Ferguson and Human Dignity

Michael Brown was buried yesterday (August 25, 2014) in St. Louis, near his hometown of Ferguson, Missouri. As the world knows by now, two weeks ago the eighteen-year-old recent high-school graduate was shot six times and killed by Ferguson Police Officer Darren Wilson. Michael Brown was unarmed, and the reasons for Officer Wilson’s actions have yet to be publicly explained. In a recent post, Professor Alessandro De Giorgi of San Jose State University (and editorial board member of Social Justice) puts those still unclear facts into the very clear context of what he aptly describes as the “complex penal machinery that has gradually colonized the US public space—from schools to university campuses, from urban centers to gated communities, from shopping malls to public transportation systems.” As De Giorgi argues, deaths like Michael Brown’s are routine in the age of mass incarceration. The protests in Ferguson this month have helped a great deal to broaden public knowledge and media recognition of how that “penal machinery” looks and feels to minority citizens in America. But as De Giorgi would insist, the future will look a lot like the present unless the larger structure upholding a war on segregated minority neighborhoods is brought to an end.

Short of outright defeat by the enemy (always unlikely in asymmetrical conflicts), wars end when the moral legitimacy that underwrites the mass complicity required in any modern bureaucratic society collapses. Images of human suffering and human fragility play a big a role in creating such moments of delegitimation. For my generation, the news photograph of a young Vietnamese girl running naked down a road to escape burning napalm behind her seared our consciences and will remain with us until our death. The photograph taken by AP photographer Nick Ut outside Trang Bang, Vietnam, in June 1972 (read about the photograph of the “napalm girl” here) embodied the war’s illogic and cruelty for a growing majority unwilling to consent in its prosecution. Napalming little girls to prevent even something as feared as communism from emerging in South Vietnam came to seem intolerable to all kinds of Americans who were not in any way radical. Although we do not always name them as such, moments when the organized violence of war is delegitimized are moments when human dignity emerges and becomes a counterbalance to the trust in authorities and the bureaucratic layers that separate the organized violence of war from its alleged beneficiaries. It is in these moments that people start demanding change.

Perhaps the most searing images out of Ferguson are the many captured by cell phone cameras and videos that show the uncovered body of Michael Brown, already dead, lying with his terrible wounds exposed for more than four hours on a hot summer day (read the NYTimes article on the treatment of the body here). In the aftermath of Michael Brown's funeral, it is fitting to recall how fundamental the treatment of dead bodies is to the humanity of those bodies and the decency of the society controlling them. Funerals, which are routine even for those who place little faith in religion, are a great expense in money and emotions, and seem to serve no practical goal. Searching for utilitarian rationales, we can see their function as allowing psychological or emotional healing. And this is because of something more fundamental: the human dignity that inheres even in a body from which life has departed. This human dignity, which outlasts life, demands respect for the body. The failure of the Ferguson Police Department and their colleagues to accord Michael Brown’s body that respect communicated in the most explicit way their failure to see his humanity. Nor was this a context that allowed degrading behavior to be overlooked by the vast majority. Whatever happened moments earlier, Michael Brown was no cop-killer; he was a victim with six bullet wounds in him, some of them terrible. Like the horrific photographs of lynchings, the exposure of the abused and killed body is as shocking as the death itself. The failure of those police officers to cover Michael and his wounds was an affront to both his human dignity and to the fundamental decency of our society.

Mass incarceration and the penal machinery that operates in segregated neighborhoods all over America has long enjoyed a low visibility that has allowed its fundamental inhumanity and basic lack of decency to be ignored by key institutions necessary to American democracy—journalists, courts, and ultimately popular expression of non-consent. In my recent book, Mass Incarceration on Trial: A Remarkable Court Decision and the Future of American Prisons, I discuss the role that images of suffering and chaos in California prisons played in compelling the Supreme Court to uphold a radical order to reduce prison population. Like the images of Ferguson, those photographs of suffering prisoner bodies only do the work of delegitimation when viewers can acknowledge the humanity of those depicted. They work against the odds of enormous cultural prejudgment that authorizes violence against “dangerous” others, especially young male black and brown bodies or anyone convicted of a felony.

The control bureaucracies, which find themselves on the defensive at such moments, have powerful discursive resources to dehumanize those whose suffering might otherwise end our complicity. Violent crime, especially when it can be linked to minorities, has been a crucial locus of mobilizing popular consent to the wars on crime and drugs since the 1970s. Images of looting and claims of violence in New Orleans during the aftermath of Hurricane Katrina in September 2005 shut down a cycle of growing sympathy for people trapped in New Orleans and outrage at the Bush Administration’s clear indifference to their fate. That has not happened this time. Neither the images of looting and violence nor the video showing Michael Brown stealing cigars and shoving a store clerk has stalled the cycle of sympathy and outrage that continues to resonate from Ferguson.

Human dignity arose on the streets of Ferguson, hovering over Michael Brown’s body, growing ever larger as that body was degraded in the hot sun. Not his soul or his ghost, but the specter of the humanity he shared with all of us. May Michael Brown rest in peace. May Michael Brown’s proper funeral in St. Louis bring comfort to his family and friends. May the specter of human dignity walk the streets of Ferguson for a long time, forcing all of us to decide whether we wish to belong to a decent society.

Cross Posted from Social Justice

Inhumanity: The Real Problem with Mass Incarceration

We may disagree on who belong and who does not belong in prison, or on how long prison sentences should be, or what goals those sentences should be meted out to accomplish those goals, but one thing we should not, must not disagree on, is that those prisons should be humane.  What is humane?  Humane means, treating a person consistently with their status as a human being.  In other words, recognizing their humanity.  As I argue in my new book, Mass Incarceration on Trial: A RemarkableCourt Decision and the Future of Prisons in America, the real problem with the prisons of mass incarceration in America is precisely that they are inhumane and incapable of respecting human dignity.  This core reality of mass imprisonment came to light in an agonizing slow series of cases that began in the early 1990s with two law suits challenging  California’s treatment of prisoners with psychiatric disabilities resulting in sweeping orders to reform both California’s notorious Pelican Bay supermax prison, and to reform mental health care and suicide in prisons throughout the state.  It continued in 1999 with a lawsuit arguing that the same indifference to the suffering of prisoners gripped by disease was true for physical illnesses and injuries as well.  Finally, in 2011, the Supreme Court upheld the largest prison population reduction suit in history, Brown v. Plata 131 S.Ct. 1910 (2011), in order to allow adequate medical and mental health care to be finally established.

The Brown decision, although broad in its demand that prisons respect human dignity, focused in deep detail on California’s degrading prisons and chronic-hyper overcrowding.  The question remains, is California an outlier? Is the problem mass incarceration or badly managed mass incarceration?  Recent media coverage from around the country, possibly sparked by the Brown v. Plata case, is bringing to light remarkably similar problems around the country.  The plight of prisoners with significant psychiatric disabilities is a ubiquitous feature of this national problem.  The very presence of such prisoners is a clear sign that the legal system (not just prisons) do not treat people convicted of felonies as individuals with particular circumstances and features that condition both their crimes and the kind of prison time they are likely to do, rather they are imprisoned indiscriminately on whole categories of people (that’s the mass in mass incarceration).  Their treatment in prison is a sign of something else, a prison order based on war model where prisoners are an enemy force to be contained or if necessary crushed.

In a powerful example of such documentation Erica Goode in the NYTimes tells the story of Charles Toll, a 33 year old man suffering from diabetes and serious psychiatric disabilities, who died of asphyxiation after a “cell extraction” from a supermax cell in a Tennessee state prison (read the article here, one of a series titled “Locked In” intended to document prison conditions nationally).  Toll had sprayed correctional officers with an unknown liquid (prisoners in supermax cells have been known to “gas” correctional officers with a mixture of urine and feces) and correctional officers had decided to perform a “cell extraction.”

Outside the door of his solitary confinement cell at Riverbend Maximum Security Institution here, five corrections officers in riot gear lined up, tensely awaiting the order to go in. When it came, they rushed into the small enclosure, pushing Mr. Toll to the floor and pinning him down with an electrified shield while they handcuffed him and shackled his legs.

Such operations are not the exception.  They are routines.

In some institutions, extraction is viewed as a last resort. Training emphasizes the need to defuse the situation in other ways if possible, and extractions are tightly supervised. Special care is taken when mentally ill inmates are involved.

