Dignity?

Here's what haunts me about this picture of Utah prisoner Ronnie Lee Gardner raising his hand to take the oath before testifying in front of a clemency board. It's not that Gardner, who had already spent 25 years in prison for killing a stranger during an attempted courtroom escape, has to plead for his life at a time when in virtually every other nation on the planet he would be up for parole if not already released from prison. It is the water bottle. Why did the state of Utah put a plastic water bottle in front of this killer they hated so much they wanted to kill him? Why not let him plead for his life with a dry throat? Why not let him struggle to move a tongue thick with the enormity of his task through a mouth dry with the yawning gap of eternity opening before him? By placing that plastic water bottle in front of Gardner, Utah may have only meant to assure that his words would be understood by the clemency board or properly documented by the transcribers. But maybe, just maybe, Utah coudn't help noticing he was a human being.

According to Jennifer Dobner of the Associated Press (read it on MSNBC here):

SALT LAKE CITY - Death row inmate Ronnie Lee Gardner died in a barrage of bullets early Friday as Utah carried out its first firing squad execution in 14 years.

Shortly before the shooting, Gardner was strapped into a chair and a team of five marksmen aimed their guns at a white target pinned to his chest.

He was pronounced dead at 12:20 a.m.

Governing through War

When I talk to people about how the "war on crime" transformed American politics and law since the late 1960s (the subject of the book Governing through Crime) one of the most interesting questions I get is whether the problem is more with making "crime" such a privileged target of national anxiety and identity, or whether the problem isn't with the "war on" metaphor itself, whether it attaches to cancer, poverty, terrorism, or crime. My short answer is that "crime" is the problem, and the "war" metaphor is a historically durable feature of at least US national governance. President Obama's first "Oval Office" address last night (read the transcript), brought the question back to the fore. While he never uttered the "w" word, he all but declared war on the catastrophic oil leak in the Gulf of Mexico and on America's dependence on oil more generally. Sounding downright Churchillian, the President told Americans:

But make no mistake: We will fight this spill with everything we’ve got for as long as it takes. We will make BP pay for the damage their company has caused. And we will do whatever’s necessary to help the Gulf Coast and its people recover from this tragedy.

Tonight I’d like to lay out for you what our battle plan is going forward: what we’re doing to clean up the oil, what we’re doing to help our neighbors in the Gulf, and what we’re doing to make sure that a catastrophe like this never happens again.

The war, as a metaphor for powerful and just governmental action of all sorts, perhaps dates from the Crusades and has been reproduced in Protestant culture by a whole series of revival and social improvement movements in the 19th century. I believe (on pure speculation) that its installation as the preferred metaphor for US Presidents seeking a national mandate for action dates to World War II and FDR's rhetorical mastery in unifying a potentially very divided nation behind the real war against Fascism. The Cold War against the Soviet Union and its allies extended war into a generalized mode of struggle on every front. Presidents Kennedy, Johnson, and Nixon, liberally declared war on poverty, crime, cancer, and drugs. President Obama explicitly invoked World War II and implicitly invoked the Cold War through mentioning the Moon landing project (which was at bottom a Cold War military operation).

But the one approach I will not accept is inaction. The one answer I will not settle for is the idea that this challenge is somehow too big and too difficult to meet. You know, the same thing was said about our ability to produce enough planes and tanks in World War II. The same thing was said about our ability to harness the science and technology to land a man safely on the surface of the moon. And yet, time and again, we have refused to settle for the paltry limits of conventional wisdom. Instead, what has defined us as a nation since our founding is the capacity to shape our destiny -– our determination to fight for the America we want for our children.

While other societies seem much less attracted to this metaphor, its appeal in the US is twofold. First, our national government is extraordinarily weak constitutionally speaking and easily diverted from sustained efforts at social change. Combined with an individualist ideology that yields little presumptive share to the common good, it is understandable that Presidents have found it essential to invoke war metaphor if they want to project national power beyond its current brokered arrangements. Second, most of our wars, and all of them in the 20th century, have been fought primarily on other shores. With inflated spending and normally troublesome young men shipped overseas to kill others, war-time has often been "good-times" in America.

