After the Health Reform Crack Up: Govern through crime?

Former Clinton adviser Mark Penn lays out the case for a Bill Clinton post-1994 model for Obama to come back to the "center" and "swing voters" after the apparent crack up of his signature health reform initiative. Whatever the politics of swing v. base voters going into rather than coming out of a mid-term congressional election (which may be important) it is also worth remembering that what Clinton did in that period was to help enact some of the worst pieces of crime legislation in the history of democratic societies including a host of new federal death penalties, the Anti-terrorism and Effective Death Penalty Act of 1996, the Prison Litigation Reform Act, and many other laws that helped the states achieve unprecedented prison populations during an era when crime was already declining.

Fortunately the public is not as primed for a crime centered populist swing as it was in 1994 with the murder of Polly Klass driving the media. Still, it is hard to see where, other than in punishing despised criminals, the two parties can agree on strong sounding laws. In that spirit, and tongue only partially in cheek, look for the some of the following to take up all the extra time the Senate will have on its hands after health reform is off the table:

* A federal death penalty for insurance executives whose decisions can be shown to have shortened the life of an insured (now that's a "death panel" baby).

* LWOP for Bank executives who short their own client's position.

* Lifetime Sex offender registration and notification requirements for public office holders who commit adultery while in the District of Columbia.

The Paradox of Security in Disasters: Suffering, Looting and Delay in Haiti

As the days have passed since the devastating earth quake struck in Haiti a week ago tomorrow, two themes have dominated the media coverage: when will water and food reach the struggling survivors in the streets of Port au Prince and when will the violence start. I'm worried, and I hope I'm wrong, that our national obsession with crime as the number threat (which we have spread to much of the rest of the world) is bringing these two themes together. Is the slow pace of aid being driven in part by the the priority that security is receiving?

I am not reassured by the quotes coming from American military personnel on NPR's Morning Edition today, questionable homilies about how law and order is the necessary prerequisite for all other aid. Is that right? The people of Haiti seem to have done a pretty amazing job remaining calm and dignified in the face of unbelievable suffering and death (generally demoralizing forces one would assume). The only violence reported in this morning's reporting by Damien Cave and Deborah Sontag in the New York Times, involved the summary execution of looters by Haitian police. Perhaps unchecked looting would lead to ever more violence, but the long delays in getting water to people has surely added to the potential for disorder when supplies finally reach the desperate.

I trust the military's own disaster specialists more than I do the US media which has been expectantly waiting for outbreaks of violence since the day after the quake. As we saw in the coverage of Hurricane Katrina and New Orlean's, the US media looks for a crime story first; especially when a national drama is playing out in an urban area and when the protagonists have dark skin. In that case, a city's remarkable dignity and courage were obliterated in a near "white-out" of mostly false crime reports. Hopefully that will not happen again. Hopefully, the aid workers and the military's logisticians are listening to the reports from the ground and not the cloud of crime expectation.

Governor True Lies

The biggest disappointment in my six years back in California has a name, Arnold Schwarzenegger. When he rousted Gray Davis in the recall I was amused (Davis was as stalwart a supporter of the penal state in California as it ever had, I was glad to see him go). When he settled prison lawsuits, called the parole system broken, said we had to stop warehousing people, and renamed the prison system the Department of Corrections and Rehabilitation, I got excited. With California's epic prison condition lawsuit bearing down on the state, and a governor who understood that mass incarceration was hurting the state, a major shift seemed to be in the offing. Smaller turns have happened in states like Michigan, New York, and even Texas. May be, with an action hero at its helm, my Golden state was about to do an even bigger one.

Six years later we have a prison system that is marginally smaller (crime is down as well) but even more expensive, just as ineffective at delivering rehabilitation, and with no solution in sight. Instead of working with the courts, the governator has gone for every rhetorical anti-federal court trope in the Jim Crow play book. Still, sucker for rhetoric that I am, I was stirred by his final state of the state address in which he called for a constitutional amendment to place prison spending under higher education spending. As I noted in my previous post, the premise behind this promise, that prison costs could be reduced rather than prison populations shrunk, was flawed, but the vision was the right one for beginning a public conversation about the state's priorities.

