Civil Disobedience and Uncivilized Punishment: Run Edward and Keep Running

Edward Snowden's father recently gave an interview in which he rejected the idea that his son should come home to face US punishment (read the full story in the Guardian here):

He is going to be thrown into a hole. He is not going to be allowed to speak." The 52­year­old said he had been as "surprised as the rest of America" when his son, who worked for a contractor, was revealed as the source of the leaks about surveillance by the National Security Agency to the Guardian. "As a father it pains me what he did," Snowden said. "I wish my son could simply have sat in Hawaii and taken the big paycheck, lived with his beautiful girlfriend and enjoyed paradise. But as an American citizen, I am absolutely thankful for what he did." 

With Bradley Manning facing the likelihood of dozens of years in prison, despite no evidence he harmed anyone, I could not agree more.  There was once a tradition in this country of people breaking the law for principled reasons, typically to protest or expose even greater moral wrongdoing, but accepting their lawful punishment as a way of underscoring their personal commitment to the polity and its laws.  However that belonged to a time when America believed in civilized punishments that had some proportion to the crimes committed.

In the age of Bush and Obama, American punishments reflect a level of viciousness and degradation that no principled person should be willing to accept for themselves or others.  Bradley Manning, even before he was convicted of anything, was subjected to treatment that would be considered a human rights violation in any civilized country but raised hardly a word of concern from press or politicians today.  While criminals on Wall Street who have ruined the lives of millions receive no punishment and indeed the solicitude of the Obama Administration, ordinary and political criminals in this country are subject to punishments that are cruel, degrading, often amount to torture, but are by no means unusual (in fact they are routine).

Given that fact, the days of sacrificial civil disobedience are behind us.  Put principle and pious appeals to come home aside Edward, and follow your Dad's wise advice.  Run Edward, run, run, run....

Race and Reasonable Doubt: Notes from the Sanford Florida Verdict

The official media narrative is in.  The acquittal of wanna-bee neighborhood guardian George Zimmerman for the fatal shooting of Trayvon Martin reflects the impenetrable wall that the law and the trial judge set up between the narrow legal questions of culpability and the broad social issues that had animated passions in the case: gun carrying in public and racial profiling.  But do not buy this part of the narrative.  While the legal issues may have been narrow and the evidence carefully filtered by the judge, whether consciously or not, race was central to the jury's considerations in Sanford this past weekend.

George Zimmerman admitted he fired his gun into the center of Trayvon Martin's body, from which a jury could and normally would infer that he intended to kill Martin.  Normally that would be enough to establish 2nd degree murder.  Here however Zimmerman claimed "self defense."  Even though Zimmerman never took the stand, the jurors had to consider his story presented in police reports and forensic evidence.  The jury had to consider whether Zimmerman reasonably feared that he would die or suffer grievous bodily harm if he did not use lethal force.  Does an adult with a gun in his pocket have a reasonable fear that someone who has punched him and is now straddling him and pounding his head on the pavement is going to cause his death or at least grave bodily harm?  That is where age, gender, and race do their work.

Imagine that Trayvon was a 17 year old female, a 54 year old white male, or even a 17 year old white male.  In all of those cases the prosecutors would have had an easier job convincing the jury that Zimmerman acted recklessly in firing his gun.  It is true that teenage males are more associated with aggression, anger, and violence in our culture than either females or older males; but young black men are endowed with a legendary level of anger by our cultural imaginary (and one typically associated with danger to white people).  In scores of popular cultural references young black men are depicted as exploding into legal violence with little provocation or warning.  In its own way this cultural construction reflects an acknowledgement of the historical wrongs done against African Americans and the resentments which this treatment would give rise to.   It is this cultural imaginary that was so successfully invoked by "black power" political leaders of the 1960s and 1970s from Huey Newton to Jesse Jackson Sr. and Reverend Jeremiah Wright, and which candidate Barack Obama had worked so hard to distance himself from with his calm demeanor, starched shirts, and studied refusal to give voice to racial grievance.

It is true that the defense was not able to introduce potentially prejudicial evidence about Trayvon Martin's past, including that he had used marijuana and that he had been involved in some  minor fights at school.  But in convincing the jury that George Zimmerman was reasonable in fearing for his life, the defense had a wind at its back that would not have been there had Trayvon been female or white.  Think about Zimmerman's story again.--- He was on his way back to his car in the gated community.  Suddenly, out of the dark, Trayvon attacks him, punching him to the ground, straddling him, pounding his head into the pavement with a vicious force.--- Now the jury knew that Trayvon had gone to the store to get candy and that he was talking to a friend on his cell phone just before the incident; so they had no immediate context which could explain why he might suddenly act with violence.  All they had was his race and the racialized cultural narratives about anger and violence that are part of the American legacy of racist violence.  For reasonable doubt, that may have been all they needed.

Hunger

Today, July 8, 2013, prisoners in California's supermax "SHU" units (for Secured Housing Units), are commencing a hunger strike and work stoppage, their second in two years (read the solidarity statement here).  This is tragic.  Hunger strikes are an extraordinary act of self deprivation by people who have almost nothing.  They can result in the deaths of those involved and compel prison staff to engage in degrading practices like force-feeding to prevent that.

This desperate step indicates the depravity of California's SHU policy and its recalcitrance in reconsidering it in the face of mounting criticism from human rights organizations (read Amnesty International's 2012 report here) and the lack of any empirical evidence that this exceptional penal method is justified.  We keep more people, in worst SHU conditions, for longer, than any-other state on the planet.  I ask all readers of this blog to use their social networks to call on Governor Brown and California's Secretary of Corrections Jeffrey Beard [Actually a search of their website shows no way to contact them other than to do business] to meet the prisoners' five core demands (read them here) which amount to respect for basic human rights: to be treated as an individual; to have a horizon of hope for release from inhuman isolation conditions; to be given an environment fit for human psychological and physical health.

