Friday, May 28, 2010

Fear This

The BP catastrophe, following the devastating failures of security infrastructure protecting New Orleans during Katrina, is a warning we cannot ignore. We must pivot from the long forty year obsession with violent crime (now terrorism) to address the real threat that is at our door, catastrophic infrastructure under investment. We need a war on infrastructure failure. Forty years ago Charles Manson might have been the scariest thing menacing suburban homes, but today, the combination of a volatile planet, climate change, and systematic underinvestment in our security infrastructure is what is stalking us. This failure of public infrastructure, combined with the need to seek energy resources in extreme circumstances (like 3000 feet under the Gulf of Mexico) has created a new a very real threat to life and property.

For decades we have been told not to worry about our infrastructure. Committed to spending billions of dollars to incarcerate tens of thousands of our troubled neighbors (regardless of the real threat they pose), we simply don't have the money to invest in water pipes, energy systems, electricity grids and other basic infrastructures we need for survival. The devastation of the Gulf is the final alarm. It is time to take stock of the true cost of the investments we must make to achieve some security against these very real threats of fire, flood, earth quake, and disease. We must rewrite our state sentencing laws and ultimately close prisons to re-deploy our resources to the infrastructure front. We must find ways now to make our communities more resilient in the face of the environment/infrastructural threats that our major metropolitan areas now face.

The farce on the border is exactly the wrong direction to go!

Tuesday, May 25, 2010

The Co-Pander-In-Chief Sends Troops to the Border

Of course I understand the need to compromise. Comprehensive immigration reform will require massive doses of tougher enforcement. Fear of "losing control" of the border must be addressed before the shear inhumanity of hunting down undocumented workers and disappearing them from their children without a word can be ended (at least for a few). Still, there are times when the terms of stroking America's unself consciously racialized victim identity is so odious that one must protest. Randal C. Archibold in the New York Times reports that:

Calls to send troops to the border mounted after the shooting death of a rancher in southern Arizona on March 27; the police suspect the rancher was killed by someone involved in smuggling. Advocates of a new state law in Arizona that gives the police a greater role in immigration enforcement also emphasized what they considered a failure to secure the border as a reason to pass the law.

Are you kidding? One rancher is dead and drug smugglers may be involved! By those terms Richmond and Oakland should be occupied by divisions of National Guard troops.

Shaming the Three Strikes Law

If we are to ever escape the gravitational pull of mass incarceration, we are going to need not just more jeremiads against our current regime, but positive accounts of pathways out. Emily Bazelon in the Sunday Times Magazine provides just such an optimistic account of an emerging challenge to the hegemony of California's toxic "Three-Strikes" law which is rapidly filling its prisons with expensive to manage (because largely hopeless) and permanent prisoners. Her account is especially interesting because it links up two elements generally missing in the discussion of whose responsible for mass incarceration which tends to focus on governors, legislatures, correctional officer unions. Bazelon focuses on the interesting alignment of a Republican District Attorney of Los Angeles (now running for Attorney General), and a law school clinic at Stanford aimed at challenging 3-Strike sentences through collateral appeals.

The 1994 law, enacted by a panicking legislature and then sealed in the Constitution by voters at the high-tide of governing through crime in California and the United States. The law's success was widely attributed to public revulsion over the murder of 12 year old Polly Klaas. But the kidnapping and murder of young girls was a rare event in any community then and now. As Frank Zimring and his coauthors suggested in their 2003 book on Three Strikes, Punishment and Democracy, the law was a really a vote of no-confidence in government itself. Coming, as it did, more than a decade into California's prison boom, 3-Strikes marked the fatal contradiction of governing through crime; that it makes people trust government even less over time.

Unlike most Three-Strikes laws that discharged the pent up populist punitiveness of that politically frustrated year (Clinton's promised national health program crashed and burned) in largely symbolic measures, California's law was designed to maximize the incarceration fall out by applying to non-violent, non-serious crimes (for the 3rd strike) and producing a doubling of the sentence for a second serious or violent crime. According to Bazelon's reporting:

About 3,700 prisoners in the state are serving life for a third strike that was neither violent nor serious, according to the legal definition. That’s more than 40 percent of the total third-strike population of about 8,500. Technically, these offenders are eligible for parole after 20 years, but at the moment, the state parole board rarely releases any prisoner early.

