This Election, Say No to Old-Skool Crime Panic: Part 1

Last Monday’s presidential debate was interesting for a variety of reasons. To me, a particularly interesting point was the reemergence of old-skool crime risk narratives. As I explain in Cheap on Crime, the recession years were characterized by a rethinking of our ideas about crime, crime prevention, and crime control, and by a bipartisan understanding that, regardless of one’s stance on the morality of mass incarceration, it is simply not economically sustainable to punish so many people so harshly and for such long periods. This means that, in the last few years, we were exposed to new and surprising declarations from long-time conservatives arguing for more civil rights protections, a truce in the war on drugs, and sentencing reform. This is not just about money, though; new advances in neuroscience and developmental psychology have led to a rediscovery of childhood, which in turn has led to several developments in legislation and in caselaw reforming juvenile justice.

And yet, it seems like some things never change. One such thing was Donald Trump’s argument last Monday that murder rates are up. Anyone who lived through the Nixon campaign must have felt, as Yogi Berra would say, déjà vu all over again. The logic behind this old-skool crime panic argument is: crime rates are rising; the only way to stop them is by cracking down on street offenders; the best way to do it is aggressive policing in the streets. The problem is that none of these things is fairly presented or even true.

First, as my colleague John Pfaff explains in The Nation, it is statistically misleading to focus on a rise in one type of crime in the course of one year:

Despite the increases cited in yesterday’s FBI report—the rise in murders in 2015 was the largest in both absolute and percentage terms since crime started dropping in the early 1990s—the United States remains an historically safe place to live. The murder rate in 2015 is still lower than it was in 2009, and before 2009 the last time the murder rate was as low as it was last year was in 1964. Overall, 2015 had the third-lowest violent crime rate since at least 1970, and probably even before that, since our older crime stats likely understate crime much more than they do today.
Yes, crime went up in 2015. But crime remained at near historic lows in 2015, too. Both of these statements can be, and are true. Despite the rise in violent crime, we remain safer today than we have been in decades.

What happened in 2015 happened in the course of one year, against an opposite trend, and one year cannot be regarded a trend:

Because we have so much less violent crime today than in 1990, any given increase will be a bigger percent jump today than 25 years ago. If we have 100 units of something, five more is just 5 percent, but that same five-unit increase is a 10 percent jump from 50. So while the number of murders rose by 11 percent in 2015, compared to 9 percent in 1990, the total increase in murders in 2015 was about 400 less than in 1990. The percent change looks worse because we are doing so much better.

Second, there are no grounds to fear sensible nonpunitive measures. Remember the vast number of articles in California newspapers quoting cops claiming that criminals have been running rampant in the streets since the early releases of Prop. 47? The proposition passed in November 2014. It is now October 2016 and the numbers are in: there is no correlation, on a county-by-county analysis, between releases under Prop. 47 and crime rates. None. Long prison sentences, serious felony charges, and refraining from paroling people do not make us safer. At all.

Third, cracking down on suspected street offenders via aggressive stop and frisk policies is never a good idea. The odds of actually catching contraband on someone during a brief stop and patdown are very low. In New York City, where the NCLU conducted a multi-year inquiry, they found that nine out of ten people who were stopped and frisked were found to be totally innocent. The benefits of finding contraband on a small percentage of the citizenry are far outweighed by the costs of humiliation, degradation, and the loss of trust between police departments and the communities they serve. Even more importantly, as Jill Leovy’s book Ghettoside demonstrates and as David Simon repeatedly explains in his public appearances, the problem is not just overenforcement: it’s overenforcement of showy, aggressive police power that comes directly at the expenses of enforcement that requires brainy, creative police work. The time and manpower spent on stop and frisk is time not spent solving murders and robberies, which are presumably the serious crimes that Trump wants us to be afraid of.

