School Desegregation and the Fear Years

UC Berkeley Professor David Kirp's powerful op-ed in May 20th Sunday Review section of the New York Times (read it here) restating the overwhelming social science case in favor of school desegregation drew a bevy of weighty and thoughtful letters in this morning's New York Times (read them here). That evidence shows that the educational gap between Whites and Blacks, recently embraced by both parties as the holy grail of reducing the accumulating disadvantages of generations of de jure racial segregation in America, shrank the most substantially during those years between 1970 and 1990 when school desegregation orders were most active in American states. It was in these years that the epic legal campaign to desegregate schools which had achieved a historic Supreme Court victory in Brown v. Board of Education actually began to effect numerous schools around the country due to the increase in federal financial incentives beginning the 1960s and because desegregation orders began to reach large northern urban districts where generations of soft segregation strategies (based on residential segregation and school location) had left public schools almost as segregated as the infamous Jim Crow schools in the South. It was when northern Whites began to actively oppose desegregation orders in their own areas that political support for desegregation in the political parties began to collapse and its legal status come under sustained attack. Milliken v. Bradley, the crucial 1974 precedent that Kirp cites as the fatal wound against effective school desegregation by removing the possibility of metropolitan area wide desegregation strategies involved a northern school district, metro Detroit. By making it impossible for desegregation planners to reach White students whose parents had moved to the suburbs, Milliken guaranteed that White flight to the suburbs would make desegregation and empty gesture and the basic promise of forcing equal effort to educate Black and White children impossible to achieve. Professor Kirp and his interlocutors share a general pessimism about the prospects of reviving school desegregation as a viable national project. Certainly the silence out of Washington D.C. during the nation's first national Administration to be headed up by an African American is no reason for optimism. But there is another reason, a very good reason to be optimistic that a new opportunity to meaningfully desegregate schools is upon us, actually two reasons. The first is that the White suburbs, where two generations of school children have grown up since Milliken secure in their White schools are facing a structural problem as the rising generation indicates in all kinds of ways that they would rather raise their families in cities where higher population densities, more cultural institutions, and the opportunity to reduce or eliminate automobile commuting. The housing bust has intensified this by reducing the appeal of home ownership, a market that pushed marginal buyers toward the most distant suburbs and the new economy seems likely to continue it by emphasizing flexibility and rental housing. These economic trends mean that newly forming middle class families (White, or Asian, or Mixed Race) are potentially available to the very urban school districts cut off from enough of them to meaningfully desegregate schools that became virtually all African-American and Latino in the 1970s. The second, perhaps even more important to the viability of desegregation today, is the great crime decline that since the early 1990s has seen a dramatic reduction in violent crime (and indeed all kinds of crime) which was deepest in the large cities that were so much the fulcrum of white flight back in the 1970s (read Franklin Zimring's two crucial books on the crime decline). Then, in what I call the "fear years", the tripling of violent crime rates since the early 1960s and the violent rioting in African American neighborhoods of the late 1960s and early 1970s undermined any chance school desegregation in the North had of winning consent from Whites. Only the most ideologically committed White parents with means were willing to let their kids go to school with African American kids perceived as angry, undisciplined, and potentially violent. I know because my parents were the kind of ideologically liberal pro-civil rights parents who decided that Chicago's public schools in the late 1960s and early 1970s were just to chaotic and sometimes violent to stay in. Culturally allergic to the suburbs and with ways and means to put my brother and I into the University of Chicago Lab Schools (where President Obama's daughters went before 2009). One can revisit distortions involved in White fear as well as the many failures in the management of desegregation that made things worst. But it is hard to imagine how school desegregation could have worked given the squeeze the crime fear was placing precisely on middle class families to avoid urban schools. But to young families forming now, the fear years of the 1970s are history and even the media shadows of those years that haunted the 1980s and 1990s have largely faded. They are the fertile ground for a new urban school offensive. Interested in living in central cities, and economically sensitive to the cost of private schools, this crime decline parents that is now going on will be well placed and potentially open to integrated public schools. If done well it might not even require race conscious admission criteria as much as investment in new buildings, state of the art technology, and the kind of staff rich and culturally senstive school regime designed to make everyone feel safe and included.

Governing Egypt through Crime

As Egyptians went to the polls Wednesday in an historic first ever free presidential election, David Kirkpatrick reports in the NYTimes that prominently on their minds is the rise of crime since the fall of the dictatorship (read the story here).

