Reporting to you from Queens University, School of Law in Belfast, Northern Ireland, where I am in the middle of a fascinating two week visit at the kind invitation of the Institute of Criminology and Criminal Justice, where I will deliver the annual lecture tomorrow at 4 pm (it is open to the public so please join us if you can get here by then).
Belfast is a beautiful and vibrant city full of young people and wonderfully preserved old buildings. It gets overlooked in comparison to its flashier cousin in the South, Dublin, but has many many charms with very few pretenses and better prices (think Melbourne compared to Sydney, Strasbourg compared to Paris,Manchester compared to London). Yes the wounds of the conflict are still visible and felt, but they share the present with evolving experiments in constructing the future; often visible in the extraordinary collection of murals painted on buildings all over the city which memorialize the conflict and interpret its meaning for the future.
For those who share my interest in both criminology and human rights there are few law schools in the world that combine the depth of expertise in both fields with collaborative engagement between them (Shadd Maruna who is Director of the Institute of Criminology and Criminal Justice sits in an office with a sign on the door saying "Centre for Comparative and International Human Rights Law", which he attributes to office assignment vagaries but seems to me highly appropriate, if confusing). Professors Kieran McEvoy and Phil Scraton both combine criminological and human rights themes in their research.
While here I am holding conversations with these and other colleagues and the very strong group of post-graduate students here at the law school around two themes. First, how influential are governing through crime logics in a post conflict polity like Northern Ireland (with its own devolved Assembly but still part of the United Kingdom)? I have two hypotheses. First, it may be that post conflict societies like NI are resistant to governing through crime since efforts to appeal to an idealized crime victim "everyman" is refracted through the politicized nature of both interpersonal and state violence. This community has powerful memories of violence that is terrible but not "senseless" in the sense of beyond understandable and human narratives. Second, it may be that in post conflict societies the enduring deposits of power in security forces and institutions will work ceaselessly to create a new foundation for legitimacy, perhaps through turning from violence to less political crimes involving drugs and anti-social behavior.
The other topic I am learning about is the role of hope and dignity as values that helped carry people through the conflict in shaping a new agenda for post-conflict justice. There are tremendously motivated cadres of educators, social workers, lawyers, and human rights advocates in this city whose perspective has been shaped by growing up in the midst of the conflict and who bring these values to bear in constructing strategies to address the more mundane but consequential problems of poverty, educational failure, and disempowerment. I am interested in learning how post-conflict themes can shape a new agenda for restoring legitimacy to institutions deformed in the US by mass incarceration, particularly police, prisons, and the juvenile justice system.
Tuesday, March 29, 2011
Monday, March 21, 2011
Bill Stuntz and the Pathological Politics of Crime Control
Those of us concerned with mass incarceration, and friends of the rule of law everywhere have lost a great friend and teacher. Harvard Law Professor William Stuntz has died of metastatic cancer at the age of 52 (read the NYTimes obituary here). Bill's crucial 2001 article in the Michigan Law Review, "The Pathological Politics of Criminal Law," (download it from ssrn here) took on the widely held view that excessive punishment in America was a result primarily of electoral politics. Instead, it was the interaction between electoral politics, influencing legislatures, and institutional design problems, primarily the unchecked power of local prosecutors, that combined to produce incentives for over punishment. The correction was crucial for helping us understand why excessive punishment continues even in periods when electoral politics moves on to other issues (as it has mostly since the late 1990s).
Stuntz will be remembered as well for his humility as a thinker and his extraordinary capacity for empathy. An evangelical Christian with right of center political values, Bill always sought to look beyond his personal value intuitions to the objective structure of institutions that operated to produce trends that only retrospectively looked to be driven by values. Burdened with an extremely painful back condition since the 1990s, Bill faced daily pain, and later the onslaught of terminal cancer with an equanimity that inspired all who crossed his path even briefly (which was my circumstance). His writings included newspaper articles and blog postings that reflected on the human condition through the lens of his own suffering, but also expressed tremendous concern for the suffering of others, especially the poor.
Committed to an intellectual life of service, Bill took precious time away from his family to complete a book on the larger structure of over punishment in our time. Thankfully he was able to complete this and the book, Fighting Crime: Race, Crime, and Democracy in America, will be published in the fall by Harvard University Press.
Stuntz will be remembered as well for his humility as a thinker and his extraordinary capacity for empathy. An evangelical Christian with right of center political values, Bill always sought to look beyond his personal value intuitions to the objective structure of institutions that operated to produce trends that only retrospectively looked to be driven by values. Burdened with an extremely painful back condition since the 1990s, Bill faced daily pain, and later the onslaught of terminal cancer with an equanimity that inspired all who crossed his path even briefly (which was my circumstance). His writings included newspaper articles and blog postings that reflected on the human condition through the lens of his own suffering, but also expressed tremendous concern for the suffering of others, especially the poor.
Committed to an intellectual life of service, Bill took precious time away from his family to complete a book on the larger structure of over punishment in our time. Thankfully he was able to complete this and the book, Fighting Crime: Race, Crime, and Democracy in America, will be published in the fall by Harvard University Press.
Friday, March 18, 2011
Back on prisoner voting and dignity
I'm still pondering the prisoner voting controversy over here (see my last post). At first I thought it was a rather trivial issue, at least to one who is primarily concerned with mass incarceration and the deplorable conditions in many prisons in the US. After all many states of the United States strip prisoners of their right to vote for years after they have been released from prison, while the UK restores voting rights as soon as a prisoner is on parole. But as I've continued to listen to the debate here I find it more and more interesting. Here are some more (somewhat random) observations:
Many UK politicians seem to find it so obvious that prisoners should have no right to vote simply because they are prisoners, without regard to the nature of their crime or their overall sentence, that hardly any one has even discussed what a less blanket ban should look like (listen to an interesting interview on BBC Radio's Law-in-Action, with the UK Attorney General on this issue here). The European Court of Human Rights, Grand Chamber, whose 2005 decision in Hirst v. UK was ignored for five years until a second decision of the Court this November put it back on the agenda), is treated as if this simply came out of far left field, even though a majority of other European countries do permit prisoners to vote. The Grand Chamber's opinion only indicated that given the centrality of voting rights to contemporary European citizenship the denial of voting to prisoners requires at least debate and justification, if not selectivity. But Prime Minister David Cameron took the position that he had only to consult his stomach to determine that the ban was correct, declaring that it made him physically ill to even contemplate prisoners voting.
But why is it so obvious that stripping the vote from prisoners is an appropriate punishment? In contemporary society punishment appears to have two major goals (1) to create a sense of deprivation for those who commit crimes by taking away something they enjoy or impose something that is onerous (like a fine);(2) to incapacitate them from committing crimes or endangering the security of other citizens. We can put aside rehabilitation and reform which are not much celebrated in either the US or the UK today. Yet the curious thing about voting is that it is neither a pleasure nor a danger. Imagine that Queen Elizabeth announced that in honor of the upcoming Royal wedding, all prisoners in Her Majesty's Prisons could choose one of three privileges normally denied prisoners: (1) a night home with the wife (or husband or significant other); (2) a night out with the lads (or lassies) at the local pub; (3) the right to vote in the next general election. How many prisoners do you think would choose the voting booth over the bed or the pub?
Nor is it easy to see how prisoner voting could compromise the security of their fellow citizens. Even imagining that prisoner votes in a particular constituency might swing a close election, there is no reason to assume those votes would lead politicians to adopt policies of leniency or lax law enforcement in order to win those prisoner votes (because they would lose far more votes in doing so). Instead prisoners probably will vote for candidates on the same grounds that many other members of their social class (generally poor) do, in favor of more welfare, fewer cuts, etc.
This brings us to an important point. The only real reason to deny voting as punishment is to degrade prisoners, to underscore that they lack not just freedom, but equality in society. But that is exactly what the ban on degrading punishments in the European Convention on Human Rights (and the Universal Declaration of Human Rights that the US is also bound by) is all about banning.
Many UK politicians seem to find it so obvious that prisoners should have no right to vote simply because they are prisoners, without regard to the nature of their crime or their overall sentence, that hardly any one has even discussed what a less blanket ban should look like (listen to an interesting interview on BBC Radio's Law-in-Action, with the UK Attorney General on this issue here). The European Court of Human Rights, Grand Chamber, whose 2005 decision in Hirst v. UK was ignored for five years until a second decision of the Court this November put it back on the agenda), is treated as if this simply came out of far left field, even though a majority of other European countries do permit prisoners to vote. The Grand Chamber's opinion only indicated that given the centrality of voting rights to contemporary European citizenship the denial of voting to prisoners requires at least debate and justification, if not selectivity. But Prime Minister David Cameron took the position that he had only to consult his stomach to determine that the ban was correct, declaring that it made him physically ill to even contemplate prisoners voting.
But why is it so obvious that stripping the vote from prisoners is an appropriate punishment? In contemporary society punishment appears to have two major goals (1) to create a sense of deprivation for those who commit crimes by taking away something they enjoy or impose something that is onerous (like a fine);(2) to incapacitate them from committing crimes or endangering the security of other citizens. We can put aside rehabilitation and reform which are not much celebrated in either the US or the UK today. Yet the curious thing about voting is that it is neither a pleasure nor a danger. Imagine that Queen Elizabeth announced that in honor of the upcoming Royal wedding, all prisoners in Her Majesty's Prisons could choose one of three privileges normally denied prisoners: (1) a night home with the wife (or husband or significant other); (2) a night out with the lads (or lassies) at the local pub; (3) the right to vote in the next general election. How many prisoners do you think would choose the voting booth over the bed or the pub?
Nor is it easy to see how prisoner voting could compromise the security of their fellow citizens. Even imagining that prisoner votes in a particular constituency might swing a close election, there is no reason to assume those votes would lead politicians to adopt policies of leniency or lax law enforcement in order to win those prisoner votes (because they would lose far more votes in doing so). Instead prisoners probably will vote for candidates on the same grounds that many other members of their social class (generally poor) do, in favor of more welfare, fewer cuts, etc.
This brings us to an important point. The only real reason to deny voting as punishment is to degrade prisoners, to underscore that they lack not just freedom, but equality in society. But that is exactly what the ban on degrading punishments in the European Convention on Human Rights (and the Universal Declaration of Human Rights that the US is also bound by) is all about banning.
Wednesday, March 9, 2011
Proud to Be from Illinois: Land of Lincoln becomes 16th State to Abolish Capital Punishment
Illinois today became the 16th state to ban capital punishment when Governor Pat Quinn, recently elected Democrat signed into a law a bill abolishing capital punishment and passed by the Illinois legislature several weeks ago (read John Schwartz and Emma Fitzsimmons reporting in the NYTimes here). Governor Quinn's statement highlighted the "new abolitionism" themes that are bringing the death penalty down in the USA (Illinois is the 3rd state to remove an existing death penalty law in the past several years, along with New Jersey and New Mexico, and was a far heavier user of the sentence than either of the other recent abolishing states). Having stated his support for the death penalty if applied carefully and justly in the campaign only last fall, he said this on signing the law:
These recent legislative abolitions are a real break with the politics of governing through crime in which legislatures have defined themselves above all as on the side of crime victims, a group publicly represented mostly by families of murder victims who embrace capital punishment. When courts abolish the death penalty as unconstitutional, they tend to play into this politics by appearing as an elite institution favoring sympathy for criminals over victims. But as Frank Zimring has pointed out, when legislatures abolish, and governors, who generally position themselves as champions against crime, sign off on abolition, a very different dynamic is taking places.
