Since it opened on Broadway in 1987, the musical Les Miserables has captured the American imagination, running until 2003; the fourth longest running show in Broadway history. The movie version, starring Russell Crowe and Hugh Jackman, just opened and the show I saw last night was packed. The story, based on Victor Hugo's 1862 novel of the same name, tells the story of Jean Valjean, a peasant condemned to 19 years of slavery in prison for the crime of stealing a loaf of bread to feed a starving nephew. Embittered and degraded by his prison experience, Valjean commits a property crime almost immediately against a kindly priest who had given him shelter for the night. Saved from re-imprisonment by the priest's refusal to accuse him, Val Jean commits himself to life of service and virtue, a path he concludes he can only follow by breaking his parole and going underground. The rest of the story tracks his success and efforts helping others always shadowed by a police officer named Javert who is obsessed with tracking down and re-imprisoning Valjean.
The battle of these protagonists is set against the suffering of the French poor in the years after the defeat of Napoleon and the revolutionary sentiments stirring in Paris but the moral drama comes down to two questions. First, does justice require absolute adherence to the letter of the law and condemnation of those who break it, or instead to meeting human needs and showing mercy and forgiveness to other? Second, can a person who commits a crime change, or do they carry a moral failure that will always reassert itself. Valjean who broke the law only to save a child and is himself saved by the mercy and forgiveness of the priest embodies the ideal of justice as humanity. While his criminality seems confirmed by his committing a crime soon after being released from prison, he devotes the rest of his life to hard honest work and to helping others. Javert embodies the ideal of justice as strict adherence to law. Although surrounded by evidence that the savage inequalities of French society makes the protection of the law a cruel hoax, Javert believes that there can never be a greater priority than obedience. Javert also believes that once a criminal, always a criminal. In each of their encounters, Javert reminds Valjean that he is a dangerous criminal who will always return to committing crime. Of course, the audience has no problem deciding which side justice and morality are on. To my observation, nobody roots for Javert to catch Valjean and return him to prison. We all want Jean Valjean to remain free.
Although the story is French, and the musical production originally British, American audiences love it deeply, and recognize in Jean Valjean a classic American hero; a character who is redeemed from a life of crime by the intervention of others, and through their own commitment and courage attain both worldly success and moral virtue. But herein lies the irony. If we Americans identify with Jean Valjean, why does our justice system, more than any other in the world, embody the spirit and philosophy of Javert? In no other nation are people so routinely incarcerated for breaking the law, no matter how trivial the violation, or compelling the need behind it. Moreover, in the very decades that we have been lining up to see Les Mis, we have enacted a legal system committed to the inflexible imposition of harsh justice and the impossibility of reform. Indeed our state and federal courts today are largely in the hands of Javert and his disciples.
Javert himself provides two interesting clues to why Americans both dislike and embrace the harsh version of justice he represents. First, Javert repeatedly refers to Jean Valjean as "dangerous" and there is a hint that his tremendous physical strength, and strong emotions, contain some more general menace. Americans in the violent 1970s and 1980s seemed to accept that security requires us to ignore our intuitions about justice (a theme that continues in the current war on terror). Second, Javert discloses that he himself is from an impoverished background, but has obtained success without breaking the law. In Javert's zeal to punish Jean Valjean is disguised a need to deny that they have anything in common. Likewise American punitiveness is powered in part by a need to maintain a moral gulf between the goodness we imagine in ourselves, and the evil it must be defined against.
Friday, December 28, 2012
Wednesday, December 12, 2012
Put a fork in it: The paper of record declares Mass Incarceration Dead
So forgive my mixing New York metaphors and class signifiers (I've never really lived in Gotham), but as cultural markers go today's frontpage story in the New York Times, using the phrase "mass incarceration" and declaring it dead (or at least out of favor among everyone they know and like) is an important occasion in the life of those of us who want to see it so. Transformative social policies, penal and otherwise, are primarily acts of imagination and John Tierney's article, which spilled over into two full pages of the national print edition, offered a wide ranging and thoroughly critical look at some of the policies that have defined our penal sensibilities for the past forty years. Tierney, no less the Times "Findings" columnist, promises more to come, but today's dose offered up a large helping of reportage on how the policy elite, particularly nationally prominent social scientists and the politicians who sometimes seek to find space for innovation, now view mass incarceration.
Tierney's coverage (and the consensus it may have captured) is highly concentrated on one part of mass incarceration, the war on drugs. The article profiles half a dozen Americans who have already served years, sometimes decades, on Life Without Parole Sentences, for non-violent drug crimes, generally involving possession of large quantities of drugs for sale, and many of them were accomplices with a less substantial role even in that crime than others. As the profiles make clear, none of these prisoners, and many others like them, have done the kind of unforgivable things that most American associate with LWOP sentences, namely murder, or at least kidnapping, rape, child sexual abuse. Nor on an individual level do any of them pose any significant risk of committing those kinds of acts in the future. Instead, their incarceration is premised on the prospect that LWOP sentences would deter many from entering drug dealing, and incapacitate others committed to the life.
Tierney's reporting is particularly significant for naming mass incarceration as such (even if misses the opportunity to cite or interview some of the social scientists who named as it such, like David Garland who is a couple dozen blocks away at NYU). After opening with Stephanie George, a woman sentenced to LWOP for drug possession more than a dozen years ago, Tierney moves beyond the individual to place it in
Also significant is that Tierney traces the genealogy of mass incarceration from policy to political success through the enormous intellectual influence of the late James Q. Wilson, a political scientist who taught at Harvard, UCLA and Pepperdine, and whose book Thinking About Crime (originally published in 1975) was in my view the key text of mass incarceration in its embryonic form. His framing of crime as an economic and later an almost biological problem, caught the imagination not only of the conservative Republicans he personally aligned himself with, but many leading Democratic politicians as well (for my own version of the genealogy see my "Mass Incarceration: From Social Policy to Social Problem" in Joan Petersilia and Kevin Reitz, The Oxford Handbook of Sentencing and Corrections"). According to Tierney, mass incarceration is now viewed as empirically dubious by contemporary social scientists. Stephen Levitt, one of the most prominent exponents of the thesis that mass incarceration worked (at least until the mid 1990s), suggests that now the marginal value of the prisoners being incarcerated is so low from a crime control point of view that we ought to have at least a third fewer of them. Criminologists Peter Reuter and Jonathan Caulkins note that the declining level of drug prices and wide availability have conclusively proven that locking up drug dealers cannot shrink let alone stop that market.
The change here is not in the social science, where the consensus was against mass incarceration a decade ago, but in the sense that it might matter to politicians (especially at the state and local level who have the most to gain from shrinking correctional budgets) and that it might be safe to come further out in this nice warm water of policy consensus. Of course the cultural salience of papers may be shrinking. The paper of record is not what is was in ''64 when Abe Rosenthal helped make living in cities seem insanely dangerous from a crime perspective by blaming the Kitty Genovese murder on bystander effects (which come up in Joe Nocera's column this week). The problem is that with penal matters things can get hot fast. Thus a few notes to keep in mind as we watch the further role out of this important series of columns and the response to it.
Tierney's coverage (and the consensus it may have captured) is highly concentrated on one part of mass incarceration, the war on drugs. The article profiles half a dozen Americans who have already served years, sometimes decades, on Life Without Parole Sentences, for non-violent drug crimes, generally involving possession of large quantities of drugs for sale, and many of them were accomplices with a less substantial role even in that crime than others. As the profiles make clear, none of these prisoners, and many others like them, have done the kind of unforgivable things that most American associate with LWOP sentences, namely murder, or at least kidnapping, rape, child sexual abuse. Nor on an individual level do any of them pose any significant risk of committing those kinds of acts in the future. Instead, their incarceration is premised on the prospect that LWOP sentences would deter many from entering drug dealing, and incapacitate others committed to the life.
Tierney's reporting is particularly significant for naming mass incarceration as such (even if misses the opportunity to cite or interview some of the social scientists who named as it such, like David Garland who is a couple dozen blocks away at NYU). After opening with Stephanie George, a woman sentenced to LWOP for drug possession more than a dozen years ago, Tierney moves beyond the individual to place it in
a revolution in public policy, often called mass incarceration, that appears increasingly dubious to both conservative and liberal social scientists. They point to evidence that mass incarceration is no longer a cost-effective way to make streets safer, and may even be promoting crime instead of suppressing it.
Also significant is that Tierney traces the genealogy of mass incarceration from policy to political success through the enormous intellectual influence of the late James Q. Wilson, a political scientist who taught at Harvard, UCLA and Pepperdine, and whose book Thinking About Crime (originally published in 1975) was in my view the key text of mass incarceration in its embryonic form. His framing of crime as an economic and later an almost biological problem, caught the imagination not only of the conservative Republicans he personally aligned himself with, but many leading Democratic politicians as well (for my own version of the genealogy see my "Mass Incarceration: From Social Policy to Social Problem" in Joan Petersilia and Kevin Reitz, The Oxford Handbook of Sentencing and Corrections"). According to Tierney, mass incarceration is now viewed as empirically dubious by contemporary social scientists. Stephen Levitt, one of the most prominent exponents of the thesis that mass incarceration worked (at least until the mid 1990s), suggests that now the marginal value of the prisoners being incarcerated is so low from a crime control point of view that we ought to have at least a third fewer of them. Criminologists Peter Reuter and Jonathan Caulkins note that the declining level of drug prices and wide availability have conclusively proven that locking up drug dealers cannot shrink let alone stop that market.
The change here is not in the social science, where the consensus was against mass incarceration a decade ago, but in the sense that it might matter to politicians (especially at the state and local level who have the most to gain from shrinking correctional budgets) and that it might be safe to come further out in this nice warm water of policy consensus. Of course the cultural salience of papers may be shrinking. The paper of record is not what is was in ''64 when Abe Rosenthal helped make living in cities seem insanely dangerous from a crime perspective by blaming the Kitty Genovese murder on bystander effects (which come up in Joe Nocera's column this week). The problem is that with penal matters things can get hot fast. Thus a few notes to keep in mind as we watch the further role out of this important series of columns and the response to it.
- Bear in mind that despite the importance of social scientists like James Q Wilson in legitimizing it, mass incarceration was not primarily sold to the public on its social science bonafides and indeed Wilson, despite having been a great social scientist up to that point marked a transition to being mostly an ideologue with the very book Thinking About Crime. The book was not filled with great social science theory or data, but in fact was largely based on the presumption that when the price of crime goes up, the amount of it must go down. Instead the marketing of mass incarceration was its fit with a series of cultural experiences, especially the racialized fear of rioting in the late 1960s and the theme of criminal monsters (serial killers and sex offenders) that began in the 1970s, along with the trope of government bureaucratic bungling which made any crime policy not built of brick and mortar apparently unreliable. Creating a just and legitimate alternative to mass incarceration will take a lot more than "freakonomics" (which is closer in spirit to what got us into it), especially political and moral discourse and struggle about what mass incarceration meant.
- The war on drugs only accounts for a portion of mass incarceration. A large and growing share of it is the unnecessary length of prison sentences for violent crimes, including the "unforgivable ones". While Tierney and his sample of social science elites and politicians steer a wide berth around any possibility of reconsidering LWOP and other long sentences for violent crimes, reforms that fail to do so will leave us with a system that looks a lot like mass incarceration, maybe a third smaller (per Professor Levitt's preferences, against 5x increase since 1970), perhaps even more racialized, and because of the significant role of health care costs, perhaps not much cheaper in the long run. More importantly, unless we deconstruct the historically situated (but now forgotten) fears that underly our extreme sentences for violent crime, it will be easy for policy entrepreneurs to promote new wars on drugs and related forms of deviance in flusher fiscal times.
Wednesday, November 28, 2012
Weather Report: Strange weather or climate change?
The most important political storm in recent history (was it the storm or the meme?) "Super-Storm Sandy" helped not only President Obama but re-raise the question of whether unusual weather is a sign of profound climate change, in this case global average temperature rises caused by human carbon effects. When it comes to our massive penal state, recent events have raised a similar question. Are recent change in prison growth patterns, judicial decisions, and electoral results variation within the norm or evidence of a more profound change that could mark the end of our forty year experiment with mass incarceration? I'm struck by an analogy that Philip Smith makes in his great contribution to the Sage Handbook of Punishment and Society (edited by Richard Sparks and myself, as a handbook its a wee pricey, but put it on your holiday wish list or appeal to your local library to order it). In his chapter on cultural analysis of punishment, "Punishment and Meaning: The Cultural Sociological Approach", Smith suggests that many of the classical sociological theories of punishment: "do a great job of explaining the longterm penal climate" but are poor at making sense of local and short-term variation. Foucault's account of disciplinary society, for example, makes great sense of the emergence of the cellular prison as a dominant mode of punishment, but can it help us understand California's Three-Strikes law, or declining public support for capital punishment in California. Smith argues persuasively that we need the tools of cultural sociology to make sense of the short-term and local and to connect them to the broader more structural features of penality, but the question that we face at the moment is whether the local and possibly short-term penal events we are seeing represent a spurt of unusual weather within a stable penal climate, or are we witnessing climate change, Our friends Ian Loader and Richard Sparks lend us a more specific climate metaphor in their 2010 book, Public Criminology? suggesting that the penal climate (globally? or at least in the North?) has gotten decidedly hotter due to the politicization of crime policy. Are these recent events in California signals of cooling in one of the hottest penal states in the world, or just a spate of moderation in a longterm trend toward extreme penal heat?
