Capital Punishment Moratoriums and the Politics of Death

The Supreme Court's last minute stay of Mississippi execution yesterday marks the beginning of a moratorium on capital punishment in the U.S. that will last at least until the Court decides a case on lethal injection that it accepted this fall and will hear argument on in January. (Read Linda Greenhouse's reporting). The Court is being asked to decide how lower courts should proceed in considering whether the current method of lethal injection violates the Constitution's ban on "cruel and unusual punishment."

The stay, which could last until summer (the Supreme Court usually resolves all pending matters prior to ending its term in June) or longer, is unlikely to result in a permanent obstacle to executions. Unlike the Supreme Court's moratorium in the early 1970s, the Court is not considering fundamental challenges to whether the death penalty is constitutional. Even if the current method of lethal injection is found wanting, it is likely that some altered method will ultimately prove acceptable.

Still, moratoriums are interesting things. Two quick predictions about the impact of this one. First the utopian hope. The American death penalty is a bizarre creature. In most states where it exists, it is an expensive and incredibly lengthy legal process that only rarely result in an execution. No one, not even its supporters, really believe that capital punishment is indispensalbe thinks (unlike prisons which as Frank Zimring points out in his book The Contradictions of American Capital Punishment, few can imagine dispensing with altogether). The rate of Americans sentenced to death has declined in recent years as have actual executions (reasons are unclear). In such a situation, it is always possible that once it stops, this complicated and unnecessary machinery will never start again (Keine Chara! as my Bubbie would have said).

The second scenario is more likely. As I explore in Chapter 2 of Governing through Crime, the death penalty has been a boon to state politicians, especially governors who have been able to turn judicial obstacles to executions into opportunities to demonstrate their own loyalty to the public's darkest fears of crime. In short, look for governors in the affected states to blame the courts for favoring the interests of murderers over victims. The posture of this case which focuses on the suffering of inmates undergoing execution is particularly felicitous for this kind of politics. Courts, with their deliberation and formality inevitably seem out of line with the emotional logics unleashed by violent crime and its consequences.

"Once you execute someone, you can’t unexecute him,”

As always, the limits of sovereign power are on display in the US nation building experiment in Iraq. The execution of Saddam Hussein last January marked a major assertion of sovereignty by the troubled Shi'ite led government of the Green Zone. Now according to reporting by RICHARD A. OPPEL Jr. and ALISSA J. RUBIN in today's New York Times, a new round of executions of regime officials is on hold as Iraqi and American leaders worry out the implications of forceful execution or mercy. In its role as a tool of sovereignty making the death penalty is inevitably double edged, especially in a civil war situation. You become the King when you can execute rebellious barons (Friedrich III, Hapsburg emperor in the 15th century is a good example). The ability to reduce the former wielders of state power to lifeless bodies is as clear a demonstration of a revolutionary passing of power from one sovereign vehicle (the Baath party) to another (the government of Iraq).

At the same time, the killing of a leader respected by large portions (albeit a minority) or the population, and in violation of norms associated with military surrender is a dangerous thing. It can lead the aggrieved minority to view its differences with the state as irreconcilable (a good example is the hatred of the Cuban government among exiles stoked by the early wave of executions following the success of Castro's revolutionaries). An act of well timed mercy, in contrast, may provide the cultural cover for a reconciliation.

State building needs sovereignty (which capital punishment can provide at a high price) but it needs so much more than sovereignty. As an American military officer was quoted by the Times: "once you execute someone, you can't unexecute them."

Stop Them Before they Legislate Again: California's Lock-em-Up Couple Goes Back to the Ballot

As California prisons continue into a second year of state of emergency with nearly twice as many prisoners as spaces (even with the most optimistic design specs) and a chronic medical care collapse which causes at least one unnecessary death a week, some California law makers are busy at work making sure even more Californian's go to prison for longer.

According to the reporting of Patrick McGreevey in the LA Times, the husband and wife legislative team of Geoorge and Sharon Runner, who brought us the panoply of expensive and draconian sex offender policies called Jessica's Law has now teemed up with the father of the Three Strikes law to bring yet another crack down initiative to the ballot.

The new initiative, dubbed "The Safe Neighborhoods Act: Protect Crime Victims, Stop Gangs and Thugs" would target gang members and do more to lash California's budget to spending on crime. It has also been endorsed by LA County Sheriff Lee Baca and other law enforcement leaders. Some of the provisions include:

* Creating a nine-member Early Intervention and Rehabilitation Commission to evaluate and make recommendations on existing and future gang-reduction programs.

