Governing Corporate Crime

The editors of the New York Times this morning highlight one of the most glaring contradictions in the entire culture of control and fear in which Americans have come to live: the flagrant pattern of "leniency" toward deviance and even crime at the level of corporations. See, Going Soft on Corporate Crime.

The Bush administration, with its existential commitment to certain punishment when it comes to downwardly mobile criminals, has shown an unmistakable zeal to compromise when it comes to corporate malfeasance. Bush is hardly alone. The US Supreme Court, which has taken a very deferential approach toward interfering with the power of juries to hand down death sentences and long prison terms toward human criminals, has become increasingly aggressive in intervening to limit unjust punishment of corporations through "punitive damage" awards by juries.

While this pattern would seem consistent with a rather economistic Marxism (state as the central committee of the ruling class) or a descent (as the NYT editors suggest), into a new kind of patronage politics) there are a few more general patterns worth noting.

Governing through crime has been most limited where particularly strong organizational power counter-balances the general growth in law enforcement power. A good example is the Catholic Church which continued to exercise leniency toward sexual abuse by priests long after the general society was having a moral panic about sex abuse.

Governing through crime has been more limited where other regulatory structures have created a different model of dispute resolution that resists assimilation into the logic of crime control. The learned professions and organized labor continue to enjoy vigorous forms of non crime oriented regulation. The world of the severely mentally ill, in contrast, was largely abandoned by civil regulation in the 1960s and has come largely under the domain of crime control leading inordinate numbers of those suffering such illnesses to end up in prisons and jails.

Most importantly, resistance within the federal government to heavy prosecution of corporate crime reflects the heightened sensitivity that both class and patronage have given politicians and lawyers when it comes to understanding the enormous collateral consequences of crime control. Indicting a corporation can lead to a financial meltdown for its employees, creditors, customers, and in the general community. No wonder US Attorney's do not want to be known locally for brining down large local employers.

The real questions we should be asking include the following:

Where are the robust forms of civil regulation that the New Deal gave us to control corporate greed?

How can we extend the same sensitivity about collateral damage toward the poor and middle class communities governed through crime?

How the Wall ate the Law

Adam Liptak's Sidebar in the Tuesday NYTimes profiles the little discussed law to construct a wall or fence along the Mexican border and its inclusion of a virtual legal neutron bomb that suspends all other federal laws if the Secretary of Homeland Security certifies that they interfere with construction of the wall. The placement of law and court stripping powers in the hands of crime warrior figures within the executive branch is quintessential governing through crime.

See a post on this at my Berkeley Jurisprude blog

The Power of the Purse: How the Feds Drive Local Law Enforcement

Since its origins forty years ago with the Omnibus Crime Control and Safe Streets Act of 1968, the war on crime has been fomented by the federal government. While states have done the hard work of building and filling prisons, the federal government has helped build both public demand, and the revenue resources, to lead states into escalating crime wars.

Sometimes these overt efforts to buy the attention of local law enforcement and prosecutors, overriding the constitutional order of local choices about police power, come to surface in embarrassing ways. On Monday, San Francisco DA, Kamala Harris issued a statement promising a full investigation of why her office took over 5 million dollars of federal money since 2004 as part of the Southwest Border Prosecution Initiative intended to compensate local prosecutors for prosecuting border enforcement related crimes. (Read Jaxon Van Derbeken's story in the SFChron) Cracking down on immigrants is not popular in liberal San Francisco, but that didn't stop the office from being the largest grant recipient in Northern California. Of over 2,000 cases submitted to the federal auditors, none was a genuine "border crime," according to the feds. Harris vowed to investigate the office's use of grant funds and the basis for their claim that in the absence of active prosecutions of border related crimes

War Crimes and Crime Wars

The Bush Administration added another terror suspect to its emerging line up of planned war crimes trials before military tribunals in Guantanamo Bay Cuba. Ahmed Khalfan Ghailani stands accused of central involvement of the bombing of the US embassy in Tanzania in 1998, a crime for which he was indicted then a decade ago. Captured in 2004, Ghailani will now get the post-9/11 treatment along with 9/11 planner, Khalid Sheik Muhammed. The announcement suggests the administration is planning to make sure that the rest of this election year will focus on its preferred topics, the existence of men intent to killing scores of Americans at a time and the appropriateness of torture, limited due process procedures, and ultimately the death penalty for doing justice in such cases.

Read William Glaberson's reporting in today's NYTimes

It's Not Apartheid, It's Security

“The basis of separation is not ethnic since Israeli Arabs and Jerusalem residents with Israeli ID cards can use the road,” argues Dore Gold, president of the Jerusalem Center for Public Affairs, a conservative research organization. "The basis of the separation is to keep out of secure areas people living in chaotic areas."

