“A big human rights problem”

One of the big take aways for me of the Plata oral argument was the very explicit mention of human rights and the unnamed but palpable presence of dignity values in the 8th Amendment. Justice Breyer described the conditions in the underlying Plata and Coleman cases (dealing with physical and mental health respectively) as presenting "a big human rights problem". That was not a phrase used by the briefs for the prisoners, and it was not repeated during the oral argument, but it underscored a palpable sense among many of the Justices (a majority) that the underlying denial of adequate medical and mental health care was horrifying (Breyer uses the term "horrendous") and beyond the range of ordinary prison condition litigation.

Justice Breyer invoked this sense of horror by talking about a photograph he had seen in an amicus brief filed by a group of religious organizations. I believe he was referring to this:



It is from one of the filings in the Coleman case, involving failure to adequately treat mental illness, and it depicts cages "without toilets, sinks, or beds" in which suicidal prisoners were confined for days awaiting treatment. Justice Breyer's questioning of Mr. Philip's indicates that these photographs cut through the record as a whole for him, and the Justice challenges the advocate to show him something in the record that proves the state is able to make that horror go away without the population cap ordered by the 3-Judge court.

JUSTICE BREYER: What would I look at to find this? It's a big record. What I did was I -- it refers to on-line evidence, and I went and looked at the pictures, and the pictures are pretty horrendous to me. And I would say page 10 of the religious group's brief, for example, shows you one of them. (20) ...

Now, you've looked at them. I've looked at them. And what is the answer to that? So how can I -- or you if you were in my position -- what would you say

Interestingly, Carter Philips, for the state, not only did not challenge the depiction of the treatment of prisoners as horrendous and a human rights violation, he embraced it, describing the core constitutional violation involved as:

culture of disregard for the inmate

While suggesting that the conditions were a lot better (without showing the court was clearly erroneous in finding otherwise) Philips acknowledged that the problem was a distinctive and radical, justifying the unprecedented quality of placing the entire prison health care system under a receiver rather than the more typical special master.

California Style Mass Incarceration

Socio-legal scholars have long spoken of "naming, blaming, and claiming" (Felstiner, Abel, and Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, and Claiming, 1981) to describe how disputes arise and move toward legal realization. If the same may be said of polities, than the Supreme Court's oral arguments a couple of days ago, in the great California prison population case (Schwarzenegger v. Plata) may mark the moment when the harm of mass incarceration in America broke out of its canyons of attention, and became a public dispute for the US.

For the Court's "liberals", the staggering portrait drawn by the many experts who testified before both original courts and the 3-Judge panel of the way physical and mental health needs are unmet appears to have broken through their own instincts to defer on criminal matters. The routine way in which California prisoners met death not through lethal injections, but by fatal neglect of their obvious and remediable medical needs, or by suicide after florid psychotic symptoms were ignored, animated a livelier questioning of the state in a criminal matter than in a long time. The Court's "conservatives", stripped of their preferred grounds of deference to the state's penological rationality, by the sheer scale of California's organizational failures over a twenty year period, were left to rest on the primal fear of violent crime and the biblical conviction that keeping people locked up must mean fewer crimes. Of course even if the Supreme Court (5-4), upholds the population cap, it will not end mass incarceration, that claim was not yet before the Court (and probably never will be).

The New York Times editorial today does a nice job of condensing the naming and blaming and moving toward the kind of claiming that would be needed to move from an end to cruel and unusual punishment in California to an end to mass incarceration. Their title, The Crime of Punishment in California, names the harm, that punishment in California is itself fundamentally wrong (not just badly carried out or underfunded). The editorial goes on to further specify the where the blame lies, with "California style mass incarceration" These cases are not about imprisonment, per se, or any particular prison conditions, it is about the wholesale and systematic policy of expanding the prison population as an end in itself, with no serious effort to maintain the medical and mental integrity of its inmates let alone reform or discipline them. Not every state has embraced this "style" of imprisonment, it seems to flourish most in the sunbelt (see Mona Lynch's key book Sunbelt Justice, on Arizona), but it is a part of the political culture that sustains high incarceration levels across much of the US and which continues to spread to Europe. The editorial draws its claim, from the growing consensus among American criminologists that mass incarceration (many of the leading lights of which are in the Criminology and Public Policy issue referenced in the editorial) is a massive failure, even at the business of crime control.