* Increasing by 10 years the sentence given convicted felons caught with guns.

* Requiring that convicted gang offenders register with local law enforcement each year for five years after conviction or their release from custody.

* Allowing admission of sworn statements by gang crime witnesses who have died or who are unavailable to testify at the time of prosecution because of intimidation.

* Increasing penalties for individuals who provide contraband to gang members in prison.

* Authorizing the seizure of cars in which a gun is found that was used during the commission of a crime by the registered owner.

* Prohibiting bail for illegal immigrants charged with violent gang crimes.

Gangs are the preferred target for crime warriors because they provide a fits all explanation for urban violence and offer abundant racial stereotypes around which to hang satisfying terms like "thugs." Law enforcement loves gangs because it gives them something that looks like an army to have their crime war against. Legislators like the Runners love them, because they provide the perfect enemy to focus a distracted public on.

The only problem is that prison itself is the biggest gang producing institution in the state of California and this law will only guarantee more people get sent to prison, more often, and for longer. In the meantime, the intensely local relations and problems that lead to most youth violence will continue to go unaddressed while the Runners and their fellow crime entrepreneurs campaign on.

Prison Tycoon 3

Signs of the times? Are we a the end of the era of mass incarceration? Or, is this just the time to encourage the video slacker in your life to take up a new skill enhancing gaming thrill.

Prison Tycoon 3, A popular series of video games invites the player to try their hand at running a private prison.

Copy for the box on the latest edition:

The latest sequel to the #1 best-selling prison tycoon!

Brick by Brick and Day to Day – You’re the Man. Male or female? Civilian
or military? Build your prison for profit and manage every essential
decision.

The Devil’s in the details. From the guards you hire to the food you
serve, every choice you make will ripple throughout your prison.

Back on the chain gang. Assign prisoners work detail from cleaning and
maintenance work to back-breaking manual labor.

Throw away the key? You determine whether to release your prisoners on
parole or keep them locked down tight to protect security.

NEW! Danger Zone. Manage gangs and prisoner morale to avoid riot,s but
remember, keeping the peace in men’s and NEW women’s facilities requires
different tactics.

NEW! Contain the military’s worst offenders. It takes a unique skill set
to control the worst this nation has to offer in NEW military prisons.

Back of the Box:

Crack the Whip! Take the reigns of a privately run prison. you are
responsible for the care, custody, and control of individuals who have
been arrested. Begin with a low security prison and build it up to a
SuperMax. From construction to daily operations, you must protect society
while turning a profit. It’s time for lockdown.

Country Club or Billy Club? Manage security levels, food rations,
recreation opportunities, and much more. How tough will you be?

En Guard. Hire trust-worthy prison guards and arm them with weapons, riot
shields, and guard dogs to maintain peace and control. Keep your eye on
your budget – underpay and organized crime will run rampant in your
prison.

NEW! Watch with an eagle eye! NEW day and night gameplay allows you to
monitor all illegal activities 24/7. Keep a look out for escapees,
contraband and illegal activity.

(Thanks to Ashley Aubuchon for calling this to my attention)

Fear of Crime

In my book, Governing through Crime, I argued that over the last 4 decades of the 20th century American governments and citizens placed violent crime at the center of their fears and efforts to control risk for reasons largely unique to the US. Both federalism and the division of powers make governing hard in America and give lots of power to engaged minorities.

Now that fear of crime that seemed so distinctively America in the 20th century, seems to be spreading to other societies. Two stories in today's New York Times profiled the increasing salience of precaution against violent crime to ordinary citizen consumers in Japan and South Africa. In Japan, in the absence of much evidence that crime is really going up, designers offer women's clothing design to allow wearers to suddenly appear as if a vending machine. In South Africa, where violent gun point robberies and kidnapping have grown alarmingly common, a popular reggae star is shot to death in apparent carjacking, as he drops of his 15 year old son at the home of his brother.

What is causing so much fear of crime in Japan? American TV shows?

What is causing so much real violence in SA?

What alternatives are there to growing demands on both governments that they address violent crime?

Gov. Schwarzenegger Vetos Wrongful Conviction Measures

Question, when does a Governor not want to sign a law related to criminal justice? Answer when to it creates any new restrictions on law enforcement. So may be it is a no brainer that our sometimes independent and unpredictable Governator vetoed three bills passed by the legislature that would have enacted recommendations made by an expert commission created by the California Senate in 2004 to address the root causes of wrongful convictions in violent crime cases, such as those documented in recent years through DNA testing. Associations of police chiefs and sheriffs opposed all three measures according to Bob Egelko's reporting in the Chron.

