Weather Report: Strange weather or climate change?

The most important political storm in recent history (was it the storm or the meme?) "Super-Storm Sandy" helped not only President Obama but re-raise the question of whether unusual weather is a sign of profound climate change, in this case global average temperature rises caused by human carbon effects.  When it comes to our massive penal state, recent events have raised a similar question.  Are recent change in prison growth patterns, judicial decisions, and electoral results variation within the norm or evidence of a more profound change that could mark the end of our forty year experiment with mass incarceration?  I'm struck by an analogy that Philip Smith makes in his great contribution to the Sage Handbook of Punishment and Society (edited by Richard Sparks and myself, as a handbook its a wee pricey, but put it on your holiday wish list or appeal to your local library to order it).  In his chapter on cultural analysis of punishment, "Punishment and Meaning: The Cultural Sociological Approach", Smith suggests that many of the classical sociological theories of punishment: "do a great job of explaining the longterm penal climate" but are poor at making sense of local and short-term variation.  Foucault's account of disciplinary society, for example, makes great sense of the emergence of the cellular prison as a dominant mode of punishment, but can it help us understand California's Three-Strikes law, or declining public support for capital punishment in California.  Smith argues persuasively that we need the tools of cultural sociology to make sense of the short-term and local and to connect them to the broader more structural features of penality, but the question that we face at the moment is whether the local and possibly short-term penal events we are seeing represent a spurt of unusual weather within a stable penal climate, or are we witnessing climate change,  Our friends Ian Loader and Richard Sparks lend us a more specific climate metaphor in their 2010 book, Public Criminology? suggesting that the penal climate (globally?  or at least in the North?) has gotten decidedly hotter due to the politicization of crime policy.  Are these recent events in California signals of cooling in one of the hottest penal states in the world, or just a spate of moderation in a longterm trend toward extreme penal heat?

So what events do we have in mind?

1. The drop in California's (and the US) prison population in both absolute and relative to population terms since 2010
2. The Supreme Court's stunningly strong (although nail bitingly close) decision in Brown v. Plata, requiring California to impose structural restraints on its prison population and implying that the human dignity retained by prisoners may present a broad protection against penal excess.
3. The results of the November 2012 election in California which saw voters overwhelmingly adopt a moderation of California's notoriously excessive 3-Strikes law, narrowly defeat a death penalty repeal (which would have been a global first if it had passed), and perhaps most importantly, comfortably adopt a tax increase (albeit temporary and regressive in many respects).

As a student of punishment and society I've contributed to the view that California and the US generally has experienced a penal climate change beginning in the 1970s that have produced mass incarceration and the culture of fear that locks down others in gated communities and sterile office parks.  Like others (Loic Wacquant, David Garland, Nicola Lacey, Bernard Harcourt),  I have thought about this penal climate shift as broadly related to what may or may not be well labelled "neo-liberalism", the very clear shift in political-economy from state centered and protectionist toward market-centered and unregulated (each account provides a very different analysis of how these political-economic changes mediate penal policies).  Was the financial crisis of 2008 the beginning of the end of "neo-liberalism"? Is Obamacare really the beginning of a new phase of strong regulatory and welfare state development?  I'd love to think so personally, but I'm skeptical.

Instead the relationship between "neo-liberalism" and the hot penal climate may be far looser than implied by some of the sociological accounts.  Building "neo-liberalism" in the California and the US in the 1980s and 1990s may have gone facilitated and been facilitated by building and filling prisons but that does not mean the two must remain aligned.  It is a sad fact of penal history (see my own chapter in the Handbook) that penal practices fail regularly and at times spectacularly.  Rising political alignments often find it extremely helpful to be able criticize the penal status quo, but after forty years the penal status quo is now associated with that alignment, in such instances, the alignment stays and penal policies change, sometimes in profound ways (as in the transformations in penalty that marked the rise of working class voters at the beginning of the 20th century, see David Garland's Punishment and Welfare).  Mass incarceration has failed, spectacularly in the form of overcrowding, humanitarian medical failure, and a mounting chronic illness crisis.

All of these, were in central display in the Supreme Court's Brown v. Plata decision.  In my forthcoming book Mass Incarceration on Trial (sorry if you pre-ordered, its delayed due to my editing but coming out next Fall) I try to unpack what that decision teaches us about changes in the social meaning of incarceration, and about how we can further those changes to make sure short-term and local weather variation moves toward penal climate change, and cooling in particular.

