Berkeley Jurisprude

End of the Graduate World as We've Known It

2009-04-27T12:23:00.000-07:00

In a provocative Op-ed article in the New York Times, Mark C. Taylor, Chair of the Religion Department at Columbia University, calls for a fundamental rethinking of the place of departments and the preparation of both graduate and undergraduate students. Citing the increasing disconnect between what graduate (and undergraduate) students learn, and the jobs that await them, Taylor calls for restructuring universities around problem centered programs that would be reconsidered regularly.

Abolish permanent departments, even for undergraduate education, and create problem-focused programs. These constantly evolving programs would have sunset clauses, and every seven years each one should be evaluated and either abolished, continued or significantly changed. It is possible to imagine a broad range of topics around which such zones of inquiry could be organized: Mind, Body, Law, Information, Networks, Language, Space, Time, Media, Money, Life and Water.

As the Associate Dean of a program that has focused on the study of law in its social context, for both graduate and undergraduate students for the past thirty years (the program that is, not me!), I would like to offer an endorsement to Taylor's argument.

When Rights Die

2008-11-06T06:22:00.000-08:00

Amid the near universal public euphoria we experienced yesterday over Barack Obama's election as President (at least here in Berkeley), a dark sense of dread and despair grew as it became clear that California voters had narrowly approved a constitutional ban on same sex marriage (52% approved). As reported by Jesse McKinley and Laurie Goodstein in the New York Times, similar bans passed in Florida and Arizona.

Much discussion focuses on the intensity of support for the measure among the religiously conservative and on the failures of the opposing campaign. Clearly we are seeing the results of a strategic decision by religious leaders to make anti-homosexuality the new abortion.

The Rev. Joel Hunter, an evangelical pastor in Florida, said many religious conservatives felt more urgency about stopping same-sex marriage than about abortion, another hotly contested issue long locked in a stalemate.

“There is enough of the population that is alarmed at the general breakdown of the family, that has been so inundated with images of homosexual relationships in all of the media,” said Mr. Hunter, who gave the benediction at the Democratic National Convention this year, yet supported the same-sex marriage ban in his state. “It’s almost like it’s obligatory these days to have a homosexual couple in every TV show or every movie.”

Old style religions of all kind, as anthropology long recognized, work by defining the chosen against the perfidy of a distinct other.In some respects gays and lesbians might be hard to demonize because they have been distributed (by God?) among all segments of the population, and are not marked by skin color, language, or political ideology. But the cultural revulsion toward same sex intimacy long reproduced by the popular culture to which Mr. Hunter refers to in the quote above, continues to work in favor of legal bigotry.

In time, I believe, religious leaders like Mr. Hunter, will regret having tied their faith to the rather thin strand that connects biblical morality (however read) to same sex intimacy, especially in the face of a persistent cultural move toward accepting that intimacy. In the meantime we in the progressive community have to call out Mr. Hunter and President Elect Barack Obama about their cultural attachment to bigotry.

As a legal matter, the enactment of Proposition 8 reflects something that is surprisingly rare and very sad, the death of a right. Back in June, when the California Supreme Court held that the state constitution prohibits the government from denying the status of marriage to otherwise qualified same sex couples,they expanded the terrain of legal rights for all in California. To the vast majority of Californians who are heterosexual, that right may seem of little value, but in time, who can say what additional rights would have grown from this new branch of our living constitution. On November 4th, the voters have engaged in what legal theorist Robert Cover called "jurispathic" conduct, or law-killing.

The right response to the death of law, is to plant a thousand new seeds. These may come through the legislature, more court actions, city ordinances, and through acts of spontaneous law creation like Mayor Gavin Newsom launched in San Francisco several years ago when he ordered the clerks of the city hall to grant the licenses to same sex couples.

Which Way from the New Deal?

2008-10-21T06:47:00.001-07:00

Both his fans and his critics often see Barack Obama as a political leader who could produce a new New Deal. One of those critics, economics and law professor Paul Rubin, who also serves as an adviser to the McCain campaign puts the negative case strongly in an oped in today's Wall Street Journal.

n 1932, Democrat Franklin Delano Roosevelt was elected president as the nation was heading into a severe recession. The stock market had crashed in 1929, the world's economy was slowing down, and all economic indicators in the U.S. showed signs of trouble.

The new president's response was to restructure the economy with the New Deal -- an expansion of the role of government once unimaginable in America. We now know that FDR's policies likely prolonged the Great Depression because the economy never fully recovered in the 1930s, and actually got worse in the latter half of the decade. And we know that FDR got away with it (winning election four times) by blaming his predecessor, Herbert Hoover, for crashing the economy in the first place.

Obama, who Rubin characterizes as among the most liberal members of the Senate, would, aided by a stronger and more liberal Democratic majority in Congress, would renew the New Deal.

But if the coming wave of new regulation from an Obama administration is harmful to the economy, Mr. Obama will take a page from FDR's playbook. He'll blame Republicans for having caused the market crash in the first place, and so escape blame for the consequences of his policies. It worked for FDR and, so far in this campaign, blaming Republicans and George W. Bush has worked for Mr. Obama.

Democrats draw their political power from trial lawyers, unions, government bureaucrats, environmentalists, and, perhaps, my liberal colleagues in academia. All of these voting blocs seem to favor a larger, more intrusive government. If things proceed as they now appear likely to, we can expect major changes in policies that benefit these groups.

If those of us who favor free markets for the freedom and prosperity they bring are right, the political system may soon put our economy on track for a catastrophe.

Professor Rubin's article, and his academic webpage offer an interesting glimmer into what the legal theory of a McCain administration might look like. In the oped, he blames the New Deal for making the Depression (which he calls a recession) worst, and expresses sympathy for the view that many of its innovations are probably unconstitutional. In his scholarship, Professor Rubin has published papers claiming to show that capital punishment deters homicides and that reducing the generosity of the civil justice system reduces accidents.

As I will explore in subsequent posts, the pro-Obama side in its own way promises a new kind of New Deal that would rely much less on the kinds of agencies and regulations that economists like Professor Rubin have often questioned the efficacy of. The "Renew Deal" (as law professor Orly Lobel cleverly and presciently dubbed it in 2005) will look much different than that served up by FDR (and for which so many may feel nostalgia during the present financial crisis).

Realism Redux?

2008-08-25T07:38:00.000-07:00

Legal Realism, the intellectual movement that arose in a few elite law schools at the turn of the 20th century, was often satirized as offering the view that the most important determinants of the outcome of a legal case was not the facts, or the law, but what the judge ate for breakfast (who came up with that particular metaphor anyway?). By the 1960s much of the Realist opposition to the idea that law was a purely objective result of near scientific analysis had become common sense, but few defended a radical view of legal indeterminacy (a slogan taken up by the not very successful Critical Legal Studies movement). Until today?

According to Charlie Savage's reporting in the NYTimes, a recent study by the Justice Department's inspector general found that judges appointed under the now exposed program of choosing Bush loyalists in the recent administration have significantly lower rates of granting appeals by asylum seekers. A study last year titled Refugee Roulette, which examined a huge sample of immigration appeals concluded that "he facts of a case may be less important in determining whether someone is deported than which judge hears the case."

Risking Rescue on K2

2008-08-05T10:50:00.001-07:00

It looks like another epic mountaineering tragedy is coming to a close, this time on the fearsome peak of K2 (read the coverage by SALMAN MASOOD and TOM RACHMAN in today's NYTimes). While somewhat shorter than Mt. Everest, the Pakastani peak is considered by professional climbers to require far greater technical skill and to be far more dangerous.

This tragedy, comparable in scale to the 1996 storm on Everest made famous by John Krakauer's book, Into Thin Air was the product of capricious nature and predictable human nature. The human part was the drive of the many teams perched high on the mountain to take advantage of a break in the weather to summit the mountain. The large numbers of climbers produced a jam on the narrow and super steep pathway to the summit (actually known as the "bottleneck"), delaying the ascents so that many climbers were descending in near dark conditions (never a good idea at 26,000 feet).

Nature stepped in with the collapse of part of the ominous serac (an overhanging ice ledge) that hangs over the bottleneck. The ice swept several climbers directly to their deaths, and cut the "fixed lines", ropes put in place by climbing porters during the ascent which are vital to allow exhausted climbers to descend after reach the summit. Trapped on the top of the mountain, with no chance of descending, an unknown number of climbers huddled in weather of minus 40 degrees (F). Some clearly died during the night, a few survivors were helped down the next day by rescue climbers, but others, too injured had to wait for helicopter rescues that are very difficult to pull off. Nature again intervened as a snow storm wrapped the peak creating white-out conditions.

While the idea of risking your life to achieve a summit may seem to be the height of individualistic narcissism, I have long been inspired by the counter-balancing imperative to risk your life in the rescue of others that also characterizes high altitude mountaineering. (See my essay the moral hazards and opportunities of mountaineering, Jonathan Simon, Risking Rescue: High Altitude Rescue as Moral Risk and Moral Opportunity, in RISK AND MORALITY 375 (Richard Ericson & Aaron Doyle eds. University of Toronto Press, 2003)

"Civil" Wars

2008-08-05T10:42:00.000-07:00

In a fascinating feature in today's NYTimes, Ethan Bronner succeeds in capturing the incredibly complex interplay of law and war, courts and gun battles, in the three-way civil war we usually abbreviate as the Israel-Palestine conflict.

On the Palestinian side, the intermittent armed violence between Hamas and Fatah factions takes place on top of complex clan alliances.

Any fight here has its origins in earlier violence, so where to begin is problematic. Nonetheless, these particular events began at dawn on Saturday when Hamas forces, which have ruled Gaza for the past year, surrounded the home of the sprawling, well-armed and once powerful Hilles clan, whose chief had been associated with Fatah.

In part, Hamas was looking for the perpetrators of a bombing a week earlier that killed five of its men and a girl, but more broadly it was taking the next step in the consolidation of its power and rule over 1.5 million Palestinians in the coastal Gaza Strip.

On the Israeli side, desire to aid Fatah against Hamas overlays complex legal battles between advocates of greater protection for human rights and advocates of a stronger security state.

So Israel sent about three dozen men back and said the others were on their way. As soon as the men stepped into Gaza, Hamas arrested them. Since human rights groups have recently reported on torture in Gaza, alarms were raised. The Association for Civil Rights in Israel sent an urgent appeal to the Supreme Court demanding that Israel stop returning the men to Gaza.

On Monday morning, the Israeli military announced that it would not send them all to Gaza and that it had persuaded Mr. Abbas to allow many of them into the West Bank. So the civil rights group backed off, replaced by two right-wing activists who petitioned the court to stop the transfer of dangerous men across Israel.

(Our) Joy and (Their) Pain

2008-07-18T12:09:00.000-07:00

The banners said it all. While the Lebanese terrorist organization and political party, Hezbollah, was celebrating the return of several prisoners long held by Israel in exchange for the bodies of two Israeli soldiers captured in the summer of 2006, a giant banner proclaimed: "Israel is shedding tears of pain. Lebanon is shedding tears of joy" (quoted in the Chicago Tribune).

This is the logic of terrorists. Conflict is to be resolved by raining terror and pain on your enemies. You experience joy, in their pain. As Philip Bobbitt discusses in his important new book, Terror and Consent: The Wars for the 21st Century, this logic is proclaimed by nations as well as terrorist movements. Indeed, the same logic was expressed by Isreali's as they celebrated the mass bombardment of Beirut in the 2006 war, and by the United States when it celebrated "shock and awe" over Baghdad in the spring of 2003. In both cases, the results have been more cycles of pain.

The choice facing us is not between states and terrorist organization, but between a logic of terror (our joy, their pain) or a logic of mutual recognition and reconciliation. This is the logic that is today represented by global human rights. That movement alone offers a serious alternative to the logic of terrorism.

Criminology and the War on Terror

2008-07-02T08:35:00.000-07:00

Scott Shane reports in today's New York Times, that harsh interrogation techniques used by the US at Guantanamo and elsewhere during the war on terror, may have been derived from a 1957 article analyzing Chinese methods of inducing false confessions by US POWs in North Korea.

The link raises troubling questions. Why were techniques considered examples of Communist perfidy adopted by America? Why were methods associated with "false confessions" used in an effort to produce true intelligence?

Less salient but intriguing to your jurisprude is the fact that the author of the original article was Albert Biderman, a sociologist and criminologist whose extensive published work on crime rates, policing techniques, and victimization during the 1960s remains widely known to contemporary scholars of criminology and socio-legal studies. (To read the original 1957 article click here).

The high cost of complaining

2008-07-01T07:06:00.000-07:00

Some say that government is remaking itself in manner of the private sector when it comes to being highly responsive to the citizen being "served". If so, the model clearly does not fit well in the criminal courts, at least not for the accused. In California this week a judge sentenced man to over a millenium in prison (1,330 years to be precise) for 11 felony counts of lewd acts with a child (he had molested several girls between 1999 and 2005). While his sentence was made longer through the use of multiple victim enhancements that are part of the armory of recidivist laws prosecutors have available, perhaps his most costly "crime" was his behavior in court.

According to radio station KTLA, as reprinted in the LATimes:

Today a judge sentenced Williams to a record-breaking, 1,330-year prison term after the defendant verbally attacked the credibility of his former attorney, the prosecutor and the judge.
Williams, whose emotional displays ranged from pounding on the table to crying, spent more than 15 minutes criticizing the way his trial was handled.

Empirical Lawyering: Community Values and Google Searches

2008-06-24T07:12:00.000-07:00

Ever since the Supreme Court's landmark 1957 ruling in Roth v. United States, obscenity trials involve the question of "contemporary community standards." As Justice Brennan wrote in his majority decision:

However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. ...It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.

The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Some American courts adopted this standard but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.

Lawyers in obscenity cases have long turned to social scientists to try and answer the question of just what does offend "contemporary community standards." My father, William Simon (1930-2000), a sociologist who worked at the Kinsey Institute and studied sexual behavior, did his share of testifying as an expert in such cases.

Today lawyers are getting directly into the game of empirical research, turning to google searches as a handy measure of just what folks in the actual community where the case is being brought, might or might not consider offensive. As described in reporting by by Matt Risen in today's New York Times, the online search engine has become a medium for lawyers to pursue the question of community standards with far greater precision than in the past.

In the trial of a pornographic Web site operator, the defense plans to show that residents of Pensacola are more likely to use Google to search for terms like “orgy” than for “apple pie” or “watermelon.” The publicly accessible data is vague in that it does not specify how many people are searching for the terms, just their relative popularity over time. But the defense lawyer, Lawrence Walters, is arguing that the evidence is sufficient to demonstrate that interest in the sexual subjects exceeds that of more mainstream topics — and that by extension, the sexual material distributed by his client is not outside the norm.

Liberty and Security can be Reconciled

2008-06-13T08:45:00.000-07:00

That is the best rhetorical take away point from Justice Anthony Kennedy's majority opinion in BOUMEDIENE v. BUSH No. 06–1195, decided yesterday 5-4.

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part
of that law.

Yes the constitution survives in extraordinary times, but if its to be a tool to surviving those times there has to be a positive role of law in creating security. It is here that Justice Kennedy moves strongly in a direction that has been emphasized by human rights lawyers for some time. Due process is security.

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief
derives.

The Safety Net: Why are we still losing the strands?

2008-06-10T06:59:00.000-07:00

One of the background themes in the 2008 Presidential (a theme providing significant help to the Democrats) is the growing national consciousness of how frail the metaphoric "safety net" is that protects ordinary Americans against both routine and extraordinary hazards.

Since the late 1970s a popular revolt against taxes has been promoted on the ground that government wastes your money giving people who don't deserve it, help they don't need. Perhaps the flooding of New Orleans when the levy system failed and government at all levels abandoned the people marks the point where denial was no longer possible.

Yet in the midst of this growing consciousness, and in the most progressive of American cities we are still losing vital pieces of the remaining safety net. Case in point is the St. Anthony Foundation's Marian Residence for Women in San Francisco. As reported in today's SFChron by Marisa Lagos, residence, providing shelter and transition housing for homeless women, is about to close in the face of what the Foundation expects will be the severe challenge of budget cuts and increasing demand.

The shelter opened in 1983, as the first great recession of the Reagan era (and the steepest drop since the 30s) rocked America and revealed the visible homelessness that has been a feature of our urban streets ever since. Resources like the Marian residences are rare. Women, who make up a relatively small fraction of the homeless population, are often the most vulnerable in ordinary shelters. Trapped by poverty, domestic violence, and the appeals of drug escapism, such women increasingly end up being pulled into our jail and prison systems.

