Brown v. Plata: Dignity is Coming to the USA

"Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment."

Brown v. Plata, No. 09–1233, Kennedy, J. May 23, 2011

Much will be written in the weeks and months ahead about the Supreme Court's 5-4 ruling upholding the 3-Judge court's population reduction order in the California prison case, Brown v. Plata (read the slip opinion here). For now just consider one word, "dignity." That word has long been held to be an important value underlying the Eighth Amendment's ban on "cruel and unusual punishment." But in recent decades it has fallen into a kind of oblivion, providing little basis to inform the way American prisons are evaluated and run. Brown v. Plata represents a turning point.

For now the reappearance of dignity may seem of minimal importance. After all, the 3-Judge court's findings of facts represented a litany of medical and administrative malfeasance so dramatic that Justice Kennedy in his majority opinion did not flinch from using the word "torture" in relationship to it. California's unprecedented combination of a prison system designed without consideration of the fact that prisoners have bodies with organs that are vulnerable to disease and massive prolonged overcrowding may render it an outlier with little relevance to the operation of prisons in much of the rest of the country. But that is to ignore the fact that both these features lie close to the heart of the system of mass incarceration that has animated the growth of prison populations throughout the US over the past several decades.

Moreover, once it is admitted that the Eighth Amendment requires that the state's discretion to set penal policy is limited by the recognition of the human dignity of prisoners, a great deal is open to review by courts. In Europe, for example, dignity has been held to require prison regimes that promote individualization, normalization, and the preparation of all prisoners for the possibility of return to the community (see Dirk van zyl Smit and Sonia Snacken, Principles of European Prison Law and Policy (2009))

The Court was forced to confront the humanity of prisoners, and their claim on dignity, by the shear magnitude of California's penal depravity as reflected in photos of chaotic scenes from overcrowded prisons and inhumane conditions that were included in the appendix to the majority opinion. Perhaps no single practice seared the Court's conscience more than California's use of vertical cages to hold suicidal psychotic prisoners for weeks and months before they could be transferred to treatment beds. In December's oral arguments Justice Breyer had confronted the State's lawyer with a picture of just such a "dry cell," noting that California had a "big human rights problem" on its hands, and that photo was also included in the appendix. Like the pictures from Abu Ghraib,these photos locate California's penal practices in a place of inhumanity, degradation, and torture that cannot be tolerated (even by judges disciplined by decades of punitive populism and crime fear).

The Court's opinion also recognized that this case goes beyond individual instances of cruelty to a political system that facilitates inhumane and degrading punishment and cannot be trusted to reform itself.

"In addition to overcrowding the failure of California’s prisons to provide adequate medical and mental health care may be ascribed to chronic and worsening budget shortfalls, a lack of political will in favor of reform, inadequate facilities, and systemic administrative failures."

In short, this is the first decision to move beyond evaluating prison conditions, to place mass incarceration itself on trial.

The dissents by Justices Scalia and Alito (joined by Justice Thomas and Chief Justice Roberts, respectively) avoided any consideration of the inhuman and degrading conditions in California's prisons.

Justice Scalia simply and profoundly disagrees with the very notion that courts have a role to play in remedying institutions that produce unconstitutional conditions, being limited instead to handing out individual remedies to petitioners. In Scalia's universe, a court could order the release of a prisoner from Auschwitz, but not the closing of Auschwitz. This is a coherent vision of the Constitution, but one that renders the Constitution largely irrelevant to modern society.

Still I agree with Scalia's assessment of the importance of this decision.

"Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history."

Justice Alito, as he did in oral argument, falls back on the notion that even unconstitutional conditions are acceptable if done in the name of protecting citizens from criminal violence. Most of his opinion amounts to a disagreement with the 3-Judge Court's fact finding on the question of whether the population reduction order was necessary (abandoning the clear standard of review which requires deference to the factual findings of trial courts). The real force of his argument, however, amounts to a metaphoric invocation of the war on crime in which the 3-Judge court is condemned for releasing an army of criminals on the public.