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If you are in the Bay Area I'll be trying to answer some of these questions tonight at Revolution Books, 2425 Channing Avenue, Berkeley, at 7 pm tonight.  Dress for heavy weather and come on by and join the discussion.

2012: Hope and Change Election Too

I know, Obama's slogan this time is "Forward" and Mitt Romney is campaigning (false as ever) as the real change, but at least in California, this election is as much, or more, about hope and change as in 2008, when those words hung across the landscape of Berkeley like Christmas decorations on December 23.

Yes on Propositions 34 & 36
Forty years after California (and much of the nation) began its turn toward penal severity and mass incarceration, California voters have a chance to signal that the hot emotions of racialized crime fear has finally run its course.  It is true that both measures are modest in their reach.  Proposition 34 would repeal the death penalty, only to replace it with Life imprisonment Without Parole.  Since the vast majority of California's more than 700 death row inmates are likely to die in prison of old age under any plausible scenario, this would change little on the ground.  Nor does it count on people being necessarily less afraid of crime.  Indeed its primary populist appeal is to move the funds saved from lawyering death cases to funding police departments in investigating cold murder and rape cases.  Proposition 36 would allow prisoners serving life sentences under California's notoriously broad 3-Strikes law, to seek re-sentencing if their third strike was for a non-violent, non-serious crime (and assuming they were not already convicted of a murder or rape); a measure expected to reach only about 3500 of the more than 30,000 prisoners  serving enhanced terms under the 3-Strikes law.

Still, both measures represent a big change that should be embraced by all Californians, a change away from penal measures intended to signal severity as an end in itself, not just despite, but in-spite of the fact that they delivered little objective crime control.  The hope here is not just a hope that serious violent crime has gone away (even with the crime decline the violence in next door Oakland makes that difficult) but hope that new approaches, like innovative policing and restorative justice, can reduce crime and address the community scars of violent crime without incarceration.  Forty years ago the conventional wisdom in criminology was that neither prison rehabilitation programs or police patrol tactics could meaningfully reduce crime.  Today neither position is dominant.  Furthermore, despite their poll tested pragmatic moderateness, both propositions would signal major change 1.) because they both deal with violent crime which I have long called the "hard back of mass incarceration" in contrast to the "soft underbelly" of drug crime and parole violations; and 2.) they are voter propositions, a form of law making long sought to favor fear over reason.

Yes on Proposition 30
For nearly forty years the state of California has been disinvesting in education, both K through 12, and higher education, in order to reduce taxes.  At the start this must have been very tempting, since California taxes were relatively high and our education system was excellent.  Now our tax system is highly uneven and unreliable, but manifestly fails to meet the state's basic revenue needs, and our education system is diminished at every level.  Proposition 30 is again a modest turn toward hope and change.  In asking for voters to approve a tax increase (and not just bond measures for debt), Proposition 30 breaks with decades of lying to voters about the realities facing the state.  It asks not just for an income tax increase on high income earners, but a sales tax increase that will be paid by everyone.  In this mildly progressive but still broad base, Proposition 30 hints of California's New Deal period when the state made the great investments that turned it into the dominant state of the postwar period.  The hope here is modest.  The tax increase is temporary and the funds would stop the hemorrhaging of education not reinvest in it.

Re-elect President Obama
It is true that for readers of this blog, the President has not been a major change agent.  We did not expect him to lead on issues like "mass incarceration," and his promises to end our national disgrace at Guantanamo ran into a wall of Congressional fear.  His Justice Departments aggressive prosecution of whistle blowers like Bradley manning, and the quiet war on marijuana, while letting financial crooks sleep on their gains has been a mystery to many of his supporters.  Still, the President has kept his promise to never "govern through fear."   While he has steadily sought to address the priority threats of George Bush's fear regime, including ordering the military execution of Osama Bin Laden, President Obama has not generated a new list of monsters, struggling to let uprisings in the Arab world proceed without demonizing the new leaders.  Most importantly, in getting even a modest national health system and re-regulating the financial services industry, President Obama has begun to change the machinery of governance, moving us from the model of  punish and prosecute that was "governing through crime," to approaches that require cooperation, trust, and new positive benefits for citizens.

Cop killers, Baby killers, Serial killers? Did Steve Cooley Just Lie on the KQED?

