The Strangers We Know

As sociologists of urban American have powerfully documented, our inner city neighborhoods of highly concentrated poverty have suffered under a powerful stigma of crime fear that influences almost all aspects of economic and social life from the unwillingness of retail enterprises to open in such neighborhoods even when federal welfare transfers assure a profitable market for at least some essentials (like groceries) to the willingness of the police to assume that virtually anyone of the right age and gender on the street is involved in gangs and crime. In many respects this stigma has now replaced (and arguably reproduced) the stigma once associated with non-White racial status in American (and especially "Blackness"). The other side of this equation is the huge "pass" middle class Americans give neighborhoods that are coded as middle class (where most people have jobs and a plurality of them, at least, are white. For many individual "consumers", and for the businesses that serve them, these neighborhoods signify safety and security, places where violent crime, if it happens at all, is an aberrant event created by the penetration of outsiders.

Of course that kind of thinking is a textbook example of what sociologists since the mid-20th century have called the "ecological fallacy," the false presumption that a statistical portrait of a place gives you an understanding of the individuals who occupy that place. The irony is that while violent crime is far less of a risk than many people imagine, those kinds of violent crime that people may fear the most, stranger abductions and murders, often for sexual purposes, may be the part of that risk least able to be strategically avoided through ecological discrimination in residential and commercial life.

A terrible crime here in the United Kingdom (where I am spending this Hogmanay), illustrates these themes (read the latest coverage by Steven Morris in the Guardian). The Monday before Christmas, 25 year old Joanna Yeates, a landscape architect with a close family and recently living with her boyfriend went missing in Bristol, a city of around 450 thousand (in a met area of more than a million). The case quickly capture media attention in a society almost as crime focused as the US. Her parents made a public appeal for help. When her frozen body was found Christmas morning on the edge of a street in a suburban area about three miles from her home the palpable horror in the country cut through the holiday frenzy.

Today, just a day before the Hogmanay holiday (New Years Eve to those of you reading outside of Scotland), the Avon and Somerset Police announced the arrest of a suspect, Chris Jeffries, her landlord and a slightly flamboyant retired English teacher at the local equivalent of a community college. The coverage of this makes clear that the police consider him a suspect rather than a witness, a judgment that could come undone, police at least in the US have a long history of focusing on weird suspects who may come across to jurors as alien in some respect and thus possibly a murderer.

The coverage now carries the predictable but nonetheless illuminating statements of other neighbors who can add to their shock at having one of their neighbors murdered, the shock that one of their neighbors, perhaps this very well established figure in the block, might be the murderer.

A resident, Tony Buss, 51, said that one of the cars towed away by police belonged to Jefferies. "Today's news is a shock and surprise," he said.

Another neighbour, a 26-year-old man who did not want to be named, said: "It's all been pretty scary, especially for my girlfriend as I'm away most of the week so it's been pretty scary for her to be home alone. We chose the area of Clifton to live in because we thought it was safe."

Note especially the language of about neighborhood and crime risk. "We chose the area of Clifton to live in because we thought it was safe." Its a nice one line summary of just how important crime fear is in how middle class people live even in the UK. Even if the case against Jeffries holds up it may not do much to alter the willingness of people to invest in the ecological fallacy. When terrible crimes are committed by the residents of "safe" neighborhoods there is an automatic presumption that it reflects a deep psychological flaw in the killer rather than anything about the neighborhood. This is indeed one of the origins of the serial killer as a crucial folk devil of late modern crime fear. The crimes they commit may be gruesome, but it is the threat they pose to the whole ecological crime security strategy of so many middle class citizens in both the US and the UK that makes them monsters.

Homeroom security

Even though my blurb reads like a teaser aimed at security minded parents of school age children anxious to find out what research can tell them about how to avoid the next Columbine, Aaron Kupchik's important new book on the securitization of American schools helps us understand how much the compulsion to hard wire schools for security against a variety of real and imagined crime threats (too often imagined). Kupchik's work is part of an important wave of new empirical studies by criminologists, political scientists and sociologists that is probing the practice of crime control inside schools more than a decade of the passage of the landmark School Safety Act of 1994, at the height of Clinton's war on crime.

Kupchik's well designed qualitative and quantitative research helps make clear that while some of this an extension of racialized versions of coding the identity of minority youth in disadvantaged communities as defined by crime, much of it cuts across race and class demarcations. An obsessive emphasis on crime security has become part of the way we imagine adequate schooling in all kinds of communities. As Kupchik shows, these strategies are more often than not counter productive, and systematically ignore the real factors that drive school violence in those settings where it is a real problem, while increasing the chances that youth in those communities will end up out of school and ready for drafting into the criminal justice system. Safe schools are a must for all parents, and there are ways school stakeholders can attend to that without allowing the performance of security adequacy through visible and symbolic measures to overwhelm schools themselves.

This is another reminder of how much it is costing America to give crime and other forms of "stranger danger"undue sway over our institutions. Schools are there to educate in ways that open the door to economic opportunity, citizenship, and a life of integrity. The first factor has become increasingly important in the globalized and insecure labor market our young people face. We have become ever more critical of the ability of schools to achieve these goals over the last 20 years, during the same period we have allowed crime to mission creep its way into our educational practices. The much discussed No Child Left Behind law contained significant and hardly ever discussed provisions that demand more "availability" for school crime information on a comparative basis (so like test scores it can become the fodder for reflex and decontextualized searches for school comparisons).

“A big human rights problem”

One of the big take aways for me of the Plata oral argument was the very explicit mention of human rights and the unnamed but palpable presence of dignity values in the 8th Amendment. Justice Breyer described the conditions in the underlying Plata and Coleman cases (dealing with physical and mental health respectively) as presenting "a big human rights problem". That was not a phrase used by the briefs for the prisoners, and it was not repeated during the oral argument, but it underscored a palpable sense among many of the Justices (a majority) that the underlying denial of adequate medical and mental health care was horrifying (Breyer uses the term "horrendous") and beyond the range of ordinary prison condition litigation.

Justice Breyer invoked this sense of horror by talking about a photograph he had seen in an amicus brief filed by a group of religious organizations. I believe he was referring to this:



It is from one of the filings in the Coleman case, involving failure to adequately treat mental illness, and it depicts cages "without toilets, sinks, or beds" in which suicidal prisoners were confined for days awaiting treatment. Justice Breyer's questioning of Mr. Philip's indicates that these photographs cut through the record as a whole for him, and the Justice challenges the advocate to show him something in the record that proves the state is able to make that horror go away without the population cap ordered by the 3-Judge court.

JUSTICE BREYER: What would I look at to find this? It's a big record. What I did was I -- it refers to on-line evidence, and I went and looked at the pictures, and the pictures are pretty horrendous to me. And I would say page 10 of the religious group's brief, for example, shows you one of them. (20) ...

