Students today at public universities like the University of California and the California State University systems have significant reason to feel insulted. In just the past decade tuition has more than doubled at UC and nearly tripled at the Cal State system. They have to listen to lectures from people like me who went to UC for almost nothing and have had, in many cases, great opportunities to pursue our ambitions and passions, while they face the prospect of graduating with tens of thousands in debt into a job market that is likely to be stagnated for years.
Mobilized by the nationwide "Occupy Wall Street" movement, and with perfect reason (noting the relationship between government for the 1% and the long term strangulation of public higher education) students at several UCs have undertaken non-violent occupations in settings, like Sproul Plaza in Berkeley, that pose no significant burden to ordinary University activities. But rather than finding that University administrations have their back, students, and those faculty and staff protesting with them have been violently set upon by police.
The week before last it was the Berkeley campus, where police used batons on non-violent demonstrators linking arms around a tent encampment (videos and reporting from Bay Citizen here). Yesterday it was UC Davis, where videos clearly show police calmly pepper spraying passive sitting students preparatory to arresting them (NYTimes coverage here).
The Chancellors at both universities have called for investigations, but the real question is why police were ever deployed to clear these assemblies at all. Since 9/11 campuses have begun to define even non-violent protest and civil disobedience as an unacceptable threat to security the prevention of which warrants the ready use of police violence. Videos show a policing approach in which casual use of chemical weapons, non-lethal guns that look like automatic weapons (but shoot cotton pellets), and batons. In the absence of reasonable suspicion of violence, non-lethal offensive police weapons should not be brought to or displayed at peaceful campus protests. They serve only to chill speech, provoke panic, and become a moral hazard in favor of violence. Using police force to clear peaceful campus protests should be a last resort only when negotiations and passive measures have failed to restore vital university functions.
The focus of investigations should not just be on individual police misconduct but on misguided university administration policies that have treated their own students as an intolerable threat to university security. More than even the tuition increases these policies raise the question of whose benefit these universities are operating for.
Saturday, November 19, 2011
Tuesday, November 15, 2011
Governing the Occupy Movement through Crime
In many cities, including most prominently Oakland and New York, tent encampments on public spaces by the Occupy Wall Street movement have been cleared in early morning raids by police (read about the Oakland situation here). This time, at least, police violence seems to have been minimal. But what is regrettable is the use by city leaders of the lame excuse that "crime" problems necessitated the end of the encampments. It may be that the Occupy Wall street movement must generate new meaningful actions to build its momentum, but the claims that the encampments were generating unacceptable levels of crime is both false and reflexive.
To the latter point first. The gist of the argument behind this blog, and the book, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear,is that political leaders facing a chronic legitimacy deficit since the late 1960s have frequently used protecting citizens from crime as the least problematic way of justifying the exercise of power.
In Oakland this played out in almost comic precision. Hemmoraging legitimacy after first clearing the plaza in a violent police sweep and then letting the Occupy encampment be reestablished Mayor Jean Quan seemed paralyzed with indecision about what to do about the camp until a murder on the periphery of the encampment last week gave her a crime cover. Having supported the goals of the occupation and accepted encampment as a protest tactic the Mayor now found an imperative requiring the preventive clearing of the site (read the full story in the SFChron here):
[Based on radio reports this morning, Mayor Bloomberg is also citing public safety as a prime reason for clearing Zuccatti Square.]
While the details of the murder investigation are unknown to me, there is little reason to believe from what we know thus far that the encampment created a context that made such a killing more likely. Far from it. As media attention to the encampment has disclosed to many casual observers, Oakland has loads of homeless men, many of them battling symptoms of mental illness, life long drug abuse, and the soul destroying impact of mass incarceration. The city also has lots of young men punished and pushed out of schools and toward jail (read Victor Rios' superb book Punished for more on that) whose search for dignity takes them into deadly games of gang competition and related honor violence. These troubled populations, frequently churned by law enforcement, prison, and parole, has been a source of crime and insecurity in Oakland for decades; Occupy Oakland didn't bring it there, and based on published reports did not make it worst.
Indeed, as a criminologist I would suspect the encampment may have provided a temporary context and social network that was very positive for individuals marginalized by the empty rungs on Oakland's post-industrial economic ladder and generally punished by government interventions. For a short period, many of these individuals found themselves gathered in a common political and social enterprise with highly educated and employed people who generally don't share the same social network. A more confident mayor of Oakland might have invited the Occupy Oakland movement to set up satellite Occupy encampments in some of the hard pressed Oakland neighborhoods where young people desperately need a positive pro-social movement to be involved in which gives them hope and dignity while teaching them tools of political involvement and non-violence.
What ever the Occupy movement does next it should be judged on cogency of its message and the dignity of its tactics, and not stigmatized by a crime problem that belongs to Oakland, its Mayor and its police department.
To the latter point first. The gist of the argument behind this blog, and the book, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear,is that political leaders facing a chronic legitimacy deficit since the late 1960s have frequently used protecting citizens from crime as the least problematic way of justifying the exercise of power.