Efforts to reform the law, including a 2004 voter initiative, have been defeated by a coalition of law enforcement organizations and virtually the entire political class of the state.

Bazelon's focus on Los Angeles DA Steve Cooley highlights the enormous power that laws like 3-Strikes have given prosecutors in California and all over the country. In California, where parole release applies to only a handful of life sentence crimes (including 3-Strikers after 25 years), prosecutors have unique authority to decide how many people will go to California prisons and for how long. Any felony can warrant a state prison term, and thanks to the ratcheting up of sentence ranges over the years, relatively few even permit probation as an option. Three-Strikes operates as a kind of individual "nuclear option" that prosecutors can use at will against a very wide range of repeat offenders.

As Bazelon reports, Cooley has set himself apart from other DAs in the state by explicitly stating that three strikes should only be used against a select group of eligible defendants:

Cooley ran for D.A. on a platform of restrained three-strikes enforcement, calling the law “a necessary weapon, one that must be used with precision and not in a scatter-gun fashion.” In office, he turned his critique into policy. The L.A. district attorney’s office no longer seeks life sentences for offenders like Norman Williams or Gregory Taylor. The presumption is that prosecutors ask for a life sentence only if a third-strike crime is violent or serious. Petty thieves and most drug offenders are presumed to merit a double sentence, the penalty for a second strike, unless their previous record includes a hard-core crime like murder, armed robbery, sexual assault or possession of large quantities of drugs. During Cooley’s first year in office, three-strikes convictions in Los Angeles County triggering life sentences dropped 39 percent

Cooley, who would retain much of 3-Strikes prosecutorial power even under his reform proposal, is anathema to fellow DAs who have virtually unanimously rejected his modest reform proposal. Cooley's example suggests that much of the state's problem could be solved by a tacit alliance between the DAs of largest population counties even without a statewide fix but they would have to brave the antagonism of the organized DAs of the state. But it also underscores the difficulty of escaping mass incarceration when elected politicians with a built in incentive to campaign on tough sentences are effectively in charge of how much money we spend on prisons. Bazelon see's Cooley's possible election as Attorney General (he is the leading Republican contender at the moment) as a pathway to a statutory reform of Three-Strikes long the Cooley lines. But if his reform ideas would hardly address the powerful incentives to off-load local offenders into state incapacitative custody (and financial responsibility) that will remain with county level DAs. Indeed, as AG Cooley may well want to mend fences with his fellow DAs (if he ever hopes to be Governor), suggesting that his 3-Strikes proposals are likely to be his closing not his opening

This is why the other side of Bazelon's imagined coalition is so important. It may seem unlikely that a boutique clinic like Stanford Law School's Criminal Defense Clinic, could make much of a difference in this situation. As the founding director, Michael Romano, freely admits, they cherry pick cases to find the most sympathetic possible 3-Strikers, leaving scores of other inmates with little hope of relief. I had a chance to visit with Romano, Clinical Fellow Galit Lipa, and the spirited band of students who staff the nation's only clinic devoted exclusively to three strikes prisoners the Thursday before Bazelon's story appeared to talk about the broad picture of overturning mass incarceration in California.

Nobody believes this can be accomplished one case at a time. But the victories that the clinic has been winning, discussed in Bazelon's story, point to a possibility unlikely to surface this year (or any time soon) in the electoral political field, that is a sense of shame. The clinic's legal arguments are also factual ones. They present judges with the spectacle of individuals cast into a hopeless fate of likely permanent imprisonment based on the premise not that they deserve it for their crimes, but expressly on the grounds that our security requires their total loss of freedom, security, or hope. That is a trade off that has become far more politically visible since 1994 largely because of the war on terror. It is not that judges, let alone the broad public, is unwilling to make that kind of sacrifice (indeed the war on terror may have made us more prepared to do so). But judges and the public appreciate that to make this trade off without some basic guarantees of the quality of the risk assessment on which this individual is going to be cast into hell (not for his sins, but for his future dangerousness) is to deny the basic humanity and dignity of the individual. In the criminal justice system, that guarantee has to come from the adversary process; that reflexive exercise of prosecutorial discretion in the name of public interest and justice, and the vigorous contestation of the prosecutorial case for dangerousness by defense lawyers with resources and skills to assess criminal risk.

