Does California Need a Truth Commission about Prison Overcrowding?

Berkeley law professor Jonathan Simon thinks so:

[W]e need a commission to investigate for the public record how the state found itself operating prisons that attract words like torture, cruel, inhuman, and degrading punishment. This is not Honduras where poverty, spiraling crime, and corruption are the order of the day, or Mexico, but we had prisons that belong in the same frame as recent news stories about the fire the killed hundreds in an overcrowded and chaotic Honduran prison (Guardian coverage here) and a murderous riot by one prison gang against another in Mexico to cover over an escape of elite gang members abetted by guards (coverage in the Guardian here).

Given the severity of the human rights problem in California’s prisons and its duration for more than two decades, retrospective documentation should lead to prospective preventive techniques. The commission could become a California Committee for the Prevention of Torture, or CAL CPT, modeled on the European CPT; a body of legal, medical, human rights, and criminological expert investigators with the authority to inspect any prison, mental hospital, or indeed any place of confinement, in order to warn state government of the potential for degrading conditions to form and how to prevent it.

The full post and more are at Simon’s always thought-provoking Governing through Crime blog.

On Treating Violence as a Public-Health Emergency

Although it’s unfortunately still not the dominant policy approach in the U.S., it’s also not that controversial to suggest that drugs should be handled as a public-health problem, not a criminal-justice problem. Jakada Imami of the Ella Baker Center argues that we should see homicide as a public-health problem, too:

If we add up all the deaths of all these young, predominantly men of color, and see what we’re looking at. I mean this country went to war over the attack on the World Trade Center and what will we be willing to do when you add up all these numbers of lives lost? Young men right here at home. The level of just trauma right now that people face when you’ve gone to more funerals than graduations. That’s just seen as normal, right? But when you think back to Columbine or the Virginia Tech shooting and you think about the level of resources and the care and support that those communities rightly received – you look at East Oakland or West Oakland or East L.A., you don’t see that level of support even though these communities go through that sort of trauma on a weekly basis. …

You can also triangulate, by looking back, figure out who is most likely to be the victim of a homicide or even kill somebody. Who’s likely? It actually turns out in most communities, that it’s not every single person. It’s also not every single black or brown person. It’s not every single person who lives in a particular neighborhood. It’s a very small subset, a very easily determined population who are most at risk of being killed, just like there are very specific and subset populations that are at risk of heart disease and are at risk of diabetes and any other public health crisis or issue. And so just as you would go about figuring out who most you need to treat first, who most you need to vaccinate first.

At Governing through Crime, Jonathan Simon has some not entirely unrelated thoughts on American responses to murder:

Georgia’s Governor: Breaking New Ground in Law-and-Order Demagoguery

So, it used to be that politicians would pair “build more!” talk on prisons with “be very afraid” talk about “criminals.” That combination could be called the “lock ’em up” mode of “tough-on-crime” politics. The new governor of my home state has apparently hit on a new formula. From his inaugural speech:

Presently, one out of every 13 Georgia residents is under some form of correctional control. It cost about $3 million per day to operate our Department of Corrections. And yet, every day criminals continue to inflict violence on our citizens and an alarming number of perpetrators are juveniles.

College students should be concerned about their grades not whether they are going to be mugged on their way home from class. Visitors to our cities should be treated as welcomed guests and protected. Families should not live in fear of gang violence and drive-by shootings. But most of all, our dedicated law enforcement officers must not be targets for criminals. Anyone who harms one of them harms us all, for they embody the Constitutional mandate that government provide us with protection and security.

Breaking the culture of crime and violence is not a task for law enforcement officials alone. Parents must assume more responsibility for their children. Communities must marshal their collective wills; civic and religious organizations must use their influence to set the tone for expected behavior.

For violent and repeat offenders, we will make you pay for your crimes. For other offenders who want to change their lives, we will provide the opportunity to do so with Day Reporting Centers, Drug, DUI and Mental Health Courts and expanded probation and treatment options. As a State, we cannot afford to have so many of our citizens waste their lives because of addictions. It is draining our State Treasury and depleting our workforce.

