fear). But its not just crime in general, that people (and Justices) fear. It is murder.

Sensing this, Carter G. Philips, the learned advocate for the State of California, closed his final rebuttal with a simple but well calculated statement. As quoted in Adam Liptak's article in the NYtimes

“Anytime you say you are going to release 30,000 inmates in a compressed period of time,” he said, “I guarantee you that there is going to be more crime and people are going to die on the streets of California.”

Of course Californians are already dying of the state's prison management. According to earlier fact finding by the Judge Thelton Henderson in the medical part of the case (Plata v. Schwarzenegger), a prisoner a week dies of routine medical problems that a constitutionally adequate prison health system could prevent. But those kinds of deaths do not count in twisted logic of governing through crime.

Liberal v. Radical Criminology, cont.: A Reponse from Tony Platt

2010-11-24T11:17:00.000-08:00

I'm posting this for Tony Platt since its a wee bit too long for the comment field
---------------
Thanks for your comments on the "Politics of Protest" session.

You might have pointed out that the heart of my comments focused, not on the School of Criminology at Berkeley, but on the strengths and weaknesses of the ideas in the original POP, and a critique of Skolnick's introduction to the new introduction (in which, in my view, he minimizes ongoing problems of racism and uncritically praises the Obama regime.)

I have a few initial comments on your views about liberalism and radicalism (below):

(1) By "liberalism" I assume you mean social democratic liberalism, that occupied a central role in American politics from early 20th century through the Clinton government. For most of its run, it was a managerial political ideology, focused on regulating rather than eradicating inequality. There are moments when this kind of liberalism gets pulled left during times of mass political activism (for example, 30s and 60s), but mostly it revives as top-down managerialism. (There's a huge historical literature on this issue.)

(2) It's just name-calling to suggest that "radical criminology" was a "rhetorical disaster" and "highly ideological" while liberalism was "more robust" and measured. Do you really think that liberalism as political ideology was somehow value-free and apolitical? You may prefer liberalism to radicalism, but then just say so. But whatever you think, its heyday is long over here (and soon in Europe).

(3) As to the excesses of radical criminology, I've written about this topic (in Oppenheimer et al., Radical Sociologists and the Movement), and there's much to be said about what we did wrong. But your preachy one-sided comments don't help our understanding. Radical criminology at Berkeley was part of and responded to a much larger left movement that exposed the injustices of criminal justice, took on the inadequacies and cowardice of liberalism, created debates about the ideology of criminology, humanized the incarcerated population, and educated millions about the ties between imperialism, militarism, racism, and criminal justice. In the 1970s there was at least a national debate about crime and justice, and for a short while liberalism was pushed left by radical movements.

(4) The rise of the Right and neo-liberalism (beginning with Nixon) has nothing to do with what radical criminology did or did not do. It represents a significant shift in regimes of power, and a rise of new political forms to deal with the deepening contradictions of capitalism. As you and others going back to Stuart Hall have noted, governing through law and order is not so much about crime as about a crisis in political authority (and the demise of social democratic liberalism).

(5) My debate with Skolnick is partly personal (because he and colleagues benefited from the demise of the School of Criminology; and because of his disrespectful treatment of our colleague Paul Takagi), but it's primarily political. He thinks the country is moving in a good direction; I don't. He believes that academics have to choose between a professional career and progressive activism; I don't.

Tony Platt

Radical v. Liberal Criminology: An Afterthought

2010-11-22T11:55:00.000-08:00

One of the most interesting moments at this year's American Society of Criminology meetings in San Francisco was the "reunion" of Tony Platt and Jerry Skolnick during a session on the republishing, with a new forward and preface, of the book The Politics of Protest: Task Force on Violent Aspects of Protest and Confrontation of the National Commission on the Causes and Prevention of Violence, which was originally published in September 1969. Skolnick, Professor Emeritus at UC Berkeley (and now co-director of the Center for Crime and Justice at NYU Law) was on the Berkeley Criminology School faculty, and already famous for his book, Justice Without Trial (1966, 1994) when he was appointed director of the task force on protest of President Johnson's violence commission. Skolnick hired one of his junior colleagues, Anthony Platt, and a graduate student, Elliott Currie to be his main research assistants and to help with the writing and editing of the report/book; both have become major criminologists as well. Anthony Platt, then an Assistant Professor Criminology at Berkeley, had already written the first edition of The Child Savers, a renowned study of the class origins and purposes of juvenile justice in the early 20th century, that has also recently been republished. Platt was denied tenure, in large part because of his protest activities, and left Berkeley after the Criminology School was eliminated in 1976 to be a Professor of Social Work at California State University, Sacramento until his retirement a few years ago, where he published many other books as well as editing the journal Crime and Social Justice for many years. Elliott Currie, Professor at UC Irvine's Criminology, Law & Society department, is the author of the classic, Confronting Crime: An American Challenge, as well as many other books.

Given a chance to hear three such renowned criminologists reflect on an ultimately doomed effort to steer America's response to violence toward completing the institutional reforms begun by the Civil Rights movement and the War on Poverty, it was not surprising that the room was packed. It was perhaps inevitable that most of the attention was on the death of the Berkeley Criminology School. Platt bluntly blamed Skolnick and other liberals on the faculty, for "selling out" the School and its junior faculty, much of which, especially Platt, were openly engaged in the protest politics of Berkeley in those years. Skolnick suggested that the closure (and Platt's denial of tenure) were decisions taken at the top of the University which neither he, nor other faculty, could do anything to stop. Currie, who has remained very friendly with the other two, kept himself to chairing the session.

I'll leave to another time a discussion of the actual history. What disappointed me about the session (which was mainly focused on what John Dombrink aptly analogized to the hurt feelings of children to a divorce) was the missed opportunity, buried in Platt's opening remarks, to reflect on how both liberal and radical criminology were "failures" that had failed to stop the coming of mass incarceration and all the other destructive features of what David Garland has called our Culture of Control. I would love to have heard each of these thinkers on why despite the considerable intellectual and even political resources, progressives could not effectively prevent the policy discussion of violence in America from becoming dominated by thinkers like James Q. Wilson, and his reduction of the problem of violence to crime prevention in his epic and influential Thinking About Crime (1975).

