"Unlocking" the mentalities of governing through crime: The Time's Flawed Series on New Jersey's Halfway Houses

I've finished reading Sam Dolnick's important investigative report on New Jersey's burgeoning system of half way houses, Unlocked, and I'm still more impressed with the power of traditional media ways of representing crime and criminal justice than I am with the power of its investigating or reporting. On the later point, the series does an important public services by introducing readers to a type of institution which is likely to play a more and more important role in the twilight of mass incarceration as state correctional systems struggle to escape the enormous fiscal and moral costs of that project without admitting to the public that they were always locking up way too many of the wrong people for the wrong reasons. Such places, often operated by private contractors, are places that few Americans are familiar with and which raise novel questions about state power, private responsibility, and the objectives of criminal justice. Unfortunately this potential was largely lost because the piece was captured from the start by a series of assumptions that constitute the basic media mentality of what I call Governing through Crime.  

First, never question the basic wisdom of arresting, detaining, and imprisoning people who have committed crimes (or who the police suspect in the case of arrest) no matter what crime or under what circumstances they committed them.

The two most significant victims discussed in the series, A woman detained at the Bo Robinson Center in Trenton who was raped, and a man robbed and murdered at Delaney Hall in Newark, should never have been in detention at all. Vanessa Falcone was convicted of forging prescriptions after becoming dependent on prescribed medications. Sending the 20 something stressed out single mother to prison for that was outrageous, a human rights violation (especially to her child) and an astoundingly poor act of public policy that benefited no person in New Jersey. The arrest of Derek Harris for outstanding warrants and driving an unregistered vehicle was also a highly questionable call. Harris was guilty of no more serious crime than being behind in obligations associated with his automobile, he did not deserve the humiliation and risk involved in being locked up (even at a proper county jail). The public officials responsible for these decisions are the real engineers of these tragedies but Dolnick's reporting never questions the wisdom of locking them up in the first place. Its like a reporter complaining that the state is doing a terrible job rescuing distressed swimmers from a river without ever asking why the state is throwing them in the rapids to begin with.  

Second, always emphasize the role of prisoners or the formerly incarcerated in discussing society's crime problems

You would have to read the second story on Vanessa Falcone carefully to realize that she was raped by a janitor employed at the facility, someone with no previous criminal record, and not by someone locked up or formerly incarcerated. The whole key to mass incarceration as a public policy was to keep the public more focused on people locked up or formerly incarcerated people, while ignoring the fact that most crime is committed by people who are not locked up and have not been previously. If you took the latter seriously you would support effective strategies to keep people safe from crime through careful attention to organizational and environmental factors, as well as flexible and intelligent policing. All of these were and are absent in New Jersey, but you would miss that from "Unlocking" which as its title suggests, makes the main point the fact that people who could have been locked up in prisons and jails were held less secure places.  

Third, use drugs as smoke and mirrors to expand the category of crime while switching back and forth between drugs and violent crimes to create a frothy mix of anxiety that can cover the ambiguity and chaos of

The the most significant problem emphasized at Bo Robinson was the suggestion that illegal drug use was routine (especially marijuana smoke). True, if you think that locking people up because they use drugs, in order to make them stop doing so, than may be the fact that lots of drugs are in an around these half way houses would be alarming. Some of the descriptions of Bo Robinson Center reminded me of the Freshmen dorm I lived in at Berkeley in the late 1970s. Now most college dorms wouldn't tolerate the clouds of marijuana smoke I remember, but that's at least in part because they are all "non-smoking buildings". There were at least two violent crimes described in the series (see the first point) but many more references to violent criminal and people committed of violent crimes. Even as we make some progress on demystifying the logic of the drug war, we continue to discuss violent crime as if it was a monolithic kind of behavior. All states treat a great many things as violent crimes that do not involve actual injury to anyone or even a significant threat of it and many people incarcerated who are categorized as there on a violent offense may have actually violated their parole or probation on an offense like a non-armed robbery that may not have been very violent in the conventional sense to begin with.  

Fourth, keep pretending mass incarceration does not exist

Dolnick's most oft repeated finding is that today's halfway houses are not the neighborhood centers of the past but giant institutions. This is an interesting an important point. It would be helpful to see more data on New Jersey's many halfway houses because the Bo Robinson Center in Trenton, which receives most of the attention, is a reception center designed to receive, classify, and reassign prisoners coming out of state prison and it may be quite different at other facilities. Indeed, reception centers are always problematic sites within correctional systems as they tend to aggregate all the problems of overstretched organizations. Still, even if Bo Robinson is somewhat representative of the new halfway houses, what about the prison system to which it relates? Since the 1970s America's correctional systems have grown massively (the national average is something like a quadrupling of the imprisonment rate between 1975 and 2005). Moreover, the prisons are not the one's many people remember from the 1970s (and project on today), rehabilitative oriented institutions filled with educational programs and treatment. Today's prisons are engaged in human warehousing with little or no effort at education or rehabilitation. At their worst, as in California, they are humanitarian crises in which prisoners weekly die of routine failures of medical care (like providing simple medications) and at their best they tend to be secure warehouses which is what New Jersey seems to have.