Now, you've looked at them. I've looked at them. And what is the answer to that? So how can I -- or you if you were in my position -- what would you say

Interestingly, Carter Philips, for the state, not only did not challenge the depiction of the treatment of prisoners as horrendous and a human rights violation, he embraced it, describing the core constitutional violation involved as:

culture of disregard for the inmate

While suggesting that the conditions were a lot better (without showing the court was clearly erroneous in finding otherwise) Philips acknowledged that the problem was a distinctive and radical, justifying the unprecedented quality of placing the entire prison health care system under a receiver rather than the more typical special master.

California Style Mass Incarceration

Socio-legal scholars have long spoken of "naming, blaming, and claiming" (Felstiner, Abel, and Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, and Claiming, 1981) to describe how disputes arise and move toward legal realization. If the same may be said of polities, than the Supreme Court's oral arguments a couple of days ago, in the great California prison population case (Schwarzenegger v. Plata) may mark the moment when the harm of mass incarceration in America broke out of its canyons of attention, and became a public dispute for the US.

For the Court's "liberals", the staggering portrait drawn by the many experts who testified before both original courts and the 3-Judge panel of the way physical and mental health needs are unmet appears to have broken through their own instincts to defer on criminal matters. The routine way in which California prisoners met death not through lethal injections, but by fatal neglect of their obvious and remediable medical needs, or by suicide after florid psychotic symptoms were ignored, animated a livelier questioning of the state in a criminal matter than in a long time. The Court's "conservatives", stripped of their preferred grounds of deference to the state's penological rationality, by the sheer scale of California's organizational failures over a twenty year period, were left to rest on the primal fear of violent crime and the biblical conviction that keeping people locked up must mean fewer crimes. Of course even if the Supreme Court (5-4), upholds the population cap, it will not end mass incarceration, that claim was not yet before the Court (and probably never will be).

The New York Times editorial today does a nice job of condensing the naming and blaming and moving toward the kind of claiming that would be needed to move from an end to cruel and unusual punishment in California to an end to mass incarceration. Their title, The Crime of Punishment in California, names the harm, that punishment in California is itself fundamentally wrong (not just badly carried out or underfunded). The editorial goes on to further specify the where the blame lies, with "California style mass incarceration" These cases are not about imprisonment, per se, or any particular prison conditions, it is about the wholesale and systematic policy of expanding the prison population as an end in itself, with no serious effort to maintain the medical and mental integrity of its inmates let alone reform or discipline them. Not every state has embraced this "style" of imprisonment, it seems to flourish most in the sunbelt (see Mona Lynch's key book Sunbelt Justice, on Arizona), but it is a part of the political culture that sustains high incarceration levels across much of the US and which continues to spread to Europe. The editorial draws its claim, from the growing consensus among American criminologists that mass incarceration (many of the leading lights of which are in the Criminology and Public Policy issue referenced in the editorial) is a massive failure, even at the business of crime control.

Among experts, as a forthcoming issue of the journal Criminology & Public Policy relates, there is a growing belief that less prison and more and better policing will reduce crime. There is almost unanimous condemnation of California-style mass incarceration, which has led to no reduction in serious crime and has turned many inmates into habitual criminals.

America’s prison system is now studied largely because of its failure — the result of an expensive approach to criminal justice shaped by fear-driven ideology. California’s prisons embody this overwhelming failure.

The harm named is "mass incarceration" as bio-political phenomenon. The blame is laid at a "politic of fear" that has little to do with public safety in empirical terms. The claim is that public safety can be upheld and enhanced by abandoning California style mass incarceration.

Of course none of this means you should short your mass incarceration stocks tomorrow. Its going to take years and possibly decades to dismantle mass incarceration. But the essential elements of the public conversation that can end mass incarceration are now out there in official discourse to a degree I would not have expected in 2005.

The Fire This Time

The dangerous wildfire spreading in Northern Israel is yet another reminder of how desperately the world community needs to pivot toward global environmental risk as the primary focus of security. It is also a reminder of the virtuous moral shift that would quickly follow a new "war on environmental disaster" to replace out spent and disastrous "war on terror." The blaze, which began in forested areas near Carmel, Israel, and now threatens the outskirts of Haifa (read Haaretz coverage in English here), has already killed 40, mostly young prison officer trainees who were rushing to aid the evacuation of a prison when a tree collapsed on the bus, trapping most of the rescuers in the conflagration.

With dozens of countries sending aid, and Israel's well organized air force now taking control of an international fleet of fire fighting equipment and personnel, the fire will hopefully be under control soon. When it is, perhaps Israelis, whose palpable sense of fear and isolation has grown in recent years along with the nation's insistence on a "go it alone" approach to its occupation of Palestinian territories (and International Law more generally), will consider how different it feels to confront environmental risks. Even though the blaze claimed more lives in one day than years of Hamas rocketing in the years before Israel's 2008 war on Gaza, Israel was not isolated this time. Instead dozens of countries immediately offered aid, including Muslim and Arab countries, and first of all, apparently, Turkey, the Muslim powerhouse whose once good relationship with Israel has gone sour over the Gaza situation and this summer's preemptive attack on the Turkish aid vessel bound for the strip. Meanwhile, the Netanyahu coalition government, which is fond of reminding the world that Israel looks to no one but itself for security, showed no hesitation in defining the need for and accepting international assistance. In its long war with the Palestinians, Israel has not only lost many of its friends around the world, it is increasingly divided on the inside, both between Arab and Jew, and among Jews. In the fire, by contrast, Arab and Jewish Israelis were together among the population threatened by the fire, on the bus of young rescuers who perished, and even the inmates in the jail they were speeding toward rescuing (they did get out).

Why is it so different when security is defined as about terrorists or criminals, than when the security problem is an environmental disaster? Think of risk as a kind of mirror in which a society sees and acts upon itself. In the mirror of terrorism/crime we see vulnerable victims and motivated capable aggressors (although we may not agree always on who is who, and we are very likely to read racial, class, and religious otherness into the classification scheme). Reacting to that image, we feel empathy with the victims (as we see them) and anger toward the aggressors (as we see them). How dare they? We seek to make them pay a punishing price which will surely change their motivations. Failing that we seek to build walls around the aggressors, or at least between the victims and the aggressors, who are imagined to share no characteristics, dependencies, or sympathies.

In the mirror of the Carmel fire (or the Haitian Earthquake, the 2005 South East Asian Tsunami, or New Orleans after Hurricane Katrina), we see a population that includes potential victims and potential rescuers, regardless of race, nationality, and religion. We see governments and people who are both part of the problem (because they failed to prepare and created life styles that made them more vulnerable and perhaps disasters more likely) and a necessary part of the solution. We see that the past no longer matters; nor who did what to whom. All that matters is how we can work together to survive on a planet whose margin for human habitation is far smaller and more fragile than we have learned to imagine.

