Saturday, May 9, 2015

Capital Punishment's Loyal Officer

It was a zinger worthy of a Presidential debate (and almost certainly just as planned).  Justice Samuel Alito, confronted Federal Public Defender Robin Conrad in the midst of her oral argument on April 29 in Glossip v. Gross, a case challenging Oklahoma’s lethal injection execution procedure.
Yes. I mean, let's be honest about what's going on here. Executions could be carried out painlessly. There are many jurisdictions ­­ there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide, and I assume that those are carried out with little, if any, pain. Oklahoma and other States could carry out executions painlessly. Now, this Court has held that the death penalty is constitutional. It's controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They're free to ask this Court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain?
The diatribe won the lions share of media attention on the case and much of it seemingly approving.  The stunning nature of his attack on our adversary system has gone little remarked.  Indeed Justice Alito seemed to be refreshingly candid (Chris Christie style): “let’s be honest about what’s going on here.”  He appealed to his media audiences common sense that executions could be carried out painlessly (although four of his colleagues doubted that the last time SCOTUS reviewed lethal injections in Baze v. Rees).  He acknowledged that abolitionists have been making significant political progress lately winning legislative abolitions, with “red” Nebraska only the latest state legislature to express a desire to rid the law of capital punishment.  He invited direct challenge to the constitutionality of the death penalty: an invitation that might have seemed totally empty a few years ago but now seems to have increasing constitutional force (see Jones v. Chappell finding the California death penalty unconstitutional on grounds of being arbitrary and capricious).  
But behind this this seemingly candid and refreshing acknowledgment was a remarkable attack upon a lawyer doing exactly what lawyers are supposed to do: zealously advocating for her clients.  Justice Alito (echoed by Justice Scalia) cast Federal Public Defender Conrad and her colleagues as duplicitous, pleading the terrible risk of pain facing their clients while working behind the backs of the courts and states to deny states access to chemicals that could painlessly cause death and thus subverting the honorable workings of justice.  Absolutely no evidence is presented or even suggested for this conspiracy.  In fact, it is a mirror image of reality.  The problems American states are confronting in finding drugs to make lethal injections look kind and gentle lie in a growing global movement against capital punishment in which America is increasingly seen as part of an anti human rights “axis” along with Iran, China, and Saudi Arabia. Federal public defenders (and indeed many other Americans) may well sympathize with this global movement but they are hardly relevant to that movement.  As Justice Alito must surely know, the European Union-our major trading partner and political military ally and the site of many of the world’s leading pharmaceutical producers---are legally bound to oppose the death penalty where ever it exists.  Federal public defenders are even more irrelevant to the completely understandable fact that many businesses will need no additional reason other than publicity to choose to disassociate their products from the deliberate killing of human beings.
The real guerilla war is being waged by death states that continue to pursue executions even as crime remains at historic lows and public opinion turns against this archaic ritual.  Many of these states are making a farce of the Court’s own decades long effort to forge a more legal and more humane death penalty by using all means, legal or otherwise, to acquire execution drugs; and obstructing prisoners and their advocates from discovering even the most basic scientific facts about how the state proposes to take their lives.  Meanwhile the death penalty majority on the Supreme Court has fought its own battle to prevent continued judicial oversight of state executions.  Indeed, the first named petitioner in the case in which Justice Alito delivered his appeal for honesty was executed earlier this year even as the issue he raised was scheduled for Supreme Court argument.
Justice Alito is correct that the times are changing rapidly for the death penalty. In retrospect, the rejuvenation of capital punishment in the 1970s after a couple of decades of declining public support may have had more to do with the high violent crime rates and toxic racial politics of that era---conditions that have changed in many respects---than any core American commitment to capital punishment.  Serious challenges to the constitutionality of the death penalty may soon find themselves before the SCOTUS.  One can only hope that Justice Alito will bring a less closed mind to those arguments than he did to the ones Federal Defender Robin Konrad (and Justice Sotomayor) presented him in Glossip
It is our common law tradition that judges are to consider the fate of litigants one at a time, and answer the compelling legal questions that their treatment poses.  Yet in his exchanges with Ms. Konrad Justice Alito  showed an injudicious interest in capital punishment as an institution. In his  willingness to defend the death penalty (and his even odder insistence that if it is to end, it must receive the presumably more honorable dispatch of a direct constitutional assault) Justice Alito seems to be more committed to that institution than to our Constitution.
Justice Alito’s passion for the death penalty recalled for me the curious character of the "Officer” who conducts a “Traveler” to witness the execution of a condemned prisoner in Franz Kafka’s haunting story The Penal Colony The story, set in a little described “penal colony,” involves an execution ritual in which the condemned are placed into a complex machine known as the “harrow” that effectively kills them by slowly inscribing the name of their crime into their body with metal needles as they are rotated within the harrow.   The harrow requires constant tinkering which the Officer enthusiastically supplies.  The Officer acknowledges to the increasingly uneasy Traveller that the colony’s commitment to this strange ritual is in fact waning fast, but he remains so loyal to it that he abandons all restraint and ultimately even self preservation in attempting to obtain for it at least one last victim. 
Like the penal colony’s harrow, our execution machinery needs constant tinkering, both technical and legal.  Some Justices, Harry Blackmun and John Paul Stevens, once supporters of the death penalty, eventually renounced “tinkering with the machinery of death” and denounced the penalty as irreconcilable with commitment to the rule of law.  More Justices soon must make clear that their decades long servitude to this institution must come to an end. But perhaps the last will be Justice Alito, who like Kafka’s Officer seems increasingly willing to depart from his role in order defend the machinery of death against law itself. 

