Mess with Texas

Robert Perkinson's Texas Tough: The Rise of America's Prison Empire (Metropolitan Books) is at last out and receives a strong review by Daniel Bergner (author of the God of the Rodeo: The Quest for Redemption in Louisiana’s Angola Prison”). Perkison, who teaches at the University of Hawaii at Manoa, takes a historical approach, situating the hyper punitive but presumptively racially neutral Texas penal syste today, with a system that developed to replace slavery within the broad parameters of post-Reconstruction federal law. Texas has come from being the strongest (and most brutal) example of the regional penality of the South, to being a dominant model for corrections today. While Texas is frequently cited as a possible role for our failed penal state here in California, I doubt many readers of Texas Tough will want the Golden State to look to the Lone Star State for a makeover.

"We can't control ourselves"

The New York Times gives California's prison crisis and parole reforms front page billing today in an excellent article by Randal Archibold. The litany of problems will be familiar to readers of these posts. Our massively overcrowded prisons are being slowly reduced only under great pressure from federal courts. The main solution is to reduce the capacity of the state to return paroled prisoners for relatively minor crimes by eliminating parole supervision altogether for many and creating more alternatives to reimprisonment for others. Of course problems have arisen with early implementation, and some backlash is brewing. But the key line in what is mostly an up-beat story is that of State Senator Mark Leno (Dem San Francisco) who sums up the problem in one sentence, "we can't control ourselves."

Note the paradox that we are talking about a system of social control, or corrections as we like to call it, whose fundamental purpose is to promote law and order, but which is fundamentally out of control. But it is not the administration of the prison Leno is talking about.

But even with the progress in recent months, State Senator Mark Leno, a Democrat from San Francisco who helped push through changes in the prison system, suggested that further reductions would be a hard sell. Mr. Leno called the changes under way “a noble effort” and the best that could be achieved in the current political climate.

Many lawmakers, he said, still want to lengthen sentences and spend more on incarceration, both politically popular notions.

This is why I cannot yet agree with my friend Stanford Law professor and criminologist Joan Petersilia, who has done more than anyone to create the criminological conditions for rationality in California penal policy, and who is quoted in the article as suggesting California has been through a "seismic shift." The shift is not yet near seismic enough. Or perhaps, we can agree that the system has experienced at 6.4 on that continuous seismic scale, but not the kind of 8.0 that would allow us to truly rebuild from the rubble of our current system which is flawed right down to its molecules. The major problem, as Mark Leno underscores, is not penological but political. So long as parole reform remains the limits of this (I think ironically characterized by Leno) "noble effort", we remain inside a prison crisis whose vicissitudes I may well be charting into my retirement, or furlough-hood (if the state budget caves sooner).

Parole Policies Weak Link in Prison Reduction Plans

Danielle Cervantes and Jeff McDonald of the San Diego Union Tribune report on the growing criticism from parole agents and others, that California parolees are being allowed to violate the conditions of parole without consequences and dangerous offenders who could be locked up again are being left on the streets until they commit a really heinous crime. They also include some really neat charts that show how much parole revocations (the administrative process by which a California parolee can be returned to prison for up to a year for violating the conditions of parole) and ominously, that the prison population has pushed back up, after a couple of years of falling after 2005.

California's current plans to comply with the federal court order to reduce the population by at least forty-thousand inmates depends heavily on "parole reform." Already thousands of California prisoners are being classified as needing only limited parole, which will mean in practice that they receive no supervision or services, nor can they be administratively revoked (what remains is a police license to search and seize without normal constitutional limits, although that could itself be unconstitutional in my view). Parole reform has always been the politically preferred path to prison population reduction because it does not involve changing front end sentencing laws or practices which in turn would require the legislature to vote to keep prosecutors from sending some people to prison who now can be sent there, or encouraging prosecutors to keep more felons in county correctional systems (through a subsidy also requiring legislative approval). The California legislature has already gone beyond its comfort level by approving the parole-lite concept last August.

