"Mass Incarceration Now, Mass Incarceration Tomorrow, Mass Incarceration Forever" California's Jerry Brown and Politics of Bashing Courts

Just about two years ago, in May 2011, the US Supreme Court in Brown v. Plata 131 S.Ct. 1910 (2011) upheld what Justice Scalia called the "most radical court injunction in our nation's history."  The injunction imposed by a special 3-Judge federal court in August 2009, required California to reduce its prison population by some 40,000 prisoners, to a level approximating 137% of its design capacity.  The State responded with a package of legislation known collectively as "realignment" and has been bragging about its success in achieving court benchmarks since Fall 2011.  However starting in January of this year Governor Jerry Brown, apparently emboldened by his electoral victories last November, has engaged in a campaign of provocation and defiance of the courts.  Comparisons with the post-Brown v. Board of Education era of "massive resistance" by Segregationist states and governors are not only plausible, they scream out.  Consider one of the final paragraphs in the April 13, 2013 Opinion and Order of the special 3-Judge Court in a decision completely and angrily rejecting the State's motion for that court to vacate its August 2009 order:

Finally, this Court observes that the prison overcrowding crisis has plagued California for over twenty years and defied the efforts made in good faith by Governor Brown's predecessor, including Governor Deukmejian and Governor Schwarzenegger.  Fully aware of this context, the Supreme Court affirmed this Court's determination...Accordingly, Governor Brown has a duty to exercise in good faith his full authority, including seeking any changes to or waivers of state law that may be necessary to ensure compliance with the Supreme Court's judgment.  See, e.g., Cooper v. Aaron, 358 U.S. 1, 18 (1958), United States v. Barnett, 376 U.S. 681 (1964)

This is an extraordinary public slap down of a sitting chief executive.  The members of the special  court, two of whom have wrestled with California's penal bureaucracy for nearly two decades in an attempt to improve medical and mental health care in prisons, and have seen more than four other Governors in office, clearly view Brown's conduct as marking a new low in non-compliance for a state that has been operating prisons in open defiance of the Constitution since 1995 (or by some measures since 1976).  The two cases cited are more than pedestrian precedents and are from the era of what historians call "massive resistance," when Southern governors competed with each other to denounce the Supreme Court's Brown v. Board of Education decision and to "interpose" themselves between citizens and the school desegregation orders of federal judges.  Cooper, is perhaps the most famous modern civil rights case after Brown.  In this unanimous opinion, actually signed by all nine members of the Supreme Court, the Court rejected the position of Arkansas Governor Orval Faubus, that he had the authority to block implementation of a court ordered school desegregation plan in order to protect the public. United States v. Barnette involved a similar confrontation with another of the most infamous segregationist governors of that era, Mississippi's Ross Barnette.  That California Governor Jerry Brown should end his long career as a modern Democrat, in the Constitutional company of these infamous Southern Dixiecrats is another mark of how transformative the "war on crime" has been to American democracy and the real costs of "governing through crime."

Brown v. Plata and Realignment
To recall the context, California is nearing the end of  what amounts to a four year period to reduce its prison population to a 137% of design capacity (yes, the courts considered requiring the elimination of overcrowding but decided that would go further than the minimum absolutely required to remedy the constitutional violations).  That order, first issued in August 2009, reflected court frustration with over (by then) a decade of efforts to improve mental health and medical care in the sprawling and overcrowded system.  In 1995 found California prisons violated the 8th Amendment bar on cruel an usual punishment because they lacked all dimensions of a minimally adequate mental health system.  In 2002 the State conceded that its prisons violated the 8th Amendment because of the lack of medical care.  In each case the degree of violation was extreme with dozens of individuals every year dying or suiciding because of unmet medical or mental health treatment.  Seven years later, the special 3-Judge Court decided that these extreme constitutional violations would continue unless the State was compelled to reduce the chronic overcrowding that in the view of the court, made any reforms impossible to implement.  California, despite building 22 new prisons in the 1980s and 1990s, had been packing its prisons to well above 200% of design capacity more or less continuously for nearly twenty years (that term is noted by the Plata Receiver Clark Kelso in a report cited at p.42 of the Order and Opinion).

When California appealed the 3-Judge court's population reduction order to the Supreme Court, the majority made utterly clear the Constitutional obligations that underlie the enterprise of incarceration.  

To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison's failure to provide sustenance for inmates “may actually produce physical ‘torture or a lingering death.’ ” ....Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.