So what events do we have in mind?
Instead the relationship between "neo-liberalism" and the hot penal climate may be far looser than implied by some of the sociological accounts. Building "neo-liberalism" in the California and the US in the 1980s and 1990s may have gone facilitated and been facilitated by building and filling prisons but that does not mean the two must remain aligned. It is a sad fact of penal history (see my own chapter in the Handbook) that penal practices fail regularly and at times spectacularly. Rising political alignments often find it extremely helpful to be able criticize the penal status quo, but after forty years the penal status quo is now associated with that alignment, in such instances, the alignment stays and penal policies change, sometimes in profound ways (as in the transformations in penalty that marked the rise of working class voters at the beginning of the 20th century, see David Garland's Punishment and Welfare). Mass incarceration has failed, spectacularly in the form of overcrowding, humanitarian medical failure, and a mounting chronic illness crisis.
All of these, were in central display in the Supreme Court's Brown v. Plata decision. In my forthcoming book Mass Incarceration on Trial (sorry if you pre-ordered, its delayed due to my editing but coming out next Fall) I try to unpack what that decision teaches us about changes in the social meaning of incarceration, and about how we can further those changes to make sure short-term and local weather variation moves toward penal climate change, and cooling in particular.
------
If you are in the Bay Area I'll be trying to answer some of these questions tonight at Revolution Books, 2425 Channing Avenue, Berkeley, at 7 pm tonight. Dress for heavy weather and come on by and join the discussion.
So what events do we have in mind?
- The drop in California's (and the US) prison population in both absolute and relative to population terms since 2010
- The Supreme Court's stunningly strong (although nail bitingly close) decision in Brown v. Plata, requiring California to impose structural restraints on its prison population and implying that the human dignity retained by prisoners may present a broad protection against penal excess.
- The results of the November 2012 election in California which saw voters overwhelmingly adopt a moderation of California's notoriously excessive 3-Strikes law, narrowly defeat a death penalty repeal (which would have been a global first if it had passed), and perhaps most importantly, comfortably adopt a tax increase (albeit temporary and regressive in many respects).
Instead the relationship between "neo-liberalism" and the hot penal climate may be far looser than implied by some of the sociological accounts. Building "neo-liberalism" in the California and the US in the 1980s and 1990s may have gone facilitated and been facilitated by building and filling prisons but that does not mean the two must remain aligned. It is a sad fact of penal history (see my own chapter in the Handbook) that penal practices fail regularly and at times spectacularly. Rising political alignments often find it extremely helpful to be able criticize the penal status quo, but after forty years the penal status quo is now associated with that alignment, in such instances, the alignment stays and penal policies change, sometimes in profound ways (as in the transformations in penalty that marked the rise of working class voters at the beginning of the 20th century, see David Garland's Punishment and Welfare). Mass incarceration has failed, spectacularly in the form of overcrowding, humanitarian medical failure, and a mounting chronic illness crisis.
All of these, were in central display in the Supreme Court's Brown v. Plata decision. In my forthcoming book Mass Incarceration on Trial (sorry if you pre-ordered, its delayed due to my editing but coming out next Fall) I try to unpack what that decision teaches us about changes in the social meaning of incarceration, and about how we can further those changes to make sure short-term and local weather variation moves toward penal climate change, and cooling in particular.
------
If you are in the Bay Area I'll be trying to answer some of these questions tonight at Revolution Books, 2425 Channing Avenue, Berkeley, at 7 pm tonight. Dress for heavy weather and come on by and join the discussion.
Monday, November 5, 2012
2012: Hope and Change Election Too
I know, Obama's slogan this time is "Forward" and Mitt Romney is campaigning (false as ever) as the real change, but at least in California, this election is as much, or more, about hope and change as in 2008, when those words hung across the landscape of Berkeley like Christmas decorations on December 23.
Yes on Propositions 34 & 36
Forty years after California (and much of the nation) began its turn toward penal severity and mass incarceration, California voters have a chance to signal that the hot emotions of racialized crime fear has finally run its course. It is true that both measures are modest in their reach. Proposition 34 would repeal the death penalty, only to replace it with Life imprisonment Without Parole. Since the vast majority of California's more than 700 death row inmates are likely to die in prison of old age under any plausible scenario, this would change little on the ground. Nor does it count on people being necessarily less afraid of crime. Indeed its primary populist appeal is to move the funds saved from lawyering death cases to funding police departments in investigating cold murder and rape cases. Proposition 36 would allow prisoners serving life sentences under California's notoriously broad 3-Strikes law, to seek re-sentencing if their third strike was for a non-violent, non-serious crime (and assuming they were not already convicted of a murder or rape); a measure expected to reach only about 3500 of the more than 30,000 prisoners serving enhanced terms under the 3-Strikes law.
Still, both measures represent a big change that should be embraced by all Californians, a change away from penal measures intended to signal severity as an end in itself, not just despite, but in-spite of the fact that they delivered little objective crime control. The hope here is not just a hope that serious violent crime has gone away (even with the crime decline the violence in next door Oakland makes that difficult) but hope that new approaches, like innovative policing and restorative justice, can reduce crime and address the community scars of violent crime without incarceration. Forty years ago the conventional wisdom in criminology was that neither prison rehabilitation programs or police patrol tactics could meaningfully reduce crime. Today neither position is dominant. Furthermore, despite their poll tested pragmatic moderateness, both propositions would signal major change 1.) because they both deal with violent crime which I have long called the "hard back of mass incarceration" in contrast to the "soft underbelly" of drug crime and parole violations; and 2.) they are voter propositions, a form of law making long sought to favor fear over reason.
Yes on Proposition 30
For nearly forty years the state of California has been disinvesting in education, both K through 12, and higher education, in order to reduce taxes. At the start this must have been very tempting, since California taxes were relatively high and our education system was excellent. Now our tax system is highly uneven and unreliable, but manifestly fails to meet the state's basic revenue needs, and our education system is diminished at every level. Proposition 30 is again a modest turn toward hope and change. In asking for voters to approve a tax increase (and not just bond measures for debt), Proposition 30 breaks with decades of lying to voters about the realities facing the state. It asks not just for an income tax increase on high income earners, but a sales tax increase that will be paid by everyone. In this mildly progressive but still broad base, Proposition 30 hints of California's New Deal period when the state made the great investments that turned it into the dominant state of the postwar period. The hope here is modest. The tax increase is temporary and the funds would stop the hemorrhaging of education not reinvest in it.
Re-elect President Obama
It is true that for readers of this blog, the President has not been a major change agent. We did not expect him to lead on issues like "mass incarceration," and his promises to end our national disgrace at Guantanamo ran into a wall of Congressional fear. His Justice Departments aggressive prosecution of whistle blowers like Bradley manning, and the quiet war on marijuana, while letting financial crooks sleep on their gains has been a mystery to many of his supporters. Still, the President has kept his promise to never "govern through fear." While he has steadily sought to address the priority threats of George Bush's fear regime, including ordering the military execution of Osama Bin Laden, President Obama has not generated a new list of monsters, struggling to let uprisings in the Arab world proceed without demonizing the new leaders. Most importantly, in getting even a modest national health system and re-regulating the financial services industry, President Obama has begun to change the machinery of governance, moving us from the model of punish and prosecute that was "governing through crime," to approaches that require cooperation, trust, and new positive benefits for citizens.
Yes on Propositions 34 & 36
Forty years after California (and much of the nation) began its turn toward penal severity and mass incarceration, California voters have a chance to signal that the hot emotions of racialized crime fear has finally run its course. It is true that both measures are modest in their reach. Proposition 34 would repeal the death penalty, only to replace it with Life imprisonment Without Parole. Since the vast majority of California's more than 700 death row inmates are likely to die in prison of old age under any plausible scenario, this would change little on the ground. Nor does it count on people being necessarily less afraid of crime. Indeed its primary populist appeal is to move the funds saved from lawyering death cases to funding police departments in investigating cold murder and rape cases. Proposition 36 would allow prisoners serving life sentences under California's notoriously broad 3-Strikes law, to seek re-sentencing if their third strike was for a non-violent, non-serious crime (and assuming they were not already convicted of a murder or rape); a measure expected to reach only about 3500 of the more than 30,000 prisoners serving enhanced terms under the 3-Strikes law.
Still, both measures represent a big change that should be embraced by all Californians, a change away from penal measures intended to signal severity as an end in itself, not just despite, but in-spite of the fact that they delivered little objective crime control. The hope here is not just a hope that serious violent crime has gone away (even with the crime decline the violence in next door Oakland makes that difficult) but hope that new approaches, like innovative policing and restorative justice, can reduce crime and address the community scars of violent crime without incarceration. Forty years ago the conventional wisdom in criminology was that neither prison rehabilitation programs or police patrol tactics could meaningfully reduce crime. Today neither position is dominant. Furthermore, despite their poll tested pragmatic moderateness, both propositions would signal major change 1.) because they both deal with violent crime which I have long called the "hard back of mass incarceration" in contrast to the "soft underbelly" of drug crime and parole violations; and 2.) they are voter propositions, a form of law making long sought to favor fear over reason.
Yes on Proposition 30
For nearly forty years the state of California has been disinvesting in education, both K through 12, and higher education, in order to reduce taxes. At the start this must have been very tempting, since California taxes were relatively high and our education system was excellent. Now our tax system is highly uneven and unreliable, but manifestly fails to meet the state's basic revenue needs, and our education system is diminished at every level. Proposition 30 is again a modest turn toward hope and change. In asking for voters to approve a tax increase (and not just bond measures for debt), Proposition 30 breaks with decades of lying to voters about the realities facing the state. It asks not just for an income tax increase on high income earners, but a sales tax increase that will be paid by everyone. In this mildly progressive but still broad base, Proposition 30 hints of California's New Deal period when the state made the great investments that turned it into the dominant state of the postwar period. The hope here is modest. The tax increase is temporary and the funds would stop the hemorrhaging of education not reinvest in it.
Re-elect President Obama
It is true that for readers of this blog, the President has not been a major change agent. We did not expect him to lead on issues like "mass incarceration," and his promises to end our national disgrace at Guantanamo ran into a wall of Congressional fear. His Justice Departments aggressive prosecution of whistle blowers like Bradley manning, and the quiet war on marijuana, while letting financial crooks sleep on their gains has been a mystery to many of his supporters. Still, the President has kept his promise to never "govern through fear." While he has steadily sought to address the priority threats of George Bush's fear regime, including ordering the military execution of Osama Bin Laden, President Obama has not generated a new list of monsters, struggling to let uprisings in the Arab world proceed without demonizing the new leaders. Most importantly, in getting even a modest national health system and re-regulating the financial services industry, President Obama has begun to change the machinery of governance, moving us from the model of punish and prosecute that was "governing through crime," to approaches that require cooperation, trust, and new positive benefits for citizens.
Thursday, October 11, 2012
Cop killers, Baby killers, Serial killers? Did Steve Cooley Just Lie on the KQED?
In a debate on KQED's California Report about Proposition 34, LA DA Steve Cooley told a statewide listening audience that only "cop killers, baby killers, and serial killers" get sent to death row from LA County. Really? That sounds false to me. There are well over 700 people on death row and a clear minority of them meet that description, in fact, very few are. From LA? In 2009, LA County produced more death sentences then the state of Texas, were there really that many baby killers, cop killers, and serial killers convicted in that year? I'm in the middle of my teaching week (yes this really is like a job) and don't have time to run this down, but some one reading this, student, reporter, active citizen, nail this down because I don't think its fit for a District Attorney to lie on an important issue of public policy on the radio to the citizens of this state.
Why does Steve Cooley really want the death penalty? In part, I would guess, because the death penalty is a large weapon in plea bargaining that can force many murder defendants with a credible issue, to plead guilty to a non-capital murder and disappear for life (perhaps for a crime they did not commit). In Governing through Crime I offered a more political view. Prosecutors became vengeance-seekers-in-chief during the era of mass incarceration and used that stature to get elected statewide. The death penalty debate fuels the vengeance end of the crime policy debate (distorting the entire criminal justice system) but providing great fuel for prosecutors to rise to power. Steve Cooley lost narrowly for AG in 2010 to the current incumbent, a very quiet opponent of the death penalty. One suspects he would rather be talking about the death penalty in next statewide election too. Proposition 34 would end that death debate and move Californians on the the serious work of reframing our overheated underperforming penal system.