Supermax style prisons are an American abomination that are rejected by most other societies and considered a human rights violation in many.  Total isolation of prisoners without meaningful activities, visitors, or meaningful human contact has historically been reserved for disciplinary punishments limited to weeks or months.  In California's SHU scores of prisoners have served more than twenty years of such conditions, and hundreds for more than ten.

Most SHU prisoners are there not for any crimes committed on the outside, or disciplinary violations on the inside, but because prison officials have determined that they are an "associate" of one of the racist prison gangs that dominate the social order of California prisons.  Once dubbed an associate, based on evidence that does not have to be tested, a prisoner can never be released unless they "debrief" against the gang they are suspected of being an associate of.  For those falsely believed to be associates, this is impossible.  For those who in fact were associates, this means they are a "snitch" who will need to be in protective custody for the rest of their term (a somewhat less brutal version of the same isolation).

The State continues to claim that SHU isolation is necessary to keep gang violence under control in the State's sprawling and still extremely overcrowded prisons, but there is no good evidence that this works according to criminologist and legal scholar Keramet Reiter who carefully examined the State's case in her Berkeley dissertation (a recent article on supermax and California here).

More accurately, the SHU is necessary to maintain the State's ideological justification for its draconian prison sentences and inhuman prison conditions.  That justification, which holds that California prisons are filled with committed criminals who represent an unchanging risk of violence to Californians, implies that within this class must be an even more threatening elite, "the worst of the worst".  Since our prisons offer no meaningful rehabilitation or incentives for self reform, only deeper deprivation can provide a tool for control for this class.  In fact, the State has long ago ceded to the prison gangs responsibility for maintaining a social order inside the prisons, and openly cooperates with their recruitment and operations, but the need to justify this monstrous enterprise of human warehousing requires a veritable monster factory, which is what the SHU is.

The warped security logic behind SHU and CDCR generally is well expressed in a particular policy on photographs highlighted this morning by KQED's California Report in their excellent reporting on the strike. Under the policy, in place for over 25 years before it was finally changed after the 2011 hunger strike, SHU prisoners are not allowed to have photographs taken of themselves to send to their families or anyone else.  The policy was justified based on the claim that these prison gang leaders used their photos as "calling cards" to intimidate other prisoners.  While this claim is fascinating to a student of penology like myself (with its intriguing echoes of Victorian social customs), it turns out to have been based on mere anecdotes and passes not even the most basic tests of logic (does anyone believe a prisoner will be less intimidated because a prison gang leader can't leave his photo but has to leave something else, maybe a dead fish).

For this, people were stripped of the simplest piece of human dignity; the ability to be remembered as you are, by family members who have already lost all ability to touch or speak with you.

The hunger strike that begins today is a terrible thing.  If it is allowed to go on people will die for the crime of demanding to be treated like human beings.  Soon we will be debating force feeding. Enough...There is simply no reasonable justification for anything like California's SHU practices.  It is worst than Guantanamo and based on even less evidence.  The longest held Guantanamo inmates have been there for around 10 years.  The longest held SHU prisoner has been in for an astounding 42 years.  For generations Californians managed dangerous criminals of all sorts without a debasing their moral integrity by operating a SHU.

End this disgrace on our state.  Call upon Governor Brown and Secretary Beard to meet the prisoners' demands, and further, to announce plans soon to close these institutions and relocate all current prisoners within one year.

Prosecution Complex: Persecuting Aaron Swartz and Degrading the Constitution

There should be a difference between prosecution and persecution

The long “War on Crime,” America’s longest, has gone on a lot longer (’67 to now), and done a lot more damage to American law and society, than most people reckon (at least those who missed my 2007 tome, Governing through Crime: How the War on Crime Transformed American Democracyand Created a Culture of Fear (Oxford University Press)).  Perhaps the most troubling and persistent feature is not our outsized prison population, what we call “mass incarceration,” but an institution that arguably lies primarily behind that pathology, the outsized power of American prosecutors.  On a comparative basis, no other democratic society comes close to the discretion and politicization that combine in the American prosecutor.

First, in most countries, prosecutors are career civil servants working for nationally organized bureaucracies with a long history of being (relatively) depoliticized (often quasi judicial in nature).  In the United States we have two kinds of prosecutors, both in their own way deeply politicized. In the states, responsible for more than 80 percent of all prosecutions, prosecutors are, or work directly for, individual politicians who run for office regularly in a local constituency (generally a county).  In the federal system, prosecutors are appointed by the President, generally on the recommendation of the state’s senators (a potentially politicized process), and overseen by the Attorney General, often one of the most politically connected players in the executive branch (Robert Kennedy, Edwin Meese).

Second, in most countries prosecutors are circumscribed fairly tightly by a criminal code that has been developed overtime by a depoliticized and autonomous judiciary.  In the United States, prosecutors are free to rummage at will through state and federal criminal codes that are more like Harry Potter’s room of requirement than a legal instrument designed to bind law enforcers as well as citizens, overseen by judges that are themselves often elected and reliant on prosecutors and police unions for endorsements and donations.

Finally, in many other democracies countries, truly disproportionate sentences are rare, because the length of punishment is set by relatively autonomous specialist bureaucracies and because the conditions of imprisonment are regulated by human rights charters and enforcement organs.  In the US, disproportionate sentencing has become the norm and our Supreme Court has expressly held that it reserves judicial intervention to extreme examples like “life in prison” for a parking violation (Michigan v. Harmelin, Kennedy, J. concurring).

