Property Rights As a Limit to Governing through Crime

In its recent opinion striking down aspects of Georgia's harsh law forbidding registered sex offenders from living within 1,000 feet of a school, church, or any one of a number of enumerated functions thought to attract children, the Georgia Supreme Court did not invoke the prohibition on cruel and unusual punishments, or even due process. Instead, the opinion by Justice Carol Hunstein emphasized property rights, citing the Supreme Court's recent regulatory takings case and suggesting that the Georgia law creates just such a taking.

The opinion in MANN V. DEPARTMENT OF CORRECTIONS (S07A1043) held that Mann has a substantial property interest in the home he had purchased with his wife. Since the home complied with the 1,000 foot rule when they purchases it, Mann had sought to comply with the law. By criminalizing him for subsequent decisions by others to locate child oriented functions nearby, the law made Mann subject to the whims of his neighbors and perhaps deliberate efforts to run him out of the area (noting that addresses are available through the registry). In terms that remind us why property rights are part of the American vision of equality, Justice Hunstein wrote:

All of society benefits from the protection of minors, yet registered sex offenders alone bear the burden of the particular type of protection provided by the residency restriction in OCGA § 42-1-15 (a). No burden is placed on third parties to aid in providing

Justice Hunstein's opinion is a reminder to those of us looking for a way out of the culture of fear and control that resources for resistance and change lie to the right as well as the left.

Murder Cards: The Crime we Fear, the Criminals we Jail

SAN DIEGO -- The next time inmates play cards in county jail, they may have a pair of murders or a straight of victims looking up at them.

New card decks unveiled Tuesday will be made available to inmates in seven jails and depict 52 unsolved murders. Some of the cold-case cards will show a murder victim along with a description of the crime, while others will have the faces of fugitives on them.

The hope is that inmates can provide information about the unsolved cases and will call a toll-free number linking them to Crime Stoppers....

AP, SACBEE

The cards may be good policing, but they also reflect the uncanny twinning of the worst crimes and the pettiest criminals that characterizes so much of American criminal justice. To be blunt, we fear murderers and we lock up Laurel and Hardy. Jails in America are crammed. Some are awaiting trial for felony offenses, but many are there for a wide variety of relatively minor crimes from driving under the influence (which means being over a chemical blood test limit, not a behavioral degree of intoxication), fighting with their parents (lots of teenage girls end up in jail now for domestic violence after striking their mothers), and of course marijuana possession.

The linkage between the two, murder and mundane misbehavior, is a network of laws that has made penalties tougher for minor crimes on the theory that they are causally related to major crimes. (That theory is epitomized by the Broken Windows policing approach, but is much broader and began much earlier).

The cards, by the way, do generate tips (actually jails are factories of tips to the police, not all of them accurate). But solving serious crimes by focusing on minor offenses is generally an expensive and ineffective idea that has helped make America less free without making it more secure.

Dare to say No to DARE

Sign of the times? According to Linda Saslow's reporting in the NYTimes school district in Suffolk County New York has announced that it plans to replace its current curriculum based on DARE, for Drug Resistance and Awareness Training, in favor of a more comprehensive health and safety curriculum. DARE, a crime oriented approach to health education in which police officers present curriculum about drugs, alcohol, tobacco and peer influences, was relentlessly promoted by the federal government for decades.

In 2002 a National Academy of Sciences committee assessed the empirical record and found that there was no evidence DARE education improved drug or educational outcomes. In a powerful demonstration of the grip that crime has on our imagination of schools (and everything else), the major response to the study was to try and reinvent the curriculum rather then question its crime and police centered approach.

In calling for a more comprehensive view of health and safety, Suffolk County authorities are helping to shift the knowledge context for parents and students away from America's obsessive focus on crime.

