More Comparative Governing through Crime

Courtesy of Elizabeth Rosenthal's reporting in the New York Times, with today's contribution being the news that a second death sentence handed down on a Palestinian doctor and five Bulgarian nurses has been uheld by the Libyan Supreme Court. The defendants have now twice been sentenced to death based on accusations that they intentionally spread AIDS among Libyan children while doing work at Libyan hospitals in 1998.

The Libyan state's insistence on a death sentence is naturally a show case for its problematic sovereignty, especially given the international community's concern over the trials and sentences. It is especially interesting because medical and governmental failures leading to the spread of the HIV virus, have led to deep erosions of public confidence and produced popular calls for retribution in other states, including France (see Francois Ewald's chapter in Embracing Risk).

From this perspective we might see governing through crime as driven primarily not by crime, but by the continuing inability of modern states to cope with seemingly new (or may be just, very old) risks grounded in biology, chemistry, climate, as well as new (old) political risks like terror. Unless new governance approaches to these threats emerge, we might expect to see the US pattern spread decisively in the coming generation.

Capital Punishment(s)

Today's news carries two striking examples of how capital punishment gets used by quite different regimes to govern in very different ways. Nazila Fahti reports in the New York Times on the execution of adulterers and other "moral" criminals by the Iranian government. Hard pressed by a faltering economy and frustrated young people, the regime appears to be using executions as a way to dramatize its major claim to legitimacy, i.e., upholding the religious values of society.

In the NYT business section, Joseph Kahn reports on the swift execution of the former head of China's Food and Drug Administration what had confessed to taking bribes to authorize certain bogus drugs, apparently leading to some deaths. According to observers, the death sentence was considered harsh given the high rank of the official and the fact that he had confessed. According to Kahn:

...Mr. Zheng’s case appears to have served a political purpose, allowing senior leaders to show that they have begun confronting the country’s poor product-safety record. Shoddy or dangerous goods, including drugs, pet food and car tires, have damaged its reputation abroad, especially in the United States.

While this may work domestically, one wonders whether the Chinese government hasn't simply reinforced the global perception that they respect human life less than their own political and economic fortunes.

Both examples suggest quite different logics of punishment then capital punishment in the US. In each case, capital punishment is serving a non-crime model of the state. In Iran it is the state's religious authority that is being reinforced with capital punishment. In China, it is the state's Confucian position as the father of the nation. In the US, in contrast, capital punishment allows the state to perform a kind of service to individual victims.

Governing through Crime on the Inkwell.vue

Starting tomorrow, July 11, and continuing for the next two weeks Governing through Crime will be a featured discussion on the Inkwell.vue, which is the public discussion site of the pioneering internet community, The Well. My lead off interlocutor is Doug Masson, Indiana lawyer and blogger at Masson's blog - A Citizen's Guide to Indiana. Our conversation will move across many of the issues raised in this Blog and hopefully with the help of The Well and readers across the Web, move into new territory.

Keep checking this blog for interesting links and comments but for those needing a larger helping of discourse, join us at the Inkwell.vue

The spiral of governing through crime: Pushing Illegal Immigration Toward Crime

If governing through crime just meant a set of governmental techniques and mentalities used to address a fixed set of human behaviors known as crimes, it would be at least, self limiting. What is particularly distressing is its inevitable tendency to escalate, to identify and even generate new behaviors as crimes, and to produce as a by-product ever more insecurity about crime. This is what might be usefully thought of as its malignant process. Just like cells that cannot follow the body's normal signals to limit growth become a cancer, governing through crime threatens to continue to spread throughout the body politic.

Case in point, immigration law and enforcement. For decades we have been addressing the issue of unauthorized immigration through a greater emphasis on crime control tactics. But as the structure of enforcement is tightened, it actually pushes many of those immigrants into behaviors that mimic, if they do not actually produce the harm of, crime.

A recent article by Anna Gorman in the LA Times, “Theft of Identity Compounds the Crime," profiles just such a dynamic. As a result of increasing pressure on businesses that hire illegal aliens, more employers are adopting the Department of Homeland Security's Basic Pilot program which enables them to quickly discover whether a social security number presented by an employee is valid. The tactic is forcing illegal immigrants who want to obtain jobs to purchase real social security numbers. While the immigrants do not generally intend to use that information to create credit card and other frauds, they are participating in a crime that often does produce just such a result and which is increasingly feared by consumers.

Thus the practices of illegal immigrants have moved from a victimless crime to one with real (even if unharmed) victims. The result will be demands for more enforcement against both illegal immigration and identity thefts.

"There is no will in this administration to enforce the law," said Rosemary Jenks, director of governmental relations for Numbers USA, an anti-illegal immigration group. "Every person who is working illegally has committed a crime because they have either used fake documents, stolen documents or they have made their own."

How to reduce violence? Get the Lead Out!

Most people, including those who agree there has been too much criminalization of social problems in contemporary America, assume that serious violent crime problems calls for serious criminal justice solutions. The dramatic declines in violent crime during the 1990s have set off a gold rush of efforts to explain what worked, and most of the answers are criminal justice centered, whether incarceration or better police tactics. A minority have suggested non-criminal justice explanations, including better employment prospects in the 1990s and better access to abortions in the 1970s (the famous Freakonomics explanation). Now comes another explanation in that direction that appears to have good econometrics and, importantly, cross national comparative data (I'm only going on the Washington Post account however).