Still its worth noting that the recommendations made by a commission that included law enforcement and prosecutors were modest and in line with most expert opinion on interrogation and other police practices to collect evidence. One measure would have required video-taping complete interrogations in violent crime cases. A step that would make it possible to determine with precision whether police used techniques that create a high risk of false confession. A second measure would have barred the use of testimony from a "jailhouse informant" unless corroborated by another witness. Such informants have powerful incentives to make up incriminating statements they attribute to the defendant. A third measure addressed ways of making sure police do not influence witnesses at line-ups and photo line-ups of suspects. In all three cases the Governor emphasized that the laws would have in some way limited the flexibility of law enforcement. But that is what law does. On that basis he might have vetoed every law enacted this last session.

Crimi-Nation

Sometimes people ask me how can crime remain so governmentally active, when people just don't seem as riled up and anxious about crime as they did say, in the 1990s, before the 9/11, and before the crime decline? But its because crime has been influential as a model problem of governance that it does not require either lots of real crime or even lots of real crime fear to reproduce a steady state salience of crime. It is always the pregnant possibility, the ready to hand frame, that can emerge or be thrown at a social problem whether the great crisis, like Hurricane Katrina flooding New Orleans, or the everyday problems of life.

Then I wake up and read the morning paper where a Pennsylvania woman is facing charges just for swearing in her own bathroom (but in ear shot of her neighbor), while instructing her daughter to bring her mop needed to deal with a toilet which was in the process of over-flowing into the kitchen. What is this country coming to?

President of Crime: Rudolph Giuliani's Quest for the White House

The Onion famously dubbed Rudulph Giuliani as a candidate for the President of 9/11, but we have suggested that what his candidacy is about more than anything else is being President of a place where crime and the potential for violence are the dominant features of reality. This is the place that most Americans before 9/11 feared that they lived (or had only barely escaped by moving to a gated community). This is the place that 9/11 seemed to all at once confirm and reframe as threatened even more by a global network of terror. Indeed it is because he understands so well the deep conflation between the America which had gradually come to reimagine itself through the problem of crime, and the America which has come into self-consciousness since 9/11 that Giluliani is such a formidable candidate.

Where can you find the most vibrantly concentrated image of America as a society in the grip (and thrall) of predatory crime? Either in the representation of urban space in the recent series of Spiderman movies, or in Giuliani's representation of the city he governed in the mid-1990s. They are both in fact the same (imaginary) place, New York City in its recent past. Consider how Giuliani describes New York in a story by Adam Nagourney about "Giuliani's New York" in today's times.

Mr. Giuliani recalls the days when, as he remembers them, a New Yorker couldn’t walk up Third Avenue without being on the lookout for muggers, of the blocks of dirty book stores and prostitutes, of public urination and pot-smoking. We accepted pornography, prostitution as just commonplace,” he said to a conservative audience in Washington last spring. “We accepted street-level drug dealing as something we couldn’t do anything about.”

“There was a tremendous amount of crime. It was the crime capital of America. It was a devastated city in many ways. It was a depressed city.”

Of course New York is also a metaphor for many of the things Giuliani hopes his Republican primary audiences will share is repulsion for, e.g., Democratic politicians, liberals, unions, etc, but among these it is crime that Giuliani returns to again and again.

It is the city he has tamed and the place where he stared down — as he tells appreciative Republicans to hearty applause — liberals, criminals, welfare recipients, big-spending City Council members and the editorial writers of The New York Times.

By focusing on the impression that New York was overwhelmed with crime (the very same picture of the city you see in the Spider fables where robbers and burglars are constantly at work beyond the eyes of the feckless police) Giuliani can indeed find an source of support for his form of rule that cuts across the conservative versus liberal divide in America. New York was indeed experiencing its highest homicide rates of the 20th century during the very early years of the 1990s. But virtually the entire extent of this violence surge was experienced by the poorest handful of precincts in the city. What you could find in Manhattan and the gentrifying districts of Brooklyn was marijuana smoking and public pan handling. Still, many liberal New Yorkers that I knew shared this Giuliani/Spiderman view of their city in the 1990s and supported his crime war on the pot smokers and squeegee men. Whether it in fact helped deepen a decline in serious and violent crime that had already begun under Mayor Dinkins but which reached epoch levels in the Giuliani years is an interesting criminological question which my colleague Frank Zimring provides the best overall analysis of in his book The Great American Crime Decline. Still, its the fact that both conservatives and liberals can nod their heads in agreement when he talks this way about crime that that makes Rudy Giuliani such a formidable candidate for the White House.