Why does Steve Cooley really want the death penalty? In part, I would guess, because the death penalty is a large weapon in plea bargaining that can force many murder defendants with a credible issue, to plead guilty to a non-capital murder and disappear for life (perhaps for a crime they did not commit). In Governing through Crime I offered a more political view. Prosecutors became vengeance-seekers-in-chief during the era of mass incarceration and used that stature to get elected statewide. The death penalty debate fuels the vengeance end of the crime policy debate (distorting the entire criminal justice system) but providing great fuel for prosecutors to rise to power. Steve Cooley lost narrowly for AG in 2010 to the current incumbent, a very quiet opponent of the death penalty. One suspects he would rather be talking about the death penalty in next statewide election too. Proposition 34 would end that death debate and move Californians on the the serious work of reframing our overheated underperforming penal system.
Monday, October 1, 2012
No Governor Brown, Thank God we Have Federal Courts
The most amazing quote in Marisa Lagos' front page story on realignment in this morning's SF Chron (read the story here) comes from Governor Brown:
The statement is so wrong on every level that it must be deconstructed and addressed point by point, but this is college, so first a pop quiz
The court was forced to set a population cap because the state continued to pack minor offenders and parole violators into prisons where a prisoner a week was dying of unmet medical needs. In their zeal to sell us our own fear, California's politicians presided over a system of industrial scale torture in which inmates suffering severe mental illness were left untreated in the horrifying conditions of overcrowding and insecurity, and in which prisoners suffering manifest symptoms of heart attacks, and cancerous invasions of their organs without treatment or even sympathy for their suffering.
As Justice Kennedy wrote in Brown v. Plata, the case that will carry Governor Brown's name into history along with governors like George Wallace and Ross Barnett:
"It's on schedule, and it's in practice in all 58 counties, which are quite diverse," Brown said in a phone interview last week. "I think all in all, we made a solid transition, and thank God for the fact we had the realignment plan - or we would have been forced by judges to let felons out of prison or to build new cells, which we can ill afford.Now I'm generally inclined to give Governor Brown time to redress the prison crisis. When he left office in 1983 the prison population had already begun its disastrous rise, but it was still modest and was driven mostly by county level prosecutors and judges (although his Determinate Sentence Law, adopted for other reasons, had effectively cut off the state's ability to reduce prison population on the other end). To my knowledge he was not a supporter of the many laws passed since, including Thee Strikes, that helped supersize California's prison population beyond any rational or humane limits. Although he appealed the Plata case to the Supreme Court as California's Attorney General, that is the usual routine for AGs and it takes an exceptional act of courage to do something different. But the contempt for the courts in Governor Brown's statement at a time when only because of the courts are we beginning to remedy a human rights disaster that has blighted our state for over a decade is appalling, beneath him, must be called out.
The statement is so wrong on every level that it must be deconstructed and addressed point by point, but this is college, so first a pop quiz
- Question. When did every governor start sounding like Ross Barnett of Mississippi?
- Answer. When the war on crime made it patriotic to trash courts for defending the human rights of people in prison.
"thank God for the fact that we had the realignment plan"At least now we know where it came from and when we can expect it to be revealed (at the end of time?). In fact, most of the ideas in the plan come from (or are mysteriously similar to) the proposals presented to the three-judge court in Plata which had been developed for the court by the state's best criminologists, people generally ignored by the state's political leadership.
"or we would have been forced by judges to let felons out of prison or to build new cells"The court ordered not a single prisoner to be released. They gave the state two years to reduce its population crisis from a steady state of over 200% of capacity to 137% of capacity and then outlined numerous ways the state could do that. As the court documented many of these prison sentences were actually reducing public safety.
The court was forced to set a population cap because the state continued to pack minor offenders and parole violators into prisons where a prisoner a week was dying of unmet medical needs. In their zeal to sell us our own fear, California's politicians presided over a system of industrial scale torture in which inmates suffering severe mental illness were left untreated in the horrifying conditions of overcrowding and insecurity, and in which prisoners suffering manifest symptoms of heart attacks, and cancerous invasions of their organs without treatment or even sympathy for their suffering.
let felons out of prisonFelon is a euphemism for denying the humanity of a human being. In a state which has lost touch with the humanity of its prisoners on a such a vast scale it is appalling for the chief executive still responsible for returning our prisons to some semblance of constitutional order to use that euphemism. Prisons are not containment zones for zombies. They are legal institutions for the punishment and rehabilitation of human beings. Our state has proven itself incapable of operating such legal places. Our leaders should be holding the officials responsible accountable, not swaggering and criticizing our courts.
As Justice Kennedy wrote in Brown v. Plata, the case that will carry Governor Brown's name into history along with governors like George Wallace and Ross Barnett:
A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.I say, thank God for the "concept of human dignity," and thank our federal courts for enforcing it in this sorry state.
Tuesday, September 25, 2012
You Should Know: Why Death Row Inmates Oppose LWOP
Reporting on the font page of today's SFChron Bob Egelko finally says what many of us who visit San Quentin prison have known for months, most of California's death row inmates oppose Proposition 34; the voter initiative on this November's ballot that would abolish capital punishment and replace it with Life With Out Parole (LWOP) even retroactively. (read the story here). Yes that's right, prisoners who face a lethal injection unless a court overturns their death sentence or conviction are opposed to a law that would immediately accomplish what many of them have been litigating to achieve for years, the removal of their death sentence.
That is so counter-intuitive to what most people believe about capital punishment that its worth repeating. People on death row, not just folks in an abstract all night dorm room discussion about whether death or LWOP is worst, but folks actually condemned to die, prefer to continue with their death sentence.
The story correctly emphasizes the importance of lawyers in explaining this seeming paradox. Everybody convicted of a serious felony like murder receives a court appointed lawyer to prepare an appeal, generally to the state courts and to the US Supreme Court. But even when those appeals fail, and the vast majority do, death row prisoners get a court appointed lawyer to continue a second line of appeals known as habeas corpus, in both state and eventually federal courts. These appeals are very valuable for two reasons. First, they allow the court to consider many aspects of the underlying case against the defendant, like the police investigation and the prosecution's conduct, that are generally not reviewed on direct appeal. Second, as the Chron story points out:
Voters who support the death penalty should think carefully this November before they vote "NO." If you defeat Proposition 34, you will be continuing to give people convicted of capital murder exactly what they most desperately want - a lawyer that will help them get out of prison.
Less explicitly discussed but quite clear from the above, is how punishing a true LWOP sentence is. The prospect of never being released from prison ever, with not even a low odds hope for an appeal or a parole board decision in your favor, is terribly terribly punishing. In California it is compounded by the fact that prison conditions are extremely poor due to overcrowding and in recent years according to the Supreme Court, the prospect of torture through abysmal or non-existent medical treatment (see Brown v. Plata). Death row inmates in California have a cell to themselves, receive more attentive supervision and visits from their lawyers, not to mention a measure of international celebrity and the scores of pen pals that brings. All of that disappears when your death sentence is vacated (as all of them would be should Prop 34 pass), and you get dumped into the long dark tunnel known as LWOP. In short, just as Cesare Beccaria argued more two hundred years ago in his On Crimes and Punishment, true life is worst than death as a punishment, and thus as a deterrent.
We could make it even more so by actually paroling murderers who have received a non-LWOP life sentence, as the law itself requires, but which California' politicized process has stymied for years. If we began to parole most prisoners convicted of 2nd degree murder after 15 years, and those convicted of 1st degree murder after 25 (as the law requires), those persons sentenced to LWOP would see the reality of the grim fate they have been assigned to.
I personally oppose LWOP as "cruel and unusual punishment." I will vote for Proposition 34 because it will at least take us to a more honest place where we acknowledge what we are actually doing in California. After that we can begin to have a more realistic conversation about what punishment can achieve and how long that takes. We should reform our state courts so that they are not a rubber stamp of sometimes deeply flawed convictions, and we should reform parole so that prisoners who atone and seek to reform themselves in prison face a realistic chance of going home. Sadly only one of those things is on the ballot this November.
That is so counter-intuitive to what most people believe about capital punishment that its worth repeating. People on death row, not just folks in an abstract all night dorm room discussion about whether death or LWOP is worst, but folks actually condemned to die, prefer to continue with their death sentence.
The story correctly emphasizes the importance of lawyers in explaining this seeming paradox. Everybody convicted of a serious felony like murder receives a court appointed lawyer to prepare an appeal, generally to the state courts and to the US Supreme Court. But even when those appeals fail, and the vast majority do, death row prisoners get a court appointed lawyer to continue a second line of appeals known as habeas corpus, in both state and eventually federal courts. These appeals are very valuable for two reasons. First, they allow the court to consider many aspects of the underlying case against the defendant, like the police investigation and the prosecution's conduct, that are generally not reviewed on direct appeal. Second, as the Chron story points out:
For condemned prisoners, it often represents their best chance to stave off execution by presenting their claims to federal judges, who are appointed for life, rather than elected state judges. A ruling that leads to their acquittal, or even a finding of innocence, is also more likely in habeas corpus than in the earlier direct appeal.Many prisoners hold out the hope that their conviction will be overturned and they will be able to go home. Ending their right to court appointed lawyer on habeas would close that door forever to most if not all of them (a handful might find lawyers to voluntarily continue their appeal).
Voters who support the death penalty should think carefully this November before they vote "NO." If you defeat Proposition 34, you will be continuing to give people convicted of capital murder exactly what they most desperately want - a lawyer that will help them get out of prison.
Less explicitly discussed but quite clear from the above, is how punishing a true LWOP sentence is. The prospect of never being released from prison ever, with not even a low odds hope for an appeal or a parole board decision in your favor, is terribly terribly punishing. In California it is compounded by the fact that prison conditions are extremely poor due to overcrowding and in recent years according to the Supreme Court, the prospect of torture through abysmal or non-existent medical treatment (see Brown v. Plata). Death row inmates in California have a cell to themselves, receive more attentive supervision and visits from their lawyers, not to mention a measure of international celebrity and the scores of pen pals that brings. All of that disappears when your death sentence is vacated (as all of them would be should Prop 34 pass), and you get dumped into the long dark tunnel known as LWOP. In short, just as Cesare Beccaria argued more two hundred years ago in his On Crimes and Punishment, true life is worst than death as a punishment, and thus as a deterrent.
We could make it even more so by actually paroling murderers who have received a non-LWOP life sentence, as the law itself requires, but which California' politicized process has stymied for years. If we began to parole most prisoners convicted of 2nd degree murder after 15 years, and those convicted of 1st degree murder after 25 (as the law requires), those persons sentenced to LWOP would see the reality of the grim fate they have been assigned to.
I personally oppose LWOP as "cruel and unusual punishment." I will vote for Proposition 34 because it will at least take us to a more honest place where we acknowledge what we are actually doing in California. After that we can begin to have a more realistic conversation about what punishment can achieve and how long that takes. We should reform our state courts so that they are not a rubber stamp of sometimes deeply flawed convictions, and we should reform parole so that prisoners who atone and seek to reform themselves in prison face a realistic chance of going home. Sadly only one of those things is on the ballot this November.
Saturday, September 1, 2012
State of Confinement: California's Carceral Habit
Scott Simon's amazing interview with George Takai this morning brought tears to my eyes and made me think once again about why this hauntingly beautiful state with its sunny optimism and reputation for creativity and innovation has so often embraced mass incarceration in various forms. Takai, best known to the world as Hikaru Sulu, the fictional pilot of the star-ship Enterprise in the television show Star Trek and the several feature films that followed, was confined along with his family in several concentration camps setup by the United States to intern Japanese-Americans in 1942 (read his wikipedia article here). Talking with Simon, the host of NPR's Saturday Weekend Edition show about the new musical about the Japanese internment Allegiance, Takai related that when he and his family finally left Tule Lake, their second camp, to return to Los Angeles, housing was so expensive they had to live on skid-row near downtown LA. His little sister wanted to go home, home to incarceration. That Takai's family came back to LA and set themselves back to the life of being ambitious hard working Californians (Takai studied at Berkeley (Architecture) and UCLA (Acting)) is amazing and inspiring, and a reminder that children scarred by contemporary mass incarceration can be tomorrow's George Takai's, but why is this state so prone to locking people up?
It is true that the internment of Japanese Americans was a national crime whose stain lies on our whole nation, California had a far deeper responsibility, with all the major champions and the deepest sources of racist populist support for internment based here. While it only lasted a few years, the internment involved over 100,000 people (read the wikipedia article here).
California also was a heavy user of mental hospitals from the late 19th century through the 1950s to warehouse large numbers of people with mental illnesses or disabilities (or sometimes just deviant characters) largely without treatment and with little legal recourse to get out. Most other states had similar institutions, but California did so at a much higher rate, and was far more aggressive in pushing sterilizations along with hospitalization and imprisonment.
