Friday, May 11, 2012

From Civil Rights Confrontation to Crime Commission: Nick Katzenbach's 60s

If you agree with me that 40 to 50 year spans are an important generational break point for social trends (see my previous post this month) you'll be a regular reader of the obituaries, for that section of the newspaper is full of interesting stories about the people who were powerful and important 40-50 years ago (well if they were lucky enough to live into their 80s, more or less 40 years past their powerful 40s). If you are such a reader, and a reader of this blog you must have noticed the prominent obituary of Nicholas Katzenbach, a "key figure" (as obituaries like to put it) in the political events of the 1960s as a top legal adviser for both Presidents Kennedy, and Johnson, and to Attorney General Robert Kennedy, before serving himself as Attorney General for two years at the crux of the Johnson administration (read the Douglas Martin's comprehensive treatment in the NYTimes here). Then, after resigning as AG in the midst of a fight with J Edgar Hoover over the FBI's treatment of the Rev. Dr. Martin Luther King, Jr., Katzenbach largely disappeared from the public side of public life, steering the fortunes of large corporations at an elite law firm as if knowing in his own gut that the gateways of history had shut for the time being. One of his final tasks for Lyndon Johnson, heading up the President's Crime Commission (or as it was formally known, the President's Commission on Law Enforcement and the Administration of Justice) provides a telling bookend to Katzenbach's Sixties. While the Commission does not figure prominently enough in his biography to have made the Times obituary, it may have helped convince Katzenbach that the gates were indeed shutting (read the report, now available online here). Katzenbach came from significant social and cultural capital and his career, interrupted as for so many in his generation by Pearl Harbor, marked an unbroken ascent into it.
Nicholas deBelleville Katzenbach was born on Jan. 17, 1922, in Philadelphia, the younger of two sons of Edward Lawrence Katzenbach and the former Marie Louise Hilson. His father was a corporate lawyer and New Jersey attorney general from 1924 to 1929. He died when Nicholas was 12. His mother was a member of the New Jersey State Board of Education for 44 years and its president for a decade.
After the war he studied law at Yale and Oxford, and then taught law at Yale and the University of Chicago. He moved into the new Democratic administration of John Kennedy's in 1961 through his Yale connections with Byron "Whizzer" White, a deputy attorney general under Robert Kennedy, who would be given Kennedy's first seat on the Supreme Court. In the Justice Department, Katzenbach took part in perhaps the most iconic confrontation of the Kennedy administration's civil rights enforcement efforts, ordering of Alabama Governor George Wallace to remove himself from the doorway blocking the entrance of the first African American students to be admitted (through federal court order) to the University of Alabama. It was Katzenbach, apparently, who advised Johnson of the importance of appointing a national commission to investigate the assassination of JFK in Dallas; writing to Johnson aide Bill Moyers:
“The public must be satisfied that Oswald was the assassin; that he did not have confederates who are still at large; and that the evidence was such that he would have been convicted at a trial.”
Conspiracy theorists would read in the memo (released in 1994), traces of a cover up, but perhaps even more saliently, of person adept at helping top leaders navigate the shoals between electoral democracy and the rule of law. As AG, Katzenbach fought to keep the Johnson administration if not supporting at least not directly frustrating the goals of Dr. King's wing of the civil rights movement, as the FBI, with Johnson's approval moved from wire tapping the civil rights leader to determine whether communists were influencing his movement, to using surveillance of King's marital infidelities in a plot to encourage his suicide. Katzenbach resigned when he realized his power as AG was insufficient to back down his nominal subordinate, J. Edgar Hoover. The Crime Commission that Katzenbach headed represented the Johnson administration's effort to get ahead of the growing wave of political concern about crime in America; one which Barry Goldwater had unsuccessfully invoked in the ,64 campaign, but whose salience would grow with each riot and uptick of the closely discussed homicide rate. Readers of this blog will know how that history turned out, but what is noteworthy here is that under Katzenbach's leadership the Commission represented the best that legal and social science expertise, wed to social democratic criminological assumptions could bring to bear on a problem that would ultimately politically eclipse the civil rights movement. Harvard Law's James Vorenberg was the Commission's operational head and he recruited a research team including many of the stars of 1960s sociology, political science, criminology, and law. Katzenbach's strategy of expert and evidence led crime policy would be swamped by a more ideologically driven demonization of urban criminals (mostly young men of color). Having grown up in those years, and very much identifying with that wave of liberal legalism and social democratic criminology, I will always wonder if they could have been more effective or whetheer the ideological cards were just too stacked in favor of a war on crime.