By the time The Politics of Protest was published, Richard Nixon had already been elected on a "Law and Order" platform, and a growing coalition of law enforcement groups and politicians were beginning to coalesce around a politics of capital punishment and mass incarceration in state politics around the country. Still, it would take a decade for the logics of governing through crime to become hegemonic in America, and much of the progressive critique of criminal justice as racist and arbitrary remained salient to many Americans. Overall I suspect that nothing merely criminological could have stopped this trend. Even if Skolnick and Platt had stayed on the same side, and continued to work together along with Currie, perhaps no book from the left could have prevailed over Wilson at the time given the social and political roots of governing through crime.

I've always viewed this history and its conflicts with fascination. I was too young to protest in the 1960s (although my parents introduced me to the civil rights and anti-war movements through their participation). I made my way to Berkeley for college in large part drawn by the legacy of protest there, arriving the year after the Criminology School closed. Drawn by the coming catastrophe of mass incarceration, I did graduate work at the Jurisprudence and Social Policy program at Berkeley, (the program that took some extent replaced the Criminology School) where I studied with Skolnick, as well as Shelly Messinger and Caleb Foote (to other prime "liberals" from the Criminology School). Given my own propensity to protest, which earned me three visits to Santa Rita County jail while a student, I've always sympathized with the plight of the untenured radical faculty. The fact that Platt was denied tenure despite proven excellence as a teacher and scholar, and only because of his political participation, is a permanent stain on Berkeley's academic record.

From my perspective now, however, after the war on crime, liberal criminology has remained a more robust and enduring position while radical criminology, especially the highly ideological sort advocated by the Berkeley Criminology school radicals, has, for the most part, proven to be a rhetorical disaster (and would have been a policy disaster had it been implemented). Celebrating convict revolutionaries and denouncing the criminal justice system as it then existed in states like California at the time (far smaller and much more benign than today) as a hopelessly racist and fascist apparatus aimed at preventing popular revolution, had no chance of appealing to ordinary Americans witnessing a genuine wave of both state and private violence, let alone convincing them to support necessary anti-racist reforms. More importantly, it left progressive criminologists with few tools and little credibility to respond to the massive growth of incarceration and the hyper policing of minority urban neighborhoods that would follow in the decades of the 1980s and 1990s. Berkeley's racial criminology, in short, turned out to be the "boy who cried wolf."

In contrast, the best of liberal criminology, including Justice Without Trial, recognized the potential of "law" in "law enforcement" to resist the excesses of populist punitiveness and ultimately to rebuild support for insisting that law enforcement serve a "democratic" society and not the other way around. It is telling, in this regard, that when Elliott Currie wrote the first really effective response to the Wilsonite orthodoxy in his 1988, Confronting Crime, he began to rehabilitate the policy premises of liberal criminology while abandoning most of the rhetoric of radicalism.

Today as the war on crime grinds on despite little public rationale for its existence (and mostly inertia to change keeping it in place), it is imperative that we focus on how to reconstruct American society and politics after the tremendous destruction of mass incarceration and governing through crime. That is a struggle which I believe the ideological warfare of 1968-1976 has practically no relevance for, and in which liberals, radicals, and conservatives can find common ground.

Punishment, States, and the Governance of Crime: Looking for the future of mass incarceration in the sunbelt

2010-11-19T08:14:00.000-08:00

A session yesterday at the American Society of Criminology meetings in San Francisco on "Punishment, States and the Governance of Crime" offered exceptional insights into the changes in state government and politics that facilitated the rise of mass incarceration in California, Texas and Florida. Joshua Page chaired and presented a paper on "Interest Groups and Contemporary Criminal Punishment" and extension of his great research on mass incarceration and correctional workers in California soon to be out as The Toughest Beat:Politics, Punishment, and the Prison Officers Union in California. Michael Campbell presented "Prosecutors, Politics, and Reconstruction of the Penal Order in Texas," a piece of a dissertation that compares California and Texas. Phil Goodman presented "California's Prison Fire Camps and the Changing Nature of Punishment," a piece of his dissertation on a very little studied aspect of California's massive penal estate, and one full of clues as to how to reintegrate prisons with the rest of the state they now occupy much like tumors occupy a body. Heather Schoenfeld, presented, "Race, Institutions and Punishment in the Sunshine State," a piece of her research on the formation of mass incarceration in Florida. Mona Lynch, presented "From the Local to the Global: The Multiple Levels of Influence in the rise (and fall?) of Mass Incarceration," a paper in which she reflects on the multiple levels of institutions that have shaped mass incarceration in the separate states, including Arizona, the subject of her Sunbelt Justice: Arizona and the Transformation of American Punishment.

The panel represents a good sample of the new state focused scholarship on mass incarceration. This research is confirming some of what we thought about the causes of mass incarceration, especially the role of prosecutors as key political actors. As Campbell notes they are a permanent institutional lobby for punishment in the legislature capable of besting the periodic emergence of opponents of excessive punishment (which exist even in Texas). But it is highlighting roles that were missed before, especially the crucial role litigation over prison conditions played in moving prisons to the top of the legislative agenda at the take off phase of mass incarceration in the early 1980s (a finding shown by Schoenfeld for Florida, by Campbell for Texas, and by Lynch for Arizona). Overall, mass incarceration (perhaps like cancer) is not one single "disease" but a family of related but distinctive maladies.

These particular studies also powerful suggest a sunbelt tilt to mass incarceration. Lynch in particular argues that the sunbelt gave us the model of warehouse incarceration at the heart of mass incarceration. It appears that early emphasis by scholars on the epistemological crises of rehabilitative penology in the 1970s may have been far less important in sun belt states that never had much commitment to rehabilitation (like Arizona), and which organized punishment along highly racialized lines decades earlier (like Florida and Texas). All this suggests that a winning strategy to dismantle mass incarceration has to play in the sun-belt and the solutions touted in states like New York, may not easily apply.