Joan Didion reflects on California's habits of confinement in her powerful memoir of the state, Where I Was From (listen to an interesting interview with Didion on the book here), and points to a number of traits that seem to combine in California's political culture to favor regular paroxysms of fear and racially infused demands for exclusion. Prominent among them is the fact that so many of the state's middle class citizens have a vision of themselves as independent entrepreneurs who have belonged to the state for ever, when in fact they are a generation or two away from migrating into California from somewhere else and the state as a whole has depended for generations on massive federal spending projects the last of which was the Reagan era military technology boom.
This propensity to fear and loathe those we perceived coming into "our" state and to demand that a lot of them be locked up preventively is one that has achieved its most powerful and malignant form in contemporary mass incarceration. By using crime, often regardless of how minor, as our "reason" for confining large numbers of mostly brown and black Californians, our great confinement seems superficially more just then the Internment of the Japanese or the hospitalization and coerced sterilization of people with mental illnesses and disabilities, but not if you look much closer. Most important, this propensity to confine seems to have little to do with the specific locus of fear nor the technical-professional apparatus that is ostensibly in control of it, whether it is medical, military, or juridical. Courts should thus refuse to give much if any deference to California's confinement decisions (unfortunately they generally do).
It is true that the internment of Japanese Americans was a national crime whose stain lies on our whole nation, California had a far deeper responsibility, with all the major champions and the deepest sources of racist populist support for internment based here. While it only lasted a few years, the internment involved over 100,000 people (read the wikipedia article here).
California also was a heavy user of mental hospitals from the late 19th century through the 1950s to warehouse large numbers of people with mental illnesses or disabilities (or sometimes just deviant characters) largely without treatment and with little legal recourse to get out. Most other states had similar institutions, but California did so at a much higher rate, and was far more aggressive in pushing sterilizations along with hospitalization and imprisonment.
Joan Didion reflects on California's habits of confinement in her powerful memoir of the state, Where I Was From (listen to an interesting interview with Didion on the book here), and points to a number of traits that seem to combine in California's political culture to favor regular paroxysms of fear and racially infused demands for exclusion. Prominent among them is the fact that so many of the state's middle class citizens have a vision of themselves as independent entrepreneurs who have belonged to the state for ever, when in fact they are a generation or two away from migrating into California from somewhere else and the state as a whole has depended for generations on massive federal spending projects the last of which was the Reagan era military technology boom.
This propensity to fear and loathe those we perceived coming into "our" state and to demand that a lot of them be locked up preventively is one that has achieved its most powerful and malignant form in contemporary mass incarceration. By using crime, often regardless of how minor, as our "reason" for confining large numbers of mostly brown and black Californians, our great confinement seems superficially more just then the Internment of the Japanese or the hospitalization and coerced sterilization of people with mental illnesses and disabilities, but not if you look much closer. Most important, this propensity to confine seems to have little to do with the specific locus of fear nor the technical-professional apparatus that is ostensibly in control of it, whether it is medical, military, or juridical. Courts should thus refuse to give much if any deference to California's confinement decisions (unfortunately they generally do).
Tuesday, August 21, 2012
Correctional Madness: Realigment on the Right Track in LA
The California Report and The Center for Investigative Reporting posted another excellent report on Realignment this morning (broadcast on many NPR stations and available online after a delay here) this one focused on the vital issue of how counties, who get both resources and discretion over post-prison supervision for many California prisoners, are working with former-prisoners who live with mental illness. This is crucial. As the Supreme Court highlighted in Brown v. Plata, California's overcrowded reception center prisons were machines of madness, taking parolees already suffering from lack of adequate treatment in the community, and typically thrown back in prison in response to their deteriorating behavior. Once in prison, an inadequate mental health care system, paralyzed by near 300% capacity population at many reception center, led these prisoners to deteriorate further, in time to be released on parole again in even worst shape.
LA County, which has been struggling with the criminalization of mental illness since the 1970s, appears from the report to be taking a very strong approach with an emphasis on wrap around services, housing (because many of parolees with mental illness end up on the street), and a clear intent to avoid unnecessary incarcerations in response to minor violations. Much of the program is being operated by an NGO specializing in delivering services to people with mental illness, rather than a law enforcement agency focused on punishment and control, and deeply hostile to the idea of mental illness after decades of official anti-medicine in California. Paradoxically this approach seems to actually produce valuable intelligence about real crime and the ability to distinguish between truly emerging threats and simple set backs or relapses (say on drug use), just the kind of intelligence that contemporary corrections and law enforcement has largely lost the capacity to produce over the past 40 years.
This was highlighted in the episode by an interview with an LAPD officer assigned to a special re-entry unit. While one might hope that such a unit would benefit from the kind of individualized thinking emerging from the NGO side of the re-entry enterprise, it was not apparent from the interview. Instead, the officer suggested that many parolees might be hiding out in mental hospitals to avoid arrest for serious crimes. This suggests a basic lack of awareness of mental health hospitalization opportunities in California (it is quite hard even for people with florid symptoms to get hospitalized) as well as a skepticism about the reality of mental illness that unfortunately is pervasive in law enforcement.
As good as the realignment approach in LA with regard to former prisoners with mental illnesses sounds, it begs another question. Why are we letting so many people with mental illness drift into our criminal justice system as our primary way of getting them needed treatment?
LA County, which has been struggling with the criminalization of mental illness since the 1970s, appears from the report to be taking a very strong approach with an emphasis on wrap around services, housing (because many of parolees with mental illness end up on the street), and a clear intent to avoid unnecessary incarcerations in response to minor violations. Much of the program is being operated by an NGO specializing in delivering services to people with mental illness, rather than a law enforcement agency focused on punishment and control, and deeply hostile to the idea of mental illness after decades of official anti-medicine in California. Paradoxically this approach seems to actually produce valuable intelligence about real crime and the ability to distinguish between truly emerging threats and simple set backs or relapses (say on drug use), just the kind of intelligence that contemporary corrections and law enforcement has largely lost the capacity to produce over the past 40 years.
This was highlighted in the episode by an interview with an LAPD officer assigned to a special re-entry unit. While one might hope that such a unit would benefit from the kind of individualized thinking emerging from the NGO side of the re-entry enterprise, it was not apparent from the interview. Instead, the officer suggested that many parolees might be hiding out in mental hospitals to avoid arrest for serious crimes. This suggests a basic lack of awareness of mental health hospitalization opportunities in California (it is quite hard even for people with florid symptoms to get hospitalized) as well as a skepticism about the reality of mental illness that unfortunately is pervasive in law enforcement.
As good as the realignment approach in LA with regard to former prisoners with mental illnesses sounds, it begs another question. Why are we letting so many people with mental illness drift into our criminal justice system as our primary way of getting them needed treatment?
Friday, August 17, 2012
How Long is Long Enough?
It is hard to say whether they are the worst crimes. They are the crimes that horrify the most. A baby-sitter, for no apparent reason, strangles the 15-month old child she has been hired to protect. A professional thief shoots a young police officer in his face, while the victim is on his knees in a farm field pleading for his life. The baby-sitter is only 19, and has lived in abusive foster and adoptive families all her life, but her past troubles do not excuse an unprovoked murder of a helpless person she has been left in trust with. The thief wrongly believed that under the state's "Baby Lindbergh" law he faced the death penalty already for kidnapping the officer (who had interrupted escape from a crime quite by accident), but that understandable failure of deterrence to operate perfectly hardly excuses the crime. Both offenders deserve serious punishment, the most serious available. Assuming the death penalty is off the table, how long should they serve in prison?
The baby-sitter, Betty Smithey, just recently received parole from the state of Arizona, earning the title of the longest serving to be released alive from prison, having been imprisoned for 49 years for the crime she committed in 1963 (read about her parole in the LATimes here). The thief, Gregory Powell, died last week after serving the same length of time, coincidentally also for a crime committed in 1963 (read his obituary in the NYTimes here). Powell's crime became the subject of a famous book and movie (Joseph Wambaugh's The Onion Field), a fact which along with the fierce opposition of the LAPD may have accounted for the fact that he never did receive parole (although his crime partner did in 1983).
No doubt many would say that, at least as compared to the death penalty, or being murdered, fifty years in prison is not unacceptable. I find myself in total disagreement. These sentences are too long, way too long. Am I just incapable of imagining the victims perspective? Do I just intuitively sympathize with the living soul in prison while my imagination departs unjustly from the departed? Perhaps (at least that's my brother's theory), but I have two thoughts to share, one as a penologist (a student of prisons), the other as a criminal law teacher.
What purposes are served by such long sentences? At Betty Smithey's final parole hearing one of the Board members was quoted as saying: "I really see no value in keeping you in prison any longer. I really see no value in keeping strings on you any longer.." But at Gregory Powell's final parole denial (some years ago), or when the state of California denied him even compassionate release so he could die outside a prison, what value would they have cited?
No doubt the Chief of the LAPD would say deterrence in Powell's case. Every potential cop-killer ought to know that if they kill a cop they are going to die in prison, either by lethal injection or old age. Really? That's been pretty much the case for years but I would place my money on Kevlar and better training for having reduced officer deaths over the years. If deterrence works at all in the mental illness, or drug, or fear addled brains of an armed individual coming into shooting range of a police officer (and Powell seems to be one of the few criminals in history who knew about a special law aimed at a particular crime, too bad he remembered it wrong) there is zero evidence that anywhere near fifty years is required to maximize deterrence. There is shockingly little empirical evidence on what lengths of time in prison are necessary to achieve deterrence, but from what we know about the equivalent (but opposite) cognitive function, from research on how much people will pay to protect themselves against large but remote risks, it appears most of us respond far more to likely but relatively minor risks and ignore catastrophic but unlikely ones. My own intuition is that whatever deterrent value there is in a threat to be sent to prison probably maxes out at a credible threat to be locked up for some years, probably less than ten.
Incapacitation is the major rationale behind California's uber long prison sentences. But from everything we know about criminal careers, Smithey and Powell could have been released years earlier than the ages at which they paroled (69), or died (79). Most criminal careers flat line after 40 (one hopes that is less true of other kinds of careers). Neither Smithey or Powell were disciplinary problems during the last decades of their imprisonment.
Many readers will cite retribution, the punishment offenders deserve for the crimes they have committed. Research suggests that retribution corresponds to the moral intuitions of many people about crime and punishment, and that people mostly agree on which crimes deserve more serious punishment than others; but there is no agreement or objective moral basis for determining how long is long enough. Once you abandon the metaphoric relationship between the life taken in a murder, and the life of the offender, which is the appeal of the death penalty and whole life terms, there is no particular reason to choose any term of years (although I think ten has some metaphoric value because of the strong role of decades in our own narratives about life). Nothing like that metaphoric relationship exists for other crimes like robbery, rape, or kidnapping.
This is where penological thought kicks in. My own exposure to long serving prisoners over the years convinces me of two things. First, people change. The men I meet when I speak to classes at San Quentin, describe the men they were when they arrived at prison as profoundly different and I believe them and can see with my own eyes who they are now. Second, it takes time to change but for most people it does not take more then ten years. This makes the decades stacked on after ten or twenty years devoid of any meaningful value. To the prisoner facing them, stretching into the future toward death, this is "cruel and unusual." To the rest of us who will likely pay many times the average per year costs for incarcerating them during their old age (when medical costs cause the overall cost of imprisonment to skyrocket), this is a useless excess.
My own view is that the only reason to hold someone more than ten year is either specific information to believe that they are likely to remain a threat when released (like continued involvement in criminal gangs while in prison) or the need to mark the public condemnation of the crime (as in the case of multiple or mass killings), and even then another decade and a half ought to mark our true maximum (twenty-five years). My views, of course are extreme. Consider that legislation just passed after years of efforts by San Francisco's wonderful Assembly Member Leland Yee, designed to comply with the Supreme Court's mandate in 2010 that some juveniles sentenced to Life Without Parole (LWOP) be resentenced, would establish twenty-five years as the minimum before a prisoner sentenced for such a crime could be released (read about it in the Sacto Bee here). Assembly member Yee's measure barely passed by one vote and it is not clear that Governor Brown will sign it. I hope he does.
The baby-sitter, Betty Smithey, just recently received parole from the state of Arizona, earning the title of the longest serving to be released alive from prison, having been imprisoned for 49 years for the crime she committed in 1963 (read about her parole in the LATimes here). The thief, Gregory Powell, died last week after serving the same length of time, coincidentally also for a crime committed in 1963 (read his obituary in the NYTimes here). Powell's crime became the subject of a famous book and movie (Joseph Wambaugh's The Onion Field), a fact which along with the fierce opposition of the LAPD may have accounted for the fact that he never did receive parole (although his crime partner did in 1983).
No doubt many would say that, at least as compared to the death penalty, or being murdered, fifty years in prison is not unacceptable. I find myself in total disagreement. These sentences are too long, way too long. Am I just incapable of imagining the victims perspective? Do I just intuitively sympathize with the living soul in prison while my imagination departs unjustly from the departed? Perhaps (at least that's my brother's theory), but I have two thoughts to share, one as a penologist (a student of prisons), the other as a criminal law teacher.
