Durkheimian Democracy in China?

It is difficult to ponder the facts, let alone the meaning of acts like the recent string of lethal attacks on kindergartens and other schools for young children in China by knife wielding middle aged men (mostly, a woman tried yesterday). Edward Wong's reporting for the New York Times on this story this week included interesting speculation from a Chinese sociologists.

“They choose children because it’ll have the largest negative impact on society,” said Tang Jun, a sociologist in Beijing. He said the attackers did not appear to know their victims personally, so the assaults “must be an expression of their dissatisfaction with society.”

If so it may reflect the counter cycle to the Chinese state's use of punishment (and the death penalty in particular) as a means of trying to be "responsive" to the people in one of the few areas of life where government can take acts that are presumptively in line with popular sentiments but which keeps the state in total control.

This is a different kind of phenomenon than I described in the US context as "governing through crime." Here, after the political turmoil of the 1960s, crime became a privileged framework within which political leadership could govern with legitimacy to respond to the multiple and contradictory demands of a flawed but clearly real democracy. The Chinese model appears to trade more on Durkheim's insight that crimes assault the most deeply shared values of a society and therefore define and re-inscribe its common purpose. In China, where state leaders have chosen to pursue modernization without democracy, crime provides an opportunity for government to act on deeply shared values.

These attacks suggest that individuals can also choose to play the Durkheim card. In a society with little means for holding the state accountable, an individual could choose to commit a crime to shame the state and expose its inability to protect core social values. Since Chinese culture venerates very young children, and China's one child policy makes them particularly acute focus of their parents, the murder of children is a way to shock the deepest chords of the collective conscience. As Wong points out, the Chinese state is already in some trouble in this area.

The senseless suffering of children has become something of an Achilles’ heel for President Hu Jintao and Prime Minister Wen Jiabao. They have presided over an extraordinary economic expansion and a rapid rise in China’s global influence. But they have not been able to keep tainted infant formula off grocery store shelves or to account for why so many public school buildings collapsed during the 2008 Sichuan earthquake, killing more than 5,000 children.

It is interesting that in response to one of the attacks, the Chinese authorities quickly executed a man convicted of a similar attack only a month earlier. But this classically Durkheimian way of closing the cycle and reinscribing social authority may not be working. According to Wong's latest reporting, one of the top Chinese leaders himself spoke on the issue, and promised an investigation into the social problems underlying the attack.

“Apart from taking powerful security measures, we also need to solve the deeper reasons behind this issue, including resolving social tensions, reconciling disputes and enhancing mediation at the grass-roots level,” he said. “We are sparing no effort in all of the above works.”

The quote from Premier Wen Jiabao seems to suggest the government may want to break out of the crime frame into deeper social issues, something quite different from the American dynamic.

Two Cheers for Laura's Law

Kevin Fagan reports on the emerging debate about Laura's Law in California on the front page of today's SFChron. Laura's Law was adopted legislatively in 2003, named after Laura Wilcox, a Nevada county woman shot by a man with untreated mental illness. The law creates "assisted outpatient treatment" as a new alternative to civil commitment in California. Behind the law's enactment, as Fagan sketches, has been two disturbing features of contemporary California life; our grossly expanded prison system that held fewer than 30,000 prisoners in the early 1970s (when the state's landmark Lanterman Petris Short civil commitment reform law went into effect) to over 170,000 today. The fact that at least 15% (and perhaps many more) of these prisoners are suffering from a major mental illness is acknowledged by all. The second feature, whose dimensions are uncertain but whose obvious power over our political imagination requires no more evidence than the popular name of the law, is the plight of Laura Wilcox and other victims of violent assaults by assailants afflicted with severe mental illness.

Laura's law separates the question of compelled treatment from the question of involuntary confinement (the classic form of civil commitment). A court can order a person deemed to be "unlikely to survive safely in the community without supervision" to undergo medication, if they also find that they are "in need of assisted outpatient treatment in order to prevent a relapse or deterioration that would likely result in the person meeting California's inpatient commitment standard." The major problem with the law's implementation, so typical of the state's recent history of revenue free government, is that in order to make it budget neutral the legislature left it up to each county to implement and fund the law (two have, little Nevada, where 19 year old Laura lived, and giant Los Angeles). Proposition 63, enacted by California voters two years later, was supposed to remedy that by enacting a millionaire's tax (again way too typical of our distorted fiscal governance) to fund community mental health services. Only since most counties have never created implemented Laura's law lies largely untapped (except by creative deficit managers in the Governor's office).