One "promising" development is the Great Recession we are experiencing which emerged from the over-leveraged real estate industry that has long shaped politics in these very sunbelt states and has now left them with severe fiscal and possibly more broadly social crises (as foreclosures erode whole communities). As these states grapple with massive economic insecurities and contracting revenues the logic of mass incarceration may begin to emerge as a subject for debate in states that are culturally predisposed against big government

The Horror

2010-11-08T09:30:00.000-08:00

Certain crimes cut through the sensibilities of even a culture besotted with media images of crime. As Durkheim reminded us, the horror these crimes invoke tell us what our central values are. The 2007 attack upon the suburban Connecticut home of Dr. William Petit, which included rapes, kidnappings, arson, and ultimately murder was spectacular example. The articulation of this horror and its revealing features has factored heavily in the just completed jury trial and capital murder of sentencing hearing of the first of two defendants in the case, Steven J. Hayes.
As described by William Glaberson's reporting in the NYTimes

The details were stark: two habitual criminals invaded the quiet suburban home of a doctor and his family after spotting them in a shopping center parking lot the day before. In a night and morning of unimaginable terrors, they beat and tied up the doctor, forced the mother to withdraw $15,000 from a bank, before sexually abusing her and her younger daughter, then strangling the mother and setting a blaze that killed her two daughters and blackened the home.The killings brought a searching review of criminal justice and corrections practices in the state and, particularly during the recent election, came to be the prism through which the state viewed a debate about the future of the death penalty.

While the violence and the vulnerability of the victims can fully explain the outrage that many persons around the country and in Connecticut where the jury appeared to have wrestled with strong reservations about sentencing Hayes to death, several features make this incident horrifying beyond its violence.

The crime took place inside the sanctity of the home. As others have pointed out, the home, especially the privately owned, suburban home, has become the essence of the American dream (one that explains are tolerance for dangerously overextended real estate markets). The fact that the violence came upon the victims inside the home makes it a greater crime than if it happened on the street or in a public place. A killing is a shocking lapse of security. A lethal attack by strangers invading the sanctity of the home is an attack on the very possibility of security. Such crimes, including the 1959 Oklahoma farm house murders described in Truman Capote's In Cold Blood, and the Manson family's Tate-Labianca murders in two posh Los Angeles area homes in 1969, have an enduring fascination that can rivet attention on crime even in periods, like today, when overall crime appears more moderate than in recent years.

The two men charged with the crime were strangers with known criminal paths. The vast majority of people (including children) killed in their own home, are killed by someone they knew, often another occupant of the house (typically father or husband), but those killings are almost never the subject of enduring fear. It is the stranger invading the home to commit violence that invokes it.

The father was rendered helpless before the crime began. Victims who are killed by their own father, or who do not have a father (or husband) to protect them seem less violated than ones whose protection has been strategically eliminated by the home invaders. The criminal father is far less frightening than the stranger who overthrows the father and usurps his place with the intent to criminal violate what the father is supposed to be protecting.

When these strangers are men with a known criminal past, who have been in prison already, something true of the Oklahoma and Los Angeles murders as well as of the two defendants in the Petit murders, there is the added outrage that the state has betrayed its protection of the families by failing to keep the criminal locked up in prison (the polar opposite of the family home in its sense of security and the comfort of its residents, and the State's very own "Big House"). It is for this reason that these crimes almost always have an influence on state penal policies far beyond their relevance to overall crime.

Obama and Fear

2010-11-01T11:39:00.001-07:00

President Obama's remarks about fear and American voter perceptions are once again raising the charge that Obama is an elitist who views the anger felt by American voters in this year's midterm election as pathological. According to Peter Baker's reporting in The New York Times the President said:

“Part of the reason that our politics seems so tough right now, and facts and science and argument does not seem to be winning the day all the time, is because we’re hard-wired not to always think clearly when we’re scared,” he told a roomful of doctors who chipped in at least $15,200 each to Democratic coffers. “And the country is scared, and they have good reason to be.”

Besides the impolitic quality of the remark what is most telling is the President's assumption that facts and science normally carry the day. I have no doubt that the President was born in the US but times like this make one wonder whether he was living here during the last twenty years. More importantly, where is the effort to speak to the fear (rather than about it). Fear comes with historical context. Today's Americans are responding to a Great Depression level financial crisis through the metaphors and meanings shaped by decades of wars on crime, in which the basic economic security of middle class Americans was taken as given, and their protection from the misconduct of deviant others around them, was taken as the primary field for governance.

That context has done a lot to train Americans to focus on questions like, who is the criminal and how harsh is the punishment. In that kind of world, bailouts of misbehaving banks are inherently subversive, and immoral; and solutions that spend money on "stimulating" the economy are expensive, pointless and perhaps damaging. It is because of this orientation that after a devastating financial crisis caused by lack of regulation and increasing concentration of economic wealth, business executives can run for office all over the country on the theme of reducing regulation and taxes on the rich.

There may have been a way to govern this crisis through crime. Investigations and trials of major Wall Street executives would have followed and perhaps a government take over of the worst actors. Obama might have tried to have BP's chief executive during the Gulf crisis arrested and seized the companies US assets in symbolic "raids"before television cameras. All of that might have worked to give him the legitimacy he needs to re-regulate the financial markets and drive new economic investment. Of course unlike the usual suspects of governing through crime, Wall Street executives are not without influence, lawyers, and media control. Given how much they have whined about President Obama's rather modest actions, we must assume that their response to that kind of demonization campaign would have been massive (and perhaps lethal).

In any event, the time for that kind of strategy is probably passed. Instead the President has no choice but to take on the way Americans think about fear directly; not by whining about how irrational they are, but by providing a different framework for evaluating our fears. In January the President will have a chance to deliver his state of union speech to a national audience in a chamber where the noise of a much larger and probably triumphant Republican caucus will be loud. He needs to put aside the usual laundry list of legislative priorities and talk about fear. Those fears that Americans can no longer afford to indulge in like fears of the criminality of immigrants; and those fears, like global warming, that we can no longer afford to ignore. The President should challenge the leaders of Congress to come to two televised White House conferences, one on immigration and one on climate change. Let each side nominate experts to be heard from, but insist that the leadership sit down with him in front of cameras to talk about what the facts show about these two burning issues and explain to the American people what they intend to do about them.

Two Paths from Fear: Punish or Build

2010-10-25T00:49:00.000-07:00

The narrative choices faced by the Obama Administration in confronting the Great Recession were nicely outlined yesterday in the editorial pages of the New York Times. Columnist Frank Rich offered a blistering critique of the Administration for ceding populist outrage to the right by failing to go after Wall Street executives responsible for the financial crash with investigations and stiff punishments, going so far as to say that "the Obama administration seems not to have a prosecutorial gene" (read his column). Having chosen to focus on the future rather than the past, Obama has left the Tea Party to reap the passions of an outraged American public.

