Punishment in California: the Long View

As I'm preparing to teach my favorite class at UC Berkeley this spring (Legal Studies 160: Punishment, Culture, and Society), I've been thinking about California's twisted penal history and the man who knows it the best, the great John Irwin, the legendary prison sociologist (and convict criminologist before that had a name). John's life runs like a river through the hopes and fears of the Golden state from end of World War II to the present. He served time at a California prison for auto theft, earned a doctorate in sociology at UCLA, was a leader of the transformational prisoners rights movement of the 1970s, and a great public intellectual and educator at San Francisco State University for most of the last forty years.

Irwin's many books have definitively characterized California's (regrettably) influential penal devolution from the optimistic "correctional institution", whose contradictions and fate were brilliantly dissected in the book Prisons in Turmoil (1980), to the cynical and vicious "warehouse" prisons whose current crises Irwin foretold in The Warehouse Prison: Disposal of the New Dangerous Class (2004). Most recently Irwin has been documenting the lives of California's burgeoning "lifer" population in Lifers: The Long Road to Redemption (2009)

2009 has been a bitter year for those of us who hope to see California unlock itself from the nightmare of mass incarceration. The executive has used the fiscal crisis to drag its feet on fixing intolerable prison conditions, and the Democratic controlled legislature failed to pass even modest steps toward sentencing reform. As a faded reform governor limps off stage, those contending to replace him in both parties barely acknowledge our penal crises. Now, to top it off, I learn that John Irwin, whose prison hardened build and boyish good looks never faded, is ailing.

Still, on this New Year's Eve, I'm taking the long view, and trying to think, like the great John Irwin, about our current crisis, as well as the opportunities it creates to forge a better democracy and a freer state. I'm going to dedicate my class this spring to that crises and how this generation of California students can solve it. For the first time ever, the class will be available to the general public through podcast of the audio and power-point slides, so I'm going to invite all of you to participate (look for the syllabus and links in a couple of weeks).

I'm also going to hope for a least a couple of John Irwin guest lectures.

Happy New Year.

Crime Decline Conundrum

With aviation terrorism and a still lackluster employment market dominating year end headlines, the one piece of good news appears to be a fairly widespread decline in homicides in major cities. New York, as trumpeted in yesterday's NYtimes (read Al Baker's reporting) had a year with fewer homicides than any year since 1963 (essentially before the modern crime wave was evident). San Francisco also reported a record drop (read Jaxon Van Derbenken's article in the SFChron) to as low as the city has seen since 1961 (take that New York), and after a series of rather violent years in the middle of this decade. Chicago and LA have also reported declines this year. Providence, was one of the few cities reporting a homicide "spike," with the addition of two dead this week in a drug raid that also left three police officers wounded (read W. Zachary Malinowski's reporting in the Providence Journal). This is good news in a year with little of it.

The journalistic lead is that this is happening despite a severe recession (the man bites dog angle). Whatever the intuitive appeal to the notion that bad times generate crime, few criminologists believe it is a clean relationship. In many respects, times are always bad in those communities that experience the highest levels of crimes like homicide, aggravated assault, and robbery. This, not surprisingly, does not stop police chiefs and mayors from claiming credit (at least if they've been on the job for more than six months) whatever the hazard that their policies might be blamed when crime begins its inexorable return (like most gambles, it probably makes sense in the short term context of political survival). But even criminologists, this one included, are not immune from believing that, combined with the substantial crime declines of the 1990s, and the relative stability of crime through most of this decade, this end of decade crime decline could mark a longer term shift away from the pattern of high levels of gun violence concentrated in cities that has defined urban life for the much of the past forty years. What would drive such change? Here is a New Year's speculation list of the top three "positive" factors underlying declines in urban violence.

May they all continue in 2010!

1. Bottoming out of the de-industrialization of American cities that began in 1946 and continued through the 1980s. Even if new economic engines of prosperity have not exactly re-emerged in many cities, the process of losing existing assets has run its course.

2. Demographic diversification of urban neighborhoods through immigration and in-migration of suburbanites fleeing unsustainable lifestyles.

3. Better trained and motivated police forces.

Prisons and Public Safety: Learning from the "Gitmo North" debate

President Obama's announcement that the federal government will buy a mothballed supermax prison in northern Illinois (the fact that the such a facility was empty is itself an intriguing signal that the war on crime is drawing down) is bringing a new wave of criticism (mostly from Republicans) that this endangers public safety. As Helene Cooper and David Johnston, reporting in the NYTimes, summarize the thrust of concern:

“The administration has failed to explain how transferring terrorists to Gitmo North will make Americans safer than keeping terrorists off of our shores in the secure facility in Cuba,” Mitch McConnell of Kentucky, the Senate Republican leader, said in a statement. Representative John A. Boehner of Ohio, the House Republican leader, told reporters he would not vote to “spend one dime to move those prisoners to the U.S.”

The upcoming debate is unlikely to be inspiring, but it will be revealing of two features of contemporary American political culture that have helped sustain mass incarceration.

1. Prisons are never enough to make us feel safe. We want them and gated communities. Even when we have a supermax prison it would be much better if those prisons that are separated by water and national borders. Now its true that the fear being expressed is not simply of the super terrorists themselves (who will apparently have a virtually 1:1 ratio with guards), but their colleagues who may decide to retaliate against ordinary Americans. But that "logic" does not hold up. What stops the terrorists now from retaliating against "ordinary Americans" by blowing up strip malls in northern Illinois or northern Kentucky for that matter? What is being expressed here instead is the profound influence of the "container" metaphor turned toward its carceral core.

2. Congress, whichever party is in or out of power, finds it very hard to be on the side of providing less protection to Americans against criminal violence of any kind. I argued in Governing through Crime, that Congress (and state legislatures) now find it natural to view themselves as representing American crime victims as the idealized citizens of the Republic. I predict plenty of Democrats will join with Republicans to block any actual transfer of prisoners.

If the Republicans get away with spinning this as Obama making ordinary Americans vulnerable in order to please liberal cosmopolitan elites (mostly in Europe), they will have effectively reprised the Nixon v. Ramsey Clark moves of 1968, despite a period of declining crime and rising environmental threat.

Crime Politics and Racial Signals: Evidence from Houston

In the 1960s, racial conservatives (defenders of the Jim Crow order that was crumbling) used the language of "tough on crime" as a new discourse in which they could appeal to potential allies outside the South, without having to defend the indefensible. Politicians like Richard Nixon and Ronald Reagan helped forge that link into an important anchor of the Republican Party's "Southern strategy." But forty plus years later it is clear that the discourse of crime fear has long ago slipped its bonds to racial conservatism to become a far more general logic with appeal to voters across the spectrum of opinion on racial issues. Yesterday's Houston Mayoral election was a case in point. The voters handed a solid victory to Annise Parker, a Democrat, recently that city's comptroller, and the first openly Gay or Lesbian politician to be elected mayor of one of the major American cities. But in the competitive race her opponent, Gene Locke, also a Democrat and formerly Houston's city attorney, made crime and whether Parker was "soft on crime" his main issue. Now the crime talk may have offered a way for Locke to send a signal to anti-Gay conservatives, or to anti-feminists, but one thing it clearly did not seek was to send a signal to Houston's remaining racial conservatives. Indeed the consensus on the eve of the election (read James McKinley's article in the NYtimes) was that the best opportunity for Locke, an African American, to overtake Parker's steady lead, was to produce a large turn out of African American voters.

Pre Crime: Why are we so confident that we can prevent acts of terrible violence?

As politicians and officials in Washington (state) and Arkansas battle over who should have stopped Maurice Clemmons before he apparently shot to death four Washington state police officers outside a strip mall coffee shop near Tacoma last weekend before being shot dead by Seattle police, we can observe a very enduring if not endearing American obsession-- our conviction that we might have stopped the tragedy (read William Yardley's summary of the blame game in the NYTimes). Clemmons, sent to prison with a hundred year plus term for violent crimes as a teenager, received clemency and parole from then Arkansas governor Mike Huckabee (who made no secret of his religious belief in the possibility of redemption and change). Both Washington State and Arkansas officials appear to have missed opportunities (in retrospect) to turn up the control pressure on Clemmons. More should be learned over the next news cycle or two.

As an overall trait, this American confidence that better technique and method could stop violence is largely admirable, small "d" democratic, and great for the criminal law and policy reform business (which includes fairly or not, academics). Overall it may make us prone to waves of generally temporary civil liberties destruction in the name of personal security (as we have seen). My objection, however, is limited to two points.

continue reading this post on prawfsblawg.

Strike Against Prisons not Education

With a heavy heart I am not joining many of my students and colleagues who are striking against classes and educational activities at UC Berkeley and other UC campuses across the state beginning tomorrow (and through Friday the 20th). We ought to be united in mobilization to save higher education in California. But in choosing to make the fight a convenient and ideologically satisfying (but for the most part phony) story about privatization, down-sizing, and pernicious, corporate minded university leadership, UC's unions and their student and faculty allies are missing a historic opportunity to engage our fellow citizens in a critical dialog about our state's future.