Mayors and Murder: Michael Nutter Takes the Helm in Philadelphia

"The streets are safe in Philadelphia -- it's only the people that make them unsafe." Frank Rizzo

The surprising come from behind candidacy of Michael Nutter, Philadephia's mayor-elect, is a potent reminder that long before the war on terror (and existing on a more primal stage of our political unconscious) the war on crime had reshaped American politics and especially the role of the executive as crime leader. Nutter,formerly a city council representative, won the crucial Democratic primary last spring after coming from the back of a five candidate pack and went on to win the general election this month by a record setting landslide of 86 percent. According to Ian Urbina's reporting in the NYTimes, Nutter's campaign took off after he began promising a crack down in gun violence and specifically to declare certain neighborhoods to be in a "state of emergency" permitting street closures and curfews to be imposed. He also promised a "stop and frisk" strategy to use police to find guns on young men. (Interestingly the wiki-pedia entry on Nutter hardly mentions crime).

For the first election cycle in several, a spike in homicides, including the deaths of police officers, made murder a central problem through which Philadelphian's imagined their future. Not only does fear of violence have a remarkable way of concentrating the imagination of citizens (to paraphrase Oliver Wendell Holme's famous quip about hanging)but long before Dick Cheney occupied the Vice President's house in Washington, crime fighting mayors and police chiefs (or both) had ceased the mantle of emergency rule to promise aggressive plans to police city streets.

Like Corey Booker in Newark [see an earlier post], and City Attorney Dennis Herrera in San Francisco [see my earlier post], Mayor Nutter has discovered that violent crime can be like steroids for building political muscle. But as Nutter, a council member who once specialized in issues of property and redevelopment, surely knows, muscle backed fists are poor tools for governing the complex fiscal dilemmas of major cities. All can hope that the spikes in violence which began before, or at least early in, their terms, will turn down (as the laws of statistics suggest they will) on their watch. But they can also keep going up.

The particular tactics embraced by Nutter, neighborhood states of emergency and stop and frisk policing are different but they both share an important truth, violent crime almost always has its origins in locally anchored disputes among individuals and small networks of peers who are known to each other and to others. This truth suggests that mayors and police almost always in a better position to address violent crime than governors, state legislatures, let alone national politicians.

But local problems require solutions crafted to local conditions and both of these tactics are off the shelf of nationally promoted crime prevention strategies (with the talent available in Philadelphia between Penn and Temple alone, Nutter could do better). If forced to choose between the two, I'd put my money on "stop and frisk." pol Declaring states of emergency in narrowly defined sections of the city is a highly symbolic gesture, marked by closing streets and issuing dramatic court orders against gang members, but as a practical matter has little likelihood of bringing down violence rates. Young men with guns aren't stupid and they aren't compelled to remain in the designated crack down zones. Look for gun play to spill over into other neighborhoods if this is relied on.

Stop and frisk is really nothing more or less than the practice of preventive policing. Rather than responding to citizen requests (911 calls), police patrol areas where they expect potential homicide victims and perpetrators to be gathering. When they encounter individuals that they believe may be involved in crimes (past, present or future) police may "stop" them for a brief period of questions. If they have a reasonable belief that the person may be carrying a gun (or any weapon that could be used against them), the police may "frisk" the suspect, passing their hands over their outer-clothing, but in a manner calculated to feel any weapons in or under those clothes. Stop and frisk may reduce violence by discouraging young men in high crime areas (who are the most likely to be subjected to this technique) from carrying guns during their trips through the city. Just making the guns less available can reduce the number of occasions where situational disputes lead to violence.

On the other hand, stop and frisk can exacerbate the mistrust that may already exist in Philadephia's poor neighborhoods. If it is seen as racial profiling, stop and frisk may backfire, even on an African American Mayor.

Supreme Court Battle Over Gun Rights:Crime will be the argument on both sides!

Linda Greenhouse delivers up a fascinating overview of the gun rights case that is likely to be among the most awaited of this term's Supreme Court docket (read her analysis here). The case presents the gun debate in its most iconic form since the DC law at issue, which dates back to 1976, bars gun ownership anywhere in the District, including in a private home. If the Supreme Court strikes the law down they will break new ground by holding that the 2nd Amendment creates a personal right to possess fire-arms. Such a decision will open up many questions to keep lawyers busy in terms of the standard by which regulations short of prohibition must be judged.