As reported by Shankar Vendantam in today's Washington Post a new study by economist Rick Nevin suggests that reductions in lead exposure starting in the 1980s closely tracks the locations and temporal pattern of crime reductions in the 1990s. Lead has a documented clinical effect on the brain linked to violence and impulse-control problems. Now Nevin shows that in two very different cycles Americans have been exposed to lead, followed by increases in violent crime, and then by violence reductions after the input of lead to the environment is reduced. The first took place in the early years of the 20th century through the introduction of lead in household paint. The second was automobile based in the post-World War II era. The model suggests that young kids exposed to lead produce higher levels of violence when they age into their crime-prone years. Reducing lead leads to reductions 10 or fifteen years later.

Nevin also has a nice explanation for currently spiking homicide rates in some cities (despite the continued absence of lead from gasoline). Most of this crime, he argues, is being produced by aging recidivists who grew up before lead reductions. That means that our current criminal justice policies, especially heavy use of prisons and barriers to re-entry for ex-prisoners, is itself a major sustainer of violence.

If the best way to govern problems like violent crimes actually lie far from criminal justice, in fields like the environment, it is likely to be even more true of problems like drug addiction, homelessness, and indiscipline in schools.

Reefer Madness

How obsessed with marijuana is this country? Consider the details in a recent SF Chronicle article reporting on a recent study of civil penalties triggered by marijuana conducted by the Center for Cognitive Liberty and Ethics.

Highlights.
“Smoke a joint in Alabama or Oregon, and you can permanently lose the right to adopt a child. Smoke one in Oklahoma, and you're ineligible ever to be a foster parent. Light up in Utah, and get a lifelong eviction notice from public housing.
“Grow a marijuana plant in any one of a dozen states, including California, and you're permanently barred from receiving welfare or food stamps.
“Those laws and others are detailed in the first nationwide study of the consequences of marijuana convictions, in areas ranging from family life to voting and jury service. Researchers headed by a Northern California lawyer said they had found a hodgepodge of state and federal restrictions that seemed to conflict with the overall trend of reduced criminal penalties for pot.”

Other findings included:

-- Possession of marijuana can result in ineligibility to become an adoptive parent in 38 states, and a lifetime ban in seven states. California is not among them.
Twenty states, though not California, allow their agencies to deny professional and occupational licenses to anyone convicted of a marijuana-related misdemeanor, regardless of whether it had any connection to the person's work.
-- Most states make people with any marijuana conviction ineligible for publicly subsidized housing for a certain period, usually at least three years. California is one of only four states with no such restriction. A separate federal law allows public housing tenants to be evicted for any drug-related activity, on or off the premises, by any resident or guest.
-- A 1998 law bars federal grants and loans to any student with a drug conviction. In addition, 28 states, though not California, withhold state financial aid from students with drug convictions, including marijuana possession.
-- In 21 states and the District of Columbia, a conviction for marijuana possession can result in a driver's license suspension for at least six months. California is not among them, but the state suspends a driver's license for up to three years for driving under the influence of drugs or committing a drug crime that involved a motor vehicle. Minors convicted of any drug crime in California lose their license for at least a year.
-- In six states, people convicted of marijuana cultivation and other felonies can be banned from voting for life. In 23 states, including California, and the District of Columbia, drug felons are barred from jury service for life.

The Soft End

A particularly ugly corner of California's on-going correctional health care scandal emerged in the New York Times this morning in a story by Solomon Moore that leads the National Report (read it). In one example, a pregnant prisoner was ignored when she reported to the staff that her fetus had stopped moving. The pregnancy ended in still-birth. The blinding head aches and nausea of a five year old were ignored for six weeks before a hospital visit was permitted and produced a diagnosis of brain cancer. These horror stories involving kids are emerging from a privately managed alternative custody center in San Diego where some mothers of young children are permitted to serve their prison sentences as an alternative to the state's traditional prisons. The women, mostly convicted of drug crimes, live with their young children.

The goal of placing women prisoners with children in custody facilities close to the urban communities where most of them come from has been at the forefront of Governor Schwarzenegger's plans for reforming the state's troubled prison system, and would be supported by many criminologists. But as the troubles reported in San Diego suggest, even the soft end of our harsh penal system comes with systematic cruelty and exposure to terrible risks that we normally do not expect from American government, least of all toward very young children.

It is tempting to try to roll back mass imprisonment by supporting alternative custody strategies and other ways of protecting people from the the worst consequences of incarceration. But as these glimpses from what is the "soft end" of our penal apparatus remind us, the consequences of being governed through crime remain alarmingly severe even for those lucky enough to qualify for an "alternative." Even diversion to new problem-solving courts for drug or mental health treatment, clearly the best news out of the criminal justice system in recent years, leaves people vulnerable to failure and reinstatement of criminal charges and eventual incarceration.

The only solution is to protect people on the front end from being defined as criminals for purposes of being governed at all. That means legalizing drugs and rolling back much of the apparatus of preventive criminalization accumulated over the course of the 20th century. To do so we will have to convince Americans that there are other ways to govern real problems like addiction and mental illness.