California Prisons Prepare to Desegregate

Tanya Schevitz reports in the SF Chronicle on California prisons gearing up to comply with a consent decree to desegregate housing for entering inmates. The state's practice of routinely segregating prisoners by race when they first enter or re-enter prison was challenged in the Supreme Court, which held in California v. Johnson (2005) that even in a prison setting, racial classifications must be reviewed with "strict scrutiny" (i.e., to survive, the state must show the classification was "narrowly tailored" to achieve a "compelling state interest").

The story reports on concerns that desegregation may lead to violence in a prison system divided among racially defined prison gangs. But the real question is why Californian's, who adopted Proposition 209 back in the 1990s to prevent higher education from taking race into account, has tolerated the massive expansion of a prisons system based on racial classification. Opposition to affirmative action in education is based on a the real concern (however unjustified) that such state actions may reinforce racial antagonism. But in supporting mass incarceration, Californians have invested in racializing the identities of tens of thousands of young people (who already have a proven track record of anti-social behavior).

The real solution is to implement a single cell policy in the entire state system. Taht would require lowering the prison population by at least 80,000 inmates.

Compromise Justice: Americans are unique in electing judges, but we are also unique in obsessing about crime

In Sunday's edition of the NYTimes, law correspondent Adam Liptak examines the uniquely American practice of popularly electing judges, and the consequences that has for the fairness and neutrality of justice. Liptak profiles a recent Wisconsin election where a state Supreme Court Justice, the state's only African American justice, was defeated by an opponent who linked the Justice to a rapist who he had once defended while a lawyer (also African American); falsely claiming that the lawyer's argument had resulted in another victim being raped.

“Butler found a loophole,” the advertisement said. “Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?”

Liptak also cites a study that shows that all judges, even those who are already among the most punitive, raise sentences as they approach an election.

The article raises the question of whether judges are superior in most other countries where they are chosen by a system of rigorous exams, relatively insulated from politics.

But while American justice might improve with a more rigorous selection process, the real defects highlighted by the article are more of a product of governing through crime, and the enormous salience crime policy now has for all government officials. We have had elected judges for decades, but until the war on crime these were low key and mostly routine affairs.

Is the Era of Mass Incarceration Over in California?

Early news reports (see Mark Rothfield's May 20th reporting in the LATimes) of a proposed settlement to the epic overcrowding case that has had California facing the possibility of court ordered prisoner releases suggest that a major shift in California policy may be under way. Since the 1980s when Governor Deukmejian promised to replace the problem of criminals invading the houses of Californian's (a trend that had already been going down for a decade and has continued to drop) with the problem of how to house prisoners, locking up as many troubled people as possible has replaced higher education and infrastructure as the way California governed.

The settlement (not yet read by your blogger) appears to place a major focus on keeping short term inmates (with sentences less than a year) at the county level and to serious efforts at rehabilitation. The first is probably a very good idea, counties are much closer to real crime problems and thus in a better position to understand the dynamics giving rise to them. Rehabilitation, however, promotes the underlying claim that criminality is the major problem facing the incarcerated population in California as opposed to a surfeit of legal jobs accessible to the young people in our major cities. Over-promising on rehabilitation now, however, could simply promote more warehousing later.

Pentagon Plans Massive Prison in Afghanistan

In one more sign that the war on terror is replicating the war on crime, the Pentagon announced plans last week to build a massive new prisons structure to hold detainees from the war against the taliban. See the Eric Schmidt and Tim Golden's reporting in last Sunday's NYT.

The Pentagon is planning to use $60 million in emergency construction funds this fiscal year to build a complex of 6 to 10 semi-permanent structures resembling Quonset huts, each the size of a football field, a Defense Department official said. The structures will have more natural light, and each will have its own recreation area. There will be a half-dozen other buildings for administration, medical care and other purposes, the official said.

The plans mark a change in the Pentagon's thinking on the future of the Afghanistan conflict. Until recently officials had expressed belief that the detention phase of the war would wind down. Plans to replace the decrepit facilities at Bagram Airforce Base, which now typically holds more than 600 prisoners in cramped facilities, suggest that the Pentagon now expects the conflict with the taliban to generate a steady flow of detainees.