In Oakland this played out in almost comic precision. Hemmoraging legitimacy after first clearing the plaza in a violent police sweep and then letting the Occupy encampment be reestablished Mayor Jean Quan seemed paralyzed with indecision about what to do about the camp until a murder on the periphery of the encampment last week gave her a crime cover. Having supported the goals of the occupation and accepted encampment as a protest tactic the Mayor now found an imperative requiring the preventive clearing of the site (read the full story in the SFChron here):
"The encampment became a place where we had repeated violence and, this week, a murder. We had to bring the camp to an end before more people were hurt."
[Based on radio reports this morning, Mayor Bloomberg is also citing public safety as a prime reason for clearing Zuccatti Square.]
While the details of the murder investigation are unknown to me, there is little reason to believe from what we know thus far that the encampment created a context that made such a killing more likely. Far from it. As media attention to the encampment has disclosed to many casual observers, Oakland has loads of homeless men, many of them battling symptoms of mental illness, life long drug abuse, and the soul destroying impact of mass incarceration. The city also has lots of young men punished and pushed out of schools and toward jail (read Victor Rios' superb book Punished for more on that) whose search for dignity takes them into deadly games of gang competition and related honor violence. These troubled populations, frequently churned by law enforcement, prison, and parole, has been a source of crime and insecurity in Oakland for decades; Occupy Oakland didn't bring it there, and based on published reports did not make it worst.
Indeed, as a criminologist I would suspect the encampment may have provided a temporary context and social network that was very positive for individuals marginalized by the empty rungs on Oakland's post-industrial economic ladder and generally punished by government interventions. For a short period, many of these individuals found themselves gathered in a common political and social enterprise with highly educated and employed people who generally don't share the same social network. A more confident mayor of Oakland might have invited the Occupy Oakland movement to set up satellite Occupy encampments in some of the hard pressed Oakland neighborhoods where young people desperately need a positive pro-social movement to be involved in which gives them hope and dignity while teaching them tools of political involvement and non-violence.
What ever the Occupy movement does next it should be judged on cogency of its message and the dignity of its tactics, and not stigmatized by a crime problem that belongs to Oakland, its Mayor and its police department.
Thursday, November 10, 2011
The Police Are Not There to Create Disorder....
Other gray hairs will recall this as the first clause of one of the late Mayor Richard J. Daley of Chicago (a man my father honored by calling Joseph Stalin the Daley of world history, read his wikipedia entry here) most famous malapropisms; becoming exasperated at a press conference during the disastrous Democratic National Convention of 1968 the Mayor exclaimed: "Gentlemen, get the thing straight once and for all– the policeman isn't there to create disorder, the policeman is there to preserve disorder."
But create disorder the police did in Chicago, smashing heads of anti-Vietnam war protesters and journalists alike, and leaving the city with an image of violence and disorder that would replace that of Al Capone for a generation. The violence may have played well in the Mayor's reactionary machine politics base, but nationally and internationally it gave the city a black eye. As for the Chicago police, an entire generation grew up thinking of them as fascist thugs, a sentiment exuberantly exorcised by John Belushi and Dan Ackroyd in the ballet like destruction of numerous Chicago Police cars in the movie Blues Brothers (1980).
In contrast, where we lived in a south side neighborhood adjoining the University of Chicago, the tumultuous late '60s and early '70s passed with nary an exciting police-student clash. University of Chicago President Ed Levi (who died in 2000 and whose centenary is this year) tried an unconventional strategy to deal with the campus strife of the 1960s. Levi had a university police force that was reputed to be the third largest force in the state of Illinois at his disposal, but when students dug trenches on the quads and tried to mount a Columbia/Harvard type take over, he resolutely ignored them and refused to call out the police. Eventually, boredom and the Chicago winter cleared the camps without a dramatic media centric confrontation. Levi came out of the period with a reputation as the best university president of his time and was appointed Attorney General of the United States by President Ford. His successful efforts to restore confidence in the legality of executive power in the aftermath of the Watergate and Ford's pardon of former President Richard Nixon, made him one of the top AGs of the 20th century.
Berkeley in contrast suffered multiple violent incidents as anxious administrators, opportunistic politicians like Governor Ronald Reagan regularly unleashed police and ultimately military power to repress the genuine anguish of a generation ripped apart by an an unwinnable or even explainable war. But the University kept repeating its mistakes. I was an eye witness to the most violent incident between People's Park and the present, the "Shanty-town riot" of 1985 (read about the events here). Twenty five years ago this spring, with the apparent approval of Chancellor Ira Mike Heyman (who was off campus that day and I hope badly misled by his advisers) the University authorized a massive police onslaught against a group of mostly student protesters who had built "shanty" structures of found wood and cardboard in the broad lane adjoining California Hall to protest the University's continued investment in corporations doing business in South Africa. Multiple police forces deployed with riot gear to clear a peaceful Shanty town in an ironic role play of real Apartheid tactics in South Africa.
Disinvestment turned out to be a winning cause ultimately endorsed by even the Republican Party and widely credited with helping speed the transition in South Africa. There was no danger that Spring night that warranted a violent police assault on a group that the University was presumably in a relationship of responsibility toward. Outraged students confronted police with the most sustained counter attack they had seen since People's Park. The alleged violent resistant by yesterday's demonstrators (of which I see no evidence) pales in comparison to the rocks and missiles thrown at police that night. I saw it all from the jail bus where I had been tossed along with fellow law student legal observer Osha Neumann before the attack on Shanty town began. The riot left scores of students injured, numerous lawsuits by injured protesters and several nearly wrecked Alameda County Sheriff's buses (yours truly faced felony charges and an official two week ban from coming to campus; the former eventually dropped and the latter promptly ignored).