War as a metaphor brings some nasty features including intolerance, excess, tunnel vision, and a general aggrandizement of power and authority. However these are just the flip sides of its virtues. In my view it was the crime part of the equation that caused all the problems. A "war on crime" was especially destructive because it encouraged Americans to push all kinds of social problems into the constricting metaphor of crime with its focus on individual bad conduct, its heavy legacy of racial domination and demonization, and it empowered some of the (at the time, in the 1960s through the 1980s) most repressive and residually racist institutions in American government including local prosecution, police and prisons.

In contrast, a "war on oil" or "carbon" or "infrastructure failure" or whatever, exactly, President Obama has in mind --- is likely to unleash very different (if inevitably unpredictable) dynamics. The focus on large corporations (like BP), highly technical risks (like deep water drilling or climate change), and America's own consumption patterns, is likely to encourage a very different kind of "idealized citizen subject" than the "crime victim" projected by the war on crime. The call to reinvent regulation, produce new technologies, and change how we live, is likely to empower sectors of government at the national and state level that are relatively new and unshadowed by troubling legacies of failure and scapegoating.

Could we govern without fear? Love can work for a lifetime among individuals, and among communities for a summer or two, but I'm afraid at 50 I find myself with Hobbes on the reliability of fear. Not necessarily fear of the sovereign, but more precisely a sovereignty constituted out of fear.

The Crying Game: The Mehserle Trial Starts in LA

The opening of the murder trial of Johannes Mehserle today in Los Angeles once again brings the issues of race, criminality, and police violence back to the foreground where they have so often been in Los Angeles, and Oakland the city where Mehserle admittedly shot Oscar Grant on the platform adjoining a BART station on January 1, 2009. Such trials, like the one nearly twenty years ago of LAPD officers for beating Rodney King, provide multiple opportunities to work and rework all the themes of America's racial nightmare. But while these trials often reinvest meaning in this emotional race narrative, they often ignore the more salient background for interpreting the behavior of both defendant and victim, that is the war on crime.

Every major motion decided in the case to date has raised fundamental question of quality. The decision to move the trial to LA because of adverse publicity in Oakland (a defense motion almost never granted outside of police trials) greatly enhanced the chance that no African Americans would serve on the jury, a possibility that came true yesterday when a jury was seated without a single African American member with the defense using troubling preemptory challenges to remove three. Remarkably, most experts quoted by Paul T. Rosynsky in his reporting for the Oakland Tribune focused were sanguine about the impact of the absence of a Black perspective in the jury.

"I don't think any of us would say that if you were black that would be an automatic guilty vote," said Michael Cardoza, a Northern California civil and criminal attorney. "When the district attorney (agreed to the jury), he liked the 12 people that he had compared to what was remaining.

"In fact, former prosecutor and now criminal defense attorney Darryl Stallworth said he has witnessed numerous cases in Alameda County in which black jurors made decisions against other blacks, including in the "Riders" Oakland police misconduct case.

During that case, in which three Oakland police officers accused of criminal misconduct were defended by the same attorney representing Mehserle, a black juror served as a foreman of a jury that acquitted the officers, Stallworth said.

"I have never had a case, either as a prosecutor or a defense attorney, where I felt that if I had more African-Americans on the jury, the case would have had a different outcome," Stallworth said. "It shouldn't matter at all."

Added Laurie Levenson, a professor at the Los Angeles-based Loyola Law School: "In this day in age, it is not fair, and it is a little bit racist, to say you have to be black to have empathy for blacks."

In another significant victory for the defense, the jury will learn about previous encounters with the police where Oscar Grant tried to escape or resisted arrest. This highly prejudicial information about possible past misconduct is being permitted in to allow Mehserle to argue that Grant's behavior that night signalled a degree of danger to a professional police officer that was not obvious to viewers of the video. In a significant victory for the prosecution, however, Mehserle's lawyer will not be allowed to tell the jury that Oscar Grant was on parole following a state prison sentence at the time of his encounter with Mehserle.

