Cupcakes, Affirmative Action and Mass Incarceration

Yesterday Berkeley's College Republicans were generating big crowds on Sproul Plaza and big media coverage with a retread of an old bit of anti-affirmative action agit-prop; a cupcake sale in which prices were set by race (just like academic "preferences" for students of color in admissions, get it). (read Nanette Asimov's reporting in the SFChron here). There was already a large crowd of counter-protesters and reporters on hand by the time I rolled my bike onto campus, otherwise I might have fought my way to the BCR table to buy a half-a-dozen or so. I've always thought affirmative action was a hugely good deal for America (especially white Americans); purchasing, at a very small price, a modicum of legitimacy as it seeks to lead in a world awash in diversity and in the governance of a tremendously unequal and coercive society at home.

However I was disappointed that my fellow progressives mostly fell into predictable response patterns; denouncing any opposition to affirmative action as racist, trying to explain why price discrimination (which of course is a routine feature of our society, try "buying" a loan if you are living in a traditionally Black or Latino neighborhood) is wrong but affirmative action is not, or claiming to have suffered emotional injury by the BCR's tactics. The right loves talking about affirmative action. It's a winning "wedge" issue for them.

An alternative would have been actions focused on California's mammoth prison system and the vast network of sentencing laws that keep it filled largely with people of color (laws which Republicans have supported with unbridled enthusiasm). If College Republicans are offended by educational admissions policies that allow race and gender to be considered as part of a holistic individualized look at the application, what do they think of a state run system in which virtually every aspect of life from cell assignment to job assignment to who cuts your hair is determined by race? Do they support laws that guarantee a steady flow of admissions to prison of men of color, with little regard for their individual culpability or the risk they pose to the community? Where is their outrage for a state that cooperates in handing prisoners over to racist prison gangs so they can return to their communities scarred by racist ideologies, bound into criminal networks, and shadowed by real and imagined enemies?

This system, which has been repeatedly condemned by the right leaning US Supreme Court, has become a vast sink hole into which the state's fiscal and moral capital has been poured, and California's Republican legislators have demanded to keep digging. The truth is that whatever you think of affirmative action in college admissions, it's a tempest in a teapot compared to the category five hurricane of mass incarceration which threatens the health of this state in every sense.

That message would also have put students on the side of thousands of California prisoners who are beginning a hunger strike this week to demand the most basic and humble of human rights. The right not to be confined in isolation from any meaningful activity for years or your entire sentence. The right to have your fate determined by laws and due process rather than invisible administrative judgments. The right to nutritious food, and to not having food used as a punishment. (Read their five core demands here).

Cupcake anyone?

Executing the Innocent: Time to Boycott Georgia and Texas

I believe the death penalty is an inherently degrading and dehumanizing punishment that should not be used even on the most heinous criminals. But when a state executes individuals with substantial doubt about their actual innocence they have crossed a different line. They are not only human rights violators, they are a clear present danger to every person who lives in or visits them. With the execution of Troy Davis in Georgia tonight (read the Guardian account of the final moves here); and the execution of Cameron Todd Willingham in Texas in 2004 (read David Grann's account in the New Yorker from 2009 here), two US states have now carried out executions in cases where the major prosecution evidence against defendants who have consistently insisted on their innocence has collapsed.

Despite an outpouring of global attention and emails, don't expect Georgia or Rick Perry's Texas to mend their ways soon. Solid majorities in those states not only support the death penalty, but celebrate a vigilante culture in which questions of due process and innocence count for little in the face of demands for vengeance. Politicians in those states will not respond until they feel powerful economic pain. In the meantime the attrition of the death penalty elsewhere may eventually lead the Supreme Court to strike down the death penalty as a regional eccentricity but not in my lifetime.

Its time to focus on these two major human rights abusers with the only language they understand, money. Its time for a grassroots boycott of these states. The tens of thousands around the world who sent emails and letters opposing Troy Davis' execution should now direct their activism in a new direction, to mobilize their fellow citizens for a boycott of the entire economy of each these two states until they declare a moratorium on executions. That means circulating lists of products made in those states (Georgia peaches, and Dell computers in Texas for example). That means avoiding tourism, conferences, or investments in any businesses in those two states. Let Georgia and Texas understand what it means to be an international pariah. It is true that these means letting other states go on executing prisoners. That is hard. Death is different, but so is executing the innocent. The boycott, as it grows will help keep the focus on these revealing cases and pressure on both states to justify their outlier status.