According to Lagos this gem of a program is being slashed not because need for it is declining, but because its likely to grow;

The program is just the latest victim in a long line of social programs being cut across the nation because of the worsening economy and the worldwide food shortage.

Francis Aviani, a spokeswoman for the 57-year-old St. Anthony Foundation, said it was a difficult decision for the nonprofit's leaders. By next spring, St. Anthony's also will shutter and sell the Farm, an organic dairy farm in Petaluma that is run by 42 men recovering from drug and alcohol addiction.

St. Anthony's board of directors, faced with more demand, higher food prices and other rising costs, decided in April to shutter Marian Residence and the Farm so the foundation can focus on its core mission - offering basic services such as meals and clothing. "Marian Residence is a very beautiful program," Aviani said, "but it also takes money to run a program of that caliber. We have to brace ourselves for what is around the corner."

Resources like the Marian center stand at the center of a complex web of social problems including mental illness, homelessness, violence against women, over incarceration. If you want to make progress on any of those issues you need to be multiplying the number of Marian centers, not slashing them.

Is it Multiculturalism or just Liberalism?

2008-06-09T11:23:00.000-07:00

Elain Ganley of the AP reported last week on a controversy in France over a judge's decision to nullify a marriage base on the wife's lack of virginity.

The bride said she was a virgin. When her new husband discovered that was a lie, he went to court to annul the marriage - and a French judge agreed.

The ruling ending the Muslim couple's union has stunned France and raised concerns the country's much-cherished secular values are losing ground to cultural traditions from its fast-growing immigrant communities.

Much of the controversy seems to arise from the implication that a court in this avowedly secularist country would seem to be giving the force of law to a Muslim social norm. However, the judge seems to have been seeking to apply the spirit of the 19th century French Civil Code.

Article 180 of the Civil Code states that when a couple enters into a marriage, if the "essential qualities" of a spouse are misrepresented, then "the other spouse can seek the nullity of the marriage." Past examples of marriages that were annulled include a husband found to be impotent and a wife who was a prostitute,...

So where does classic (and advanced) liberalism end and multiculturalism (and legal pluralism) begin?

Prop 13: From Public Wealth to Private Excess

2008-06-06T07:34:00.000-07:00

When I arrived in California as an 18 year old "Cal" freshman, from my home in Chicago, I could not believe how prosperous and dynamic the state appeared. The landscape was cluttered with gems of the built (and unbuilt!). Situated in the urban metropolis created by San Francisco, San Jose, Oakland, and Berkeley (all of which seemed less tired then my hometown of Chicago), I saw amazing infrastructure, great universities, endless freeways, gleaming rapid transit systems. Beyond the city, an archipelago of jewel like parks beckoned.

At the end of my first year, on June 6, 1978, California voters enacted Proposition 13, the now famous tax cutting initiative that permanently limited the state's ability to raise funds through the property tax (taxes were rolled back slightly and then capped at 2% growth no matter how high the property values soared until the property actually changed hands). [Read John Wildermuth's reporting on the 30 year anniversary in the SFChron) It was like a switch being thrown. Nothing sudden of course, but over the next thirty years that robust public California would shrivel and shrink (accept prisons but thats a story for my other blog). Our public infrastructure, whether freeways or universities, has at best remained frozen (only 1 new UC in 40 years).

The state has not become poorer in aggregate, but more of that money remains in private hands (just as intended by the anti-tax crusaders). The result is a landscape brimming with over-built houses, endless big box stores, and giant SUVs. Thirty years later the present is not only more garish, but the the future economy we are creating is one based on low wage service and construction jobs.

"A New World of Law":JFK's Words in Context

2008-05-24T10:14:00.000-07:00

The increasingly heated debate over foreign policy between John McCain and Barack Obama has refocused attention on a few words from JFK's inspiring inaugural address of January 20, 1961: "Let us never negotiate out of fear. But let us never fear to negotiate" [for the complete online text].

It is unfortunate that few commentators go on to JFK's fuller elaboration of the point.

Let both sides explore what problems unite us instead of belaboring those problems which divide us.

Let both sides, for the first time, formulate serious and precise proposals for the inspection and control of arms—and bring the absolute power to destroy other nations under the absolute control of all nations.

Let both sides seek to invoke the wonders of science instead of its terrors. Together let us explore the stars, conquer the deserts, eradicate disease, tap the ocean depths, and encourage the arts and commerce.

Let both sides unite to heed in all corners of the earth the command of Isaiah—to "undo the heavy burdens ... and to let the oppressed go free."

And if a beachhead of cooperation may push back the jungle of suspicion, let both sides join in creating a new endeavor, not a new balance of power, but a new world of law, where the strong are just and the weak secure and the peace preserved.

There is much to consider here for our very different foreign policy challenges, but none more important, (or less quoted to my knowledge) the the amazing metaphor of "a beachhead of cooperation," invoking a military invasion, but here one pushing back not an army but a "jungle of suspicion" toward a world primarily defined by the rule of "law."

Michael Rossman, FSM Hero dies at 68

2008-05-21T15:59:00.000-07:00

Photo credit: Paul Fusco, 1964

One of my personal heroes, Berkeley Free Speech Movement leader and lifetime community activist Michael Rossman died in Berkeley last week at the age of 68 from Leukemia (read the NYTimes obituary by Margalit Fox). The handsome and charismatic Berkeley graduate student looked a bit like Jack Kerouac. While never reaching quite the height of rhetorical power that his colleague Mario Savio achieved, Rossman was a stable "everyman" who spent much of the last three decades teaching science to Berkeley elementary school students.

Like other '60s activists, Rossman had family roots in the "old left." His father, who moved the family to Northern California in the 1950s, was the editor of the Labor Herald, the newspaper of California's Congress of Industrial Organizations.

Crime and Contracts Up, Debt, Property, Corporations, Public Law and Family Law Down, Torts Even

2008-05-19T19:02:00.000-07:00

Thats the take away from a nice piece of empirical work conducted by Kritzer, Brace, Hall, and Boyea, "The Business of State Supreme Courts, Revisited," Journal of Empirical Legal Studies, Vol. 4, Issue 2, 427-439 (July 2007). The research updated work led by JSP's own Bob Kagan, specifically, "The Evolution of State Supreme Courts, 1870-1970," (with Bliss Cartwright, Lawrence M. Friedman, and Stanton Wheeler." Stanford Law Review, Vol. 30, p.121. Kagan and his colleagues, showed that the century had seen tremendous change, with a steep decline in business related litigation, and real property disputes, and an increase in torts, criminal law, public law, family law, and estates.

The recent research by Herbert Kritzer and his colleagues, documents that this long term decline in business litigation has reversed for at least one kind of dispute, non-debt contracts. It also shows that the growth areas of the 1970s have all reversed save for one, criminal law.

As noted by Guido Calabresi in a recent lecture, tort law thrives in a society becoming more social democratic, contracts in a society becoming more liberal (in the deregulatory sense) and criminal law in a society becoming more collectivist. Our new order, one where both contracts and crimes rise in their prominence (and state supreme court dockets are only one measure of that), requires further theorization (although my Governing through Crime, offers a theory of the crime part).

Less Torts, More Contracts and Crimes?

2008-05-01T08:33:00.001-07:00

I'm not referring to actual events, but to the modes of legal governance we bring to the always complex stew of relationships and conflicts in American society. At a provocative lecture this week at Berkeley's Law and Economics workshop, legendary legal theorist and 2nd Circuit Judge, Guido Calabresi outlined an intriguing theory of how modes of legal governance (my term, not his) vary with the relative political economic organization of society. Calabresi, citing Leon Lipson, suggested a historical explanation for the rise of tort law in the mid-20th century US. The more social-democratic the policies of a society, the more tort law. In contrast, as a society turns more individualistic it embraces more contract law. As a society turns more collectivist, it embraces more criminal law. Tort law, and its adjunct like workers compensation, constitute a middle ground where individual parties receive compensation based on collective values.

Judge Calabresi went on to declare tort law alive and well. But in retrospect, we can see that tort law and other forms of loss spreading and compensation like insurance, has come increasingly under attack by legislation and in the courts over the last several decades. When Calabresi's famous book, The Cost of Accidents, was published in 1970, social democratic policies in the US were at their high point. Since then we have experienced a considerable turn back to market individualism (often identified by the term "neo-liberalism"). Consistent with the Calabresi/Lipson thesis, we have seen a resurgence of contract law as a form of social ordering (think how often one clicks such an agreement), which was being declared almost "dead" in the 1970s.

Yet if our society is becoming more individualistic, how do we explain that criminal law (that agent of collectivism) is also on the rise? (For the claim that it is, see my book, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (OUP 2007)).

From Gitmo to Mass Incarceration

2008-04-26T08:48:00.000-07:00

In the latest example of the US media treating our war on terror practices as having no relationship to our routine penal policies, the New York Times carries an article by William Glaberson that powerfully describes the mental destruction of terror suspect (and famed litigant) Salim Hamdan:

Next month, Salim Ahmed Hamdan, a Yemeni who was once a driver for Osama bin Laden, could become the first detainee to be tried for war crimes in Guantánamo Bay, Cuba. By now, he should be busily working on his defense.

But his lawyers say he cannot. They say Mr. Hamdan has essentially been driven crazy by solitary confinement in an 8-foot-by-12-foot cell where he spends at least 22 hours a day, goes to the bathroom and eats all his meals. His defense team says he is suicidal, hears voices, has flashbacks, talks to himself and says the restrictions of Guantánamo “boil his mind.”

“He will shout at us,” said his military defense lawyer, Lt. Cmdr. Brian L. Mizer. “He will bang his fists on the table.”

His lawyers have asked a military judge to stop his case until Mr. Hamdan is placed in less restrictive conditions at Guantánamo, saying he cannot get a fair trial if he cannot focus on defending himself. The judge is to hear arguments as soon as Monday on whether he has the power to consider the claim.

Critics have long asserted that Guantánamo’s climate-controlled isolation is a breeding ground for madness. But turning that into a legal claim marks a new stage for the military commissions at Guantánamo. As military prosecutors push to get trials under way, they are being met with challenges not just to the charges, but to Guantánamo itself.

Pentagon officials say that Guantánamo holds dangerous men humanely and that there is no unusual quantity of mental illness there. Guantánamo, a military spokeswoman said, does not have solitary confinement, only “single-occupancy cells.”

Unmentioned in the article is that tens of thousands of US prisoners are currently serving time in so called "supermax" prisons whose routine regime involves precisely the same components of 23 hour a day lock down imprisonment.

That the result of this kind of imprisonment can be mental degeneration by both inmates and staff (and resulting barbaric violence) has been well established for over a decade, at least since the landmark Madrid v. Gomez decision involved California's Pelican Bay prison.

Olympic Torch Farce: San Francisco joins the Culture of Control

2008-04-10T06:56:00.000-07:00

Watching Tuesdays shameful display of police over-reaching by the San Francisco police and mayor in their effort to assure that that Olympic torch "run" would not be disrupted by protesters, I could not help but reflect back on the far more violent police overreaching in Chicago 40 years ago this summer at the Democratic National Convention in July of 1968.

In both cases, mayors and their police decided that civic pride over the ownership of a largely symbolic ritual required maximum effort to assure that ordinary people could neither protest nor participate in the events. In both cases extremist demonstrators were blamed. (Read the SFChronicle coverage)

In SF, fortunately, the violence of Chicago was replaced by comedic gestures worthy of an Opera or a BBC satire on overbearing authority. "Runners" who were supposed to run down the City's lovely Embarcadero Boulevard (a "gift" of the '89 Loma Prieta Quake that required the tearing down of the Embarcadero expressway), were whisked by bus to ugly Geary Blvd, where they ran with a phalanx of police escorts by surprised residents. The stirring closing was confined to the SF Airport.

In China today, and Chicago of '68 (Chairman Mao and Chairman Dailey being roughly equivalent in the arts of power), this kind of orchestration would reflect the abiding demand of the Communist (or Chicago Democratic) Party that any show of protest is a form of a sedition, to be punished harshly.

In SF, repression comes in the name of "safety," with Mayor Newsome and Çhief Fong, guaranteeing the press that honoring the scheduled course of the "run" would have necessitated a violent show of force by the SFPD, in which case everyone was really better off with the Disney version they orchestrated, for what could be more sacred in America today then "safety."

The fact that the City has a transit system with a casualty record worthy of Murder Inc. should not distract us from the sincerity with which safety is reduced to the problem of crime and disorder. What David Garland brilliantly characterized as our "Culture of Control" has made "safety" from crime and disorder, the fundamental mandate of our democracy.

The Law at the End of the Law

2008-04-08T18:14:00.000-07:00

In Governing through Crime I trace the ways that the war on crime transformed American democracy long before 9/11 or George Bush's war on the Constitution, errr, I mean terror. With a vision of citizenship reduced to protection from violent crime, law makers in Congress and the state legislatures, have responded for thirty years with ever more generous helpings of executive discretion. To be sure that due process values did not resist this delegation, Congress has increasingly shackled the federal courts in their ability to question executive power in the field of crime.

In his Sidebar column in Tuesday's NYTimes, Adam Liptak provides a striking example of what one might call the law of the victim (Megan's Law, etc.), in this case, the ultimate crime law, the law to build a wall on the Mexican border. In what may be the most sweeping exemption from federal laws ever dealt in one act, Congress gave the Secretary of Homeland Security authority to suspend any federal law that interferes with the building of the wall.

While 9/11 is the usual culprit noted to explain these developments by both critics and apologists, the genetic markers of the war on crime are not far below the surface. Asked to defend this striking reduction in the protection of federal laws (including labor, environment, discrimination, etc.):

Mr. Chertoff explained the reasoning behind the law in a news release last week. “Criminal activity at the border,” he said, “does not stop for endless debate or protracted litigation.”

Courts and the Contours of Multicultural Societies

2008-02-12T05:59:00.000-08:00

Steve Bell 2008 from the Guardian

In a remarkable speech last week to the Royal Courts of Justice in the UK, the Most Rev. Rowan Williams, the Archbishop of Canterbury suggested that British courts should suggest some aspects of Muslim Shariah law. The Archbishop's comments have spurred a wave of harsh criticism of the Most Rev. Rowan, including cartoons of him blessing executions, amputations, and other severe features of Muslim legal practice in some countries. As the Archbishop was at pains to stress in some follow up remarks this week (reported by John F. Burns in the NYTimes)he had in mind only aspects of family law, presumably including such aspects as divorce, alimony, child custody, etc. and he noted that Orthodox Jews in the UK often refer such disputes to Rabbinic Courts (Question: but do UK secular courts enforce those Rabbinic judgments?)

The Archbishop's remarks raise some fascinating questions about the relationship of law and courts in particular, to religion in multicultural societies. In teaching criminal law over the years, my students and I have always noted that way the overt presence of religious themes and self confident moral judgment (sometimes seemingly blind to human limitations) in older common law grounded British cases. But of course, there is Church of England grounded in a sovereign who was also head of the religion. When you interpret law in such a mono-cultural setting (of course there were Catholics, Jews, and Muslims in 19th Century Britain but they were largely ignored for these purposes) law can be create a body of jurisprudence that seems moral and objective.

In attempting to speak for Britain's 2.5 million Muslims, the Most Rev. Rowan manages to reflect both the reality of the UK's contemporary cultural diversity, and the clumsy fit that has with such institutions as the Church he heads, or the monarch he serves.

But in recognizing how vital a role courts can play in producing social integration amidst cultural diversity, the Archbishop of Canterbury was picking up on a theme recently sounded by socio-legal scholars, i.e., that the organizational flexibility of courts makes them effective institutions to secure law's legitimacy without the rigidity of a monocultural power structure. (See for example the work of Professor Cindy Skach of Harvard on hybrid French and Kadi courts on Mayotte).

Reflections in Gaza: The Contagion of Violence and Lawlessness

2008-01-24T09:27:00.000-08:00

President Bush wasn't wrong to see the Middle-East as the place where a world hungering for the rule of law and enthralled with suffering and violence would decide its fate. Sadly his misguided Iraq adventure has done little to spread the rule of law while unleashing even more suffering and violence.

But Iraq was always going to be a violent transition to democracy (at best). Had George Bush, the decider, decided to spend vast sums of American treasure and put our national prestige on the line, he might have focused on the impoverished and largely ungoverned but tiny swath of land called the Gaza strip. As its name might imply, this territory has suffered from a kind of anti-sovereignty as nations seek to abandon it in any way they can (Israel tried to give it back to Egypt along with Sinai in 1982 and eventually abandoned it altogether in 2005, even without a separation agreement). After the terrorist organization Hamas seized power their last year, the Palestinian Authority of President Mahmoud Abas, abandoned it as well.

