A Tale of Two Joes: Captain America and America's Toughest Sheriff

The Obama-Holder Justice Department's full scale legal challenge to the man who has long called himself "America's Sheriff" (read Marc Lacey's reporting in the NYTimes here) is another indicator that the war on crime is continuing to wane, both in the commitment of federal and state budget to crime control activities, and in the ideological grip of "tough on crime" over the American political imagination. Joe Arpaio, five times elected Sheriff of Maricopa County Arizona (Phoenix) has been fixture on the Republican right in Arizona and nationally for years now, but he has also largely been above reproach from more moderate leaders of either party despite engaging behavior that ranges from clownish (dying the jail bologna green and the underwear pink) to obscene and degrading (jail webcams trained on showers, see Mona Lynch's article on Jail Cam in Punishment and Society here). The fact that the Justice Department is going after him now may be based on convenient timing (the investigation began under Bush and comes at a time when Latino votes are the key to Obama winning Arizona and perhaps the whole election) but it also indicates that the most cautious political team in the business calculates that tough on crime is no longer a shield of legitimacy.

As Sheriff Joe is hustled off the stage of history, let us not mistake this clownish thug for an aberrant example of our demented celebrity political culture (although is his as well). His basic program of cruelty, racism, and entertainment in the name of public safety is one that continues to be defended and practice in most states and by a Justice Department that has arrested and deported more foreign nationals than any administration in recent history (proportionate to its time in office). Nor have we seen the President make even the slightest move to challenge the orthodoxy of mass incarceration in America.

If Sheriff Joe is a comic book character it is reflection of our national decline. Consider Captain America (whose creator, Joe Simon, died this week at 98, read his obit here) whose inaugural issue in January 1940 depicted him punching Adolph Hitler (then romping over Europe)in the jaw. Our hero's used to beat up bullies; in the age of Sheriff Joe they became bullies.

Riots and Respect

In another move that confirms its stature as the most innovative newspaper and news website in the English language world, the Guardian has been collaborating with a team of London School of Economics social scientists, headed up by (friend and) criminologist Tim Newburn, in an extraordinary qualitative study of participants from this past summers riots in London and a few other UK cities (read the series, Reading the Riots). The study confirms that at its core the rioting was a response to long term resentment over police tactics, particularly stop and search and above all the routine disrespect that lower class urban youth experience in their interactions with police. Most newspapers would have felt it sufficient to let right and left wing experts and pundits tell us what the riots meant. Asking rioters why is considered hopelessly naive if not perverse; as their behavior must be punished by silencing even beyond legal sanctions. But as Newburn brilliantly summarizes it (read his column in the Guardian here):

Indeed, we should listen because they have something important to tell us about policing in modern Britain. The concepts that young people – young rioters – referred to most frequently in relation to policing were "justice" and "respect". Their focus was on what they perceived to be a lack of each. Police officers – by no means all, but enough – target them, are rude, and sometimes bully them, they said. Much of what these young people talk about is, for them, just the daily grind of their interactions with "the feds". It is the sense that every time they are out on the streets, they face the prospect of being stopped, challenged and, from time to time, abused.

Newburn notes that the shared anger at the police among lower class urban youth stands in contrast to the "general public" which expresses confidence in the police in standard national crime surveys. Tellingly, however, this sentiment cuts across the behavioral divide that many assume away in their presumptions about such youth. While rioters were predominantly from this group they included many youth who are not part of a gang or criminal life style, they hold jobs, go to school, and operate inside Britain's increasingly exclusionary economy. It doesn't matter to the "Feds" who police them based on demography (and all too often race above all) rather than on the "reasonable suspicion"celebrated by law.

Needless to say this is all of vastly more than academic interest to those of us in the US. We have very much the same long term deficit of respect accumulating among our urban youth and very much the same policing logic as Victor Rios documents in his great book on policing and urban youth, Punished (I don't think this is a case of policy transfer so much as independent paths to the same bad practices, but read Newburn's book with Trevor Jones on Policy Transfer). The Occupy Wall Street protests have documented that the police have plenty of disrespect to pass around, despite decades of training (or at least talk about) in community policing, even to the predominantly middle class young adults that have made up its stalwarts. With the economy very likely in the pits, global warming doing its thing, and Obama and a Republican opponent locked in a campaign for the 5 percent of white suburban voters that are still undecided in July, it could be a long hot summer.

Let it snow, let it snow, let it snow

Zombies, Humanitarians, and the Twilight Zone Between Dignity and Security

The shock is palpable. For those of us used to United States criminal justice as a baseline the decision seemed in explicable. According the news that broke yesterday, Norway's prosecutors have decided that Anders Behring Breivik is insane and should not face criminal prosecution (read the AP report here). Breivik was arrested last summer after methodically gunning down scores of Norwegian youths and young adults on an island conference center after allegedly setting off a deadly bomb blast near government buildings in Oslo. He himself described those acts as part of war to save Norway from Muslim immigrants. Prosecutors, based on the evaluation of their own forensic psychiatric experts, concluded that Breivik lives in a “delusional universe,” and should not be held criminally responsible. If their decision is approved by a judicial process, Breivik will go to a secure psychiatric hospital for at least three years, after which he could be released if found to be no longer a danger, rather than to a trial and imprisonment.

In the US insanity is also a possible basis for dropping a prosecution or acquitting a defendant with a similar result; only it rarely happens and certainly not in high profile cases. Consider the on going prosecution of Jared Lee Loughner, who killed several people at a Tucson store last Spring and critically wounded Representative Gabrielle Giffords; and who everybody agrees was deeply psychotic, but where the prosecution is fighting to the keep the case on track for a criminal trial and possible death sentence. By strange coincidence, yesterday also brought news that John Hinckley, who shot President Reagan in 1981, is seeking leave a psychiatric hospital for visits of up to several weeks at his mother's home, more than 30 years after being acquitted by reason of insanity. News that Hinckley would escape "punishment" and "prison" led to popular outrage and a significant shift in state and federal law to narrow the grounds on which a person may be acquitted by reason of insanity. Now even people who both prosecution and defense agree are and were deeply psychotic, and who killed in the midst of severe delusions, are likely to be convicted of murder and sent to prison for life or perhaps even executed (so long as they are not insane at the time of execution). In the meantime the suggestion that, Hinckley who has been in remission for decades and has apparently threatened no one since being hospitalized, be released is raising strong opposition from present and former prosecutors.

The contrast between the two nations should shock us. But the question is what kind of conclusion to draw about which nation is extreme. San Francisco Chronicle columnist Debra Saunders offers in vivid terms what I suspect many of my fellow citizens (and possibly even readers) think (read her column here):

So why do I think Oslo's chosen experts have decided that Breivik was insane? They're so sublime, they don't know how to recognize evil.

Saunders sees Norway as epitomizing a perverse and elitest commitment to humanitarian values like dignity,while no non-sense American justice delivers security to ordinary citizens by dealing harshly with those that would harm them. In Saunder's view, admittedly drawn from the nightmare world of US popular media, people like Norway's prosecutors or Americans who oppose capital punishment and mass incarceration, are practically allies of the evil doers.