cross posted on prawfsblawg

Saturday, January 3, 2015

Do we really need the police? Not as much as we need air.

The astoundingly crude and arrogant response of NYPD rank and file to the tragic murder of two officers by an unstable young man last month (read the fascinating story by Kim Barker, Mosi Secret and Richard Fausset in the NYTimes on the man who killed the officers here) raises an interesting question, do we really need the police?   Angry at Mayor Bill DeBlasio for winning an election on reforming police practices, and speaking honestly about how people of color feel about the police in the aftermath of the Michael Brown and Eric Garner killings, NYPD officers have undertaken a public campaign of not using their arrest powers unless the situation absolutely requires it, resulting in an unprecedented drop in both arrests and parking tickets.  Angered that citizens and their elected officials should ever question how the police behave, NY "finest" are saying in effect, "you'll have it our way, or you won't have it at all."  May be, just may be, its time to say "let's not have it this way at all, and if you can't change, we need a new alternative. "

My criminological colleagues will be cringing.  Cannonical doctrine suggests that while better policing may lead to better public safety results, even the worse police department is better than none at all.  In a famous natural experiment in 1944, documented by criminologist Johannes Andeneas, the Nazi's arrested the entire police force of occupied Copenhagen (fearing that they would aid an Allied effort to liberate the city).  Despite the Nazi's own credible threats to execute criminals on site, and what one might expect to be strong feelings of solidarity among the citizens of the occupied city, robberies and larcenies soared; similar results have emerged from police strikes (see a summary by Lawrence Sherman of some studies here).

But we need not consider replacing the police with nothing.  The real question is why, despite a century and a half of incredible urban and political change in industrial democracies, we still cling to the idea of the police invented in the early 19th century to contain the dangerous classes of London and New York?  I'm not ready to float a comprehensive proposal now but a few thoughts to get our collective imagination going while we wait to see how NYPD's Copenhagen experiment plays out.