Signs that a prisoner of war model is being replaced by a penological one, includes plans to improve opportunities for family visits, religious practice, and even a measure of job training.

Il Governo della Paura

Yes the rumors are true, Governing through Crime, will shortly be out in an Italian edition, translated by the brilliant Alessandro di Giorgi (hopefully some of it rubbed off on my prose) Professor of Justice Studies at San Jose State University.

As if to celebrate, the new Italian government headed by Silvio Berlusconi, has launched a crackdown on "illegal immigrants" who are popularly blamed for much crime in Italy today. Sweeping through shanty towns police arrested hundreds of immigrants, most of whom were swiftly deported with little or no legal process. (See Elizabeth Blumenthal's reporting in the NYTimes). As di Giorgi argues in his important book on the logics of contemporary penal repression, Political Economy of Punishment: Perspectives on post-Fordism and Penal Politics (Ashgate, 2006), immigrants, especially non-western immigrants, stand at the core of the fear based efforts to recast governance in Europe.

But whether criminals, or immigrants, or criminal immigrants, the governance logic of arbitrary power in the name of the victims is the same. As a Berlusconi spokesperson said of the crack down (which almost certainly violates Italy's obligations under the European Convention on Human Rights):

“The anti-immigrant sweep was a positive thing because that’s what people want,” said Umberto Bossi, the minister of institutional reforms and federalism. “People ask us for safety, and we must give it to them.”

City of Walls

Michael Gordon's vivid reporting from Baghdad, in this mornings NYTimes raised again for me the question of how our security strategies in Iraq relate to our domestic security strategies. Gordon's frighteningly close descriptions of of American and Iraqi soldiers battling insurgents over the construction of a series of security walls through portions Sadr City, brought to mind the well established pattern of gated communities as part of middle and upper class security in the United States and globally.

The walls in Baghdad are aimed to create secured zones around the core area of Shi-ite popular resistance to American and Iraqi government forces. But as Gordon notes, the wall seems to become as much a site of violence as a tool for repressing it.

The Americans began building the wall a month ago, working east to west. The work started at night but soon extended into the day as American commanders sought to speed up the construction.

Supporters of Moktada al-Sadr, the anti-American cleric, denounced the wall as a nefarious effort to divide the city. Militia fighters with rocket-propelled grenades, machine guns and small arms have been trying to halt its construction.

Those efforts have failed, and the barrier is now 80 percent complete. But the fighters have blown a few gaps in the wall and, in one instance, appear to have hitched a truck to a damaged slab to yank it down. To make it hard for the Americans to fix the holes, the fighters have continued to seed the strip south of the barrier with explosively formed penetrators, a particularly lethal type of roadside bomb. Some have been hidden in the cracks or depressions in the wall itself.

Social scientists have long noted the trend toward walled security in cities without insurgencies, but where great economic inequality and alarming crime fears led those with resources to seek a new private kind of public space. In her classic work on the walled neighborhoods of Sao Paulo, Brazil, City of Walls: Crime, Segregation, and and Citizenship in Sao Paulo, Berkeley professor Teresa Pires do Rio Caldiera writes:

Fortified enclaves are privatized, enclosed, and monitored spaces for residence, consumption, leisure, and work. They can be shopping malls, office complexes, or residential gated communities. They appeal to those who fear that social heterogeneity of older urban quarters and choose to abandon those spaces to the poor, the “marginal,” and the homeless. (4)

What is the relationship between these security strategies? Was the walled neighborhood as piece of colonial anti-insurgency strategy that found its way into the war on crime? Or is it an extension of the logic of urban security to the problem of permanent, or at least long term, insurgency?