But in many facilities, training is minimal, supervision is lax and forcible removals are conducted reflexively, with little or no attempt at alternate solutions. Corrections officers who are so inclined can easily turn the process into a vehicle for beatings or other prisoner abuse.

More importantly it is deeply embedded in the logic of mass imprisonment.  The very same issues and behaviors were the subject of Madrid v. Gomez 889 F. Supp. 1146 (1995) in which a federal judge found such indiscriminate and violent cell extractions and keeping prisoners with serious mental illnesses in supermax conditions both cruel and unusual punishment in violation of the 8th Amendment.  Despite the fact that courts in other parts of the country have agreed with Madrid, it is clear that state prisons continue to ignore the constitution.  Why?

The story of Charles Toll highlights a number of features of mass incarceration that are endemic to it and which tend to reproduce themselves across the country.

• Prisons incarcerate lots of people with serious psychiatric disabilities.  These disabilities are probably largely responsible for their crimes but prison regimes do not treat these problems, but rather deny and ignore them.
• Prisons rely on supermax units (where prisoners are isolated from all programming and other prisoners and let out of their cell only one hour or two a week for showers or exercises), not just for “worst of the worst,” but as a routine tool to “manage” recalcitrant prisoners.
• Prisons generate and exacerbate, chronic illnesses, physical ones like diabetes, and mental ones like schizophrenia, depression, or bi-polar disorder. That did not make much of a difference in the past when prison sentences mainly went to young and relatively fit men, and were for the most part short.  Today, when prisoners are older and in worst physical shape, and prison sentences last far longer, prisons are becoming engines of disease.  For the individual this can mean a lifetime of deeper illness and suffering (what I call “torture on the installment plan”).  For the government, which after the Affordable Care Act has become responsible for financing the health care of the poor in America which includes most of the incarcerated and formerly incarcerated, this an explosive source of cost inflation.
• Prison officers do not view themselves as involved in rehabilitation (despite the label correctional officer), or even protection of prisoners, but instead in a tense containment of an enemy mass that can degenerate into lawless war at any time.  The only form of recognition that is routinely given to prisoners as individuals tends to be directed at humiliation.  This is not a result of hiring sadistic, but a predictable result of operating prisons.  Research since the famous “Stanford Prison Experiment” has shown that custody regimes predictably turn “guards” and “inmates” into enemy armies highly motivated to hurt and humiliate each other unless systematic steps are taken to counter act that tendency.

These features frequently lead to torture-like conditions when combined with the chronic illnesses (both mental and physical) they give rise to, and make it impossible for prisons to respect the human dignity of prisoners or of the correctional officers.  They lead to the conclusion that mass incarceration itself, that is policies which indiscriminately send people prison based on crime or criminal record with out individual consideration, is unconstitutional.  Human dignity, according to the Supreme Court majority in Brown v. Plata, “animates the Eighth Amendment.”  It is clear that the kinds of conditions described in this and many stories violate the constitution, but it will take innumerable lawsuits and decades of litigation to enforce that individually.  Instead we badly need a national commitment to restoring humanity to our prisons.  At a minimum that will require reducing the chronic overcrowding that exists in more states than not, by dismantling the web of state laws that indiscriminately send people to prison and which extend prison sentences beyond all rational penal purposes despite the grave risk of prolonged incarceration on mental and physical health.

 

Life in Prison with the Remote Possibility of Death: The Death Penalty and California's Broken Punishment Paradigm

Judge Carney's 39 page opinion finding California's death penalty is already setting off a wave of debate in the media. We will see yet whether it catches any political fire in this dry but so far politically placid season in California.  There is much to recommend in the opinion (read it here courtesy of the LA Times).  At its core is an unassailable principle of contemporary 8th Amendment law, that a sanction as severe as death cannot be administered arbitrarily.  The constitutional basis of the contemporary death penalty is that the statutes "narrow" the realm of death eligible crimes so that a rational basis existed for distinguishing those convicted of murder and sentenced to death and those convicted of a similar murder and given life.  Judge Carney reviewed California's system that has handed out around 900 death sentences, but only executed 13 people, and concluded that the system was unconstitutionally arbitrary because no rational basis exists distinguishing those actually executed from many not, and likely never, executed.  His conclusion, summarized in our title quote, is that a death sentence in California is actually a sentence to "Life in Prison with the remote possibility of death." That is not what the Supreme Court decisively upheld as constitutional back in the 1970s (see Gregg v Georgia 428 U.S. 153, 188 (1976))

The Judge also turned to an analysis of the purposes of punishment that is increasingly central to 8th Amendment analysis of both death and long prison sentence cases.  Clear Supreme Court doctrine makes clear that only two (deterrence and retribution) of the four classical purposes of punishment (those plus rehabilitation and incapacitation) can justify the death penalty.  Why?  In a nutshell, long prison sentences can deliver as much rehabilitation and incapacitation as death, so if such a severe sanction can be justified on penal grounds it must be on deterrence (scare potential offenders) and retribution (satisfy community/victim outrage at a particularly heinous murder).  Here few will argue with Judge Carney's bottom line argument that whatever deterrent or retributive value executions might have in a system (Texas? Virginia?) that delivered them more efficiently and effectively (of course those systems may violate other constitutional rights in order to achieve high execution rates, probably do), California, where delay between sentence and execution (if it ever occurs) is around 25 years, cannot deter or deliver retributive justice.

Proponents of the death penalty are and will argue that the delay argument is flawed because the system can be fixed to speed up executions.  This is the crux of Judge Carney's analysis.

California’s death penalty system is so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death. Of the more than 900 individuals that have been sentenced to death since 1978, only 13 have been executed. For every one inmate executed by California, seven have died on Death Row, most from natural causes. The review process takes an average of 25 years, and the delay is only getting longer. Indeed, no inmate has been executed since 2006, and there is no evidence to suggest that executions will resume in the reasonably near future. Even when executions do resume, the current population of Death Row is so enormous that, realistically, California will still be unable to execute the substantial majority of Death Row inmates. In fact, just to carry out the sentences of the 748 inmates currently on Death Row, the State would have to conduct more than one execution a week for the next 14 years. Such an outcome is obviously impossible for many reasons, not the least of which is that as a result of extraordinary delay in California’s system, only 17 inmates currently on Death Row have even completed the post-conviction review process and are awaiting their execution. See Appendix A. For all practical purposes then, a sentence of death in California is a sentence of life imprisonment with the remote possibility of death—a sentence no rational legislature or jury could ever impose.

Those who insist that California could have a "normal" death penalty (whatever that means) quickly enough has to address Judge Carney's assessment of the overall system (which includes the paralyzed legislative politics around capital punishment) and its incapacity.  More importantly, those prisoners who have already served more than twenty-five years have an excellent argument that whatever might be true in the future, to execute them now after being degraded or even tortured by decades of uncertainty violates the Eighth Amendment.

Judge Carney's opinion now joins the 3-Judge court opinion on California's mass incarceration system upheld by the Supreme Court in Brown v. Plata (2011) in condemning not the means of punishment but the political system in California whose highly politicized and inconsistent crime policies has produced forms of both capital punishment and imprisonment that violate the Eighth Amendment and offend human dignity.  California, the homeland of governing through crime for decades, needs not just realignment and a repeal of capital punishment, it needs a re-boot of a fundamentally broken justice paradigm (for further details of what might replace it see the last chapter of my new book Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America (New Press) out next month)

It is not clear this case will ever be reviewed by the Supreme Court (because the facts are so California specific it is unlikely to establish a precedent for other states), but the question whether even to appeal to the Ninth Circuit Court of Appeals provides Attorney General Kamala Harris, who has already distinguished herself as having a pro-active system view of California's justice problems, to make the case to Californian's that Judge Carney (appointed by President George W. Bush) is right and California's current law does not deserve a defense in the appeals court.  An opponent of capital punishment who has both pragmatic and principled reasons to be reluctant to impose her views on California voters who remain highly divided, she could invite the legislature and citizen initiative groups to propose new capital statutes and put them before the voters.  The backlash at converting existing death row inmates to life without parole will be brief, and easily answered by Judge Carney's findings that almost none of them faced an actual likelihood of execution (one suspects it will be further muted once word of massive unhappiness among the current occupants of death row at being transferred into California's degrading prison system will further allay political damage to the Attorney General from pro-death penalty voters).