This election, Californians have an opportunity to say no to old-skool crime panic by voting on sensible criminal justice reforms that will save us money and help us treat our neighbors and fellow residents more humanely. Vote Yes on 57 to eliminate prosecutorial monopoly on trying juveniles as adults and to give nonviolent adult offenders a chance on parole. Vote Yes on 62 to eliminate the costly and failed death penalty. Vote Yes on 64 to save money on marijuana prohibition and to bring in much-needed tax revenue. Vote No on 66 to refuse a costly and dangerous death penalty “tweak” that will provide (and pay) undertrained attorneys and risk wrongful executions. Say no to unfounded crime panics. We’ve been there before and we know it doesn’t help. And say yes to sensible reforms.


 

More on Governor Brown’s Sentencing Initiative

This is a follow-up to my initial comments on the proposed initiative, titled The Public Safety and Rehabilitation Act of 2016,  I’ve had a chance to read the text, and also to peruse my rockstar colleague David Ball’s terrific comments.

There are basically two parts to the reform. One of them, which I covered in my previous commentary, is the move away from determinate sentencing and toward parole hearings–and as I said in my previous post, this is only a good thing insofar as we believe that parole commissioners will make better decisions than prosecutors. Granted, any decision that takes into account the particular individual’s situation is better than a rubber stamp based on severity of the offense, one’s rap sheet, and these two factors alone, but I have come to see the way parole boards exercise unfettered discretion regarding lifers as something to worry about, and would like to see some supervision and standards (not to mention more training) for commissioners.

The other part is the abolition of direct filing and placing the decision whether to try a juvenile as an adult in the hands of the court, not the prosecutor. As Ball points out, the numbers are pretty small, but for the individual, how discretion is applied could matter a great deal.

I remain overall optimistic, even enthusiastic, about this–but only to the extent that we’re not merely transferring the exercise of unfettered discretion from one actor to another without thinking about effective guidelines and supervision for its application.

BREAKING NEWS: Brown’s Proposed Sentencing Reform Pulls Us Back to the Future

Just two days after the Supreme Court’s encouraging decision in Montgomery v. Louisiana and President Obama’s announcement of a solitary confinement overhaul in the federal system, comes this astounding piece of news from Governor Brown:

Forty years after signing strict, fixed-term sentencing standards into law – and more than a decade after panning them as an “abysmal failure” – Gov. Jerry Brown on Wednesday proposed a ballot measure to make it easier for nonviolent offenders to gain parole.
In a rebuke of criminal enhancements that can dramatically extend prison terms, the measure would let felons convicted of nonviolent offenses seek parole after serving only their base sentences. It would also restructure what Brown called a “crazy quilt” of credits for good behavior, benefiting prisoners who demonstrate evidence of rehabilitation. 

The initiative language would also undo provisions of Proposition 21, the measure approved by voters in 2000 that allows prosecutors rather than judges to decide when teenagers are tried as adults. Brown will need valid signatures from 585,407 registered voters to qualify the measure for the November ballot. 

Brown, announcing the measure in a conference call with reporters, said the “determinate sentencing” law he signed when he was governor before “had unintended consequences.” 

“Unintended consequences” is right. The original pioneering California move in the late 1970s to determinate sentencing was a bipartisan collaboration between conservatives, who were concerned that light sentences amounted to coddling offenders, and progressives, who were concerned about the arbitrariness of parole powers and about its disparate impact on poor people and minorities. The last forty years in California, if seven years’ worth of posts on this blog haven’t made it clear, have been a very, very bad idea.

“And one of the key unintended consequences was the removal of incentives for inmates to improve themselves,” he said, “because they had a certain date and there was nothing in their control that would give them a reward for turning their lives around.”
Though his measure would not change sentencing standards, Brown said “it does recognize the virtue of having a certain measure of indeterminacy in the prison system.”
“The driver of individual incentive, recognizing that there are credits to be earned and there’s parole to be attained, is quite a driver,” he said. 

The announcement of the initiative was the first specific sign of how Brown plans to involve himself in the November ballot measure campaigns. The fourth-term governor holds a campaign war chest of about $24 million.