The case will also give the country a chance to talk about gun-control during a Presidential election and in the midst of an alarming surge in violence in many large cities after more than a decade of dramatic declines in crime (see my colleague Frank Zimring's definitive book on the topic).

It is an equally good time to note that both sides in this long running culture war are highly motivated by fear of crime and both gun control and gun rights belong to what I have called "Governing through Crime." The gun control advocates will argue that DC's city council was well motivated to respond to an epoch plague of gun violence which was (and is again) threatening the vitality of American cities. Gun rights advocates will argue that DC's high crime rate and poor police success at clearing homicides, warrants permitting citizens to defend themselves (at least in the sanctity of their homes). With fear of crime driving both sides of the debates, expect any decision to set off further alarms about crime.

Death States: Will New Jersey Abolish the Death Penalty

It remains one of the most decisive political turns in American history. In the 1972 case of Furman v. Georgia, the US Supreme Court struck down all existing death penalties, while leaving the door open to the possibility that better drafted statutes might be upheld. By the time the Court considered a host of new statutes in the 1976 case of Gregg v. Georgia, thirty five states had re-enacted the death penalty and scores of individuals were already on death row (following years of actual death sentences declining). As I argue in Governing through Crime, this come back represented the empowerment of a whole new constellation of political power at the state level, anchored around governors, attorney generals, and prosecutors.

Now, for the first time since this new constellation was formed more than thirty years ago, a state is moving toward repealing its death penalty. According to the reporting of Jeremy W. Peters in the NYTimes, a bill that would do just that has come out of a Senate Committee and is on track to be considered by both houses. The reasons are not hard to understand. Like other states outside the death belt, New Jersey has found capital punishment to be very expensive and very difficult to actually execute (in fact no one has yet been executed under the revived death penalty law).

Yet even where the death penalty is moribund, renouncing the right to kill involves a huge modification of political authority (and the opportunities for politicians to act in the charged space of power it creates). Look for politicians on the margins to cease this opportunity to occupy the center of voter fears by rushing to defend the death penalty (which is never more productive politically than when under attack).

Feedlot Government: Coalinga and the Consequences of Our Fears

Our desires have consequences. For meat eaters in California that becomes evident near a place called Coalinga, where extensive cattle feedlots abut Interstate 5 which runs between LA and Northern California. Coalinga by happenstance (one assumes) is also the home to a different kind of animal storage facility, although not one you can see or smell from I5. Coalinga State Hospital, the first state mental hospital built in nearly half a century in California (a subject in itself I will blog on soon), is dedicated fully to housing a special category of California criminals that California (and other states) invented in the 1990s. Sexually violent predators, a term which has no known scientific basis, are convicted sex offenders who are civilly committed on the completion of their prison sentence on the grounds that they are mentally abnormal and a continuing danger. The programs are supposed to provide treatment, and periodic hearings are intended to prevent the state from confining people unnecessarily (being they've already served punitive prison sentences).

The problem is that only a tiny handful of people have gotten out so far, and they have found themselves celebrity monsters, chased across the landscape by television and sometimes real mobs. The result is a growing new sector of California's mass incarceration government. It may not churn the stomach as much as the feedlot's you see from I5. But as a recent story by Scott Gold and Lee Romney of the LA Times suggests, human feedlots produce their own kind of disgust.

Two years after California opened the nation's largest facility designed to house and treat men who have been declared sexually violent predators, Coalinga State Hospital is described by both patients and staff as an institution in turmoil.
Convinced that they stand little chance of being released and angry about perceived deficiencies at the hospital, patients are engaged in a tense standoff with administrators, according to interviews with more than 40 patients and staff members.

Almost all of the detainees at Coalinga have served time for serious sexual offenses. But instead of being released after completing their sentences, they were transferred to the state hospital system under a 1995 law that allows the state to declare certain high-risk sex offenders mentally ill and commit them to psychiatric facilities.
Detaining someone under the law is constitutional provided that the patient receives treatment. But today, significant treatment at Coalinga is rare. Administrators acknowledge that three-quarters of the hospital's 600-plus detainees refuse to participate in a core treatment program, undermining a central piece of the $388-million hospital's mission.

