Yesterday Berkeley's College Republicans were generating big crowds on Sproul Plaza and big media coverage with a retread of an old bit of anti-affirmative action agit-prop; a cupcake sale in which prices were set by race (just like academic "preferences" for students of color in admissions, get it). (read Nanette Asimov's reporting in the SFChron here). There was already a large crowd of counter-protesters and reporters on hand by the time I rolled my bike onto campus, otherwise I might have fought my way to the BCR table to buy a half-a-dozen or so. I've always thought affirmative action was a hugely good deal for America (especially white Americans); purchasing, at a very small price, a modicum of legitimacy as it seeks to lead in a world awash in diversity and in the governance of a tremendously unequal and coercive society at home.
However I was disappointed that my fellow progressives mostly fell into predictable response patterns; denouncing any opposition to affirmative action as racist, trying to explain why price discrimination (which of course is a routine feature of our society, try "buying" a loan if you are living in a traditionally Black or Latino neighborhood) is wrong but affirmative action is not, or claiming to have suffered emotional injury by the BCR's tactics. The right loves talking about affirmative action. It's a winning "wedge" issue for them.
An alternative would have been actions focused on California's mammoth prison system and the vast network of sentencing laws that keep it filled largely with people of color (laws which Republicans have supported with unbridled enthusiasm). If College Republicans are offended by educational admissions policies that allow race and gender to be considered as part of a holistic individualized look at the application, what do they think of a state run system in which virtually every aspect of life from cell assignment to job assignment to who cuts your hair is determined by race? Do they support laws that guarantee a steady flow of admissions to prison of men of color, with little regard for their individual culpability or the risk they pose to the community? Where is their outrage for a state that cooperates in handing prisoners over to racist prison gangs so they can return to their communities scarred by racist ideologies, bound into criminal networks, and shadowed by real and imagined enemies?
This system, which has been repeatedly condemned by the right leaning US Supreme Court, has become a vast sink hole into which the state's fiscal and moral capital has been poured, and California's Republican legislators have demanded to keep digging. The truth is that whatever you think of affirmative action in college admissions, it's a tempest in a teapot compared to the category five hurricane of mass incarceration which threatens the health of this state in every sense.
That message would also have put students on the side of thousands of California prisoners who are beginning a hunger strike this week to demand the most basic and humble of human rights. The right not to be confined in isolation from any meaningful activity for years or your entire sentence. The right to have your fate determined by laws and due process rather than invisible administrative judgments. The right to nutritious food, and to not having food used as a punishment. (Read their five core demands here).
Cupcake anyone?
Wednesday, September 28, 2011
Wednesday, September 21, 2011
Executing the Innocent: Time to Boycott Georgia and Texas
I believe the death penalty is an inherently degrading and dehumanizing punishment that should not be used even on the most heinous criminals. But when a state executes individuals with substantial doubt about their actual innocence they have crossed a different line. They are not only human rights violators, they are a clear present danger to every person who lives in or visits them. With the execution of Troy Davis in Georgia tonight (read the Guardian account of the final moves here); and the execution of Cameron Todd Willingham in Texas in 2004 (read David Grann's account in the New Yorker from 2009 here), two US states have now carried out executions in cases where the major prosecution evidence against defendants who have consistently insisted on their innocence has collapsed.
Despite an outpouring of global attention and emails, don't expect Georgia or Rick Perry's Texas to mend their ways soon. Solid majorities in those states not only support the death penalty, but celebrate a vigilante culture in which questions of due process and innocence count for little in the face of demands for vengeance. Politicians in those states will not respond until they feel powerful economic pain. In the meantime the attrition of the death penalty elsewhere may eventually lead the Supreme Court to strike down the death penalty as a regional eccentricity but not in my lifetime.
Its time to focus on these two major human rights abusers with the only language they understand, money. Its time for a grassroots boycott of these states. The tens of thousands around the world who sent emails and letters opposing Troy Davis' execution should now direct their activism in a new direction, to mobilize their fellow citizens for a boycott of the entire economy of each these two states until they declare a moratorium on executions. That means circulating lists of products made in those states (Georgia peaches, and Dell computers in Texas for example). That means avoiding tourism, conferences, or investments in any businesses in those two states. Let Georgia and Texas understand what it means to be an international pariah. It is true that these means letting other states go on executing prisoners. That is hard. Death is different, but so is executing the innocent. The boycott, as it grows will help keep the focus on these revealing cases and pressure on both states to justify their outlier status.