  • Most criminologists acknowledge that individual willingness to obey the law (because it seems legitimate to do so), and collective efficacy at naming and blaming those who do not obey the law, are more important than formal efforts at social control carried out by police and courts.  Indeed the latter can do little without the former.
  • Arrogant, aggressive police tactics that cause individuals to lose their sense of the law's legitimacy, and interrupt the communities capacity to enforce norms of civility, may encourage more crime than they deter.
  • Police departments are really conglomerations of services: traffic, detectives (homicide, robberies), narcotics/vice,  SWAT team, patrol.  In our current model, the generalist patrol officer who can wield a gun and a pair of handcuffs is the paradigm and all other variations have to come through this central paradigm.  Perhaps we should take a lesson from our neoliberal corporate friends and think about breaking up this conglomerate, reshuffling the segments so they can develop training methods and cultures conducive to their greatest efficacy.
  • In reimagining the police, questions of level of governance are worth considering.  Some functions, like detectives or SWAT teams, seem best organized and deployed from the center of the city with equal application to all neighborhoods.  Patrol, in contrast, might well be organized very differently in different neighborhoods to achieve the optimal forms of police presence in the community.
  • In 1970, Berkeley voters considered a proposal, supported by radical members of UC Berkeley's School of Criminology, to break up the police department into three neighborhood units and require police officers to live in the neighborhoods they policed.  The initiative was defeated overwhelmingly but that was at the height of the crime wave of the 1960s and at a time when middle class voters were becoming collectively traumatized by crime fear.  
Do we really need the police?  So far crime has not gone up in NYC, but criminological doctrine suggests it is only a matter of time before the criminally inclined decide there is little price to be paid for acting on those impulses.  On the other hand, crime is highly situational, and responsive to  individual and collective sensibilities.  Perhaps the same emotions that have led tens of thousands of New Yorkers to protest against aggressive policing (and earlier to vote for Bill DeBlasio) has led more individuals to feel a sense of legitimacy in the public order of the city and a sense of collective efficacy.

I would not want to rely on individual consent and collective efficacy to keep crime low on their own indefinitely.  We need something like the police, but not "the police" as we've known them.  Police are important, but they are not like air.  We can live without them when that is necessary.  And we can reinvent them.

Friday, December 5, 2014

If Black Lives Matter, End the War on Crime

From the perspective of tens of thousands of protesters around the nation this week, the deaths of Michael Brown in Ferguson, Missouri, and Eric Garner in Staten Island, reflected an unfathomable decision by white police officers to kill unarmed black men engaged in trivial criminal (if any) behavior.  To thousands of police officers (and their families), these deaths fit in a different narrative, one where very large and powerful men responded to lawful police efforts to complete a stop (in Brown's case) or an arrest (in Garner's) with violent resistance.  From the first perspective, these are cases of outright murder, and the failure of grand jurors in Missouri and New York to indict them, evidence of clear racism.  From the second perspective, these cases are work accidents, tragedies that might have been avoided with better technique but hardly felonies.

The gulf seems wide indeed.  No wonder President Obama and Mayor Bill DeBlasio wring their hands, utter somber statements about bridging the gap between police and community, and suggest more training.  But the gap between police and the black community has always been wide (its ironic that yesterday was the 45th anniversary of the execution style police killing of Chicago civil rights leader and Black Panther Fred Hampton in 1969: an event that made this then 10 year old wanna be political activist, permanently afraid of the police), and today's police have never been better trained and equipped (especially the much vaunted NYPD).  The problem I believe is not the people or the police, its the political "war on crime" that simultaneously valorizes cops as warriors in an existential struggle with violent crime and compels them to engage in a necessarily brutal campaign to clear the streets of those widely perceived not just by police but by the majority culture and their politicians, as a threat to public safety, i.e., young men of color.

The war on crime may be a metaphor, but as George Lakoff and Mark Johnson (Metaphors We Live By) taught us long ago, metaphors are a political DNA that reorganize institutions and lives.  Wars are about three things: territory, populations, and security.  The goal in war is to dominate a territory by eliminating or repressing resistance, pacifying the population, and establishing a regime of security that maintains both states of affairs (just pay some attention to the Israel/Palestine conflict if you need a refresher on what that looks like in its explicit form).  America's war on crime, declared by top political leaders of both parties in the face of the high violent crime rates, and political polarization of the 1960s (see chapters 1 and 2 of my book, Governing through Crime), has made local police forces the frontline troops of a relentless campaign to clear urban areas of those perceived to be a threat to public safety.  Whether dubbed "STRESS" (as it was in Detroit in the 1970s), Broken Windows (the 1980s) or Zero Tolerance policing (1990s), this war strategy has required police officers (sometimes with powerful work place disciplinary techniques) to confront young men of color on a daily basis, and to use the opportunity of minor criminal violations to both clear the streets of them and create a security regime in which they choose to avoid public spaces.