A Botched Execution

To "botch" something is to carry out a task "badly or carelessly."  Oklahoma's botched execution Tuesday, April 29, 2014, demonstrated that word in its absolute in-glory.  (read the New York Times account here).  Badly?  Executions always cause at least psychological pain.  Even if everything goes perfectly, the physical pains involved in injecting the drugs may not be trivial either, especially when stripped of its normal healing association and replaced by the grimmest. Still, an execution can be carried out badly in countless ways when it causes additional anxiety, humiliation, and physical pain.  The execution of Clayton Lockett as witnessed by reporters was badly done in just this sense.  Prison officials said Lockett's vein "exploded."  Lockett was seen to writhe and shake uncontrollably, attempted to rise up from the gurney to which he had minutes earlier been completely strapped down, and cried out "man"; all after execution officials had announced him unconscious.  Officials apparently blamed the condition of Lockett's veins and further investigation is promised, but these events are extreme for executions in the modern era and fully profile the case that defense lawyers have been making for years that lethal injections in some cases can amount to torture.

But where Oklahoma Governor Mary Fallin and the State's legislators wrote the book on botched is on the "carelessly" branch of the term.  In their zeal to assure a supply of lethal chemicals to kill prisoners at a time when supplies have become scarce due to international revulsion at American capital punishment, Oklahoma politicians passed a law shielding the sources of the execution drugs and adamantly refused defense requests for information about their origins.  When the Oklahoma Court of Criminal Appeals (the state's highest court for criminal appeals) refused to stay the execution despite a lower court having found that Lockett's had right to information about the drugs,  the Oklahoma Supreme Court, which has no regular jurisdiction over criminal appeals, stepped in to issue a highly unusual stay in the interests of justice, only to retreat after the Governor and legislature furiously attacked the jurists, threatening to ignore their decision and impeach them as well.

Not content with having bullied the courts out of the way, and eager to show how trivial defense concerns about the execution drugs were,  Governor Fallin ordered a double execution, a rarity in the modern era and the first in Oklahoma since 1937.  Executions, even when they are not botched, exact a horrible toll on remaining prisoners (both those on death row and in the general population) and on prison staff.  A double execution is a heinous act of cruelty on the entire prison system which  was motivated by the unseemly rush to see executions carried out before courts could fully examine the defense arguments that these lethal chemicals might cause extreme pain to Clayton Lockett and other condemned prisoners.

Careless is not just bad, in a real sense, its evil.  You can do something badly for a lot of reasons (often conflicting interests or roles) but to do it carelessly is to do it without care.  When we say that carpenter was "careless" in building a stair case that collapsed, or a designer was careless in designing an automobile that crashed, what we really mean is that they did their task without caring about the humanity of those who would walk on the stairs or drive the car.  Governor Mary Fallin and Oklahoma officials rushed an execution without caring about the humanity of Clayton Lockett and Charles Warner.  In doing so they raised serious questions as to whether Oklahoma's death penalty inherently violates the Eighth Amendment which as been recently found to be animated by respect for human dignity.

...And then they botched the execution.

Austin Sarat shows in his just published (and incredibly timely) book Gruesome Spectacles: Botched Executions and America's Death Penalty (Stanford 2014) Oklahoma's botched execution may be textbook but it's not unique.  Botched executions are persistent theme in America's capital punishment history, largely fueled by our national combination of uncertain respect for human dignity, and misplaced technological optimism.

By the way, the intensity of Oklahoma's leaders in their pursuit of retributive justice should be put in context of their general lack of interest in governing.  The state ranks 44th in overall poverty, 43 in infant mortality, 47 for cancer mortality.

Dying Inside: Lifers, the Dying, and California's Correctional Paradigm

Before the hospice program started by prison chaplain Lorie Adolff, dying prisoners in California's state prison in San Luis Obsipo (California Mens Colony) just expired alone in their cells, with prison nurses looking in periodically until their vital signs ceased.  Her project, Supportive Care Services, trains other prisoners, most of them lifers, to sit with and comfort dying prisoners.  The hospice, featured this morning on KQED's California Report (listen to it here), sounds deeply moving and likely a powerful healing experience for everyone involved.  I have had the privilege of being at the bedside of the dying myself (my father) and I have no doubt that that small space is one of freedom and transcendence even in the midst of prison.  It has been movingly described in the correctional setting before (see Ben Fleury Steiner, Dying Inside).

Any bit of humanity and kindness is worth encouraging, but I hope the prison hospice is an idea that spreads fast enough to put itself out of existence.  First, by underscoring the barbarity of California having a large stock of aging "lifers" fated to die in prison (perhaps alone at the prisons that do not have a Lorie Adolff on staff).  There is no penological justification for allowing people to linger in prison long enough to die of  old age after serving decades in many cases.  Prison is, for the moment, our society's way of expressing moral outrage against heinous crimes and protecting the community against people with a habit of using violence to get their way, and spending a piece of your life in a humane prison may be considered justly deserved punishment for crimes that deprive other people of their lives or physical or mental integrity.  But prison sentences must have limits to be rational and just and almost everyone agrees that  California's years of penal populism led legislators and prosecutors to produce sentences that having little relationship to either moral desert or risk.

Prison hospices might help eliminate themselves by driving home a different point.  Prisoners experience change.  Prisoners can change through the the kind of work described in the Supportive Care Services project in which they touch their own humanity.  Prisoners also change through the processes of aging and recognizing the profound gifts of family, community, and freedom.  Our current correctional was built on the premise that such change does not happen, but it happens constantly.  Its the paradigm itself that remains caught in a kind of time warp, like a 1980s mainframe where the calendar is permanently locked on September, 1971.

We now know that crimes are highly situational, contingent, dynamic events.  The best way to reduce crime, even violent crime, is to identify and interrupt the spatial/temporal patterns of human activity that presage and promote violence.  Prison does not do that (by and large, used precisely it might).  Our current mass incarceration policies were baked into our correctional commonsense back in the 1970s (remember when lapels were wide and Jerry Brown was Governor).   Back then most criminologists were throwing up their hands at any way to stop the escalating violent crime rate and some endorse increased prison sentences as the only hope.  Crime went down long after prison populations skyrocketed and even the most supportive criminologists credit incarceration with no more than a quarter of the national crime drop that occurred in the 1990s.  California's heavy investment in incapacitation has been particularly counter productive.  Indeed, having abandoned rehabilitation and reentry, California allowed the formation and stabilization of a racist gang system in prisons that helps prevent prisoners from desisting from criminal lives and life styles.  (Even the gangs have evolved as the recent peace calls and hunger strike suggest, and I currently rate the gangs and the correctional officer's union more ready for change than California's fear based correctional leadership).

Prison hospice can indeed be a model for prison projects that breed a sense of humanity in everyone involved, which both prisoners and prison officers need to prevent dehumanization and demonization from setting in.  But all prisoners need a realistic hope of life on the outside if prison is to be a truly humane and penitential place.  Dying on the inside may happen, when arrangements cannot be made quickly enough for compassionate release or when a prisoner prefers to remain among close prison friends, but dying on the inside should be a rare and unfortunate event.  Governor Brown, to his credit, has unblocked California's executive heavy parole process but it is still far too slow, too cautious, and a huge backlog remains.  Far too many prisoners remain caught by long determinate sentences that do not allow for parole.  Governor Brown, who faces no real challenge to a second term, should use his executive clemency powers to speedily move aging prisoners out of prisons, with those needing the most health care the first in line.  This would help the state cope with the Brown v. Plata medical and population orders and begin to create a climate of compassion and dignity in which the state might begin to revise its pointlessly punitive sentencing laws.

Abandoning a Failed Penal Experiment: New York's Historic Advantage

New York has made it share of bad penal policy choices.  Remember the "Rockefeller Drug Laws"; mandatory life sentences for persons arrested with large quantities of dangerous drugs that helped set the nation on the path toward indiscriminate use of incarceration?  But the "Empire State" has also had a historic knack for getting out of bad penal positions early.  The state began to wind down its position in mass incarceration as early as the mid-1990s, closing as many as 14 prisons, and in recent years has eliminated its mandatory drug laws.  This week the state announced a sweeping settlement with the New York Civil Liberties Union that will bring major reforms aimed at reducing the state's use of isolation prison units (read the NYCLU statement here).  These units, common in the US, keep prisoners isolated full time, with no programming and no access to other prisoners or correctional staff.  All too often, such isolation can continue for years and result in serious mental degeneration of the inmate.  The New York settlement will eliminate the use of this kind of incarceration for juveniles and people with mental illness and begin an expert led process to reduce the state's use of isolation as a disciplinary tool, especially long term use.  The experts, James Austin and Elton Vail, are two of the nation's best penologists and can be expected to seek dramatic reduction.