Rich's editorial colleague Tom Friedman voices a different kind of disappointment. Obama's focus on the future, and his talk of investing in rebuilding America, has turned out to be just talk. The billions spent on stimulus turned out to include only tinkering on the edges of a massive need for reinvestment.

In the past two weeks, I’ve taken the Amtrak Acela to the Philadelphia and New York stations. In both places there were signs on the train platforms boasting that new construction work there was being paid for by “the American Recovery and Reinvestment Act of 2009,” that is, the $787 billion stimulus. And what was that work? New “lighting” — so now you can see even better just how disgustingly decayed, undersized and outdated are the rail platforms and infrastructure in two of our biggest cities.

(read Friedman's column)

The critiques suggest an Obama Presidency caught in between its reluctance to embrace the old politics of governing through crime, and its inability to launch a new politics of infrastructure. After his health care defeat in 1994, Bill Clinton made himself into the Prosecutor-in-Chief, supporting harsh and punitive laws on crime, immigration, and welfare. Clinton was relected, but he accomplished little of importance for the nation. Since the 2008 campaign I have been impressed with Obama's commitment to avoiding a politics based on demonizing. He could have framed Wall Street leaders as felons and sought to build legitimacy by sending as many of them to prison as possible and he might be more popular now if he had. It may be that he was simply too cosy with Wall Street (which did send him a lot of campaign support in 2008) but I prefer to believe Obama rejects a politics that converts fear into anger by demonizing an enemy and than seeking to punish it. Everything about President Obama's style as a speaker and a leader, cuts against his effectiveness as a prosecutorial President. The bigger question is why Obama did not try to lead the kind of infrastructure rebuilding politics he promised during the campaign.

Ironically, both the politics of punishment and the politics of building draw on fear which is the essential source of energy in liberal governance. Think of the way FDR drew on fear of the Great Depression and fear of European fascism to create the New Deal and US involvement in the World War II. Obama has not lacked for similar threats against which to mobilize America. Both the financial crisis and last summer's Gulf oil spill provided powerful examples of the threat posed by decades of underinvestment in infrastructure and under-regulation of corporate greed. Without demonizing either Wall Street or oil companies, Obama could have used the Oval office to make a sustained campaign for rebuilding American infrastructure and regulatory capacity.

It is not too late for both. A stronger Republican hold on congress will make new legislation impossible, but it will frame a stark choice between a government that actively seeks to protect ordinary Americans and one that leaves them to their fates. The Republican effort to repeal the health care reform and the privatize social security will pose this choice starkly come January. Stay tuned...

British Government to Cut Prisons/Prisoners

2010-10-20T06:48:00.000-07:00

The British are debating whether Chancellor George Osborne's massive spending cuts are a wise or reckless approach to cutting the Britain's record budget deficit (currently estimated at 8 percent of GDP). One of the most remarkable aspects of the cuts from an American perspective, is that they include serious efforts to reduce the size and costs of the British prison population through sentencing reforms. While the previous Labour government had planned to expand the prison capacity (which had already grown massively during Labour's 13 years in power) from 85,000 to 96,000, the Conservative-Liberal Democratic coalition plans to cut back, reducing nearly 6,000 jobs from prisons and probation and actually closing prisons. (read Alan Travis analysis of criminal justice cuts in the Guardian).

Because most prisoners are held at the state level in the US, deficit based prison reductions are a lot less visible, and the national government can generally avoid taking a stand on the need to reduce prison populations. It is hard to imagine the deficit obsessed Tea Party calling for a national commitment to use prison less. Indeed, with the current politics dominated by anger and fear, there is little chance that either party will lead Americans in the kind of broad civic debate about the risks facing the nation and the difficult trade offs necessary to navigate them that all the major parties are engaging in here.

How did crime become the sleeper issue of the 2010 midterms?

2010-10-18T09:27:00.000-07:00

Few were looking for 2010 to be a big "crime"election, in the manner of '88 (Dukakis and the Willie Horton), '92 (Clinton committed to outshining Bush on capital punishment by carrying out an execution during the primaries), '94 (massive crime bill and 3-Strikes in California) and '96 (Clinton as the 100K policemen on the street President). Unlike then, crime is at lows not seen since before the great crime wave of the 1960s began (although precise comparisons are impossible due to the poor quality of crime data from that era). Moreover, while the nation went through a recession in the late 1980s and early 1990s, it was not nearly as severe as the Great Recession which has left the US economy weaker then in decades. But while crime is not framing the national dispute between the parties in this midterm Congressional election, it is emerging in a wide variety of state and local races, from Baltimore, to California, to Connecticut.

In some instance, local crimes of great notoriety of galvanized interest, as in Connecticut, where the capital murder conviction of the first of two career criminals who raped and murdered the wife and daughters of a doctor in their family home and the impending sentencing phase have thrust the death penalty into local, state, and federal elections (read William Glaberson's reporting in the NYTimes). In others, like California, the opportunity of a veteran's candidate association with a death penalty controversies of the 1980s, for his opponent to attack him as soft on crime. All despite the fact that nationally the death penalty is declining in public support.

But while local factors may the emergence of crime issues, their success attests to the staying power of crime and punishment as organizing issues in political competition in the US. As with the false stories about violent crime in New Orleans after hurricane Katrina, the media and politicians reveal the degree to which crime is a comfort zone compared to having to confront the American people with the catastrophic risks that face them. In this case the bankruptcy of American governance and the real prospect that the end of the American middle class consumer economy is over. For decades declining real income has meant that middle class lifestyles have been based on more part-time employment and more debt. That appears to be over but neither the Democrats and President Obama, nor the Republicans and their Tea Party is willing to confront Americans with the news. In such a climate crime is a welcome respite in which politicians can posture as committed to protecting ordinary Americans in their homes (which are being foreclosed away) and the media can re-run narratives that require little actual investigation or thinking.

The contrast could not be more striking in the UK where I am currently writing from. Here the leadership of all the major parties has agreed that the nation is facing a fundamental challenge to its economic and political normal that will require hard choices about priorities and new sacrifices from all sectors of society. While the Conservative-Liberal Democrat coalition in government have prioritized cutting the deficit with real and painful cuts and tax increases, the new Labour leader insists on the priority of generating new economic growth to overcome the continuing effects of the Great Recession. Both are in agreement that increased taxes and spending reductions are essential and that producing a green economy through government regulation is a necessary path to a sustainable middle class economy in the future. Tellingly one area of spending reduction that all three major parties support is reducing prison populations that ballooned in the 1990s and 2000s (although not as dramatically as ours did).

