California's Prison State

California in the early 21st century, looks like a casebook example of a "carceral state", or a state that has placed imprisonment at the heart of its practices of governing. With 180,000 prisoners, twice as many prisoners locked up as its own design specifications very liberally allow, California has a massive human rights crisis on its hands and an impending show down in federal court over whether population caps will be imposed. Notwithstanding its failings, the prison system already absorbs more of the state budget than all of higher education and much more will be required to bring it up to constitutional standards.

Keeping the prisons full is an ever growing body of laws, many of them added by ballot initiatives, which provide long prison sentences for a wide range of serious and petty crimes. These laws leave county prosecutors with the power to transfer troubled local bad actors to state prison with no central mechanism to reduce or adjust sentences in response to disparities with other counties or overcrowding.

A feature on San Quentin prison in today's NYTimes suggests that this carceral state is not an altogether new thing. The infamous prison visible to all who travel the Richmond/San Rafael bridge to the Bay side of lovely Marin County, was built in 1854 by inmates held on a nearby prison hulk anchored on the Bay. Designed to house 48 in dungeon like solitary cells, it soon held more than three times that number. The feature by Patricia Leigh Brown points out that the prison was the very first public work created by the state, ahead of any public universities, roads, or aqueducts.

In an eerie anticipation of today, the state was recovering from the frenzy of the gold rush, and faced a mistrustful citizenry composed mostly of immigrants from other states and countries who shared little beyond ambition to strike it big, and lots of fear of their neighbors. The prison started out with hopes of rehabilitating its inmates, but soon resorted to flogging to enforce order.

If California has always had the propensity to be a carceral state, in which public order is constituted primarily through tough punishment, it has not always run that way. In between, for much of the mid-20th century, California kept its prison population relatively modest and concentrated on huge public investments in infrastructure and human capital including the complex technical systems that turned a largely desert state into a major food crop producer, the highway system that turned it into an automobile utopia (for a while), and a public university system that positioned it to become the leader in post-World War II technology development. During this time prisons were not forgotten, instead they were reinvented with the ambitions of this new technical scientific giant to be sites of applied human engineering to address the underlying causes of criminal behavior. While its managers never discovered a silver bullet to stop crime, they presided over a relatively small prison population most of whose inmates were paroled and succeed in staying out of prison. Today, in contrast, more than 2/3 of a hugely swollen population returns before the end of their parole period.

California did not change its population in between, although it may have stabilized and become more rooted in secure jobs rather than the highly entrepreneurial economies of the 1850s and the 2000s. The most important difference is in the vision of its leaders. From Earl Warren through Jerry Brown, California leaders governed through broadly optimistic visions of how the state could optimize its human talents. Since then our politicians have largely competed to articulate and respond to our fears of malevolent strangers.

If Arnold Schwarzenegger wants to go down in history as the change agent he is capable of being, he needs to persuade Californian's to abandon their carceral state for one that will pursue the technologies and skills necessary to tackle our looming environmental, health care delivery, and infrastructure problems. Once those problems and the solutions they will create are given central place, the carceral state can shrink down to the secondary state service it always should have been.

The Homicide Spike: Follow the (Local) Leaders

In the 1990s American cities enjoyed a spectacular decline in violent crimes including homicides (see Frank Zimring's book for the best accounting of what happened and why). Some cities thankfully are still enjoying that decline, or at least a plateau at significantly lower levels of violence than they experienced in the 1980s and early 1990s. In others however, including Philadelphia, Newark, and the cities of my own Bay Area (SF, Oakland, Richmond) 2007 continued an alarming upturn in violent crimes, including highly visible homicides.

The only good news in this trend so far is that most of the action remains at the local level. Our national leaders, preoccupied with Iraq, have so far not been able to shift policy debate toward the war on crime as they did after other spectacular governmental failures like the collapse of the Clinton health plan in 1994. Our state leaders, for the most part, now face record budget deficits as the real estate driven tax revenues of the last 15 years collapse like the Enron-like specters they always were. Those states that do have money in the bank, are slowly waking up to the collapsing infrastructure that is urban (and suburban) America in the 2000s (remember that bridge in Minneapolis?).