In this context three strikes is a disgrace. There is no pretense of an adequately investigated and tested assessment of risk. The entire system should be struck down as "degrading treatment" under Article 5 of the Universal Declaration of Human Rights (to which we are a signatory). The absence of an effective judicial remedy does not doom this human rights based challenge. As we have shown with climate change and with issues like obesity, Americans are capable of being embarrassed by their own excess consumption and supporting change. Three Strikes is to the consumption of security what McDonald's Happy Meals are to obesity and what the Ford Expedition is to climate change. Hopefully the work of the clinic, and possibly Steve Cooley's campaign (if he is forced to defend against attacks on his reform proposals) will begin to make more visible to Californian's just how shameful their consumption choices in criminal justice really are.

Saturday, May 22, 2010

"The unneccessary cruelty of the law"

The words of the Honorable Jack B. Weinstein, one of the last great lions of the federal judiciary; a living example of what judges were like before governing through crime (see chapter 4) made the very nature of the judicial role (equity, rationality, deliberation) appear subversive in our "war on crime." Weinstein is not, apparently, the first judge to be quesy about mandatory federal sentences for child pornography of at least five years in jail to a person whose only misconduct is having a sexual attraction to children and addressing that attraction by possessing child pornography. He is, however, one of the very few to criticize the law, which suggests that life-tenure is not enough to assure a robust defense of legality, the imagination itself can be crushed by the politics of crime fear.

Reporting in the NYTimes, A.G. Sulzberger quotes Judge Weinstein explaining what not even the most liberal elected politician today is likely to acknowledge.

“I don’t approve of child pornography, obviously,” he said in an interview this week. But, he also said, he does not believe that those who view the images, as opposed to producing or selling them, present a threat to children.

“We’re destroying lives unnecessarily,” he said. “At the most, they should be receiving treatment and supervision.”

No doubt, a market for child pornography may in fact create economic incentives to further exploit children to produce it; a risk that government may address. What the judge is suggesting is that a willingness to address that problem with inflexible and punitive criminal laws aimed at the consumer shows a remarkable indifference to notion of individual guilt (or culpability in the language of jurisprudence).

As Sulzberger's reporting suggests, this is not a rare occurrence.

The child pornography industry has flourished through the Internet; the number of federal cases grew from fewer than 100 annually to more than 1,600 last year. As the number grew, Congress increased the recommended prison terms and established a mandatory minimum sentence of five years for anyone convicted of receiving child pornography. According to the federal defenders’ office, the average sentence was 91 months in 2007, up from 21 months a decade before.

We can defend our children without this kind of unnecessary destruction of life. Cruelty of the law indeed.

Friday, May 21, 2010

Gov. Schwarzenegger and the "Devolution Solution"

Readers of this blog will know that I've argued for a long time that county government, with its more realistic view of crime and local knowledge, can hold the key to resolving our endless prison crisis if they can take back their prisoners and the resources locked up in state prisons. Hidden in the depths of his "May Budget Revisions" (the adjustments to the annual January budge proposal that is based on actual revenue returns during April tax season and thus considered far more realistic) Governor Schwarzenegger has included a proposal to have some state prisoners serve their time at the county level.

To improve the success of felony probationers, and other offenders supervised or programmed at the local level, and reduce jail and prison incarceration,
the Administration proposes a system of block grants to provide evidence‑based
programming and other probation and jail services at the local level. The block grants
will be funded from a portion of state savings generated by having non‑sex offender,
non‑serious, non‑violent offenders convicted with sentences of three years or less
to serve their felony sentence in local jails. The state will provide the counties with approximately $11,500 per offender, to be allocated at the local level, for programs and services such as probation programming, drug courts, and alternative custody. A decrease of $243.8 million in 2010‑11 is associated with this proposal.

Not as splashy or as publicized as the Governators' January proposal to link prison and higher education funding, this idea reflects some of the best ideas in correctional reform including devolution from state to county and an emphasis on funding programs that can prove success based on empirical evidence (had we followed that model during the 1980s and 1990s, we would have stopped sending more people to prison long ago). As is typical in California in the era of Governing through Crime, the program comes wrapped in promises that it won't apply to prisoners the public really fears "sex offenders", "serious offenders," "violent offenders." These broad categories likely hold many individuals who could be managed more effectively (and more efficiently) at the county level.