That future has been mortgaged to expensive dysfunctional prisons and a bipartisan law-enforcement establishment that is committed to mass incarceration at any price. But across three decades in which that project of exiling tens of thousands of largely poor and minority Californians to a prison archipelago of mammoth proportions (which yet remains grotesquely overcrowded) has been constructed, the supporters of higher education in this state have remained silent, assuming that the incarceration of people who don't go to college anyway is not our problem. Now the chickens have come home to roost.

A day of protest in Sacramento to demand an end to mass incarceration and a reinvestment of justice and revenue into problem solving in all our communities would be a cause worth canceling classes for, driving (in car pools) up 1-80 and joining in public debate and education of all our fellow citizens. But to waste three precious days of our semester to engage in self righteous, predictable, and largely irrelevant rites of denunciation against UC's administration? Not so much.

I would ask this of the unions who, having failed to achieve negotiation successes with the university administration, now seek to join grievances with disgruntled students and faculty (whose interests are largely quite different when it comes to dividing up UC's shrinking fiscal pie): where were you when the state built thirty prisons and enacted laws like 3-Strikes? Where are you now in mobilizing your supporters in the legislature to reduce prison populations by any means necessary?

Update from the Penal State: Court keeps the pressure on

As reported by Denny Walsh in yesterday's SACBEE, the special three judge federal court in the Plata-Coleman prison overcrowding mega case rejected the state's arguments that an inmate cut of less than half of what the court had asked for was good enough given legislative resistance and public safety concerns.

The claim of public safety is particularly outrageous given how much of the courts massive August 4th ruling was devoted to examining public safety and how population reduction could be done without prejudice to it. The court significantly cut down the number in order to allow an extra measure of reassurance.

When I find the new ruling I'll post it here. Here is the plaintiff's motion for contempt filed a couple of weeks ago.

California Inmates Seek Contempt Order Against Governor Schwarzenegger

California's epic prison mess is heading back into court with the inmate plaintiff's asking the three judge panel to enforce their historic August 4th call for a reduction of some 40,000 inmates over two years with a contempt order against Governor Schwarzenegger. As Denny Walsh reports in the Sac Bee:

Saying the Schwarzenegger administration is thumbing its nose at three federal judges with a flawed plan to ease overpopulation of prisons, inmates' attorneys Thursday asked the judges to find the governor in contempt.

Rather than complying with the three-judge panel's Aug. 4 order, a defiant Gov. Arnold Schwarzenegger and Corrections Secretary Matt Cate "essentially have told the court that they will reduce the state prison population as the state sees fit, to a level the state deems appropriate, and in a time frame the state has set for itself," the attorneys wrote.

The Governor whose low approval ratings and general fatigue at governing may have already peaked with his less than cordial greeting at a San Francisco Democratic Party event (the Guv was invited to "kiss my Gay ass" by Tom Amiano, read Carla Maranucci's reporting in the SF Chron), may rightly feel that he has tried to comply since his own plan was amended by the Democratic controlled legislature which backed off many of the cuts and the promise of a sentencing commission. But if Arnold wants to go out as an action hero he can still lead. As governor he can stop denying parole to scores of California lifers who have served decades and demonstrated substantial rehabilitation. He can order, as Ronald Reagan did, parole units to stop returning parolees to prison for minor violations of parole. With these steps alone he could bring the system into compliance before leaving office.

If, as seems increasingly likely, this whole case ends up in the Supreme Court sooner than later, look for several interesting legal flash points:

1. The three judge court in Plata and Coleman has suggested that the Prison Litigation Reform Act of 1995 (signed into law by Bill Clinton 13 years ago this month) need not be a barrier to court based structural reform of prison systems including prisoner release. The three judge panel, in my view, has put together an awesome record that will be hard for the Supreme Court to override, but look for Justice Alito in particular to focus on the federalism, public safety, and democratic accountability concerns embedded in the strong anti judicial intervention language of PLRA

2. I just taught the Supreme Court's 2005 Samson v. California case in which the power under California law to search all parolees without any suspicion by all peace officers (both parole and police) was upheld against a 4th Amendment challenge. The very complex case, which throws a lot of 4th Amendment doctrine into doubt, turns heavily on a bizarre (and in my view grossly incorrect) understanding of the same California parole revocation mess that will be at the center of a Plata Coleman decision. I will post more on this theme, but main point is that the Supreme Court in Samson took California's high revocation rate to prove that parolees were so dangerous they needed to be exempted from 4th Amendment protections (even the watered down special needs version of them). How will that square with the current view of the State of California, that parolees are so safe that most of them can be put on a form of "parole lite" in which revocation is not a possibility, supervision does not happen, and parole is reduced to the single fact of being exempt from search and seizure protections?

cross posted at prawfsblawg

Workplace Violence? Making Sense of Annie Le's Murder

Am I the only one that was bothered by the effort of the New Haven Police Chief to make sure we didn't think the murder of Annie Le had anything to do with either New Haven or Yale? In their coverage in the New York Times Javier Hernandez and Serge Kovaleski write:

Chief James Lewis of the New Haven police would not speak about a possible motive, but said, “It is important to note that this is not about urban crime, university crime, domestic crime, but an issue of workplace violence, which is becoming a growing concern around the country.”

In a statement,Richard C. Levin, the Yale president, said the supervisor “reports that nothing in the history of his employment at the university gave an indication that his involvement in such a crime might be possible.

Urban crime? Last time I checked New Haven counted as a city (maybe not a major city). Does this just mean that the accused, Raymond Clark, happens to be white? He was after all otherwise a local. University crime? I'm not sure what that is meant to include except perhaps political violence like the 1969 bombing of a research lab in Wisconsin, or more recent violence by animal rights militants. Domestic crime? Ok, there is no hint that Annie Le had any kind of relationship with Raymond Clark. But where does the Chief get off hinting darkly that there is a growing problem of "workplace" crime?

It is true that people spend a lot of time at work, so its not surprising that they are sometimes victims of crime there. That is particularly true of domestic violence. When partners separate, work may be the easiest place for the abusive partner to arrange a confrontation. Many workplaces, like retail stores, are targets for robberies. Here is where you can find a copy of the federal government's last published report on workplace violence. Published in 2001 and reviewing data from 1993 through 1999, the report shows violence in the workplace going down along with violence generally in America in those years. In 1999 there were a little over 600 workplace homicides out of more than 15 thousand nationwide. Perhaps there is a new trend emerging in more recent data that the Chief is aware of. Otherwise it is irresponsible to suggest that workplaces are a place that would benefit from even more fear of crime than Americans generally already feel.

As for the university, like many employers they have already invested in crime background checks, and apparently closed circuit video taping around its animal labs (probably to combat animal rights activists). College or university teachers already enjoy the lowest level of occupational violence of any studied group (as of 2001) at only 2 incidents per 1,000 teachers.

I'm no expert on criminal motivation. She was a petite and beautiful young woman. He was a physically powerful and apparently heterosexual young man. We may never know more than that. Let us accept grief at a promising life brutally ended, and some gratitude at the prospect of legal justice thanks to what appears to have been an effective investigation (although some questions about crime scene management have emerged). Let us not seek to invest even more of our life-world with the apparatus of crime control in the pursuit of a level of perfect security that does not exist.

Wishing all of you a happy new year (on the Jewish calendar, 5770)

[cross posted at Prawfsblawg]

My Daughter Does Walk to School

My twelve-year-old daughter will walked to school this morning, she has been since a year ago when she began at Martin Luther King Middle School about a mile from our home in north Berkeley. As Jan Hoffman reported in yesterday’s Sunday Styles section of the NYT, this kind of routine traverse to and from school, a fixture of my childhood (ironically I was living in Hyde Park on the South Side of Chicago where in the late 1960s street crime was hardly a fantasy), has become an endangered species in early 21st century America, a victim of a handful of childhood predators among us, and a vast and largely state supported fear of victimization. While according to Hoffman fewer than 115 child abductions by strangers occurs in a year on average, many Americans will see that many “Amber Alert” highway signs blinking a message about a child kidnapping in progress.
Those parents that seek to allow their children what one author and parent, Lenore Skenazi has appropriately called “Free Range" childhood, (the alternative the “gated childhood” we no impose on kids of all classes in the name of their security. Despite the fact that my daughter walks through an upper-middle class neighborhood where there are hardly ever drive by shootings or outdoor drug selling, the fact that a stranger might pull up and force her into a car (more or less what happened to Jaycee Dugard in South Lake Tahoe 19 years ago) haunts me and probably every parent. My wife and I have decided to embrace “free range childhood” for our kids because we have concluded that on balance the physical and mental gains from enjoying autonomy and that quintessential form of freedom known as walking around one’s neighborhood outweigh that terrifying if vanishingly small risk of a kidnapping.