While four Justices dissented, they did so because of their expressed concern that the population reduction order might endanger public safety; not because they could defend California's prison conditions.  For a while it seemed as if the completeness of the State's legal defeat, and the stinging moral tone of the majority's condemnation of practices incompatible with "civilized society" was having an effect.  The legislature quickly passed a plan calling for many of the kinds of reforms that the 3-judge court recommended, including diverting parole violators and low level felony offenders away from prison and into county court systems.  The website of the CDCR became festooned with links showing the efforts and progress toward meeting the court's orders, with lower populations marked in flashy graphics in safety green.

The Penal Empire Strikes Back
Something happened, however, toward the end of 2012.  In October, anticipating potential difficulties with California making its population targets for 2013 (which was supposed to see the state hit 145% and finally the level of 137.5% which has been affirmed as establishing a constitutional level for the specific purposes of this litigation), the 3-Judge Court asked the State and the lawyers representing the prisoners to develop plans to achieve compliance "without adverse impact on public safety," (that being a requirement of the Prison Litigation Reform Act which already puts a heavy thumb on the judicial scale against releasing prisoners).  In early January the state launched what can only be described as an offensive against the courts with the self proclaimed objective of re-establishing "full state control" over the prison system.

• On January 7, 2013, the state simultaneously filed motions in the Coleman case (the mental health case) and the combined Coleman-Plata case (the population cap case) seeking to terminate ongoing proceedings.  The 3-Judge Court had clearly been expecting a motion from the state for delay or modification of the population plan, but this motion called for a complete termination of the order (and presumably the 3-Judge court itself which only came into existence to consider the necessity for a population order).  These were, in short, extraordinary motions, ones that, in effect, denied California was any longer in Constitutional arrears and telling the courts to take the equivalent of a hike.  
• The Governor combined these legal filings with a flurry of press statements in which he declared that as a result of spending billions, the prison system was now among the "finest in the nation."  Speaking of mental health, a topic on which the Supreme Court had been particularly moved at the loss of human dignity in California prisons, Brown proclaimed prison mental health care far better than that in the community, and at the highest standards for prison care in the world.  
• On January 8, 2013 Governor Brown terminated his own emergency powers over the prison system that had been in effect since Governor Schwarzenegger had declared the state of emergency in 2006 to deal with epic overcrowding.  The powers included authority to house prisoners in private and public facilities out of state.  In his statement, A Proclamation by the Governor of the State of California, Brown declared that "prison crowding no longer poses safety risks to prison staff or inmates, nor does it inhibit the delivery of timely and effective health care services to inmates."  As the 3-Judge Court noted, this effectively placed the Governor as denying the factual predicate on which the population reduction order had been put in place to begin with. 
• Later in the month when the state turned in the regular status report that it was required to do as part of the Coleman-Plata case, the state indicated bluntly that it planned to take no further steps to comply with the courts orders.

Legal Defeat, Political Victory?
This month both Judge Karlton in the Coleman case, and the 3-Judge Court in the Coleman-Plata case issued their opinions on the motions to terminate.  I will write later about Judge Karlton's very strong opinion in Coleman.  The State's positions on mental health turned out to be humiliatingly erroneous.  For example, as of the latest available statistics, California's prison suicide rate remains well above the national average (for prison suicide) and more or less where they were when the population cap order was affirmed.  Suffice it to say for now that in both cases the legal position of the state was completely routed and declared to be nearing the borders of frivolity.  Here I will comment a bit more about the Coleman-Plata opinion before turning to the question of political motivations.

One of the oddest features of this litigation is the fact that the State's legal position in their own provocative motion to vacate, changed dramatically even during the pendency of the motion (leading to a bizarre series of motions and cross motions).  In its initial motion, the state took the position that the population reduction order should be terminated because the underlying constitutional violations of inadequate mental health (Coleman) and medical care (Plata) had been resolved.  In February, after the 3-Judge Court had issued an order staying their motion, and requiring them to advise as to whether or not the defendants intended to file a parallel termination motion in the Plata case (consistent with the Coleman termination motion), the state came back and asserted a different ground altogether for its termination motion. Abandoning the claim that constitutional violations no longer existed, they now asserted that due to its success in reducing overcrowding, overcrowding was no longer the "primary barrier" to rectifying constitutional violations (which may or may not exist apparently from the State's perspective).

On these terms the Court accepted the motion and rejected it on every conceivable point.  The State had the burden of proving by a preponderance of the evidence that overcrowding was no longer the primary barrier.  The State's evidence consisted essentially large of assertions that things have gotten a lot better under Brown.  The State offered the opinion of one of the prisoners' former experts, now the new Secretary of Corrections for California (and thus a Defendant), that overcrowding was no longer the primary problem in fixing health care problems.  The State pointed to the fact that the infamous "bad beds", the hallways and day-rooms filled with double and tripple bunks that became the symbol for the extremity of overcrowding were gone by the end of 2012. The State pointed to audits of the state prisons showed that some which had high levels of overcrowding nonetheless had relatively effective health care delivery, while others with less overcrowding had greater delivery difficulties.  The State also relied on the fact that neither the Receiver appointed by the Plata court to oversee reform, or the Master, appointed by the Coleman court, had mentioned overcrowding in their latest reports to their respective courts (unfortunately for the State both filed briefs on the motion to vacate directly contradicting the State's position).