Asked if he would finance the initiative, Brown said he will do “whatever it takes to get this done.” 

Brown will enjoy a relatively favorable electorate, with high turnout for a presidential election typically benefiting Democratic politicians and their causes. 

California voters in recent years have demonstrated a willingness to move away from tough-on-crime policies. In 2014, voters approved Proposition 47, which reduced penalties for some drug and property crimes. Two years earlier, voters passed Proposition 36, revising “three strikes” to require that the third strike be a violent or serious felony. 

The initiative is likely to face opposition from some conservatives. State Sen. Jim Nielsen, R-Gerber, said in a prepared statement that “weakening the criminal justice system will only increase the victimization of California citizens.” 

Brown said the ballot measure’s proposal followed “intense conversation” with law enforcement groups, representatives of which joined him on his conference call.
Brown said he considered including violent offenders in the initiative but that it “met with, I would say, near-universal disinterest” from law enforcement. 

“It became a nonstarter,” he said. 

Brown, who helped create the state’s “determinate sentencing” system when he was governor before, has said for years that it should be revisited. In a speech to judges in Sacramento in November, Brown said he didn’t foresee the dramatic impact determinate sentencing would have on the growth of California’s prison population. The policy scaled back judicial discretion in prison sentences.

I haven’t seen the full text yet [UPDATE: I just read it–here it is–and am posting a follow-up], and will of course comment in depth when I do, but I think some preliminary remarks are in order:

  1. In many ways, the last forty years made us smarter than we were in 1977. We know that Martinson’s somber prediction that “nothing works” in rehabilitation was not true, and that doing rehabilitation properly can reduce recidivism. And we also know that determinate sentencing, and that treating kids as adults, achieves little in the way of equality and streamlining and plenty in the way of packing prisons.
  2. Another way in which we’re smarter now is that we understand that discretion doesn’t go away–it merely moves around. What we did in 1977 was shift it from the hands of judges and parole boars to the hands of prosecutors and legislatures–to the point that some commentators, like John Pfaff and the always fabulous Grits for Breakfast, attribute mass incarceration primarily to prosecutorial charging decisions gone amok.
  3. But let’s not throw the baby with the bathwater. One of the reasons California moved away from determinate sentencing in the first place was concern about unfettered discretion by judges and parole boards. Even now, when parole hearings are relegated to lifers, the board enjoys a lot of discretion and very little transparency. My research for my book in progress about the parole hearings of the Manson family members, Yesterday’s Monsters, shows the very limited responsiveness of the parole board to the California Supreme Court’s supervision, and if we want to get the good stuff (incentives to rehabilitate, shorter sentences) without the bad stuff (discrimination and arbitrariness) we need to design parole in a smarter way. With great power, Spiderman’s uncle reminds us, comes great responsibility, and there are no guarantees that parole boards are much better than prosecutors in the discretion department.
  4. Note the humonetarianism theme throughout the proposal. Just like in the initiative on juvenile justice, the language relies heavily on the issue of cost.
  5. So, what happens to the California Penal Code if this passes? Do we rewrite felony sentencing to eliminate the “triad” and affix broad ranges to allow judges discretion? This is going to be a massive redrafting job, but quite an interesting one, and how successful it is depends on how  controlled it might be by partisan politics.
  6. Finally, the article talks about the possible broad support by California voters–the same ones that voted, by large majority, to make lots of punitive changes that we regret to this day. And it may well be that, beyond cost, one of the major reasons that the Republican lawmaker’s it’s-a-scary-world retort falls flat is that crime rates are low. Very low compared to what our predecessors in 1977 were facing. It may be the case that it’s time to put aside the hubris and conclude that crime rates, like the weather, happen for a variety of causes, of which sentencing reform is only one, and that our decisionmaking process should not sway to and fro every time the pendulum swings.

Our Friends from the North: Canada’s Conservative Turn

As policymakers in the United States are rethinking the country’s reliance on mass incarceration, both from a fiscal and a humanistic perspective, disturbing trends in Canada merit some attention–both because they are interesting and disconcerting on their own, and because they provide an interesting comparison to the Nixon and Reagan years.