On the eve of the vote to choose Egypt’s first president since the ouster of Hosni Mubarak, this pervasive lawlessness is the biggest change in daily life since the revolution and the most salient issue in the presidential race. Random, violent crime was almost unheard-of when the police state was strong.

With politicians competing on how to restore security, it is tempting to compare Egypt with the United States. The differences are too important to leave to second. Crime became a prime theme for political legitimation in the US after the 1960s when the US was already a mature democracy with well established law enforcement institutions and a highly developed economy. Egypt in 2012 is a developing economy (at best, perhaps a failing to develop economy) with no history of democracy and law enforcement institutions that lack credibility both in terms of effectiveness and human rights. Popular fear of crime in the America of the 1960s took the form of moving to the suburbs and purchasing handguns. In Egypt of 2012 it has resulted in mob lynchings. But while the differences are profound the commonalities are more than coincidence. In both places, police have been flawed institutions. In Egypt of 2012, the police remained deeply discredited by their history of petty corruption and fealty to the Mubarak dictatorship. While American cities in the 1960s had long established and by the standards of the developing world relatively professional police forces these police forces were also highly corrupt and deeply racist, they lacked legitimacy and credibility particularly in the minority neighborhoods. Indeed the relationship between white police and African American neighborhoods in cities like Oakland and Philadelphia remained so toxic through the 1980s that it approximated conflict zones like Northern Ireland. The crime wave the rocked America in the 1960s has never been adequately explained (the usual culprit being the oversized delinquency cohort of the post-war baby boom) but I believe it was bound up with the breakdown in the prevailing racialized system of public space in which police played a role in enforcing different norms in different parts of town, isolating certain rackets in minority areas, while keeping youth of color from congregating in elite parts of town. The civil rights movement and the cultural tide it brought to northern cities in the '60s helped sweep away that regime, but recalcitrant racist police forces (abetted by politicians)resisted the construction of an effective inclusionary regime to police public spaces in the large cities. The crime wave in Egypt is clearly related to the breakdown of the social control imposed by the dictatorship and the uncertainty as to the new forms of public order that will replace it. The use of lynching by mobs in some Egyptian locales suggests some residual identification with regime's methods of violent repression, a dynamic sociologist Angelina Godoy traced in post-genocide Guatemala. In Egypt in 2012 crime and insecurity are abetted by terrible poverty and the humiliations that poverty in urban conditions promotes. While we often consider crime in America in the 1960s to represent a paradox of deviance in an affluent society, the rapid deindustrialization of northern cities in the 1950s and 1960s was already leaving many inner city minority communities largely cut off from viable economic opportunities, a pattern that would grow markedly worst through at least the early 1990s. From these early reports the political competition around crime in Egypt today appears more promising than one might think from the American example where both major parties soon aligned behind mass incarceration. The leading Islamist candidates have tempered their promises of security with a commitment to reform and recast the police, and have made economic development for the poor the center of their political agenda. In contrast, the candidates most linked to the old regime are promising to unleash an unreformed police and no doubt fill Egypt's notorious prisons with yet more prisoners. Not surprisingly the candidates most likely to be welcomed by US media and political elites are the ones most likely to pursue US style governing through crime.

Hunger for Hope: Solitary Confinement and Administrative Detention in California and Israel