WARNING IF YOU LIVE IN CALIFORNIA: our insane legislative (it's the term limits that make them do it!) crime warriors haven't gotten this message yet. Please phone and email the offices of legislators George and Sharon Runner and tell them to stop with the crazy, big-budget, unaccountable gang crime initiative.

National and state leaders have been the primary exploiters of the enormous public attention and fear that media spotlighted violent crime has produced in spades since the 1960s (see my book if you need a primer on this). Local leaders, mayors, and city councils, whose position leaves them very close to the actual context of violence have during the same period struggled with violence in far less politically exploitive ways (this local effect was documented by Stuart Scheingold in his prescient 1992 book on crime governance).

Local leaders lack resources, but they have access to precious local knowledge through political channels that Political Scientist Lisa Miller has shown to be far more open to citizens whose lives are touched by violent crime. In San Francisco, where homicides hit a 12-year high in 2007, the Mayor and his top criminal justice adviser, a former Bush US Attorney, are trying strategies that rely on leveraging local knowledge about violent crime and the relatively small group of volatile young men reponsible for it, rather than the conventional crackdown tactics (read CV Nevius's column discussing the homicide problem in this morning's SFChron). This approach first used in Boston with some promising results in the 1990s (but then everything worked in the 1990s) relies on treating violent criminals like human beings (a surprisingly treasonous notion in the war on crime) and using communication as well as law enforcement pressure to modify behavior (rather than the usual logic of catch and cage).

The Berkeley Center for Criminal Justice, of which I am a faculty co-director, is supporting the effort with research (I'm not directly involved in this but I'm excited to have a bird's eye view as the research unfolds). Nobody knows if this communication and pressure strategy will work (as Kevin Ryan, Newsome's top criminal justice adviser, notes, a big part of the problem is the wide distribution of guns accessible to the same volatile youths) but at least the evidence one way or the other will be clear as day and local leaders remain open to that evidence (unlike national and state leaders they don't have the luxury of simply passing tough laws and moving on).

War and Crime: Does American Military Intervention Produce Crime at Home?

The case for the Iraq war has often come down to this: If we don't fight them there, they will come here and kill us. President Bush has said that often, as has Rudy Giuliani. Its not clear that American forces in Iraq truly reduce the numbers of terrorists motivated to come and kill Americans. Indeed some believe that the specter of the American army occupying a Muslim country has helped recruit new soldiers for the Jihad.

Now recent research by New York Times reporters Deborah Sontag and Lizette Alvarez and published last week in the NYTimes raises the question of whether the formula is really backwards. If we send soldiers to fight in contemporary asymmetrical wars like Iraq today (and Vietnam a generation ago), with lots of opportunity for emotional trauma and little of the social solidarity of conventional wars of necessity, will they come home and kill us? Sontag and Alvarez, using only journalistic methods, found 121 cases of Iraq veterans who have been accused of involvement in killings here at home.

One wonders, in retrospect, whether the crime rise of the 1960s and 1970s was linked to the even larger number of soldiers who served in Vietnam. Was the crime decline of the 1990s the fruit of a whole generation coming of age after 1975 with little experience with combat passing through their crime prone years? Will the Iraq war, which for now involves far fewer US combat forces, over time create a new homicide wave at home?

Immigration and Crime: A marriage of convenience (to politicians)

As the presidential campaign continues it becomes clear that American political leaders are in no way willing to level with Americans about how complicated the immigration issues in this country are let alone craft a comprehensive approach that would bring immigrant workers who lack legal documentation out of the shadows. In the absence of serious movement toward a comprehensive solution you can count on one thing, get-tough policies that emphasize the relationship between immigration and crime will continue to get emphasized regardless of how little such policies do to relieve the serious social problems created by a black market in labor, nor how cruel the consequences for individuals and families.