In The Harper Decade, our Canadian colleagues are examining the impact of the Harper administration on a variety of issues, ranging from public services to environmental protections. Their conclusion across all these areas: Canada has changed, and not for the better.

Of particular interest to us is Lisa Kerr and Anthony Doob’s excellent essay The Conservative Take on Crime Policy, which examines Canada’s punitive turn during the Harper years. Kerr and Doob write:

There is no question that Harper’s Conservatives have talked tough about criminal justice, departing from the more moderate tone that has characterized Canada’s history on this topic. Before Conservative rule, Canada had a long tradition of allowing criminal justice experts – like judges and prosecutors – to make decisions in ways that were largely insulated from politics.  One result is that Canada has been able to sustain a stable, moderate rate of imprisonment. Even during decades when violent crime was much higher across North America – when the US was busy generating the policies that would deliver its current situation of ‘mass imprisonment’ –  Canada relied on imprisonment comparatively sparingly. Since 1950, imprisonment rates have varied between about 81 and 116 adults per hundred thousand Canadian residents. In 2005 the rate was about 104. Currently it appears to be about 115.

This tone of moderation in crime policy has changed. With the Conservative politicization of the field of criminal justice we have seen an uptick in rates of imprisonment, an increase in the severity of the punishment experience, and a new reliance on crime as a salient topic with which to mobilize political support. Harper’s Conservatives have overseen decisions to close prison farms, fire prison chaplains, strip judges of sentencing discretion, and increase the use of solitary confinement. The overrepresentation of indigenous people in our jails and prisons – already a problem under past governments – has also become worse during Conservative rule.

Kerr and Doob identify three key areas of punitivism: rhetorical change, designed to sweep the public into a tough-on-crime ideology; consequential change, which targets especially people serving long sentences for violent crime by diminishing their hopes for parole; and unconstitutional change, which includes reforms that may be short-lived because of their unconstitutionality, but waste legislative time.

One important difference between the Nixon and Harper administrations is that Nixon’s election campaign at least relied on some objective grounds: the massive rise in violent crime. Even commentators who argue that Nixon exploited this development to introduce, top-down, a massive fear of crime and combat the civil rights movement, do not doubt these numbers. By contrast, Kerr and Doob note–

the peculiarity of a desire to reform the criminal justice system – or at least talk about reforming it – at a time when crime is in a longstanding state of decline.  Total crime in Canada peaked in the early 1990s and declined thereafter. Homicide rates peaked in 1977 at 3 per hundred thousand residents. In 2014, the rate was 1.46 homicide victims per hundred thousand residents. These patterns fit a larger story of peak and decline that has occurred in the United States and many other industrialized democracies. For well over a decade, Canada has been enjoying the same drop in crime as similarly situated nations. The causes of the drop in crime are not well understood.  What is known for certain, however, is that the drop in crime in Canada has little to do with criminal justice punishment policies. Indeed, Canada’s imprisonment rate was remarkably consistent in the decades before crime fell.

In that sense, Harper’s government may more easily be compared to the increased war on crime and drugs during the Reagan administration. In the 1980s, crime rates in the United States started falling, but punishment continued to increase. Most U.S. commentators do not find a significant causal relationship between mass incarceration and the drop in crime rates, attributing most of the decline to better policing, gun control, and a variety of unrelated factors such as age. But even this factor defies comparison: Even in the years in which crime peaked in Canada, incarceration rates did not change much.

I think that one key factor that has facilitated Harper’s rhetoric in the face of overwhelming evidence to the contrary is the fact that his conservative reforms, while senseless and damaging, are not–yet!–unsustainable. Canada was the only G-7 country that managed to avoid the financial crisis, and its recession was much milder than the U.S. recession. Here, the crisis acted as a catalyst of change, bringing together bipartisan allies to initiate cost-centered reforms. There will be many reasons for Canadians to regret Harper’s criminal justice policies for years to come, but they may not feel them for a long time because they won’t be hitting them in the wallets any time soon. But it’s also true that Canadian legislation in such matters is not as driven by financial and fiscal concerns as U.S. legislation, and it may be that, if enough Canadians are sick of Harper on October 19, much of this disturbing trend will go away.

