Victims and Punishment

While we throw terms like"harsh", "retributive" and "punitive" around in describing the American penal system(s) today, the language has yet to capture the distinctive role that the subject position of the crime victim has in shaping the measure of punishment being handed down in US courtrooms and parole boards. While state penal codes continue to list punishment, deterrence, incapacitation, and even reform as primary goals of imprisonment, judges are increasingly vocal in insisting that sentences incorporate the scope of the victim's future suffering.

Case in point is the 30 year sentence handed down to a former hospital worker, Karen Parker, who admitted stealing syringes meant for patients and replacing them with used syringes contaminated with Hepatitis C, by Federal District Judge Robert E. Blackburn in Denver this week (read Kirk Johnson's reporting in the NYTimes). It is hard to imagine a stronger case of victim damage (short of death). They were "attacked" at a time of maximum vulnerability, while receiving pain medication prior to surgery in a hospital (Hobbes thought the fact of having to go to sleep at all was enough to justify a punitive sovereign, he did not anticipate surgical anesthesia) and now face a lifetime with an incurable, chronic, sometimes disabling and life threatening disease. Apparently it was hearing the victim testimony that lead Judge Blackburn to the unusual move of rejecting a 20 year sentence agreed to by the prosecutors, and imposing a 30 year sentence this week.

Parker's actions epitomized "selfishness" as the Judge emphasized. But neither was the admitted heroine addict the epitome of the cool calculating "hit-man" or "terrorist" who decides to sacrifice lives to their own deliberated ends.

What troubles me is using prison sentences to work out some kind of just measure of the victim's suffering. This logic inherently leads to excess. What if hundreds were contaminated (as has happened), would Parker have sentences her to life without parole? In other cases judges have handed down life-trashing sentences in the name of the victims' suffering even where the defendant clearly lacked meaningful capacity for responsible action due to severe schizophrenia (consider the Kip Kinkel case in Oregon in the late 1990s).

Clearly the victim's cannot be "compensated" through the punishment of Parker. They deserve better, starting with health insurance for those dropped or forced into a more expensive plan because of their condition. A stiff prison sentence is an appropriate way to communicate the seriousness of crime to the community, and thus to provide the victims public recognition of the terrible wrong they suffered. It is also an appropriate way to deter, although we have every reason to doubt the Karen Parkers of this world respond well to threats of lengthier punishment. A proper combination of restorative justice for the victims and appropriate restraint and punishment for the community is something we can achieve without decades of prison time. But trying to carve justice out of the time a body is locked in prison can only prove futile and cruel.

With our prisons filling with inmates facing lifetimes of punishment, we need to find a way to restore some measure to prison sentences.

Exporting American-Style "Law and Order" to Imploded Postcolonial Cities, Haiti and Beyond

In his request to Congress to authorize American entry into World War I, Woodrow Wilson cast the war as a crusade "to make the world safe for democracy." A century later, this sort of rationale is an old standby for Presidents seeking to justify muscular calls for "law and order" both abroad and at home (tellingly, Wilson also called D.W. Griffith's paeans to the Ku Klux Klan as champions of law and order "history writ with lightning"). Some might argue that we’ve come a long way since Nixon’s (or Reagan’s) Southern Strategy, though cloaked racial appeals live on in talk of "real Americans" and have played a role in popular perceptions of the ongoing catastrophe in Haiti.

Any time that the problems of urban marginality are publicly exhibited, calls for self-critique and aid are soon drowned out by a clamor for “law and order” and ruthless crackdowns on miscreants (typically portrayed as poor, hostile, and dark-skinned) perceived to threaten order. When massive earthquakes struck Haiti earlier this year, media portrayals of looting panic seemed to outpace actual looting. These fears likely did more to slow delivery of aid than prevent property crimes, which were likely largely of necessity. The New Orleans example is illustrative here. Analysts have largely ignored deeper structural reasons for the devastation caused by the earthquake – such as the destruction of the Haitian food economy, largely driven by the intrusion of huge, heavily subsidized American agricultural interests often cast as aid. Instead, they’ve preferred to incite looting panic and valorize the individual efforts of predominantly rich, white, foreign interveners, at least until they go terribly wrong.