Israel's increasingly malignant 40 year occupation of Palestine provides an ongoing mirror for the consequences of governing through crime. For most of those years, the Israeli governments have insisted on treating an apparently insolvable political conflict as a manageable security problem (with some moments of insight like early Oslo). But as security increasingly demands the destruction of democratic ideals that have been central to Israel's state building project, the slow deformation of institutions is becoming apparent. The Supreme Court, long a check on the power over the military and state to govern autocratically in the name of security, has with increasing frequency accepted practices of gross categoric inequality as necessary accommodation to the permanent state of tensions that followed the second intifada and the breakdown of the Oslo process.

The most recent decision, reported by Ethan Bronner in this morning's Times, upholds the exclusion of West Bank Palestinians from a highway running through the area on land taken from private Palestinian land owners.

White Americans have also increasingly accepted a state of defacto hyper-segregation, even while celebrating Martin Luther King's birthday as a national holiday, all in the name of necessity of separating the orderly from the chaotic and dangerous.

Department of Corrections

This mornings papers and radio news is covering the "return" of former SLA radical Sara Jane Olson to a California prison just days after her release following six years in prison. According to the Department of Corrections they made a mistake in calculating her sentence back in 2004, and she really needs to serve an additional year, with release now scheduled for March 17, 2009. According to the SFChron coverage by Carolyn Jones and Bob Egelko

"The department is sensitive to the effects this has had. The department sincerely regrets the mistake," said Alberto Roldan, chief deputy general counsel for the Department of Corrections.

California's massive and catastrophically poorly managed prison bureaucracy (read many of the previous posts on this blog concerning California's prison crisis) is now actually called the "Department of Corrections and Rehabilitation" in testament to Governor Schwarzenegger's original zeal to try to alter the state's policies of warehousing people in prisons. However the Sara Jane Olson story gives new meaning to the department's "correctional" mission. Can an agency incapable of calculating a determinate sentence (fixed term, minus time reductions for good behavior at a fixed rate) undertake anything as complicated as trying to rehabilitate prisoners damaged by life times of child abuse, educational failure, poor lifestyle choices, and chronic bad health? Indeed can an agency incapable of calculating such a sentence undertake to safely house, feed, and care for nearly 170,000 adult human beings?

The answer to both questions is clearly no.

The sad truth is the Department, swaddled in the state's tough punishment at any cost political philosophy, has not been held accountable for any kind of performance objectives for so long that it has created a chronic culture of incompetence that could well explain this sad mistake and may account for thousands of unreported or undiscovered errors (shall we do an audit now and at least figure out who we are holding past their release date?).

It is also certain that this "mistake" was discovered because of the extraordinary pressure placed by the law enforcement community (cops, DAs, COs), by far in a way the most powerful and privileged special interest group in the state. Law enforcement has long viewed the state's prisons and execution chamber as a special zone for their personal vengeance against those among the mass imprisoned hordes, mostly characterized by luckless incompetence, whose crimes have personally affected members of that community.

At the Heart of White Resentment

"So when they are told to bus their children to a school across town, when theyhear that an African-American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed, when they're told that their fears about crime in urban neighborhoods are somehow prejudiced, resentment builds over time."

Senator Barack Obama, March 18, 2008, Philadelphia
(read the entire speech in today's NYTimes )

Like a specialist who combines brain surgery with psychoanalysis, Dr. Barack Obama reached into the souls of white folks yesterday in Philadelphia and displayed, as if in anatomy lab, ugly and wiggling, still very much alive, the viscera of white anger about race in America.

And at the very heart of that tangle was fear about crime in urban neighborhoods. Obama named two other iconic sources of white political heat (and not surprisingly, the very stuff of racial wedge issues in American politics) busing and affirmative action, but busing itself was very much about fear of crime and the outrage that white parents felt (and feel today wherever its active) they were being forced by government to expose their kids to risks of crime in neighborhoods they had sought to separate themselves from.

For white Americans since the 1960s, urban crime has appeared as a kind of civil war or insurgency directed against them. In return they have authorized a war on crime that has often been nothing short of a real war against minority/majority inner city urban neighborhoods. That reaction and response have dominated American politics and government for two generations. (see my book if you want that elaborated on a bit).

But Obama's insight is so keen that he sees as even a greater burden on the white soul, the perception that this fear reaction and response is itself racist (essentially what Rev. Wright noted in his 3-Strikes sermon).

In far less then the analytic 50 minute hour, Dr. Obama took white Americans right down to the heart of our racial neurosis and offered us a path toward healing.

Stop the war on crime, which is not a reflection of white racism, but a source of racial division.