LWOP

The New York Times earlier this week published a strong editorial criticizing America's increasing use and abuse of life without parole (LWOP) sentences (read it here). The use of such sentences was largely unknown in the past and remains rare outside the US. Even murderers who did not get the death penalty could be virtually certain of parole within ten or twenty years at the most.

For many LWOP represents a hopeful alternative to capital punishment. But as the death penalty declines, LWOP is growing much faster. According to the Times the number of LWOP sentences tripled from around 12,453 in 1992 to 41,095 in 2008. The sentences being imposed not just for capital murder, but for many other homicides as well as crimes like kidnapping and drug dealing.

LWOP combines the eliminationist logic of the death penalty with the control problems of incarceration. How do you motivate compliant behavior for those who have no hope of being released no matter how good their record is? The result is an inevitable degradation for both prisoners and keepers, reflected in our increased reliance on supermax prisons to punish and isolate those who have nothing to lose.

LWOP highlights a paradox of American mass incarceration at this juncture. The soft end of the penal state, the over use of prison for drug users, parole violators and female property offenders is increasingly discredited and in varying degrees being reduced. But the commitment to long incapacitative prison sentences for violent crime remains as strong as ever. Yet our outsized prison population and highly disproportionate racial profile of prisoners will remain unless we revisit our excessive sentences for violent crime.

LWOP functions as the anchoring point for a structure of excessive punishment. With LWOP widely available, life sentences with parole are rapidly increasing from an average time served of 20 years to 29 years in the past two decades. Having established a harsh and flat sentencing system for murder it becomes easy to justify sending robbers and burglars to prison for decades.

I agree with the Times that LWOP should be limited to those cases that would otherwise attract a death penalty and even these cases should be exceedingly rare and open for review. Punishment can be proportionate without being harsh. There are no coherent moral principles the require natural life as a sentence for any crime, even for murder, and most criminologists would agree that the risk of future dangerousness drops toward zero for most offenders after 40. Instead we should look to human dignity to set an appropriate cap for even the worst crimes at around 25 years with few sentences of longer than 10. Beyond these boundaries, continued imprisonment becomes degrading for both prisoners and prison officers. A sentencing structure built around those principles would leave plenty of room to mark the seriousness of different crimes, have little if any effect on deterrence while producing a far smaller, healthier and more cooperative prison population.

Attica, Forty Years On

On the editorial pages of the NYTimes, historian Heather Thompson reminds us all of how profoundly the Attica prison uprising and its violent suppression, forty years ago this week, shaped our penal imagination and prepared the grounds for what we now call "mass incarceration."(read it here) The prisoners who took nine correctional officers hostage and gained control over most of the prison had in mind mostly rather basic rights, decent medical care, an end to lingering racial discrimination among them. For a moment, the sudden media attention on a prison being run by its inmates in a rather democratic and orderly way--including careful protection of the hostages and the absence of violence among inmates which had long been associated with classic prison riots--, seemed like it might deepen the already sympathetic view of prisoners many Americans had in the early 1970s.

Then Governor Rockefeller authorized an army of correctional officers and state police to violently retake the prison (despite five days of progressing negotiations). Thirty-nine men, twenty-nine prisoners and ten hostages, were killed, every one by the incoming bullets of state forces. Eager to cover-up what amounted to a massacre (and one followed by physical torture of the survivors) the state lied outrageously and told the media that the hostages had been killed with their throats slashed and in some cases castrated. The resulting fire storm of media coverage would reset the imagination of a generation. As Professor Thompson puts it:

We have all paid a very high price for the state’s lies and half-truths and its refusal to investigate and prosecute its own. The portrayal of prisoners as incorrigible animals contributed to a distrust of prisoners; the erosion of hard-won prison reforms; and the modern era of mass incarceration. Not coincidentally, it was Rockefeller who, in 1973, signed the law establishing mandatory prison terms for possession or sale of relatively small amounts of drugs, which became a model for similar legislation elsewhere.

