Break Your Contract, Go to Prison: Governing the Workplace through Crime

In the 19th century, Parliament turned the work rules of the British railways into a penal statutes. A trainman violating work rules, could find themselves facing not just discipline, but punishment. The growing political power of workers in the late 19th and early 20th centuries gradually eroded the practice of criminalizing labor disputes, but as the power of workers has declined, and the salience of crime to governance has gone up, governing through crime is becoming a more common way to exercise workplace power (see Chapter 8 of my book).

A recent example comes from New York where a group of Filipino nurses found that when they tried to quit their jobs at a hospital for critically ill children, they were facing not just unemployment, but criminal charges of child endangerment.

As reported by Frank Eltman of the AP:

For months, the nurses complained that they were subject to demeaning and unfair working conditions - not what they were promised when they came to America from the Philippines in search of a better life. So they abruptly quit.

But in doing so, they put more than their careers at risk: Prosecutors hit them with criminal charges for allegedly jeopardizing the lives of terminally ill children they were in charge of watching.

The 10 nurses and the attorney who advised them were charged with conspiracy and child endangerment in what defense lawyers say is an unprecedented use of criminal law in a labor dispute. If convicted of the misdemeanor offenses, they face up to a year in jail on each of 13 counts, and could lose their nursing licenses and be deported.

The case apparently has the fingerprints on it of liberal Democratic Senator, and long term crime warrior opportunist, Chuck Schumer.

Second Class Universities and World Class Prisons?

Cal State University Chancellor Charles Reed got it half right yesterday when in a speech to the University's Board of Trustees he blasted the proposed 10 percent cuts being imposed on higher education (and most of the rest of public spending) in Governor Schwarzenegger's proposed budget (read Tanya Schevitz's account in the SFChron). Reed asked the trustees (rhetorically one assumes):

"What kind of California do we want? I do think we are heading down the road to funding and building world-class prisons and second-class universities.."

We may well be on the road to the latter, and Chancellor Reed is correct to see California's three decade long incarceration binge as a significant factor in the declining state of our universities (roads, bridges, water systems, etc.). However to call our bloated and now catastrophically overcrowded prison system "world class" raises troubling questions.

World class prisons might be imagined to be places where wrongdoers are held accountable for crimes that seriously harm or threaten violence against others, in safety from each other, while being prepared for release through the application of tested methods of controlling substance abuse, and aggression while treating post-traumatic stress disorders of all sorts that frequently lead people on the paths to serious crime.

Such prisons may exist in parts of Europe. California's prisons, however, are nothing like that, and were not designed to be. Indeed, as the recent Plata and Coleman cases which have now brought the system under federal court control have revealed, these prisons were designed to function without consideration for rehabilitation or even minimal health and hygiene. As overcrowding has gotten worst over the last few years, conditions have deteriorated to the point of endangering the basic health of both inmates and staff. Moreover, they hold a tens of thousands of people for drug and property crimes as well as technical parole violations that often amount to little more than the crime of being homeless and or addicted.

Bluntly put California's once world class prisons (in the 1960s) are becoming little more than concentration camps without ovens (hear those last two words, I'm not accusing Californian's of genocide, but of building high security warehouses for the long term containment of people they are angry at and afraid of).

So cheers for Chancellor Reed for pointing out the fateful choices we are making. But lets not mistake world class prisons for unconstitutional and internationally scandalous detention centers.

Happy Birthday Martin

You cannot look at the devastation that governing through crime has brought to America, and especially to Black America, without wondering what Martin King might have done about it, had he lived.

First start with the central fact that had King lived, he might have been able, even under President Richard Nixon (who after all embraced affirmative action as the black capitalist alternative), to negotiate the kind of federal follow up to the Civil Rights Act of 1964 that would have substantially reduced America's ghetto poverty in the following decade. This tidal wave of progress might not have fully diverted the wave of criminal violence that was already unfolding in American cities in the 1960s, but it would have created an effective example of governing through opportunity and progress that might have bolstered activist government against the crushing pessimism that became the legacy of the 1970s and which made governing through crime a survival strategy for both conservative and liberal politicians in the 1980s.


