Monday, July 30, 2007

Lose it or Pay: Governing the Workplace through Crime

In the latest sign of the governing through crime trend towards favoring sticks over carrots, a growing number of workplaces are fining workers who fail to lose weight or meet other objectives aimed at lowering health care costs. Daniel Costello reports in the LA Times that "some employers are starting to make overweight employees pay if they don't slim down."

No doubt there is a correlation between obesity and the health problems that can drive up employer health costs. Economists might not see much difference between such "stick" policies, and "carrot" approaches that reward employees who do slim down with bonuses. But to overweight workers the threat to lose it or pay is likely to feel a lot different. Like other punitive approaches toward steering behavior, fatness fines are likely to make people feel stigmatized and shamed over a condition that many find very difficult to change.

Moreover, the new policies show just how natural it has come to seem for institutions to treat complex problems as crimes to be blamed on individuals who are punished if they do not conform.

Wednesday, July 25, 2007

Governor Schwarzenegger Responds to Court Orders in California Prison Crisis

Governor Schwarzenegger's response to the judicial orders on Monday did invoke the eternal dangerousness of anyone in prison but was generally more measured than has been typical of Governors in recent years.

"California prison overcrowding developed over the past 30 years, leading to the current crisis in our prisons. That is why I issued an Emergency Proclamation to address overcrowding and directed the California Department of Corrections and Rehabilitation to transfer thousands of inmates to out-of-state prisons. And that is why my administration and the Legislature enacted AB 900, major prison reform that will reduce overcrowding and recidivism, and change parole policies, without releasing dangerous criminals into our communities.

"Today, the federal judges encouraged the State of California to continue with our efforts to reduce overcrowding and to implement AB 900. The judges said that if we are successful, further population orders will not be necessary. There is no immediate threat of inmate release, which one federal judge noted would be a "radical step."

"I'm confident that the steps the state has taken and will continue taking to reduce overcrowding will meet the court's concerns. At the same time, we intend to appeal these orders to ensure that dangerous criminals are not released into our communities."

Although the Governor continues to invest in the notion that everyone in prison is dangerous and that the task of the state is to keep them locked up as long as possible, the fact that he did not attack the courts more aggressively is a good sign.

Tuesday, July 24, 2007

Update: California Prison Crisis

Federal judges Thelton Henderson and Lawrence Karlton took a major step yesterday toward putting California's out of control prison growth under a judicially enforced cap. In separate orders that will be reviewed by the 9th Circuit before taking effect, the two judges ordered the creation of a 3 judge special panel (of federal judges) who will be charged with reversing overcrowding either by directly reviewing prisoners for release or creating a court trustee to under take the review. See Solomon Moore's reporting in the NYT's.

As readers of Governing through Crime know, courts have been the one institution of modern government that has shown any resistance to governing through crime and the logic of mass incarceration. However, the usual effect has been to give the executive and the legislature more opportunity to attack the courts as friends of criminals and enemies of the public. Expect some strong rhetoric along these lines from Governor Schwarzenegger later today or tomorrow.

Is Governing through Crime Going to the Dogs?

Ian Urbina reports in the July 23 edition of the New York Times that dangerous dogs’ “mug shots, misdeeds and home addresses went online this month at the Virginia Dangerous Dog Registry, a new Web page modeled after the state’s sex offender registry. It lets residents find dogs in their county that have attacked a person or an animal, and that a judge has decided could cause injury again.”

What is it with this nation’s obsession with online registries of dangerous entities? First sex offenders, (I think I saw somewhere that there were also talking about having registries for illegal immigrants) and now dogs? Its another reflection of how governing through crime has encouraged states to compete for how much they can seem to be doing to make citizens safe from all real or imagined sources of violence. Whether this does produce safety or just more consciousness of risk is an open question.

