Two Paths from Fear: Punish or Build

The narrative choices faced by the Obama Administration in confronting the Great Recession were nicely outlined yesterday in the editorial pages of the New York Times. Columnist Frank Rich offered a blistering critique of the Administration for ceding populist outrage to the right by failing to go after Wall Street executives responsible for the financial crash with investigations and stiff punishments, going so far as to say that "the Obama administration seems not to have a prosecutorial gene" (read his column). Having chosen to focus on the future rather than the past, Obama has left the Tea Party to reap the passions of an outraged American public.

Rich's editorial colleague Tom Friedman voices a different kind of disappointment. Obama's focus on the future, and his talk of investing in rebuilding America, has turned out to be just talk. The billions spent on stimulus turned out to include only tinkering on the edges of a massive need for reinvestment.

In the past two weeks, I’ve taken the Amtrak Acela to the Philadelphia and New York stations. In both places there were signs on the train platforms boasting that new construction work there was being paid for by “the American Recovery and Reinvestment Act of 2009,” that is, the $787 billion stimulus. And what was that work? New “lighting” — so now you can see even better just how disgustingly decayed, undersized and outdated are the rail platforms and infrastructure in two of our biggest cities.

(read Friedman's column)

The critiques suggest an Obama Presidency caught in between its reluctance to embrace the old politics of governing through crime, and its inability to launch a new politics of infrastructure. After his health care defeat in 1994, Bill Clinton made himself into the Prosecutor-in-Chief, supporting harsh and punitive laws on crime, immigration, and welfare. Clinton was relected, but he accomplished little of importance for the nation. Since the 2008 campaign I have been impressed with Obama's commitment to avoiding a politics based on demonizing. He could have framed Wall Street leaders as felons and sought to build legitimacy by sending as many of them to prison as possible and he might be more popular now if he had. It may be that he was simply too cosy with Wall Street (which did send him a lot of campaign support in 2008) but I prefer to believe Obama rejects a politics that converts fear into anger by demonizing an enemy and than seeking to punish it. Everything about President Obama's style as a speaker and a leader, cuts against his effectiveness as a prosecutorial President. The bigger question is why Obama did not try to lead the kind of infrastructure rebuilding politics he promised during the campaign.

Ironically, both the politics of punishment and the politics of building draw on fear which is the essential source of energy in liberal governance. Think of the way FDR drew on fear of the Great Depression and fear of European fascism to create the New Deal and US involvement in the World War II. Obama has not lacked for similar threats against which to mobilize America. Both the financial crisis and last summer's Gulf oil spill provided powerful examples of the threat posed by decades of underinvestment in infrastructure and under-regulation of corporate greed. Without demonizing either Wall Street or oil companies, Obama could have used the Oval office to make a sustained campaign for rebuilding American infrastructure and regulatory capacity.

It is not too late for both. A stronger Republican hold on congress will make new legislation impossible, but it will frame a stark choice between a government that actively seeks to protect ordinary Americans and one that leaves them to their fates. The Republican effort to repeal the health care reform and the privatize social security will pose this choice starkly come January. Stay tuned...

British Government to Cut Prisons/Prisoners

The British are debating whether Chancellor George Osborne's massive spending cuts are a wise or reckless approach to cutting the Britain's record budget deficit (currently estimated at 8 percent of GDP). One of the most remarkable aspects of the cuts from an American perspective, is that they include serious efforts to reduce the size and costs of the British prison population through sentencing reforms. While the previous Labour government had planned to expand the prison capacity (which had already grown massively during Labour's 13 years in power) from 85,000 to 96,000, the Conservative-Liberal Democratic coalition plans to cut back, reducing nearly 6,000 jobs from prisons and probation and actually closing prisons. (read Alan Travis analysis of criminal justice cuts in the Guardian).

Because most prisoners are held at the state level in the US, deficit based prison reductions are a lot less visible, and the national government can generally avoid taking a stand on the need to reduce prison populations. It is hard to imagine the deficit obsessed Tea Party calling for a national commitment to use prison less. Indeed, with the current politics dominated by anger and fear, there is little chance that either party will lead Americans in the kind of broad civic debate about the risks facing the nation and the difficult trade offs necessary to navigate them that all the major parties are engaging in here.

How did crime become the sleeper issue of the 2010 midterms?

