Cruel, Inhuman and Degrading: California's Death Penalty

If all goes according to the State of California's plans, Albert Greenwood Brown will be executed Thursday in a newly outfitted death chamber at San Quentin prison [the 9th Circuit Court of Appeals intervened since this was first posted and remanded the case to the District Court for further proceedings, which makes it virtually certain the execution will be delayed (read Bob Egelko's reporting in the SFChron). I'll post later on the reasons for the stay]. Lawyers for Brown and the State of California are battling over California's method of execution through lethal injection (will it be one drug or three?), and the execution may well still be delayed further. But if and when California is able to execute Brown he will be have suffered not one capital punishment, but two.

Brown was convicted of kidnapping, raping, and murdering a 15 year old girl in a crime committed in 1980, and sentenced to death in 1982. That is a heinous crime worthy of the most severe punishment a society uses. In most of the countries of the world, and virtually all its democracies, that means life in prison. In the US, Japan, a few Caribbean democracies, and a lot of Islamic and Asian or African autocracies that means the death penalty. In California it means both. The point is not just that California juries can choose between life in prison and death, its that when they choose death, they are actually sentencing the prisoner to both life in prison and death by execution.

Consider that when he is executed, Brown will have spent some thirty years on death row awaiting execution. For most of the world, life in prison means, ten, twenty, in the extreme, possibly thirty years in prison before being released to some form of parole. So in California, a condemned person like Brown is sentenced to serve a prison sentence approximating the most extreme possible prison sentence in Europe, plus a lethal injection at the end of the wait. Life in prison, with the real prospect of dying behind bars and without the presence of love, is severe punishment. Adding to that an execution ritual in which the state will seize you in the midst of health and kill you is degrading and cannot help but reduce the humanity of those subjected to it and those who impose it. That is the true meaning of "inhuman and degrading" punishment in international law.

I consider the death penalty an unnecessary and thus inherently cruel punishment, but even if it is not, being forced to wait in circumstances that constitute extremely harsh punishment three decades under threat of death, and finally to be killed is to mock the very humanity of the condemned.

Having execution follow such a long imprisonment also defies all legitimate reasons for having a death penalty. Whatever deterrence power there is in such a sentence, comes from the years in prison, since most of the condemned will die of natural causes before their execution in California. The goal of retribution, demonstrating our moral outrage at the heinous treatment of the victim, is rendered hollow when the passage of decades means few recall the crime or the victim. And the objective of helping families to recover is actually reversed where the family of the victim endures years of waiting for a moment of justice, while being told that the real punishment is "delayed" and yet to come. Opponents and supporters of capital punishment have battled themselves to a kind of draw, leaving us with a legal institution that is a perversion in every sense of the term; managing to extract suffering from the condemned from the moment of its imposition, while denying that suffering any possibility of relieving the victims. Protecting the public does not require the execution. During his years locked in San Quentin, Brown has killed no known serious crimes. The public would have been equally protected had he received a life in prison sentence (even with parole, since it is rarely granted in such an aggravated case).

The reasons for California's uniquely lengthy wait for execution are complex, involving the absence of sufficient defense lawyers, the state's dilatory style of pursuing its legal path, and the existence of multiple levels of appeals. The key fact, however, is that nobody seriously believes the situation can be much improved short of spending millions and perhaps billions more on legal costs.

Californians should be outraged at this farce of justice to both victim and thecondemned. It is time to admit that capital punishment is just an expensive symbol, bandied about by politicians of both parties, to show they care about victims, while subjecting the very very few people executed to cruel, inhuman, and degrading punishment.

There is an alternative. Those people who commit the most heinous murders,in the most culpable way (they are not suffering mental illness, retardation, did it deliberately, etc.) should spend decades in prison, period. (I'll leave for another time whether that must require life without parole, or whether the possibility of parole after 25 or 30 years would be more appropriate). Under such a penalty, victims would know that a just and very serious punishment was beginning immediately following the trial (not decades later); convicted killers would know, following a year or two of appeals, that their punishment was final and irrevocable; and Californians would know that they were doing everything they can do to deter future murders and protect citizens from further acts of violence by the convicted. The tens of millions of dollars saved from the endless court battles we currently fight, could be used to hire more police officers and pay for more DNA testing of cold case evidence, so that more murders are actual solved and result in the conviction and punishment of the guilty.