So far, Virginia is the only state to start this registry (“Counties in Florida and New York have also created publicly accessible dangerous dog registries like the one in Virginia, and legislators in Hawaii are considering one”), but it shows a growing trend among states to include harsher penalties for dogs and their owners. As Urbina reports:

“Created after dogs killed a toddler and an 82-year-old woman in separate incidents in the last two years, Virginia’s registry is part of a growing effort by states to deal with dogs deemed dangerous. Thirty-three states and the District of Columbia hold owners legally liable if their dogs maim or kill, and in 2006, Ohio became the first state to enact a breed ban, though it was later overturned.”

The other aspect of this logic is to turn parents into police officers and transform our communities into crime risk maps. For Virginians at least, a vigilant parent can hop from the Megan’s Law database to the Dangerous Dog’s database and see where to avoid on their morning and/or evening walks and jogs, where their children and dogs should not play. It is not difficult to imagine a map of one’s community (that presumably a private-sector person, not the government, would create, possibly a risk-averse mother) that shows hot spots of risk of all kinds—red blinking dots dangerous dog lives here, dangerous felon lives here, dangerous sex offender lives here; possibly large green patches for gated communities; yellow or orange for schools, malls, department stores like Target, movie theatres, and even grocery stores because that’s where predators will go to prey on people; red for SF’s gang injunction areas, until the entire map looks like a war zone with limited “safe” zones.

Perhaps the one encouraging bit here is that the database is not named after either the 82-year-old woman, nor the toddler, who were killed by dogs in the two years before Virginia created the registry in response.

Saturday, July 21, 2007

Is Terrorism a Crime or a War?

In Sunday's NYT Magazine David Rieff points with approval to the efforts of new Brit PM Gordon Brown to move away from the rhetoric of the "war on terror" toward a law enforcement approach. Rieff notes that Americans like John Kerry who advocated a law enforcement approach were dismissed as soft on terror, but that a law enforcement approach is actually better at setting limits to both fear and over reaction.

The problem that readers of this blog will recognize is that in America the battle against crime became a "war" years ago. The same sense of lawlessness and limitlessness that has infused the war on terror has long shaped the war on crime. The problem of wrongful convictions (see below) is a marker of precisely this mentality.

So Rieff is right that the war on terror is a disastrous approach, but in America, crime is not an alternative.

Friday, July 20, 2007

Security as Separation

At the heart of the movement toward mass incarceration on the one hand, and the gating of communities on the other, is an identification of security with spatial separation from those perceived as dangerous.

The latest form this mandate toward risk segregation in space takes in Jessica's Law, the ballot initiative approved overwhelmingly by California voters in 2004 that requires convicted sex offenders to reside more than 2,000 feet from schools or parks. As reported in the Sacramento Bee, more than 2,000 sex offenders paroled from prison since the law went into effect, are in violation of the law.

California Department of Corrections and Rehabilitation Secretary James Tilton, acknowledged that the state does not have the capacity to achieve complete compliance or to subject every such offender to GPS monitoring, also as required by the law.

Beyond the question of enforceability, is the question of why modern Americans associate security so closely with walls and other forms of physical separation. The sex offender who does not live near my child's favorite park, is not necessarily less of a threat to that child.

Wednesday, July 18, 2007

Governors of Death

One of the ways that the modern death penalty allows governors to position themselves as the representatives of the people as victims, and their demand for security and vengeance against feared predators, is through powers that the governor has to start or stop the execution process.

The most famous of these powers, that of clemency, is rarely used (see Austin Sarat, Mercy on Trial: What it Takes to Stop an Execution). But the non-use, is itself as an exercise of power, one that governors can use to underscore their centrality to the execution that results.

Some states give governors an even more symbolically resonant gesture. Florida, for example, gives governors the power to initiate an execution by signing a death warrant (in other states that power is held by trial judges). Florida's new GOP gov, Charlie Crist (a hard crime warrior who was called Chain Gang Charlie during his legislative careers), signed a death warrant today on Mark Dean Schwab, a 38 year old for the 1992 rape and murder of an 11 year old boy. See the AP story on

This death warrant may provide the governor something of a bonus. Since it comes after a temporary moratorium declared by former governor Jeb Bush (a huge fan of the death penalty) in response to a botched lethal injection last year, Crist can claim to be a restorer of the death penalty (a role that is particularly powerful for governors, see Governing through Crime, Ch. 2).

