Foucault Effect

Twenty years ago, and after Foucault had been dead for nearly seven years, a book titled The Foucault Effects: Studies in Governmentality was published (by Chicago, at least in the US). For me it had a powerful effect, renewing my interest in following Foucault's leads in analyzing institutions of confinement and control in contemporary society, and offering me a new set of tools for analyzing a face of power less visible in Foucault's masterpiece studies of prison, the asylum, and the clinic; the forms of power that are exercised on the relations among people and groups of people, forms of power that are often the domain of government (although not always within the state as such).

Reading Foucault's work with my undergraduate mentor, Hubert L. Dreyfus, and later engaging with Foucault at Berkeley in the research seminars that were set up through Bert and Paul Rabinow, had set me on a course of interest modern institutions of control which I pursued through a dissertation on parole and the social control of the underclass. With Foucault's death, however, the sense of a research enterprise that I found so exciting in both the work and the man, were quickly being replaced by the processes of intellectual ossification in which a living scholar is transformed into part of a canon, whether of sociology, philosophy, history, or literary studies. The Foucault Effect, which combined a piece of one of Foucault's most celebrated lecture courses at the College de France (then almost completely unavailable, certainly in English, now much of them have thankfully been published) with both commentary and substantive research work by some of his students, for me shattered the crystalline structure of concepts which cannon debate about Foucault was producing and once again liberated the will to use the tools rather than define them (not that conceptual work isn't valuable, only that it is far more so when frequently honed in the business of interpreting the present).

Last month I had the chance to participate in a conference at Birkbeck College of the University of London, celebrating the book, and bringing together some of its original contributors and editors, along with others whose work was inspired by that effect. For me it was a great moment to meet and thank the editors and contributors who have been and continue to be instrumental in bringing the oral expression of Foucault, his interviews and lectures, to an English readership. I used my time to reflect on some features of the transformational Supreme Court decision in Brown v. Plata. Thanks to the fantastic IT people at Birkbeck, and the Backdoor Broadcasting Company, this entire day and half of presentations and discussions is now available for streaming in excellent audio, here.

Blindness to the consequences

I'm ending my work week with a large Amen to a column just published by Stephen Yair Liebb and Hector Oropeza on the Brown v. Plata case which offers a California prisoner perspective on the opinion and a response to the dissents. Liebb has served 30 years of a life sentence for murder and Oropeza has just been released after 20, also on a life sentence for murder (neither would have served more than 10 years before sentences for murder were politicized in the 1990s). I have met them both at San Quentin during seminars and discussion groups I've participated in at the prison, and been impressed by their insights about the prison system, violence, and justice.

A small but poignant part of the column addresses what I've also considered the opinion's chief accomplishment, the powerful reassertion of dignity as a value underlying the 8th Amendment (and thus the operation of prisons).

However, the U.S. is still a symbol of freedom across the world. How we treat the most despised of our own citizens is important if we are to have credibility and moral authority in advocating for human rights in other countries. The Court noted that the Constitution protects the “essence of human dignity in each person.”

Most to the column, however, is a precise and forceful refutation of the dissents by Justice Alito and Scalia. The former, you will recall, dispensed with reasoned argument and invoked the emotional (fear) based center of war on crime complex.

“His description of the consequences of the Supreme Court’s decision is an example of the hyperbole and hysteria used by Justices who are required to exercise sound reasoning in deciding cases...

That for over a decade California has subjected prisoners to standards that amount to cruel and unusual punishment while maintaining an extraordinarily high rate of incarceration reflects an erosion of fundamental values of American society.

To Scalia's argument that the case will benefit healthy (and dangerous) prisoners rather than those with genuine medical problems, the authors remind us of the horrendous truth of this case, that exposure to disease, ill-health, and degradation was widespread, occurring to hundreds of thousands of Californians incarcerated over more than a decade of unconstitutional conditions.

Justice Scalia also claims, without proof, that “Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”

Justice Scalia ignores the reality that gyms have been used to house prisoners for many years, which is part of the problem brought on by overcrowding. Overcrowding and lockdowns compromise the immune systems of prisoners due to a lack of fresh air and exercise. The lack of sanitary conditions in these gyms exacerbates the spread of disease. Weights have not been available in California prisons for more than a decade.

California Needs a More than an Office of the Inspector General, We Need a California Committee for the Prevention of Torture

It was the pictures that did it. When the Supreme Court was compelled to look at pictures of the refugee camp like chaos and overcrowding in California's supposedly secure prisons, and the "dry cels", i.e., vertical cages in which mentally ill and suicidal prisoners are locked up for weeks and months because no treatment beds are available, they were clearly disturbed and five of them voted to uphold jot for jot, the 3-Judge court's order that California reduce its prison population (read Brown v. Plata here) and to make it clear, appended the photos themselves to their opinion.

Californians need to look at those pictures and ask whether that is how they want their state to be represented to the world. Make no mistake, writing from Europe I can assure you that the rest of the world sees no moral light between California and the practice of degradation and inhuman treatment at Abu Ghraib and Guatanamo, indeed California is worst because it has been subjecting tens of thousands to these degrading conditions for decades. Californian's need to look at these pictures and ask, who is responsible for hiding these truths from us, and how can we make sure it never happens again.

As for the hiding of the truth, blame belongs with the alliance of politicians, the correctional officers union, and the professional "victims for vengeance" lobby which for decades have conspired to hysterically raise the threat that hordes of Charles Manson like fiends will pour forth from our prisons if we ever modify our rigid and punitive sentencing laws (read Josh Page's excellent column in the LA Times on this alliance, and his excellent book on the how that alliance created California's version of mass incarceration).