As thousands of Gazans streamed across the border to Egypt yesterday (read Steve Erlanger's reporting in the NYTimes), after Hamas had its men knock a large opening in the Israeli built fence along the border with Egypt, it was hard not to cheer for the shear humanity of people who needed cooking oil, gasoline, sheep, and yes even cigarettes, streaming across a hole torn into the fabric of sovereignty and in defiance of the utter paralysis of all the functioning governments in the area.

At the same time, the chaotic stream of people (and the ugly scenes of a day earlier when Egyptian border police had turned back a crowd of women seeking to push their way through a far smaller breach in the fence) the hole is a very sorry substitute for the promise of law and enforceable respect for human rights.

A Socio-Legal Road Map?

2008-01-10T13:05:00.002-08:00

As President Bush visits Israel and Palestine this week, promoting his administration's late blooming peace initiative for that region, one cannot help but sigh at the lost possibilities. Had the President turned from his route of the Taliban in Afghanistan in 2002, to insist that the free world show how democracies can reconcile historically complex and ongoing tragedies like the 40 year old Palestinian refugee crisis,---he might be visiting Jerusalem to watch the swearing in of a sovereign Palestinian President. For a portion of the treasure poured into operation quagmire in Iraq, a new Palestinian economy might be sending shock waves of growth through moribund economies of Syria, Jordon, and Egypt; while giving Lebanon and Gaza reasons to compete for global financial attention rather than the sort that is lavished on the cruelest civil wars.

These dreams await another President, if they are ever to arrive. But while President Bush is there, and recognizing the weakness at the top of all three national leaderships (US, Israel, Palestine), he could recognize and reward the most promising grassroots developments supporting a peace process on both sides. Many of these, in the form of NGOs, cluster around the Israeli legal system.

Some of the most interesting, are using techniques of empirical socio-legal studies to probe the realities of the occupation. As UCSB socio-legal scholar, Lisa Hajjar showed in her landmark study of the military occupation courts, the operation of military occupation under a constitutional legal order creates powerful contradictions, producing important room for maneuver by those who would keep the pressure on the political establishments of both societies.

One Israeli human rights organization, Yesh Din, has just published a report that suggests due process in the occupation courts is being systematically diminished. Fascinatingly, the Israeli government's response is largely pitched in terms of a critique of the report's methodology!

Ironically, the Israeli Occupation Courts may the kind of institution that produces both repression and encouragement to the Palestinians. Socio-legal research, by holding sovereign authorities on both sides to real standards of transparency and public accountability, may help leverage that contradiction for peace.

Our Bodies, Our Laws

2008-01-05T11:58:00.000-08:00

How does law grasp us as subjects, as bodies, as minds? Food critic and Berkeley journalism professor Michael Pollan provides us with a striking example in his brilliant new book on contemporary American food culture titled, In Defense of Food: An Eater's Manifesto (Penguin Press). According to Pollan, the most pernicious trend in American food norms was the emergence of "nutritionism,"which is an ideology that encourages humans to understand their need for food as a pursuit of an optimal mix of underlying macro (fat, protein, carbs) and micro (vitamins) nutriments.

This is a startling and persuasive thesis that flips on its head most of our usual assumptions about the growth of scientific knowledge and its role in guiding our lifestyles. Pollan, a professor of journalism, turns out to be an able socio-legal scholar as well, excavating the history of food regulation from the 1938 Food, Drug, and Cosmetic Act (which among other things required imitation foods like margarine to be clearly labeled as such) to the 1973 FDA regulations that ended this ban, and substituted the modern regime of food nutrition labeling (modeled above by the FDA's own "Label Man").

I have long been enthralled by these food labels as a powerful example of how law enables as well as constrains. Middle aged and prone toward middle spread, I have long relied on those bright little quadrangles to help me avoid consuming hundreds of calories of bottled beverages whose front labels screamed out hand-crafted healthiness! Surely this is an example of law creating a circuit of freedom in producing self-control and choice. But if Pollan is right, it also marks the submission to a deeper way of understanding and acting on one's body.

What the World Needs Now, Is Law, Just Law

2007-12-14T14:30:00.001-08:00

In the midst of this winter of our discontent from Iraq to the foreclosures it is heartening to see evidence in the midst of some of the world's most troubled spots of a strong and popular devotion to law. Consider the case of Pakistan, where a growing body of middle class citizens are taking the streets in defiance of the Musharraf regime and its state of emergency, to demand the restoration of an independent judiciary. (Read an AP story printed in the NYT). In the midst of a nation torn between Islamists and a pro-US government devoted to the war on terror, the rule of law is emerging as a third force.

Consider also the case of Venezuela. There, in a surprise, socialist strong man Hugo Chavez lost a significant portion of his following among the poor, enough to lose a close vote on constitutional reforms that would have greatly expanded his power to rework Venezuela's Constitution. Many of his supporters seemed to feel that even though they like his policies, they did not want to see him unrestrained by the burdens of constitutional government.

As we approach Christmas and its promise of universal love, perhaps a more realistic goal for our time is to strive for universal law.

Supreme Court Watch: Empirical is the New Reasonable

2007-12-12T11:39:00.001-08:00

This week's 7-2 decision by the United States Supreme Court marked another significant step in the Court's recent effort to remake federal criminal sentencing. At issue in Kimbrough v. United States, No. 06-6330, decided December 10, 2007,was whether a Federal District Court was "reasonable" in declining to apply the federal sentencing guideline's infamous 100-1 weight ratio of crack to powder cocaine in sentencing a drug trafficker dealing in crack.

The guideline for crack versus powder was set on the basis of a law passed by Congress in 1986, rather than through the United States Sentencing Commission, which generally establishes guidelines subject to Congressional approval. Here the Commission actually tried several times to reduce or eliminate the differential, only to be rebuffed in one instance and ignored more recently.

Writing for a 7-2 majority, Justice Ruth Bader Ginsburg contrasted Congress' harsh 100 to 1 rule with the methodology that the Sentencing Commission generally uses:

While Congress was considering adoption of the 1986
Act, the Sentencing Commission was engaged in formulating
the Sentencing Guidelines.7 In the main, the Commission
developed Guidelines sentences using an empirical
approach based on data about past sentencing practices,
including 10,000 presentence investigation reports.

In contrast:

The Commission did not use this empirical approach in
developing the Guidelines sentences for drug-trafficking
offenses. Instead, it employed the 1986 Act’s weightdriven
scheme.

The Court seemed to be contrasting the Commission's "empirical" method, with Congress political judgment about the seriousness of crack cocaine. The use of empirical here seems a bit problematic. After all, the Commission studied not the crack problem but the past behavior of federal judges. Their "empirical" results thus embody the collective judgment of the federal judiciary. Its not clear why that judgment should seem more rational than that of Congress on an issue of policy.

Of course the narrow question before the Court was only whether the District Judge was acting reasonably in rejecting the guideline. The Court seems to suggest that when it comes to rejecting guidelines, federal judges have more discretion when the guideline is not supported by empirical research. In short, empirical good, political bad.

Knowledge/Power: Empirical Research and the Challenge to Hierarchies in Law Schools and the Legal Profession

2007-10-29T07:10:00.000-07:00

Adam Liptak's "Sidebar column" in the New York Times this morning (requires TimesSelect) provides a striking example of how the increasing integration of empirical research about the legal profession into law schools is reversing the flow of influence between students and the law firm world (at least at the high end of both). Students at Stanford Law School, advised by Professor Michele Landis Dauber (a socio-legal scholar with a PhD in sociology) are ranking law firms with letter grades based on the diversity of their lawyers.

Law students are usually expected to provide firms they are interviewing at with copies of their grades. Now they will be able to reverse the knowledge/power game by handing firm lawyers their own firm grade. With coverage in major papers like the New York Times and LA Times, firms are not likely to laugh it off (consider how powerful the rankings created by US News and World Report have been in shaping law school behavior).

A generation ago (1983), Professor Duncan Kennedy of the Harvard Law School presented a brilliant critique/send up of the elite law school (Legal Education and the Reproduction of Hierarchy) as a place where education was subordinated (and deformed) to the need of the firms for rigorous ranking of their products (lawyers). As empirical methods and research begins to finally cut into the law school curriculum and student consciousness, the possibilities for many such inversions of power and knowledge may become possible.

The Employment Non-Discrimination Act and the Age of identity Politics

2007-10-12T06:55:00.000-07:00

The struggle around the Employment Non-Discrimination Act in Congress is fascinating. The Act, sponsored by Rep. Barney Frank and Speaker Nancy Pelosi (among others), the bill would create workplace protection against discrimination for the first time ever for gay men and lesbian women. Nobody expects the bill to become law under President Bush. But there is a clear majority in Congress to pass the bill so long as it does not contain language designed to include protection for transsexual and transgender people.

The politics is discussed in a "congressional memo" by David Herszenhorn in today's NYT. Herszenhorn emphasizes the way in which the Democratic Party's liberal base is causing them problems (funny it didn't seem to hurt the Republican Party to appease their base in 1998 by impeaching President Clinton). Be that as it may, for socio-legal scholars the struggle is laden with significance. Here are a few vectors that come to mind:

This is one of those moments, think 1964 or 1965 for the African American civil rights movement, when a social movement on behalf of a much reviled minority finally gathers enough force to seek relief from the most thoroughly majoritarian branches of our government.

Congress, of course, is not an alternative to courts. If a second President Clinton (or Obama, or Edwards) signs the Employment Non-Discrimination Act of 2009, it will create new possibilities for individuals to name, blame, and claim their way into court.

The fact that some conservatives who would vote for the bill to protect gay men and lesbian women but drop off if you add in transsexual and transgender people is a nice piece of comparative data in the arbitrariness of cultural value (consider that the religiously zealous Iranian regime welcomes transsexuals while hanging gays).

Equally fascinating is the loyalty of gay and lesbian activists and their major organizations are to transsexual and transgender people. They clearly share a history of discrimination but they also differ in their positive identities. Gay men and lesbian women, to the extent that this becomes a dominant feature of their political identity, are gathered on the basis of their sexual orientation toward members of the same sex. Transsexual and transgender people do not "violate" the cultural norms about the gender of the people they should "love" and "desire", but rather norms about the public presentation of people by gender. We can describe members of all four subgroups as deviating from "gender" norms, but this seems to capture only a narrow band of their group identity.

If the victories of the civil rights movement in 64 and 65 signaled the age of identity politics, the activists pressuring Barney Frank may be harbingers of a new age of post-identity politics.

Lingering Summer Dreams: Berlin and the Future of Socio-Legal Studies

2007-09-11T07:13:00.000-07:00

Its been more then a month since the close of the Joint Annual Meeting of the Law and Society Association (LSA) and the Research Committee on Sociology of Law (RCSL of ISA) at Humboldt University in Berlin but my imagination remains lingering on Unter des Lindens, the broad boulevard of 18th Century Berlin that was also the main street of the former Democratic Republic (East Germany). The meeting was an extraordinary success bringing together the largest and most international group of participants ever for a Law & Society meeting domestic or abroad. As a long time member of the LSA, which despite efforts to internationalize remains largely North American and largely US, it was stunning to be in so many sessions where US participants were a minority (even if a disproportionately large one). The extraordinary range of scholarship and in some cases the grandeur of the 18th century lecture halls of old Humboldt (you could imagine Marx slumbering in back of one of Hegel's lectures on a hot summer day) seemed to influence the US scholars I heard who were less inclined to speak of "the" Supreme Court or Congress as if all audiences for socio-legal studies lived in the US. Hearing scholars from countries almost never represented at US meetings, like from Palestine and Iran, also convinced me that a global discourse of socio-legal studies now exists, a robust empiricism that is critical but optimistic about law.

Berlin itself seemed a canvass of those possibilities. The new architecture of reunification is startling and reassuring. The massive new chancellery rises above the river, but its cupola is glass and inside you can see individual people working their way up a circular staircase. The Brandenburg Tor, symbol of Berlin as an Imperial capital, has the Holocaust memorial next door. The city itself, no longer cut by walls and police towers, seemed to be truly a city of law, teeming streets of strangers, remarkably safe with little evidence of either crime or police repression.

Congratulations to my colleague Malcolm Feeley, whose two year presidency of the Law & Society Association was capped by this extraordinary meeting and city

How Do You Build a Nation of Law: One Fortified Court at a Time

2007-08-02T08:15:00.000-07:00

A fascinating story by Michael Gordon in the July 26th edition of the New York Times details the efforts of the American occupation authorities to create a series of "legal green zones" in this country wracked with terror and violence.

Touring the Rhine Valley on a family vacation this summer, I feel like I've seen it all before. Standing on hillsides throughout this region are ruins of castles that once served very much the same function. Inside each little fortified position, administrative functions including courts took hold. While the great expanse of land remained ungovernable by central authorities, each castle represented a little space of law in which those who chose to bring their cases, or were seized and brought there, could experience the law in its (limited) majesty.

One thousand years later Europe truly is a land of law where you can drive from Germany to France with no border guards and a sense that one's business and pleasure is well respected throughout without the constant presence of police or soldiers. Its an attractive model and one that has apparently been endorsed by General Petraeus:

The notion of helping the Iraqis establish protected legal enclaves is an important element of the American campaign plan prepared by Gen. David H. Petraeus and Ryan C. Crocker, the American ambassador to Iraq. The hope is that a network of legal complexes will be established in other parts of Iraq, starting with the capital of Anbar Province, Ramadi, where work is expected to begin in the next several months.

Based on this analogy, however, we can expect American forces to begin withdrawing in 3007.

What do PhDs Bring to the Teaching of Law?

2007-07-10T15:53:00.000-07:00

Changes in the hiring approaches of prestigious law schools have opened the door to two apparently quite different sorts of teaching candidates. One is in the direction of more JD/PhD candidates who come to the appointments process with a substantial research project already accomplished. The other is toward lawyers with substantial practice experience, especially in rapidly changing and innovative practice fields.

I would argue that both trends actually point in the same direction, i.e., toward preparing JD students for a rapidly changing legal field that is constantly infused with a remarkably heterogeneous panoply of authoritative knowledges. In the following post on PrawfsBlawg I take up the case of Phds.

The PHD and the Path to Law School Teaching

2007-07-09T15:15:00.000-07:00

For reasons I will elaborate in future posts, I think a PhD in a social science, or humanities, or interdisciplinary program is an excellent pathway for law school teaching with benefits for the both the scholarship and the teaching they will produce. But in today's post I want to defend the current state of uncertainty over what credentials law professors should have against any tendency to follow the arts and sciences departments into requiring a PhD. Indeed, I offer the provocative (to many) suggestion that even arts & sciences departments might be better if they ceased making the PhD an absolute requirement for an academic appointment.

For more of this post, and the comments it has elicited, please follow this link to my post on PrawfsBlawg

Does the Rule of Law Require Complete Control of Borders?

2007-06-30T15:41:00.000-07:00

The recent battle over immigration reform has revealed a profound anxiety among many portions of the American polity over the apparent porousness of the border. On the right vigilantes self-styled as "minute men" have taken to patrolling portions of the Mexican border. On the left, Paul Starr recently wrote in American Prospect that:

Conservatives have a legitimate point when they say that offering citizenship to people who have come here illegally creates an incentive for others to violate the law. The only way to address that concern is to adopt serious measures for enforcement, including, for example, biometric identity cards and serious penalties for employers who hire illegal workers. These are crucial for making a new law successful where the 1986 immigration reform failed.

Behind both perspectives is a view of the rule of law as anchored in sovereignty understood as the uniform exercise of jurisdiction operating continuously and without gaps over an entire territory. From this perspective, the inability to assure that all those who enter the United States do so with legal authorization undermines the whole structure of legal accountability on which political and civil relations depend.

Law and society research from its inception has been all about documenting the incompleteness of jurisdiction, the places, not just on the border but all over society, where action takes place outside the requirements of the law. Of course, such research can do little to allay the anxiety created by the incompleteness of sovereignty, indeed it can only contribute to that anxiety.

There is, however, another model of law and power which might be seen as an alternative to the model of a uniform jurisdiction operating continuously and completely across an entire territory. The alternative is the model of towns (or cities) and courts. In this model, courts operate in towns and cities and provide law for those who come (or are brought) before them. Drawn by the social and economic engines of urban life, people bring their disputes and problems to courts.

In this model, the existence of an imperfectly controlled border is not troubling. Law is sustained through the actual dispute and problem solving capacity of courts which in turn draw on the intellectual and practical creativity of the city to produce effective results.

While the model of towns and their courts predated the formation of territorial sovereignty by decades, they also became integral to the constitution and operation of territorial sovereignties, and in particular that of the modern nation state.

