Mass Imprisonment: The Birth of a Social Problem

Looking around for a dissertation topic in 1986, I followed the lead of my adviser, Sheldon Messinger, and began to look more closely at California's rapidly growing prison system. I came to focus in particular on the parole system that was supposed to guide prisoners back into society, but which instead seemed to keep them cycling back to prison (see my 1993 book Poor Discipline: Parole and the Social Control of the Underclass, 1890-1990 for the details). California's prison population had already increased more than 100 percent since I began as an undergraduate at Berkeley nine years earlier in 1977 (we took our time in those days). Many people, especially academic criminologists, doubted the wisdom of sending lots of felony offenders indiscriminately to prison (let alone parole violators), mainly because they did not believe it would reduce crime (others did believe, especially James Q. Wilson). Messinger was one of the few beginning to worry outloud (although not in print) about how this massive increase in the scale of imprisonment would effect society more generally. I was able to communicate some of his disquiet empirically in Poor Discipline.

The turnabout in that perception is now quite visible in academic research, and increasingly in public discourse. Erik Eckholm's excellent article on the children of the incarcerated in yesterday's NYTimes is a case in point. But while the emergence of mass imprisonment as a social problem in its own right is an encouraging sign (for those of us who would like to reverse it), it will only get us part of the way there.

[to read the rest of this post with all the links on Prawsfblawg]

Durkheim's Law and Order

A terrible crime is committed, the kind that brings scores of relatives to their knees in grief and sets thousands more on edge; the kind of crime that can lead people to question their own sense of the rightness of the moral order in which they live. A wrong doer is identified. Upon him the moral outrage of the community is turned. Through the expression of that outrage in punishment (originally in the most physical and painful ways), the sense of rightness to the moral order is restored.

[The rest of this post can be read on prawfsblawg where I will be guest blogging this month and next]

How much time for Madoff?

The New York Times reports that Bernard Madoff has been sentenced to 150 years. This is the sentence that the US government had sought, and apparently the harshest sentence possible (read Jack Healy's reporting). As insurance actuaries will remind us, the 71 year old financier will likely cheat that sentence by upwards of 130 years (although not through parole. What are we to make of this, apparently largely symbolic sentence?

First, Madoff's case reminds us that the line we often draw between "violent crime" and all other forms of crime, including felony property offenses, is deeply problematic. Property, especially life savings, cannot be easily separated from physical and emotional harm, certainly not in a society that relegates the poor to misery as easily as ours. Madoff's highly deliberated and planned crimes will exact a toll on many of his victims that will take the form of illness, depression, and possibly shortened lives. When we assume that violence is ontologically different, we also create all kinds of preferences based on class and race (who has opportunities to steal without violence).

But if Madoff deserves to be punished as severely as some of our most serious violent criminals, we should also note that we tend to punish violent crime very severely in America, compared to most of our peers and to our own history. In much of Europe, ten years in prison custody for an ordinary homicide is very much the norm, with 25 or more years reserved for mass murderers and war criminals. In the US, many prisoners convicted of ordinary homicides serve 30 or more years because of risk averse parole boards.

Given that we cannot sustain our current level of social investment in incarceration, and that we cannot reduce it adequately without reviewing our long sentences for violent crime, I would favor moving our punishment for the most serious violent offenders back into line with European ranges. On that scale, Madoff deserves to serve somewhat less than a mass murderer, and somewhat more than an ordinary murderer, which brings me to 17-22 years. Still likely to be life in prison for Madoff, but some incentive for him to behave in prison.

Prison Hospital Compromise Falls Apart

According to Bob Egelko's reporting in this morning's SF Chron, Governor Schwarzenegger has disavowed a deal negotiated between Clark Kelso, the received named by Judge Thelton Henderson to oversee the creation of constitutionally adequate medical care in California's super overcrowded prisons, and Mathew Cate, the Director of the feckless Department of Corrections and Rehabilitation. Under the compromise, Kelso and the court would reduce the 10 year 4 to 8 billion dollar hospital construction plan, to a 4 year 1 to 2 billion dollar plan while moving forward to restoring state control over prison medical care.

This compromise made sense. No one really wants to see California spend 8 billion building prison hospitals while ignoring the health deficits of millions of poor and working class Californians. The hope would be that four years from now, the state would be on track to a reduced prison population that would no longer require the additional 2 to 6 billion in new investment.

With the Governor disavowing the plan in favor of his new found budget cutting zeal, it will be up to the federal courts to decide how much to spend and when. In the meantime, we need the competitors for the 2010 California gubernatorial race to address how they would solve this problem.

The core of a more promising approach is to follow Massachusetts and make California the health provider for all poor Californians. This population would include nearly 100 percent of prison inmates but being in prison would no longer be a requirement for having a right to health care. In this system the state could build new hospitals for the use of all Californians and use prison (and parole) as an opportunity to drive down the state's health care costs by making prisoners healthier. You already cannot smoke, drink or take drugs while you are in prison. Introducing healthy diets and regular exercise could be the new form of "tough on crime" in California!

Don't fix California's Death Penalty, Replace It! But with what?