So, I’m guess I’m glad Deal is using his mini-bully pulpit to point out that the War on Crime costs a lot of money and doesn’t necessarily deliver commensurate benefits. And in a backhanded way, his mini-sermon about “the culture of crime and violence” at least acknowledges that just passing laws and arresting people doesn’t magically make everyone stop doing things you don’t want them to do.

That said, this is not, by any measure, a model of how elected officials should introduce mass incarceration onto the policy agenda. Deal is still trafficking in the same cartoon of The Criminal that we’ve been hearing about from politicians for basically as long as I’ve been alive, he’s just refining it slightly to exclude “offenders who want to change their lives.”

Rounding Up Commentary on Schwarzenegger v. Plata, Part III

The commentary keeps rolling in on Tuesday’s Supreme Court oral arguments in Schwarzenegger v. Plata, the California prison overcrowding case:

Garrett Epps:

It’s common to speak of this Court as having a “liberal wing” and a “conservative wing.” But this Court has no real liberals on it, in the mold of Earl Warren, William Brennan, or Thurgood Marshall. The “conservative wing” is there, self-assured and aggressive. But arrayed against it is a group of cautious, pragmatic centrists, who are very willing to engage in the kind of calculation [Chief Justice] Roberts was concerned with, and less willing to speak from the heart about individual rights. …

Donald Specter, who has devoted his career to advocating for prisoners, was a most impressive advocate. He was up against Carter Phillips, one of the best Supreme Court lawyers of his generation. Specter matched him blow for blow, and refused to be intimidated by Roberts or Alito; and he did it in a quiet, measured voice, never rattled, never irritated, never intimidated: Mr. Rogers with a law degree.

Jonathan Simon:

I have been arguing for some time that mass incarceration rests almost completely on an exaggerated fear of the risks of homicide that America in general, and California in particular, embraced after the bloody 1970s, and which remains seared into our political consciousness more than thirty years later, despite substantial drops in homicides and violent crime since the early 1990s. You can talk about the war on drugs, tough sentences for burglars, and over imprisonment of technical parole violators; but they all come down to a fear of citizens being murdered by someone that state could have stopped first. …

Of course Californians are already dying of the state’s prison management. According to earlier fact finding by the Judge Thelton Henderson in the medical part of the case (Plata v. Schwarzenegger), a prisoner a week dies of routine medical problems that a constitutionally adequate prison health system could prevent. But those kinds of deaths do not count in twisted logic of governing through crime.

Connecticut Lawmaker Calls for Ban on Violent Books in Prison Libraries

American Libraries reports:

“It is important that we do our homework and establish a policy that not only keeps books like In Cold Blood out of the hands of violent criminals like Steven Hayes, but also a policy that will stand up to any legal challenges that are thrown its way,” Sen. [John] Kissel stated October 6. “Common sense is on our side and I believe we will be able to establish an effective policy without having to pass new legislation.”

Kissel and [Department of Corrections Commissioner Leo] Arnone confirmed that the corrections department would revise prison-library policy in about a month after examining how collection development is codified for federal prison libraries, and how those policies balance prison security against the threat of First Amendment lawsuits. …

“Somebody that is moved to commit a crime has much more going on in their lives than simply having read a few comic books or a novel or In Cold Blood,” Deborah Caldwell-Stone, deputy executive director of the American Library Association’s Office for Intellectual Freedom, told the AP October 3. The Prisoners’ Right to Read interpretation of ALA’s Library Bill of Rights acknowledges that prison librarians may be required by law “to prohibit material that instructs, incites, or advocates criminal action or bodily harm” but goes on to caution that “only those items that present an actual compelling and imminent risk to safety and security should be restricted.”

This call comes, of course, in the wake of the murders in Cheshire, Conn., for which Steven Hayes was recently convicted and sentenced to death. Jonathan Simon has some thoughts on why Hayes’s particularly horrifying series of crimes is likely to shape policy for years to come; Jill Lepore wrote about the case last year.

Confronting the Mass Incarceration Mindset

A few weeks ago, I posted the always-shocking data on the rise of mass incarceration in the United States over the past 30 years. That data, however, is just the most visible way of measuring the rise of the American carceral state. And in turn, dismantling mass incarceration will require more than simply reducing the jail and prison population—which is merely a symptom of a deeper phenomenon.