As for preventing this from happening again, we need to create an institution capable of making sure that truth is never hidden again, and of countering the strategic of use of fear and intimidation by the prison alliance. What we know thus far, is that our normal political institutions, including the legislature, the office of governor, the California Supreme Court, the political parties and the media have failed us completely in preventing this horrific situation from ever forming. The Council of Europe, whose members include virtually ever state in Europe (its far bigger than the European Union) has an organ designed precisely to protect the human rights of Europeans against the real risk of abuse behind the closed doors of prisons, asylums, and detention centers. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) was created in 1989 under the Council of Europe's “European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment” (read more about the CPT here). Consisting of independent legal, medical, and academic experts from every member state, the CPT is empowered to visit any place of confinement in any member state with no advance warning. They issue reports to the member state itself providing detailed study of any conditions that risk producing torture, or degrading or inhuman treatment. These reports are generally made public by the member states and taken quite seriously as a starting point for reforms. If they are not, the CPT can issue a public rebuke designed to the call the attention of all member states and their citizens to the real risk that exists of human rights being trampled.

California does have an Office of the Inspector General (visit its website) tasked with guarding the integrity of the Department of Corrections, but despite being led by people of good will and intention, the Office has neither the power nor the independence to protect the human rights of incarcerated Californians. As Harry Shearer points out regularly on Le Show, the whole idea of an inspector general is problematic since they are neither generals (they have no troops) nor inspectors (they have no spooks). Even in its weak form, the Office has regularly been attacked by the prison alliance and could easily be eliminated altogether by a future governor or legislature.

Governor Brown should acknowledge that given the gross politicization of prison policies in the decades between his terms in office, neither he nor any other politician can guarantee that Californians will learn the truth about what is being done in their name. Governor Brown should present the legislature with a bill to amend the California Constitution to forbid not only cruel unusual punishment, but "torture and inhuman or degrading treatment or punishment," and to create a "California Committee for the Prevention of Torture, and Inhuman and Degrading Treatment or Punishment."Governor Brown should acknowledge that given the gross politicization of prison policies in the decades between his terms in office, neither he nor any other politician can guarantee that Californians will learn the truth about what is being done in their name. This Cal CPT should be led by independent legal, medical, and academic experts with both human rights and penal institutions expertise. They should have the mandate and the power to visit any prison, jail, mental hospital, or detention facility in the state at the time of their choosing, and to produce a public report to the governor and the legislature, detailing any evidence that conditions in those facilities are at risk of producing torture, inhuman, or degrading treatment or punishment.

The Housing Index and the Prison Bubble

Just think of prisons as a kind of housing, the new public housing, and it may seem less crazy to wonder if the decline of the portion of Americans who are homeowners may coincide with a decline in the portion of Americans who make their home in a prison. As David Streitfeld reports in the New York Times:

Even as the economy began to fitfully recover in the last year, the percentage of homeowners dropped sharply to 66.4 percent from a peak of 69.2 percent in 2004. The ownership rate is now back to the level of 1998, and some housing experts say it could decline to the level of the 1980s or even earlier.

The astounding rise of American prison populations, which began in the late 1970s (when hyper inflation was keeping homeownership down), seems to have ended in the early 2000s, while homeownership was still trending up. The two are not tightly aligned, but in a recent article (may be access limited) I offer some reasons to be believe that expansion of homeownership to the solid majority of Americans, accomplished by the late 1960s, helped prepare a public more inclined to fear crime and to look to imprisonment as an answer to it.

First, homeowners have a geographically defined risk in the market valuation of their home (to which they are tied typically by massive debt, but later by some substantial investment of their own money) which is highly sensitive to crime associations and which is not easily spread (you cannot buy insurance for housing price loss, other than the mortgage itself which as long as you can pay it, enables you to stay in the home, but little more). Crime is not the only risk that can taint property, but it is one of the most widely publicized and thus active. It is little wonder that people look to recent crime mapping websites as realestate hunting tools (along with school testing websites) and that the location of sex offenders on websites maintained by some states have created measurable losses in the home prices of nearby properties. Renters fear crime as well, but not the reputation impact of crime on their property.

It less obvious, but I suspect the homeownership based crime fear fits with a cluster of solutions that include reliance on prisons, private fire arms, and living in a more securitized community (like a suburb, preferably with a gate). These are property based solutions that respectively isolate known criminals in non-sensitive real estate (usually located in a predominantly rural area less sensitive to home price concerns), allow a person to defend their home from attack or invasion (or give the illusion of allowing such a defense), and signal to the market of potential buyers that your home is particularly safe.

Police, at least in their role independent of arrest (where they are ushering people into imprisonment), in their preventive role, are associated with protecting people in public. When it comes to the home, the police are more associated with showing up to investigate the crime scene after you've murdered or raped (or filling a report for something less serious). Moreover, since police tend to go where the crime is, they create their own negative signals about the crime vulnerability of real estate.

Homeowners or renters, Americans are likely to stay pretty concerned with crime (although less so if it remains down in a sustained way). But a declining homeownership index may mean a steady shrinkage in the segment of the American public most prone to supporting (now obviously unsustainable) mass incarceration policies. The implicit renter majority that may follow, could be far more attracted to innovative police based crime control strategies.

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.

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.

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

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.

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):

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).