These features of American prosecution have always been there, but historically they were held in check by two forces.  1) Local politics meant that well organized communities could use their influence on “city hall” to push back against over zealous prosecution.  2) The limited scope of federal criminal law meant that federal prosecution was largely reserved for specialist criminals like bank robbers.

All of this changed with the “War on Crime”, declared by both parties in the 1960s, LBJ and Nixon in ’67 and ’68, and which began to transform state institutions a decade later in the late 1970s.  This federal influence continued with two further waves of  both cash and policy initiatives aimed at increasing use of imprisonment under Presidents Reagan and George H. W. Bush (1986-1991) and under President Clinton (1994-6).  The global war on terror, declared by  President George W. Bush in 2001, and pursued with some vigor by President Obama, represents a direct continuation of this original "War on Crime" and its forms of political subjectivity, logic and sovereignty.  Not accidentally, the War on Crime placed prosecutorial prerogative and power and the very heart of its strategy. 

First, prosecutors were viewed not as one side of an adversary justice process, but as the very head of a unilateral crime control process.  Both state and federal laws and practices have changed to give prosecutors unprecedented power to target individuals and groups.  With their unique posture of being an executive leader with a mandate to fight crime, prosecutors have become the model political posture for all politicians hoping to become mayors, governors, or ultimately President.  Barack Obama was our first President since Gerald Ford who did not prove his bonafides first as a Governor by signing tough new criminal statutes into law or by seeking any carrying out executions of convicted death row prisoners. 

Second, convinced that slow court processing was preventing law enforcement from containing crime in the 1960s, state and federal reforms ever since have aimed at turning our justice system into a super efficient conviction and incarceration machine.  The best way to do that was to eliminate the right to a jury trial by gutting substantive criminal laws so as to remove any room for jurors to exercise any judgment about the seriousness of the criminal activity, and by raising criminal sentences so high that only the most fool hardy would go to trial rather than accept a “plea bargain” on the prosecution’s terms.  This of course also eliminate the one way communities could directly check prosecutorial overreach.

Third, violent crime in the 1960s and “terrorism” now, provide an emotional tenor to the justice process that inevitably raises the rhetorical and actual power of the prosecution and pushes it toward an identification of professional dedication with zealousness and down right meanness (think Nancy Grace or any of the female prosecutors on Law & Order over the years).

Fourth, wars are territorial, racializing, and preemptive by their nature.  The war on crime has pushed prosecutors from retail dealers in punishment to the kind of racial profiled whole sale targeting of young people of color and young people of any race engaged in activities view as radical.

The prosecution of Aaron Swartz, the brilliant young inventor and free access netactivist who took his own life while in the increasingly threatening grip of a federal prosecution that arose out of his successful efforts to copy large numbers of scholarly articles from jstor for purposes of free access to the public (whose tax money funds almost all of that research and many of the publications themselves), exemplifies many of these features of our persecutorial/prosecutorial complex.  (I agree with the analysis in this post which highlights the links between constitutional compromises made early in the War on Crime, and today's overreach).

The federal prosecutors used increasingly wide and expansive definitions of traditionally narrow but highly stigmatized criminal acts, like theft and burglary, to reframe clearly political acts into self interested acts intended to deprive others of their rightful property.

The close integration of federal and state law enforcement, forged during the war on drugs phase of the long war on crime, means that federal can defer to state when that serves their interests (as it appeared to when Swartz was initially handed over to the local Cambridge/Middlesex County court, and the state can defer to the federal as they did when the state indictments were withdrawn in favor of federal charges.  This kind of state federal cooperation, so celebrated as an achievement by politicians, effectively guts the local political pressure that is the only accountability on our justice system (see the late William Stuntz’s great final jeremiad, Collapse, for that case).

The expectation that you will plead guilty immediately or face extreme punishment meant that when Swartz balked at pleading and becoming an informant against other members of his movement (oh, did I forget to mention that routinely dangerous, degrading, and actually criminal behavior against your own associates is part of what the government now means by “accepting responsibility” for your crimes), his indictment was superseded more than a year later with a steroidal 13 count indictment that bore no reasonable resemblance to whatever harms or risks his deliberate actions had imposed on others.  When he took his own life he had real reason to believe he would spend the better part of his life in prison if he did not finally cave to the prosecutors demands. 

This is enabled by a normalization of prison time for even innocuous and sometimes virtuous crimes.  Carmen Ortiz, the US Attorney in charge of Swartz’s prosecution later claimed she would have accepted a mere 7 months in prison for Swartz’s plea, but why should incarceration a potentially devastating event even when kept to a minimum ever have been on the table.  If deterring Swartz and others from future acts of civil disobedience was the main point, a hefty fine would probably have done the job.

Finally, while Mass Incarceration has a Jim Crow color to it, whiteness is not ultimately a form of immunity, especially when its coupled with radical politics of any kind.  The war on crime was framed at moment when riots in cities were linked in the popular and law enforcement mind with radical political activists of all sorts.  This is especially true if your activism is reaching and appealing to privileged well educated citizens who have potential political clout.  Back in the 1960s new left activists of diverse racial backgrounds began to make considerable in-roads among educated younger people.  When largely symbolic acts of violence emerged, the federal government defined most of them as terrorists and killed, exiled, or imprisoned many of them.  

What should we do if we are truly appalled by the persecution of Adam Swartz and so many others?

Demand that President Obama and state governors, formally declare the 1960s war on crime over, and announce that with crime at rates lower than it has been since that era, the emergency like basis on which prosecutors and law enforcement agents have operated must come to a close.  Justice, restoration, reconciliation and prevention must become the new focus of a rebalanced truly realigned justice system.