In AMC's zombie series "The Walking Dead," tensions build between an old-fashioned veterinarian farmer named Hershel Greene - who thinks zombies have a disease that may be cured someday - and a caravan of gun-packing refugees led by Deputy Rick Grimes. Because Hershel wants to protect the zombies he has hidden in his barn, he orders Rick and company to leave his property - even though leaving could make Rick, his family and friends easy pickings for the undead.

It's disturbing how self-congratulatory humanitarians can be willing to endanger the lives of others in order to maintain their worldview.

As a columnist Saunders often has the lonely task of defending conservative views in admirably witty style, to liberal San Francisco, but on this note I suspect she's singing with the chorus not only here but in most of California, and thus her logic is worth a closer examination for what it tells us about our penal imaginary. Saunders sees people who commit violent crimes, or may be all criminals, as zombies, monsters who have forfeited all claim on our humanity, and who can never change their instinctual drive to kill innocent humans. Those who think they can change them are not only pathetic, but dangerous themselves, because they can use their cultural and legal power to stop righteous avengers from using violence or permanent imprisonment to destroy or incapacitate the monsters.

It is all too tempting as a criminologist to dismiss columnists like Saunders as, well, delusional. But her vision accurately reflects a culture of fear in the Golden State, built up by a variety of social, media and political trends over the past four decades and which has produced nearly a thousand people on death row and a prison system holding more than four times the portion of Californians incarcerated in the 1970s (when serial killers were actually common in the state). The prisons, whose overcrowding and humanitarian crises shocked even the US Supreme Court in Brown v. Plata hold tens of thousands of seriously mentally ill prisoners, most of whom probably committed their crimes due to untreated mental illness and who are not receiving adequate treatment to control their disease while in prison.

For not only Debra Saunders, but many Californians, prisons are acceptable (despite their obvious failures) because they contain monsters who would otherwise be in your community or house. In this view, it is civil rights lawyers and and hapless humanitarians who endanger Californians by demanding dignity and human rights for prisoners. In reality, security is more of a twilight zone, where extreme efforts to punish and incapacitate our way to safety regularly backfire (remember Abu Grhaib) and where creating real security requires both courage and dignity. Consider San Francisco where Saunder's lives or at least writes from. There in 2008 a teenage girl was almost beheaded by a knife wielding man. The girls family sued the state for failing to protect her. Was he released early by some naive humanitarian parole board? Hardly, according to Saunder's newspaper, the San Francisco Chronicle (read it here):

The suit claims Scott Thomas, who was suffering from bipolar disorder, was never treated during his months in solitary confinement in San Quentin. After he was released without supervision on May 18, 2007, Thomas randomly stabbed Loren Schaller, now 16, and 60-year-old Kermit Kubitz at a bakery near Miraloma Park.

Thomas, 26, who was sent to prison nine times for nonviolent crimes between 2000 and 2007, has been declared mentally incompetent to stand trial and is incarcerated at Atascadero State Hospital.

Dealing with those who commit terrible acts of violence, whether psychotic or not, will always pose the gravest of problems for government committed to law and human rights. Punishment as an expression of social solidarity, as well as to provide a guaranteed minimum of incapacitation has its place. People may be responsible for buying into hateful beliefs about others, even when their disease leads them to make deranged judgments based on those beliefs that no healthy person would make. Norway has chosen a strikingly different path to the ours. I'm not sure its the right one. Did the prosecutors give enough weight to his racist ideology? But I do respect Norway's sense of penal restraint. As Saunder's notes, even if Breivik was convicted he could not have faced either the death penalty or life without parole, sanctions which are both inhuman and unnecessary but common in California. But he is also likely to spend a lot longer than three years in secure psychiatric confinement, where Norwegian authorities can hold him for the rest of his life if they deem it necessary for public safety. In the meantime in California, where both Debra Saunders and I live, we have proven that abandoning your humanity and dignity in in the name of security, cannot make anybody safe.

Adding Injury to Insult: Campus Police and University Administrations

Students today at public universities like the University of California and the California State University systems have significant reason to feel insulted. In just the past decade tuition has more than doubled at UC and nearly tripled at the Cal State system. They have to listen to lectures from people like me who went to UC for almost nothing and have had, in many cases, great opportunities to pursue our ambitions and passions, while they face the prospect of graduating with tens of thousands in debt into a job market that is likely to be stagnated for years.

Mobilized by the nationwide "Occupy Wall Street" movement, and with perfect reason (noting the relationship between government for the 1% and the long term strangulation of public higher education) students at several UCs have undertaken non-violent occupations in settings, like Sproul Plaza in Berkeley, that pose no significant burden to ordinary University activities. But rather than finding that University administrations have their back, students, and those faculty and staff protesting with them have been violently set upon by police.

The week before last it was the Berkeley campus, where police used batons on non-violent demonstrators linking arms around a tent encampment (videos and reporting from Bay Citizen here). Yesterday it was UC Davis, where videos clearly show police calmly pepper spraying passive sitting students preparatory to arresting them (NYTimes coverage here).

The Chancellors at both universities have called for investigations, but the real question is why police were ever deployed to clear these assemblies at all. Since 9/11 campuses have begun to define even non-violent protest and civil disobedience as an unacceptable threat to security the prevention of which warrants the ready use of police violence. Videos show a policing approach in which casual use of chemical weapons, non-lethal guns that look like automatic weapons (but shoot cotton pellets), and batons. In the absence of reasonable suspicion of violence, non-lethal offensive police weapons should not be brought to or displayed at peaceful campus protests. They serve only to chill speech, provoke panic, and become a moral hazard in favor of violence. Using police force to clear peaceful campus protests should be a last resort only when negotiations and passive measures have failed to restore vital university functions.

The focus of investigations should not just be on individual police misconduct but on misguided university administration policies that have treated their own students as an intolerable threat to university security. More than even the tuition increases these policies raise the question of whose benefit these universities are operating for.

Governing the Occupy Movement through Crime

In many cities, including most prominently Oakland and New York, tent encampments on public spaces by the Occupy Wall Street movement have been cleared in early morning raids by police (read about the Oakland situation here). This time, at least, police violence seems to have been minimal. But what is regrettable is the use by city leaders of the lame excuse that "crime" problems necessitated the end of the encampments. It may be that the Occupy Wall street movement must generate new meaningful actions to build its momentum, but the claims that the encampments were generating unacceptable levels of crime is both false and reflexive.

To the latter point first. The gist of the argument behind this blog, and the book, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear,is that political leaders facing a chronic legitimacy deficit since the late 1960s have frequently used protecting citizens from crime as the least problematic way of justifying the exercise of power.

In Oakland this played out in almost comic precision. Hemmoraging legitimacy after first clearing the plaza in a violent police sweep and then letting the Occupy encampment be reestablished Mayor Jean Quan seemed paralyzed with indecision about what to do about the camp until a murder on the periphery of the encampment last week gave her a crime cover. Having supported the goals of the occupation and accepted encampment as a protest tactic the Mayor now found an imperative requiring the preventive clearing of the site (read the full story in the SFChron here):

"The encampment became a place where we had repeated violence and, this week, a murder. We had to bring the camp to an end before more people were hurt."

