Policing Disorder: Oakland's curious commitment to criminalizing occupy

If you accept Oakland Mayor Jean Quan's framing of the problem here Saturday night, a crowd of unruly and overgrown children had a tantrum/play-date at the expense of Oakland's hard pressed citizens when some of the displays on the ground floor of Oakland's City Hall were vandalized (see the pictures in the SFChron here). Attacking a century old model of the city seems pathetic and mean spirited. But that framing places the attention on the second act of an event which began when an overwhelmingly peaceful march and a long telegraphed "take over" of the empty Henry J. Kaiser convention center on the shores of Lake Merritt and close to the campus of Laney College was confronted by a violent all out assault from Oakland riot police supported by units from nearby police agencies (read the reporting of David Baker and Vivian Ho in the SFChron here). It is clear that the vandalism in City Hall, pathetic as it is, was a response to police violence and not a provocation for it.

Why exactly was it necessary to use violence against citizens, and expend no doubt large amounts of money, to prevent Occupy protesters from setting up a symbolic protest occupation in the shell of an unused property that provides a potent symbol not only of Oakland's industrial past but also of the role of government in creating an economy for the 99 percent (Kaiser being the ultimate New Deal entrepreneur, see Alonzo Hamby's 1993 review of The New Dealers, by Jordan A. Schwarz, in the NYTimes here).

The Mayor's stated positions in speeches and interviews amounts to "its illegal". But that is a bit like those on the far right who find in the "illegal" status of people here without citizenship or proper visas, justification to strip people of civil and sometimes human rights. Just because its "illegal" does not mean that government should adopt a repressive response, let alone violent means to address it.

What if Mayor Quan had welcome the take over of the Kaiser Center with a speech about the role the New Deal had played in building a middle class centered economy for Oakland and then laid out the following conditions:

The "occupiers" must coordinate with the Oakland police to assure the HJK center is a safe environment for women, children, and all who are involved in or visiting the symbolic take over and that living conditions in the Center remain decent.

The "occupiers" must maintain a decent and healthy physical environment in the HJK Center and its surrounding landscapes, and commit themselves to undertake repairs sufficient to make sure the occupation is safe and that the building is in better shape after the occupation than before.

The "occupiers" must not use the HJK Center to stage acts of violence against people or property anywhere.

Why are the Oakland police and the Oakland political establishment so committed to criminalizing the occupiers? Oakland has enough real crime for the police to focus on. Why not negotiate a security arrangement appropriate to any "occupation" and then back off, taking advantage of the positive social organization that will take place around any active "occupy" site, and redeploy police to crime hotspots? These crowds, which include lots of people of all ages, including parents with children, should be welcomed in every part of Oakland. Frankly the city needs the energy. You simply did not read about Oakland in newspapers like the UK's Guardian website/newspaper before the Occupy Movement.

Talking ourselves down: Watching the Obama strategy on immigration deportation

Julia Preston offers a meaty story on the Obama administration's initiative to use prosecutorial discretion to ease the severity of the nation's immigration law (read it here). At first blush, the story has little to suggest that this policy provides any help to those of use looking move the criminal justice system away from its rigid laws and policies channeling those arrested toward incarceration. After all, those who may receive a resolution of their deportation case will not be the ones with criminal convictions, who will be targeted as deportation priority cases. In some of the most sympathetic cases, profiled in the story, the detained aliens seeking release only became illegalized because of rigid state laws requiring notification of the Immigration Control and Enforcement agency and rigid federal laws preventing immigration judges from considering the individual circumstances of the person who is often in a family with citizens and contributing through legal work and good behavior to the community.

Still, this program is about moving people out of detention (albeit civil) through prosecutorial discretion legitimized by a reasoned effort to identify higher risks and to concentrate the government's coercive power on them while moving low risk individuals back into the community with as little harm to them and their families, and as little cost to the government as possible. The same reasoning applies to many of the two million Americans behind jail or prison bars as a result of rigid laws that in the name of public safety require incarceration with little consideration of the risk posed by the individual or the positive contributions they might be making to the community. California's "realigment" of correctional authority, which is moving thousands of felony convictions from state prison to county corrections and giving county decision makers more power to withhold incarceration for those posing low risk.