Begin to make over-criminalization and persecutorial prosecution a political issue in its own right.  Let your local elected district attorney or county attorney know that you support an end to racial profiling, fair charging practices, and an emphasis on alternatives to incarceration and that you are prepared to campaign against them in the next election if you don’t see that happening in your community.

Finally, we need to take seriously Justice Kennedy’s invitation in Brown v. Plata, to place human dignity at the very center of our constitutional vision for criminal law.  Prosecutors take an oath to uphold the Constitution.  When prosecutors like Carmen Ortiz use the kind of ruthless methods she used against Swartz, even when it does not lead to the tragic end it did here, she not only fails to recognize his human dignity, she violates our right to be represented as the United States in way compatible with our commitment to that value.

ps. for anyone at Netroots, I'll be talking on this topic along with Marcy Wheeler, Elliot Peters (Aaron Swartz's lawyer), and Shayna Kadidal of the Center for Constitutional Rights, today at 3pm. at a session appropriately titled Beyond Aaron's Law.

Lessons from the "sordid decades": Reading the new revelations about miscarriages of justice in New York's "War on Crime" in the '80s and '90s

Any reader of the paper of record will be impressed with the series of impressive features dealing with various aspects of county level justice in the five boroughs that make up New York City.  While not all of them have cast their gaze backwards (for instance the superb recent series on delay in the Bronx County courts).  But many of them belong to what might be best understood as an effort to recover the real history of New York's war on crime during the last twenty years of the 20th century when high homicide rates and tabloid journalism helped create a state of emergency like mentality that infected not only law enforcement but even the non-tabloid journalism in the Nation's premier metropolis.

Perhaps the most impressive and alarming so far is the lengthy feature this past Sunday by Frances Robles and N. R. Kleinfeld on a series of possible wrongful convictions linked a celebrated now retired Brooklyn detective, and the Brooklyn District Attorney's office under Elizabeth Holtzman and the still serving Charles Hynes (and followed up today by a second story emphasizing the failure of prosecutors to uncover these problematic investigations themselves and the general lack of accountability at the prosecutorial level for miscarriages of justice.

The lead here is that some 50 cases of murder from the 1980s and 1990s in which now retired Detective Louis Scarcella served as a lead or participating investigator are being re-examined by the Brooklyn DA for indications of wrongful conviction.  Scarcella, who enjoyed something of a celebrity career before and after retirement due to his colorful antics and high profile crime investigations, has been shown to have engaged a pattern of investigatory practices that to say the least are now considered high risk for miscarriage of justice including witnesses with a high motivation to fabricate evidence and a pattern of confessions taken from suspects who claimed to have invoked their right to silence or said nothing incriminating, and for whom no contemporaneous interview notes were produced.  Much of this only came to light recently due to the successful exoneration of David Ranta, convicted of murdering a Brooklyn Rabbi in the late 1980s, a case that fueled racial tension in Brooklyn until Ranta, white, was convicted based on a confession taken by Detective Scarcella as well as testimony from witnesses whose lack of disinterestedness in the case was concealed at the time.

One of Detective Scarcella's witnesses was Teresa Gomez, a now deceased woman who testified  in at least two murder trials of the same suspect for totally different murders (which she claimed to have coincidentally witnessed even thought they happened in different places and times).  Gomez, a drug addict was described by a colleague of Scarcella's as "Louie's go to witness."  Scarcella, who to his credit and advantage chose to be interviewed by the Times, denies providing her with more than small cash handouts, but others imply she received drugs.   In one case her testimony was successfully impeached by a defense lawyer aided by a family paid for private investigator.  But other defendants did not benefit from such aggressive defense approaches.

There seems to be momentum for a serious look at not only Scarcella's cases but other homicides from the same period in which it is fair to assume that Scarcella's tactics were not unique.  Here I'm more interested in what the story tells us about the mentalities which swept New York in that period which the authors aptly describe as "sordid years."

The questions about Mr. Scarcella stem from the sordid decades when the city saw as many as six homicides a day, and the police and the district attorney struggled to keep up.

While the journalists not surprisingly emphasize the degree to which the systemic pressure of so many homicides had on the quality of investigation and prosecution (New York City's homicide rate peaked in 1989 at close to 2,000 murders, more than three times the current level), we should also not miss the degree to which the sense of social threat conveyed by these homicide numbers and all the more so by the tabloid newspapers of that era gave those same detectives and prosecutors as sense of legitimacy in taking any steps necessary to make sure that someone was held responsible, even if reliable evidence linking a potentially prosecutable subject to a specific crime was lacking.

Now Detective Scarcella helpfully addresses this issue directly and beautifully (with his looks and articulateness he should have ended up with his own spot on Law & Order the long running series that began in that era).

“Are you kidding me?,” he said Saturday in an interview.“Wow. This is quite a bit of a shock. Let them look at my convictions. I will help them if they need me. I don’t know what else to say. I expect he will find nothing,” he said....

“I couldn’t sit with my family the past 30, 40 years if I had hurt an individual,” he said in a previous interview. “I never fudged a lineup in my life. I never, ever took a false confession.”

Indeed, I believe Detective Scarcella couldn't sit with his family if he felt he had "hurt an individual" as opposed to a class, a group, a category.  I also suspect that for him the individual guilt of these suspects was less important than his belief that they were all part of a class of young Black and Latino men or boys, living in the very high crime neighborhoods were the murders happened and in many cases, participating in forms of street life and petty crime from which these murders arose.  In short, they were enemy soldiers in a war on crime in which individual responsibility for particular acts was as irrelevant as it is when a drone strike today is launched on a suspected militant convoy in Pakistan (or is it a wedding party?).