The focus on gated childhood is important as we reflect on the costs of over-securitizing American society. While my book Governing through Crime devotes only a chapter to the family, and only a small part of that to the issue of overprotecting one’s children, it is in many respects where the war on crime really begins and ends. Protecting ones’ children, rather than conscious or unconscious racism, is the primary consideration that leads parents to choose non-walkable and non-diverse gated communities to live in, sterile segregated schools, and harsh penal policies that promise to (regardless of how marginally) improve that protection. Until we stop imprisoning our children behind walls of our own fear, there is little chance we will stop imprisoning so many of our fellow citizens. That is one political battle that will have to be fought one household at a time.

[Cross posted at Prawfsblawg]

Prison Reform Lite: With Fiscal and Constitutional Alarms Ringing, Cal Legislature Hits the Snooze Button

Staggering to the end of what Assembly Speaker Karen Bass called "a painful year for all of us", the California legislature passed and sent on to Governor Schwarzenegger a prison bill that will help the state save about a billion dollars (in a 26 billion deficit situation), about 200 million short of the governors announced goal (read Michael Rothfeld and Shane Goldmacher's reporting in the LATimes; and Kevin Yamamura, Steve Wiegand and Jim Sanders' reporting in the SacBee). The other number, besides the budget, is the 40,000 inmate reduction over two years called for by the three judge federal court in the Plata/Coleman case. The plan is expected to reduce the prison population by about 17,000 during the year, as opposed to the 27,000 projected by the Governor's plan. While the "reforms" enacted are certainly sensible, and while the numbers may yet add up to something that will satisfy the federal court, the portions of the plan that opponents were able to defeat highlights the difference between short term adjustments and sustainable reform. As Senator Gloria Romero put it: "What's not in the bill is a resolution and solution to this prison crisis." The items dropped from the Governors more ambitious plan (which was enacted by the state senate) also reveals the black hole of public trust at the center of the constellation of political forces we call "mass incarceration."

According to the Governor's spokeswoman: "the centerpiece of this legislation is the parole reform that protects public safety, avoids early release and saves the state nearly $1 billion." The plans major proposal, and where most of the savings come, is the parole reform measure that will essentially create a new parole status for inmates deemed lower risk. Prisoners released onto this parole-lite would continue to be subject to special parole conditions (including a waiver of 4th Amendment rights) but would not receive active supervision by a parole agent and most importantly, would not be eligible for administrative return to custody for violating those conditions (they could still be sent to prison for a new term based on a new court conviction).

The plan is not a bad one, although I question whether a parole status whose only purpose is to permit police to ignore the Fourth Amendment should survive a constitutional challenge. California is practically alone in placing every single one of its vast number of prisoners on parole at the end of their most determinate sentences. Public safety probably will be improved if parole supervision is focused on a more select group of high risk parolees (like Philip Garrido), and prison conditions will improve if some of the 70,000 plus parolees a year sent back to prison are kept in the community instead. However, depending on how the classification process works, I would expect relentless pressure on the bureaucracy to classify prisoners as high enough risk to qualify for active parole. Especially after the inevitable media frenzy that will happen once a "low risk" parolee rapes or murders someone, the ratio of low to high risk parolees on which all the savings depend will shift in favor of more surveillance for more people.

The two elments of the Governor's plan that were defeated are revealing about the kinds of mistrust that anchor political resistance to reform. First, the Governor would have saved another 200 million by moving some 6,300 most elderly or very sick inmates to hospices, hospitals, and in some cases to home arrest in what was euphemistically being called "alternative custody" to avoid the dreaded accusation of "early release." The idea of "early release" is, of course, a highly arbitrary one in California, since the length of our prison sentences have no relationship to any principled basis of penology. But even one wants to call it early release, the fact that Californians (or more precisely their representatives in Sacramento) are terrified by the idea that some 65 year old life long meth addict dying of emphysema may be housed in a hospice outside of prison walls is sad and pathetic.

Far more crucial is the fear of expert knowledge represented by the defeat of a sentencing commission. The commission would have been stacked with law enforcement represenatives appointed by the Governor and the legislature anyway, but even so the chance that a systematic overhaul of our penal choices would have been authorized was considered far too dangerous by organized law enforcement (most I assume the Correctional Officers union) and prosecutors who benefit from being able to draw on a vast an incoherent jumble of excessive punishment.

Cross posted at Prawfsblawg

A Truly Radical Idea: Van Jones and the Greening of Criminal Justice

The midnight resignation of Obama environmental adviser Van Jones is being treated in the media and the blogosphere [read Fred Barbash and Harry Siegel's summary on Politico] as yet another turn in Washington's ideological gang war ("Washington's a tough place that way," noted Howard Dean in one of the more sympathetic comments). Fox's Glenn Beck is said to have scored the first "scalp" inside the Obama White House, and many progressives are describing Jone's demise as a "lynching" or a "swiftboating" and bemoaning the administration's unseemly haste to rush Jones out the door. Indeed, the controversey seems like a decent Hollywood send-up of Bill Clinton dumping Lani Guinier. Jones' past as an organzier with an avowedly revolutionary organization here in the ultra-Left Bay Area, STORM (Standing Together to Organize a Revolutionary Movement) was widely known at the time of his appointment to an advisory position requiriging no Senate confirmation (the alleged policy nub of the criticisms directed at Jones). It seems hard to believe that Jone's alleged primary sins of signing a 9/11 "truther" petition or calling Republicans "assh-les" in a speech last February before he took office (didn't the former Vice President use an expletive on the floor of the Senate without having to resign) could be more damning in the eyes of Fox News then being a Marxist revolutionary, but there you have it. The truth is that Jones' has promoted one of the most radical ideas to emerge from the Bay Area in some years; but his vision has more in common with Alice Waters than Che Guevera.

The Ella Baker Center, the civil rights organization Jones cofounded in 1996, was one of the first to take up the issue of mass incarceration as a primary focus for civil rights struggle. In innovative and successful organizing drives, like the movement to stop Oakland from building a giant new juvenile detention center at the height of California's "lock-em up" politics, Jones began to forge a vision linking environmentalism and criminal justice reform. What Jones saw was that the high carbon automobile dependent lifestyle of mostly white middle class people in the suburbs, was linked to high incarceration economically disinvested lifestyles of mostly people of color in the inner cities by a logic of fear. The alternative to both was a new green urban agenda, in which the inherent energy advantages of innercity locations could be leveraged by investment in new energy efficient infrastructures. The by-product (in addition to slower climate change) would be tens of thousands of new skilled jobs in the very innercity locations which had suffered the most crime and incarceration during decades of deindustrialization and middle class flight. If that infrastructure reinvestment cycle could be unleashed, a serious effort at breaking down the barriers to employment by the formerly incarcerated could be the single most important criminal justice fight of our time (and one that could unify law enforcement and justice system critics).

This is a truly radical idea, one that challenges not democracy and capitalism, but our expensive and cronyism riddled penal state. It is not the vast rightwing conspiracy, but the far more powerful centrist alliance of high incarceration/high carbon political and economic interests that will benefit from removing Van Jones.

[Cross posted on Prawfsblawg]

The Fear Lobby Puts the Brake on Prison Reform in Sacramento

California's Assembly today voted out a weakened version of the plan for reducing prison spending and population in California that the Senate approved earlier this month and which Governor Schwarzenegger has said he would sign. The differences are not large in terms of dollars (200 million short of the overall 1.2 billion cut promised in July), and parole reforms adopted by both houses may help the state meet the population cap described by the Federal courts. [Read the Sacbee coverage by Jim Sanders]. More worrisome is the success of the law enforcement lobby (correctional officers, prosecutors, some police and sheriffs) in terrifying Assembly Democrats (who have the votes to carry reform with no Republican help) against supporting a sentencing commission, or further effort to encourage alternatives to incarceration. No real reform in this state is possible unless we revisit the incoherent and fragmented sentencing system that has grown up since 1976. The current system, which was designed by no one, allows prosecutors freedom to spend the state's money on future imprisonment costs at will, while providing little or no power for the state to exercise judgment about who goes to prison for how long, and no incentives for counties to solve local problems at home.

The Federal courts are not our problem. They are only an alarm seeking to awaken us to our desperate need to revisit our public safety strategy. For over three decades we have acted as if prison = public safety, no matter who goes there, for how long, or to what end. As our fellow citizens in LA choke from the smoke of the spreading wildfire in the mountains, we must confront the emerging new threats that confront all Californians from the catastrophic combination of environmental risks and infrastructure failure (remember Katrina, 5 years ago this week!). Unless we unlock the resources locked in our golden fortresses, we simply cannot pay for the public safety we need. We have built prisons while ignoring police, sheriffs, first responders, probation officers, mental health workers, child welfare workers (who might well have discovered the stealthy kidnapper Philip Garrido if neighbors had called them rather than the police to complain of mistreated or neglected children). All of those resources can be moved around flexibly to deal with emerging threats of all kinds, criminal, environmental, or infrastructural (or all three). Prisons can do nothing to help protect us against these threats.