As Julia Preston reports in today's NYT, the current head of our Immigration and Customs Enforcement agency (that spells ICE, another example of our government's love affair with tough-sounding acronyms, of course ICE melts along the border) is promising to emphasize two forms of crime control of immigration. One approach, which builds on laws and policies that have been enacted starting in the 1990s, focuses on more efficiently deporting non-citizens who have been convicted of crimes and are serving time in American jails and prisons. Many of these people are not "illegal immigrants," but legal immigrants who have been convicted of the same sorts of crimes that citizens are. Under current law, many crimes including relatively minor ones are defined as "aggravated felonies" for purposes of immigration law and require mandatory deportation regardless of the equities involved (it might be the mother of citizen children, convicted of a minor drug possession crime). ICE is promising to speed up the deportation process as a way of relieving the burden on state and local governments.

The second policy promised is an increased crackdown on employers who hire workers without documentation of citizenship or legal residence.

Based on passed experience, neither policy will do anything to stem the flow of immigrants nor make their lives here safer and more governed by law. What they do promise to do is further reinforce the bogus link that has been established in the public mind between immigration and crime.

P.S.

This is not just an American problem. After a video camera in Munich caught two young non-citizens (one Turkish) beating up a pensioner on the subway, Germany's politicians are calling for tough sanctions against foreign juveniles convicted of crime. Read Nicholas Kulish's reporting in the NYTimes.

Question(s) for the Dems: Will You Renounce the (Bill) Clinton Pact with the Politics of Crime?

And then there were two...

With the field essentially down to Hillary and Barack (with John Edwards or Richardson capable perhaps of revival should one of the leaders shipwreck) its time for this blog to consider an endorsement. Before that, I have some questions. Unlike the disastrous 1988 campaign (when again a Democrat seemed sure to be elected by public allegedly exhausted by Republican corruption and incompetence in Iran-Contra) crime has not loomed as a big issue. But the mentalities that have flourished in the war on crime constitute a major challenge to any new President that would move this country in a new direction.

Both of you claim to be leaders who can draw from their experiences in the 1990s, to take this country out of its deepest morass of executive incompetence and power grabbing in our history. I maintain that you cannot overcome the Bush legacy without renouncing that part of the Bill Clinton legacy that most anticipated and prepared for the Bush administration, i.e, his commitment to never be outflanked in escalating the war on crime. A Presidency that began with the promise to create new forms of security and effective government for Americans ended up overseeing a vast expansion of American prisons and a crippling rollback in judicial authority in American criminal justice. That Mestiphelian pact haunted his whole Presidency, and came home when the President found himself accused of high crimes and misdemeanors.

It began with Bill Clinton's infamous trip to back to Arkansas to oversee the execution of Ricky Rector. An Arkansas inmate whose botched effort to kill himself (after a crime spree that left a police officer dead) made him effectively mentally retarded. It escalated after the failure of the health care initiative. The Crime Bill of 1994 began the federal effort to pump up state prison populations and execution rates.

No single law better summarizes the venality of that era and President Clinton's role in it than the act whose title in light of 9/11 should forever damn those who voted for and signed it. The Anti-Terrorism and Effective Death Penalty Act of 1996, enacted after the first attack on the World Trade Center in New York, and the Oklahoma City bombing, invoked the specter of terrorism to justify an unprecedented rollback of federal judicial authority with the goal of speeding up executions. The law did little to dampen the enthusiasm of Al Qaeda's ranks of those seeking martyrdom, nor did capital punishment seem to be particularly frightening to Timothy McVeigh, but it did bully judges around the country into accepting a historic reduction in their habeas jurisdiction. A decade later executions are no more frequent, but the appeals process is increasingly sterile procedural formalities with little ability for judges to actually assess the merits of the legal claims before them.

So Hillary, so Barack, would you have signed ATEDPA had you been President in 1996?