Of course it was not just Detective Scarcella or even Charles Hynes who decided that it was ok to play by their own rules, it was a broader political context that repeatedly declared a "war on crime" from the late 1960s through the late 1990s.  Each of these had its own context and none was unrelated or independent of real crime trends.  The especially elevated homicide rates of the late 1980s and early 1990s associated with the crack epidemic in American cities formed a critical emotional background to war on crime tactics.  As Scarcella explained to Dr. Phil back in 2007 in an exchange quoted by Robles and Kleinfield:

In 2007, Mr. Scarcella appeared on the Dr. Phil show as an interrogation expert to discuss false confessions. At one point, he said: “Are there rules when it comes to homicide? No. No, there are none. I lie to them. I will use deception. The bad guys don’t play by the rules when they kill Ma and Pop, shoot them in the head, ruin the lives of their family. I don’t play by the rules.”

The upshot of the new attention on wrongful convictions in the 1980s and 1990s by the Times and other journalists (for example the recent documentary The Central Park Five about the five Harlem youths who were convicted of one of the most infamous crimes of the 1980s only to be exonerated after serving prison sentences ) is likely to be some internal investigations within individual District Attorney's offices, and may be some legislative hearings.  More needs to be done.

First, public officials from President Obama down (and importantly including state governors) should go on record declaring an end to the "war on crime" and "war on drugs."  Going forward, we should publicly declare our intent to return to our historical commitments to equal justice under law for every individual suspected of committing serious crimes.  Neither victims or ordinary citizens were served by a political rationality that unleashed Detective Scarcella and his colleagues on New York's plentiful pool of poor, young, minority arrestees.

Second, we need to review not just individual cases linked to particular police officers or prosecutors, but all prisoners serving sentences imposed during the 1980s and 1990s.  Our public mentality in that era encouraged police and prosecutors to maximize the penal incapacitation of minority adults in marginalized urban and rural communities no matter what the crime or who was guilty.  The lives of millions have been harmed and the social capital of whole communities set back.  After a thorough process of truth and reconciliation our legislatures should seek to rebalance our penal codes and issue compensation where due, while our executives should seek use their clemency powers to deliver individual relief to prisoners sentenced to extremist sentences.

Third, we should revisit the whole way we do prison around a recognition that no matter how careful we are there will always be innocent people convicted of serious crimes.  If we all took seriously the possibility that we or our love ones could fall prey to the tragedies detailed in the Times article and in many other recent stories, how would the change the way we punish people?

• A prison sentence should not mean that you can expect to experience cruel, inhuman, or degrading treatment at the hands of your guards or fellow prisoners as a matter of course and have to decide early on whether to be a predator or prey.
• A prison sentence should not mean your life in the community outside is over.  From the moment you enter prison you should have a path home and the tools to get there.  With a reasonable eye on security, every means for keeping prisoners in communication with the outside world should be facilitated.
• Being wrongly convicted and sent to prison should be more like being the victim of a terrible accident which leaves you alive but disabled.  You should be able to look at your fate without despair or a sense that your human dignity cannot survive the ordeal you are about to endure.  Obviously governments should do everything possible to reduce the number of both terrible accidents and wrongful convictions, but recognize that both will happen, we should make sure that loss reduction and compensation are at the forefront of our efforts.

Living it Up at the Hotel California: For Jerry Brown and California's Political Leadership It's Always 1977

Watching California politics these days I can't help feeling that I'm lost in the late 1970s, when I first moved to the Golden State (in August of '77 with the Eagle's hit released that March still riding high on the charts).  Its not just that Jerry Brown is still governor.   Its that when it comes to prisons and crime policy, the Governor and entire political establishment are still acting like they are lost in the 70s.   Then the state was experiencing nearly twenty years of escalating violent crime.  Instead of being reinforced to address this frightening trend, the state's major correctional institutions were decimated by a series of destructive policy choices including  Ronald Reagan's dismantling of the mental health system (and his covert campaign to keep the prisoner population small to avoid raising taxes) and Jerry Brown's misguided Determinate Sentence Law (which severed any connection between prison sentences and public safety).  The public lost all confidence in the increasingly incoherent system and was easily led down the road to mass incarceration.  A political culture steeped in this combination of fear and mistrust of government learned to "govern through crime", achieving popularity by passing extreme sentencing laws that only reinforced fear and mistrust.

The latest evidence that we remain stuck in this Ground Hog Day mentality about crime is the Governor's contemptuous response to the Coleman-Plata three-judge court order requiring a plan to meet the longstanding population cap.  I will post a more detailed analysis of the Governor's "plan" later.  Suffice it to say it is a document reeking of the past.  Consider that on a list of possible ways to achieve the overcrowding goal (an Orwellian concept that would still leave the State's prisons grossly overcrowded by any baseline other their own disastrous recent past), the first three all rely on incarceration (building prisons, using jails, sending more prisoners to private prisons).  The State's new correctional chief, Jeffrey Beard, has gone from being a respected national professional to sounding like a political hack in record time; warning ominously at a press conference that the plan was being proposed under protest and would endanger Californians (meanwhile according to the judicial monitors, he continues to preside over human rights violations on a daily basis).  The Governor and the Director of Corrections apparently have uniform support among both parties in the legislature where even liberals like Senate President Darrell Steinberg take a no-compromise stand against "early release" for any prisoners.