Despite an outpouring of global attention and emails, don't expect Georgia or Rick Perry's Texas to mend their ways soon. Solid majorities in those states not only support the death penalty, but celebrate a vigilante culture in which questions of due process and innocence count for little in the face of demands for vengeance. Politicians in those states will not respond until they feel powerful economic pain. In the meantime the attrition of the death penalty elsewhere may eventually lead the Supreme Court to strike down the death penalty as a regional eccentricity but not in my lifetime.
Its time to focus on these two major human rights abusers with the only language they understand, money. Its time for a grassroots boycott of these states. The tens of thousands around the world who sent emails and letters opposing Troy Davis' execution should now direct their activism in a new direction, to mobilize their fellow citizens for a boycott of the entire economy of each these two states until they declare a moratorium on executions. That means circulating lists of products made in those states (Georgia peaches, and Dell computers in Texas for example). That means avoiding tourism, conferences, or investments in any businesses in those two states. Let Georgia and Texas understand what it means to be an international pariah. It is true that these means letting other states go on executing prisoners. That is hard. Death is different, but so is executing the innocent. The boycott, as it grows will help keep the focus on these revealing cases and pressure on both states to justify their outlier status.
Wednesday, September 14, 2011
LWOP
The New York Times earlier this week published a strong editorial criticizing America's increasing use and abuse of life without parole (LWOP) sentences (read it here). The use of such sentences was largely unknown in the past and remains rare outside the US. Even murderers who did not get the death penalty could be virtually certain of parole within ten or twenty years at the most.
For many LWOP represents a hopeful alternative to capital punishment. But as the death penalty declines, LWOP is growing much faster. According to the Times the number of LWOP sentences tripled from around 12,453 in 1992 to 41,095 in 2008. The sentences being imposed not just for capital murder, but for many other homicides as well as crimes like kidnapping and drug dealing.
LWOP combines the eliminationist logic of the death penalty with the control problems of incarceration. How do you motivate compliant behavior for those who have no hope of being released no matter how good their record is? The result is an inevitable degradation for both prisoners and keepers, reflected in our increased reliance on supermax prisons to punish and isolate those who have nothing to lose.
LWOP highlights a paradox of American mass incarceration at this juncture. The soft end of the penal state, the over use of prison for drug users, parole violators and female property offenders is increasingly discredited and in varying degrees being reduced. But the commitment to long incapacitative prison sentences for violent crime remains as strong as ever. Yet our outsized prison population and highly disproportionate racial profile of prisoners will remain unless we revisit our excessive sentences for violent crime.
LWOP functions as the anchoring point for a structure of excessive punishment. With LWOP widely available, life sentences with parole are rapidly increasing from an average time served of 20 years to 29 years in the past two decades. Having established a harsh and flat sentencing system for murder it becomes easy to justify sending robbers and burglars to prison for decades.
I agree with the Times that LWOP should be limited to those cases that would otherwise attract a death penalty and even these cases should be exceedingly rare and open for review. Punishment can be proportionate without being harsh. There are no coherent moral principles the require natural life as a sentence for any crime, even for murder, and most criminologists would agree that the risk of future dangerousness drops toward zero for most offenders after 40. Instead we should look to human dignity to set an appropriate cap for even the worst crimes at around 25 years with few sentences of longer than 10. Beyond these boundaries, continued imprisonment becomes degrading for both prisoners and prison officers. A sentencing structure built around those principles would leave plenty of room to mark the seriousness of different crimes, have little if any effect on deterrence while producing a far smaller, healthier and more cooperative prison population.
For many LWOP represents a hopeful alternative to capital punishment. But as the death penalty declines, LWOP is growing much faster. According to the Times the number of LWOP sentences tripled from around 12,453 in 1992 to 41,095 in 2008. The sentences being imposed not just for capital murder, but for many other homicides as well as crimes like kidnapping and drug dealing.
LWOP combines the eliminationist logic of the death penalty with the control problems of incarceration. How do you motivate compliant behavior for those who have no hope of being released no matter how good their record is? The result is an inevitable degradation for both prisoners and keepers, reflected in our increased reliance on supermax prisons to punish and isolate those who have nothing to lose.