What is the theoretical apex of such "humanitarian" discourses and efforts? Now, neoliberal paragons, appealing to trickle-down economics and gated community logic, have begun to call on the U.S. and its economic peers to create enclaves of wealth and privilege in Haiti, imploring the country to grant special rights to foreign investors akin to deals that drove "development" in Hong Kong and Guantanamo Bay. The connection between crime and neoliberal economic success (which, for all but a few, is no success at all) is explicit: "[Poor countries'] leaders cannot make credible commitments to would-be investors. Rich nations use well-functioning systems of courts, police and jails, developed over centuries, to solve such problems." This call jells troublingly well with critiques of efforts to make over cities as playgrounds for the rich, driven by an increasingly barricaded, crime-obsessed "middle class." Paper over poverty or drive it out of the city and into the prisons.

More persuasive than this hollow, Wilsonian call for advancing prosperity, given what’s happened in New Orleans and what some hope to happen in Haiti, is sociologist Thorsten Veblen’s skewering of Gilded Age economic principles (principles which have enjoyed a great resurgence in the supply-side systems built over the past three decades, and which loom large in debates over what to do about poverty and violence). Only a few years later, while a roaring America bathed in the afterglow of Wilson’s claimed euphoria for spreading democracy, Veblen saw a different goal: "This is also what is meant by democracy in American parlance… democracy is best to be worked out by making the world safe for Big Business."

Blue Ribbon Time for Mass Incarceration

You know something is officially a major social problem when Congress creates a "blue ribbon" commission to study it. This week we can celebrate the official coming of age of mass incarceration as a social as the Senate Judiciary Committee, prodded by Jim Webb (D. Va.) voted to create a commission of experts to study why America has the world's highest incarceration rate and why so many non-violent crimes result in prison sentences (see the NYTimes editorial praising the vote).

Don't break out the champagne just yet, becoming a major social problem does not mean the problem gets solved. The blue ribbon commission on mass incarceration just might join the long chain-gang of blue ribbon commissions on topics like the deficit and national educational decline. This is especially so when the rhetoric behind this commission makes so much of "drug offenders" who while the most politically appealing face of the mass incarceration problem (think polar bears and climate change) are hardly the core of it.

Justice Anorexia? Why We Imagine Our Courts to be So Lenient

Anorexia Nervosa is an eating disorder that leads sufferers to undergo often life threatening disciplining of their food intake in an effort to ward off imagined obesity. Something similar seems to beset our collective penal imagination. Despite decades of growing penal severity that have given us the world's largest prison population (and not just in per capita terms) and the most severe sentences, most Americans still imagine our courts to be the leaky and lenient institutions they were (unfairly) depicted as being in 1970s backlash movies like Dirty Harry (1971). As our justice system comes instead increasingly to resemble the hardened core of the robotic killing machines in the Terminator series, our ability to set proper limits to our own quest for security is very much in question. The political logic of this cognitive bias was on display this week in the growing controversy over whether or not terrorism suspects should be tried in civilian federal courts, or instead subjected to military tribunals such as those that very occasionally have operated at Guantanamo.

As Scott Shane ironically notes in the opening to his excellent wrap up article in the New York Times, John Walker Lindh, the so-called "American Taliban" who was tried in a federal court received twenty years (in a plea bargain to avoid possible life in prison), while David Hicks, an Australian Jihadi with a similar profile ended up walking away from a Guantanamo tribunal with a sentence of seven years, most of it already served.

On the op-ed page, former FBI special agent, Ali H. Soufan, notes that federal law is plenty tough on supporters of terrorism:

Prosecutors have at their disposal numerous statutes with clear sentencing guidelines. Providing material support, for example, can result in a 15-year sentence or even the death penalty if Americans are killed.

No doubt, much of the criticism of Attorney General Eric Holder for announcing that terror suspects would be tried in federal courts is cynical political maneuvering by Republicans who were willing to remain silent while the same approach was pursued by the previous administration. But the reason it rings true for many people and the media, is because for decades, politicians of both parties, have portrayed the federal courts as perennially "soft on crime."

"Cleaning Up" Cities, Sliding towards American Brasilias

Suburbanization has perhaps been the central feature of the reorganization of power and property in the United States over the past half-century. Contemporary policies of crime control and those of suburban land management are intertwined in myriad ways. There’s plenty of work to be done in investigating dialectics here; some of Jonathan's recent work suggests that homicide has been a central conceptual and material pivot in the post-war period's respatialization of capital-as-real-property. Similarities closer to the surface are patent as well. In addition to managing risk and minimizing security contingencies at the expense of other values historically valorized in Western democracies, both suburbanization and governing through crime have been driven by top-down policymaking, typified by phenomena like Celebration, Florida or the War on Drugs. Both are characterized by master-planning and grand visions of uniformity.