Or if you prefer a more forward perspective please answer any or all of the following:

As President

Will you ask Congress to restore full jurisdiction to the federal courts to consider the state of prisoners of all sort, whether in death rows, super max prisons, and torture chambers in every part of America's vast domestic and foreign prison system?

Will you support an end to mandatory minimum sentences and federal mandates that state prisoners complete 85% of their prison sentences?

Will you lead the country in an objective assessment of whether the war on drugs could be effectively replaced by robust forms of civil governance, regulation, and taxation?

Will you appoint an attorney general to be the nation's top advocate for legal values rather than our top cop?

Fear can kill you

Researchers at UC Irvine have found evidence that random subjects who respond more powerfully to the fear of terrorism suffer from more heart disease. As reported by Tony Barboza in the LA Times, the study controlled for smoking, obesity, and the usual correlates of heart disease. Subjects who reported more intense trauma after 9/11, or who retained a high fear response years later, showed higher levels of heart disease relative to their pre-9/11 health records.

The Irvine data reminds us that we are not governed through our minds or wills alone as bodies. Authority that constantly recharges itself through the repetitive invocation of unspeakable horror, takes a toll not simply on our liberties but on our largely irreplaceable heart cells. Remember that next time you decide to watch a Giuliani commercial.

The destructive power of terrorism fear may relate to its widespread visibility. 9/11 was a global media trauma that almost everyone witnessed in video. The same is true of violent crime, which television began to turn into its staple fare beginning in the 1970s.

It would be interesting to know if heart disease is a risk in all fear based governance, or whether certain fears, like terrorism, and I suspect violent crime, bring out deeply embedded responses that produce short-term gains (fight or flight) and long-term damage. (To the extent these are biological mechanisms, evolution has likely selected to maximize short term over long term individual survival).

For those of us who are nostalgic for the fears of solidarity-based governance (like Roosevelt's New Deal), it would be interesting to know whether fears of economic decline, climate change, and infrastructure rot produce the same kind of heart damage? Or, perhaps, can selecting the right kind of national fears produce individual experiences of solidarity and effective cooperation which result in measurable improvements heart health?

The Bush Legacy of Mass Imprisonment in the War on Terror

Prisons are usually a domestic policy issue, and one that candidates from both parties have been enthusiastically "for" over the last several decades. George W. Bush changed that when he took the war on crime strategy of mass incarceration and deployed it in his war on terrorism. His administration's grotesque interrogation and torture policies then exposed these prisons to catastrophically bad publicity undermining US prestige and security.

As Tim Golden's reporting in the NYTimes today about the US prison at Bagram air force base in Afghanistan suggests, the real problems with the strategy are more fundamental than those much denounced examples of inquisitorial excess. Mass imprisonment (or incarceration) involves sweeping up and incapacitating large numbers of subjects who are considered dangerous without much effort to discriminate among them. It almost always relies on racial, age, and gender profiling.

In the domestic war on crime, the hundreds of thousands of people in prison are all presumably guilty of a criminal offense (however, see the Innocence Project), but many of those "crimes" involve the criminalization of suspicious or dangerous behavior (that is true of most possession crimes, for example). Here in California, many prisoners are incarcerated for parole violations that do not amount to criminal offenses but are, again, manifestations of dangerousness.

In the war on terror version of mass imprisonment, there is no phase of judicial process to provide even the pretense of individual due process. Prisoners are literally swept up in battlefield or, more commonly now, urban street sweeps by soldiers or armed militias and then locked up. In Iraq and Afghanistan, the immediate result is a degeneration of living conditions to the point where, even without torture, human rights are being violated. This again tracks the war on crime where California's prisons have become unconstitutionally overcrowded and dysfunctional to the point where inmates regularly die of neglected but treatable medical problems.

My question for the candidates is this: Will you denounce not just Bush's disastrous policies of torture (which all the Democrats, and the once and future Republican front-runner John McCain would do), but his mass imprisonment policies, at home and abroad?