Lone Star Justice

Today's NYTimes carries an obituary for Randall Dale Adams, who died last year of a brain tumor, with only local media taking note. Adams was the unintended star of Errol Morris' epic documentary on Texas justice, The Thin Blue Line (1988). Texas has no dearth of serious miscarriages of justice, including the execution of Cameron Todd Willingham, a very likely innocent man. But no miscarriage was ever better covered than Adam's wrongful conviction and death sentence for the murder of a Dallas police officer. Adam's came within three days of execution before the Supreme Court stepped in to review the case based on errors by the trial judge in dismissing jurors who expressed misgivings about capital punishment, but a willingness to follow the law. Perhaps realizing they had the wrong man, the governor quickly commuted Adam's sentence to life in prison, rather than allow further litigation. Adam's may well have spent the rest of his ultimately short life in the Texas Department of Corrections but for Morris' documentary. Morris went to Texas to do a documentary on the infamous Dr. Grigson (better known as Dr. Death), a forensic psychiatric "expert" who routinely testified for the prosecution in Texas capital cases (where future dangerousness is a required finding for death sentences) that defendant was dangerous, usually without bothering to even interview the subjects. But Morris became fascinated with Adam's case (he was one of Grigson's victims) and decided to focus the documentary on him.

The Thin Blue Line is perhaps the best movie ever made about contemporary criminal justice and should be watched by anyone interested in law enforcement and especially anyone who still supports the death penalty. It was a primer in why states cannot be trusted to wield the power to execute persons (or perhaps even the power to imprison them for life). When a police officer is murdered there is a consensus among law enforcement officials that someone must pay, preferably with their life, no matter what it takes, even if its the wrong man. The title comes from the frequent metaphor for the way police protect society, which was repeated by the trial judge in an interview with Morris, expressing why he felt so strongly that the officer's death must be avenged. The police and prosecutors in Dallas actually had a suspect that was almost certainly the right man, unfortunately (for the prosecutors), David Harris was 16, too young to receive a death penalty in Texas. But when Harris blamed the shooting (which was done with a gun that belonged to Harris' father) on Randall Dale Adams, who Harris had picked up hitch-hiking and then spent the day before the murder smoking pot and drinking beer with, Texas law enforcement knew they had their man. Adams was a perfect suspect, he was newcomer to the state, with no local friends or supporters, and no resources to pay for an adequate defense (he actually ended up with an excellent lawyer but there was little she could do to overcome the prosecution's cooked evidence). Despite the absence of a criminal record or a motive (which Harris had plenty of), Texas decided he was executable and pinned the murder on him.

The prosecution case was a textbook example of how to wrongfully convict a man. The police hid evidence that pointed to Harris and provided incentives for witnesses to come forward to identify Adams (the prosecutors after all, have a "get out of jail free" card to give anyone they want help from). Not only was Adam's almost executed, and deprived of years of freedom (and probably his health), but David Harris, a young man on an escalating curve of crime, went on to kill another man, and for that crime was himself eventually executed. Thus two unnecessary deaths were caused by the prosecutors in Dallas. In a just society, some of them would have spent years behind bars for their crimes, but none of them was ever even disciplined (nor ever apologized) and Adams was never compensated.

Now you know why I like to say, go ahead, Mess with Texas! a state that never looks back and still executes more than almost the rest of the states in the union combined. If Governor Rick Perry, the man who authorized the execution of Cameron Willingham, runs for president, hopefully Texas justice will get some long overdue national attention. (Read Ta-NeHisi Coates excellent column in the NYTimes discussing Perry and Willingham)

(Governing through) Crime Wave Strikes UK

Rates of crime reported to the police in the UK appear stable, maintaining a long term downward trend of over a decade. The politics of crime however is very much on the rise in England and and from where I write in Edinburgh (ironically, Northern Ireland, where sectarian rioting took place this week, crime policy remains on a steady course of reform). My earlier optimism that I would observe the UK moving away from governing through crime in my year long sabbatical here, is rapidly proving misguided as I prepare to return to a state and nation nearly ruined by those politics.