School Security: But Who is Watching?

As the latest wave of school shootings sends anxiety through parents, teachers, and school administrators, it is sobering to realize how securitized our schools already are, and how little good it apparently does. At SuccessTech, described as an "alternative" public high school in Cleveland, a 14 year old who had been suspended, entered school with a number of weapons and shot four persons (all of whom have survived their wounds) before killing himself. According to a report in the Sacramento Bee by Joe Milicia (AP), the school had 26 Closed Circuit TV cameras, metal detectors, and a guard posted at the door. Despite that, 14 year old Asa Coons was able to enter the school and go on a shooting rampage without interference. The point isn't to get more frightened about school violence (its still by far the safest place for students and teachers to be, comparing favorably to say, their homes). The point is that more security technology does not mean more security.

Three Judge Panel Takes Further Step Toward Prison Cap on California

The drama of whether and when federal courts in California will order population caps on California's super-sized and massively overcrowded prison system took another step forward yesterday. The three judge panel composed of Appeals Court Judge Stephen Reinhardt from the 9th Circuit and two District Court judges, Judge Lawrence Karlton of the ED District of California and Judge Thelton E. Henderson of the Northern District issued a seven page ruling (check here for it to be posted) that set out a briefing a trial schedule for a two part process. In phase I, the plaintiffs will have the burden of proving that a prison population cap is the least intrusive approach the courts can take in relieving the unconstitutional conditions brought on by the overcrowding. If the courts find with the plaintiffs in phase I, phase II will unfold to consider the actual form a population cap remedy might take.

The order also sets out a briefing and hearing schedule that aims to bring phase I too trial in February of 2008. Assuming the court finds that a cap is necessary, phase II should be underway by spring. With appeals however, it is hard to imagine real caps biting before 2009 begins. Keep in mind that the courts have already found that currently unconstitutional practices lead to as many as 1 unnecessary death from medical care failings every week in the system. That probably means 100 inmates will die from untreated by treatable medical problems before the caps come into play (how many prisoners have died at Guantanamo or Abu Ghraib?)

The order also makes an important determination that statutory intervenors including state legislators, county district attorneys, county sheriffs and other local criminal justice officials will be allowed to intervene as parties (giving them powers of discovery and a voice in the hearings) only during phase II. These intervenors are precisely the political actors that my book Governing through Crime describes as the most reliable and fierce defenders of a war on crime mentality (see chapter 2 on prosecutors and chapter 3 on legislators). The Prison Litigation Reform Act, a classic piece of war on crime legislation, enacted in the 1990s to hamper prison reform action by the courts, specifically empowered those kinds of actors to intervene as of right in proceedings to which a population limitation is possible outcome. This suggests that one of the express purposes of the Act was to maintain the growth of mass imprisonment in the US. In limiting the statutory intervenors to only one phase the three judge panel is opening one of the largest avenues for reversal on appeal. This might result in an immediate delay in the case if an appeal is taken to this intermediate order. But if the judges are permitted to continue with phase I, this could result in a finding that a population cap is necessary sometime early spring 08. The actual cap would be delayed as the intervenors sought discovery and other litigation rights that will slow the process. This might have the happy result of putting maximum pressure on the Governor and the California legislature to solve the problems of the system before the no longer imaginary caps are implemented, while also providing space for the nearly paralyzed California political system to work.

The order does allow one third party to participate fully in phase I. That is the CCPOA, the union of the correctional officers. The union has no statutory right to intervene, but the panel has apparently concluded that they are essential to producing a viable cap (which the union supports).

US and Iran: Drug Obsessed Theocracies?

According to a recent report from Iran's own prison chief, carried by Yahoo.com drug offenses account for the largest category of prisoners of the Islamic Republic. That would be even higher than the US where most estimates place drug offenders at 1/3 to 1/2 of current prison inmates in the US. Iran with 225 inmates for every 100,000 adult residents lags the US with more than twice that proportion of its population in either jails or prisons.

Three Times as Much

How much more money the State of California spends to run its prisons as it spends to run the UC system according to Richard C. Paddock's reporting in the LA Times. Of course UC is only the top of the larger pyramid of state supported higher education with many more students attending Cal State University campuses and community colleges. Still the two systems looked more closer in scale during the 1960s when the UC system was building its 8th campus at Santa Cruz and the Department of Corrections was operating around a dozen institutions.