Yes on Prop 19: Legalize Marijuana

On November 2nd, California voters will have an opportunity to legalize marijuana use for all persons over 21 and authorize local government to regulate its use and sale (see the Ballot_Pedia article for more on the initiative). Legalizing marijuana will not, by itself, turn around our catastrophic prison overcrowding. Relatively few people are in prison for marijuana possession or even sale. However it can achieve two objectives that will move us in the right direction on crime policy and prisons.

First, legalizing marijuana will prevent the needless stigmatization and alienation of thousands of young (and not so young) adults who are discovered by the police to be in possession of marijuana, which is one of the leading cause of arrests in the United States. This will actually unburden the police who are usually searching for weapons, from having to arrest people they discover marijuana on, or appear to be ignoring law violations. Many police-citizen encounters will have a happier ending. More importantly, many people will not accumulate misdemeanor offenses on their record that can lead them to prison later, and will avoid unnecessary criminalization.

Second, legalizing marijuana will deliver the largest possible blow to heinous drug cartels in Mexico for whom marijuana constitutes the second largest source of profits (and possibly the largest). As decades of experience have taught us, profit centered criminal networks are almost impossible to defeat using normal criminal sanctions (because they can successfully recruit new members to replace any incarcerated ones so long as the profits remain high). As Mexico's disastrous military war on drugs is demonstrating, extra-judicial deterrence does not work any better, and does lead to hundreds of collateral casualties. Without firing a single bullet, California voters can cut the Mexican cartels down to size, making it harder for them to corrupt the Mexican political system, simply by moving those profits from the crime world to the world of lawfully regulated business.

We should not be glib about the costs of marijuana legalization. Making it legal for California adults to buy and possess marijuana will almost certainly lead to more people using more of the drug. A recent paper from RAND by my colleague Rob MacCoun and others uses econometric techniques to try and estimate those effects and they suggest far from trivial increases (here it is, but it may require authorization to access). While it is true that most people who want marijuana can easily find it now (especially given California's medical marijuana regime), there are actually some people out there who will not use it on principal simply because it remains against the law. More importantly, the convenience and reliability of obtaining marijuana once it is legal will very likely increase use (even if the price does not go down, which RAND assumes but has not been true under the medical regime and could be prevented by correct tax policy).

Marijuana can be psychologically addictive. Its capacity to lift the user above the humdrum of life and let them see things differently (enabling the poetry function) can be hard to resist. For creative artists and writers it may be a wonderful tool, but for people facing depressing circumstances it may become a way to ignore circumstances that need to be changed instead.

But here is where the argument for legalization becomes most promising. The best way to prevent and remedy addiction, is through outreach, education, and counseling to the user community. The current state of illegality makes that harder in countless ways. Once legalized, local regulation could require marijuana stores to provide all of those services to their clients, and creative regulators could celebrate innovations and circulate best practices widely.

And this is precisely where marijuana legalization could do the most good. By demonstrating, through empirically tested regulations, that civil governance can remedy the negative consequences of recreational drug use, the legal marijuana regime could help wean us from our dependence on criminal law as a way to govern America.

Europe's New Axis of Governing through Crime

France's President Nikolas Sarkozy and Italy's Premier, Silvio Berlusconi, took new rhetorical steps today to define a new alliance based on populist campaigns against despised minorities in the name of national security. The two leaders, both facing growing opposition at home over their failed economic policies have used aggressive campaigns of arrest and deportation against the nomadic Roma population to shore up their popularity with anxious voters. The Roma are citizens protected both by the European Union agreements and the European Charter of Human Rights. Despite strong outcries from human rights groups, the deportations of the Roma had received tepid responses from European Union officials (see my earlier post on this) until yesterday. Then, in a dramatic statement that seemed to contradict her earlier conciliatory remarks, European Commission commissioner Viviane Redding called France's deportations "a disgrace", and explicitly compared them to the deportations of Jews carried out by the Nazi allied Vichy regime (read Katrin Beinhold and Stephen Castle's reporting in the NYTimes). The intervening event was the publication of a leaked French memo contradicting earlier assurances by France that it was not singling out the Roma.

Today French President Sarkozy lashed out at the Commission (read the coverage from Matthew Saltmarsh and Katrin Beihold in the NYtimes), wrapping himself in French sovereignty and in the imperatives of providing security from crime.

Mr. Sarkozy called those remarks by the commissioner, Viviane Reding, an insult, and said they were “excessive” and “humiliating.” He also defended France’s right to carry out the removals, which have drawn criticism from human-rights groups and international organizations, as a matter of security.