The move toward a more overtly risk based system brings serious human and civil rights concerns. How is risk assessed? Do dynamic factors get due weight or only static qualifications (like early arrest) that are partially determined by law enforcement? Still, our current approach in both immigration and criminal justice is worst, imposing higly alarmist risk perspective on entire categories of people.

Pardon Season

It is January, the month when among other things political officials who have lost election, termed out of office, or simply decided to quit, leave their offices and their successors. Thus you'll always think of Presidents by their election year, but Obama became President in 2009, January 2009. In any event, historically the passing of executive leaders and the start of terms (or sometimes just the New Year itself) has been associated with the practice of pardoning prisoners. Sometimes, that meant all the prisoners, but more typically it has meant a select few. This kind of celebratory pardon, that marks the change in executives, as opposed to those based on meritorious consideration of a legal request for pardon based on changed circumstances or new evidence, is a fascinating reminder of the "old logic" of punishment, when the power to punish was an expression of personal sovereignty and its remission a sign of benevolence at the top. It also recalls a time when releasing prisoners was a populist gesture, intended to warm the hearts of the public and cause celebrating in the towns and villages to which sons and nephews thought dead or lost. It is in perfect keeping with this old logic that North Korea's communist monarchy marked the ascension of the latest Kim to rule nation with a sweeping pardon of prisoners.

In late modern democracies however, pardons are something of a scandal (recall what happened when Bill Clinton made sudden burst of pardons as he left office, some of them seemingly warranted by special generosity in donations to his Presidential library among other things. American politicians in the age of Governing through Crime never want to appear to be sympathizing with a criminal. Thus pardons even much merited by inequities in the original sentence and excellent behavior in prison and sitting presidents and governors tend to reserve their pardons for symbolic gestures to sometimes dead prisoners whose families have sought to clear their names. It is a sign that punishment is seen as an entitlement of the general public, a small "d" democratic festival of pain in which not executive charisma but public safety is the coin of the realm.

Well God Bless Mississippi. That's where you want to be on the day the world ends because everything happens there a couple of years or maybe a couple of decades late. Thus I should not have been suprised at today's AP story by Holbrook Mohr (read it here in the SFChron) describing Governor Haley Barbour's pardoning of five prisoners, four of them in prison for murder, as his term ended in Jackson, citing tradition. The recipients in this case invoked another old tradition, one that survived in many state houses through at least the 1960s (but I suspect has disappeared almsot everywhere else than Mississippi), inmate "trusties" who serve the governor and his family in their mansion. This tradition, which also invokes the monarchical logic of personal sovereignty (and slavery of course) generally involved prisoners serving life (who paradoxically had the most to lose since parole was expected but could be lost by bad acts). Barbour, who is nothing if not a traditionalist, defended his acts as a required gesture in no way intended to disrespect the victims of the crimes committed by the prisoners pardoned. Not surprisingly this was scene as anything but a populist gesture and was quickly seized upon by the opposing party.

The pardons outraged victims' relatives as well as Democratic lawmakers, who called for an end to the custom of governors' issuing such end-of-tenure pardons.

"Serving your sentence at the Governor's Mansion where you pour liquor, cook and clean should not earn a pardon for murder," Public Service Commissioner Brandon Presley, a Democrat, posted Monday on his Facebook page.

No doubt it is hard to defend the traditions of celebratory pardons or of having life prisoners working as personal servants for the governor. But its hard not to admire any mechanism that ends a lengthy imprisonment no longer required by public safety or respect for the seriousness of the crime, or that showcases trust in the potential for people who commit even the worst act to change for the better. Pardoning seemed old fashioned in the mid-20th century when prison sentences were often short anyway and when parole was reqularly used to release even those convicted of murder. Today, when a generation of tough on crime politics has eliminated parole in many states and led to an epic increase in the length of sentences for crimes, when ex-prisoners face a lifetime of economic and social exclusion, and when many states are struggling under the cost of maintaining historically huge prisoner populations we need to invent some new forms of remission.

