The Wall

Earlier this month I went with my family for four days of walking through the countryside of Northumbria in the United Kingdom along some of the largest and most stunningly situated remains of what is known as Hadrian's Wall. Built in a remarkable five year period on the orders of the Roman emperor Hadrian (in power from 117-138) the wall originally stood fifteen feet high, at least four feet thick, 80 miles across the breadth of Northumbria from present day New Castle in the east, to Carlisle in the west, and along the west coast.

For a student of crime and social control the wall is a subject of endless fascination. We know it was built to significantly upgrade the security of Roman control over what they called Brittania (military documents left at the contemporary and nearby Roman fort of Vindolanda make reference to the locals as more or less "dirty little Brits"). Only a decade earlier a rebellion to the south, led by Queen Boudicca, had led to the trashing of several Roman cities including London, and the massacre of Roman civilians (in retaliation for abuses against locals). But Brittania was hardly the most dangerous outpost in the Empire, perhaps just the most dangerous one where a wall would be helpful because of the relatively narrow parts of the long island.

How was the wall supposed to work? It is tempting to view it as a security perimeter designed to separate an untamed North from the docile and controlled South (that feeds into much of the later historic imaginary of Scotland as a wilder and less tamed region). But we know that Boudicca's rebellion had come from the South. Moreover, the wall was part of a larger military zone which ran from a ditch dug just north of the wall, to an even wider ditch with raised ramparts running a bit further to the south. Indeed, Hadrian's Wall interacted with a previous infrastructure, the Roman military road which ran parallel approximately two miles south and along which the Romans had already constructed forts including Vindolanda and several others at which they stationed large units of auxiliary troops (so called because these units composed of non-Roman citizens were considered of lower status than the legions but almost equally well trained and led).

Instead of a barrier, the Wall seems to have been both a demonstration of Rome's sheer power (the amazing views we enjoyed reflect the fact that it was built across high ridges and crags where attackers or traders were unlikely to come but from where it could be seen for miles). It was also a demonstration of Rome's disciplinary technology, with defensive turrets and wall forts designed to control (and tax) traders entering into the Roman zone spaced every 1/3 of a Roman mile even where that placed them on top of a high crag that no trader would ever visit. It may also have been an instrument for introducing these disciplinary patterns into the Celtic populations along both sides of the wall. Whether coming from the south or the north, locals seeking to visit family or trade across the wall would have had to deal with the disciplinary matrix of the military zone along the wall and learn to conform themselves to its demands. Indeed, this aspect of the Wall seems to have survived its demise (Rome abandoned it and Britain in the 5th century) to linger in the cultural imagination of the British. For example the common reference in British usage to a fortnight (or two weeks) comes from the period of time during which Roman soldiers would rotate through duty on the Wall where they patrolled the along the wall and slept in the turrets and wall forts (thus fortnight).

There is a story of crime here as well in the Wall's survival. Although many of its well dressed outer stones have been robbed to build churches and farm houses, the fact that this area between England and Scotland was a zone frequently visited by raiding parties from both sides (some of them known as Reavers) kept the area from being more fully developed until union of the two kingdoms brought relative peace in the 18th century, at which time a sense of preservation about the wall had begun to develop.

The Hardman

Chris and I saw the new production of The Hardman, directed by Philip Breen, in Edinburgh through Saturday I believe and then moving on to Glasgow (check out dates here if you are in Scotland). The play written by the late Tom McGrath, and Jimmy Boyle, the famous gangster turned artist whose early life it retells. Criticized when it was first produced in the Seventies for glamorizing violence, the play is an unrelenting encounter with the horror of violence. It is an exercise in the most courageous kind of truth telling (especially given that Boyle was still in prison and seeking parole release from a life sentence for murder) which spares little in describing Boyle's escalating violence as a young man turned gangster, a pattern that only accelerates initially when it meets the routinized violence of Scottish prisons in the period. Interestingly Boyle's character, Johnny Bond, is better at exhibiting violence physically (and the production fo the revival in this respect is brilliant and wonderfully acted by Alex Ferns) the explaining it analytically (he says at one point that he cannot read his DNA). Instead, the most insightful lines are given to the racist (anti-Catholic) and sadistic prison officer Paisley:

...And the other...screws don't like me because they know I'm the one that does the dirty work for them.