What purposes are served by such long sentences? At Betty Smithey's final parole hearing one of the Board members was quoted as saying: "I really see no value in keeping you in prison any longer. I really see no value in keeping strings on you any longer.." But at Gregory Powell's final parole denial (some years ago), or when the state of California denied him even compassionate release so he could die outside a prison, what value would they have cited?
No doubt the Chief of the LAPD would say deterrence in Powell's case. Every potential cop-killer ought to know that if they kill a cop they are going to die in prison, either by lethal injection or old age. Really? That's been pretty much the case for years but I would place my money on Kevlar and better training for having reduced officer deaths over the years. If deterrence works at all in the mental illness, or drug, or fear addled brains of an armed individual coming into shooting range of a police officer (and Powell seems to be one of the few criminals in history who knew about a special law aimed at a particular crime, too bad he remembered it wrong) there is zero evidence that anywhere near fifty years is required to maximize deterrence. There is shockingly little empirical evidence on what lengths of time in prison are necessary to achieve deterrence, but from what we know about the equivalent (but opposite) cognitive function, from research on how much people will pay to protect themselves against large but remote risks, it appears most of us respond far more to likely but relatively minor risks and ignore catastrophic but unlikely ones. My own intuition is that whatever deterrent value there is in a threat to be sent to prison probably maxes out at a credible threat to be locked up for some years, probably less than ten.
Incapacitation is the major rationale behind California's uber long prison sentences. But from everything we know about criminal careers, Smithey and Powell could have been released years earlier than the ages at which they paroled (69), or died (79). Most criminal careers flat line after 40 (one hopes that is less true of other kinds of careers). Neither Smithey or Powell were disciplinary problems during the last decades of their imprisonment.
Many readers will cite retribution, the punishment offenders deserve for the crimes they have committed. Research suggests that retribution corresponds to the moral intuitions of many people about crime and punishment, and that people mostly agree on which crimes deserve more serious punishment than others; but there is no agreement or objective moral basis for determining how long is long enough. Once you abandon the metaphoric relationship between the life taken in a murder, and the life of the offender, which is the appeal of the death penalty and whole life terms, there is no particular reason to choose any term of years (although I think ten has some metaphoric value because of the strong role of decades in our own narratives about life). Nothing like that metaphoric relationship exists for other crimes like robbery, rape, or kidnapping.
This is where penological thought kicks in. My own exposure to long serving prisoners over the years convinces me of two things. First, people change. The men I meet when I speak to classes at San Quentin, describe the men they were when they arrived at prison as profoundly different and I believe them and can see with my own eyes who they are now. Second, it takes time to change but for most people it does not take more then ten years. This makes the decades stacked on after ten or twenty years devoid of any meaningful value. To the prisoner facing them, stretching into the future toward death, this is "cruel and unusual." To the rest of us who will likely pay many times the average per year costs for incarcerating them during their old age (when medical costs cause the overall cost of imprisonment to skyrocket), this is a useless excess.
My own view is that the only reason to hold someone more than ten year is either specific information to believe that they are likely to remain a threat when released (like continued involvement in criminal gangs while in prison) or the need to mark the public condemnation of the crime (as in the case of multiple or mass killings), and even then another decade and a half ought to mark our true maximum (twenty-five years). My views, of course are extreme. Consider that legislation just passed after years of efforts by San Francisco's wonderful Assembly Member Leland Yee, designed to comply with the Supreme Court's mandate in 2010 that some juveniles sentenced to Life Without Parole (LWOP) be resentenced, would establish twenty-five years as the minimum before a prisoner sentenced for such a crime could be released (read about it in the Sacto Bee here). Assembly member Yee's measure barely passed by one vote and it is not clear that Governor Brown will sign it. I hope he does.
Monday, August 6, 2012
Realignment Time: The prison crisis comes home
Norimitsu Onishi takes a sobering look at California's emerging "realigment" policy in this morning's NYTimes (read it here). The state's major response to the humanitarian disaster in its state prisons and the Supreme Court confirmed order to reduce the prison population by approximately 40,000 prisoners, has been to channel many people convicted of less serious felonies or found to have violated their parole from state prison to counties who have the legal authority to incarcerate them in jail or to impose alternative sanctions. Along with this mandate came a stream of state revenue allocated to counties in proportion to their prisoner burden and open ended in terms of what it can be spent on.
Onishi's reporting suggests that counties are breaking in one of two ways in their dominant response; either expanding jails in anticipation of having to permanently incarcerate a far larger population than in the past, or investing in re-entry programs to help released state prisoners avoid future crime and arrests, and enhanced programming to make probation more successful as an alternative to incarceration for felony offenses. The divide is largely between coastal urban counties which are focusing on re-entry and alternatives, and rural counties, especially in the state's sprawling central valley, which is investing in reopening jail space.
The stakes are high, many county jails are already under court order for over crowding which means that incoming prisoners must be balanced with early release for current inmates in jails (although low hanging fruit through better pre-trial release procedures is an obvious partial solution). Others are not under order but are already approaching unconstitutional conditions which are likely to occur with added inmates. Moreover, even new jails are likely create severe human rights problems if used for prolonged incarceration. The great lesson of California's correctional health care crisis is the toxic relationship between incarceration and chronic illnesses (including importantly mental illness). If counties try to reproduce mass incarceration policies at the local level, the results could be even worst (especially in rural counties which are already suffering from high levels of chronic illness and poor medical service).
On the other side, the revitalization of rehabilitation as a legitimate penal objective (as opposed to California's extreme model of total incapacitation) is being pressed into early service by realignment and may find itself unfairly discredited and de-legitimized. The urban counties taking the biggest strides in experimenting with alternatives are also those most vulnerable to upward swings in violent crimes (homicides, aggravated assaults, armed robberies) that have historically altered not only the view people in that county, but in the whole state.
The best thing about re-alignment is that it will (and is) incentivizing a serious stake-holder conversation at the county level, one which sounds likely to be more purple than red or blue (to channel our President here). I have faith that this local conversation will be less toxic than the state level one we have had for forty years. However, we cannot afford to let the state actors off the hook just yet. Not only must the federal courts keep the focus (and the ultimate legal responsibility) on the state of California, citizens must both get involved at the county level and begin to demand accountability (as well as money) from the state. Counties and citizens alike have a stake in making sure that the policies which led to industrial scale torture through deliberate indifference to medical and mental health in California's prisons and to a deeply entrenched racist prison gang system which continues to menace communities throughout the state, are fully aired. Don't let state leaders get away with leaving the blame for both the ongoing crisis and the next crime wave on county sheriffs and re-entry workers.
How to stop them? I believe there are two steps necessary to prevent a recurrence of the present disaster. First, create a truth and reconciliation commission to study the causes and consequences of mass incarceration in California. Second, create a California Commission for the Prevention of Torture, or Inhuman and Degrading Treatment or Punishment, modeled after the Council of Europe's Committee for the Prevention of Torture, or Inhuman and Degrading Treatment or Punishment and the UN Committee against Torture with the power to enter and inspect any prison, jail, or re-entry facility (as well as any other state funded place of detention) in the state of California, at any time, day or night, without prior notice, and with authority to report to the Governor and the legislature on the proximity of current conditions to torture, or inhuman and degrading treatment.
Onishi's reporting suggests that counties are breaking in one of two ways in their dominant response; either expanding jails in anticipation of having to permanently incarcerate a far larger population than in the past, or investing in re-entry programs to help released state prisoners avoid future crime and arrests, and enhanced programming to make probation more successful as an alternative to incarceration for felony offenses. The divide is largely between coastal urban counties which are focusing on re-entry and alternatives, and rural counties, especially in the state's sprawling central valley, which is investing in reopening jail space.
The stakes are high, many county jails are already under court order for over crowding which means that incoming prisoners must be balanced with early release for current inmates in jails (although low hanging fruit through better pre-trial release procedures is an obvious partial solution). Others are not under order but are already approaching unconstitutional conditions which are likely to occur with added inmates. Moreover, even new jails are likely create severe human rights problems if used for prolonged incarceration. The great lesson of California's correctional health care crisis is the toxic relationship between incarceration and chronic illnesses (including importantly mental illness). If counties try to reproduce mass incarceration policies at the local level, the results could be even worst (especially in rural counties which are already suffering from high levels of chronic illness and poor medical service).
On the other side, the revitalization of rehabilitation as a legitimate penal objective (as opposed to California's extreme model of total incapacitation) is being pressed into early service by realignment and may find itself unfairly discredited and de-legitimized. The urban counties taking the biggest strides in experimenting with alternatives are also those most vulnerable to upward swings in violent crimes (homicides, aggravated assaults, armed robberies) that have historically altered not only the view people in that county, but in the whole state.
The best thing about re-alignment is that it will (and is) incentivizing a serious stake-holder conversation at the county level, one which sounds likely to be more purple than red or blue (to channel our President here). I have faith that this local conversation will be less toxic than the state level one we have had for forty years. However, we cannot afford to let the state actors off the hook just yet. Not only must the federal courts keep the focus (and the ultimate legal responsibility) on the state of California, citizens must both get involved at the county level and begin to demand accountability (as well as money) from the state. Counties and citizens alike have a stake in making sure that the policies which led to industrial scale torture through deliberate indifference to medical and mental health in California's prisons and to a deeply entrenched racist prison gang system which continues to menace communities throughout the state, are fully aired. Don't let state leaders get away with leaving the blame for both the ongoing crisis and the next crime wave on county sheriffs and re-entry workers.
How to stop them? I believe there are two steps necessary to prevent a recurrence of the present disaster. First, create a truth and reconciliation commission to study the causes and consequences of mass incarceration in California. Second, create a California Commission for the Prevention of Torture, or Inhuman and Degrading Treatment or Punishment, modeled after the Council of Europe's Committee for the Prevention of Torture, or Inhuman and Degrading Treatment or Punishment and the UN Committee against Torture with the power to enter and inspect any prison, jail, or re-entry facility (as well as any other state funded place of detention) in the state of California, at any time, day or night, without prior notice, and with authority to report to the Governor and the legislature on the proximity of current conditions to torture, or inhuman and degrading treatment.
Thursday, August 2, 2012
From the House of Fear to the Home of Care: The Future of Imprisonment
The future of imprisonment in California, and likely much of the nation, was described in some detail this morning on KQED's California report. The California Report's Julie Small toured the construction site for the new California Health Care Facility near Stockton, where contractors are building a specialized prison for more 1700 prisoners in need of long term health care. These prisoners, currently tying down care beds and staff in prisons all over the state, will be centralized here to optimize the efficiency and success of providing them the continuous health care they need, and which California must pay for.
The new facility (notice it does not call itself a prison) may operate as a paradigm shifting model for prisons in a society where currently some 40 percent of state inmates suffer from one or more chronic illness (including mental illnesses). It is designed to hold all prisoners in single story structures (most prisons built over the past 2 centuries have multiple tiers or floors with typically no elevators (prisoners were supposed to be young, healthy, and capable of mayhem, they don't need an elevator). The cells are specially designed to bring natural light into rooms to make life there more sustainable for prisoners whose disability and medical needs, rather than risk and security threats, determine that they must remain most or all of the time. The walls will are wide to hold the arrays of complex medical technologies necessary to monitor and sustain them not to assure they do not assault their neighbors or correctional officers. These cells will surround a control center staffed primarily with nurses.
While the state of the art facility is estimate to cost close to a billion (and will no doubt really cost twice or thrice that), the spokesperson for California's court appointed correctional health care receiver estimates that it will ultimately save the state millions in annual health care costs (a rapidly growing sector of the correctional budget). That is because of the nature of the chronic illness burden facing the state's prisoners and prisons. Chronic illnesses, slow developing diseases that get steadily worse unless efforts are continuously made to monitor and check them, conditions like diabetes, hypertension, HIV, and importantly, mental illnesses, represent a fundamentally new kind of health care challenge, one that is facing our whole society as it ages. Incarceration as traditionally practiced with a generic healthy young inmate as its one-sized fits all model of prisoners is poorly configured to handle this threat. Mass incarceration, with its overcrowding, and long prison sentences that assure more prisoners will spend their chronic illness years incarcerated, made things far worse, leading to the correctional health care crisis and the Supreme Court's Brown v. Plata decision.