Among experts, as a forthcoming issue of the journal Criminology & Public Policy relates, there is a growing belief that less prison and more and better policing will reduce crime. There is almost unanimous condemnation of California-style mass incarceration, which has led to no reduction in serious crime and has turned many inmates into habitual criminals.

America’s prison system is now studied largely because of its failure — the result of an expensive approach to criminal justice shaped by fear-driven ideology. California’s prisons embody this overwhelming failure.

The harm named is "mass incarceration" as bio-political phenomenon. The blame is laid at a "politic of fear" that has little to do with public safety in empirical terms. The claim is that public safety can be upheld and enhanced by abandoning California style mass incarceration.

Of course none of this means you should short your mass incarceration stocks tomorrow. Its going to take years and possibly decades to dismantle mass incarceration. But the essential elements of the public conversation that can end mass incarceration are now out there in official discourse to a degree I would not have expected in 2005.

The Fire This Time

The dangerous wildfire spreading in Northern Israel is yet another reminder of how desperately the world community needs to pivot toward global environmental risk as the primary focus of security. It is also a reminder of the virtuous moral shift that would quickly follow a new "war on environmental disaster" to replace out spent and disastrous "war on terror." The blaze, which began in forested areas near Carmel, Israel, and now threatens the outskirts of Haifa (read Haaretz coverage in English here), has already killed 40, mostly young prison officer trainees who were rushing to aid the evacuation of a prison when a tree collapsed on the bus, trapping most of the rescuers in the conflagration.

With dozens of countries sending aid, and Israel's well organized air force now taking control of an international fleet of fire fighting equipment and personnel, the fire will hopefully be under control soon. When it is, perhaps Israelis, whose palpable sense of fear and isolation has grown in recent years along with the nation's insistence on a "go it alone" approach to its occupation of Palestinian territories (and International Law more generally), will consider how different it feels to confront environmental risks. Even though the blaze claimed more lives in one day than years of Hamas rocketing in the years before Israel's 2008 war on Gaza, Israel was not isolated this time. Instead dozens of countries immediately offered aid, including Muslim and Arab countries, and first of all, apparently, Turkey, the Muslim powerhouse whose once good relationship with Israel has gone sour over the Gaza situation and this summer's preemptive attack on the Turkish aid vessel bound for the strip. Meanwhile, the Netanyahu coalition government, which is fond of reminding the world that Israel looks to no one but itself for security, showed no hesitation in defining the need for and accepting international assistance. In its long war with the Palestinians, Israel has not only lost many of its friends around the world, it is increasingly divided on the inside, both between Arab and Jew, and among Jews. In the fire, by contrast, Arab and Jewish Israelis were together among the population threatened by the fire, on the bus of young rescuers who perished, and even the inmates in the jail they were speeding toward rescuing (they did get out).

Why is it so different when security is defined as about terrorists or criminals, than when the security problem is an environmental disaster? Think of risk as a kind of mirror in which a society sees and acts upon itself. In the mirror of terrorism/crime we see vulnerable victims and motivated capable aggressors (although we may not agree always on who is who, and we are very likely to read racial, class, and religious otherness into the classification scheme). Reacting to that image, we feel empathy with the victims (as we see them) and anger toward the aggressors (as we see them). How dare they? We seek to make them pay a punishing price which will surely change their motivations. Failing that we seek to build walls around the aggressors, or at least between the victims and the aggressors, who are imagined to share no characteristics, dependencies, or sympathies.