Some patients have also declined to eat for days at a time to protest alleged inadequacies in psychiatric and medical care as well as less important issues, including limited access to phones. Many have boycotted educational and improvement programs that include anger management workshops, computer training and Spanish classes -- a protest known inside the hospital as a "strike."

A severe staff shortage has further impeded treatment, patients and staff members say. As of last week, 26 of the hospital's 37 budgeted staff psychiatrist positions were vacant. On many wards, hospital police officers fill roles assumed by clinicians at other hospitals.
"We're calling it the Titanic State Hospital," said a psychiatric technician who, like most other current employees, spoke on condition of anonymity, fearing reprisal from administrators. "We've lost control. I've been saying for a couple of months now that the monkeys are running the circus."
Coalinga opened in September 2005 amid promises of a new era, both in protecting the public and in treating sex offenders. Even empty, the facility stood out; its sleek architecture and tidy topiaries presenting a jarring contrast to the tumbleweeds and dust devils that dominate the surrounding landscape.

But the operation of Coalinga -- the only mental hospital built in California in half a century -- was never going to be effortless.

Read the article by Scott Gold and Lee Romney, Los Angeles Times Staff Writers

It Rhymes with Crime: Sub "Prime" Crisis and the Crime Angle

It had to come up. If crime is the ideal against which all social problems are measured, and forms of governance imagined (more or less my thesis in Governing through Crime), it was only a matter of time before the rippling sub-prime loan crisis would be recast as a story of crime.

In one sense there is much about the sub-prime scandal which invokes crime, especially the highly premeditated strategies employed by many in the loan supply chain to manipulate the rules in order to enrich their personal bottom line (while exposing unsophisticated consumers to high risks of financial ruin). But the preferred crime story in America emphasizes poor people and minorities involved in street crimes, not educated professionals involved in "suite crimes."

Thus MSNBC's coverage:

Eighty-five bungalows dot the cul-de-sac that joins West Ontario Avenue and East Ontario Avenue in Atlanta. Twenty-two are vacant, victims of mortgage fraud and foreclosure. Now house fires, prostitution, vandals and burglaries terrorize the residents left in this historic neighborhood called Westview Village.

Squalor, crime follow wave of foreclosures, MSNBC.COM

(thanks to Keith Hiatt for calling this to my attention)

Governing through Crime Italian Style

A terrible crime against a vulnerable victim generates massive media coverage. When the suspect turns out to be a foreigner, part of an immigration flow from a bordering country drawn by the relatively high wages and labor needs at the bottom of the pyramid, politicians at all levels rush to assure the public by promises of crackdowns against dangerous members of this suspect class.

Its an all too familiar story in America over the last several decades, only its playing out in Italy. The arrest of a Romanian suspect in the murder and molestation of an Italian woman last week led to a great deal of public turmoil about immigration and crime. The Center-Left government of Romano Prodi responded by authorizing municipalities to deport immigrants they considered dangerous (apparently with no hearing of any sort). As many as three dozen were deported. The government maintains it will resist calls from the right for mass deportation.

Read the reporting of Ian Fisher in the November 8th edition of the NYTimes

Giuliani Watch: America's Tough Guy

No politician today better embodies the vision of the chief executive as crime fighter shaped by the war on crime than Rudolph Giuliani. This is why it does not matter whether crime drops out of the news to be replaced by terrorism or Iran's nukes. It is the mentality of governing, the ways of thinking and feeling projected by the leader that originate in the war against crime but carry over into governing generally.

While most of our recent Presidents have embodied the same crime mentality (consider Texas Governor George W Bush) the current group of candidates in both parties is remarkably thin in politicians who project this style of leadership well. That is why in my view, Guiuliani has a better than even chance of being our next president despite his very clear "problems"

Consider Rudy on the campaign trail as covered by Peter Wallsten in the Los Angeles Times:

A 9-year-old girl, afraid of another attack like the one on Sept. 11, sparked a finger-waving lecture at another point in the day from Giuliani, who said that Democrats were afraid to use the term "Islamic terrorism." "You have to face your enemy," he told the third-grader, Kailey Lemieux.