The State's legal position was rejected completely and overwhelmingly.  At the heart of the matter was the State's insistence that its success in driving overcrowding down under the Realignment plan meant that the basis for court intervention was now removed and no further justification for preemptive judicial oversight any longer existed.  As the Court pointed out with understandable frustration, the only reason the State undertook Realignment was to comply with the Court's order and that the reduction in steps was precisely the point of the two year (now stretched to nearly four years) order and not a reason to conclude it was no longer necessary.  Indeed, the Court pointed to the State's own eagerness to increase the population through repatriating out-of-state prisoners to indicate that current population reductions did not yet suggest the State had reached a "durable remedy."

The State does not walk away empty handed.  The 3-Judge Court effectively gave the state an extension until December 31, 2013 to achieve 137% of design capacity (which had previously been due in June), but it was an expensive way to get a modification that the Court was almost certainly willing to give the State anyway.  In an extraordinary section on compliance the 3-Judge Court openly questioned the Governor's good faith and threatened him with spending New Years 2014 in jail for contempt if the latest orders are not complied with.  The State has promised to appeal to the Supreme Court, but its almost certain to lose in Coleman and win only what it already has in Coleman-Plata (that is a modification of the plan).  The State's bizarre set of legal maneuverings are either a sign of deep incompetence in the Office of the Attorney General, or a sign of politics trumping law.  Because the AG's office is by no means incompetent, we can assume the latter.  But what explains this?

Explanations
I admit that the politics of Governor Brown's court bashing have long puzzled me.  Jerry Brown might seem to have clean hands on mass incarceration and be well placed to offer realignment as a sensible corrective to California's overblown punitive policies (most of which he is not identified with).  Yet the Governor's personal commitment to court bashing has convinced me otherwise. Here are a few speculations on what may be going on.  (This is the history of the present, so pardon me in advance for getting it wrong).

1. Follow the money?  The Governor's offensive was anticipated in Spring 2012 with a glossy new CDCR brochure The Future of California Corrections: A Blue Print, which promises to "save of billions of dollars," "end federal court oversight" and "improve the prison system."  The order is clearly not random.  One explanation for the Gov's efforts to bum-rush the courts out the of the way, is that he hopes he can do Realignment and prison reform even cheaper if human rights is not part of the equation.  The fact that the State trumpeted its interest in bringing nearly 10,000 California prisoners home from out-of-state mostly to save money (currently being spent on paying for out-of-state prisons) undercut its motion to vacate because it suggested that even current overcrowding reductions might be reversed as soon as the State could get away with it.  Thus it is possible that this is all part of a budget-above-all strategy; but if so it's a misguided and expensive one (in legal costs).  In the long run, an effective alternative to mass incarceration is not going to mean big short term cost savings for the State (or perhaps any at all).
2. As it was for Orval Faubus, Ross Barnette and George Wallace, losing to the federal courts may just be another way of winning politically for Jerry Brown by cashing in on the populist appeal of "interposing" oneself between the frightened public and demonized activities linked to the elitist federal courts, like school integration or early release of prisoners.  On this scenario, Brown knows that he is going to have to cross the biggest river yet in population reduction by actually reducing the sentence of a currently serving prisoner (the boogey man of "early release"), something realignment scrupulously avoided).  This will result in a great deal of public concern and if there are publicized crimes, possible political damage.  From this perspective, this entire performance is a kind of court bashing insurance bought against populist backlash.  It worked for Faubus, Barnette and Wallace, who gained near immortality in office.
3. It is possible that this is really about the penal bureaucracy and demonstrating the Governor's loyalty to a penal culture anchored in trauma  and seething with hostility toward human rights for prisoners and the courts that enforce them.  This history  began with the infamous "adjustment center" uprising of August 21, 1971.  During that violent day, in events that remain shrouded in dispute, prisoner leader (and Black Panther) George Jackson briefly took over the security wing of San Quentin and with collaborators killed several guards and prisoners before Jackson died in hail of bullets (some say he was set up for assassination).  That trauma remade California corrections, gutting any remaining loyalty to the rehabilitative penology, and placing the nascent prison officers union on a war-footing.  Governor Brown inherited this trauma during his first stint in the office from 1977-1983, during which time he added to it by approving the Determinate Sentence Law that removed any remaining legal mandate for rehabilitation, removed parole as a release mechanism from prison, and made punishment a meaningful goal in itself (one that unlike rehabilitation the penal bureaucracy would embrace).  These ingredients combined to form California's toxic penal philosophy in which an extreme form of penal incapacitation is infused with a deep contempt for human rights and courts.  It is this penal bureaucracy and its culture, one long established in the broader political field of California government and administration that produces the cruel, unusual, and degrading penal practices on display in Brown v. Plata.  Or consider, our obsession with SHU housing, for example, which lies behind California's super-sizes version of supermax imprisonment in which far more prisoners are held far longer than any other state on the planet, began under Governor Brown's Department of Corrections, with the SHU units at San Quentin and Folsom which were litigated in Toussaint v. McCarthy (1984).  In short, this legal strategy may have largely been for the benefit of the Department and the Prison Officer's union, powerful organizations that the Governor needs to maintain an alliance with.

