Miscarriages of Justice: In an age of governing through crime it's more important to come up with someone than to get the right one

For years I thought this was a trivial issue. The real problem with American justice was our zeal to over-punish the guilty (especially those guilty of largely preventive crimes). Errors must occasionally happen in every system, but given the growing budgets and training of police, such errors must be decreasing, right?

Wrong. Now I believe wrongful conviction is a robust and persistent feature of contemporary law enforcement. Check out two stories in Sunday's New York Times that describe very typical patterns seen in such cases (Brenda Goodman on the Troy Davis case; Peter Applebome on Richard LaPointe's case -requires Times Select-).

I believe that wrongful convictions may be going up despite better training of police and more legal representation for defendants than was true in the past. Rather than being aberrational, such events are highly predictable and driven by several features of governing through crime:

1. Once crime was upgraded to a "war," it was inevitable that rule-based limitations on police would be internally undermined. If you are in a war against a criminal class then it does not matter whether you get them for trivial crimes or serious ones, whether the evidence is persuasive or whether it has to be doctored. If the way to reduce crime is to mass incarcerate this "criminal class," questions of guilt are inevitably technicalities.

2. Mass criminalization of social problems like mental illness, homelessness, and poverty, means that most jails and many poor neighborhoods are packed with people who can be pressured into giving false testimony in order to avoid lengthy jail sentences. Because so many of these crimes are prosecuted on a racially selective basis, if you are Black or Hispanic, the odds that somebody in jail (or rounded up the street) will know your name are much higher than for whites.

3. In an age of governing through crime, police and prosecutors face much more pressure to "solve" violent crimes, especially when they happen to victims who, because of age, race, or social standing, become magnets for the media.

For a fuller analysis, check out the following online "work in progress":
Jonathan S. Simon (April 26, 2007) Recovering the Craft of Policing: Wrongful Convictions, the War on Crime, and the Problem of Security

Back on the Gang Chain

Gangs and SF City Attorney Dennis Herrera were back in the news today (read Bob Egelko's reporting in the SF Chron). Herrera was seeking the civil injunctions against gang members that would restrict their movements in certain neighborhoods of the Mission District and Western Addition, which he talked (and we blogged ) about last month.

Mr. Herrera used the occasion to get off more tough talk on youth homicides.

"The San Franciscans caught in the cross fire of gang violence are all too often our most vulnerable residents: children and youth, seniors and immigrants,'' Herrera said in a statement. "We have a moral obligation to them to do everything the law allows to target and disrupt the activities of criminal street gangs before they escalate into still further tragedies.''

These measures closely parallel an increasingly common feature of the United Kingdom's brand of governing through crime, the Anti-Social Behavior Order (or ASBOs as they are affectionately called)

The Crime and Disorder Act of 1998 allows British courts to issue orders against behavior "which causes or is likely to cause harassment, alarm or distress to one or more people who are not in the same household as the perpetrator." This flexible instrument of government can turn any behavior that makes us apprehensive of crime, into a crime.

While America currently lacks a statute like the Crime and Disorder Act (for how long?), creative city attorneys like Dennis Herrera can accomplish much the same thing as the ASBO. In both cases, the power to create new crimes, traditionally a legislative power, is handed to the executive to use on an individualized basis against anyone they believe the public fears (in the UK that has included teens wearing hoodies to the mall).

Personally I doubt that someone as smart as Dennis Herrera really believes that these legal orders will stop young gang members from killing each other (maybe they'll have to BART over to Berkeley to do it). But they will document Mr. Herrera's will and ability to turn the fears of his constituents into his own novel legal powers. In the age of Governing through Crime, that kind of performance can help qualify you for much higher office.

"Pedophiles will start using dogs to lure children..."

Living in the land of governing through crime, there is no issue, not even dog leash laws, that will not ultimately be framed as a question of whether it helps victims or predators. See Cynthia Hubert, The Long Leash of the Law.. in the Sacramento Bee.

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."