Other politicians might have expressed empathy, or drawn voters into deeper conversation, or lightened the talk of violence around elementary school children. But not the former New York mayor. With his intense demeanor and aggressive policy stances -- such as pledging to "prevent" Iran from gaining a nuclear weapon or to "set them back five or 10 years" -- Giuliani has methodically built an image as the toughest guy on the block, unafraid of looking belligerent in the cause of keeping America safe.

Read the whole story

Governing Fire through Crime

The predictable focus on arson as the prime governmental issue in California's deadly wildfires this fall continued last week with Governor Schwarzenegger issuing the following statement on the fires:

10/27/2007 - Governor Arnold Schwarzenegger today reinforced the state and
law enforcement’s strong commitment to capturing the criminals responsible
for intentionally setting at least two of the devastating southern
California fires. The Governor also discussed further actions the state is
taking to protect southern California fire victims by helping to ensure
that they are not taken advantage of during the rebuilding and recovery
process.



“We already know at least two of the fires were started intentionally and
two more have suspicious origins. I want everyone to understand that we
are working with local and federal authorities to hunt down the people
responsible, arrest them and prosecute them to the full extent of the law.
And believe me, we will not fail,” said Governor Schwarzenegger.



Earlier this week, the Governor announced a $50,000 reward for information
leading toward the arrest and conviction in a California court of the
person or persons responsible for setting the Santiago Fire. In addition,
the FBI and ATF each contributed $50,000 and KFI Radio added $100,000.



In reiterating the state and law enforcement’s strong commitment to
catching the responsible parties, the Governor said that California is too
vulnerable to catastrophic fires to be anything less than super-vigilant
when it comes to going after arsonists.



To assist the victims in recovering from the devastation that these fires
caused, the Governor also discussed further actions the state is taking to
protect them during the recovery process. During a meeting the Governor
convened with state officials yesterday to discuss the state’s next steps,
the Governor said he would have no tolerance for price gougers or shady
contractors while all efforts are focused on putting southern California
back together.



“We are also going after the scam artists and price gougers, the insurance
claims adjuster rip-offs and shady contractors and anyone else who preys
on people hurt by these fires. We are as serious about protecting people
from cheats and criminals as we are about protecting them from fire,” said
Governor Schwarzenegger. “If anyone tries to exploit this tragedy, I will
make sure the state of California does everything in its power so they
regret it for a very long time.”

(read the Gov's full statement)

As I pointed out in a post several days ago, there is no reason to believe that even the most aggressive criminal enforcement against arson will do much to address the annual threat of wildfires which are far more often the result of accidents like sparks from a welding torch or power lines blown down in the very high winds that often accompany severe fire weather. Of course we can decide to punish the negligent or even hold power companies strictly liable and send their CEOs to prison. That may make us feel better. It won't make us safer.

War on Terror = War on Crime

When I talk to people about my book Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (Oxford 2007), lots of people shake their head in agreement but tell me, "that was sure true of the '80s and '90s, but its all war on terror now."

That would be true if it wasn't so very clear that for most American political leaders the war on terror has largely been a direct extension of the political categories and rationalities produced by the war on crime whether evil doing criminals, innocent victims, uncompromisable executive leadership, and emotional law making.

Consider the way the Republican Presidential contenders project themselves as terrorism fighters as summarized by Marco Santora in today's NYTimes.

A central tenet of every leading Republican candidate’s campaign for president is one simple and powerful idea: I alone can best defend the United States from the threat of terrorism.
And in recent weeks, three candidates, Rudolph W. Giuliani, Mitt Romney and Fred D. Thompson, have embraced some of the more controversial policies on the treatment of those suspected of supporting terrorism, backing harsh interrogation methods and refusing to rule out the use of waterboarding, a simulated drowning technique, on detainees.

Their public statements came as the debate over whether waterboarding is torture had threatened to derail the nomination of Michael B. Mukasey as attorney general after he refused to call the technique illegal.

Not only do the three candidates refuse to rule out waterboarding and other techniques that have been condemned, but they also believe the American prison at Guantánamo Bay, Cuba, needs to remain open, and they back the practice of extraordinary rendition, in which terrorism suspects are sent for questioning to other countries, including some accused of torture.