Quinn's statement emphasized the danger of wrongful conviction, a theme etched in Illinois by a string of gross miscarriages of justice and framed several years ago by Governor George Ryan's mass commutation of the entire Illinois death row at the time. But implicit is a broader critique, i.e., that the death penalty is fundamentally unable to deliver justice and does not provide anymore real protection against crime than prisons do. If it did, it would be hard for politicians in the era of governing through crime to withdraw it notwithstanding highly visible errors, for to do so would be to favor a criminal class (most death row inmates having committed other crimes in the past) over the victim as everyman. It is only because the death penalty is increasingly perceived as rotten in its fundamental uselessness that the wrongful conviction issue can have the power it does. After all we know plenty of people are in prison for wrongful convictions as well, many more in fact than are held by death rows, but it has not led to any substantial movement to reduce prison sentences let alone abolish prisons.
Two key features, the prolonged delay of executions almost everywhere (other than Texas and Virginia) and the uncertainty of correctness now associated with death penalty sentences. This produces a punishment that maximizes the degradation of both prisoner and murder victim families. The prisoner suffers something almost as bad as the old death penalty, spending years, sometimes decades on death row, with the possibility of execution hanging over them, and all the while their time in prison appears not to be no punishment to the victims and the public at all (which of course it is) so long as they continue fighting their death penalty-- but to abandon one's appeals is a form of suicide, and act which is inherently degrading. For victims, the prolonged wait and complex pattern of litigation assures a constantly open wound without any sense that justice is being served, even if their loved ones killer has been in prison serving hard time for decades. This is the point now effectively being made by dozens of murder victim family members who signed a letter supporting the abolition bill.
How come it was so difficult for states to get an effective death penalty going again after the Supreme Court's temporary abolition in the early 1970s? That is a crucial question that scholarship should focus on. Capital punishment came back by the late 1970s, but it was like the pets in Stephen King's Pet Sematary there was something not quite right about it. It is remarkable, in the end, that all the effort of the Supreme Court and Congress in the 1980s and 1990s to normalize the death penalty failed and its days are now numbered although it will stagger on for as much as another decade or more.
“Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it,” Mr. Quinn said in a statement. “With our broken system, we cannot ensure justice is achieved in every case.”
These recent legislative abolitions are a real break with the politics of governing through crime in which legislatures have defined themselves above all as on the side of crime victims, a group publicly represented mostly by families of murder victims who embrace capital punishment. When courts abolish the death penalty as unconstitutional, they tend to play into this politics by appearing as an elite institution favoring sympathy for criminals over victims. But as Frank Zimring has pointed out, when legislatures abolish, and governors, who generally position themselves as champions against crime, sign off on abolition, a very different dynamic is taking places.
Quinn's statement emphasized the danger of wrongful conviction, a theme etched in Illinois by a string of gross miscarriages of justice and framed several years ago by Governor George Ryan's mass commutation of the entire Illinois death row at the time. But implicit is a broader critique, i.e., that the death penalty is fundamentally unable to deliver justice and does not provide anymore real protection against crime than prisons do. If it did, it would be hard for politicians in the era of governing through crime to withdraw it notwithstanding highly visible errors, for to do so would be to favor a criminal class (most death row inmates having committed other crimes in the past) over the victim as everyman. It is only because the death penalty is increasingly perceived as rotten in its fundamental uselessness that the wrongful conviction issue can have the power it does. After all we know plenty of people are in prison for wrongful convictions as well, many more in fact than are held by death rows, but it has not led to any substantial movement to reduce prison sentences let alone abolish prisons.
Two key features, the prolonged delay of executions almost everywhere (other than Texas and Virginia) and the uncertainty of correctness now associated with death penalty sentences. This produces a punishment that maximizes the degradation of both prisoner and murder victim families. The prisoner suffers something almost as bad as the old death penalty, spending years, sometimes decades on death row, with the possibility of execution hanging over them, and all the while their time in prison appears not to be no punishment to the victims and the public at all (which of course it is) so long as they continue fighting their death penalty-- but to abandon one's appeals is a form of suicide, and act which is inherently degrading. For victims, the prolonged wait and complex pattern of litigation assures a constantly open wound without any sense that justice is being served, even if their loved ones killer has been in prison serving hard time for decades. This is the point now effectively being made by dozens of murder victim family members who signed a letter supporting the abolition bill.
“To be meaningful, justice should be swift and sure,” they wrote. “The death penalty is neither,” and the trials and appeals “drag victims’ loved ones through an agonizing and lengthy process, which often does not result in the intended punishment.”
How come it was so difficult for states to get an effective death penalty going again after the Supreme Court's temporary abolition in the early 1970s? That is a crucial question that scholarship should focus on. Capital punishment came back by the late 1970s, but it was like the pets in Stephen King's Pet Sematary there was something not quite right about it. It is remarkable, in the end, that all the effort of the Supreme Court and Congress in the 1980s and 1990s to normalize the death penalty failed and its days are now numbered although it will stagger on for as much as another decade or more.
Sunday, March 6, 2011
The Face of the "Monster:" Lori Berenson's Saga as the Criminal Other in the heart of Peru
Jennifer Egan provides a moving account in the NYT Magazine of Lori Berenson's life since being sentenced to life in prison as a terrorist by the Peruvian government of dictator Alberto Fujimori, and since being released on parole (in fits and starts beginning last fall). Berenson a 25 year old American, was convicted in 1996 of collaborating with the Tupac Amaru revolutionary movement, whom the government claimed (apparently with some reason since) was planning a violent seizure of Peru's parliament. Despite the fact that Berenson was at best a minor participant in the plot, including renting an apartment for the group and if the government's case is to be believed, scouting the parliament using her cover as a journalist (something that as Berenson notes, anyone could do since it was a public building), she has long been vilified by ordinary Peruvians as the very face of terror, and her legal travails and recent parole release have been subjects of enormous media frenzies.
Now released to parole in the city of Lima, Berenson is still subject to hateful comments by Lima residents as she goes about the city with her young son Salvador (born in prison). Egan describes going for a walk with Berenson and Salvador
One explanation given for this hatred is the enormous trauma that Peru suffered during the years of terrorism and its repression by the Fujimori regime. Some 70,000 Peruvians are estimated to have been killed, more than half by the government. But while Fujimori is long since disgraced and himself serving a lengthy prison sentence for his crimes in office, and the exposure that so much of the violence was due to the government itself, there is little evidence that Peruvians view Berenson in any more redeeming light, despite the fact that she served 15 years in harsh prison conditions with apparently no trouble or resistance.
Egan's article suggests a number of reasons why Berenson exceeded many far more responsible militants in becoming the face of terror for Peruvians. As a foreigner and especially an American who came to Peru after involvement with left wing groups in Central America, it must have been a relief to Peruvians to see the evil infecting their country as coming from the outside. Perhaps most importantly, according to Egan, Berenson's initial appearance before the media after her arrest was a grimacing and shouting performance that seems to have convicted her before the public, even before her trial.
As Egan reports, the security forces had carefully stage managed the performance, keeping Berenson isolated in terrible conditions before the media show, and (falsely) telling her that she would have to yell because there were no microphones. But her own emotions and idealism must have played a role as well.
What is fascinating about the Berenson saga and troubling for those of us struggling with our own legacy of war on crime and terror in the US, is the way the creation of criminal/terrorist monsters for political purposes, endures in the emotions of a population for years after the circumstances and even the politicians are gone. As Egan notes, the Fujimori regime reaped major benefits in public relations at a time when the far more threatening Shining Path terrorist organization was in full operation, by presenting this foreign threat to Peru and showing that the police and judicial apparatuses could stop her. Yet decades later, and after the reality of Fujimori's dictatorship and its own responsibility for violence, death and terror are fully known to all Peruvians, the regime's construction of Berenson as a monster lives on.
Now released to parole in the city of Lima, Berenson is still subject to hateful comments by Lima residents as she goes about the city with her young son Salvador (born in prison). Egan describes going for a walk with Berenson and Salvador
Berenson insisted we wait until dark to go out; since her parole, she has been hounded by strangers who scream obscenities or call her “assassin” and “murderer.” Just that day, on her way back from the playground with her mother and Salvador, “this woman said: ‘You’re under house arrest! You should be in your house!’ She was with a cellphone, taking pictures. I don’t like going to the park, because people stare at you and make you feel as though you’re not welcome.”
One explanation given for this hatred is the enormous trauma that Peru suffered during the years of terrorism and its repression by the Fujimori regime. Some 70,000 Peruvians are estimated to have been killed, more than half by the government. But while Fujimori is long since disgraced and himself serving a lengthy prison sentence for his crimes in office, and the exposure that so much of the violence was due to the government itself, there is little evidence that Peruvians view Berenson in any more redeeming light, despite the fact that she served 15 years in harsh prison conditions with apparently no trouble or resistance.
Egan's article suggests a number of reasons why Berenson exceeded many far more responsible militants in becoming the face of terror for Peruvians. As a foreigner and especially an American who came to Peru after involvement with left wing groups in Central America, it must have been a relief to Peruvians to see the evil infecting their country as coming from the outside. Perhaps most importantly, according to Egan, Berenson's initial appearance before the media after her arrest was a grimacing and shouting performance that seems to have convicted her before the public, even before her trial.
Five weeks after her arrest, on Jan. 8, 1996, Berenson was taken to a small auditorium in the headquarters of Dincote, Peru’s antiterrorist police, and presented to the press. Her performance was indelible: she took the stage bellowing in Spanish, hands clenched at her sides, long dark hair tumbling down both sides of her face. After denouncing suffering and injustice in Peru, she denied that she was a terrorist by shouting: “In the M.R.T.A. there are no criminal terrorists. It is a revolutionary movement!” — words that, to Peruvian ears, amounted to a confession. She looked scary: big, ungoverned and enraged. To this day, clips from that 15-year-old tirade are part of any news story about her on Peruvian TV; stills from it, in which she appears to be baring her teeth, appeared on the front pages of Peruvian newspapers when she was paroled. Her father told me ruefully: “Forty-four seconds, and it ruined her life. It doesn’t take much.”
As Egan reports, the security forces had carefully stage managed the performance, keeping Berenson isolated in terrible conditions before the media show, and (falsely) telling her that she would have to yell because there were no microphones. But her own emotions and idealism must have played a role as well.
What is fascinating about the Berenson saga and troubling for those of us struggling with our own legacy of war on crime and terror in the US, is the way the creation of criminal/terrorist monsters for political purposes, endures in the emotions of a population for years after the circumstances and even the politicians are gone. As Egan notes, the Fujimori regime reaped major benefits in public relations at a time when the far more threatening Shining Path terrorist organization was in full operation, by presenting this foreign threat to Peru and showing that the police and judicial apparatuses could stop her. Yet decades later, and after the reality of Fujimori's dictatorship and its own responsibility for violence, death and terror are fully known to all Peruvians, the regime's construction of Berenson as a monster lives on.