Since it comes a time when the Florida Supreme Court is considering a challenge to the new lethal injection procedure it offers an opportunity either to have the Court stop the execution, in which case the contrast with the pro-death penalty, pro-victim governor will add to his power through frustrating it (something that happened repeatedly with Jeb Bush and the Florida Supreme Court of Bush v. Gore fame). Or, if the court refuses to halt the execution, the governor will have demonstrated that the court has been effectively shackled.

Tuesday, July 17, 2007

Schools and Crime

Schools have proven one of the most productive sites to mobilize fear of crime over the last several decades. Although studies regularly show that both K-12 and college are safer from violent crime than any other comparable places that members of those age cohorts would be (including sadly at home), there is something about the high expectations of institutional care taking associated with education that makes it a compelling media and political issue. See generally chapter 7 of Governing through Crime (Safe Schools: Reforming Education through Crime)

In today's NYT columnist Bob Herbert writes (requires Times Select) about homicides among school aged kids in Chicago and a speech Sen. Barak Obama just gave about the gang problem there. Herbert is right to call attention to these tragedies but wrong to stoke more fear about schools; --- almost all of the shootings he describes actually happened outside of schools. Senator Obama, unfortunately, is choosing to sound Clintonian on the gang problem; calling for more police and for government to "combat" gangs, --- rather than social policies that would drain the underlying source of support for gangs by removing illegal drug profits and making the path to college clear and viable for all Americans regardless of wealth.

In today's LA Times, PJ Huffstutter reports on the firing of top university and campus police officials at Eastern Michigan State University in Ypsilanti Michigan for covering up the murder (and sexual assault) of student Laura Dickinson in December of 2006. Officials lied to Dickinson's family by claiming she died of asphyxiation and that there was no evidence of crime. Later another EMU student confessed. A federal report found that among other wrongs, the officials violated the Jeanne Clery Act which requires all colleges and universities to report crimes to students, parents, and others.

In a sad illustration of the GTC cycle, public anxiety of crime at schools and campuses, stoked by a federal law mandating crime reporting, leads school officials to "game" the system by under-reporting. Of course these officials acted like scoundrels and deserve to be fired. College campuses, often located in central or older cities, are highly vulnerable to panics about crime, but when these rare tragedies occur (or like Va. Tech.) it is almost always other students, not local criminals, who are responsible.

Today, by rule of law and standard practices, schools, workplaces, churches, organizations, individuals, and other entities are expected, if not required, to alert their patrons or neighbors of any foul play, presumably because it would put them in danger not to know this and because it gives them the option to change their routine—change jobs, schools, living location, place of worship, means of transportation, jogging routes, grocery stores, etc.—to avoid the risk to which they would be alerted.

Monday, July 16, 2007

Didn't I ask for the dressing on the side?

A new government survey from the Substance Abuse and Mental Health Administration, an agency within the Health and Human Services Department, and reported in today's Sacramento Bee shows that 12 percent of the workforce used illegal drugs last month. The highest rates were in the restaurant industry and among construction workers (and generally among younger workers).

The survey also documented how widespread drug testing has become to ordinary employment screening in the era of governing through crime. Fully 48 percent of American workers surveyed reported that their employer tested for illegal drug use.

Miscarriages of Justice: In an age of governing through crime it's more important to come up with someone than to get the right one

For years I thought this was a trivial issue. The real problem with American justice was our zeal to over-punish the guilty (especially those guilty of largely preventive crimes). Errors must occasionally happen in every system, but given the growing budgets and training of police, such errors must be decreasing, right?

Wrong. Now I believe wrongful conviction is a robust and persistent feature of contemporary law enforcement. Check out two stories in Sunday's New York Times that describe very typical patterns seen in such cases (Brenda Goodman on the Troy Davis case; Peter Applebome on Richard LaPointe's case -requires Times Select-).