Unbelievably, despite this clear history, UC Berkeley's leadership has once again over reacted to student demonstrations by calling out not just the campus police, but the infamous Alameda County Sheriff's officers (the Blue Meanies of the 1960s) who as so many times before marched in like the Imperial storm troopers in Star Wars and beat students for no apparent reason (see the youtube video here). What possible reason was there for this senseless creation of disorder that outstripped the disorder it was intended to prevent by a significant degree? Why was preventing a tent encampment on Sproul Plaza deemed a matter of urgency sufficient to risk the injury or even death of students and other protesters? What better place is there for such an encampment than Sproul plaza, a space dedicated to free speech? It is also a space where students can easily participate in a potentially historically important moment of democratic awakening in this country, and without having to miss classes (and which prevents no one else from attending classes or getting to their lab or library as building occupations do).
Our students (as well as everyone else here) are facing the worst economy since the Great Depression, and the rapid disappearance of a public higher education that was delivered to the generations of Californians. The protest sought to tie the rapid decline of public higher education to the disastrous financial crisis brought on by the casino capitalism promoted by the financial industry for its own benefit. They deserve our sympathy and our support, not a boot or a baton in the face.
Mayor Daley had it right the first time. The police are not there to create disorder. Chancellor Birgeneau and his leadership team must explain to this community (both academic and otherwise) the rationale behind decisions that led to this incredibly damaging result; one which has endangered our students, our faculty, and confirmed our reputation as a university that regularly mismanages protest.
Ed Levi where are you when we need you?
But create disorder the police did in Chicago, smashing heads of anti-Vietnam war protesters and journalists alike, and leaving the city with an image of violence and disorder that would replace that of Al Capone for a generation. The violence may have played well in the Mayor's reactionary machine politics base, but nationally and internationally it gave the city a black eye. As for the Chicago police, an entire generation grew up thinking of them as fascist thugs, a sentiment exuberantly exorcised by John Belushi and Dan Ackroyd in the ballet like destruction of numerous Chicago Police cars in the movie Blues Brothers (1980).
In contrast, where we lived in a south side neighborhood adjoining the University of Chicago, the tumultuous late '60s and early '70s passed with nary an exciting police-student clash. University of Chicago President Ed Levi (who died in 2000 and whose centenary is this year) tried an unconventional strategy to deal with the campus strife of the 1960s. Levi had a university police force that was reputed to be the third largest force in the state of Illinois at his disposal, but when students dug trenches on the quads and tried to mount a Columbia/Harvard type take over, he resolutely ignored them and refused to call out the police. Eventually, boredom and the Chicago winter cleared the camps without a dramatic media centric confrontation. Levi came out of the period with a reputation as the best university president of his time and was appointed Attorney General of the United States by President Ford. His successful efforts to restore confidence in the legality of executive power in the aftermath of the Watergate and Ford's pardon of former President Richard Nixon, made him one of the top AGs of the 20th century.
Berkeley in contrast suffered multiple violent incidents as anxious administrators, opportunistic politicians like Governor Ronald Reagan regularly unleashed police and ultimately military power to repress the genuine anguish of a generation ripped apart by an an unwinnable or even explainable war. But the University kept repeating its mistakes. I was an eye witness to the most violent incident between People's Park and the present, the "Shanty-town riot" of 1985 (read about the events here). Twenty five years ago this spring, with the apparent approval of Chancellor Ira Mike Heyman (who was off campus that day and I hope badly misled by his advisers) the University authorized a massive police onslaught against a group of mostly student protesters who had built "shanty" structures of found wood and cardboard in the broad lane adjoining California Hall to protest the University's continued investment in corporations doing business in South Africa. Multiple police forces deployed with riot gear to clear a peaceful Shanty town in an ironic role play of real Apartheid tactics in South Africa.
Disinvestment turned out to be a winning cause ultimately endorsed by even the Republican Party and widely credited with helping speed the transition in South Africa. There was no danger that Spring night that warranted a violent police assault on a group that the University was presumably in a relationship of responsibility toward. Outraged students confronted police with the most sustained counter attack they had seen since People's Park. The alleged violent resistant by yesterday's demonstrators (of which I see no evidence) pales in comparison to the rocks and missiles thrown at police that night. I saw it all from the jail bus where I had been tossed along with fellow law student legal observer Osha Neumann before the attack on Shanty town began. The riot left scores of students injured, numerous lawsuits by injured protesters and several nearly wrecked Alameda County Sheriff's buses (yours truly faced felony charges and an official two week ban from coming to campus; the former eventually dropped and the latter promptly ignored).
