Punishment, States, and the Governance of Crime: Looking for the future of mass incarceration in the sunbelt

A session yesterday at the American Society of Criminology meetings in San Francisco on "Punishment, States and the Governance of Crime" offered exceptional insights into the changes in state government and politics that facilitated the rise of mass incarceration in California, Texas and Florida. Joshua Page chaired and presented a paper on "Interest Groups and Contemporary Criminal Punishment" and extension of his great research on mass incarceration and correctional workers in California soon to be out as The Toughest Beat:Politics, Punishment, and the Prison Officers Union in California. Michael Campbell presented "Prosecutors, Politics, and Reconstruction of the Penal Order in Texas," a piece of a dissertation that compares California and Texas. Phil Goodman presented "California's Prison Fire Camps and the Changing Nature of Punishment," a piece of his dissertation on a very little studied aspect of California's massive penal estate, and one full of clues as to how to reintegrate prisons with the rest of the state they now occupy much like tumors occupy a body. Heather Schoenfeld, presented, "Race, Institutions and Punishment in the Sunshine State," a piece of her research on the formation of mass incarceration in Florida. Mona Lynch, presented "From the Local to the Global: The Multiple Levels of Influence in the rise (and fall?) of Mass Incarceration," a paper in which she reflects on the multiple levels of institutions that have shaped mass incarceration in the separate states, including Arizona, the subject of her Sunbelt Justice: Arizona and the Transformation of American Punishment.

The panel represents a good sample of the new state focused scholarship on mass incarceration. This research is confirming some of what we thought about the causes of mass incarceration, especially the role of prosecutors as key political actors. As Campbell notes they are a permanent institutional lobby for punishment in the legislature capable of besting the periodic emergence of opponents of excessive punishment (which exist even in Texas). But it is highlighting roles that were missed before, especially the crucial role litigation over prison conditions played in moving prisons to the top of the legislative agenda at the take off phase of mass incarceration in the early 1980s (a finding shown by Schoenfeld for Florida, by Campbell for Texas, and by Lynch for Arizona). Overall, mass incarceration (perhaps like cancer) is not one single "disease" but a family of related but distinctive maladies.

These particular studies also powerful suggest a sunbelt tilt to mass incarceration. Lynch in particular argues that the sunbelt gave us the model of warehouse incarceration at the heart of mass incarceration. It appears that early emphasis by scholars on the epistemological crises of rehabilitative penology in the 1970s may have been far less important in sun belt states that never had much commitment to rehabilitation (like Arizona), and which organized punishment along highly racialized lines decades earlier (like Florida and Texas). All this suggests that a winning strategy to dismantle mass incarceration has to play in the sun-belt and the solutions touted in states like New York, may not easily apply.

One "promising" development is the Great Recession we are experiencing which emerged from the over-leveraged real estate industry that has long shaped politics in these very sunbelt states and has now left them with severe fiscal and possibly more broadly social crises (as foreclosures erode whole communities). As these states grapple with massive economic insecurities and contracting revenues the logic of mass incarceration may begin to emerge as a subject for debate in states that are culturally predisposed against big government

The Horror

Certain crimes cut through the sensibilities of even a culture besotted with media images of crime. As Durkheim reminded us, the horror these crimes invoke tell us what our central values are. The 2007 attack upon the suburban Connecticut home of Dr. William Petit, which included rapes, kidnappings, arson, and ultimately murder was spectacular example. The articulation of this horror and its revealing features has factored heavily in the just completed jury trial and capital murder of sentencing hearing of the first of two defendants in the case, Steven J. Hayes.
As described by William Glaberson's reporting in the NYTimes

The details were stark: two habitual criminals invaded the quiet suburban home of a doctor and his family after spotting them in a shopping center parking lot the day before. In a night and morning of unimaginable terrors, they beat and tied up the doctor, forced the mother to withdraw $15,000 from a bank, before sexually abusing her and her younger daughter, then strangling the mother and setting a blaze that killed her two daughters and blackened the home.The killings brought a searching review of criminal justice and corrections practices in the state and, particularly during the recent election, came to be the prism through which the state viewed a debate about the future of the death penalty.

While the violence and the vulnerability of the victims can fully explain the outrage that many persons around the country and in Connecticut where the jury appeared to have wrestled with strong reservations about sentencing Hayes to death, several features make this incident horrifying beyond its violence.