I believe that wrongful convictions may be going up despite better training of police and more legal representation for defendants than was true in the past. Rather than being aberrational, such events are highly predictable and driven by several features of governing through crime:

1. Once crime was upgraded to a "war," it was inevitable that rule-based limitations on police would be internally undermined. If you are in a war against a criminal class then it does not matter whether you get them for trivial crimes or serious ones, whether the evidence is persuasive or whether it has to be doctored. If the way to reduce crime is to mass incarcerate this "criminal class," questions of guilt are inevitably technicalities.

2. Mass criminalization of social problems like mental illness, homelessness, and poverty, means that most jails and many poor neighborhoods are packed with people who can be pressured into giving false testimony in order to avoid lengthy jail sentences. Because so many of these crimes are prosecuted on a racially selective basis, if you are Black or Hispanic, the odds that somebody in jail (or rounded up the street) will know your name are much higher than for whites.

3. In an age of governing through crime, police and prosecutors face much more pressure to "solve" violent crimes, especially when they happen to victims who, because of age, race, or social standing, become magnets for the media.

For a fuller analysis, check out the following online "work in progress":
Jonathan S. Simon (April 26, 2007) Recovering the Craft of Policing: Wrongful Convictions, the War on Crime, and the Problem of Security

Friday, July 13, 2007

Back on the Gang Chain

Gangs and SF City Attorney Dennis Herrera were back in the news today (read Bob Egelko's reporting in the SF Chron). Herrera was seeking the civil injunctions against gang members that would restrict their movements in certain neighborhoods of the Mission District and Western Addition, which he talked (and we blogged ) about last month.

Mr. Herrera used the occasion to get off more tough talk on youth homicides.

"The San Franciscans caught in the cross fire of gang violence are all too often our most vulnerable residents: children and youth, seniors and immigrants,'' Herrera said in a statement. "We have a moral obligation to them to do everything the law allows to target and disrupt the activities of criminal street gangs before they escalate into still further tragedies.''

These measures closely parallel an increasingly common feature of the United Kingdom's brand of governing through crime, the Anti-Social Behavior Order (or ASBOs as they are affectionately called)

The Crime and Disorder Act of 1998 allows British courts to issue orders against behavior "which causes or is likely to cause harassment, alarm or distress to one or more people who are not in the same household as the perpetrator." This flexible instrument of government can turn any behavior that makes us apprehensive of crime, into a crime.

While America currently lacks a statute like the Crime and Disorder Act (for how long?), creative city attorneys like Dennis Herrera can accomplish much the same thing as the ASBO. In both cases, the power to create new crimes, traditionally a legislative power, is handed to the executive to use on an individualized basis against anyone they believe the public fears (in the UK that has included teens wearing hoodies to the mall).

Personally I doubt that someone as smart as Dennis Herrera really believes that these legal orders will stop young gang members from killing each other (maybe they'll have to BART over to Berkeley to do it). But they will document Mr. Herrera's will and ability to turn the fears of his constituents into his own novel legal powers. In the age of Governing through Crime, that kind of performance can help qualify you for much higher office.

"Pedophiles will start using dogs to lure children..."

Living in the land of governing through crime, there is no issue, not even dog leash laws, that will not ultimately be framed as a question of whether it helps victims or predators. See Cynthia Hubert, The Long Leash of the Law.. in the Sacramento Bee.

Thursday, July 12, 2007

More Comparative Governing through Crime

Courtesy of Elizabeth Rosenthal's reporting in the New York Times, with today's contribution being the news that a second death sentence handed down on a Palestinian doctor and five Bulgarian nurses has been uheld by the Libyan Supreme Court. The defendants have now twice been sentenced to death based on accusations that they intentionally spread AIDS among Libyan children while doing work at Libyan hospitals in 1998.

The Libyan state's insistence on a death sentence is naturally a show case for its problematic sovereignty, especially given the international community's concern over the trials and sentences. It is especially interesting because medical and governmental failures leading to the spread of the HIV virus, have led to deep erosions of public confidence and produced popular calls for retribution in other states, including France (see Francois Ewald's chapter in Embracing Risk).

