Saturday, January 30, 2010

Our "Crazy" Penal State: Why New Rules on Insurance for Mental Health May Reduce Incarceration

Only in America would we rely heavily on jails and prisons to house many of the severely mentally ill whose untreated symptoms have driven away family and whose pursuit of self medication brings them into contact with crime and law enforcement. Two generations ago we held such people in state mental hospitals. No one intended to transfer them to jails, but a long period of declining social welfare and a war on crime has produced that result. It is thus good news that as of this July, federal law will start requiring health insurance provided by employers to treat mental and physical illness with parity (read Robert Pear's reporting in the NYTimes). For decades, insurance companies have kept benefits in general for mental illness, and hospitalization in particular, at far lower levels than equivalent provision for physical illnesses. In some cases this results in mentally ill people who have insurance coverage, being returned to the streets before they can stabilized.

Since those who end up in jail and prison are less likely to have employer provided insurance (although some dependents will), it is even more important to expand hospitalization benefits provided by government insurance programs like medicaid. Indeed, the biggest single thing Congress could do right now to reduce incarceration would be to pass comprehensive insurance legislation which would begin quickly to cover many of those most at risk of ending up in jail instead of the hospital.

Friday, January 22, 2010

Bail and Punishment: Many Behind Bars Have Been Convicted of Nothing

Most Americans believe that if you are behind bars somewhere it is because you committed a crime. Kudos to NPR's Laura Sullivan for setting the record straight with her stunning multi-part story on bail and jail in America. Bottom line, thousands of Americans languish in jails accused of petty crimes but unable to meet usurious bond fees set by bondsmen (an ominous if old fashioned term for an industry comparable to the payday loan business) while in aggregate, local and state governments spend 9 billion dollars a year housing people who pose little threat and who have not been convicted by anyone but a police officer thus far. In today's piece, Sullivan's interviews with Shadu Green, a New York City resident arrested for being belligerent to the police, underscore how this invisible system of control processes many new convictions by forcing the arrested to choose between languishing in jail for months, or accepting a guilty plea that may get them out sooner.

While Sullivan emphasized the role of bail bond companies in lobbying local government to keep the current money bail system in place, this all too familiar circuit of enterprises exploiting the poor with the help of government needs to be seen in the context of the broader structure of fear based governing through crime. While bail bond enterprises may well be effective at buying cooperation from judges and county administrators, it is hard to understand why state legislatures, who control the ultimate statutory levers, would choose to leave millions on the table for benefit of local businesses. Like correctional officers and prison construction companies, self interested politics works because of a structure of beliefs about those arrested and processed by our criminal justice system that has become part of what sociologist David Garland would call the "common sense" of high crime societies (in the book, The Culture of Control).

1. Most people arrested by the police are criminals who are guilty of something (whether or not clever defense lawyers are able to get them off on technicalities).

2. The courts routinely let dangerous criminals out almost immediately, rendering the work of police largely futile.

3. While on the streets, these unconvicted criminals return to committing crimes, perhaps a faster clip to earn enough to pay off their defense lawyers.

4. No one in the community is hurt by the absence of these presumptive "predators".

As Sullivan's reporting shows, all of these assumptions are questionable.

Thursday, January 21, 2010

After the Health Reform Crack Up: Govern through crime?

Former Clinton adviser Mark Penn lays out the case for a Bill Clinton post-1994 model for Obama to come back to the "center" and "swing voters" after the apparent crack up of his signature health reform initiative. Whatever the politics of swing v. base voters going into rather than coming out of a mid-term congressional election (which may be important) it is also worth remembering that what Clinton did in that period was to help enact some of the worst pieces of crime legislation in the history of democratic societies including a host of new federal death penalties, the Anti-terrorism and Effective Death Penalty Act of 1996, the Prison Litigation Reform Act, and many other laws that helped the states achieve unprecedented prison populations during an era when crime was already declining.

Fortunately the public is not as primed for a crime centered populist swing as it was in 1994 with the murder of Polly Klass driving the media. Still, it is hard to see where, other than in punishing despised criminals, the two parties can agree on strong sounding laws. In that spirit, and tongue only partially in cheek, look for the some of the following to take up all the extra time the Senate will have on its hands after health reform is off the table:

* A federal death penalty for insurance executives whose decisions can be shown to have shortened the life of an insured (now that's a "death panel" baby).

* LWOP for Bank executives who short their own client's position.

* Lifetime Sex offender registration and notification requirements for public office holders who commit adultery while in the District of Columbia.

Monday, January 18, 2010

The Paradox of Security in Disasters: Suffering, Looting and Delay in Haiti

As the days have passed since the devastating earth quake struck in Haiti a week ago tomorrow, two themes have dominated the media coverage: when will water and food reach the struggling survivors in the streets of Port au Prince and when will the violence start. I'm worried, and I hope I'm wrong, that our national obsession with crime as the number threat (which we have spread to much of the rest of the world) is bringing these two themes together. Is the slow pace of aid being driven in part by the the priority that security is receiving?

I am not reassured by the quotes coming from American military personnel on NPR's Morning Edition today, questionable homilies about how law and order is the necessary prerequisite for all other aid. Is that right? The people of Haiti seem to have done a pretty amazing job remaining calm and dignified in the face of unbelievable suffering and death (generally demoralizing forces one would assume). The only violence reported in this morning's reporting by Damien Cave and Deborah Sontag in the New York Times, involved the summary execution of looters by Haitian police. Perhaps unchecked looting would lead to ever more violence, but the long delays in getting water to people has surely added to the potential for disorder when supplies finally reach the desperate.