While both Israelis and the world often act as if the Israeli-Palestinian conflict (and extended conflicts with countries like Iran) is the only one that matters to security in the Middle-East, the fire is a reminder of the vast environmental problems within the region (especially around water) and the potentially devastating consequences of world environmental events (like a sea-level rise of 2 or 3 feet by the middle of this century). The need to face up to these environmental risks and give them the kind of political, economic, and cultural attention we give to terrorism and crime is not one of either objective necessity or moral preference, it is both. We cannot wish crime and terror away, but we can see other threats. In this problem/opportunity Israel is hardly alone. The whole world, whether developed or still developing faces a disaster roulette whose odds seem to be getting worst while their internal politics are getting sharper (especially in the US). The irony is that when we choose to allow ourselves to get really scared by this threat, we may end up far more confident in ourselves and each other.

People are going to die

I have been arguing for some time that mass incarceration rests almost completely on an exaggerated fear of the risks of homicide that America in general, and California in particular, embraced after the bloody 1970s, and which remains seared into our political consciousness more than thirty years later, despite substantial drops in homicides and violent crime since the early 1990s. You can talk about the war on drugs, tough sentences for burglars, and over imprisonment of technical parole violators; but they all come down to a fear of citizens being murdered by someone that state could have stopped first.

This logic was on display in today's Supreme Court Oral arguments over California's appeal from the important 3-Judge panel decision ordering population reduction in order to remedy long standing medical and mental health conditions in California prisons. As commentator Hadar Aviram points out in her analysis, almost all of the Justices (save Scalia and Thomas) seemed to appreciate the extent of California's mismanagement. Where there seemed to be the most concern was that the population reduction might lead to more crime in California. The Justice seemed particularly horrified by California's 70 percent recidivism rate for parolees (failing to comprehend that most of this is for technical violations that are a symptom rather than a cause of exaggerated fear). But its not just crime in general, that people (and Justices) fear. It is murder.

Sensing this, Carter G. Philips, the learned advocate for the State of California, closed his final rebuttal with a simple but well calculated statement. As quoted in Adam Liptak's article in the NYtimes

“Anytime you say you are going to release 30,000 inmates in a compressed period of time,” he said, “I guarantee you that there is going to be more crime and people are going to die on the streets of California.”

Of course Californians are already dying of the state's prison management. According to earlier fact finding by the Judge Thelton Henderson in the medical part of the case (Plata v. Schwarzenegger), a prisoner a week dies of routine medical problems that a constitutionally adequate prison health system could prevent. But those kinds of deaths do not count in twisted logic of governing through crime.

Liberal v. Radical Criminology, cont.: A Reponse from Tony Platt

I'm posting this for Tony Platt since its a wee bit too long for the comment field
---------------
Thanks for your comments on the "Politics of Protest" session.

You might have pointed out that the heart of my comments focused, not on the School of Criminology at Berkeley, but on the strengths and weaknesses of the ideas in the original POP, and a critique of Skolnick's introduction to the new introduction (in which, in my view, he minimizes ongoing problems of racism and uncritically praises the Obama regime.)

I have a few initial comments on your views about liberalism and radicalism (below):

(1) By "liberalism" I assume you mean social democratic liberalism, that occupied a central role in American politics from early 20th century through the Clinton government. For most of its run, it was a managerial political ideology, focused on regulating rather than eradicating inequality. There are moments when this kind of liberalism gets pulled left during times of mass political activism (for example, 30s and 60s), but mostly it revives as top-down managerialism. (There's a huge historical literature on this issue.)

(2) It's just name-calling to suggest that "radical criminology" was a "rhetorical disaster" and "highly ideological" while liberalism was "more robust" and measured. Do you really think that liberalism as political ideology was somehow value-free and apolitical? You may prefer liberalism to radicalism, but then just say so. But whatever you think, its heyday is long over here (and soon in Europe).

(3) As to the excesses of radical criminology, I've written about this topic (in Oppenheimer et al., Radical Sociologists and the Movement), and there's much to be said about what we did wrong. But your preachy one-sided comments don't help our understanding. Radical criminology at Berkeley was part of and responded to a much larger left movement that exposed the injustices of criminal justice, took on the inadequacies and cowardice of liberalism, created debates about the ideology of criminology, humanized the incarcerated population, and educated millions about the ties between imperialism, militarism, racism, and criminal justice. In the 1970s there was at least a national debate about crime and justice, and for a short while liberalism was pushed left by radical movements.

(4) The rise of the Right and neo-liberalism (beginning with Nixon) has nothing to do with what radical criminology did or did not do. It represents a significant shift in regimes of power, and a rise of new political forms to deal with the deepening contradictions of capitalism. As you and others going back to Stuart Hall have noted, governing through law and order is not so much about crime as about a crisis in political authority (and the demise of social democratic liberalism).

(5) My debate with Skolnick is partly personal (because he and colleagues benefited from the demise of the School of Criminology; and because of his disrespectful treatment of our colleague Paul Takagi), but it's primarily political. He thinks the country is moving in a good direction; I don't. He believes that academics have to choose between a professional career and progressive activism; I don't.

Tony Platt

Radical v. Liberal Criminology: An Afterthought

One of the most interesting moments at this year's American Society of Criminology meetings in San Francisco was the "reunion" of Tony Platt and Jerry Skolnick during a session on the republishing, with a new forward and preface, of the book The Politics of Protest: Task Force on Violent Aspects of Protest and Confrontation of the National Commission on the Causes and Prevention of Violence, which was originally published in September 1969. Skolnick, Professor Emeritus at UC Berkeley (and now co-director of the Center for Crime and Justice at NYU Law) was on the Berkeley Criminology School faculty, and already famous for his book, Justice Without Trial (1966, 1994) when he was appointed director of the task force on protest of President Johnson's violence commission. Skolnick hired one of his junior colleagues, Anthony Platt, and a graduate student, Elliott Currie to be his main research assistants and to help with the writing and editing of the report/book; both have become major criminologists as well. Anthony Platt, then an Assistant Professor Criminology at Berkeley, had already written the first edition of The Child Savers, a renowned study of the class origins and purposes of juvenile justice in the early 20th century, that has also recently been republished. Platt was denied tenure, in large part because of his protest activities, and left Berkeley after the Criminology School was eliminated in 1976 to be a Professor of Social Work at California State University, Sacramento until his retirement a few years ago, where he published many other books as well as editing the journal Crime and Social Justice for many years. Elliott Currie, Professor at UC Irvine's Criminology, Law & Society department, is the author of the classic, Confronting Crime: An American Challenge, as well as many other books.