In contrast, neither President Obama, nor the Republican leaders have been willing to tell the American voter that the economic "solutions" of the 1980s and 1990s were largely based on consumer debt that is unsustainable and that prosperity is not coming back without strategies that will require serious risks and sacrifices. As a result our election is turning into a rerun of 1994.

Jerry Brown for Governor of California

2010-10-13T07:06:00.000-07:00

Nobody should vote on a single issue, but as you might guess, there is one issue on which my vote can move decisively. I tend to vote against candidates that play the crime card by calling their opponent "soft on crime." For forty years now that has been the move for candidates in both parties to appeal right to voters fear factors in way that few other issues (race in fact) do. Even more importantly, self identification as "tough on crime," is as sure a proxy as there can be of the candidate's commitment to the "war on crime" and "mass incarceration."

With Democrat Jerry Brown and Republican Meg Whitman, in a close contest for governor of California, I have been undecided whether this blog would take a position. As I noted last Spring, Brown was governor before the war on crime took over California and made our prisons the leading institution in the state. His Determinate Sentence Law had flaws, but it did not produce mass incarceration, a policy that began under Republican governors George Deukmeijian and Pete Wilson, and continued under Democrat Gray Davis. Meg Whitman, having switched from business to politics only recently, had no track record of having to get behind the war on crime and its powerful interest groups. Since either will face a period of tight budgets in which the real costs of mass incarceration are likely to exclude other priorities of spending or tax cutting, both have every reason to speak honestly with voters now about the need to put the war on crime behind us and begin to address the new threats to California from natural disaster, drought, and economic decline.

In last night's final debate, however, Meg Whitman unambiguously played the crime card. The context was Jerry Brown asserting losing the endorsement of the police unions was evidence that he could be tough in his negotiations with public unions over pensions. Here is the exchange according to Kathleen Decker reporting in the LATimes.

"You got the endorsement of that union, I didn't, because they said I'd be too tough on unions and public employee pensions, and I'll take that," Brown said.

"I got that endorsement because that union knows that I will be tough on crime," Whitman replied. "And Jerry Brown has a 40-year record of being soft on crime."

When you don't have a narrative, run on crime

2010-10-10T23:41:00.000-07:00

As the US heads toward its mid-term congressional elections next month there is not much evidence of national anxiety about crime, or even, despite recent government announcements about undefined threats to Europe, about its close cousin terrorism. With the nation still struggling through the worst employment market in decades and crime rates still quite low but modern standards, it is perhaps not surprising that neither party is making much noise about capital punishment, tough prison sentences, or new sex offender legislation.

Yet a closer look at the Democratic campaign, especially President Obama's recent forays into college campuses and unionized labor strongholds in an effort to excite his base, shows that the metaphors of crime continue to do much of the work of narrative. Case in point this week were the President's sustained attacks on the secret money being channeled into Republican campaigns almost certainly coming from large corporations hostile to his administration's recent regulatory efforts on Wall Street and beyond. The donors for those ads are now allowed to spend unlimited amounts of money on the campaign without any requirement of disclosure thanks to the Supreme Court decision last year striking down provisions of the McCain-Feingold campaign finance law.

Watch the crime metaphors at work in the latest national Democratic party television advertisement, as reported by Peter Baker in the NYtimes [link not available yet].

The commercial calls Mr. Rove and Mr. Gillespie “Bush cronies” and says the chamber “shills for big business,” then shows a woman having her purse stolen by a mugger in a parking garage. “They’re stealing our democracy, spending millions from secret donors to elect Republicans to do their bidding in Congress,” the narrator intones. “It appears they’ve even taken secret foreign money to influence our elections.”

If the Republicans had put up an add implying that stimulus spending to fight the recession was "stealing our democracy"and showing muggers (they would not even have to be African American) attacking a vulnerable woman in a park or parking garage, critics would have no problem seeing the crime metaphor as outweighing the headline policy issue- campaign finance- in its power to motivate voters. Race, of course, would be at work in such an anti-Obama advertisement; but it does not have to be, as here, rich and especially foreign criminals have just as much power in the American political imaginary as young African American males to scare citizens into wanting action. Of course they are a lot less available for being rounded up by the police, so you do not see many of them in prison (but when they show up, they serve long times, just ask Manuel Noreiga or Jonathan Pollard).

The point of such an ad is to motivate the voter with a blast of anger, disgust, and fear, that runs against the President's enemies, and roughly in the direction of his policy goals. But as decades of crime based politics has already demonstrated, this kind of blast is remarkably unproductive in terms of governing. No doubt its purpose is to minimize what are almost certain to be big Democratic losses and thus retain the voting power in Congress necessary for President Obama to have any hope of moving a legislative agenda. Perhaps such a desperate move is all that remains this late into the campaign. But it did not have to be this way. President Obama and the Democrats in Congress this session, launched a new wave of regulatory law making as big as anything since the 1960s or the 1930s. The present economic crisis has brought out the need for innovative and determined regulation in a way not seen for decades. Americans got it (largely because Obama chose not to run primarily on fear and anger against the Republicans), and in 2008 gave the Democrats a real mandate to get started. In the face of a disciplined (one might have to say Leninist) opposition, they enacted major if flawed pieces of legislation to regulate the insurance industry, the financial industry, and got at least a start on energy laws that would regulate the oil industry. A reading of any history of the New Deal will demonstrate its first 2 years were just as flawed (and with much bigger, albeit racist Democratic majorities in Congress).

But the flaws were inevitable given our corrupt political campaign system, what is damning is the absence of a sustained effort to provide a positive narrative about these regulatory efforts that could have gone with a campaign to give us the Congress capable of completing the job. As Paul Krugman, Robert Reich, and many other liberal columnists and bloggers have repeatedly pointed out the President decided not to mount a major White House base campaign to support the idea of regulation after decades of the public being told by both parties that it was ineffective and inefficient, leading to perverse consequences and job losses. Not that the President has lacked moments and sound bytes, but no sustained campaign. Where was the Oval office speech on why a new generation of regulation, and getting that regulation right, was absolutely vital to creating good sustainable jobs for Americans?