Unbelievably, despite this clear history, UC Berkeley's leadership has once again over reacted to student demonstrations by calling out not just the campus police, but the infamous Alameda County Sheriff's officers (the Blue Meanies of the 1960s) who as so many times before marched in like the Imperial storm troopers in Star Wars and beat students for no apparent reason (see the youtube video here). What possible reason was there for this senseless creation of disorder that outstripped the disorder it was intended to prevent by a significant degree? Why was preventing a tent encampment on Sproul Plaza deemed a matter of urgency sufficient to risk the injury or even death of students and other protesters? What better place is there for such an encampment than Sproul plaza, a space dedicated to free speech? It is also a space where students can easily participate in a potentially historically important moment of democratic awakening in this country, and without having to miss classes (and which prevents no one else from attending classes or getting to their lab or library as building occupations do).
Our students (as well as everyone else here) are facing the worst economy since the Great Depression, and the rapid disappearance of a public higher education that was delivered to the generations of Californians. The protest sought to tie the rapid decline of public higher education to the disastrous financial crisis brought on by the casino capitalism promoted by the financial industry for its own benefit. They deserve our sympathy and our support, not a boot or a baton in the face.
Mayor Daley had it right the first time. The police are not there to create disorder. Chancellor Birgeneau and his leadership team must explain to this community (both academic and otherwise) the rationale behind decisions that led to this incredibly damaging result; one which has endangered our students, our faculty, and confirmed our reputation as a university that regularly mismanages protest.
Ed Levi where are you when we need you?
Saturday, November 5, 2011
David Onek for SF DA
California's dramatic pivot toward giving counties primary responsibility for punishment over a wide swath of persons convicted of felonies, a policy known as realignment, is the most important move toward dismantling mass incarceration in this state in forty years. As I have argued here before, there is both great promise and peril in this experiment. If counties end up sending most of these felons into already often over-stretched county jails for longer sentences than such jails have ever been used for, mass incarceration will only have broken up, like a bubble in a water filled souvenir snow globe, only to reappear in a panoply of fragments. However, if large urban counties where many felony convictions originate, but also where many of the skills necessary to manage crime related risks are concentrated, vigorously pursue alternatives to incarceration, combining smarter risk management with restorative justice methods, California could once again lead the nation in reinventing penality (this time in a good way).
This high risk experiment will play out in each county, and no figure is more crucial to how it comes out than the District Attorney, that is, the elected chief prosecutor who determines what charges to bring and what sanctions to seek for every criminal charge brought in California. In chapter 2 of my book Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear,I argued that prosecutors had emerged as the strongest political expression of the war on crime. While DAs have often moved up into higher office, the war on crime had given them an even more powerful momentum, and had reshaped the aspirations of higher executive officers like mayors, governors, and presidents, who often seemed to vie to be a kind of "prosecutor in chief." As the primary political beneficiaries of growing public concern about crimes, prosecutors played a crucial role as accelerators of mass incarceration; using their wide discretion to send people to prison who don't need to be there, and to send others to prison for decades longer than they need to be there. But that same discretion gives them enormous potential to steer us away from mass incarceration if they choose to, a potential magnified by realignment.
Thus the most important thing voters (especially in California) can do to reduce mass incarceration and help realignment work out in the best direction, is to elect District Attorneys that have their eyes on that prize and have the skill set to achieve it. I wish I knew more about the DA candidates on the ballot up and down the state this Tuesday, and could make recommendations. However I do know enough to make a recommendation in the San Francisco race. I had the opportunity to work with David Onek when he directed the Berkeley Center for Criminal Justice. I have nothing bad to say about any of the other candidates (but I wouldn't want the former police chief of San Francisco to be its DA for a host of reasons that have nothing to do with the current incumbent, but would take several longer posts to explain). David has a unique skill set for this job, combining administrative skill, a powerful commitment to finding innovative ways to reduce crime and increase a sense of justice, and tremendous insight in the research relevant to making the best possible use of the enhanced opportunities created by realignment. If you live in SF, please vote David Onek for DA. If you have friends or relatives who vote there, please send them this post and ask them to consider voting for David.
The main criticism of David is that he has never worked as a prosecutor. But elected DA's do not try cases (unless they want the glory for political reasons), they help set policies for the office and assure that they are carried out effectively. Experience can be a great benefit, but today we have a unique need for leaders who can navigate through dramatic and uncharted change. What we need now, more than ever, are prosecutor-leaders who have not bought into the war on crime/mass incarceration paradigm (which is a risk of anyone who has had too much experience), and who have the leadership skills to bring their line prosecutors into the decarceration strategy. We also need visionary leaders who can help set the agenda for other counties. David is a tremendous listener and communicator (watch his interviews with criminal justice leaders on the Berkeley Law website here) who could define the best practices for realigment throughout the state.
This high risk experiment will play out in each county, and no figure is more crucial to how it comes out than the District Attorney, that is, the elected chief prosecutor who determines what charges to bring and what sanctions to seek for every criminal charge brought in California. In chapter 2 of my book Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear,I argued that prosecutors had emerged as the strongest political expression of the war on crime. While DAs have often moved up into higher office, the war on crime had given them an even more powerful momentum, and had reshaped the aspirations of higher executive officers like mayors, governors, and presidents, who often seemed to vie to be a kind of "prosecutor in chief." As the primary political beneficiaries of growing public concern about crimes, prosecutors played a crucial role as accelerators of mass incarceration; using their wide discretion to send people to prison who don't need to be there, and to send others to prison for decades longer than they need to be there. But that same discretion gives them enormous potential to steer us away from mass incarceration if they choose to, a potential magnified by realignment.