[Based on radio reports this morning, Mayor Bloomberg is also citing public safety as a prime reason for clearing Zuccatti Square.]

While the details of the murder investigation are unknown to me, there is little reason to believe from what we know thus far that the encampment created a context that made such a killing more likely. Far from it. As media attention to the encampment has disclosed to many casual observers, Oakland has loads of homeless men, many of them battling symptoms of mental illness, life long drug abuse, and the soul destroying impact of mass incarceration. The city also has lots of young men punished and pushed out of schools and toward jail (read Victor Rios' superb book Punished for more on that) whose search for dignity takes them into deadly games of gang competition and related honor violence. These troubled populations, frequently churned by law enforcement, prison, and parole, has been a source of crime and insecurity in Oakland for decades; Occupy Oakland didn't bring it there, and based on published reports did not make it worst.

Indeed, as a criminologist I would suspect the encampment may have provided a temporary context and social network that was very positive for individuals marginalized by the empty rungs on Oakland's post-industrial economic ladder and generally punished by government interventions. For a short period, many of these individuals found themselves gathered in a common political and social enterprise with highly educated and employed people who generally don't share the same social network. A more confident mayor of Oakland might have invited the Occupy Oakland movement to set up satellite Occupy encampments in some of the hard pressed Oakland neighborhoods where young people desperately need a positive pro-social movement to be involved in which gives them hope and dignity while teaching them tools of political involvement and non-violence.

What ever the Occupy movement does next it should be judged on cogency of its message and the dignity of its tactics, and not stigmatized by a crime problem that belongs to Oakland, its Mayor and its police department.

The Police Are Not There to Create Disorder....

Other gray hairs will recall this as the first clause of one of the late Mayor Richard J. Daley of Chicago (a man my father honored by calling Joseph Stalin the Daley of world history, read his wikipedia entry here) most famous malapropisms; becoming exasperated at a press conference during the disastrous Democratic National Convention of 1968 the Mayor exclaimed: "Gentlemen, get the thing straight once and for all– the policeman isn't there to create disorder, the policeman is there to preserve disorder."

But create disorder the police did in Chicago, smashing heads of anti-Vietnam war protesters and journalists alike, and leaving the city with an image of violence and disorder that would replace that of Al Capone for a generation. The violence may have played well in the Mayor's reactionary machine politics base, but nationally and internationally it gave the city a black eye. As for the Chicago police, an entire generation grew up thinking of them as fascist thugs, a sentiment exuberantly exorcised by John Belushi and Dan Ackroyd in the ballet like destruction of numerous Chicago Police cars in the movie Blues Brothers (1980).

In contrast, where we lived in a south side neighborhood adjoining the University of Chicago, the tumultuous late '60s and early '70s passed with nary an exciting police-student clash. University of Chicago President Ed Levi (who died in 2000 and whose centenary is this year) tried an unconventional strategy to deal with the campus strife of the 1960s. Levi had a university police force that was reputed to be the third largest force in the state of Illinois at his disposal, but when students dug trenches on the quads and tried to mount a Columbia/Harvard type take over, he resolutely ignored them and refused to call out the police. Eventually, boredom and the Chicago winter cleared the camps without a dramatic media centric confrontation. Levi came out of the period with a reputation as the best university president of his time and was appointed Attorney General of the United States by President Ford. His successful efforts to restore confidence in the legality of executive power in the aftermath of the Watergate and Ford's pardon of former President Richard Nixon, made him one of the top AGs of the 20th century.

Berkeley in contrast suffered multiple violent incidents as anxious administrators, opportunistic politicians like Governor Ronald Reagan regularly unleashed police and ultimately military power to repress the genuine anguish of a generation ripped apart by an an unwinnable or even explainable war. But the University kept repeating its mistakes. I was an eye witness to the most violent incident between People's Park and the present, the "Shanty-town riot" of 1985 (read about the events here). Twenty five years ago this spring, with the apparent approval of Chancellor Ira Mike Heyman (who was off campus that day and I hope badly misled by his advisers) the University authorized a massive police onslaught against a group of mostly student protesters who had built "shanty" structures of found wood and cardboard in the broad lane adjoining California Hall to protest the University's continued investment in corporations doing business in South Africa. Multiple police forces deployed with riot gear to clear a peaceful Shanty town in an ironic role play of real Apartheid tactics in South Africa.

Disinvestment turned out to be a winning cause ultimately endorsed by even the Republican Party and widely credited with helping speed the transition in South Africa. There was no danger that Spring night that warranted a violent police assault on a group that the University was presumably in a relationship of responsibility toward. Outraged students confronted police with the most sustained counter attack they had seen since People's Park. The alleged violent resistant by yesterday's demonstrators (of which I see no evidence) pales in comparison to the rocks and missiles thrown at police that night. I saw it all from the jail bus where I had been tossed along with fellow law student legal observer Osha Neumann before the attack on Shanty town began. The riot left scores of students injured, numerous lawsuits by injured protesters and several nearly wrecked Alameda County Sheriff's buses (yours truly faced felony charges and an official two week ban from coming to campus; the former eventually dropped and the latter promptly ignored).

Unbelievably, despite this clear history, UC Berkeley's leadership has once again over reacted to student demonstrations by calling out not just the campus police, but the infamous Alameda County Sheriff's officers (the Blue Meanies of the 1960s) who as so many times before marched in like the Imperial storm troopers in Star Wars and beat students for no apparent reason (see the youtube video here). What possible reason was there for this senseless creation of disorder that outstripped the disorder it was intended to prevent by a significant degree? Why was preventing a tent encampment on Sproul Plaza deemed a matter of urgency sufficient to risk the injury or even death of students and other protesters? What better place is there for such an encampment than Sproul plaza, a space dedicated to free speech? It is also a space where students can easily participate in a potentially historically important moment of democratic awakening in this country, and without having to miss classes (and which prevents no one else from attending classes or getting to their lab or library as building occupations do).

Our students (as well as everyone else here) are facing the worst economy since the Great Depression, and the rapid disappearance of a public higher education that was delivered to the generations of Californians. The protest sought to tie the rapid decline of public higher education to the disastrous financial crisis brought on by the casino capitalism promoted by the financial industry for its own benefit. They deserve our sympathy and our support, not a boot or a baton in the face.

Mayor Daley had it right the first time. The police are not there to create disorder. Chancellor Birgeneau and his leadership team must explain to this community (both academic and otherwise) the rationale behind decisions that led to this incredibly damaging result; one which has endangered our students, our faculty, and confirmed our reputation as a university that regularly mismanages protest.

Ed Levi where are you when we need you?