Wednesday, February 23, 2011
Thnking Allowed about the Death Penalty
David Garland discussed his important new book on America's death penalty (Peculiar Institution) on BBC Radio Four's Thinking Allowed this afternoon (listen here). Along with host Laurie Taylor and former Director of Public Prosecutions, Ken (Lord) MacDonald, David focused on the paradoxes of American capital punishment in the age of abolition. For Garland, America's death penalty is not a reflection of our archaic commitment to blood and vengeance, but a product of a constitutional structure that places such an extraordinarily potent symbolic issue in the hands of locally elected legislatures, prosecutors, and judges (not to mention juries). The result is an extraordinary variegated institution that amounts to largely a symbolic legal statement in most states, and a reason to actually kill someone every month or so, in a couple of state (especially Texas).
While reminding us that more than a 1,000 people have been killed since the restoration of capital punishment in the late 1970s, Garland argues that the real value of capital punishment lies much more in the discursive opportunities it presents for politicians to signify their identity with vulnerable citizens, for the media to stroke existential anxieties that Americans share with most other people around the world, and in large part, to obscure the vastly larger system of mass incarceration which condemns millions to losing part of all of their lives in degrading prisons.
The happiest part of the discussion (for me) was the end where David talked about the possible path to abolition. The end game (which we are hopefully in) is all about states with symbolic death penalties choosing to abolish for cost savings issues. New Jersey and New Mexico have already done that. Illinois passed a law through its legislature but it looks like it may die on the desk of the new Republican governor. If such a process were to unfold, leaving the death penalty an all southern institution, it is possible that even a court dominated by conservatives and cautious liberals would decide that such a sectional institution was inherently cruel and usual (especially if they at least subrosa considered the international pattern).
I fear, however, there will be considerable resistance to this path by those who will argue that keeping even a symbolic death penalty is necessary to block the efforts of reformers to reduce mass incarceration by reducing lengthy sentences for non-capital murderers. This was the precisely the recent argument of conservative San Francisco pundit Debra Saunders (read her column here):
This suggests that the campaign for abolition must become part of the larger struggle against mass incarceration rather than a special pleading that often promotes longer punishments (like LWOP).
While reminding us that more than a 1,000 people have been killed since the restoration of capital punishment in the late 1970s, Garland argues that the real value of capital punishment lies much more in the discursive opportunities it presents for politicians to signify their identity with vulnerable citizens, for the media to stroke existential anxieties that Americans share with most other people around the world, and in large part, to obscure the vastly larger system of mass incarceration which condemns millions to losing part of all of their lives in degrading prisons.
The happiest part of the discussion (for me) was the end where David talked about the possible path to abolition. The end game (which we are hopefully in) is all about states with symbolic death penalties choosing to abolish for cost savings issues. New Jersey and New Mexico have already done that. Illinois passed a law through its legislature but it looks like it may die on the desk of the new Republican governor. If such a process were to unfold, leaving the death penalty an all southern institution, it is possible that even a court dominated by conservatives and cautious liberals would decide that such a sectional institution was inherently cruel and usual (especially if they at least subrosa considered the international pattern).
I fear, however, there will be considerable resistance to this path by those who will argue that keeping even a symbolic death penalty is necessary to block the efforts of reformers to reduce mass incarceration by reducing lengthy sentences for non-capital murderers. This was the precisely the recent argument of conservative San Francisco pundit Debra Saunders (read her column here):
Is the answer to get rid of the death penalty because it's too expensive? Hell, no. As soon as the death penalty is gone, thug huggers will use the same appeals system to go after life without parole.
This suggests that the campaign for abolition must become part of the larger struggle against mass incarceration rather than a special pleading that often promotes longer punishments (like LWOP).
Sunday, February 13, 2011
Sarkozy’s battle with the French magistrates
(Read Angelique Crisafis reporting in the Guardian here)
Special report from Simon Grivet, Paris
Her beautiful smile was everywhere. As soon as Laetitia’s disappearance appeared to be the result of a crime, her picture made front page news. She was an 18 year-old young woman living in Pornic, a small and tranquil seaside resort near Nantes. Hints of a tragedy soon accumulated as the police and gendarmerie intensified their search: her scooter was found, wrecked, on the side of the road; her boyfriend revealed text messages she sent the night of her disappearance in which she said she had been raped; moreover, the police finally arrested one Tony Meilhon, a 32-year-old marginal who had been seen with her the final night. Meilhon had a long record: at age 16 in jail he put a stick in the rectum of another inmate, sentenced for sexual crimes. Meilhon received a 5-year prison sentence he executed entirely. His life was never stable and he accumulated 14 other convictions for theft, robbery and his latest for contempt of the court. He was free under probation but had not yet met with his counselor and recently, in contradictions with the terms of his probation, moved to a new address. Meilhon stubbornly denied having kidnapped, molested or voluntary killed Laetitia. Confronted with such heavy hints of guilt as Laetitia’s blood and DNA in the trunk of his car, he stuck to the same improbable story: he had had a traffic accident with the young woman and, as he saw her dead after the shock, he threw her body in the river Loire. After harrowing days of wait for Laetitia’s family and friends, marked by silent demonstrations, the gendarmerie discovered parts of Laetitia’s body in a pond where the main suspect used to go fishing. The first investigation of the body would indicate that Laetitia had been strangled. Meilhon remains to this day defiant and mute.
On February 3rd, Nicolas Sarkozy came to the city of Orleans – 80 miles south of Paris – for one of his favorite duty: the inauguration of the a new police station. Sarkozy held the post of minister de l’intérieur Head of the Home Office between 2002 and 2005 and built his successful presidential bid in 2007 on a very determined and energetic “law and order” ideology. Security, the “fight against crime and criminals”, those he called “rabble” needed to be taking care of, even if it meant that some urban areas had be “cleaned with a Kärcher”. This tough talk almost immediately brought hostile reactions among civil rights advocates, lawyers and some magistrates. Once elected president, Sarkozy and his first Justice secretary, Rachida Dati, carried out a draconian program to impose a new severity against crime: in 2007 tougher sentencing guidelines for recidivists, in 2008 an almost unique law in Europe enabling the State to keep behind bars a criminal who would have done all his sentence but would have been adjudged “dangerous” by a special panel of magistrates and psychiatrists, etc. These policies have had debated results: more people are incarcerated than never before in France (62 000); at the same time, some French prisons are in disrepair and globally there are not enough spots in prison, overpopulation reaches 120%; crime statistics offer a mixed bag of conflicting results as delinquency appears to be declining but not the specific violence “against the person”, i.e. acts of violence, rape, murder, etc. are increasing. More generally, 15 months before the presidential elections, Sarkozy’s political situation is uncomfortable to say the least. He has lost every local elections held in France since 2007 and his approval ratings are stuck at 30%.
In this context, a couple of days after the discovery of Laetitia’s body, Sarkozy made the following comments about this affair:
Those comments immediately stirred an intense emotion in the Nantes’ court were Meilhon had been sentenced for contempt of the court. First, many observers were surprised that Sarkozy would call Meilhon “the presumed guilty” as a suspect is of course presumed innocent until proved guilty. But magistrates more profoundly felt abused by Sarkozy’s comments as the President seemed to be implying that judges were somehow complicit in this tragic murder. Magistrates argued that they had warned their hierarchy many times that probation officers did not have an adequate workload: in spite of the recommended 60 cases they had 120 or more. Also, the Nantes’ court had only 3 juge d’application des peines (JAP) – a specific judge in France whose specific duty it is to follow and control probation and conditional releases of criminals – when they should have 4. In short, magistrates immediately reminded Sarkozy of the dire state of the justice system in France. Ranked only 37th out of 43 European countries for its justice system budget, France has had those issues for a long time. With only 7 billion Euros, the Justice department is supposed to run some 170 courts, pay all his personnel, their pensions and also run the prison system! Many courts in France are plagued with endemic and pitiful delays: a relatively simple criminal offense like speeding could take 6 to 9 months before being examined.
In Nantes and shortly in all other courts in France, magistrates postponed non urgent matters and adopted protestations motions against Sarkozy. Those actions were already exceptional in a group which by law has no right to strike and by tradition remains conservative and cautious about any involvement in the political arena. But to the surprise of many, especially older magistrates, the movement did not weaken. It led to an historic protest last Thursday when hundreds of magistrates, wearing their black robes, joined by lawyers and police officers, expressed their anger at Sarkozy and ask for better funding.
The fight between Sarkozy and the magistrates thus followed simple lines. Confronted with an original protest from a group he had previously castigated, Sarkozy and his allies presented themselves as the voices and representatives of the victim, close to the people and sharing his simple but essential indignation against such a terrible murder. Members of the government denounced a “corporatist, selfish” movement, “led by unions” and unable to understand the feelings of the population. The media named the magistrates’ movement “a Fronde” which is not a very pleasant denomination as historically the Fronde designated the nobility’s revolt against Anne d’Autriche, Mazarin and the young Louis XIV in 1648-53, a movement of the privileged few, compared to the great Revolution of 1789.
However a poll showed that 65% of the French understand the magistrates’ movement. Thursday night, Sarkozy spent 15 minutes in his 2 and a half hour televised show on the topic of security and justice. On the issues, he did not bulge: if mistakes were made in the Meilhon’s case, sanctions will be handed out. Moreover there will not be any new funding for the justice system. But he had to reassure the millions of viewers that “the immense majority of the French magistrates are doing an excellent job”. The following day, the magistrates’ unions expressed their disappointment and called for a continuance of the movement. Non urgent cases will be postponed again next week and it remains to be seen how the movement will end.
This episode illustrates several traits of the French political situation in a time of “government through crime” in all Occidental nations. First, Sarkozy plays the well-known “law and order” tactic: not only does he present himself as tough on crime and deeply concerned with victims but he also strongly criticizes the magistrates for being either incompetent or guilty of laxity. Second, the magistrates did react to this direct aggression although clumsily at times. The apprehension born out of the massive Outreau scandal – a dozen innocents spent 2 to 3 years in prison for imaginary pedophile crimes – has not disappeared. Sarkozy did play the Outreau card Thursday night reminding viewers that the main investigative magistrate responsible for it had only received a reprimand from his peers. However, the magistrates managed to set up an organized movement which was well received by the public opinion. Sarkozy’s operation of blaming the magistrates for the shortcomings of his policies might well fail this time.