But while among the Sauvignon Blanc sipping Baby Boomers that the Governor and the Senate President and their contributors hang out with, it must always seem like 1978, when names like Charles Manson and George Jackson were enough to silence opposition to the death penalty and mindless prison sentences, there is evidence that for younger Californians things have change.  Consider that in 1978, the initiative to expand California's death penalty to apply it to many more murders passed overwhelmingly with 71 percent of the vote, while in 2012, despite no support from the State's liberal leaders and a modest campaign, a proposition to repeal the death penalty altogether failed narrowly, 52 to 48 percent, and an initiative to reduce the State's extreme 3-Strikes law passed comfortably.

The reasons for the change are complex but all around us.  Violent crime began to go down in the early 1990s and despite California's astonishing lack of innovation and leadership on crime policy (outside of LAPD), it remains low by historic standards.  There is plenty of evidence around the country that innovative policing and mental health strategies can take a further bite out of violent crime and bolster public confidence to use and occupy our urban streets.  Finally, the State's disastrous management of the prisons led the Supreme Court to denounce the torture like conditions prisoners were exposed to as incompatible with the norms of "civilized society" and affirm the population reduction plan the Governor is now campaigning against.

Within the echo chamber of Sacramento, and among cable news watchers, the Governor's pandering on crime fear, and tough talk about building more prisons, must sound awfully good (its certainly awfully familiar).  In the meantime, the young people I teach every day at Berkeley seem less worried about crime than about their economic future as the seniors among them prepare to enter a job market still at emergency levels of unemployment, and all of them ponder the challenges of building families in an increasingly precarious environment of drought, fire, and crumbling infrastructure.

Last thing I remember, I was running for the door,
I had to find the passage back to the place I was before, 
"Relax," said the night man, "We are programmed to receive, 
You can check out anytime you like... but you can never leave"

"Mass Incarceration Now, Mass Incarceration Tomorrow, Mass Incarceration Forever" California's Jerry Brown and Politics of Bashing Courts

Just about two years ago, in May 2011, the US Supreme Court in Brown v. Plata 131 S.Ct. 1910 (2011) upheld what Justice Scalia called the "most radical court injunction in our nation's history."  The injunction imposed by a special 3-Judge federal court in August 2009, required California to reduce its prison population by some 40,000 prisoners, to a level approximating 137% of its design capacity.  The State responded with a package of legislation known collectively as "realignment" and has been bragging about its success in achieving court benchmarks since Fall 2011.  However starting in January of this year Governor Jerry Brown, apparently emboldened by his electoral victories last November, has engaged in a campaign of provocation and defiance of the courts.  Comparisons with the post-Brown v. Board of Education era of "massive resistance" by Segregationist states and governors are not only plausible, they scream out.  Consider one of the final paragraphs in the April 13, 2013 Opinion and Order of the special 3-Judge Court in a decision completely and angrily rejecting the State's motion for that court to vacate its August 2009 order:

Finally, this Court observes that the prison overcrowding crisis has plagued California for over twenty years and defied the efforts made in good faith by Governor Brown's predecessor, including Governor Deukmejian and Governor Schwarzenegger.  Fully aware of this context, the Supreme Court affirmed this Court's determination...Accordingly, Governor Brown has a duty to exercise in good faith his full authority, including seeking any changes to or waivers of state law that may be necessary to ensure compliance with the Supreme Court's judgment.  See, e.g., Cooper v. Aaron, 358 U.S. 1, 18 (1958), United States v. Barnett, 376 U.S. 681 (1964)

This is an extraordinary public slap down of a sitting chief executive.  The members of the special  court, two of whom have wrestled with California's penal bureaucracy for nearly two decades in an attempt to improve medical and mental health care in prisons, and have seen more than four other Governors in office, clearly view Brown's conduct as marking a new low in non-compliance for a state that has been operating prisons in open defiance of the Constitution since 1995 (or by some measures since 1976).  The two cases cited are more than pedestrian precedents and are from the era of what historians call "massive resistance," when Southern governors competed with each other to denounce the Supreme Court's Brown v. Board of Education decision and to "interpose" themselves between citizens and the school desegregation orders of federal judges.  Cooper, is perhaps the most famous modern civil rights case after Brown.  In this unanimous opinion, actually signed by all nine members of the Supreme Court, the Court rejected the position of Arkansas Governor Orval Faubus, that he had the authority to block implementation of a court ordered school desegregation plan in order to protect the public. United States v. Barnette involved a similar confrontation with another of the most infamous segregationist governors of that era, Mississippi's Ross Barnette.  That California Governor Jerry Brown should end his long career as a modern Democrat, in the Constitutional company of these infamous Southern Dixiecrats is another mark of how transformative the "war on crime" has been to American democracy and the real costs of "governing through crime."

Brown v. Plata and Realignment
To recall the context, California is nearing the end of  what amounts to a four year period to reduce its prison population to a 137% of design capacity (yes, the courts considered requiring the elimination of overcrowding but decided that would go further than the minimum absolutely required to remedy the constitutional violations).  That order, first issued in August 2009, reflected court frustration with over (by then) a decade of efforts to improve mental health and medical care in the sprawling and overcrowded system.  In 1995 found California prisons violated the 8th Amendment bar on cruel an usual punishment because they lacked all dimensions of a minimally adequate mental health system.  In 2002 the State conceded that its prisons violated the 8th Amendment because of the lack of medical care.  In each case the degree of violation was extreme with dozens of individuals every year dying or suiciding because of unmet medical or mental health treatment.  Seven years later, the special 3-Judge Court decided that these extreme constitutional violations would continue unless the State was compelled to reduce the chronic overcrowding that in the view of the court, made any reforms impossible to implement.  California, despite building 22 new prisons in the 1980s and 1990s, had been packing its prisons to well above 200% of design capacity more or less continuously for nearly twenty years (that term is noted by the Plata Receiver Clark Kelso in a report cited at p.42 of the Order and Opinion).