Again, the courts are an alarm clock ringing, and our political leaders, if given the chance, will hit the slumber button. Don't let them!

Garrido, Parole, and the Criminological Fallacy

Police and parole authorities in Northern California are wracked with guilt and self doubt today as they struggle to understand and explain how a registered sex offender who had been on continuous federal and then state parole for decades could have kept a girl he kidnapped in 1991, and later the two daughters she bore him in captivity, undiscovered for 18 years. The horrifying saga began when eleven year old Jaycee Dugard was dragged into a car from a Lake Tahoe school bus stop in 1991 (as her stepfather watched helplessly from their hill top home a block away). Garrido apparently brought her to his Antioch, California house, where he kept her, secreted in a walled off section of his heavily treed backyard in the semi-rural neighborhood 25 miles or so from San Francisco (an area recently known for methamphetamine and foreclosures). As Maria L. LaGanga and My-Thuan Tran report in the LA Times, the Gothic horror of the story is giving way to anguished search for an answer as to how such a monstrous plot could be carried out by someone under the surveillance of multiple law enforcement agencies. The oversight is especially embarrassing to the state's parole service which had full powers to search without a warrant, and was charged with visiting Garrido at least twice monthly in his home. How could they have missed this?

[Read the rest of this post at Prawfsblawg]

Can More Cops Equal Less Prisons?

Eric Bailey reports on an intriguing conundrum in today's LATimes, will federal stimulus money channeled to state law enforcement frustrate the state's declared policy of reducing its prison population by sending yet more low level offenders to prison? Of course the law professor's answer is "it depends." It depends on how those police officers view their job.

[Read the rest of this post on Prawfsblawg]

Is Mass Incarceration the New SUV

How fast things can change in American. One day you feel punked not to have an Expedition or Sequoia to drive to the mall in, and a couple of years later, you wonder who left that unsightly gas guzzler in your garage. Is mass incarceration about to flip? I've posted on its legal problems, but consider its cultural profile.

[read the rest of this post at Prawfsblawg]

Race Riot in Chino Prison: Racism as Default Government

Sometimes it seems as if mass incarceration is magical mirror in which we Californians see ourselves not as we might hope to be, but in our ugliest and scariest forms. That is particularly true of race in California prisons where news of one of the most serious US prison riots in recent years emerged from Chino California, where a prison dormitory was burned down and 55 prisoners treated for injuries inflicted after hours of fighting, some serious enough to require continued hospitalization. The news coverage (read the LATimes) suggests that the conflict broke out across racial lines.

To many, the fact that African Americans and Latinos are highly over-represented in our prison system is evidence of the continuing existence of racist governance in a state with a long history of white voter fear and animus toward Asians, Latinos, and African Americans. To others, riots like the ones at Chino highlight an underlying violence in California's prisoner population that underscores the danger of reforms aimed at shrinking the prison system. But the truth may be less dramatic on both counts, more the product of institutional failure than deep seated racial animus.

My observations (limited) of California corrections in recent years suggest that race operates as a default way to manage risk (for both the prison system and the prisoners) in a system of mass incarceration which has both lost any semblance of traditional prisoner community, and has failed to provide a secure and dignified life within a penal complex to which hundreds of thousands are consigned for years and many tens of thousands for decades of their lives. This basic lack of planning for anything but warehousing bodies has been exacerbated by the systemic overcrowding that has brought the system under federal court control. Lacking a meaningful set of norms that unify all prisoners in a common society, or a prison program that assures a secure and tolerable common existence, prisoners fall back on easily mobilized alliances of race, geography, and immigration status. Lacking a political mandate to develop a meaningful correctional vision, the prison system falls back on race based classifications (a lawyer recently recounted seeing a "no black visitors today" sign on a prison he recently entered that was under a lockdown).

The problem is not racism itself but racism as a default replacement for decent governance.

Federal Court Orders California to Reduce its Prison Population

In a historic ruling certain to move quickly to the Supreme Court, the 3 Judge court of the Northern and Eastern districts of California, operating under the Prison Litigation Reform Act in the consolidated cases of Coleman v. Schwarzenegger (NO. CIV S-90-0520 LKK JFM P) and Plata v. Schwarzenegger (NO. C01-1351 TEH ), has found that only substantial reductions in the present prison population can allow remedies in the underlying cases (involving health care and mental health) to move forward. Stating that a reduction to 130 percent of design capacity (currently at about 200 percent) was reasonable, the court nonetheless settled on 137 percent as in keeping with the PLRA's demands for least intrusive remedies. That means a reduction of approximately 45,000 inmates. I will post a lengthier analysis when I can get through 184 page opinion.

Parole Manson?

Film maker John Waters makes a great case in a post on Huffington Post for why "Manson girl" Leslie Van Houten, who was convicted with Manson for the murders of Leno and Rosemary LaBianca forty years ago, should be paroled. Waters argues that Van Houten, like the other tools of Manson's insane meglomaniac plan to become the supreme leader following an apocalyptic race war (or Helter Skelter) which he hoped the Tate and LaBianca murders would create,was brainwashed by the heavy drugs and cult like practices the family engaged in. She long ago broke with Manson, and accepted responsibility for her part in the terrible killings. During decades in prison since (and one short stint free after her conviction was overturned) Van Houton has transformed herself. Waters notes that other women on death row at the time the penalty was struck down and all such sentences converted to life were all parole after nine or ten years. Why is Van Houten (and the others) still in prison? Because no crime has ever generated as much popular fear as the Manson family killings, and fear of crime governs in California.

I second Water's proposal that we parole Van Houten. She is a threat to no one and by the standards of most of the rest of the planet, forty years, even for a brutal murder, is excessive punishment. I would go one further. Maybe, and I say this without having had a chance to review his prison records, we should consider paroling the man himself.

I have come to believe that our state's commitment to mass imprisonment is anchored in a deep fear of violent crime that may well have crystallized first around the Manson murders. Our out of control fear of violent strangers, leads to over-punish both the violent and the non-violent (who we fear may turn violent). We need to purge ourselves of this fear in the most potent proven way; by facing it. Paroling Van Houton in a way is too easy. We really aren't afraid of her. But if Manson himself, now 74, were released, albeit under heavy supervision, and he lived out his days without harming anyone, it would be a dramatic experience akin to a person with a spider phobia allowing a tarantula to walk over their naked body.

Is it absurd to consider paroling Manson? Again, I don't know what his prison record is like and I doubt he has ever accepted responsibility for the crimes. Still, at 74 he is unlikely to develop another group of LDS popping disciples around him. Of course the families of Sharon Tate and other victims will feel outraged, but really how much punishment is warranted? In much of the world even mass murderers get out of prison eventually. Indeed, most of the Nazi high command that was not executed, was imprisoned for less than 25 years. Perhaps Manson should never be paroled, but a parole process that gave him real consideration would be step in the right direction. In the meantime lets parole Van Houton and the rest of that sad and misguided group of former devotees for whom "creepy crawling" for Manson was the ultimate "bad trip."

President Obama and the Paradoxes of Policing

The end of the week controversy over Professor Henry Louis Gate's arrest in Cambridge, and President Obama's own comments on that arrest, may have presented the nation with a "teaching moment" about race and policing (Gate's words quoted in the NYTimes story by Peter Baker and Helen Cooper). It has already been one about the national importance of police power since the "war on crime."

First, the idea tha President Obama erred by making a "neighborhood story" into a "national" one is wrong historically. Policing the neighborhood has been a national issue since the mid-1960s. Every president since LBJ has posed as frequently as possible with large phalanxes of uniformed local police. The politicians who have most sought public police support, including Bill Clinton, George W. Bush, and Rudolph Guliani, have all reaped national benefits. If President Obama did something different it was varying from the tone of reverential solemnity and adoration in describing the "boys in blue". I will leave it to our linguists to parce whether the President's use of the phrase "stupid" was a mistake that opened the door to class conflicts, I suspect that no matter how carefully he had crafted his message, anything recognizably critical would have been met by the kind of response it has. The first paradox than is that police operate locally but since the "war on crime" became a national crusade, police have become what the military is in foreign wars, a sacralized metaphor for the national public itself. Sgt. Crowley, once surrounded by the national police community and the deeply ingrained media love affair with the police (anchors are almost as eager as politicians to pose with them), is actually the equal of President Obama in stature.

