Hope and Change Election?

It's more than just an echo of the Obama's 2008 campaign. The California ballot in 2012 will carry two measures aimed directly at the heart of the state's fear based political culture and the massive penal system it has spawned. The first, which was formally certified for the November election on Monday of this week (read the SacBee story here), will offer voters the option to repeal the death penalty for special circumstance murder and replace it with life without parole (LWOP). A second initiative was just submitted to the state for certification (read the SFChron story here) will offer voters the option to modify California's notorious three-strikes law, to require that the third strike (with its 25 year to life mandatory sentence), only applies to the "serious" or "violent" felonies, and not the assortment of felonies including so called "wobbler" misdemeanors that have resulted in life sentences before. Over the next months we will examine the proposals in more detail. Here I want to note the generational significance of this election. Since the 1960s, American national, state, and local elections and politics have been profoundly reshaped by the fear of violent crime (see my book Governing through Crime: How the War on Crime Transformed American Culture and Created a Culture of Fear). Sometimes elections have turned on crime as in 1988 when George H. W. Bush pulverized Michael Dukakis as soft on crime for his opposition to the death penalty, or in California in 1994 when Pete Wilson revived his recession weakened chances of re-election by seizing on public outrage at the murder of Petaluma twelve-year-old Polly Klaas. More often crime has simply lurked in the background, disciplining the candidates to hew to a narrow line around the most severe anti-crime policies, as in 2008 when both McCain and Obama raced to denounce the Supreme Court for striking down capital punishment for rapists of children. This will be the first election in memory where two measures aimed at reducing the severity of punishments at the very top of the penal spectrum, and which deal with violent or serious crimes (not the drug use crimes that have been the most common focus of penal reduction measures). Why now? The obvious candidates are the state's deep fiscal difficulties, the worst since the Great Depression which have seen cities go bankrupt and thousands of state and local services trimmed back and the fact that with some local exceptions, crime remains significantly lower than the peaks set during the 1970s, 1980s, and early 1990s, when many of the state's punitive policies were established. These trends have been magnified and publicized by the state's epic prison heath care crisis which drew the ire of the US Supreme Court in Brown v. Plata (which more or less declared California a less than civilized state engaged in torture) and resulted in an order to reduce prison populations by as many as 40,000 inmates from the level of 2009. By reducing the fear of violent crime and raising the attractiveness of cost savings with little actual risk, measures like the 3-Strikes modification and death penalty repeal are well designed to take maximum advantage of these trends, without push the envelope very much in terms of challenging the basic premises of California's hyper punitive penal code. But these trends are also being magnified by generational turning points that suggest even more significant turn away from governing through crime is possible. Here a different kind of numerology may be at work, not a trend, but the singular biblical span of 40 years, and its half, 20 years, which is the most common measure of a human generation (most common is 20 to 25 which points to 40 to 40 as the core generational span). In a recent New Yorker comment, Adam Gopnik offered a rule of (roughly) 40 and 20 years to explain popular culture trends. According to Gopnik, 40 somethings, who generally dominate cultural consumption are invariably fascinated with the world as it existed just prior to their coming into it. Thus the popularity of the 1960s in 00s, while in the 1960s themselves it was the 1920s that was hot. There is a secondary fascination with one's teenage years that leads to 20 year cultural pull (the 1970s saw a cultural fascination with the 1950s). I think a similar generational logic can help explain the power of this moment as a "hope and change" season on our penal policies (and perhaps our broader "culture of control". Consider the death penalty repeal. The measure would amend the state constitution, repealing another ballot measure constitutional amendment that was adopted by the voters in 1978, some 34 years ago; but that initiative was intended to expand the death penalty that had already been brought back to life through popular initiative in 1972, exactly forty years ago this coming Fall. Likewise Three-Strikes was put in the state's constitution by voter initiative in 1994, 18 years ago (close enough to 20). Here, however, it is not so much nostalgia, but the perhaps counter-balancing possibility of letting go that may be at work. The leading edge baby-boomers were entering their adulthood in the early 1970s (Bill Clinton turned 30 in 1975). Then Californians were reeling from years marked by the assassination of Robert Kennedy in Los Angeles in 1968, and the Manson family murders a year later in the same city. When the California Supreme Court struck down the death penalty in 1972, a few months ahead of the US Supreme Court's Furman v. Georgia decision, the homicide rate was still escalating in California and nationwide. Shocked by the violent crime of that time which had not much bothered them in the 1960s when they were in their teens and twenties, baby-boomers became the core of tough on crime shift in American politics and life. In the early 1990s, boomers were at the peak of their parenting years when people may feel most vulnerable to predatory crime, and violent crime was once again, after something of a trough in late 1970s and early to mid-1980s had reached a peak at the start of the decade and seemed alarmingly highlighted by events like the Los Angeles riot of 1992 and 1994 Polly Klaas kidnapping murder. Today leading edge boomers are edging into retirement (those that can) and are shifting focus to their legacy and the economic prospects of their grandchildren. The grip that the fear years of the 1970s, and its echo in the 1990s had on the boomers is diminishing as time and mortality work their healing. In the meantime younger voters, Generation X'ers and since, are coming into their power years without the same psychic response to violent crime that Boomers carried. True many of them were young when violent crime was at its peak in the 1980s and early 1990s, but young people are not put off in the same way. By the time X'ers began having children in the 1990s and 00s, violent crime was dropping. Some of these new parents were also rebelling against the boring securitized residential communities they had grown up in (a trend gaining even more momentum since the collapse of the housing bubble). It is possible that 2012 will see an electoral alliance of Boomers re-balancing their hopes and fears, and younger voters more worried about the economy and climate weirdness than whether Charles Manson will get paroled will make this a real hope and change election on crime policy. I'm hoping for a tidal vote, one that opens the door not just to incremental modification of our public policies, but to a fundamental reimagining of justice and public safety in California