The crime took place inside the sanctity of the home. As others have pointed out, the home, especially the privately owned, suburban home, has become the essence of the American dream (one that explains are tolerance for dangerously overextended real estate markets). The fact that the violence came upon the victims inside the home makes it a greater crime than if it happened on the street or in a public place. A killing is a shocking lapse of security. A lethal attack by strangers invading the sanctity of the home is an attack on the very possibility of security. Such crimes, including the 1959 Oklahoma farm house murders described in Truman Capote's In Cold Blood, and the Manson family's Tate-Labianca murders in two posh Los Angeles area homes in 1969, have an enduring fascination that can rivet attention on crime even in periods, like today, when overall crime appears more moderate than in recent years.

The two men charged with the crime were strangers with known criminal paths. The vast majority of people (including children) killed in their own home, are killed by someone they knew, often another occupant of the house (typically father or husband), but those killings are almost never the subject of enduring fear. It is the stranger invading the home to commit violence that invokes it.

The father was rendered helpless before the crime began. Victims who are killed by their own father, or who do not have a father (or husband) to protect them seem less violated than ones whose protection has been strategically eliminated by the home invaders. The criminal father is far less frightening than the stranger who overthrows the father and usurps his place with the intent to criminal violate what the father is supposed to be protecting.

When these strangers are men with a known criminal past, who have been in prison already, something true of the Oklahoma and Los Angeles murders as well as of the two defendants in the Petit murders, there is the added outrage that the state has betrayed its protection of the families by failing to keep the criminal locked up in prison (the polar opposite of the family home in its sense of security and the comfort of its residents, and the State's very own "Big House"). It is for this reason that these crimes almost always have an influence on state penal policies far beyond their relevance to overall crime.

Obama and Fear

President Obama's remarks about fear and American voter perceptions are once again raising the charge that Obama is an elitist who views the anger felt by American voters in this year's midterm election as pathological. According to Peter Baker's reporting in The New York Times the President said:

“Part of the reason that our politics seems so tough right now, and facts and science and argument does not seem to be winning the day all the time, is because we’re hard-wired not to always think clearly when we’re scared,” he told a roomful of doctors who chipped in at least $15,200 each to Democratic coffers. “And the country is scared, and they have good reason to be.”

Besides the impolitic quality of the remark what is most telling is the President's assumption that facts and science normally carry the day. I have no doubt that the President was born in the US but times like this make one wonder whether he was living here during the last twenty years. More importantly, where is the effort to speak to the fear (rather than about it). Fear comes with historical context. Today's Americans are responding to a Great Depression level financial crisis through the metaphors and meanings shaped by decades of wars on crime, in which the basic economic security of middle class Americans was taken as given, and their protection from the misconduct of deviant others around them, was taken as the primary field for governance.

That context has done a lot to train Americans to focus on questions like, who is the criminal and how harsh is the punishment. In that kind of world, bailouts of misbehaving banks are inherently subversive, and immoral; and solutions that spend money on "stimulating" the economy are expensive, pointless and perhaps damaging. It is because of this orientation that after a devastating financial crisis caused by lack of regulation and increasing concentration of economic wealth, business executives can run for office all over the country on the theme of reducing regulation and taxes on the rich.

There may have been a way to govern this crisis through crime. Investigations and trials of major Wall Street executives would have followed and perhaps a government take over of the worst actors. Obama might have tried to have BP's chief executive during the Gulf crisis arrested and seized the companies US assets in symbolic "raids"before television cameras. All of that might have worked to give him the legitimacy he needs to re-regulate the financial markets and drive new economic investment. Of course unlike the usual suspects of governing through crime, Wall Street executives are not without influence, lawyers, and media control. Given how much they have whined about President Obama's rather modest actions, we must assume that their response to that kind of demonization campaign would have been massive (and perhaps lethal).

In any event, the time for that kind of strategy is probably passed. Instead the President has no choice but to take on the way Americans think about fear directly; not by whining about how irrational they are, but by providing a different framework for evaluating our fears. In January the President will have a chance to deliver his state of union speech to a national audience in a chamber where the noise of a much larger and probably triumphant Republican caucus will be loud. He needs to put aside the usual laundry list of legislative priorities and talk about fear. Those fears that Americans can no longer afford to indulge in like fears of the criminality of immigrants; and those fears, like global warming, that we can no longer afford to ignore. The President should challenge the leaders of Congress to come to two televised White House conferences, one on immigration and one on climate change. Let each side nominate experts to be heard from, but insist that the leadership sit down with him in front of cameras to talk about what the facts show about these two burning issues and explain to the American people what they intend to do about them.