In a debate on KQED's California Report about Proposition 34, LA DA Steve Cooley told a statewide listening audience that only "cop killers, baby killers, and serial killers" get sent to death row from LA County.  Really?  That sounds false to me.  There are well over 700 people on death row and a clear minority of them meet that description, in fact, very few are.  From LA?  In 2009, LA County produced more death sentences then the state of Texas, were there really that many baby killers, cop killers, and serial killers convicted in that year?  I'm in the middle of my teaching week (yes this really is like a job) and don't have time to run this down, but some one reading this, student, reporter, active citizen, nail this down because I don't think its fit for a District Attorney to lie on an important issue of public policy on the radio to the citizens of this state.

Why does Steve Cooley really want the death penalty?  In part, I would guess, because the death penalty is a large weapon in plea bargaining that can force many murder defendants with a credible issue, to plead guilty to a non-capital murder and disappear for life (perhaps for a crime they did not commit).  In Governing through Crime I offered a more political view.  Prosecutors became vengeance-seekers-in-chief during the era of mass incarceration and used that stature to get elected statewide.  The death penalty debate fuels the vengeance end of the crime policy debate (distorting the entire criminal justice system) but providing great fuel for prosecutors to rise to power.  Steve Cooley lost narrowly for AG in 2010 to the current incumbent, a very quiet opponent of the death penalty.  One suspects he would rather be talking about the death penalty in next statewide election too.  Proposition 34 would end that death debate and move Californians on the the serious work of reframing our overheated underperforming penal system.

No Governor Brown, Thank God we Have Federal Courts

The most amazing quote in Marisa Lagos' front page story on realignment in this morning's SF Chron (read the story here) comes from Governor Brown:

"It's on schedule, and it's in practice in all 58 counties, which are quite diverse," Brown said in a phone interview last week. "I think all in all, we made a solid transition, and thank God for the fact we had the realignment plan - or we would have been forced by judges to let felons out of prison or to build new cells, which we can ill afford.

Now I'm generally inclined to give Governor Brown time to redress the prison crisis.  When he left office in 1983 the prison population had already begun its disastrous rise, but it was still modest and was driven mostly by county level prosecutors and judges (although his Determinate Sentence Law, adopted for other reasons, had effectively cut off the state's ability to reduce prison population on the other end).  To my knowledge he was not a supporter of the many laws passed since, including Thee Strikes, that helped supersize California's prison population beyond any rational or humane limits.  Although he appealed the Plata case to the Supreme Court as California's Attorney General, that is the usual routine for AGs and it takes an exceptional act of courage to do something different.  But the contempt for the courts in Governor Brown's statement at a time when only because of the courts are we beginning to remedy a human rights disaster that has blighted our state for over a decade is appalling, beneath him, must be called out.

The statement is so wrong on every level that it must be deconstructed and addressed point by point, but this is college, so first a pop quiz

• Question.  When did every governor start sounding like Ross Barnett of Mississippi?
• Answer. When the war on crime made it patriotic to trash courts for defending the human rights of people in prison.

"thank God for the fact that we had the realignment plan"

At least now we know where it came from and when we can expect it to be revealed (at the end of time?).  In fact, most of the ideas in the plan come from (or are mysteriously similar to) the proposals presented to the three-judge court in Plata which had been developed for the court by the state's best criminologists, people generally ignored by the state's political leadership.

"or we would have been forced by judges to let felons out of prison or to build new cells"

The court ordered not a single prisoner to be released.  They gave the state two years to reduce its population crisis from a steady state of over 200% of capacity to 137% of capacity and then outlined numerous ways the state could do that.  As the court documented many of these prison sentences were actually reducing public safety.

The court was forced to set a population cap because the state continued to pack minor offenders and parole violators into prisons where a prisoner a week was dying of unmet medical needs.  In their zeal to sell us our own fear, California's politicians presided over a system of industrial scale torture in which inmates suffering severe mental illness were left untreated in the horrifying conditions of overcrowding and insecurity, and in which prisoners suffering manifest symptoms of heart attacks, and cancerous invasions of their organs without treatment or even sympathy for their suffering.

let felons out of prison

Felon is a euphemism for denying the humanity of a human being.  In a state which has lost touch with the humanity of its prisoners on a such a vast scale it is appalling for the chief executive still responsible for returning our prisons to some semblance of constitutional order to use that euphemism.  Prisons are not containment zones for zombies.  They are legal institutions for the punishment and rehabilitation of human beings.  Our state has proven itself incapable of operating such legal places.  Our leaders should be holding the officials responsible accountable, not swaggering and criticizing our courts.

As Justice Kennedy wrote in Brown v. Plata, the case that will carry Governor Brown's name into history along with governors like George Wallace and Ross Barnett:

A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society. 

I say, thank God for the "concept of human dignity," and thank our federal courts for enforcing it in this sorry state.