The new prison represents a remarkable departure (but a necessary consequence) of a state whose extreme sentencing laws and vast warehouse prisons have made it the Mississippi of mass incarceration. The account of its construction, the scale, technology, and sense of a new order being born, call to mind a parallel prison constructed roughly thirty years ago in the mid-1980s as California built the first wave of its massive prison boom. Pelican Bay's notorious supermax style SHU (for Secure Housing Unit) was also seen as a distinctive new style of prison whose use of architecture and technology would allow California to control the most dangerous of a vast new population of inmates the state's correctional planners were clearly told to anticipate. As Keramet Reiter shows in her brilliant dissertation on Pelican Bay, The Most Retrictive Alternative: The Origins, Functions, Control, and Ethical Implications of the Supermax Prison, 1976 - 2010 (Berkeley, JSP, 2012) these mid-level correctional bureaucrats, their vision shaped by the nightmarish but largely unrepeated incidents of violence from the early 1970s, wanted prisons where they could potentially thousands of prisoners so dangerous that they needed to be locked down permanently. Pelican Bay's huge costs and supersize were justified on the belief that it would ultimately hold down violence and permit the much expanded general population to operate more successfully and at lower cost. In the name of security, the prison was designed to encase the prisoner either in a their cell, or in a cell like exercise or shower room, with no programming and virtually no contact with staff or other prisoners (unless double-celled in the same conditions). Instead of measures to counteract the inevitable assault such an environment would make on mental and physical health, the designers chose to allow no natural light and no colors into the environment and designed routines without any consideration of the humanity of the bodies they were locking up. The atrocious and degrading results (frequent cell extractions using tasers and chemical weapons on often deranged inmates) were documented in the historic Madrid v. Gomez decison in 1995 but California continue to rely heavily on the SHU even today.
Pelican Bay was the house that fear built. Shaped in nightmares it became a monster factory turning its inmates and correctional officers into threatening simulacra of human beings. Ultimately it helped set the tone for an overall correctional regime that engaged in industrial scale torture through deliberate indifference to the health care needs of its mass incarcerated and chronically ill population. The California Health Care Facility reflects a care based model rather than a fear based model. Not completely. Despite the fact that most of its patients will be prisoners in need of longterm care it will have electrified fencing just like any other prison in California. Indeed, serious questions should be raised about why anyone who needs that much care, poses that little risk, and has served enough time in prison to meet a modicum of penitence should be in prison at all. Still, just like the ethics of fear amplified in Pelican Bay helped define the culture and character of California prisons in the torture years, an ethic of care may be pointing us to a more legitimate correctional model for the future of imprisonment.
The new facility (notice it does not call itself a prison) may operate as a paradigm shifting model for prisons in a society where currently some 40 percent of state inmates suffer from one or more chronic illness (including mental illnesses). It is designed to hold all prisoners in single story structures (most prisons built over the past 2 centuries have multiple tiers or floors with typically no elevators (prisoners were supposed to be young, healthy, and capable of mayhem, they don't need an elevator). The cells are specially designed to bring natural light into rooms to make life there more sustainable for prisoners whose disability and medical needs, rather than risk and security threats, determine that they must remain most or all of the time. The walls will are wide to hold the arrays of complex medical technologies necessary to monitor and sustain them not to assure they do not assault their neighbors or correctional officers. These cells will surround a control center staffed primarily with nurses.
While the state of the art facility is estimate to cost close to a billion (and will no doubt really cost twice or thrice that), the spokesperson for California's court appointed correctional health care receiver estimates that it will ultimately save the state millions in annual health care costs (a rapidly growing sector of the correctional budget). That is because of the nature of the chronic illness burden facing the state's prisoners and prisons. Chronic illnesses, slow developing diseases that get steadily worse unless efforts are continuously made to monitor and check them, conditions like diabetes, hypertension, HIV, and importantly, mental illnesses, represent a fundamentally new kind of health care challenge, one that is facing our whole society as it ages. Incarceration as traditionally practiced with a generic healthy young inmate as its one-sized fits all model of prisoners is poorly configured to handle this threat. Mass incarceration, with its overcrowding, and long prison sentences that assure more prisoners will spend their chronic illness years incarcerated, made things far worse, leading to the correctional health care crisis and the Supreme Court's Brown v. Plata decision.
The new prison represents a remarkable departure (but a necessary consequence) of a state whose extreme sentencing laws and vast warehouse prisons have made it the Mississippi of mass incarceration. The account of its construction, the scale, technology, and sense of a new order being born, call to mind a parallel prison constructed roughly thirty years ago in the mid-1980s as California built the first wave of its massive prison boom. Pelican Bay's notorious supermax style SHU (for Secure Housing Unit) was also seen as a distinctive new style of prison whose use of architecture and technology would allow California to control the most dangerous of a vast new population of inmates the state's correctional planners were clearly told to anticipate. As Keramet Reiter shows in her brilliant dissertation on Pelican Bay, The Most Retrictive Alternative: The Origins, Functions, Control, and Ethical Implications of the Supermax Prison, 1976 - 2010 (Berkeley, JSP, 2012) these mid-level correctional bureaucrats, their vision shaped by the nightmarish but largely unrepeated incidents of violence from the early 1970s, wanted prisons where they could potentially thousands of prisoners so dangerous that they needed to be locked down permanently. Pelican Bay's huge costs and supersize were justified on the belief that it would ultimately hold down violence and permit the much expanded general population to operate more successfully and at lower cost. In the name of security, the prison was designed to encase the prisoner either in a their cell, or in a cell like exercise or shower room, with no programming and virtually no contact with staff or other prisoners (unless double-celled in the same conditions). Instead of measures to counteract the inevitable assault such an environment would make on mental and physical health, the designers chose to allow no natural light and no colors into the environment and designed routines without any consideration of the humanity of the bodies they were locking up. The atrocious and degrading results (frequent cell extractions using tasers and chemical weapons on often deranged inmates) were documented in the historic Madrid v. Gomez decison in 1995 but California continue to rely heavily on the SHU even today.
Pelican Bay was the house that fear built. Shaped in nightmares it became a monster factory turning its inmates and correctional officers into threatening simulacra of human beings. Ultimately it helped set the tone for an overall correctional regime that engaged in industrial scale torture through deliberate indifference to the health care needs of its mass incarcerated and chronically ill population. The California Health Care Facility reflects a care based model rather than a fear based model. Not completely. Despite the fact that most of its patients will be prisoners in need of longterm care it will have electrified fencing just like any other prison in California. Indeed, serious questions should be raised about why anyone who needs that much care, poses that little risk, and has served enough time in prison to meet a modicum of penitence should be in prison at all. Still, just like the ethics of fear amplified in Pelican Bay helped define the culture and character of California prisons in the torture years, an ethic of care may be pointing us to a more legitimate correctional model for the future of imprisonment.
Monday, July 23, 2012
Full Force of our Justice System?
The Consoler-in-Chief was in Aurora Colorado yesterday to comfort the community struggling to cope with the mass killing (and wounding) over the weekend. Among the tones of emotion and religious faith that the President is remarkably effective at communicating in his restrained and reasonable way, the sharpest and most quoted words were reserved for the presumed guilty 24 year old, James Holmes, in custody (read the NYTimes coverage).
“In the end, after he has felt the full force of our justice system, what will be remembered are the good people who were impacted by this tragedy,”It is an unsettling reminder that even (or especially) at a time of unending national economic woes, retribution and especially capital punishment remain esssential to our national political culture (for why, see Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear). The President, after all, has nothing to say legally about what kind of punishment (full force, or otherwise), the killer (if that is who is in custody) will face. He does get to execute people by direct order through drone strikes, of course, as well as deport tens of thousands of others, some to death or worst; and make no mistake, this President has done so with relish and he wants you to know that. While he probably can't do either to James Holmes right now, nobody could miss the parallel with President W's promise to the 9/11 terrorist that they would "hear from you" soon. The President as vengeance-seeker. Why bother with a written Constitution, we should just rule by Icelandic Sagas. A President who is unable to explain why the Affordable Health Care Act has something to do with justice, social justice, the word justice as punishment comes as easy as "God bless America.: The statement "full force of our justice system" is an unmistakable reference to capital punishment. Despite the fact that executions and even death sentences are going down. Despite the fact that state legislatures in New Mexico and New Jersey have taken the once unimaginable modern step of abolishing the death penalty and California voters will be asked to do the same thing this Fall, this President has never missed an opportunity to dip his robes in the symbolic blood of capital punishment. By the way, do not imagine that evidence, should it emerge, that James Holmes is a suffering from one of several severe mental illnesses that young adults of his age are particularly susceptible too, will prevent Colorado authorities from seeking his execution. Quotes from law enforcement show that they are wholly fixated on putting together a capital punishment case that will focus on Holmes' premeditation and planning. Issues like how Holmes' acquired so many weapons so easily are of minimal interest to either police or prosecutors.
Wednesday, July 18, 2012
London Calling
A midsummer shout-out to all my friends in London, one of my favorite cities to be in anytime, either personally or in my imagination in hundreds of novels. Any time, er, except perhaps right now. Summer is always an elusive season in London, but this o one finds old towne sinking rapidly into a steampunk disaster story. Just to recount the stories that have crossed the American media bubble. Tens of thousands of privileged and fussy visitors are preparing to descend through Heathrow (OMG) into a city already under permanent and great security strain since 7/7 (why did anyone ever think that would be a good idea). Ahead of the big bash the city has had an epically wet and unpleasant summer. And instead of an opportunity to show off the wonders of neo-liberalism to a global elite, the major economic story is that the big City banks appear to have conspired to rig the entire financial services economy on which the nation has staked its economy.
Now, to cap off this plot, the vast and scary private everything corporation, with the ominous name (don't these people ever watch science fiction movies) G4S, which had been handed a humungous sweetheart contract to provide security for the games has acknowledged only days before the event launches that it is thousands of people short of its promised staffing levels (read the Guardian reporting here) and as a result thousands of soldiers and police (almost every London police officer already had their leaves cancelled months ago) will have to be deployed at a massive cost to the public treasury. How this could be happening in a country with staggering unemployment (mind you G4S, which types out G$S if you don't type carefully, runs the job centers in much of the nation) is mind boggling. In a parliamentary degradation ceremony yesterday the company's CEO was forced to agree that it was all a "humiliating shambles."
Oh, well, this too shall pass, and hopefully without any surface to air missiles, which apparently have been installed across a number of city rooftops, being launched. I'm told by thoughtful architects and urban planners that the infrastructures installed for the London games will help revitalize the eastside. And then you can look forward to winter.
Now, to cap off this plot, the vast and scary private everything corporation, with the ominous name (don't these people ever watch science fiction movies) G4S, which had been handed a humungous sweetheart contract to provide security for the games has acknowledged only days before the event launches that it is thousands of people short of its promised staffing levels (read the Guardian reporting here) and as a result thousands of soldiers and police (almost every London police officer already had their leaves cancelled months ago) will have to be deployed at a massive cost to the public treasury. How this could be happening in a country with staggering unemployment (mind you G4S, which types out G$S if you don't type carefully, runs the job centers in much of the nation) is mind boggling. In a parliamentary degradation ceremony yesterday the company's CEO was forced to agree that it was all a "humiliating shambles."
Oh, well, this too shall pass, and hopefully without any surface to air missiles, which apparently have been installed across a number of city rooftops, being launched. I'm told by thoughtful architects and urban planners that the infrastructures installed for the London games will help revitalize the eastside. And then you can look forward to winter.
Monday, June 25, 2012
"Unlocking" the mentalities of governing through crime: The Time's Flawed Series on New Jersey's Halfway Houses
I've finished reading Sam Dolnick's important investigative report on New Jersey's burgeoning system of half way houses, Unlocked, and I'm still more impressed with the power of traditional media ways of representing crime and criminal justice than I am with the power of its investigating or reporting.
On the later point, the series does an important public services by introducing readers to a type of institution which is likely to play a more and more important role in the twilight of mass incarceration as state correctional systems struggle to escape the enormous fiscal and moral costs of that project without admitting to the public that they were always locking up way too many of the wrong people for the wrong reasons. Such places, often operated by private contractors, are places that few Americans are familiar with and which raise novel questions about state power, private responsibility, and the objectives of criminal justice.
Unfortunately this potential was largely lost because the piece was captured from the start by a series of assumptions that constitute the basic media mentality of what I call Governing through Crime.
First, never question the basic wisdom of arresting, detaining, and imprisoning people who have committed crimes (or who the police suspect in the case of arrest) no matter what crime or under what circumstances they committed them.
The two most significant victims discussed in the series, A woman detained at the Bo Robinson Center in Trenton who was raped, and a man robbed and murdered at Delaney Hall in Newark, should never have been in detention at all. Vanessa Falcone was convicted of forging prescriptions after becoming dependent on prescribed medications. Sending the 20 something stressed out single mother to prison for that was outrageous, a human rights violation (especially to her child) and an astoundingly poor act of public policy that benefited no person in New Jersey. The arrest of Derek Harris for outstanding warrants and driving an unregistered vehicle was also a highly questionable call. Harris was guilty of no more serious crime than being behind in obligations associated with his automobile, he did not deserve the humiliation and risk involved in being locked up (even at a proper county jail). The public officials responsible for these decisions are the real engineers of these tragedies but Dolnick's reporting never questions the wisdom of locking them up in the first place. Its like a reporter complaining that the state is doing a terrible job rescuing distressed swimmers from a river without ever asking why the state is throwing them in the rapids to begin with.