Interestingly New York's ability to pivot seems to have historic roots.  I was just lecturing to my undergraduate course on prisons about the infamous experiment in solitary confinement at the outset of America's correctional history.  Under the belief that separation of law breakers from society was essential to their reform, Jacksonian prison designers believed that total separation would be best of all.  When New York opened its new cellular penitentiary at Auburn in 1821 it conducted an experiment.  The prisoners deemed least redeemable (oldest and most hardened), were placed alone in cells day and night.  Other prisoners were isolated in cells only at  night, and worked together in workshops during the day.  According to historian Rebecca McClennan (in The Crisis of Imprisonment) the results of the experiment were clear within two years.  The prisoners kept in total isolation were so mentally damaged that the public outrage led a new governor to pardon the prisoners and end the practice.  New York's "congregate" model of common work became the national model for the 19th century.

At around the same time Pennsylvania opened a total isolation prison in Philadelphia.  Aware of Auburn's results, the designers in Philadelphia endeavored to provide the isolated prisoners with a larger cell in which to conduct some kind of distracting labor.  The isolation regime there also resulted in mental degeneration according to its many critics (Charles Dickens among them), but the state stubbornly held on to its regime for another fifty years (the result of organizational factors my former student Ashley Rubin analyzed brilliantly in her dissertation "“Institutionalizing the Pennsylvania System: Organizational Exceptionalism, Administrative Support, and Eastern State Penitentiary, 1829–1875”).

What makes New York so good at getting out of losing positions?  Could it be the State's long association with the financial industry (which survives by being adept at getting out of losing positions with the least damage possible)?  Is it the Empire State's corporatist style of consensus government as described by Vanessa Barker in The Politics of Imprisonment?  It would make a good research paper.  Other states are  moving.  Just today, Colorado Corrections Secretary Rick Raemisch published an op-ed in the New York Times (read it here), reporting on a night he spent in one of his state's isolation cells, and why he is so motivated to wind down the state's use of the practice.

Sadly California seems destined to play Pennsylvania in the 21st century replay of the 1830s debate about solitary confinement.  Under the administration of Governor Brown and Secretary of Corrections Beard, the Golden State has dug in its heels to defend the states typically outsized reliance on total isolation imprisonment.  No state holds more of its prisoners for longer periods of time than California. And while most states use isolation as a penalty for specific disciplinary violations (albeit in New York sometimes very trivial ones), California makes gang affiliation the primary rationale for isolation on a longterm or permanent basis.  A lawsuit has been mounted on behalf of prisoners held in isolation for more than ten years at the state's worst isolation unit, Pelican Bay's notorious SHU (read about it here).  Brown and Beard should follow New York's lead and seek to settle this lawsuit now with a broad strategy to end this shameful second era of solitary.  Perhaps Secretary Beard should follow the example of his Colorado colleague and spend a night at Pelican Bay.  While there he should sit down and talk with the gang leaders whose unified actions during last summer's hunger strike suggests more than worthy interlocutors, and whose lifetime isolation against all international human rights standards has clearly done little to make California prisons safer or less gang identified.

From Humanity to Health: Why Can't California Get Prison Healthcare Right?

Yesterday to no doubt considerable embarrassment in the Brown-Beard administration, admissions to California's newest prison near Stockton California, were halted by the court appointed health care receiver, law professor Clark Kelso.  The prison, the first new facility in a decade, is the lynch-pin of the administration's frequent claim to have gotten on top of California's decades old prison health care crisis.  The prison is the first of its kind to be purpose built to house and care for many of the state's seriously ill prisoners whose suffering in the grip the state's chronic overcrowding led the Supreme Court to describe the state's system as unfit for a civilized society in Brown v. Plata (2011).  Under pressure to show that it can make progress in reducing that overcrowding, the administration is no doubt frustrated to have to halt adding inmates to the facility intended to hold nearly 1800 prisoners at full capacity, but Receiver Kelso's order and the report accompanied it raises more basic questions as to whether the State has yet drawn any lessons from its decades of human rights abuses about what it takes to operate prisons that respect human dignity as required by the Constitution (as well international human rights conventions to which the state is answerable through the courts of the United States).

So what went wrong in this brand new prison designed from the ground up to deliver health care?  Problems with the radiation treatment equipment for cancer patients?  Problems staffing the dialysis center?  Actually the problems were a bit more basic.  As reported in the Sacramento Bee (read it here):

A shortage of towels forced prisoners to dry off with dirty socks; a shortage of soap halted showers for some inmates, and incontinent men were put into diapers and received catheters that did not fit, causing them to soil their clothes and beds, according to the inspection report and a separate finding by Kelso.

The report also said there were so few guards that a single officer watched 48 cells at a time and could not step away to use the bathroom.

Kelso said the problems at the facility call into question California's ability to take responsibility for prison health care statewide. He accused corrections officials of treating the mounting health care problems as a second-class priority, the newspaper said.

Read more here: http://www.sacbee.com/2014/02/05/6130729/admissions-halted-at-stockton.html#storylink=cpy

Spokes persons for the administration described the situation as a normal glitch associated with the rolling out of a new facility.  Perhaps.  But it also looks like business as usual in a system where medical neglect of chronically ill prisoners went on for decades under the deliberate indifference of prison administrators and governors.  Rather than apologize to the citizens of this state and seek to make amends to the prisoners, former prisoners, and correctional workers forced to experience and participate in those degrading conditions, the administration has continued with smugness to defend the status quo with an attitude that borders on contempt to the courts.  Is it surprising that actors never held to account for their human rights violations cannot create conditions that respect human rights?  Good healthcare takes medical professionals and modern infrastructure, which appear to be still lacking to a significant degree even in this brand new purpose built "Health Care Facility".  But healthcare also takes humanity.  A prison system that can't get that right, can 't run its healthcare system and shouldn't be allowed to continue to operate prisons on which the good name of the people of California is stamped.

From the War on Crime to World War Z: What the Zombie Apocalypse can Tell Us About the Current State of our Culture of Fear

Zombies are everywhere.  Ok not (yet) on the streets (so far as I know); but in our cultural imaginary they are everywhere.  You can find them (in small groups and hordes) in high budget nail biting thriller movies like Brad Pitt's World War Z (2013), on television, and all over print and digital reading material, much of it spoofing both our literary and political histories (including Zombies in Jane Austen and Abraham Lincoln).  For those of us engaged in probing America's culture of fear, and its highly toxic institutionalizations like mass incarceration and mass deportation zombies seem to be a potentially important proxy for the demons that haunt contemporary society, but what do they tell us?  Actually, I think, quite a lot, and the news is mostly good.

First consider the ugly truth about zombies, at least the kind that have appeared in popular culture since1968's Night of the Living Dead.   Zombies form an undeniable symbolic stand in for the twin racialized fears that have helped fuel our punitive culture of control producing both mass incarceration and mass deportation.

One is fear of violent crime and riots, which were reaching one peak in 1968, and were mostly linked in the popular imaginary to African Americans (Director and co-writer George Romero may have subverted this by casting a black male as the heroic protagonist of the movie).  While the riots mostly subsided, sustained high homicide rates in inner-city neighborhoods during the 1970s and 1980, shaped an image of violent youth who did not respond to normal human incentives, some criminologists called them "super-predators" because zombie would have been to self parodying. The crack epidemic further crystalized this association with its imagery of stick like figures shambling toward anyone who could feed their craving.

The second image channeled by the contemporary zombie is that of the "illegal" or "undocumented" immigrant. Starting in the late 1970s and early 1980s, fears of economic decline and national weakness fused with images of "out of control" illegal immigration.  This has always had an undeniably racial cast, associated with migration from the South, Cuba, Mexico, Central and Southern America.

The zombie films from the 1ate 1960s through the 1980s played on and sometimes subverted the fears of suburban middle class Americans that their security and life style was under assault by predatory others whose claim on our humanity was both troubling and potentially treacherous.  Raced without race, the undead took on the otherness that dared no longer be precisely named.