If he gives the devolution (from state to county) solution more of his public attention and charisma, it could turn out to be the most important legacy of the Governator. Schwarzenegger deserves huge credit for, in effect, declaring the era of "Big Incarceration Government" over, but until now his forward proposals have lacked seriousness and vision. Perhaps the action hero knows that many failures can be forgiven in a strong ending.

The May Revise (as it is often called) also includes an intriguing note that the state is shifting its policies toward committing sex offenders serving state prison sentences to the state's violent sexual predator program of indeterminate confinement following prison with the result of fewer expected inmates in the program (which has become an expensive new death row with little prospect of release for its residents). As an adjustment to the mental health portion of the budget, the May Revise includes the following:

A decrease of $7.2 million in the Sex Offender Commitment Program to reflect anticipated savings in the Sexually Violent Predator Program primarily due to a shift in the type of referrals from the California Department of Corrections and Rehabilitation.

If anyone has the details behind this shift, please comment.

Monday, May 17, 2010

Extrajudicial Killing of American Citizens: What Are the Limits?

The Obama administration's desire to suspend Miranda warnings for terrorism suspects seems pretty minor today, as the administration has now announced that it is willing to order extrajudicial killings of American citizens. (This is somewhat old news, but it's difficult to keep up with all of these presidential innovations.) Anwar Al-Awlaki is an American citizen living in Yemen (and American-born as well, which matters politically, though it shouldn't).

The argument for this decision basically comes down to: “American citizenship doesn’t give you carte blanche to wage war against your own country. If you cast your lot with its enemies, you may well share their fate.”

The problem, again, is that apparently the executive also gets to decide what counts as "waging war" and what does not, without much input from the other two branches (which, in days of yore, were also considered to have a role in the wartime decision-making apparatus). There is no judicial oversight whatsoever here, nor any set procedure to be sure that the citizen is actually waging war against the U.S. From the NYT article: “Congress has protected Awlaki’s cellphone calls,” said Vicki Divoll, a former C.I.A. lawyer who now teaches at the United States Naval Academy. “But it has not provided any protections for his life. That makes no sense.” And who can say if administrative oversight in the CIA, not an organization known for public transparency or accountability, is adequate?

Awlaki's seems like an easy case as far as guilt goes (though those of many suspects do) -- he has clearly "cast his lot with America's enemies." Future cases might not be so easy, and judicial oversight or mandated congressional procedures based on constitutional rights will be sorely missed. The erosion of civil liberties (although, really, it seems parochial to use that term to refer to such a severe "deprivation" thereof) takes place piecemeal, via cases likely to garnish a good amount of public support, like this one. But it is precisely at these times that we should certify the limits of executive power.

The administration's arguments here do not foreclose the possibility of ordering the CIA to kill an American suspected of "waging war" while he's in Dallas or Chicago. They also don't foreclose allowing the CIA to delegate responsibilities to other law enforcement agencies (and who knows how the factfinding process even worked). And after all, the War on Terror is no traditional war, and we all know that that has led to major "innovations" in the government's prosecution of it. As the government turns wartime tactics, whether surveillance or actual killing, onto American citizens, the War on Terror becomes increasingly indistinguishable from the War on Crime. But it's now far less assailed by the kinds of criticisms from the mainstream American left than it was during the Bush era.

Friday, May 14, 2010

Durkheimian Democracy in China?

It is difficult to ponder the facts, let alone the meaning of acts like the recent string of lethal attacks on kindergartens and other schools for young children in China by knife wielding middle aged men (mostly, a woman tried yesterday). Edward Wong's reporting for the New York Times on this story this week included interesting speculation from a Chinese sociologists.

“They choose children because it’ll have the largest negative impact on society,” said Tang Jun, a sociologist in Beijing. He said the attackers did not appear to know their victims personally, so the assaults “must be an expression of their dissatisfaction with society.”

If so it may reflect the counter cycle to the Chinese state's use of punishment (and the death penalty in particular) as a means of trying to be "responsive" to the people in one of the few areas of life where government can take acts that are presumptively in line with popular sentiments but which keeps the state in total control.

This is a different kind of phenomenon than I described in the US context as "governing through crime." Here, after the political turmoil of the 1960s, crime became a privileged framework within which political leadership could govern with legitimacy to respond to the multiple and contradictory demands of a flawed but clearly real democracy. The Chinese model appears to trade more on Durkheim's insight that crimes assault the most deeply shared values of a society and therefore define and re-inscribe its common purpose. In China, where state leaders have chosen to pursue modernization without democracy, crime provides an opportunity for government to act on deeply shared values.