Simon Grivet
History teacher, France
Special report from Simon Grivet, Paris
Her beautiful smile was everywhere. As soon as Laetitia’s disappearance appeared to be the result of a crime, her picture made front page news. She was an 18 year-old young woman living in Pornic, a small and tranquil seaside resort near Nantes. Hints of a tragedy soon accumulated as the police and gendarmerie intensified their search: her scooter was found, wrecked, on the side of the road; her boyfriend revealed text messages she sent the night of her disappearance in which she said she had been raped; moreover, the police finally arrested one Tony Meilhon, a 32-year-old marginal who had been seen with her the final night. Meilhon had a long record: at age 16 in jail he put a stick in the rectum of another inmate, sentenced for sexual crimes. Meilhon received a 5-year prison sentence he executed entirely. His life was never stable and he accumulated 14 other convictions for theft, robbery and his latest for contempt of the court. He was free under probation but had not yet met with his counselor and recently, in contradictions with the terms of his probation, moved to a new address. Meilhon stubbornly denied having kidnapped, molested or voluntary killed Laetitia. Confronted with such heavy hints of guilt as Laetitia’s blood and DNA in the trunk of his car, he stuck to the same improbable story: he had had a traffic accident with the young woman and, as he saw her dead after the shock, he threw her body in the river Loire. After harrowing days of wait for Laetitia’s family and friends, marked by silent demonstrations, the gendarmerie discovered parts of Laetitia’s body in a pond where the main suspect used to go fishing. The first investigation of the body would indicate that Laetitia had been strangled. Meilhon remains to this day defiant and mute.
On February 3rd, Nicolas Sarkozy came to the city of Orleans – 80 miles south of Paris – for one of his favorite duty: the inauguration of the a new police station. Sarkozy held the post of minister de l’intérieur Head of the Home Office between 2002 and 2005 and built his successful presidential bid in 2007 on a very determined and energetic “law and order” ideology. Security, the “fight against crime and criminals”, those he called “rabble” needed to be taking care of, even if it meant that some urban areas had be “cleaned with a Kärcher”. This tough talk almost immediately brought hostile reactions among civil rights advocates, lawyers and some magistrates. Once elected president, Sarkozy and his first Justice secretary, Rachida Dati, carried out a draconian program to impose a new severity against crime: in 2007 tougher sentencing guidelines for recidivists, in 2008 an almost unique law in Europe enabling the State to keep behind bars a criminal who would have done all his sentence but would have been adjudged “dangerous” by a special panel of magistrates and psychiatrists, etc. These policies have had debated results: more people are incarcerated than never before in France (62 000); at the same time, some French prisons are in disrepair and globally there are not enough spots in prison, overpopulation reaches 120%; crime statistics offer a mixed bag of conflicting results as delinquency appears to be declining but not the specific violence “against the person”, i.e. acts of violence, rape, murder, etc. are increasing. More generally, 15 months before the presidential elections, Sarkozy’s political situation is uncomfortable to say the least. He has lost every local elections held in France since 2007 and his approval ratings are stuck at 30%.
In this context, a couple of days after the discovery of Laetitia’s body, Sarkozy made the following comments about this affair:
“When a person like the presumed guilty is allowed to come out of prison without being sure that he would be followed by a probation officer, it is wrong. Those who have committed this fault or let it happened will be punished, it’s the rule.” And he added “When there is such a wrong which led to such a trap, our fellow countrymen would not understand if there weren’t any punishment.”
Those comments immediately stirred an intense emotion in the Nantes’ court were Meilhon had been sentenced for contempt of the court. First, many observers were surprised that Sarkozy would call Meilhon “the presumed guilty” as a suspect is of course presumed innocent until proved guilty. But magistrates more profoundly felt abused by Sarkozy’s comments as the President seemed to be implying that judges were somehow complicit in this tragic murder. Magistrates argued that they had warned their hierarchy many times that probation officers did not have an adequate workload: in spite of the recommended 60 cases they had 120 or more. Also, the Nantes’ court had only 3 juge d’application des peines (JAP) – a specific judge in France whose specific duty it is to follow and control probation and conditional releases of criminals – when they should have 4. In short, magistrates immediately reminded Sarkozy of the dire state of the justice system in France. Ranked only 37th out of 43 European countries for its justice system budget, France has had those issues for a long time. With only 7 billion Euros, the Justice department is supposed to run some 170 courts, pay all his personnel, their pensions and also run the prison system! Many courts in France are plagued with endemic and pitiful delays: a relatively simple criminal offense like speeding could take 6 to 9 months before being examined.
In Nantes and shortly in all other courts in France, magistrates postponed non urgent matters and adopted protestations motions against Sarkozy. Those actions were already exceptional in a group which by law has no right to strike and by tradition remains conservative and cautious about any involvement in the political arena. But to the surprise of many, especially older magistrates, the movement did not weaken. It led to an historic protest last Thursday when hundreds of magistrates, wearing their black robes, joined by lawyers and police officers, expressed their anger at Sarkozy and ask for better funding.
The fight between Sarkozy and the magistrates thus followed simple lines. Confronted with an original protest from a group he had previously castigated, Sarkozy and his allies presented themselves as the voices and representatives of the victim, close to the people and sharing his simple but essential indignation against such a terrible murder. Members of the government denounced a “corporatist, selfish” movement, “led by unions” and unable to understand the feelings of the population. The media named the magistrates’ movement “a Fronde” which is not a very pleasant denomination as historically the Fronde designated the nobility’s revolt against Anne d’Autriche, Mazarin and the young Louis XIV in 1648-53, a movement of the privileged few, compared to the great Revolution of 1789.
However a poll showed that 65% of the French understand the magistrates’ movement. Thursday night, Sarkozy spent 15 minutes in his 2 and a half hour televised show on the topic of security and justice. On the issues, he did not bulge: if mistakes were made in the Meilhon’s case, sanctions will be handed out. Moreover there will not be any new funding for the justice system. But he had to reassure the millions of viewers that “the immense majority of the French magistrates are doing an excellent job”. The following day, the magistrates’ unions expressed their disappointment and called for a continuance of the movement. Non urgent cases will be postponed again next week and it remains to be seen how the movement will end.
This episode illustrates several traits of the French political situation in a time of “government through crime” in all Occidental nations. First, Sarkozy plays the well-known “law and order” tactic: not only does he present himself as tough on crime and deeply concerned with victims but he also strongly criticizes the magistrates for being either incompetent or guilty of laxity. Second, the magistrates did react to this direct aggression although clumsily at times. The apprehension born out of the massive Outreau scandal – a dozen innocents spent 2 to 3 years in prison for imaginary pedophile crimes – has not disappeared. Sarkozy did play the Outreau card Thursday night reminding viewers that the main investigative magistrate responsible for it had only received a reprimand from his peers. However, the magistrates managed to set up an organized movement which was well received by the public opinion. Sarkozy’s operation of blaming the magistrates for the shortcomings of his policies might well fail this time.
Simon Grivet
History teacher, France
Wednesday, February 9, 2011
Should murderers have the right to vote in prison?
The fact that I'm even thinking about this issue is a testament to the cognitive difference of living in the European Community for the past six months. Five years ago, the Grand Chamber of the European Court of Human Rights held in the case of HIRST v UK, Application No. 74025/01 (read the case online here) that the UK must revise its law banning all prisoners from voting in at least Parliamentary elections. Hirst, who was convicted of manslaughter and sentenced to a discretionary life sentence with a tariff of fifteen years (the minimum term prior to any possible parole, based on retributive and deterrent considerations), claimed among other things, that the voting ban violated his rights under Article 3 of Protocol No. 1 of the European Convention of Human Rights, which provides that:
The Court declined to specify which prisoners had to be able to vote, noting that in this area, the "margin of appreciation is wide" within which courts should defer to legislative judgments about the purposes of punishment and the conduct of elections; but they clearly implied that under Article 3 of Protocol No. 1, some prisoner must be given the right to vote.
In November, a chamber (roughly the equivalent of appellate court panels in the US) of the European Court of Human Rights took notice of the fact that five years and at least one national election had gone by since the decision in HIRST and the UK had still not revised its law. IN, CASE OF GREENS and M.T. v. THE UNITED KINGDOM, Applications nos. 60041/08 and 60054/08 (read it here) the Court ordered the UK to come up with a new law within six months, and ordered them to pay 5000 Euros in expenses to prisoners with claims currently before the court (with the strong implication that a similar payment would be required for any future litigation, perhaps multiplied by thousands of prisoners who could be expected to bring cases should the government continue to ignore the court).
As noted in yesterday's post, there is something of a backbench rebellion going on among both Tory and Labour MPs who would like to snarl at the European Court and denounce it for interfering with sovereignty. The government, however, is clearly moving rapidly toward a new law (the old one dates back to 1870). This morning on BBC4 radio, Justice Secretary Ken Clarke indicated as much (listen to it here, note there is along interlude on the finances of the Supreme Court before they get to the voting issue), and while he would not say where the government wants to draw the line, he did trot out the clear cases of those who would be excluded, murderers and rapists.
While the European Court may well approve not only the exclusion of murderers and rapists, but lots of other persons sent to prison for significant sentences (after all they did talk about "the margin of appreciation" being "wide" for the political choice element), there are some good reasons why a government less committed to populist punitiveness might well recognize a duty to let even murderers vote and an outside chance the Court will make them do it.
First consider that the Court declined in HIRST itself to question the legitimacy of the governments goal of punishing offenders through denying them the vote (choosing instead to focus on proportionality). But they may have to reach this issue in the next case. Is denying a murderer the right to vote for Parliament a legitimate form of punishment? In HIRST, the Grand Chamber did say this in paragraph 69 of its judgment:
This expresses a theme elaborated even more by the The European Prison Rules (Recommendation No. R (87) 3 of the Committee of Ministers of the Council of Europe) which states in paragraph 64:
While the recommendations of the Committee of Ministers are not binding on the Court, they have been influential. The essence of the argument is that, at least in Europe, punishment is limited to deprivation of liberty (and all that may be administratively necessary to accomplish that). Moreover, if there is to be a surplus beyond deprivation of liberty (the express argument of the UK government in HIRST), it surely cannot be one focused on status degradation, which offends the dignity principle running through much of the binding treaty law to which the UK is a signatory. For example, Article 10 International Covenant of Civil and Political Rights provides:
I am taken, for the moment, with an analogy suggested in the Grand Chamber's judgment in HIRST to a prisoner's family status. In paragraph 69, the Court articulated examples of rights that prisoners do not lose by being imprisoned, and the very first one, other than the right not to be abused that they mention is "they continue to enjoy the right to respect for family life."
Should a murderer have their parental rights and duties terminated by conviction and imprisonment (beyond those duties made impossible by loss of liberty and penal segregation)? Is not being a parent just as honorable a status in our societies as being a voter? In fact, both mix duty and honor.
Beyond punishment, the UK government could claim that banning murderers and rapists is essential to preserve the integrity of the electoral process. Even assuming that murderers and rapists would vote their class interest in weakening criminal laws and law enforcement, what plausible argument is there that any competitive candidate standing for MP would seek to attract such votes by advertising their desire to be as lenient as possible with murderers and rapists, or weakening law enforcement to assure that fewer of them would get caught.
Perhaps there is an argument that if all prisoners were allowed to vote in the Parliamentary constituency where they are currently serving time they could swing a close election. But the government has a easy solution to that problem. It can allow prisoners to vote in the constituency in which they lived prior to incarceration (which is more likely to be their relevant community in any event). Even under conditions of mass incarceration (and just between the two cases, the numbers of potentially effected prisoners in the UK had grown by tens of thousands), there is no plausible scenario under which prisoner votes would alter the policy positions taken by candidates on law and justice issues.
On the other side there are compelling arguments that voting is an example of pro-social, non-self interested behavior that should be an integral part of the rehabilitative process which the UK remains committed to (at least in theory).
"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."