[read the rest of this post on Prawfsblawg]

Memo to the bond market

Ok, I know nothing about bonds (its basically a loan, right?), but I have watched California prisons grow steadily over the second half of my now 50 years. While it looks certain that the California legislature will pass, and the governor sign, the complex budget compromise (read the SFChron coverage), if I were loaning money to the state on the basis of there budgetary projections, I would start worrying now. Specifically, 1.2 billion in savings in the fiscal year is promised from cuts to the Department of Corrections and Rehabilitation. Republicans initially balked at voting for the overall package if it included the corrections cuts which assumed prisoner populations reductions (the dreaded early release). They compromised at voting for the 1.2 billion cut without any specification as to how it would be obtained. That will leave the Democratic majority free to enact specific prison policy shifts on a majority vote (rather than the 2/3 constitutionally required for budget resolutions) and the governor, theoretically willing to sign it. But the Republicans have promised a major debate against "early release" backed by law enforcement and the correctional officer's union. It is quiet possible that enough Democrats will defect or that Schwarzenegger will decide not to sign the bills that emerge. More importantly, for any promise of long term sustained correctional cuts to be believable, you need to see the magic words "sentencing commission" in any package of correctional policy changes. Short of that, do not loan us money withoug "juice loan" premiums.

Read my lips, "no early releases from prison"

As day light breaks over the second day of California's epically ugly budget compromise there are signs the deal may yet fall apart on the way to a legislative vote later this week. The problem is not that draconian cuts in social services to the poor and disabled, the open thievery of county revenues, or the very obvious gimmicks like moving the dates of pay days from one fiscal year to another, its the possibility that some California prisoner, somewhere, may leave a prison early.

[read the rest of this post at Prawfsblawg]

The Wise Prosecutor

In chapter 2 of my book, Governing through Crime (OUP 2009 pap), I describe how the war on crime transformed the political significance of prosecutors:

The prosecutor has long been a unique and important officeholder within the American systems of justice and government, with deep but limited powers and a special claim to represent the local community as a whole. In the last decades of the twentieth century, however, the war on crime reshaped the American prosecutor into and important model for political authority....

That authority was on display in the past two days of Sotomayor hearings as the Judge deflected some of the harshest attacks of Republican Senators by invoking either her law enforcement perspective generally, or her prosecutorial experience in particular. The tactic has been quite effective. Not surprisingly, Senators of both parties are disinclined to follow their critique of Judge Sotomayor's subject perspective into a concern for her possible bias against criminal defendants or to question the appropriateness of empathy when it comes to real or possible victims of violent crime. Below the fold I offer a few examples.

[read the rest of this post at Prawfsblawg]

The Rule of 10

I started last week with the proposition that sentences for violent crime are too long and that overly long sentences for the violent anchors a system of mass imprisonment. I want to come back later to the dynamics that might explain how fear of violence generates support for incarcerating the disorderly, but for now I want to raise a more provocative point. How long should prison sentences be for violent crime? I do not have an answer, but I do I have a hunch I'd love to get some reaction to, it is what I'll call, the rule of 10. Putting aside what to do with violent recidivists (a person who serves a lengthy prison term for a violent crime and then commits another such crime on release), and the kinds of especially heinous murders that are sometimes still punished with death in the United States, persons convicted of willful injury (or even killing) another, should generally be released after not more than 10 years of imprisonment. (I'll reserve for now the question of whether indeterminacy could be built into that to prevent the release of those prisoners who seem to pose a particularly extended risk given their behavior in prison).

[read the rest of this post at Prawfsblawg]

Reconsidering the Punishment of Violent Crime

For those of us who believe that America imprisons too high a portion of its population, recent years have seen mixed progress. Many states have adopted measures that aim to move drug-addicted offenders involved in drug and property crime from jail or prison toward treatment under the threat of jail. Other categories of prisoners who seem to be enjoying some increase in sympathy from the public and politicians include women (whose crimes are often tied up with the criminality of abusive partners, and whose loss from the community often leaves a bigger hole than with men), juveniles facing long prison terms, and parolees returned to prison on technical violations (this may be a unique California problem but it includes tens of thousands of prisoners). This approach has lots of political appeal right now, but it will not work to achieve a substantial and enduring reduction in the US rate of incarceration. Instead, against all political common sense, I believe we need to directly address the extraordinarily harsh prison sentences we now hand out for violent crime.

[continue reading this post on Prawfsblawg]

Mass Imprisonment: The Birth of a Social Problem

Looking around for a dissertation topic in 1986, I followed the lead of my adviser, Sheldon Messinger, and began to look more closely at California's rapidly growing prison system. I came to focus in particular on the parole system that was supposed to guide prisoners back into society, but which instead seemed to keep them cycling back to prison (see my 1993 book Poor Discipline: Parole and the Social Control of the Underclass, 1890-1990 for the details). California's prison population had already increased more than 100 percent since I began as an undergraduate at Berkeley nine years earlier in 1977 (we took our time in those days). Many people, especially academic criminologists, doubted the wisdom of sending lots of felony offenders indiscriminately to prison (let alone parole violators), mainly because they did not believe it would reduce crime (others did believe, especially James Q. Wilson). Messinger was one of the few beginning to worry outloud (although not in print) about how this massive increase in the scale of imprisonment would effect society more generally. I was able to communicate some of his disquiet empirically in Poor Discipline.

The turnabout in that perception is now quite visible in academic research, and increasingly in public discourse. Erik Eckholm's excellent article on the children of the incarcerated in yesterday's NYTimes is a case in point. But while the emergence of mass imprisonment as a social problem in its own right is an encouraging sign (for those of us who would like to reverse it), it will only get us part of the way there.

[to read the rest of this post with all the links on Prawsfblawg]

Durkheim's Law and Order

A terrible crime is committed, the kind that brings scores of relatives to their knees in grief and sets thousands more on edge; the kind of crime that can lead people to question their own sense of the rightness of the moral order in which they live. A wrong doer is identified. Upon him the moral outrage of the community is turned. Through the expression of that outrage in punishment (originally in the most physical and painful ways), the sense of rightness to the moral order is restored.

[The rest of this post can be read on prawfsblawg where I will be guest blogging this month and next]

How much time for Madoff?

The New York Times reports that Bernard Madoff has been sentenced to 150 years. This is the sentence that the US government had sought, and apparently the harshest sentence possible (read Jack Healy's reporting). As insurance actuaries will remind us, the 71 year old financier will likely cheat that sentence by upwards of 130 years (although not through parole. What are we to make of this, apparently largely symbolic sentence?

First, Madoff's case reminds us that the line we often draw between "violent crime" and all other forms of crime, including felony property offenses, is deeply problematic. Property, especially life savings, cannot be easily separated from physical and emotional harm, certainly not in a society that relegates the poor to misery as easily as ours. Madoff's highly deliberated and planned crimes will exact a toll on many of his victims that will take the form of illness, depression, and possibly shortened lives. When we assume that violence is ontologically different, we also create all kinds of preferences based on class and race (who has opportunities to steal without violence).

But if Madoff deserves to be punished as severely as some of our most serious violent criminals, we should also note that we tend to punish violent crime very severely in America, compared to most of our peers and to our own history. In much of Europe, ten years in prison custody for an ordinary homicide is very much the norm, with 25 or more years reserved for mass murderers and war criminals. In the US, many prisoners convicted of ordinary homicides serve 30 or more years because of risk averse parole boards.

Given that we cannot sustain our current level of social investment in incarceration, and that we cannot reduce it adequately without reviewing our long sentences for violent crime, I would favor moving our punishment for the most serious violent offenders back into line with European ranges. On that scale, Madoff deserves to serve somewhat less than a mass murderer, and somewhat more than an ordinary murderer, which brings me to 17-22 years. Still likely to be life in prison for Madoff, but some incentive for him to behave in prison.

Prison Hospital Compromise Falls Apart

According to Bob Egelko's reporting in this morning's SF Chron, Governor Schwarzenegger has disavowed a deal negotiated between Clark Kelso, the received named by Judge Thelton Henderson to oversee the creation of constitutionally adequate medical care in California's super overcrowded prisons, and Mathew Cate, the Director of the feckless Department of Corrections and Rehabilitation. Under the compromise, Kelso and the court would reduce the 10 year 4 to 8 billion dollar hospital construction plan, to a 4 year 1 to 2 billion dollar plan while moving forward to restoring state control over prison medical care.

This compromise made sense. No one really wants to see California spend 8 billion building prison hospitals while ignoring the health deficits of millions of poor and working class Californians. The hope would be that four years from now, the state would be on track to a reduced prison population that would no longer require the additional 2 to 6 billion in new investment.

With the Governor disavowing the plan in favor of his new found budget cutting zeal, it will be up to the federal courts to decide how much to spend and when. In the meantime, we need the competitors for the 2010 California gubernatorial race to address how they would solve this problem.

The core of a more promising approach is to follow Massachusetts and make California the health provider for all poor Californians. This population would include nearly 100 percent of prison inmates but being in prison would no longer be a requirement for having a right to health care. In this system the state could build new hospitals for the use of all Californians and use prison (and parole) as an opportunity to drive down the state's health care costs by making prisoners healthier. You already cannot smoke, drink or take drugs while you are in prison. Introducing healthy diets and regular exercise could be the new form of "tough on crime" in California!