These attacks suggest that individuals can also choose to play the Durkheim card. In a society with little means for holding the state accountable, an individual could choose to commit a crime to shame the state and expose its inability to protect core social values. Since Chinese culture venerates very young children, and China's one child policy makes them particularly acute focus of their parents, the murder of children is a way to shock the deepest chords of the collective conscience. As Wong points out, the Chinese state is already in some trouble in this area.

The senseless suffering of children has become something of an Achilles’ heel for President Hu Jintao and Prime Minister Wen Jiabao. They have presided over an extraordinary economic expansion and a rapid rise in China’s global influence. But they have not been able to keep tainted infant formula off grocery store shelves or to account for why so many public school buildings collapsed during the 2008 Sichuan earthquake, killing more than 5,000 children.

It is interesting that in response to one of the attacks, the Chinese authorities quickly executed a man convicted of a similar attack only a month earlier. But this classically Durkheimian way of closing the cycle and reinscribing social authority may not be working. According to Wong's latest reporting, one of the top Chinese leaders himself spoke on the issue, and promised an investigation into the social problems underlying the attack.

“Apart from taking powerful security measures, we also need to solve the deeper reasons behind this issue, including resolving social tensions, reconciling disputes and enhancing mediation at the grass-roots level,” he said. “We are sparing no effort in all of the above works.”

The quote from Premier Wen Jiabao seems to suggest the government may want to break out of the crime frame into deeper social issues, something quite different from the American dynamic.

Wednesday, May 12, 2010

Two Cheers for Laura's Law

Kevin Fagan reports on the emerging debate about Laura's Law in California on the front page of today's SFChron. Laura's Law was adopted legislatively in 2003, named after Laura Wilcox, a Nevada county woman shot by a man with untreated mental illness. The law creates "assisted outpatient treatment" as a new alternative to civil commitment in California. Behind the law's enactment, as Fagan sketches, has been two disturbing features of contemporary California life; our grossly expanded prison system that held fewer than 30,000 prisoners in the early 1970s (when the state's landmark Lanterman Petris Short civil commitment reform law went into effect) to over 170,000 today. The fact that at least 15% (and perhaps many more) of these prisoners are suffering from a major mental illness is acknowledged by all. The second feature, whose dimensions are uncertain but whose obvious power over our political imagination requires no more evidence than the popular name of the law, is the plight of Laura Wilcox and other victims of violent assaults by assailants afflicted with severe mental illness.

Laura's law separates the question of compelled treatment from the question of involuntary confinement (the classic form of civil commitment). A court can order a person deemed to be "unlikely to survive safely in the community without supervision" to undergo medication, if they also find that they are "in need of assisted outpatient treatment in order to prevent a relapse or deterioration that would likely result in the person meeting California's inpatient commitment standard." The major problem with the law's implementation, so typical of the state's recent history of revenue free government, is that in order to make it budget neutral the legislature left it up to each county to implement and fund the law (two have, little Nevada, where 19 year old Laura lived, and giant Los Angeles). Proposition 63, enacted by California voters two years later, was supposed to remedy that by enacting a millionaire's tax (again way too typical of our distorted fiscal governance) to fund community mental health services. Only since most counties have never created implemented Laura's law lies largely untapped (except by creative deficit managers in the Governor's office).

Fagan's interlocutors, (many of them involved with the "Lanterman-Petris-Short Act Reform Roundtable" a diverse group of mental health providers, clients, families, and lawyers, exploring our mental health crisis more generally) believe the law would improve this situation. They point to New York, where the earlier Kendra's Law (named for a young woman pushed to her death in the New York City subway) has been implemented since 1999 and where some empirical studies now show substantial reductions in hospitalizations for those in the program compared to those subjected only to the traditional regime of no compelled treatment or full involuntary custody.

Should those concerned about mass incarceration in California support an effort to ramp up implementation of Laura's Law statewide? I'm ready to give it two cheers, but I doubt it will have much impact on incarceration unless its part of a more comprehensive effort to disentangle the mentally ill from our voracious carceral complex.