Thus the most important thing voters (especially in California) can do to reduce mass incarceration and help realignment work out in the best direction, is to elect District Attorneys that have their eyes on that prize and have the skill set to achieve it. I wish I knew more about the DA candidates on the ballot up and down the state this Tuesday, and could make recommendations. However I do know enough to make a recommendation in the San Francisco race. I had the opportunity to work with David Onek when he directed the Berkeley Center for Criminal Justice. I have nothing bad to say about any of the other candidates (but I wouldn't want the former police chief of San Francisco to be its DA for a host of reasons that have nothing to do with the current incumbent, but would take several longer posts to explain). David has a unique skill set for this job, combining administrative skill, a powerful commitment to finding innovative ways to reduce crime and increase a sense of justice, and tremendous insight in the research relevant to making the best possible use of the enhanced opportunities created by realignment. If you live in SF, please vote David Onek for DA. If you have friends or relatives who vote there, please send them this post and ask them to consider voting for David.
The main criticism of David is that he has never worked as a prosecutor. But elected DA's do not try cases (unless they want the glory for political reasons), they help set policies for the office and assure that they are carried out effectively. Experience can be a great benefit, but today we have a unique need for leaders who can navigate through dramatic and uncharted change. What we need now, more than ever, are prosecutor-leaders who have not bought into the war on crime/mass incarceration paradigm (which is a risk of anyone who has had too much experience), and who have the leadership skills to bring their line prosecutors into the decarceration strategy. We also need visionary leaders who can help set the agenda for other counties. David is a tremendous listener and communicator (watch his interviews with criminal justice leaders on the Berkeley Law website here) who could define the best practices for realigment throughout the state.
Tuesday, November 1, 2011
Early Release
Today marks the beginning of a process that is likely to see thousands of federal prisoners convicted under the notorious 1980s anti-crack laws set free years earlier than their original sentences called for. These laws set a 100:1 ratio between crack and powder cocaine for sentencing purposes under federal laws. Harsh mandatory minimum prison sentences (a fad during the late 1980s) that kicked in for people caught possessing more than 500 grams of powder cocaine (a large scale dealer one would imagine), kicked in for someone carrying a mere 5 grams of crack cocaine (who could be merely a user contemplating a binge).
The difference in treatment, which has proven indefensible in criminological or pharmacological terms, had an undeniable racial impact, selecting blacks for especially long sentences. After years of criticism, Congress finally enacted a reform law reducing (but not completely eliminating) the differential and President Obama signed it into law last year. As a result, according to Jessica Gresko's reporting for the AP (read it here) as many as 2000 federal prisoners will go free this year and as many as 12,000 over the next several years, based on sentence recalculations carried out to implement the law by the US Sentencing Commission.
But as much as there is to be said about the perniciousness of the crack cocaine sentencing law, the other part of the story is the importance of the precedent that has been set here about early release. In recent decades, politicians have locked themselves into the view that no one sent to prison, should ever be released early (remember Wilie Horton). As a result most states and federal justice system are criss-crossed with rigid laws, like California's absurd three-strikes law, that lock in very long sentences and guaranteeing that our prisons will become the new retirement system for the middle aged.
That is why despite the distinctive politics behind the crack cocaine sentencing revision, it is a precedent that should be generalized. The releases beginning today are powerful testimony that harsh laws, enacted in the glare of alarming media coverage of a crime "trend" (in that case the new super drug "crack cocaine" that was supposedly turning the inner cities into zombie lands), can be revised. The resulting effects, which will hopefully be carefully studied by criminologists, may offer evidence of the enormous gain our stricken society could gain from pursuing a much broader early release agenda that would see the repeal of so called "truth-in-sentencing" laws that prevent early release through parole and reconsideration of many sentences "super-sized" in the era of boundless prison expansion. Over the coming months and years, thousands of people whose incarceration was once deemed essential for public safety are going to be released. The federal government will save millions of dollars. Thousands of families will be reunited producing incalculable ripples of pro-social effects. Given that most people released are in their thirties and forties, and have served years already in prison, the likelihood is very little new crime will result.
The difference in treatment, which has proven indefensible in criminological or pharmacological terms, had an undeniable racial impact, selecting blacks for especially long sentences. After years of criticism, Congress finally enacted a reform law reducing (but not completely eliminating) the differential and President Obama signed it into law last year. As a result, according to Jessica Gresko's reporting for the AP (read it here) as many as 2000 federal prisoners will go free this year and as many as 12,000 over the next several years, based on sentence recalculations carried out to implement the law by the US Sentencing Commission.
But as much as there is to be said about the perniciousness of the crack cocaine sentencing law, the other part of the story is the importance of the precedent that has been set here about early release. In recent decades, politicians have locked themselves into the view that no one sent to prison, should ever be released early (remember Wilie Horton). As a result most states and federal justice system are criss-crossed with rigid laws, like California's absurd three-strikes law, that lock in very long sentences and guaranteeing that our prisons will become the new retirement system for the middle aged.