The fact that this war on crime descended on American policing at a moment when it was only beginning to address the culture of ethnic and racial hierarchy that dominated mid-20th century police forces left much of this culture intact and carried it over into the greatly expanded (and much more diverse) forces of the 21st century.

If that sounds familiar may be its time to stop focusing on individual cops like Darren Wilson and Daniel Pantaleo and whether or not they get indicted (does anyone here in Oakland really feel that much better because Oscar Grant's killer was prosecuted, convicted, and went to prison?).  Instead we need to place responsibility at the top, where leaders in the White House, Governor's mansions and Mayor's offices have glorified the war on crime as a patriotic American mission.  Its time President Obama and other leaders to come forward and formally declare this war over.  The damage it is has done to our society through mass incarceration, militarized policing, and wartime judicial retreats on human rights is already immense. Just as important, the context has changed enormously.  Violent crime is down to historic lows (and neither prisons or policing have made more than a partial contribution to that) and many of the sociological processes that drove high crime in the period 1965-1995 (deindustrialization, suburbanization, mass addiction to novel drugs) have run their course.  As Bill DeBlasio's campaign for mayor demonstrated, voters today are increasingly repelled  by the war on crime and believe that the city and nation face other challenges.

A formal declaration of an end to the war on crime should include several key elements.

1. Recognition that the war on crime was an undeclared state of emergency that severely comprised the legal and political rights of Americans.

2. Instruction to law enforcement agencies that this state of emergency is over and they are to return to maximum fidelity to the principles of our constitution including respect for the dignity, liberty, and equality of every person.

3. Creation of new human rights agencies to enforce point 2 and to identify the steps necessary to remediate point 1.

Tuesday, October 21, 2014

Proposition 47: A Simple Step Toward Reducing Mass Incarceration

California Proposition 47, on the ballot for voter consideration this November, would change the legal classification of many "nonserious and nonviolent property and drug crimes"  from felonies to misdemeanors (read the details on here).  This simple change has important consequences.  A crime classified as a felony may be punished with a sentence in state prison, while a crime that is classified as a misdemeanor may be punished only with probation or a sentence of one year or less in a county jail.  If voters approve Proposition 47, Californians convicted of crimes that pose little or no risk of violence like forging a check or receiving stolen property if the amount involved is worth less than $950 dollars (the existing dollar amount was set in the 1970s), or simple possession of drugs, would no longer end up in state prisons.  Moreover, the law would allow prisoners currently under felony sentence for one of these crimes to be re-sentenced "unless court finds unreasonable public safety risk," a change that could result in as many as 10,000 fewer prisoners in our dangerously overcrowded and degrading state prisons.

The debate on Proposition 47 has mostly turned on how dangerous these crimes and the people who commit them are.  Proponents, supported by most criminological research, argue that prison is a costly (approximately 62K a year for the average prisoner in California) and unnecessary way to address these non-violent crimes.  Probation and if necessary some jail time have at least as good a chance of curbing future criminal behavior (our prisons have had a very high rate of recidivism and make no effort at rehabilitation) and with lower costs fewer prisoners means more money that Proposition 47 would channel into law enforcement, drug treatment, and victim compensation.  Opponents, most of the state's District Attorneys, claim that the law would weaken their ability to send truly dangerous people who have been convicted of a relatively minor crime to state prison and use the threat of state prison to compel less dangerous people to accept drug treatment as part of felony probation (probation is also an option for many of these non-violent, non-serious felonies, at least for first offenders).