Therein the good news.  The zombie genre is changing in directions that both suggest and support a shift away from the punitive culture of control.  The fact that so much of the genre is now satire suggests and audience prepared to laugh its fears, with a sense of greater mastery.  Even in its latest scary forms, like World War Z the zombie has morphed from drug deranged criminal or rioter to virus carrier.  While this new medical model of the undead may not lead to a cure, it suggests, as those who have seen the movie know (no spoiler here), different ways of coping with them.

Indeed the author of the novel World War Z has also written The Zombie Survival Guide which offers in its own way a scathing critique of the culture of control suggesting among other thing that:

• Schools will make excellent positions from which to defend against a zombie attack because of their high level of anti-crime oriented security design and tall fencing.
• Prisons, at least once the prison officers and prisoners have made common cause against the undead, are perhaps the best possible defensive location given their high fences (zombies can't climb) and we can thank mass incarceration for preparing a large number of such formidable redoubts.
• SUV's only look formidable, but will turn into a zombie restaurant once they get stuck or run out of fuel, you are much better off on a bicycle or a motor cycle.
• Apartments are much better for security than private homes (especially single story ones) which are inevitably penetrable and have fewer escape options or ready to hand neighbors to defend with.

Yes Virginia, there is a death penalty: Reflections on the Christmas Moratorium

On the 19th of December, the paper of record, the New York Times, ran a story discussing the lower number of executions (39) in 2013 than in a previous years; a trend that began sometime ago (read it here).  The causes of this trend are complex and fascinating and worthy of more comment, but here I want to point out something else.  How did the Times know on December 19th how many executions there would be in 2013? That still left more than ten days in 2013 and with more than 30 states with capital punishment still on the books, and more than 10 that regularly execute people, surely a last minute surge might have carried 2013 up and over the not much higher number of executions in 2012.

In fact some real problems with execution drug supplies might actually prevent a surge of executions but even a trickle might have done it but that isn't the reason either.  The truth is that the Times and everyone who knows about capital punishment in America knows that in fact (although nowhere prescribed by law) there is in America (even in the most die hard death penalty states) a Christmas moratorium.  Actually, I'm told it begins somewhat before Thanksgiving and lasts until after January 1.

But why?  Surely if the story we tell ourselves about the death penalty is true this is a very strange outcome.  If executing a murderer is a positive moral act which delivers necessary justice to the community and especially the victims, why don't we work up to the last minute on Christmas Eve executing the large backlog of prisoners under sentence of death who have exhausted their appeals?  Hell, the states are not bound to obey federal work holidays and law enforcement operations continue round the clock generally, so why not executions?

Ok, so perhaps this is a concession to the families of the condemned.  It can sure spoil your Christmas to be contemplating a son, brother, or father who was just strapped to a gurney and shot full of lethal chemicals by state officials acting at the behest of your community only a few days or hours earlier (indeed any death at or near Christmas is almost always considered an especially stiff blow in our culture).  But what about the victim families?  They have to spend every Christmas thinking about their murdered loved ones.  Wouldn't giving them the first Christmas following the delivery of usually long promised execution of "justice", "closure" as it is approvingly called by everyone, be the best kind of Christmas present?  Even if they don't outnumber the families of the condemned, it seems a strange that in almost every other thing respecting the death penalty we favor the families of the victims, why not here?

Is it because Jesus wouldn't like an execution, and, after all, its his birthday (observed)? Ok, I'm not a Christian, so I'll tread carefully here.  From my reading of the New Testament I would have no problem coming to that conclusion (and he was after-all, executed himself); but a fair observer of our culture would have to conclude that real Christians as a community are split on the question of what  Jesus would do about capital punishment.

The answer it seems to me is inescapable.  Christmas, whether you are a Christian or not, is globally recognized and admired for the its message of celebrating humanity (of course many of my Jewish ancestors in the Russian Pale during the 19th century would have found this deeply ironic as a Christmas pogrom came down on them).  The divinity of Jesus may be debatable, but the message that the dignity of divine creation is one embodied in humanity itself has become a central core of our international human rights tradition and deserves universal acceptance.  It is a message that finds independent expression in Judaism, Islam, and most of the world religions.  The death penalty is incompatible with recognizing the humanity of the person being executed and the humanity of the people who have to carry out the execution.  That is the reason a Christmas moratorium (I almost wrote truce) is observed in Texas, Virginia, and everywhere in the United States.  Whatever may have been true in 1789, or 1868 (when the 14th Amendment was adopted), in today's world what denies humanity is not a moral good.  At Christmas, at least, we acknowledge that.

So Virginia, the hard truth is this.  Santa Claus is a myth.  That means its not true or false; it depends on beliefs and the cultural practices that give them life.  If you woke up this morning and found presents under your tree Santa Claus does exist.  The idea that executing people is a positive moral good, in contrast, is simply a lie; and the Christmas moratorium proves that everyone knows that.

Mass Incarceration and Mass Deportation: Twin Legacies of Governing through Crime

One afflicts mostly American citizens, disproportionately those of African American and Latino backgrounds from areas of concentrated poverty, but also many white and middle class citizens who fall into the hands of police and prosecutors.  The other afflicts exclusively non-citizens living in the US without federal authorization, or in violation of the terms of their permission.  One results in people being kept in prisons for years and decades at a time.  The other often starts with detention that looks and feels a lot like imprisonment, and then culminates in the person's forcible removal from the US to a country in which they hold formal nationality but may have few or no connections and often face grave dangers.  One is driven largely by state and local officials, with considerable encouragement and support from the federal government.  The other is driven by the federal government, with considerable encouragement and support from state and local governments (although now also increasingly some opposition).  One is considered punishment for crimes.  The other is consider a civil action to protect the national integrity of the US.  But despite these differences mass incarceration and mass deportation are off-spring of a common source, the US political system's broad turn toward race tinged fear, violence and coercion to govern American society since the 1970s (of what I call, "governing through crime").  What follows are some common features.

• Both mass incarceration and mass deportation are rationalized on the basis that they are primarily necessary to keep Americans safe from violence.  This persists despite the fact that violent crime metrics in most parts of American society are at the lowest level in decades, few criminologists believe that mass incarceration played a significant role in reducing violence, and almost no credible evidence exits linking non-citizens here without federal permission to violence (quite the contrary).
• Both mass incarceration and mass deportation are forms of governing that operate on masses, groups, classes, and races, rather than individuals.  They rely on racial profiling and rigid rules designed to remove the ability of judges or other officials to take individual and contextual circumstances into account.
• Both mass incarceration and mass deportation (therefore) systematically deny the human dignity of the individuals their operations inevitably target, and result in conditions of confinement and forced removal that have been repeatedly found to violate human rights obligations of the United States under our Constitution and which also offend international treaties such as the Universal Declaration of Human Rights, and the International Covenant of Civil and Political Rights.
• Both mass incarceration and mass deportation deliver some of their most destructive effects on the family members of the individuals imprisoned or detained who find themselves denied parents, partners, and vital emotional and economic support despite having broken no laws. The spillover effects also diminish the freedom and dignity of whole communities whose residents must move through life with their heads over their shoulder looking out for police or immigration enforcement officers.
• Both mass incarceration and mass deportation remain powerful engines of destruction, despite lack of current visible public support, and despite tremendous fiscal costs, largely because of political calculations that any deviation from rigid punitive policies will be risky, and the resistance of powerful financial interests with great lobbying ability to policy changes that would diminish the high profits they receive from servicing the imprisonment-deportation complex.

As we end a year in which President Obama and Attorney General Eric Holder have given important signals that they are aware of the moral and human destruction of both mass incarceration and mass deportation, we must endeavor to produce the kind of grass roots social movement that will demand a full dismantling of both these legacies of the era of governing through crime.  As the New York Times reports in a story today on immigration (read it here) there is an increasingly visible protest movement against mass deportation.  We need an equivalent movement against mass incarceration.

"Justice" in the Murder Years: More Tales from the Brooklyn Crypt

The New York Times continues its on going series of investigatory features on wrongful convictions or likely wrongful convictions produced by Brooklyn's law enforcement and court system in the 1980s and early 1990s with a gripping and sad story by Frances Robles on two Brooklyn teenagers (now 30 and 31) convicted of killing a corrections officer in an apparent car jacking in 1991 (read it here).  Many of these cases have involved Louis Scarcella, a detective with an reputation for always getting a confession and television detective looks that landed him frequently on television as a celebrity detective in the 1990s and 2000s, but whose repeated frequent use of the same boiler plate language in the "confessions" he extracted and repeated use of the same crack addicts as "eye witnesses" has more recently come under critical scrutiny by both the Times and the Brooklyn District Attorney's office.