Cross national comparisons in penology are notoriously tricky, all the more so when the practices involved are the highly problematic one of holding prisoners in solitary confinement especially under "administrative" rather than legal judgment (meaning it is up to prison officials if or when the prisoner will be released). Comparing California and Israel is especially problematic since the former is a sub-national state and the latter is involved in an ongoing civil conflict over the identity and boundaries of the national state. Those caveats aside it is interesting that rare sustained political protests within prisons are have taken place in recent months (and in the case of Israel is happening today) direct specifically against solitary confinement under administrative control; in both cases the struggle is taking the shape of the classic weapon of the weak, a hunger strike. In Israel, Palestinian hunger strikers have refused food for over seventy days and are at risk of dying if they do not take food soon. The strikers are protesting hardships imposed by the Israeli Prison Service in the later stages of the imprisonment of the Israeli corporal, Gilad Shalit, held hostage by Hamas forces, but which have been maintained despite Shalit's release last year, including a ban on academic study and receiving books, as well as the denial of family visits from Gaza and the larger issue of solitary confinement under administrative decision (read Jack Khoury's reporting in Haaretz here). According to the AP some 1600 prisoners are observing a hunger strike including 2 for over seventy days. Jack Khoury's latest reports as of Monday, am, suggested Israel might be ready to sign an agreement: "Included in the reported deal was the demand to cancel the policy of solitary confinement as well as granting visiting permits to the families of imprisoned Palestinians from Gaza." (read this story on Haaretz here). In California, hunger strikes by prisoners throughout the system were directed against the practice of solitary confinement in permanent "lock-down" prisons known in California as "Secure Housing Units" or SHUs. These prisons follow a regime widely known as "supermax" in which solitary confinement is reinforced with procedures that prevent even casual contact between prisoners and other prisoners or even staff including as many as 23 hours a day within the cell or cell like environments whether for meals or showers. Compared to traditional solitary as a disciplinary punishment for prison misbehavior, California prisoners are often assigned to the SHU on the basis of a judgment by administrators that they are involved in a prison "threat group" or gang, and pose a threat to other prisoners and staff. Such assignments, never litigated before a judge, can last the entire sentence (which may be life). The hunger strikes last summer ended with a promise by the California Department of Corrections and Rehabilitation to review their SHU assignment policy and to consider humanitarian changes in regime such as permitting weather appropriate hats. In March CDCR released a report suggesting they would move toward a new assignment policy in which prisoners could earn their way out of the SHU without the paradoxical requirement that they prove their non-threat by becoming an informant or "snitch" (paradoxical because it results in spoiling any possibility of return to a general population prison for the snitch who becomes a subject in need of protective custody by virtue of informing). (For the latest on the prisoners' perspective see California prison Focus). Despite the very different political logics in which prison authorities in both Israel and California have found themselves deeply dependent on administrative discretion over solitary confinement suggests some common themes and cautions. While they may have come to rely on administrative segregation (as this practice was known in a more benevolent form in the 20th century) through different routes, both prison services would do well to continue on recent indications of reform. 1. Wherever it exists, this kind of long term widespread administrative segregation reflects on a prison system that has largely abandoned in any hope of legitimacy in the eyes of its subject population. Given the widespread circumstances under which carceral institutions in different places and times have relied at least in part on legitimacy---consider the different ways in which the Big House prisons of the first half of the 20th century and the correctional institutions of the second utilized parole and mutual logic of institutional order---both Israel and the California should think long and hard before accepting this as inevitable. Prison orders that win even partial legitimacy in the eyes of their subjects, for example through procedural fairness even where the substantive justice of incarceration is contestable, operate better in every measurable way. This is a proposition that has been most significantly researched inside prisons in the UK, see the original work of Richard Sparks, Antony Bottoms, and Will Hayes, Prisons and the Problem of Order (Oxford University Press 1995); as well as Alison Liebeling, Prisons and Their Moral Performance: A Study of Values, Quality, and Prison Life (Clarendon Studies in Criminology) (Oxford 2005). 2. The historical experience of parole suggests a horizon of hope is an essential precondition for legitimacy in prisons. Prisons that cannot offer prisoners realistic hopes for going home, or at least returning to a dignified and manageable life, has little hope of achieving any more than a temporary ceasefire with its charges. This is a problem whose solutions lie well above the pay grade of prison managers. The politicians in both societies that have sold mass incarceration as a stable security strategy to nervous and racially skewed electoral majorities need to be held to account by a better more inclusionary politics and perhaps someday by their own truth and reconciliation commissions. 3. Prisoners represent a sleeping giant of an issue in the civil order of both societies. Palestinian national leaders who have staked their international prestige on limiting security threats to Israel from the occupied territories, have sounded openly alarmed at what might happen in Palestinian civil society, even one as discouraged by the past results of violence. In the US, riots like those that broke out last summer in the UK could well emerge in the summer of 2012 or 2013 if the re-election of Barack Obama, and continued quiet on the streets of urban America does not result in some significant efforts to retrench the twin indignities of aggressive policing and liberal doses of prison time that are accorded so many men of color in these United States.