David Onek for SF DA

California's dramatic pivot toward giving counties primary responsibility for punishment over a wide swath of persons convicted of felonies, a policy known as realignment, is the most important move toward dismantling mass incarceration in this state in forty years. As I have argued here before, there is both great promise and peril in this experiment. If counties end up sending most of these felons into already often over-stretched county jails for longer sentences than such jails have ever been used for, mass incarceration will only have broken up, like a bubble in a water filled souvenir snow globe, only to reappear in a panoply of fragments. However, if large urban counties where many felony convictions originate, but also where many of the skills necessary to manage crime related risks are concentrated, vigorously pursue alternatives to incarceration, combining smarter risk management with restorative justice methods, California could once again lead the nation in reinventing penality (this time in a good way).

This high risk experiment will play out in each county, and no figure is more crucial to how it comes out than the District Attorney, that is, the elected chief prosecutor who determines what charges to bring and what sanctions to seek for every criminal charge brought in California. In chapter 2 of my book Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear,I argued that prosecutors had emerged as the strongest political expression of the war on crime. While DAs have often moved up into higher office, the war on crime had given them an even more powerful momentum, and had reshaped the aspirations of higher executive officers like mayors, governors, and presidents, who often seemed to vie to be a kind of "prosecutor in chief." As the primary political beneficiaries of growing public concern about crimes, prosecutors played a crucial role as accelerators of mass incarceration; using their wide discretion to send people to prison who don't need to be there, and to send others to prison for decades longer than they need to be there. But that same discretion gives them enormous potential to steer us away from mass incarceration if they choose to, a potential magnified by realignment.

Thus the most important thing voters (especially in California) can do to reduce mass incarceration and help realignment work out in the best direction, is to elect District Attorneys that have their eyes on that prize and have the skill set to achieve it. I wish I knew more about the DA candidates on the ballot up and down the state this Tuesday, and could make recommendations. However I do know enough to make a recommendation in the San Francisco race. I had the opportunity to work with David Onek when he directed the Berkeley Center for Criminal Justice. I have nothing bad to say about any of the other candidates (but I wouldn't want the former police chief of San Francisco to be its DA for a host of reasons that have nothing to do with the current incumbent, but would take several longer posts to explain). David has a unique skill set for this job, combining administrative skill, a powerful commitment to finding innovative ways to reduce crime and increase a sense of justice, and tremendous insight in the research relevant to making the best possible use of the enhanced opportunities created by realignment. If you live in SF, please vote David Onek for DA. If you have friends or relatives who vote there, please send them this post and ask them to consider voting for David.

The main criticism of David is that he has never worked as a prosecutor. But elected DA's do not try cases (unless they want the glory for political reasons), they help set policies for the office and assure that they are carried out effectively. Experience can be a great benefit, but today we have a unique need for leaders who can navigate through dramatic and uncharted change. What we need now, more than ever, are prosecutor-leaders who have not bought into the war on crime/mass incarceration paradigm (which is a risk of anyone who has had too much experience), and who have the leadership skills to bring their line prosecutors into the decarceration strategy. We also need visionary leaders who can help set the agenda for other counties. David is a tremendous listener and communicator (watch his interviews with criminal justice leaders on the Berkeley Law website here) who could define the best practices for realigment throughout the state.

Early Release

Today marks the beginning of a process that is likely to see thousands of federal prisoners convicted under the notorious 1980s anti-crack laws set free years earlier than their original sentences called for. These laws set a 100:1 ratio between crack and powder cocaine for sentencing purposes under federal laws. Harsh mandatory minimum prison sentences (a fad during the late 1980s) that kicked in for people caught possessing more than 500 grams of powder cocaine (a large scale dealer one would imagine), kicked in for someone carrying a mere 5 grams of crack cocaine (who could be merely a user contemplating a binge).

The difference in treatment, which has proven indefensible in criminological or pharmacological terms, had an undeniable racial impact, selecting blacks for especially long sentences. After years of criticism, Congress finally enacted a reform law reducing (but not completely eliminating) the differential and President Obama signed it into law last year. As a result, according to Jessica Gresko's reporting for the AP (read it here) as many as 2000 federal prisoners will go free this year and as many as 12,000 over the next several years, based on sentence recalculations carried out to implement the law by the US Sentencing Commission.

But as much as there is to be said about the perniciousness of the crack cocaine sentencing law, the other part of the story is the importance of the precedent that has been set here about early release. In recent decades, politicians have locked themselves into the view that no one sent to prison, should ever be released early (remember Wilie Horton). As a result most states and federal justice system are criss-crossed with rigid laws, like California's absurd three-strikes law, that lock in very long sentences and guaranteeing that our prisons will become the new retirement system for the middle aged.

That is why despite the distinctive politics behind the crack cocaine sentencing revision, it is a precedent that should be generalized. The releases beginning today are powerful testimony that harsh laws, enacted in the glare of alarming media coverage of a crime "trend" (in that case the new super drug "crack cocaine" that was supposedly turning the inner cities into zombie lands), can be revised. The resulting effects, which will hopefully be carefully studied by criminologists, may offer evidence of the enormous gain our stricken society could gain from pursuing a much broader early release agenda that would see the repeal of so called "truth-in-sentencing" laws that prevent early release through parole and reconsideration of many sentences "super-sized" in the era of boundless prison expansion. Over the coming months and years, thousands of people whose incarceration was once deemed essential for public safety are going to be released. The federal government will save millions of dollars. Thousands of families will be reunited producing incalculable ripples of pro-social effects. Given that most people released are in their thirties and forties, and have served years already in prison, the likelihood is very little new crime will result.

Who sets the captive free

Looking at the pictures of Israeli soldier Gilad Shalit being released from six years of captivity under the Hamas regime in Gaza, and the scenes of scores of Palestinian fighters being released from prisons in Israel, I could not help but think of the verse in the traditional Jewish morning prayers, the Amidah, in which the worshiper praises God for many kinds of acts on behalf of humans including, "who sets free the captive" (in some translations). Those words have always amazed me. I understand why we would need God to raise the dead, and perhaps to heal the very sick, but cannot we free prisoners on our own?

There is of course, an interesting theme in TORAH concerning the role of God in human decisions about freedom (think of Pharaoh's heart being "hardened" against freeing the Israelites); as if the almighty were daring us to raise the more fundamental question of when humans really can choose anything freely. But it also reminds us that there is something divine in the freeing of any prisoner, an act of trust, faith, and belief in the possibility that tomorrow will be different, and that we who hold the captive can escape our own prison of fear.

For now, as Ethan Bronner reports (here) in today's NYTimes, the site of prisoners being released has hardened hearts on both sides of the Israel/Palestine conflict.

Israelis, at first thrilled at the sight of their liberated soldier, were angered by how he looked — frail, wan and underfed.

Hamas officials said their members had been subject in Israeli prisons to “torture, compulsion and revenge.”

The overall strategic assessment, appears equally bleak, with the deal having strengthened to two elements in the Israel/Palestine sovereignty conflict most associated with rejection of compromise, Hamas and Netanyahu. Call me an optimist but I think the shifting of the conflict, even temporarily to the prisoner front is a good thing. Each side and the world should now look hard at these prisoners and demand an accounting for how they were treated.

