Justice Anorexia? Why We Imagine Our Courts to be So Lenient

Anorexia Nervosa is an eating disorder that leads sufferers to undergo often life threatening disciplining of their food intake in an effort to ward off imagined obesity. Something similar seems to beset our collective penal imagination. Despite decades of growing penal severity that have given us the world's largest prison population (and not just in per capita terms) and the most severe sentences, most Americans still imagine our courts to be the leaky and lenient institutions they were (unfairly) depicted as being in 1970s backlash movies like Dirty Harry (1971). As our justice system comes instead increasingly to resemble the hardened core of the robotic killing machines in the Terminator series, our ability to set proper limits to our own quest for security is very much in question. The political logic of this cognitive bias was on display this week in the growing controversy over whether or not terrorism suspects should be tried in civilian federal courts, or instead subjected to military tribunals such as those that very occasionally have operated at Guantanamo.

As Scott Shane ironically notes in the opening to his excellent wrap up article in the New York Times, John Walker Lindh, the so-called "American Taliban" who was tried in a federal court received twenty years (in a plea bargain to avoid possible life in prison), while David Hicks, an Australian Jihadi with a similar profile ended up walking away from a Guantanamo tribunal with a sentence of seven years, most of it already served.

On the op-ed page, former FBI special agent, Ali H. Soufan, notes that federal law is plenty tough on supporters of terrorism:

Prosecutors have at their disposal numerous statutes with clear sentencing guidelines. Providing material support, for example, can result in a 15-year sentence or even the death penalty if Americans are killed.

No doubt, much of the criticism of Attorney General Eric Holder for announcing that terror suspects would be tried in federal courts is cynical political maneuvering by Republicans who were willing to remain silent while the same approach was pursued by the previous administration. But the reason it rings true for many people and the media, is because for decades, politicians of both parties, have portrayed the federal courts as perennially "soft on crime."

"Cleaning Up" Cities, Sliding towards American Brasilias

Suburbanization has perhaps been the central feature of the reorganization of power and property in the United States over the past half-century. Contemporary policies of crime control and those of suburban land management are intertwined in myriad ways. There’s plenty of work to be done in investigating dialectics here; some of Jonathan's recent work suggests that homicide has been a central conceptual and material pivot in the post-war period's respatialization of capital-as-real-property. Similarities closer to the surface are patent as well. In addition to managing risk and minimizing security contingencies at the expense of other values historically valorized in Western democracies, both suburbanization and governing through crime have been driven by top-down policymaking, typified by phenomena like Celebration, Florida or the War on Drugs. Both are characterized by master-planning and grand visions of uniformity.

While grandiose, top-down city/suburb planning has been common in the United States since at least the days of Robert Moses, it’s worth noting that this country has never taken on the project of building a modern, “model” major city from the ground up and actually seen it through, as Brazil did in the creation of Brasilia. Geoff Manaugh’s thoughtful architectural blog, BLDGBLOG, recently uncovered a stillborn and forgotten American Brasilia called California City. Designed by Nat Mendelsohn, a real estate developer, sociology professor, and would-be Robert Moses, and meant to “rival Los Angeles,” California City is still the 3^rd largest city in the state in terms of geographic size. But its population has hovered around 12,000, its enormous manmade lake has dried up, and it now lies as a surreal “geoglyph” known primarily as the home of a several-thousand-bed state prison.

It’s hard to imagine what an American Brasilia might look like without ending up with an image of the contemporary American suburb. Even now, the meticulously planned, strictly policed, demographically homogeneous, and decidedly un-urban suburb functions as a sort of psychological retreat for Americans increasingly focused on a perceived crime epidemic (and even for those without the means to utilize it as a physical fortress). Crackdowns by mayors like Rudy Giuliani and Frank Rizzo have perhaps eroded popular disgust with the city since it reached its nadir in the 1980s, but the image of the city as hotbed of crime that must be "cleaned up" and made safe for commerce persists. Indeed, the larger planned cities that still exist in the U.S., like Irvine, California, tend to remain in the low six figures of both population and average income: small enclaves of affluence more than cities per se.

Still, walking around San Francisco’s Mission District, Brooklyn’s Crown Heights, or Chicago’s Pilsen, it’s easy to witness the entrée of suburban commercial and demographic patterns into the city, a sort of white flight back to the urban, epitomized by grand plans like Jerry Brown’s Oakland 10k Housing Initiative. It’s an open question whether we should understand such developments as just another phase in a long line of "urban renewal" projects typified by neighborhoods like Chicago’s Hyde Park (and perhaps, in the shadow of its fallout, Woodlawn) or a new phase, less top-down and more folk, less typified by Moses and more typified by the emergence of a new urban bourgeoisie into the "safer" spaces created by increasingly punitive crime control measures. Social mores incubated in suburbs often governed by strict covenants on land use and xenophobic views of perceived city-dwellers, which promise ever more strict governance of crime, may follow.