The Court declined to specify which prisoners had to be able to vote, noting that in this area, the "margin of appreciation is wide" within which courts should defer to legislative judgments about the purposes of punishment and the conduct of elections; but they clearly implied that under Article 3 of Protocol No. 1, some prisoner must be given the right to vote.
In November, a chamber (roughly the equivalent of appellate court panels in the US) of the European Court of Human Rights took notice of the fact that five years and at least one national election had gone by since the decision in HIRST and the UK had still not revised its law. IN, CASE OF GREENS and M.T. v. THE UNITED KINGDOM, Applications nos. 60041/08 and 60054/08 (read it here) the Court ordered the UK to come up with a new law within six months, and ordered them to pay 5000 Euros in expenses to prisoners with claims currently before the court (with the strong implication that a similar payment would be required for any future litigation, perhaps multiplied by thousands of prisoners who could be expected to bring cases should the government continue to ignore the court).
As noted in yesterday's post, there is something of a backbench rebellion going on among both Tory and Labour MPs who would like to snarl at the European Court and denounce it for interfering with sovereignty. The government, however, is clearly moving rapidly toward a new law (the old one dates back to 1870). This morning on BBC4 radio, Justice Secretary Ken Clarke indicated as much (listen to it here, note there is along interlude on the finances of the Supreme Court before they get to the voting issue), and while he would not say where the government wants to draw the line, he did trot out the clear cases of those who would be excluded, murderers and rapists.
While the European Court may well approve not only the exclusion of murderers and rapists, but lots of other persons sent to prison for significant sentences (after all they did talk about "the margin of appreciation" being "wide" for the political choice element), there are some good reasons why a government less committed to populist punitiveness might well recognize a duty to let even murderers vote and an outside chance the Court will make them do it.
First consider that the Court declined in HIRST itself to question the legitimacy of the governments goal of punishing offenders through denying them the vote (choosing instead to focus on proportionality). But they may have to reach this issue in the next case. Is denying a murderer the right to vote for Parliament a legitimate form of punishment? In HIRST, the Grand Chamber did say this in paragraph 69 of its judgment:
In this case, the Court would begin by underlining that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention.
This expresses a theme elaborated even more by the The European Prison Rules (Recommendation No. R (87) 3 of the Committee of Ministers of the Council of Europe) which states in paragraph 64:
Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.
While the recommendations of the Committee of Ministers are not binding on the Court, they have been influential. The essence of the argument is that, at least in Europe, punishment is limited to deprivation of liberty (and all that may be administratively necessary to accomplish that). Moreover, if there is to be a surplus beyond deprivation of liberty (the express argument of the UK government in HIRST), it surely cannot be one focused on status degradation, which offends the dignity principle running through much of the binding treaty law to which the UK is a signatory. For example, Article 10 International Covenant of Civil and Political Rights provides:
"1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." (emphasis added)
I am taken, for the moment, with an analogy suggested in the Grand Chamber's judgment in HIRST to a prisoner's family status. In paragraph 69, the Court articulated examples of rights that prisoners do not lose by being imprisoned, and the very first one, other than the right not to be abused that they mention is "they continue to enjoy the right to respect for family life."
Should a murderer have their parental rights and duties terminated by conviction and imprisonment (beyond those duties made impossible by loss of liberty and penal segregation)? Is not being a parent just as honorable a status in our societies as being a voter? In fact, both mix duty and honor.
Beyond punishment, the UK government could claim that banning murderers and rapists is essential to preserve the integrity of the electoral process. Even assuming that murderers and rapists would vote their class interest in weakening criminal laws and law enforcement, what plausible argument is there that any competitive candidate standing for MP would seek to attract such votes by advertising their desire to be as lenient as possible with murderers and rapists, or weakening law enforcement to assure that fewer of them would get caught.
Perhaps there is an argument that if all prisoners were allowed to vote in the Parliamentary constituency where they are currently serving time they could swing a close election. But the government has a easy solution to that problem. It can allow prisoners to vote in the constituency in which they lived prior to incarceration (which is more likely to be their relevant community in any event). Even under conditions of mass incarceration (and just between the two cases, the numbers of potentially effected prisoners in the UK had grown by tens of thousands), there is no plausible scenario under which prisoner votes would alter the policy positions taken by candidates on law and justice issues.
On the other side there are compelling arguments that voting is an example of pro-social, non-self interested behavior that should be an integral part of the rehabilitative process which the UK remains committed to (at least in theory).
Monday, February 7, 2011
Prisoner Voting and Penal Populism in the UK
Last fall Justice Minister Ken Clarke issued a green paper [read the consultation paper here] on penal policy signaling a course correction from the mass incarceration policies promoted by New Labour during its 13 years in power (and indeed for the last two years of the Tory government which proceeded). Better use of community corrections for less serious crimes, reconsideration of mandatory minimums on life sentences, and restorative justice across the range of cases were all to be considered, with the goal of avoiding the continued growth of incarceration in England Wales. So far these signs have not been reversed. But the potential limits of the coalitions' experiment with reversing the larger constellation of penal populism, from which mass incarceration is a predictable result, are now on display as the government confronts a renewed call by the European Court of Human Rights to address a five year old mandate, utterly ignored by the previous government, to give most British prisoners the ability to vote in elections for parliamentary bodies (regional, national, or European), or face paying compensation damages to all otherwise eligible prisoners beginning with the upcoming regional elections (for the Scots parliament and the Welsh Assembly) [read the Guardian's coverage of the Novemeber decision].
Prime Minister David Cameron indicated that he would probably comply in order to avoid the hit on the exchequer of having to pay millions in compensation, but not without telling Parliament that it made him "physically ill" to think of prisoners voting [see it on YouTube here]. The PM chose an apt metaphor (I assume it was meant that way) to describe his response, since the attachment to voters through penal populism is required to be visceral. The fulle exchange should be viewed to see how committed the British polity seems to be to penal populism.
The exchange begins with a Tory backbencher asking whether hte Prime Minister agrees with him that the Human Rights Court's decision is "wrong" "because incarceration should mean a loss of rights, and that must surely include the right to vote." The PM said he "completely agreed" before sharing his bodily fluids issue. This exchange is followed by a labor backbencher who asks how the PM would look at "prisoners voting to to elect the crime commissioner or police chief." When Cameron attempts to pass it off, the Speaker to laughter (suggesting agreement) requests the PM to answer, after which he reiterates what a great point it is, before restating that it would be even more wrong to pay prisoners compensation money.
The implication, apparently shared by both the Conservative party and Labour (leaving Liberal Democrats possibly to resist on this), is that prisoners should lose all their rights, "certainly including a right to vote." The opposing view is now widely shared among European Human Rights experts. As Thomas Hammarburg, Europe's Commission for Human Rights, argued a few days ago in a Guardian Op-ed:
Hammarburg points out that the very idea of universal suffrage was a hard fought battle for equality won against the strong presumption that status should determine whether an adult citizen could vote or note. The UK is nearly alone in Europe in maintaining that prisoner status is an exception to that revolutionary democratic principle.
Whether the current British government will ultimately fulfill the mandate is unclear. The government faces a brewing backbench rebellion on the issue, and one prominent conservative think tank has now called for the UK to withdraw from the jurisdiction of the European Court of Human Rights, despite being one of its founding members some 60 years ago. [read Patrick Wintour's analysis in the Guardian here]
As if to solidify his presence as a "tough on crime" leader, David Cameron took the opportunity of a report on the previous government's role in forwarding Libya's appeals on behalf of Abdelbaset al-Megrahi (convicted as the Lockerbie bomber, but released more than a year and a half ago by Scottish authorities on compassionate grounds that he was dying of cancer), to let everyone know that he believed al-Megrahi should have "died in prison." [On the report see Severin Carrell's reporting in the Guardian here]
Prime Minister David Cameron indicated that he would probably comply in order to avoid the hit on the exchequer of having to pay millions in compensation, but not without telling Parliament that it made him "physically ill" to think of prisoners voting [see it on YouTube here]. The PM chose an apt metaphor (I assume it was meant that way) to describe his response, since the attachment to voters through penal populism is required to be visceral. The fulle exchange should be viewed to see how committed the British polity seems to be to penal populism.
The exchange begins with a Tory backbencher asking whether hte Prime Minister agrees with him that the Human Rights Court's decision is "wrong" "because incarceration should mean a loss of rights, and that must surely include the right to vote." The PM said he "completely agreed" before sharing his bodily fluids issue. This exchange is followed by a labor backbencher who asks how the PM would look at "prisoners voting to to elect the crime commissioner or police chief." When Cameron attempts to pass it off, the Speaker to laughter (suggesting agreement) requests the PM to answer, after which he reiterates what a great point it is, before restating that it would be even more wrong to pay prisoners compensation money.
The implication, apparently shared by both the Conservative party and Labour (leaving Liberal Democrats possibly to resist on this), is that prisoners should lose all their rights, "certainly including a right to vote." The opposing view is now widely shared among European Human Rights experts. As Thomas Hammarburg, Europe's Commission for Human Rights, argued a few days ago in a Guardian Op-ed:
Convicts are human beings, with human rights. I hope the British authorities will respect the court ruling on voting rights for prisoners. They could do that knowing that most other member states of the Council of Europe already allow prisoners to vote – and this has caused no real problems and is not even an issue in these countries.
Hammarburg points out that the very idea of universal suffrage was a hard fought battle for equality won against the strong presumption that status should determine whether an adult citizen could vote or note. The UK is nearly alone in Europe in maintaining that prisoner status is an exception to that revolutionary democratic principle.
Whether the current British government will ultimately fulfill the mandate is unclear. The government faces a brewing backbench rebellion on the issue, and one prominent conservative think tank has now called for the UK to withdraw from the jurisdiction of the European Court of Human Rights, despite being one of its founding members some 60 years ago. [read Patrick Wintour's analysis in the Guardian here]
As if to solidify his presence as a "tough on crime" leader, David Cameron took the opportunity of a report on the previous government's role in forwarding Libya's appeals on behalf of Abdelbaset al-Megrahi (convicted as the Lockerbie bomber, but released more than a year and a half ago by Scottish authorities on compassionate grounds that he was dying of cancer), to let everyone know that he believed al-Megrahi should have "died in prison." [On the report see Severin Carrell's reporting in the Guardian here]
Wednesday, January 26, 2011
War on Crime Anyone? How to respond and not respond to January's heavy toll of outrageous murders and attempted murders
In case anyone has been hiking in desert for the month of January, we are the midst of a wave of frightening murders and attempted murders including the attempted assassination of Representative Gabrielle Gifford in Tucson, and in the same incident the murder of a federal judge and three other victims (including a 9 year old girl) and of quite a number of police officers in Detroit, Miami, Indiana, and Oregon. It seems inevitable that despite the gravity of the economic and environmental threats facing us (if anything, underplayed in the President's state of the union speech) fear of violent crime seems poised to jump again to a high position on the agenda of Americans.
As any reader of this blog will know, a reversion to the national obsession about crime strikes me as the worst possible thing we could do at this moment when we are still trying to wind down a disastrous and expensive war on crime (the prison population went down last year for the first time in 30+ years) that we cannot sustain even if we weren't in such dire straights. Here's a few not terribly well organized thoughts (but what are blogs for and I'm just off an all night flight from Chicago to Edinburgh via Dublin).