Given a chance to hear three such renowned criminologists reflect on an ultimately doomed effort to steer America's response to violence toward completing the institutional reforms begun by the Civil Rights movement and the War on Poverty, it was not surprising that the room was packed. It was perhaps inevitable that most of the attention was on the death of the Berkeley Criminology School. Platt bluntly blamed Skolnick and other liberals on the faculty, for "selling out" the School and its junior faculty, much of which, especially Platt, were openly engaged in the protest politics of Berkeley in those years. Skolnick suggested that the closure (and Platt's denial of tenure) were decisions taken at the top of the University which neither he, nor other faculty, could do anything to stop. Currie, who has remained very friendly with the other two, kept himself to chairing the session.

I'll leave to another time a discussion of the actual history. What disappointed me about the session (which was mainly focused on what John Dombrink aptly analogized to the hurt feelings of children to a divorce) was the missed opportunity, buried in Platt's opening remarks, to reflect on how both liberal and radical criminology were "failures" that had failed to stop the coming of mass incarceration and all the other destructive features of what David Garland has called our Culture of Control. I would love to have heard each of these thinkers on why despite the considerable intellectual and even political resources, progressives could not effectively prevent the policy discussion of violence in America from becoming dominated by thinkers like James Q. Wilson, and his reduction of the problem of violence to crime prevention in his epic and influential Thinking About Crime (1975).

By the time The Politics of Protest was published, Richard Nixon had already been elected on a "Law and Order" platform, and a growing coalition of law enforcement groups and politicians were beginning to coalesce around a politics of capital punishment and mass incarceration in state politics around the country. Still, it would take a decade for the logics of governing through crime to become hegemonic in America, and much of the progressive critique of criminal justice as racist and arbitrary remained salient to many Americans. Overall I suspect that nothing merely criminological could have stopped this trend. Even if Skolnick and Platt had stayed on the same side, and continued to work together along with Currie, perhaps no book from the left could have prevailed over Wilson at the time given the social and political roots of governing through crime.

I've always viewed this history and its conflicts with fascination. I was too young to protest in the 1960s (although my parents introduced me to the civil rights and anti-war movements through their participation). I made my way to Berkeley for college in large part drawn by the legacy of protest there, arriving the year after the Criminology School closed. Drawn by the coming catastrophe of mass incarceration, I did graduate work at the Jurisprudence and Social Policy program at Berkeley, (the program that took some extent replaced the Criminology School) where I studied with Skolnick, as well as Shelly Messinger and Caleb Foote (to other prime "liberals" from the Criminology School). Given my own propensity to protest, which earned me three visits to Santa Rita County jail while a student, I've always sympathized with the plight of the untenured radical faculty. The fact that Platt was denied tenure despite proven excellence as a teacher and scholar, and only because of his political participation, is a permanent stain on Berkeley's academic record.

From my perspective now, however, after the war on crime, liberal criminology has remained a more robust and enduring position while radical criminology, especially the highly ideological sort advocated by the Berkeley Criminology school radicals, has, for the most part, proven to be a rhetorical disaster (and would have been a policy disaster had it been implemented). Celebrating convict revolutionaries and denouncing the criminal justice system as it then existed in states like California at the time (far smaller and much more benign than today) as a hopelessly racist and fascist apparatus aimed at preventing popular revolution, had no chance of appealing to ordinary Americans witnessing a genuine wave of both state and private violence, let alone convincing them to support necessary anti-racist reforms. More importantly, it left progressive criminologists with few tools and little credibility to respond to the massive growth of incarceration and the hyper policing of minority urban neighborhoods that would follow in the decades of the 1980s and 1990s. Berkeley's racial criminology, in short, turned out to be the "boy who cried wolf."

In contrast, the best of liberal criminology, including Justice Without Trial, recognized the potential of "law" in "law enforcement" to resist the excesses of populist punitiveness and ultimately to rebuild support for insisting that law enforcement serve a "democratic" society and not the other way around. It is telling, in this regard, that when Elliott Currie wrote the first really effective response to the Wilsonite orthodoxy in his 1988, Confronting Crime, he began to rehabilitate the policy premises of liberal criminology while abandoning most of the rhetoric of radicalism.

Today as the war on crime grinds on despite little public rationale for its existence (and mostly inertia to change keeping it in place), it is imperative that we focus on how to reconstruct American society and politics after the tremendous destruction of mass incarceration and governing through crime. That is a struggle which I believe the ideological warfare of 1968-1976 has practically no relevance for, and in which liberals, radicals, and conservatives can find common ground.

Punishment, States, and the Governance of Crime: Looking for the future of mass incarceration in the sunbelt

A session yesterday at the American Society of Criminology meetings in San Francisco on "Punishment, States and the Governance of Crime" offered exceptional insights into the changes in state government and politics that facilitated the rise of mass incarceration in California, Texas and Florida. Joshua Page chaired and presented a paper on "Interest Groups and Contemporary Criminal Punishment" and extension of his great research on mass incarceration and correctional workers in California soon to be out as The Toughest Beat:Politics, Punishment, and the Prison Officers Union in California. Michael Campbell presented "Prosecutors, Politics, and Reconstruction of the Penal Order in Texas," a piece of a dissertation that compares California and Texas. Phil Goodman presented "California's Prison Fire Camps and the Changing Nature of Punishment," a piece of his dissertation on a very little studied aspect of California's massive penal estate, and one full of clues as to how to reintegrate prisons with the rest of the state they now occupy much like tumors occupy a body. Heather Schoenfeld, presented, "Race, Institutions and Punishment in the Sunshine State," a piece of her research on the formation of mass incarceration in Florida. Mona Lynch, presented "From the Local to the Global: The Multiple Levels of Influence in the rise (and fall?) of Mass Incarceration," a paper in which she reflects on the multiple levels of institutions that have shaped mass incarceration in the separate states, including Arizona, the subject of her Sunbelt Justice: Arizona and the Transformation of American Punishment.

The panel represents a good sample of the new state focused scholarship on mass incarceration. This research is confirming some of what we thought about the causes of mass incarceration, especially the role of prosecutors as key political actors. As Campbell notes they are a permanent institutional lobby for punishment in the legislature capable of besting the periodic emergence of opponents of excessive punishment (which exist even in Texas). But it is highlighting roles that were missed before, especially the crucial role litigation over prison conditions played in moving prisons to the top of the legislative agenda at the take off phase of mass incarceration in the early 1980s (a finding shown by Schoenfeld for Florida, by Campbell for Texas, and by Lynch for Arizona). Overall, mass incarceration (perhaps like cancer) is not one single "disease" but a family of related but distinctive maladies.

These particular studies also powerful suggest a sunbelt tilt to mass incarceration. Lynch in particular argues that the sunbelt gave us the model of warehouse incarceration at the heart of mass incarceration. It appears that early emphasis by scholars on the epistemological crises of rehabilitative penology in the 1970s may have been far less important in sun belt states that never had much commitment to rehabilitation (like Arizona), and which organized punishment along highly racialized lines decades earlier (like Florida and Texas). All this suggests that a winning strategy to dismantle mass incarceration has to play in the sun-belt and the solutions touted in states like New York, may not easily apply.