What neither side is likely to tell the jury is that both Mehserle and Grant were bit players in a low intensity civil war that has been fought in cities like Chicago, Oakland, and Los Angeles, at least since the 1960s. Much like the Irish troubles that began in those years, any particular incident can be analyzed as a problem of choice and malice. Why did Oscar Grant, who had a baby daughter he was proud of, a job and a girlfriend, engage in activity that got him arrested in the first place (know he was on parole and could be sent back to prison in a blink)? Why did Mehserle, who already had Grant prone on the ground and was surrounded by other police officers ever decide to Taser Grant at all (his apparent "accident" defense). In each case, the conflict was scripted long before this particular incident. Grant was no hardcore criminal, as his social ties and economic role attest, but he had already accumulated enough convictions to send him to state prison as a young man, the fate of the majority of black men who grow up in Oakland. Mehserle was on the other side, a soldier in a war on crime where the enemy has a presumptive face (black or brown).

In the end the jury will be asked to decide whether in Mehserle's trained eyes, Grant was so much of a threat that he felt endangered enough to be reaching for a serious weapon (the taser) and accidentally drew and fired his service revolver. If he is convicted of murder, Mehserle will serve at least 16 years in state prison (although average 2nd degree lifers serve a good deal more). If he is acquitted or the jury hangs (quite likely), the streets of Oakland will be the location for yet another enactment of our forty year civil "war on crime."

Unlike the Irish troubles, or the Israel/Palestine conflict, it is hard to imagine what a political settlement would look like, or who exactly could negotiate it. It might include a pardon for Mehserle (if he is convicted) and parole for long serving California prisoners convicted of killing law enforcement officers (who generally face a blue wall for resistance to parole no matter how much they have changed their lives). It must include a different public safety model for cities like Oakland, one that does not produce "order" by arresting black and brown young men.

Hope for Change in Gaza Today, America's Penal Estate Tommorrow

The analogy is not as ludicrous as it may appear. Gaza has been compared to a prison. Without disrespect to the forms of social, architectural and community life that go on there (a place I have never visited), some analogies can indeed be drawn between a prison and Gaza under the Israeli/Egyptian blockage, namely: collective punishment, overwhelming (and often irrational) security rationalities, and the cycle of resistance that often takes the form of empowering the most violent criminal gangs (which is my view of Hamas for the record).

But the light shone by the May 31st Israeli assault on the Gaza bound flotilla is more about the fatal problems of governing through fear than the conditions of prison life. The Israeli handling of the whole situation, and even much of the critical reaction inside Israel, reflects the limits, indeed the folly, of trying to resolve a political conflict with a "demonize and punish" strategy. Having convinced itself and its public that the enemy inside the "prison" is an irredeemable, unnegotiable threat to its existence, the Israeli political class has trapped itself in a predictable (to its enemies above all) repertoire of military-penal moves that can only inflame internal resistence and degrade the legitimacy of the on-going blockade itself (if not the Israeli sovereignty project as a whole). Meanwhile, its internal political discourse, shaped by the same security logics, can only cycle around the usual technical concerns: were the right troops chosen, tactics utilized, command channels followed, etc.

The end is clearly near for the Gaza prison experiment as Israel finds itself in an unsustainable position. What will happen once the prison gates are open, is of course, not predictable. (But I for one would bet that its better than what we've seen for the last three years of war and conflict).

Would we were so close to breaking out of the US prison experiment. Sadly, on that score the analogy is quite tight. Having convinced ourselves that the prisons hold massive numbers of existential threats, our political class can only cycle around investing ever more of our treasure and legitimacy in a war on crime (and now terror) that cannot ever reduce the fear on which it is based (even if crime goes down, as it has). Meanwhile our internal debate will continue to cycle through issues like re-entry, and alternatives to prison for some non-violent drug offenders, while the reality, that we hold vast numbers of people who could live in their communities without threat to the rest of us disappears in a thousand fragments.

Sadly, on this score, Obama may be as clueless as Bibi

Hope and Change, Hope and Change, Hope and Change

Fear This

The BP catastrophe, following the devastating failures of security infrastructure protecting New Orleans during Katrina, is a warning we cannot ignore. We must pivot from the long forty year obsession with violent crime (now terrorism) to address the real threat that is at our door, catastrophic infrastructure under investment. We need a war on infrastructure failure. Forty years ago Charles Manson might have been the scariest thing menacing suburban homes, but today, the combination of a volatile planet, climate change, and systematic underinvestment in our security infrastructure is what is stalking us. This failure of public infrastructure, combined with the need to seek energy resources in extreme circumstances (like 3000 feet under the Gulf of Mexico) has created a new a very real threat to life and property.