Instead, King's murder, coming just weeks after the murder of Robert Kennedy, and less then five years after the murder of President John Kennedy, added immeasurably to the sense that lawlessness was overtaking American civilization and at the heart of our cities (each of these murders took place in the downtown section of a major American city). This impression was significantly bolstered by the fact that each crime was ultimately blamed on individual bad actors, strange drifters without apparent links to the massive interests which benefited from these deaths.

Combined with the murders of other civil rights leaders earlier in the decade, including Medgar Evers and Malcolm X, the killing of Dr. King must have sent a particularly spirit-killing message to the young Black men of America. Criminal violence seemed to be frustrating the demands of justice at every turn. In the meantime apostles of violent response within the Black community seemed to be vindicated. In California, the Black Panthers, no doubt aided by the FBI and the California Department of Corrections, degenerated into a real criminal organization, the Black Guerilla Family which became an influential force in California's prison culture. Since then, big parts of two generations of young black men have been lost to the streets and the prisons. Since then the "two America's" that the Kerner Commission glimpsed in the embers of the riots that followed King's murder, have girded into a society of prisons and gated communities that increasingly look like one fearful and unfree America.

It will take leaders like Martin King to bring us home from the Exodus of the War on Crime. But don't look for that leadership in the Presidential campaign. It will have to come from below. From someone who is even now working in a community like Oakland, Memphis or Montgomery. Someone who is gathering around them a yet invisible but swelling tide of people who believe that they see our needs as a society and as a generation, in a new light.

"Come back to us... Martin Luther King, we are marching into Selma, while the bells of freedom ring."

(with thanks to Steve Earle for his wonderful song, Christmas in Washington)

Go for it Gavin

Frustrated with the SF's continuing homicide spike, Mayor Gavin Newsom is reported (see Jaxon Van Derbeken's article in today's SFChron) to have ordered drug investigators to drop their cases and hit the streets of the city's high violence neighborhoods. Unlike our national and state leaders, Mayor Newsom cannot ignore violence in his city. He is said to have been particularly roiled by the murder of anti-violence activist Terrell "Terray" Rogers outside a girls basketball game last Saturday.

The Mayor is absolutely right to recognize that stopping the violence is far more important than drug investigations; or for that matter investigating the survivors of the Christmas Day tiger attack in a misguided effort to pin the death of 17 year old Carlos Sousa on his friends (that investigation has also thankfully be shelved according to another story by Van Derbeken). But he is creeping up on a far deeper and more troubling paradox. It is precisely the disastrous decision by our national leaders to hand the irrepressible market in recreational drugs (like marijuana and cocaine) to juvenile criminals that fuels the violence. Would these young men whose predictable cycles of honor based conflict leave bodies in SF streets be so cocky, so reckless, and so well armed if they were not flush with the rewards of the drug trade?

If you could buy marijuana and cocaine at a well regulated and licensed outlet whose sales were heavily taxed to offset community harms and provide treatment for the real addicts who need it, the local gangs would deflate and the young men in them would realize that high school, college, real jobs are they way to get respect, women, and toys.

Mayor Newsom cannot do that, even if he wanted to. The feds control the drug racket and SF is just one node in a global network of cities suffering from violence created by the criminal cartels spawned by federal drug policy. If SF started regulating and taxing general dispensaries for marijuana and cocaine, the entire bureaucracy would find itself facing massive drug conspiracy charges.

Here is what the Mayor can do. He can call a press conference to deliver the following message to the city's drug purveyors.

If you sell marijuana and cocaine in San Francisco, you will not be harassed by the SF Police Department, nor will the SF Police Department cooperate with Federal law enforcement operations against you, under the following circumstances:

You move all drug sales operations to discreet indoor establishments where kids and parents do not have to see drug sales or use in their face, streets, or parks.

You do not sell drugs of any kind to minors.

