Hope and Change Election?

It's more than just an echo of the Obama's 2008 campaign. The California ballot in 2012 will carry two measures aimed directly at the heart of the state's fear based political culture and the massive penal system it has spawned. The first, which was formally certified for the November election on Monday of this week (read the SacBee story here), will offer voters the option to repeal the death penalty for special circumstance murder and replace it with life without parole (LWOP). A second initiative was just submitted to the state for certification (read the SFChron story here) will offer voters the option to modify California's notorious three-strikes law, to require that the third strike (with its 25 year to life mandatory sentence), only applies to the "serious" or "violent" felonies, and not the assortment of felonies including so called "wobbler" misdemeanors that have resulted in life sentences before. Over the next months we will examine the proposals in more detail. Here I want to note the generational significance of this election. Since the 1960s, American national, state, and local elections and politics have been profoundly reshaped by the fear of violent crime (see my book Governing through Crime: How the War on Crime Transformed American Culture and Created a Culture of Fear). Sometimes elections have turned on crime as in 1988 when George H. W. Bush pulverized Michael Dukakis as soft on crime for his opposition to the death penalty, or in California in 1994 when Pete Wilson revived his recession weakened chances of re-election by seizing on public outrage at the murder of Petaluma twelve-year-old Polly Klaas. More often crime has simply lurked in the background, disciplining the candidates to hew to a narrow line around the most severe anti-crime policies, as in 2008 when both McCain and Obama raced to denounce the Supreme Court for striking down capital punishment for rapists of children. This will be the first election in memory where two measures aimed at reducing the severity of punishments at the very top of the penal spectrum, and which deal with violent or serious crimes (not the drug use crimes that have been the most common focus of penal reduction measures). Why now? The obvious candidates are the state's deep fiscal difficulties, the worst since the Great Depression which have seen cities go bankrupt and thousands of state and local services trimmed back and the fact that with some local exceptions, crime remains significantly lower than the peaks set during the 1970s, 1980s, and early 1990s, when many of the state's punitive policies were established. These trends have been magnified and publicized by the state's epic prison heath care crisis which drew the ire of the US Supreme Court in Brown v. Plata (which more or less declared California a less than civilized state engaged in torture) and resulted in an order to reduce prison populations by as many as 40,000 inmates from the level of 2009. By reducing the fear of violent crime and raising the attractiveness of cost savings with little actual risk, measures like the 3-Strikes modification and death penalty repeal are well designed to take maximum advantage of these trends, without push the envelope very much in terms of challenging the basic premises of California's hyper punitive penal code. But these trends are also being magnified by generational turning points that suggest even more significant turn away from governing through crime is possible. Here a different kind of numerology may be at work, not a trend, but the singular biblical span of 40 years, and its half, 20 years, which is the most common measure of a human generation (most common is 20 to 25 which points to 40 to 40 as the core generational span). In a recent New Yorker comment, Adam Gopnik offered a rule of (roughly) 40 and 20 years to explain popular culture trends. According to Gopnik, 40 somethings, who generally dominate cultural consumption are invariably fascinated with the world as it existed just prior to their coming into it. Thus the popularity of the 1960s in 00s, while in the 1960s themselves it was the 1920s that was hot. There is a secondary fascination with one's teenage years that leads to 20 year cultural pull (the 1970s saw a cultural fascination with the 1950s). I think a similar generational logic can help explain the power of this moment as a "hope and change" season on our penal policies (and perhaps our broader "culture of control". Consider the death penalty repeal. The measure would amend the state constitution, repealing another ballot measure constitutional amendment that was adopted by the voters in 1978, some 34 years ago; but that initiative was intended to expand the death penalty that had already been brought back to life through popular initiative in 1972, exactly forty years ago this coming Fall. Likewise Three-Strikes was put in the state's constitution by voter initiative in 1994, 18 years ago (close enough to 20). Here, however, it is not so much nostalgia, but the perhaps counter-balancing possibility of letting go that may be at work. The leading edge baby-boomers were entering their adulthood in the early 1970s (Bill Clinton turned 30 in 1975). Then Californians were reeling from years marked by the assassination of Robert Kennedy in Los Angeles in 1968, and the Manson family murders a year later in the same city. When the California Supreme Court struck down the death penalty in 1972, a few months ahead of the US Supreme Court's Furman v. Georgia decision, the homicide rate was still escalating in California and nationwide. Shocked by the violent crime of that time which had not much bothered them in the 1960s when they were in their teens and twenties, baby-boomers became the core of tough on crime shift in American politics and life. In the early 1990s, boomers were at the peak of their parenting years when people may feel most vulnerable to predatory crime, and violent crime was once again, after something of a trough in late 1970s and early to mid-1980s had reached a peak at the start of the decade and seemed alarmingly highlighted by events like the Los Angeles riot of 1992 and 1994 Polly Klaas kidnapping murder. Today leading edge boomers are edging into retirement (those that can) and are shifting focus to their legacy and the economic prospects of their grandchildren. The grip that the fear years of the 1970s, and its echo in the 1990s had on the boomers is diminishing as time and mortality work their healing. In the meantime younger voters, Generation X'ers and since, are coming into their power years without the same psychic response to violent crime that Boomers carried. True many of them were young when violent crime was at its peak in the 1980s and early 1990s, but young people are not put off in the same way. By the time X'ers began having children in the 1990s and 00s, violent crime was dropping. Some of these new parents were also rebelling against the boring securitized residential communities they had grown up in (a trend gaining even more momentum since the collapse of the housing bubble). It is possible that 2012 will see an electoral alliance of Boomers re-balancing their hopes and fears, and younger voters more worried about the economy and climate weirdness than whether Charles Manson will get paroled will make this a real hope and change election on crime policy. I'm hoping for a tidal vote, one that opens the door not just to incremental modification of our public policies, but to a fundamental reimagining of justice and public safety in California

Are US Prisons Degrading and Inhuman? European Court of Human Rights takes a Pass

A group of British terrorism suspects were a step closer to extradition to the United States today after a panel of the European Court of Human Rights (a chamber in their terms) declined to hold that confinement in the Federal government's notorious ADX "supermax" prison in Florence, Colorado, or the prospect of being sentenced to multiple Life without the Possibility of Parole sentences constituted "inhuman or degrading punishment" as prohibited by Article 3 of the European Convention on Human Rights (read the Court's press release here). The decision was a blow both to the suspects (including Abu Hamza al-Masri, a British Jihadi leader already serving a 7 year sentence for inciting racial hatred) who are facing charges related to multiple terror plots in the US and also to US human rights lawyers who had hoped to use the extradition issue to get the European Court of Human Rights to decide that US prisons and sentences constituted a human rights violation. A similar victory was achieved on the issue of the death penalty back in the late 1980s in the case of Soering v United Kingdom 11 Eur. Ct. H.R. (ser. A) (1989).

Supermax prisons and life without parole sentences are generally not practiced in Europe and there has been considerable opinion that both practices might constitute violations of Article 3. Recently another panel of the European Court upheld a "whole life term"in another British case, although the Court essentially found that the question of whether they had no meaningful chance at release was premature. See, Vinter and Others v. United Kingdom (Application nos. 66069/09 and 130/10 and 3896/10)

This case has much the same feel. The European Court of Human Rights like most courts, tends to work hard to construe the facts in such a way as to avoid having to declare the practices of its member states violations of human rights. While this case did not involve a member state, a ruling in favor of the prisoners would have called into quesiton extradition from European countries to the United States in all kinds of cases where either either supermax imprisonment or life without parole sentences were a possibility. Furthermore, while the Court may be less reluctant to morally condemn the US than its own member states, a favorable ruling here would have drawn comparisons between US justice and states like Jordan where the European Court of Human Rights had only recently prevented an extradition of a terrorism suspect.