Mr. Giuliani often frames the threat of terrorism in graphically personal terms, telling crowds that Islamic extremists “hate you” and want to come to the United States and “kill you.” In that vein, he has been perhaps the most forceful in suggesting that the president must be able to take extraordinary steps to combat terrorist threats.

In an interview yesterday with Albert R. Hunt on Bloomberg TV, Mr. Giuliani said: “Now, intensive questioning works. If I didn’t use intensive questioning, there would be a lot of Mafia guys running around New York right now and crime would be a lot higher in New York than it is. Intensive questioning has to be used. Torture should not be used. The line between the two is a difficult one.”

As Mr. Romney was preparing for his presidential bid, he visited Guantánamo Bay in the spring of 2006 and said he “came away with no concerns with regards to the fair and appropriate treating of these individuals.” In the May debate, Mr. Romney said he would “double Guantánamo.”

Read the story

The Fire This Time

As California fire fighters continued fighting to put out the final bits of the terrible fire season of '07, prosecutors in LA grappled with whether to bring criminal charges against a 10 year old whose admitted playing with matches apparently started one of the major blazes last month. Another option is to hit the parents with a massive civil suit for the millions of dollars the fire consumed (although since they lived in a trailer on a ranch its not likely they are loaded). According to the reporting of Jean-Paul Renaud, Andrew Blankstein and Megan Garvey, in the Los Angeles Times, fire officials think charges against a 10 year old are unlikely, but in Orange County, a twelve year old has been arrested for an October 22nd blaze.

The fact that criminal charges against children would be pending for these fires shows how much fear of crime has twisted the way Americans think about risk. Arson ranks in the top 3 or 4 causes of California's wild fires, and clearly deserves criminal punishment when committed by people capable of criminal responsibility, but does anyone who lives near the reach of wildfire (and that includes me, although this year early rains brought an early end to the Northern California fire season) believe that they could stop worrying if 100 percent of arson could be deterred? (Let alone the far smaller percentage than could actually be deterred). Most such fires are set by accidents, sparks from welding, a badly put out cigarette, or by downed electrical lines (perhaps we can prosecute some of those people for criminal negligence or just invent a new strict liability crime). Most essentially, wildfire is a natural feature of the California landscape that development has largely overlooked.

The fact that from the beginning of this fall's major wildfires, press reports focused on the question of arson, is a demonstration of how much crime grips our imagination of disaster. Just as in the coverage of the flooding of New Orleans in the wake of Hurricane Katrina, the California wildfires confront us with a terrifying new kind of threat the combines natural and social disaster to produce potential catastrophes. Trying to fathom this staggering threat to all of our futures, the American collective eye seizes upon the familiar figure of the criminal as the central pivot around which to frame disaster.

But what Katrina and the southern California fires challenge us to do is make major reinvestment in infrastructure and undertake far more vigorous governance of land use in our metropolitan areas. But such steps require the confidence in government and the social trust that fear of crime erodes.

What do you get from mass incarceration? Staph

Correctional officers at Folsom State Prison here in California were hospitalized recently. The culprit wasn't a prisoner, it was Staphylococcus aureus, sometimes called "staph," typically a relatively minor infection (although I've always had bad experiences with it) but buffed up into a life threatening virus in the conditions of California's catastrophically overcrowded prisons (Folsom has 4,000 inmates in a complex "designed" for half that number).

The incident was brought before California's Division of Occupational Safety and Health (CalOSHA) by the correctional officers' union (CCPOA)on behalf of the stricken officers and yesterday the agency fined the Department of Corrections and Rehabilitation $21,000 according to Judy Lin's reporting in the SacBee.

The ruling is yet another measure of the prison's system deepening crisis. The crisis and the lawsuits that have brought the crises to the public attention have exposed a different side of mass imprisonment. The point of prison may be punishment (at least California law says so), but it is ultimately the government of human beings that is involved. When a population is herded together with virtually no thought to its human needs what follows is at best a human rights disaster and at worst the start of biological catastrophes that can threaten the general population (both prisoners and correctional officers come home).