Few were looking for 2010 to be a big "crime"election, in the manner of '88 (Dukakis and the Willie Horton), '92 (Clinton committed to outshining Bush on capital punishment by carrying out an execution during the primaries), '94 (massive crime bill and 3-Strikes in California) and '96 (Clinton as the 100K policemen on the street President). Unlike then, crime is at lows not seen since before the great crime wave of the 1960s began (although precise comparisons are impossible due to the poor quality of crime data from that era). Moreover, while the nation went through a recession in the late 1980s and early 1990s, it was not nearly as severe as the Great Recession which has left the US economy weaker then in decades. But while crime is not framing the national dispute between the parties in this midterm Congressional election, it is emerging in a wide variety of state and local races, from Baltimore, to California, to Connecticut.

In some instance, local crimes of great notoriety of galvanized interest, as in Connecticut, where the capital murder conviction of the first of two career criminals who raped and murdered the wife and daughters of a doctor in their family home and the impending sentencing phase have thrust the death penalty into local, state, and federal elections (read William Glaberson's reporting in the NYTimes). In others, like California, the opportunity of a veteran's candidate association with a death penalty controversies of the 1980s, for his opponent to attack him as soft on crime. All despite the fact that nationally the death penalty is declining in public support.

But while local factors may the emergence of crime issues, their success attests to the staying power of crime and punishment as organizing issues in political competition in the US. As with the false stories about violent crime in New Orleans after hurricane Katrina, the media and politicians reveal the degree to which crime is a comfort zone compared to having to confront the American people with the catastrophic risks that face them. In this case the bankruptcy of American governance and the real prospect that the end of the American middle class consumer economy is over. For decades declining real income has meant that middle class lifestyles have been based on more part-time employment and more debt. That appears to be over but neither the Democrats and President Obama, nor the Republicans and their Tea Party is willing to confront Americans with the news. In such a climate crime is a welcome respite in which politicians can posture as committed to protecting ordinary Americans in their homes (which are being foreclosed away) and the media can re-run narratives that require little actual investigation or thinking.

The contrast could not be more striking in the UK where I am currently writing from. Here the leadership of all the major parties has agreed that the nation is facing a fundamental challenge to its economic and political normal that will require hard choices about priorities and new sacrifices from all sectors of society. While the Conservative-Liberal Democrat coalition in government have prioritized cutting the deficit with real and painful cuts and tax increases, the new Labour leader insists on the priority of generating new economic growth to overcome the continuing effects of the Great Recession. Both are in agreement that increased taxes and spending reductions are essential and that producing a green economy through government regulation is a necessary path to a sustainable middle class economy in the future. Tellingly one area of spending reduction that all three major parties support is reducing prison populations that ballooned in the 1990s and 2000s (although not as dramatically as ours did).

In contrast, neither President Obama, nor the Republican leaders have been willing to tell the American voter that the economic "solutions" of the 1980s and 1990s were largely based on consumer debt that is unsustainable and that prosperity is not coming back without strategies that will require serious risks and sacrifices. As a result our election is turning into a rerun of 1994.

Jerry Brown for Governor of California

Nobody should vote on a single issue, but as you might guess, there is one issue on which my vote can move decisively. I tend to vote against candidates that play the crime card by calling their opponent "soft on crime." For forty years now that has been the move for candidates in both parties to appeal right to voters fear factors in way that few other issues (race in fact) do. Even more importantly, self identification as "tough on crime," is as sure a proxy as there can be of the candidate's commitment to the "war on crime" and "mass incarceration."

With Democrat Jerry Brown and Republican Meg Whitman, in a close contest for governor of California, I have been undecided whether this blog would take a position. As I noted last Spring, Brown was governor before the war on crime took over California and made our prisons the leading institution in the state. His Determinate Sentence Law had flaws, but it did not produce mass incarceration, a policy that began under Republican governors George Deukmeijian and Pete Wilson, and continued under Democrat Gray Davis. Meg Whitman, having switched from business to politics only recently, had no track record of having to get behind the war on crime and its powerful interest groups. Since either will face a period of tight budgets in which the real costs of mass incarceration are likely to exclude other priorities of spending or tax cutting, both have every reason to speak honestly with voters now about the need to put the war on crime behind us and begin to address the new threats to California from natural disaster, drought, and economic decline.