First cheer; if state coercion is going to be used (through a court) the goal of least restrictive custody should always favor community programs (of course that's been the explicit goal for forty years). De-institutionalization went along with a quantum reduction in state power to intervene legally in the lives of the mentally ill in the 1960s; but while the battle against the asylum system in the 1950s seemed to require tight coupling of the two, today's circumstances may require setting each more independently.

Second cheer, the law moves a step away from the focus on imminent threat of violence (the major focus of the reformed civil commitment standard in California and many states) to the question of whether the subject is on a predictable path toward that condition, a path that could be avoided by outpatient treatment. The civil commitment standard is classic "governing through crime," tying the legitimacy of state intervention to fear of violent crime rather than to questions of need, benefit, accountability, etc.

In the end, I fear Laura's Law is a flawed vehicle for the comprehensive reform we need. Without that comprehensive reform I would predict little change in the incarceration of the mentally ill in California even if the law is extended statewide.

First, the very name of the law traffics in the same fear based logic that has led to mass incarceration in California and elsewhere. Laura Wilcox, like Polly Klass and Kimber Reynolds (3-Strikes), Jessica Lund (Jessica's law), or Megan Kanka (Megan's law) were young middle class white females whose terrible and unanticipated murders devastated their families, shocked their communities, and became subjects of national "moral panics" with little grounding in policy analysis or evidence. Our collective response to the floridly and seriously mentally ill has always combined fear and sympathy (and often a layer of revulsion). The mentally ill are depicted alternatively as the most fearsome criminals or the most vulnerable victims. Our state policies have lurched from confining to embracing to abandoning them depending which one of these stereotypes is prevalent. Laura's law (and many of the current efforts to motivate adoption of a more proactive state posture) seeks to gain legitimacy through invoking the specter of terrible crimes against vulnerable victims, but those same fears block serious efforts to construct the kind of community based infrastructures that would be necessary to effectuate the law's ultimate goals.

Second, the law by itself adds a very weak power to a court system that must itself be reformed to take maximum advantage of what we now know about "therapeutic jurisprudence", that is the mental health effects of law and legal procedures themselves. The law is weak because all it can do to compel compliance is threaten to subject the mentally ill person resisting treatment to the same 72 hour hold that the law currently permits a police officer and medical provider to order when a person presents an imminent threat of harm to self or others. It is doubtful this is enough to gain compliance from those who have rejected existing efforts at voluntary treatment. More importantly, the law's design says nothing about the institutional shape that courts addressing this issue might take. New York has apparently seen some success with its version of involuntary outpatient assistance, but New York beats California institutionally on virtually every aspect of its correctional and mental health systems (but not higher education!). Just because it works there does not mean it will work here without serious institutional reforms.

Ironically, promising institutional designs are being field tested right now at the county level as part of diversion from criminal court. Many of these courts, like San Francisco's Behavioral Mental Health Court, combine a number of elements that have therapeutic value including collaborative case management by a team of legal and clinical specialists who maintain ongoing oversight of each client with regular public hearings before a specially trained judge who bestows normalizing praise and criticism as well as ordering greater supervision or treatment where needed.

Ultimately farther reaching changes must also be considered in the standards governing when the state can compel assistance along with the institutional reforms that would assure the right funding and organization of assistance.

Thanks to Kevin Fagan for front paging this issue. Stay tuned, reform of our mental health system is an important path out of the carceral dead end we are in.

Monday, May 10, 2010

You Have the Right to... What, Exactly?

Today, the Obama administration continued to shore up its Bush-style approach to crime, stating that "terror" suspects should no longer enjoy the protections of Miranda v. Arizona, the famous 1966 Supreme Court case which laid out a set of procedures that the police must follow at arrest in order to protect the arrestee's due process rights. Attorney General Eric Holder announced the administration's view in the wake of the Times Square near-bombing.

Even people with no qualms about the past decade's erosions of civil liberties and constitutional protections should at least ask themselves how exactly this will make America safer. As the Times article notes, Miranda already includes an exception for exigent threats to public safety under New York v. Quarles. So, law enforcement already has easy access to legal tools to deal with the rare "ticking time bomb" scenarios that have captured the minds of a nation. And to briefly shift to international law, it is unheard of for law enforcement, without any judicial oversight whatsoever, to simply designate an American citizen an "international terrorist" deserving of no 5th Amendment protections -- in Hamdi v. Rumsfeld (2004), even the heavily conservative U.S. Supreme Court rejected this approach at the height of Bush-era anti-terror fervor.