While it is impossible to pin down the motives behind all of these incidents at this point (and in some cases we may never really know) we do not seem to be in the midst of new crime wave. Violent crime, including murder, remains very very low by the standards of the last forty years. The trend since the early 1990s has been down nationally and in 2009, the US enjoyed a homicide rate as low as any it has experienced since yours truly was 1 year old in 1960.
It is unlikely there is an organized war on government and law enforcement going on ether, but time will tell (read Jim Gold's reporting on that possibility on msnbc's website here). However, this is clearly not a time that governments should be continuing to cut police forces which has been happening due to the severe state and local fiscal crisis. At least in some locales it is pretty clear that more and better policing has helped to drive down crime. Keep in mind that unlike prison systems which have expanded enormously since the 1970s, police forces have increased only a fraction. And unlike prison spending, an expanded police force can address a wide range of community needs other than investigating crimes. As community problem solvers they can add enormously both to our efforts to keep neighborhoods safer from all kinds of routine threats and they are also a major factor in the resiliency of a community facing a catastrophic blow (as we saw all too clearly in NYC on September 11, 2001, and all too clearly did not see in New Orleans after Hurricane Katrina in September, 2005.
In response to widespread horror and fear, about these killings, some will undoubtedly call for harsher punishment for those who kill or attempt to kill. This would be a huge mistake. The US already provides by far the harshest overall punishments for murder in the world. While other countries may execute more people for murder (including China and Iran), almost no other country imprisons so many killers for what is likely to be the rest of their natural lives.
I realize that many Americans assume that murderers deserve no less than to spend their natural lives incarcerated (if not be executed). This is understandable. Killing for us is the cardinal offense (what treason and blasphemy were to the past). We may have different intuitions about how much punishment is enough but we all ought to reflect on at least three penal considerations.
First of all, given the fact that punishment for killing has increased very very substantially in recent decades there is little reason to believe these recent murders and attempted murders would have been deterred if only harsher punishments were in place. Jared Loughner of Arizona carried out his mass murder in a state that has and uses the death penalty frequently and which keeps other murderers in prison increasingly for the rest of the natural lives. Even if he was not deranged by severe mental illness (which he appears to have been) there is zero reason to believe he would have been deterred by a harsher penal threat. The same goes for the police shootings in Florida.
Nor do we need to keep people in prison for decades and decades just to assure that they will not kill again. Even when we used to let murders out, recidivism was extremely rare. Once someone has spent ten or twenty years in prison, and almost certainly aged to the point where they are over 35, there is very very little reason to fear them, unless their individual prison behavior (like being an enforcer for their racist gang) indicates they have committed themselves to a permanent state of violence. Parole (where it has not been eliminated or reduced to near paralysis by earlier waves of crime fear) allows us to keep those individuals incapacitated while giving the others a huge incentive to do the work on themselves they will need to reassure officials.
Keep in mind that 99+ percent of all murders are done by someone who has never killed before and may never even have been imprisoned for any crime. If you really want to stop a killing before it happens, reducing access to guns for high risk individuals is the only realistic strategy, although more police on the streets and more mental health screening and treatment for those with alarming psychotic behavior could not hurt.
That leaves the question of how long we need to imprison someone for the purpose of communicating both the killer and to the broader community, our outrage that they have denied the essential dignity and immeasurable value of our fellow human being. I do not claim that there are any easy answers to that question whether in criminology or theology. I do not believe however that someone needs to die, or die in prison of old age in order to accomplish that and at no prior stage of our history in the common law world did we ever commit ourselves to such a perspective. Keep in mind that in harsh justice days of Blackstone (an 18th century textbook author on the common law of England much beloved by the authors of the US Constitution) while some killers who were considered especially heinous in their means or motives were hanged (and despite the fact that some people were hanged for stealing) most first time killers received a branded M on their thumbs along with less than a year in jail (through a now largely forgotten legal procedure called 'benefit of clergy' which was, in a way, a form of parole).
My own view is that 10 years of imprisonment under appropriately austere conditions (even by general prison standards) ought to be enough for most first time killers, followed by a comparable period of intensive parole supervision in the community. I would combine that with a requirement that they labor while in prison and on parole to pay off a substantial financial judgment to the family of the victim. For those who kill for heinous motives (like terrorism, monetary benefit, or to stop law enforcement) I would think doubling or tripling the prison portion of that punishment would be enough.
Setting some limits to our scale of punishment for this most provocative of crimes is, in my view, crucial to putting our currently excessive penal appetite (and unsustainable prison population) under control.
I had a chance to discuss some of these issues about murder with a wonderful audience of lawyers, prosecutors, and law students at Marquette University Law School's amazing brand new state of the art law building on Monday the 24th (here is a link to a summary).
As any reader of this blog will know, a reversion to the national obsession about crime strikes me as the worst possible thing we could do at this moment when we are still trying to wind down a disastrous and expensive war on crime (the prison population went down last year for the first time in 30+ years) that we cannot sustain even if we weren't in such dire straights. Here's a few not terribly well organized thoughts (but what are blogs for and I'm just off an all night flight from Chicago to Edinburgh via Dublin).
While it is impossible to pin down the motives behind all of these incidents at this point (and in some cases we may never really know) we do not seem to be in the midst of new crime wave. Violent crime, including murder, remains very very low by the standards of the last forty years. The trend since the early 1990s has been down nationally and in 2009, the US enjoyed a homicide rate as low as any it has experienced since yours truly was 1 year old in 1960.
It is unlikely there is an organized war on government and law enforcement going on ether, but time will tell (read Jim Gold's reporting on that possibility on msnbc's website here). However, this is clearly not a time that governments should be continuing to cut police forces which has been happening due to the severe state and local fiscal crisis. At least in some locales it is pretty clear that more and better policing has helped to drive down crime. Keep in mind that unlike prison systems which have expanded enormously since the 1970s, police forces have increased only a fraction. And unlike prison spending, an expanded police force can address a wide range of community needs other than investigating crimes. As community problem solvers they can add enormously both to our efforts to keep neighborhoods safer from all kinds of routine threats and they are also a major factor in the resiliency of a community facing a catastrophic blow (as we saw all too clearly in NYC on September 11, 2001, and all too clearly did not see in New Orleans after Hurricane Katrina in September, 2005.
In response to widespread horror and fear, about these killings, some will undoubtedly call for harsher punishment for those who kill or attempt to kill. This would be a huge mistake. The US already provides by far the harshest overall punishments for murder in the world. While other countries may execute more people for murder (including China and Iran), almost no other country imprisons so many killers for what is likely to be the rest of their natural lives.
I realize that many Americans assume that murderers deserve no less than to spend their natural lives incarcerated (if not be executed). This is understandable. Killing for us is the cardinal offense (what treason and blasphemy were to the past). We may have different intuitions about how much punishment is enough but we all ought to reflect on at least three penal considerations.
First of all, given the fact that punishment for killing has increased very very substantially in recent decades there is little reason to believe these recent murders and attempted murders would have been deterred if only harsher punishments were in place. Jared Loughner of Arizona carried out his mass murder in a state that has and uses the death penalty frequently and which keeps other murderers in prison increasingly for the rest of the natural lives. Even if he was not deranged by severe mental illness (which he appears to have been) there is zero reason to believe he would have been deterred by a harsher penal threat. The same goes for the police shootings in Florida.
Nor do we need to keep people in prison for decades and decades just to assure that they will not kill again. Even when we used to let murders out, recidivism was extremely rare. Once someone has spent ten or twenty years in prison, and almost certainly aged to the point where they are over 35, there is very very little reason to fear them, unless their individual prison behavior (like being an enforcer for their racist gang) indicates they have committed themselves to a permanent state of violence. Parole (where it has not been eliminated or reduced to near paralysis by earlier waves of crime fear) allows us to keep those individuals incapacitated while giving the others a huge incentive to do the work on themselves they will need to reassure officials.
Keep in mind that 99+ percent of all murders are done by someone who has never killed before and may never even have been imprisoned for any crime. If you really want to stop a killing before it happens, reducing access to guns for high risk individuals is the only realistic strategy, although more police on the streets and more mental health screening and treatment for those with alarming psychotic behavior could not hurt.
That leaves the question of how long we need to imprison someone for the purpose of communicating both the killer and to the broader community, our outrage that they have denied the essential dignity and immeasurable value of our fellow human being. I do not claim that there are any easy answers to that question whether in criminology or theology. I do not believe however that someone needs to die, or die in prison of old age in order to accomplish that and at no prior stage of our history in the common law world did we ever commit ourselves to such a perspective. Keep in mind that in harsh justice days of Blackstone (an 18th century textbook author on the common law of England much beloved by the authors of the US Constitution) while some killers who were considered especially heinous in their means or motives were hanged (and despite the fact that some people were hanged for stealing) most first time killers received a branded M on their thumbs along with less than a year in jail (through a now largely forgotten legal procedure called 'benefit of clergy' which was, in a way, a form of parole).
My own view is that 10 years of imprisonment under appropriately austere conditions (even by general prison standards) ought to be enough for most first time killers, followed by a comparable period of intensive parole supervision in the community. I would combine that with a requirement that they labor while in prison and on parole to pay off a substantial financial judgment to the family of the victim. For those who kill for heinous motives (like terrorism, monetary benefit, or to stop law enforcement) I would think doubling or tripling the prison portion of that punishment would be enough.
Setting some limits to our scale of punishment for this most provocative of crimes is, in my view, crucial to putting our currently excessive penal appetite (and unsustainable prison population) under control.
I had a chance to discuss some of these issues about murder with a wonderful audience of lawyers, prosecutors, and law students at Marquette University Law School's amazing brand new state of the art law building on Monday the 24th (here is a link to a summary).
Saturday, January 22, 2011
The US Death Penalty: A European Perspective
Watching America's death penalty moves from a half year into my stay in Europe has been interesting. As Erik Eckholm and Katie Zezima report in Saturday's NYTimes, the ability of US states to get the drugs for their lethal injection cocktails has been hampered by the complete resistance of any and almost every European country. European Community treaties not only forbid any member states from using a death penalty, they commit them to working to eliminate the death penalty internationally. In the latest instance, the American company that produces sodium theopental does so in Italy, which will not allow it to export drugs for execution purposes. Even the country governed by Silvio Berlusconi, arguably George Bush's best friend in Europe next to Tony Blair (but unlike Tony, still in power for a few more minutes at least) won't give us our death drugs.
It is not that any one obstacle like this will halt the death penalty in the US, but drip by drip they are a reminder that strong opposition to America's use of capital punishment is a uniform and accepted value by virtually all players in the European political spectrum. You will not find conservative European leaders (outside perhaps the racist fringe parties and perhaps not all of them) who will back the US on capital punishment. Even leaders, who unlike Silvio Berlusconi, have political capital to spare, like David Cameron in the UK and Angela Merkel in Germany, are not going to waste it supporting America's execution habit. While many of their constituents continue to say they would like to have death penalty available, they do not hold their leaders even a tiny bit accountable for not giving them one.