On supermax the European Court of Human Rights panel chose to accept the most positive possible account of life in the ADX, citing the fact that prisoners would receive a variety of services not available in European prisons:

Besides, ADX inmates – although confined to their cells for the vast majority of the time – were provided with services and activities (television, radio, newspapers, books, hobby and craft items, telephone calls, social visits, correspondence with families, group prayer) which went beyond what was provided in most prisons in Europe.

European prison experts may be surprised by this (as I am), but it may reflect the slippery use of comparison. Perhaps television is not available in some European prisons but I would doubt that social visits by family are forbidden in any (indeed it would almost certainly violate separate provisions of the Convention which protect family life). Also, the federal government's supermax regime with its "stepdown" program for prisoners to move toward reassignment in the general population is considerably more humane than many state systems (especially California's which is only discussing adopting a stepdown approach).

On the life without parole issue, the European Court of Human Rights panel emphasized that if the prisoner facing the LWOP sentences were found guilty of the crimes charged, such a sentence would not be disproportionate. This still leaves open the possibility that a future panel of the European Court would act in the future when a more ordinary murder suspect (or a juvenile one if the Supreme Court upholds juvenile LWOP this summer) facing extradition to a likely LWOP sentence in the US seeks its intervention.

Yet even this must be qualified by the fact that in the recent decision on "whole life" terms, another panel of the Court was reluctant to fully accept the permanence of a whole life term, noting that possibilities for executive clemency remained open and that the case might present a different posture if it was clear that such possibilities had been effectively foreclosed. Clemency remains in the US as well, but in reality is never used, something a foreign court could easily discount. Compassionate release, the practice of releasing prisoners in terminal illness when public safety is not in danger, widely practiced in Europe and probably a human rights requirement, is generally not available in the US. The harsher realities of the US system were probably argued by lawyers for the prisoners and others but the Court have been reluctant to accept a realist assessment at least before any such sentence had actually been handed down.

For many of us engaged in the struggle against mass incarceration and its most inhuman instruments like supermax and LWOP sentences, the European system with its Court of Human Rights as well as other human rights organs of government has been a beacon. This decision by a chamber of the European Court of Human Rights seemingly upholding both should not discourage. When the law of dignity through the 8th Amendment of the US Constitution begins to come to the fore, it will be rightful place of American courts to find these practices unconstitutional.

Whose Public Safety? Trayvon Martin and Neighborhood Watch

The killing of teenager Trayvon Martin earlier this month, in Sanford Florida, has inflamed classic concerns about racism and criminal justice (especially in the South) as well as well as criticism of Florida's "stand your ground law"; a gun rights law that has expanded the circumstances under which self defense may be raised in many states. Less noted has been the role of Neighborhood Watch,a program launched by the National Association of Sheriffs in the 1970s with the objective of increasing the role of citizens in local crime prevention. Much beloved by criminologists and politicians alike, Neighborhood Watch is credited with reducing crime and improving police-citizen relations in many communities since the first trial program was run in Seattle in the mid-1970s. Trayvon Martin's death points to a darker side of Neighborhood Watch, one that may be unintended but predictable.

Trayvon Martin, a 17 year old African-American high school student from Miami was visiting with his father and his father’s fiancé in the racially diverse suburb of Orlando when the shooting took place. The apparent killer, George Zimmerman, a 28 year old of mixed Anglo-White/Latin American parentage had been very active in what was at best an informal neighborhood watch group (reports suggest he made over 50 calls to the police in the past several months). Zimmerman called the police to report suspicions about Trayvon (who was in fact walking home from a convenience store with a bag of candy and an ice tea while talking to his girlfriend on his cell phone). He apparently told police that Trayvon assaulted him and that he used his gun in self defense leading to a police decision not to arrest or charge Zimmerman in Martin’s death. Public outrage built after the case received attention from the national media, including New York Time’s columnist Charles Blow last week (read it here). Demonstrations have sparked appointment of a special prosecutor in Florida and widespread concern about Zimmerman's use of his weapon. There has been widespread debate about whether the killing plausibly fits the criteria intended by the "stand your ground" laws.

As a crime prevention strategy, NW combines several potentially crime suppressive dynamics including facilitating quicker and more effective police response, deterring potential offenders through the observation of active and alert guardians, and altering the perceived opportunities for crime through routine activities like removing accumulating newspapers at the door of a home whose residents are away. The most recent meta-analysis of research on NW in both the US and the UK is modestly supportive of the proposition that neighborhood watch groups can reduce crime in their areas (with roughly half the communities studied showing some crime reduction and 12 of 18 empirical studies showing statistically significant differences between neighborhood watch covered areas and those without. According to the same study 27 percent of the British population and fully 40 percent of the US population live in a neighborhood in which some form of NW operates (See Trevor Bennett, Katie Holloway, and David Farrington, Does neighborhood watch reduce crime? A systematic review and meta-analysis, Journal of Experimental Criminology (2006) 2:437Y458; read it here but registration may be required).

As a social formation NW is also a vehicle for promoting law enforcement as a kind of citizenship project to which individual citizens are invited not only to support but to adopt. As such it is a crucial expression of what I have called “governing through crime” and what Garland calls the “culture of control”. Historically citizens did participate in criminal justice as jurors, and as well as in the posse comitatus powers associated with citizen arrest. Neither approximates the distinctive political subjectivity modeled by NW. As a juror, the citizen sits as a peer of the accused, not the police. Even as a member of a posse the citizen acts as a peer of a fellow citizen who has raised the hue and cry against a trackable felon, a legal relations that goes back to Norman England and according to an article by renowned 20th century criminologist Sam Bass Warner persisted in the US as a significant part of law enforcement in rural areas as late as the 1940s (See, Sam Bass Warner, Investigating the Law of Arrest, Journal of Criminal Law and Criminology (1931-1951), Vol. 31, No. 1 (May - Jun., 1940), pp. 111-121, read it here but registration may be required). The Neighborhood Watch subject, in contrast, is mobilized to extend and supplement an existing police forces in urban and suburban areas. Rather than being limited to pursuit of a fleeing felon, whose criminality has been witnessed by a neighbor, the political subject mobilized by NW is directed to attend to quotidian world of micro disorders and to act in relationship with police rather than neighbors.

Considering the role of race in this encounter suggests the continuities and differences with the Jim Crow era. If mass incarceration is the New Jim Crow in Michelle Alexander’s formulation (See, Michelle Alexander, The New Jim Crow, it is because it is a legal structure that is also a racial order but not because it carries the same beliefs or mentalities about race on an either conscious or unconscious basis. Zimmerman is unlikely to turn out to be some postmodern equivalent of Mississippi's Milam brothers who tortured and murdered 14 year old Emmet Till, an African American teen visiting his Misissippi family from Chicago in 1955 (the incident helped galvanize northern public opinion for federal enforcement of civil rights laws in the South in the year after Brown v. Board of Education was decided, read the Wikipedia article here).

Zimmerman, whoever he turns out to be, is more likely to reflect a new kind of law and order subject constituted by programs like Neighborhood Watch, and other cultural expressionso of the war on crime, than the traditional racialized vigilante or racist neighborhood lynch mob member of the sort that afflicted Mississippi or even parts of Brooklyn and Queens as late as the 1980s. Till’s banter with a married white woman in 1955 affronted the racialized Jim Crow honor code of the murderers. Zimmerman's lethal viiolence seems to have been activated by different set of nonetheless racialized codes which Trayvon traduced, one in which African American young men wearing hoodies are presumed to be cruising for criminal opportunities and should be prepared to perform their innocence visibly at all times (and not be distracted talking to their girlfriends). Zimmerman drove his SUV around his gated community, gun and cell phone at his side not to enforce a racial order in which miscegenation is the gravest moral breach (indeed he was the product of a mixed racial marriage), but to enforce a civil order anchored in fear of crime in which fitting a racialized risk profile is a breach that can cost a young man his life.