In that regard Hamas should hang its head in shame for releasing Shalit in a visibly emaciated and sickly state. Any claim in the world that they represent the legitimate aspirations of Palestinian people is put into question by this image, and by their decision to deny Red Cross access to their prisoner. Shalit's own testimony will tell us more about the conditions under which he was kept. Perhaps Hamas can convince us that it's own status as a hunted outlaw organization, and the all seeing eye of Israeli intelligence, explains the necessity of both conditions, but it will be against a heavy burden of proof on a regime that has all the attributes of statehood other than legitimacy.

At the same time, they should present their prisoners to the world to back up their claims of "torture, compulsion and revenge." These are the right questions to ask of the means and motive of any regime of imprisonment, no matter how presumptively valid (Hamas might want to look into the mirror of "compulsion and revenge" while they are at it). Israel also must regret its ill advised decision just this September to strip Palestinian prisoners of many of their opportunities for communication and education, to increase pressure on Hamas to release Shalit. Nobody assumes Israeli prisons are as crude as the conditions under which Gilad Shalit was held, but long term imprisonment presents a path to degradating and inhuman treatment just as inexorable as bad conditions and lack of nourishment. Things that can seem like frills in the abstract, communication and education, become essential to the maintenance of human dignity when the years turn to decades. Israel must also question the validity of holding so many prisoners and for so long. Mass incarceration makes no more sense as a military strategy than it does as a crime control one. Suicide bombing has stopped because of the barrier wall and the political choice of Hamas to rely on rockets, not because there are not enough demoralized young people to carry them.

I am most hopeful because the debate about the prisoners has the chance to elevate a conflict that has been for too long about blood and soil, and bring it back to the real interests of the human beings on both sides. The Egyptian video-taped interview of Gilad Shalit as he was transferred from the custody of Hamas may raise ethical questions, but you could not escape the simple dignity of Shalit's quiet and deliberate answers to the journalist's questions. The story of a mother fainting on hearing the news that her daughter, an attempted suicide bomber, would be on the bus returning after twelve years in prison (read Chris McGreal's reporting in the Guardian) reminds us of the shear physical power of our bonds to our children.

The captive, stripped of the elements, bomb belts and uniforms, which once made him or her a threat in the eyes of the captors, becomes, in the end, a human being, and a representative of the divine in all of us.

Realignment and Beyond

Earlier this year, Governor Edmund G. Brown Jr. signed Assembly Bill (AB) 109 and AB 117, historic legislation that will enable California to close the revolving door of low-level inmates cycling in and out of state prisons. It is the cornerstone of California’s solution for reducing the number of inmates in the state’s 33 prisons to 137.5 percent design capacity by May 24, 2013, as ordered by the U.S. Supreme Court.

As the above quote from the California Department of Corrections and Rehabilitation's realignment website, suggests, it is the most important shift in penal policy in California in forty years, but few appear to care about it. Desultory media coverage is matched by the equally desultory opposition of the formidable crime warriors that line the corridors of the California legislature. The title is vague, and perhaps designed to sound boring (even if it hints of profound change). Even while describing it as historic, the Governor has largely suggested it is a necessity for complying with the recent mandates of the federal court with the modest goal of achieving a prison population that is at 137.5 percent of design capacity by 2013. But make no mistake about it, realignment legislates the end of mass incarceration as we've known it.

Realignment has lots of moving parts but two particularly significant elements. The first redefines the punishments available for felonies in the state. Historically, following the common law tradition, California law defined as a general matter, death, or state prison, as the authorized punishments for all felonies (unless otherwise prescribed by the specific offense terms), with a limited option for county jail for a period not to exceed one year. Realignment would remove that one year cap, making county jail a potential sentence for felonies. The law however excludes "serious" or "violent" felonies (technical terms including scores of specific offenses, some not as serious or violent as you might imagine), as well as a laundry list of non-serious, non-violent offenses that law enforcement wanted excluded (mysteriously including "dealing in horse meat"). (download a legislative summary here).

This provision might seem to only trade one form of incarceration, state prison, for another, county jail time; a cynical shell game designed to relieve court pressure without altering our basic addiction to incarceration. There is more potential for change here than meets the eye. Historically it was assumed that persons sentenced to more than one year of incarceration were better off in prisons which were larger facilities, with more opportunities for education, rehabilitation, and employment. Today, after decades of building warehouse prisons aimed achieving only custody, the state prison system is a humanitarian disaster. County jails may have their own problems, but they are typically located closer to the communities that California's prisoners come from, permitting family ties to be sustained and opening access to educational and rehabilitative resources that are far more available, at least in the urban counties from which the vast majority of prisoners come. Potentially more importantly, the law grants broad new authority to counties to assign "low risk" inmates in county jail to home arrest and electronic monitoring. This gives counties the option to replace traditional brick and mortar custody with enhanced supervision and surveillance methods, a move that criminologists have been advocating for decades, but which has been considered an anathema in California's "total incapacitation" penal policy.

Equally important, realignment fundamentally reshapes parole supervision in California. Since the late '70s, virtually all California state prisoners faced a 3 year period of parole supervision in the community under the authority of state parole officers and subject to return to prison for even technical violations of parole. Once parole worked as reentry agency with the ambition of keeping prisoners from going back to prison. But as documented in my first book, Poor Discipline: Parole and Social Control of the Underclass, 1890 to 1990s, California turned its system into a fast-track system for recycling parolees back to prison. Starting in the 1980s, roughly half of California prison admissions have come from parole revocation. The resulting churning of this population, with very short prison sentences (typically 4 to 6 months) for revocation, followed by release with little planning or provision, has been widely condemned for wreaking havoc with prisons while providing less than zero crime control benefits (in effect creating crime). Realignment keeps the three years of post-release supervision but moves responsibility for that supervision to county probation agencies for a significant portion of the prisoners (excluding the serious and violent offenses, as well as various sex offenses). Parolees under county supervision will no longer be subject to return to state prison for technical parole violations and by the authority of the Board of Parole Hearings. Now county courts, the same authorities that sentence offenders charged with crimes, will have to decide on the appropriate sanctions (which could include county jail).

As this blog has advocated before, reducing the role of state parole supervision is by itself a step forward. County probation, while subject to resource constraints, has sustained an institutional culture more oriented toward rehabilitation and reentry than state parole which was assimilated into the custody oriented approach of the prison system decades ago. Moreover, by channeling decision making from the rubber stamp Board of Parole Hearings, which rarely rejects re-imprisonment for parole violations, to county judges, realignment ends the perverse incentive to use state prison as a tool for all kinds of low level violation behavior. Judges who see both parole violators and newly criminally charged defendants can apply a common standard of public safety to both groups.