Meager results for gun sensors

The desperation of governing through crime thinking comes through loud and clear in Wyatt Buchanan's story in today's SF Chron, on early results from the high tech gun fire sensor systems recently installed in SF and Oakland. The lead is that thanks to the detectors police have responded to twice as many gun shots as they did before they were installed. Lets return in a moment to the interesting question of why in a democracy computers are necessary to discover that gun shots are being fired in a major city's neighborhoods, the real question here is whether public safety was improved by lashing our police officers to this technological alternative to a citizen. As we are learning in our recent debates about whole body imaging, discovering more spots in your body that might be cancer is not the same thing as curing more cancer and does not necessarily improve your health outcomes (to date, inconclusive).

The results are fairly described as thin. In SF, twice as many police responses has netted 1 extra arrest and two seized weapons. Now the fact that they are calling it an extra arrest means it has no plausible connection to any homicide cases. Every time police deploy to neighborhoods where there is a lot of "gang activity" (i.e., young minority men with little connection to the legal economy) they have a chance of making arrests (and when they do, they may discover weapons in the inevitable search of the arrestee).

How do we know whether this one arrest in two months represents an achievement for public safety? We cannot, because we cannot know what those police officers might have done with the time they spent responding to gun fire sensor reports and the reports they had to write up about missions that yielded no arrests or information about the many unsolved homicides in the city.

Of course, that does not stop crime experts and politicians, who must respond to the crime fears unleashed by recent spikes in homicides and armed robberies, from proclaiming that the technology was "worth it." When you are faced with a bottomless fear than any amount of money thrown at it, may seem like money well spent, (even when a multi-billion dollar deficit means those millions spent on auditory surveillance, cannot be replaced to place more police officers on the streets, let alone hire youths for summer jobs).

While you are contemplating the long dry summer ahead here in the always tourist friendly Bay Area (unless you mind getting robbed in a restaurant), just consider what it means that computers report 65% more gunshots than the human beings they are using technology to listen to. The lack of respect and confidence for our law enforcement agencies and strategies speaks volumes. In the end its not the futility of spending millions to replace (rather than repair) the shattered confidence of your citizenry, but the futility of the war on crime itself that must be confronted.

When the President is Prosecutor

In this past Sunday's NYT, William Glaberson reported on the latest legal travails for the Bush Administration's military commissions set up in Guantanamo to try alleged war criminals. In a case involving Salim Hamdan, characterized by some as Osama Bin Laden's driver, a military judge has issued an order that in effect forbids the Pentagon from continuing to interfere with legal decisions being made by military prosecutors in the Hamdan case. One such decision was whether or not to use evidence derived from interrogations involving torture. The prosecutors had determined to exclude such evidence as unreliable, but that decision was, in effect, overruled by the Pentagon's representative, Brig. Gen. Thomas W. Hartmann.

The military judge, Navy Captain, Keith J. Allred, was particularly stinging in his opinion in denouncing interference by, what is essentially a political agency, in the decisions of military prosecutors.

“Telling the chief prosecutor (and other prosecutors),” the decision said, “that certain types of cases would be tried and that others would not be tried, because of political factors such as whether they would capture the imagination of the American people, be sexy, or involve blood on the hands of the accused, suggests that factors other than those pertaining to the merits of the case were at play.”

The American prosecutor, even in military form, is a distinctive legal model that is arguably 100 percent an American invention, even though now much replicated. Where as most legal officials around the world tasked with representing the state in seeking the criminal conviction of an individual are mere agents of national ministries, the American prosecutor is or works for an independent, elected, local official. In Governing through Crime, Chapter 2, I argued that American prosecutors had provided a unique model for the reconstruction of American executive authority in the 1970s. As governors and even presidents have fashioned themselves "prosecutors-in-chief" they have occasionally run into the problem that they cannot easily displace actual control prosecutors.

When the Bush administration, steeped in this crime model from his governorship on, began to construct their scheme for military tribunals, they created a duplicate of the American prosecutor with an important correction, an agent of the President, in this case called "the convening authority" in a position to control the entire proceeding through controlling the decisions of both military prosecutors and military defense lawyers. In this, as in so many ways, Guantanamo reveals the true genealogy of the war on terror, as not a radical rupture with the recent past, but its amplification; as a version of the war on crime with all of the remaining institutional limitations on executive power snipped out.