The State is heading toward a likely second defeat in the Supreme Court if it gets there.  In the meantime, those of who want to see some accountability for the past wrongs of our correctional system, and real efforts to rebalance and legitimize a penal system now tainted with a global reputation for human rights violations (note here that Governor Brown must be receiving some sympathetic encouragement from China's leaders with whom he is banqueting this weekend while on a trade mission) must realize that it is not just the most visible partisans of the "prison industrial complex," who we must persuade or overcome, but unfortunately the political establishment of the State.

How not to govern through crime: Insights on bullying

In her New York Times op-ed on bullying (and I presume her book), journalist Emily Bazelon provides a powerful critique of why not to govern through crime and more importantly, some keen insights on alternative ways to govern a problem that has some crime like properties, but other features as well (read it here).  Bullying among children and in schools, on-line, and in person, has become a recent focus of alarm by many parents, schools, and increasingly legislators, often fueled by media reports of children or young people who seriously harmed, or who have taken their own life, after aggressive treatment by peers or adults.  Bullying has many crime like attributes including an identifiable victim, identifiable wrongdoers, harm, and bad motives; but until recently it has not generally been a crime in itself (even though the mechanisms used in some bullying like assaults or threats are undoubtedly crimes, or juvenile violations, under existing law),

While bullying has long been a noted feature and minor concern of childhood and schooling, the emergence of a distinctive government-rationality around crime (which I describe as "governing through crime") in recent decades, has led to laws that compel schools to treat bullying more like a real crime and law that make it a crime.  Generally it is hard to opposed these laws, just as it is hard to oppose most forms of criminalization, because to do so seems to share in the indifference to suffering which is part of the harm of bullying itself.

Bazelon, who has been studying and writing on bullying for several years, focuses her argument  first on the difficulty of defining bullying:

The word is being overused — expanding, accordionlike, to encompass both appalling violence or harassment and a few mean words. State laws don’t help: a wave of recent anti-bullying legislation includes at least 10 different definitions, sowing confusion among parents and educators. 

All the misdiagnosis of bullying is making the real but limited problem seem impossible to solve. If every act of aggression counts as bullying, how can we stop it? Down this road lies the old assumption that bullying is a rite of childhood passage. But that’s wrong.

 Laws that sweep all manner of behaviors into a box lead to unreliable enforcement and overtime a sense of futility in any effort at  social control.  Given that those boxes once labeled crimes (or even expellable school discipline violations) tend in a society like ours to result in discrimination and exclusion against already demonized segments (boys of color),

Bazelon favors a definition developed by treatment professionals  to includes three elements, physical or verbal abuse, repetition, and power imbalance.  Most legal definitions leave the third out and some even the second.  Both are critical to assuring that the acts involved reflect a concerted and intentional threat rather than just a difficult moment in a changing flow of events.  Bazelon argues that this can also lead us to focus on the wrong features of the situation that are actually placing a child under distress.

But when every bad thing that happens to children gets called bullying, we end up with misleading narratives that obscure other distinct forms of harm. 

The exact same problem applies to virtually every crime; the elements of which are always miles wider than the core examples of what most people have in mind by robbery, burglary, or even homicide.

Bazelon also offers some ideas about how schools should address bullying that could have wider application to other social problems that we currently criminalize.

• listen to bullying victims in trying to define the features of the problem and what solutions matter to them
• Address the lack of social ties that foster victimization and the lack of empathy that fosters aggression
• Give victims and potential victims the lead role in developing strategies to end it

These criteria could apply to issues like gang activity, drug using and dealing, prostitution, and trafficking in migrants which are currently governed primarily through crime.