These two aspects, widening the role for counties in the punishment of felonies and eliminating (or at least significantly reducing) the wholesale recycling of parolees back to state prison for technical violations, go a long way to ending the policy of mass incarceration in California. The heart of that policy was the assumption that removing offenders of all sorts from their communities and placing them in state prisons would make those communities safer. This indiscriminate quality to mass incarceration is a significant part of what led the scale of imprisonment to grow beyond any reasonable bounds and become a humanitarian crisis in California. It also contributed to abandonment of any ambition to provide rehabilitative programming in California prisons or to invest in significant reentry efforts for those leaving. If crime goes down simply by locking more potential criminals up, than rehabilitation and reentry are irrelevant.

These changes are historic and great credit goes to the Coleman and Plata litigations (culminating in the Brown v. Plata, Supreme Court decision in May 2011) which has dragged the state's political class into a long delayed reckoning with our fatally flawed penal system. But realignment leaves in place, and indeed reinforces, one crucial remaining aspect of mass incarceration, the extreme extension of sentences for serious and violent crimes. California prisons are increasingly filled with prisoners sentenced to lengthy or even life terms. The lifers, a group that due to Three-Strikes now includes roughly a fifth of the entire prison population, faces decades in prison and poor prospects for ever being paroled (although there are signs the parole process may be becoming unfrozen). Realignment will only increase the concentration of such prisoners in the state prison system. This will leave us with a smaller prison population perhaps, but one made up of prisoners with little hope or incentive to creating a dignified and safe culture inside prisons. Indeed the management problems created by such a concentration of hopelessness could make our prisons even more degrading than they are today for both prisoners and prison staff.

California needs to fundamentally revisit its sentencing policies for serious and violent crimes. Three-Strikes needs to go and parole release mechanisms recalibrated to assure that prisoners who avoid conflicts and work on their risk factors see a realistic path to freedom. These will be far more controversial moves than realignment and opposition from both Democrats and Republicans in the legislature (and presumably the Correctional Officers union) will be fierce. One step, however, that the Brown administration could take now and with no legislative authorization needed, would be to announce the end of the supermax regime in place at units of Pelican Bay and Corcoran state prisons among others. It is these units, Secured Housing Units, as they are described in California, that are the main focus of the hunger-strike by prisoners both in and out of the SHU, which is continuing across multiple California prisons this week.

The SHU regime of being locked down to your cell for nearly 23 hours a day every day (and in California amazingly you are in many cases sharing this tiny space with a second prisoner) in adds sustained physical suffering and potential psychological disintegration to the already degrading circumstances facing long term inmates. Assignment to a supermax or SHU unit is an administrative decision taken within the Department (which is the executive branch) and not part of the legal sentence imposed by judges based on legislation. Moreover the evidence about violence inside the prison system suggests it is increasingly difficult to justify the SHU as a management tool. An announcement that the SHU system would be wound down and replaced by new strategies for addressing those prisoners who do pose a serious risk to prison staff and other prisoners within two years (that is by the time the Brown decision requires the population reduction target to be reached) would send a ray of hope into this dark core of mass incarceration that is, as yet untouched by realigment. In subsequent posts I will address some of what these new strategies could look like.

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.

California Reconsiders (Its) Penal Isolation

A hearing yesterday in Sacramento of the Assembly Public Safety Committee was another remarkable sign that California's once frozen penal policies are beginning to thaw and change. Isolation of "high risk" prisoners, in a lock-down environment designed to promote security to the exclusion of all other penal objectives has been a pillar of California's prison system since the state opened one of the largest supermax prisons in the country, the Secure Housing Unit (or SHU in the inevitable bureaucratic parlance) of California State Prison Pelican Bay in 1989. Today California houses more than 3,000 prisoners in SHU conditions at Pelican Bay, Corcoran, and in smaller units at two other prisons (read Keramet Reiter's recent study here). Despite three decades of criticism, a massive court intervention in the 1990s, and piles of academic research suggesting that holding prisoners in such circumstances for prolonged periods was dangerous and counter productive, California's prison officials have always steadfastly maintained that the regime is an essential barrier against the dominant gang culture among prisoners. At yesterday's hearing however, a representative of the California Department of Corrections and Rehabilitation was promising real change (read Sam Stanton's reporting in the Sac Bee here):

"I'm not talking about having another study," Scott Kernan, undersecretary at the California Department of Corrections and Rehabilitation, said at a legislative hearing. "I'm talking about having some substantive changes."

The Department's change talk may in fact be coverage to buy more time and do more studies but there are other indicators that whether sincerely desired or not change is coming.

* The hunger strike led by prisoners in the Pelican Bay SHU this July, which reached as many as 6,000 prisoners statewide, received significantly more media attention and expressions of public concern than the Department (or me for that matter) expected. This strike was particularly effective in getting attention to how extreme California's practice of supermax is, especially the long time prisoners spend in theses conditions (an average of 6.8 years according to the testimony yesterday) and the fact that it is imposed not for particular crimes or violations but as a preventive measure taken against supposed gang involvement.

* The Supreme Court decision in Brown v. Plata handed down in May not only took away any legal hope that the state could shrug off lower court orders to reduce prisoner populations by tens of thousands, but also painted California's overall penal system as distended, irrational, and degrading. The ongoing budget crisis makes the super-expensive style of incarceration especially hard to defend but Brown may be even more important is a cultural shift that is making the whole enterprise of mass incarceration morally harder to defend. A former SHU prisoner, Earl Frears, who testified yesterday put it powerfully,""I am human, and by being human I do have certain rights … ." I think that is message Californians are increasingly able to hear.

Fixing California's extreme SHU practices is overdue, as is a fix for crazy sentencing laws like Three Strikes under which many SHU prisoners serve time without end, but if this moment is as promising for change as I think it is, we need to push this reconsideration of isolation in two further ways.

First, California has isolated itself for decades from national and international concerns about prison conditions and the tolerable scale of imprisonment in a democratic society that maintains respect for human rights. Our fear decades of high crime and paranoia during the 1970s and 1980s, left the state with a kind of political PTSD in which any measure against crime, no matter how costly, futile, and inhuman, was acceptable if it painted criminals/prisoners as monsters with no claim on human dignity. As a result prison policy has lived in a moral and intellectual lock-down in which the news that prisoners are humans has a startling quality to it. (Germany didn't end up where it found itself in 1945 overnight either).


Second, we need to end the larger policy of addressing community insecurity by isolating individuals in state prison. The era of big prison government must be declared dead and over. Prison remains an appropriate penal response to the most serious crimes and threatening criminal records. We cannot, however, make communities more secure by incarcerating whole neighborhoods full of residents. Realignment must become more than a way to hide prisoners from the federal courts; it must become a commitment to addressing community insecurities precisely and directly rather than through mass incarceration.

Justice and Social Control? Neither support harsh sentences for rioters

Does punishment restore a state of justice that has been ruptured by a crime, or is it a tool of social control? That is a question on which a great deal of punishment and society scholarship turns. It is also one raised a new by the latest turn in the London riot of 2011 story, the wave of very harsh sentences for riot related crimes. As Polly Curtis and Vikram Dodd report in the Guardian (read the whole story here) that legal experts in the Liberal Democratic party have expressed grave misgivings about the substantial prison terms being handed down in many such cases, while Prime Minister David Cameron has praised judges for using their considerable sentencing discretion to send a message on rioting. The debate may force a confrontation within the coalition at a time of high stress.