Friday, April 27, 2012

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

Wednesday, April 11, 2012

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.

Saturday, March 24, 2012

Whose Public Safety? Trayvon Martin and Neighborhood Watch

The killing of teenager Trayvon Martin earlier this month, in Sanford Florida, has inflamed classic concerns about racism and criminal justice (especially in the South) as well as well as criticism of Florida's "stand your ground law"; a gun rights law that has expanded the circumstances under which self defense may be raised in many states. Less noted has been the role of Neighborhood Watch,a program launched by the National Association of Sheriffs in the 1970s with the objective of increasing the role of citizens in local crime prevention. Much beloved by criminologists and politicians alike, Neighborhood Watch is credited with reducing crime and improving police-citizen relations in many communities since the first trial program was run in Seattle in the mid-1970s. Trayvon Martin's death points to a darker side of Neighborhood Watch, one that may be unintended but predictable.

Trayvon Martin, a 17 year old African-American high school student from Miami was visiting with his father and his father’s fiancĂ© in the racially diverse suburb of Orlando when the shooting took place. The apparent killer, George Zimmerman, a 28 year old of mixed Anglo-White/Latin American parentage had been very active in what was at best an informal neighborhood watch group (reports suggest he made over 50 calls to the police in the past several months). Zimmerman called the police to report suspicions about Trayvon (who was in fact walking home from a convenience store with a bag of candy and an ice tea while talking to his girlfriend on his cell phone). He apparently told police that Trayvon assaulted him and that he used his gun in self defense leading to a police decision not to arrest or charge Zimmerman in Martin’s death. Public outrage built after the case received attention from the national media, including New York Time’s columnist Charles Blow last week (read it here). Demonstrations have sparked appointment of a special prosecutor in Florida and widespread concern about Zimmerman's use of his weapon. There has been widespread debate about whether the killing plausibly fits the criteria intended by the "stand your ground" laws.

As a crime prevention strategy, NW combines several potentially crime suppressive dynamics including facilitating quicker and more effective police response, deterring potential offenders through the observation of active and alert guardians, and altering the perceived opportunities for crime through routine activities like removing accumulating newspapers at the door of a home whose residents are away. The most recent meta-analysis of research on NW in both the US and the UK is modestly supportive of the proposition that neighborhood watch groups can reduce crime in their areas (with roughly half the communities studied showing some crime reduction and 12 of 18 empirical studies showing statistically significant differences between neighborhood watch covered areas and those without. According to the same study 27 percent of the British population and fully 40 percent of the US population live in a neighborhood in which some form of NW operates (See Trevor Bennett, Katie Holloway, and David Farrington, Does neighborhood watch reduce crime? A systematic review and meta-analysis, Journal of Experimental Criminology (2006) 2:437Y458; read it here but registration may be required).

As a social formation NW is also a vehicle for promoting law enforcement as a kind of citizenship project to which individual citizens are invited not only to support but to adopt. As such it is a crucial expression of what I have called “governing through crime” and what Garland calls the “culture of control”. Historically citizens did participate in criminal justice as jurors, and as well as in the posse comitatus powers associated with citizen arrest. Neither approximates the distinctive political subjectivity modeled by NW. As a juror, the citizen sits as a peer of the accused, not the police. Even as a member of a posse the citizen acts as a peer of a fellow citizen who has raised the hue and cry against a trackable felon, a legal relations that goes back to Norman England and according to an article by renowned 20th century criminologist Sam Bass Warner persisted in the US as a significant part of law enforcement in rural areas as late as the 1940s (See, Sam Bass Warner, Investigating the Law of Arrest, Journal of Criminal Law and Criminology (1931-1951), Vol. 31, No. 1 (May - Jun., 1940), pp. 111-121, read it here but registration may be required). The Neighborhood Watch subject, in contrast, is mobilized to extend and supplement an existing police forces in urban and suburban areas. Rather than being limited to pursuit of a fleeing felon, whose criminality has been witnessed by a neighbor, the political subject mobilized by NW is directed to attend to quotidian world of micro disorders and to act in relationship with police rather than neighbors.

Considering the role of race in this encounter suggests the continuities and differences with the Jim Crow era. If mass incarceration is the New Jim Crow in Michelle Alexander’s formulation (See, Michelle Alexander, The New Jim Crow, it is because it is a legal structure that is also a racial order but not because it carries the same beliefs or mentalities about race on an either conscious or unconscious basis. Zimmerman is unlikely to turn out to be some postmodern equivalent of Mississippi's Milam brothers who tortured and murdered 14 year old Emmet Till, an African American teen visiting his Misissippi family from Chicago in 1955 (the incident helped galvanize northern public opinion for federal enforcement of civil rights laws in the South in the year after Brown v. Board of Education was decided, read the Wikipedia article here).