"The three-judge court ordered the premature release of approximately 46,000 criminals—the equivalent of three Army divisions."

The road from Brown v. Plata to a humane and dignified prison system will be a long one. But this opinion represents a turning point. The system of mass incarceration depends deeply and irretrievably on a simple condition, the denial of the humanity of prisoners. Yesterday the Supreme Court overturned that denial.

New Labour Lives: Tony Blair is Still Gone but his Instinct to Govern through Crime is Back

Sometimes legal academics can seem like prophets (or just very lucky). Just last evening we were hearing from Professor Nicola Lacey of All Souls College Oxford, for the University of Edinburgh, Centre for Law and Society Lecture, on the vulnerable status of the UK Coalition governments tentative plans to step down the long prison sentences built up by the previous New Labour government and the growing prison population those policies have bequeathed (long sentences are the gift that keeps on giving because each year a new cohort of people will be sentenced to them while their predecessors remain, leading to an escalation in the pace of growth). Nicky's point, in part, based on her book The Prisoners' Dilemma: Political Economy and Punishment in Contemporary Democracies (The Hamlyn Lectures), was that coalition politics affords a potential opening for penal moderation because the logic of competitive two party dominated electoral systems (typically with first past the post election rules)has been to ratchet up penal severity in a unidirectional bidding game about law and order. The Tory's and New Labour demonstrated that in the 1990s, when first John Major, and Michael Howard his Home Secretary, and then Tony Blair (himself shadow Home secretary before his election as Labour leader) bid up the rhetoric and ultimately the prison sentences on crime in an effort to prove the toughest on crime and the most loyal to citizens as crime victims.

In the era of the Conservative Liberal Democratic coalition that began one year ago, however, there were clear signs of penal moderation breaking out. Here the moving force was one Justice Secretary Kenneth Clark, a conservative former Home Secretary with a liberal skepticism about prison working all that well. Clark, who has combined some refreshingly candid appraisals of penal policy along with the politically dangerous tendency to speak off-the-cuff (and off the script) as well as to nod off at meetings of the Commons (where the frontbench is televised almost non-stop) not surprising in a man admittedly near retirement. Professor Lacey, pointing out the underlying tensions in the Conservative Party presented by Clark's penal moderation policies (which have more a constituency with the Lib Dems) was speculating on when Clark might have to be sacked to appease right of the Conservative back benchers or to perry a New Labour like thrust to the right on crime from Ed Miliband.

Today it happened. Clark hasn't quit yet, but the story has legs. A brief recap (here is the Guardian's coverage). First, a Justice consultation paper (an early version of a policy put out for commentary) was recently getting attention in the press, in which the government raised the possibility of increasing (it already exists) the discount given criminal defendants for pleading guilty at the earliest possible procedural point (thus saving the government the costs of prosecution and the victim the challenges of appearing as a witness in court) to as much as 50% (this would be a guideline for judges, but they would retain the sentencing discretion, as they do now). Second, the classic crime baiting tabloid press jumped on this in today's papers, some of them unabashedly reaching out for rape (the most evocative of violent crimes), proposing that the government wanted to cut rape sentences in half leading to sentences as little as 15 months (a slightly abbreviated statement of the policy). To head this off, Justice Secretary Clarke was placed on BBC Radio 5 Live, where instead of pouring oil on the waters, Clarke stirred them. First, trying to explain why most sentences would be much longer than 15 months because judges already apply guidelines to select sentences from between 30 months to life imprisonment that reflect the severity of the rape facts (violence, etc.), Clarke conflated the issue with the fact that some crimes that meet the statutory definition of rape, which in England and Wales includes under-age but consensual sex. He started using the phrase "serious rapes", implying that some rapes were not serious. Second, while at the station (on air?) Clarke was confronted with a weeping rape victim who declared his policy a "disaster". Clarke ended up returning to BBC no fewer than two more times attempting to clarify his position.