From this perspective we might see governing through crime as driven primarily not by crime, but by the continuing inability of modern states to cope with seemingly new (or may be just, very old) risks grounded in biology, chemistry, climate, as well as new (old) political risks like terror. Unless new governance approaches to these threats emerge, we might expect to see the US pattern spread decisively in the coming generation.

Wednesday, July 11, 2007

Capital Punishment(s)

Today's news carries two striking examples of how capital punishment gets used by quite different regimes to govern in very different ways. Nazila Fahti reports in the New York Times on the execution of adulterers and other "moral" criminals by the Iranian government. Hard pressed by a faltering economy and frustrated young people, the regime appears to be using executions as a way to dramatize its major claim to legitimacy, i.e., upholding the religious values of society.

In the NYT business section, Joseph Kahn reports on the swift execution of the former head of China's Food and Drug Administration what had confessed to taking bribes to authorize certain bogus drugs, apparently leading to some deaths. According to observers, the death sentence was considered harsh given the high rank of the official and the fact that he had confessed. According to Kahn:

...Mr. Zheng’s case appears to have served a political purpose, allowing senior leaders to show that they have begun confronting the country’s poor product-safety record. Shoddy or dangerous goods, including drugs, pet food and car tires, have damaged its reputation abroad, especially in the United States.

While this may work domestically, one wonders whether the Chinese government hasn't simply reinforced the global perception that they respect human life less than their own political and economic fortunes.

Both examples suggest quite different logics of punishment then capital punishment in the US. In each case, capital punishment is serving a non-crime model of the state. In Iran it is the state's religious authority that is being reinforced with capital punishment. In China, it is the state's Confucian position as the father of the nation. In the US, in contrast, capital punishment allows the state to perform a kind of service to individual victims.

Tuesday, July 10, 2007

Governing through Crime on the Inkwell.vue

Starting tomorrow, July 11, and continuing for the next two weeks Governing through Crime will be a featured discussion on the Inkwell.vue, which is the public discussion site of the pioneering internet community, The Well. My lead off interlocutor is Doug Masson, Indiana lawyer and blogger at Masson's blog - A Citizen's Guide to Indiana. Our conversation will move across many of the issues raised in this Blog and hopefully with the help of The Well and readers across the Web, move into new territory.

Keep checking this blog for interesting links and comments but for those needing a larger helping of discourse, join us at the Inkwell.vue

Monday, July 9, 2007

The spiral of governing through crime: Pushing Illegal Immigration Toward Crime

If governing through crime just meant a set of governmental techniques and mentalities used to address a fixed set of human behaviors known as crimes, it would be at least, self limiting. What is particularly distressing is its inevitable tendency to escalate, to identify and even generate new behaviors as crimes, and to produce as a by-product ever more insecurity about crime. This is what might be usefully thought of as its malignant process. Just like cells that cannot follow the body's normal signals to limit growth become a cancer, governing through crime threatens to continue to spread throughout the body politic.

Case in point, immigration law and enforcement. For decades we have been addressing the issue of unauthorized immigration through a greater emphasis on crime control tactics. But as the structure of enforcement is tightened, it actually pushes many of those immigrants into behaviors that mimic, if they do not actually produce the harm of, crime.

A recent article by Anna Gorman in the LA Times, “Theft of Identity Compounds the Crime," profiles just such a dynamic. As a result of increasing pressure on businesses that hire illegal aliens, more employers are adopting the Department of Homeland Security's Basic Pilot program which enables them to quickly discover whether a social security number presented by an employee is valid. The tactic is forcing illegal immigrants who want to obtain jobs to purchase real social security numbers. While the immigrants do not generally intend to use that information to create credit card and other frauds, they are participating in a crime that often does produce just such a result and which is increasingly feared by consumers.

Thus the practices of illegal immigrants have moved from a victimless crime to one with real (even if unharmed) victims. The result will be demands for more enforcement against both illegal immigration and identity thefts.