It is interesting that the last time the US experienced massive immigration, in the period from 1870 through 1920, much of the governmental innovation developed to cope with the resulting social challenges and popular anxieties took the form of new urban based courts (see, Michael Willrich, City of Courts: Socializing Justice in Progressive Era Chicago (Cambridge, 2003)

It might be productive to consider whether a model of cities and courts could do more to alleviate the practical problems and popular anxieties being produced by the renewal of very high immigration rates to the United States since the 1980s (both legal and illegal). Already the formation of a wide range of new "problem solving" or "collaborative" courts around issues like drugs, domestic violence, and mental or behavior health suggests a promising beginning.

Facts or Narratives: What influences policy?

2007-06-03T17:34:00.001-07:00

I'm participating this weekend in a fascinating discussion about race and the criminal justice system with a number of other scholars of race and/or crime as well as members of the Open Society Institute's "After Crime Initiative" and the Aspen Institute's "Roundtable on Community Change." We've been talking about how mass imprisonment has become interwoven with both governance and race-making in American society. An interesting issue that has emerged is whether social science is part of the solution or part of the problem. Can facts change policies if they are not embedded in effective narratives (stories)? Are their more or less effective narratives, or only narratives that fit or don't fit the dominant political interests in society? The answers are mostly contested so far, but the questions are central to how reinvigorated empirical socio-legal studies movement relates to the increasingly complicated policy audience.

More to come...

Why No Other JSP's

2007-05-17T11:26:00.000-07:00

Since its founding in 1978, JSP's version of interdisciplinary, policy relevant but theoretically driven scholarship has become far more central to legal knowledge production in US Law Schools and elsewhere. So why so few imitators?

Read more from my guest posting on PrawfsBlawg

Professor Petersilia and the Governor: a New Deal for Socio-Legal Research in California Governance?

2007-05-11T07:23:00.000-07:00

If you want to get a feel for how promising and dangerous the space of empirical socio-legal research in at the present conjuncture, keep your eye on UC Irvine criminologist Joan Petersilia.

Professor Petersilia, one of the nation’s leading experts on parole and reentry, has become Governor Schwarzenegger’s main policy advisor on reforming California’s behemoth and crisis ridden prison system. Governors in recent decades have largely foresworn academic policy experts, especially on topics like crime but through that analogy on many others. Instead they have privately surrounded themselves with pollsters and political consultants while publicly surrounding themselves with uniformed law enforcement officers and victims. Governor Schwarzenegger is doing both. A visit to the prison reform section of his very dynamic webpage shows you both visions.

In the still frame that begins the video of Governor Schwarzenegger signing AB 900, a massive new prison construction bill, he is surrounded by uniformed law enforcement officials and in the background, some victim’s advocates. This is how governors have represented themselves in the age of governing through crime. Victims are stand ins for all citizens, and law enforcement as representations of a state protecting people from crime (while being exposed to it themselves). In this pose Schwarzenegger, as many governors before him, is represented as governing by providing direct personal protection from violent crime to ordinary citizens and to law enforcement, largely by moving massive numbers of Californians from their communities to prisons. The bill he signed and declared a major break with California penal policy, will actually add 53 thousand new prison beds to a system that has grown from about 20 thousand total prisoners in 1980 to almost 200 thousand today.

If you click the link labeled, “comprehensive prison reform,” you see a picture of Professor Joan Petersilia in the upper right hand corner.

On the accompanying video, Professor Petersilia touts the emphasis on rehabilitation in the new law. No governor in nearly thirty years has chosen to associate themselves with academic criminology as a form of state knowledge. In doing so, Schwarzenegger is invoking a New Deal style of leadership (“the brain trust”) that has been virtually absent in the era of governing through crime. Professor Petersilia in her many public appearances and publications in recent months has emerged as an advocate for reducing California’s prison population and its chronic use of parole to recycle the vast majority of released prisoners back to prison. This possibility, embraced by the governor as well, is represented in the recent law by provisions requiring the California Department of Corrections and Rehabilitation to reach certain benchmarks in establishing effective rehabilitation programs before a second round of money is released to build more prison bed space. Other provisions supported by Professor Petersilia, including establishment of a sentencing commission to reconsider who gets sent to prison in the first place, and program to house most of California’s growing female prisoner population, in special facilities nearer to their communities.

Petersilia has taken a hard and exposed road. She has become a public icon for criminology in the service of a political leadership that has continued to support the principle of mass imprisonment. She has remained a clear spoken truth teller committed to empirical rather than ideological answers to the state’s prison crisis. During her recent appearance on Forum, a Bay Area public radio show frequently devoted to debating public policy, Professor Petersilia embraced these tensions, strongly supporting the law as a necessary step forward while agreeing with every critic about the fact that California imprisons far too many of its people.

Can Joan help lead us out of an age of governing through crime and back to a time when American political leaders viewed empirical socio-legal research as a key technology of governance? I don’t know, but I think She is a hero for trying. I’m going to keep watching (and help if I can).

Empirical Legal Studies Hits the NBA

2007-05-07T06:32:00.000-07:00

Last week brought yet another demonstration of the range and relevance of socio-legal discourse to the practice of everyday life in the United States at the end of the 20th century. The New York Times featured a sports story on the front page of its May 2nd, 2007 edition. The article by Alan Schwartz touted a recent study by UPenn economist Justin Wolfers, and Joseph Price, a Cornell graduate students, demonstrating an apparent racial bias in fouls called by NBA refs. In brief, referees appeared to be tougher on players of other than their own race (the bias was especially strong by white officials against black players). The resulting media battle was just as revealing. Rather than dismiss the study as a irrelevant or suggest that statistical analysis as incapable of capturing the complexity of basketball, the NBA fired back with its own version of a statistical study, insisting, in the words of NBA commissioner David Stern that: “We think our cut at the data is more powerful, more robust, and demonstrates that there is no bias...”

The controversy continued (notwithstanding the minor distraction of NBA play-offs). Three statistical experts had been consulted by the New York Times and preferred the Wolfers-Price study. The article on the NYT website, however, now reveals that one of those experts had been Wolfer's dissertation adviser (and we know they are never critical of their students).

Are Law Reviews Irrelevant? A Partial Reply to Adam Liptak

2007-03-19T22:13:00.000-07:00

New York Times lawyer/reporter Adam Liptak's recent "sidebar" article in the Times ("When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant", New York Times, Monday March 19, 2007, A8 (click to read if you have Times Select privileges), develops the theme that judges today do not rely on legal scholarship published in law reviews, at least not nearly as much as they did in the 1970s. This observation, supported by judicial self report, a "new report by the staff of the Cardozo Law Review," and confirmed by a number of law professors who spoke to Liptak, gets chiefly anchored to the fact that "law reviews have certainly become more obscure in recent decades," and the fact that "many law professors seem to think that they are under no obligation to say something useful or to say anything well." It is this linkage, and the ill-disguised slap at the legal academy for being interdisciplinary and less normative, rather than the apparent gap opening up between the judiciary and the legal professoriat that provokes this jurisprude.

If obscurantism is a read only to mean needlessly jargon ridden articles, I have little trouble joining the view (and must confess to have fallen prey to that malady myself). But the discursive instability introduced into legal scholarship by the break down of the intellectual autonomy of law schools from the rest of the university is also vulnerable to the charge of obscurantism. The question which must be asked of any particular piece of scholarship is whether its challenges to the reader come from exposing that reader to information or perspectives generally filtered out by the formal processes of law or whether it comes from diversion into equally formal processes of theory.

More important still is the question of who legal scholarship must be useful for to count as legitimate in Liptak's scale or our own. Even if one accepts that the legal system as a whole should receive the lion's share of legal academic attention, it should not be presumed without argument that courts should be the primary recipients of that knowledge instead of presidents, administrative agencies, law makers, let alone, clients, businesses, social movements, etc.

Finally, Liptak's provocative article provides little opportunity to reflect on how a changing judiciary might alter the relevance of legal scholarship. Did judges in the 1970s cite law reviews more often because they were looking for authority to innovate which necessarily would be unlikely to reside in existing case law, while judges in the 1990s ignored them because they didn't need any academic authority to adopt defensive and deferential positions toward power holders? Or, as observations placed at the end of the article might suggest, have changes in the technologies of dissemination and the discursive practices of legal knowledge producers made law reviews, an institution basically formed in the 19th century and widely spread in the 1920s a less dominant medium? Indeed, many courts now rely on empirical research published in non-law review journals and books.

None of this should be taken as a refusal of the mandate that legal academics worry about the currency of their scholarly products. Those of us who believe that governance and law making today demands serious engagement with empirical and normative scholarship, being produced in many different disciplines and in interdisciplinary contexts, have a duty to make sure that as writers we make this work as accessible as our craft will make possible and to create a pedagogy for lawyers that will make it possible for them to access and use this knowledge.

Murder and the City

2007-03-02T08:49:00.000-08:00

As the Bay Area is being cinematically haunted by the ghosts of serial killers past (Zodiac, the movie based on the 1960s SF serial killer, was released March 2), a more recent local murder presents in alarming and moving terms why homicide, above all other crimes, can be so rattling to a community's fundamental sense of security. [read the SF Chron story by Henry K. lee and Matthai Cahkko Kuruvila].

In October of 2006, Alia Ansari, a Fremont, California mother of 6, was murdered in broad daylight, with a shot to the head by a man who according to witnesses jumped out of a car and committed the crime without further words or deeds. The murder occurred in front of her three year old, as they walked along a public street to pick up two other children from a nearby elementary school. An hour after the killing police arrested Manual Urango, 28 also of Fremont. His car matched the description of the killer's. Urango, as it happened, was on parole, a fact which permitted the police to hold him as a parole violator. It was four months later that charges were filed of murder and being a felon in possession of a weapon. The latter has become one of the most common ways to sentence a person with a past conviction to a long new prison term without having to prove anything more than they possessed a proscribed weapon (a firearm counts). Prosecutors reported that the chemical tests of Urango's hands showed gun-shot residue.

The nature of the killing, the way it was carried out, the vulnerability of the victim (walking with a three year old) and the lack of any apparent relationship to her killer would all combine to make a homicide of this kind inherently more disturbing to the community then most. We often speak of fear of crime in the abstract, but it is a much more local and specific experience (what anthropologists might call territorialized"). In the US over the past four decades it has been a fear of death by fire arm while on a city street that has been the real focus of fear of crime. The great crime decline of the 1990s (read Frank Zimring's masterful new book on that topic) seemed to be beginning to disinvest city streets with that particular fear, making the prospect of easy walks to exciting commercial districts and public transportation more attractive to the middle class (grown savvy about the disappointments of gated suburban life) than in decades. But the real and substantial declines of the 1990s do not assure a continuation of the peace (as Oakland and Richmond have both experienced in the past year). Each individual murder, especially one with the features of this case, can recharge this very potent link in the minds of the public, the media, and political leaders, between murder and the city.

The murder of Alia Ansari was particularly frightening in the post-9/11 context (especially to the numerous members of that East Bay community who are of Afghani background). Ms. Ansari was wearing a scarf or hijab typical of observant Muslim women leading to speculation by family members that the homicide was a hate crime directed against Muslims.

As every homicide does, the murder of Alia Ansari left a devastating wound in the lives of her family. Much of Alia Ansari's East Bay family, including her husband and her six children have returned, at least temporarily, to Afghanistan, to bury the victim in her native land, but her brother Hamoyon Ansari spoke with deep emotion during his interview with the Chronicle reporters. No figure has become more central to our contemporary imagination of violent crime than that of the aggrieved relatives of a murder victim speaking emotionally, often demanding harsh justice in the name of their loved one. But while communicating deepest grief, Hamoyon Ansari expressed a striking absence of anger. Responding the the news that Manual Urango had been charged with the murder, Mr. Ansari spoke of relief but also caution:

"as long as it's the right person, and he's not going to harm someone, I'm really, really pleased"..."I don't want another sister -- I don't care what race or religion she is -- I don't want that to happen to another woman on the road..."

The defendant presented himself in court as the experienced felon his record would seem to suggest, with court records showing convictions for hit-and-run, being a felon in possession of a gun, evading police, auto theft, drug possession and grand theft since 2000. During his arraignment in Superior Court, the defendant was described as calm and polite. A tatoo on his face reading "no remorse" was visible above his temple. One wonders how jurors can avoid drawing conclusions about his propensity to commit such a crime or his future dangerousness regardless of whether he ever takes the witness stand.

The case could take a year or even more to come to trial. In the meantime Urango is certain to remain in jail (or back state prison on his parole violation). It will likely be some time before we learn what evidence the state has against Urango. He drove a car that met the description given by some witnesses. He was also seen by a witness shooting a weapon into the air in the same vicinity the day before (could these events have become merged in the minds of witnesses?). As a parolee with many past convictions, Urango is a perfect target for prosecution. His parole status makes it easy to hold him without evidence of a new crime (technical violations are ever present). His record and his demeanor (he yawned during the arraignment) are likely to hang him with a jury. It is a case where police and prosecutors feel enormous pressure to bring someone to justice and they have found a convictable target. It is a case where the risks of a wrongful conviction are tragically intertwined with the wounds of an especially terrible crime. As Hamoyon Ansari said: "as long as its the right person."

Gov to Consider Early Release...Not

2007-02-23T07:21:00.000-08:00

To get a feeling for how dangerous it is in California politics to even appear to be talking about releasing inmates from our impossibly swollen prisons, just consider that by the time I went upstairs this morning to show my wife the front page of the SF Chronicle (I like to get up early and read the paper) with a headline above the fold "GOVERNOR TO CONSIDER EARLY INMATE RELEASE", the morning public radio news was already reporting that the Governor's spokesperson denied there was any possibility at all of a release. The Chronicle story was itself based on little more than that the Governor had "said at a news conference that he was open to discussing early release for some inmates without violent histories..." (read Mark Martin's article).
Apparently interest in this possibility has been bolstered by federal studies showing a vanishing small recidivism rate for inmates over 55 (of whom California has 9,000). Yet in a state that has built its political consensus over the last quarter century through a commitment to the long term warehousing of even the most marginally dangerous felons, it is a big political risk to even be heard to contemplate release. For now, at least, too much of a risk for Governor Schwarzenegger.

Gov's "Emergency" Prison Plan Stumbles in Sacramento Superior Court

2007-02-22T06:35:00.000-08:00

When Sacramento Superior Court Judge Gail Ohanesian blocked Governor Schwarnegger's emergency plan to transfer thousands of inmates out of state to private prisons, her ruling and the responses it triggered revealed a great deal about California prisons and the political order they help sustain (read the SF Chronicle story). At the outset it is worth noting that her judgment came in a lawsuit brought not by inmates but by the California Correctional Peace Officers Association (the state's powerful union of prison guards and parole agents). It is widely appreciated that the CCPOA is one of the most influential players in the state capital, but it may be more surprising to see them in the judicial field where we are used to seeing as the refuge of the politically weak (like e.g., prisoners). Next Judge Ohanesian's ruling was based on the theory that Governor Schwarzenegger's plan exceeded his reach under emergency powers because these are intended to allow state aid to local government, not to allow the governor to ignore the legislative process. Whether this ruling is upheld on appeal will be resolved relatively soon, but the theory itself helps trace the convoluted dynamics through which local prosecutors in county based state courts have packed the prison system with more than 70 thousand inmates more than the mammoth 100 thousand its 33 prisons were "designed" for. Legislatures and governors over the last 30 years have "authorized" and encouraged this runaway train of incarceration, but have sometimes balked at continuing to pay or borrow for the prison construction to keep up with it (they've done so enough to add more or less 30 prisons during those years). Governor Schwarzenegger's watch corresponds to a moment when federal (rather than state courts) may well order this massive transfer of county level problem actors to state prisons halted. Even the possibility of that constitutes a political "emergency" in California because it challenges the political consensus around which California government has been based for 30 years, i.e., the promise by the state to "disappear social problems" (in Angela Y. Davis' evocative phrase) while keeping taxes as low as possible for as long as possible.

Meanwhile, the Governor responded in the tried and true method of war on crime court bashing, he accused the court in effect of being a kind of criminal (by putting public safety at risk):

"Our prison system is in desperate need of repair, and the transferring of inmates out of state is a prudent alternative to the risk of court-ordered early release of felons,'' ....