It would be a mistake to treat such urban overhaul as nothing more than a symptom of ever-shifting capital, instead of recognizing it as a spectacular historical development with potentially dire consequences. Crime control policies, whether "quality of life" ordinances, omnipresent security cameras, or dragnet-style arrests, continue to play a central role in gentrifying American cities like New Orleans and San Francisco. The worrying aspect of such developments, at least for those of us who would trade the uniformity and perceived security of the suburb for the variety and dynamic unpredictability of the city, is that in spite of the failure of plans like California City, we may end up with American Brasilias, or elite-planned, tightly controlled, suburbanized cities, after all.

Our Rotten Prisons

A Penitentiary-house, more particularly is ...what every prison might, and in some degree at least ought to be, designed at once as a place of safe custody, and a place of labour. Every such place must necessarily be, whether designed or not, an hospital -a place where sickness will be found at least, whether provision be or be not made for its relief.

Jeremy Bentham
The Panopticon, Letter VII Penitentiary Houses-Safe Custody, 1787

Whatever you think about the worth of imprisoning felons on the wholesale basis California has since the early 1980s, whether you consider yourself "tough on crime," or a "bleeding heart, blame it all on society" type, if you live in California you ought to be pissed off at the atrocious prisons the state built in the intervening decades. In the name of housing prisoners as fast and as cheaply as possible, we built prisons that are impractical and dysfunctional, and which may now require billions to be spent in medical upgrades.

It was common sense more than two hundred years ago already, that if you are going to put people in a prison you need to plan for three things.

1. Provide safe custody

2. Provide a place for labor (or perhaps learning) to keep the prisoners peaceful if not productively contributing to their upkeep.

3. Provide medical care for a population that whether from self abuse or poverty (or both) is always a lot sicker then the general population.

These simple truths guided prison design across the globe until California's leadership committed itself to a reckless policy of warehousing its felon population as fast as possible in state prisons designed for nothing but maximizing custody capacity. The resulting prisons are not safe, cannot provide labor or any other kind of programming on a regular basis to most of their inmates, and now famously is incapable of delivering constitutionally adequate health care to its incarcerated population.

The next Governor of California will have a good basis for washing his or her hands of this mess. Jerry Brown was the last Governor to preside over a pre-mass incarceration prison system, one that functioned well at a comparative pittance. Meg Whitman and Steve Poizner come from the private sector and can claim (I hope) to have never signed off on such stupid investments as California's prison building boom of the 1980s and 1990s. Whoever is elected should take three first steps.

1. Repudiate mass incarceration and honestly explain to the public that as presently constituted, California's prisons are a poor investment in public safety and an unsustainable burden on our fiscal condition.

2. Cease appealing the Plata/Coleman 3-Judge order to reduce CDCR's population by at least 40,000 inmates in two years and announce that your administration will seek to push reductions even further by redirecting non-violent felons and parole violators to probation and where necessary, county jails, all of which will be supported by state funds currently spent on prisons.

3. Plan to close at least 10 of the worst designed and situated prisons completely within five years. The remaining prisons should be those best capable of meeting Bentham's 3 minimum requirements. This should allow the state to avoid any major investments in new prison hospitals and dramatically cut the prison share of the budget. While a major portion of the savings should be redirected to counties to pay for additional probation and police officers, savings should if possible go to higher education and to meeting the health care needs of California's non-incarcerated population.

Healing the Prison Crisis

Transitions Clinic in San Francisco, an outpatient clinic serving the health needs of Californians on parole and probation, is a great example of one of my mantras, the solution to our penal crisis, won't come from anything penal. Enlightened penal policies, and the best kinds of criminological research that have traditionally shaped them, will follow, not lead the healing of the prison crisis. The clinic, spotlighted in an excellent article by April Dembosky in the Bay Area edition of the NYTimes, has focused like a beam on one of the deepest flaws in our penal state. The people we incarcerate, may or may not be the most dangerous people in the state, but they are clearly among the very sickest in the state. Years of chronic drug abuse, erratic medical care (both in and out of prisons), have left many prisoners decades older than their calendar age. Under its current policy of cycling parolees and probationers in and out of prison, California has put itself in the trap of both guaranteeing constitutionally adequate health care to this population (under the gun of the federal courts) and placing them in custody situations that make health care delivery fantastically expensive and administratively all consuming. Delivering good health care to people on parole and probation while they are out in the community can create a virtuous counter current where this chronically ill population receives care in a much cheaper and more effective manner resulting in lower costs when they do go back to prison and possibly, when integrated with the kind of additional services that Transitions strives to provide (like referrals to drug treatment and mental health agencies), keeping them from going back to prison at all.

Dembosky reports that clinics like this are spreading. This is good news. A solution to the prison crisis is likely to start outside the state, and outside of penology.