One "promising" development is the Great Recession we are experiencing which emerged from the over-leveraged real estate industry that has long shaped politics in these very sunbelt states and has now left them with severe fiscal and possibly more broadly social crises (as foreclosures erode whole communities). As these states grapple with massive economic insecurities and contracting revenues the logic of mass incarceration may begin to emerge as a subject for debate in states that are culturally predisposed against big government

The Horror

Certain crimes cut through the sensibilities of even a culture besotted with media images of crime. As Durkheim reminded us, the horror these crimes invoke tell us what our central values are. The 2007 attack upon the suburban Connecticut home of Dr. William Petit, which included rapes, kidnappings, arson, and ultimately murder was spectacular example. The articulation of this horror and its revealing features has factored heavily in the just completed jury trial and capital murder of sentencing hearing of the first of two defendants in the case, Steven J. Hayes.
As described by William Glaberson's reporting in the NYTimes

The details were stark: two habitual criminals invaded the quiet suburban home of a doctor and his family after spotting them in a shopping center parking lot the day before. In a night and morning of unimaginable terrors, they beat and tied up the doctor, forced the mother to withdraw $15,000 from a bank, before sexually abusing her and her younger daughter, then strangling the mother and setting a blaze that killed her two daughters and blackened the home.The killings brought a searching review of criminal justice and corrections practices in the state and, particularly during the recent election, came to be the prism through which the state viewed a debate about the future of the death penalty.

While the violence and the vulnerability of the victims can fully explain the outrage that many persons around the country and in Connecticut where the jury appeared to have wrestled with strong reservations about sentencing Hayes to death, several features make this incident horrifying beyond its violence.

The crime took place inside the sanctity of the home. As others have pointed out, the home, especially the privately owned, suburban home, has become the essence of the American dream (one that explains are tolerance for dangerously overextended real estate markets). The fact that the violence came upon the victims inside the home makes it a greater crime than if it happened on the street or in a public place. A killing is a shocking lapse of security. A lethal attack by strangers invading the sanctity of the home is an attack on the very possibility of security. Such crimes, including the 1959 Oklahoma farm house murders described in Truman Capote's In Cold Blood, and the Manson family's Tate-Labianca murders in two posh Los Angeles area homes in 1969, have an enduring fascination that can rivet attention on crime even in periods, like today, when overall crime appears more moderate than in recent years.

The two men charged with the crime were strangers with known criminal paths. The vast majority of people (including children) killed in their own home, are killed by someone they knew, often another occupant of the house (typically father or husband), but those killings are almost never the subject of enduring fear. It is the stranger invading the home to commit violence that invokes it.

The father was rendered helpless before the crime began. Victims who are killed by their own father, or who do not have a father (or husband) to protect them seem less violated than ones whose protection has been strategically eliminated by the home invaders. The criminal father is far less frightening than the stranger who overthrows the father and usurps his place with the intent to criminal violate what the father is supposed to be protecting.

When these strangers are men with a known criminal past, who have been in prison already, something true of the Oklahoma and Los Angeles murders as well as of the two defendants in the Petit murders, there is the added outrage that the state has betrayed its protection of the families by failing to keep the criminal locked up in prison (the polar opposite of the family home in its sense of security and the comfort of its residents, and the State's very own "Big House"). It is for this reason that these crimes almost always have an influence on state penal policies far beyond their relevance to overall crime.

Obama and Fear

President Obama's remarks about fear and American voter perceptions are once again raising the charge that Obama is an elitist who views the anger felt by American voters in this year's midterm election as pathological. According to Peter Baker's reporting in The New York Times the President said:

“Part of the reason that our politics seems so tough right now, and facts and science and argument does not seem to be winning the day all the time, is because we’re hard-wired not to always think clearly when we’re scared,” he told a roomful of doctors who chipped in at least $15,200 each to Democratic coffers. “And the country is scared, and they have good reason to be.”

Besides the impolitic quality of the remark what is most telling is the President's assumption that facts and science normally carry the day. I have no doubt that the President was born in the US but times like this make one wonder whether he was living here during the last twenty years. More importantly, where is the effort to speak to the fear (rather than about it). Fear comes with historical context. Today's Americans are responding to a Great Depression level financial crisis through the metaphors and meanings shaped by decades of wars on crime, in which the basic economic security of middle class Americans was taken as given, and their protection from the misconduct of deviant others around them, was taken as the primary field for governance.

That context has done a lot to train Americans to focus on questions like, who is the criminal and how harsh is the punishment. In that kind of world, bailouts of misbehaving banks are inherently subversive, and immoral; and solutions that spend money on "stimulating" the economy are expensive, pointless and perhaps damaging. It is because of this orientation that after a devastating financial crisis caused by lack of regulation and increasing concentration of economic wealth, business executives can run for office all over the country on the theme of reducing regulation and taxes on the rich.

There may have been a way to govern this crisis through crime. Investigations and trials of major Wall Street executives would have followed and perhaps a government take over of the worst actors. Obama might have tried to have BP's chief executive during the Gulf crisis arrested and seized the companies US assets in symbolic "raids"before television cameras. All of that might have worked to give him the legitimacy he needs to re-regulate the financial markets and drive new economic investment. Of course unlike the usual suspects of governing through crime, Wall Street executives are not without influence, lawyers, and media control. Given how much they have whined about President Obama's rather modest actions, we must assume that their response to that kind of demonization campaign would have been massive (and perhaps lethal).

In any event, the time for that kind of strategy is probably passed. Instead the President has no choice but to take on the way Americans think about fear directly; not by whining about how irrational they are, but by providing a different framework for evaluating our fears. In January the President will have a chance to deliver his state of union speech to a national audience in a chamber where the noise of a much larger and probably triumphant Republican caucus will be loud. He needs to put aside the usual laundry list of legislative priorities and talk about fear. Those fears that Americans can no longer afford to indulge in like fears of the criminality of immigrants; and those fears, like global warming, that we can no longer afford to ignore. The President should challenge the leaders of Congress to come to two televised White House conferences, one on immigration and one on climate change. Let each side nominate experts to be heard from, but insist that the leadership sit down with him in front of cameras to talk about what the facts show about these two burning issues and explain to the American people what they intend to do about them.

Two Paths from Fear: Punish or Build

The narrative choices faced by the Obama Administration in confronting the Great Recession were nicely outlined yesterday in the editorial pages of the New York Times. Columnist Frank Rich offered a blistering critique of the Administration for ceding populist outrage to the right by failing to go after Wall Street executives responsible for the financial crash with investigations and stiff punishments, going so far as to say that "the Obama administration seems not to have a prosecutorial gene" (read his column). Having chosen to focus on the future rather than the past, Obama has left the Tea Party to reap the passions of an outraged American public.

Rich's editorial colleague Tom Friedman voices a different kind of disappointment. Obama's focus on the future, and his talk of investing in rebuilding America, has turned out to be just talk. The billions spent on stimulus turned out to include only tinkering on the edges of a massive need for reinvestment.

