When Organizing Becomes Racketeering, You are Governing through Crime

When a union started complaining about working conditions in Smithfield Foods giant hog slaughtering operation in Tar Heel, North Carolina, they didn't get mad, they got lawyers and field a RICO complaint. The law, designed to capture elusive mobsters has increasingly been used by government lawyers against white collar crime. Now corporations are turning around and using it against unions. According to Adam Liptak, of the New York Times, the underlying "bad act" of this crime, looks a lot like free speech.

This brings us full circle back to the beginning of the 20th century when unions were considered criminal conspiracies.

Break Your Contract, Go to Prison: Governing the Workplace through Crime

In the 19th century, Parliament turned the work rules of the British railways into a penal statutes. A trainman violating work rules, could find themselves facing not just discipline, but punishment. The growing political power of workers in the late 19th and early 20th centuries gradually eroded the practice of criminalizing labor disputes, but as the power of workers has declined, and the salience of crime to governance has gone up, governing through crime is becoming a more common way to exercise workplace power (see Chapter 8 of my book).

A recent example comes from New York where a group of Filipino nurses found that when they tried to quit their jobs at a hospital for critically ill children, they were facing not just unemployment, but criminal charges of child endangerment.

As reported by Frank Eltman of the AP:

For months, the nurses complained that they were subject to demeaning and unfair working conditions - not what they were promised when they came to America from the Philippines in search of a better life. So they abruptly quit.

But in doing so, they put more than their careers at risk: Prosecutors hit them with criminal charges for allegedly jeopardizing the lives of terminally ill children they were in charge of watching.

The 10 nurses and the attorney who advised them were charged with conspiracy and child endangerment in what defense lawyers say is an unprecedented use of criminal law in a labor dispute. If convicted of the misdemeanor offenses, they face up to a year in jail on each of 13 counts, and could lose their nursing licenses and be deported.

The case apparently has the fingerprints on it of liberal Democratic Senator, and long term crime warrior opportunist, Chuck Schumer.

Second Class Universities and World Class Prisons?

Cal State University Chancellor Charles Reed got it half right yesterday when in a speech to the University's Board of Trustees he blasted the proposed 10 percent cuts being imposed on higher education (and most of the rest of public spending) in Governor Schwarzenegger's proposed budget (read Tanya Schevitz's account in the SFChron). Reed asked the trustees (rhetorically one assumes):

"What kind of California do we want? I do think we are heading down the road to funding and building world-class prisons and second-class universities.."

We may well be on the road to the latter, and Chancellor Reed is correct to see California's three decade long incarceration binge as a significant factor in the declining state of our universities (roads, bridges, water systems, etc.). However to call our bloated and now catastrophically overcrowded prison system "world class" raises troubling questions.

World class prisons might be imagined to be places where wrongdoers are held accountable for crimes that seriously harm or threaten violence against others, in safety from each other, while being prepared for release through the application of tested methods of controlling substance abuse, and aggression while treating post-traumatic stress disorders of all sorts that frequently lead people on the paths to serious crime.

Such prisons may exist in parts of Europe. California's prisons, however, are nothing like that, and were not designed to be. Indeed, as the recent Plata and Coleman cases which have now brought the system under federal court control have revealed, these prisons were designed to function without consideration for rehabilitation or even minimal health and hygiene. As overcrowding has gotten worst over the last few years, conditions have deteriorated to the point of endangering the basic health of both inmates and staff. Moreover, they hold a tens of thousands of people for drug and property crimes as well as technical parole violations that often amount to little more than the crime of being homeless and or addicted.

Bluntly put California's once world class prisons (in the 1960s) are becoming little more than concentration camps without ovens (hear those last two words, I'm not accusing Californian's of genocide, but of building high security warehouses for the long term containment of people they are angry at and afraid of).

So cheers for Chancellor Reed for pointing out the fateful choices we are making. But lets not mistake world class prisons for unconstitutional and internationally scandalous detention centers.

Happy Birthday Martin

You cannot look at the devastation that governing through crime has brought to America, and especially to Black America, without wondering what Martin King might have done about it, had he lived.

First start with the central fact that had King lived, he might have been able, even under President Richard Nixon (who after all embraced affirmative action as the black capitalist alternative), to negotiate the kind of federal follow up to the Civil Rights Act of 1964 that would have substantially reduced America's ghetto poverty in the following decade. This tidal wave of progress might not have fully diverted the wave of criminal violence that was already unfolding in American cities in the 1960s, but it would have created an effective example of governing through opportunity and progress that might have bolstered activist government against the crushing pessimism that became the legacy of the 1970s and which made governing through crime a survival strategy for both conservative and liberal politicians in the 1980s.