Pope Francis to Visit Philadelphia Jail: From Domestic Triviality to Human Rights Crime

Pope Francis greets a refugee during mass at the Church of
the Gesu (Italy, 2013). Photo courtesy the Jesuit Refugee Service.

Among Pope Francis plans for his stay in Philadelphia is a visit to Curran-Fromhold Correctional Facility.

Local activists are hoping that the visit will draw attention to the atrocious conditions in the jail, but that is not all. As Maurice Chammah writes in the Marshall Project:

Ironically, Curran-Fromhold was opened in 1995 in part to deal with overcrowding. But by 2001 the Philadelphia Inquirer was reporting the system could no longer “keep pace with arrests,” a problem, the newspaper noted, that had hit jails in Los Angeles, Indianapolis, and other large cities as police focused on making frequent arrests for low-level crimes. Many of the men and women arrested for these lesser crimes could not make bail, so they stayed. From 1999 to 2008, according to a study by the Pew Charitable Trusts, “the percentage of bed-days in the Philadelphia jails consumed by pretrial inmates on an annual basis rose from 44 percent of the total to 57 percent.” In 2009, the Philadelphia Prison System, designed to hold roughly 8,000 people, was holding more than 9,000. 

The numbers don’t capture how these jails feel, though. Lawsuits against the conditions at Curran-Fromhold have described how three prisoners are sometimes housed in cells designed for two. The odd man out sleeps in a plastic cot on the floor called a “blue boat.” One inmate, Everett Keith Thomas, scribbled on a handwritten federal complaint in October 2014, “I awakened to find mouse feces on my face and blanket in the blue boat.” Jail officials say they are careful never to keep an inmate in a triple-cell for more than 45 days.

Chammah hopes that the Pope will join the growing movement for prison reform:

You are probably aware that over the last few years there has been a major shift in the politics of criminal justice throughout the U.S. Philadelphia is no different, and city officials have begun to look at criminal justice reform for its own sake — not just to satisfy judges and civil rights lawyers.

Last year, the city received $750,000 from the U.S. Justice Dept. to improve services for former jail inmates as they reenter the community. In May, the city was one of twenty to receive a grant of $150,000 from the MacArthur Foundation as a part of their Safety and Justice Challenge, which the city is using to analyze its criminal justice data and try to find ways to reduce the jail population. (If MacArthur is impressed, the city may be selected to receive up to $4 million for this project). In July, the city’s likely next mayor, Jim Kenney, indicated that he might push for Philadelphia to eliminate cash bail for some pretrial defendants, allowing them to be supervised in the community rather than locked up, further easing the burden on the jail system.

He ends his letter to the Pope thus:

You happen to be catching our country at a particularly rich moment of reassessment, and many — both jailers and jailed — hope you will contribute to that moment.

Of course, I agree with Chammah; the Pope’s visit is happening as the humonetarian move is in full swing, and could only contribute to this welcome trend. But I think it will do something even more important: it will highlight what has been, for many years, perceived as a domestic problem to the level of a human rights crime deserving of international attention.

One of the things that always struck me as odd is the extent to which the international community is preoccupied with international, or foreign, conditions, to the exclusion of the domestic ones. I was raised, of course, on the distinctions the Israeli legal system makes between domestic, “ordinary” criminal behavior and “security crime”, which is often a false dichotomy. But I see the same meme in literature and film that highlight the misery of Westerners doing time in exotic, Eastern facilities, such as Brad Davis in Turkey in Midnight Express or Bridget Jones in Thailand in The Edge of Reason. There’s a certain degree of perverted Orientalism in these accounts. No doubt, the experience of being incarcerated far away from home in a foreign culture is pretty shocking. But the focus on these unusual situations has the effect of trivializing the “usual” horrors of being incarcerated at home.