You do not carry weapons or use violence of any kind to conduct your business.

If you abide by these norms, you will not be the subject of investigation or arrest by the SF Police. Furthermore, if you are robbed or threatened, the SF Police will treat this behavior as the crime it is and seek to arrest and prosecute anyone involved in robbery or extortion.

However, if you violate any of the above conditions, you and you alone will face the full pressure of the SFPD while your competitors continue to operate unimpeded.

California's Prison State

California in the early 21st century, looks like a casebook example of a "carceral state", or a state that has placed imprisonment at the heart of its practices of governing. With 180,000 prisoners, twice as many prisoners locked up as its own design specifications very liberally allow, California has a massive human rights crisis on its hands and an impending show down in federal court over whether population caps will be imposed. Notwithstanding its failings, the prison system already absorbs more of the state budget than all of higher education and much more will be required to bring it up to constitutional standards.

Keeping the prisons full is an ever growing body of laws, many of them added by ballot initiatives, which provide long prison sentences for a wide range of serious and petty crimes. These laws leave county prosecutors with the power to transfer troubled local bad actors to state prison with no central mechanism to reduce or adjust sentences in response to disparities with other counties or overcrowding.

A feature on San Quentin prison in today's NYTimes suggests that this carceral state is not an altogether new thing. The infamous prison visible to all who travel the Richmond/San Rafael bridge to the Bay side of lovely Marin County, was built in 1854 by inmates held on a nearby prison hulk anchored on the Bay. Designed to house 48 in dungeon like solitary cells, it soon held more than three times that number. The feature by Patricia Leigh Brown points out that the prison was the very first public work created by the state, ahead of any public universities, roads, or aqueducts.

In an eerie anticipation of today, the state was recovering from the frenzy of the gold rush, and faced a mistrustful citizenry composed mostly of immigrants from other states and countries who shared little beyond ambition to strike it big, and lots of fear of their neighbors. The prison started out with hopes of rehabilitating its inmates, but soon resorted to flogging to enforce order.

If California has always had the propensity to be a carceral state, in which public order is constituted primarily through tough punishment, it has not always run that way. In between, for much of the mid-20th century, California kept its prison population relatively modest and concentrated on huge public investments in infrastructure and human capital including the complex technical systems that turned a largely desert state into a major food crop producer, the highway system that turned it into an automobile utopia (for a while), and a public university system that positioned it to become the leader in post-World War II technology development. During this time prisons were not forgotten, instead they were reinvented with the ambitions of this new technical scientific giant to be sites of applied human engineering to address the underlying causes of criminal behavior. While its managers never discovered a silver bullet to stop crime, they presided over a relatively small prison population most of whose inmates were paroled and succeed in staying out of prison. Today, in contrast, more than 2/3 of a hugely swollen population returns before the end of their parole period.

California did not change its population in between, although it may have stabilized and become more rooted in secure jobs rather than the highly entrepreneurial economies of the 1850s and the 2000s. The most important difference is in the vision of its leaders. From Earl Warren through Jerry Brown, California leaders governed through broadly optimistic visions of how the state could optimize its human talents. Since then our politicians have largely competed to articulate and respond to our fears of malevolent strangers.

If Arnold Schwarzenegger wants to go down in history as the change agent he is capable of being, he needs to persuade Californian's to abandon their carceral state for one that will pursue the technologies and skills necessary to tackle our looming environmental, health care delivery, and infrastructure problems. Once those problems and the solutions they will create are given central place, the carceral state can shrink down to the secondary state service it always should have been.

The Homicide Spike: Follow the (Local) Leaders

In the 1990s American cities enjoyed a spectacular decline in violent crimes including homicides (see Frank Zimring's book for the best accounting of what happened and why). Some cities thankfully are still enjoying that decline, or at least a plateau at significantly lower levels of violence than they experienced in the 1980s and early 1990s. In others however, including Philadelphia, Newark, and the cities of my own Bay Area (SF, Oakland, Richmond) 2007 continued an alarming upturn in violent crimes, including highly visible homicides.