In the mirror of the Carmel fire (or the Haitian Earthquake, the 2005 South East Asian Tsunami, or New Orleans after Hurricane Katrina), we see a population that includes potential victims and potential rescuers, regardless of race, nationality, and religion. We see governments and people who are both part of the problem (because they failed to prepare and created life styles that made them more vulnerable and perhaps disasters more likely) and a necessary part of the solution. We see that the past no longer matters; nor who did what to whom. All that matters is how we can work together to survive on a planet whose margin for human habitation is far smaller and more fragile than we have learned to imagine.

While both Israelis and the world often act as if the Israeli-Palestinian conflict (and extended conflicts with countries like Iran) is the only one that matters to security in the Middle-East, the fire is a reminder of the vast environmental problems within the region (especially around water) and the potentially devastating consequences of world environmental events (like a sea-level rise of 2 or 3 feet by the middle of this century). The need to face up to these environmental risks and give them the kind of political, economic, and cultural attention we give to terrorism and crime is not one of either objective necessity or moral preference, it is both. We cannot wish crime and terror away, but we can see other threats. In this problem/opportunity Israel is hardly alone. The whole world, whether developed or still developing faces a disaster roulette whose odds seem to be getting worst while their internal politics are getting sharper (especially in the US). The irony is that when we choose to allow ourselves to get really scared by this threat, we may end up far more confident in ourselves and each other.

People are going to die

I have been arguing for some time that mass incarceration rests almost completely on an exaggerated fear of the risks of homicide that America in general, and California in particular, embraced after the bloody 1970s, and which remains seared into our political consciousness more than thirty years later, despite substantial drops in homicides and violent crime since the early 1990s. You can talk about the war on drugs, tough sentences for burglars, and over imprisonment of technical parole violators; but they all come down to a fear of citizens being murdered by someone that state could have stopped first.

This logic was on display in today's Supreme Court Oral arguments over California's appeal from the important 3-Judge panel decision ordering population reduction in order to remedy long standing medical and mental health conditions in California prisons. As commentator Hadar Aviram points out in her analysis, almost all of the Justices (save Scalia and Thomas) seemed to appreciate the extent of California's mismanagement. Where there seemed to be the most concern was that the population reduction might lead to more crime in California. The Justice seemed particularly horrified by California's 70 percent recidivism rate for parolees (failing to comprehend that most of this is for technical violations that are a symptom rather than a cause of exaggerated fear). But its not just crime in general, that people (and Justices) fear. It is murder.

Sensing this, Carter G. Philips, the learned advocate for the State of California, closed his final rebuttal with a simple but well calculated statement. As quoted in Adam Liptak's article in the NYtimes

“Anytime you say you are going to release 30,000 inmates in a compressed period of time,” he said, “I guarantee you that there is going to be more crime and people are going to die on the streets of California.”

Of course Californians are already dying of the state's prison management. According to earlier fact finding by the Judge Thelton Henderson in the medical part of the case (Plata v. Schwarzenegger), a prisoner a week dies of routine medical problems that a constitutionally adequate prison health system could prevent. But those kinds of deaths do not count in twisted logic of governing through crime.

Liberal v. Radical Criminology, cont.: A Reponse from Tony Platt

I'm posting this for Tony Platt since its a wee bit too long for the comment field
---------------
Thanks for your comments on the "Politics of Protest" session.

You might have pointed out that the heart of my comments focused, not on the School of Criminology at Berkeley, but on the strengths and weaknesses of the ideas in the original POP, and a critique of Skolnick's introduction to the new introduction (in which, in my view, he minimizes ongoing problems of racism and uncritically praises the Obama regime.)

I have a few initial comments on your views about liberalism and radicalism (below):

(1) By "liberalism" I assume you mean social democratic liberalism, that occupied a central role in American politics from early 20th century through the Clinton government. For most of its run, it was a managerial political ideology, focused on regulating rather than eradicating inequality. There are moments when this kind of liberalism gets pulled left during times of mass political activism (for example, 30s and 60s), but mostly it revives as top-down managerialism. (There's a huge historical literature on this issue.)

