The Wise Prosecutor

In chapter 2 of my book, Governing through Crime (OUP 2009 pap), I describe how the war on crime transformed the political significance of prosecutors:

The prosecutor has long been a unique and important officeholder within the American systems of justice and government, with deep but limited powers and a special claim to represent the local community as a whole. In the last decades of the twentieth century, however, the war on crime reshaped the American prosecutor into and important model for political authority....

That authority was on display in the past two days of Sotomayor hearings as the Judge deflected some of the harshest attacks of Republican Senators by invoking either her law enforcement perspective generally, or her prosecutorial experience in particular. The tactic has been quite effective. Not surprisingly, Senators of both parties are disinclined to follow their critique of Judge Sotomayor's subject perspective into a concern for her possible bias against criminal defendants or to question the appropriateness of empathy when it comes to real or possible victims of violent crime. Below the fold I offer a few examples.

[read the rest of this post at Prawfsblawg]

The Rule of 10

I started last week with the proposition that sentences for violent crime are too long and that overly long sentences for the violent anchors a system of mass imprisonment. I want to come back later to the dynamics that might explain how fear of violence generates support for incarcerating the disorderly, but for now I want to raise a more provocative point. How long should prison sentences be for violent crime? I do not have an answer, but I do I have a hunch I'd love to get some reaction to, it is what I'll call, the rule of 10. Putting aside what to do with violent recidivists (a person who serves a lengthy prison term for a violent crime and then commits another such crime on release), and the kinds of especially heinous murders that are sometimes still punished with death in the United States, persons convicted of willful injury (or even killing) another, should generally be released after not more than 10 years of imprisonment. (I'll reserve for now the question of whether indeterminacy could be built into that to prevent the release of those prisoners who seem to pose a particularly extended risk given their behavior in prison).

[read the rest of this post at Prawfsblawg]

Reconsidering the Punishment of Violent Crime

For those of us who believe that America imprisons too high a portion of its population, recent years have seen mixed progress. Many states have adopted measures that aim to move drug-addicted offenders involved in drug and property crime from jail or prison toward treatment under the threat of jail. Other categories of prisoners who seem to be enjoying some increase in sympathy from the public and politicians include women (whose crimes are often tied up with the criminality of abusive partners, and whose loss from the community often leaves a bigger hole than with men), juveniles facing long prison terms, and parolees returned to prison on technical violations (this may be a unique California problem but it includes tens of thousands of prisoners). This approach has lots of political appeal right now, but it will not work to achieve a substantial and enduring reduction in the US rate of incarceration. Instead, against all political common sense, I believe we need to directly address the extraordinarily harsh prison sentences we now hand out for violent crime.

[continue reading this post on Prawfsblawg]

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!