Many Americans assume that Europeans couldn't possibly understand our death penalty needs. They may assume that European societies are low violence, relatively homogenous racially, and generally pacifists when it comes to punishing criminals. This picture is as badly out of date as the parallel assumption that the US has a more successful economy for average people. In fact violence remains low by US standards (remember most of Europe does not tolerate private gun ownership beyond hunting weapons and then with strict licensing), but fear of violent crime is a powerful feature of politics in all of the major European countries, much of it fueled by the loss of homogeneity and anxiety about immigration. Nor our Europeans any longer to be counted as "soft on crime." They do not use imprisonment nearly as indiscriminately (another reason their economies may be doing better) but they are increasingly punishing violent crime with long sentences and demanding better police efforts to solve and prevent violence. What they appreciate, even the ones that wouldn't mind having a death penalty, is that capital punishment would contribute next to nothing to protecting them from violent crime and would cost a lot of capital (Euros or Pounds) that nobody wants to pay more taxes for.
That idea is also just beginning to spread across the United States.
It is not that any one obstacle like this will halt the death penalty in the US, but drip by drip they are a reminder that strong opposition to America's use of capital punishment is a uniform and accepted value by virtually all players in the European political spectrum. You will not find conservative European leaders (outside perhaps the racist fringe parties and perhaps not all of them) who will back the US on capital punishment. Even leaders, who unlike Silvio Berlusconi, have political capital to spare, like David Cameron in the UK and Angela Merkel in Germany, are not going to waste it supporting America's execution habit. While many of their constituents continue to say they would like to have death penalty available, they do not hold their leaders even a tiny bit accountable for not giving them one.
Many Americans assume that Europeans couldn't possibly understand our death penalty needs. They may assume that European societies are low violence, relatively homogenous racially, and generally pacifists when it comes to punishing criminals. This picture is as badly out of date as the parallel assumption that the US has a more successful economy for average people. In fact violence remains low by US standards (remember most of Europe does not tolerate private gun ownership beyond hunting weapons and then with strict licensing), but fear of violent crime is a powerful feature of politics in all of the major European countries, much of it fueled by the loss of homogeneity and anxiety about immigration. Nor our Europeans any longer to be counted as "soft on crime." They do not use imprisonment nearly as indiscriminately (another reason their economies may be doing better) but they are increasingly punishing violent crime with long sentences and demanding better police efforts to solve and prevent violence. What they appreciate, even the ones that wouldn't mind having a death penalty, is that capital punishment would contribute next to nothing to protecting them from violent crime and would cost a lot of capital (Euros or Pounds) that nobody wants to pay more taxes for.
That idea is also just beginning to spread across the United States.
Monday, January 10, 2011
Progress and Peril in California's Prison Crisis
Maria Lagos of the SF Chron provided an excellent year start summary and analysis of where things stand with California's both chronic and acute prison crisis.
Progress? Only 8,200 prisoners are sleeping in "non-traditional" quarters, like day rooms and gyms, down from 20,000 in 2006. But almost all of this improvement has come from shipping prisoners out of state to public and private prisons elsewhere (Schwarzenegger's major experiment in government by emergency decree), a practice that is both fiscally irresponsible and violations of the right of access to visits by family and friends that that is a component of all non-degrading punishments.
Perhaps the most striking point is that the state never built a single additional cell of the 53,000 it authorized back in 2007 in AB900, which was supposed to solve the chronic overcrowding problem through new jail space as well as specialized prison centers for re-entry and for incarcerated mothers. Infrastructure, is no doubt hard to build in California for all kinds of environmental and fiscal reasons, for zero additional space in more than three years is powerful evidence that the factors which once made prison space easy to build in California, are over. But it also suggests that the state's capacity to stay on mission regarding prison reform, without the whip of the federal courts, is illusory (despite their bold protests during oral arguments late last year).
The peril? That California might choose limp on, squeezing under the court's limbo pole of 40,000 fewer inmates (about 30K to go), without fundamentally altering our unsustainable commitment to mass incarceration. On the positive side, Ryan Sherman, a spokesperson for the California Professional Peace Officers Association (the union of California's prison officers and parole agents), was quoted dismissing the potential for California to build her way out of the current crisis.
The union would like to focus on the organization of the Department of Corrections and Rehabilitation (which clearly needs a re-boot). Whether they would support a serious effort to downsize permanently the state's imprisonment caseload remains unclear.
One way for Governor Brown to signal that he will not accept a muddle through solution to unwinding mass incarceration to ask the legislature to reauthorize AB900 funds, not for new cells, but to make sure that complying with the court order in Plata does not mean more crime in California by re-hiring laid off police officers around the state and purchasing evidence based recidivism reducing programing both in prisons and in direct re-entry costs. This would be well spent on public security and economic stimulus to California's hard hit communities. It will also build support for more substantial reworking of California's public safety strategy which was last designed to protect us from Charles Manson and needs to protect us from a massive failure of infrastructure combined with natural disasters.
Progress? Only 8,200 prisoners are sleeping in "non-traditional" quarters, like day rooms and gyms, down from 20,000 in 2006. But almost all of this improvement has come from shipping prisoners out of state to public and private prisons elsewhere (Schwarzenegger's major experiment in government by emergency decree), a practice that is both fiscally irresponsible and violations of the right of access to visits by family and friends that that is a component of all non-degrading punishments.
Perhaps the most striking point is that the state never built a single additional cell of the 53,000 it authorized back in 2007 in AB900, which was supposed to solve the chronic overcrowding problem through new jail space as well as specialized prison centers for re-entry and for incarcerated mothers. Infrastructure, is no doubt hard to build in California for all kinds of environmental and fiscal reasons, for zero additional space in more than three years is powerful evidence that the factors which once made prison space easy to build in California, are over. But it also suggests that the state's capacity to stay on mission regarding prison reform, without the whip of the federal courts, is illusory (despite their bold protests during oral arguments late last year).
The peril? That California might choose limp on, squeezing under the court's limbo pole of 40,000 fewer inmates (about 30K to go), without fundamentally altering our unsustainable commitment to mass incarceration. On the positive side, Ryan Sherman, a spokesperson for the California Professional Peace Officers Association (the union of California's prison officers and parole agents), was quoted dismissing the potential for California to build her way out of the current crisis.
"The state cannot build its way out of the overcrowding prison problem," he said. "If they build more beds, we will fill up more beds and continue to be overcrowded. Until we figure out how to reform and reorganize the department so it's efficient and accountable, and take into consideration the limited budget and what's best for the state, I don't anticipate anything improving a great deal."
The union would like to focus on the organization of the Department of Corrections and Rehabilitation (which clearly needs a re-boot). Whether they would support a serious effort to downsize permanently the state's imprisonment caseload remains unclear.
One way for Governor Brown to signal that he will not accept a muddle through solution to unwinding mass incarceration to ask the legislature to reauthorize AB900 funds, not for new cells, but to make sure that complying with the court order in Plata does not mean more crime in California by re-hiring laid off police officers around the state and purchasing evidence based recidivism reducing programing both in prisons and in direct re-entry costs. This would be well spent on public security and economic stimulus to California's hard hit communities. It will also build support for more substantial reworking of California's public safety strategy which was last designed to protect us from Charles Manson and needs to protect us from a massive failure of infrastructure combined with natural disasters.
Saturday, January 8, 2011
The Other White Meat: Governing through Crime, Race, and Gender
The intricacy with which the politics of crime and the politics of race are intertwined in the US is distinctive but not unique. The latest example comes from the country which is arguably the world's second most obsessive "culture of control" and from one the architects of New Labour's long experiment in governing through crime. Former Home Secretary (under Blair) and now veteran Labour stateman Jack Straw (I can never hear his name without thinking of the Grateful Dead song) speaking on BBC Newsnight about the conviction of two men of Pakistani ethnic background of raping and exploiting several young women who were of white (Anglo-Saxon?) background. (Read the Guardian story by David Batty)
Pakistani ethnicity has become the UK equivalent of African American in the US racial formation. Historic discrimination against this community which grew through immigration after World War II ("Paki-bashing" was a "sport" among "skin-head" racist youth in the '80s) has only become more intense since the recent upsurge of Jihadi terrorism in the UK. But the potential for invoking prejudice in this example is eclipsed by the striking absence of any analytic value. The fact is that men have long divided the world into women who are marriageable and women who are rape-able. There is no policy pay off to attending to the specific features of Pakistani culture that play into this near universal and invidious pattern of gender domination. The only purpose of invoking Islam or Pakistani "heritage girls" is to reinforce a linkage between fear of crime and fear of racialized others. Straw, on the verge of retirement and a seat in the House of Lords (or he was) has little to gain from such a statement. Instead,as an example of political slips of tongue, it reveals, why crime governance was such an important part New Labour's electoral strategy in a series of administrations that failed to improve the economic foundations of the UK's fragile middle class.
"Pakistanis, let's be clear, are not the only people who commit sexual offences, and overwhelmingly the sex offenders' wings of prisons are full of white sex offenders.
"But there is a specific problem which involves Pakistani heritage men ... who target vulnerable young white girls.
"We need to get the Pakistani community to think much more clearly about why this is going on and to be more open about the problems that are leading to a number of Pakistani heritage men thinking it is OK to target white girls in this way."
Straw called on the British Pakistani community to be "more open" about the issue. "These young men are in a western society, in any event, they act like any other young men, they're fizzing and popping with testosterone, they want some outlet for that, but Pakistani heritage girls are off-limits and they are expected to marry a Pakistani girl from Pakistan, typically," he said.
"So they then seek other avenues and they see these young women, white girls who are vulnerable, some of them in care ... who they think are easy meat.
"And because they're vulnerable they ply them with gifts, they give them drugs, and then of course they're trapped."
Pakistani ethnicity has become the UK equivalent of African American in the US racial formation. Historic discrimination against this community which grew through immigration after World War II ("Paki-bashing" was a "sport" among "skin-head" racist youth in the '80s) has only become more intense since the recent upsurge of Jihadi terrorism in the UK. But the potential for invoking prejudice in this example is eclipsed by the striking absence of any analytic value. The fact is that men have long divided the world into women who are marriageable and women who are rape-able. There is no policy pay off to attending to the specific features of Pakistani culture that play into this near universal and invidious pattern of gender domination. The only purpose of invoking Islam or Pakistani "heritage girls" is to reinforce a linkage between fear of crime and fear of racialized others. Straw, on the verge of retirement and a seat in the House of Lords (or he was) has little to gain from such a statement. Instead,as an example of political slips of tongue, it reveals, why crime governance was such an important part New Labour's electoral strategy in a series of administrations that failed to improve the economic foundations of the UK's fragile middle class.
Sunday, January 2, 2011
Metaphors we live by, part ?: "Imprisoned in their homes"
The home, and especially home ownership, is one of the most powerful anchor metaphors for citizenship in our post-modern democracy. In past generations, idealized citizens were imagined taking action in the public, whether the battle field or through mobilized public citizenship, and above all the commercial market place, for baby boomers and subsequent generations the homeowner has been valorized as the major way people contribute to the public good of their communities. I've argued in some recent publications that this kind of home ownership is also the anchor for citizen as crime victim, which drives "governing through crime" and the war on crime/drugs/terror. In particular, of all the ways that a polity might choose to be "tough on crime," the form of mass incarceration is shaped the influence of this homeowner as crime victim conception.