(2) It's just name-calling to suggest that "radical criminology" was a "rhetorical disaster" and "highly ideological" while liberalism was "more robust" and measured. Do you really think that liberalism as political ideology was somehow value-free and apolitical? You may prefer liberalism to radicalism, but then just say so. But whatever you think, its heyday is long over here (and soon in Europe).

(3) As to the excesses of radical criminology, I've written about this topic (in Oppenheimer et al., Radical Sociologists and the Movement), and there's much to be said about what we did wrong. But your preachy one-sided comments don't help our understanding. Radical criminology at Berkeley was part of and responded to a much larger left movement that exposed the injustices of criminal justice, took on the inadequacies and cowardice of liberalism, created debates about the ideology of criminology, humanized the incarcerated population, and educated millions about the ties between imperialism, militarism, racism, and criminal justice. In the 1970s there was at least a national debate about crime and justice, and for a short while liberalism was pushed left by radical movements.

(4) The rise of the Right and neo-liberalism (beginning with Nixon) has nothing to do with what radical criminology did or did not do. It represents a significant shift in regimes of power, and a rise of new political forms to deal with the deepening contradictions of capitalism. As you and others going back to Stuart Hall have noted, governing through law and order is not so much about crime as about a crisis in political authority (and the demise of social democratic liberalism).

(5) My debate with Skolnick is partly personal (because he and colleagues benefited from the demise of the School of Criminology; and because of his disrespectful treatment of our colleague Paul Takagi), but it's primarily political. He thinks the country is moving in a good direction; I don't. He believes that academics have to choose between a professional career and progressive activism; I don't.

Tony Platt

Radical v. Liberal Criminology: An Afterthought

One of the most interesting moments at this year's American Society of Criminology meetings in San Francisco was the "reunion" of Tony Platt and Jerry Skolnick during a session on the republishing, with a new forward and preface, of the book The Politics of Protest: Task Force on Violent Aspects of Protest and Confrontation of the National Commission on the Causes and Prevention of Violence, which was originally published in September 1969. Skolnick, Professor Emeritus at UC Berkeley (and now co-director of the Center for Crime and Justice at NYU Law) was on the Berkeley Criminology School faculty, and already famous for his book, Justice Without Trial (1966, 1994) when he was appointed director of the task force on protest of President Johnson's violence commission. Skolnick hired one of his junior colleagues, Anthony Platt, and a graduate student, Elliott Currie to be his main research assistants and to help with the writing and editing of the report/book; both have become major criminologists as well. Anthony Platt, then an Assistant Professor Criminology at Berkeley, had already written the first edition of The Child Savers, a renowned study of the class origins and purposes of juvenile justice in the early 20th century, that has also recently been republished. Platt was denied tenure, in large part because of his protest activities, and left Berkeley after the Criminology School was eliminated in 1976 to be a Professor of Social Work at California State University, Sacramento until his retirement a few years ago, where he published many other books as well as editing the journal Crime and Social Justice for many years. Elliott Currie, Professor at UC Irvine's Criminology, Law & Society department, is the author of the classic, Confronting Crime: An American Challenge, as well as many other books.

Given a chance to hear three such renowned criminologists reflect on an ultimately doomed effort to steer America's response to violence toward completing the institutional reforms begun by the Civil Rights movement and the War on Poverty, it was not surprising that the room was packed. It was perhaps inevitable that most of the attention was on the death of the Berkeley Criminology School. Platt bluntly blamed Skolnick and other liberals on the faculty, for "selling out" the School and its junior faculty, much of which, especially Platt, were openly engaged in the protest politics of Berkeley in those years. Skolnick suggested that the closure (and Platt's denial of tenure) were decisions taken at the top of the University which neither he, nor other faculty, could do anything to stop. Currie, who has remained very friendly with the other two, kept himself to chairing the session.