"There is no will in this administration to enforce the law," said Rosemary Jenks, director of governmental relations for Numbers USA, an anti-illegal immigration group. "Every person who is working illegally has committed a crime because they have either used fake documents, stolen documents or they have made their own."

Sunday, July 8, 2007

How to reduce violence? Get the Lead Out!

Most people, including those who agree there has been too much criminalization of social problems in contemporary America, assume that serious violent crime problems calls for serious criminal justice solutions. The dramatic declines in violent crime during the 1990s have set off a gold rush of efforts to explain what worked, and most of the answers are criminal justice centered, whether incarceration or better police tactics. A minority have suggested non-criminal justice explanations, including better employment prospects in the 1990s and better access to abortions in the 1970s (the famous Freakonomics explanation). Now comes another explanation in that direction that appears to have good econometrics and, importantly, cross national comparative data (I'm only going on the Washington Post account however).

As reported by Shankar Vendantam in today's Washington Post a new study by economist Rick Nevin suggests that reductions in lead exposure starting in the 1980s closely tracks the locations and temporal pattern of crime reductions in the 1990s. Lead has a documented clinical effect on the brain linked to violence and impulse-control problems. Now Nevin shows that in two very different cycles Americans have been exposed to lead, followed by increases in violent crime, and then by violence reductions after the input of lead to the environment is reduced. The first took place in the early years of the 20th century through the introduction of lead in household paint. The second was automobile based in the post-World War II era. The model suggests that young kids exposed to lead produce higher levels of violence when they age into their crime-prone years. Reducing lead leads to reductions 10 or fifteen years later.

Nevin also has a nice explanation for currently spiking homicide rates in some cities (despite the continued absence of lead from gasoline). Most of this crime, he argues, is being produced by aging recidivists who grew up before lead reductions. That means that our current criminal justice policies, especially heavy use of prisons and barriers to re-entry for ex-prisoners, is itself a major sustainer of violence.

If the best way to govern problems like violent crimes actually lie far from criminal justice, in fields like the environment, it is likely to be even more true of problems like drug addiction, homelessness, and indiscipline in schools.

Friday, July 6, 2007

Reefer Madness

How obsessed with marijuana is this country? Consider the details in a recent SF Chronicle article reporting on a recent study of civil penalties triggered by marijuana conducted by the Center for Cognitive Liberty and Ethics.

“Smoke a joint in Alabama or Oregon, and you can permanently lose the right to adopt a child. Smoke one in Oklahoma, and you're ineligible ever to be a foster parent. Light up in Utah, and get a lifelong eviction notice from public housing.
“Grow a marijuana plant in any one of a dozen states, including California, and you're permanently barred from receiving welfare or food stamps.
“Those laws and others are detailed in the first nationwide study of the consequences of marijuana convictions, in areas ranging from family life to voting and jury service. Researchers headed by a Northern California lawyer said they had found a hodgepodge of state and federal restrictions that seemed to conflict with the overall trend of reduced criminal penalties for pot.”

Other findings included:

-- Possession of marijuana can result in ineligibility to become an adoptive parent in 38 states, and a lifetime ban in seven states. California is not among them.
Twenty states, though not California, allow their agencies to deny professional and occupational licenses to anyone convicted of a marijuana-related misdemeanor, regardless of whether it had any connection to the person's work.
-- Most states make people with any marijuana conviction ineligible for publicly subsidized housing for a certain period, usually at least three years. California is one of only four states with no such restriction. A separate federal law allows public housing tenants to be evicted for any drug-related activity, on or off the premises, by any resident or guest.
-- A 1998 law bars federal grants and loans to any student with a drug conviction. In addition, 28 states, though not California, withhold state financial aid from students with drug convictions, including marijuana possession.
-- In 21 states and the District of Columbia, a conviction for marijuana possession can result in a driver's license suspension for at least six months. California is not among them, but the state suspends a driver's license for up to three years for driving under the influence of drugs or committing a drug crime that involved a motor vehicle. Minors convicted of any drug crime in California lose their license for at least a year.
-- In six states, people convicted of marijuana cultivation and other felonies can be banned from voting for life. In 23 states, including California, and the District of Columbia, drug felons are barred from jury service for life.