Zimmerman, whoever he turns out to be, is more likely to reflect a new kind of law and order subject constituted by programs like Neighborhood Watch, and other cultural expressionso of the war on crime, than the traditional racialized vigilante or racist neighborhood lynch mob member of the sort that afflicted Mississippi or even parts of Brooklyn and Queens as late as the 1980s. Till’s banter with a married white woman in 1955 affronted the racialized Jim Crow honor code of the murderers. Zimmerman's lethal viiolence seems to have been activated by different set of nonetheless racialized codes which Trayvon traduced, one in which African American young men wearing hoodies are presumed to be cruising for criminal opportunities and should be prepared to perform their innocence visibly at all times (and not be distracted talking to their girlfriends). Zimmerman drove his SUV around his gated community, gun and cell phone at his side not to enforce a racial order in which miscegenation is the gravest moral breach (indeed he was the product of a mixed racial marriage), but to enforce a civil order anchored in fear of crime in which fitting a racialized risk profile is a breach that can cost a young man his life.

Thursday, March 15, 2012

Women and Children First: It's how liberals govern through crime

Jonathan Weisman's March 14 article in the NYTimes on the partisan battle over the reauthorization of the Violence Against Women Act of 1994 (read the story here; read the act here, scroll down to Title IV) is a reminder of how Democrats found their voice on crime in the 1990s by placing women and children at the forefront of legislation bristling with harsh retributive penal elements, but wedded to a thin menu of thin welfarist benefits tied to crime victim identity. Back then it was mostly about getting Dems to sign on to a bill that expanded the federal death penalty and encouraged states to lock in long prison sentences. President Clinton signed it into law as part of his successful effort to replace failure on health care with success on largely symbolic crime legislation.

Republican Senator Jeff Sessions, himself an OG Republican crime warrior, called the politics about right for the current round of partisan skirmishing:

“I favor the Violence Against Women Act and have supported it at various points over the years, but there are matters put on that bill that almost seem to invite opposition,” said Senator Jeff Sessions, Republican of Alabama, who opposed the latest version last month in the Judiciary Committee. “You think that’s possible? You think they might have put things in there we couldn’t support that maybe then they could accuse you of not being supportive of fighting violence against women?”


By placing a few "poison pill" elements favoring undocumented immigrants, or LGBT people (so long as they are crime victims), Dems can build their brand as both tough on crime and concerned about immigrants and women (although not enough to deliver on immigration reform, or reproductive rights protection, or even fight for same), while appearing to outflank Republicans in protecting women and children from violent crime.

In California the same mid 1990s moment produced Cal Penal Code Section 1160(a) (read it here) requiring health providers to turn over to law enforcement the identities of individuals for whom they have provided professional health care service if the wound or injury was caused by a host of criminal actions, including "assaultive and abusive actions." The measure was typical of many aimed at intensifying enforcement of domestic violence but it was invoked by the University of California Berkeley's Tang Health Care center to explain why they turned over the names of students who were seen for injuries caused by being assaulted by the police on November 9, 2011, to the police. These seem to have played some role in allowing the Alameda County DA (SHAME) to charge a number of victims (of police violence) who were not arrested on November 9th.

Children and their safety was also in the news this week when U.S. Attorney Melissa Haag cited the safety of children as instrumental in her successful pressure on a Berkeley property owner to shut down Berkeley's highly touted (and legal under state law) marijuana dispensary, the Berkeley Patients Group (BPG). AS quoted on the KQED Blog (here):

We've sent letters to a number of dispensaries and we certainly hear back from most if not all of them, or lawyers representing them. And one thing we've heard in response is that this is a good dispensary. This is a dispensary that's patient-run, or they consider themselves to be a good actor in the marijuana space. And I hear them, but I have a hard time making that distinction. I've already drawn a line. I've already made a distinction. If it's close to children then that's a line we're going to draw. If I then start trying to get in and figure out which ones are quote good or not, it's just not something I'm capable of doing. So I've decided to draw this line, and to keep that line fairly bright.


No doubt fears of robbery are not far fetched, but the fact that the dispensary has a reputation as being a source of crime preventing traffic in an otherwise darkened section of San Pablo, and as one of the industry leaders in being a source of harm reduction and good neighborliness, was given no account nor consideration of finding ways to extend their already effective crime prevention activities (keep in mind this is a Berkeley neighborhood in which gang shootings have occurred which had nothing to do with BPG).