Little time had passed, however, before Prime Minister's Question Time afforded a chance for Labour leader Ed Miliband to demand the PM take a stand on Clarke's wording and also "sack him." More important, he went beyond criticizing the Justice Secretary's inept articulations with the underlying policy, underscoring that Labour is prepared to treat any walking back of prison sentences as a betrayal of victims (despite any evidence that long sentences make victims or potential victims better off). In short, New Labour is back.

Clearly this is a sign of desperation from a promising leader who had signaled his interest in rebalancing Labour's priorities and politics, but who has failed in recent regional and local elections where Labour made gains at expense of Lib Dems, except in Scotland where a party that has rejected governing through crime and was attacked for it by Scottish Labour, won big (as well as in the Alternative Vote referendum which he tepidly supported and which crashed and burned)

Monsters on the Block

Attack the Block is taut, scary, funny and ultimately insightful movie that just opened here about crime and fear of crime in a south London council estate. Sam, a young female nursing student, attractive and white, is mugged by a gang of juveniles led by an aggressive and large (and like his victim, physically very attractive) black teenager, Moses. Most of the others are also adolescent youth of color (African, Caribbean,Arabian?). The attack is quite vicious, frightening, and physically abusive. Sam is pushed to the street. A ring is forcibly pulled from her fingers, and a knife brandished. She escapes during the confusion of an explosion of a nearby car. (Fire works are going off all over London, is this a holiday, or a crisis of some kind? We cannot yet tell.) . Sam is badly shaken, even after reporting the crime to the police. Taking temporary refuge in the apartment of a neighbor Sam finds herself orally agreeing with the neighbor, an older white woman, that boys like Moses and his gang are "monsters." Later we follow her as she rides with the police looking for the attackers.

The crime events are soon overtaken by another plot-line that develops after the explosion which allows Sam to escape without further injury (although having been robbed of her phone, money, and ring). The neighborhood, and possibly much more of London, seems to be under concerted attack by aggressive aliens with shark-like teeth and predatory intelligence to go with it. Sam is soon thrown together with Moses and his boys.

Attack the Block has some insightful things to say about the experience of being the victim of a violent crime and about juvenile crime, but most importantly it raises the question of under what terms and circumstances middle class publics in places like the US and the UK might be able to revisit the penal imaginary in which young men like Moses are cast not just as criminals, but as monsters. That question hangs over the larger problem of steering away from mass incarceration in the US and avoiding further moves toward it in England. Mass incarceration relies in no small part on seeing people convicted of serious crimes as monsters who can only be contained by penal coercion but otherwise remain a toxic risk to the peace of their communities. This pushes any consideration of risk toward an extreme and unchanging assessment of the prisoner and toward more and longer prison sentences.

Sam discovers a more nuanced view of Moses and his friends as they join in the fight for their and the block's survival. She does not need to abandon her view of them has having grossly violated her rights and done her harm, to change her view that they are monsters.

We cannot of course hope for an alien invasion to hit the reset button on a penal imaginary that was shaped most profoundly in the 1970s and has been reproduced ever since by a network of media, law enforcement, and political actors. As Rod Serling brilliantly captured in his Twighlight Zone script, The Monsters are Due on Maple Street, reports of the aliens closing in can just as easily set off cycles of deepening fear and imagining your neighbors have become monsters. But we do not lack for real life events that open the opportunity (and risk) of re-imagining those we have cast as the criminal underclass. Hurricane Katrina, in 2005, produced just such a crisis in New Orleans. A population that included a very high concentration of formerly incarcerated people survived with extraordinary dignity, and achieved a great deal of self help under extreme conditions of abandonment by government. Katrina might have been a moment to reimagine those we feel must be locked up for our safety. In that case, however, the fear scenario beat the hope story out of the block. New Orleans was, we were told, falsely it eventually emerged, under attack by monstrous criminals engaged in rapes, robberies, and murders of helpless people. That time the fear reinforcing story was told much earlier and more powerfully, maybe next time the hope reinforcing story will match it.