In last night's final debate, however, Meg Whitman unambiguously played the crime card. The context was Jerry Brown asserting losing the endorsement of the police unions was evidence that he could be tough in his negotiations with public unions over pensions. Here is the exchange according to Kathleen Decker reporting in the LATimes.

"You got the endorsement of that union, I didn't, because they said I'd be too tough on unions and public employee pensions, and I'll take that," Brown said.

"I got that endorsement because that union knows that I will be tough on crime," Whitman replied. "And Jerry Brown has a 40-year record of being soft on crime."

When you don't have a narrative, run on crime

As the US heads toward its mid-term congressional elections next month there is not much evidence of national anxiety about crime, or even, despite recent government announcements about undefined threats to Europe, about its close cousin terrorism. With the nation still struggling through the worst employment market in decades and crime rates still quite low but modern standards, it is perhaps not surprising that neither party is making much noise about capital punishment, tough prison sentences, or new sex offender legislation.

Yet a closer look at the Democratic campaign, especially President Obama's recent forays into college campuses and unionized labor strongholds in an effort to excite his base, shows that the metaphors of crime continue to do much of the work of narrative. Case in point this week were the President's sustained attacks on the secret money being channeled into Republican campaigns almost certainly coming from large corporations hostile to his administration's recent regulatory efforts on Wall Street and beyond. The donors for those ads are now allowed to spend unlimited amounts of money on the campaign without any requirement of disclosure thanks to the Supreme Court decision last year striking down provisions of the McCain-Feingold campaign finance law.

Watch the crime metaphors at work in the latest national Democratic party television advertisement, as reported by Peter Baker in the NYtimes [link not available yet].

The commercial calls Mr. Rove and Mr. Gillespie “Bush cronies” and says the chamber “shills for big business,” then shows a woman having her purse stolen by a mugger in a parking garage. “They’re stealing our democracy, spending millions from secret donors to elect Republicans to do their bidding in Congress,” the narrator intones. “It appears they’ve even taken secret foreign money to influence our elections.”

If the Republicans had put up an add implying that stimulus spending to fight the recession was "stealing our democracy"and showing muggers (they would not even have to be African American) attacking a vulnerable woman in a park or parking garage, critics would have no problem seeing the crime metaphor as outweighing the headline policy issue- campaign finance- in its power to motivate voters. Race, of course, would be at work in such an anti-Obama advertisement; but it does not have to be, as here, rich and especially foreign criminals have just as much power in the American political imaginary as young African American males to scare citizens into wanting action. Of course they are a lot less available for being rounded up by the police, so you do not see many of them in prison (but when they show up, they serve long times, just ask Manuel Noreiga or Jonathan Pollard).

The point of such an ad is to motivate the voter with a blast of anger, disgust, and fear, that runs against the President's enemies, and roughly in the direction of his policy goals. But as decades of crime based politics has already demonstrated, this kind of blast is remarkably unproductive in terms of governing. No doubt its purpose is to minimize what are almost certain to be big Democratic losses and thus retain the voting power in Congress necessary for President Obama to have any hope of moving a legislative agenda. Perhaps such a desperate move is all that remains this late into the campaign. But it did not have to be this way. President Obama and the Democrats in Congress this session, launched a new wave of regulatory law making as big as anything since the 1960s or the 1930s. The present economic crisis has brought out the need for innovative and determined regulation in a way not seen for decades. Americans got it (largely because Obama chose not to run primarily on fear and anger against the Republicans), and in 2008 gave the Democrats a real mandate to get started. In the face of a disciplined (one might have to say Leninist) opposition, they enacted major if flawed pieces of legislation to regulate the insurance industry, the financial industry, and got at least a start on energy laws that would regulate the oil industry. A reading of any history of the New Deal will demonstrate its first 2 years were just as flawed (and with much bigger, albeit racist Democratic majorities in Congress).

But the flaws were inevitable given our corrupt political campaign system, what is damning is the absence of a sustained effort to provide a positive narrative about these regulatory efforts that could have gone with a campaign to give us the Congress capable of completing the job. As Paul Krugman, Robert Reich, and many other liberal columnists and bloggers have repeatedly pointed out the President decided not to mount a major White House base campaign to support the idea of regulation after decades of the public being told by both parties that it was ineffective and inefficient, leading to perverse consequences and job losses. Not that the President has lacked moments and sound bytes, but no sustained campaign. Where was the Oval office speech on why a new generation of regulation, and getting that regulation right, was absolutely vital to creating good sustainable jobs for Americans?