Don't fix California's Death Penalty, Replace It! But with what?

Jon Streeter, Bill Hing,Diane Bellas, make the case for why California's broken death penalty should be replaced rather than repaired, in an op-ed in today's San Francisco Chron. Streeter, Hing, and Bellas, a leading criminal defense lawyer, law professor, and public defender respectively, served on the California Commission on the Fair Administration of Justice, make mince meat of Senator Tom Harmon's recent oped calling for an end to lengthy appeals in order to fix the death penalty.

As the senator states, "the death penalty system in California is broken and unworkable." We found that it now takes an average of 25 years for death penalty cases to move through the mandatory court review process. However, the reason these appeals take so long is not because of "legal maneuverings." The primary cause of these delays is the lack of attorneys willing to take these cases and the lack of court staff to review them. A person sentenced to death today in California will wait eight to 10 years before an attorney will be appointed to represent him in a legal challenge to his conviction. Without an attorney, there are no legal maneuverings at all....

How do we fix all of these problems? With money. Our commission considered myriad measures to reform the state's death penalty system and recommended several. If all of the reforms we recommended were implemented, the state would reduce the risk of wrongful conviction while still being able to process death penalty cases more quickly.

We currently pay $137 million each year for the state's dysfunctional death penalty. Implementing our recommendations would cost an additional $95 million, for a total price tag of $230 million each year. Because it would take many years to increase the pace of review of death penalty cases, we would still need to build a new facility to house the people now on Death Row, at a cost of $400 million.

The attorneys propose replacing the death penalty with "the sentence of permanent imprisonment: life with absolutely no possibility of parole." Here I would dissent slightly. While we are asking Californians to take a realistic look at how we punish the most serious crimes let us level with them completely and acknowledge that permanent imprisonment with no hope of parole is not necessary to assure public safety, makes the process of incarceration itself nightmarish for both inmates and staff, and is considered a human rights violation in the rest of the civilized world. A sentence of life imprisonment, with parole only after 25 years, the sentence for first degree murder in California, is plenty of punishment. We already keep most of our non-capital murderers in prison for well over 30 years, and we need to reduce those excessive sentences. There is a long history of making bad murder law in order to limit the death penalty, let's not do it again.

We need a whole new scale. Make 25 to life the new sentence for first degree murder with special circumstances. Move regular first degree murder back to 20 years to life (keep in mind prior to 1980, most 1st degree murderer's were released within 10 years), and move second degree murder to a determinate sentence of 10 to 20 years.

Governing through Vice

Before that, the Basij, including female units, had been used primarily as a kind of vice squad, looking for drug addicts, prostitutes and mostly women but also men wearing immodest dress.

Neil MacFarquhar, reporting in yesterday's NYTimes notes that the Basij, the often motorcycle driving "volunteer" militia that have been the shock troops of the Iranian government's violent suppression of Tehran's protests, have their origin in the vast policing of "vice" that goes on in Iranian society. Tactically, this means the government's elite Revolutionary Guard (where most of its recent leaders have come from) is given tremendous capacity to act at the micro-level of society through this extensive network of informants and government agents.

That combination means that the military has rather intimate knowledge of the populations of cities and neighborhoods across Iran. “They organize in every office, every university, every mosque,” said Fatimah Haghighatjoo, a former reformist member of the Iranian Parliament who is now a visiting scholar at the University of Massachusetts in Boston.

It also suggests that the actual legitimacy of Iran's regime, like ours, relies heavily on the identification (and construction) of a vast sea of evil and deviance within civil society whose elimination becomes a raison d'etre for an expansionist state. In both cases, drugs fill a major role in populating that army of deviants against which state repression can be marketed to the people as a form of freedom.

We Don't Deserve, and Can't Afford, Another Election Governed by Fear

In the midst of our worst fiscal crisis in a generation or two, Californians are about to be confronted with another high cost television waged gubernatorial campaign. With two billionaires lined up on the Republican side, and well connected Democratic competitors, the spending, even in the midst of a Depression, will be unprecedented.

Both the terms and the present competitors for the job render unlikely any chance that an honest debate about restoring the effectiveness of California government will take place. However we must and can avoid a campaign dominated by hot button fear issues that have proven effective in good times and bad to lead Californian's to make serious mistakes at the ballot box (Juvenile Crime, 3-Strikes, Jessica's Law, etc). We cannot afford to wake up the morning after the next election, having chosen the candidate most capable of demonizing some insignificant but visually compelling threat to public safety.

This is not an issue of left versus right (as Gray Davis should be enough to remind us), but instead the alliance between almost all the mainstream politicians, the media, and key crime fear constituents (prosecutors, organized crime victims, CCPOA) that matters most in determining whether we end up with another 1994 (when in the midst of a dismal economic decline, the election between Pete Wilson and Kathleen Brown was dominated by phantoms of crime). Keep your eye on the media's ability to keep these hot button issues in the headlines (read Jaxon Van Deberken's latest effort to keep one of the newest hottest hybrids out there, the illegal immigrant, combined with potentially violent juvenile criminal, going in today's SFChron). Perhaps we need to call out this kind of reaction formation early, before it can shape the entire bandwidth of the debate.

UCSQ

I visited San Quentin prison yesterday to deliver a lecture to a classroom full of prisoners who are mostly students in the remarkable prison university project that has provided college level course work through volunteers since most official links between prisons and universities were severed by the noxious Violent Crime Control and Law Enforcement Act of 1994 (which eliminated eligibility for prisoners to obtain Pell grants). As in my previous visits, the men subjected my arguments to a complete and skeptical review of the sort that I only rarely get from my Berkeley students (who after all have many more professors competing for their attention, not to mention the internet delivered in high speed wireless to their laptop). I walked away with many more ideas than I came in with.

One of them was this. Let us take advantage of California's massive budget crisis to establish links between prisons and universities all over this state. Universities are brimming with students looking for opportunities to combine public service and learning. Prisons are brimming with adults with the time and attention to devote to college level course work. Student staffed clinics could provide all kinds of services to prisoners preparing for their release back into the community. As fellow students in faculty taught college classes, prisoners could teach students about the realities of growing up in some of California's most disadvantaged neighborhoods and surviving in the State's toughest prisons.

Accommodating this kind of exchange will pose serious challenges to correctional officers and managers, but if college based programming proved attractive to a substantial part of the prisoner population, the gains in improved prison order and reentry success might be rich indeed. San Quentin has an ethos I have not felt at other California prisons, and which I believe comes from the relatively open links that bring volunteers, journalists, teachers and other community members behind the walls.

It will also stretch university resources mostly in the staff and faculty time while both are already taking pay cuts through "furloughs", while opening up vast pools of knowledge currently inaccessible to our students and faculties.

Too Much

Part of our problem in California is that we imprison way too many people who do not need to be in prison at all (virtually all drug offenders in my view). But part of our problem is that we imprison people who do need to be in prison for way too long. Case in point is Jared Adams, 26, of Oakland.

Jared needs to be in prison. He was convicted of a string of serious violent felonies committed in late December 2007, and early January 2008. Adams was convicted of firing three shots during an armed robbery of a service station, one of which paralyzed Christopher Rodgers (now 12) as he was taking a piano lesson in Oakland. Adams also tried to carjack an automobile on the streets of downtown Oakland by pointing his gun in the face of the driver (who turned out to be Senator Don Perata of Oakland).

Is Adams a danger to his community? You betcha as Sarah Palin might say. Does he need to be isolated from the community and lose his freedom? Oh Yeah. But for how long?

Yesterday Judge Larry Goodman of Alameda County Superior Court sentenced Adams to 70 years to life in prison, meaning Adams, now 26, will not be even eligible for parole until he is 86. According to Demian Bulwa's reporting in the SFChron (read it here), Judge Goodman took the occasion to forcefully express his frustration with violent crime in Oakland:

"In Mr. Adams' world, there are simply victims and predators, and when they see something they want, they take it," Goodman said in sentencing Adams in Alameda County Superior Court.

He called Adams a parasite in a city where residents are frustrated with violence. Then he read out all of Adams' convictions and their corresponding sentences, a process that took more than 15 minutes.

But is frustration and anger the best foundation for judgment? Consider this. Jared Adams is a scary guy right now, but what will he be like at 40? When was the last time you read about a 40 year old shooting up a service station, or carjacking an automobile in broad day light? It doesn't happen. Criminologists have known for decades that aging diminishes even the most potent criminal motivation.

So from 40 on, through his 50s, his 60s, his 70s, and his 80s, California tax payers will be paying some 50K a year plus inflation to house Mr. Adams, who will no longer pose virtually any risk to the community.

And how much do you think Mr. Adams will feel those decades going by as punishment? Assuming he hasn't become completely insane (which does happen), the experience of most long term prisoners suggests that after a decade or two, people adjust to prison life and no longer feel its deprivations.