I trust the military's own disaster specialists more than I do the US media which has been expectantly waiting for outbreaks of violence since the day after the quake. As we saw in the coverage of Hurricane Katrina and New Orlean's, the US media looks for a crime story first; especially when a national drama is playing out in an urban area and when the protagonists have dark skin. In that case, a city's remarkable dignity and courage were obliterated in a near "white-out" of mostly false crime reports. Hopefully that will not happen again. Hopefully, the aid workers and the military's logisticians are listening to the reports from the ground and not the cloud of crime expectation.

Saturday, January 9, 2010

Governor True Lies

The biggest disappointment in my six years back in California has a name, Arnold Schwarzenegger. When he rousted Gray Davis in the recall I was amused (Davis was as stalwart a supporter of the penal state in California as it ever had, I was glad to see him go). When he settled prison lawsuits, called the parole system broken, said we had to stop warehousing people, and renamed the prison system the Department of Corrections and Rehabilitation, I got excited. With California's epic prison condition lawsuit bearing down on the state, and a governor who understood that mass incarceration was hurting the state, a major shift seemed to be in the offing. Smaller turns have happened in states like Michigan, New York, and even Texas. May be, with an action hero at its helm, my Golden state was about to do an even bigger one.

Six years later we have a prison system that is marginally smaller (crime is down as well) but even more expensive, just as ineffective at delivering rehabilitation, and with no solution in sight. Instead of working with the courts, the governator has gone for every rhetorical anti-federal court trope in the Jim Crow play book. Still, sucker for rhetoric that I am, I was stirred by his final state of the state address in which he called for a constitutional amendment to place prison spending under higher education spending. As I noted in my previous post, the premise behind this promise, that prison costs could be reduced rather than prison populations shrunk, was flawed, but the vision was the right one for beginning a public conversation about the state's priorities.

Now comes his proposed budget. Maybe all such documents are political, but that doesn't mean they are phony. If its prison spending provision is any clue, this one is phony through and through (read the analysis by Wyatt Buchanan and Marisa Lagos in the SFChron). The Governor promises a $1.2 Billion dollar cut in prison spending, but $811 million of that comes out of prison health care spending directed by the federal court's receiver in the Plata case, a cut that the federal court could simply reverse if it ever had to (and remember the court orders on health conditions stand whether or not the current population cap is overturned).

In a year Arnold Schwarzenegger will be gone (he won't have to move since he never left Venice Beach). He will almost certainly be replaced by someone with just as little commitment to fixing our toxic incarceration problem, but probably not one that will make big phony promises to fix it and in this mean season, for me at least, that is an improvement.

[cross posted at prawfsblawg]

Friday, January 8, 2010

A War President, Not a "State of Seige" President

Here is what I voted for:

"Great and proud nations don't hunker down and hide behind walls of suspicion and mistrust. That is exactly what our adversaries want, and so long as I am President, we will never hand them that victory. We will define the character of our country, not some band of small men intent on killing innocent men, women and children."

President Barack Obama, Remarks by the President on Strengthening Intelligence and Aviation Security, January 7, 2010

Wednesday, January 6, 2010

Schwarzenegger Calls for Prioritizing Higher Ed over Prisons in the State Constititution/9th Cir. Strikes down Washington's Felon Disenfranchisement

Governor Arnold Schwarzenegger used his annual state of the state address to call for a constitutional amendment to guarantee that at least 10 percent of the state's general fund revenues go for higher education, while prison expenditures are limited to 7 percent. [read his press release]. The Governor stated that expenditures had traditionally been 10 percent for higher education and 3 percent for corrections (actually it was nearly 20 percent when I was a student here). Noting that this year corrections received more money than higher education, the Governor is calling for an amendment that will fix the ratio beginning in 2014.

The proposal is bold and deserves support (although adding yet more layers to our Rube Goldberg state constitution is a problem in its own right). Unfortunately, the Governor seems to envision that this will be achieved by reducing spending on prisoners, not by reducing prisoners. His proposal would also allow the California Department of Corrections and Rehabilitation to contract out to private suppliers for prisons and prison services.

In another important development related to criminal justice, a panel of the 9th circuit held Washington state's automatic felon disenfranchisement law violates the Voting Rights Act (Section 2) because the criminal justice system in the state is "infected with bias" that cannot be explained on race neutral grounds. [read the opinion here]. In perhaps the biggest surprise, the court's ruling applies to felons still in prison (the state had already revised the law to lead to presumptive restoration of rights to those finishing their sentences). I will leave it to others who know the VRA jurisprudence to comment on the panel's reasoning. The most exciting aspect from my perspective is that the court cited empirical work by criminologists Robert Crutchfield and Katherine Beckett for its conclusion that Washington's criminal justice system was racially biased. Crutchfield's report was apparently based on analysis of arrest and sentencing data (Blacks are 4 times more likely to be arrested for a violent crime, but 9 times more likely to go to prison). Beckett's research showed that drug arrests focus on crack, outdoor dealing, and downtown drug use, all factors that lead to a disproportionate impact on minorities. Whatever happens to the VRA aspects of this case, it is hard to believe that this data will not be used to challenge other aspects of Washington's criminal justice system.

[cross posted at prawfsblawg]