Movies like Attack the Block, although some will see them as reinforcing stereotypes about crime from young black men in council housing, is a vital reminder that stereotype or not we need to confront the monster image that hangs over urban crime.

A New Medical Model

While there is a great deal of work to be done in extricating American states from mass incarceration and in clearing the social and individual wreckage it has created, in another sense it is over. Lou Reed would say, "stick a fork in it and turn it over, its done." In California Governor Schwarzenegger acknowledged as much when he called the parole system broken and agreed to allow the courts to take over running the prison medical service. Governor Brown, through his proposed realignment plan (shifting resources and choices from the state to the counties) and is parole policies has also signaled that he wants to steer the state away from mass incarceration. Plata/Coleman, the giant prison health care case now before the Supreme Court has exposed inhumanity of mass incarceration and its rigid inability to actually protect public safety (for example by mismanaging preventive mental health care).

But penal history suggests that regime change requires a new vision of how to bring order to prisons while affirming the values of larger society. Mass incarceration had a moral account of its own, one that stressed the imperative of keeping Californians safe by physically isolating troubled individuals in their communities with a propensity toward crime and graduated levels of custodial security inside. In a sense, mass incarceration was a crude public health strategy, prisons prevent crime by quarantining those who would spread it. While this account is increasingly in tatters, it is not clear what replaces it. A return to the rhetoric of rehabilitation and penal welfarism, while predicted in some quarters, is quite unlikely (and probably not desirable). Neither prisoners or the community is likely to embrace a narrative of prison as a hospital to cure individual diseases of the will.

I believe the humanitarian medical crisis that California's prisons are now experiencing holds some promising clues to a path back toward legitimacy in prisons. Humanitarian medicine is political/therapeutic project that emerged more than one hundred and fifty ago with the Red Cross in Europe. The Red Cross sought to relieve the suffering of the dying and wounded abandoned to their fates on battle fields. Since World War II it has expanded its jurisdiction to natural disasters and pandemics, and from a focus on rescue the suffering to telling their story. While prison health care poses different dilemmas than the battle field or the site of catastrophic disasters, it shares some important features, especially the isolation of prisoners from the normal structures of knowledge and action that link individuals in post-industrial societies and the burden of stigma and fear associated with their crimes.

In Europe a version of this humanitarian medical model for prisons has emerged through the work of the European Community organs like the European Committee for the Prevention of Torture and the Committee of Ministers of the Council of Europe, as well as the European Court of Human Rights. Since the early 1990s, these organs have begun to highlight health care as the crucial framework for preserving dignity in prison. Through a series of reports, guidelines, and through the European Prison Rules, these agencies have made improving prison health care both an upward wedge toward improved prison conditions and regimes overall, and a stopper against regression through overcrowding or violence.

The US constitutional system does not have such innovative human rights organs as the Committee for the Prevention of Torture. But federal courts have enormous power when they encounter unconstitutional conditions. In California the courts have confronted a massive unconstitutional complex that is also a humanitarian medical crisis. Whatever happens in the Supreme Court, California is likely to be grappling with resolving that crisis for years to come. In the short term, the humanitarian medical model itself can provide a crucial tool kit for restoring the legitimate order to our prisons.

I'll be speaking on this topic tonight at the Scottish Centre for Crime and Justice Research annual lecture in Edinburgh. When I get back I'll try to elaborate a bit more in this or future posts.

Revenge, Retribution, Justice: Killing Osama bin Laden

President Obama said "justice has been done." Many headlines were more direct. "Revenge" was the headline in the Scotsman, here in Edinburgh, while the the New York Daily News went right for "Rot in Hell you Bastard." Whatever our emotions on learning the news, the killing of Osama bin Laden by a Navy Seals "kill" team raises questions about the relationship between revenge, retribution and justice. Specifically, does revenge and retribution remain an essential core meaning of penal justice, and, if so, can it be made compatible with the premise that punishment should not be "degrading" in the words of the Universal Declaration of Human Rights (article 5)

To be sure, whatever the truth about whether bin Laden was given the option of surrendering alive (more on that in a bit), this was a military not a judicial operation. Whatever instructions they had, the Seals were not carrying a warrant for bin Laden's arrest. But whatever the legal status of the act, its interpretation raises questions of justice.