More than six months after the new coalition government in the UK Parliament proposed significant measures to reverse the rise of mass incarceration in England Wales, the Justice Minister on Tuesday was forced to admit the abandonment of most of those proposals. Meanwhile the Prime Minister (the man who once earned the wrath of the tabloids by defending hoodie wearing youths from ASBOs) held his own press conference to bring out some vintage Tory tough on crime talk,including an old new "two strikes and you're out" law with life sentences for repeated serious offenses, and hoary rhetoric about citizens' rights to use force against intruders (read Richard Garside's commentary in the Guardian). Meanwhile, Labour party and opposition leader Ed Miliband, whose own "shadow" Justice minister had generally approved of the government's plans to reduce reliance on imprisonment, continued channeling Tony Blair, using his opportunity to question the Prime Minister in the House yesterday to beat him around the head with another government reform proposal to reduce somewhat the range of persons subjected to having their DNA held by the police (read Alan Travis' analysis in the Guardian). Miliband once again invoked rape victims, already symbolically deployed in the past several weeks to wound the government's proposed sentencing discount for early guilty pleas (see my earlier post).

Meanwhile, here in Scotland, the new Scottish National Party (SNP) government, just a month away from its smashing victory over a Scottish Labour party that tried impotently to attack them as soft on crime, has unfurled its own headline driven crime agenda. One measure directed at Glasgow's notoriously sectarian football fans (the main "old firm" teams are identified along Protestant and Catholic lines) threatens a five year prison sentence for those making offensive remarks likely to incite listeners at or around football matches. In the Holyrood Parliament on Tuesday, the government's Community Safety Minister admitted that under the new law, singing "God Save the Queen," or making a sign of a cross, could be illegal (read Tom Peterkin's article in the Scotsman). This comes after weeks in which SNP leader, and Scotland's First Minister, Alex Salmond (whose popularity was largely credited with the SNP's election victory) has carried on a running diatribe against the UK Supreme Court and human rights lawyers in general, for the reversal of a Scottish murder conviction in Human Rights Act challenge (read Andrew Whitaker and John Robertson's reporting in the Scotsman).

What explains this sorry season? I have always argued that governing through crime is about the search for legitimacy in an age when political parties no longer adhere to coherent social and economic philosophies. In most cases, crime talk is a "second best" approach for politicians that no longer feel confident about their approach to governing. Here in the UK, the Conservative Party turned to "prison works" rhetoric in the early 1990s, after the wheels started coming off full strength economic Thatcherism, and Tony Blair found his footing on crime as he led the "New" Labour party to abandon its commitment to socialism.

In the UK parliament, with a coalition government for the first time in more than half a century, none of the major parties has a coherent narrative to offer on social or economic policy, or for that matter on Europe, human rights, on military intervention, on climate change. Tory leader and Prime Minister David Cameron has talked about a "Big Society," and intimated in all kinds of ways that he is not a naive Thatcherite on the role of the state; but so far his government is largely known for the massive budget cuts it is planning to impose on the British people (where most spending goes) and plans to increase the private sector's role in both the NHS and schools. Labour leader Ed Miliband struggles to provide any kind of picture of what a Labour government would do if it got back in power (failing in an infamous BBC interview last Fall to even explain who the "middle" was in his frequent rhetoric about needing to held Britain's "squeezed middle"). The Lib-Dem leader, and deputy Prime Minister, Nick Clegg, who has suffered the most sustained political losses in the recent elections (losing the party's base in local councils in Northern England and in the Scottish regional government, and losing its signature Alternative Voting referendum, all by wide margins), has offered mostly self pitying statements about his own feelings and experiences rather than a political vision for the country. Thus although none of the three leaders has the kind of visceral instinct to govern through crime that Tony Blair did, all of them are falling back on it in the face of a broadly scary historical juncture and public communications environment (media, popular subjectivity) still powerfully oriented toward fear of crime and victim centered anger.

In Scotland the May elections seem to have worked the other way around. The SNP's unexpected triumphs may have been a mixed blessing for a party that is now expected to forcefully proceed toward its existential goal of an independent Scotland and show case the kind of government they would bring to such a nation. But the SNP is a coalition of its own with a base that shares little agreement on how Scotland should be governed.

All in all its a disappointing end to what has been a fascinating political cycle (which began in the May 2010 UK national elections) to observe. Of course much more is at stake than my edification. As in the US, accumulating social, economic, and foreign policy challenges mount while politics degenerates into an increasingly incoherent jumble of recycled themes.