I will leave you to read the details of this particular case.  It involves evidence of systematic malpractice in the Brooklyn detective's unit and the District Attorney's office, that points to a culture of indifference to legal or factual guilt.  Robles also gives us a fuller portrait of the trial process than we get in previous stories and it looks about as summary as some of the 18th century records from the Old Bailey.  Here was a trial for the lives (in prison, New York had no death penalty at this point) that lasted barely a day and involved an almost shocking lack of evidence.  Here I want to reflect on a few general features of the world of crime and criminal justice we see through the dark glass of these fragments from the crypts of Brooklyn's recent criminal justice past.

There is a sense of violent crime and in particular murder as a kind of normal drum beat.  These were years when the national and local murder rates were approaching their 20th century highs and many of these homicides were happening in the Brooklyn neighborhoods where Scarcella and his colleagues worked.  Both the teenagers caught up in the likely wrongful convictions here had been involved in repeated serious to violent crime and in the case of one of them seemed to be on an escalating path toward more violent crimes (which have apparently continued during a long prison career).  The extreme nature of crime in these years, and the wide dispersion of criminal behavior in the youth population, both operated as a context for police, lawyers, and court personnel, what law and society scholars call the "court working group", to develop a working philosophy in which the obviousness of the threat and the frequency of guilty justify systematic departure from the model of individual justice and the presumption of innocence.  I say this not to justify it, but to highlight how  clear the danger signs were that justice could go astray.  High crime and concentrated crime are reasons to strengthen court independence and legal constraints, but the politics favors weakening both.

It is often noted today that lengthy rigid sentences have driven defendants to give up their trial rights and plead guilty, perhaps even when they are innocent.  Here though the defendants demanded and got a trial, and the reasonable doubt it exposed seems staggeringly obvious from twenty years distance, they were convicted and sentenced to life (in one case even over the fact that the defendant was a juvenile being sentenced as an adult).  The defense lawyer seems to have done a good job addressing the holes in the prosecution case.  What went wrong?  A hint is captured in a quote Robles got from one of the murder victim's daughters who attended the trial:

Mr. Neischer’s daughter, Nakeea, who was 12 at the time of the trial, remembered of Mr. Bunn: “When they brought up the charges, he was laughing. I don’t know if he thought it was a joke, but as they read the charges and said ‘murder’ it went from giggles to not giggles. I remember thinking, ‘If you didn’t do it, why would you be laughing?’ ”

How the victims and the largely white professionals who made up the Brooklyn court system in the early 1990s saw these young black men is something we can only speculate on but two things resonate with other sociological work on the topic.  First, young men of color appear arrogant and socially hostile to white observers so commonly that it is hard not to think this is a feature in the eye of the beholder.  Second, to a shocking extent, the professionals couldn't see these young men as individuals.  The witness reported light skinned black men in the early 20s or late teens, the two men convicted were dark skinned and younger.  The original story suggested one had been shot, but neither had a wound.

Investigations are now continuing into other Brooklyn cases, especially those connected to Det. Scarcella.  However one wonders whether such procedures, launched decades after the events can hope to restore those injured by the abandonment of individual justice principles during this dark period of degrading fear (even more so after reading about the evidence of cover up efforts by police in this case).  Perhaps what is needed is a systematic solution.  Those whose demographic and social circumstances were once used against the should not have it work in their favor.  All prisoners from the era of near hysteria about homicide, 1975 through 1995, who are still in prison should be considered for clemency on the grounds that the entire system was so corrupted by fear and an abandonment of rule of law principles that no convictions produced by it can be fully trusted.  

Dallas 1963 and the Culture of Fear

Today Americans in many large cities are experiencing levels of homicide last experienced in the mid-1950s. This is the result of a crime decline across the country that began in the early 1990s when homicide levels were twice has high (or higher).  When you look at homicides on a graph, this steep decline marks the end of a period of high homicide that began in the early 1960s and which reached peaks in the mid to late 1970s and late 1980s.  This pattern has never been adequately explained by criminologists but its impact on American crime policies seems clear enough.  In the periods following both peaks American states adopted "tough on crime" sentencing laws designed to send more people to prison, for more time, and for more crimes than at any time in our history.  As a result our national imprisonment rate rose nearly 4x from 1975 to 2005.

I argued in Governing through Crime, that this was not a simple response to an exogenous shock, but rather one that became deeply intertwined with endogenous features of our political system, particularly the transformations in civil rights law and metropolitan governance that were already underway.  Cities were being transformed by the planned transfer of large portions of their middle class population to newly built suburbs and the traditional city political "machines" that had governed more or less since the gilded era through a structure of racial hierarchy were being destabilized by civil rights and deindustrialization.  It was not just violent crime spiking, but violent crime spiking in the midst of this reterritorialization of everyday American life that led to a period when America was in some respects at least governed through their fear of crime.  Kennedy's assassination may have been a foretaste.

Of course Kennedy's assassination in Dallas on November 22, 1963, was no ordinary urban crime, and Dallas no ordinary American city.  As Wade Goodwyn of NPR who has covered Texas and crime issues for thirty years, noted in a discussion of the Kennedy assassination this morning on Morning Edition Dallas then was a small city of about 700,000, 80 percent white, and with a leadership strongly committed to the Jim Crow social system that had dominated the city for 75 years.  Hatred for JFK among the city's elite had everything to do with race and with the Department of Justice's support for the civil rights position (never strongly enough for the supporters of civil rights).  If those elites didn't pull the trigger, it was easy for many Americans to conclude that the poisonous atmosphere of the city may have some how encouraged or abetted the crime (a conclusion Goodwyn notes, many Dallas residents came to share).

Yet visually the images of JFK's assassination that inscribed themselves on the brains of my generation were inseparable from the urban street scape where the murder took place.  Dealey plaza, a place that probably had no common name for many people until the event, was not a ceremonial space but the kind of city edge space between the more valued bits of downtown and the freeway that still connects central Dallas to its suburbs.  In my childhood, much of it spent in Chicago a city that experienced both the crime and the political turmoil of the time, those spaces always seemed to be places of menace, glimpsed quickly from a car on the way from a symphony orchestra performance, or downtown department store shopping trip, on our way back to an outer-borough neighborhood (my parents would never have lived in a "suburb").

Oswald himself, a drifter (in an extreme sense, having defected to the Soviet Union), the child of a single mother in an age that heavily pathologized such children (read my article on the role of criminological knowledge in constructing Oswald's "criminal biography" here), a communist, a traitor, a person given to street fights, and who was adjudged likely to kill by a probation officer when he was only 13, became a prototype of a dangerous killer for a society about to have a well justified moral panic about homicide.  For those of us who save the assassination in political terms Oswald may have been a patsy, for a majority of Americans, particularly in the first decade after the Kennedy assassination, Oswald was evidence of monstrous offenders lurking in the shadows of American cities like New York, New Orleans, and Dallas.

The other respect in which the assassination I believe would echo through the culture of control that followed was in its shock to the Presidency.  Franklin Roosevelt as "Dr. New Deal" had ushered in an era where the President was personally responsible for managing an ongoing existential crisis for the country, surrounded by expertise, but reliant on his own capacity for judgment and execution.  When Dr. New Deal became the war leader, this leadership model was fused with the warrior king model of sovereignty.  Kennedy's murder was a crushing blow to this complex.  Ever since Presidents have struggled to re-establish a mantle of competence while being routinely accused of monstrous conspiracies

To the Fruitvale Station

Thanks to the persistence of my wife who has insisted for some time that as residents of the East Bay we must see it in the theater along with fellow East Bayers, our whole family saw this remarkable film  a couple of weeks ago.  The film moved me to tears and then settled into my imagination where it has been ruminating since.  I'm not sure it is still in theaters, but if it is go see it now and root for writer director Ryan Coogler and The Fruitvale Station to get some Oscar nominations.  As has been well reported the movie takes up the last day of Oscar Grant, a young black East Bay man killed by a BART police officer during a bizarre and confusing encounter in the early hours of New Years day 2009.  Coogler, a 27 year old Oakland native, does not so much tell the story of Oscar Grant's death as set it in the contexts of his life, of what it is like to be a young black man in 21st century urban America, and also of the new geography of race and class in the East Bay.