For those of us old enough to remember Attorney General Janet Reno's invocation of the need to protect children in her justification for the botched Waco raid against the Branch Davidians (which ultimately resulted in the deaths of 20 children) one can only hope that the Feds feel no need to preemptively protect Berkeley's school children.

Friday, March 2, 2012

By By "Bad Beds"! Hello Dignity?

California's Secretary of Corrections, Matthew Cate, held a press conference today to announce that as of the end of February, the last of California's notorious "bad beds" have been removed. The substantial local and national media coverage of this "event" (including KQED California Edition, and the Washington Post) included links to the Department's own front page web treatment of this story which billed the beds as "iconic" and their departure as a clear signal of California's progress. These triple bunked "temporary" manner of housing inmates in the gymnasium, hallways, and utility rooms of the state's numerous prisons persisted for over two decades, including as many as 20,000 inmates at a time, and stood at the very center of the historic Brown v. Plata decision last May upholding the sweeping population reduction order that is without doubt the major cause of the reduction of over 17,000 prisoners since it was decided.

The Department's coverage is fascinating on a number of levels. They have clearly embraced the mission of downsizing which the state (under then Attorney General Brown) had recently defended in the Supreme Court as unnecessary to resolve constitutional violations and a clear and present danger to Californian's. According to the CDCR's web-article:

“Non-traditional beds became the iconic symbol of California’s prison overcrowding crisis,” CDCR Secretary Matthew Cate said. “Now, gyms once filled with inmates in triple-bunk beds are open and can be used for their intended purpose. This demonstrates how much progress California has made in improving inmate conditions and employee safety.”


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Moreover, Cate (and presumably Governor Brown) are signalling that the move is not only necessary to establish conditions that are not cruel, inhuman, and degrading, but also to creating a more effective rehabilitative penal regime. If the beds are "iconic" it is because they stood for a whole penal regime that had lost its bearings in both human rights and penology. If the prisons can now return to their "intended purpose" then the past two decades during which that purpose was abandoned by the state stands as a shameful chapter in our history.

The Department chose a potent symbol to showcase the empty space suddenly available, Deuel Vocational Institution, a prison built in the 1950s to embody California's then internationally advanced commitment to rehabilitative programming by placing relatively young inmates together with a range of vocational training programs for skilled and semi-skilled employment upon release. That mission continued for sometime after California abandoned rehabilitation as a penal goal in the 1980s but in the course of the 1990s the uncontrolled population growth of mass incarceration transformed Deuel by 2002 it had become a "reception center" a prison delegated to holding prisoners entering prison (whether for the first time or after a violation of parole) which became among the most overcrowded sites in the chronically hyper overcrowded system. In 2003, which was operating at as much as 238 percent of design capacity suffered a riot in which both prisoners and correctional officers were injured. Governor Schwarzenegger visited the prison soon after and declared the system broken.

With the last of the "bad beds" being rolled away in a video posted on the website, the Department promises:

The building is now being restored to its intended purpose as a place for inmate recreation and rehabilitative programming.


More reassuring would be a promise by the state of California to assure that the dignity and human rights of prisoners and correctional officers would be protected in the future, whether or not the federal courts are breathing down our necks. What would that require?

The Department is making progress on reducing overcrowding and its public statements are an important form of transparency and even accountability that has been sorely lacking in the past. Indeed, the web-article not only includes a video of the last "bad beds" being rolled away but also set slide show of images of what the "bad beds" looked like filled with people serving their prison sentences in what looks like the temporary shelter set up to assure the survival of refugees fleeing a disaster (only for years instead of weeks). But the Department is a politically controlled agency that could easily find itself used again to plan and execute human rights violations on a broad demographic scale as occurred in the past.

First, we need a commission to investigate for the public record how the state found itself operating prisons that attract words like torture, cruel, inhuman, and degrading punishment. This is not Honduras where poverty, spiraling crime, and corruption are the order of the day, or Mexico, but we had prisons that belong in the same frame as recent news stories about the fire the killed hundreds in an overcrowded and chaotic Honduran prison (Guardian coverage here) and a murderous riot by one prison gang against another in Mexico to cover over an escape of elite gang members abetted by guards (coverage in the Guardian here).