LWOP highlights a paradox of American mass incarceration at this juncture. The soft end of the penal state, the over use of prison for drug users, parole violators and female property offenders is increasingly discredited and in varying degrees being reduced. But the commitment to long incapacitative prison sentences for violent crime remains as strong as ever. Yet our outsized prison population and highly disproportionate racial profile of prisoners will remain unless we revisit our excessive sentences for violent crime.
LWOP functions as the anchoring point for a structure of excessive punishment. With LWOP widely available, life sentences with parole are rapidly increasing from an average time served of 20 years to 29 years in the past two decades. Having established a harsh and flat sentencing system for murder it becomes easy to justify sending robbers and burglars to prison for decades.
I agree with the Times that LWOP should be limited to those cases that would otherwise attract a death penalty and even these cases should be exceedingly rare and open for review. Punishment can be proportionate without being harsh. There are no coherent moral principles the require natural life as a sentence for any crime, even for murder, and most criminologists would agree that the risk of future dangerousness drops toward zero for most offenders after 40. Instead we should look to human dignity to set an appropriate cap for even the worst crimes at around 25 years with few sentences of longer than 10. Beyond these boundaries, continued imprisonment becomes degrading for both prisoners and prison officers. A sentencing structure built around those principles would leave plenty of room to mark the seriousness of different crimes, have little if any effect on deterrence while producing a far smaller, healthier and more cooperative prison population.
Friday, September 9, 2011
Attica, Forty Years On
On the editorial pages of the NYTimes, historian Heather Thompson reminds us all of how profoundly the Attica prison uprising and its violent suppression, forty years ago this week, shaped our penal imagination and prepared the grounds for what we now call "mass incarceration."(read it here) The prisoners who took nine correctional officers hostage and gained control over most of the prison had in mind mostly rather basic rights, decent medical care, an end to lingering racial discrimination among them. For a moment, the sudden media attention on a prison being run by its inmates in a rather democratic and orderly way--including careful protection of the hostages and the absence of violence among inmates which had long been associated with classic prison riots--, seemed like it might deepen the already sympathetic view of prisoners many Americans had in the early 1970s.
Then Governor Rockefeller authorized an army of correctional officers and state police to violently retake the prison (despite five days of progressing negotiations). Thirty-nine men, twenty-nine prisoners and ten hostages, were killed, every one by the incoming bullets of state forces. Eager to cover-up what amounted to a massacre (and one followed by physical torture of the survivors) the state lied outrageously and told the media that the hostages had been killed with their throats slashed and in some cases castrated. The resulting fire storm of media coverage would reset the imagination of a generation. As Professor Thompson puts it:
Forty years on it feels like America may be ready to abandon the demons of Attica even as we finally come to some historical reckoning with what it meant. Forty years seems to be about the length of time it takes dramatic changes in the social imaginary to run their course. The Israelites left Egypt in one day, but as the Book of Numbers tells us, it took forty years to leave slavery behind. Today in California, with this summer's prison hunger strike against our cruel and degrading SHU (supermax) units having achieved totally unexpected media coverage and political response, and the spring's Brown v. Plata decision by the US Supreme Court calling on the state to recognize the humanity of its prisoners; signs abound that mass incarceration has itself become a scandal. But scandals only change things if people are committed to using them to promote a new way forward. Forty years ago the events of Attica would be seized upon to promote the war on crime and shift it from a focus on police to one on prisons. Today there is for those ready to seize it, an opportunity to re-imagine both safety and dignity for another generation.
Then Governor Rockefeller authorized an army of correctional officers and state police to violently retake the prison (despite five days of progressing negotiations). Thirty-nine men, twenty-nine prisoners and ten hostages, were killed, every one by the incoming bullets of state forces. Eager to cover-up what amounted to a massacre (and one followed by physical torture of the survivors) the state lied outrageously and told the media that the hostages had been killed with their throats slashed and in some cases castrated. The resulting fire storm of media coverage would reset the imagination of a generation. As Professor Thompson puts it:
We have all paid a very high price for the state’s lies and half-truths and its refusal to investigate and prosecute its own. The portrayal of prisoners as incorrigible animals contributed to a distrust of prisoners; the erosion of hard-won prison reforms; and the modern era of mass incarceration. Not coincidentally, it was Rockefeller who, in 1973, signed the law establishing mandatory prison terms for possession or sale of relatively small amounts of drugs, which became a model for similar legislation elsewhere.