While I'm not inclined to join crowds of flag waivers in the streets of New York or DC (even if I were there), I have to admit to a fair amount of agreement with a sense of satisfaction at both the fact and the manner of bin Laden's death. In a weird coincidence, I found myself imagining precisely his end last Saturday night as the operation against him unfolded (clearly I had no advanced briefing). My brother-in-law, a Bellingham, Washington, fire fighter, was visiting us here in Edinburgh and the topic of tall buildings on fire somehow came up at the dinner table. My son, nearly 11, asked about the fire at the World Trade Center. How come, he wanted to know, did so many people jump to their deaths as the towers burned. My wife and I started to explain to him about the terrible choice so many faced between the unbearable heat coming from the building and the yawning abyss below it. I realized I was becoming quite emotional. Later, while washing the dishes, I turned to my brother-in-law and unprovoked said, "I wouldn't mind learning that bin Laden was shot in the head." I'm not a believer in capital punishment, not even for a Hitler or bin Laden. But thinking of him that night, still free, and seemingly able to defy the most powerful military apparatus in the world while continuing to play on the terror he had created, filled me with a real sense of rage and, yes, injustice.

The kind of revenge fantasy that I was having (and that played out a few hours later) has its roots, I believe, in very ancient associations between justice and war. Long before the power to punish was exercised through courts and legal offices, the ability of the king, duke, or clan leader, to slay his violent enemies in battle was an integral part of reproducing what we would call sovereignty. After legal authority replaced pure battle, the trial and the execution of punishment continued to include simulations of battle. As Foucault documented in the unforgettable chapters of Discipline and Punish on scaffold executions,the rituals of the scaffold were a kind of theater in which a now quite fixed battle between the King and his enemy, the felon, were played out before an audience expected to experience the emotions of triumph.

Clearly the memory of this kind of battle justice remains in modern societies and exercises at least a metaphoric hold on our practices of penal justice. The evolution of modern penality for a long time has been toward repressing and transforming this memory (albeit in incomplete and inconsistent ways) and replacing it with reform, rehabilitation, or more recently in the US, incapacitation. In my view this is an evolution dictated not only by the larger cultural contexts of modernity, but also by the internal needs of justice. Revenge, as the old expression goes, "is a meal best served cold", i.e., quickly, without undue reflection or debate, and without unseemly acts of passion. But legal justice can never be served cold in this way. The process of trial, appeals, clemency petitions, etc., guarantees reflection, debate, and considerable passion.

The modern criminal, caught up in the disciplinary apparatus of prisons, parole, probation, and policing, is rarely the clear enemy of the people (or the King) and typically excites little need for revenge or retribution in the Durkheimian sense. Even in the rare case, like terrorists, where the heinous killing of an absolute innocent person is carried out by responsible person unmarred by mental illness, the processes of legal justice assure that the attempt to enact revenge or retributive justice will always be unsatisfying. That is why the execution of Tim McVeigh (for the Oklahoma City bombing which killed hundreds) could not produce the same kind of satisfaction that bin Laden's killing produced. Stretched out on a gurney, after some years of legal proceedings and debates, with ample time to tell his story and become a more complicated figure rather than a demon, McVeigh became a human being snuffed out by a massive bureaucracy before a silent closed circuit television audience. Killing him could bring no honor to his slayer (which is why execution procedures always allow for multiple actors who cannot be certain they are the actual cause of death) but was an inherently degrading and degraded act.

I conclude that however unsatisfying reform and incapacitation are (and we might improve them with elements like restorative justice) they must remain the dominant values of penal justice, anchored not in positivist science, but in the values of dignity enshrined in human rights law.