Second, always emphasize the role of prisoners or the formerly incarcerated in discussing society's crime problems
You would have to read the second story on Vanessa Falcone carefully to realize that she was raped by a janitor employed at the facility, someone with no previous criminal record, and not by someone locked up or formerly incarcerated. The whole key to mass incarceration as a public policy was to keep the public more focused on people locked up or formerly incarcerated people, while ignoring the fact that most crime is committed by people who are not locked up and have not been previously. If you took the latter seriously you would support effective strategies to keep people safe from crime through careful attention to organizational and environmental factors, as well as flexible and intelligent policing. All of these were and are absent in New Jersey, but you would miss that from "Unlocking" which as its title suggests, makes the main point the fact that people who could have been locked up in prisons and jails were held less secure places.
Third, use drugs as smoke and mirrors to expand the category of crime while switching back and forth between drugs and violent crimes to create a frothy mix of anxiety that can cover the ambiguity and chaos of
The the most significant problem emphasized at Bo Robinson was the suggestion that illegal drug use was routine (especially marijuana smoke). True, if you think that locking people up because they use drugs, in order to make them stop doing so, than may be the fact that lots of drugs are in an around these half way houses would be alarming. Some of the descriptions of Bo Robinson Center reminded me of the Freshmen dorm I lived in at Berkeley in the late 1970s. Now most college dorms wouldn't tolerate the clouds of marijuana smoke I remember, but that's at least in part because they are all "non-smoking buildings". There were at least two violent crimes described in the series (see the first point) but many more references to violent criminal and people committed of violent crimes. Even as we make some progress on demystifying the logic of the drug war, we continue to discuss violent crime as if it was a monolithic kind of behavior. All states treat a great many things as violent crimes that do not involve actual injury to anyone or even a significant threat of it and many people incarcerated who are categorized as there on a violent offense may have actually violated their parole or probation on an offense like a non-armed robbery that may not have been very violent in the conventional sense to begin with.
Fourth, keep pretending mass incarceration does not exist
Dolnick's most oft repeated finding is that today's halfway houses are not the neighborhood centers of the past but giant institutions. This is an interesting an important point. It would be helpful to see more data on New Jersey's many halfway houses because the Bo Robinson Center in Trenton, which receives most of the attention, is a reception center designed to receive, classify, and reassign prisoners coming out of state prison and it may be quite different at other facilities. Indeed, reception centers are always problematic sites within correctional systems as they tend to aggregate all the problems of overstretched organizations. Still, even if Bo Robinson is somewhat representative of the new halfway houses, what about the prison system to which it relates? Since the 1970s America's correctional systems have grown massively (the national average is something like a quadrupling of the imprisonment rate between 1975 and 2005). Moreover, the prisons are not the one's many people remember from the 1970s (and project on today), rehabilitative oriented institutions filled with educational programs and treatment. Today's prisons are engaged in human warehousing with little or no effort at education or rehabilitation. At their worst, as in California, they are humanitarian crises in which prisoners weekly die of routine failures of medical care (like providing simple medications) and at their best they tend to be secure warehouses which is what New Jersey seems to have.
None of this is meant as a defense of the current system of halfway houses in New Jersey. As we move away from mass incarceration it is critical that we not fall into the presumption that unless perfect rehabilitative programs for each prisoner can be deployed they need to stay locked up (which I'm afraid is the not so implicit message of the Times' series on halfway houses in New Jersey). Those prisoners were not sent their for rehabilitation and many could be released tomorrow without posing a serious threat to public safety even if no halfway house was involved. No doubt we should offer reentry help to the people we have incarcerated (hopefully are fewer people in the future), but in ways that address real individual obstacles to successful survival in the community (educational, health, or employment) and do not conflate help with surveillance and control.
NOTE JUST READ THAT THE SUPREME'S HAVE FOUND LIFE WITHOUT PAROLE FOR JUVENILES UNCONSTITUTIONAL (WILL POST ON IT TOMMORROW)
First, never question the basic wisdom of arresting, detaining, and imprisoning people who have committed crimes (or who the police suspect in the case of arrest) no matter what crime or under what circumstances they committed them.
The two most significant victims discussed in the series, A woman detained at the Bo Robinson Center in Trenton who was raped, and a man robbed and murdered at Delaney Hall in Newark, should never have been in detention at all. Vanessa Falcone was convicted of forging prescriptions after becoming dependent on prescribed medications. Sending the 20 something stressed out single mother to prison for that was outrageous, a human rights violation (especially to her child) and an astoundingly poor act of public policy that benefited no person in New Jersey. The arrest of Derek Harris for outstanding warrants and driving an unregistered vehicle was also a highly questionable call. Harris was guilty of no more serious crime than being behind in obligations associated with his automobile, he did not deserve the humiliation and risk involved in being locked up (even at a proper county jail). The public officials responsible for these decisions are the real engineers of these tragedies but Dolnick's reporting never questions the wisdom of locking them up in the first place. Its like a reporter complaining that the state is doing a terrible job rescuing distressed swimmers from a river without ever asking why the state is throwing them in the rapids to begin with.
Second, always emphasize the role of prisoners or the formerly incarcerated in discussing society's crime problems
You would have to read the second story on Vanessa Falcone carefully to realize that she was raped by a janitor employed at the facility, someone with no previous criminal record, and not by someone locked up or formerly incarcerated. The whole key to mass incarceration as a public policy was to keep the public more focused on people locked up or formerly incarcerated people, while ignoring the fact that most crime is committed by people who are not locked up and have not been previously. If you took the latter seriously you would support effective strategies to keep people safe from crime through careful attention to organizational and environmental factors, as well as flexible and intelligent policing. All of these were and are absent in New Jersey, but you would miss that from "Unlocking" which as its title suggests, makes the main point the fact that people who could have been locked up in prisons and jails were held less secure places.
Third, use drugs as smoke and mirrors to expand the category of crime while switching back and forth between drugs and violent crimes to create a frothy mix of anxiety that can cover the ambiguity and chaos of
The the most significant problem emphasized at Bo Robinson was the suggestion that illegal drug use was routine (especially marijuana smoke). True, if you think that locking people up because they use drugs, in order to make them stop doing so, than may be the fact that lots of drugs are in an around these half way houses would be alarming. Some of the descriptions of Bo Robinson Center reminded me of the Freshmen dorm I lived in at Berkeley in the late 1970s. Now most college dorms wouldn't tolerate the clouds of marijuana smoke I remember, but that's at least in part because they are all "non-smoking buildings". There were at least two violent crimes described in the series (see the first point) but many more references to violent criminal and people committed of violent crimes. Even as we make some progress on demystifying the logic of the drug war, we continue to discuss violent crime as if it was a monolithic kind of behavior. All states treat a great many things as violent crimes that do not involve actual injury to anyone or even a significant threat of it and many people incarcerated who are categorized as there on a violent offense may have actually violated their parole or probation on an offense like a non-armed robbery that may not have been very violent in the conventional sense to begin with.
Fourth, keep pretending mass incarceration does not exist
Dolnick's most oft repeated finding is that today's halfway houses are not the neighborhood centers of the past but giant institutions. This is an interesting an important point. It would be helpful to see more data on New Jersey's many halfway houses because the Bo Robinson Center in Trenton, which receives most of the attention, is a reception center designed to receive, classify, and reassign prisoners coming out of state prison and it may be quite different at other facilities. Indeed, reception centers are always problematic sites within correctional systems as they tend to aggregate all the problems of overstretched organizations. Still, even if Bo Robinson is somewhat representative of the new halfway houses, what about the prison system to which it relates? Since the 1970s America's correctional systems have grown massively (the national average is something like a quadrupling of the imprisonment rate between 1975 and 2005). Moreover, the prisons are not the one's many people remember from the 1970s (and project on today), rehabilitative oriented institutions filled with educational programs and treatment. Today's prisons are engaged in human warehousing with little or no effort at education or rehabilitation. At their worst, as in California, they are humanitarian crises in which prisoners weekly die of routine failures of medical care (like providing simple medications) and at their best they tend to be secure warehouses which is what New Jersey seems to have.
None of this is meant as a defense of the current system of halfway houses in New Jersey. As we move away from mass incarceration it is critical that we not fall into the presumption that unless perfect rehabilitative programs for each prisoner can be deployed they need to stay locked up (which I'm afraid is the not so implicit message of the Times' series on halfway houses in New Jersey). Those prisoners were not sent their for rehabilitation and many could be released tomorrow without posing a serious threat to public safety even if no halfway house was involved. No doubt we should offer reentry help to the people we have incarcerated (hopefully are fewer people in the future), but in ways that address real individual obstacles to successful survival in the community (educational, health, or employment) and do not conflate help with surveillance and control.
NOTE JUST READ THAT THE SUPREME'S HAVE FOUND LIFE WITHOUT PAROLE FOR JUVENILES UNCONSTITUTIONAL (WILL POST ON IT TOMMORROW)
Sunday, June 17, 2012
The Iron Cage: Why its so hard to escape mass incarceration
For more than three decades state and local officials, egged on by the mass media and interested public employee unions, stoked the growth of prison systems in almost every state by greatly expanding the range of people considered eligible to go to prison. Plenty of local ne'er do wells that county prosecutors and judges would have kept in the community in jail, or under probation, got shipped up to the state prison system which was expanding rapidly, breaking down previous customary barriers to incarceration. Once in prison, the same local ne'er do wells now found themselves subject to both the pressures of statewide prison gangs (usually pretty formidable criminal organizations and often racists to boot), and when they get out, to far tougher scrutiny by state parole officers than they received in the past, with the result that many of them returned to prison. And so on...
But you know the rest. The nation's incarceration rate quadrupled, and in some neighborhoods a term in state prison had become bigger than college, the military, or marriage as a pathway to adulthood.
But all of that is so 2005. In 2012 we are two years into a national trend away of imprisonment. In some states, efforts have quietly been underway for years to reduce the flow of new prisoners and to move some prisoners out earlier. In other states like California, it has taken a massive federal lawsuit backed by the Supreme Court to force the state to reduce its population to relieve severe overcrowding that had created a humanitarian crisis. While there is a growing sense that mass incarceration has been morally wrong, it is primarily fiscal pressure that accounts for the progress made thus far. The real question is whether this can continue once there is less pressure on state budgets. If it is to be sustained it will require a generation of state leaders capable of taking on the powerfully embedded rationalities that supported mass incarceration and that make it so very hard to let it go.
To understand just how powerful those rationalities are and how widespread the responsibility for maintain them is, consider the New York Times. No national media source has done more recently to question the status quo of mass incarceration with numerous stories on prison conditions, wrongful convictions, and excessive severe sentencing. Yet on the front of its June 17, 2012 Sunday edition is a story by Sam Dolnick that has "Welcome Home Willy Horton" written all over it (read it here). Horton you will recall was the furloughed prisoner whose crime capades while released on an administrative leave from prison during Michael Dukakis' governorship of Massachusetts became a major theme of the 1988 Presidential campaign.
This time it is a Republican Governor Chris Christie whose Presidential ambitions look to be majorly damaged by the story headlined "As Escapees Stream Out, A Penal Business Thrives." While the story has a distinctly New Jersey air of state political cronyism, the master narrative is pure 1990s crime fear stoking. The title of the series which this leads off is "unlocked" (get it). Here is the tabloid version without the Times style empiricism. Tens of thousands of New Jersey prisoners every year are being let out of prison early to go to "half way houses" and every year scores of them "escape" (or actually walk out since in most cases the facilities have no legal authority to prevent anyone from leaving. Some of those "escapees" commit crimes. Indeed there is a neat illustration running across the right half of the full double page spread that the story opens up to. With the words "Crimes on the Run" in the middle, a graph showing escapes by the week from 2009 and below a photo line up of criminal faces (shades of Lombroso), mostly black and brown but some white and a list of ominous crimes including "murder", "assault on a police officer" or being arrested with a "cache of weapons and drugs" (what was that, five pocket knives and a lid of weed?)
No doubt some of these are serious crimes. The main one profiled involved the murder of a young woman by a possibly mentally ill prisoner who became involved with her while in prison and then broke out of the half way house he had been released to after she tried to break things off. He persuaded her to get in a car with him and was found strangled.
Against this background state officials, and especially Governor Christie are shown as feckless if not corrupt, praising well connected companies and expanding their contracts without evaluating the effectiveness of the programs or responding to the escapes (even after a Times investigation began last year).
No doubt the story raises important questions about how state contracts are made and evaluated and on whether industrial scale "halfway houses" are a productive way to do "reentry", but for now let's consider how the story frames efforts to reduce prison populations as endangering the public without any basis. First, you have to read way into the story to realize that the thousands of people coming from prison to halfway houses are doing so at virtually the end of their prison sentences. They are spending weeks or possibly a couple of months in a halfway house where they can begin seeking employment and restoring ties to their community rather than paroling directly from prison several weeks or a month or two later. So all of the danger that the article invokes in its image of thousands of prisoners in poorly secured halfway houses completely ignores the fact that all of them would be out on the streets without a halfway house in a short time. Would that additional six weeks in a state prison have made New Jersey citizens safer? The Times provides no evidence at all that additional time in prison would have rehabilitated or deterred these individuals or that the additional weeks of incapacitation would have done anything more than shift the dates of future crimes by a few weeks. The implication throughout the story is New Jersey was safer when these folks were behind bars yet no evidence is presented that crime rates have gone up as a result of the program.