When California appealed the 3-Judge court's population reduction order to the Supreme Court, the majority made utterly clear the Constitutional obligations that underlie the enterprise of incarceration.  

To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison's failure to provide sustenance for inmates “may actually produce physical ‘torture or a lingering death.’ ” ....Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. 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.

While four Justices dissented, they did so because of their expressed concern that the population reduction order might endanger public safety; not because they could defend California's prison conditions.  For a while it seemed as if the completeness of the State's legal defeat, and the stinging moral tone of the majority's condemnation of practices incompatible with "civilized society" was having an effect.  The legislature quickly passed a plan calling for many of the kinds of reforms that the 3-judge court recommended, including diverting parole violators and low level felony offenders away from prison and into county court systems.  The website of the CDCR became festooned with links showing the efforts and progress toward meeting the court's orders, with lower populations marked in flashy graphics in safety green.

The Penal Empire Strikes Back
Something happened, however, toward the end of 2012.  In October, anticipating potential difficulties with California making its population targets for 2013 (which was supposed to see the state hit 145% and finally the level of 137.5% which has been affirmed as establishing a constitutional level for the specific purposes of this litigation), the 3-Judge Court asked the State and the lawyers representing the prisoners to develop plans to achieve compliance "without adverse impact on public safety," (that being a requirement of the Prison Litigation Reform Act which already puts a heavy thumb on the judicial scale against releasing prisoners).  In early January the state launched what can only be described as an offensive against the courts with the self proclaimed objective of re-establishing "full state control" over the prison system.

• On January 7, 2013, the state simultaneously filed motions in the Coleman case (the mental health case) and the combined Coleman-Plata case (the population cap case) seeking to terminate ongoing proceedings.  The 3-Judge Court had clearly been expecting a motion from the state for delay or modification of the population plan, but this motion called for a complete termination of the order (and presumably the 3-Judge court itself which only came into existence to consider the necessity for a population order).  These were, in short, extraordinary motions, ones that, in effect, denied California was any longer in Constitutional arrears and telling the courts to take the equivalent of a hike.  
• The Governor combined these legal filings with a flurry of press statements in which he declared that as a result of spending billions, the prison system was now among the "finest in the nation."  Speaking of mental health, a topic on which the Supreme Court had been particularly moved at the loss of human dignity in California prisons, Brown proclaimed prison mental health care far better than that in the community, and at the highest standards for prison care in the world.  
• On January 8, 2013 Governor Brown terminated his own emergency powers over the prison system that had been in effect since Governor Schwarzenegger had declared the state of emergency in 2006 to deal with epic overcrowding.  The powers included authority to house prisoners in private and public facilities out of state.  In his statement, A Proclamation by the Governor of the State of California, Brown declared that "prison crowding no longer poses safety risks to prison staff or inmates, nor does it inhibit the delivery of timely and effective health care services to inmates."  As the 3-Judge Court noted, this effectively placed the Governor as denying the factual predicate on which the population reduction order had been put in place to begin with. 
• Later in the month when the state turned in the regular status report that it was required to do as part of the Coleman-Plata case, the state indicated bluntly that it planned to take no further steps to comply with the courts orders.

Legal Defeat, Political Victory?
This month both Judge Karlton in the Coleman case, and the 3-Judge Court in the Coleman-Plata case issued their opinions on the motions to terminate.  I will write later about Judge Karlton's very strong opinion in Coleman.  The State's positions on mental health turned out to be humiliatingly erroneous.  For example, as of the latest available statistics, California's prison suicide rate remains well above the national average (for prison suicide) and more or less where they were when the population cap order was affirmed.  Suffice it to say for now that in both cases the legal position of the state was completely routed and declared to be nearing the borders of frivolity.  Here I will comment a bit more about the Coleman-Plata opinion before turning to the question of political motivations.

One of the oddest features of this litigation is the fact that the State's legal position in their own provocative motion to vacate, changed dramatically even during the pendency of the motion (leading to a bizarre series of motions and cross motions).  In its initial motion, the state took the position that the population reduction order should be terminated because the underlying constitutional violations of inadequate mental health (Coleman) and medical care (Plata) had been resolved.  In February, after the 3-Judge Court had issued an order staying their motion, and requiring them to advise as to whether or not the defendants intended to file a parallel termination motion in the Plata case (consistent with the Coleman termination motion), the state came back and asserted a different ground altogether for its termination motion. Abandoning the claim that constitutional violations no longer existed, they now asserted that due to its success in reducing overcrowding, overcrowding was no longer the "primary barrier" to rectifying constitutional violations (which may or may not exist apparently from the State's perspective).

On these terms the Court accepted the motion and rejected it on every conceivable point.  The State had the burden of proving by a preponderance of the evidence that overcrowding was no longer the primary barrier.  The State's evidence consisted essentially large of assertions that things have gotten a lot better under Brown.  The State offered the opinion of one of the prisoners' former experts, now the new Secretary of Corrections for California (and thus a Defendant), that overcrowding was no longer the primary problem in fixing health care problems.  The State pointed to the fact that the infamous "bad beds", the hallways and day-rooms filled with double and tripple bunks that became the symbol for the extremity of overcrowding were gone by the end of 2012. The State pointed to audits of the state prisons showed that some which had high levels of overcrowding nonetheless had relatively effective health care delivery, while others with less overcrowding had greater delivery difficulties.  The State also relied on the fact that neither the Receiver appointed by the Plata court to oversee reform, or the Master, appointed by the Coleman court, had mentioned overcrowding in their latest reports to their respective courts (unfortunately for the State both filed briefs on the motion to vacate directly contradicting the State's position).