If revenge is to work, to be served cold, it must be delivered by military, not judicial operations. Uncertainty has now arisen as to how and whether bin Laden was resisting and whether, in fact, he had an opportunity to surrender. From my perspective it does not matter. He was the subject of a legitimate military operation with the aim of killing an enemy. True, had he greeted the incoming helicopters with a white flag, prostrated himself on the ground and announced his surrender, killing him would have violated the laws of war and been degrading to both him and the men who carried it out. But there is not a shred of evidence thus far supporting that scenario. Having greeted the incoming Seals with armed resistance (whether by himself or more likely through his security guards) bin Laden was a fair target for killing. Had the guards been successful at shooting down the helicopters and wounding the Seals, it is hard to imagine they would have been shown mercy.

Finally, having come to view dignity as the central value (even more than life) that should be sustained in both war and justice, I do not believe that bin Laden's death, at least as it has been described, represented an act of degradation. He had sought, and was granted, a warriors death. Had he sought to surrender, he would have been repudiating the dignity of the warrior. To have killed him then, unnecessarily, would have been a degrading act. That did not happen. Moreover, there is no evidence that his body was mutilated and the US clearly took steps to assure him a dignified burial at sea (even if it failed to satisfy every Islamic rule of proper burial).

Moments like this, where revenge and justice are together enacted in an act of both courage and dignity, are certain to be rare. We should take them for what they are; experience whatever healing and sanctifying work they can do; and carry on with the business of creating forms of penal justice that transcend revenge and retribution to achieve dignity.

Europe's Dignity Gap between Punishment and Immigration Control

During my year in Scotland I've become increasingly impressed with the way dignity as a public value promoted by the European Convention on Human Rights and various European governmental bodies has influenced prison law and policy, setting limits on popular punitiveness and preventing the formation of something like California's humanitarian crisis of prisons. However as sociologist Vanessa Barker pointed out to me during a seminar in Stockholm last week, the great gap in European human rights involves immigrants who have been subjected to detention and deportation practices that seem far out of line with European norms in the penal field. The mass deportations of Roma in France last summer, and Italy's treatment of Tunisian and Libyan nationals (some of whom may be refugees) evidence an indifference to human dignity that is at odds with the respect for dignity in the exercise of the power to punish (even though the practices themselves may be functionally the same including detention, involuntary removal, and even death).

One case in point is the death of Jimmy Mubenga, an Angolan man who died while being forcibly deported on a commercial flight waiting to take off from Heathrow airport last fall. Most recently, his wife and others have asked the United Nations to investigate his death (read Matthew Taylor and Paul Lewis reporting on this story in Guardian). Mubenga, whose deportation to Angola after years of living in the United Kingdom was separating him from his wife and five children who remained in England, died while being forcibly restrained by a team of employees of G4S, a private security firm with a contract to conduct deportations for he UK government. Alarmed fellow passengers were told rebuffed by the security guards when they expressed concerns about Mubenga's apparent pain and difficulty breathing.

Whether or not the death is ultimately ruled criminal, there is a lot about the episode the raises grave concerns from a dignity point of view. First of all, private firms should not be delegated to carry out functions that necessarily involve extreme coercion in the name of the state. The employees of G4S are there to make money for the company, not to make sure that the public values of the United Kingdom are protected (as they were not). Second, the fact that Mubenga was deported on a commercial flight meant that the predictable anguish he was going to experience in being forcibly separated from his family (not to mention being killed) was going to be witnessed by numerous strangers; it become a kind of public punishment.

The US also relies heavily on private firms to exercise coercive functions with immigrants, but our penal system is also deeply degrading.

It's So Predictable: Oakland, Violent Crime, and the Press

There have been a string of brazen gun crimes in Oakland, and once again a Mayor with the right instincts is getting politically nailed by a newspaper columnist speaking in the "common sense" about crime----it is all so predictable.

In this case the crimes are the type that shake the confidence of anyone who loves urban life--- a brazen shooting in a restaurant, a bungled robbery, killing two and wounding four. Earlier this month an Oakland restaurant owner was killed in another robbery. The Mayor, Jean Quan who came into office only this January, dares to suggest something other than the tried and truely failed strategies of a police "crack down" or a new harsh penalty for violent crime (as if we could get much higher than the sentences which currently prevail for violent crime in California). In this case the columnist, Chip Johnson (read his column), is no hack, but instead a veteran and often perceptive observer of Oakland's social scene.