Now comes his proposed budget. Maybe all such documents are political, but that doesn't mean they are phony. If its prison spending provision is any clue, this one is phony through and through (read the analysis by Wyatt Buchanan and Marisa Lagos in the SFChron). The Governor promises a $1.2 Billion dollar cut in prison spending, but $811 million of that comes out of prison health care spending directed by the federal court's receiver in the Plata case, a cut that the federal court could simply reverse if it ever had to (and remember the court orders on health conditions stand whether or not the current population cap is overturned).

In a year Arnold Schwarzenegger will be gone (he won't have to move since he never left Venice Beach). He will almost certainly be replaced by someone with just as little commitment to fixing our toxic incarceration problem, but probably not one that will make big phony promises to fix it and in this mean season, for me at least, that is an improvement.

[cross posted at prawfsblawg]

A War President, Not a "State of Seige" President

Here is what I voted for:

"Great and proud nations don't hunker down and hide behind walls of suspicion and mistrust. That is exactly what our adversaries want, and so long as I am President, we will never hand them that victory. We will define the character of our country, not some band of small men intent on killing innocent men, women and children."

President Barack Obama, Remarks by the President on Strengthening Intelligence and Aviation Security, January 7, 2010

Schwarzenegger Calls for Prioritizing Higher Ed over Prisons in the State Constititution/9th Cir. Strikes down Washington's Felon Disenfranchisement

Governor Arnold Schwarzenegger used his annual state of the state address to call for a constitutional amendment to guarantee that at least 10 percent of the state's general fund revenues go for higher education, while prison expenditures are limited to 7 percent. [read his press release]. The Governor stated that expenditures had traditionally been 10 percent for higher education and 3 percent for corrections (actually it was nearly 20 percent when I was a student here). Noting that this year corrections received more money than higher education, the Governor is calling for an amendment that will fix the ratio beginning in 2014.

The proposal is bold and deserves support (although adding yet more layers to our Rube Goldberg state constitution is a problem in its own right). Unfortunately, the Governor seems to envision that this will be achieved by reducing spending on prisoners, not by reducing prisoners. His proposal would also allow the California Department of Corrections and Rehabilitation to contract out to private suppliers for prisons and prison services.

In another important development related to criminal justice, a panel of the 9th circuit held Washington state's automatic felon disenfranchisement law violates the Voting Rights Act (Section 2) because the criminal justice system in the state is "infected with bias" that cannot be explained on race neutral grounds. [read the opinion here]. In perhaps the biggest surprise, the court's ruling applies to felons still in prison (the state had already revised the law to lead to presumptive restoration of rights to those finishing their sentences). I will leave it to others who know the VRA jurisprudence to comment on the panel's reasoning. The most exciting aspect from my perspective is that the court cited empirical work by criminologists Robert Crutchfield and Katherine Beckett for its conclusion that Washington's criminal justice system was racially biased. Crutchfield's report was apparently based on analysis of arrest and sentencing data (Blacks are 4 times more likely to be arrested for a violent crime, but 9 times more likely to go to prison). Beckett's research showed that drug arrests focus on crack, outdoor dealing, and downtown drug use, all factors that lead to a disproportionate impact on minorities. Whatever happens to the VRA aspects of this case, it is hard to believe that this data will not be used to challenge other aspects of Washington's criminal justice system.