That is why despite the distinctive politics behind the crack cocaine sentencing revision, it is a precedent that should be generalized. The releases beginning today are powerful testimony that harsh laws, enacted in the glare of alarming media coverage of a crime "trend" (in that case the new super drug "crack cocaine" that was supposedly turning the inner cities into zombie lands), can be revised. The resulting effects, which will hopefully be carefully studied by criminologists, may offer evidence of the enormous gain our stricken society could gain from pursuing a much broader early release agenda that would see the repeal of so called "truth-in-sentencing" laws that prevent early release through parole and reconsideration of many sentences "super-sized" in the era of boundless prison expansion. Over the coming months and years, thousands of people whose incarceration was once deemed essential for public safety are going to be released. The federal government will save millions of dollars. Thousands of families will be reunited producing incalculable ripples of pro-social effects. Given that most people released are in their thirties and forties, and have served years already in prison, the likelihood is very little new crime will result.
Wednesday, October 19, 2011
Who sets the captive free
Looking at the pictures of Israeli soldier Gilad Shalit being released from six years of captivity under the Hamas regime in Gaza, and the scenes of scores of Palestinian fighters being released from prisons in Israel, I could not help but think of the verse in the traditional Jewish morning prayers, the Amidah, in which the worshiper praises God for many kinds of acts on behalf of humans including, "who sets free the captive" (in some translations). Those words have always amazed me. I understand why we would need God to raise the dead, and perhaps to heal the very sick, but cannot we free prisoners on our own?
There is of course, an interesting theme in TORAH concerning the role of God in human decisions about freedom (think of Pharaoh's heart being "hardened" against freeing the Israelites); as if the almighty were daring us to raise the more fundamental question of when humans really can choose anything freely. But it also reminds us that there is something divine in the freeing of any prisoner, an act of trust, faith, and belief in the possibility that tomorrow will be different, and that we who hold the captive can escape our own prison of fear.
For now, as Ethan Bronner reports (here) in today's NYTimes, the site of prisoners being released has hardened hearts on both sides of the Israel/Palestine conflict.
The overall strategic assessment, appears equally bleak, with the deal having strengthened to two elements in the Israel/Palestine sovereignty conflict most associated with rejection of compromise, Hamas and Netanyahu. Call me an optimist but I think the shifting of the conflict, even temporarily to the prisoner front is a good thing. Each side and the world should now look hard at these prisoners and demand an accounting for how they were treated.
In that regard Hamas should hang its head in shame for releasing Shalit in a visibly emaciated and sickly state. Any claim in the world that they represent the legitimate aspirations of Palestinian people is put into question by this image, and by their decision to deny Red Cross access to their prisoner. Shalit's own testimony will tell us more about the conditions under which he was kept. Perhaps Hamas can convince us that it's own status as a hunted outlaw organization, and the all seeing eye of Israeli intelligence, explains the necessity of both conditions, but it will be against a heavy burden of proof on a regime that has all the attributes of statehood other than legitimacy.
At the same time, they should present their prisoners to the world to back up their claims of "torture, compulsion and revenge." These are the right questions to ask of the means and motive of any regime of imprisonment, no matter how presumptively valid (Hamas might want to look into the mirror of "compulsion and revenge" while they are at it). Israel also must regret its ill advised decision just this September to strip Palestinian prisoners of many of their opportunities for communication and education, to increase pressure on Hamas to release Shalit. Nobody assumes Israeli prisons are as crude as the conditions under which Gilad Shalit was held, but long term imprisonment presents a path to degradating and inhuman treatment just as inexorable as bad conditions and lack of nourishment. Things that can seem like frills in the abstract, communication and education, become essential to the maintenance of human dignity when the years turn to decades. Israel must also question the validity of holding so many prisoners and for so long. Mass incarceration makes no more sense as a military strategy than it does as a crime control one. Suicide bombing has stopped because of the barrier wall and the political choice of Hamas to rely on rockets, not because there are not enough demoralized young people to carry them.
I am most hopeful because the debate about the prisoners has the chance to elevate a conflict that has been for too long about blood and soil, and bring it back to the real interests of the human beings on both sides. The Egyptian video-taped interview of Gilad Shalit as he was transferred from the custody of Hamas may raise ethical questions, but you could not escape the simple dignity of Shalit's quiet and deliberate answers to the journalist's questions. The story of a mother fainting on hearing the news that her daughter, an attempted suicide bomber, would be on the bus returning after twelve years in prison (read Chris McGreal's reporting in the Guardian) reminds us of the shear physical power of our bonds to our children.
The captive, stripped of the elements, bomb belts and uniforms, which once made him or her a threat in the eyes of the captors, becomes, in the end, a human being, and a representative of the divine in all of us.
There is of course, an interesting theme in TORAH concerning the role of God in human decisions about freedom (think of Pharaoh's heart being "hardened" against freeing the Israelites); as if the almighty were daring us to raise the more fundamental question of when humans really can choose anything freely. But it also reminds us that there is something divine in the freeing of any prisoner, an act of trust, faith, and belief in the possibility that tomorrow will be different, and that we who hold the captive can escape our own prison of fear.
For now, as Ethan Bronner reports (here) in today's NYTimes, the site of prisoners being released has hardened hearts on both sides of the Israel/Palestine conflict.
Israelis, at first thrilled at the sight of their liberated soldier, were angered by how he looked — frail, wan and underfed.