From Civil Rights Confrontation to Crime Commission: Nick Katzenbach's 60s

If you agree with me that 40 to 50 year spans are an important generational break point for social trends (see my previous post this month) you'll be a regular reader of the obituaries, for that section of the newspaper is full of interesting stories about the people who were powerful and important 40-50 years ago (well if they were lucky enough to live into their 80s, more or less 40 years past their powerful 40s). If you are such a reader, and a reader of this blog you must have noticed the prominent obituary of Nicholas Katzenbach, a "key figure" (as obituaries like to put it) in the political events of the 1960s as a top legal adviser for both Presidents Kennedy, and Johnson, and to Attorney General Robert Kennedy, before serving himself as Attorney General for two years at the crux of the Johnson administration (read the Douglas Martin's comprehensive treatment in the NYTimes here). Then, after resigning as AG in the midst of a fight with J Edgar Hoover over the FBI's treatment of the Rev. Dr. Martin Luther King, Jr., Katzenbach largely disappeared from the public side of public life, steering the fortunes of large corporations at an elite law firm as if knowing in his own gut that the gateways of history had shut for the time being. One of his final tasks for Lyndon Johnson, heading up the President's Crime Commission (or as it was formally known, the President's Commission on Law Enforcement and the Administration of Justice) provides a telling bookend to Katzenbach's Sixties. While the Commission does not figure prominently enough in his biography to have made the Times obituary, it may have helped convince Katzenbach that the gates were indeed shutting (read the report, now available online here). Katzenbach came from significant social and cultural capital and his career, interrupted as for so many in his generation by Pearl Harbor, marked an unbroken ascent into it.

Nicholas deBelleville Katzenbach was born on Jan. 17, 1922, in Philadelphia, the younger of two sons of Edward Lawrence Katzenbach and the former Marie Louise Hilson. His father was a corporate lawyer and New Jersey attorney general from 1924 to 1929. He died when Nicholas was 12. His mother was a member of the New Jersey State Board of Education for 44 years and its president for a decade.

After the war he studied law at Yale and Oxford, and then taught law at Yale and the University of Chicago. He moved into the new Democratic administration of John Kennedy's in 1961 through his Yale connections with Byron "Whizzer" White, a deputy attorney general under Robert Kennedy, who would be given Kennedy's first seat on the Supreme Court. In the Justice Department, Katzenbach took part in perhaps the most iconic confrontation of the Kennedy administration's civil rights enforcement efforts, ordering of Alabama Governor George Wallace to remove himself from the doorway blocking the entrance of the first African American students to be admitted (through federal court order) to the University of Alabama. It was Katzenbach, apparently, who advised Johnson of the importance of appointing a national commission to investigate the assassination of JFK in Dallas; writing to Johnson aide Bill Moyers:

“The public must be satisfied that Oswald was the assassin; that he did not have confederates who are still at large; and that the evidence was such that he would have been convicted at a trial.”

Conspiracy theorists would read in the memo (released in 1994), traces of a cover up, but perhaps even more saliently, of person adept at helping top leaders navigate the shoals between electoral democracy and the rule of law. As AG, Katzenbach fought to keep the Johnson administration if not supporting at least not directly frustrating the goals of Dr. King's wing of the civil rights movement, as the FBI, with Johnson's approval moved from wire tapping the civil rights leader to determine whether communists were influencing his movement, to using surveillance of King's marital infidelities in a plot to encourage his suicide. Katzenbach resigned when he realized his power as AG was insufficient to back down his nominal subordinate, J. Edgar Hoover. The Crime Commission that Katzenbach headed represented the Johnson administration's effort to get ahead of the growing wave of political concern about crime in America; one which Barry Goldwater had unsuccessfully invoked in the ,64 campaign, but whose salience would grow with each riot and uptick of the closely discussed homicide rate. Readers of this blog will know how that history turned out, but what is noteworthy here is that under Katzenbach's leadership the Commission represented the best that legal and social science expertise, wed to social democratic criminological assumptions could bring to bear on a problem that would ultimately politically eclipse the civil rights movement. Harvard Law's James Vorenberg was the Commission's operational head and he recruited a research team including many of the stars of 1960s sociology, political science, criminology, and law. Katzenbach's strategy of expert and evidence led crime policy would be swamped by a more ideologically driven demonization of urban criminals (mostly young men of color). Having grown up in those years, and very much identifying with that wave of liberal legalism and social democratic criminology, I will always wonder if they could have been more effective or whetheer the ideological cards were just too stacked in favor of a war on crime.

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.