The absence of that counter-narrative to the prevailing one laid down in the 1970s by both conservative Democrats like Jimmy Carter (yes, on economic policy) and Republicans like Ronald Reagan, meant that the legislation passed is now a weight around the necks of Democrats rather than momentum they could run on. The political losses for the President's program that we are likely to see on November 2 were forecast far earlier this summer when the nightmarish Gulf oil spill sunk Obama rather than unregulated global capitalism. The oil spill should have been a three month infomercial on the dangers of unregulated global capitalism, instead it was taken as an example of how government always fails.

In the absence of that narrative Obama's program is now a problem for his candidates, leaving corporate champions of unregulated capitalism, like Meg Whitman and Carly Fiorina, to be within reach of beating solid Democrats like Barbara Boxer and Jerry Brown in liberal California. We know the President can speak to Americans of every education level about these kinds of deep structural issues. It will not be heard at this point in noisy and mostly loathsome campaign. I'm hoping for some version of it as a Hannukah (or early Christmas) present.

Cruel, Inhuman and Degrading: California's Death Penalty

2010-09-27T22:40:00.000-07:00

If all goes according to the State of California's plans, Albert Greenwood Brown will be executed Thursday in a newly outfitted death chamber at San Quentin prison [the 9th Circuit Court of Appeals intervened since this was first posted and remanded the case to the District Court for further proceedings, which makes it virtually certain the execution will be delayed (read Bob Egelko's reporting in the SFChron). I'll post later on the reasons for the stay]. Lawyers for Brown and the State of California are battling over California's method of execution through lethal injection (will it be one drug or three?), and the execution may well still be delayed further. But if and when California is able to execute Brown he will be have suffered not one capital punishment, but two.

Brown was convicted of kidnapping, raping, and murdering a 15 year old girl in a crime committed in 1980, and sentenced to death in 1982. That is a heinous crime worthy of the most severe punishment a society uses. In most of the countries of the world, and virtually all its democracies, that means life in prison. In the US, Japan, a few Caribbean democracies, and a lot of Islamic and Asian or African autocracies that means the death penalty. In California it means both. The point is not just that California juries can choose between life in prison and death, its that when they choose death, they are actually sentencing the prisoner to both life in prison and death by execution.

Consider that when he is executed, Brown will have spent some thirty years on death row awaiting execution. For most of the world, life in prison means, ten, twenty, in the extreme, possibly thirty years in prison before being released to some form of parole. So in California, a condemned person like Brown is sentenced to serve a prison sentence approximating the most extreme possible prison sentence in Europe, plus a lethal injection at the end of the wait. Life in prison, with the real prospect of dying behind bars and without the presence of love, is severe punishment. Adding to that an execution ritual in which the state will seize you in the midst of health and kill you is degrading and cannot help but reduce the humanity of those subjected to it and those who impose it. That is the true meaning of "inhuman and degrading" punishment in international law.

I consider the death penalty an unnecessary and thus inherently cruel punishment, but even if it is not, being forced to wait in circumstances that constitute extremely harsh punishment three decades under threat of death, and finally to be killed is to mock the very humanity of the condemned.

Having execution follow such a long imprisonment also defies all legitimate reasons for having a death penalty. Whatever deterrence power there is in such a sentence, comes from the years in prison, since most of the condemned will die of natural causes before their execution in California. The goal of retribution, demonstrating our moral outrage at the heinous treatment of the victim, is rendered hollow when the passage of decades means few recall the crime or the victim. And the objective of helping families to recover is actually reversed where the family of the victim endures years of waiting for a moment of justice, while being told that the real punishment is "delayed" and yet to come. Opponents and supporters of capital punishment have battled themselves to a kind of draw, leaving us with a legal institution that is a perversion in every sense of the term; managing to extract suffering from the condemned from the moment of its imposition, while denying that suffering any possibility of relieving the victims. Protecting the public does not require the execution. During his years locked in San Quentin, Brown has killed no known serious crimes. The public would have been equally protected had he received a life in prison sentence (even with parole, since it is rarely granted in such an aggravated case).

The reasons for California's uniquely lengthy wait for execution are complex, involving the absence of sufficient defense lawyers, the state's dilatory style of pursuing its legal path, and the existence of multiple levels of appeals. The key fact, however, is that nobody seriously believes the situation can be much improved short of spending millions and perhaps billions more on legal costs.

Californians should be outraged at this farce of justice to both victim and thecondemned. It is time to admit that capital punishment is just an expensive symbol, bandied about by politicians of both parties, to show they care about victims, while subjecting the very very few people executed to cruel, inhuman, and degrading punishment.

There is an alternative. Those people who commit the most heinous murders,in the most culpable way (they are not suffering mental illness, retardation, did it deliberately, etc.) should spend decades in prison, period. (I'll leave for another time whether that must require life without parole, or whether the possibility of parole after 25 or 30 years would be more appropriate). Under such a penalty, victims would know that a just and very serious punishment was beginning immediately following the trial (not decades later); convicted killers would know, following a year or two of appeals, that their punishment was final and irrevocable; and Californians would know that they were doing everything they can do to deter future murders and protect citizens from further acts of violence by the convicted. The tens of millions of dollars saved from the endless court battles we currently fight, could be used to hire more police officers and pay for more DNA testing of cold case evidence, so that more murders are actual solved and result in the conviction and punishment of the guilty.

Yes on Prop 19: Legalize Marijuana

2010-09-21T10:24:00.000-07:00

On November 2nd, California voters will have an opportunity to legalize marijuana use for all persons over 21 and authorize local government to regulate its use and sale (see the Ballot_Pedia article for more on the initiative). Legalizing marijuana will not, by itself, turn around our catastrophic prison overcrowding. Relatively few people are in prison for marijuana possession or even sale. However it can achieve two objectives that will move us in the right direction on crime policy and prisons.

First, legalizing marijuana will prevent the needless stigmatization and alienation of thousands of young (and not so young) adults who are discovered by the police to be in possession of marijuana, which is one of the leading cause of arrests in the United States. This will actually unburden the police who are usually searching for weapons, from having to arrest people they discover marijuana on, or appear to be ignoring law violations. Many police-citizen encounters will have a happier ending. More importantly, many people will not accumulate misdemeanor offenses on their record that can lead them to prison later, and will avoid unnecessary criminalization.