Note: Read Ian Loader's commentary at the New Stateman's blog on the same turn of direction here.

Troubling Questions on the Border between the Prison and Hospital

Deborah Sontag's outstanding feature on the murder of a psychiatric facility worker by a schizophrenic patient with a history of violence is a great overview of one of the most complicated corners of our domestic security governance problem. As recently as the 1970s there were still far more people in mental hospitals than there were in the nation's prisons (read Bernard Harcourt's article on this). The situation today is vastly different, with the prison system bigger by a factor of nearly 10. Of course most of the residents of mental hospitals then and now have nothing to do with crimes, let alone violent crime. But for a small portion of people with serious mental illness, perhaps less than one percent, a history of violence tinged psychotic ideation, and actual violence, is a strong predictor of future violence (but only if the person is untreated). Meanwhile a shockingly high level, perhaps 20 to 30 percent, of our inflated prison population suffers from a major mental illness.

Twenty seven year old Deshawn James, accused of murdering 25 year old Stephanie Moulton in a Massachusetts "group home," came from a strong church background and gave little indication of being headed for trouble, before symptoms of schizophrenia emerged in late adolescence. Since then James has been in both prison and in group homes. At least according to his mother, James responded well to medication. But like many people with serious mental illness, he went off his medication with frequency. Massachusetts current regime, although better than most nationally, is under going both budget cuts and a philosophy shift toward ending state oversight for patients.

The murder trial is on hold for now since James, who was clearly psychotic at the time of his arrest, was found incompetent to stand trial, which means he will continue to be held and treated in a secured hospital for at least a few months with the aim of resuming the proceedings if treatment makes it possible for him to assist in his own defense (if not he may be committed under civil powers). The civil suit, being brought by Stephanie Moulton's mother, is proceeding. The case is likely to put the group home operators on trial for failing to identify the level of risk posed by James (because of his criminal record) and the light staffing.

The primary response to the risks posed by someone like Deshawn James over the last thirty years has been criminal prosecution and incarceration. His trajectory underscores some of the ways that approach fails. Someone whose violence is triggered by psychotic ideation is not likely to be deterred by prison, and years of stable behavior cannot preclude a resumption of violence if the psychosis resumes. At the same time, the tens of thousands of California prisoners with serious mental illness were revealed by the Brown v. Plata case to be utterly failed by the prison mental health system which leaves them to decline into deeper illness frequently in overcrowded and degrading conditions sure to exacerbate their paranoia.

As we think about rebalancing our approach to public safety, people like Deshawn James, and the much larger population of prisoners with serious mental illness who have no history of violence, should be a prime focus of reform efforts. We must be able to do abetter than a system that manages on its penal side to be both ineffective and unsustainably expensive, while on its civil side weak and inconsistent.

Following Brown v. Plata, California and other states should clearly seek to divert almost all their prisoners with a serious mental illness to a hospital setting. Prisons are not suitable places for people with serious mental illness and their presence their creates unacceptable risks both to them and others. These hospitals could be specialized prisons, but in the great many cases where it is apparent that untreated mental illness was the primary cause of the crime, states should ultimately clear their criminal record in favor of a long term mental health treatment plan, enforceable by a mental health court with long term jurisdiction and the power to order involuntary commitment to a secured hospital setting.

State mental health powers ought to be concentrated in specialized courts that are expert both at therapeutic jurisprudence and identifying evidence tested risk factors that require tighter supervision. Currently, the power to forcibly treat and if necessary confine to a closed treatment hospital, is limited to episodes where the person poses a clear and imminent risk, and then only within strict time limits. Laws should be changed to give courts long term powers over adults with serious mental illnesses who have ever met the criteria for emergency hospitalization and forced treatment. Serious mental illness is a chronic disease. While treatments are effective in preventing the most alarming and dangerous symptoms of disease, they do not "cure" people, and ultimately long term management of their condition is a personal and social value that deserves to be honored.

The courts that exercise this power must be infused with a commitment to human rights and to protect the dignity of both people with mental illness, and potential victims of people whose serious mental illness makes them prone to violence. Honoring the first means always using the least restrictive alternative and directly respecting the autonomy and preferences of people with mental illness who are under the court's jurisdiction. Honoring the second means taking maximum advantage of known risk factors to closely supervise and when necessary confine individuals prone to violent behavior when their symptoms worsen and or when they seek to self medicate with drugs like speed and cocaine.

