Lose it or Pay: Governing the Workplace through Crime

In the latest sign of the governing through crime trend towards favoring sticks over carrots, a growing number of workplaces are fining workers who fail to lose weight or meet other objectives aimed at lowering health care costs. Daniel Costello reports in the LA Times that "some employers are starting to make overweight employees pay if they don't slim down."

No doubt there is a correlation between obesity and the health problems that can drive up employer health costs. Economists might not see much difference between such "stick" policies, and "carrot" approaches that reward employees who do slim down with bonuses. But to overweight workers the threat to lose it or pay is likely to feel a lot different. Like other punitive approaches toward steering behavior, fatness fines are likely to make people feel stigmatized and shamed over a condition that many find very difficult to change.

Moreover, the new policies show just how natural it has come to seem for institutions to treat complex problems as crimes to be blamed on individuals who are punished if they do not conform.

Governor Schwarzenegger Responds to Court Orders in California Prison Crisis

Governor Schwarzenegger's response to the judicial orders on Monday did invoke the eternal dangerousness of anyone in prison but was generally more measured than has been typical of Governors in recent years.

"California prison overcrowding developed over the past 30 years, leading to the current crisis in our prisons. That is why I issued an Emergency Proclamation to address overcrowding and directed the California Department of Corrections and Rehabilitation to transfer thousands of inmates to out-of-state prisons. And that is why my administration and the Legislature enacted AB 900, major prison reform that will reduce overcrowding and recidivism, and change parole policies, without releasing dangerous criminals into our communities.

"Today, the federal judges encouraged the State of California to continue with our efforts to reduce overcrowding and to implement AB 900. The judges said that if we are successful, further population orders will not be necessary. There is no immediate threat of inmate release, which one federal judge noted would be a "radical step."

"I'm confident that the steps the state has taken and will continue taking to reduce overcrowding will meet the court's concerns. At the same time, we intend to appeal these orders to ensure that dangerous criminals are not released into our communities."

Although the Governor continues to invest in the notion that everyone in prison is dangerous and that the task of the state is to keep them locked up as long as possible, the fact that he did not attack the courts more aggressively is a good sign.

Update: California Prison Crisis

Federal judges Thelton Henderson and Lawrence Karlton took a major step yesterday toward putting California's out of control prison growth under a judicially enforced cap. In separate orders that will be reviewed by the 9th Circuit before taking effect, the two judges ordered the creation of a 3 judge special panel (of federal judges) who will be charged with reversing overcrowding either by directly reviewing prisoners for release or creating a court trustee to under take the review. See Solomon Moore's reporting in the NYT's.

As readers of Governing through Crime know, courts have been the one institution of modern government that has shown any resistance to governing through crime and the logic of mass incarceration. However, the usual effect has been to give the executive and the legislature more opportunity to attack the courts as friends of criminals and enemies of the public. Expect some strong rhetoric along these lines from Governor Schwarzenegger later today or tomorrow.

Is Governing through Crime Going to the Dogs?

Ian Urbina reports in the July 23 edition of the New York Times that dangerous dogs’ “mug shots, misdeeds and home addresses went online this month at the Virginia Dangerous Dog Registry, a new Web page modeled after the state’s sex offender registry. It lets residents find dogs in their county that have attacked a person or an animal, and that a judge has decided could cause injury again.”

What is it with this nation’s obsession with online registries of dangerous entities? First sex offenders, (I think I saw somewhere that there were also talking about having registries for illegal immigrants) and now dogs? Its another reflection of how governing through crime has encouraged states to compete for how much they can seem to be doing to make citizens safe from all real or imagined sources of violence. Whether this does produce safety or just more consciousness of risk is an open question.

So far, Virginia is the only state to start this registry (“Counties in Florida and New York have also created publicly accessible dangerous dog registries like the one in Virginia, and legislators in Hawaii are considering one”), but it shows a growing trend among states to include harsher penalties for dogs and their owners. As Urbina reports:

“Created after dogs killed a toddler and an 82-year-old woman in separate incidents in the last two years, Virginia’s registry is part of a growing effort by states to deal with dogs deemed dangerous. Thirty-three states and the District of Columbia hold owners legally liable if their dogs maim or kill, and in 2006, Ohio became the first state to enact a breed ban, though it was later overturned.”