Given the severity of the human rights problem in California's prisons and its duration for more than two decades, retrospective documentation should lead to prospective preventive techniques. The commission could become a California Committee for the Prevention of Torture, or CAL CPT, modeled on the European CPT; a body of legal, medical, human rights, and criminological expert investigators with the authority to inspect any prison, mental hospital, or indeed any place of confinement, in order to warn state government of the potential for degrading conditions to form and how to prevent it.

Realignment, the package of statutory changes that has sent most parole violators and many low level felony convicts to county justice systems rather than state prison and which is the major cause of the drop in prison population, is important, but it does not reflect a true repudiation of the state's extremist commitment to penal incapacitation, reflected in our sentencing laws. The legislature (or a commission appointed by it) needs to seriously revisit the entire California penal code to clean out and reframe its 19th century core and the vast accumulation of repetitive crimes and the absurdly long arbitrary sentences that destine so many Californians to years in prisons that serve neither to reflect just retribution or any real crime control benefits.

Supermax prisons, known in California as Secured Housing Units or SHUs, where prisoners are locked down 23 hours a day, 7 days a week, have long raised troubling questions about their propensity to lead to mental distress or illness. California's version of Supermax is extreme on every level, involving more prisoners, for more of their sentences, under worst conditions (including double celling in lock/down). All states should revisit their use of these prisons, but given California's proven propensity to create cruel, inhuman, and degrading conditions under the justification fo security, large scale use of SHUs should cease (lock downs and disciplinary isolation would remain as tools for security).

Tuesday, February 21, 2012

It's not yesterday any more

But getting people around my age, late boomers who grew up in the "fear years" of the 1970s, to rethink their assumptions about prisons, crime and criminal justice is hard; and it keeps us locked into mass incarceration. Consider SF Chron Columnist Chip Johnson's broadside at the Occupy Movement in the Bay Area's demonstration at San Quentin Prison last weekend (read Johnson's column here).

The demonstration this past Saturday called attention to the "cruel and unusual" conditions in California's prison system (documented by the US Supreme Court in Brown v Plata), and called for reforms including reconsidering our use of LWOP, the death penalty, three strikes and super max prisons (most of which would raise human rights claims problems in Europe).

According to Johnson, this is just the late 1960s remake with Occupy members reprising the sad fate of "radical chic". Johnson has a right and a duty to play the grey-head when necessary, but in dismissing the effort to bring prison reform into the center of political renewal today as hopelessly naieve and nostalgic, Johnson is seriously and revealingly misguided.

Apparently not immune to nostalgia himself, Johnson takes his view of prisons and prisoners from noted comedian Richard Pryor:

The comedian spent six weeks on location at Arizona State Penitentiary while making the 1980 film "Stir Crazy" and described getting to know some of the inmates.

"I talked to 'em and - thank God we got penitentiaries," Pryor quipped.

I'm with Richard on this one.


Putting aside the wisdom of taking criminological insights from a man perhaps best known for nearly burning himself to death smoking cocaine, the key data point here is 1980. In 1980 California was just coming off nearly three decades of escalating homicide rates fueled by the nearly complete shut down of the state's mental hospital system. In 1980 there were only around 50,000 prisoners in California prisons, compared to more than 160,000 today. In 1980, sentences for many violent crimes, set on the basis of parole practice in the 1960s and 1970s, remained relatively lenient. In 1970 a first degree murderer could realistically hope to be paroled in less than 10 years. Today burglars with past offenses serve more than that. In 1980, our prisons, designed to rehabilitate, remained relatively capable of delivering individualized care and control of inmates. Today after decades of hyper-overcrowding and mass incarceration the prisons have become a humanitarian disaster and a fiscal time bomb.

But it is not just prisons that have changed. In 1980 the best criminological work suggested policing could do little to reduce crime which remained stubbornly high after more than a decade of police led "war on crime." Research also suggested that little of the rehabilitative techniques promised in corrections could be proven successful at reducing recidivism so locking people up forever made a certain kind of sense to the most risk averse of citizens. Today, crime rates have dropped dramatically since the early 1990s, in many cases back to early 1960s levels, and according to the best research it is because of innovative policing rather than mass imprisonment (see Zimring's The City that Became Safe). Research also suggests that people age of crime by 40 and that most violent crimes are not repeated. That does not mean early paroles for serial killers as Johnson imagines. But it should mean prison and jail sentences proportionate to the harm and risk to the community of actual crimes, not the scatter-shot and "supersize me" approach that has dominated California's penal policies for the past generation.

In short, it's not yesterday anymore. The failure of many over 50 to get that is the biggest obstacle facing the state and nation today. In turning to prison reform Occupy is once again showing its ability to think beyond the confines of political thought still dominated by baby boomers.