They know what this prison would be like if we didn't get tough from time to time. They don't want to walk in fear of their life from day to day when they're going about their job, any more than you would. So they tolerate me. I'm (their) hardman. And they feel a wee bit guilty about me because I'm an aspect of themselves they don't like to admit to. Just like you should be feeling guilty about us because we're the garbage disposal squad for the social sewage system. You people out there, that's the way it works for you --- you've got a crime problem so you just flush it away one thug after another in behind bars and safely locked away. The cistern's clanked and you can think you can leave it floating away from you to the depths of the sea. Well, ah've goat news fur you --- its pollution. Yir gonnae huv tae look ut it. Because if yae don't, wun day its gannae destroy yae. But in the meantime, dirties like me, well, lets just say we're a necessary evil. Very necessary.

Post Conflict Violence in Northern Ireland

Shortly after I departed Northern Ireland, this past Saturday, a new page was being written in the story of post-conflict violence. That afternoon, in Omagh, a 25 year old recent recruit to the Police Service of Northern Ireland (PSNI), was killed by a bomb booby trapped to explode when he used his car to commute to his post as a police officer (read the Guardian coverage here). To speak of post-conflict violence sounds contradictory, but it is not. The conflict is over because the major organized forces that pursued it for three decades have laid down their arms and now participate quite cooperatively in a set of political institutions negotiated to end the conflict. The lethal attacks and threats that continue to be carried out show that the conflict is not over for everyone, but those acts take place against a background of agreement that conditions their logic. Thus while no group has claimed credit for the latest Omagh bomb, it is widely assumed that the operators were part of the rejectionist wing of the Republican/Catholic side, which insists that the armed struggle to reunite Northern Ireland with the Irish Republic must continue. The fact that they targeted a Catholic police officer, in an effort interpreted by others as one aimed at preventing the PSNI from achieving the integrated force composition that is a key part of its own post-conflict make-over into a reflection of the peace and to differentiate themselves from the much criticized Royal Ulster Constabulary which was widely viewed as siding with Protestant militants during the troubles. Both the PSNI and the rejectionist Republicans are pursuing what can fairly be called post-conflict strategies.

The rejectionist Republicans who are also blamed for the mass killing of 29 people in Omagh in 1998 at the time of the peace accords, believe that they can trigger the kind of repression of poor Catholic neighborhoods that during the conflict period helped sustain popular legitimacy for the IRA among Catholics. The PSNI which has invested considerable effort in branding itself as a successful model for post-conflict policing globally (see Graham Ellison and Conor O'Reilly, "'Ulster's policing goes global': The police reform process in Northern Ireland the creation of of a global brand," Crime Law and Social Change (2008) 50:331-351), knows that they cannot afford to alienate Catholic communities by a repressive crackdown. The only question is whether the political dynamics within the Loyalist/Protestant community can resist the impulse toward a crackdown.

Another prime theme of the conflict that is being brought into play in the post-conflict is the politics of informers. Ron Dudai, a post graduate student at Queens, School of Law, is exploring the post conflict politics of informers and the legacy of reprisal violence carried out against suspected informers (read a brief essay available on the web by Ron on this general topic). Informers played a crucial role during the conflict in both the British effort to combat the IRA, and in the IRA's effort to maintain legitimacy among the Catholic population. The rejectionist Republican militias are clearly seeking to extend that logic while the older Sein Fein/IRA has now taken the extraordinary step of asking Catholic community members to inform the PSNI about violent militias (read the Guardian story here).

Finally, the incident is a lesson in how the availability of weapons has changed the political calculus of militia violence. As Queens law professor and transitional justice scholar Kieran McEvoy told me while I was visiting Belfast, the IRA struggled during most of the troubles with a very limited access to high quality weapons. The highly unstable home made bombs relied on in the early phase frequently killed as many IRA members in accidents as they did victims in intentional terror acts. Only after they obtained high quality arms from Libya's Muamar Quaddafi could the IRA go on to its major terror successes in the 1980s, events that laid the groundwork for resolution in the 1990s. The use of fire arms was therefore highly regulated by the IRA leadership during the conflict. Tight control on weapons went along with a human capital strategy in which the cooperation of many individuals and whole communities was necessary to sustain the armed struggle. In contrast, the relatively tiny membership of the rejectionist IRA militias has access to relatively sophisticated weaponry that can achieve great lethality (the previous Omagh bombing killed 29, the largest during the entire conflict) which they can use with virtually no base of popular support. It is hard to see how that can be reversed which suggests a very long tail to violent conflicts.

Governing through Crime in Post Conflict Societies: Notes from Belfast

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.

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.

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.

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:

“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.