You Should Know: Why Death Row Inmates Oppose LWOP

Reporting on the font page of today's SFChron Bob Egelko finally says what many of us who visit San Quentin prison have known for months, most  of California's death row inmates oppose Proposition 34; the voter initiative on this November's ballot that would abolish capital punishment and replace it with Life With Out Parole (LWOP) even retroactively. (read the story here).  Yes that's right, prisoners who face a lethal injection unless a court overturns their death sentence or conviction are opposed to a law that would immediately accomplish what many of them have been litigating to achieve for years, the removal of their death sentence.

That is so counter-intuitive to what most people believe about capital punishment that its worth repeating.  People on death row, not just folks in an abstract all night dorm room discussion about whether death or LWOP is worst, but folks actually condemned to die, prefer to continue with their death sentence.

The story correctly emphasizes the importance of lawyers in explaining this seeming paradox.  Everybody convicted of a serious felony like murder receives a court appointed lawyer to prepare an appeal, generally to the state courts and to the US Supreme Court.  But even when those appeals fail, and the vast majority do, death row prisoners get a court appointed lawyer to continue a second line of appeals known as habeas corpus, in both state and eventually federal courts.  These appeals are very valuable for two reasons.  First, they allow the court to consider many aspects of the underlying case against the defendant, like the police investigation and the prosecution's conduct, that are generally not reviewed on direct appeal.  Second, as the Chron story points out:

For condemned prisoners, it often represents their best chance to stave off execution by presenting their claims to federal judges, who are appointed for life, rather than elected state judges. A ruling that leads to their acquittal, or even a finding of innocence, is also more likely in habeas corpus than in the earlier direct appeal.

Many prisoners hold out the hope that their conviction will be overturned and they will be able to go home.  Ending their right to court appointed lawyer on habeas would close that door forever to most if not all of them (a handful might find lawyers to voluntarily continue their appeal).

Voters who support the death penalty should think carefully this November before they vote "NO." If you defeat Proposition 34, you will be continuing to give people convicted of capital murder exactly what they most desperately want - a lawyer that will help them get out of prison.

Less explicitly discussed but quite clear from the above, is how punishing a true LWOP sentence is.  The prospect of never being released from prison ever, with not even a low odds hope for an appeal or a parole board decision in your favor, is terribly terribly punishing.  In California it is compounded by the fact that prison conditions are extremely poor due to overcrowding and in recent years according to the Supreme Court, the prospect of torture through abysmal or non-existent medical treatment (see Brown v. Plata).  Death row inmates in California have a cell to themselves, receive more attentive supervision and visits from their lawyers, not to mention a measure of international celebrity and the scores of pen pals that brings.  All of that disappears when your death sentence is vacated (as all of them would be should Prop 34 pass), and you get dumped into the long dark tunnel known as LWOP.  In short, just as Cesare Beccaria argued more two hundred years ago in his On Crimes and Punishment, true life is worst than death as a punishment, and thus as a deterrent.

We could make it even more so by actually paroling murderers who have received a non-LWOP life sentence, as the law itself requires, but which California' politicized process has stymied for years.  If we began to parole most prisoners convicted of 2nd degree murder after 15 years, and those convicted of 1st degree murder after 25 (as the law requires), those persons sentenced to LWOP would see the reality of the grim fate they have been assigned to.

I personally oppose LWOP as "cruel and unusual punishment."  I will vote for Proposition 34  because it will at least take us to a more honest place where we acknowledge what we are actually doing in California.  After that we can begin to have a more realistic conversation about what punishment can achieve and how long that takes.  We should reform our state courts so that they are not a rubber stamp of sometimes deeply flawed convictions, and we should reform parole so that prisoners who atone and seek to reform themselves in prison face a realistic chance of going home.  Sadly only one of those things is on the ballot this November.

State of Confinement: California's Carceral Habit

Scott Simon's amazing interview with George Takai this morning brought tears to my eyes and made me think once again about why this hauntingly beautiful state with its sunny optimism and reputation for creativity and innovation has so often embraced mass incarceration in various forms.  Takai, best known to the world as Hikaru Sulu, the fictional pilot of the star-ship Enterprise in the television show Star Trek and the several feature films that followed, was confined along with his family in several concentration camps setup by the United States to intern Japanese-Americans in 1942 (read his wikipedia article here).  Talking with Simon, the host of NPR's Saturday Weekend Edition show about the new musical about the Japanese internment Allegiance, Takai related that when he and his family finally left Tule Lake, their second camp, to return to Los Angeles, housing was so expensive they had to live on skid-row near downtown LA.  His little sister wanted to go home, home to incarceration.  That Takai's family came back to LA and set themselves back to the life of being ambitious hard working Californians (Takai studied at Berkeley (Architecture) and UCLA (Acting)) is amazing and inspiring, and a reminder that children scarred  by contemporary mass incarceration can be tomorrow's George Takai's, but why is this state so prone to locking people up?