None of this is meant as a defense of the current system of halfway houses in New Jersey. As we move away from mass incarceration it is critical that we not fall into the presumption that unless perfect rehabilitative programs for each prisoner can be deployed they need to stay locked up (which I'm afraid is the not so implicit message of the Times' series on halfway houses in New Jersey). Those prisoners were not sent their for rehabilitation and many could be released tomorrow without posing a serious threat to public safety even if no halfway house was involved. No doubt we should offer reentry help to the people we have incarcerated (hopefully are fewer people in the future), but in ways that address real individual obstacles to successful survival in the community (educational, health, or employment) and do not conflate help with surveillance and control.


NOTE JUST READ THAT THE SUPREME'S HAVE FOUND LIFE WITHOUT PAROLE FOR JUVENILES UNCONSTITUTIONAL (WILL POST ON IT TOMMORROW)

The Iron Cage: Why its so hard to escape mass incarceration

For more than three decades state and local officials, egged on by the mass media and interested public employee unions, stoked the growth of prison systems in almost every state by greatly expanding the range of people considered eligible to go to prison. Plenty of local ne'er do wells that county prosecutors and judges would have kept in the community in jail, or under probation, got shipped up to the state prison system which was expanding rapidly, breaking down previous customary barriers to incarceration. Once in prison, the same local ne'er do wells now found themselves subject to both the pressures of statewide prison gangs (usually pretty formidable criminal organizations and often racists to boot), and when they get out, to far tougher scrutiny by state parole officers than they received in the past, with the result that many of them returned to prison. And so on... But you know the rest. The nation's incarceration rate quadrupled, and in some neighborhoods a term in state prison had become bigger than college, the military, or marriage as a pathway to adulthood. But all of that is so 2005. In 2012 we are two years into a national trend away of imprisonment. In some states, efforts have quietly been underway for years to reduce the flow of new prisoners and to move some prisoners out earlier. In other states like California, it has taken a massive federal lawsuit backed by the Supreme Court to force the state to reduce its population to relieve severe overcrowding that had created a humanitarian crisis. While there is a growing sense that mass incarceration has been morally wrong, it is primarily fiscal pressure that accounts for the progress made thus far. The real question is whether this can continue once there is less pressure on state budgets. If it is to be sustained it will require a generation of state leaders capable of taking on the powerfully embedded rationalities that supported mass incarceration and that make it so very hard to let it go. To understand just how powerful those rationalities are and how widespread the responsibility for maintain them is, consider the New York Times. No national media source has done more recently to question the status quo of mass incarceration with numerous stories on prison conditions, wrongful convictions, and excessive severe sentencing. Yet on the front of its June 17, 2012 Sunday edition is a story by Sam Dolnick that has "Welcome Home Willy Horton" written all over it (read it here). Horton you will recall was the furloughed prisoner whose crime capades while released on an administrative leave from prison during Michael Dukakis' governorship of Massachusetts became a major theme of the 1988 Presidential campaign. This time it is a Republican Governor Chris Christie whose Presidential ambitions look to be majorly damaged by the story headlined "As Escapees Stream Out, A Penal Business Thrives." While the story has a distinctly New Jersey air of state political cronyism, the master narrative is pure 1990s crime fear stoking. The title of the series which this leads off is "unlocked" (get it). Here is the tabloid version without the Times style empiricism. Tens of thousands of New Jersey prisoners every year are being let out of prison early to go to "half way houses" and every year scores of them "escape" (or actually walk out since in most cases the facilities have no legal authority to prevent anyone from leaving. Some of those "escapees" commit crimes. Indeed there is a neat illustration running across the right half of the full double page spread that the story opens up to. With the words "Crimes on the Run" in the middle, a graph showing escapes by the week from 2009 and below a photo line up of criminal faces (shades of Lombroso), mostly black and brown but some white and a list of ominous crimes including "murder", "assault on a police officer" or being arrested with a "cache of weapons and drugs" (what was that, five pocket knives and a lid of weed?) No doubt some of these are serious crimes. The main one profiled involved the murder of a young woman by a possibly mentally ill prisoner who became involved with her while in prison and then broke out of the half way house he had been released to after she tried to break things off. He persuaded her to get in a car with him and was found strangled. Against this background state officials, and especially Governor Christie are shown as feckless if not corrupt, praising well connected companies and expanding their contracts without evaluating the effectiveness of the programs or responding to the escapes (even after a Times investigation began last year). No doubt the story raises important questions about how state contracts are made and evaluated and on whether industrial scale "halfway houses" are a productive way to do "reentry", but for now let's consider how the story frames efforts to reduce prison populations as endangering the public without any basis. First, you have to read way into the story to realize that the thousands of people coming from prison to halfway houses are doing so at virtually the end of their prison sentences. They are spending weeks or possibly a couple of months in a halfway house where they can begin seeking employment and restoring ties to their community rather than paroling directly from prison several weeks or a month or two later. So all of the danger that the article invokes in its image of thousands of prisoners in poorly secured halfway houses completely ignores the fact that all of them would be out on the streets without a halfway house in a short time. Would that additional six weeks in a state prison have made New Jersey citizens safer? The Times provides no evidence at all that additional time in prison would have rehabilitated or deterred these individuals or that the additional weeks of incapacitation would have done anything more than shift the dates of future crimes by a few weeks. The implication throughout the story is New Jersey was safer when these folks were behind bars yet no evidence is presented that crime rates have gone up as a result of the program. The real deterrence here is for politicians who think about defying decades of wisdom that the only safe prisoner is in a prison cell.

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