Shane Bauer, who was incarcerated in Iran, visited California prisons upon his release and return home. Much to his horror, which he documents in this Mother Jones article, he found domestic incarceration conditions to be worse. The horrific medical neglect and unnecessary, iatrogenic death toll exposed in Brown v. Plata would yield international outrage if it was reported from a developing country. The fact that we incarcerate juveniles in adult institutions and put them in solitary confinement would raise a serious alarm and much tongue-clucking if it were reported to happen in a so-called primitive country.

Some of these conditions have received international attention. Our use of long-term solitary confinement has been reviewed and severely criticized by the U.N. expert on torture. Because torture is no less torture if it happens to domestic citizens on domestic soil. It is hoped that the Pope’s visit will lead to a reframing of U.S. prison conditions as a serious human rights crime deserving of international attention and corrective measures.

Obama’s Post-Punitivism

President Obama’s speech yesterday at the NAACP was a dream come true for American prison reformers, who have waited for decades to hear a U.S. president retreat from the punitive proclamations we have gotten so used to hearing.

I highly recommend listening to the speech in its entirety, but wanted to point out a few highlights:

1. In the spirit of the events of the last few months, Obama links the NAACP’s activism in the area of criminal justice reform and poverty to their historical standing up to lynching and voting restrictions.

2. “For the first time”, said the President, “the crime rate and incarceration rate both went down at the same time.” This is the first time a U.S. president is acknowledging low crime rates.

3. “Crime is like an epidemic; the best time to stop it is before it starts. . . if we make investments early in our children we will reduce the need to incarcerate those kids.” Obama references investing in early childhood and in summer jobs, mentioning that these will “save the taxpayers money, if we are consistent about it.” These statements are reminiscent of President Ford’s statements on crime (for more on this, see Cheap on Crime.)

4. Obama states an unwavering commitment to enfranchising felons: “If folks have served their time, and they’ve re-entered society, they should be able to vote.”

5. As befitting the setting for the speech, Obama spends a great deal of time “un-othering” crime, by speaking about how “other people’s kids” should be treated like “our kids”, speaking directly about the urgent need to restore trust between the police and the communities it serves.

6. Obama discusses sentencing reform and urges a sentencing reform bill that should be “passed through Congress this year”, which will restore judicial discretion and invest in diversion programs, which “can save taxpayers thousands of dollars per defendants each year.”

(read more about the speech on Slate.)

Some of this is right out of the Cheap on Crime playbook: diversion, nonpunitivism, and rehabilitation are cheaper, make sense in the face of declining crime rates, and should therefore be a bipartisan concent. But there is also a concept of dignity as a communitarian value that is being advanced here. Echoing sentiments that remind me of his days as a community organizer, Obama expect solidarity from his constituents, and he expects them to feel responsible for even the weaker links in the American social chain. Toward the end of his second term, Obama wants to galvanize his supporters to fix some of the things that are wrong in the criminal justice system.

It bears to mention that Obama’s criminal justice mandate extends only to the federal system, which houses a small minority of the inmates in the United States. But even so, changes to the federal sentencing laws may become an important influence on state legislation and, perhaps, also on federal judicial review of state practices. It is also worth mentioning that most presidential candidates for the 2016 elections–from Bernie Sanders to Ted Cruz–are not opposed to the ideas that Obama articulates in this speech; notably, Bill Clinton expressed enthusiasm and relief for his wife’s platform of reversing the punitive excesses of his own presidency. In short, being panicky and punitive is passé, and being fiscally conscious and community-oriented is “in”.

How much of this will translate to real-life policies remains to be seen, but it is encouraging to think that Obama still has a year and a half left to wrangle Congressional Republicans on criminal justice. And he’s dealing with less opposition from the Right than he would have in, say, 2006.