Second, legalizing marijuana will deliver the largest possible blow to heinous drug cartels in Mexico for whom marijuana constitutes the second largest source of profits (and possibly the largest). As decades of experience have taught us, profit centered criminal networks are almost impossible to defeat using normal criminal sanctions (because they can successfully recruit new members to replace any incarcerated ones so long as the profits remain high). As Mexico's disastrous military war on drugs is demonstrating, extra-judicial deterrence does not work any better, and does lead to hundreds of collateral casualties. Without firing a single bullet, California voters can cut the Mexican cartels down to size, making it harder for them to corrupt the Mexican political system, simply by moving those profits from the crime world to the world of lawfully regulated business.

We should not be glib about the costs of marijuana legalization. Making it legal for California adults to buy and possess marijuana will almost certainly lead to more people using more of the drug. A recent paper from RAND by my colleague Rob MacCoun and others uses econometric techniques to try and estimate those effects and they suggest far from trivial increases (here it is, but it may require authorization to access). While it is true that most people who want marijuana can easily find it now (especially given California's medical marijuana regime), there are actually some people out there who will not use it on principal simply because it remains against the law. More importantly, the convenience and reliability of obtaining marijuana once it is legal will very likely increase use (even if the price does not go down, which RAND assumes but has not been true under the medical regime and could be prevented by correct tax policy).

Marijuana can be psychologically addictive. Its capacity to lift the user above the humdrum of life and let them see things differently (enabling the poetry function) can be hard to resist. For creative artists and writers it may be a wonderful tool, but for people facing depressing circumstances it may become a way to ignore circumstances that need to be changed instead.

But here is where the argument for legalization becomes most promising. The best way to prevent and remedy addiction, is through outreach, education, and counseling to the user community. The current state of illegality makes that harder in countless ways. Once legalized, local regulation could require marijuana stores to provide all of those services to their clients, and creative regulators could celebrate innovations and circulate best practices widely.

And this is precisely where marijuana legalization could do the most good. By demonstrating, through empirically tested regulations, that civil governance can remedy the negative consequences of recreational drug use, the legal marijuana regime could help wean us from our dependence on criminal law as a way to govern America.

Europe's New Axis of Governing through Crime

2010-09-16T11:14:00.000-07:00

France's President Nikolas Sarkozy and Italy's Premier, Silvio Berlusconi, took new rhetorical steps today to define a new alliance based on populist campaigns against despised minorities in the name of national security. The two leaders, both facing growing opposition at home over their failed economic policies have used aggressive campaigns of arrest and deportation against the nomadic Roma population to shore up their popularity with anxious voters. The Roma are citizens protected both by the European Union agreements and the European Charter of Human Rights. Despite strong outcries from human rights groups, the deportations of the Roma had received tepid responses from European Union officials (see my earlier post on this) until yesterday. Then, in a dramatic statement that seemed to contradict her earlier conciliatory remarks, European Commission commissioner Viviane Redding called France's deportations "a disgrace", and explicitly compared them to the deportations of Jews carried out by the Nazi allied Vichy regime (read Katrin Beinhold and Stephen Castle's reporting in the NYTimes). The intervening event was the publication of a leaked French memo contradicting earlier assurances by France that it was not singling out the Roma.

Today French President Sarkozy lashed out at the Commission (read the coverage from Matthew Saltmarsh and Katrin Beihold in the NYtimes), wrapping himself in French sovereignty and in the imperatives of providing security from crime.

Mr. Sarkozy called those remarks by the commissioner, Viviane Reding, an insult, and said they were “excessive” and “humiliating.” He also defended France’s right to carry out the removals, which have drawn criticism from human-rights groups and international organizations, as a matter of security.

“I am head of state,” Mr. Sarkozy told a press conference at a European summit meeting in Brussels. “I cannot let my nation be insulted. All the heads of state of government were shocked by the outrageous comments by Madame Reding.”

Sarkozy's defense relies on the stamp of approval applied by French national courts to the deportations, and his duty as head of state to put his citizen's security ahead of any other imperatives.

Mr. Sarkozy, whose government has vigorously defended the deportation policy, said Thursday that all expulsions to date had been carried out under French law and following decisions by judges without any “targeting” of specific groups.

But this logic completely ignores the whole point of having a European human rights charter. No doubt Vichy deportations of Jews would have been approved by Vichy courts if anyone had been permitted to challenge them and undoubtedly the Vichy government felt that removing Jews was in their security interest.

Italian Premier Sylvio Berlusconi, whose government has also conducted a deportation campaign against the Roma, defended the French actions as well. Of course if you need to rely on the notoriously scandal plagued Berlusconi to come to your rescue, you are hitting rock bottom.

Nightmare on Elm Street: The Real Killers Beneath California's Safe Suburban Streets

2010-09-11T00:10:00.000-07:00

In the 1970s Californian's were terrified by what seemed like an endless array of serial killers busy breaking into their homes, or snatching their loved ones of streets. There was the Zodiac Killer, the Hillside Strangler, and the Trial Side Killer, the Sacramento Vampire, and no less than three Freeway Killers. All told more than 160 victims were killed by some 15 distinct serial killers (either acting alone or with accomplices). While the trend peaked in the 1980s, and like homicides generally has gone way down, the legacy of those "fear years" is California's massive prison population (more than 6x its levels in the 1970s) and chronically overcrowded prisons which threaten to bankrupt the state. Despite the crippling financial costs and the ongoing human rights crisis, any politician that seeks to release prisoners, or question the need to send so many away for so long, runs into a wall of fear that sees in any early release or effort to solve problems in the community another potential serial killer on the streets.