The superb cast does an extraordinary job creating a full life for Oscar Grant (played radiantly by Michael Jordan who many GTC readers will remember from The Wire) as its last day plays out.  We meet his daughter Tatiana, played by Ariana Neal, his longterm significant other (and Tatianna's mother) Sophina (played by Melanie Diaz) and his mother Wanda (played by the amazing Octavia Spencer).  Sophina and Wanda, two strong adult women in his life, along with Grant's healing love for Tatiana, seem to be anchor cables that will keep Oscar, clearly going through a troubled patch with recent time in one of California's overcrowded and unhealthy prisons and losing his job, on positive path.  We also see how narrowed the economic space for working class men like Oscar seems in the East Bay.  Having his lost his job in a popular Oakland food store, we see Oscar driving through an urban landscape that appears to have lost most of its economic muscle.

One of the film's less obvious but insightful and significant dimensions is its portrayal of Oscar's male peer group as including a multi-racial set of young men in various locations in the crime, employment, incarceration landscape.  Resisting the overwhelming tendency of popular media to suggest that any criminally involved characters must be relentlessly and malignantly criminal, the film portrays the men overall as not only caring deeply for Oscar and being ready to be there for him in celebration and tragedy, but as providing an important resource for Oscar in finding employment, staying out of trouble, and remaining in a committed relationship.  The strong presumption that "bad apples" spoil the whole barrel has long legitimized "zero tolerance" policies in schools and mass incarceration policies on the streets.  Research I had the privilege to participate in drawing on life histories and interviews from young adults who grew up in Oakland's San Antonio neighborhood (not far from the Fruitvale BART station) produced lots of suggestive evidence that a diverse social network is a powerful resource to keep young adults in a position to access employment and educational opportunities.  An analysis of the data by my colleagues Deborah Lustig and Kenzo Sung, Birds of a Feather: Peers, Delinquency, and Risk (may require digital library access or pay wall) suggests that having close friends who have been involved in criminal activity or criminalization does not divert successful young adults who continue to know and benefit from contact with their delinquent peers without being "contaminated."

The East Bay, with its extraordinary diversity, unique history of racial and ethnic cross-alliances in labor and political struggles, and its potent and tasty civil-izing society of food, fresh in stores and wonderfully cooked in restaurants, lively streets, and yes, BART itself (too expensive but perfectly located for East Bayers) comes across beautifully in the movie.  If Fruitvale Station wins an Oscar nomination the nation may finally get a look at this extraordinary piece of itself that has long been a footnote between aging snap-shots of Berkeley in the 60s and celebrations of whatever San Francisco or Silicon Valley are up to next.

But if the film gives us reason to be celebrate the way civil society can heal itself, state forces, particularly police and prison officers, are powerfully and accurately  portrayed as nothing short of catastrophic for the security of the community.  Grant's prison experience, portrayed in flashback and then terrifyingly in real time (no spoiler here), highlights the racial gang system which compels virtually all California prisoners to "join up" for what passes for a social order in prisons that the state long ago abdicated any responsibility to maintain civilization in.  The fact that tens of thousands of our fellow citizens have passed through these degrading and racializing prisons is a shame that our state will live with for generations.  In the one scene in which we see Oscar strike a more menacing pose (toward the store manager who has apparently fired him some time ago), we can only wonder how time in the organized menace of the prisons now weighs like burden on his own sense of humanity.

The film's most searing portrayal is of course its close up on the conduct of the BART police.  Everyone knows the tragic way this ended, but the film offers a realistic view of how the attitude of relentless contempt that many police officers, not just BART police, project at young men of color (as documented by Victor Rios in his compelling ethnographic study also set in Oakland, Punished: Policing the Lives of Black and Latino Boys) sets up the conflicts that inevitably and too often lethally fall-out between them.  The film makes the rather unexpected but to my criminological eyes quite convincing choice to highlight that contempt rather than the still mysterious motivations of police officer Johannes Mehserle who was tried for Oscar Grant's murder and went to prison for manslaughter.

If the Fruitvale Station has a political agenda it is to dis-establish these destructive state apparatuses which are so costly and now stand in the way of a serious effort to reinvent urban security for the 21st century (consider the heavy handed policing of Oakland's monthly art murmers since a shooting last spring).  But for all its ethnographic realism, and critical edge, the film does the job of all cinema, perhaps all stories, turning the quotidian details of real people and places into the mythic material of a universal.  The film is  an elegiac invocation of both how much our lives are determined by forces beyond our control, but also how much power all of us have to change and to be a force for repairing and restoring our communities.  It deserves an Academy Award.

Beard Must Go: California Needs a Fresh start in Corrections, not a Cover-up for Business as Usual

When Governor Brown appointed Jeffrey Beard to be the new Secretary of Corrections in California last year, it was supposed to signal a new era.  After decades of Correctional leaders who were insiders, brought up in a system that had normalized a state of permanent crisis and systemic inhumanity, Mr. Beard looked to be reason for hope; a respected correctional leader from a State without such a disgraceful record and indeed, an outside expert who had provided testimony against California in the landmark Brown v. Plata case. Unfortunately, Secretary Beard's public statements since coming to the job reflect a complete failure to acknowledge the gravity of the human rights abuses his agency is guilty of and an apparent commitment to defend the status quo at any cost.  Recent examples include his petulant refusal to take seriously the danger posed by Valley Fever to vulnerable inmates (this in a system that the US Supreme Court castigated for its "deliberate indifference" to the medical care of prisoners for decades) and his fear mongering on the consequences of complying with the federal courts population cap.  Now his public statements demonizing the hunger strikers and defending California's indefensible SHUs (their terminology for total lockdown isolation prisons, known generically as supermax) make clear that all hope for change in this administration should be abandoned.  Its time for a protest movement and direct action campaign to force real change starting with Secretary Beard's resignation.

Secretary Beard's recent LA Times Op-ed piece trashing the hunger strikers and defending the SHU is a perfect example.  As major human rights organizations have established (read the Amnesty International report here), California's super isolation facilities are an outlier in a country that is already a global outlier in its reliance on these inhuman prisons.  While in most states that use supermax prisons, prisoners are there for specific acts of criminal violence, and for a limited period of time, California uses its SHU mostly for prisoners suspected of being members of prison gang, and keeps prisoners there indefinitely.  As a result scores of prisoners have been held in the SHU for decades (far longer than any Guantanamo prisoners).  I have written before about the Orwellian quality of California's "gang problem."  Having long ago abandoned any effort to offer meaningful work, education, or rehabilitative treatment in its insanely large and overcrowded prisons, the creation of a gang system to provide some level of predictable order was inevitable, and must be seen as a defacto public policy of California (and indeed there is plenty of empirical evidence of the system's complicity in organizing and sustaining the racially defined gangs).

Secretary Beard is not responsible for this situation, but instead of working to change it he appears to be committed to defending the status quo.  His Op-Ed piece is full of alarming claims about the murderous behavior of the "gang leaders" who are supposedly forcing the strike on others, but CDCR denies journalists and external experts access to the prisoners so we have to rely completely on Secretary Beard for the veracity of claims that conveniently fit his interest in ending the strike and the public attention it has brought.

Many of those participating in the hunger strike are under extreme pressure to do so from violent prison gangs, which called the strike in an attempt to restore their ability to terrorize fellow prisoners, prison staff and communities throughout California.

Really, I thought the whole justification for the SHU was to prevent these leaders from terrorizing and pressuring other prisoners.  If they can force inmates who are locked down 23 hours a day to deny themselves food, what exactly is the SHU supposed to be accomplishing?

For decades, California has had the most violent and sophisticated prison gangs in the nation. When gang violence exploded during the 1970s and 1980s, and crime rates around the state rose to record highs, state prisons felt the impact. Between 1970 and 1973, 11 employees of the California Department of Corrections and Rehabilitation were slain by inmates, and many others were brutally assaulted. 

This is internally contradictory.  The violent explosion took place between 1970 and 1973, more than a decade before the first California SHU was opened.  By then violence (much of it related to the political struggles across the country in the early 1970s) had largely abated.  As plenty of evidence suggests, the SHU was really created to help justify and manage California's mass incarceration juggernaut.  There is no public evidence linking California crime rates with internal gang activity in prisons.  If Secretary Beard has the statistics to prove this he should publish it.

After this turbulent and violent time, and in response to the growing threat of gangs, the corrections department created SHUs to safely house gang members and their associates while minimizing their influence on other prisoners. Restricting the gangs' communication has limited their ability to engage in organized criminal activity and has saved lives both inside and outside prison walls.