The Soft End

A particularly ugly corner of California's on-going correctional health care scandal emerged in the New York Times this morning in a story by Solomon Moore that leads the National Report (read it). In one example, a pregnant prisoner was ignored when she reported to the staff that her fetus had stopped moving. The pregnancy ended in still-birth. The blinding head aches and nausea of a five year old were ignored for six weeks before a hospital visit was permitted and produced a diagnosis of brain cancer. These horror stories involving kids are emerging from a privately managed alternative custody center in San Diego where some mothers of young children are permitted to serve their prison sentences as an alternative to the state's traditional prisons. The women, mostly convicted of drug crimes, live with their young children.

The goal of placing women prisoners with children in custody facilities close to the urban communities where most of them come from has been at the forefront of Governor Schwarzenegger's plans for reforming the state's troubled prison system, and would be supported by many criminologists. But as the troubles reported in San Diego suggest, even the soft end of our harsh penal system comes with systematic cruelty and exposure to terrible risks that we normally do not expect from American government, least of all toward very young children.

It is tempting to try to roll back mass imprisonment by supporting alternative custody strategies and other ways of protecting people from the the worst consequences of incarceration. But as these glimpses from what is the "soft end" of our penal apparatus remind us, the consequences of being governed through crime remain alarmingly severe even for those lucky enough to qualify for an "alternative." Even diversion to new problem-solving courts for drug or mental health treatment, clearly the best news out of the criminal justice system in recent years, leaves people vulnerable to failure and reinstatement of criminal charges and eventual incarceration.

The only solution is to protect people on the front end from being defined as criminals for purposes of being governed at all. That means legalizing drugs and rolling back much of the apparatus of preventive criminalization accumulated over the course of the 20th century. To do so we will have to convince Americans that there are other ways to govern real problems like addiction and mental illness.

Crime Families

The family used to be a kind of quasi autonomous jurisdiction from the criminal law. That had its dark side, especially the virtual immunity accorded men engaged in domestic violence against their women and children. On the positive side it meant that parents could exercise some discretion in introducing their teenage children to responsible drinking (rather then waiting for them to discover it at college binge parties). No longer. In the age of Governing through Crime the family is increasingly seen as a danger zone requiring ever more direct police and prosecutorial control. Whereas my mom would allow my high school friends and I to consume modest amounts of alcohol (and pot) in her apartment, today's parents face fines and even jail time for hosting an underage drinking party. According to a recent story in the Washington Post, one parent drew 27 months in Virginia for that crime.

Wednesday, July 4, 2007

Giuliani Watch: Zero Tolerance on the Border

No member of the current posse of presidential candidates has quite as much "Governing through Crime" under his or her belt than former New York mayor Rudolph Giuliani. During his two terms in that office, Giuliani closely associated himself with tough enforcement of the criminal code against squeegee men, young loiterers and other categories of feared residents. Giuliani also claims credit for the dramatic crime reductions that New York City experienced in that period (although better police management deserves much of the credit according to Frank Zimring)

Like George Bush, Giuliani has shown a particular penchant for working the associations between crime and terrorism (even while denying that the war on terror should be limited by the rules of criminal procedure). His latest statements, made ironically while touring devastation from the failed canals in New Orleans, suggest that security from terrorism requires zero tolerance toward illegal immigration.

According to an A.P. story published in the Sacramento Bee (read here)

"We need to end illegal immigration," he said. "If we do, a lot of things can happen, in terms of how you resolve everything here. But if you don't end illegal immigration, almost nothing is possible, because no matter what you do, things are going to get worse."

Giuliani is proposing "tamper-proof" ID cards and a database that would track people in the United States from foreign countries. He also suggested strengthening enforcement at border crossings.