What I mean is this: Mass incarceration is not just about the number of people actually behind bars. It’s also about a cultural mindset that turns to the criminal justice system—either literally or as a model—as the first response to almost any problem or disruption, even something so minor as a schoolchild’s misbehavior. In his book Governing through Crime (Oxford, 2007), Berkeley law professor Jonathan Simon argues that over the past 40 years, our society has reconceptualized virtually every social problem—extreme poverty, educational inequality, mental illness, undocumented migration, etc.—through the lens of crime, creating a culture of fear in which every citizen is defined first and foremost as a victim.

At the same time, this culture also defines certain members of our society as criminals—everywhere they go. As sociologist Victor Rios puts it, in a 2006 article,*

one of the most brutal yet unexamined collateral consequences of punitive criminal justice policies and mass imprisonment is that of the non-criminal justice institution being penetrated and influenced by the detrimental effects of the criminal justice system. Youth of color are hypercriminalized because they encounter criminalization in all the settings they navigate.

Rios found, in his interviews with black and Latino teenage boys in the San Francisco Bay Area, that many experienced their daily lives almost as if they were in jail — so pervasive has become the criminal justice system’s reach into schools, community centers, and even families. He gives the example of “Jr.”:

The Prison Boom May Be Over, But the Worst May Be Yet to Come

Thirty years into California’s experiment with mass incarceration, the results look pretty bad indeed: overcrowded prisons, federal receivership, a broken system of parole supervision, thousands of ex-offenders who find it hard to get jobs and reintegrate into their communities. Meanwhile, as the state hemorrhages millions and millions of dollars into its prisons, California’s once-admired state university system is cutting programs, furloughing professors, and refusing admission to thousands of qualified students simply because it can’t afford to take them.

Here’s a scary thought, though: As I was reading this post at the Governing through Crime blog from Berkeley law professor Jonathan Simon, it struck me that we may not yet have seen the worst of the long-term effects of the Golden State’s prison boom. Today California is still benefiting from the leadership (such as it is) of a generation of educators, politicians, government officials, doctors, lawyers, and business owners raised in a California whose schools and universities were the envy of the nation, a California which certainly had its share of social problems, but whose state and local governments were not synonymous with dysfunction and fiscal crisis.

The next generation of leaders, born in the 1980s and ’90s, will have grown up in a very different California. In five, 10, 15, 20 years, we will see the ramifications of a California whose schools and universities are underfunded, whose tax base has been gutted by Prop 13, and whose default response to social problems is imprisonment. One thing is clear: prison reform needs to be a piece of a much larger puzzle in California, or the next few decades could be pretty bleak. As Simon notes:

Our “prison first” policy of recent decades has concentrated California’s social problems in an environment where it is most expensive and least effective to solve them. The ways of unwinding this catastrophe are broad indeed and should involve the best minds in the public and private sector. But they cannot be solved by ignoring the deficit in social control capacity in California communities that have suffered from decades of private disinvestment and public neglect.

Web Resources: UC-Berkeley Course Lectures

This spring, UC-Berkeley is web-streaming the lectures for law professor Jonathan Simon‘s undergraduate survey course, “Punishment, Culture, and Society.” An easy and handy way to brush up on your crime and punishment history, even if you’re no longer a college student. Here’s an excerpt from the course description:

This course surveys the development of Western penal practices, institutions, and ideas (what David Garland calls “penality”) from the eighteenth-century period to the present. Our primary focus will be on penal practices and discourses in United States in the early 21st century. In particular we will examine the extraordinary growth of US penal sanctions in the last quarter century and the sources and consequences of what some have called “mass imprisonment.” To gain some comparative perspective the course will also take up contemporary penality (or penalities) in Europe, South Africa, Central America, and Asia, as well as US penality and society at some earlier conjunctures. … The course will examine many examples of penal practices and the ideas associated with them including mass imprisonment, the death penalty, and restorative justice. In the last portion of the class we will examine the recent crisis in California’s juvenile prisons through the lenses both of different social theories and the examples of different national and historical penal patterns.

(h/t: California Corrections Crisis)