Are US Prisons Degrading and Inhuman? European Court of Human Rights takes a Pass

A group of British terrorism suspects were a step closer to extradition to the United States today after a panel of the European Court of Human Rights (a chamber in their terms) declined to hold that confinement in the Federal government's notorious ADX "supermax" prison in Florence, Colorado, or the prospect of being sentenced to multiple Life without the Possibility of Parole sentences constituted "inhuman or degrading punishment" as prohibited by Article 3 of the European Convention on Human Rights (read the Court's press release here). The decision was a blow both to the suspects (including Abu Hamza al-Masri, a British Jihadi leader already serving a 7 year sentence for inciting racial hatred) who are facing charges related to multiple terror plots in the US and also to US human rights lawyers who had hoped to use the extradition issue to get the European Court of Human Rights to decide that US prisons and sentences constituted a human rights violation. A similar victory was achieved on the issue of the death penalty back in the late 1980s in the case of Soering v United Kingdom 11 Eur. Ct. H.R. (ser. A) (1989).

Supermax prisons and life without parole sentences are generally not practiced in Europe and there has been considerable opinion that both practices might constitute violations of Article 3. Recently another panel of the European Court upheld a "whole life term"in another British case, although the Court essentially found that the question of whether they had no meaningful chance at release was premature. See, Vinter and Others v. United Kingdom (Application nos. 66069/09 and 130/10 and 3896/10)

This case has much the same feel. The European Court of Human Rights like most courts, tends to work hard to construe the facts in such a way as to avoid having to declare the practices of its member states violations of human rights. While this case did not involve a member state, a ruling in favor of the prisoners would have called into quesiton extradition from European countries to the United States in all kinds of cases where either either supermax imprisonment or life without parole sentences were a possibility. Furthermore, while the Court may be less reluctant to morally condemn the US than its own member states, a favorable ruling here would have drawn comparisons between US justice and states like Jordan where the European Court of Human Rights had only recently prevented an extradition of a terrorism suspect.

On supermax the European Court of Human Rights panel chose to accept the most positive possible account of life in the ADX, citing the fact that prisoners would receive a variety of services not available in European prisons:

Besides, ADX inmates – although confined to their cells for the vast majority of the time – were provided with services and activities (television, radio, newspapers, books, hobby and craft items, telephone calls, social visits, correspondence with families, group prayer) which went beyond what was provided in most prisons in Europe.

European prison experts may be surprised by this (as I am), but it may reflect the slippery use of comparison. Perhaps television is not available in some European prisons but I would doubt that social visits by family are forbidden in any (indeed it would almost certainly violate separate provisions of the Convention which protect family life). Also, the federal government's supermax regime with its "stepdown" program for prisoners to move toward reassignment in the general population is considerably more humane than many state systems (especially California's which is only discussing adopting a stepdown approach).

On the life without parole issue, the European Court of Human Rights panel emphasized that if the prisoner facing the LWOP sentences were found guilty of the crimes charged, such a sentence would not be disproportionate. This still leaves open the possibility that a future panel of the European Court would act in the future when a more ordinary murder suspect (or a juvenile one if the Supreme Court upholds juvenile LWOP this summer) facing extradition to a likely LWOP sentence in the US seeks its intervention.

Yet even this must be qualified by the fact that in the recent decision on "whole life" terms, another panel of the Court was reluctant to fully accept the permanence of a whole life term, noting that possibilities for executive clemency remained open and that the case might present a different posture if it was clear that such possibilities had been effectively foreclosed. Clemency remains in the US as well, but in reality is never used, something a foreign court could easily discount. Compassionate release, the practice of releasing prisoners in terminal illness when public safety is not in danger, widely practiced in Europe and probably a human rights requirement, is generally not available in the US. The harsher realities of the US system were probably argued by lawyers for the prisoners and others but the Court have been reluctant to accept a realist assessment at least before any such sentence had actually been handed down.

For many of us engaged in the struggle against mass incarceration and its most inhuman instruments like supermax and LWOP sentences, the European system with its Court of Human Rights as well as other human rights organs of government has been a beacon. This decision by a chamber of the European Court of Human Rights seemingly upholding both should not discourage. When the law of dignity through the 8th Amendment of the US Constitution begins to come to the fore, it will be rightful place of American courts to find these practices unconstitutional.