Forty years on it feels like America may be ready to abandon the demons of Attica even as we finally come to some historical reckoning with what it meant. Forty years seems to be about the length of time it takes dramatic changes in the social imaginary to run their course. The Israelites left Egypt in one day, but as the Book of Numbers tells us, it took forty years to leave slavery behind. Today in California, with this summer's prison hunger strike against our cruel and degrading SHU (supermax) units having achieved totally unexpected media coverage and political response, and the spring's Brown v. Plata decision by the US Supreme Court calling on the state to recognize the humanity of its prisoners; signs abound that mass incarceration has itself become a scandal. But scandals only change things if people are committed to using them to promote a new way forward. Forty years ago the events of Attica would be seized upon to promote the war on crime and shift it from a focus on police to one on prisons. Today there is for those ready to seize it, an opportunity to re-imagine both safety and dignity for another generation.
Sunday, September 4, 2011
The Feds: The English riots and the limits of governing through crime
Its been much debated whether the August 2011 English riots should be characterized as politics or crime. The absence of a clear political narrative is cited by many of those supporting the latter. But some aspects of the narrative such as it was, suggests that the politics of the riots was about the politics of crime (or as this blog would put it, governing through crime). For example, one phrase many of the rioters seemed to have shared was calling the London metropolitan police "feds" , a term apparently drawn from television dramas ((according to Jon Henley's reporting in the Guardian). It is not likely that rioters confused the English police for US federal law enforcement (no matter how often they show up on British tv), nor that they are making a claim about policy transfer. Talk about the "feds" seems to be a way of referencing American style governing through crime with its degrading policing and harsh punishment of young lower class and especially lower class minority men. Indeed the most impressive change in British life over the last generation, perhaps more consequential than the housing boom that for a while reshaped many former industrial towns, was the doubling of Britain's incarceration rate during the long rule of the previous Labour government.
Consider also what has become one of the iconic sound bytes of the riots for Britain's tabloids one youth in an interview with the BBC (although I cannot find the actual BBC story) said "'What are they gonna do? Give me an Asbo? I'll live with that.' While that has been taken by some (read Damien Gayle's assessment in the Mail Online) to suggest the insufficiency of criminal sanctions, it also suggests something much more damning (and less counter-intuitive given the significant increases in punishment over the 1990s) i.e., that chronic overuse of criminal justice as a ready made tool for addressing social insecurity under Neo-liberal economic assumptions has led to collapse of both deterrence and legitimacy. Tony Blair's signature governing through crime initiative, one that summed up his ambition to be simultaneously tough on crime and tough on the causes of crime (in this case anti-social behavior) now stands for a pervasive sense of disrespect of both the governed and the governors.
Actions speak louder than words and can be readily interpreted. Police, all over, but especially in England, are a symbol for law itself. Whatever other motives last month's looting and riotous behavior had, it was clearly intended to embarrass the police (the "feds") already on the defensive after the phone hacking scandal and various failures to anticipate disorders associated with student fee protests. The police clearly understood that the rioting was mostly aimed at them and responded in kind. In Damien Gayle's summary for the mailonline:
The August 2011 riots followed by a decade a more contained but alarming riot that broke out under Tony Blair in the norther English town of Bradford in July of 2001 (thanks to the Guardian's history links you can read Martin Wainright's reporting from 2001 here). Those riots had a disturbing racial edge that was apparently not dominant last month (although some reports of cross racial attacks mix with reports that the rioters were drawn from all races and cultures) but one can also read the growing contempt for government authority as such.
Tony Blair and his Home Secretary David Blunkett insisted that the lawlessness was no more than crime to be dealt with by tougher law enforcement means.
A decade later and with British policy options restricted by the escalating costs of mass imprisonment political leadership seems trapped in a rhetorical enclosure that resists any attempt to escape the crime policies and politics that have failed for a whole generation.
Consider also what has become one of the iconic sound bytes of the riots for Britain's tabloids one youth in an interview with the BBC (although I cannot find the actual BBC story) said "'What are they gonna do? Give me an Asbo? I'll live with that.' While that has been taken by some (read Damien Gayle's assessment in the Mail Online) to suggest the insufficiency of criminal sanctions, it also suggests something much more damning (and less counter-intuitive given the significant increases in punishment over the 1990s) i.e., that chronic overuse of criminal justice as a ready made tool for addressing social insecurity under Neo-liberal economic assumptions has led to collapse of both deterrence and legitimacy. Tony Blair's signature governing through crime initiative, one that summed up his ambition to be simultaneously tough on crime and tough on the causes of crime (in this case anti-social behavior) now stands for a pervasive sense of disrespect of both the governed and the governors.