Existing institutions like the Behavioral and Mental Health Court of San Francisco provide a good model for a court that can do both. Its work should be overseen by a human rights agency, perhaps modeled on the European Committee for the Prevention of Torture (read my previous post on the CPT and prisons).

Foucault Effect

Twenty years ago, and after Foucault had been dead for nearly seven years, a book titled The Foucault Effects: Studies in Governmentality was published (by Chicago, at least in the US). For me it had a powerful effect, renewing my interest in following Foucault's leads in analyzing institutions of confinement and control in contemporary society, and offering me a new set of tools for analyzing a face of power less visible in Foucault's masterpiece studies of prison, the asylum, and the clinic; the forms of power that are exercised on the relations among people and groups of people, forms of power that are often the domain of government (although not always within the state as such).

Reading Foucault's work with my undergraduate mentor, Hubert L. Dreyfus, and later engaging with Foucault at Berkeley in the research seminars that were set up through Bert and Paul Rabinow, had set me on a course of interest modern institutions of control which I pursued through a dissertation on parole and the social control of the underclass. With Foucault's death, however, the sense of a research enterprise that I found so exciting in both the work and the man, were quickly being replaced by the processes of intellectual ossification in which a living scholar is transformed into part of a canon, whether of sociology, philosophy, history, or literary studies. The Foucault Effect, which combined a piece of one of Foucault's most celebrated lecture courses at the College de France (then almost completely unavailable, certainly in English, now much of them have thankfully been published) with both commentary and substantive research work by some of his students, for me shattered the crystalline structure of concepts which cannon debate about Foucault was producing and once again liberated the will to use the tools rather than define them (not that conceptual work isn't valuable, only that it is far more so when frequently honed in the business of interpreting the present).

Last month I had the chance to participate in a conference at Birkbeck College of the University of London, celebrating the book, and bringing together some of its original contributors and editors, along with others whose work was inspired by that effect. For me it was a great moment to meet and thank the editors and contributors who have been and continue to be instrumental in bringing the oral expression of Foucault, his interviews and lectures, to an English readership. I used my time to reflect on some features of the transformational Supreme Court decision in Brown v. Plata. Thanks to the fantastic IT people at Birkbeck, and the Backdoor Broadcasting Company, this entire day and half of presentations and discussions is now available for streaming in excellent audio, here.

Blindness to the consequences

I'm ending my work week with a large Amen to a column just published by Stephen Yair Liebb and Hector Oropeza on the Brown v. Plata case which offers a California prisoner perspective on the opinion and a response to the dissents. Liebb has served 30 years of a life sentence for murder and Oropeza has just been released after 20, also on a life sentence for murder (neither would have served more than 10 years before sentences for murder were politicized in the 1990s). I have met them both at San Quentin during seminars and discussion groups I've participated in at the prison, and been impressed by their insights about the prison system, violence, and justice.

A small but poignant part of the column addresses what I've also considered the opinion's chief accomplishment, the powerful reassertion of dignity as a value underlying the 8th Amendment (and thus the operation of prisons).

However, the U.S. is still a symbol of freedom across the world. How we treat the most despised of our own citizens is important if we are to have credibility and moral authority in advocating for human rights in other countries. The Court noted that the Constitution protects the “essence of human dignity in each person.”

Most to the column, however, is a precise and forceful refutation of the dissents by Justice Alito and Scalia. The former, you will recall, dispensed with reasoned argument and invoked the emotional (fear) based center of war on crime complex.

“His description of the consequences of the Supreme Court’s decision is an example of the hyperbole and hysteria used by Justices who are required to exercise sound reasoning in deciding cases...

That for over a decade California has subjected prisoners to standards that amount to cruel and unusual punishment while maintaining an extraordinarily high rate of incarceration reflects an erosion of fundamental values of American society.

To Scalia's argument that the case will benefit healthy (and dangerous) prisoners rather than those with genuine medical problems, the authors remind us of the horrendous truth of this case, that exposure to disease, ill-health, and degradation was widespread, occurring to hundreds of thousands of Californians incarcerated over more than a decade of unconstitutional conditions.