“I am head of state,” Mr. Sarkozy told a press conference at a European summit meeting in Brussels. “I cannot let my nation be insulted. All the heads of state of government were shocked by the outrageous comments by Madame Reding.”

Sarkozy's defense relies on the stamp of approval applied by French national courts to the deportations, and his duty as head of state to put his citizen's security ahead of any other imperatives.

Mr. Sarkozy, whose government has vigorously defended the deportation policy, said Thursday that all expulsions to date had been carried out under French law and following decisions by judges without any “targeting” of specific groups.

But this logic completely ignores the whole point of having a European human rights charter. No doubt Vichy deportations of Jews would have been approved by Vichy courts if anyone had been permitted to challenge them and undoubtedly the Vichy government felt that removing Jews was in their security interest.

Italian Premier Sylvio Berlusconi, whose government has also conducted a deportation campaign against the Roma, defended the French actions as well. Of course if you need to rely on the notoriously scandal plagued Berlusconi to come to your rescue, you are hitting rock bottom.

Nightmare on Elm Street: The Real Killers Beneath California's Safe Suburban Streets

In the 1970s Californian's were terrified by what seemed like an endless array of serial killers busy breaking into their homes, or snatching their loved ones of streets. There was the Zodiac Killer, the Hillside Strangler, and the Trial Side Killer, the Sacramento Vampire, and no less than three Freeway Killers. All told more than 160 victims were killed by some 15 distinct serial killers (either acting alone or with accomplices). While the trend peaked in the 1980s, and like homicides generally has gone way down, the legacy of those "fear years" is California's massive prison population (more than 6x its levels in the 1970s) and chronically overcrowded prisons which threaten to bankrupt the state. Despite the crippling financial costs and the ongoing human rights crisis, any politician that seeks to release prisoners, or question the need to send so many away for so long, runs into a wall of fear that sees in any early release or effort to solve problems in the community another potential serial killer on the streets.

I believe this fear is anchored in the unquiet memories of the 1970s and 1980s. Those memories are unquiet largely because they continue to be fed by a media industry that has has been enriched by serial killer fantasies for decades, and a political class that is itself addicted governing through the fear of strangers produced by these "memories" (and easily transferred to immigrants, Muslims, or anyone else that seems different). That "stranger danger" complex was facilitated by another fact of California in the 1970s. Decades of efforts to build up the state's infrastructures had made California a gleaming technical powerhouse in the late 1970s when I moved there to go to college. With solid infrastructure and multiple engines of economic growth, Californians could afford to indulge in that most ancient and entertaining fear of the "bogey man." No more

The terrible fire ball that ripped through the San Francisco suburb of San Bruno on Thursday night this past week, killing at least four, and totally destroying dozens of nice suburban homes, was another reminder that California and all of America is today stalked by infrastructure failure. According to Adam Nogourney and Malia Wollan's reporting in the NYTimes, the gas pipes that exploded Thursday were probably installed in 1948. In much of the rest of nation, basic water and energy piping was laid in the early 20th or even late 19th century. After decades of pretending we were a technological leader, America is waking up to the fact that our decaying infrastructures are a danger to economic growth, and increasingly, to our lives. The failed levees of New Orleans, the bridge that collapsed in Minneapolis a couple of years ago, similar pipe explosions in New York, these are the serial killers of the 21st century.

But Hollywood is unlikely to embrace infrastructure danger, not while they can keep trotting out versions of the Charles Manson to scare us. Nor is the current political generation, which learned to wield power by invoking fear of other people, likely to mobilize the population behind the need to redirect our public and private spending toward renewing our infrastructure. That is why President Obama's sporadic efforts to get the country focused on infrastructure investment are so important and so insufficient. His call in his speeches last week for an infrastructure bank to fund a new generation of public and private investment may have made good policy wonk sense, but it didn't grab Americans by their fear. He also missed his chance in New Orleans a couple of weeks ago to stand in front of the levees that failed in 2005 and tell Americans, these are the killers that could take your children away next week, next month, or next year. He should fly to San Bruno, and along with Governor Schwarzenegger--who has tried as well to raise the alarm about infrastructure during his terms in office--(perhaps made up for the occasion in his old Terminator make up) to stand in front of those obliterated houses and tell Americans that the nightmare of the future is here today.