For decades we have been told not to worry about our infrastructure. Committed to spending billions of dollars to incarcerate tens of thousands of our troubled neighbors (regardless of the real threat they pose), we simply don't have the money to invest in water pipes, energy systems, electricity grids and other basic infrastructures we need for survival. The devastation of the Gulf is the final alarm. It is time to take stock of the true cost of the investments we must make to achieve some security against these very real threats of fire, flood, earth quake, and disease. We must rewrite our state sentencing laws and ultimately close prisons to re-deploy our resources to the infrastructure front. We must find ways now to make our communities more resilient in the face of the environment/infrastructural threats that our major metropolitan areas now face.

The farce on the border is exactly the wrong direction to go!

The Co-Pander-In-Chief Sends Troops to the Border

Of course I understand the need to compromise. Comprehensive immigration reform will require massive doses of tougher enforcement. Fear of "losing control" of the border must be addressed before the shear inhumanity of hunting down undocumented workers and disappearing them from their children without a word can be ended (at least for a few). Still, there are times when the terms of stroking America's unself consciously racialized victim identity is so odious that one must protest. Randal C. Archibold in the New York Times reports that:

Calls to send troops to the border mounted after the shooting death of a rancher in southern Arizona on March 27; the police suspect the rancher was killed by someone involved in smuggling. Advocates of a new state law in Arizona that gives the police a greater role in immigration enforcement also emphasized what they considered a failure to secure the border as a reason to pass the law.

Are you kidding? One rancher is dead and drug smugglers may be involved! By those terms Richmond and Oakland should be occupied by divisions of National Guard troops.

Shaming the Three Strikes Law

If we are to ever escape the gravitational pull of mass incarceration, we are going to need not just more jeremiads against our current regime, but positive accounts of pathways out. Emily Bazelon in the Sunday Times Magazine provides just such an optimistic account of an emerging challenge to the hegemony of California's toxic "Three-Strikes" law which is rapidly filling its prisons with expensive to manage (because largely hopeless) and permanent prisoners. Her account is especially interesting because it links up two elements generally missing in the discussion of whose responsible for mass incarceration which tends to focus on governors, legislatures, correctional officer unions. Bazelon focuses on the interesting alignment of a Republican District Attorney of Los Angeles (now running for Attorney General), and a law school clinic at Stanford aimed at challenging 3-Strike sentences through collateral appeals.

The 1994 law, enacted by a panicking legislature and then sealed in the Constitution by voters at the high-tide of governing through crime in California and the United States. The law's success was widely attributed to public revulsion over the murder of 12 year old Polly Klaas. But the kidnapping and murder of young girls was a rare event in any community then and now. As Frank Zimring and his coauthors suggested in their 2003 book on Three Strikes, Punishment and Democracy, the law was a really a vote of no-confidence in government itself. Coming, as it did, more than a decade into California's prison boom, 3-Strikes marked the fatal contradiction of governing through crime; that it makes people trust government even less over time.

Unlike most Three-Strikes laws that discharged the pent up populist punitiveness of that politically frustrated year (Clinton's promised national health program crashed and burned) in largely symbolic measures, California's law was designed to maximize the incarceration fall out by applying to non-violent, non-serious crimes (for the 3rd strike) and producing a doubling of the sentence for a second serious or violent crime. According to Bazelon's reporting:

About 3,700 prisoners in the state are serving life for a third strike that was neither violent nor serious, according to the legal definition. That’s more than 40 percent of the total third-strike population of about 8,500. Technically, these offenders are eligible for parole after 20 years, but at the moment, the state parole board rarely releases any prisoner early.

Efforts to reform the law, including a 2004 voter initiative, have been defeated by a coalition of law enforcement organizations and virtually the entire political class of the state.

Bazelon's focus on Los Angeles DA Steve Cooley highlights the enormous power that laws like 3-Strikes have given prosecutors in California and all over the country. In California, where parole release applies to only a handful of life sentence crimes (including 3-Strikers after 25 years), prosecutors have unique authority to decide how many people will go to California prisons and for how long. Any felony can warrant a state prison term, and thanks to the ratcheting up of sentence ranges over the years, relatively few even permit probation as an option. Three-Strikes operates as a kind of individual "nuclear option" that prosecutors can use at will against a very wide range of repeat offenders.