But the real issue is not crime (which remains at historically low levels throughout California); it is mass imprisonment.  Beginning in the late 1970s and early 1980s, California embraced prison as the answer to what was then a historically high level of crime in the state and began to swell its prison population from around 20,000 prisoners in 1975 to nearly 180,000 in 2006.  (This was a national trend but California took a typically extreme approach, read more about the causes in chapter 2 of Mass Incarceration on Trial).  This explosion in prisoners was a product of two different changes in sentencing.  First (and the part that Proposition 47 addresses) prosecutors began using their discretion to seek state prison time for crimes that could be charged as misdemeanors and had been historically. This meant tens of thousands of people with relatively short prison sentences flooded our prisons and clogged (along with tens of thousands of technical parole violators) the reception centers where prisoners are supposed to be classified and assigned longer term housing but which instead became packed irregular wards with overcrowding approaching 300 percent of design capacity. Second, law makers (aided by the Determinate Sentence Law of 1976 which gave the legislature power to set prison sentences) lengthened the sentences of most felony crimes, especially violent crimes.  This meant that tens of thousands of prisoners who in the past would have left prison as they aged out of serious criminal behavior (generally by 40), remained in prison into and in many cases beyond middle age, when chronic illness begins to generate increasing suffering and costs.

The inability to manage these mounting problems of overcrowding and health care led to the remarkable 2011 decision of the Supreme Court in Brown v. Plata to uphold a massive population reduction.  The State responded with the realignment package in November 2011 that sent most people convicted of non-serious, non-sexual, non-violent felonies to county jail or probation rather than prison.  Proposition 47 expands realignment by taking the least serious of these offenses out of the felony category altogether.  That is important because even under realignment, courts can sentence people to years of incarceration (only in county jail rather than state prison); classifying these low level crimes as misdemeanors assures that they have a better chance of receiving probation and caps any jail sentence at 1 year.   Moreover, felony convictions on your record make it much more likely that you will go to state prison for your next offense.  Eliminating minor offenses that do not warrant the felony label makes that kind of criminal record enhancement inherently fairer and more objective.  It is also important because the label felon continues to have important negative consequences that last years or even decades for employment, housing, and social benefits.  Conviction of a felony makes it much harder for people to rebound from crime and punishment to become productive citizens.

Another important group of prisoners that Proposition 47 might help are those who are serving an enhanced "second strike" sentence under the original 3-Strikes law (which had the effect of adding 10 years to the sentence for any felony if the person was convicted of a violent or serious felony previously) but who were not aided by the last 3-Strikes reform (which applied to 3-strikers).  This could involve relief for thousands of existing prisoners facing years more imprisonment; helping the state meet its Brown v. Plata obligations with little risk to public safety.

Beyond helping to directly reduce the number of people actually in prison or exposed to it for minor crimes, the most important feature of a significant victory for Proposition 47 is the signal it sends that the toxic crime politics of the 1980s and 1990s is truly behind us.  In those decades a media frenzy about violent crime produced ballot initiatives that pushed crime policy significantly toward the extreme, leaving politicians scrambling to catch up with matching legislation.  If Proposition 47 wins it will be the second election cycle in a row in which voters have signaled they want more reform than Sacramento can deliver.  Voters are correct.  Today's leading politicians in both parties are talking about reform, but their vision is so cautious that we are unlikely to escape mass incarceration through legislated reform alone.

So far polls suggest Proposition 47 could win handily, even in an election cycle expected to be weak for younger more liberal voters.  Prosecutors and victim organizations tightly aligned with law enforcement are kicking up their opposition.   The opposition argument comes down to two points, trust and fear.  Prosecutors say "trust me" with the discretion to use felony power even on minor crimes and I'll find the truly dangerous criminals before they commit a bigger offense.  That was the argument for Three-Strikes (the classic example of toxic crime politics at its worst) and voters are rejecting it now.  Instead opponents are increasingly relying on a second tactic, fear, bringing up demonized examples of offenders who might "benefit" from the changes.  Two key examples are people caught in possession of rape drugs and people caught in possession of stolen weapons.  Assuming the street values of the drugs and the guns were below $950, the possessors could no longer be charged with felonies.  Big deal.  First of all police and prosecutors have many options in charging.  If someone is possessing rape drugs with the intent of raping someone, that is the crime of attempted rape.  If someone is in possession of stolen weapons, they may also be guilty of a burglary in which they stole the weapons. Prosecutors will say that it is difficult to convict people of serious crimes, and much easier to use possession offenses to go after the bad guys.  But that is exactly the thinking that got us into mass incarceration and what we have to use the initiative system to escape.  Besides, Proposition 47 leaves plenty of of "protection" in place.  The reduction to misdemeanor status does not apply to people previously convicted of murder, rape, or certain sexual and gun crimes (many of the same folks the prosecutors are demonizing).  Moreover, misdemeanor conviction allows for probation or a sentence of up to a year in a county jail, methods address criminal behavior at least as effectively as imprisonment.