Women and Children First: It's how liberals govern through crime

Jonathan Weisman's March 14 article in the NYTimes on the partisan battle over the reauthorization of the Violence Against Women Act of 1994 (read the story here; read the act here, scroll down to Title IV) is a reminder of how Democrats found their voice on crime in the 1990s by placing women and children at the forefront of legislation bristling with harsh retributive penal elements, but wedded to a thin menu of thin welfarist benefits tied to crime victim identity. Back then it was mostly about getting Dems to sign on to a bill that expanded the federal death penalty and encouraged states to lock in long prison sentences. President Clinton signed it into law as part of his successful effort to replace failure on health care with success on largely symbolic crime legislation.

Republican Senator Jeff Sessions, himself an OG Republican crime warrior, called the politics about right for the current round of partisan skirmishing:

“I favor the Violence Against Women Act and have supported it at various points over the years, but there are matters put on that bill that almost seem to invite opposition,” said Senator Jeff Sessions, Republican of Alabama, who opposed the latest version last month in the Judiciary Committee. “You think that’s possible? You think they might have put things in there we couldn’t support that maybe then they could accuse you of not being supportive of fighting violence against women?”

By placing a few "poison pill" elements favoring undocumented immigrants, or LGBT people (so long as they are crime victims), Dems can build their brand as both tough on crime and concerned about immigrants and women (although not enough to deliver on immigration reform, or reproductive rights protection, or even fight for same), while appearing to outflank Republicans in protecting women and children from violent crime.

In California the same mid 1990s moment produced Cal Penal Code Section 1160(a) (read it here) requiring health providers to turn over to law enforcement the identities of individuals for whom they have provided professional health care service if the wound or injury was caused by a host of criminal actions, including "assaultive and abusive actions." The measure was typical of many aimed at intensifying enforcement of domestic violence but it was invoked by the University of California Berkeley's Tang Health Care center to explain why they turned over the names of students who were seen for injuries caused by being assaulted by the police on November 9, 2011, to the police. These seem to have played some role in allowing the Alameda County DA (SHAME) to charge a number of victims (of police violence) who were not arrested on November 9th.

Children and their safety was also in the news this week when U.S. Attorney Melissa Haag cited the safety of children as instrumental in her successful pressure on a Berkeley property owner to shut down Berkeley's highly touted (and legal under state law) marijuana dispensary, the Berkeley Patients Group (BPG). AS quoted on the KQED Blog (here):

We've sent letters to a number of dispensaries and we certainly hear back from most if not all of them, or lawyers representing them. And one thing we've heard in response is that this is a good dispensary. This is a dispensary that's patient-run, or they consider themselves to be a good actor in the marijuana space. And I hear them, but I have a hard time making that distinction. I've already drawn a line. I've already made a distinction. If it's close to children then that's a line we're going to draw. If I then start trying to get in and figure out which ones are quote good or not, it's just not something I'm capable of doing. So I've decided to draw this line, and to keep that line fairly bright.

No doubt fears of robbery are not far fetched, but the fact that the dispensary has a reputation as being a source of crime preventing traffic in an otherwise darkened section of San Pablo, and as one of the industry leaders in being a source of harm reduction and good neighborliness, was given no account nor consideration of finding ways to extend their already effective crime prevention activities (keep in mind this is a Berkeley neighborhood in which gang shootings have occurred which had nothing to do with BPG).

For those of us old enough to remember Attorney General Janet Reno's invocation of the need to protect children in her justification for the botched Waco raid against the Branch Davidians (which ultimately resulted in the deaths of 20 children) one can only hope that the Feds feel no need to preemptively protect Berkeley's school children.

By By "Bad Beds"! Hello Dignity?

California's Secretary of Corrections, Matthew Cate, held a press conference today to announce that as of the end of February, the last of California's notorious "bad beds" have been removed. The substantial local and national media coverage of this "event" (including KQED California Edition, and the Washington Post) included links to the Department's own front page web treatment of this story which billed the beds as "iconic" and their departure as a clear signal of California's progress. These triple bunked "temporary" manner of housing inmates in the gymnasium, hallways, and utility rooms of the state's numerous prisons persisted for over two decades, including as many as 20,000 inmates at a time, and stood at the very center of the historic Brown v. Plata decision last May upholding the sweeping population reduction order that is without doubt the major cause of the reduction of over 17,000 prisoners since it was decided.

The Department's coverage is fascinating on a number of levels. They have clearly embraced the mission of downsizing which the state (under then Attorney General Brown) had recently defended in the Supreme Court as unnecessary to resolve constitutional violations and a clear and present danger to Californian's. According to the CDCR's web-article:

“Non-traditional beds became the iconic symbol of California’s prison overcrowding crisis,” CDCR Secretary Matthew Cate said. “Now, gyms once filled with inmates in triple-bunk beds are open and can be used for their intended purpose. This demonstrates how much progress California has made in improving inmate conditions and employee safety.”

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Moreover, Cate (and presumably Governor Brown) are signalling that the move is not only necessary to establish conditions that are not cruel, inhuman, and degrading, but also to creating a more effective rehabilitative penal regime. If the beds are "iconic" it is because they stood for a whole penal regime that had lost its bearings in both human rights and penology. If the prisons can now return to their "intended purpose" then the past two decades during which that purpose was abandoned by the state stands as a shameful chapter in our history.

The Department chose a potent symbol to showcase the empty space suddenly available, Deuel Vocational Institution, a prison built in the 1950s to embody California's then internationally advanced commitment to rehabilitative programming by placing relatively young inmates together with a range of vocational training programs for skilled and semi-skilled employment upon release. That mission continued for sometime after California abandoned rehabilitation as a penal goal in the 1980s but in the course of the 1990s the uncontrolled population growth of mass incarceration transformed Deuel by 2002 it had become a "reception center" a prison delegated to holding prisoners entering prison (whether for the first time or after a violation of parole) which became among the most overcrowded sites in the chronically hyper overcrowded system. In 2003, which was operating at as much as 238 percent of design capacity suffered a riot in which both prisoners and correctional officers were injured. Governor Schwarzenegger visited the prison soon after and declared the system broken.

With the last of the "bad beds" being rolled away in a video posted on the website, the Department promises:

The building is now being restored to its intended purpose as a place for inmate recreation and rehabilitative programming.

More reassuring would be a promise by the state of California to assure that the dignity and human rights of prisoners and correctional officers would be protected in the future, whether or not the federal courts are breathing down our necks. What would that require?

The Department is making progress on reducing overcrowding and its public statements are an important form of transparency and even accountability that has been sorely lacking in the past. Indeed, the web-article not only includes a video of the last "bad beds" being rolled away but also set slide show of images of what the "bad beds" looked like filled with people serving their prison sentences in what looks like the temporary shelter set up to assure the survival of refugees fleeing a disaster (only for years instead of weeks). But the Department is a politically controlled agency that could easily find itself used again to plan and execute human rights violations on a broad demographic scale as occurred in the past.

First, we need a commission to investigate for the public record how the state found itself operating prisons that attract words like torture, cruel, inhuman, and degrading punishment. This is not Honduras where poverty, spiraling crime, and corruption are the order of the day, or Mexico, but we had prisons that belong in the same frame as recent news stories about the fire the killed hundreds in an overcrowded and chaotic Honduran prison (Guardian coverage here) and a murderous riot by one prison gang against another in Mexico to cover over an escape of elite gang members abetted by guards (coverage in the Guardian here).