Miranda is also an established, accepted reading of the 5th Amendment. At its inception, many judges (most famously Justice White, in his dissent to the case) and lawmakers (most famously Congress, via the stillborn 18 USC section 3501). And yet today, most law enforcement personnel favor Miranda -- unlike the open-ended guidance that the Supreme Court has provided police in other areas of criminal procedure, Miranda gives a very simple, straightforward directive. This kind of clear standard benefits both law enforcement and people suspected of crime. Moreover, shortly before 9/11/2001, even conservatives had come to accept Miranda as a permanent constitutional prophylactic -- in Dickerson v. United States, the 2000 case that overturned 18 USC section 3501, Chief Justice Rehnquist, an icon of tough-on-crime jurisprudence, spoke for a 7-2 majority in stating that "the warnings have become part of our national culture."

Apparently, our national culture has changed quite a bit since those heady days when the Constitution meant something besides a hassle for those who would kick ass first -- usually covertly -- and ask questions later. TV might indicate otherwise, but in real life, good cops don't think in terms of the ends justifying the means, but rather accept that in a free society, law enforcement will always face some limitations, and that this is the true thin blue line between a free society and a fascist one. And even if the ends do justify the means sometimes, it's not clear how depriving "terror" suspects of Miranda rights will protect Americans, as noted above. With the left and the right in this country consigned to arguing over who loves the Constitution more, why wouldn't we want people to be informed of their most basic, uncontroversial rights -- the right to an attorney and the right to choose whether or not to speak with the government?

Maybe someone has a cogent, constitutionally-grounded argument for why Miranda's protections should not apply to citizens suspected of terrorism. Maybe that someone is Barack Obama, Eric Holder, or their new spiritual ally, Rudy Giuliani. But until we hear that argument, we should be wary about passing over to law enforcement the ability to designate as an "enemy combatant" an American citizen apprehended on an American street. Instead of just throwing the word "terrorism" around, the Administration needs to acknowledge that doing so obscures the fact that it's treading a slippery slope away from established constitutional protections that all Americans enjoy. Holder should consider the extent to which the War on Terror has been a globalization of failed War on Crime methods and ideals that far predate the Bush administration.

But instead of telling us how exactly loosening Miranda would benefit the search for terrorist suspects, Holder has simply invoked tried and true platitudes about the "threat we now face," bringing media-friendly phrases to what should be a sober policy discussion. In doing so, he follows a long tradition of policymakers more concerned with appearing tough on crime than with actually being smart on crime, whether with regard to the War on Drugs, anti-gang ordinances, or the domestic surveillance done in the name of the War on Terror that would have been considered unthinkable only a decade ago. He speaks of "international terrorists" to obscure the fact that the exception he's seeking would also apply to American citizens, who have grown increasingly used to being monitored under the auspices of the War on Terror. People designated as such can count themselves as homo sacer, enjoying neither the diplomatic protections of the foreigner nor the constitutional protections of the citizen.

And let's not forget how easy it is to be counted among the terrorists these days. If the Obama administration gets the law it wants, perhaps a decade from now, the conservatives who count William Rehnquist as a liberal will get their wish and have Miranda stricken from the books completely. Meanwhile, the United States leans towards a permanent state of exception, where the idea of positive community- or individual-based rights and identities held against the government no longer exists, where the State capriciously determines what constitutes the "public good" -- and what it can do to advance that.

Wednesday, May 5, 2010

State of Mass Incarceration

Last week before finals here at Cal and whatever intelligence I had to impart this semester has long been imparted. Fortunately California's disastrous dance with mass incarceration remains central to discussions here on campus. In light of the aforementioned neural overextraction problem, please pardon the recourse to a simple listing.

* Barry Krisberg discusses downsizing the prison industrial complex with UC News Center's Cathy Cockrell.

* In his interview last Saturday with Scott Simon on Weekend Edition Saturday, UC President Mark Yudof noted that having the world's biggest prison system won't grow the state's economy the way a world class university system may.

* David Onek's terrific podcast series Criminal Justice Conversations has repeatedly focused on mass incarceration including: Jeanne Woodford, Former Warden, San Quentin State Prison and former Acting Secretary of Corrections; Sunny Schwartz author of , Dreams from the Monster Factory; Secretary of Corrections Matthew Cate; and Senator Mark Leno.