Gated Nightmares

It has all the feel of a Twilight Zone episode, only in a setting that is unmistakably contemporary.  The nightmare is framed by this setting, a house in a gated community.  It could be a very posh house, like the one where Oscar Pistorious lived and admits he shot to death his girlfriend, the model Reeva Steenkamp, last week in South Africa [read the Guardian's coverage here]; or a more middle class one, like the South Florida community where George Zimmerman shot Trayvon Martin to death in 2012 [read the New York Times summary here].  Whatever you make of either mans' story---whether they are liars, self deceivers, or simply loose cogs--- their narratives belong to what David Garland called the "common sense" of "high crime societies."  Their justification/excuse defenses turn on the reasonableness of responding to uncertainty with lethal violence, a reasonableness in turn anchored in the subjective experience of crime and fear of crime.  As Pistorius' defense statement read by his lawyers in court yesterday put it:

"I am acutely aware of violent crime being committed by intruders entering homes," he said. "I have received death threats before. I have also been a victim of violence and of burglaries before. For that reason I kept my firearm, a 9 mm Parabellum, underneath my bed when I went to bed at night."

 It is a nightmare that anyone who has lived in late modern society can recreate at will, from a thousand half remembered films or tv scripts if not from personal experience.  Its the reason that lots of people you know and love, may be you too, keep a 9mm gun next to their bed.  What makes their nightmare complete is that even by their own accounts they killed people who posed no threat to them, in a place they chose to be in large part to keep them safe from crime.   And now they face the possibility of the ultimate contradiction in our "culture of control" (thanks again to Garland for the term), a long sentence of imprisonment during which they are likely to be exposed to cruel, inhuman, and degrading circumstances (although South African law at least is more proactive in protecting Pistorius against that, although I wouldn't want to bet on its practical implementation).

Gated communities promise to wrap consumers in an extra layer of security unprovided by the state and mutual self help of citizens.  But once embedded in such an environment, insecurity got worst.  George Zimmerman felt the need to become his own vigilante patrol officer within the gates and Oscar Pistorius kept himself armed against the burglars in his mind.  Again Pistorius' narrative, whether genuine or artfully contrived, speaks to (and shows us) the way our security measures implode on us, removing some threats so our minds can focus on others:

"I heard a noise and realised that someone was in the bathroom. I felt a sense of terror rushing over me. There are no burglar bars across the bathroom window and I knew that contractors who worked at my house had left the ladders outside."

The gates around his house only made the absence of gates on his windows a vulnerability.  The hired men who labored to make his luxury home even more secure and comfortable opened yet more pathways for crime.

We should not pity Oscar Pistorius or George Zimmerman, at least not more than their victims.  But if we fail to recognize their nightmare, as ours, we can expect more victims.

The Myth of Urban Insecurity

In March 1964, when 28 year old bartender Kitty Genovese was stalked and murdered by an assailant as she tried to enter her Queens apartment in New York, America was just beginning the great rise in violent crime that would shape the next four decades.  It was not so much her murder that unnerved New Yorkers and other Americans at a moment when America's cities were only beginning to suffer the great suburban exodus that would see many of them lose as much half their population, as the widely circulated claim that her murder could have been prevented if the dozens of her neighbors that reportedly heard her screams had called the police or done something more directly to intervene.  This claim became famous, because Abe Rosenthal, then still starting his career at the New York Times, wrote a large feature article and then with great speed a book promoting it.  The book became a bestseller and helped convince urban Americans that safety from violent crime required a suburban cul de sac. (I've written about this more here).

This week in the Times, Leslie Kaufman wrote a feature about the digital reissue of the Rosenthal book that focused on the fact the fact that the book is being republished with no acknowledgment that a great deal of evidence has now accumulated that the horrifying story of witness indifference was false, that no more than a handful of witnesses may have heard her screams due to the cold early spring weather and the fact that Genovese managed to crawl toward a back entrance of her building, but also into a less visible area where the assailant resumed his lethal attack (read it here).

The episode offers intriguing suggestions about the fear of crime in the 1960s that helped create our culture of control.

According to Kaufman, Rosenthal got the story in an interview with New York's police commissioner and then ran with it.  The role that urban police played in undermining confidence in the safety of their own cities is, in my view, one of the great untold stories of America's urban crisis.

The media, like the police, seem to have viewed urban crime fear as a profitable enterprise.

Rather than testing Rosenthal's thesis against the real facts, social scientists of the era ran with it to create a highly productive (for academic purposes) but dubious "bystander syndrome" which holds that when witnesses to a person in need believe others are available to respond, they are less likely to respond.  Throughout our urban crisis and "war on crime" social science has played a mostly negative role, promoting the view that rehabilitation in prison did not work; promoting the view that police patrols could not stop crime; and promoting the view that urban neighbors are unreliable.