Given the severity of the human rights problem in California's prisons and its duration for more than two decades, retrospective documentation should lead to prospective preventive techniques. The commission could become a California Committee for the Prevention of Torture, or CAL CPT, modeled on the European CPT; a body of legal, medical, human rights, and criminological expert investigators with the authority to inspect any prison, mental hospital, or indeed any place of confinement, in order to warn state government of the potential for degrading conditions to form and how to prevent it.

Realignment, the package of statutory changes that has sent most parole violators and many low level felony convicts to county justice systems rather than state prison and which is the major cause of the drop in prison population, is important, but it does not reflect a true repudiation of the state's extremist commitment to penal incapacitation, reflected in our sentencing laws. The legislature (or a commission appointed by it) needs to seriously revisit the entire California penal code to clean out and reframe its 19th century core and the vast accumulation of repetitive crimes and the absurdly long arbitrary sentences that destine so many Californians to years in prisons that serve neither to reflect just retribution or any real crime control benefits.

Supermax prisons, known in California as Secured Housing Units or SHUs, where prisoners are locked down 23 hours a day, 7 days a week, have long raised troubling questions about their propensity to lead to mental distress or illness. California's version of Supermax is extreme on every level, involving more prisoners, for more of their sentences, under worst conditions (including double celling in lock/down). All states should revisit their use of these prisons, but given California's proven propensity to create cruel, inhuman, and degrading conditions under the justification fo security, large scale use of SHUs should cease (lock downs and disciplinary isolation would remain as tools for security).

It's not yesterday any more

But getting people around my age, late boomers who grew up in the "fear years" of the 1970s, to rethink their assumptions about prisons, crime and criminal justice is hard; and it keeps us locked into mass incarceration. Consider SF Chron Columnist Chip Johnson's broadside at the Occupy Movement in the Bay Area's demonstration at San Quentin Prison last weekend (read Johnson's column here).

The demonstration this past Saturday called attention to the "cruel and unusual" conditions in California's prison system (documented by the US Supreme Court in Brown v Plata), and called for reforms including reconsidering our use of LWOP, the death penalty, three strikes and super max prisons (most of which would raise human rights claims problems in Europe).

According to Johnson, this is just the late 1960s remake with Occupy members reprising the sad fate of "radical chic". Johnson has a right and a duty to play the grey-head when necessary, but in dismissing the effort to bring prison reform into the center of political renewal today as hopelessly naieve and nostalgic, Johnson is seriously and revealingly misguided.

Apparently not immune to nostalgia himself, Johnson takes his view of prisons and prisoners from noted comedian Richard Pryor:

The comedian spent six weeks on location at Arizona State Penitentiary while making the 1980 film "Stir Crazy" and described getting to know some of the inmates.

"I talked to 'em and - thank God we got penitentiaries," Pryor quipped.

I'm with Richard on this one.

Putting aside the wisdom of taking criminological insights from a man perhaps best known for nearly burning himself to death smoking cocaine, the key data point here is 1980. In 1980 California was just coming off nearly three decades of escalating homicide rates fueled by the nearly complete shut down of the state's mental hospital system. In 1980 there were only around 50,000 prisoners in California prisons, compared to more than 160,000 today. In 1980, sentences for many violent crimes, set on the basis of parole practice in the 1960s and 1970s, remained relatively lenient. In 1970 a first degree murderer could realistically hope to be paroled in less than 10 years. Today burglars with past offenses serve more than that. In 1980, our prisons, designed to rehabilitate, remained relatively capable of delivering individualized care and control of inmates. Today after decades of hyper-overcrowding and mass incarceration the prisons have become a humanitarian disaster and a fiscal time bomb.

But it is not just prisons that have changed. In 1980 the best criminological work suggested policing could do little to reduce crime which remained stubbornly high after more than a decade of police led "war on crime." Research also suggested that little of the rehabilitative techniques promised in corrections could be proven successful at reducing recidivism so locking people up forever made a certain kind of sense to the most risk averse of citizens. Today, crime rates have dropped dramatically since the early 1990s, in many cases back to early 1960s levels, and according to the best research it is because of innovative policing rather than mass imprisonment (see Zimring's The City that Became Safe). Research also suggests that people age of crime by 40 and that most violent crimes are not repeated. That does not mean early paroles for serial killers as Johnson imagines. But it should mean prison and jail sentences proportionate to the harm and risk to the community of actual crimes, not the scatter-shot and "supersize me" approach that has dominated California's penal policies for the past generation.

In short, it's not yesterday anymore. The failure of many over 50 to get that is the biggest obstacle facing the state and nation today. In turning to prison reform Occupy is once again showing its ability to think beyond the confines of political thought still dominated by baby boomers.

Pessimism of the intellect, optimism of the spirit

If you need a little of both this mid-February, Zoe Williams in the Guardian carries a lengthy interview with the great scholar Stuart Hall at 80 (read it here). Hall attributes the title's mantra to the Italian Marxist Antonio Gramsci, but as William's notes, it helps define Hall's tonic effect on his readers since the 1970s. For this reader, it is Policing the Crisis:Mugging, the State and Law and Order (1978) co-authored by Chas Critcher, Tony Jefferson, John Clark and Brian Roberts that was a defining encounter when I read it in the mid-1980s. Written before the rise of Thatcher in the UK, and before the full expression of mass incarceration in the United States, the book brilliantly diagnosed the new terrain of crime politics to come. Along with Stanley Cohen's Folk Devils and Moral Panics:The creation of the Mods and the Rockers (1972), the book also framed a method of political criminology that would prove as productive as Michel Foucault's, Discipline and Punish: The Birth of the Prison (English 1977) in helping us analyze the emergence of mass incarceration in the 1980s and 1990s.

A few choice bits:

Aging and encountering chronic kidney illness has deepened his sense of social solidarity.

"I've always known in my head I'm not an island, but it really came across. It's not just the kidneys – I could give you a litany of things that are wrong with me. I couldn't go two days without someone coming in to help me."

Hall is disturbed that so few seem to be vocally protesting the massive changes to the National Health System planned by the Tory led coalition, mainly aimed at making the system more profit centered. But the politics of health could prove to be an important ground of renewal in both the UK and the US where Obama's expansion of health coverage is certain to be debated in the election campaign. Hall's criticism of the Labour Party for not mounting a moral campaign on behalf of the NHS is equally applicable to Obama.

Hall views himself as a critic of both Neoliberalism and Marxism:

"I got involved in cultural studies because I didn't think life was purely economically determined. I took all this up as an argument with economic determinism. I lived my life as an argument with Marxism, and with neoliberalism. Their point is that, in the last instance, economy will determine it. But when is the last instance? If you're analysing the present conjuncture, you can't start and end at the economy. It is necessary, but insufficient.

Too many of my students assume that mass incarceration exists only because of Neoliberalism, or displaced Jim Crow racism. But while these are necessary conditions, as Hall might say, they are not sufficient. Mass incarceration endures because it is anchored in a moral case, one that pits "innocent" against "guilty" and not surprisingly finds that if losses or risks are inevitable they should be imposed on the "guilty" no matter how extreme.

Hall, like Foucault was, is ultimately a theorist of the present. I'll end with his forceful advice for it will serve well those of us seeking to understand the possibilities opened by California's penal crisis.

Analyse the conjuncture that you're in.

The Poor Storm: Ending mass Incarceration in America

But every society has a poor storm that wretches suffer in, and the attitude is always the same: either that the wretches, already dehumanized by their suffering, deserve no pity or that the oppressed, overwhelmed by injustice, will have to wait for a better world. At every moment, the injustice seems inseparable from the community’s life, and in every case the arguments for keeping the system in place were that you would have to revolutionize the entire social order to change it—which then became the argument for revolutionizing the entire social order. In every case, humanity and common sense made the insoluble problem just get up and go away. Prisons are our this. We need take more care.