The only good news in this trend so far is that most of the action remains at the local level. Our national leaders, preoccupied with Iraq, have so far not been able to shift policy debate toward the war on crime as they did after other spectacular governmental failures like the collapse of the Clinton health plan in 1994. Our state leaders, for the most part, now face record budget deficits as the real estate driven tax revenues of the last 15 years collapse like the Enron-like specters they always were. Those states that do have money in the bank, are slowly waking up to the collapsing infrastructure that is urban (and suburban) America in the 2000s (remember that bridge in Minneapolis?).

WARNING IF YOU LIVE IN CALIFORNIA: our insane legislative (it's the term limits that make them do it!) crime warriors haven't gotten this message yet. Please phone and email the offices of legislators George and Sharon Runner and tell them to stop with the crazy, big-budget, unaccountable gang crime initiative.

National and state leaders have been the primary exploiters of the enormous public attention and fear that media spotlighted violent crime has produced in spades since the 1960s (see my book if you need a primer on this). Local leaders, mayors, and city councils, whose position leaves them very close to the actual context of violence have during the same period struggled with violence in far less politically exploitive ways (this local effect was documented by Stuart Scheingold in his prescient 1992 book on crime governance).

Local leaders lack resources, but they have access to precious local knowledge through political channels that Political Scientist Lisa Miller has shown to be far more open to citizens whose lives are touched by violent crime. In San Francisco, where homicides hit a 12-year high in 2007, the Mayor and his top criminal justice adviser, a former Bush US Attorney, are trying strategies that rely on leveraging local knowledge about violent crime and the relatively small group of volatile young men reponsible for it, rather than the conventional crackdown tactics (read CV Nevius's column discussing the homicide problem in this morning's SFChron). This approach first used in Boston with some promising results in the 1990s (but then everything worked in the 1990s) relies on treating violent criminals like human beings (a surprisingly treasonous notion in the war on crime) and using communication as well as law enforcement pressure to modify behavior (rather than the usual logic of catch and cage).

The Berkeley Center for Criminal Justice, of which I am a faculty co-director, is supporting the effort with research (I'm not directly involved in this but I'm excited to have a bird's eye view as the research unfolds). Nobody knows if this communication and pressure strategy will work (as Kevin Ryan, Newsome's top criminal justice adviser, notes, a big part of the problem is the wide distribution of guns accessible to the same volatile youths) but at least the evidence one way or the other will be clear as day and local leaders remain open to that evidence (unlike national and state leaders they don't have the luxury of simply passing tough laws and moving on).

War and Crime: Does American Military Intervention Produce Crime at Home?

The case for the Iraq war has often come down to this: If we don't fight them there, they will come here and kill us. President Bush has said that often, as has Rudy Giuliani. Its not clear that American forces in Iraq truly reduce the numbers of terrorists motivated to come and kill Americans. Indeed some believe that the specter of the American army occupying a Muslim country has helped recruit new soldiers for the Jihad.

Now recent research by New York Times reporters Deborah Sontag and Lizette Alvarez and published last week in the NYTimes raises the question of whether the formula is really backwards. If we send soldiers to fight in contemporary asymmetrical wars like Iraq today (and Vietnam a generation ago), with lots of opportunity for emotional trauma and little of the social solidarity of conventional wars of necessity, will they come home and kill us? Sontag and Alvarez, using only journalistic methods, found 121 cases of Iraq veterans who have been accused of involvement in killings here at home.

One wonders, in retrospect, whether the crime rise of the 1960s and 1970s was linked to the even larger number of soldiers who served in Vietnam. Was the crime decline of the 1990s the fruit of a whole generation coming of age after 1975 with little experience with combat passing through their crime prone years? Will the Iraq war, which for now involves far fewer US combat forces, over time create a new homicide wave at home?