Fixing Broken Windows or Breaking Fragile Networks: Dilemmas of Fighting Violence in New Orleans

2007-02-05T07:11:00.000-08:00

The terrible suffering of New Orlean's during the flood of 2005 and its difficult path to recovery are now edged in a frame of red, a raging murder rate that continues to produce corposes and headlines (well summarized in a NYT story by Adam Nossiter and Christopher Drew). The driving forces are a familiar litany of urban problems, churning drug markets, impoverished neighborhoods where the division of labor has been replaced by a volatile honor ethos among angry young men, a history of mistrust between police and same neighborhoods, a faulty and now crippled criminal justice sytem, etc. One feature, highlighted by Nossiter and Drew, is particularly germane to any discussion of solutions. The one thing police do lots of and well and in N.O., apparently, is arrest drug users and dealers. This focus on low level street crime is consistent with the reighing gospel of urban crime control, i.e. the broken windows theory of Kelling and Wilson, which encourages strict enforcement against routine crimes as a way of effectively deterring more serious ones and producing public confidence. In New Orleans, at least, this logic seems to be backfiring. The constant arrests have added to the chaos of a justice system that cannot solve or punish serious crimes, and has heightened the alienation of exposed community members from the police. It is probably also raising the violence by further churning drug markets and their suppliers.

Governor Schwarzenegger's Prison Reform Initiative: The Launch Video

2007-01-17T06:58:00.000-08:00

My colleague Charles Weisselberg had called my attention to the online video of Governor Schwarzenegger's press conference announcing his prison initiatives on December 21, 2006. He had used it in his criminal law class to illustrate the multiplicity of purposes around punishment in contemporary society (he also pointed out that with the tall and broadly built governor standing near to an equally tall police officer and another man wearing a cowboy hat, you could mistake the video for a performance of YMCA by the famed "man" band The Village People). Sure enough, in describing the problems that his 10 billion dollar package of new construction and programs would solve, Governor Schwarzenegger invoked the promise of rehabilitating inmates with better prison treatment programs (a theme that he has brought back from near death in California), but also the threat of federal courts forcing the premature release of prisoners through strict population caps. The Governor criticized parole as a "broken system" presumably referring to its practice of sending thousands of California parolees back to prison on relativley trivial technical offenses, but also promised to increase enforcement of new anti-sex offender laws (mostly premised on the same flawed belief that lies behind our high parole recidvivism rates, i.e., that once you define a person as dangeorus even trivial misbehavior must be punished with confinement). All in all it seemed to illustrate what my friend Pat O'Malley aptly titled a prescient article on contemporary penality, "volatile and contradictory punishment"

Your jurisprude gives the Governator high credit for addressing California's prison crisis and making it a broad issue of state governance rather than a narrow problem of simply locking up more bad guys as a host of his recent predecessors have. Unfortunately, the most consistent in his speech invoked the logic of prisons as a spatialized strategy to exile feared stranger from our midst for as long as possible with little consideration of the actual costs and benefits to the communities from which they are exiled and to which they are just as summarily returned. But this circuit of knowledge and power that runs through state and federal governments, the media, security experts and ordinary citizens is one that has produced what the Governor himself describes as an "out of control" prison system. Unfortunately, these logics are likely to scuttle the most promising feature of his program, i.e., his goal of moving more prisoners and resources into the counties and nearer to the communities they come from (the voters who backed Jessica's Law aren't going to welcome new correctional centers in their towns).

Real reform requires a fresh start and a broad public discussion of the basic values and purposes that should infuse a redesigned system from front end sentencing to back end re-entry and community restoration. Governor Schwarzenegger has the credibility and personal charisma to lead that discussion but he won't do it by posing in front of law enforcement and pushing the fear buttons. He should start by placing blame where it belongs, not with the parole officers and other front line personnel, but with a line of recent governors who have made building and filling large warehouse prisons a primary form of state policy in California.

Schwarzenegger's New Deal

2007-01-12T09:03:00.000-08:00

As Jennifer Nelson points out in the January 12, 2007, SF Chronicle (read her op-ed piece) , Arnold Schwarzenegger has emerged as California's first "New Deal" governor arguably since Pat Brown (1959-1967). Nelson, an aide to Republican governors Deukmejian (1983-1991) and Wilson (1991-1999), identifies the New Deal as the core values of liberal Democrats. In a different, but related sense, political scientists and historians think of the New Deal as a broad template for governing industrialized societies that emphasized collective but not necessarily state controlled methods of coordination including unionization, insurance, and access to scientific education and information. It is this kind of New Deal that California under Governors like Earl Warren, a Republican (1943-1953), and Pat Brown a Democrat, became the leading state version of; with its world leading public university system, its major investments in water and energy control, and its ambitious treatment oriented prison and parole system. That govenance model was largely abandoned, by governors to the right and left, including Ronald Reagan (1967-1975), Jerry Brown (1975-1983), George Deukmejian and Pete Wilson. Many questions hang over Schwarzenegger's effort to revive this (a strategy perhaps predictable not only from his Kennedy marriage but from his professed admiration for Richard Nixon, our last New Deal president in many respects). One which I will blog further about this month is whether the vastly swollen size of California's penal system, and its culture shift away from ambitious treatment oriented goals and towards racialized warehousing, presents a fundamental obstacle both fiscally and in terms of the broad constellation of interests, practices, and sensibilities tied to this carceral behemoth (see my analysis of mass imprisonment in Governing through Crime, chapter 5).

The Power Effects of Public Executions

2007-01-08T07:30:00.000-08:00

The enormous and still gathering backlash against the manner of Saddam Hussein's execution last month recalls Michel Foucault's famous analysis of the power effects of public executions and the reason for the shift away from public use of the death penalty across most of Europe and its satellite socities in the course of the 19th century. Saddam's execution was not public in the conventional sense, having taken place inside a prison rather than in a public square. But the large number of witnesses (as well as their boisterous behavior), and the cell phone video tape have effectively transformed the event into a kind of post-modern public execution (the execution of Tim McVeigh shared some features of this).

In Discipline and Punish: The Birth of the Prison, trans. by Alan Sheridan (pp. 55-66), Foucault observes that public exections had very real political consequences for regimes that lacked the mechanisms of modern political publicity. By calling the public together to witness a spectacle of physical dominaiton and pain, the authorities produced an experience of the truth of their own power that could be expected to linger long in the memories of witnesses and be shared in their narratives. At the same time, however, they created dangerous possibilities of inversion, including moments of popular uprising.

In these executions, which ought to show only the terrorizing power of the prince, there was a whole aspect of the carnival, in which rules were inverted, authority mocked and criminals transformed into heros. The shame was turned round; the courage, like the tears and the cries of the condemned , caused offence only to the law. (61)

While Saddam's execution did not result in an immediate protest by the crowd who witnessed it (indeed their enthusiasm for the execution is one of the features that marred the event from a ritual perspective), but did show case Saddam and the law condemning him in almost precisely the inversion Foucault described.

What is a Prison? Who is a Prisoner?

2006-12-30T13:30:00.000-08:00

In the recent dystopian film by Alfonso Cuaron, The Children of Men (2006), [read the New York Times review by Manohla Darghis] viewers are taken into “Bexhill Refugee Center” a massive detention facility for “illegal immigrants” in the United Kingdom. Located along a sea-coast (the film’s action perversely requires the characters to sneak into this facility in order to meet a ship that will carry them to safety), the detention center looks much like a conventional prison on the outside. It is surrounded by perimeters of razor wire and the detainees encounter a large staging area in which security personnel bustle about separating out some and loading others onto buses for transport deeper inside the facility. But once led off the buses, the detainees find themselves in what appears to be an extremely chaotic and impoverished third world city. The detainees find themselves surrounded by a swirl of hawkers offering lodgings and other kinds of assistance, for a price. The lodgings to which our protagonists are led, consists of a windowless room with a mattress, some buckets of water, and a few implements for preparing food. Some buildings retain markings of former functions, e.g., a bank, a water purification facility, but are now occupied by a deracinated aggregation of individuals and families from all over the world who have come to the UK as refugees (the rest of the world appears to have become one large failed state) only to be arrested as illegal immigrants, held in cages and transported to this detention center by a militarized “homeland security” force.

This dense and roiling city appears to be regulated mainly by local norms that can only be imagined, enforced by individual or small group violence (although later we see armed members of what appears to be an Islamic militia like those that dominate Gaza or Baghdad). The force of formal law and governmental control seems to end at the door of the buses in which the arriving detainees are transported, save for a recorded message broadcast in the entry area which urges refugees not to engage in terrorism, reminding them that the are guests of the UK and under its protection. But that reassuring message of sovereign promise appears to be utterly false. The uniformed personnel of homeland security only enter the city to repress an uprising, and when they do it is as a military phalanx complete with armored personnel carriers and tanks, to direct lethal force against armed militants and any other detainees who happen to be in the way (the reference to current conditions in the middle-east are inescapable).

While the Cuaron and his colleagues were clearly influenced by images coming out of Iraq and other suffering zones of the middle-east, the presentation of Bexhill fits perfectly into the political theorist Giorgio Agamben’s celebrated analysis in Homo Sacer of the concentration camp as the distinctive technology of late modern governance and social control. Inside Bexhill are packed refugees (pejoratively referred to as “fugees” by the hostile homeland security officials), persons who have no legal or political standing in the society. It is a space only of containment, with no promise of transformation, reformation, or restoration to any more desirable status. Indeed it is left unclear whether anyone is ever deported from Bexhill, or given a hearing on their refugee claims, or only die there (although it is not primarily a killing camp like Auschwitz).

The Bush Administation’s “war on terror,” particularly the wars in Afghanistan and Iraq, have generated all too many such horrifying imagines, especially the US controlled facilities at Abu Ghraib and in Guantanamo Bay, Cuba. A recent New York Times story by C.J.Chivers [read the story now] described the incarceration of alleged insurgents held by the Kurdish authorities in Northern Iraq and painted a similar picture of scores of men held in large group cells with little access to hygiene, exercise, and no work, recreation, or educational programs. Like the refugees in The Children of Men, the prisoners in all these facilities have no clear legal path to freedom, no clear way out detention, indeed, no clear future at all.

These new spaces of containment that have proliferated during the recent war, confront us with problems of classification and even description. Should we think of them as prisons (the media often uses this term) and their inmates as prisonsers? Some of the inmates are immigrants, others insurgents, others criminals, all stand in some form of illegality (or non legality). These questions are all the more pressing because of the massive expansion of conventional prisons for convicted criminals in the US (and to a somewhat lesser degree in the UK and many other societies). In what ways do prisons for criminals remain distinct from "camps" "centers" and other custodial facilities set up to contain emerging subjects of state control including illegal immigrants and unlawful combatants? How will the rise of these new institutions of confinement alter the three century long tradition of prisons as spaces of control for lawfully convicted criminals?

In a series of postings during January I hope to offer some preliminary analysis of these vital questions (please share your thoughts and comments).

Saddam’s Execution: Rule of Law or Rule of Tyranny?

2006-12-30T13:19:00.000-08:00

Responding to the news Saddam Hussein's execution on December 30, 2006, President Bush noted that Hussein "was executed after receiving a fair trial --- the kind of justice he denied the victims of his brutal regime." (read the New York Times story by Marco Santora, Mames Glanz and Sabrina Tavernise). President Bush's comment echoes a theme that has been frequently sounded by his administration in describing the trial and execution of the former dictator of Iraq, i.e, that both reflect the replacement of the rule of tyranny by the rule of law. Yet several controversies surrounding Saddam’s trial and execution tend actually to blur the lines between tyranny and law rather than clarify them.

The conduct of the trial against Saddam in which he was sentenced to death has been widely criticized as lacking crucial features of due process. Most importantly, Saddam’s lawyers faced lethal violence (several of them were killed) and the judge who presided over the trial was replaced by action of the ruling Shiite regime allegedly because the sitting judge had shown too much deference to Saddam. This action clearly placed the succeeding judge on notice that the government would accept nothing less than a conviction and capital sentence against Saddam.

The crime for which Saddam was sentenced involved itself a situation of state execution in which scores of Shiite men and boys were executed for alleged involvement in an assassination attempt against Saddam himself in the town of Dujail. While these executions clearly defied international law and human rights norms, they were authorized by Iraqi law and Iraqi national sovereignty. Unlike some of the Baath regimes other atrocities, these killings took place after trials (no matter how lacking in due process) and represented a response to an alleged act of violence against the regime. Since the trial and execution of Saddam also lack international legitimacy, they too must rest on claims of sovereignty and positive state law, just like the executions for which Saddam was tried.

The hasty execution of Saddam for the Dujail killings will cut off the current trial in which Saddam stands accused of poison gas attacks against Iraqi Kurds during the Iran-Iraq war, as well as any future trials involving other atrocities. These trials could have served a number of ends vital to the formation of a successful Iraqi nation. One of the most important is establishing a clear historical record of Baathist atrocities by giving a full and open hearing to the defenses that have been and will continue to be offered for Saddam’s actions (e.g., the notion that the gassing was a legitimate act of national defense carried out under the authority of a national leader during a time of war). Another end is to build national unity by documenting the widespread suffering of different communities within Iraq. The hasty execution of Saddam for a crime limited to Shiites, to the exclusion of a full hearing of the grievances of other communities, sends the unintended (or perhaps precisely intended) message that the new Iraq is a regime by for and of the Shiites who intended to dominate all other communities.

As Austin Sarat has argued, capital punishment even under well established court systems like those in the

since the resumption of death sentencing in the 1970s, erodes respect for the rule of law. This is all the more true of the far less reassuring circumstances of today’s Iraq. Saddam’s execution will convince many that the rule of tyranny is far from dead in Iraq.

New Dawn for California Prisons?

2006-12-21T07:03:00.000-08:00

Perhaps its a fitting symbol for penal policy in America, but one of the boldest moves to remake California corrections in at least 30 years is being announced on the Winter Solstice, the darkest, shortest day of the year. Governor Arnold Schwarzenegger, recently re-elected by a substantial majority, plans to announce a sweeping package of construction and reform plans for California's swollen prison system today (read the SF Chronicle story by Mark Martin and Greg Lucas). The major part of the plan would allocate nearly 10 billion dollars in new spending to expand correctional facilities. Four billion would go to new prisons and "re-entry programs" (these are likely to mean smaller secure facilities in major cities designed to hold inmates during their last months before release with the aim of improving re-integration into the community before release). Another four billion will go to new county jail space offered on the grounds that counties keep thousands of short term (3 years or less) state inmates in county jails rather than sending them to the state's over-crowded prisons. One billion would go for building new hospital and mental health facilities for the state's aging and probably mentally degenerating prison population. There are several things to note right away about this mammoth spending proposal. First, and most alarming is that at the end of this initiative, California's "penal capacity", is apparatus of punishment, will be larger than it is today, after thirty years of expansion. There may be fewer prisoners in California prisons (although we'll have to see if even that comes to pass) but there are likely to be even more Californian's undergoing penal custody in a jail, "re-entry facility" or juvenile lock up. Second, a whole lot more money is going to be spent on corrections and ultimately into the pockets of the broad industry that builds, fills, and feeds prisons (what some have called the "prison industrial complex"). This shows the vitality of the "patronage state" the structure of interest rewarding that has been linked to political power since the birth of the Republic (even as it has been overlayed by other circuits of political power). The lubricant of policy change is and remains spending lots of new money. Third, much of this appears to be driven by court orders and hearings by three different federal courts considering law suits against California. Just yesterday, two former heads of California's correctional agency, who resigned within six weeks last spring, testified in Judge Thelton Henderson's court yesterday that they quit because the Governor's new political advisors appeared intent on shutting down management reform and cozying up with the state's powerful correctional officer's union. That this political advise was probably sound, and the implication that reforms can only be initiated after the re-election of a term limited governor should be a moment of sorrow to all of us who believe in Democracy. More importantly, the threat of an actual population cap is a potent one because it challenges one of the key elements of California's "carceral state" ( the political authority linked to its capacity to punish), i.e., the potential to incarcerate subjects deemed dangerous. It is this latter point that leaves me skeptical that this massive spending will lead to anything more than a larger and even more punitive system in a decade.

The greater hope lies in the Governor's other major proposals. One would create a sentencing commission to consider revising California's severe sentencing laws. The other would remove the requirement of parole superivsion (currently three years of which follow the completion of almost every prison sentence in California) for some non-violent offenders. The former, opens the door to a much more promising way of shrinking the prison system, by limiting somewhat the capacity of California's proecutors to move portions of their local population to state prison. But just for this reason, look for the legislation to create any such commission and the issue of who serves on it to be hard fought and protracted. The latter is a sad acknowledgemnt of what I showed in my book Poor Discipline: Parole and the Social Control of the Underclass, 1890-1990, over a decade ago; parole has been remade from a mechanism of community re-integration to a mechanism for removing people from the community and keeping them integrated into the correctional system.