Fagan's interlocutors, (many of them involved with the "Lanterman-Petris-Short Act Reform Roundtable" a diverse group of mental health providers, clients, families, and lawyers, exploring our mental health crisis more generally) believe the law would improve this situation. They point to New York, where the earlier Kendra's Law (named for a young woman pushed to her death in the New York City subway) has been implemented since 1999 and where some empirical studies now show substantial reductions in hospitalizations for those in the program compared to those subjected only to the traditional regime of no compelled treatment or full involuntary custody.

Should those concerned about mass incarceration in California support an effort to ramp up implementation of Laura's Law statewide? I'm ready to give it two cheers, but I doubt it will have much impact on incarceration unless its part of a more comprehensive effort to disentangle the mentally ill from our voracious carceral complex.

First cheer; if state coercion is going to be used (through a court) the goal of least restrictive custody should always favor community programs (of course that's been the explicit goal for forty years). De-institutionalization went along with a quantum reduction in state power to intervene legally in the lives of the mentally ill in the 1960s; but while the battle against the asylum system in the 1950s seemed to require tight coupling of the two, today's circumstances may require setting each more independently.

Second cheer, the law moves a step away from the focus on imminent threat of violence (the major focus of the reformed civil commitment standard in California and many states) to the question of whether the subject is on a predictable path toward that condition, a path that could be avoided by outpatient treatment. The civil commitment standard is classic "governing through crime," tying the legitimacy of state intervention to fear of violent crime rather than to questions of need, benefit, accountability, etc.

In the end, I fear Laura's Law is a flawed vehicle for the comprehensive reform we need. Without that comprehensive reform I would predict little change in the incarceration of the mentally ill in California even if the law is extended statewide.

First, the very name of the law traffics in the same fear based logic that has led to mass incarceration in California and elsewhere. Laura Wilcox, like Polly Klass and Kimber Reynolds (3-Strikes), Jessica Lund (Jessica's law), or Megan Kanka (Megan's law) were young middle class white females whose terrible and unanticipated murders devastated their families, shocked their communities, and became subjects of national "moral panics" with little grounding in policy analysis or evidence. Our collective response to the floridly and seriously mentally ill has always combined fear and sympathy (and often a layer of revulsion). The mentally ill are depicted alternatively as the most fearsome criminals or the most vulnerable victims. Our state policies have lurched from confining to embracing to abandoning them depending which one of these stereotypes is prevalent. Laura's law (and many of the current efforts to motivate adoption of a more proactive state posture) seeks to gain legitimacy through invoking the specter of terrible crimes against vulnerable victims, but those same fears block serious efforts to construct the kind of community based infrastructures that would be necessary to effectuate the law's ultimate goals.

Second, the law by itself adds a very weak power to a court system that must itself be reformed to take maximum advantage of what we now know about "therapeutic jurisprudence", that is the mental health effects of law and legal procedures themselves. The law is weak because all it can do to compel compliance is threaten to subject the mentally ill person resisting treatment to the same 72 hour hold that the law currently permits a police officer and medical provider to order when a person presents an imminent threat of harm to self or others. It is doubtful this is enough to gain compliance from those who have rejected existing efforts at voluntary treatment. More importantly, the law's design says nothing about the institutional shape that courts addressing this issue might take. New York has apparently seen some success with its version of involuntary outpatient assistance, but New York beats California institutionally on virtually every aspect of its correctional and mental health systems (but not higher education!). Just because it works there does not mean it will work here without serious institutional reforms.

Ironically, promising institutional designs are being field tested right now at the county level as part of diversion from criminal court. Many of these courts, like San Francisco's Behavioral Mental Health Court, combine a number of elements that have therapeutic value including collaborative case management by a team of legal and clinical specialists who maintain ongoing oversight of each client with regular public hearings before a specially trained judge who bestows normalizing praise and criticism as well as ordering greater supervision or treatment where needed.

Ultimately farther reaching changes must also be considered in the standards governing when the state can compel assistance along with the institutional reforms that would assure the right funding and organization of assistance.

Thanks to Kevin Fagan for front paging this issue. Stay tuned, reform of our mental health system is an important path out of the carceral dead end we are in.

You Have the Right to... What, Exactly?

Today, the Obama administration continued to shore up its Bush-style approach to crime, stating that "terror" suspects should no longer enjoy the protections of Miranda v. Arizona, the famous 1966 Supreme Court case which laid out a set of procedures that the police must follow at arrest in order to protect the arrestee's due process rights. Attorney General Eric Holder announced the administration's view in the wake of the Times Square near-bombing.