The Turn Around State? Does California Have One of the Finest Prison Systems in the Nation

As readers of this blog know, Governor Jerry Brown of California has combined leadership on reducing California's bloated prison population with relentless attacks on the courts whose orders have made that badly needed "realignment" political possible.  Still even I was surprised by the air of unreality to the Governor's dual press conferences yesterday backing up the state's legal filings yesterday seeking an end to the federal court oversight of California's prison health system, and a respite from its prison population cap (listen to the California Report's coverage here).

We've gone from serious constitutional problem (sic) to one of the finest prison systems in the United States.  Most of the people get far better care for mental health problems or physical well being inside prison then they'll get when released on the streets. (Cecilio Padilla's reporting on Fox 40 here) 

The state's main correctional problem now, according to the governor, is the court's oversight and lawyers.

While acknowledging court intervention had forced vast improvements to a system that was in crisis, Brown said overly intrusive judges had unleashed a feeding frenzy of highly paid attorneys "running around the prisons looking for problems."(Paige St. John in the LA Times here)

I have not had time to read the state's legal filings (almost done grading, almost) but these claims are remarkable and possibly outrageous.  First let's remember the context.  Judge Thelton Henderson put the state's prison health care system in receivership in 2005 finding that after three years the state had accomplished very little toward a settlement agreement for improving health care and that a prisoner a week was dying of unmet medical needs.  In 2009 a three-judge court ordered the population cap finding that chronic hyper overcrowding (with many units housing 300 percent of their already optimistic design capacity) was exacerbating the medical and mental health problems and making improvements impossible.  Then Attorney General Brown appealed to the US Supreme Court.  In Brown v. Plata (he was now Governor) the US Supreme Court upheld that order against all the same arguments the Governor is once again making.  Describing the lack of health care as approximating "torture" in its significance, Justice Kennedy wrote:

Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.

The evidence in the record, what Governor Brown calls "constitutional problems" included the following profiles of medical failure:

California's prisons were designed to meet the medical needs of a population at 100% of design capacity and so have only half the clinical space needed to treat the current population. ... A correctional officer testified that, in one prison, up to 50 sick inmates may be held together in a 12–by 20–foot cage for up to five hours awaiting treatment. .... The number of staff is inadequate, and prisoners face significant delays in access to care. A prisoner with severe abdominal pain died after a 5–week delay in referral to a specialist; a prisoner with “constant and extreme” chest pain died after an 8–hour delay in evaluation by a doctor; and a prisoner died of testicular cancer after a “failure of MDs to work up for cancer in a young man with 17 months of testicular pain.” 

We can all hope that conditions like this are a thing of the past in California.  The fact that they persisted in the state for at least a decade is an utter disgrace that calls for investigations and accountability, rather than euphemisms and attacks on the courts.  But the very tone of the Governor's remarks are good reasons to hope the courts will not relinquish oversight.  The fact that prisoners now get better health care than they get when they return to the streets may say much more about how poor community mental and physical health care is in California's communities of rural and urban disadvantage.  It is also the case that prison is a far harder place on physical and mental health than even impoverished free communities because of crowded conditions, racialized gang divisions, and systematic lack of opportunities for education or work.  The Governor coincidentally also acknowledged successful treatment for prostrate cancer, describing himself as "raring to go" (read Steven Harmon's reporting in the Mercury News here).  If he thinks lawyers are gold plating our prison health care perhaps he should demonstrate that by receiving his future cancer follow up treatment at Folsom or San Quentin (one can hope his outcome will be better than the young prisoner who died of testicular cancer after 17 months of reporting pain).

Is California now one of the "finest prison systems" in the Nation?  A lot depends on what we mean by finest.  If that mean's strong educational, vocational, and rehabilitation programs, that has not been true since the Governor's father was Governor.  Does it mean keeping the largest number of people locked up?  Thanks to the courts we have now lost that status to Texas, (but they are at least more competent managers).  The truth is California has followed a path of indiscriminate imprisonment for decades.  Most of the damage was done during the 1980s under Republicans like Deukmejian and Wilson, and Democrats like Gray Davis who committed the state to mass incarceration policies.  While Governor Brown's realignment policies are an important turn away from that pattern he has yet to articulate a convincing vision of public safety, and in his attacks on the courts he suggests he does not have one.

The claim that further efforts to reduce the prisoner population to meet the court order will endanger public safety is baseless.  The reality is that California prison sentences are not based on prospective risk and California prisons offer no serious rehabilitation programs to the overwhelming majority of prisoners.  Reducing sentences by days, weeks, or even months (all that would be necessary to meet the targets) is unlikely to alter how those prisoners will behave once released.