So for forty of the next sixty years you, and I, and our kids, will be paying to house Jared Adams in a state prison, even though he will no longer pose a risk to us, and will no longer experience it as punishment.

Thanks Judge Goodman

Arnold, Lead

Listening to Governor Schwarzenegger on the California Report this morning (listen to KQED), it was impossible not to hear the frustration. The money to fix California's budget woes and reset our priorities is there, but only if, like Dillinger, we go where the money is, prisons. The scale of California's massive and unconvincing correctional system is such that there is no practical place to go to find the resources to fund California's groaning infrastructure priorities.

But while the Governor has always appreciated the need to reform our prison and parole system, he has yet to step before the people and make the case that the only meaningful reform must include changing who goes to prison and for how long. Currently that decision is made primarily by county prosecutors who have every incentive to over use prison and no responsibility for balancing the overall budget.

We can talk about how to accomplish that (whether by reduced upfront sentences, or more discretion to release prisoners early at the other end), but the only honest public conversation about getting California out of her crisis of mass imprisonment begins with that premise. I still believe that Arnold Schwarzenegger is the one politician in this state who could effectively begin that conversation.

The hour is late. Can you still lead?

Can California's Dysfunctional Death Penalty be Fixed?

Tom Harman, Republican legislator from Huntingdon Beach, lays out the case for why California's death penalty is unacceptable in an oped in today's SFChron.

In 2008, the California Commission on the Fair Administration of Justice issued a report stating that the death penalty system in California was failing. In California, as of 2008, 30 inmates had been on Death Row for more than 25 years, 119 for more than 20 years and 240 for more than 15 years. Is California doing something wrong? Absolutely.

Delays in obtaining legal counsel, the appeals process, court-ordered moratoriums and other stalling tactics are routine. These delays ultimately place more value on the life of a convicted criminal than on that of the victim. I believe this is unacceptable to the victims, their families and the voters.

The sad truth in California is that killers on Death Row are far more likely to die of natural causes than at the hands of the state. As the commission noted, the interminable delays that have become the hallmark of the system have weakened the death penalty's effect on deterring crime.

He might have noted that the whole enterprise, which has resulted in only 13 executions in 37 years, has cost Californian's billions.

But having stated the truth with admirable clarity, Representative Harman retreats to classic political wishful thinking. Delays are the fault of over zealous defense lawyers, voters are endlessly in love with capital punishment, the legislature just has to step up and "fix it. Unlike his description of the problems, none of these politically satisfying claims adds up.

For one thing, the major source of delay in the system is that California does not provide a lawyer for prisoners sentenced to death for their direct appeal to the California Supreme Court, for an average of five years. We are not talking about Cadillac, due process here, a lawyer to represent you on your very first appeal to the State's own high court is the absolute minimum required by the US Supreme Court for decades. Without such representation, California would be proposing to execute people who have not even had a simple opportunity to test whether their trial complied with California and Federal law. Californian's may love their death penalty, but they are not interested in executing the innocent, or those whose trials have violated the fundamental requirements of due process (fortunately the US Supreme Court would not actually allow us to execute anyone under those circumstances).

Can the legislature fix that? Sure, start by doubling or tripling the size of the budget to pay for appeals lawyers. Of course rich people on death row should pay their own way, but there are not many of them there. For the vast majority on death row who are poor, the state has a constitutional obligation to provide counsel on direct appeal. Finding millions more dollars in our current budget situation will be,er, challenging. It is not likely that Representative Harman's Huntingdon Beach constituents would support paying higher taxes in order to hire more defense lawyers, but I would admire him for advocating that.

There is another way. Over the decades politicians have enthusiastically added ever new "special circumstances" to California's death penalty statute, making it possible for willing prosecutors to seek the death penalty against virtually any murderer. Prosecutors in Kern County have very different judgments in such matters than prosecutors in LA County, but both have the power to obligate California tax payers to spend millions of dollars on appeals to sustain any death sentences they obtain (counties do face huge upfront costs for trials). If Californian's cannot imagine giving up on the death penalty, let us at least limit that hugely expensive sanction to a narrow category of crimes that are both heinous and deterrable. The most obvious one would be a deliberate murder by a prisoner already under life sentence. The result would be a much smaller death row and much quicker executions. The cost would be facing down the special interests who want to see their own worst nightmares symbolically represented in the state's capital statute.

Embarrased by Torture? How about Executions without Trial

Unable to make a clean break with the Bush administration's criminal policies at Guantanamo (and elsewhere), President Obama is now compounding the problem of how to try alleged terrorists with evidence derived from torture, by seeking to execute them without trial. According to William Glaberson's reporting in the NYTimes, the Obama administration is considering allowing martyrdom seeking detainees to plead guilty and be executed without trial.

Having shamed ourselves before the world with torture, we are no doubling down our shame by executing (itself a human rights violation) people without trial.

Enough. Close gitmo now!

Governing without Fear

I have not yet had a chance to see all of President Obama's remarkable speech in Cairo, but what I have seen (read the text here in the NYTimes) it continues his theme that progress in all spheres begins with diminishing the fear of the other.

Speaking to a Muslim audience in Cairo, Obama noted that Israeli's and Jews everywhere, continue to be shaped by the terrible trauma of the Holocaust. When Muslims deny the Holocaust, or trade in anti-Jewish stereotypes to voice their grievance against Israel, they push these fear buttons.

Around the world, the Jewish people were persecuted for centuries, and anti-Semitism in Europe culminated in an unprecedented Holocaust. Tomorrow, I will visit Buchenwald, which was part of a network of camps where Jews were enslaved, tortured, shot and gassed to death by the Third Reich. Six million Jews were killed – more than the entire Jewish population of Israel today. Denying that fact is baseless, ignorant, and hateful. Threatening Israel with destruction – or repeating vile stereotypes about Jews – is deeply wrong, and only serves to evoke in the minds of Israelis this most painful of memories while preventing the peace that the people of this region deserve.

When Obama asks his audiences to look past their own trauma to consider the position of the other, he is repudiating the politics of governing through crime in the strongest possible way. When we govern through crime we place our own fear and trauma at the center of reality, and cast the other, whom we fear, out into the darkness where they become every more frightening. The previous administration built this logic into a global war on terror that produced ever more fear and ever more terror. In Cairo, President Obama is laying down a vision of governing without fear that can unlock the peace process between Israel and Palestine, and that can unlock American's from their prisons of fear.

Security and the Police

The events of 9/11, subsequent terrorist atrocities, the threat of guns, drugs, international serious and organized crime ... license extraordinary and exceptional measures; the suspension of normal rules and procedures; derogation from rights and principles; and even states of emergency. In the name of security, things that would ordinarily be politically untenable become thinkable.

Lucia Zedner, Security (Routledge 2009)

Sarah Lyall reports in yesterday's NYTimes on the horrendous violence unleashed by London's famed Metropolitan police on overwhelmingly peaceful demonstrators at the G-20 Summit meeting in London this past April. After being driven into smaller groups inside enclosed spaces, a practice known as "kettling," demonstrators were subjected to repeated charges by baton and shield wielding police. More than 180 demonstrators have filed formal charges against the police, "some suffering from concussions, broken bones, and other injuries." A 47 year old news-stand employee, who was simply trying to get home, ended up dying after an officer hit him repeatedly over the head with a baton.

These scenes of mayhem may not seem too unfamiliar to Americans where police riots at the Democratic National Convention in 1968 remain well remembered, and where demonstrators have long been corralled away from the meetings of their leaders. In Britain, which more or less invented the police as a force of violence subordinated to the rule of law (as opposed to an armed extension of the King's power), this kind of police violence remains shocking.

In both countries, the demand for security against the threat of criminal or terrorist violence, has begun to truncate and fragment the civil rights and liberties that sustain a democracy. The police, an institution crucial to the practical enforcement of the rule of law in a democracy, are not the primary sources of this transformation, but they are easily infected by it as the agency most readily brought to bear on perceived threats to security. In the long run this transformation will lead to a slow normalization of emergency rule in which democracy collapses into an empty ideal and the insecurity of ordinary citizens attempting to use their streets for expression or commerce becomes permanent.

Fire My Wife!

Dear Governor Schwarzenegger,

As you and your colleagues in Sacramento set about trying to address California's mammoth budget deficit, there is one state institution that deserves to head up the list for elimination. It is our decrepit and dysfunctional death penalty. With over six hundred prisoners under sentence of death, California is spending hundreds of millions of dollars each year to litigate their cases in court. The beneficiaries of this spending include my family, since my wife is an attorney who represents death row inmates.

By commuting the sentences of all California death row inmates to life in prison, you would immediately and without help from those "girly men" in the legislature, eliminate or greatly reduce the expensive litigation in these cases and close whole offices like my wife's which exist only to represent those on death row. Those prisoners could be moved to high security prisons all over the state and San Quentin could be prepared for sale and or remodeling as a smaller re-entry facility.