Britain’s Correctional Crisis

Yesterday’s Guardian reported that English and Welsh prisons are “at their worst level for 10 years.” This is according to a report by Nick Hardwick, the exiting Chief Inspector of Prisons, which is apparently a thankless job fraught with political pressure and incentives to conform. Hardwick reports that

staff shortages, overcrowding and a rising level of violence fuelled by a rapid increase in the use of legal highs have all contributed to a significant overall decline in safety.

The chief inspector even reports that prison officers at Wormwood Scrubs showed him cells that were so bad that they told him: “I wouldn’t keep a dog in there.”

His findings suggest that the “rehabilitation revolution” promised five years ago by the last government has yet to get under way.

The chief inspector says alternatives to custody should be considered to bring down the prison population, which currently stands at 86,255. He says this may be “unpalatable” to politicians but so are many other public spending choices the government has to make.

“Our own assessments about safety were consistent with data that the national offender management service (Noms) itself produced. You were more likely to die in prison than five years ago. More prisoners were murdered, killed themselves, self-harmed and were victims of assaults than five years ago,” said Hardwick. “The number of assaults and serious assaults against staff also rose.”

Hardwick says he found that overcrowding was in some cases exacerbated by extremely poor environments and squalid conditions. “At Wormwood Scrubs, staff urged me to look at the cells. ‘I wouldn’t keep a dog in there’, one told me,” he reported, adding that he found filthy cells covered in offensive graffiti in cockroach-infested wings.

Launching his report, he said: “It cannot go on like this. The cost is unsustainable. The profound effects on rehabilitation outcomes are unsustainable.”

Does any of this sound familiar?

Many of the commentators about mass incarceration lump developments in the UK with those in the US. A good example is David Garland’s The Culture of Control, which argues that both countries are plagued by a similar atmosphere of punitivism, panic, and a growing discourse revolving around the underclass. Garland discusses both countries in tandem, linking the rise of a massive criminological effort to late 20th century developments, which emerged as a reaction to post-WW2 “war on poverty” programming. The commitment to treating the problem of crime in the community, tailoring sentences to the offender, and engaging in “penal welfarism” had vanished by the late 1970s–partly as a result of rising crime rates–and the social and economic changes led to a new paradigm in crime control, consisting of two contradictor models: “criminologies of the self”–reliance on situational crime prevention and an industry of defense against crime, and “criminologies of the other”–an increasingly isolating and punitive regime that demonizes and dehumanizes offenders and inmates.

There are some good reasons for the comparison; Garland is focusing particularly on the combination of Reaganism and Thatcherism as the turning point. But the book does not draw fine distinctions between the two countries, which engage in considerably different (though uniformly insidious) politics of race in the context of their criminal justice system. The Guardian story makes me wonder whether the Cheap on Crime moment in the United States, as well as the Obama administration’s commitment to shrinking the punitive apparatus, has arrived in the UK as well, and might change things there for the better.

Should California “Talk Its Walk” About Corrections?

Over the weekend, at the Law and Society Association meeting in Seattle, I learned from colleagues that California is largely responsible for the 6 percent decline in U.S. incarceration. Three large-scale reforms are responsible for this contribution: the Schwarzenegger-era SB xxx 18, which provided good-time credits and reformed parole; the Brown-era Criminal Justice Public Safety Realignment, which shifted groups of low-level felons from prisons to jails and allowed for mandatory supervision and split sentences; and, most recently, Prop 47, which shifted several low-level offenses from felonies to misdemeanors.

Given the overall effect of these reforms not only on California prisons, but on the U.S. prison population as a whole, you’d expect California to take pride in its role as decarceration pioneer. But that would only be if you were unfamiliar with California and its neopopulist, polarized political culture. Instead, these reforms were justified as responses to the budgetary crisis; politicians did not openly acknowledge their connection to the decision in Plata v. Schwarzenegger, later Brown v. Plata; and they were justified as small-scale reforms and jurisdictional shifts, with at least the architects of Realignment proclaiming “no early releases”. Contrast this to the proclamations from red states about prison closures and “returns on investment” that I review in Cheap on Crime, and ask yourselves–wouldn’t it be better if California boasted more about its contribution to decarceration?