The State's legal position was rejected completely and overwhelmingly.  At the heart of the matter was the State's insistence that its success in driving overcrowding down under the Realignment plan meant that the basis for court intervention was now removed and no further justification for preemptive judicial oversight any longer existed.  As the Court pointed out with understandable frustration, the only reason the State undertook Realignment was to comply with the Court's order and that the reduction in steps was precisely the point of the two year (now stretched to nearly four years) order and not a reason to conclude it was no longer necessary.  Indeed, the Court pointed to the State's own eagerness to increase the population through repatriating out-of-state prisoners to indicate that current population reductions did not yet suggest the State had reached a "durable remedy."

The State does not walk away empty handed.  The 3-Judge Court effectively gave the state an extension until December 31, 2013 to achieve 137% of design capacity (which had previously been due in June), but it was an expensive way to get a modification that the Court was almost certainly willing to give the State anyway.  In an extraordinary section on compliance the 3-Judge Court openly questioned the Governor's good faith and threatened him with spending New Years 2014 in jail for contempt if the latest orders are not complied with.  The State has promised to appeal to the Supreme Court, but its almost certain to lose in Coleman and win only what it already has in Coleman-Plata (that is a modification of the plan).  The State's bizarre set of legal maneuverings are either a sign of deep incompetence in the Office of the Attorney General, or a sign of politics trumping law.  Because the AG's office is by no means incompetent, we can assume the latter.  But what explains this?

Explanations
I admit that the politics of Governor Brown's court bashing have long puzzled me.  Jerry Brown might seem to have clean hands on mass incarceration and be well placed to offer realignment as a sensible corrective to California's overblown punitive policies (most of which he is not identified with).  Yet the Governor's personal commitment to court bashing has convinced me otherwise. Here are a few speculations on what may be going on.  (This is the history of the present, so pardon me in advance for getting it wrong).

1. Follow the money?  The Governor's offensive was anticipated in Spring 2012 with a glossy new CDCR brochure The Future of California Corrections: A Blue Print, which promises to "save of billions of dollars," "end federal court oversight" and "improve the prison system."  The order is clearly not random.  One explanation for the Gov's efforts to bum-rush the courts out the of the way, is that he hopes he can do Realignment and prison reform even cheaper if human rights is not part of the equation.  The fact that the State trumpeted its interest in bringing nearly 10,000 California prisoners home from out-of-state mostly to save money (currently being spent on paying for out-of-state prisons) undercut its motion to vacate because it suggested that even current overcrowding reductions might be reversed as soon as the State could get away with it.  Thus it is possible that this is all part of a budget-above-all strategy; but if so it's a misguided and expensive one (in legal costs).  In the long run, an effective alternative to mass incarceration is not going to mean big short term cost savings for the State (or perhaps any at all).
2. As it was for Orval Faubus, Ross Barnette and George Wallace, losing to the federal courts may just be another way of winning politically for Jerry Brown by cashing in on the populist appeal of "interposing" oneself between the frightened public and demonized activities linked to the elitist federal courts, like school integration or early release of prisoners.  On this scenario, Brown knows that he is going to have to cross the biggest river yet in population reduction by actually reducing the sentence of a currently serving prisoner (the boogey man of "early release"), something realignment scrupulously avoided).  This will result in a great deal of public concern and if there are publicized crimes, possible political damage.  From this perspective, this entire performance is a kind of court bashing insurance bought against populist backlash.  It worked for Faubus, Barnette and Wallace, who gained near immortality in office.
3. It is possible that this is really about the penal bureaucracy and demonstrating the Governor's loyalty to a penal culture anchored in trauma  and seething with hostility toward human rights for prisoners and the courts that enforce them.  This history  began with the infamous "adjustment center" uprising of August 21, 1971.  During that violent day, in events that remain shrouded in dispute, prisoner leader (and Black Panther) George Jackson briefly took over the security wing of San Quentin and with collaborators killed several guards and prisoners before Jackson died in hail of bullets (some say he was set up for assassination).  That trauma remade California corrections, gutting any remaining loyalty to the rehabilitative penology, and placing the nascent prison officers union on a war-footing.  Governor Brown inherited this trauma during his first stint in the office from 1977-1983, during which time he added to it by approving the Determinate Sentence Law that removed any remaining legal mandate for rehabilitation, removed parole as a release mechanism from prison, and made punishment a meaningful goal in itself (one that unlike rehabilitation the penal bureaucracy would embrace).  These ingredients combined to form California's toxic penal philosophy in which an extreme form of penal incapacitation is infused with a deep contempt for human rights and courts.  It is this penal bureaucracy and its culture, one long established in the broader political field of California government and administration that produces the cruel, unusual, and degrading penal practices on display in Brown v. Plata.  Or consider, our obsession with SHU housing, for example, which lies behind California's super-sizes version of supermax imprisonment in which far more prisoners are held far longer than any other state on the planet, began under Governor Brown's Department of Corrections, with the SHU units at San Quentin and Folsom which were litigated in Toussaint v. McCarthy (1984).  In short, this legal strategy may have largely been for the benefit of the Department and the Prison Officer's union, powerful organizations that the Governor needs to maintain an alliance with.

The State is heading toward a likely second defeat in the Supreme Court if it gets there.  In the meantime, those of who want to see some accountability for the past wrongs of our correctional system, and real efforts to rebalance and legitimize a penal system now tainted with a global reputation for human rights violations (note here that Governor Brown must be receiving some sympathetic encouragement from China's leaders with whom he is banqueting this weekend while on a trade mission) must realize that it is not just the most visible partisans of the "prison industrial complex," who we must persuade or overcome, but unfortunately the political establishment of the State.