I'll leave to another time a discussion of the actual history. What disappointed me about the session (which was mainly focused on what John Dombrink aptly analogized to the hurt feelings of children to a divorce) was the missed opportunity, buried in Platt's opening remarks, to reflect on how both liberal and radical criminology were "failures" that had failed to stop the coming of mass incarceration and all the other destructive features of what David Garland has called our Culture of Control. I would love to have heard each of these thinkers on why despite the considerable intellectual and even political resources, progressives could not effectively prevent the policy discussion of violence in America from becoming dominated by thinkers like James Q. Wilson, and his reduction of the problem of violence to crime prevention in his epic and influential Thinking About Crime (1975).

By the time The Politics of Protest was published, Richard Nixon had already been elected on a "Law and Order" platform, and a growing coalition of law enforcement groups and politicians were beginning to coalesce around a politics of capital punishment and mass incarceration in state politics around the country. Still, it would take a decade for the logics of governing through crime to become hegemonic in America, and much of the progressive critique of criminal justice as racist and arbitrary remained salient to many Americans. Overall I suspect that nothing merely criminological could have stopped this trend. Even if Skolnick and Platt had stayed on the same side, and continued to work together along with Currie, perhaps no book from the left could have prevailed over Wilson at the time given the social and political roots of governing through crime.

I've always viewed this history and its conflicts with fascination. I was too young to protest in the 1960s (although my parents introduced me to the civil rights and anti-war movements through their participation). I made my way to Berkeley for college in large part drawn by the legacy of protest there, arriving the year after the Criminology School closed. Drawn by the coming catastrophe of mass incarceration, I did graduate work at the Jurisprudence and Social Policy program at Berkeley, (the program that took some extent replaced the Criminology School) where I studied with Skolnick, as well as Shelly Messinger and Caleb Foote (to other prime "liberals" from the Criminology School). Given my own propensity to protest, which earned me three visits to Santa Rita County jail while a student, I've always sympathized with the plight of the untenured radical faculty. The fact that Platt was denied tenure despite proven excellence as a teacher and scholar, and only because of his political participation, is a permanent stain on Berkeley's academic record.

From my perspective now, however, after the war on crime, liberal criminology has remained a more robust and enduring position while radical criminology, especially the highly ideological sort advocated by the Berkeley Criminology school radicals, has, for the most part, proven to be a rhetorical disaster (and would have been a policy disaster had it been implemented). Celebrating convict revolutionaries and denouncing the criminal justice system as it then existed in states like California at the time (far smaller and much more benign than today) as a hopelessly racist and fascist apparatus aimed at preventing popular revolution, had no chance of appealing to ordinary Americans witnessing a genuine wave of both state and private violence, let alone convincing them to support necessary anti-racist reforms. More importantly, it left progressive criminologists with few tools and little credibility to respond to the massive growth of incarceration and the hyper policing of minority urban neighborhoods that would follow in the decades of the 1980s and 1990s. Berkeley's racial criminology, in short, turned out to be the "boy who cried wolf."

In contrast, the best of liberal criminology, including Justice Without Trial, recognized the potential of "law" in "law enforcement" to resist the excesses of populist punitiveness and ultimately to rebuild support for insisting that law enforcement serve a "democratic" society and not the other way around. It is telling, in this regard, that when Elliott Currie wrote the first really effective response to the Wilsonite orthodoxy in his 1988, Confronting Crime, he began to rehabilitate the policy premises of liberal criminology while abandoning most of the rhetoric of radicalism.

Today as the war on crime grinds on despite little public rationale for its existence (and mostly inertia to change keeping it in place), it is imperative that we focus on how to reconstruct American society and politics after the tremendous destruction of mass incarceration and governing through crime. That is a struggle which I believe the ideological warfare of 1968-1976 has practically no relevance for, and in which liberals, radicals, and conservatives can find common ground.

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