I’m trying to think about the relationship between rhetoric and practices, and am wondering whether the fact that California is controlled by a Democrat legislature means that Republicans here don’t have to sound bipartisan as they do elsewhere (such as, for example, in the federal government). I’m also wondering why gubernatorial candidates–Jerry Brown, now in his fourth term–still espouse, at least in name, law-and-order politics and think this is a good idea. I find this modest rhetoric puzzling and am curious to hear your thoughts.

Inequality and Traffic Courts

Sam Levin’s East Bay Express story illuminates a hidden corner in the criminal justice system: traffic courts and their contribution to inequality and social stratification.

Statewide data that Bay Area legal aid and civil rights organizations recently compiled and analyzed — along with detailed accounts from people saddled with insurmountable traffic violation debts — demonstrate that municipal courts and aggressive debt collectors in California routinely trap low-income people in poverty with exorbitant fines. Minor traffic offenses that once cost $100 now cost roughly $500, which people living paycheck to paycheck can’t afford.

And when defendants miss a single payment or court date, the fines increase exponentially — and their driver’s licenses are suspended. In those cases, the courts also frequently block defendants from having a trial unless they post full bail, which means innocent people or those with extenuating life circumstances often can’t even present their cases to a judge.

Over the past eight years, there have been 4.2 million cases in which the state suspended driver’s licenses because of people’s failure to appear or pay fines in court, according to the East Bay Community Law Center, a nonprofit that provides legal services to defendants in traffic court. That means an estimated 17 percent of adults in California currently have suspended licenses for missing a hearing or payment deadline.

President Obama Interviews David Simon

A truly epic meeting has happened at the White House: President Obama interviewed David Simon, creator of the masterpiece series The Wire.

Yes, you read right, and you can see the entire interview below.

This interview is incredible on several levels. First, it is a strong testament to the power of a cultural piece in shaping discourse around big policy issues. If any television series is worthy of this honor, surely it is The Wire, which, through its depiction of the drug trade in Baltimore, has expanded America’s perspective of the criminal justice system to the schools, the political system, and the media.

Second, this dialogue is truly wonderful to experience. As I write in Chapter 5 of Cheap on Crime, the Obama campaign was the first presidential campaign since Nixon’s that did not feature crime control and punitivism as a central feature. I read this as a testament to the power of recession-era politics to reshape the political conversation. And the followup during the presidency has also been remarkable: no matter what you think about Obama’s foreign or economic policy, it is his presidency that fostered the bipartisan initiative to deescalate federal punishment, as well as the Holder and Cole memos to refrain from intervention in marijuana enforcement in legal states. What this remarkable interview reveals are the complex motivations behind this change. In Cheap on Crime I argue that the recession created conditions under which politicians of all stripes can foster non punitive reforms without suffering electoral and public consequences; but even if that’s what brings people to the table, it is only partly what fuels these changes. This interview is a combination of financial issues (particularly when Obama and Simon discuss the difficulty of young men with felonies to engage in the job market) and broader issues of dignity, like the ones Jonathan Simon covers in Mass Incarceration on Trial. To Obama, perhaps unsurprisingly, what is salient in this picture is boys growing up with absent fathers, or with fathers in prison, and he particularly mentions the fourth season of The Wire, which addresses the schools.

Third, which is poignant, is what Obama says toward the end of the interview: that perhaps the time has come to address the structural issues that lead to overincarceration in the first place. Is he referring to poverty? racism? social stratification? The time to address these differences through deep economic change is sorely overdue, but with a Republican congress any effort to make America more egalitarian and less stratified generates cries of “communism!” panic that echo the 1950s. I have no doubt that Obama and Holder have deeply understood and internalized the lessons of The Wire, but I can also see why translating these lessons to practical political gains in a complicated field of political struggle is a big challenge.

I applaud Obama and Simon for this remarkable conversation.