Approving Proposition 47 is a simple and effective way for voters to take another step in leading California away from the moral precipice of mass incarceration.  We cannot trust Jerry Brown or the legislature to remove the taint of barbarism that hangs over a prison system that the Supreme Court declared "uncivilized."  Brown gave us the law enforcement friendly Determinate Sentencing Law in 1976 which helped speed mass incarceration in California, and he has now aligned himself with protecting the status quo in our prisons.  While his re-election is inevitable, voters cannot wait another four years for leadership on restoring dignity and human rights to California's legal system.  We will need to do more.  With half of California's prisoners now serving death, life without parole, life with parole, or multi decade determinate sentences our prisons are rapidly becoming even more degrading and expensive as they concentrate on aging prisoners with little hope.  Incarcerating the vast majority of these older, sicker prisoners makes no penal sense and will continue to limit the availability of tax revenues to solve the state's pressing environmental and educational needs.  To change that we will need an initiative to roll back sentences on violent crime.  Yes, you read me right, we need shorter sentences for violent crimes.  The vast majority of people convicted of an offense against the person (what California's penal code calls violent crimes) are no more likely to commit such an act in the future than those who have not been convicted but come from the same social circumstances and situation.  Most violence is situational, ignited by complex combinations of conflicts, propensities and accelerants like drugs and alcohol.  For the few that have a long term propensity to violence, proper risk assessment and the use of some indeterminacy in our sentencing laws for violent crime could allow for selective incapacitation.  There are far better ways to spend money on reducing violence than incarcerating aging prisoners who once did something violent.  But for now few even in the anti-mass incarceration community are ready to take on that fight.  Please join me.

Thursday, September 18, 2014

Carceral Geographies: Mapping the escape routes from mass incarceration

Today and tomorrow (September 8-19) at UC Berkeley we will be launching a new undergraduate “course thread”  titled “Carceral Geographies”. Our launch will begin with a keynote address by the great Ruth “Ruthie”Wilson Gimore, scholar/activist extraordinaire who has given us the definitive study of California’s descent into mass incarceration, Golden Gulags: Prisons,Surplus, Crisis, and Opposition in Globalizing California (UC Press 2007).  Gilmore’s address, (which I’ll be tweeting) titled “The Present and Future of California Prisons” will take place today, September 18th, 5:00pm to 7:00pm, Dwinelle Hall, Room 370, on the UC Berkeley campus (all are welcome).

Course threads are intended to encourage Berkeley students to integrate their knowledge of particularly important contemporary themes across the disciplines they study.  They do not replace majors (like Sociology, Physics, or German) or create a “minor” (which are generally also disciplinary), instead a course thread is a way for students to deepen their knowledge of a subject whose pervasive influence on human life spills-over the boundaries of existing disciplines and professions.  The “thread” connects existing courses (and we hope their faculty and Graduate Student Instructors).  Students who complete three courses in a thread, and participate in a course threads symposium (offered each semester), will have the course thread noted on their official university transcript.