The absence of that counter-narrative to the prevailing one laid down in the 1970s by both conservative Democrats like Jimmy Carter (yes, on economic policy) and Republicans like Ronald Reagan, meant that the legislation passed is now a weight around the necks of Democrats rather than momentum they could run on. The political losses for the President's program that we are likely to see on November 2 were forecast far earlier this summer when the nightmarish Gulf oil spill sunk Obama rather than unregulated global capitalism. The oil spill should have been a three month infomercial on the dangers of unregulated global capitalism, instead it was taken as an example of how government always fails.

In the absence of that narrative Obama's program is now a problem for his candidates, leaving corporate champions of unregulated capitalism, like Meg Whitman and Carly Fiorina, to be within reach of beating solid Democrats like Barbara Boxer and Jerry Brown in liberal California. We know the President can speak to Americans of every education level about these kinds of deep structural issues. It will not be heard at this point in noisy and mostly loathsome campaign. I'm hoping for some version of it as a Hannukah (or early Christmas) present.

Cruel, Inhuman and Degrading: California's Death Penalty

If all goes according to the State of California's plans, Albert Greenwood Brown will be executed Thursday in a newly outfitted death chamber at San Quentin prison [the 9th Circuit Court of Appeals intervened since this was first posted and remanded the case to the District Court for further proceedings, which makes it virtually certain the execution will be delayed (read Bob Egelko's reporting in the SFChron). I'll post later on the reasons for the stay]. Lawyers for Brown and the State of California are battling over California's method of execution through lethal injection (will it be one drug or three?), and the execution may well still be delayed further. But if and when California is able to execute Brown he will be have suffered not one capital punishment, but two.

Brown was convicted of kidnapping, raping, and murdering a 15 year old girl in a crime committed in 1980, and sentenced to death in 1982. That is a heinous crime worthy of the most severe punishment a society uses. In most of the countries of the world, and virtually all its democracies, that means life in prison. In the US, Japan, a few Caribbean democracies, and a lot of Islamic and Asian or African autocracies that means the death penalty. In California it means both. The point is not just that California juries can choose between life in prison and death, its that when they choose death, they are actually sentencing the prisoner to both life in prison and death by execution.

Consider that when he is executed, Brown will have spent some thirty years on death row awaiting execution. For most of the world, life in prison means, ten, twenty, in the extreme, possibly thirty years in prison before being released to some form of parole. So in California, a condemned person like Brown is sentenced to serve a prison sentence approximating the most extreme possible prison sentence in Europe, plus a lethal injection at the end of the wait. Life in prison, with the real prospect of dying behind bars and without the presence of love, is severe punishment. Adding to that an execution ritual in which the state will seize you in the midst of health and kill you is degrading and cannot help but reduce the humanity of those subjected to it and those who impose it. That is the true meaning of "inhuman and degrading" punishment in international law.

I consider the death penalty an unnecessary and thus inherently cruel punishment, but even if it is not, being forced to wait in circumstances that constitute extremely harsh punishment three decades under threat of death, and finally to be killed is to mock the very humanity of the condemned.

Having execution follow such a long imprisonment also defies all legitimate reasons for having a death penalty. Whatever deterrence power there is in such a sentence, comes from the years in prison, since most of the condemned will die of natural causes before their execution in California. The goal of retribution, demonstrating our moral outrage at the heinous treatment of the victim, is rendered hollow when the passage of decades means few recall the crime or the victim. And the objective of helping families to recover is actually reversed where the family of the victim endures years of waiting for a moment of justice, while being told that the real punishment is "delayed" and yet to come. Opponents and supporters of capital punishment have battled themselves to a kind of draw, leaving us with a legal institution that is a perversion in every sense of the term; managing to extract suffering from the condemned from the moment of its imposition, while denying that suffering any possibility of relieving the victims. Protecting the public does not require the execution. During his years locked in San Quentin, Brown has killed no known serious crimes. The public would have been equally protected had he received a life in prison sentence (even with parole, since it is rarely granted in such an aggravated case).