Two Paths from Fear: Punish or Build

The narrative choices faced by the Obama Administration in confronting the Great Recession were nicely outlined yesterday in the editorial pages of the New York Times. Columnist Frank Rich offered a blistering critique of the Administration for ceding populist outrage to the right by failing to go after Wall Street executives responsible for the financial crash with investigations and stiff punishments, going so far as to say that "the Obama administration seems not to have a prosecutorial gene" (read his column). Having chosen to focus on the future rather than the past, Obama has left the Tea Party to reap the passions of an outraged American public.

Rich's editorial colleague Tom Friedman voices a different kind of disappointment. Obama's focus on the future, and his talk of investing in rebuilding America, has turned out to be just talk. The billions spent on stimulus turned out to include only tinkering on the edges of a massive need for reinvestment.

In the past two weeks, I’ve taken the Amtrak Acela to the Philadelphia and New York stations. In both places there were signs on the train platforms boasting that new construction work there was being paid for by “the American Recovery and Reinvestment Act of 2009,” that is, the $787 billion stimulus. And what was that work? New “lighting” — so now you can see even better just how disgustingly decayed, undersized and outdated are the rail platforms and infrastructure in two of our biggest cities.

(read Friedman's column)

The critiques suggest an Obama Presidency caught in between its reluctance to embrace the old politics of governing through crime, and its inability to launch a new politics of infrastructure. After his health care defeat in 1994, Bill Clinton made himself into the Prosecutor-in-Chief, supporting harsh and punitive laws on crime, immigration, and welfare. Clinton was relected, but he accomplished little of importance for the nation. Since the 2008 campaign I have been impressed with Obama's commitment to avoiding a politics based on demonizing. He could have framed Wall Street leaders as felons and sought to build legitimacy by sending as many of them to prison as possible and he might be more popular now if he had. It may be that he was simply too cosy with Wall Street (which did send him a lot of campaign support in 2008) but I prefer to believe Obama rejects a politics that converts fear into anger by demonizing an enemy and than seeking to punish it. Everything about President Obama's style as a speaker and a leader, cuts against his effectiveness as a prosecutorial President. The bigger question is why Obama did not try to lead the kind of infrastructure rebuilding politics he promised during the campaign.

Ironically, both the politics of punishment and the politics of building draw on fear which is the essential source of energy in liberal governance. Think of the way FDR drew on fear of the Great Depression and fear of European fascism to create the New Deal and US involvement in the World War II. Obama has not lacked for similar threats against which to mobilize America. Both the financial crisis and last summer's Gulf oil spill provided powerful examples of the threat posed by decades of underinvestment in infrastructure and under-regulation of corporate greed. Without demonizing either Wall Street or oil companies, Obama could have used the Oval office to make a sustained campaign for rebuilding American infrastructure and regulatory capacity.

It is not too late for both. A stronger Republican hold on congress will make new legislation impossible, but it will frame a stark choice between a government that actively seeks to protect ordinary Americans and one that leaves them to their fates. The Republican effort to repeal the health care reform and the privatize social security will pose this choice starkly come January. Stay tuned...

British Government to Cut Prisons/Prisoners

The British are debating whether Chancellor George Osborne's massive spending cuts are a wise or reckless approach to cutting the Britain's record budget deficit (currently estimated at 8 percent of GDP). One of the most remarkable aspects of the cuts from an American perspective, is that they include serious efforts to reduce the size and costs of the British prison population through sentencing reforms. While the previous Labour government had planned to expand the prison capacity (which had already grown massively during Labour's 13 years in power) from 85,000 to 96,000, the Conservative-Liberal Democratic coalition plans to cut back, reducing nearly 6,000 jobs from prisons and probation and actually closing prisons. (read Alan Travis analysis of criminal justice cuts in the Guardian).

Because most prisoners are held at the state level in the US, deficit based prison reductions are a lot less visible, and the national government can generally avoid taking a stand on the need to reduce prison populations. It is hard to imagine the deficit obsessed Tea Party calling for a national commitment to use prison less. Indeed, with the current politics dominated by anger and fear, there is little chance that either party will lead Americans in the kind of broad civic debate about the risks facing the nation and the difficult trade offs necessary to navigate them that all the major parties are engaging in here.

How did crime become the sleeper issue of the 2010 midterms?