Incarceration belongs among those topics.  After several decades of rising imprisonment rates (and the aggressive policing, prosecution, and jailing that is required to produce that), Americans live in an environment that is unmistakably carceral. While its most violent aspects are highly concentrated in communities of color and poverty, the carceral imperatives has touched virtually all communities.  Whether you live in a high crime neighborhood with many abandoned buildings, open air drug markets, and regular police actions, a “gated community” in the suburbs, or a newly gentrifying neighborhood on the periphery of a revitalizing downtown, the forms of life, ways of building and dwelling, ways of exercising power, are marked by America’s experiment with mass incarceration which has placed 1 percent of American men in prison (10 percent of African American men), more than 3 percent of the American population in some form of correctional custody, and by some estimates, as many as 1 in 3 Americans have their names in searchable police and court records. 
This calls for a perspective on incarceration that goes beyond the prison to study the institutions of criminal justice, the form and structure of the urban (and increasingly rural) environment, the history of America’s obsession with confining and or excluding threatening “others” (indigenous peoples, immigrants, the psychiatrically disabled among others), the biology of chronic illnesses that are deepened by prolonged exposure to incarceration.  We think “carceral geographies”, although framed initially by geographers (itself a very broad “discipline”), fits the scope of this problem.
 Students will explore a range of foundational questions including: How do we understand the historical and juridical relationship between carcerality and conceptions of human being? How do the domains of carcerality move across a range of global sites and scales? How does this relationship inform concepts of time, place, culture, policy, etc.? How have artists, scholars, and activists, including those who have experienced incarceration, produced representations of, knowledge about, and challenges to carceral life?
This moment is right to raise these questions also because of the historic and contemporary importance of Berkeley and the Bay Area as a hub for students, faculty, and activists engaged in contesting mass incarceration.  The growing body of formerly incarcerated students and (soon) faculty at Berkeley and other leading institutions are at the core of this intellectual in-gathering and the opportunity it offers to understand and overcome this dire period in our common American history.  Just as California has been the Mississippi of mass incarceration (see chapter 2 of Mass Incarceration on Trial), California's premier public university should be the leading national center of research, resistance, and restorative justice work.

The kind of synthetic thinking that a course thread invites is particularly critical at this moment when signs of change are everywhere and yet evidence of mass incarceration shape shifting and hardening into the American landscape is undeniable.  Compared with the mid 1990s, when a broad consensus on expanding extreme punishments (life imprisonment, the death penalty) for felons that were perceived as threatening every corner of America, including its supposedly safe suburbs (remember Polly Klass), the climate of political discussion has changed dramatically. Decriminalizing or even legalizing soft drugs like cannabis, and ending routine incarceration for even dealers in hard drugs has become politically acceptable, while a wide range of political leaders call for strategies to reduce our reliance on incarceration for public safety (read Barry Krisberg's contemporaneous article here, may require library id).  For three years, from 2009 to 2013, the nation’s prison population actually dropped in absolute numbers as releases crept over admissions. At the same time, powerful narratives of the imperative to incarcerate “violent”, “sexual”, and “serious” crime remain fully active despite a dramatic drop in violent crime since the 1990s.  These terms, are inextricably embedded in racial meanings that are likely both historical and cognitive in operation, which means a carceral geography refocused on repressing crimes of these types will produce the same kinds of degrading policing, prosecution and imprisonment that we have now (only slightly smaller in scale).  We do not even have confidence that the latter point will be true.  In 2013, according to the federal government’s latest statistics (the prison population ticked up by a fraction (thanks to immigration based population growth our incarceration rate, prison population compared to overall national population, continued to tilt down).   The struggle to overcome mass incarceration and its pervasive effects on the US population and landscape will take a generation or more, and it will require large numbers of active citizens with a commitment to see the job done.  Those citizens will need not a broad toolkit of analytical frames and historical insights to address not just mass incarceration as it exists today but in the myriad of forms it is likely to take as the current crisis of legitimacy either deepens or stabilizes (its is already shape shifting before our very eyes). 

This years marks the 50th anniversary of the year Civil Rights as a social movement triumphed in its half century long quest to outlaw “Jim Crow” segregation with the passage of the Civil Rights Act of 1964, today the major platform for equal rights in employment, education, housing and commerce.  Segregation quickly lost its defenders, and its public narratives.  What remained however were pervasive patterns of residential and employment segregation that has tended to reproduce itself.  Today we live with far higher levels of segregation than activists would have settled for in 1964.  I’m not counting on being there, but I invite readers to hold this moment accountable in 2034, or 2064, did we end mass incarceration or did it simply shift its shape, reframe its narratives, and morph into a new carceral normal?

Tuesday, August 26, 2014

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

Tuesday, July 29, 2014

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.