Governing through Crime "Old School" Style in Iran

When I was in graduate school reading the then recent historical research of the late Edward P. Thompson and his colleagues on crime and society in Britain during the 18th century I was thrilled (intellectually speaking) to see how the majesty of the English common law had served to bolster a shaky revolutionary gentry class in its hour of need. Having overturned long settled rural arrangements and modes of social control going back to the Conqueror, this gentry class found in the criminal law subtle tools of terror and moralization that proved enough to settle down a restive and far more risky (for common people) society, but only by investing in law itself as a source of independent legitimacy. This picture of law as a tool of class power, and a slowly tightening restraint on power was so vivid that it took me a long time to recognize the political logic of crime in late modern America, where in my view a very different kind of restructuring of power and risk has taken place in the shadow of fear of violent crime. If we govern through crime today, it is less to intimidate a restive rabble of uprooted country folk jamming into our cities, than it is to reassure a suburban middle class far more vast than the 18th century gentry could have imagined possible. It is this kind of liberal "war on crime" that is spreading from America to Europe and Latin America.

A nice example of "old school" governing through crime, however, is on display in the Islamic Republic of Iran today. Iran's government is responding to the continuing popular unrest stirred up by the highly suspicious June election "landslide" for President Mahmoud Amedinizad, by sending some its reserve of political prisoners to the gallows, where public executions, often of multiple prisoners, is fast becoming the regular medium of politics (read Nazila Fathi's reporting in the NYTimes). The two victims hung yesterday included a 19 year old and a 37 year old, both accused of having plotted to assassinate leaders, based on confessions their lawyers strongly suggest were wrung by torture. Their crime, a capital one in the Islamic Republic, "waging war against God." It remains to be seen whether the courts of the Islamic Republic can wring the other side of the dialectical bargain that Thompson and his colleagues described in 18th Century England, where a ruthless political leadership ultimately invested in the legitimacy of independent courts.

Our "Crazy" Penal State: Why New Rules on Insurance for Mental Health May Reduce Incarceration

Only in America would we rely heavily on jails and prisons to house many of the severely mentally ill whose untreated symptoms have driven away family and whose pursuit of self medication brings them into contact with crime and law enforcement. Two generations ago we held such people in state mental hospitals. No one intended to transfer them to jails, but a long period of declining social welfare and a war on crime has produced that result. It is thus good news that as of this July, federal law will start requiring health insurance provided by employers to treat mental and physical illness with parity (read Robert Pear's reporting in the NYTimes). For decades, insurance companies have kept benefits in general for mental illness, and hospitalization in particular, at far lower levels than equivalent provision for physical illnesses. In some cases this results in mentally ill people who have insurance coverage, being returned to the streets before they can stabilized.

Since those who end up in jail and prison are less likely to have employer provided insurance (although some dependents will), it is even more important to expand hospitalization benefits provided by government insurance programs like medicaid. Indeed, the biggest single thing Congress could do right now to reduce incarceration would be to pass comprehensive insurance legislation which would begin quickly to cover many of those most at risk of ending up in jail instead of the hospital.

Bail and Punishment: Many Behind Bars Have Been Convicted of Nothing

Most Americans believe that if you are behind bars somewhere it is because you committed a crime. Kudos to NPR's Laura Sullivan for setting the record straight with her stunning multi-part story on bail and jail in America. Bottom line, thousands of Americans languish in jails accused of petty crimes but unable to meet usurious bond fees set by bondsmen (an ominous if old fashioned term for an industry comparable to the payday loan business) while in aggregate, local and state governments spend 9 billion dollars a year housing people who pose little threat and who have not been convicted by anyone but a police officer thus far. In today's piece, Sullivan's interviews with Shadu Green, a New York City resident arrested for being belligerent to the police, underscore how this invisible system of control processes many new convictions by forcing the arrested to choose between languishing in jail for months, or accepting a guilty plea that may get them out sooner.

While Sullivan emphasized the role of bail bond companies in lobbying local government to keep the current money bail system in place, this all too familiar circuit of enterprises exploiting the poor with the help of government needs to be seen in the context of the broader structure of fear based governing through crime. While bail bond enterprises may well be effective at buying cooperation from judges and county administrators, it is hard to understand why state legislatures, who control the ultimate statutory levers, would choose to leave millions on the table for benefit of local businesses. Like correctional officers and prison construction companies, self interested politics works because of a structure of beliefs about those arrested and processed by our criminal justice system that has become part of what sociologist David Garland would call the "common sense" of high crime societies (in the book, The Culture of Control).

1. Most people arrested by the police are criminals who are guilty of something (whether or not clever defense lawyers are able to get them off on technicalities).

2. The courts routinely let dangerous criminals out almost immediately, rendering the work of police largely futile.

3. While on the streets, these unconvicted criminals return to committing crimes, perhaps a faster clip to earn enough to pay off their defense lawyers.

4. No one in the community is hurt by the absence of these presumptive "predators".

As Sullivan's reporting shows, all of these assumptions are questionable.