As Bazelon reports, Cooley has set himself apart from other DAs in the state by explicitly stating that three strikes should only be used against a select group of eligible defendants:

Cooley ran for D.A. on a platform of restrained three-strikes enforcement, calling the law “a necessary weapon, one that must be used with precision and not in a scatter-gun fashion.” In office, he turned his critique into policy. The L.A. district attorney’s office no longer seeks life sentences for offenders like Norman Williams or Gregory Taylor. The presumption is that prosecutors ask for a life sentence only if a third-strike crime is violent or serious. Petty thieves and most drug offenders are presumed to merit a double sentence, the penalty for a second strike, unless their previous record includes a hard-core crime like murder, armed robbery, sexual assault or possession of large quantities of drugs. During Cooley’s first year in office, three-strikes convictions in Los Angeles County triggering life sentences dropped 39 percent

Cooley, who would retain much of 3-Strikes prosecutorial power even under his reform proposal, is anathema to fellow DAs who have virtually unanimously rejected his modest reform proposal. Cooley's example suggests that much of the state's problem could be solved by a tacit alliance between the DAs of largest population counties even without a statewide fix but they would have to brave the antagonism of the organized DAs of the state. But it also underscores the difficulty of escaping mass incarceration when elected politicians with a built in incentive to campaign on tough sentences are effectively in charge of how much money we spend on prisons. Bazelon see's Cooley's possible election as Attorney General (he is the leading Republican contender at the moment) as a pathway to a statutory reform of Three-Strikes long the Cooley lines. But if his reform ideas would hardly address the powerful incentives to off-load local offenders into state incapacitative custody (and financial responsibility) that will remain with county level DAs. Indeed, as AG Cooley may well want to mend fences with his fellow DAs (if he ever hopes to be Governor), suggesting that his 3-Strikes proposals are likely to be his closing not his opening

This is why the other side of Bazelon's imagined coalition is so important. It may seem unlikely that a boutique clinic like Stanford Law School's Criminal Defense Clinic, could make much of a difference in this situation. As the founding director, Michael Romano, freely admits, they cherry pick cases to find the most sympathetic possible 3-Strikers, leaving scores of other inmates with little hope of relief. I had a chance to visit with Romano, Clinical Fellow Galit Lipa, and the spirited band of students who staff the nation's only clinic devoted exclusively to three strikes prisoners the Thursday before Bazelon's story appeared to talk about the broad picture of overturning mass incarceration in California.

Nobody believes this can be accomplished one case at a time. But the victories that the clinic has been winning, discussed in Bazelon's story, point to a possibility unlikely to surface this year (or any time soon) in the electoral political field, that is a sense of shame. The clinic's legal arguments are also factual ones. They present judges with the spectacle of individuals cast into a hopeless fate of likely permanent imprisonment based on the premise not that they deserve it for their crimes, but expressly on the grounds that our security requires their total loss of freedom, security, or hope. That is a trade off that has become far more politically visible since 1994 largely because of the war on terror. It is not that judges, let alone the broad public, is unwilling to make that kind of sacrifice (indeed the war on terror may have made us more prepared to do so). But judges and the public appreciate that to make this trade off without some basic guarantees of the quality of the risk assessment on which this individual is going to be cast into hell (not for his sins, but for his future dangerousness) is to deny the basic humanity and dignity of the individual. In the criminal justice system, that guarantee has to come from the adversary process; that reflexive exercise of prosecutorial discretion in the name of public interest and justice, and the vigorous contestation of the prosecutorial case for dangerousness by defense lawyers with resources and skills to assess criminal risk.

In this context three strikes is a disgrace. There is no pretense of an adequately investigated and tested assessment of risk. The entire system should be struck down as "degrading treatment" under Article 5 of the Universal Declaration of Human Rights (to which we are a signatory). The absence of an effective judicial remedy does not doom this human rights based challenge. As we have shown with climate change and with issues like obesity, Americans are capable of being embarrassed by their own excess consumption and supporting change. Three Strikes is to the consumption of security what McDonald's Happy Meals are to obesity and what the Ford Expedition is to climate change. Hopefully the work of the clinic, and possibly Steve Cooley's campaign (if he is forced to defend against attacks on his reform proposals) will begin to make more visible to Californian's just how shameful their consumption choices in criminal justice really are.