In the past two weeks, I’ve taken the Amtrak Acela to the Philadelphia and New York stations. In both places there were signs on the train platforms boasting that new construction work there was being paid for by “the American Recovery and Reinvestment Act of 2009,” that is, the $787 billion stimulus. And what was that work? New “lighting” — so now you can see even better just how disgustingly decayed, undersized and outdated are the rail platforms and infrastructure in two of our biggest cities.

(read Friedman's column)

The critiques suggest an Obama Presidency caught in between its reluctance to embrace the old politics of governing through crime, and its inability to launch a new politics of infrastructure. After his health care defeat in 1994, Bill Clinton made himself into the Prosecutor-in-Chief, supporting harsh and punitive laws on crime, immigration, and welfare. Clinton was relected, but he accomplished little of importance for the nation. Since the 2008 campaign I have been impressed with Obama's commitment to avoiding a politics based on demonizing. He could have framed Wall Street leaders as felons and sought to build legitimacy by sending as many of them to prison as possible and he might be more popular now if he had. It may be that he was simply too cosy with Wall Street (which did send him a lot of campaign support in 2008) but I prefer to believe Obama rejects a politics that converts fear into anger by demonizing an enemy and than seeking to punish it. Everything about President Obama's style as a speaker and a leader, cuts against his effectiveness as a prosecutorial President. The bigger question is why Obama did not try to lead the kind of infrastructure rebuilding politics he promised during the campaign.

Ironically, both the politics of punishment and the politics of building draw on fear which is the essential source of energy in liberal governance. Think of the way FDR drew on fear of the Great Depression and fear of European fascism to create the New Deal and US involvement in the World War II. Obama has not lacked for similar threats against which to mobilize America. Both the financial crisis and last summer's Gulf oil spill provided powerful examples of the threat posed by decades of underinvestment in infrastructure and under-regulation of corporate greed. Without demonizing either Wall Street or oil companies, Obama could have used the Oval office to make a sustained campaign for rebuilding American infrastructure and regulatory capacity.

It is not too late for both. A stronger Republican hold on congress will make new legislation impossible, but it will frame a stark choice between a government that actively seeks to protect ordinary Americans and one that leaves them to their fates. The Republican effort to repeal the health care reform and the privatize social security will pose this choice starkly come January. Stay tuned...

British Government to Cut Prisons/Prisoners

The British are debating whether Chancellor George Osborne's massive spending cuts are a wise or reckless approach to cutting the Britain's record budget deficit (currently estimated at 8 percent of GDP). One of the most remarkable aspects of the cuts from an American perspective, is that they include serious efforts to reduce the size and costs of the British prison population through sentencing reforms. While the previous Labour government had planned to expand the prison capacity (which had already grown massively during Labour's 13 years in power) from 85,000 to 96,000, the Conservative-Liberal Democratic coalition plans to cut back, reducing nearly 6,000 jobs from prisons and probation and actually closing prisons. (read Alan Travis analysis of criminal justice cuts in the Guardian).

Because most prisoners are held at the state level in the US, deficit based prison reductions are a lot less visible, and the national government can generally avoid taking a stand on the need to reduce prison populations. It is hard to imagine the deficit obsessed Tea Party calling for a national commitment to use prison less. Indeed, with the current politics dominated by anger and fear, there is little chance that either party will lead Americans in the kind of broad civic debate about the risks facing the nation and the difficult trade offs necessary to navigate them that all the major parties are engaging in here.

How did crime become the sleeper issue of the 2010 midterms?

Few were looking for 2010 to be a big "crime"election, in the manner of '88 (Dukakis and the Willie Horton), '92 (Clinton committed to outshining Bush on capital punishment by carrying out an execution during the primaries), '94 (massive crime bill and 3-Strikes in California) and '96 (Clinton as the 100K policemen on the street President). Unlike then, crime is at lows not seen since before the great crime wave of the 1960s began (although precise comparisons are impossible due to the poor quality of crime data from that era). Moreover, while the nation went through a recession in the late 1980s and early 1990s, it was not nearly as severe as the Great Recession which has left the US economy weaker then in decades. But while crime is not framing the national dispute between the parties in this midterm Congressional election, it is emerging in a wide variety of state and local races, from Baltimore, to California, to Connecticut.

In some instance, local crimes of great notoriety of galvanized interest, as in Connecticut, where the capital murder conviction of the first of two career criminals who raped and murdered the wife and daughters of a doctor in their family home and the impending sentencing phase have thrust the death penalty into local, state, and federal elections (read William Glaberson's reporting in the NYTimes). In others, like California, the opportunity of a veteran's candidate association with a death penalty controversies of the 1980s, for his opponent to attack him as soft on crime. All despite the fact that nationally the death penalty is declining in public support.

But while local factors may the emergence of crime issues, their success attests to the staying power of crime and punishment as organizing issues in political competition in the US. As with the false stories about violent crime in New Orleans after hurricane Katrina, the media and politicians reveal the degree to which crime is a comfort zone compared to having to confront the American people with the catastrophic risks that face them. In this case the bankruptcy of American governance and the real prospect that the end of the American middle class consumer economy is over. For decades declining real income has meant that middle class lifestyles have been based on more part-time employment and more debt. That appears to be over but neither the Democrats and President Obama, nor the Republicans and their Tea Party is willing to confront Americans with the news. In such a climate crime is a welcome respite in which politicians can posture as committed to protecting ordinary Americans in their homes (which are being foreclosed away) and the media can re-run narratives that require little actual investigation or thinking.

The contrast could not be more striking in the UK where I am currently writing from. Here the leadership of all the major parties has agreed that the nation is facing a fundamental challenge to its economic and political normal that will require hard choices about priorities and new sacrifices from all sectors of society. While the Conservative-Liberal Democrat coalition in government have prioritized cutting the deficit with real and painful cuts and tax increases, the new Labour leader insists on the priority of generating new economic growth to overcome the continuing effects of the Great Recession. Both are in agreement that increased taxes and spending reductions are essential and that producing a green economy through government regulation is a necessary path to a sustainable middle class economy in the future. Tellingly one area of spending reduction that all three major parties support is reducing prison populations that ballooned in the 1990s and 2000s (although not as dramatically as ours did).

In contrast, neither President Obama, nor the Republican leaders have been willing to tell the American voter that the economic "solutions" of the 1980s and 1990s were largely based on consumer debt that is unsustainable and that prosperity is not coming back without strategies that will require serious risks and sacrifices. As a result our election is turning into a rerun of 1994.

Jerry Brown for Governor of California

Nobody should vote on a single issue, but as you might guess, there is one issue on which my vote can move decisively. I tend to vote against candidates that play the crime card by calling their opponent "soft on crime." For forty years now that has been the move for candidates in both parties to appeal right to voters fear factors in way that few other issues (race in fact) do. Even more importantly, self identification as "tough on crime," is as sure a proxy as there can be of the candidate's commitment to the "war on crime" and "mass incarceration."