While grandiose, top-down city/suburb planning has been common in the United States since at least the days of Robert Moses, it’s worth noting that this country has never taken on the project of building a modern, “model” major city from the ground up and actually seen it through, as Brazil did in the creation of Brasilia. Geoff Manaugh’s thoughtful architectural blog, BLDGBLOG, recently uncovered a stillborn and forgotten American Brasilia called California City. Designed by Nat Mendelsohn, a real estate developer, sociology professor, and would-be Robert Moses, and meant to “rival Los Angeles,” California City is still the 3^rd largest city in the state in terms of geographic size. But its population has hovered around 12,000, its enormous manmade lake has dried up, and it now lies as a surreal “geoglyph” known primarily as the home of a several-thousand-bed state prison.

It’s hard to imagine what an American Brasilia might look like without ending up with an image of the contemporary American suburb. Even now, the meticulously planned, strictly policed, demographically homogeneous, and decidedly un-urban suburb functions as a sort of psychological retreat for Americans increasingly focused on a perceived crime epidemic (and even for those without the means to utilize it as a physical fortress). Crackdowns by mayors like Rudy Giuliani and Frank Rizzo have perhaps eroded popular disgust with the city since it reached its nadir in the 1980s, but the image of the city as hotbed of crime that must be "cleaned up" and made safe for commerce persists. Indeed, the larger planned cities that still exist in the U.S., like Irvine, California, tend to remain in the low six figures of both population and average income: small enclaves of affluence more than cities per se.

Still, walking around San Francisco’s Mission District, Brooklyn’s Crown Heights, or Chicago’s Pilsen, it’s easy to witness the entrée of suburban commercial and demographic patterns into the city, a sort of white flight back to the urban, epitomized by grand plans like Jerry Brown’s Oakland 10k Housing Initiative. It’s an open question whether we should understand such developments as just another phase in a long line of "urban renewal" projects typified by neighborhoods like Chicago’s Hyde Park (and perhaps, in the shadow of its fallout, Woodlawn) or a new phase, less top-down and more folk, less typified by Moses and more typified by the emergence of a new urban bourgeoisie into the "safer" spaces created by increasingly punitive crime control measures. Social mores incubated in suburbs often governed by strict covenants on land use and xenophobic views of perceived city-dwellers, which promise ever more strict governance of crime, may follow.

It would be a mistake to treat such urban overhaul as nothing more than a symptom of ever-shifting capital, instead of recognizing it as a spectacular historical development with potentially dire consequences. Crime control policies, whether "quality of life" ordinances, omnipresent security cameras, or dragnet-style arrests, continue to play a central role in gentrifying American cities like New Orleans and San Francisco. The worrying aspect of such developments, at least for those of us who would trade the uniformity and perceived security of the suburb for the variety and dynamic unpredictability of the city, is that in spite of the failure of plans like California City, we may end up with American Brasilias, or elite-planned, tightly controlled, suburbanized cities, after all.

Our Rotten Prisons

A Penitentiary-house, more particularly is ...what every prison might, and in some degree at least ought to be, designed at once as a place of safe custody, and a place of labour. Every such place must necessarily be, whether designed or not, an hospital -a place where sickness will be found at least, whether provision be or be not made for its relief.

Jeremy Bentham
The Panopticon, Letter VII Penitentiary Houses-Safe Custody, 1787

Whatever you think about the worth of imprisoning felons on the wholesale basis California has since the early 1980s, whether you consider yourself "tough on crime," or a "bleeding heart, blame it all on society" type, if you live in California you ought to be pissed off at the atrocious prisons the state built in the intervening decades. In the name of housing prisoners as fast and as cheaply as possible, we built prisons that are impractical and dysfunctional, and which may now require billions to be spent in medical upgrades.

It was common sense more than two hundred years ago already, that if you are going to put people in a prison you need to plan for three things.

1. Provide safe custody

2. Provide a place for labor (or perhaps learning) to keep the prisoners peaceful if not productively contributing to their upkeep.

3. Provide medical care for a population that whether from self abuse or poverty (or both) is always a lot sicker then the general population.

These simple truths guided prison design across the globe until California's leadership committed itself to a reckless policy of warehousing its felon population as fast as possible in state prisons designed for nothing but maximizing custody capacity. The resulting prisons are not safe, cannot provide labor or any other kind of programming on a regular basis to most of their inmates, and now famously is incapable of delivering constitutionally adequate health care to its incarcerated population.