Against this the words of New York's new Governor Andrew Cuomo inaugural address as reported by Danny Hakim and Nicholas Confessore in the NTYtimes, drew my attention:
New York is far from as messed up as California by mass incarceration so the irony of describing homeowners as imprisoned in their homes is not as sharp as it would be if Jerry Brown said it. The fact that his sympathies are completely with the people as homeowners, rather than workers, families, etc. is worrisome. I'll have more to say in the near future about his political agenda , but on the metaphors we live by level, not inspiring to say the least. No doubt this guy wants to be President...
----
On the Joana Yeates case I blogged about in my last post, Steven Morris has an insightful piece in the Guardian exploring why victims like Joanna are so compelling to the media and the public out of all the murder victims, young and old, that accumulate in the UK.
Against this the words of New York's new Governor Andrew Cuomo inaugural address as reported by Danny Hakim and Nicholas Confessore in the NTYtimes, drew my attention:
Mr. Cuomo described residents as being imprisoned in their homes, which are losing value even as their tax bills keep climbing.
“Nothing is going up in their lives,” Mr. Cuomo said. “Their income isn’t going up, their banking account isn’t going up, their savings aren’t going up. They can’t afford the never-ending tax increases in the state of New York, and this state has no future if it is going to be the tax capital of the nation.”
New York is far from as messed up as California by mass incarceration so the irony of describing homeowners as imprisoned in their homes is not as sharp as it would be if Jerry Brown said it. The fact that his sympathies are completely with the people as homeowners, rather than workers, families, etc. is worrisome. I'll have more to say in the near future about his political agenda , but on the metaphors we live by level, not inspiring to say the least. No doubt this guy wants to be President...
----
On the Joana Yeates case I blogged about in my last post, Steven Morris has an insightful piece in the Guardian exploring why victims like Joanna are so compelling to the media and the public out of all the murder victims, young and old, that accumulate in the UK.
Thursday, December 30, 2010
The Strangers We Know
As sociologists of urban American have powerfully documented, our inner city neighborhoods of highly concentrated poverty have suffered under a powerful stigma of crime fear that influences almost all aspects of economic and social life from the unwillingness of retail enterprises to open in such neighborhoods even when federal welfare transfers assure a profitable market for at least some essentials (like groceries) to the willingness of the police to assume that virtually anyone of the right age and gender on the street is involved in gangs and crime. In many respects this stigma has now replaced (and arguably reproduced) the stigma once associated with non-White racial status in American (and especially "Blackness"). The other side of this equation is the huge "pass" middle class Americans give neighborhoods that are coded as middle class (where most people have jobs and a plurality of them, at least, are white. For many individual "consumers", and for the businesses that serve them, these neighborhoods signify safety and security, places where violent crime, if it happens at all, is an aberrant event created by the penetration of outsiders.
Of course that kind of thinking is a textbook example of what sociologists since the mid-20th century have called the "ecological fallacy," the false presumption that a statistical portrait of a place gives you an understanding of the individuals who occupy that place. The irony is that while violent crime is far less of a risk than many people imagine, those kinds of violent crime that people may fear the most, stranger abductions and murders, often for sexual purposes, may be the part of that risk least able to be strategically avoided through ecological discrimination in residential and commercial life.
A terrible crime here in the United Kingdom (where I am spending this Hogmanay), illustrates these themes (read the latest coverage by Steven Morris in the Guardian). The Monday before Christmas, 25 year old Joanna Yeates, a landscape architect with a close family and recently living with her boyfriend went missing in Bristol, a city of around 450 thousand (in a met area of more than a million). The case quickly capture media attention in a society almost as crime focused as the US. Her parents made a public appeal for help. When her frozen body was found Christmas morning on the edge of a street in a suburban area about three miles from her home the palpable horror in the country cut through the holiday frenzy.
Today, just a day before the Hogmanay holiday (New Years Eve to those of you reading outside of Scotland), the Avon and Somerset Police announced the arrest of a suspect, Chris Jeffries, her landlord and a slightly flamboyant retired English teacher at the local equivalent of a community college. The coverage of this makes clear that the police consider him a suspect rather than a witness, a judgment that could come undone, police at least in the US have a long history of focusing on weird suspects who may come across to jurors as alien in some respect and thus possibly a murderer.
The coverage now carries the predictable but nonetheless illuminating statements of other neighbors who can add to their shock at having one of their neighbors murdered, the shock that one of their neighbors, perhaps this very well established figure in the block, might be the murderer.
Note especially the language of about neighborhood and crime risk. "We chose the area of Clifton to live in because we thought it was safe." Its a nice one line summary of just how important crime fear is in how middle class people live even in the UK. Even if the case against Jeffries holds up it may not do much to alter the willingness of people to invest in the ecological fallacy. When terrible crimes are committed by the residents of "safe" neighborhoods there is an automatic presumption that it reflects a deep psychological flaw in the killer rather than anything about the neighborhood. This is indeed one of the origins of the serial killer as a crucial folk devil of late modern crime fear. The crimes they commit may be gruesome, but it is the threat they pose to the whole ecological crime security strategy of so many middle class citizens in both the US and the UK that makes them monsters.
Of course that kind of thinking is a textbook example of what sociologists since the mid-20th century have called the "ecological fallacy," the false presumption that a statistical portrait of a place gives you an understanding of the individuals who occupy that place. The irony is that while violent crime is far less of a risk than many people imagine, those kinds of violent crime that people may fear the most, stranger abductions and murders, often for sexual purposes, may be the part of that risk least able to be strategically avoided through ecological discrimination in residential and commercial life.
A terrible crime here in the United Kingdom (where I am spending this Hogmanay), illustrates these themes (read the latest coverage by Steven Morris in the Guardian). The Monday before Christmas, 25 year old Joanna Yeates, a landscape architect with a close family and recently living with her boyfriend went missing in Bristol, a city of around 450 thousand (in a met area of more than a million). The case quickly capture media attention in a society almost as crime focused as the US. Her parents made a public appeal for help. When her frozen body was found Christmas morning on the edge of a street in a suburban area about three miles from her home the palpable horror in the country cut through the holiday frenzy.
Today, just a day before the Hogmanay holiday (New Years Eve to those of you reading outside of Scotland), the Avon and Somerset Police announced the arrest of a suspect, Chris Jeffries, her landlord and a slightly flamboyant retired English teacher at the local equivalent of a community college. The coverage of this makes clear that the police consider him a suspect rather than a witness, a judgment that could come undone, police at least in the US have a long history of focusing on weird suspects who may come across to jurors as alien in some respect and thus possibly a murderer.
The coverage now carries the predictable but nonetheless illuminating statements of other neighbors who can add to their shock at having one of their neighbors murdered, the shock that one of their neighbors, perhaps this very well established figure in the block, might be the murderer.
A resident, Tony Buss, 51, said that one of the cars towed away by police belonged to Jefferies. "Today's news is a shock and surprise," he said.
Another neighbour, a 26-year-old man who did not want to be named, said: "It's all been pretty scary, especially for my girlfriend as I'm away most of the week so it's been pretty scary for her to be home alone. We chose the area of Clifton to live in because we thought it was safe."
Note especially the language of about neighborhood and crime risk. "We chose the area of Clifton to live in because we thought it was safe." Its a nice one line summary of just how important crime fear is in how middle class people live even in the UK. Even if the case against Jeffries holds up it may not do much to alter the willingness of people to invest in the ecological fallacy. When terrible crimes are committed by the residents of "safe" neighborhoods there is an automatic presumption that it reflects a deep psychological flaw in the killer rather than anything about the neighborhood. This is indeed one of the origins of the serial killer as a crucial folk devil of late modern crime fear. The crimes they commit may be gruesome, but it is the threat they pose to the whole ecological crime security strategy of so many middle class citizens in both the US and the UK that makes them monsters.
Tuesday, December 14, 2010
Homeroom security
Even though my blurb reads like a teaser aimed at security minded parents of school age children anxious to find out what research can tell them about how to avoid the next Columbine, Aaron Kupchik's important new book on the securitization of American schools helps us understand how much the compulsion to hard wire schools for security against a variety of real and imagined crime threats (too often imagined). Kupchik's work is part of an important wave of new empirical studies by criminologists, political scientists and sociologists that is probing the practice of crime control inside schools more than a decade of the passage of the landmark School Safety Act of 1994, at the height of Clinton's war on crime.
Kupchik's well designed qualitative and quantitative research helps make clear that while some of this an extension of racialized versions of coding the identity of minority youth in disadvantaged communities as defined by crime, much of it cuts across race and class demarcations. An obsessive emphasis on crime security has become part of the way we imagine adequate schooling in all kinds of communities. As Kupchik shows, these strategies are more often than not counter productive, and systematically ignore the real factors that drive school violence in those settings where it is a real problem, while increasing the chances that youth in those communities will end up out of school and ready for drafting into the criminal justice system. Safe schools are a must for all parents, and there are ways school stakeholders can attend to that without allowing the performance of security adequacy through visible and symbolic measures to overwhelm schools themselves.
This is another reminder of how much it is costing America to give crime and other forms of "stranger danger"undue sway over our institutions. Schools are there to educate in ways that open the door to economic opportunity, citizenship, and a life of integrity. The first factor has become increasingly important in the globalized and insecure labor market our young people face. We have become ever more critical of the ability of schools to achieve these goals over the last 20 years, during the same period we have allowed crime to mission creep its way into our educational practices. The much discussed No Child Left Behind law contained significant and hardly ever discussed provisions that demand more "availability" for school crime information on a comparative basis (so like test scores it can become the fodder for reflex and decontextualized searches for school comparisons).
Kupchik's well designed qualitative and quantitative research helps make clear that while some of this an extension of racialized versions of coding the identity of minority youth in disadvantaged communities as defined by crime, much of it cuts across race and class demarcations. An obsessive emphasis on crime security has become part of the way we imagine adequate schooling in all kinds of communities. As Kupchik shows, these strategies are more often than not counter productive, and systematically ignore the real factors that drive school violence in those settings where it is a real problem, while increasing the chances that youth in those communities will end up out of school and ready for drafting into the criminal justice system. Safe schools are a must for all parents, and there are ways school stakeholders can attend to that without allowing the performance of security adequacy through visible and symbolic measures to overwhelm schools themselves.
This is another reminder of how much it is costing America to give crime and other forms of "stranger danger"undue sway over our institutions. Schools are there to educate in ways that open the door to economic opportunity, citizenship, and a life of integrity. The first factor has become increasingly important in the globalized and insecure labor market our young people face. We have become ever more critical of the ability of schools to achieve these goals over the last 20 years, during the same period we have allowed crime to mission creep its way into our educational practices. The much discussed No Child Left Behind law contained significant and hardly ever discussed provisions that demand more "availability" for school crime information on a comparative basis (so like test scores it can become the fodder for reflex and decontextualized searches for school comparisons).
Friday, December 10, 2010
“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.
Monday, December 6, 2010
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.
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.
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.
Friday, December 3, 2010
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.
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.
Wednesday, December 1, 2010
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
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.
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.
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