Even people with no qualms about the past decade's erosions of civil liberties and constitutional protections should at least ask themselves how exactly this will make America safer. As the Times article notes, Miranda already includes an exception for exigent threats to public safety under New York v. Quarles. So, law enforcement already has easy access to legal tools to deal with the rare "ticking time bomb" scenarios that have captured the minds of a nation. And to briefly shift to international law, it is unheard of for law enforcement, without any judicial oversight whatsoever, to simply designate an American citizen an "international terrorist" deserving of no 5th Amendment protections -- in Hamdi v. Rumsfeld (2004), even the heavily conservative U.S. Supreme Court rejected this approach at the height of Bush-era anti-terror fervor.

Miranda is also an established, accepted reading of the 5th Amendment. At its inception, many judges (most famously Justice White, in his dissent to the case) and lawmakers (most famously Congress, via the stillborn 18 USC section 3501). And yet today, most law enforcement personnel favor Miranda -- unlike the open-ended guidance that the Supreme Court has provided police in other areas of criminal procedure, Miranda gives a very simple, straightforward directive. This kind of clear standard benefits both law enforcement and people suspected of crime. Moreover, shortly before 9/11/2001, even conservatives had come to accept Miranda as a permanent constitutional prophylactic -- in Dickerson v. United States, the 2000 case that overturned 18 USC section 3501, Chief Justice Rehnquist, an icon of tough-on-crime jurisprudence, spoke for a 7-2 majority in stating that "the warnings have become part of our national culture."

Apparently, our national culture has changed quite a bit since those heady days when the Constitution meant something besides a hassle for those who would kick ass first -- usually covertly -- and ask questions later. TV might indicate otherwise, but in real life, good cops don't think in terms of the ends justifying the means, but rather accept that in a free society, law enforcement will always face some limitations, and that this is the true thin blue line between a free society and a fascist one. And even if the ends do justify the means sometimes, it's not clear how depriving "terror" suspects of Miranda rights will protect Americans, as noted above. With the left and the right in this country consigned to arguing over who loves the Constitution more, why wouldn't we want people to be informed of their most basic, uncontroversial rights -- the right to an attorney and the right to choose whether or not to speak with the government?

Maybe someone has a cogent, constitutionally-grounded argument for why Miranda's protections should not apply to citizens suspected of terrorism. Maybe that someone is Barack Obama, Eric Holder, or their new spiritual ally, Rudy Giuliani. But until we hear that argument, we should be wary about passing over to law enforcement the ability to designate as an "enemy combatant" an American citizen apprehended on an American street. Instead of just throwing the word "terrorism" around, the Administration needs to acknowledge that doing so obscures the fact that it's treading a slippery slope away from established constitutional protections that all Americans enjoy. Holder should consider the extent to which the War on Terror has been a globalization of failed War on Crime methods and ideals that far predate the Bush administration.

But instead of telling us how exactly loosening Miranda would benefit the search for terrorist suspects, Holder has simply invoked tried and true platitudes about the "threat we now face," bringing media-friendly phrases to what should be a sober policy discussion. In doing so, he follows a long tradition of policymakers more concerned with appearing tough on crime than with actually being smart on crime, whether with regard to the War on Drugs, anti-gang ordinances, or the domestic surveillance done in the name of the War on Terror that would have been considered unthinkable only a decade ago. He speaks of "international terrorists" to obscure the fact that the exception he's seeking would also apply to American citizens, who have grown increasingly used to being monitored under the auspices of the War on Terror. People designated as such can count themselves as homo sacer, enjoying neither the diplomatic protections of the foreigner nor the constitutional protections of the citizen.

And let's not forget how easy it is to be counted among the terrorists these days. If the Obama administration gets the law it wants, perhaps a decade from now, the conservatives who count William Rehnquist as a liberal will get their wish and have Miranda stricken from the books completely. Meanwhile, the United States leans towards a permanent state of exception, where the idea of positive community- or individual-based rights and identities held against the government no longer exists, where the State capriciously determines what constitutes the "public good" -- and what it can do to advance that.

State of Mass Incarceration

Last week before finals here at Cal and whatever intelligence I had to impart this semester has long been imparted. Fortunately California's disastrous dance with mass incarceration remains central to discussions here on campus. In light of the aforementioned neural overextraction problem, please pardon the recourse to a simple listing.

* Barry Krisberg discusses downsizing the prison industrial complex with UC News Center's Cathy Cockrell.

* In his interview last Saturday with Scott Simon on Weekend Edition Saturday, UC President Mark Yudof noted that having the world's biggest prison system won't grow the state's economy the way a world class university system may.

* David Onek's terrific podcast series Criminal Justice Conversations has repeatedly focused on mass incarceration including: Jeanne Woodford, Former Warden, San Quentin State Prison and former Acting Secretary of Corrections; Sunny Schwartz author of , Dreams from the Monster Factory; Secretary of Corrections Matthew Cate; and Senator Mark Leno.