Huh? Again, if the SHU works, how is it that these gang leaders can manipulate prisoners throughout the state.  If it doesn't work, why are you defending it?

There are SHUs at four prisons in California. At three of them — in Tehachapi, Corcoran and Folsom — there are outdoor-facing windows in the cells that allow for direct sunlight. At Pelican Bay, all SHU cells have skylights. In all of the facilities, inmates in the SHU have radios and color TVs with access to channels such as ESPN. They have weekly access to a law library and daily exercise time.  

Please, being locked in a closet 23 hours a day, 7 days a week, for 10, 20, or 30 years is ok because you have a skylight, and access to ESPN?  I'm sure the access to television and radio does mitigate the isolation, but only to a point.  Indeed Amnesty International was well aware that California SHU inmates can purchase a television (see page 24 of their report) and still condemned the SHU in unambiguous terms:

Amnesty International considers that the conditions of isolation and other deprivations imposed on prisoners in California’s SHU units breach international standards on humane treatment. The cumulative effects of such conditions, particularly when imposed for prolonged or indefinite periods, and the severe environmental deprivation in Pelican Bay SHU, in particular, amounts to cruel, inhuman or degrading treatment, in violation of international law.

If you doubt that, try spending a week locked in your bathroom accompanied by a radio and a color TV.

Even so, we remain committed to improving our facilities and policies. The department has brought in outside experts to evaluate our gang-management strategies. Based on their recommendations, we implemented a new comprehensive gang-management strategy last fall.

And why should anyone believe you when you are willing to manipulate facts and demonize people who are risking their own lives to demand some recognition of their humanity?

So what is this really about? Some of the men who participated in the last hunger strike have since dropped out of the gangs for religious or personal reasons, and they said it best in recently filed court declarations. "Honestly, we did not care about human rights," one inmate said about the 2011 hunger strike. "The objective was to get into the general population, or mainline, and start running our street regiments again." Another described the hunger strike this way: "We knew we could tap big time support through this tactic, but we weren't trying to improve the conditions in the SHU; we were trying to get out of the SHU to further our gang agenda on the mainline." 

How convenient that they are saying things that exactly fit your narrative that SHU prisoners are craven manipulative terrorists.  Where is the objective evidence that anyone actually made these statements?  No one else has regular access to these prisoners and you and your staff have zero credibility when it comes to determining why prisoners would engage in a strike that is directly challenging a policy you remain deeply committed to.  Let the strikers hold a press conference, or give the media individual access to any SHU prisoner they want to speak with, and then we'll see.

The leaders of these four gangs are directly responsible for at least five ruthless murders, 35 violent assaults, including stabbings, and they have racked up more than two dozen violations for possession of weapons and other contraband.

Who are we talking about?  California has thousands of people locked up in the SHUs.  Are they all responsible for these murders?  If there is evidence that people have killed others or even engaged in weapons and drug smuggling, why isn't SHU placement based on those kinds of charges rather than the Orwellian charge of being a "gang associate."

Secretary Beard has been on the job less than a year.  That may seem very little time to give an administrator to change a system that has hardened into a grotesque structure of inhumanity over decades.  But it is not too much time for a leader to send clear signals to the public about what kind of system we have, and what kind of system we want to have.  A reform leader would have spoken to the public honestly about the difference between tough and deserved punishment and cruel, unusual and degrading treatment and would be taking the opportunity of a fresh start to begin the process of atonement, accountability, and forging new directions.  In making the hunger strike an occasion for demonizing and deception, Secretary Beard has already proven he's not that leader.  It is time for change, starting at the top.

Civil Disobedience and Uncivilized Punishment: Run Edward and Keep Running

Edward Snowden's father recently gave an interview in which he rejected the idea that his son should come home to face US punishment (read the full story in the Guardian here):

He is going to be thrown into a hole. He is not going to be allowed to speak." The 52­year­old said he had been as "surprised as the rest of America" when his son, who worked for a contractor, was revealed as the source of the leaks about surveillance by the National Security Agency to the Guardian. "As a father it pains me what he did," Snowden said. "I wish my son could simply have sat in Hawaii and taken the big paycheck, lived with his beautiful girlfriend and enjoyed paradise. But as an American citizen, I am absolutely thankful for what he did." 

With Bradley Manning facing the likelihood of dozens of years in prison, despite no evidence he harmed anyone, I could not agree more.  There was once a tradition in this country of people breaking the law for principled reasons, typically to protest or expose even greater moral wrongdoing, but accepting their lawful punishment as a way of underscoring their personal commitment to the polity and its laws.  However that belonged to a time when America believed in civilized punishments that had some proportion to the crimes committed.

In the age of Bush and Obama, American punishments reflect a level of viciousness and degradation that no principled person should be willing to accept for themselves or others.  Bradley Manning, even before he was convicted of anything, was subjected to treatment that would be considered a human rights violation in any civilized country but raised hardly a word of concern from press or politicians today.  While criminals on Wall Street who have ruined the lives of millions receive no punishment and indeed the solicitude of the Obama Administration, ordinary and political criminals in this country are subject to punishments that are cruel, degrading, often amount to torture, but are by no means unusual (in fact they are routine).

Given that fact, the days of sacrificial civil disobedience are behind us.  Put principle and pious appeals to come home aside Edward, and follow your Dad's wise advice.  Run Edward, run, run, run....

Race and Reasonable Doubt: Notes from the Sanford Florida Verdict

The official media narrative is in.  The acquittal of wanna-bee neighborhood guardian George Zimmerman for the fatal shooting of Trayvon Martin reflects the impenetrable wall that the law and the trial judge set up between the narrow legal questions of culpability and the broad social issues that had animated passions in the case: gun carrying in public and racial profiling.  But do not buy this part of the narrative.  While the legal issues may have been narrow and the evidence carefully filtered by the judge, whether consciously or not, race was central to the jury's considerations in Sanford this past weekend.

George Zimmerman admitted he fired his gun into the center of Trayvon Martin's body, from which a jury could and normally would infer that he intended to kill Martin.  Normally that would be enough to establish 2nd degree murder.  Here however Zimmerman claimed "self defense."  Even though Zimmerman never took the stand, the jurors had to consider his story presented in police reports and forensic evidence.  The jury had to consider whether Zimmerman reasonably feared that he would die or suffer grievous bodily harm if he did not use lethal force.  Does an adult with a gun in his pocket have a reasonable fear that someone who has punched him and is now straddling him and pounding his head on the pavement is going to cause his death or at least grave bodily harm?  That is where age, gender, and race do their work.

Imagine that Trayvon was a 17 year old female, a 54 year old white male, or even a 17 year old white male.  In all of those cases the prosecutors would have had an easier job convincing the jury that Zimmerman acted recklessly in firing his gun.  It is true that teenage males are more associated with aggression, anger, and violence in our culture than either females or older males; but young black men are endowed with a legendary level of anger by our cultural imaginary (and one typically associated with danger to white people).  In scores of popular cultural references young black men are depicted as exploding into legal violence with little provocation or warning.  In its own way this cultural construction reflects an acknowledgement of the historical wrongs done against African Americans and the resentments which this treatment would give rise to.   It is this cultural imaginary that was so successfully invoked by "black power" political leaders of the 1960s and 1970s from Huey Newton to Jesse Jackson Sr. and Reverend Jeremiah Wright, and which candidate Barack Obama had worked so hard to distance himself from with his calm demeanor, starched shirts, and studied refusal to give voice to racial grievance.

It is true that the defense was not able to introduce potentially prejudicial evidence about Trayvon Martin's past, including that he had used marijuana and that he had been involved in some  minor fights at school.  But in convincing the jury that George Zimmerman was reasonable in fearing for his life, the defense had a wind at its back that would not have been there had Trayvon been female or white.  Think about Zimmerman's story again.--- He was on his way back to his car in the gated community.  Suddenly, out of the dark, Trayvon attacks him, punching him to the ground, straddling him, pounding his head into the pavement with a vicious force.--- Now the jury knew that Trayvon had gone to the store to get candy and that he was talking to a friend on his cell phone just before the incident; so they had no immediate context which could explain why he might suddenly act with violence.  All they had was his race and the racialized cultural narratives about anger and violence that are part of the American legacy of racist violence.  For reasonable doubt, that may have been all they needed.