Vietnam and Bad Habits

NPR's Alix Spiegel offers up a fascinating feature on the contemporary social science of behavior change that sheds light on a forgotten corner of the war on drugs with lots of implications for present conundrums of criminal justice reform (read, What Vietnam Taught us about Bad Habits). When President Nixon described illegal drugs as "public enemy number 1" in his now famous June 1971 speech announcing the formation of a presidential "Special Action Office of Drug Abuse" he was responding specifically to a spike of public concern and media attention based on reports from two Congressmen who had toured Vietnam in May, that 15% of servicemen in Vietnam were addicted to heroin. As Spiegel notes "at that point heroin was the bete noir of American drugs" considered almost impossible to recover from. Those who had already sacrificed by doing combat service seemed poised for a life of drug addiction and despair.

Spiegel introduces us to Jerome Jaffe (remarkably still alive), the psychiatrist and drug addiction expert that President Nixon appointed to head up his new executive initiative, one aimed at developing effective practices to treat heroine addiction generally and in this Vietnam cohort in particular. Under this remarkable and little discussed project perhaps the most comprehensive effort in history to identify, treat, and follow up the treatment of heroine addiction was undertaken under the direction of one of the leading social scientists of her time, Dr. Lee Robins of Washington University (read her Wikipedia entry here).

Soon a comprehensive system was set up so that every enlisted man was tested for heroin addiction before he was allowed to return home. And in this population, Robins did find high rates of addiction: Around 20 percent of the soldiers self-identified as addicts.

Those who were addicted were kept in Vietnam until they dried out. When these soldiers finally did return to their lives back in the U.S., Robins tracked them, collecting data at regular intervals. And this is where the story takes a curious turn: According to her research, the number of soldiers who continued their heroin addiction once they returned to the U.S. was shockingly low.

"I believe the number of people who actually relapsed to heroin use in the first year was about 5 percent," Jaffe said recently from his suburban Maryland home. In other words, 95 percent of the people who were addicted in Vietnam did not become re-addicted when they returned to the United States.

This dramatic experiment is actually just the lead-in to Spiegel's real story, which is on what this incident teaches us about how bad habits are shaped and how we can change them. I want to return to her lead in a moment, but a few notes on this fascinating episode of politics, social science, policy, and power.

The Vietnam connection is a fascinating and little discussed aspect of the war on drugs. The specter of a drug addicted army surely played a crucial role in formulating the political culture around crime that we are still trying to recover from. Vietnam in 1971 was already considered a lost war and one that Nixon had promised to end. The heroin story surely helped lift some of the blame for the war from the politicians who had chosen it, and onto the backs of the very soldiers who had been largely conscripted to fight it.

Not only were they not going to receive a hero's welcome home, they were now stigmatized as drug addicts. As Spiegel notes, this seemed tragic but it also must have been alarming. At a time when Americans were already deeply fearful of violent crime often linked in the media with robberies committed to sustain a heroin habit, they were being told that a large minority of Vietnam vets were likely to be heroin addicts for the rest of their lives (without of course, knowing who, and therefore suspecting all). Whatever stigma the anti-war movement may or may not have caused Vietnam veterans through talk about war crimes in Vietnam, we can agree that it must pale behind this. Needless to say the impact must have been particularly profound for Black and Latino veterans whose expectation that military service would accelerate their economic and political progress in American society was at least in part undone.

The Robins study is fascinating on a number of different dimensions:

It highlights the fact that Nixon was perhaps our most social science oriented president (even though modern day conservatives have treated any social science other than economics and electoral political science as something akin to treason).