Yes I am opposed to the death penalty, but that is not the point. Even the most vigorous death penalty supporter can find nothing to love in our pathetic death penalty. We have spent billions to execute about a dozen inmates over 35 years. Taking 20 to 25 years to execute someone eliminates any deterrent value, and sense of closure for the victims, and life in prison provides completely adequate incapacitation. In other words, we are spending billions just to say we have a death penalty, when we actually don't.

Before you cut funding from our kids' public schools, before you take county money needed to pay for cops and probation officers (read about the latest prospects in the SFChron) let's axe this useless institution.

Sincerely,



Jonathan Simon

Reality TV

A friend from southern California wrote the other day to share a nightmare that I have come to believe lives at the heart of the whole "governing through crime," "culture of control" regime. No, thankfully neither she, nor anyone in her family were killed or injured in a violent crime. (Sadly that happened to friend of ours who was killed in a robbery near an Oakland ATM in the late '80s or early 90s). That happens to many, but even in America it is not widespread enough (and is too concentrated among the poor) to found a political regime. The nightmare we can all imagine, if we haven't actually lived it, is a potentially violent "criminal" penetrating or attempting to penetrate the sacred precincts of our home. It is that nightmare that keeps us seeking to live as far as possible from the city center where we imagine such criminals live, and which leads us to squander billions to mass incarcerate as many of them as possible.

In this case, Pam's 11 year old son Ellis and a friend were enjoying a swim in his grandparents home (around the corner from their Studio City house), when an LAPD chase of two reported shooters in a BMW terminated in a pretty spectacular automobile accident just outside. In a remarkable helicopter live video and voice over from WABC7.com, the final minutes of the chase and the aftermath have now been made available to millions.

After striking several parked cards on the suburban residential street and rolling or nearly rolling over, the BMW came to a halt. The driver and passenger can be seen leaping from the car and running toward the backyard of one of the houses. One of the runners stops (apparently ready to surrender to police who are only seconds behind), but the other jumped over what looks like a wooden fence or gate into the yard where Ellis Nicely and his pal were swimming. At this point the anchors who have been reporting the chase and the foot run as if it were a major golf tournament (referring to the exit from the car as a "foot bail-out") begin to talk in extremely anxious terms of the threat to the kids who can be easily made out in the pool as the helicopter stays over the fleeing felon who appeared to move as rapidly as possibly through their yard and over the next fence (according to Ellis, advising the boys to "chill-out" as he streaked by).

In addition to enjoying this truly enthralling piece of reality TV (I don' see how Hollywood writers can survive if the LAPD can keep delivering product like this) consider the incredibly potent doses of imaginary and real danger took place here.

To millions watching, the whole gospel of governing through crime was laid down. "You can never be truly secure from demonically animated violent criminals who are trying constantly to penetrate your home and do unspeakable things to your most precious assets. Thank G-d the police (and TV news) are on the spot."

To a few others (hopefully including the handful of readers of this blog) a parallel world opens up. There, the LAPD, based on reports of a possible shooting initiate a high speed car chase through a residential neighborhood that could easily have killed people. Just imagine if Ellis had been getting ready to mount his bike on the street outside the home. Meanwhile the runner, while clearly someone willing to engage in extremely risky behavior to self and others, appears to have zero interest in penetrating the homes of suburban people to mess with their kids. (Indeed, he appeared reasonably to be seeking some place unoccupied by anyone else to hide in).

Can We Afford the Death Penalty?

My colleague Elisabeth Semel (Director of Berkeley Law's death penalty clinic) raises some troubling questions about California's dysfunctional death penalty on the oped page of the SacBee. Lis highlights the perversity of watching California spends millions to maintain a system that whatever its theoretical benefits has contributed so little to our security or prosperity (death penalty supporters should note that execution has "resolved" only about a dozen cases since the penalty was restored by constitutional amendment in 1978 at an overall cost in the billions), while it gets ready to gut its already anemic education, law enforcement (as opposed to corrections), and social service budget.

Californians are all too familiar with the fact that while we rank 47th in the nation in per-pupil public school spending on a cost-adjusted basis, we are first in what we pay for prisons and on the administration of the death penalty. California is housing so many people on death row that it plans to build a new facility. The price of construction is $400 million and, over 20 years, taxpayers will pay $1 billion in operating costs.

Lis also reminds us of some distinguishing features of our golden state government in its executioner mode. Take for example the lethal injection protocol. Litigation over the method used to chemically kill people in California has been going on for some years even after a Supreme Court decision acknowledging the real possibility of excruciatingly painful torture to prisoners if this execution methodology is flawed. Lis' clinic has been directly involved in that litigation (something that gives those of us on the Berkeley Law faculty something to be very proud of) but the point she raises in the oped is the role of secrecy in government's approach.

It took more than three years of litigation, which the state lost repeatedly, before the attorney general's office conceded that the execution protocol must be open to public scrutiny.

Indeed, throughout the legal challenges to California's method of lethal injection, the governor, the attorney general and the Corrections Department unswervingly opposed any disclosures.

Just as with our federal government and the "war on terror," our state government finds the "war on crime" (of which capital punishment is the symbolic equivalent of nuclear weapons) an irrepressible temptation to dictatorial rule in the name of protecting the people against their darkest fears.

As Lis well appreciates, it is these temptations and fears we can no longer afford

The Budget Crisis and Mass Imprisonment in California

Governor Arnold Schwarzenegger told a news conference yesterday that in order to help close California's mammoth budget gap (15 billion if the ballot initiatives pass on Tuesday, 21 billion if they fail) he is considering commuting the sentences of thousands of undocumented prisoners and turning them over to the federal government for deportation. He would also send thousands of other "low risk" prisoners to county jails (read Matthew Yi, John Wildermuth, and Wyatt Buchanan reporting in the SFChron). A day earlier the Governor included San Quentin prison on a list of properties that the state might sell to raise cash (read Michael Rothfeld's reporting in the LATimes).

These suggestions may be intended mainly to help pass the ballot initiatives. If that is the Governator's game, it is a sad and cynical recourse to the voters' well known tendency in this state to be stampeded into bad governance by crime fear. A recourse that will reinforce our commitment to mass imprisonment.

If these suggestions are serious, they offer a mixed bag, some of which could really help us move away from mass imprisonment (and liberate more budget space for infrastructure and education among other priorities). A quick set of responses

*Deport undocumented prisoners?
It depends of course on why we put them in prison to begin with. If we are talking about a violent criminal with a track record of assaults on intimates or strangers, we might want to consider that there is a real chance they will return to California sooner then later. If we are talking about a drug or property crime, a period of incarceration followed by deportation (which is itself a serious punishment) is quite possibly plenty of sanction.

*Send low risk prisoners to county jail?
This is a winner. Jails offer a very promising way to deliver punishment without doing as much damage to an inmates' ties to the community and at considerably lower cost. Some counties will need help expanding or remodeling county jails, but many have been rebuilt as a result of seismic threats and court cases over the last couple of decades. Most criminologists used to assume that prisons were better than jails because they offered more rehabilitation, greater comfort for long stays, and were controlled by a more professionalized state work force. But the transformation of California's state prisons into a vast human warehousing system has undermined all of these assumptions. Especially if we can wean ourselves from using long sentences, short stays in clean, safe, and well managed county jails might be an excellent way to hit the reset button in the lives of Californian's whose criminal behavior has become a threat to their family or neighbors, especially if followed up by strong county probation services.

*Sell San Quentin?
The old prison should long ago have been replaced but there is a real loss to closing it. SQ is one of the only prisons in the state proximate to a great city and surrounded by numerous educational, mental health, and drug treatment services, as well as thousands of volunteers willing to come into the prison and provide all of the above. That is why it is the only prison in the state that arguably has a rehabilitative culture. If SQ is closed the state should commit itself to building two or three small prisons in the Bay Area and LA to make up for the loss of this proximity.

Crime Scouts?

Yet another reason (in addition to intolerance and homophobia) to resist my nine year old son's repeated requests to be a Cub Scout, a younger division of the (Boy Scouts of America) appeared in Jennifer Steinhauer's story in this morning's NYTimes on "Scouts Train to Fight Terrorists." Once a cub scout myself I am not unsympathetic (also his sister is a girl scout so its an equity thing). Back in the 1970s I thought of the Explorers (the older youth division of the BSA) as ultra impressive backpackers, climbers, outdoors men, but it turns out they also provided a pathway for some youth into the military, policing or firefighting. Apparently decades of "war on crime" has helped reorient the vision and the values of the explorer program even more toward violent confrontation with "stranger danger" of various real and imagined sorts.

The Explorers program, a coeducational affiliate of the Boy Scouts of America that began 60 years ago, is training thousands of young people in skills used to confront terrorism, illegal immigration and escalating border violence — an intense ratcheting up of one of the group’s longtime missions to prepare youths for more traditional jobs as police officers and firefighters.