The Blood on the Tracks: Obama's rich white Willy Horton

In the era of governing through crime, appearing to tolerate any person linked to an act of criminal violence, no matter what its motivation, how long ago, no matter even the absence of a criminal conviction, has been a mark of disloyalty to the American people inherently disqualifying to anyone seeking high office. When Mike Dukakis refused to embrace the death penalty, he indicated that he recognized some humanity in those who have committed heinous acts of murder, a recognition that marked him as unreliable. Bill Clinton was widely viewed as advancing his presidential ambition when he declined clemency to Ricky Rector, a brain damaged Arkansas death row inmate, whose execution coincided with Clinton's rebound after the early damage of the Gennifer flowers affair had harmed his electability.

The right wing attacks on Barack Obama for his tenuous link to former radical activist, and long time Chicago based educator and youth advocate, William Ayers, which surfaced in Wednesday night's Democratic debate, represent the same logic and highlight an early moment in our evolution toward governing through crime in America (see the Chicago Tribune's initial coverage).

Because Ayers was accused of planting bombs as part of the Weather Underground's ill-fated efforts to use dramatic escapades of largely symbolic violence to mobilize opposition against the Vietnam war, he belongs to the foundational moment of our contemporary crime based political order. Richard Nixon's "law and order" election victory in 1968 did not begin the rise of crime politics (in the book I place it in the early '60s, while social scientists like Katherine Beckett, Naomi Murakawa and Lisa Miller convincingly show its development from at least the 1940s if not even earlier in the debates about anti-lynching legislation at the turn of the 20th century), but he did give it a decisive twist toward a focus on the forceful repression of dangerous individuals bent on violence, over the social strategies of the Kennedy and Johnson administrations. Ayers and his comrades in the armed wing of SDS played into this criminalization of politics unwittingly but fatally. Violence was very much on the minds of Americans in the late 1960s, but Nixon framed it in terms of crime rather than social conflict, the predatory behavior of bad people (a later President would call them "evil doers") rather than corrupt institutions of state and local power which were channeling struggle for social change into violent confrontation with authority.

Ayers, the son of wealthy white Chicago entrepreneur, who followed his social conscience into an increasingly despairing struggle for social justice, was forever framed by the war on crime in a way would be repeated again and again over the coming decades on men (and sometimes women) of all races, classes, and political creeds. He represents a criminality that cannot be contextualized in terms of motivation, history, or subsequent behavior. On this logic, the fact that Ayers was never convicted of the violent acts attributed to him, nor the fact that he has spent the following three decades advocating for juveniles growing up in poverty (with no further accusations of crime), matters.

Obama is right to turn this attack rather than joining its invitation to redeem the sad history of the New Left. The fact that Ayers, part of an academic power couple with an extensive social network in Chicago's south side, held a fund raiser for the fledgling state legislative candidate in the area, tells you something about Ayer's political views today, but nothing about Obama's. Let us hope that as President, Barack Obama can lead a sea change in our political response to the violence and despair that once again haunt America, one that looks beyond the stale narrative of uniformly evil and efficiently predatory moral outlaws that has captured our national political conversation for decades too long. Hillary Clinton has demonstrated unambiguously why she cannot be the President who leads that change.

The Color of Crime: Brown or Black, Mayors still find Governing through Crime Works

As Los Angeles Mayor Antonio Villaraigosa prepares to make his case for a second term in office, it is clear that governing through crime remains the path of least resistance, even for the city's first Latino mayor in over a century. Villaraigosa came to office with bold talk about turning around LA's schools. But gaining control over the LA schools proved too difficult a task. Instead, seeking to show effectiveness, the Mayor has recently sought to consolidate citywide efforts to combat gangs in his office. Here, in contrast, Villarigosa has won a rare victory, winning a city council vote last week consolidating responsibility for fighting gangs to his office (read the CBS News story on the council vote). Thus even when a mayor comes to office with ambitions of exercising leadership in areas like education, the environment, or the economy, they are often thrust back on crime control as one area in which their quest for more authority is likely to be least resisted.

Soros and Democracy

(Joel Saget, Agence France Press, Getty Images)

Today's New York Times Business section leads with an elegant black and white photo of the 77 year old face of George Soros, the global financier and philanthropist, with the story below headlined, The Face of a Prophet.

The article profiles the apparently widening gap between the Hungarian born Holocaust survivor's amazing financial acumen which continues to earn billions of dollars in the face of global economic problems, and his seemingly doomed quest for respect as a major economic theorist. His most recent book, his 10th, analyzes the sources of the current economic crisis, what he considers the worst of his lifetime (which includes the Great Depression).

Whatever the fate of Soros' economic theories, history will likely recall him for his striking commitment to democracy on a global scale. What is most impressive about Soros' efforts to be a prophet of (and finance) democratization, has been its specificity to the problems of democratic formation in different societies. In the former communist countries, his efforts focused on property rights and free speech. In the US, he was one of the first to see that the war on crime (and now terror) was endangering democratic institutions. Through the Open Society Institute Soros has for the more then a decade highlighted the danger that fear of crime and rampant mass incarceration was posing to American democracy. (A Soros Senior Justice Fellowship helped finance my time to research the book Governing through Crime, published last year, back in 2000)

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