Adam Gopnik, The Caging of America: Why do we lock so many people up, The New Yorker, January 30th, 2012

You know that mass incarceration has arrived as a social problem it is time to solve when literary writers who usually raise goose bumps on the arms of readers in book store cafes writing about Paris, brie and turkey (the food not the country) turns to the question of why so many Americans are fated to spend much of the rest of their lives in prison while the country in enjoying its lowest crime rates in decades. In a powerful essay wrapped around a discussion of several recent books on criminal justice in America, Adam Gopnik delivers up the most thoughtful understanding of mass incarceration yet to appear in American journalism (read it here).

Gopnik goes right to the point. Prison is cruel, even if you are not raped or in need of careful medical attention, because it turns the very gift of life itself, time, into a trap designed to produce pain. And it does. Of course America is not the only nation that adopted prisons, which appeared to be a humane alternative to torturing people in scaffolds or transporting them to Australia at the end of the 18th and beginning of the 19th century. The difference is that we send so many people and seek to incarcerate them so long.

Why? Drawing on excellent recent books on American punitiveness, including William Stuntz, The Collapse of American Criminal Justice; Robert Perkinsons, Texas Tough: The Rise of America's Prison Empire, and Michelle Alexanders, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Gopnik suggests American proclivity for incarceration comes from different strains in our culture. One associated with the North, is a confidence in procedures to justice (as well as an optimism about machines to make things better, the penitentiary was a machine). Another associated with the South, is a commitment to forceful racial controls through degrading means (exemplified by Texas' tradition of plantation prisons described by Perkinson and in Michael Berryhill's just published, The Trials of Eroy Brown). Gopnik also mentions the rise of private prisons which also puts the profit motive behind building up and maintaining mass incarceration.

But as Gopnik recognizes, all of these features of American penality and life were present before the late 1970s, when the present run-up of incarceration began. The change was facilitated by the massive increase in urban crime that began in the early 1960s, and may have ended in the 1990s. This crime wave, often blamed on demography, but never adequately explained, reshaped American expectations about cities and insecurity in ways that transformed the routine activities of every generation since (just look at our locked down lives as well as our locked up prisoners). As the wave crested in the 1970s, alarming images of violent crime on the streets (serial killers) and in prisons (Gopnik mentions killings of guards at Marion federal prison in 1983 which initiated the first federal supermax prison, but the twisted story of the Attica prison uprising and retaking in 1971 may have already framed American prisoners as psychotic terrorists more than a decade earlier).

The fear of crime, named already as an object as well as problem by a New Yorker writer Richard Harris in 1969, has been with us ever since and forms the moral foundation for the mass incarceration state. It is this ingredient, above all, which has made prisons unassailable even at time when both the proceduralism and racism of our system have been widely exposed. Which is why the New York crime decline, charted by Zimring is so important. New York reduced crime vastly more than anyone else and did so while imprisoning fewer people and it did so largely using a grab bag of mundane police tactics. The key assumption of mass incarceration, that a prisoner in prison, is a long string of crimes avoided, is simply false.

Stripped of any pretense that prison reduces crime, it amounts to a cruel punishment now untethered to any limits of proportionality that as Durkheim argued provides the essential signature of the common consciousness in the will to punish. But even naked cruelty, can stand for decades, look at slavery or child labor. But if reducing crime is a matter of taking more care, as Gopnik apprehends, it will take a change of conscience, not a change in our criminologies (or not just a change, the truth is important) to unlock mass incarceration. Even now, the small steps back from the edge of proceduralism and racial control, like the reduction of the crack/powder sentencing differential in federal law, and the leeway granted by the Supreme Court to federal courts in sentencing under the no-longer mandatory guidelines, are under political pressure (hear Carrie Johnson's report "GOP Seeks Big Changes in Federal Sentences, on NPR here). Its not just our political parties,its our media, our urban landscapes, and ultimately our own imagination that keeps crime available as a construct to interpret our world and authorize power.

Which is why it is not just felicitous that a writer on food and culture takes an interest in prisons. Starting with the great wave of revulsion that greeted John Howard's State of the Prisons in England and Wales (1777), writers and artists have played a crucial role in articulating the cruelty of prisons by touching the humanity of readers and observers.

Policing Disorder: Oakland's curious commitment to criminalizing occupy

If you accept Oakland Mayor Jean Quan's framing of the problem here Saturday night, a crowd of unruly and overgrown children had a tantrum/play-date at the expense of Oakland's hard pressed citizens when some of the displays on the ground floor of Oakland's City Hall were vandalized (see the pictures in the SFChron here). Attacking a century old model of the city seems pathetic and mean spirited. But that framing places the attention on the second act of an event which began when an overwhelmingly peaceful march and a long telegraphed "take over" of the empty Henry J. Kaiser convention center on the shores of Lake Merritt and close to the campus of Laney College was confronted by a violent all out assault from Oakland riot police supported by units from nearby police agencies (read the reporting of David Baker and Vivian Ho in the SFChron here). It is clear that the vandalism in City Hall, pathetic as it is, was a response to police violence and not a provocation for it.

Why exactly was it necessary to use violence against citizens, and expend no doubt large amounts of money, to prevent Occupy protesters from setting up a symbolic protest occupation in the shell of an unused property that provides a potent symbol not only of Oakland's industrial past but also of the role of government in creating an economy for the 99 percent (Kaiser being the ultimate New Deal entrepreneur, see Alonzo Hamby's 1993 review of The New Dealers, by Jordan A. Schwarz, in the NYTimes here).

The Mayor's stated positions in speeches and interviews amounts to "its illegal". But that is a bit like those on the far right who find in the "illegal" status of people here without citizenship or proper visas, justification to strip people of civil and sometimes human rights. Just because its "illegal" does not mean that government should adopt a repressive response, let alone violent means to address it.

What if Mayor Quan had welcome the take over of the Kaiser Center with a speech about the role the New Deal had played in building a middle class centered economy for Oakland and then laid out the following conditions:

The "occupiers" must coordinate with the Oakland police to assure the HJK center is a safe environment for women, children, and all who are involved in or visiting the symbolic take over and that living conditions in the Center remain decent.

The "occupiers" must maintain a decent and healthy physical environment in the HJK Center and its surrounding landscapes, and commit themselves to undertake repairs sufficient to make sure the occupation is safe and that the building is in better shape after the occupation than before.

The "occupiers" must not use the HJK Center to stage acts of violence against people or property anywhere.

Why are the Oakland police and the Oakland political establishment so committed to criminalizing the occupiers? Oakland has enough real crime for the police to focus on. Why not negotiate a security arrangement appropriate to any "occupation" and then back off, taking advantage of the positive social organization that will take place around any active "occupy" site, and redeploy police to crime hotspots? These crowds, which include lots of people of all ages, including parents with children, should be welcomed in every part of Oakland. Frankly the city needs the energy. You simply did not read about Oakland in newspapers like the UK's Guardian website/newspaper before the Occupy Movement.

Talking ourselves down: Watching the Obama strategy on immigration deportation

Julia Preston offers a meaty story on the Obama administration's initiative to use prosecutorial discretion to ease the severity of the nation's immigration law (read it here). At first blush, the story has little to suggest that this policy provides any help to those of use looking move the criminal justice system away from its rigid laws and policies channeling those arrested toward incarceration. After all, those who may receive a resolution of their deportation case will not be the ones with criminal convictions, who will be targeted as deportation priority cases. In some of the most sympathetic cases, profiled in the story, the detained aliens seeking release only became illegalized because of rigid state laws requiring notification of the Immigration Control and Enforcement agency and rigid federal laws preventing immigration judges from considering the individual circumstances of the person who is often in a family with citizens and contributing through legal work and good behavior to the community.