Crats vs. Crafts: Jerry Brown's Robo-Cop Vision

2006-11-10T10:20:00.000-08:00

Jerry Brown, the last of California's chief executives to govern before the complex of growing prisons, gated suburbs and extreme crime panics came to shape political life in California , is now heading back to Sacramento fill the role of the state's Attorney General, a position now largely defined by its crime posture. A liberal who believed in minimizing the ambitions of state penal policy in the 1970s, Brown returns having passed through a recent purgatory as a Mayor of Oakland; a city which struggles to with constantly cycling of thousands of young men between its most vulnerable neighborhoods back from California's overcrowded, violent, and racially organized prisons. The last year of Brown's mayoralty, and his successful run for AG, were burdened with a significant spike in Oakland homicides and robberies. Brown's new control vision, brewed during his painful struggle with Oakland's crime and punishment problems, is outlined in Chip Johnson's column in the November 10th, SF Chronicle (read it now). Brown's Robo-Cop strategy emphasizes technology and surveillance to intensify what he considers the insufficient supervision by state parole officers and inadequate staffing of the Oakland police department. Case in point, Brown has pushed through the deployment of high tech system designed to pin point gun shot origins (one imagines that the Israeli's use things like this to launch retaliatory strikes against rocket launchers---and by the way the strikes occasionally go awry). Brown apparently believes this will permit pin point police responses that will incapacitate or deter Oakland's oversupply of young shooters. Brown may be right that the vision will resonate well politically at a time when Californian's just overwhelmingly adopted Proposition 83 which among other features will require felony sex offenders who have done prison time to wear GPS locators for the rest of their lives.

California badly needs a new vision on crime and punishment from the state level, and the experience of urban California with the war on crime ought to be the starting point. For my money, however, Brown's Robo-Cop vision of the future, has more in common with the largely media driven fantasies from which the state's current embrace of mass incarceration and gated suburbs then it does with the lessons to be learned in Oakland's streets. For one thing, Brown ignores the role that prisons and parole already play in cycling young men in and out of Oakland the harm that cycling itself does. Parole isn't tough enough in supervising ex-inmates according to Brown, or else we wouldn't have a 70 percent recidivism rate. Ding. Wrong. Much if not most of that recidivism rate is already driven by technical violations that are already detected by parole division all too well. More importantly, cycling itself may be producing violence by deforming social networks through a process relentlessly churning the population of sexually active and potentially economically productive young men in communities that are already suffering deficits of labor force participation (see recent the forthcoming book by Todd Clear).

For another thing, who says investment in technology will always buy you more security than investment in humans. If Oakland is under policed lets hire more police and let them do the kinds of highly discretionary intelligence driven and intelligent policing that has worked in New York. Frank Zimring's new book, The Crime Decline, mounts powerful evidence that New York's success in more or less doubling the national crime decline int he 1990s was due largely to more police and better police tactics, especially focused use of aggressive arrests. While most of these arrests were for minor crimes (that mostly did not result in prison time) they drove the guns off the streets of New York. Brown's gun spotting strategy is all "crat" i.e., technocratic reliance on automated systems and no "craft," i.e., no reliance on encouraging innovative use of police craft. Indeed, the system could strangle the residual craft tradition in Oakland policing as officers struggle to respond to the beeps coming from sex offender GPS as felony sex offenders succumb to temptation and visit a Burger King a few yards too close to a park or school or those coming from Jerry Brown's gun fire spotters. By the way this is not a rant against technology. What I'm calling "crat" is a way of subordinating human intelligence to tools and rules. Technology can and is being used to enhance the effectivess of craft traditions by enhancing communication and intelligence sharing. (for an innovative Bay Area firm doing this check out, ooTao)

The Execute-tive Branch: Can Sadam's Death Sentence Help the President

2006-11-06T20:52:00.000-08:00

Many commentators have viewed the sudden announcement of a verdict and death sentence in the capital trial of former Iraqi President Sadam Hussein for the mass killing of Shi-ite's in the town of Dujail after a failed attempt on Sadam's life in 1982 as an advantage for President Bush and the Republican Party (whose fate seems tied to his in an election being viewed as a referendum on Bush's rule). Some, including respect NYT columnist Paul Krugman (November 6, 2006) have suggested that the administration may have consciously created such a result as an "October suprise" designed to shift the momentum of an election widely seen as headed toward gains by the Democratic Party in Congress.

Whether or not the timing of this result was politically manipulated to serve either embattled Shi-ite Prime Minister Nuri al-Maliki or embattled Republican President George W. Bush, it testifies to the solid relationship between executive authority and the death penalty that has been a distinctive feature of "governing through crime" American style. The rise of crime, and especially violent crime, as a priveleged social problem against which government must mobilize, has cast the death penalty as a powerful tool of response. While in the past capital punishment may have been self defeating in highlighting the oppressiveness of those in power, in contemporary American democracy it has become a key bond between executive office holders (particularly governors and presidents) and their electoral publics. The ability to seek and deliver capital punishment against feared murderers has become one of the keys to the success of American governors in defining themselves as the most worthy candidates for the highest executive office, that of President. This is marked by a striking reversal of the post New-Deal pattern in which successful Presidential candidates were almost always identified with their career as federal politicians. From Truman through Ford this pattern suggested an eduring shift from state to federal experience as a prerequisite to presidential power. But starting with Democrat Jimmy Carter's 1976 victory over consummate federal politician Gerry Ford, governors have won all but one presidential election. The 1988 election was charged with issues of crime and capital punishment. Governor Dukaki's link to the parole of Willie Horton was widely credited with preventing a succesful counter attack.

Look for the administration to continue to emphasize capital punishment as a key tool in the war on terror (in the absence of any evidence that this is likely to deter terrorists).

Federal Politicians v. Governors as Presidential Nominees and Winners 1980–2004

Republican

Democrat

Winner

1980

Reagan

Carter

Reagan

1984

Reagan

Mondale

Reagan

1988

Bush I

Dukakis

Bush I

1992

Bush I

Clinton

Clinton

1996

Dole

Clinton

Clinton

2000

Bush II

Gore

Bush II *

2004

Bush II

Kerry

Bush I

Bold indicates that the candidate’s most important political experience previous to the run for president was in the federal government.
Italic indicates that the candidate’s most important political experience previous to the run for president was being governor of a state.
*Bush lost the popular vote and won the electoral college only after intervention by the Supreme Court

President Bush lauded the verdict in terms that highlighted its significance for Iraqi governance, describing it as an anchor of democracy in Iraq: "It's a major achievement for Iraq's young democracy and its constitutional government."

But while it may help bolster support for Bush and the Iraqi prime minister, its role as a deterrent to future human rights violations is in doubt considering that death squads are murdering hundreds of Iraqi's with the apparent tolerance of the Iraqi prime minister.

X-Rays: A Past that Might Have Been, a Future that Could Be

2006-10-30T20:16:00.000-08:00

Let me lay my normative cards on the table. Police are necessary for security in modern society, but they have a historical tendency to divide themselves from society, view many victims as morally deserving of their fate, and treat the assertion of any right of equal dignity as a security threat. In the late 20^th century police experts divided between those who looked to judicially imposed external norms, and those who looked to an internal process of craft elaboration. In fact, both were probably necessary for either to have had a chance of succeeding. But the “war on crime”, and the massive transformation of governance it produced, has led to a security paradox. The police have enough power to resist accountability in most respects, but not enough knowledge to effectively deal with violence, community disorder, and now terrorism.

In the hope of going beyond critique and diagnosis to identifying the resources from which a remedy might be fashioned we must have recourse to history. The success of a particular movement or project often has the effect of burying all memory of possible options that existed in the problematizations of the recent past (Foucault has made this into a key methodological imperative). Without bowdlerizing the past, we need to remain open to imagining possibilities for reconstructing our modern public institutions that have been lost.

In 1970, the Fort Lauderdale Police Department hired two African American college graduates from the city’s segregated northwest side. These officers were quickly promoted to detectives and along with a few selected white detectives, were selected by Chief Robert Johnson, Fort Lauderdale Police to form the core of a special task force with the goals of reducing the increasingly violent drug trade in the city and avoiding a major racial conflagration of the sort that had swept major cities in the North. Knicked-named the “X-Rays” because of their reputation for “sharp vision,” these detectives specialized in deep knowledge of their local communities. What is especially striking to me about the tactics of the X-Rays is that they form alternatives to two of the major practices of investigation influenced by the war on drugs and which have contributed to miscarriages of justice, i.e., the use of informants and interrogation. The war on drugs has promoted the recruitment of professional informants who often have powerful monetary or legal incentives to lie. In contrast, the X-Rays cultivated informants more along the model of anthropological informants, local figures in a position to observe what is going on in a community that have a relationship of trust and friendship with the detectives. The war on drugs has also made available a large pool of suspects who form a ready supply of suspects in other cases and encouraged practices of deceptive interrogation aimed pressuring the most dysfunctional of these suspects to cooperate in convicting themselves. In contrast, the X-Rays sought to obtain confessions by winning the trust of suspects and confronting them with the results of their prior investigations.

<>For me the X-Ray’s represent a model of the craft tradition in a positive confrontation with problems of equality and inclusion posed by the civil rights movements in the 1960s. In future postings I’ll tell more of the story of the X-Rays and especially Detective Douglas Evans of the Fort Lauderdale Police Department (ret.). Evans had a remarkable career, ableit one shortened by anger at a law enforcement apparatus that overall placed minimal priority on the security of people from Evan's own neighborhood of northwest Fort Lauderdale. Dougs most famous case involved Eddie Lee Mosely. One of the most aggressive serial killers of recent history, Moseley raped and murdered dozens of people in northwest Fort Lauderdale from the early 1970s through the mid-1980s. Two other men were sent to prison, one to death row, for Moseley's crimes. These miscarriages of justice exemplify the high risk investigatory strategies that contemporary police have come to rely on. Doug Evans solved the crimes using his deep local knowledge of his community and his willingness to interview dozens of witnesses, but Mosely was released through the indifference of state officials and his later crimes were pinned on men more attractive to prosecute. Doug's role in the case is profiled in this excerpt from the Frontline (PBS) documentary, Requiem for Frank Lee Smith (2002)

Doug Evans and the X-Ray's were sadly not the modal police officers, let alone Southern police officers of the 1970s, but they offer a precedent for a reflexive craft policing approach that might serve as a model of a different kind of post-war on drugs policing strategy one aimed at preventing violence in specific communities from all kinds of sources (including both terrorism and reactive hate crimes) by vigorous local investigation coupled with self conscious efforts to guard against racial stereo atyping and its analogs.

The Craft: A Lost Possibility in American Policing

2006-10-30T10:07:00.000-08:00

One strand in police sociology has long emphasized the reform potential of a craft conception of policing. As used by these scholars, the phrase “craft of policing”, is most often used in contrast the practical and experienced based knowledge of the police to the rule based imperatives of either law or scientific models of policing (see, e.g., Bayley and Bittner 1984, [requires access to JSTOR]). While he never used the craft of policing language, no figure in modern police expertise was a more forceful advocate of this view that Fred Inbau,(1909-1998). Professor of law at Northwestern University, co-author of the leading textbook on police interrogation, director of the leading forensic crime laboratory of the period and the editor and chief of the Journal of Criminal Law, Criminology and Police Science (as it was pertinently called in his period), Inbau became the chief advocate of the view that greater police training and skill rather than judicial limitations, were the best way to eliminate abuse and miscarriages of justice.

The only real, practically attainable protection we can set up for ourselves against police interrogation abuses (just as with respect to arrest and detention abuses) is to see to it that our police are selected and promoted on a merit basis, that they are properly trained, adequately compensated, and that they are permitted to remain substantially free from politically inspired interference. ... And once again I suggest that the real interest that should be exhibited by the legislatures and the courts is with reference to the protection of the innocent from the hazards of tactics and techniques that are apt to produce confessions of guilt or other false information. (Inbau 1961, 26)

In retrospect we can see how Inbau’s interest in the truth value of confessions got lost in the increasingly bitter debate on the Warren Court’s criminal procedure jurisprudence. In that context, talk about truth seemed a way of rationalizing the admission of evidence collected in violation of the constitution (although Inbau did not deny the Court’s power to reject such evidence even if probative). Both the Court and its critics increasingly ignored the problem of wrongful conviction. By the time the more conservative Burger Court began to roll back doctrine’s viewed as hampering police, they did so with no apparent consideration as to whether the underlying police practices were in fact “means which risk the conviction of the innocent.”

The craft conception had a natural fit with the dominance of labor and occupational ideas of governance in the mid-20th century. Professionalizing police through raising hiring standards and training viewed policing as body of knowledge and practice best rationalized through the evolution of internal substantively rational reflection rather than external judicially imposed rules. But whatever potential might have existed in the 1960s to reduce abuse and miscarriages of justice through improved training and fostering of the craft of policing was washed out by the War on Crime and the transformation of policing it led to. From the skilled worker, the police officer was reconfigured in two directions. One was as a symbolic stand in for the citizen crime victim, the official vigilante (think Die Hard), the target of armed assailants facilitated by defense laywers and liberal judges. The other was as a highly militarized and technologically enhanced cyborg ---RoboCop-- who could confront armed and violent criminals in a battle field like setting using special weaps and tactics (SWAT). In neither the vigilante or SWAT mode does the contemporary police officer draw on the kind of craft conception that Inbau championed with its emphasis on the protection of the innocent from wrongful conviction. Ironically, the proponents of a craft approach today are scholars and advocates like Richard Leo, Gary Wells, and Barry Scheck who are precisely the ones calling for taping of all police interrogations. Were Fred Inbau alive today, he'd be on their side.

Police Interrogation Tactics: Evidence from the Terric Jeffrey Case in Miami

2006-10-26T21:46:00.000-07:00

The October 16th order suppressing Terric Jeffrey's confession to killing the infant son of his girl friend and room mate provided a glimpse into the craft status of police interrogation practices, at least in Miami. Police experts like Northwestern University Law Professor Fred Inbau, (1909-1998) long maintained that police interrogation and resulting confessions posed little danger as long as police were careful to avoid techniques likely to induce the innocent to confess. The misfeasance in Miami suggests that this craft tradition is in bad shape there. Judge Pineiro was clearly concerned about the possibility that Jeffrey had been induced to confess by the deceptive promise that he would be released in combination with familiar tactics of police interrogation, including those sanctioned by Inbau. To his dismay, police testimony at the suppression motion was not even consistent as the tactics that had secured the confession.

One tactic that comes right out of Inbau's famed case book on police interrogation methods, involves minimizing the moral or legal wrongness of the suspect's conduct. Here defense lawyer Liesbeth Boots of the Miami Public Defenders office asks Miami Police Department Detective Yves Fortune.

Q. But do you have, at the Police Department a technique on interrogation?
A. Yes, it does.
Q. And, you know about the tactics of the offering a suspect a face saving alternative?
A. Yes.
Q. You know saying to the suspect you did this, but you were just defending yourself.
Q. Or you did this because you didn't mean to, it was an accident, Right?
A. Yes.
Q. You know those techniques. Right?
A. Yes.
Q. And that's what was used in this case. Right?
A. Yes, ma'am.
Q. The accident scenario techniques. Right?
A. Well, that's --- that is a tactic that was used, yes
Q. It wasn't Terric who first said this was an accident. Right?
A. Can you repeat?
Q. It wasn't Terric who first said this was an accident, the first person to say it was an accident was Officer Valdez, Right?
A. I can't really answer as to who first said it. I really don't know who first said it.

Another Detective Olga Rome, testified that it was she who obtained Terric's confession, apparently through the force of her voice.

The Court: Any redirect or the recross, okay. Ma'am, I just have a couple of questions. Ms. Boots delineated a number of techniques to convince the defendant it's in his best interest to confess, like to present him with false evidence, good cop bad cop, isolation and you have moral justification an out. And at the end of those, you said I know of them but I never practiced, not my practice. What is your practice when conducting interrogations?
The Witness: I just ask them to tell me the truth.
The Court: And.
The Witness: It works for me. Maybe it's the way I say it. Maybe it's my voice. I don't know.

Judge Piniero was also distrubed by the quality of Jeffrey's statement in the formal confession which was video taped by the police, the only 1/2 hour of an 11 or 12 hour interrogation so video taped.

The statement itself evinces various instances where the defendant seems to have been coached as to what he should say. Please, take note of the last few words of Detective Rome's questions which are often parroted back verbatim in the Defendant's responses. he often starts his answers with her very words. The coaching is so evident that Detective Rome is forced to profess that she doesn't want to put words in the defendant's responses.