Boycott Arizona? Only if we can bring our prisoners home

As a sense of genuine revulsion toward Arizona's new status crime of being a person who looks like an illegal immigrant grows in the Golden State, public officials from Governor Arnold Schwarzenegger to State Senate President Darrell Steinberg are warming to the idea of a California boycott of Arizona. Its a good sign of how far we have come since the dark days of the 1994 when California under Pete Wilson led the nation in immigrant bashing xenophobia (although we still have the Prop H8 egg on our face). (California now looks at Arizona the way Europe looks at the United States). But according to Susan Ferriss' reporting in the Sac Bee, an interesting wrinkle has emerged, thousands of California prisoners that are in custody in Arizona under contract with our bloated and catastrophically overcrowded prison system.

Schwarzenegger did tell reporters that he didn't want any California prisoners housed in Arizona returned to the state because he wants to save money on incarceration costs.

But perhaps there is a chance here to combine our growing identity as a cosmopolitan globally minded state (at least relative to Arizona) with a our desperate need to shed both prisoners and fear. Let us bring those prisoners back from Arizona and reduce California prisons by enough low risk, parole ready prisoners (lists of which the state has been preparing for months). Most of those prisoners will return to places like Alameda County where there is a vibrant re-entry community ready to be put to work reducing the risks that those released prisoners will return to crime and prison. If need be let the Governor lead a telethon to raise money to support these services for this special group of "no thank you, Arizona," parolees. This won't be about complying with the courts. It will be about standing up for California values.

2010 Kitty Genovese? Shared Space, Stigmatization, and the Death of Hugo Tale-Yax

Eight days ago, Hugo Alfredo Tale-Yax, one of many Americans left jobless and homeless by the past couple years' market collapse, intervened in a violent domestic dispute and was stabbed multiple times. His "neighbors" responded by "minding their own business" -- stepping around his body until all the life had bled out of it -- until a schoolteacher notified the police that something was wrong. By then, it was too late.

Few Americans who read this story will avoid feeling shock, sadness, or at least some sort of disgust, but generic on how rotten people are, which is the dominant "point" being made in comment threads attached to articles on the killing, doesn't get us very far in understanding what happened, why it bothers us, and what kind of historical could make this kind of thing less likely (or even imaginable). At the same time, it's just as easy to resort to generalities about "culture," "society," "human nature" and the like as it is to chalk everything up to "individual choices" as though they occur in a vacuum. A more useful starting point is recognizing the complexity of what seems like a simple situation ("Good Samaritan ignored by hardhearted passersby, indicating the moral poverty of modernity"). None of the below musings are meant to be explanations; attempt at a univariable "explanation" for this sort of event would oversimplify it. Rather, it seems that this kind of tragedy should be a focal point in an ongoing conversation about the many ways in which it might typify, intersect with, shore up, or cut against a variety of historical patterns.

While a number of lessons could be drawn from a tragedy like this, one hopes that the primary one is not that drawn from the Kitty Genovese story: that cities are sites of inhuman dissociation and anomie, places where "real Americans" don't belong (except perhaps from 9 to 5), lacking the protections of the suburban cul-de-sac (an issue which Jonathan's works in progress will address). Ironically, however, there's no doubt that it's difficult to imagine this happening in the suburbs -- but not because that's where the real, good, true Americans live. For one thing, suburbs are typically empty during the day, and for another, homelessness is primarily an urban problem, spurred on in part by city budgets that no longer prioritize either preventive social services (such as education, healthcare, or job training and creation) or curative measures. City residents would do well to recognize the homeless as their neighbors, not as human detritus or parasites deserving only of contempt. At the same time, perhaps Tale-Yax's heroic attempt will humanize people in his position for Americans who don't live in cities, who experience homelessness only as a brief interlude on the nightly news (where, until recently, it has typically been presented as a pretty straightforward result of individual failings, with no awareness of broader social developments or trends).

The press has universally identified Tale-Yax based on two features: the fact that he was homeless, and the fact that he was a Central American immigrant. That is, he falls squarely into two categories of people that have been increasingly reviled for many, many years. If Tale-Yax had been wearing a crisp Brooks Brothers suit, would passersby have responded differently? As for his race, of course, it's not as though the events took place in Arizona, whose recent legislation is giving pause even to some of the hardest of immigration hard-liners. Nonetheless, the public's reaction to this tragedy will doubtlessly be prefigured by this aspect of Tale-Yax's background.