Actions speak louder than words and can be readily interpreted. Police, all over, but especially in England, are a symbol for law itself. Whatever other motives last month's looting and riotous behavior had, it was clearly intended to embarrass the police (the "feds") already on the defensive after the phone hacking scandal and various failures to anticipate disorders associated with student fee protests. The police clearly understood that the rioting was mostly aimed at them and responded in kind. In Damien Gayle's summary for the mailonline:
Police took revenge on dozens of riot looters last night as they kicked in their front doors and hauled them into the street.
Riot officers armed with battering rams descended on a string of properties as they looked for pay back over the chaos that swept the country.
The officers collared one suspect at a home in Brixton after receiving a tip off that he had been involved in the disturbances.
The August 2011 riots followed by a decade a more contained but alarming riot that broke out under Tony Blair in the norther English town of Bradford in July of 2001 (thanks to the Guardian's history links you can read Martin Wainright's reporting from 2001 here). Those riots had a disturbing racial edge that was apparently not dominant last month (although some reports of cross racial attacks mix with reports that the rioters were drawn from all races and cultures) but one can also read the growing contempt for government authority as such.
Arrests climbed to more than 40 as detectives followed up hours of video film showing rioters - mostly young Asians making little or no attempt to disguise themselves - torching cars and hurling missiles at riot police.
In a separate operation, police scoured an outlying estate for a gang of 20 white skinheads, some described as 13 or younger, who ransacked an Asian restaurant and Asian-owned garage in the quiet suburb of Greengates late on Sunday.
Tony Blair and his Home Secretary David Blunkett insisted that the lawlessness was no more than crime to be dealt with by tougher law enforcement means.
Tony Blair condemned the rioting as "thuggery" and said protesters attacking the police had ended up "destroying their own community".
In a statement on the disturbances, Mr Blair endorsed the view of the home secretary, David Blunkett, that the trouble was a "law and order issue", and his spokesman confirmed that the government was prepared to consider permitting police to use water cannons.
A decade later and with British policy options restricted by the escalating costs of mass imprisonment political leadership seems trapped in a rhetorical enclosure that resists any attempt to escape the crime policies and politics that have failed for a whole generation.
Wednesday, August 24, 2011
California Reconsiders (Its) Penal Isolation
A hearing yesterday in Sacramento of the Assembly Public Safety Committee was another remarkable sign that California's once frozen penal policies are beginning to thaw and change. Isolation of "high risk" prisoners, in a lock-down environment designed to promote security to the exclusion of all other penal objectives has been a pillar of California's prison system since the state opened one of the largest supermax prisons in the country, the Secure Housing Unit (or SHU in the inevitable bureaucratic parlance) of California State Prison Pelican Bay in 1989. Today California houses more than 3,000 prisoners in SHU conditions at Pelican Bay, Corcoran, and in smaller units at two other prisons (read Keramet Reiter's recent study here). Despite three decades of criticism, a massive court intervention in the 1990s, and piles of academic research suggesting that holding prisoners in such circumstances for prolonged periods was dangerous and counter productive, California's prison officials have always steadfastly maintained that the regime is an essential barrier against the dominant gang culture among prisoners. At yesterday's hearing however, a representative of the California Department of Corrections and Rehabilitation was promising real change (read Sam Stanton's reporting in the Sac Bee here):
The Department's change talk may in fact be coverage to buy more time and do more studies but there are other indicators that whether sincerely desired or not change is coming.
* The hunger strike led by prisoners in the Pelican Bay SHU this July, which reached as many as 6,000 prisoners statewide, received significantly more media attention and expressions of public concern than the Department (or me for that matter) expected. This strike was particularly effective in getting attention to how extreme California's practice of supermax is, especially the long time prisoners spend in theses conditions (an average of 6.8 years according to the testimony yesterday) and the fact that it is imposed not for particular crimes or violations but as a preventive measure taken against supposed gang involvement.