Still, this program is about moving people out of detention (albeit civil) through prosecutorial discretion legitimized by a reasoned effort to identify higher risks and to concentrate the government's coercive power on them while moving low risk individuals back into the community with as little harm to them and their families, and as little cost to the government as possible. The same reasoning applies to many of the two million Americans behind jail or prison bars as a result of rigid laws that in the name of public safety require incarceration with little consideration of the risk posed by the individual or the positive contributions they might be making to the community. California's "realigment" of correctional authority, which is moving thousands of felony convictions from state prison to county corrections and giving county decision makers more power to withhold incarceration for those posing low risk.

The move toward a more overtly risk based system brings serious human and civil rights concerns. How is risk assessed? Do dynamic factors get due weight or only static qualifications (like early arrest) that are partially determined by law enforcement? Still, our current approach in both immigration and criminal justice is worst, imposing higly alarmist risk perspective on entire categories of people.

Pardon Season

It is January, the month when among other things political officials who have lost election, termed out of office, or simply decided to quit, leave their offices and their successors. Thus you'll always think of Presidents by their election year, but Obama became President in 2009, January 2009. In any event, historically the passing of executive leaders and the start of terms (or sometimes just the New Year itself) has been associated with the practice of pardoning prisoners. Sometimes, that meant all the prisoners, but more typically it has meant a select few. This kind of celebratory pardon, that marks the change in executives, as opposed to those based on meritorious consideration of a legal request for pardon based on changed circumstances or new evidence, is a fascinating reminder of the "old logic" of punishment, when the power to punish was an expression of personal sovereignty and its remission a sign of benevolence at the top. It also recalls a time when releasing prisoners was a populist gesture, intended to warm the hearts of the public and cause celebrating in the towns and villages to which sons and nephews thought dead or lost. It is in perfect keeping with this old logic that North Korea's communist monarchy marked the ascension of the latest Kim to rule nation with a sweeping pardon of prisoners.

In late modern democracies however, pardons are something of a scandal (recall what happened when Bill Clinton made sudden burst of pardons as he left office, some of them seemingly warranted by special generosity in donations to his Presidential library among other things. American politicians in the age of Governing through Crime never want to appear to be sympathizing with a criminal. Thus pardons even much merited by inequities in the original sentence and excellent behavior in prison and sitting presidents and governors tend to reserve their pardons for symbolic gestures to sometimes dead prisoners whose families have sought to clear their names. It is a sign that punishment is seen as an entitlement of the general public, a small "d" democratic festival of pain in which not executive charisma but public safety is the coin of the realm.

Well God Bless Mississippi. That's where you want to be on the day the world ends because everything happens there a couple of years or maybe a couple of decades late. Thus I should not have been suprised at today's AP story by Holbrook Mohr (read it here in the SFChron) describing Governor Haley Barbour's pardoning of five prisoners, four of them in prison for murder, as his term ended in Jackson, citing tradition. The recipients in this case invoked another old tradition, one that survived in many state houses through at least the 1960s (but I suspect has disappeared almsot everywhere else than Mississippi), inmate "trusties" who serve the governor and his family in their mansion. This tradition, which also invokes the monarchical logic of personal sovereignty (and slavery of course) generally involved prisoners serving life (who paradoxically had the most to lose since parole was expected but could be lost by bad acts). Barbour, who is nothing if not a traditionalist, defended his acts as a required gesture in no way intended to disrespect the victims of the crimes committed by the prisoners pardoned. Not surprisingly this was scene as anything but a populist gesture and was quickly seized upon by the opposing party.

The pardons outraged victims' relatives as well as Democratic lawmakers, who called for an end to the custom of governors' issuing such end-of-tenure pardons.

"Serving your sentence at the Governor's Mansion where you pour liquor, cook and clean should not earn a pardon for murder," Public Service Commissioner Brandon Presley, a Democrat, posted Monday on his Facebook page.

No doubt it is hard to defend the traditions of celebratory pardons or of having life prisoners working as personal servants for the governor. But its hard not to admire any mechanism that ends a lengthy imprisonment no longer required by public safety or respect for the seriousness of the crime, or that showcases trust in the potential for people who commit even the worst act to change for the better. Pardoning seemed old fashioned in the mid-20th century when prison sentences were often short anyway and when parole was reqularly used to release even those convicted of murder. Today, when a generation of tough on crime politics has eliminated parole in many states and led to an epic increase in the length of sentences for crimes, when ex-prisoners face a lifetime of economic and social exclusion, and when many states are struggling under the cost of maintaining historically huge prisoner populations we need to invent some new forms of remission.

Vietnam and Bad Habits

NPR's Alix Spiegel offers up a fascinating feature on the contemporary social science of behavior change that sheds light on a forgotten corner of the war on drugs with lots of implications for present conundrums of criminal justice reform (read, What Vietnam Taught us about Bad Habits). When President Nixon described illegal drugs as "public enemy number 1" in his now famous June 1971 speech announcing the formation of a presidential "Special Action Office of Drug Abuse" he was responding specifically to a spike of public concern and media attention based on reports from two Congressmen who had toured Vietnam in May, that 15% of servicemen in Vietnam were addicted to heroin. As Spiegel notes "at that point heroin was the bete noir of American drugs" considered almost impossible to recover from. Those who had already sacrificed by doing combat service seemed poised for a life of drug addiction and despair.

Spiegel introduces us to Jerome Jaffe (remarkably still alive), the psychiatrist and drug addiction expert that President Nixon appointed to head up his new executive initiative, one aimed at developing effective practices to treat heroine addiction generally and in this Vietnam cohort in particular. Under this remarkable and little discussed project perhaps the most comprehensive effort in history to identify, treat, and follow up the treatment of heroine addiction was undertaken under the direction of one of the leading social scientists of her time, Dr. Lee Robins of Washington University (read her Wikipedia entry here).

Soon a comprehensive system was set up so that every enlisted man was tested for heroin addiction before he was allowed to return home. And in this population, Robins did find high rates of addiction: Around 20 percent of the soldiers self-identified as addicts.

Those who were addicted were kept in Vietnam until they dried out. When these soldiers finally did return to their lives back in the U.S., Robins tracked them, collecting data at regular intervals. And this is where the story takes a curious turn: According to her research, the number of soldiers who continued their heroin addiction once they returned to the U.S. was shockingly low.

"I believe the number of people who actually relapsed to heroin use in the first year was about 5 percent," Jaffe said recently from his suburban Maryland home. In other words, 95 percent of the people who were addicted in Vietnam did not become re-addicted when they returned to the United States.

This dramatic experiment is actually just the lead-in to Spiegel's real story, which is on what this incident teaches us about how bad habits are shaped and how we can change them. I want to return to her lead in a moment, but a few notes on this fascinating episode of politics, social science, policy, and power.

The Vietnam connection is a fascinating and little discussed aspect of the war on drugs. The specter of a drug addicted army surely played a crucial role in formulating the political culture around crime that we are still trying to recover from. Vietnam in 1971 was already considered a lost war and one that Nixon had promised to end. The heroin story surely helped lift some of the blame for the war from the politicians who had chosen it, and onto the backs of the very soldiers who had been largely conscripted to fight it.

Not only were they not going to receive a hero's welcome home, they were now stigmatized as drug addicts. As Spiegel notes, this seemed tragic but it also must have been alarming. At a time when Americans were already deeply fearful of violent crime often linked in the media with robberies committed to sustain a heroin habit, they were being told that a large minority of Vietnam vets were likely to be heroin addicts for the rest of their lives (without of course, knowing who, and therefore suspecting all). Whatever stigma the anti-war movement may or may not have caused Vietnam veterans through talk about war crimes in Vietnam, we can agree that it must pale behind this. Needless to say the impact must have been particularly profound for Black and Latino veterans whose expectation that military service would accelerate their economic and political progress in American society was at least in part undone.