Critics of the plan (both those who favor no change, and those who favor more radical steps) expect that sooner or later, a pattern of murders or rapes attributable to parolees who theoretically might have been taken off the streets (albeit from a maximum of one year) will cause enough public and media outcry to work a reversal of the parole reform approach. It already happened in 1994 another electoral year in California in which parolee Richard Allen's murder of Polly Klaas made history and created the hyper-penal state we have now.

Cervantes and McDonald suggest we may already have the Polly Klaas case of this year.

The criticism rang anew last week with the release of the corrections file of John Albert Gardner III, the sex offender accused of raping and killing Chelsea King, 17, of Poway. Gardner is also being investigated in the death of Amber Dubois, 14, of Escondido.

Gardner’s case file showed seven parole violations from a previous molestation sentence that could have resulted in a return to prison and stricter post-release supervision.

“The whole concept of parole is prevention,” said Graham McGruer, who spent more than 20 years as a parole agent and manager and is now a private consultant. “There’s a greater possibility that these girls would be alive today if parole had been watching.”

Of course the premise of these arguments, that parole officers would have sent him back to prison but for political interference is specious. As Philip Garrido taught us, sex offenders can hide in plain sight all day long with California parole so long as they are not turning in dirty drug tests or signs that can be routinely tracked. Indeed the whole edifice of corrections rests on the very dubious premise that the people we have already identified as felons are more dangerous to us, than the person next to us on the bus who has never been marked us such by our criminal justice system.

My solution? Get rid of state parole completely but require all California prisoners to report periodically to local police or probation. Return the money now spent on parole to the counties along with a list of prisoners within six months of release to that county from state prison. Let the counties use their enhanced police, probation, and other resources to provide the best locally crafted solution to reduce the future offending risk of that returning prisoner causing significant harm to the community.

Executions in Iran and North Korea

Students of the sociology of punishment are getting the rare opportunity to look back into the history of penal evolution by watching the penal behavior of two polities that are arguably throwbacks to the absolutist model of government, Iran and North Korea.

According to Nazila Fathi's reporting in the NYTimes, Iran's government was preparing to execute six protesters arrested in December protests this Sunday, for the charge of "waging war against God."

Meanwhile, AP reports that North Korea has executed a former treasure official, not for bribery, but because of the failure of his currency reforms.

Pak was accused of ruining the nation's economy in a blunder that also damaged public opinion and had a negative impact on leader Kim Jong Il's plan to hand power over to his youngest son, Yonhap said.

In his germinal article, Two Laws of Penal Evolution (1902) [for a translation published in 1973, not free unfortunately), Emile Durkheim predicted that the general trend toward leniency in punishment, by which he meant the shift away from capital punishment in particular, and toward less intense punishment of all kinds, had exceptions. Two were when states embraced either theocracy or revanchist forms of absolutism. For the general principle of leniency reflects the rise of the individual as the moral center of penal retribution and away from a demand to punish as away of responding for an affronted God or Sovereign. The US may seem an outlier for executing murderers, but we do so in manner that Durkheim would think quite consistent with our liberal values (mainly an effort to honor the victim and protect others, although a misguided one in my view). In Iran offending God (or his political party) and in North Korea, to interfere with the passing of royal succession remain capital crimes.

One detail of the Iranian case is particularly interesting for Durkheimians. Apparently Sunday is being chosen because it marks the beginning of a Halloween like traditional festival that the Islamic regime considers "unIslamic."

The tradition, the Feast of Fire, goes back thousands of years to Zoroastrian times and has been banned in Iran in recent decades because of its non-Islamic roots. The opposition had called for its celebration this year as a sign of protest.

My bet is neither of these Dinosaur like regimes will be around in twenty years (or perhaps even ten) so students get busy studying them (a bit hard, I admit).

For those following my Legal Studies 160: Punishment, Culture and Society course, who are really bored over Spring break, my question to you is how would Marxist or Foucauldian analysts see the use of capital punishment in recent weeks by these two regimes?