It also reminds us that a war on drugs, for Nixon was still much about treatment and rehabilitation rather than punishment. This was an era that still believed science based policies could address rising crime. It was fall to later politicians, both right and center left, to embrace a nothing works but prison attitude.

The self report finding of 20 percent is staggering (how many were reluctant to self identify?). Apparently what WWI was to cigarettes, Vietnam was to heroin, the launching of a consumer culture of addiction with lethal consequences. Surely this shadow of war has proved far more deadly (at least in the case of the expansion of cigarette use) than the actual fighting by a multiple.

The fact that those who did admit to being addicted to heroin were then subject to something a kin to involuntary detention in Vietnam for purposes of drug treatment makes this an extraordinary (if justified) chapter in the history of civil commitment.

Why did the good news that heroin addiction in veterans could be beaten (with fewer than five percent returning to heroine use) get so little cultural uptake (Spiegel suggests it was controversial but does that mean it was widely publicized?) May be the truth was just too far out of line with the cultural narrative about heroin to be convincing (which suggests just how unrealistic most "evidence based policy" aspirations may be). The result was disastrous. What might have been a just in time reminder that rehabilitation may be a realistic was to prevent crime, was lost on the eve of a shift in our penality toward exclusionary punishments.

Going back, briefly, to Spiegel's story about behavior change, recent research seems to provide a satisfying explanation for why Robin's 1970s study found such low recidivism rates. Vietnam soldiers were most people who were exposed to and got addicted to heroin in Vietnam. After being treated they returned to their communities in the US. While much our post Vietnam narrative is committed to describing that return as troubled, it appears to for the vast majority it was a world in which they no longer felt compelled to use heroin.

According to the behavioral psychologists interviewed by Spiegel, Wendy Wood of USC and David Neal, a great deal of our behavioral control is implemented through our spatial environment which routines are response so that we do not need to (or get to) think about much of what we do. For addicts this means that the routine spatial associations for use are a trigger that can and usually does overwhelm will based efforts to not use. The example given is smoking at the entry of an office building. For an addicted smoker, the approach to the building is a powerful signal to light up.

In the language of behavioral psychology we "outsource" behavioral control to the environment (something sociologists and anthropology also recognizes in Pierre Bourdieu's concept of "habitus") this suggest that self conscious efforts to change behavior, even if reinforced by a coercive state effort through police, courts, and corrections, face an up-hill battle unless they coincide with radical efforts to reshape the environment that a person is habitually acting in. This is likely not only to be true of classic addictive behaviors like drug use, but also other criminally relevant behaviors like aggression and theft.

Two quick notes on this behavioral lead of Spiegel's story (which is reflecting on the low odds that many of us will fulfill our behavioral new years resolutions).

Vietnam was not just another place, it was a place where soldiers were killed and being killed. Heroin use was not just another behavior, it was a behavior with a particular relevance to relieving the pain of inhuman conditions created by war. This suggests that the Robin's study may be less relevant to behaviors less determined by such extreme conditions (that is people whose addiction is associated with great pain may be easier to treat if the pain goes away). At the same time it may have particular relevance for behaviors associated with crime, which may be rooted in experiences of inhumanity, whether child abuse, grinding poverty, or degradation at the hands of the youth control complex (see Victor Rios, Punished).

This research seems particularly relevant to the problems of trying to reduce dependence on prisons in California. Prison first of all, is a particular environment, to the degree that we move large numbers of Californians out of regular contact with prisons we may actually have an opportunity to promote better behavior among the people we have been routinely sending to that highly criminogenic environment (change is not, of course, guaranteed by a change in environment, just facilitated). But second, to the degree that measure the success of alternatives to imprisonment in terms of behaviors like drug use and gang associations, we will face a difficult struggle so long as most people leaving prison are returning to environments that got them into trouble with drugs or gangs to begin with. We need to make sure our assessments acknowledge this "legacy effect" so that we do not prematurely dismiss innovative efforts to change behavior.