The Robins study is fascinating on a number of different dimensions:

It highlights the fact that Nixon was perhaps our most social science oriented president (even though modern day conservatives have treated any social science other than economics and electoral political science as something akin to treason).

It also reminds us that a war on drugs, for Nixon was still much about treatment and rehabilitation rather than punishment. This was an era that still believed science based policies could address rising crime. It was fall to later politicians, both right and center left, to embrace a nothing works but prison attitude.

The self report finding of 20 percent is staggering (how many were reluctant to self identify?). Apparently what WWI was to cigarettes, Vietnam was to heroin, the launching of a consumer culture of addiction with lethal consequences. Surely this shadow of war has proved far more deadly (at least in the case of the expansion of cigarette use) than the actual fighting by a multiple.

The fact that those who did admit to being addicted to heroin were then subject to something a kin to involuntary detention in Vietnam for purposes of drug treatment makes this an extraordinary (if justified) chapter in the history of civil commitment.

Why did the good news that heroin addiction in veterans could be beaten (with fewer than five percent returning to heroine use) get so little cultural uptake (Spiegel suggests it was controversial but does that mean it was widely publicized?) May be the truth was just too far out of line with the cultural narrative about heroin to be convincing (which suggests just how unrealistic most "evidence based policy" aspirations may be). The result was disastrous. What might have been a just in time reminder that rehabilitation may be a realistic was to prevent crime, was lost on the eve of a shift in our penality toward exclusionary punishments.

Going back, briefly, to Spiegel's story about behavior change, recent research seems to provide a satisfying explanation for why Robin's 1970s study found such low recidivism rates. Vietnam soldiers were most people who were exposed to and got addicted to heroin in Vietnam. After being treated they returned to their communities in the US. While much our post Vietnam narrative is committed to describing that return as troubled, it appears to for the vast majority it was a world in which they no longer felt compelled to use heroin.

According to the behavioral psychologists interviewed by Spiegel, Wendy Wood of USC and David Neal, a great deal of our behavioral control is implemented through our spatial environment which routines are response so that we do not need to (or get to) think about much of what we do. For addicts this means that the routine spatial associations for use are a trigger that can and usually does overwhelm will based efforts to not use. The example given is smoking at the entry of an office building. For an addicted smoker, the approach to the building is a powerful signal to light up.

In the language of behavioral psychology we "outsource" behavioral control to the environment (something sociologists and anthropology also recognizes in Pierre Bourdieu's concept of "habitus") this suggest that self conscious efforts to change behavior, even if reinforced by a coercive state effort through police, courts, and corrections, face an up-hill battle unless they coincide with radical efforts to reshape the environment that a person is habitually acting in. This is likely not only to be true of classic addictive behaviors like drug use, but also other criminally relevant behaviors like aggression and theft.

Two quick notes on this behavioral lead of Spiegel's story (which is reflecting on the low odds that many of us will fulfill our behavioral new years resolutions).

Vietnam was not just another place, it was a place where soldiers were killed and being killed. Heroin use was not just another behavior, it was a behavior with a particular relevance to relieving the pain of inhuman conditions created by war. This suggests that the Robin's study may be less relevant to behaviors less determined by such extreme conditions (that is people whose addiction is associated with great pain may be easier to treat if the pain goes away). At the same time it may have particular relevance for behaviors associated with crime, which may be rooted in experiences of inhumanity, whether child abuse, grinding poverty, or degradation at the hands of the youth control complex (see Victor Rios, Punished).

This research seems particularly relevant to the problems of trying to reduce dependence on prisons in California. Prison first of all, is a particular environment, to the degree that we move large numbers of Californians out of regular contact with prisons we may actually have an opportunity to promote better behavior among the people we have been routinely sending to that highly criminogenic environment (change is not, of course, guaranteed by a change in environment, just facilitated). But second, to the degree that measure the success of alternatives to imprisonment in terms of behaviors like drug use and gang associations, we will face a difficult struggle so long as most people leaving prison are returning to environments that got them into trouble with drugs or gangs to begin with. We need to make sure our assessments acknowledge this "legacy effect" so that we do not prematurely dismiss innovative efforts to change behavior.

A Tale of Two Joes: Captain America and America's Toughest Sheriff

The Obama-Holder Justice Department's full scale legal challenge to the man who has long called himself "America's Sheriff" (read Marc Lacey's reporting in the NYTimes here) is another indicator that the war on crime is continuing to wane, both in the commitment of federal and state budget to crime control activities, and in the ideological grip of "tough on crime" over the American political imagination. Joe Arpaio, five times elected Sheriff of Maricopa County Arizona (Phoenix) has been fixture on the Republican right in Arizona and nationally for years now, but he has also largely been above reproach from more moderate leaders of either party despite engaging behavior that ranges from clownish (dying the jail bologna green and the underwear pink) to obscene and degrading (jail webcams trained on showers, see Mona Lynch's article on Jail Cam in Punishment and Society here). The fact that the Justice Department is going after him now may be based on convenient timing (the investigation began under Bush and comes at a time when Latino votes are the key to Obama winning Arizona and perhaps the whole election) but it also indicates that the most cautious political team in the business calculates that tough on crime is no longer a shield of legitimacy.

As Sheriff Joe is hustled off the stage of history, let us not mistake this clownish thug for an aberrant example of our demented celebrity political culture (although is his as well). His basic program of cruelty, racism, and entertainment in the name of public safety is one that continues to be defended and practice in most states and by a Justice Department that has arrested and deported more foreign nationals than any administration in recent history (proportionate to its time in office). Nor have we seen the President make even the slightest move to challenge the orthodoxy of mass incarceration in America.

If Sheriff Joe is a comic book character it is reflection of our national decline. Consider Captain America (whose creator, Joe Simon, died this week at 98, read his obit here) whose inaugural issue in January 1940 depicted him punching Adolph Hitler (then romping over Europe)in the jaw. Our hero's used to beat up bullies; in the age of Sheriff Joe they became bullies.

Riots and Respect

In another move that confirms its stature as the most innovative newspaper and news website in the English language world, the Guardian has been collaborating with a team of London School of Economics social scientists, headed up by (friend and) criminologist Tim Newburn, in an extraordinary qualitative study of participants from this past summers riots in London and a few other UK cities (read the series, Reading the Riots). The study confirms that at its core the rioting was a response to long term resentment over police tactics, particularly stop and search and above all the routine disrespect that lower class urban youth experience in their interactions with police. Most newspapers would have felt it sufficient to let right and left wing experts and pundits tell us what the riots meant. Asking rioters why is considered hopelessly naive if not perverse; as their behavior must be punished by silencing even beyond legal sanctions. But as Newburn brilliantly summarizes it (read his column in the Guardian here):

Indeed, we should listen because they have something important to tell us about policing in modern Britain. The concepts that young people – young rioters – referred to most frequently in relation to policing were "justice" and "respect". Their focus was on what they perceived to be a lack of each. Police officers – by no means all, but enough – target them, are rude, and sometimes bully them, they said. Much of what these young people talk about is, for them, just the daily grind of their interactions with "the feds". It is the sense that every time they are out on the streets, they face the prospect of being stopped, challenged and, from time to time, abused.

Newburn notes that the shared anger at the police among lower class urban youth stands in contrast to the "general public" which expresses confidence in the police in standard national crime surveys. Tellingly, however, this sentiment cuts across the behavioral divide that many assume away in their presumptions about such youth. While rioters were predominantly from this group they included many youth who are not part of a gang or criminal life style, they hold jobs, go to school, and operate inside Britain's increasingly exclusionary economy. It doesn't matter to the "Feds" who police them based on demography (and all too often race above all) rather than on the "reasonable suspicion"celebrated by law.