Jon Streeter, Bill Hing,Diane Bellas, make the case for why California's broken death penalty should be replaced rather than repaired, in an op-ed in today's San Francisco Chron. Streeter, Hing, and Bellas, a leading criminal defense lawyer, law professor, and public defender respectively, served on the California Commission on the Fair Administration of Justice, make mince meat of Senator Tom Harmon's recent oped calling for an end to lengthy appeals in order to fix the death penalty.

As the senator states, "the death penalty system in California is broken and unworkable." We found that it now takes an average of 25 years for death penalty cases to move through the mandatory court review process. However, the reason these appeals take so long is not because of "legal maneuverings." The primary cause of these delays is the lack of attorneys willing to take these cases and the lack of court staff to review them. A person sentenced to death today in California will wait eight to 10 years before an attorney will be appointed to represent him in a legal challenge to his conviction. Without an attorney, there are no legal maneuverings at all....

How do we fix all of these problems? With money. Our commission considered myriad measures to reform the state's death penalty system and recommended several. If all of the reforms we recommended were implemented, the state would reduce the risk of wrongful conviction while still being able to process death penalty cases more quickly.

We currently pay $137 million each year for the state's dysfunctional death penalty. Implementing our recommendations would cost an additional $95 million, for a total price tag of $230 million each year. Because it would take many years to increase the pace of review of death penalty cases, we would still need to build a new facility to house the people now on Death Row, at a cost of $400 million.

The attorneys propose replacing the death penalty with "the sentence of permanent imprisonment: life with absolutely no possibility of parole." Here I would dissent slightly. While we are asking Californians to take a realistic look at how we punish the most serious crimes let us level with them completely and acknowledge that permanent imprisonment with no hope of parole is not necessary to assure public safety, makes the process of incarceration itself nightmarish for both inmates and staff, and is considered a human rights violation in the rest of the civilized world. A sentence of life imprisonment, with parole only after 25 years, the sentence for first degree murder in California, is plenty of punishment. We already keep most of our non-capital murderers in prison for well over 30 years, and we need to reduce those excessive sentences. There is a long history of making bad murder law in order to limit the death penalty, let's not do it again.

We need a whole new scale. Make 25 to life the new sentence for first degree murder with special circumstances. Move regular first degree murder back to 20 years to life (keep in mind prior to 1980, most 1st degree murderer's were released within 10 years), and move second degree murder to a determinate sentence of 10 to 20 years.

Governing through Vice

Before that, the Basij, including female units, had been used primarily as a kind of vice squad, looking for drug addicts, prostitutes and mostly women but also men wearing immodest dress.

Neil MacFarquhar, reporting in yesterday's NYTimes notes that the Basij, the often motorcycle driving "volunteer" militia that have been the shock troops of the Iranian government's violent suppression of Tehran's protests, have their origin in the vast policing of "vice" that goes on in Iranian society. Tactically, this means the government's elite Revolutionary Guard (where most of its recent leaders have come from) is given tremendous capacity to act at the micro-level of society through this extensive network of informants and government agents.

That combination means that the military has rather intimate knowledge of the populations of cities and neighborhoods across Iran. “They organize in every office, every university, every mosque,” said Fatimah Haghighatjoo, a former reformist member of the Iranian Parliament who is now a visiting scholar at the University of Massachusetts in Boston.

It also suggests that the actual legitimacy of Iran's regime, like ours, relies heavily on the identification (and construction) of a vast sea of evil and deviance within civil society whose elimination becomes a raison d'etre for an expansionist state. In both cases, drugs fill a major role in populating that army of deviants against which state repression can be marketed to the people as a form of freedom.

We Don't Deserve, and Can't Afford, Another Election Governed by Fear

In the midst of our worst fiscal crisis in a generation or two, Californians are about to be confronted with another high cost television waged gubernatorial campaign. With two billionaires lined up on the Republican side, and well connected Democratic competitors, the spending, even in the midst of a Depression, will be unprecedented.

Both the terms and the present competitors for the job render unlikely any chance that an honest debate about restoring the effectiveness of California government will take place. However we must and can avoid a campaign dominated by hot button fear issues that have proven effective in good times and bad to lead Californian's to make serious mistakes at the ballot box (Juvenile Crime, 3-Strikes, Jessica's Law, etc). We cannot afford to wake up the morning after the next election, having chosen the candidate most capable of demonizing some insignificant but visually compelling threat to public safety.

This is not an issue of left versus right (as Gray Davis should be enough to remind us), but instead the alliance between almost all the mainstream politicians, the media, and key crime fear constituents (prosecutors, organized crime victims, CCPOA) that matters most in determining whether we end up with another 1994 (when in the midst of a dismal economic decline, the election between Pete Wilson and Kathleen Brown was dominated by phantoms of crime). Keep your eye on the media's ability to keep these hot button issues in the headlines (read Jaxon Van Deberken's latest effort to keep one of the newest hottest hybrids out there, the illegal immigrant, combined with potentially violent juvenile criminal, going in today's SFChron). Perhaps we need to call out this kind of reaction formation early, before it can shape the entire bandwidth of the debate.