The real deterrence here is for politicians who think about defying decades of wisdom that the only safe prisoner is in a prison cell.
Monday, May 28, 2012
School Desegregation and the Fear Years
UC Berkeley Professor David Kirp's powerful op-ed in May 20th Sunday Review section of the New York Times (read it here) restating the overwhelming social science case in favor of school desegregation drew a bevy of weighty and thoughtful letters in this morning's New York Times (read them here). That evidence shows that the educational gap between Whites and Blacks, recently embraced by both parties as the holy grail of reducing the accumulating disadvantages of generations of de jure racial segregation in America, shrank the most substantially during those years between 1970 and 1990 when school desegregation orders were most active in American states.
It was in these years that the epic legal campaign to desegregate schools which had achieved a historic Supreme Court victory in Brown v. Board of Education actually began to effect numerous schools around the country due to the increase in federal financial incentives beginning the 1960s and because desegregation orders began to reach large northern urban districts where generations of soft segregation strategies (based on residential segregation and school location) had left public schools almost as segregated as the infamous Jim Crow schools in the South. It was when northern Whites began to actively oppose desegregation orders in their own areas that political support for desegregation in the political parties began to collapse and its legal status come under sustained attack. Milliken v. Bradley, the crucial 1974 precedent that Kirp cites as the fatal wound against effective school desegregation by removing the possibility of metropolitan area wide desegregation strategies involved a northern school district, metro Detroit. By making it impossible for desegregation planners to reach White students whose parents had moved to the suburbs, Milliken guaranteed that White flight to the suburbs would make desegregation and empty gesture and the basic promise of forcing equal effort to educate Black and White children impossible to achieve.
Professor Kirp and his interlocutors share a general pessimism about the prospects of reviving school desegregation as a viable national project. Certainly the silence out of Washington D.C. during the nation's first national Administration to be headed up by an African American is no reason for optimism. But there is another reason, a very good reason to be optimistic that a new opportunity to meaningfully desegregate schools is upon us, actually two reasons. The first is that the White suburbs, where two generations of school children have grown up since Milliken secure in their White schools are facing a structural problem as the rising generation indicates in all kinds of ways that they would rather raise their families in cities where higher population densities, more cultural institutions, and the opportunity to reduce or eliminate automobile commuting. The housing bust has intensified this by reducing the appeal of home ownership, a market that pushed marginal buyers toward the most distant suburbs and the new economy seems likely to continue it by emphasizing flexibility and rental housing. These economic trends mean that newly forming middle class families (White, or Asian, or Mixed Race) are potentially available to the very urban school districts cut off from enough of them to meaningfully desegregate schools that became virtually all African-American and Latino in the 1970s.
The second, perhaps even more important to the viability of desegregation today, is the great crime decline that since the early 1990s has seen a dramatic reduction in violent crime (and indeed all kinds of crime) which was deepest in the large cities that were so much the fulcrum of white flight back in the 1970s (read Franklin Zimring's two crucial books on the crime decline). Then, in what I call the "fear years", the tripling of violent crime rates since the early 1960s and the violent rioting in African American neighborhoods of the late 1960s and early 1970s undermined any chance school desegregation in the North had of winning consent from Whites. Only the most ideologically committed White parents with means were willing to let their kids go to school with African American kids perceived as angry, undisciplined, and potentially violent. I know because my parents were the kind of ideologically liberal pro-civil rights parents who decided that Chicago's public schools in the late 1960s and early 1970s were just to chaotic and sometimes violent to stay in. Culturally allergic to the suburbs and with ways and means to put my brother and I into the University of Chicago Lab Schools (where President Obama's daughters went before 2009). One can revisit distortions involved in White fear as well as the many failures in the management of desegregation that made things worst. But it is hard to imagine how school desegregation could have worked given the squeeze the crime fear was placing precisely on middle class families to avoid urban schools.
But to young families forming now, the fear years of the 1970s are history and even the media shadows of those years that haunted the 1980s and 1990s have largely faded. They are the fertile ground for a new urban school offensive. Interested in living in central cities, and economically sensitive to the cost of private schools, this crime decline parents that is now going on will be well placed and potentially open to integrated public schools. If done well it might not even require race conscious admission criteria as much as investment in new buildings, state of the art technology, and the kind of staff rich and culturally senstive school regime designed to make everyone feel safe and included.
Wednesday, May 23, 2012
Governing Egypt through Crime
As Egyptians went to the polls Wednesday in an historic first ever free presidential election, David Kirkpatrick reports in the NYTimes that prominently on their minds is the rise of crime since the fall of the dictatorship (read the story here).
On the eve of the vote to choose Egypt’s first president since the ouster of Hosni Mubarak, this pervasive lawlessness is the biggest change in daily life since the revolution and the most salient issue in the presidential race. Random, violent crime was almost unheard-of when the police state was strong.With politicians competing on how to restore security, it is tempting to compare Egypt with the United States. The differences are too important to leave to second. Crime became a prime theme for political legitimation in the US after the 1960s when the US was already a mature democracy with well established law enforcement institutions and a highly developed economy. Egypt in 2012 is a developing economy (at best, perhaps a failing to develop economy) with no history of democracy and law enforcement institutions that lack credibility both in terms of effectiveness and human rights. Popular fear of crime in the America of the 1960s took the form of moving to the suburbs and purchasing handguns. In Egypt of 2012 it has resulted in mob lynchings. But while the differences are profound the commonalities are more than coincidence. In both places, police have been flawed institutions. In Egypt of 2012, the police remained deeply discredited by their history of petty corruption and fealty to the Mubarak dictatorship. While American cities in the 1960s had long established and by the standards of the developing world relatively professional police forces these police forces were also highly corrupt and deeply racist, they lacked legitimacy and credibility particularly in the minority neighborhoods. Indeed the relationship between white police and African American neighborhoods in cities like Oakland and Philadelphia remained so toxic through the 1980s that it approximated conflict zones like Northern Ireland. The crime wave the rocked America in the 1960s has never been adequately explained (the usual culprit being the oversized delinquency cohort of the post-war baby boom) but I believe it was bound up with the breakdown in the prevailing racialized system of public space in which police played a role in enforcing different norms in different parts of town, isolating certain rackets in minority areas, while keeping youth of color from congregating in elite parts of town. The civil rights movement and the cultural tide it brought to northern cities in the '60s helped sweep away that regime, but recalcitrant racist police forces (abetted by politicians)resisted the construction of an effective inclusionary regime to police public spaces in the large cities. The crime wave in Egypt is clearly related to the breakdown of the social control imposed by the dictatorship and the uncertainty as to the new forms of public order that will replace it. The use of lynching by mobs in some Egyptian locales suggests some residual identification with regime's methods of violent repression, a dynamic sociologist Angelina Godoy traced in post-genocide Guatemala. In Egypt in 2012 crime and insecurity are abetted by terrible poverty and the humiliations that poverty in urban conditions promotes. While we often consider crime in America in the 1960s to represent a paradox of deviance in an affluent society, the rapid deindustrialization of northern cities in the 1950s and 1960s was already leaving many inner city minority communities largely cut off from viable economic opportunities, a pattern that would grow markedly worst through at least the early 1990s. From these early reports the political competition around crime in Egypt today appears more promising than one might think from the American example where both major parties soon aligned behind mass incarceration. The leading Islamist candidates have tempered their promises of security with a commitment to reform and recast the police, and have made economic development for the poor the center of their political agenda. In contrast, the candidates most linked to the old regime are promising to unleash an unreformed police and no doubt fill Egypt's notorious prisons with yet more prisoners. Not surprisingly the candidates most likely to be welcomed by US media and political elites are the ones most likely to pursue US style governing through crime.
Monday, May 14, 2012
Hunger for Hope: Solitary Confinement and Administrative Detention in California and Israel
Cross national comparisons in penology are notoriously tricky, all the more so when the practices involved are the highly problematic one of holding prisoners in solitary confinement especially under "administrative" rather than legal judgment (meaning it is up to prison officials if or when the prisoner will be released). Comparing California and Israel is especially problematic since the former is a sub-national state and the latter is involved in an ongoing civil conflict over the identity and boundaries of the national state. Those caveats aside it is interesting that rare sustained political protests within prisons are have taken place in recent months (and in the case of Israel is happening today) direct specifically against solitary confinement under administrative control; in both cases the struggle is taking the shape of the classic weapon of the weak, a hunger strike.
In Israel, Palestinian hunger strikers have refused food for over seventy days and are at risk of dying if they do not take food soon. The strikers are protesting hardships imposed by the Israeli Prison Service in the later stages of the imprisonment of the Israeli corporal, Gilad Shalit, held hostage by Hamas forces, but which have been maintained despite Shalit's release last year, including a ban on academic study and receiving books, as well as the denial of family visits from Gaza and the larger issue of solitary confinement under administrative decision (read Jack Khoury's reporting in Haaretz here). According to the AP some 1600 prisoners are observing a hunger strike including 2 for over seventy days. Jack Khoury's latest reports as of Monday, am, suggested Israel might be ready to sign an agreement: "Included in the reported deal was the demand to cancel the policy of solitary confinement as well as granting visiting permits to the families of imprisoned Palestinians from Gaza." (read this story on Haaretz here).
In California, hunger strikes by prisoners throughout the system were directed against the practice of solitary confinement in permanent "lock-down" prisons known in California as "Secure Housing Units" or SHUs. These prisons follow a regime widely known as "supermax" in which solitary confinement is reinforced with procedures that prevent even casual contact between prisoners and other prisoners or even staff including as many as 23 hours a day within the cell or cell like environments whether for meals or showers. Compared to traditional solitary as a disciplinary punishment for prison misbehavior, California prisoners are often assigned to the SHU on the basis of a judgment by administrators that they are involved in a prison "threat group" or gang, and pose a threat to other prisoners and staff. Such assignments, never litigated before a judge, can last the entire sentence (which may be life). The hunger strikes last summer ended with a promise by the California Department of Corrections and Rehabilitation to review their SHU assignment policy and to consider humanitarian changes in regime such as permitting weather appropriate hats. In March CDCR released a report suggesting they would move toward a new assignment policy in which prisoners could earn their way out of the SHU without the paradoxical requirement that they prove their non-threat by becoming an informant or "snitch" (paradoxical because it results in spoiling any possibility of return to a general population prison for the snitch who becomes a subject in need of protective custody by virtue of informing). (For the latest on the prisoners' perspective see California prison Focus).
Despite the very different political logics in which prison authorities in both Israel and California have found themselves deeply dependent on administrative discretion over solitary confinement suggests some common themes and cautions. While they may have come to rely on administrative segregation (as this practice was known in a more benevolent form in the 20th century) through different routes, both prison services would do well to continue on recent indications of reform.
1. Wherever it exists, this kind of long term widespread administrative segregation reflects on a prison system that has largely abandoned in any hope of legitimacy in the eyes of its subject population. Given the widespread circumstances under which carceral institutions in different places and times have relied at least in part on legitimacy---consider the different ways in which the Big House prisons of the first half of the 20th century and the correctional institutions of the second utilized parole and mutual logic of institutional order---both Israel and the California should think long and hard before accepting this as inevitable. Prison orders that win even partial legitimacy in the eyes of their subjects, for example through procedural fairness even where the substantive justice of incarceration is contestable, operate better in every measurable way. This is a proposition that has been most significantly researched inside prisons in the UK, see the original work of Richard Sparks, Antony Bottoms, and Will Hayes, Prisons and the Problem of Order (Oxford University Press 1995); as well as Alison Liebeling, Prisons and Their Moral Performance: A Study of Values, Quality, and Prison Life (Clarendon Studies in Criminology) (Oxford 2005).
2. The historical experience of parole suggests a horizon of hope is an essential precondition for legitimacy in prisons. Prisons that cannot offer prisoners realistic hopes for going home, or at least returning to a dignified and manageable life, has little hope of achieving any more than a temporary ceasefire with its charges. This is a problem whose solutions lie well above the pay grade of prison managers. The politicians in both societies that have sold mass incarceration as a stable security strategy to nervous and racially skewed electoral majorities need to be held to account by a better more inclusionary politics and perhaps someday by their own truth and reconciliation commissions.
3. Prisoners represent a sleeping giant of an issue in the civil order of both societies. Palestinian national leaders who have staked their international prestige on limiting security threats to Israel from the occupied territories, have sounded openly alarmed at what might happen in Palestinian civil society, even one as discouraged by the past results of violence. In the US, riots like those that broke out last summer in the UK could well emerge in the summer of 2012 or 2013 if the re-election of Barack Obama, and continued quiet on the streets of urban America does not result in some significant efforts to retrench the twin indignities of aggressive policing and liberal doses of prison time that are accorded so many men of color in these United States.
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