Forty years on it feels like America may be ready to abandon the demons of Attica even as we finally come to some historical reckoning with what it meant. Forty years seems to be about the length of time it takes dramatic changes in the social imaginary to run their course. The Israelites left Egypt in one day, but as the Book of Numbers tells us, it took forty years to leave slavery behind. Today in California, with this summer's prison hunger strike against our cruel and degrading SHU (supermax) units having achieved totally unexpected media coverage and political response, and the spring's Brown v. Plata decision by the US Supreme Court calling on the state to recognize the humanity of its prisoners; signs abound that mass incarceration has itself become a scandal. But scandals only change things if people are committed to using them to promote a new way forward. Forty years ago the events of Attica would be seized upon to promote the war on crime and shift it from a focus on police to one on prisons. Today there is for those ready to seize it, an opportunity to re-imagine both safety and dignity for another generation.

The Feds: The English riots and the limits of governing through crime

Its been much debated whether the August 2011 English riots should be characterized as politics or crime. The absence of a clear political narrative is cited by many of those supporting the latter. But some aspects of the narrative such as it was, suggests that the politics of the riots was about the politics of crime (or as this blog would put it, governing through crime). For example, one phrase many of the rioters seemed to have shared was calling the London metropolitan police "feds" , a term apparently drawn from television dramas ((according to Jon Henley's reporting in the Guardian). It is not likely that rioters confused the English police for US federal law enforcement (no matter how often they show up on British tv), nor that they are making a claim about policy transfer. Talk about the "feds" seems to be a way of referencing American style governing through crime with its degrading policing and harsh punishment of young lower class and especially lower class minority men. Indeed the most impressive change in British life over the last generation, perhaps more consequential than the housing boom that for a while reshaped many former industrial towns, was the doubling of Britain's incarceration rate during the long rule of the previous Labour government.

Consider also what has become one of the iconic sound bytes of the riots for Britain's tabloids one youth in an interview with the BBC (although I cannot find the actual BBC story) said "'What are they gonna do? Give me an Asbo? I'll live with that.' While that has been taken by some (read Damien Gayle's assessment in the Mail Online) to suggest the insufficiency of criminal sanctions, it also suggests something much more damning (and less counter-intuitive given the significant increases in punishment over the 1990s) i.e., that chronic overuse of criminal justice as a ready made tool for addressing social insecurity under Neo-liberal economic assumptions has led to collapse of both deterrence and legitimacy. Tony Blair's signature governing through crime initiative, one that summed up his ambition to be simultaneously tough on crime and tough on the causes of crime (in this case anti-social behavior) now stands for a pervasive sense of disrespect of both the governed and the governors.

Actions speak louder than words and can be readily interpreted. Police, all over, but especially in England, are a symbol for law itself. Whatever other motives last month's looting and riotous behavior had, it was clearly intended to embarrass the police (the "feds") already on the defensive after the phone hacking scandal and various failures to anticipate disorders associated with student fee protests. The police clearly understood that the rioting was mostly aimed at them and responded in kind. In Damien Gayle's summary for the mailonline:

Police took revenge on dozens of riot looters last night as they kicked in their front doors and hauled them into the street.

Riot officers armed with battering rams descended on a string of properties as they looked for pay back over the chaos that swept the country.

The officers collared one suspect at a home in Brixton after receiving a tip off that he had been involved in the disturbances.

The August 2011 riots followed by a decade a more contained but alarming riot that broke out under Tony Blair in the norther English town of Bradford in July of 2001 (thanks to the Guardian's history links you can read Martin Wainright's reporting from 2001 here). Those riots had a disturbing racial edge that was apparently not dominant last month (although some reports of cross racial attacks mix with reports that the rioters were drawn from all races and cultures) but one can also read the growing contempt for government authority as such.

Arrests climbed to more than 40 as detectives followed up hours of video film showing rioters - mostly young Asians making little or no attempt to disguise themselves - torching cars and hurling missiles at riot police.

In a separate operation, police scoured an outlying estate for a gang of 20 white skinheads, some described as 13 or younger, who ransacked an Asian restaurant and Asian-owned garage in the quiet suburb of Greengates late on Sunday.

Tony Blair and his Home Secretary David Blunkett insisted that the lawlessness was no more than crime to be dealt with by tougher law enforcement means.

Tony Blair condemned the rioting as "thuggery" and said protesters attacking the police had ended up "destroying their own community".
In a statement on the disturbances, Mr Blair endorsed the view of the home secretary, David Blunkett, that the trouble was a "law and order issue", and his spokesman confirmed that the government was prepared to consider permitting police to use water cannons.

A decade later and with British policy options restricted by the escalating costs of mass imprisonment political leadership seems trapped in a rhetorical enclosure that resists any attempt to escape the crime policies and politics that have failed for a whole generation.