Inbau and others believed that a craft of policing, grounded in the determination to convict the guilty and protect the innocent, would ultimately prove a far better shield to civil liberty than judicial prophylactic rules like the famous warnings required by Miranda v. Arizona (1966). Unfortunately, that craft tradition appears to have been replaced by what the Supreme Court has long described as "the competive process of ferreting out crime."

Murder Investigation Miami Style

2006-10-24T07:31:00.000-07:00

A recent Miami case provides rare public airing of a murder investigation gone terribly wrong as the skilled work of a public defender and a judge with too much integrity to ignore the facts, prevented a very likely miscarriage of justice. In the State of Florida v. Terric Jeffrey, (11th judicial circuit, No. 03 --- 16977A). Judge Roberto M. Pineiro, a former prosecutor, granted defendant's motion to suppress statement.

After 9 years as a prosecutor, some of which were spent in the Major Crimes Division prosecuting murder cases, and 12 years as a judge in the criminal division, this court is well aware of the mantra: first investigate then interrogate. You first gather all your facts. This allows you to narrow your scope to a single suspect. It provides you with the evidence to refute his putative alibi thereby sealing off all possible bolt holes. This time tested procedure assures you’ve got the right suspect and can confront him with indisputable facts during an interrogation; thereby increasing your chances of cornering him into a confession.(2)

Judge Pineiro’s mantra may be a considerable idealization, but the facts of Terric Jeffrey’s case turned out to be a grotesque inversion. The victim, Leon Leonard III, was a fifteen month old child who died of blows received at one of two different locations and left alone with three separate men, only one of whom was the defendant, Terric Jeffrey, the boyfriend of the child’s mother.

Since the physical evidence suggests only two locations and only three possible perpetrators, surely evidence must have been located to exclude two of the suspects and one of the locations before focusing on Terric Jeffrey having committed the murder. (3)

Instead Miami Police detectives searched one house, the one shared by the mother, Monique Johnson and the defendant, while ignoring the other house where the victim was present and where another possible suspect, Leon Leonard Jr. the victim’s father, resided. Both Johnson and Jeffrey, the latter who is reported to be “mentally handicapped” by his attorney, were subject to hours of questioning, while Leonard, the son of a Miami police officer, was never questioned. Having extracted a confession from Jeffrey, a semi-retarded man who apparently believed he would be released after confessing, Miami detectives immediately ceased any continuing investigations.

Johnson and Jeffrey picked up the child at the Leonard house after an evening at the movies. Johnson reported that the baby was “whinny and fussy” and indeed it was her decision to obtain some of the pain reliever Motrin from a neighbor that left the child in Jeffrey’s hands. Yet the police never investigated whether the child was mistreated at the Leonard’s house instead focusing exclusively on the mother and her boy friend. Prosecutors argued that Johnson’s report of the baby being whinny and fussy was a lie, but as Judge Pineiro points out, that eliminates any reason for Johnson to have left the child alone with Jeffrey. “No whining, no fussing --- no need to get Motrin --- no need to leave the baby alone with the defendant” (9).

Instead of the investigation, detectives subjected the mentally challenged suspect to nine hours of interrogation with no breaks or meals. The confession finally made tracked the police officer’s own formulations so closely that one of the detectives actually says on the tape recording of the confession, “Do you recall all of this. I don’t want to put words in your mouth. I recall you telling me this.” (16)

After suppressing Jeffrey’s statement, Judge Pineiro went on to an unusual statement from the bench.

Prior to this hearing I was not convinced that it might be good practice to video tape the entirety of a defendant’s interrogation. That it would not be practical. Given the evidence adduced at these hearings I have come to believe that, regardless of the practicality, it might be imperative. (17)

We cannot say that this case is typical. Although the judge refused to infer an association, the opinion noted the fact that Leon Leonard, Jr. was the son of a Miami Police officer. But whether the case represents an unusual effort to protect a fellow officer’s family it reflects features of police investigation that have become an endemic feature of a time in which policing has been shaped by the war on drugs. In this time, a vast body of low level offenders is viewed as a collective risk to American society and the mass imprisonment of many has been a primary solution.

The Symbolic Standing of the Police after the War on Crime

2006-10-23T06:45:00.000-07:00

To try to understand why law enforcement is so reluctant to engage in serious efforts to regulate our investigatory techniques which pose serious risks to conviction of the innocent, we must appreciate the radical shift in public confidence that the police have come to enjoy since the middle of the 20^th century. From the 1930s through the 1960s, academic experts agreed that the public perceived police as corrupt, inefficient, and capable of brutality. Popular culture, pulp fiction and movies that regularly portrayed the police in precisely the same terms. Consider The Maltese Falcon (1941), where Humphrey Bogart and everyone else knows that whole game is to give the police some body they can blame for the murder of Sam Spade’s partner and it does not matter whether they did or it not. As the War on Crime unfolded since the late 1960s, police were recast as the chief protagonists of citizens as potential crime victims (as David Garland would suggest, the representative citizen of our time),--- and as symbolic stand-ins for citizen-victims themselves--- the perception of the police has gone from cynical to reverent. This shift is captured in public opinion surveys. In 1977 (almost a decade into the War on Crime) 37 percent of a national sample rated the honesty and ethical standards of the police “Very High” or at least “High,” by 2005, 61 percent shared that rating. Asked how much confidence they had in the police in 2005, a 64 percent of a national sample indicated “A Great Deal or Quite A Lot”. In contrast, only 53 percent said that of Churches and Organized Religion, 22 percent of Congress, 44 percent of the Presidency, and 41 percent of the Supreme Court. Criminal Justice overall, by the way, is lower even than Congress. The only institution that evokes more confidence than the police is even more steeped in symbolic identity with the body politic, i.e., the military, in whom 74 percent of respondents held such high confidence.

Texas Death Penalty and the Culture of Life

2006-10-19T22:48:00.000-07:00

Fifteen hours before the State of Texas was going to kill him with a lethal injection, inmate Michael Dwayne Johnson, 29, killed himself by slitting his juggular vein and his arm with a sharpened piece of metal the size of a popcicle stick. The suicide was skillfully timed to evade Texas "death watch" inspections every 15 minutes. I'm no expert on this but slitting your own jugular vein has to be a bit harder than slitting your wrists and the cuts must have been deep and broad to make sure he wouldn't be "rescued." At the same time, he had the discipline to write "I didn't do it" in his own blood before becoming unconscious. The message and the rare successful suicide on death row, marked a rebuke to a state whose capital punishment system is an exception within American overall exceptionalism. With some 30 executions in a typical year (more than a third of the annual national total in recent ones) Texas belongs in a special category of retentionist nations for whom the death penalty is not just a permitted punishment but a compulsive act of political power. Johnson's case was routine for Texas and disproves the oft stated claim that the American death penalty is reserved for the worst of the worst. No Ted Bundy, Johnson was convicted of murdering a 27 year old man at his gas station, apparently because Johnson and a buddy could not pay for their gas. His buddy, however, solved the "prisoners dilemma" first and received 8 years in prison after testifying against Johnson. Johnson, insisted it was his friend who did the shooting. To make matters grimmer. Johnson was only 18 at the time of the crime. Were he 17 at that time, the 8th Amendment would now have prevented his execution (due to the Roper v. Simmons decision of the Supreme Court a couple of years ago).

The maccabre act reminds us how essentially totemic, magical (and ok, yes, primitive) the death penalty is. In this one unique practice, the state (acting through its symbolic stand-ins prosecutors and executioners) demands that the crime be repeated, this time on the body of the condemned. No where else in our entire legal system would such an act of purely symoblic repetition be demanded. (We don't knock down the house of a contractor who builds a house that falls down, nor do we rape rapists or beat assaulters). While many in Texas (including temporarily transplanted Texan George W. Bush who carried out more than 100 executions while governor of Texas) speak of believing in a culture of life, their death penalty belongs to a cult of death, requiring all citizens to partake of what amounts to a public sacrifice. That such a cult might survive in modern society and be attractive to those traumatized by violence or simply by late modern culture, might be unsurprising, but the central role of the modern state in that cult is less obvious and more alarming.

Waste (Mis)Management

2006-10-04T22:53:00.000-07:00

Your jurisrpude has somewhat provocatively referred to contemporary American prisons as based on a "waste management" model of incarcerating those state policies define as toxic. Academic ranting, perhaps, but consider this section from the Governor's recent emergency proclamation on California Prisons.

WHEREAS, the current severe overcrowding in these 29 prisons has also overwhelmed the electrical systems and/or wastewater/sewer systems, because those systems are now often required to operate at or above the maximum intended capacity, resulting in an increased, substantial risk to the health and safety of CDCR staff, inmates, and the public, because:

Overloading the prison electrical systems has resulted in power failures and blackouts within the prisons, creating increased security threats. It has also damaged fuses and transformers.

Overloading the prison sewage and wastewater systems has resulted in the discharge of waste beyond treatment capacity, resulting in thousands of gallons of sewage spills and environmental contamination.

And when the prisons “overdischarge” waste, bacteria can contaminate the drinking water supply, putting the public’s health at an increased, substantial risk.

Those prisoners identified by the proclamation as the primary subjects for transfer might also be thought of as "waste" i.e., those that the state is most anxious to expell, including non-citizen prisoners, especially those subject to deportation following their prison sentences.

Read the Governor's proclamation.

CA Gov Declares "State of Emergency" for California Prisons

2006-10-04T21:57:00.000-07:00

Today California Governor Arnold Schwarzenegger declared the massive California prison system under a state of emergency.

“Our prisons are now beyond maximum capacity, and we must act said Governor Schwarzenegger. ... I’ve ordered the Department of Corrections and Rehabilitation to begin contracting with facilities in other states to transfer inmates to available beds outside of California. These actions are necessary to protect the safety and well being of the officers, inmates and the public.” (Governor's Press Release)

The main legal effect is to allow the Department to enter into immediate contracts with states that have excess prison capacity without going through the usual state contracting procedures, and, if necessary, involuntarily transfer inmates to other states under provisions of interstate correctional compacts. (Read the Governor's proclamation). The Governor blamed the California legislature for failing to pass a number of the proposals he had placed before a special session on prison problems this past summer, proposals to build new prisons and new community custody facilities for low risk women prisoners with children. Query: Why would prison facilities projects that would have taken months or years to lease or build have any impact on a situation that requires aggressive and immediate action today.

Legislative democrats criticized Governor Schwarzenegger's actions, calling instead for parole reforms that would keep more violators of minor technical parole violations in the community rather than back in California prisons. (for Jenifer Warren's reporting, LA Times).

Since the 1970s the California prison system has been on a continuous pattern of growth which has only slowed and not stopped in recent years. If past experience with the dynamics of this largey self perpetuating prison population are a guide, it is unlikely that either the Governor's proposals, even if eventually acted on, or those of his sometime allies among legislative Democrats will . More than 22 prisons have been built in the state since 1980 (contrast that with 1 incomplete UC Campus) but overcrowding to the point of unconstitutionality has been a constant problem. Cheaper prison cells (in other states or in the community) will only make it easier to not face the structural causes of overcrowding.

Parole reform has been the call of pragmatists looking for quieter ways to reduce the prison crisis since the mid-1980s when your Jurisprude was studying California's Parole Division for his dissertation (published as Poor Discipline: Parole and the Social Control of the Underclass, 1890-1990). It has never worked and it will never work. While it is based on the correct observation that technical parole violators form a substantial part of the prison crowding problem, they only appear to be the easiest to portion to eliminate. Having defined the business of California prisons as warehousing a dangerous population, the assurance that parole violations were only minor and technical will never provide a robust political cover for substantial changes. Unlike recent California governors of both parties, Arnold Schwarzenegger has publically questioned the wisdom of warehousing California inmates with no effort a rehabilitation and re-integration. However unless he is willing to go further he will not be able to break from the legacy they have bequeathed the state.

The only prospects for real change lie in two directions (really the same but by two routes). Either a newly re-elected Governor Schwarzenegger in November could go before the public and announce that California's penal laws were crafted by a generation of "girlie men" who filled our prisons with dysfunctional but non-violent residues of our failed schools and de-industrialized cities, and that the only honest way to save the taxpayers from an endlessly expanding commitment is to dramatically reduce the number of convicted criminals sent to California prison to begin with. The state is full of strong criminal justice policy experts like Frank Zimring and Joan Petersilia, who could help draw the right lines between those who must be in prison (the violent) and those whose accountability should be achieved through other means (I favor stiff fines proportional to estimated illegal wealth earned, enforced by requirements of work, even at day labor if thats all that is available). The other route lies through an eventual judicial take over of the California prison system and an inevitable conflict between raising taxes or gutting both K-12 and Higher Education which might force the Governor to take that bold step.

Law Enforcement and its Special Interests

2006-10-03T09:14:00.000-07:00

Few political offices have been more central to the nexus of sensitivities and powers that I call "Governing through Crime" (see, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (OUP NY 2007)) than that of state governor. We can take practically each political action of a sitting governor on crime related issues as a rather precise indicator of the demands of the key constituencies empowered by the war on crime, namely law enforcement, and the conceptual category of "crime victim" (a category invoked by lots of potential actors). Consider the recent decision by Governor Arnold Schwarzengger to veto a series of bills implementing the recommendations of a commission set up by the California Senate in 2004 to investigate the causes of wrongful conviction in California (read the SF Chronicle story). The Governor was lobbied by state law enforcement groups who opposed the measures that would have required police to video tape confessions (at least of violent crime suspects) and established protocols for eye witness identification procedures. Both are subjects that have been firmly linked to the problem of wrongful convictions. There is a great deal of literature on both topics and I will blog further on this issue over the next couple of weeks, but today's question is rather different: Why is law enforcement opposed to measures that would make it less likely that an innocent person would be sent to prison (or even the death chamber) because of police errors or misconduct?

Here are some suggested answers (to be discussed further).

The Fantasy Factor
Like the tobacco industry (and at earlier time the automobile industry as well), law enforcement as a broad special interest is deeply alarmed at having to acknowledge that anything bad ever happens to innocent people as a result of their conduct.

What do these industries have in common that would lead to such a concern with obscuring rational discussion of the risks? (Hint: they all sell products that are in large part made of fantasies)

War on Crime Trumps Separation of Power
The war on crime has reworked the political dynamics between the branches of government in a way that shelters law enforcement from accountability. Legislatures and the US Congress have generally been unwilling to challenge in any way the presumption of both good will and infallibility on the part of law enforcement. It is remarkable that a bipartisan group of California legislators were able to come together to pass these bills in the first place (more on that later). Courts have been stripped (or more disturbingly still, stripped themselves) of much of their power to hold law enforcement accountable through the suppression of ill gotten evidence, or through financial responsibility in civil law suits for damages, or even to substantially investigate patterns of discriminatory behavior.

(That this is not, thank G-d, universally true, is testified to by one of Boalt Hall's most renowned graduates, the great Thelton Henderson , of the US District Court for the Northern District of California, who has been able to open the guarantuan California penal archipelago to its first serious examination in decades, see some of my earlier posts on prison litigation below).

The Decline of Investigation
Law enforcement has become reliant on forced confessions and other forms of junk evidence as a by product of its long dirty war on drugs. I shall be blogging further over the next few weeks on this third factor and the lost tradition of police investigation that has been covered over by this successful mass incarceration model. This is speculative. The conventional wisdom is that police are much more professional than they were a generation or two ago, largely a result of a decline in discretion and investment in better management, training, and technology. I don't disagree, but these improvements may have been swamped by the profound effects of urban police largely becoming embedded in a long and on going war on drugs. For a parallel that may prove fruitful, consider the discussion in Israel over whether the long involvement of the Israeli Defense Force in the suppression of Palestinian resistance to occupation on the West Bank and Gaza created internal changes the vulnerabilities of which were on display in the recent and disastrous (from Israel's perspective) Lebanese war.

Show Trials and Mass Imprisonment: Terror Justice Parallels Criminal Justice

2006-09-30T11:02:00.000-07:00

The new detainee treatment bill passed by Congress is often contrasted with the higher standard of protection for defendants provided by both military and civilian criminal justice in the United States and accurately. Even the enhanced protections offered terror suspects placed on trial are a far cry from the protections accorded defendants in ordinary criminal trials. In another respect, however, the new model of what we might call "terror justice" parallels the US criminal justice system. Both operate an essentially bifurcated process. At one pole of this process are celebrity defendants, either by virtue of their previous fame or the infamy of their crime, or both (OJ Simpson). In the terror context these are the so called "high value" Al Qaeda prisoners that were recently brought to Guantanamo Bay and now likely face trial before military tribunals to be quickly formed under the new law and implementing regulation sometime this spring. (Officials Plan to Move Quickly for Terrorism Trials in the Spring). In the domestic criminal justice context, these are usually defendants charged with aggravated murders. In both cases the government's intent to execute the defendants makes the cases inherently more spectacular. Here also the process becomes the most protective involving adversary proceedings with rights to challenge the evidence before a somewhat neutral decision maker.