Fear and the Limits of Fiscally Driven Prison Reductions

Monica Davey's excellent NYTimes article today on the growing backlash against budget driven prison releases highlights a number of crucial issues facing those who hope budget woes will help break the states of their addiction to Mass Incarceration and Governing through Crime. She focuses on Michigan which in 2007 found itself with the 5th largest prison population in the country in the company of much larger states, and with a fast dwindling industrial economy. Because Michigan has a parole law, political leaders could both allow sentences to grow longer in the 1990s when fear of crime was rampant and fear based SUV sales kept Michigan's revenues strong. Thus while crime was dropping all over the country in the 1990s, Michigan's parole release rate was dropping. Once the fiscal crisis began, Governor Granholm could use the parole process (which she expanded by 15 new members to speed things along) to reduce the population by raising the parole rate. That is a tool state's like California, that give fixed sentences to most of their felony prisoners do not have.

However, Davey's article also underscores the political resistance to using parole or other early release vehicles. In Michigan, but also Illinois, and Colorado, "victim's rights" groups, prosecutors, and law enforcement, is opposing early release as a threat to public safety. These politically invested and powerful voices are much more significant than the corporate prison industry in keep the state's locked in. How many politicians could resist this kind of rhetoric:

In February, lawmakers in Oregon temporarily suspended a program they had expanded last year to let prisoners, for good behavior, shorten their sentences (and to save $6 million) after an anticrime group aired radio advertisements portraying the outcomes in alarming tones. “A woman’s asleep in her own apartment,” a narrator said. “Suddenly, she’s attacked by a registered sex offender and convicted burglar.”

Save Education in California

I'm going up to Sacramento today, in the midst of the worst economic crisis in California since the Great Depression, to urge our legislators not to continue to gut education in California. March 4 is a statewide (and apparently nationwide) day of strikes and protests against public education cuts from K-12 through higher education. It is not an easy sale. More Californians are out of work than at any time since WWII. The State's income and real estate based revenue stream has dwindled and our safety net spending for all categories of need have risen to unprecedented levels. The budget is bleeding red from every pore. Let's be honest here, I'm also an interested party (or stakeholder as we like to call ourselves) with a job in the UC system and two kids in Berkeley public schools.

For what it's worth, here's my pitch for education (although I'm going to focus on higher education, the same points apply to k-12).

It's not about today. It's about tomorrow. We are still riding on the good decisions made by people who are mostly now dead (Governors like Earl Warren and Pat Brown, may they rest in peace). What can we decide today to make sure California's promise is there tomorrow?

Much has been made of the fact that the portion of public spending on higher education and the prison system are roughly on par, compared to periods as recently as a decade ago when higher education received twice as much or more than corrections (Sac Bee Chart). That is a sad and revealing fact about our state. I moved here to go to college in 1977, stunned to find this Golden state with its amazing universities and gleaming infrastructures (BART had just opened a few years earlier) hidden at the end of the continent like the proverbial pot of Gold at the rainbow's end. In those storied days California spent more than five times more on higher education than it did on prisons. But while it makes a great rhetorical point, obsessing about what Sora Han and Kate Kenne of UC Irvine call the "prison/education binary" is also a misleading one.

The real problem is not that corrections costs as much as higher education these days. Considering that we've incarcerated nearly six times the number of Californians we did when I moved here, it's not surprising, and it's not enough (as federal courts have ruled). The real danger is that continuation of the present penal policies could see us a decade from now spending 5 times on prisons what we do on higher education. That could happen even without increasing the number of prisoners simply because the health costs of our prisoners is escalating out of control and will grow even higher as our draconian sentences keep prisoners locked up during their low crime/high medical cost middle and old age.

To sustain and ultimately increase our capacity to invest in education, and other vital needs like infrastructure and health care, we need to dramatically improve the efficiency of our approach to public safety. Our "prison first" policy of recent decades has concentrated California's social problems in an environment where it is most expensive and least effective to solve them. The ways of unwinding this catastrophe are broad indeed and should involve the best minds in the public and private sector. But they cannot be solved by ignoring the deficit in social control capacity in California communities that have suffered from decades of private disinvestment and public neglect.