No doubt terrorists might be able to exploit the same pathways that millions of undocumented workers have taken to cross into the US from Mexico (and perhaps Canada), but it is curious that virtually no such terrorists have been identified who arrived here that way, while all 19 of the 9/11 hijackers, and virtually all of those arrested for terrorism in the United Kingdom entered the respective countries legally.

Tuesday, July 3, 2007

The Governor and the Prisoner: Do you Fear This Man?

Governor Schwarzenegger is our first governor in decades to acknowledge that California's behemoth prison system is out of control, but even he refuses to acknowledge the central role that governors play (including this one) in keeping those prisons full and growing. Since the early 1980s, California's governors have positioned themselves as the keepers of the crypt, locking up as many criminals as possible, for as long as possible, all in order to keep California's law abiding citizens as safe as possible.

The distinctive role of governors in this process is well documented by the way lifer's receive parole in California. If you are convicted of Second Degree Murder in California (essentially a deliberate or reckless killing that is not premeditated or carried out in the course of a felony crime) you are sentenced to life in prison, subject to parole after a minimum number of years (like 15). For much of the 20th century that parole decision was made by an administrative agency. In 1988, by virtue of ballot initiative, the decisions of the parole board was made subject to review and final decision by the governor. Since that time the number of lifers paroled has dropped to nearly zero. The parole board is generally composed of former law enforcement officials little disposed to sympathize with prisoners, but even their cautious approach to parole has been too lenient for most governors who have declined to parole all but a few of the prisoners recommended to them by their own parole boards.

To his credit, Governor Schwarzenegger has been more open to parole than any of his recent predecessors (especially Democrat Gray Davis). But even this Governor has routinely opted to deny parole recommendations; succumbing to the same reflex response of our recent leaders to act against even the most marginal conceivable risk if its marked as a risk of violent crime. Paradoxically this reflex also constrains the Governor's ability to advance solutions to serious risks like the loss of middle class jobs and the growing ranks of uninsured people in California.

Soon Governor Schwarzenegger will once again have an opportunity to consider parole for California's oldest prisoner, 95 year old John Rodriguez who was sentenced to 15 years to life for murdering his wife in 1975 (read the LA Times profile).

Most people who want to reduce prison populations begin with drug offenders and other non-violent criminals. But it is really the fear of violent crime, especially murder, that drives even the harsh treatment of drug crimes. If even a 95-year-old-murderer, who has served more than 25 years in prison (plenty of time to account for the seriousness of his act), poses too much of a risk, there is little hope of clearing our prisons of the bulk of non-violent offenders whose property or drug crimes link them in popular consciousness to the risk of more serious crime. (This is the fallacy behind the argument I mostly sympathize with that we should reserve prison for "those we fear." It is usually offered to encourage less prison use, but in the age of Governing through Crime, fear reaches too far to be an effective limiting principle.)

In Rodriguez's latest trip before the parole board even the prosecutor conceded that "he could not see Rodriguez as a threat to society and said he would defer to the board's decision." But the California Governor's mansion has become a prison of public fear. Each parole decision an act of political will that must take into account every citizen as a potential victim in the state (perhaps we should have a popular ballot initiative on every parole decision). So write or email Governor Schwarzenegger and let him know whether you fear this man?

Monday, July 2, 2007

Democrats and the Language of Governing through Crime

While President Bush's grant of clemency to Louis Scooter Libby this afternoon is execrable because of his record of denying such relief to many more worthy claims by federal prisoners. A range of condemnation should and will rain down his head. But at the outset of what is likely to be a news-cycle or two such condemnation, let us take note of the very first words of House Speaker Nancy Pelosi, our leading model of what a more liberal Democratic government might lead America toward, and observe they are right from the "governing through crime" hymnal (read the entire NYT story):

The House speaker, Nancy Pelosi of California, said the decision showed Mr. Bush “condones criminal conduct,”

I've been saying for sometime that we cannot look to the Democratic Party to lead us out of Governing through Crime. Indeed, I'm not even convinced Democrats represent the more changeable of the two parties on crime.