The reasons for California's uniquely lengthy wait for execution are complex, involving the absence of sufficient defense lawyers, the state's dilatory style of pursuing its legal path, and the existence of multiple levels of appeals. The key fact, however, is that nobody seriously believes the situation can be much improved short of spending millions and perhaps billions more on legal costs.

Californians should be outraged at this farce of justice to both victim and thecondemned. It is time to admit that capital punishment is just an expensive symbol, bandied about by politicians of both parties, to show they care about victims, while subjecting the very very few people executed to cruel, inhuman, and degrading punishment.

There is an alternative. Those people who commit the most heinous murders,in the most culpable way (they are not suffering mental illness, retardation, did it deliberately, etc.) should spend decades in prison, period. (I'll leave for another time whether that must require life without parole, or whether the possibility of parole after 25 or 30 years would be more appropriate). Under such a penalty, victims would know that a just and very serious punishment was beginning immediately following the trial (not decades later); convicted killers would know, following a year or two of appeals, that their punishment was final and irrevocable; and Californians would know that they were doing everything they can do to deter future murders and protect citizens from further acts of violence by the convicted. The tens of millions of dollars saved from the endless court battles we currently fight, could be used to hire more police officers and pay for more DNA testing of cold case evidence, so that more murders are actual solved and result in the conviction and punishment of the guilty.

Yes on Prop 19: Legalize Marijuana

On November 2nd, California voters will have an opportunity to legalize marijuana use for all persons over 21 and authorize local government to regulate its use and sale (see the Ballot_Pedia article for more on the initiative). Legalizing marijuana will not, by itself, turn around our catastrophic prison overcrowding. Relatively few people are in prison for marijuana possession or even sale. However it can achieve two objectives that will move us in the right direction on crime policy and prisons.

First, legalizing marijuana will prevent the needless stigmatization and alienation of thousands of young (and not so young) adults who are discovered by the police to be in possession of marijuana, which is one of the leading cause of arrests in the United States. This will actually unburden the police who are usually searching for weapons, from having to arrest people they discover marijuana on, or appear to be ignoring law violations. Many police-citizen encounters will have a happier ending. More importantly, many people will not accumulate misdemeanor offenses on their record that can lead them to prison later, and will avoid unnecessary criminalization.

Second, legalizing marijuana will deliver the largest possible blow to heinous drug cartels in Mexico for whom marijuana constitutes the second largest source of profits (and possibly the largest). As decades of experience have taught us, profit centered criminal networks are almost impossible to defeat using normal criminal sanctions (because they can successfully recruit new members to replace any incarcerated ones so long as the profits remain high). As Mexico's disastrous military war on drugs is demonstrating, extra-judicial deterrence does not work any better, and does lead to hundreds of collateral casualties. Without firing a single bullet, California voters can cut the Mexican cartels down to size, making it harder for them to corrupt the Mexican political system, simply by moving those profits from the crime world to the world of lawfully regulated business.

We should not be glib about the costs of marijuana legalization. Making it legal for California adults to buy and possess marijuana will almost certainly lead to more people using more of the drug. A recent paper from RAND by my colleague Rob MacCoun and others uses econometric techniques to try and estimate those effects and they suggest far from trivial increases (here it is, but it may require authorization to access). While it is true that most people who want marijuana can easily find it now (especially given California's medical marijuana regime), there are actually some people out there who will not use it on principal simply because it remains against the law. More importantly, the convenience and reliability of obtaining marijuana once it is legal will very likely increase use (even if the price does not go down, which RAND assumes but has not been true under the medical regime and could be prevented by correct tax policy).

Marijuana can be psychologically addictive. Its capacity to lift the user above the humdrum of life and let them see things differently (enabling the poetry function) can be hard to resist. For creative artists and writers it may be a wonderful tool, but for people facing depressing circumstances it may become a way to ignore circumstances that need to be changed instead.

But here is where the argument for legalization becomes most promising. The best way to prevent and remedy addiction, is through outreach, education, and counseling to the user community. The current state of illegality makes that harder in countless ways. Once legalized, local regulation could require marijuana stores to provide all of those services to their clients, and creative regulators could celebrate innovations and circulate best practices widely.

And this is precisely where marijuana legalization could do the most good. By demonstrating, through empirically tested regulations, that civil governance can remedy the negative consequences of recreational drug use, the legal marijuana regime could help wean us from our dependence on criminal law as a way to govern America.