In the short term, closing poorly designed and unsustainable prisons and releasing thousands of our aging "lifers" can produce real savings for the budget (by avoiding court ordered hospital construction). But those of us committed to education should not seek to grab those funds (it will be enough that the state will stop raiding education to pay for incarceration). That money should be shifted to California's vital but invisible county governments, where instead of the blunt but expensive tool of state prison, public safety can be pursued efficiently and precisely through targeted strategies like probation, after school programming, community policing, drug treatment, mental health treatment, and jail.

In the long term, this sustainable public safety model will generate billions of dollars in budget savings to invest in education, and assure a far more diverse flow of students to California's colleges and universities. But the most important reason to do it is that local agencies know where the crime problems are and how to solve them, we can have less crime in California and save money.

Paging Dr. Durkheim

Its been a busy week, but I would be remiss to let Campbell Robertson's fine story on murder, capital punishment, and wrongful conviction in post-Katrina New Orleans go by with out a comment.

Early one morning in June 2006, when this city was only half full and in many areas still desolate from the flooding after Hurricane Katrina, five men were shot to death in an S.U.V. in the Central City neighborhood.

The killings sent the city into an uproar, galvanizing politicians, who spoke of “Hurricane Crime,” and adding urgency to the city’s request for hundreds of Louisiana National Guard soldiers to return and patrol the streets.

The criminal case that followed was just as incendiary in many ways, and it ended this past August with a death penalty verdict, the first in a dozen years in a New Orleans murder case, against a 23-year-old man named Michael Anderson. It was a trophy verdict for the district attorney’s office, a sign that law and order had triumphed in one of the city’s most heinous and high-profile crimes.

But there is a problem. New evidence from the state’s key witness released in early January by the district attorney’s office — evidence that the office had for over two years — could put a hole right in the middle of the case against Mr. Anderson.

The city's response to the murder is a classic reminder of Durkheim's claim that crime and punishment form one of society's most powerful devices to reaffirm its existence as a moral community. Although New Orlean's is not an entire society, that community was devastated by the flood, which quite literally displaced its population, and by the clear failure of social institutions to protect the populace. The murder only nine-months into the recovery was clearly read by New Orlean's citizens as a direct challenge to the existence of common consciousness in the city, just the kind of event that Durkheim predicted would be met by the most explosive demands for punishment.

But the terrible miscarriage of justice that may have subsequently occurred is a reminder of how double edged the creation of professional law enforcement is for the evolution of social control. On the one hand, unlike the "primitive" societies that Durkheim compared "modern" Europe to, professional law enforcement brings about the potential to solve crimes that would have gone unsolved altogether in the past, and perhaps to avoid lynchings and other popular miscarriages of justice. On the other hand, the creation of distinct institutions with unique responsibility for addressing the communities desire for punishment, and significant powers to coerce testimony, opens the awful possibility that unconsciously or consciously, law enforcers could seek to give the community the Durkheimian release of convicting and condemning a target of their rage, even if they have the wrong man. I'm not saying that many (let alone most) in law enforcement succumb to this temptation, but we need to start by acknowledging some of the cultural forces that facilitate it.

Class-Based Law Enforcement...

... may be nothing new, nor is the argument that when money gets tight, city and state governments gut services to socially disadvantaged people first and foremost (as the past couple years in California have confirmed). Still, a recent SF Chronicle story has exposed an Oakland parking policy so blatantly unfair that it would perhaps surprise even the most cynical political observers. This story is also a good example of the fact that although they may be the "boots on the ground" of crime control, local beat cops often know far more about what's ineffective and what's unfair in policing than do the politicians and technocrats who spout rhetoric and design law enforcement policies. Police bureaucrats and communities alike would do well to absorb some of the firsthand knowledge of people like Shirnell Smith.

The mudraking and speculation as to who's responsible for this debacle has only just begun, but more is sure to come given the predictability of unified public disgust. When plainclothes citizens and thoughtful beat cops become more involved in policing their communities, relative to elite decisionmakers in statehouses and mayor's offices, it's probably a good thing. For analytical and practical purposes, crime is often better understood as a block-by-block problem than a "statewide" or "national" one.