Needless to say this is all of vastly more than academic interest to those of us in the US. We have very much the same long term deficit of respect accumulating among our urban youth and very much the same policing logic as Victor Rios documents in his great book on policing and urban youth, Punished (I don't think this is a case of policy transfer so much as independent paths to the same bad practices, but read Newburn's book with Trevor Jones on Policy Transfer). The Occupy Wall Street protests have documented that the police have plenty of disrespect to pass around, despite decades of training (or at least talk about) in community policing, even to the predominantly middle class young adults that have made up its stalwarts. With the economy very likely in the pits, global warming doing its thing, and Obama and a Republican opponent locked in a campaign for the 5 percent of white suburban voters that are still undecided in July, it could be a long hot summer.

Let it snow, let it snow, let it snow

Zombies, Humanitarians, and the Twilight Zone Between Dignity and Security

The shock is palpable. For those of us used to United States criminal justice as a baseline the decision seemed in explicable. According the news that broke yesterday, Norway's prosecutors have decided that Anders Behring Breivik is insane and should not face criminal prosecution (read the AP report here). Breivik was arrested last summer after methodically gunning down scores of Norwegian youths and young adults on an island conference center after allegedly setting off a deadly bomb blast near government buildings in Oslo. He himself described those acts as part of war to save Norway from Muslim immigrants. Prosecutors, based on the evaluation of their own forensic psychiatric experts, concluded that Breivik lives in a “delusional universe,” and should not be held criminally responsible. If their decision is approved by a judicial process, Breivik will go to a secure psychiatric hospital for at least three years, after which he could be released if found to be no longer a danger, rather than to a trial and imprisonment.

In the US insanity is also a possible basis for dropping a prosecution or acquitting a defendant with a similar result; only it rarely happens and certainly not in high profile cases. Consider the on going prosecution of Jared Lee Loughner, who killed several people at a Tucson store last Spring and critically wounded Representative Gabrielle Giffords; and who everybody agrees was deeply psychotic, but where the prosecution is fighting to the keep the case on track for a criminal trial and possible death sentence. By strange coincidence, yesterday also brought news that John Hinckley, who shot President Reagan in 1981, is seeking leave a psychiatric hospital for visits of up to several weeks at his mother's home, more than 30 years after being acquitted by reason of insanity. News that Hinckley would escape "punishment" and "prison" led to popular outrage and a significant shift in state and federal law to narrow the grounds on which a person may be acquitted by reason of insanity. Now even people who both prosecution and defense agree are and were deeply psychotic, and who killed in the midst of severe delusions, are likely to be convicted of murder and sent to prison for life or perhaps even executed (so long as they are not insane at the time of execution). In the meantime the suggestion that, Hinckley who has been in remission for decades and has apparently threatened no one since being hospitalized, be released is raising strong opposition from present and former prosecutors.

The contrast between the two nations should shock us. But the question is what kind of conclusion to draw about which nation is extreme. San Francisco Chronicle columnist Debra Saunders offers in vivid terms what I suspect many of my fellow citizens (and possibly even readers) think (read her column here):

So why do I think Oslo's chosen experts have decided that Breivik was insane? They're so sublime, they don't know how to recognize evil.

Saunders sees Norway as epitomizing a perverse and elitest commitment to humanitarian values like dignity,while no non-sense American justice delivers security to ordinary citizens by dealing harshly with those that would harm them. In Saunder's view, admittedly drawn from the nightmare world of US popular media, people like Norway's prosecutors or Americans who oppose capital punishment and mass incarceration, are practically allies of the evil doers.

In AMC's zombie series "The Walking Dead," tensions build between an old-fashioned veterinarian farmer named Hershel Greene - who thinks zombies have a disease that may be cured someday - and a caravan of gun-packing refugees led by Deputy Rick Grimes. Because Hershel wants to protect the zombies he has hidden in his barn, he orders Rick and company to leave his property - even though leaving could make Rick, his family and friends easy pickings for the undead.

It's disturbing how self-congratulatory humanitarians can be willing to endanger the lives of others in order to maintain their worldview.

As a columnist Saunders often has the lonely task of defending conservative views in admirably witty style, to liberal San Francisco, but on this note I suspect she's singing with the chorus not only here but in most of California, and thus her logic is worth a closer examination for what it tells us about our penal imaginary. Saunders sees people who commit violent crimes, or may be all criminals, as zombies, monsters who have forfeited all claim on our humanity, and who can never change their instinctual drive to kill innocent humans. Those who think they can change them are not only pathetic, but dangerous themselves, because they can use their cultural and legal power to stop righteous avengers from using violence or permanent imprisonment to destroy or incapacitate the monsters.

It is all too tempting as a criminologist to dismiss columnists like Saunders as, well, delusional. But her vision accurately reflects a culture of fear in the Golden State, built up by a variety of social, media and political trends over the past four decades and which has produced nearly a thousand people on death row and a prison system holding more than four times the portion of Californians incarcerated in the 1970s (when serial killers were actually common in the state). The prisons, whose overcrowding and humanitarian crises shocked even the US Supreme Court in Brown v. Plata hold tens of thousands of seriously mentally ill prisoners, most of whom probably committed their crimes due to untreated mental illness and who are not receiving adequate treatment to control their disease while in prison.

For not only Debra Saunders, but many Californians, prisons are acceptable (despite their obvious failures) because they contain monsters who would otherwise be in your community or house. In this view, it is civil rights lawyers and and hapless humanitarians who endanger Californians by demanding dignity and human rights for prisoners. In reality, security is more of a twilight zone, where extreme efforts to punish and incapacitate our way to safety regularly backfire (remember Abu Grhaib) and where creating real security requires both courage and dignity. Consider San Francisco where Saunder's lives or at least writes from. There in 2008 a teenage girl was almost beheaded by a knife wielding man. The girls family sued the state for failing to protect her. Was he released early by some naive humanitarian parole board? Hardly, according to Saunder's newspaper, the San Francisco Chronicle (read it here):

The suit claims Scott Thomas, who was suffering from bipolar disorder, was never treated during his months in solitary confinement in San Quentin. After he was released without supervision on May 18, 2007, Thomas randomly stabbed Loren Schaller, now 16, and 60-year-old Kermit Kubitz at a bakery near Miraloma Park.

Thomas, 26, who was sent to prison nine times for nonviolent crimes between 2000 and 2007, has been declared mentally incompetent to stand trial and is incarcerated at Atascadero State Hospital.

Dealing with those who commit terrible acts of violence, whether psychotic or not, will always pose the gravest of problems for government committed to law and human rights. Punishment as an expression of social solidarity, as well as to provide a guaranteed minimum of incapacitation has its place. People may be responsible for buying into hateful beliefs about others, even when their disease leads them to make deranged judgments based on those beliefs that no healthy person would make. Norway has chosen a strikingly different path to the ours. I'm not sure its the right one. Did the prosecutors give enough weight to his racist ideology? But I do respect Norway's sense of penal restraint. As Saunder's notes, even if Breivik was convicted he could not have faced either the death penalty or life without parole, sanctions which are both inhuman and unnecessary but common in California. But he is also likely to spend a lot longer than three years in secure psychiatric confinement, where Norwegian authorities can hold him for the rest of his life if they deem it necessary for public safety. In the meantime in California, where both Debra Saunders and I live, we have proven that abandoning your humanity and dignity in in the name of security, cannot make anybody safe.

Adding Injury to Insult: Campus Police and University Administrations

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.

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):

"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.

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?

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.