Les Mis: Why do we idealize Jean Valjean and Act like Javert?

Since it opened on Broadway in 1987, the musical Les Miserables has captured the American imagination, running until 2003; the fourth longest running show in Broadway history.  The movie version, starring Russell Crowe and Hugh Jackman, just opened and the show I saw last night was packed.  The story, based on Victor Hugo's 1862 novel of the same name, tells the story of Jean Valjean, a peasant condemned to 19 years of slavery in prison for the crime of stealing a loaf of bread to feed a starving nephew.  Embittered and degraded by his prison experience, Valjean commits a property crime almost immediately against a kindly priest who had given him shelter for the night.  Saved from re-imprisonment by the priest's refusal to accuse him, Val Jean commits himself to life of service and virtue, a path he concludes he can only follow by breaking his parole and going underground.  The rest of the story tracks his success and efforts helping others always shadowed by a police officer named Javert who is obsessed with tracking down and re-imprisoning Valjean.

The battle of these protagonists is set against the suffering of the French poor in the years after the defeat of Napoleon and the revolutionary sentiments stirring in Paris but the moral drama comes down to two questions.  First, does justice require absolute adherence to the letter of the law and condemnation of those who break it, or instead to meeting human needs and showing mercy and forgiveness to other?  Second, can a person who commits a crime change, or do they carry a moral failure that will always reassert itself.  Valjean who broke the law only to save a child and is himself saved by the mercy and forgiveness of the priest embodies the ideal of justice as humanity.  While his criminality seems confirmed by his committing a crime soon after being released from prison, he devotes the rest of his life to hard honest work and to helping others.   Javert embodies the ideal of justice as strict adherence to law.  Although surrounded by evidence that the savage inequalities of French society makes the protection of the law a cruel hoax, Javert believes that there can never be a greater priority than obedience.  Javert also believes that once a criminal, always a criminal.  In each of their encounters, Javert reminds Valjean that he is a dangerous criminal who will always return to committing crime.   Of course, the audience has no problem deciding which side justice and morality are on.  To my observation, nobody roots for Javert to catch Valjean and return him to prison.  We all want Jean Valjean to remain free.

Although the story is French, and the musical production originally British, American audiences love it deeply, and recognize in Jean Valjean a classic American hero; a character who is redeemed from a life of crime by the intervention of others, and through their own commitment and courage attain both worldly success and moral virtue.  But herein lies the irony.  If we Americans identify with Jean Valjean, why does our justice system, more than any other in the world, embody the spirit and philosophy of Javert?  In no other nation are people so routinely incarcerated for breaking the law, no matter how trivial the violation, or compelling the need behind it.  Moreover, in the very decades that we have been lining up to see Les Mis, we have enacted a legal system committed to  the inflexible imposition of harsh justice and the impossibility of reform.  Indeed our state and federal courts today are largely in the hands of Javert and his disciples.

Javert himself provides two interesting clues to why Americans both dislike and embrace the harsh version of justice he represents.  First, Javert repeatedly refers to Jean Valjean as "dangerous" and there is a hint that his tremendous physical strength, and strong emotions, contain some more general menace.  Americans in the violent 1970s and 1980s seemed to accept that security requires us to ignore our intuitions about justice (a theme that continues in the current war on terror).  Second, Javert discloses that he himself is from an impoverished background, but has obtained success without breaking the law.  In Javert's zeal to punish Jean Valjean is disguised a need to deny that they have anything in common.  Likewise American punitiveness is powered in part by a need to maintain a moral gulf between the goodness we imagine in ourselves, and the evil it must be defined against.

Put a fork in it: The paper of record declares Mass Incarceration Dead

So forgive my mixing New York metaphors and class signifiers (I've never really lived in Gotham), but as cultural markers go today's frontpage story in the New York Times, using the phrase "mass incarceration" and declaring  it dead (or at least out of favor among everyone they know and like) is an important occasion in the life of those of us who want to see it so. Transformative social policies, penal and otherwise, are primarily acts of imagination and John Tierney's article, which spilled over into two full pages of the national print edition, offered a wide ranging and thoroughly critical look at some of the policies that have defined our penal sensibilities for the past forty years.  Tierney, no less the Times "Findings" columnist, promises more to come, but today's dose offered up a large helping of reportage on how the policy elite, particularly nationally prominent social scientists  and the politicians who sometimes seek to find space for innovation, now view mass incarceration.