Justice Scalia also claims, without proof, that “Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”

Justice Scalia ignores the reality that gyms have been used to house prisoners for many years, which is part of the problem brought on by overcrowding. Overcrowding and lockdowns compromise the immune systems of prisoners due to a lack of fresh air and exercise. The lack of sanitary conditions in these gyms exacerbates the spread of disease. Weights have not been available in California prisons for more than a decade.

California Needs a More than an Office of the Inspector General, We Need a California Committee for the Prevention of Torture

It was the pictures that did it. When the Supreme Court was compelled to look at pictures of the refugee camp like chaos and overcrowding in California's supposedly secure prisons, and the "dry cels", i.e., vertical cages in which mentally ill and suicidal prisoners are locked up for weeks and months because no treatment beds are available, they were clearly disturbed and five of them voted to uphold jot for jot, the 3-Judge court's order that California reduce its prison population (read Brown v. Plata here) and to make it clear, appended the photos themselves to their opinion.

Californians need to look at those pictures and ask whether that is how they want their state to be represented to the world. Make no mistake, writing from Europe I can assure you that the rest of the world sees no moral light between California and the practice of degradation and inhuman treatment at Abu Ghraib and Guatanamo, indeed California is worst because it has been subjecting tens of thousands to these degrading conditions for decades. Californian's need to look at these pictures and ask, who is responsible for hiding these truths from us, and how can we make sure it never happens again.

As for the hiding of the truth, blame belongs with the alliance of politicians, the correctional officers union, and the professional "victims for vengeance" lobby which for decades have conspired to hysterically raise the threat that hordes of Charles Manson like fiends will pour forth from our prisons if we ever modify our rigid and punitive sentencing laws (read Josh Page's excellent column in the LA Times on this alliance, and his excellent book on the how that alliance created California's version of mass incarceration).

As for preventing this from happening again, we need to create an institution capable of making sure that truth is never hidden again, and of countering the strategic of use of fear and intimidation by the prison alliance. What we know thus far, is that our normal political institutions, including the legislature, the office of governor, the California Supreme Court, the political parties and the media have failed us completely in preventing this horrific situation from ever forming. The Council of Europe, whose members include virtually ever state in Europe (its far bigger than the European Union) has an organ designed precisely to protect the human rights of Europeans against the real risk of abuse behind the closed doors of prisons, asylums, and detention centers. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) was created in 1989 under the Council of Europe's “European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment” (read more about the CPT here). Consisting of independent legal, medical, and academic experts from every member state, the CPT is empowered to visit any place of confinement in any member state with no advance warning. They issue reports to the member state itself providing detailed study of any conditions that risk producing torture, or degrading or inhuman treatment. These reports are generally made public by the member states and taken quite seriously as a starting point for reforms. If they are not, the CPT can issue a public rebuke designed to the call the attention of all member states and their citizens to the real risk that exists of human rights being trampled.

California does have an Office of the Inspector General (visit its website) tasked with guarding the integrity of the Department of Corrections, but despite being led by people of good will and intention, the Office has neither the power nor the independence to protect the human rights of incarcerated Californians. As Harry Shearer points out regularly on Le Show, the whole idea of an inspector general is problematic since they are neither generals (they have no troops) nor inspectors (they have no spooks). Even in its weak form, the Office has regularly been attacked by the prison alliance and could easily be eliminated altogether by a future governor or legislature.

Governor Brown should acknowledge that given the gross politicization of prison policies in the decades between his terms in office, neither he nor any other politician can guarantee that Californians will learn the truth about what is being done in their name. Governor Brown should present the legislature with a bill to amend the California Constitution to forbid not only cruel unusual punishment, but "torture and inhuman or degrading treatment or punishment," and to create a "California Committee for the Prevention of Torture, and Inhuman and Degrading Treatment or Punishment."Governor Brown should acknowledge that given the gross politicization of prison policies in the decades between his terms in office, neither he nor any other politician can guarantee that Californians will learn the truth about what is being done in their name. This Cal CPT should be led by independent legal, medical, and academic experts with both human rights and penal institutions expertise. They should have the mandate and the power to visit any prison, jail, mental hospital, or detention facility in the state at the time of their choosing, and to produce a public report to the governor and the legislature, detailing any evidence that conditions in those facilities are at risk of producing torture, inhuman, or degrading treatment or punishment.