Hamas officials said their members had been subject in Israeli prisons to “torture, compulsion and revenge.”
The overall strategic assessment, appears equally bleak, with the deal having strengthened to two elements in the Israel/Palestine sovereignty conflict most associated with rejection of compromise, Hamas and Netanyahu. Call me an optimist but I think the shifting of the conflict, even temporarily to the prisoner front is a good thing. Each side and the world should now look hard at these prisoners and demand an accounting for how they were treated.
In that regard Hamas should hang its head in shame for releasing Shalit in a visibly emaciated and sickly state. Any claim in the world that they represent the legitimate aspirations of Palestinian people is put into question by this image, and by their decision to deny Red Cross access to their prisoner. Shalit's own testimony will tell us more about the conditions under which he was kept. Perhaps Hamas can convince us that it's own status as a hunted outlaw organization, and the all seeing eye of Israeli intelligence, explains the necessity of both conditions, but it will be against a heavy burden of proof on a regime that has all the attributes of statehood other than legitimacy.
At the same time, they should present their prisoners to the world to back up their claims of "torture, compulsion and revenge." These are the right questions to ask of the means and motive of any regime of imprisonment, no matter how presumptively valid (Hamas might want to look into the mirror of "compulsion and revenge" while they are at it). Israel also must regret its ill advised decision just this September to strip Palestinian prisoners of many of their opportunities for communication and education, to increase pressure on Hamas to release Shalit. Nobody assumes Israeli prisons are as crude as the conditions under which Gilad Shalit was held, but long term imprisonment presents a path to degradating and inhuman treatment just as inexorable as bad conditions and lack of nourishment. Things that can seem like frills in the abstract, communication and education, become essential to the maintenance of human dignity when the years turn to decades. Israel must also question the validity of holding so many prisoners and for so long. Mass incarceration makes no more sense as a military strategy than it does as a crime control one. Suicide bombing has stopped because of the barrier wall and the political choice of Hamas to rely on rockets, not because there are not enough demoralized young people to carry them.
I am most hopeful because the debate about the prisoners has the chance to elevate a conflict that has been for too long about blood and soil, and bring it back to the real interests of the human beings on both sides. The Egyptian video-taped interview of Gilad Shalit as he was transferred from the custody of Hamas may raise ethical questions, but you could not escape the simple dignity of Shalit's quiet and deliberate answers to the journalist's questions. The story of a mother fainting on hearing the news that her daughter, an attempted suicide bomber, would be on the bus returning after twelve years in prison (read Chris McGreal's reporting in the Guardian) reminds us of the shear physical power of our bonds to our children.
The captive, stripped of the elements, bomb belts and uniforms, which once made him or her a threat in the eyes of the captors, becomes, in the end, a human being, and a representative of the divine in all of us.
Friday, October 7, 2011
Realignment and Beyond
Earlier this year, Governor Edmund G. Brown Jr. signed Assembly Bill (AB) 109 and AB 117, historic legislation that will enable California to close the revolving door of low-level inmates cycling in and out of state prisons. It is the cornerstone of California’s solution for reducing the number of inmates in the state’s 33 prisons to 137.5 percent design capacity by May 24, 2013, as ordered by the U.S. Supreme Court.
As the above quote from the California Department of Corrections and Rehabilitation's realignment website, suggests, it is the most important shift in penal policy in California in forty years, but few appear to care about it. Desultory media coverage is matched by the equally desultory opposition of the formidable crime warriors that line the corridors of the California legislature. The title is vague, and perhaps designed to sound boring (even if it hints of profound change). Even while describing it as historic, the Governor has largely suggested it is a necessity for complying with the recent mandates of the federal court with the modest goal of achieving a prison population that is at 137.5 percent of design capacity by 2013. But make no mistake about it, realignment legislates the end of mass incarceration as we've known it.
Realignment has lots of moving parts but two particularly significant elements. The first redefines the punishments available for felonies in the state. Historically, following the common law tradition, California law defined as a general matter, death, or state prison, as the authorized punishments for all felonies (unless otherwise prescribed by the specific offense terms), with a limited option for county jail for a period not to exceed one year. Realignment would remove that one year cap, making county jail a potential sentence for felonies. The law however excludes "serious" or "violent" felonies (technical terms including scores of specific offenses, some not as serious or violent as you might imagine), as well as a laundry list of non-serious, non-violent offenses that law enforcement wanted excluded (mysteriously including "dealing in horse meat"). (download a legislative summary here).
This provision might seem to only trade one form of incarceration, state prison, for another, county jail time; a cynical shell game designed to relieve court pressure without altering our basic addiction to incarceration. There is more potential for change here than meets the eye. Historically it was assumed that persons sentenced to more than one year of incarceration were better off in prisons which were larger facilities, with more opportunities for education, rehabilitation, and employment. Today, after decades of building warehouse prisons aimed achieving only custody, the state prison system is a humanitarian disaster. County jails may have their own problems, but they are typically located closer to the communities that California's prisoners come from, permitting family ties to be sustained and opening access to educational and rehabilitative resources that are far more available, at least in the urban counties from which the vast majority of prisoners come. Potentially more importantly, the law grants broad new authority to counties to assign "low risk" inmates in county jail to home arrest and electronic monitoring. This gives counties the option to replace traditional brick and mortar custody with enhanced supervision and surveillance methods, a move that criminologists have been advocating for decades, but which has been considered an anathema in California's "total incapacitation" penal policy.