[cross posted at prawfsblawg]

Punishment in California: the Long View

As I'm preparing to teach my favorite class at UC Berkeley this spring (Legal Studies 160: Punishment, Culture, and Society), I've been thinking about California's twisted penal history and the man who knows it the best, the great John Irwin, the legendary prison sociologist (and convict criminologist before that had a name). John's life runs like a river through the hopes and fears of the Golden state from end of World War II to the present. He served time at a California prison for auto theft, earned a doctorate in sociology at UCLA, was a leader of the transformational prisoners rights movement of the 1970s, and a great public intellectual and educator at San Francisco State University for most of the last forty years.

Irwin's many books have definitively characterized California's (regrettably) influential penal devolution from the optimistic "correctional institution", whose contradictions and fate were brilliantly dissected in the book Prisons in Turmoil (1980), to the cynical and vicious "warehouse" prisons whose current crises Irwin foretold in The Warehouse Prison: Disposal of the New Dangerous Class (2004). Most recently Irwin has been documenting the lives of California's burgeoning "lifer" population in Lifers: The Long Road to Redemption (2009)

2009 has been a bitter year for those of us who hope to see California unlock itself from the nightmare of mass incarceration. The executive has used the fiscal crisis to drag its feet on fixing intolerable prison conditions, and the Democratic controlled legislature failed to pass even modest steps toward sentencing reform. As a faded reform governor limps off stage, those contending to replace him in both parties barely acknowledge our penal crises. Now, to top it off, I learn that John Irwin, whose prison hardened build and boyish good looks never faded, is ailing.

Still, on this New Year's Eve, I'm taking the long view, and trying to think, like the great John Irwin, about our current crisis, as well as the opportunities it creates to forge a better democracy and a freer state. I'm going to dedicate my class this spring to that crises and how this generation of California students can solve it. For the first time ever, the class will be available to the general public through podcast of the audio and power-point slides, so I'm going to invite all of you to participate (look for the syllabus and links in a couple of weeks).

I'm also going to hope for a least a couple of John Irwin guest lectures.

Happy New Year.

Crime Decline Conundrum

With aviation terrorism and a still lackluster employment market dominating year end headlines, the one piece of good news appears to be a fairly widespread decline in homicides in major cities. New York, as trumpeted in yesterday's NYtimes (read Al Baker's reporting) had a year with fewer homicides than any year since 1963 (essentially before the modern crime wave was evident). San Francisco also reported a record drop (read Jaxon Van Derbenken's article in the SFChron) to as low as the city has seen since 1961 (take that New York), and after a series of rather violent years in the middle of this decade. Chicago and LA have also reported declines this year. Providence, was one of the few cities reporting a homicide "spike," with the addition of two dead this week in a drug raid that also left three police officers wounded (read W. Zachary Malinowski's reporting in the Providence Journal). This is good news in a year with little of it.

The journalistic lead is that this is happening despite a severe recession (the man bites dog angle). Whatever the intuitive appeal to the notion that bad times generate crime, few criminologists believe it is a clean relationship. In many respects, times are always bad in those communities that experience the highest levels of crimes like homicide, aggravated assault, and robbery. This, not surprisingly, does not stop police chiefs and mayors from claiming credit (at least if they've been on the job for more than six months) whatever the hazard that their policies might be blamed when crime begins its inexorable return (like most gambles, it probably makes sense in the short term context of political survival). But even criminologists, this one included, are not immune from believing that, combined with the substantial crime declines of the 1990s, and the relative stability of crime through most of this decade, this end of decade crime decline could mark a longer term shift away from the pattern of high levels of gun violence concentrated in cities that has defined urban life for the much of the past forty years. What would drive such change? Here is a New Year's speculation list of the top three "positive" factors underlying declines in urban violence.

May they all continue in 2010!

1. Bottoming out of the de-industrialization of American cities that began in 1946 and continued through the 1980s. Even if new economic engines of prosperity have not exactly re-emerged in many cities, the process of losing existing assets has run its course.

2. Demographic diversification of urban neighborhoods through immigration and in-migration of suburbanites fleeing unsustainable lifestyles.

3. Better trained and motivated police forces.