* The Supreme Court decision in Brown v. Plata handed down in May not only took away any legal hope that the state could shrug off lower court orders to reduce prisoner populations by tens of thousands, but also painted California's overall penal system as distended, irrational, and degrading. The ongoing budget crisis makes the super-expensive style of incarceration especially hard to defend but Brown may be even more important is a cultural shift that is making the whole enterprise of mass incarceration morally harder to defend. A former SHU prisoner, Earl Frears, who testified yesterday put it powerfully,""I am human, and by being human I do have certain rights … ." I think that is message Californians are increasingly able to hear.
Fixing California's extreme SHU practices is overdue, as is a fix for crazy sentencing laws like Three Strikes under which many SHU prisoners serve time without end, but if this moment is as promising for change as I think it is, we need to push this reconsideration of isolation in two further ways.
First, California has isolated itself for decades from national and international concerns about prison conditions and the tolerable scale of imprisonment in a democratic society that maintains respect for human rights. Our fear decades of high crime and paranoia during the 1970s and 1980s, left the state with a kind of political PTSD in which any measure against crime, no matter how costly, futile, and inhuman, was acceptable if it painted criminals/prisoners as monsters with no claim on human dignity. As a result prison policy has lived in a moral and intellectual lock-down in which the news that prisoners are humans has a startling quality to it. (Germany didn't end up where it found itself in 1945 overnight either).
Second, we need to end the larger policy of addressing community insecurity by isolating individuals in state prison. The era of big prison government must be declared dead and over. Prison remains an appropriate penal response to the most serious crimes and threatening criminal records. We cannot, however, make communities more secure by incarcerating whole neighborhoods full of residents. Realignment must become more than a way to hide prisoners from the federal courts; it must become a commitment to addressing community insecurities precisely and directly rather than through mass incarceration.
"I'm not talking about having another study," Scott Kernan, undersecretary at the California Department of Corrections and Rehabilitation, said at a legislative hearing. "I'm talking about having some substantive changes."
The Department's change talk may in fact be coverage to buy more time and do more studies but there are other indicators that whether sincerely desired or not change is coming.
* The hunger strike led by prisoners in the Pelican Bay SHU this July, which reached as many as 6,000 prisoners statewide, received significantly more media attention and expressions of public concern than the Department (or me for that matter) expected. This strike was particularly effective in getting attention to how extreme California's practice of supermax is, especially the long time prisoners spend in theses conditions (an average of 6.8 years according to the testimony yesterday) and the fact that it is imposed not for particular crimes or violations but as a preventive measure taken against supposed gang involvement.
* The Supreme Court decision in Brown v. Plata handed down in May not only took away any legal hope that the state could shrug off lower court orders to reduce prisoner populations by tens of thousands, but also painted California's overall penal system as distended, irrational, and degrading. The ongoing budget crisis makes the super-expensive style of incarceration especially hard to defend but Brown may be even more important is a cultural shift that is making the whole enterprise of mass incarceration morally harder to defend. A former SHU prisoner, Earl Frears, who testified yesterday put it powerfully,""I am human, and by being human I do have certain rights … ." I think that is message Californians are increasingly able to hear.
Fixing California's extreme SHU practices is overdue, as is a fix for crazy sentencing laws like Three Strikes under which many SHU prisoners serve time without end, but if this moment is as promising for change as I think it is, we need to push this reconsideration of isolation in two further ways.
First, California has isolated itself for decades from national and international concerns about prison conditions and the tolerable scale of imprisonment in a democratic society that maintains respect for human rights. Our fear decades of high crime and paranoia during the 1970s and 1980s, left the state with a kind of political PTSD in which any measure against crime, no matter how costly, futile, and inhuman, was acceptable if it painted criminals/prisoners as monsters with no claim on human dignity. As a result prison policy has lived in a moral and intellectual lock-down in which the news that prisoners are humans has a startling quality to it. (Germany didn't end up where it found itself in 1945 overnight either).
Second, we need to end the larger policy of addressing community insecurity by isolating individuals in state prison. The era of big prison government must be declared dead and over. Prison remains an appropriate penal response to the most serious crimes and threatening criminal records. We cannot, however, make communities more secure by incarcerating whole neighborhoods full of residents. Realignment must become more than a way to hide prisoners from the federal courts; it must become a commitment to addressing community insecurities precisely and directly rather than through mass incarceration.