Equally important, realignment fundamentally reshapes parole supervision in California. Since the late '70s, virtually all California state prisoners faced a 3 year period of parole supervision in the community under the authority of state parole officers and subject to return to prison for even technical violations of parole. Once parole worked as reentry agency with the ambition of keeping prisoners from going back to prison. But as documented in my first book, Poor Discipline: Parole and Social Control of the Underclass, 1890 to 1990s, California turned its system into a fast-track system for recycling parolees back to prison. Starting in the 1980s, roughly half of California prison admissions have come from parole revocation. The resulting churning of this population, with very short prison sentences (typically 4 to 6 months) for revocation, followed by release with little planning or provision, has been widely condemned for wreaking havoc with prisons while providing less than zero crime control benefits (in effect creating crime). Realignment keeps the three years of post-release supervision but moves responsibility for that supervision to county probation agencies for a significant portion of the prisoners (excluding the serious and violent offenses, as well as various sex offenses). Parolees under county supervision will no longer be subject to return to state prison for technical parole violations and by the authority of the Board of Parole Hearings. Now county courts, the same authorities that sentence offenders charged with crimes, will have to decide on the appropriate sanctions (which could include county jail).
As this blog has advocated before, reducing the role of state parole supervision is by itself a step forward. County probation, while subject to resource constraints, has sustained an institutional culture more oriented toward rehabilitation and reentry than state parole which was assimilated into the custody oriented approach of the prison system decades ago. Moreover, by channeling decision making from the rubber stamp Board of Parole Hearings, which rarely rejects re-imprisonment for parole violations, to county judges, realignment ends the perverse incentive to use state prison as a tool for all kinds of low level violation behavior. Judges who see both parole violators and newly criminally charged defendants can apply a common standard of public safety to both groups.
These two aspects, widening the role for counties in the punishment of felonies and eliminating (or at least significantly reducing) the wholesale recycling of parolees back to state prison for technical violations, go a long way to ending the policy of mass incarceration in California. The heart of that policy was the assumption that removing offenders of all sorts from their communities and placing them in state prisons would make those communities safer. This indiscriminate quality to mass incarceration is a significant part of what led the scale of imprisonment to grow beyond any reasonable bounds and become a humanitarian crisis in California. It also contributed to abandonment of any ambition to provide rehabilitative programming in California prisons or to invest in significant reentry efforts for those leaving. If crime goes down simply by locking more potential criminals up, than rehabilitation and reentry are irrelevant.
These changes are historic and great credit goes to the Coleman and Plata litigations (culminating in the Brown v. Plata, Supreme Court decision in May 2011) which has dragged the state's political class into a long delayed reckoning with our fatally flawed penal system. But realignment leaves in place, and indeed reinforces, one crucial remaining aspect of mass incarceration, the extreme extension of sentences for serious and violent crimes. California prisons are increasingly filled with prisoners sentenced to lengthy or even life terms. The lifers, a group that due to Three-Strikes now includes roughly a fifth of the entire prison population, faces decades in prison and poor prospects for ever being paroled (although there are signs the parole process may be becoming unfrozen). Realignment will only increase the concentration of such prisoners in the state prison system. This will leave us with a smaller prison population perhaps, but one made up of prisoners with little hope or incentive to creating a dignified and safe culture inside prisons. Indeed the management problems created by such a concentration of hopelessness could make our prisons even more degrading than they are today for both prisoners and prison staff.
California needs to fundamentally revisit its sentencing policies for serious and violent crimes. Three-Strikes needs to go and parole release mechanisms recalibrated to assure that prisoners who avoid conflicts and work on their risk factors see a realistic path to freedom. These will be far more controversial moves than realignment and opposition from both Democrats and Republicans in the legislature (and presumably the Correctional Officers union) will be fierce. One step, however, that the Brown administration could take now and with no legislative authorization needed, would be to announce the end of the supermax regime in place at units of Pelican Bay and Corcoran state prisons among others. It is these units, Secured Housing Units, as they are described in California, that are the main focus of the hunger-strike by prisoners both in and out of the SHU, which is continuing across multiple California prisons this week.
The SHU regime of being locked down to your cell for nearly 23 hours a day every day (and in California amazingly you are in many cases sharing this tiny space with a second prisoner) in adds sustained physical suffering and potential psychological disintegration to the already degrading circumstances facing long term inmates. Assignment to a supermax or SHU unit is an administrative decision taken within the Department (which is the executive branch) and not part of the legal sentence imposed by judges based on legislation. Moreover the evidence about violence inside the prison system suggests it is increasingly difficult to justify the SHU as a management tool. An announcement that the SHU system would be wound down and replaced by new strategies for addressing those prisoners who do pose a serious risk to prison staff and other prisoners within two years (that is by the time the Brown decision requires the population reduction target to be reached) would send a ray of hope into this dark core of mass incarceration that is, as yet untouched by realigment. In subsequent posts I will address some of what these new strategies could look like.
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