I believe this fear is anchored in the unquiet memories of the 1970s and 1980s. Those memories are unquiet largely because they continue to be fed by a media industry that has has been enriched by serial killer fantasies for decades, and a political class that is itself addicted governing through the fear of strangers produced by these "memories" (and easily transferred to immigrants, Muslims, or anyone else that seems different). That "stranger danger" complex was facilitated by another fact of California in the 1970s. Decades of efforts to build up the state's infrastructures had made California a gleaming technical powerhouse in the late 1970s when I moved there to go to college. With solid infrastructure and multiple engines of economic growth, Californians could afford to indulge in that most ancient and entertaining fear of the "bogey man." No more

The terrible fire ball that ripped through the San Francisco suburb of San Bruno on Thursday night this past week, killing at least four, and totally destroying dozens of nice suburban homes, was another reminder that California and all of America is today stalked by infrastructure failure. According to Adam Nogourney and Malia Wollan's reporting in the NYTimes, the gas pipes that exploded Thursday were probably installed in 1948. In much of the rest of nation, basic water and energy piping was laid in the early 20th or even late 19th century. After decades of pretending we were a technological leader, America is waking up to the fact that our decaying infrastructures are a danger to economic growth, and increasingly, to our lives. The failed levees of New Orleans, the bridge that collapsed in Minneapolis a couple of years ago, similar pipe explosions in New York, these are the serial killers of the 21st century.

But Hollywood is unlikely to embrace infrastructure danger, not while they can keep trotting out versions of the Charles Manson to scare us. Nor is the current political generation, which learned to wield power by invoking fear of other people, likely to mobilize the population behind the need to redirect our public and private spending toward renewing our infrastructure. That is why President Obama's sporadic efforts to get the country focused on infrastructure investment are so important and so insufficient. His call in his speeches last week for an infrastructure bank to fund a new generation of public and private investment may have made good policy wonk sense, but it didn't grab Americans by their fear. He also missed his chance in New Orleans a couple of weeks ago to stand in front of the levees that failed in 2005 and tell Americans, these are the killers that could take your children away next week, next month, or next year. He should fly to San Bruno, and along with Governor Schwarzenegger--who has tried as well to raise the alarm about infrastructure during his terms in office--(perhaps made up for the occasion in his old Terminator make up) to stand in front of those obliterated houses and tell Americans that the nightmare of the future is here today.

Europe's War on the Roma

2010-09-04T02:13:00.001-07:00

The latest target of "governing through crime" tendencies among politicians in the Euro Zone is the Roma. Often called "gypsies" the Roma have roots in Romania but are often citizens of the country in which they live, as well as of the European Union. Despite their legal status as citizens, the Roma increasingly find themselves subject to arrests and expulsions as if they were undocumented aliens with no legal rights. The Roma are often stigmatized as criminals, and accused of involvement in all kinds of scams and illegal activities, a stigma that goes back decades if not century. Along with Jews, the Roma were one of the ethnic groups targeted to genocidal extermination by the Nazis. Today, they are to be found in almost every large city in Europe. Economically marginal almost everywhere, the Roma are described as "nomadic" despite evidence that their irregular habitats are mostly the result of extreme poverty.

This summer President Sarkozy of France has made a major public campaign of expelling the Roma from France, irrespective of their French or EU citizenship. A series of sometimes violent round-ups, reminiscent of Jews being deported during the Vichy period, has generated considerable backlash from human rights organizations and activists throughout Europe. According to Elisabetta Povoledo's reporting in the NYTimes, Italy is also targeting the Roma, dismantling long established "camps" and expelling the Roma from Italian cities.

Public debate on the issue often has racist and xenophobic overtones.

“There has been growing rancor against Roma and Sinti, in part because the media has hyped this issue, and in part because the government uses it as a means of gaining consensus,” according to Lorenzo Monasta, the president of Osservazione, a research center in Trieste that monitors discrimination against Roma and Sinti.

The critics say recent federal laws have also made life more difficult for Roma and Sinti here, even though more than half are Italian or European Union citizens. In 2007, the government passed a decree allowing European Union citizens to be expelled after three months if they lacked the means to support themselves. Then in 2008 a decree granted the authorities new powers to expel European Union citizens for reasons of public safety.

The public campaigns against the Roma have all the features of governing through crime in the US. Led by politicians facing significant policy and political resistance in their own countries (Sarkozy and Berlusconi), the campaigns involve removal of elements of society with little regard proving any actual legal guilt, but all done in the name of security and public safety. That these campaigns could unfold only sixty odd years since the Nazi genocide against the Roma, and in countries at the heart of the supposedly human rights cherishing European Union, is extremely troubling.

Governing Palestine through Crime

2010-09-02T12:13:00.000-07:00

To appreciate the perniciousness of governing through crime in advanced liberal societies like the US and the UK, where politicians invoke crime fear for their own advantage in societies with abundant mechanisms of regulation, one has to appreciate why establishing a capacity to govern violence as crime is an essential part of the state building project for new states or those undergoing transitional reconstruction of authority. Today Palestine is an example of the former and Iraq, of the latter.

The news as reported by Avi Issacharoff in Haaretz that the Palestinian Authority has arrested two suspects in the murder of four Israeli settlers on Tuesday is very good news for anyone who wants to see Palestinian sovereignty established in real terms in our lifetimes. Hamas which openly took responsibility for the gangland style drive-by shootings, chose its targets well to emphasize its narrative of challenge to PA authority (as much or more than Israel's) by killing residents of a provocatively located West Bank settlement placed well into concentration of Palestinian population and land which must be Palestine under any realistic two state solution. "One settler, one bullet," is an old anti-colonial chant from South Africa, Algeria and other sites of violence as resistance to colonization. But if Hamas can define the murder of unarmed civilians as resistance because they are settlers, that assumes away the claim of the PA to civil authority over the West Bank, including the site of those settlements. In short Hamas and the settlers are in perfect agreement that any claim to PA governance over their space, even an evolving one, is a fiction.

If the PA has indeed succeeded in bringing the killers to criminal justice, especially if can do so without violating the human rights of the accused or other suspects (and we need to know more about their arrests of Hamas supporters) they will have gone a long way to establishing their sovereign authority over the West Bank including Hebron (especially given the fact that Israel retains major security control over that sector even before the attack Tuesday). In the context of potential civil war, criminal violence is a stabilizing way for a state to interpret acts of lethal violence. By effectively responding to Hamas' violence as crime, the PA makes itself a real state. In contrast, the embrace of crime by politicians like Bill Clinton and Tony Blair, managing the prolonged crises of advanced liberal welfare states risked degenerating the self regulating capacity of well developed civil societies for short term political gain.

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PS. I talk about governing through crime in the US and in Israel/Palestine with the very interesting politics blogger George Kenney in a podcasted conversation over at Electric Politics