Lord Macdonald, who led the prosecution service in England and Wales for five years, warned that the courts risked being swept up in a "collective loss of proportion", passing jail terms that lack "humanity or justice".

Meanwhile his fellow Liberal Democrat peer Lord Carlile, the barrister who was until this year the government's independent adviser on terrorism strategy, warned against ministerial interference in the judicial process, arguing that "just filling up prisons" would not prevent future problems.

David Cameron, who last week promised severe punishments for rioters, saying he hoped courts would use "exemplary" sentences to deter future riots, praised the sentencing decisions, which have included two jailed for four years each for inciting riots on Facebook – riots that never took place – and one person sent to prison for six months for stealing £3.50 worth of water.

Is it just to punish someone more harshly because the crime they committed took place in the context of an alarming collective disorder? It depends on whether the crime was itself aimed at taking advantage of an existing social disorder. Those that rob people who are fleeing from a natural disaster, knowing there is not likely to be much help for them, or who burglarize their vacated houses, arguably deserve more severe punishment. But in the case of the riots the crimes are themselves, in aggregate, what makes the disaster. Indeed, once we acknowledge the collective aspect of riots, there is an argument that participants are less culpable for their crimes since they are giving into a much observed tendency to follow the example of others. Instead, this appears to violate one of our central values about criminal punishment, that people face punishments proportionate to the their desert and uniformly with equally culpable individuals. Instead we have the price of crimes moving like equity prices to reflect gyrations in public anxiety.

Nor is it clear that tough sentences for rioters is good social control for the increasingly tight resources of the UK and the US. As Lord Carlisle suggested in the passage quoted above, there is no reason at this point in our history to view expanded incarceration as a good way to bolster social control. England has more than twice the incarceration rate it had in the mid-1990s, a period of few if any riots. Some no doubt believe that future rioters will heed the harsh lesson being taught their cousins. No doubt Charlie Gilmore, university student (and son of Pink Floyd guitarist David Gilmore) who was given a 16 month prison sentence for participating in some disorderly events during the student fee demonstrations last December (read Stephen Bates' reporting in the Guardian) is unlikely to offend in that way again. That may be true for some of the individuals being punished now as well, although we will never know whether far more lenient but still undesired sentences would accomplish. But it is not clear it is true for the next Charlie Gilmore or young riot looter.

Chairman of the Board

Whether you view him as the archetype of the neoliberal marketization of security or the urban miracle worker who reduced crime while healing the reputation of police force tarnished by racism (at least in LA), Bill Bratton, who has been police chief of both New York City and Los Angeles and is now chair of Krull an international private security consulting firm, is the world's most influential police thinker (the Patrick Colquhoun of our time). Announced plans by British PM David Cameron to meet with Bratton prompted interviews with the chairman of the board of Krull in both the Guardian [read David Batty's story here](which calls Bratton the PM's new crime adviser) and the New York Times [read Al Bakers story here].

While the upper ranks of British policing are sure to bridle at yet another sign of the PMs contempt for the current leadership, Bratton's public profile is one they might, in fact, benefit from as they negotiate a budgetary modus vivendi with the real power man in White Hall, Chancellor George Osborne. For one thing, Bratton's LA profile is very much about winning the hearts and minds of frontline communities that experience the brunt of the war on crime and drugs. The PMs Dickesian rant this week in which he battered the police for not snuffing out the riot to start with and held out harsh justice as the only way to curb the feral children of the underclasses is not compatible with Bratton's public statements or profile. In both interviews he stated baldly that "“You can’t just arrest your way out of the problem,” adding in the NYT that “It’s going to require a lot of intervention and prevention strategies and techniques" and in the Guardian that:

"Arrest is certainly appropriate for the most violent, the incorrigible, but so much of it can be addressed in other ways and it's not just a police issue, it is in fact a societal issue,"

Neither statement is compatible with Cameron's Victorian celebration of the Big Society as the simple solution to most social problems. Nor is Bratton's focus on putting racial justice into practice inside the police going to sit easily with a government that thus far has regularly made vaguely Malthusian statements about immigrants and the limits of community tolerance for diversity.

Intriguingly, Bratton and the New York effort he led in the 1990s is perhaps best known for using effective policing to drive down reliance on incarceration, thus helping New York to be come the leading state thus far to have abandoned the practice of mass incarceration which is destroying government and society in California and much of the nation. Given the disappointing recent follow ups to the coalition government's once promising objectives of reducing the UK's incarceration rate, Cameron could do worst than to listen to Bratton and Ed Miliband should schedule a chat too.

Finally, police in the UK should appreciate that Bratton's strategy has not generally been a plan for community disinvestment. Like most surge strategies, it can only be viewed as cost reducing in the long run when tied to real reductions in incarceration.

There is a dark side to the Bratton rap, however, and that is the emphasis on fighting gangs with sophisticated technologies and strategies. Gang talk should always be filtered through two facts. One is that people, and young people in general, almost always act in and through social networks. So behind the term "gang" we have no problem finding something real. On the other hand police, politicians, and ironically some usually incarcerated "gang members" have a huge huge huge incentive to blow up that social network reality into something far bigger and badder than it really is. Gangs will be with us always, especially as long as we cling on to war on crime metaphors that favor a way of imagining crime as an organized army of enemies.

Bibliographic resource:

The debates that Bratton's intervention are likely to unleash will involve urban geography and race in countless and overlapping ways. Fortuitously I've just learned from Stuart Elden that the journal Society and Space--Environment and Planning D, has posted "virtual theme issue" on "urban disorder and policing" that includes some classic and more current papers from the journal on issues of race, policing, and urban disorder. The issue will be open for reading without the usual electronic subscriptions until October.

Culture or Poverty? Try Dignity

British Prime Minister David Cameron's speech (listen to excerpts here) to Parliament yesterday on the recent rioting dripped with all the racially charged rhetoric of forty years of war on crime in both the US and the UK (read the Guardian's backgrounder by Nicholas Watt here):

This is not about poverty, it's about culture. A culture that glorifies violence, shows disrespect to authority, and says everything about rights but nothing about responsibilities. In too many cases the parents of these children – if they are still around – don't care where their children are or who they are with, let alone what they are doing. The potential consequences of neglect and immorality on this scale have been clear for too long, without enough action being taken."

Cameron was clearly hoping that Labour Party leader Ed Miliband, would fall into some Michael Dukakis like time warp and begin to blame the rioting on Cameron's severe cuts in social spending. No such luck, predictably Miliband attacked instead on the New Labour ground that the coalition has imposed cuts on police budgets all over the country. Everyone seemed to agree that the police, perhaps aided by the army, were the thin blue line separating civilization from the chaos spread by the brawny spawn of the underclasses. Even the left oriented Guardian's writers have speculated on whether announced plans to reduce incarceration has sapped the deterrent threat of prisons (read Zoe William's interesting column discussing criminological views of the riots).