Wednesday, August 17, 2011
Justice and Social Control? Neither support harsh sentences for rioters
Does punishment restore a state of justice that has been ruptured by a crime, or is it a tool of social control? That is a question on which a great deal of punishment and society scholarship turns. It is also one raised a new by the latest turn in the London riot of 2011 story, the wave of very harsh sentences for riot related crimes. As Polly Curtis and Vikram Dodd report in the Guardian (read the whole story here) that legal experts in the Liberal Democratic party have expressed grave misgivings about the substantial prison terms being handed down in many such cases, while Prime Minister David Cameron has praised judges for using their considerable sentencing discretion to send a message on rioting. The debate may force a confrontation within the coalition at a time of high stress.
Is it just to punish someone more harshly because the crime they committed took place in the context of an alarming collective disorder? It depends on whether the crime was itself aimed at taking advantage of an existing social disorder. Those that rob people who are fleeing from a natural disaster, knowing there is not likely to be much help for them, or who burglarize their vacated houses, arguably deserve more severe punishment. But in the case of the riots the crimes are themselves, in aggregate, what makes the disaster. Indeed, once we acknowledge the collective aspect of riots, there is an argument that participants are less culpable for their crimes since they are giving into a much observed tendency to follow the example of others. Instead, this appears to violate one of our central values about criminal punishment, that people face punishments proportionate to the their desert and uniformly with equally culpable individuals. Instead we have the price of crimes moving like equity prices to reflect gyrations in public anxiety.
Nor is it clear that tough sentences for rioters is good social control for the increasingly tight resources of the UK and the US. As Lord Carlisle suggested in the passage quoted above, there is no reason at this point in our history to view expanded incarceration as a good way to bolster social control. England has more than twice the incarceration rate it had in the mid-1990s, a period of few if any riots. Some no doubt believe that future rioters will heed the harsh lesson being taught their cousins. No doubt Charlie Gilmore, university student (and son of Pink Floyd guitarist David Gilmore) who was given a 16 month prison sentence for participating in some disorderly events during the student fee demonstrations last December (read Stephen Bates' reporting in the Guardian) is unlikely to offend in that way again. That may be true for some of the individuals being punished now as well, although we will never know whether far more lenient but still undesired sentences would accomplish. But it is not clear it is true for the next Charlie Gilmore or young riot looter.
Lord Macdonald, who led the prosecution service in England and Wales for five years, warned that the courts risked being swept up in a "collective loss of proportion", passing jail terms that lack "humanity or justice".
Meanwhile his fellow Liberal Democrat peer Lord Carlile, the barrister who was until this year the government's independent adviser on terrorism strategy, warned against ministerial interference in the judicial process, arguing that "just filling up prisons" would not prevent future problems.
David Cameron, who last week promised severe punishments for rioters, saying he hoped courts would use "exemplary" sentences to deter future riots, praised the sentencing decisions, which have included two jailed for four years each for inciting riots on Facebook – riots that never took place – and one person sent to prison for six months for stealing £3.50 worth of water.
Is it just to punish someone more harshly because the crime they committed took place in the context of an alarming collective disorder? It depends on whether the crime was itself aimed at taking advantage of an existing social disorder. Those that rob people who are fleeing from a natural disaster, knowing there is not likely to be much help for them, or who burglarize their vacated houses, arguably deserve more severe punishment. But in the case of the riots the crimes are themselves, in aggregate, what makes the disaster. Indeed, once we acknowledge the collective aspect of riots, there is an argument that participants are less culpable for their crimes since they are giving into a much observed tendency to follow the example of others. Instead, this appears to violate one of our central values about criminal punishment, that people face punishments proportionate to the their desert and uniformly with equally culpable individuals. Instead we have the price of crimes moving like equity prices to reflect gyrations in public anxiety.
Nor is it clear that tough sentences for rioters is good social control for the increasingly tight resources of the UK and the US. As Lord Carlisle suggested in the passage quoted above, there is no reason at this point in our history to view expanded incarceration as a good way to bolster social control. England has more than twice the incarceration rate it had in the mid-1990s, a period of few if any riots. Some no doubt believe that future rioters will heed the harsh lesson being taught their cousins. No doubt Charlie Gilmore, university student (and son of Pink Floyd guitarist David Gilmore) who was given a 16 month prison sentence for participating in some disorderly events during the student fee demonstrations last December (read Stephen Bates' reporting in the Guardian) is unlikely to offend in that way again. That may be true for some of the individuals being punished now as well, although we will never know whether far more lenient but still undesired sentences would accomplish. But it is not clear it is true for the next Charlie Gilmore or young riot looter.
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