With Democrat Jerry Brown and Republican Meg Whitman, in a close contest for governor of California, I have been undecided whether this blog would take a position. As I noted last Spring, Brown was governor before the war on crime took over California and made our prisons the leading institution in the state. His Determinate Sentence Law had flaws, but it did not produce mass incarceration, a policy that began under Republican governors George Deukmeijian and Pete Wilson, and continued under Democrat Gray Davis. Meg Whitman, having switched from business to politics only recently, had no track record of having to get behind the war on crime and its powerful interest groups. Since either will face a period of tight budgets in which the real costs of mass incarceration are likely to exclude other priorities of spending or tax cutting, both have every reason to speak honestly with voters now about the need to put the war on crime behind us and begin to address the new threats to California from natural disaster, drought, and economic decline.

In last night's final debate, however, Meg Whitman unambiguously played the crime card. The context was Jerry Brown asserting losing the endorsement of the police unions was evidence that he could be tough in his negotiations with public unions over pensions. Here is the exchange according to Kathleen Decker reporting in the LATimes.

"You got the endorsement of that union, I didn't, because they said I'd be too tough on unions and public employee pensions, and I'll take that," Brown said.

"I got that endorsement because that union knows that I will be tough on crime," Whitman replied. "And Jerry Brown has a 40-year record of being soft on crime."

When you don't have a narrative, run on crime

As the US heads toward its mid-term congressional elections next month there is not much evidence of national anxiety about crime, or even, despite recent government announcements about undefined threats to Europe, about its close cousin terrorism. With the nation still struggling through the worst employment market in decades and crime rates still quite low but modern standards, it is perhaps not surprising that neither party is making much noise about capital punishment, tough prison sentences, or new sex offender legislation.

Yet a closer look at the Democratic campaign, especially President Obama's recent forays into college campuses and unionized labor strongholds in an effort to excite his base, shows that the metaphors of crime continue to do much of the work of narrative. Case in point this week were the President's sustained attacks on the secret money being channeled into Republican campaigns almost certainly coming from large corporations hostile to his administration's recent regulatory efforts on Wall Street and beyond. The donors for those ads are now allowed to spend unlimited amounts of money on the campaign without any requirement of disclosure thanks to the Supreme Court decision last year striking down provisions of the McCain-Feingold campaign finance law.

Watch the crime metaphors at work in the latest national Democratic party television advertisement, as reported by Peter Baker in the NYtimes [link not available yet].

The commercial calls Mr. Rove and Mr. Gillespie “Bush cronies” and says the chamber “shills for big business,” then shows a woman having her purse stolen by a mugger in a parking garage. “They’re stealing our democracy, spending millions from secret donors to elect Republicans to do their bidding in Congress,” the narrator intones. “It appears they’ve even taken secret foreign money to influence our elections.”

If the Republicans had put up an add implying that stimulus spending to fight the recession was "stealing our democracy"and showing muggers (they would not even have to be African American) attacking a vulnerable woman in a park or parking garage, critics would have no problem seeing the crime metaphor as outweighing the headline policy issue- campaign finance- in its power to motivate voters. Race, of course, would be at work in such an anti-Obama advertisement; but it does not have to be, as here, rich and especially foreign criminals have just as much power in the American political imaginary as young African American males to scare citizens into wanting action. Of course they are a lot less available for being rounded up by the police, so you do not see many of them in prison (but when they show up, they serve long times, just ask Manuel Noreiga or Jonathan Pollard).

The point of such an ad is to motivate the voter with a blast of anger, disgust, and fear, that runs against the President's enemies, and roughly in the direction of his policy goals. But as decades of crime based politics has already demonstrated, this kind of blast is remarkably unproductive in terms of governing. No doubt its purpose is to minimize what are almost certain to be big Democratic losses and thus retain the voting power in Congress necessary for President Obama to have any hope of moving a legislative agenda. Perhaps such a desperate move is all that remains this late into the campaign. But it did not have to be this way. President Obama and the Democrats in Congress this session, launched a new wave of regulatory law making as big as anything since the 1960s or the 1930s. The present economic crisis has brought out the need for innovative and determined regulation in a way not seen for decades. Americans got it (largely because Obama chose not to run primarily on fear and anger against the Republicans), and in 2008 gave the Democrats a real mandate to get started. In the face of a disciplined (one might have to say Leninist) opposition, they enacted major if flawed pieces of legislation to regulate the insurance industry, the financial industry, and got at least a start on energy laws that would regulate the oil industry. A reading of any history of the New Deal will demonstrate its first 2 years were just as flawed (and with much bigger, albeit racist Democratic majorities in Congress).

But the flaws were inevitable given our corrupt political campaign system, what is damning is the absence of a sustained effort to provide a positive narrative about these regulatory efforts that could have gone with a campaign to give us the Congress capable of completing the job. As Paul Krugman, Robert Reich, and many other liberal columnists and bloggers have repeatedly pointed out the President decided not to mount a major White House base campaign to support the idea of regulation after decades of the public being told by both parties that it was ineffective and inefficient, leading to perverse consequences and job losses. Not that the President has lacked moments and sound bytes, but no sustained campaign. Where was the Oval office speech on why a new generation of regulation, and getting that regulation right, was absolutely vital to creating good sustainable jobs for Americans?

The absence of that counter-narrative to the prevailing one laid down in the 1970s by both conservative Democrats like Jimmy Carter (yes, on economic policy) and Republicans like Ronald Reagan, meant that the legislation passed is now a weight around the necks of Democrats rather than momentum they could run on. The political losses for the President's program that we are likely to see on November 2 were forecast far earlier this summer when the nightmarish Gulf oil spill sunk Obama rather than unregulated global capitalism. The oil spill should have been a three month infomercial on the dangers of unregulated global capitalism, instead it was taken as an example of how government always fails.

In the absence of that narrative Obama's program is now a problem for his candidates, leaving corporate champions of unregulated capitalism, like Meg Whitman and Carly Fiorina, to be within reach of beating solid Democrats like Barbara Boxer and Jerry Brown in liberal California. We know the President can speak to Americans of every education level about these kinds of deep structural issues. It will not be heard at this point in noisy and mostly loathsome campaign. I'm hoping for some version of it as a Hannukah (or early Christmas) present.

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

On The President's Carpet: Fear itself

Four quotations from great Presidents, two (possibly three) of them, "martyred" in office, and one martyred civil rights leader who in a slightly different universe might have ended up a President, adorn the new carpet in the oval office (at least three of the quotes also appeared in his November 8, 2008 victory speech in Chicago). Bipartisan? Sure, but more importantly, great quotes all. I would take any one of them; and in the right spirit, anyone half clever in either the liberal or conservative camp could riff on them all to state their greatest convictions. According to Sheryl Stolberg blogging at the NYTimes the five quotes are:

"The Only Thing We Have to Fear Is Fear Itself” – President Franklin D. Roosevelt

“The Arc of the Moral Universe Is Long, But It Bends Towards Justice” – Martin Luther King Jr.