Immigration and Crime: A marriage of convenience (to politicians)

As the presidential campaign continues it becomes clear that American political leaders are in no way willing to level with Americans about how complicated the immigration issues in this country are let alone craft a comprehensive approach that would bring immigrant workers who lack legal documentation out of the shadows. In the absence of serious movement toward a comprehensive solution you can count on one thing, get-tough policies that emphasize the relationship between immigration and crime will continue to get emphasized regardless of how little such policies do to relieve the serious social problems created by a black market in labor, nor how cruel the consequences for individuals and families.

As Julia Preston reports in today's NYT, the current head of our Immigration and Customs Enforcement agency (that spells ICE, another example of our government's love affair with tough-sounding acronyms, of course ICE melts along the border) is promising to emphasize two forms of crime control of immigration. One approach, which builds on laws and policies that have been enacted starting in the 1990s, focuses on more efficiently deporting non-citizens who have been convicted of crimes and are serving time in American jails and prisons. Many of these people are not "illegal immigrants," but legal immigrants who have been convicted of the same sorts of crimes that citizens are. Under current law, many crimes including relatively minor ones are defined as "aggravated felonies" for purposes of immigration law and require mandatory deportation regardless of the equities involved (it might be the mother of citizen children, convicted of a minor drug possession crime). ICE is promising to speed up the deportation process as a way of relieving the burden on state and local governments.

The second policy promised is an increased crackdown on employers who hire workers without documentation of citizenship or legal residence.

Based on passed experience, neither policy will do anything to stem the flow of immigrants nor make their lives here safer and more governed by law. What they do promise to do is further reinforce the bogus link that has been established in the public mind between immigration and crime.

P.S.

This is not just an American problem. After a video camera in Munich caught two young non-citizens (one Turkish) beating up a pensioner on the subway, Germany's politicians are calling for tough sanctions against foreign juveniles convicted of crime. Read Nicholas Kulish's reporting in the NYTimes.

Question(s) for the Dems: Will You Renounce the (Bill) Clinton Pact with the Politics of Crime?

And then there were two...

With the field essentially down to Hillary and Barack (with John Edwards or Richardson capable perhaps of revival should one of the leaders shipwreck) its time for this blog to consider an endorsement. Before that, I have some questions. Unlike the disastrous 1988 campaign (when again a Democrat seemed sure to be elected by public allegedly exhausted by Republican corruption and incompetence in Iran-Contra) crime has not loomed as a big issue. But the mentalities that have flourished in the war on crime constitute a major challenge to any new President that would move this country in a new direction.

Both of you claim to be leaders who can draw from their experiences in the 1990s, to take this country out of its deepest morass of executive incompetence and power grabbing in our history. I maintain that you cannot overcome the Bush legacy without renouncing that part of the Bill Clinton legacy that most anticipated and prepared for the Bush administration, i.e, his commitment to never be outflanked in escalating the war on crime. A Presidency that began with the promise to create new forms of security and effective government for Americans ended up overseeing a vast expansion of American prisons and a crippling rollback in judicial authority in American criminal justice. That Mestiphelian pact haunted his whole Presidency, and came home when the President found himself accused of high crimes and misdemeanors.

It began with Bill Clinton's infamous trip to back to Arkansas to oversee the execution of Ricky Rector. An Arkansas inmate whose botched effort to kill himself (after a crime spree that left a police officer dead) made him effectively mentally retarded. It escalated after the failure of the health care initiative. The Crime Bill of 1994 began the federal effort to pump up state prison populations and execution rates.

No single law better summarizes the venality of that era and President Clinton's role in it than the act whose title in light of 9/11 should forever damn those who voted for and signed it. The Anti-Terrorism and Effective Death Penalty Act of 1996, enacted after the first attack on the World Trade Center in New York, and the Oklahoma City bombing, invoked the specter of terrorism to justify an unprecedented rollback of federal judicial authority with the goal of speeding up executions. The law did little to dampen the enthusiasm of Al Qaeda's ranks of those seeking martyrdom, nor did capital punishment seem to be particularly frightening to Timothy McVeigh, but it did bully judges around the country into accepting a historic reduction in their habeas jurisdiction. A decade later executions are no more frequent, but the appeals process is increasingly sterile procedural formalities with little ability for judges to actually assess the merits of the legal claims before them.