Observers should be reluctant to embrace either the view that rioting is the inevitable or at least direct result of increasing poverty on the one hand, or the product of a culture, i.e., practices of child rearing, which produce violent and narcissistic adults, on the other. The alternative view is well expressed in another Guardian comment by Seamus Milne (read it here) who notes that riots, unlike the dangerous classes, are not with us always, but why?

This time, the multi-ethnic unrest has spread far further and faster. It's been less politicised and there's been far more looting, to the point where in many areas grabbing "free stuff" has been the main action. But there's no mystery as to where the upheaval came from. It was triggered by the police killing a young black man in a country where black people are 26 times more likely to be stopped and searched by police than their white counterparts. The riot that exploded in Tottenham in response at the weekend took place in an area with the highest unemployment in London, whose youth clubs have been closed to meet a 75% cut in its youth services budget.

For my money it is not poverty that links the cuts in social benefits, to rioting, but dignity, or one should say, indignity. While many of the cuts have yet to take place yet, the communication of who has standing in our societies has come through loud and clear. The world's leaders tremble over the narcissistic rage of bond holders whose pursuit of shameless risk free profits in investments they should have known were gambles, has placed them and the entire global financial structure in peril. But in Washington and London (and one suspects in Paris and Berlin as well) there is no element of urgency about the situation of communities locked into degrading helplessness by anomic and dysfunctional education and employment practices. It is this sense of relative deprivation that goes to the basic sense of dignity, the equality of which is essential to the survival of any truly democratic society. The reason young people, apparently of many races and in some cases classes, are so prone to riot, I would suggest, is not their lack of impulse control or high discount rate on the future, but their heightened sense of dignity/indignity.

In the meantime, it is not lost on those rioters that the deep financial crisis that has cast both the US and the UK into huge budget deficits was caused by behavior which has been frequently and obviously compared to looting. Where is Prime Minister Cameron's outrage at the poor parenting and deformed culture of his class peers in the executive suites of the top London and Edinburgh banks? Where is London Mayor Boris Johnson's statement that the City of London's efforts to aid corporate clients in avoiding lawful taxes (thus furthering the deficit crisis) was "criminality, pure and simple"? And while both Cameron and Johnson are invoking painful punishment to malefactors as the only sensible government response to rioting, there has yet to be a single prosecution in either the US or the UK for behavior involved in causing the crash (put aside criminals like Madoff whose crimes were discovered because of the crash). If there is a failure of deterrence, it is there.

Policing the Crisis

One of the more interesting angles on the violent rioting going on in parts of London over the past three nights is the increasingly toxic relationship between the Conservative party dominated coalition government and the police (especially London's Metropolitan Police Department). In an insightful backgrounder in the Guardian, Sandra Laville points out that when Margaret Thatcher faced similar rioting in the 1980s over a poor economy and cuts to government social benefits, she could count on her close relationship to police on whom she frequently lavished ideological support and which was a part of government she did not seek to cut. In contrast, David Cameron's mix of law and order populism and cross the board cuts in government spending have put his government increasingly at odds with police forces around the UK that are facing both severe cuts and the prospect of rule by locally elected police commissioners (a move many have described as an effort to unleash more American style populist pressure on policing).

At the same time, both Conservatives and the Metropolitan police leaders have been badly damaged by their close association with Rupert Murdoch's toxic tabloid newspapers, especially the now terminated News of the World which has been shown to have engaged in wholesale violations of privacy laws by "hacking" into the mobile phone voice mails of countless celebrities, politicians, Royals, and most outrageously, murder victims and the families of military personnel killed in Afghanistan. Metropolitan Commissioner Sir Paul Stephenson announced his resignation last month after facing massive criticism for the fact that his own media adviser was a News of the World heavy and that one of his top commanders, John Yates, had rejected a renewed investigation of the phone hacking scandal after it was brought back to life by coverage in the Guardian during 2009. Stephenson, whose resignation was not rejected by either London Mayor Boris Johnson (a Conservative) or Prime Minister Cameron, publically slammed the PM by drawing the not fantastical parallel with the Prime Minister's employment of Andy Coulson, former editor of the News of the World who had resigned that job because of hacking problems, as his major media adviser during the 2010 general election as during the first half year of his government (Coulson resigned as the hacking issue heated up again in December). [The fact that both party leadership and police leadership were operating on political scripts written by tabloid media wizards adept in playing on the themes of fear and scandal is worthy of a post its own right.]

Against this tense background, the coalition government's commitment to substantial cuts in almost all government spending program (excluding some health, but that is facing its own coalition led upheavals) and student fee increases for university students has generated increasing public order problems for the police, especially in London. Since the spending cuts were announced last Fall, there have been several massive demonstrations in London that have spilled over into riotous behavior by fringe groups and major embarrassments for both the police and the government. And now, the worst rioting in a generation. To add to the sense of existential crisis for the tradition rich Metropolitan Police, according to Laville, Cameron would like to see former New York Police Commissioner (and since global security entrepreneur) Bill Bratton as the new Commissioner in London.

Like Ronald Reagan in the US, Thatcher could combine hostility to government welfare and regulation while strongly identifying with the military and criminal justice aspects of state power. That option seems to be foreclosed precisely as the global economic restructuring of the once rich west picks up its pace and seems likely to place governments of all parties in the position of cutting military and security budgets while continuing to generate excess insecurity for their populations. It will take a leader in the UK or the US of real vision to talk their respective publics down from the crime fear based consensus on security that Reagan and Thatcher helped promote, and which both Clinton and Blair expanded on, while navigating toward a new economic model that can produce sustainable economic growth (rather than debt based construction booms and busts). Both David Cameron and Barack Obama once looked like leaders who might have such a vision. Right now I wouldn't bet on either.

Punished: The Culture of Control as Seen from Oakland

Punished:Policing the Lives of Black and Latino Boys by UC Santa Barbara sociologist Victor Rios and should be on your summer reading list if you are interested in how the culture of control works. Rios closely studied a group of 40 Oakland youths of color as they navigated the terrain of poverty in a city governed through crime. Rios, who himself came up in the Oakland gang scene before receiving a doctorate from UC Berkeley, has an unparalleled set of insights into how the logic of crime control has pervaded the institutions of everyday life in a city like Oakland and come to shape the identities and aspirations of young men of color.

The most powerful insights in the book take us into how routine physical and especially verbal harassment by police of young men of color erodes their often significant positive aspirations and anticipates the pains of formal criminalization and punishment. The police ethno-theory of crime is that young men of color are so full of pride and arrogance that only a constant stream of insults and injuries can dissuade them from delinquency and drift. Nothing could be further from the truth. It is not just, or even primarily racialized assumptions about these youth, but deeply faulty assumptions about the crime risk they (police) themselves face in low income urban neighborhoods, that drives these logics.

The study does far more than critique, however. By giving insight into how the effects of routine degradation push youth toward seeking a more dignified life in gangs, Rios points the way to truly effective crime reduction strategies. It is a cliche, but in this case true, that this book should be on the desk of every police chief, school principal, and community agency director in urban America.