This tragedy also makes one wonder about the merits of relying solely on the police to protect us. Conservatives might argue that this indicates the need to protect individual gun rights. People all over the political spectrum could see it as a sign of the perhaps-unfortunate need for putting more police boots on the ground (notice that the fact that a camera recorded the entire incident did nothing to prevent it). But a more nuanced way of seeing this would be to consider the merits of community, of the neighborhood, of close quarters, as against the neo-frontiersman, mind-your-own-business ideals that have come to re-animate American middle class life in the past half-century.

While certain stereotypical suburbs (the easy targets) may best physically embody this mentality, it animates the lifestyles of millions of Americans living in other types of communities. As Jonathan has recently argued, what matters more than the absolute number of Americans whose lives perfectly embody the fast-food, SUV-commuting, McMansion stereotype is the fact that it's become a paradigm for what we as Americans are supposed to want, and to be. Nostalgia tends to be ahistorical, but it's hard to read a story like Tale-Yax's without longing for a period where people who lived near one another gave a damn about each other. We should interrogate the multitude of ways in which crime-fear and related stereotypes constitute the way we navigate our shared spaces, and what trade-offs we are able or willing to make to feel less atomized and afraid within them.

What, then, are the material conditions of possibility under which that sort of community feeling can arise, and how do they differ from current conditions in cities and suburbs, town and country, across America? What policy choices, construed broadly as possible, help give rise to an America where minding one's own business -- that is, hurrying up and getting to work, which takes a couple hours, thanks to changes in residential patterns and capital distributions, and where you have to stay for ten hours, since wages have been flat for almost forty years, and which doesn't really help you own a home, pay your medical bills, or put your kids through college -- takes precedence over noticing the man underfoot in a pool of his own blood?

Utah Execution: Its the years, not the bullets, that make it cruel

If Utah proceeds to execute Ronnie Lee Gardner on June 18th, as an execution warrant signed by a Utah court ordered yesterday, there will probably be a great deal more media attention and possibly criticism,than usually attends executions in Utah. That is because Gardner yesterday affirmed his choice to die by firing squad rather than lethal injection. According to Erik Ecklholm's reporting in the New York Times, the two previous Utah executions by firing squad have drawn extensive attention, especially from international media, who find in the firing squad an irresistible image of American penal backwardness.

The event attracted hordes of reporters who often, to the chagrin of Utah officials, invoked images of raw, frontier justice. Mr. Gardner’s execution, if and when it occurs, appears certain to attract similar worldwide attention.

An accompanying slide show highlights the distinctive features of firing squad as execution method, including a black chair to which the victim is bound, and a black ledge on which the four shooters stand behind a curtain. It also depicts the firing squad' most famous victim, Gary Gilmore, who dropped his appeals and became the first American to be executed after a ten year moratorium. But while its easy to understand why some condemned prisoners would find this a more "manly" way to die than being strapped down in a hospital gurney and put to sleep it is worth noting that Gardner, unlike Gary Gilmore, does not appear eager to die, and has not waived his appeals. His attorneys have filed a new petition. One of the claims they will raise is truly where the nation and the world's should lie. Ronnie Lee Gardner's crime was committed more than 25 years ago.

Gardner was in custody on another charge when he shot a man during an attempted escape. The slide show includes a shot of a far younger Gardner in custody immediately after the escape attempt. His white prison uniform is stained dark with his own blood (he had himself been shot during the attempt). Oddly, he seems to be smiling.

For 25 years Gardner has sat in a Utah prison under a sentence of death. In most of the world, where capital punishment is not available, the most serious criminals, who have committed multiple murders or even genocide, face at most 25 years of imprisonment, after which they are generally eligible for parole (and indeed in most countries parole would come far earlier for all but the most infamous criminals). Only in a handful of US states and Japan do condemned prisoners routinely spend decades on death row prior to execution. Not only is this unusual, in the eyes of many human rights tribunals it is the prolonged detention of a person prior to execution that constitutes "degrading and inhumane treatment," more so indeed than the execution itself. To most of the world, the idea of holding a human being captive while awaiting death is more cruel than the act of killing them.

Consider the picture on the Times website of Ronnie Lee Gardner being given his death date by the Utah judge. He is not smiling now. His face looks taught with with-held emotion despite the neatly trimmed rakish lip beard. To his right, a female attorney seems to be reaching her hand out in a comforting way. While Gilmore is said by his brother to have chosen (or perhaps even sought out) firing squad execution because of its redemptive symbolism in Mormon tradition, Gardner is quoted as preferring bullets because "there’s no mistakes," referring perhaps to recent litigation over botched lethal injections. It is far easier psychologically to picture Gary Gilmore flashing his dark good looks and saying "lets get on with it" to his executioners.