Tierney's coverage (and the consensus it may have captured) is highly concentrated on one part of mass incarceration, the war on drugs.  The article profiles half a dozen Americans who have already served years, sometimes decades, on Life Without Parole Sentences, for non-violent drug crimes, generally involving possession of large quantities of drugs for sale, and many of them were accomplices with a less substantial role even in that crime than others.  As the profiles make clear, none of these prisoners, and many others like them, have done the kind of unforgivable things that most American associate with LWOP sentences, namely murder, or at least kidnapping, rape, child sexual abuse.  Nor on an individual level do any of them pose any significant risk of committing those kinds of acts in the future.  Instead, their incarceration is premised on the prospect that LWOP sentences would deter many from entering drug dealing, and incapacitate others committed to the life.

Tierney's reporting is particularly significant for naming mass incarceration as such (even if misses the opportunity to cite or interview some of the social scientists who named as it such, like David Garland who is a couple dozen blocks away at NYU).  After opening with Stephanie George, a woman sentenced to LWOP for drug possession more than a dozen years ago, Tierney moves beyond the individual to place it in

a revolution in public policy, often called mass incarceration, that appears increasingly dubious to both conservative and liberal social scientists. They point to evidence that mass incarceration is no longer a cost-effective way to make streets safer, and may even be promoting crime instead of suppressing it.

Also significant is that Tierney traces the genealogy of mass incarceration from policy to political success through the enormous intellectual influence of the late James Q. Wilson, a political scientist who taught at Harvard, UCLA and Pepperdine, and whose book Thinking About Crime (originally published in 1975) was in my view the key text of mass incarceration in its embryonic form.  His framing of crime as an economic and later an almost biological problem, caught the imagination not only of the conservative Republicans he personally aligned himself with, but many leading Democratic politicians as well (for my own version of the genealogy see my "Mass Incarceration: From Social Policy to Social Problem" in Joan Petersilia and Kevin Reitz, The Oxford Handbook of Sentencing and Corrections").  According to Tierney, mass incarceration is now viewed as empirically dubious by contemporary social scientists.  Stephen Levitt, one of the most prominent exponents of the thesis that mass incarceration worked (at least until the mid 1990s), suggests that now the marginal value of the prisoners being incarcerated is so low from a crime control point of view that we ought to have at least a third fewer of them.  Criminologists Peter Reuter and Jonathan Caulkins note that the declining level of drug prices and wide availability have conclusively proven that locking up drug dealers cannot shrink let alone stop that market.

The change here is not in the social science, where the consensus was against mass incarceration a decade ago, but in the sense that it might matter to politicians (especially at the state and local level who have the most to gain from shrinking correctional budgets) and that it might be safe to come further out in this nice warm water of policy consensus.   Of course the cultural salience of papers may be shrinking.  The paper of record is not what is was in ''64 when Abe Rosenthal helped make living in cities seem insanely dangerous from a crime perspective by blaming the Kitty Genovese murder on bystander effects (which come up in Joe Nocera's column this week). The problem is that with penal matters things can get hot fast.  Thus a few notes to keep in mind as we watch the further role out of this important series of columns and the response to it.

• Bear in mind that despite the importance of social scientists like James Q Wilson in legitimizing it, mass incarceration was not primarily sold to the public on its social science bonafides and indeed Wilson, despite having been a great social scientist up to that point marked a transition to being mostly an ideologue with the very book Thinking About Crime.  The book was not filled with great social science theory or data, but in fact was largely based on the presumption that when the price of crime goes up, the amount of it must go down.  Instead the marketing of mass incarceration was its fit with a series of cultural experiences, especially the racialized fear of rioting in the late 1960s and the theme of criminal monsters (serial killers and sex offenders) that began in the 1970s, along with the trope of government bureaucratic bungling which made any crime policy not built of brick and mortar apparently unreliable.  Creating a just and legitimate alternative to mass incarceration will take a lot more than "freakonomics" (which is closer in spirit to what got us into it), especially political and moral discourse and struggle about what mass incarceration meant.

• The war on drugs only accounts for a portion of mass incarceration.  A large and growing share of it is the unnecessary length of prison sentences for violent crimes, including the "unforgivable ones".  While Tierney and his sample of social science elites and politicians steer a wide berth around any possibility of reconsidering LWOP and other long sentences for violent crimes, reforms that fail to do so will leave us with a system that looks a lot like mass incarceration, maybe a third smaller (per Professor Levitt's preferences, against 5x increase since 1970), perhaps even more racialized, and because of the significant role of health care costs, perhaps not much cheaper in the long run.  More importantly, unless we deconstruct the historically situated (but now forgotten) fears that underly our extreme sentences for violent crime, it will be easy for policy entrepreneurs to promote new wars on drugs and related forms of deviance in flusher fiscal times.