Europe's War on the Roma

The latest target of "governing through crime" tendencies among politicians in the Euro Zone is the Roma. Often called "gypsies" the Roma have roots in Romania but are often citizens of the country in which they live, as well as of the European Union. Despite their legal status as citizens, the Roma increasingly find themselves subject to arrests and expulsions as if they were undocumented aliens with no legal rights. The Roma are often stigmatized as criminals, and accused of involvement in all kinds of scams and illegal activities, a stigma that goes back decades if not century. Along with Jews, the Roma were one of the ethnic groups targeted to genocidal extermination by the Nazis. Today, they are to be found in almost every large city in Europe. Economically marginal almost everywhere, the Roma are described as "nomadic" despite evidence that their irregular habitats are mostly the result of extreme poverty.

This summer President Sarkozy of France has made a major public campaign of expelling the Roma from France, irrespective of their French or EU citizenship. A series of sometimes violent round-ups, reminiscent of Jews being deported during the Vichy period, has generated considerable backlash from human rights organizations and activists throughout Europe. According to Elisabetta Povoledo's reporting in the NYTimes, Italy is also targeting the Roma, dismantling long established "camps" and expelling the Roma from Italian cities.

Public debate on the issue often has racist and xenophobic overtones.

“There has been growing rancor against Roma and Sinti, in part because the media has hyped this issue, and in part because the government uses it as a means of gaining consensus,” according to Lorenzo Monasta, the president of Osservazione, a research center in Trieste that monitors discrimination against Roma and Sinti.

The critics say recent federal laws have also made life more difficult for Roma and Sinti here, even though more than half are Italian or European Union citizens. In 2007, the government passed a decree allowing European Union citizens to be expelled after three months if they lacked the means to support themselves. Then in 2008 a decree granted the authorities new powers to expel European Union citizens for reasons of public safety.

The public campaigns against the Roma have all the features of governing through crime in the US. Led by politicians facing significant policy and political resistance in their own countries (Sarkozy and Berlusconi), the campaigns involve removal of elements of society with little regard proving any actual legal guilt, but all done in the name of security and public safety. That these campaigns could unfold only sixty odd years since the Nazi genocide against the Roma, and in countries at the heart of the supposedly human rights cherishing European Union, is extremely troubling.

Governing Palestine through Crime

To appreciate the perniciousness of governing through crime in advanced liberal societies like the US and the UK, where politicians invoke crime fear for their own advantage in societies with abundant mechanisms of regulation, one has to appreciate why establishing a capacity to govern violence as crime is an essential part of the state building project for new states or those undergoing transitional reconstruction of authority. Today Palestine is an example of the former and Iraq, of the latter.

The news as reported by Avi Issacharoff in Haaretz that the Palestinian Authority has arrested two suspects in the murder of four Israeli settlers on Tuesday is very good news for anyone who wants to see Palestinian sovereignty established in real terms in our lifetimes. Hamas which openly took responsibility for the gangland style drive-by shootings, chose its targets well to emphasize its narrative of challenge to PA authority (as much or more than Israel's) by killing residents of a provocatively located West Bank settlement placed well into concentration of Palestinian population and land which must be Palestine under any realistic two state solution. "One settler, one bullet," is an old anti-colonial chant from South Africa, Algeria and other sites of violence as resistance to colonization. But if Hamas can define the murder of unarmed civilians as resistance because they are settlers, that assumes away the claim of the PA to civil authority over the West Bank, including the site of those settlements. In short Hamas and the settlers are in perfect agreement that any claim to PA governance over their space, even an evolving one, is a fiction.

If the PA has indeed succeeded in bringing the killers to criminal justice, especially if can do so without violating the human rights of the accused or other suspects (and we need to know more about their arrests of Hamas supporters) they will have gone a long way to establishing their sovereign authority over the West Bank including Hebron (especially given the fact that Israel retains major security control over that sector even before the attack Tuesday). In the context of potential civil war, criminal violence is a stabilizing way for a state to interpret acts of lethal violence. By effectively responding to Hamas' violence as crime, the PA makes itself a real state. In contrast, the embrace of crime by politicians like Bill Clinton and Tony Blair, managing the prolonged crises of advanced liberal welfare states risked degenerating the self regulating capacity of well developed civil societies for short term political gain.

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PS. I talk about governing through crime in the US and in Israel/Palestine with the very interesting politics blogger George Kenney in a podcasted conversation over at Electric Politics