Deborah Sontag's outstanding feature on the murder of a psychiatric facility worker by a schizophrenic patient with a history of violence is a great overview of one of the most complicated corners of our domestic security governance problem. As recently as the 1970s there were still far more people in mental hospitals than there were in the nation's prisons (read Bernard Harcourt's article on this). The situation today is vastly different, with the prison system bigger by a factor of nearly 10. Of course most of the residents of mental hospitals then and now have nothing to do with crimes, let alone violent crime. But for a small portion of people with serious mental illness, perhaps less than one percent, a history of violence tinged psychotic ideation, and actual violence, is a strong predictor of future violence (but only if the person is untreated). Meanwhile a shockingly high level, perhaps 20 to 30 percent, of our inflated prison population suffers from a major mental illness.
Twenty seven year old Deshawn James, accused of murdering 25 year old Stephanie Moulton in a Massachusetts "group home," came from a strong church background and gave little indication of being headed for trouble, before symptoms of schizophrenia emerged in late adolescence. Since then James has been in both prison and in group homes. At least according to his mother, James responded well to medication. But like many people with serious mental illness, he went off his medication with frequency. Massachusetts current regime, although better than most nationally, is under going both budget cuts and a philosophy shift toward ending state oversight for patients.
The murder trial is on hold for now since James, who was clearly psychotic at the time of his arrest, was found incompetent to stand trial, which means he will continue to be held and treated in a secured hospital for at least a few months with the aim of resuming the proceedings if treatment makes it possible for him to assist in his own defense (if not he may be committed under civil powers). The civil suit, being brought by Stephanie Moulton's mother, is proceeding. The case is likely to put the group home operators on trial for failing to identify the level of risk posed by James (because of his criminal record) and the light staffing.
The primary response to the risks posed by someone like Deshawn James over the last thirty years has been criminal prosecution and incarceration. His trajectory underscores some of the ways that approach fails. Someone whose violence is triggered by psychotic ideation is not likely to be deterred by prison, and years of stable behavior cannot preclude a resumption of violence if the psychosis resumes. At the same time, the tens of thousands of California prisoners with serious mental illness were revealed by the Brown v. Plata case to be utterly failed by the prison mental health system which leaves them to decline into deeper illness frequently in overcrowded and degrading conditions sure to exacerbate their paranoia.
As we think about rebalancing our approach to public safety, people like Deshawn James, and the much larger population of prisoners with serious mental illness who have no history of violence, should be a prime focus of reform efforts. We must be able to do abetter than a system that manages on its penal side to be both ineffective and unsustainably expensive, while on its civil side weak and inconsistent.
Following Brown v. Plata, California and other states should clearly seek to divert almost all their prisoners with a serious mental illness to a hospital setting. Prisons are not suitable places for people with serious mental illness and their presence their creates unacceptable risks both to them and others. These hospitals could be specialized prisons, but in the great many cases where it is apparent that untreated mental illness was the primary cause of the crime, states should ultimately clear their criminal record in favor of a long term mental health treatment plan, enforceable by a mental health court with long term jurisdiction and the power to order involuntary commitment to a secured hospital setting.
State mental health powers ought to be concentrated in specialized courts that are expert both at therapeutic jurisprudence and identifying evidence tested risk factors that require tighter supervision. Currently, the power to forcibly treat and if necessary confine to a closed treatment hospital, is limited to episodes where the person poses a clear and imminent risk, and then only within strict time limits. Laws should be changed to give courts long term powers over adults with serious mental illnesses who have ever met the criteria for emergency hospitalization and forced treatment. Serious mental illness is a chronic disease. While treatments are effective in preventing the most alarming and dangerous symptoms of disease, they do not "cure" people, and ultimately long term management of their condition is a personal and social value that deserves to be honored.
The courts that exercise this power must be infused with a commitment to human rights and to protect the dignity of both people with mental illness, and potential victims of people whose serious mental illness makes them prone to violence. Honoring the first means always using the least restrictive alternative and directly respecting the autonomy and preferences of people with mental illness who are under the court's jurisdiction. Honoring the second means taking maximum advantage of known risk factors to closely supervise and when necessary confine individuals prone to violent behavior when their symptoms worsen and or when they seek to self medicate with drugs like speed and cocaine.
Existing institutions like the Behavioral and Mental Health Court of San Francisco provide a good model for a court that can do both. Its work should be overseen by a human rights agency, perhaps modeled on the European Committee for the Prevention of Torture (read my previous post on the CPT and prisons).
Friday, June 17, 2011
Monday, June 13, 2011
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.
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.
Friday, June 10, 2011
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).
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.
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.
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.
Monday, June 6, 2011
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.
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.
Monday, May 30, 2011
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:
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.
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.
Tuesday, May 24, 2011
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.
Wednesday, May 18, 2011
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)
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)
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