It is true that the internment of Japanese Americans was a national crime whose stain lies on our whole nation, California had a far deeper responsibility, with all the major champions and the deepest sources of racist populist support for internment based here.  While it only lasted a few years, the internment involved over 100,000 people (read the wikipedia article here).

California also was a heavy user of mental hospitals from the late 19th century through the 1950s to warehouse large numbers of people with mental illnesses or disabilities (or sometimes just deviant characters) largely without treatment and with little legal recourse to get out.  Most other states had similar institutions, but California did so at a much higher rate, and was far more aggressive in pushing sterilizations along with hospitalization and imprisonment.

Joan Didion reflects on California's habits of confinement in her powerful memoir of the state, Where I Was From (listen to an interesting interview with Didion on the book here), and points to a number of traits that seem to combine in California's political culture to favor regular paroxysms of fear and racially infused demands for exclusion.  Prominent among them is the fact that so many of the state's middle class citizens have a vision of themselves as independent entrepreneurs who have belonged to the state for ever, when in fact they are a generation or two away from migrating into California from somewhere else and the state as a whole has depended for generations on massive federal spending projects the last of which was the Reagan era military technology boom. 

This propensity to fear and loathe those we perceived coming into "our" state and to demand that a lot of them be locked up preventively is one that has achieved its most powerful and malignant form in contemporary mass incarceration.  By using crime, often regardless of how minor, as our "reason" for confining large numbers of mostly brown and black Californians, our great confinement seems superficially more just then the Internment of the Japanese or the hospitalization and coerced sterilization of people with mental illnesses and disabilities, but not if you look much closer.  Most important, this propensity to confine seems to have little to do with the specific locus of fear nor the technical-professional apparatus that is ostensibly in control of it, whether it is medical, military, or juridical.  Courts should thus refuse to give much if any deference to California's confinement decisions (unfortunately they generally do).

Correctional Madness: Realigment on the Right Track in LA

The California Report and The Center for Investigative Reporting posted another excellent report on Realignment this morning (broadcast on many NPR stations and available online after a delay here) this one focused on the vital issue of how counties, who get both resources and discretion over post-prison supervision for many California prisoners, are working with former-prisoners who live with mental illness.  This is crucial.  As the Supreme Court highlighted in Brown v. Plata, California's overcrowded reception center prisons were machines of madness, taking parolees already suffering from lack of adequate treatment in the community, and typically thrown back in prison in response to their deteriorating behavior.  Once in prison, an inadequate mental health care system, paralyzed by near 300% capacity population at many reception center, led these prisoners to deteriorate further, in time to be released on parole again in even worst shape.

LA County, which has been struggling with the criminalization of mental illness since the 1970s, appears from the report to be taking a very strong approach with an emphasis on wrap around services, housing (because many of parolees with mental illness end up on the street), and a clear intent to avoid unnecessary incarcerations in response to minor violations.  Much of the program is being operated by an NGO specializing in delivering services to people with mental illness, rather than a law enforcement agency focused on punishment and control, and deeply hostile to the idea of mental illness after decades of official anti-medicine in California.  Paradoxically this approach seems to actually produce valuable intelligence about real crime and the ability to distinguish between truly emerging threats and simple set backs or relapses (say on drug use), just the kind of intelligence that contemporary corrections and law enforcement has largely lost the capacity to produce over the past 40 years.

This was highlighted in the episode by an interview with an LAPD officer assigned to a special re-entry unit.  While one might hope that such a unit would benefit from the kind of individualized thinking emerging from the NGO side of the re-entry enterprise, it was not apparent from the interview.  Instead, the officer suggested that many parolees might be hiding out in mental hospitals to avoid arrest for serious crimes.  This suggests a basic lack of awareness of mental health hospitalization opportunities in California (it is quite hard even for people with florid symptoms to get hospitalized) as well as a skepticism about the reality of mental illness that unfortunately is pervasive in law enforcement.

As good as the realignment approach in LA with regard to former prisoners with mental illnesses sounds, it begs another question.  Why are we letting so many people with mental illness drift into our criminal justice system as our primary way of getting them needed treatment?