The next Governor of California will have a good basis for washing his or her hands of this mess. Jerry Brown was the last Governor to preside over a pre-mass incarceration prison system, one that functioned well at a comparative pittance. Meg Whitman and Steve Poizner come from the private sector and can claim (I hope) to have never signed off on such stupid investments as California's prison building boom of the 1980s and 1990s. Whoever is elected should take three first steps.

1. Repudiate mass incarceration and honestly explain to the public that as presently constituted, California's prisons are a poor investment in public safety and an unsustainable burden on our fiscal condition.

2. Cease appealing the Plata/Coleman 3-Judge order to reduce CDCR's population by at least 40,000 inmates in two years and announce that your administration will seek to push reductions even further by redirecting non-violent felons and parole violators to probation and where necessary, county jails, all of which will be supported by state funds currently spent on prisons.

3. Plan to close at least 10 of the worst designed and situated prisons completely within five years. The remaining prisons should be those best capable of meeting Bentham's 3 minimum requirements. This should allow the state to avoid any major investments in new prison hospitals and dramatically cut the prison share of the budget. While a major portion of the savings should be redirected to counties to pay for additional probation and police officers, savings should if possible go to higher education and to meeting the health care needs of California's non-incarcerated population.

Healing the Prison Crisis

Transitions Clinic in San Francisco, an outpatient clinic serving the health needs of Californians on parole and probation, is a great example of one of my mantras, the solution to our penal crisis, won't come from anything penal. Enlightened penal policies, and the best kinds of criminological research that have traditionally shaped them, will follow, not lead the healing of the prison crisis. The clinic, spotlighted in an excellent article by April Dembosky in the Bay Area edition of the NYTimes, has focused like a beam on one of the deepest flaws in our penal state. The people we incarcerate, may or may not be the most dangerous people in the state, but they are clearly among the very sickest in the state. Years of chronic drug abuse, erratic medical care (both in and out of prisons), have left many prisoners decades older than their calendar age. Under its current policy of cycling parolees and probationers in and out of prison, California has put itself in the trap of both guaranteeing constitutionally adequate health care to this population (under the gun of the federal courts) and placing them in custody situations that make health care delivery fantastically expensive and administratively all consuming. Delivering good health care to people on parole and probation while they are out in the community can create a virtuous counter current where this chronically ill population receives care in a much cheaper and more effective manner resulting in lower costs when they do go back to prison and possibly, when integrated with the kind of additional services that Transitions strives to provide (like referrals to drug treatment and mental health agencies), keeping them from going back to prison at all.

Dembosky reports that clinics like this are spreading. This is good news. A solution to the prison crisis is likely to start outside the state, and outside of penology.

Governing through Crime "Old School" Style in Iran

When I was in graduate school reading the then recent historical research of the late Edward P. Thompson and his colleagues on crime and society in Britain during the 18th century I was thrilled (intellectually speaking) to see how the majesty of the English common law had served to bolster a shaky revolutionary gentry class in its hour of need. Having overturned long settled rural arrangements and modes of social control going back to the Conqueror, this gentry class found in the criminal law subtle tools of terror and moralization that proved enough to settle down a restive and far more risky (for common people) society, but only by investing in law itself as a source of independent legitimacy. This picture of law as a tool of class power, and a slowly tightening restraint on power was so vivid that it took me a long time to recognize the political logic of crime in late modern America, where in my view a very different kind of restructuring of power and risk has taken place in the shadow of fear of violent crime. If we govern through crime today, it is less to intimidate a restive rabble of uprooted country folk jamming into our cities, than it is to reassure a suburban middle class far more vast than the 18th century gentry could have imagined possible. It is this kind of liberal "war on crime" that is spreading from America to Europe and Latin America.

A nice example of "old school" governing through crime, however, is on display in the Islamic Republic of Iran today. Iran's government is responding to the continuing popular unrest stirred up by the highly suspicious June election "landslide" for President Mahmoud Amedinizad, by sending some its reserve of political prisoners to the gallows, where public executions, often of multiple prisoners, is fast becoming the regular medium of politics (read Nazila Fathi's reporting in the NYTimes). The two victims hung yesterday included a 19 year old and a 37 year old, both accused of having plotted to assassinate leaders, based on confessions their lawyers strongly suggest were wrung by torture. Their crime, a capital one in the Islamic Republic, "waging war against God." It remains to be seen whether the courts of the Islamic Republic can wring the other side of the dialectical bargain that Thompson and his colleagues described in 18th Century England, where a ruthless political leadership ultimately invested in the legitimacy of independent courts.