So Hillary, so Barack, would you have signed ATEDPA had you been President in 1996?

Or if you prefer a more forward perspective please answer any or all of the following:

As President

Will you ask Congress to restore full jurisdiction to the federal courts to consider the state of prisoners of all sort, whether in death rows, super max prisons, and torture chambers in every part of America's vast domestic and foreign prison system?

Will you support an end to mandatory minimum sentences and federal mandates that state prisoners complete 85% of their prison sentences?

Will you lead the country in an objective assessment of whether the war on drugs could be effectively replaced by robust forms of civil governance, regulation, and taxation?

Will you appoint an attorney general to be the nation's top advocate for legal values rather than our top cop?

Fear can kill you

Researchers at UC Irvine have found evidence that random subjects who respond more powerfully to the fear of terrorism suffer from more heart disease. As reported by Tony Barboza in the LA Times, the study controlled for smoking, obesity, and the usual correlates of heart disease. Subjects who reported more intense trauma after 9/11, or who retained a high fear response years later, showed higher levels of heart disease relative to their pre-9/11 health records.

The Irvine data reminds us that we are not governed through our minds or wills alone as bodies. Authority that constantly recharges itself through the repetitive invocation of unspeakable horror, takes a toll not simply on our liberties but on our largely irreplaceable heart cells. Remember that next time you decide to watch a Giuliani commercial.

The destructive power of terrorism fear may relate to its widespread visibility. 9/11 was a global media trauma that almost everyone witnessed in video. The same is true of violent crime, which television began to turn into its staple fare beginning in the 1970s.

It would be interesting to know if heart disease is a risk in all fear based governance, or whether certain fears, like terrorism, and I suspect violent crime, bring out deeply embedded responses that produce short-term gains (fight or flight) and long-term damage. (To the extent these are biological mechanisms, evolution has likely selected to maximize short term over long term individual survival).

For those of us who are nostalgic for the fears of solidarity-based governance (like Roosevelt's New Deal), it would be interesting to know whether fears of economic decline, climate change, and infrastructure rot produce the same kind of heart damage? Or, perhaps, can selecting the right kind of national fears produce individual experiences of solidarity and effective cooperation which result in measurable improvements heart health?

The Bush Legacy of Mass Imprisonment in the War on Terror

Prisons are usually a domestic policy issue, and one that candidates from both parties have been enthusiastically "for" over the last several decades. George W. Bush changed that when he took the war on crime strategy of mass incarceration and deployed it in his war on terrorism. His administration's grotesque interrogation and torture policies then exposed these prisons to catastrophically bad publicity undermining US prestige and security.

As Tim Golden's reporting in the NYTimes today about the US prison at Bagram air force base in Afghanistan suggests, the real problems with the strategy are more fundamental than those much denounced examples of inquisitorial excess. Mass imprisonment (or incarceration) involves sweeping up and incapacitating large numbers of subjects who are considered dangerous without much effort to discriminate among them. It almost always relies on racial, age, and gender profiling.

In the domestic war on crime, the hundreds of thousands of people in prison are all presumably guilty of a criminal offense (however, see the Innocence Project), but many of those "crimes" involve the criminalization of suspicious or dangerous behavior (that is true of most possession crimes, for example). Here in California, many prisoners are incarcerated for parole violations that do not amount to criminal offenses but are, again, manifestations of dangerousness.

In the war on terror version of mass imprisonment, there is no phase of judicial process to provide even the pretense of individual due process. Prisoners are literally swept up in battlefield or, more commonly now, urban street sweeps by soldiers or armed militias and then locked up. In Iraq and Afghanistan, the immediate result is a degeneration of living conditions to the point where, even without torture, human rights are being violated. This again tracks the war on crime where California's prisons have become unconstitutionally overcrowded and dysfunctional to the point where inmates regularly die of neglected but treatable medical problems.