Instead, King's murder, coming just weeks after the murder of Robert Kennedy, and less then five years after the murder of President John Kennedy, added immeasurably to the sense that lawlessness was overtaking American civilization and at the heart of our cities (each of these murders took place in the downtown section of a major American city). This impression was significantly bolstered by the fact that each crime was ultimately blamed on individual bad actors, strange drifters without apparent links to the massive interests which benefited from these deaths.

Combined with the murders of other civil rights leaders earlier in the decade, including Medgar Evers and Malcolm X, the killing of Dr. King must have sent a particularly spirit-killing message to the young Black men of America. Criminal violence seemed to be frustrating the demands of justice at every turn. In the meantime apostles of violent response within the Black community seemed to be vindicated. In California, the Black Panthers, no doubt aided by the FBI and the California Department of Corrections, degenerated into a real criminal organization, the Black Guerilla Family which became an influential force in California's prison culture. Since then, big parts of two generations of young black men have been lost to the streets and the prisons. Since then the "two America's" that the Kerner Commission glimpsed in the embers of the riots that followed King's murder, have girded into a society of prisons and gated communities that increasingly look like one fearful and unfree America.

It will take leaders like Martin King to bring us home from the Exodus of the War on Crime. But don't look for that leadership in the Presidential campaign. It will have to come from below. From someone who is even now working in a community like Oakland, Memphis or Montgomery. Someone who is gathering around them a yet invisible but swelling tide of people who believe that they see our needs as a society and as a generation, in a new light.

"Come back to us... Martin Luther King, we are marching into Selma, while the bells of freedom ring."

(with thanks to Steve Earle for his wonderful song, Christmas in Washington)

Go for it Gavin

Frustrated with the SF's continuing homicide spike, Mayor Gavin Newsom is reported (see Jaxon Van Derbeken's article in today's SFChron) to have ordered drug investigators to drop their cases and hit the streets of the city's high violence neighborhoods. Unlike our national and state leaders, Mayor Newsom cannot ignore violence in his city. He is said to have been particularly roiled by the murder of anti-violence activist Terrell "Terray" Rogers outside a girls basketball game last Saturday.

The Mayor is absolutely right to recognize that stopping the violence is far more important than drug investigations; or for that matter investigating the survivors of the Christmas Day tiger attack in a misguided effort to pin the death of 17 year old Carlos Sousa on his friends (that investigation has also thankfully be shelved according to another story by Van Derbeken). But he is creeping up on a far deeper and more troubling paradox. It is precisely the disastrous decision by our national leaders to hand the irrepressible market in recreational drugs (like marijuana and cocaine) to juvenile criminals that fuels the violence. Would these young men whose predictable cycles of honor based conflict leave bodies in SF streets be so cocky, so reckless, and so well armed if they were not flush with the rewards of the drug trade?

If you could buy marijuana and cocaine at a well regulated and licensed outlet whose sales were heavily taxed to offset community harms and provide treatment for the real addicts who need it, the local gangs would deflate and the young men in them would realize that high school, college, real jobs are they way to get respect, women, and toys.

Mayor Newsom cannot do that, even if he wanted to. The feds control the drug racket and SF is just one node in a global network of cities suffering from violence created by the criminal cartels spawned by federal drug policy. If SF started regulating and taxing general dispensaries for marijuana and cocaine, the entire bureaucracy would find itself facing massive drug conspiracy charges.

Here is what the Mayor can do. He can call a press conference to deliver the following message to the city's drug purveyors.

If you sell marijuana and cocaine in San Francisco, you will not be harassed by the SF Police Department, nor will the SF Police Department cooperate with Federal law enforcement operations against you, under the following circumstances:

You move all drug sales operations to discreet indoor establishments where kids and parents do not have to see drug sales or use in their face, streets, or parks.

You do not sell drugs of any kind to minors.

You do not carry weapons or use violence of any kind to conduct your business.

If you abide by these norms, you will not be the subject of investigation or arrest by the SF Police. Furthermore, if you are robbed or threatened, the SF Police will treat this behavior as the crime it is and seek to arrest and prosecute anyone involved in robbery or extortion.

However, if you violate any of the above conditions, you and you alone will face the full pressure of the SFPD while your competitors continue to operate unimpeded.

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).