The other aspect of this logic is to turn parents into police officers and transform our communities into crime risk maps. For Virginians at least, a vigilant parent can hop from the Megan’s Law database to the Dangerous Dog’s database and see where to avoid on their morning and/or evening walks and jogs, where their children and dogs should not play. It is not difficult to imagine a map of one’s community (that presumably a private-sector person, not the government, would create, possibly a risk-averse mother) that shows hot spots of risk of all kinds—red blinking dots dangerous dog lives here, dangerous felon lives here, dangerous sex offender lives here; possibly large green patches for gated communities; yellow or orange for schools, malls, department stores like Target, movie theatres, and even grocery stores because that’s where predators will go to prey on people; red for SF’s gang injunction areas, until the entire map looks like a war zone with limited “safe” zones.

Perhaps the one encouraging bit here is that the database is not named after either the 82-year-old woman, nor the toddler, who were killed by dogs in the two years before Virginia created the registry in response.

Is Terrorism a Crime or a War?

In Sunday's NYT Magazine David Rieff points with approval to the efforts of new Brit PM Gordon Brown to move away from the rhetoric of the "war on terror" toward a law enforcement approach. Rieff notes that Americans like John Kerry who advocated a law enforcement approach were dismissed as soft on terror, but that a law enforcement approach is actually better at setting limits to both fear and over reaction.

The problem that readers of this blog will recognize is that in America the battle against crime became a "war" years ago. The same sense of lawlessness and limitlessness that has infused the war on terror has long shaped the war on crime. The problem of wrongful convictions (see below) is a marker of precisely this mentality.

So Rieff is right that the war on terror is a disastrous approach, but in America, crime is not an alternative.

Security as Separation

At the heart of the movement toward mass incarceration on the one hand, and the gating of communities on the other, is an identification of security with spatial separation from those perceived as dangerous.

The latest form this mandate toward risk segregation in space takes in Jessica's Law, the ballot initiative approved overwhelmingly by California voters in 2004 that requires convicted sex offenders to reside more than 2,000 feet from schools or parks. As reported in the Sacramento Bee, more than 2,000 sex offenders paroled from prison since the law went into effect, are in violation of the law.

California Department of Corrections and Rehabilitation Secretary James Tilton, acknowledged that the state does not have the capacity to achieve complete compliance or to subject every such offender to GPS monitoring, also as required by the law.

Beyond the question of enforceability, is the question of why modern Americans associate security so closely with walls and other forms of physical separation. The sex offender who does not live near my child's favorite park, is not necessarily less of a threat to that child.

Governors of Death

One of the ways that the modern death penalty allows governors to position themselves as the representatives of the people as victims, and their demand for security and vengeance against feared predators, is through powers that the governor has to start or stop the execution process.

The most famous of these powers, that of clemency, is rarely used (see Austin Sarat, Mercy on Trial: What it Takes to Stop an Execution). But the non-use, is itself as an exercise of power, one that governors can use to underscore their centrality to the execution that results.

Some states give governors an even more symbolically resonant gesture. Florida, for example, gives governors the power to initiate an execution by signing a death warrant (in other states that power is held by trial judges). Florida's new GOP gov, Charlie Crist (a hard crime warrior who was called Chain Gang Charlie during his legislative careers), signed a death warrant today on Mark Dean Schwab, a 38 year old for the 1992 rape and murder of an 11 year old boy. See the AP story on Yahoo.news

This death warrant may provide the governor something of a bonus. Since it comes after a temporary moratorium declared by former governor Jeb Bush (a huge fan of the death penalty) in response to a botched lethal injection last year, Crist can claim to be a restorer of the death penalty (a role that is particularly powerful for governors, see Governing through Crime, Ch. 2).

Since it comes a time when the Florida Supreme Court is considering a challenge to the new lethal injection procedure it offers an opportunity either to have the Court stop the execution, in which case the contrast with the pro-death penalty, pro-victim governor will add to his power through frustrating it (something that happened repeatedly with Jeb Bush and the Florida Supreme Court of Bush v. Gore fame). Or, if the court refuses to halt the execution, the governor will have demonstrated that the court has been effectively shackled.