Few were looking for 2010 to be a big "crime"election, in the manner of '88 (Dukakis and the Willie Horton), '92 (Clinton committed to outshining Bush on capital punishment by carrying out an execution during the primaries), '94 (massive crime bill and 3-Strikes in California) and '96 (Clinton as the 100K policemen on the street President). Unlike then, crime is at lows not seen since before the great crime wave of the 1960s began (although precise comparisons are impossible due to the poor quality of crime data from that era). Moreover, while the nation went through a recession in the late 1980s and early 1990s, it was not nearly as severe as the Great Recession which has left the US economy weaker then in decades. But while crime is not framing the national dispute between the parties in this midterm Congressional election, it is emerging in a wide variety of state and local races, from Baltimore, to California, to Connecticut.

In some instance, local crimes of great notoriety of galvanized interest, as in Connecticut, where the capital murder conviction of the first of two career criminals who raped and murdered the wife and daughters of a doctor in their family home and the impending sentencing phase have thrust the death penalty into local, state, and federal elections (read William Glaberson's reporting in the NYTimes). In others, like California, the opportunity of a veteran's candidate association with a death penalty controversies of the 1980s, for his opponent to attack him as soft on crime. All despite the fact that nationally the death penalty is declining in public support.

But while local factors may the emergence of crime issues, their success attests to the staying power of crime and punishment as organizing issues in political competition in the US. As with the false stories about violent crime in New Orleans after hurricane Katrina, the media and politicians reveal the degree to which crime is a comfort zone compared to having to confront the American people with the catastrophic risks that face them. In this case the bankruptcy of American governance and the real prospect that the end of the American middle class consumer economy is over. For decades declining real income has meant that middle class lifestyles have been based on more part-time employment and more debt. That appears to be over but neither the Democrats and President Obama, nor the Republicans and their Tea Party is willing to confront Americans with the news. In such a climate crime is a welcome respite in which politicians can posture as committed to protecting ordinary Americans in their homes (which are being foreclosed away) and the media can re-run narratives that require little actual investigation or thinking.

The contrast could not be more striking in the UK where I am currently writing from. Here the leadership of all the major parties has agreed that the nation is facing a fundamental challenge to its economic and political normal that will require hard choices about priorities and new sacrifices from all sectors of society. While the Conservative-Liberal Democrat coalition in government have prioritized cutting the deficit with real and painful cuts and tax increases, the new Labour leader insists on the priority of generating new economic growth to overcome the continuing effects of the Great Recession. Both are in agreement that increased taxes and spending reductions are essential and that producing a green economy through government regulation is a necessary path to a sustainable middle class economy in the future. Tellingly one area of spending reduction that all three major parties support is reducing prison populations that ballooned in the 1990s and 2000s (although not as dramatically as ours did).

In contrast, neither President Obama, nor the Republican leaders have been willing to tell the American voter that the economic "solutions" of the 1980s and 1990s were largely based on consumer debt that is unsustainable and that prosperity is not coming back without strategies that will require serious risks and sacrifices. As a result our election is turning into a rerun of 1994.

Jerry Brown for Governor of California

Nobody should vote on a single issue, but as you might guess, there is one issue on which my vote can move decisively. I tend to vote against candidates that play the crime card by calling their opponent "soft on crime." For forty years now that has been the move for candidates in both parties to appeal right to voters fear factors in way that few other issues (race in fact) do. Even more importantly, self identification as "tough on crime," is as sure a proxy as there can be of the candidate's commitment to the "war on crime" and "mass incarceration."

With Democrat Jerry Brown and Republican Meg Whitman, in a close contest for governor of California, I have been undecided whether this blog would take a position. As I noted last Spring, Brown was governor before the war on crime took over California and made our prisons the leading institution in the state. His Determinate Sentence Law had flaws, but it did not produce mass incarceration, a policy that began under Republican governors George Deukmeijian and Pete Wilson, and continued under Democrat Gray Davis. Meg Whitman, having switched from business to politics only recently, had no track record of having to get behind the war on crime and its powerful interest groups. Since either will face a period of tight budgets in which the real costs of mass incarceration are likely to exclude other priorities of spending or tax cutting, both have every reason to speak honestly with voters now about the need to put the war on crime behind us and begin to address the new threats to California from natural disaster, drought, and economic decline.

In last night's final debate, however, Meg Whitman unambiguously played the crime card. The context was Jerry Brown asserting losing the endorsement of the police unions was evidence that he could be tough in his negotiations with public unions over pensions. Here is the exchange according to Kathleen Decker reporting in the LATimes.

"You got the endorsement of that union, I didn't, because they said I'd be too tough on unions and public employee pensions, and I'll take that," Brown said.

"I got that endorsement because that union knows that I will be tough on crime," Whitman replied. "And Jerry Brown has a 40-year record of being soft on crime."