My question for the candidates is this: Will you denounce not just Bush's disastrous policies of torture (which all the Democrats, and the once and future Republican front-runner John McCain would do), but his mass imprisonment policies, at home and abroad?

Hope v Fear? To Win Go with Both

Yes, he's inspiring (Obama), and yes, he's funny and upbeat (Huckabee), but it would be foolish for either candidate to think that they will win the White House with a campaign based solely on hope. As a new ad for Giuliani pointedly reminds us: “A nuclear power in chaos,” the announcer says. “Madmen bent on creating it. Leaders assassinated. Democracy attacked. And Osama bin Laden still making threats. In a world where the next crisis is a moment away, America needs a leader who’s ready.” (Read Michael Cooper's analysis of the ad in the NYT.) Whether Giuliani can regain momentum after a bad month, he is correct to believe that fears will almost inevitably play a major role in this election.

To go the long run, these aspirational candidates (who share a deeply religious kind of tone in their speeches, even if disguised in Obama's case) need to take a leaf from FDR and combine hope with real efforts to rally the country around very real threats from climate change, to terrorism, to rotting infrastructure. FDR had an optimistic pitch to his speeches even as a fighter against entrenched economic interests (somewhat more like Edwards' 2004 voice than his '08 edition). At the same time he articulated very clear rationales for the country to recognize the threats of Depression and later the Axis powers.

The difference between FDR and Giuliani is that FDR had an optimistic sense that innovative forms of civil government and new structures of democratic participation (like unions) could prepare America to overcome these threats, while Giuliani, following Bush and Cheney, appeals to a strong, punitive, and unaccountable executive as the source of American resolve in the face of current threats. If Barak emerges as the nominee, he must be prepared to draw a strong contrast in his approach to fear rather than only articulate hope.

Governing Tigers: Behave Yourself or Beware

Readers of this blog will recognize the pattern. A major (or minor) public (or private) institution fails to protect its constituents (or customers, or clients), and then compounds failure by making self-serving misstatements and lies. Faced with sudden questions about its competence (or legitimacy), the institution and its leaders look to see if there is some kind of personal irresponsibility connected in any way to the failure and the damages caused by that failure.

In New Orleans, when thousands of dependent people were left unprotected from the aftermath of Katrina, and nearly drowned in the process, it was looting (of which there was predictably some) and then claims of rapes and murders (which proved utterly false). In Los Angeles, after this fall's damaging wildfires, it was a ten year old playing with matches who prosecutors were considering charges against. In San Francisco, after a Siberian Tiger escaped from its pen on Christmas day and mauled three teenage visitors (one fatally), the Zoo compounded its failure to respond promptly and effectively to the escape (the cat was eventually shot to death by police officers, but only after chewing on its victims for sometime after officials learned of the problem), by mis-stating its own precautions (the trumpeted 18-foot wall separating the cat from the visitors turned out to be 12 feet). Zoo leaders also quickly turned to blaming the injured visitors, claiming that only extreme provocation on their part could explain the cat's sudden motivation to escape the cage (even though a year earlier the same cat ate the meat off the arm of a keeper who was engaged in a public feeding of the cats).

In today's SF Chronicle, Patricia Yollin, Tanya Schevitz, Kevin Fagan report on the Zoo's continuing effort to push that story. On Wednesday, witnesses emerged who claimed to have seen as many as four teenagers "taunting" the tiger, although it is unclear whether these apparently misbehaving teens were the same unfortunates who met the tiger's claws and teeth.

How much taunting can a tiger take? I'll invite your speculations, but as long as I've been going to zoos, kids (ok, boys especially, of all ages to my observation) have been drawn to taunting big cats. Maybe that is irresponsible or even cruel behavior, but it is utterly predictable and perhaps even capitalized on by zoos (like SF's which has made its cat feeding one of its biggest draws for years).