Johnson takes the mayor to task for failing to deter crimes like these.

Her response to a restaurant shooting early Monday in downtown Oakland that killed two people and wounded four others was particularly disappointing.

"I assure you that it is a high priority and the Police Department will schedule increased patrols in the area as they continue to investigate the circumstances," Quan said in a prepared media statement.

Quan believes in providing young people, including those hell-bent on shooting other people, with positive alternatives.

Nothing wrong with that, but that alone is not going to deter crime on the mean streets of Oakland. She needs a clearer, more comprehensive approach that includes spelling out for residents the Oakland Police Department's role.

Actually it's Johnson's analysis that is disappointing. Let's start with what is predictable.

It is predictable that Oakland will continue to suffer from periodic spasms of violent gun crime. We have a large population of extremely alienated young males (older teens and young adults) who have accepted a path to "honor" paved in guns, blood, imprisonment, and early death. Post-industrial cities have that problem not just in America, but, minus the big factor of guns, everywhere in the old industrial world. Urban industries permitted aging young men with limited educations to obtain a life of honor (if not glory) by embracing working class values and objectives. We let our industrial economy die and failed to replace it with any viable alternative. Angry young men stay angry until age and prison break them to a life of low level degradation, pushing a shopping cart across the empty lots of post-industrial cities, collecting cans and bottles. There are societies that chose not to allow their industrial economy to disappear, Germany for instance, and they have far less crime with remarkably low levels of policing or punishment.

It is predictable that any effort to stray from one side of the other of the deterrence equation (more policing or more punishment) will be ridiculed as naive and ineffective. As Johnson writes (with the conviction no doubt shared by most of his readers even in liberal Oakland):

Sad as it is, all the community involvement in the world couldn't stop the bullets that ended the life of Jesus "Chuy" Campos earlier this month. The Fruitvale restaurateur was shot to death April 8 while opening his business.

Of course Chip is right. Better social policies cannot stop bullets fired in the present any more than stopping smoking can stop a malignant tumor from growing in your lung --- but the truth is, nothing we have is going to stop that tumor now. No amount of aggressive patrolling and indiscriminate arrests is going to alter the basic incentives that lead those bullets to fly. Where Johnson falls victim to his own "common sense" is in believing there is a way to deter those bullets today (or the hands firing them). But everything we know from empirical research and the experience of our own failed war on crime is that young men do not put enough stock in the future to be deterred by crackdowns and long prison terms (they already accept those consequences).

Programs aimed at keeping youth in school, creating places to go other than the streets at night, and shaping a policing strategy less likely to drive impressionable younger men into the arms of the gangs are all worth doing because they may, at the margins, diminish the number of bullets flying five years from now. At least these strategies are less destructive and costly than the tried and truly failed war on crime tactics. More realistic would be an economic strategy aimed at producing a new generation of good working class jobs in Oakland and providing the kind of high school education necessary to prepare the current ten year olds for those futures.

What to do about the current young men with guns? Police tactics precisely aimed at deterring them from carrying their guns is one possibility. It worked in New York, but it requires a mass mobilization of police that Oakland cannot afford on its own and California does not have the current budget to support. It also means ignoring the Constitution's bar against unreasonable searches and seizures (but that's for another post).

Another approach would be turbo charging our current juvenile and adult probation with electronic monitoring and low case loads that allow both surveillance and daily engagement with offenders, but that also costs money we cannot afford until Governor Brown's realignment from state prison to country law enforcement happens (currently locked out by the budget impasse).

There is little Mayor Chuan can do on her own to make any of these strategies available in Oakland. She can help lead a real discussion of why Oakland is so violent and what strategies might produce a less violent Oakland in the future, but to do that she'll have to survive the all too predictable common sense promoted by the media.