“Government of the People, By the People, For the People” – President Abraham Lincoln

“No Problem of Human Destiny Is Beyond Human Beings” – President John F. Kennedy

“The Welfare of Each of Us Is Dependent Fundamentally Upon the Welfare of All of Us” – President Theodore Roosevelt

I'll take my own guess that President Obama spends a lot of time over the next few months looking at the FDR fear quote. Fear is on the land, and all of us feel it. Problems are deep, no doubt, but never as deep as the metaphors they live by, and this is a 1933 year where the President and his speeches are carrying the weight of our historic imagination of what Roosevelt accomplished beginning with that epic first inauguration speech in the stomach clenching drop days of the Great Depression (both those who fear what Obama is trying to accomplish and those who fear he's not doing enough to accomplish it). In that speech, FDR not only addressed that fear in a positive and a programmatic sense, he named it and defined fear as part of the problem. But when he reads that quote, which has a lot to say to today's problems, I hope the President is reading it through two other "fear years," 1941, and 1968.

In his 1941 State of the Union, FDR came back to fear in another epic speech, when stated his famed four freedoms, one of them being "freedom from fear." In a speech premised on making Congress and the nation feel real fear at the prospect of what a rapid fascist victory in Europe would do the world, Roosevelt spelled out a freedom from fear as part what preventing that victory could mean. Against him was the very real and recent history of the oversold war and misguided peace of the first world war which compounded the fear for many who feared government as much as anything else. FDR was claiming new powers to govern through fear, but he was also making freedom from fear part of the meaning of victory; a standard his administration could be evaluated by and a way to balance the increased power of government with new rights for citizens in the US (and implicitly the world).

I hope his eye next moves to the 1965 quote of the Reverend Dr. Martin Luther King and then skips ahead three years to 1968. That was a fear year too. Raging war in Vietnam, violent repression of domestic protesters by racist police forces and rising homicide rates haunted a country in a panic. The economy was still very healthy by contemporary standards, but many of its long term problems, especially the underfunding of government entitlement and policies, were well under way. King's words in 1965 seem to anticipate the tragedy that would befall him personally and the nation in 1968. The dangers were quite real on his march from Selma that day in 1965, but the prospects of both the civil rights cause and the Johnson Administration's related "Great Society," seemed promising that year (much as Obama's did after his election). Less than three years later both Johnson's and King's projects would be in ruins. Johnson withdrew from the Presidential race, and King was murdered. Their common cause of linking racial discrimination and persistent poverty in both the North and South was on its way to being crushed by a politics of fear that neither of them succeeded in heading off.

History has vindicated both of them for the real and permanent gains they accomplished for American society, but the fear that defeated them still remains. Crime rates are at historic lows in most of the country, but many Americans, independent voters in swing states especially, continue to understand the real fears of 2010 through the crime and race tinted lenses of 1968 (consider the ongoing moral panics about immigrants and crime in both Arizona and California). That year a politics of fear won, with Richard Nixon's "law and order" campaign, that created no source of limitation or accountability of the sort FDR offered for his economic and political wars on Depression and later fascism. While the political primacy of violent crime has waxed and waned in Presidential politics ever since 1968 (it almost never goes away at the state level), the metaphors of the war on crime,--- the abandoned victim, the overwhelmed police officer, the leaky prisons, ---- continue to shape how citizens imagine the political. Despite four decades of laws that have made crime victims and police into sacred cows (as the phony "ground zero" controversy and last summers "beer summit" demonstrate), and made our prisons into high security human warehouses, no one feels any safer.

Nixon may have been the winner that year, but what he found out, and what every chief executive of both parties since has had to live with, and seen their presidencies damaged (if not destroyed) by, is that this "no limits" power of fear makes the nation less and less possible to govern. Its a sometimes great election politics, but its a lousy governing politics. Instead of preparing the public for significant challenges in rebuilding failed institutions, the politics of fear creates a constant cycle of demands for emotions and circuses, most of them premised on crime or crime like immorality; in which bad guys are defined and demonized, investigations pursued, heavy punishments threatened and sometimes delivered. It was a fear based politics of crime that swept Nixon himself away, and almost brought down Reagan and Clinton for violating federal laws. Its the same fear based citizenship that has produced a constant and unmeetable demand for Obama to show emotions like anger in responding to economic and environmental crisis, and to deliver harsh judgments and punishments to wrongdoers, and at the same time is constantly ready to accuse the President himself of being a friend or ally of terrorists.

The President at this point can decide to try to produce the kind of political rhetoric that might neutralize by embracing this crime based fear discourse. Bill Clinton chose that path with his harsh crime laws, V-Chip and school uniform proposals; and with the help of Newt Gingrich's errors he saved his presidency, --- kind of ---, but he accomplished nothing that he would want to share with King and Johnson if he should ever run into them in the next life. I don't personally think President Obama would be particularly good at this approach, even if he was craven enough to embrace it.

The other path is to make a new commitment to freedom as FDR did in 1941, but from fear of the kind that stalks us in 2010: economic disasters, infrastructure failures, terrorism and global human rights disasters (like Pakistan, Palestine and Kashmir) and our dependence on fossil fuels. In the face of those on the right that accuse him of subverting freedom in exactly the same ways that FDR's enemies attacked him, President Obama needs to explain exactly what freedoms his policies will create for Americans, beginning with freedom from fear.

President Obama got a start in his Xavier University speech in New Orleans when he began to talk about what it would take to make American cities resilient enough to respond effectively to something like Hurricane Katrina. He could have said more about the failures revealed that day (and since) at all levels of government, especially the federal governments failed levee system. He might also have said something about the failure of Louisiana's policies of mass incarceration which have produced one of the highest incarceration rates on the planet but could not make its citizens safe.

As the administration tries to re-narrate their legislative accomplishments thus far in the short window before the mid-term election, the President needs to point to how his medical reforms and Wall street reforms form a part of a more comprehensive strategy to make Americans safer in their homes from all of these threats, and what he still needs Congress to do to achieve that. But the positive story will not cut through the toxic atmosphere (look how little coverage his Katrina speech got) if he does not address the fear issue directly. With the capacity to plumb complex and toxic features of our culture, as he showed as a candidate in his Philadelphia speech on race, President Obama needs to speak directly to Americans about the real costs of painting the threats of 2010 in the race baiting and crime fear centered mentalities of 1968, as is so clearly being done about immigrants, about Muslim Americans, and about him. Like war in Iraq, Obama may not ever be able to declare an end to the war on crime, but he can and must declare an end to its metaphors.