Although taunting zoo animals is apparently a misdemeanor, SF Police (who were able to down the cat within minutes of their arrival during the Christmas escape) seem skeptical about the provocation theory. Police Inspector Valerie Matthews noted: "I don't know if what they did was any more than what kindergartners do at the zoo every day." Police did apparently find an empty vodka bottle in the car in which at least some of the injured visitors arrived (read the AP story).

Look to Zoo officials to continue to focus on the crime story even while doing the environmental security fixes that should have been done decades ago. Perhaps the whole saga is no big deal (visitors flocked to the still open Oakland Zoo the day after the tragedy). But the SF Zoo is only a small part of the mentality of governance which prefers to emphasize the role of personal responsibility in managing risks of all kind.

Don't feel threatened by tigers? How about earthquakes, wildfires, and hurricanes?

Immigration, Race, and Law: It Matters if Crime Metaphors Prevail

The gathering storm around immigration that has been building in 2007 looks likely to make landfall in early 2008 as the two party nominees are identified and the huge gulf between the base of each party on this issue swings into marked contrast. If the two parties operate in what Paul Krugman called "separate moral and intellectual universes" in his New Year's Eve column, they also do so for the most part on immigration. John McCain is practically the only Republican who would promise a path to legalization for at least a significant portion of the millions of undocumented immigrants who can document a sustained history of work here (along with assorted other conditions). While Hillary showed some timidity in backing down from Eliot Spitzer's bold stand on driver's licenses (as did the Governor), all the Democrats would create a path to legalization (and presumably citzenship) for an even more substantial portion of the undocumented.

With such a big difference, the proper way government should respond to the presence in the borders of the United States of millions of foreign nationals with no documented lawful basis for remaining here but with a history of sustained residence and work here could easily become the "crime" issue of the 2008 election.

Crime itself seems decidedly unlikely to surface as a dominant (notwithstanding Huckabee's inclusion of "no executions" in the list of Mitt Romney's gubernatorial failures in the negative ad he didn't run but had a news conference to show and announced he would not run, see AP story which doesn't quote execution line unfortunately). Twenty years after George H W Bush was thought to have fatally wounded the campaign of Michael Dukakis by raising the death penalty and the governance of murderers, Huckabee is the odd candidate out who has exposure on it (and it doesn't yet appear to have been fatal). But many of the very same emotions, metaphors, and mentalities of governing will be deployed in an election on the legal status of immigrants.

As in many culture wars, the two sides are as often voices in the same people as much as between people. One voices articulates the view that in the absence of legal authorization, immigration is a crime, the moral corruptness of which defiles all that follows. "They broke our laws when they came here and they may commit further crimes against us when they find it opportunistic to do so."

For others, these are upstanding citizens of states near and far who have been beckoned to risk much for the chance to labor in our factories, kitchens, and fields, whose stake in this country (including ties of family as well as employment) is entitled to significant weight in a dignified and fair process.

Like 1988, a 2008 election on the legal status of immigrants would have for many an undeniably racial cast. The image of urban crime in America has had a Latino as well as African-American face since at least the 1980s (Miami Vice) if not earlier. The persistent and unfounded fear that those who enter without documented permission to work will likely commit crimes (or acts of terrorism) emanates in part from that belief. This has been exacerbated by the reluctance (now understandable politically) of state and local government to civilly govern the social practices that have grown up around immigrant labor, including informal day labor markets that often mimic in appearance the loitering groups of youth on urban streets that both television and official criminology (Broken Windows) has helped link to crime in the public mind.

The danger of another racialized election like 1988 is clear. A word about the promise in this brewing culture war. The talk of law on both sides (criminal law on the side of those who demand punitive action) and human rights law on the side of those who would begin by granting immigrant workers their dignity and good motives, points to a common anxiety and hope for the place of law in our society. For reasons that readers of the blog will not need reminding our continuing emphasis on criminal law as a model for governing society is a proven remedy for increasing fractionalization and mistrust in America. Can human rights law speak to that desire for more law on the part of the entire public?