While there is likely to be a huge proceedural gap between the criminal trial of a capital murder defendant in civilian court (or military court) in the United States and that which Khaleed Sheik Mohammed is likely to face in a capital trial before a military commission sometime this spring, both differ greatly from the fate a far larger mass of anonymous "low value" criminals. At this opposite pole of both the terror and the criminal justice system, suspects move from the street the prison based largely on categoric judgments of dangerousness based on demographic considerations like race, age, and sex. In contrast with the show trials at the other pole, these mass prisoners move into incarceration based on largely ureviewable executive discretion. It is true that defendants in the US domestic system have a right to a lawyer and adversarial trial, but as Professor Markus Dubber forcefully argues in his book, Victims in the War on Crime, for large swaths of these defendants charged with possession crimes (like possession of more than five grams of crack cocaine) and possession/status crimes (like being a felon in possession of a weapon) these procedural rights are virtually meaningless (at least after suppression motions have been attempted) and most move swiftly to prison with only the marginal involvement of the adversary process and little or no public attention.

Where Have You Gone Joe Friday? Technology and Mass Surveillance vs Old Fashioned Policing in the War on Terror

2006-09-07T21:30:00.000-07:00

As we reflect on the 5th Anniversary of the terror attacks of September 11, 2001 it is important that the debate over security versus liberty (and privacy) not obscure the debate over how security is to be obtained. Let us start with the blunt fact that from a policing perspective, the 9/11 plot was highly vulnerable to traditional suspicion based surveillance. As documented by the 9/11 Commission, American officials were aware of the presence within the United States of all of the terrorists. Some of these individuals were known by other American officials to be involved in militant Islamist politics in Europe. Famously our government agencies "failed to connect the dots" but that should not satisfy us. Any close surveillance of these individuals would have raised many deeper reasons for suspicion. Why were they in flight schools? How were they being financed? Even had prior knowledge of the terrorists not identified them as persons worthy of suspicion, their behavior alone, especially their highly irregular conduct in Miami when Mohammed Atta and one of his associates flew a small private aircraft from their flight school to the very busy Miami International Airport, and then left the aircraft on the tarmac after abandoning their take off.

Instead of an effort to improve our law enforcement ability to identify and follow suspicious persons, the Bush administration's war on terror has consisted of intimidating orders to appear for questioning to thousands of Muslim immigrants to the United States, imprisoning for five years hundreds of apparently "low value" suspects in Guantamo, torturing (or close to it) higher value suspects in secret prisons around the world, overthrowing governments in Afghanistan and Iraq and replacing them with apparently more democratic governments which continue to survive only with US military (or NATO) life support, and high technology surveillance of international phone calls.

This is a broader pattern of global security that has fed on the bad example of the American war on crime. While the rhetoric of the war on crime celebrated police, the tactics emphasized rounding up low value suspects through relatively easy low grade surveillance and seizure. For more serious crime coercive interrogation, jail house informants, and if necessary, police perjury became all too common approaches as DNA exonerations in recent years and the exposure of police fabrication in the conviction of over forty mostly black residents of Tulia Texas case has documented. The minimal concern with the seriousness or even guilt of arrestees reflected a belief that incarcerating large numbers of potentially dangerous criminals would repress crime so careful investigations were superfluous.

We see it reflected in an international anti-doping effort in sport that is largely dependent on drug testing rather than police investigation. (See, Brian Alexander, Tour de Farce).

We see it reflected in the preference of many contemporary mayors spending money on high technology license plate readers and road side video surveillance cameras over money for community policing.

The reliance on technology and mass surveillance over close police investigation of suspicious individuals is promising only if you like the logic of the war on drugs. We need a new paradigm across a whole set of security problems (from terror, to urban crime, to white collar crime, and to sports), but fortunately its an old paradigm, i.e., investigation that relies on knowing a community and its residents rather than on broad dragnets or coercive tactics. A community policing approach, to say, doping in sports, would not require harsh prison terms for those found doping, or even formal criminalization. Police can seek to discover the source of nuisances that endanger the health and well being of the community and seek civil measures to restrain the abusive behavior.

What would a "community policing" approach to homeland security look like? First it would involve direct contacts between law enforcement and Muslim immigrant communities to assure them that they are part of the community being protected and that threats of hate crimes as well as initimidating tactics by federal authorities. Political scientist David Thacher has described this kind of approach by the police in Dearborn Michigan, a city with the highest concentration of Middle-Eastern immigrants and their off spring in the United States. Second, it would involve expanding police staffing to permit permanent site appropriate surveillance of vulnerable terrorism targets (police departments today are doing this on a limited basis, but at a cost of stretching existing resources). Third, it would require upgrading the communication and command integration of police and other first responding organizations to assure that rescuers would have the best possible chance of saving lives (including their own).

Bush Returns to the War on Crime as the War on Terror in Iraq Falters

2006-09-06T21:44:00.000-07:00

In my forthcoming book, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (OUP NY: release date October 18, 2006)
I explore the ways America's long "war on crime" has influenced not just elections but how American institutions govern. Since the 1960s politicians and leaders of all sorts have shifted their focus to addressing problems defined as crime problems and emphasized the tools, rhetorics, and mentalities of criminal justice, especially practices of exclusion and punishment. No office has been more shaped by this than that of the American presidency and no president (including Nixon and Bush I) more exemplifies the conversion of commander-in-chief (and New Deal economic commander in chief) to prosecutor-in-chief, than George W. Bush. As Govenor of Texas, Bush emphasized tough punishment for juveniles, the death penalty, and a quasi crime model of reforming public services exemplified by the test, stigmatize, and punish model of school reform he eventually legislated on the national level as No-Child Left Behind. Presiding over the execution of more than 150 condemned convicts, Bush entered office the most sanguinary chief executive in a western country since the death of Francisco Franco. The attacks of September 11, 2001 gave Bush a chance to remake himself as a national political leader on a different landscape of international affairs and national defense. Eager to declare himself a "war president" and invoking chief executives like FDR, Bush lambasted his 2004 Democratic opponent for taking a "law enforcement" approach to the war on terror. But two years later, as a national consensus emerges that the war in Iraq is both a disaster and one only loosely coupled (even now) with the specific threats that emerged on September 11, Bush has returned to the tried and true path of chief executive as prosecutor. In the third of a series of speeches widely telegraphed as designed to set the agenda for the fall Congressional campaign, the President announced that 14 "high profile" terror suspects will be moved from previously unacknowledged CIA secret prisons to the governments detention center in Guantanamo Bay Cuba (see New York Times story). The move toward openess was explicitly justified as necessary to enable all the families of September 11 victims to receive justice (presumably through the conviction and execution of major Al Qaeda figures). In doing so Bush is making the now classic crime moves of an executive: define a frightening figure of criminal violence, step forward to impose harsh punishment in the name of victims, and dare legislative and judicial institutions to set limits or impose obstructions in the name of due process. Bush (and probably Rove) believe this offers the best chance to shore up Republican prospects against polls showing strong national preference for the Democrats and disenchantment with both the war on terror and the economy. Will it work? I'm not sure, but I am confident that if followed this strategy will close the gap in national opinion polls before the November election.

Labor Day with Memories of May

2006-09-01T20:55:00.000-07:00

Americans pay tribute to labor on the first weekend in September and to make sure no one connects that to the socialist/communist tradition of celebrating labor on, May Day, or May 1st. Never a nation to leave its ideological belt unprotected by suspenders, tbe United States also marks May 1st as "Law Day."

This labor day, however, a more direct effort will be made to connect the two days. Undocmented immigrants and their supporters in several major cities are planning to march again as they did in numbers not seen in decades last May.

Labor day also marks the historic beginning of the fall campaign in federal election years. This year the Republican majority in the House and Senate is under menace and we can expect a resumption of last spring's effort by the Republican majority in the House to enact a law marking the undocumented non-citizen as a felon.

Observers of the May 1 marches by immigrants and their supporters may well wonder what precisely these demonstrations meant. The multitudes that took to the streets of American cities carried many signs, some of which point in different directions, but that should not stop us from receiving the message they could agree on. What the marchers all shared, and pronounced loudly and clearly, was the rejection of crime as the primary category in which to place the problems posed by all, most, or even many, of the immigrants who enter the United States without the permission of its government.

laws require immigrants to obtain permission before entering this country, but that does not mean it is sensible for government to treat the millions of individuals currently doing so primarily as serious criminals. The current House bill would convert what is now at most a misdemeanor (the least serious crimes which are rarely punished with imprisonment) to an “aggravated felony.” While it is tempting to treat this aspect of the House bill as “extreme” (and what ever ultimately emerges from Capital Hill is certain to proclaim itself less so), the logic of taking complicated social problems as mainly about crime has become a common, indeed I would argue, distinctive American approach to governance in recent decades (one participated in by both parties with full enthusiasm). The appeal of governing through crime has become so strong that reform of many kinds in many important institutions in the

United States

today must work its way along paths of association with serious crime (or its latest variation, terrorism). It is hardly surprising that our law makers would return to this trusty solution to political consensus (and indeed crime and immigration policies have steadily converged in recent years).

But what the marchers call us to consider is the high cost for all of us in treating as serious criminals, the vast majority of immigrants who come here not to steal or assault, but to labor for an honest (if low) wage regardless of the legal status of their entry. Defining such people as “aggravated felons” invites further policy development to look toward even more reliance on law enforcement and harsh punishments, at a time when unprecedented numbers of people are already incarcerated in the United States. It also invites those of use who enjoy legal status here to view ourselves primarily as crime victims rather than as workers, consumers, and taxpayers, who receive a bewildering array of costs and benefits from the large pool of laborers who enter without permission.

If we listen a bit more to multitudes of May, we can hear a second clear message. This is primarily a problem of labor. Placing illegal immigration in the category of labor does not necessarily point to a clear (let alone a simple) solution. Indeed it is likely to confront us with serious conflicts, not just between those here legally and those not, but within the much larger first group. Labor problems have always divided Americans in ways that crime problems rarely do. There are inevitably different interests and none of them can be morally excluded (the way we largely do the interests of “aggravated felons”). American politics once swirled around the problems of labor, but in recent decades that framework has fallen silent (often replaced by talk about crime concerns). Being called back to those conflicts will not be pleasant (especially for politicians) but this is where the new debate in Congress should start.

United Kingdom/United States: Differences of Differences

2006-08-21T18:14:00.000-07:00

Attempted bombing and conspiracy charges filed by the British government against 11 suspects, most of them British subjects whose families immigrated from Pakistan raises a set of intriguing comparative questions about the security situation in the United States. If the British charges hold up, we would have both a completed act of terrorism, the London subway bombings of July 2005, and a well calculated and in progress plan for mass terrorism comparable to 9/11 or worse. In contrast, there have been no reported terrorist attacks or serious attempts since Richard Reid's bizarre but potentially deadly shoe bombing attempt on a flight from Paris to Miami. Several alleged terrorist cells have been prosecuted, but the general consensus seems to be that none represented an imminent threat of credible violence. Even Homeland Security Secretary Michael Chertoff acknowledged this when he said of the British plot that it was much more than a thought or idea, apparently referring to the recent Miami conspiracy charges. So here is the comparative research question. Both countries have lots of immigrants from Muslim countries (and even Pakistan specifically). Both countries have engaged in the war in Iraq, support for Israel's bombing of Lebanon, and other arguably provocative acts.

Does the lack of discovered credible terror plots in the US since 9/11 suggest:

A. That the US is a "melting pot" society that does a better job not alienating Muslim immigrants? Thats the apparent view of the New York Times today.

B. Selection bias, i.e., different people (with a different relationship to the origins of Jihadi violence) immigrate from the same Islamic countries to the UK and the US.

C. That the British M15 is a more effective agency for discovering terror plots than the US FBI, Homeland Security, and domestic law enforcement agencies. Either because (1) they (UK) are less bound by constitutional and statutory restrictions (the Bush administration view) or (2) they (UK) rely more on traditional policing of suspicious individuals and less on both high technology data mining and low tech coercive interrogation methods (legal and illegal) than the US does?

D. Both results are arbitrary fictions of security agencies obsessively focused on Muslim immigrants and ignoring the real threat posed by others who do not fit the profiles but may have ideological or other reasons to produce acts of violence.

E. Make up your own theory

Why She Quit the Prison System

2006-08-11T11:46:00.000-07:00

The state of California's massive prison system remains a subject of rare public discourse this week as the California Legislature is back for a special session largely focused on approving more money for corrections (more on that in a minute) and an election for governor looming in November. Schwarnegger called the special session arguing that for his reform and rehabilition oriented corrections vision to work, the system had to build enough new prison space to get ahead of the current overcrowding. It is true that California prisons are running well beyond design capacity and that space for any kind of rehabilitative programming is largely taken up with beds. The Governors proposal also includes some measures that are attractive to those opposed to an ever expanding prison system. Some new money would go into creating community facilities where prisoners pending release could get started in "reentry" before beginning their period of parole and the Governor would also move a large portion of the state's female prisoners to new facilities closer to the communities and families they come from. Critics support both of the latter proposals but argue that the much larger share of the money going to expanding the state's base of prisons will only lead to more overcrowding in an even larger system.

Its not clear how much difference Schwarnegger's open appeal to reform and rehabilitation really differentiates this moment for others over the past tweny years during which the executive and legislative branches have been mutually engaged in expanding the prison system. But one clear difference is the emergence of some key critics who are not part of the political elite in Sacramento and yet closer to power than academic critics (like your Jurisprude). On is Special Master John Hagar, whose blistering report and hearings were discussed in an earlier posting. This week sees the emergence of an even more unique voice for reform, that of Jeanne Woodford, former warden of San Quentin, former Director of the Department of Corrections, and until April, acting head of the Youth and Adult Correctional Agency (which oversees both the Department of Rehabilitation and Corrections and the state's juvenile justic system).

In a Los Angeles Times editorial column, on August 6, 2006, Woodford offered her first public statement on why she resigned that job last spring, only weeks after stepping in to fill the post when her predecessor, Rod Hickman resigned. Her reasons were simple enough. She left San Quentin where she already had a reputation as a reformer, to take over the statewide agency in belief that Governor Schwarznegger, who ran promising to blow up the boxes of California state government, would reform a real agenda for the first time in decades.

But despite high hopes at the inception, the reality is that not much has changed. Because of short-term political concerns on the part of state legislators, pandering campaign tactics that make politicians scared to be seen as soft on crime, and the extraordinary power of the correctional officers union, it's been impossible to truly turn around the system. Chronic underfunding and prison overpopulation continue, and the recidivism rate remains the highest in the country.

Woodford speaks for the unique perspective of a career spent entirely in California prisons, starting as a 24 year old correctional officer at San Quentin. During her time, the inmate population went from 26,000 to 170,000 and the budget of the Department of Corrections and Rehabilitation will exceed 8 billion dollars notwithstanding chronic overcrowding an a medical system so broken that the state allowed it to be taken over by the federal government without opposition. What she has seen and understood is a story California voters need to know and which cannot almost certainly will not be part of the public discourse this election cycle or any other so long as both major political parties remain locked in a competition over who will act tougher against crime.

Neither Schwarzenegger nor his Democratic opponent, Phil Agelides, has shown any willingness to challenge the prevailing wisdom that locking the the way to govern well is to put the maximum number of people up for as long as possible. The fear of broaching that apparent consensus, and not the dollars of the Correctional Officers' union is what makes it very difficult for voices as qualified as that of Jeanne Woodford to change current course toward an ever more penal state. Still this is a time with more potential for a broad debate about penal policy to break out than any in recent memorh. California has openly admitted that its basic capacity to manage the present prison population is in a crisis. Even the request for more prisons is being made in the name of making space for reform programs rather than on the ability of more prisons to make Californians safer. A growing body of proposals for reforming the California system have been put forward by organizations like the Little Hoover Commission and the National Council on Crime and Delinquency. Jeanne Woodford is in a unique position to help convince the public of the need for fundamentally new thinking in correctional policy. One hopes that this op-ed piece is the first and not the last of her efforts to educate the public on why she quit the prison system.

Mass Imprisonment and Low Intensity Civil War

2006-08-04T09:51:00.000-07:00

One of the predicates to the Hamas and Hezbollah raids that kicked off this summer's (other) mid-east war is the nearly 10,000 Palestinian prisoners held in Israeli prisons, see, Craig S. Smith, "Freeing Prisoners Key Goal in Fight Agains Israel, "The New York Times, Friday August 4, 2006, A1. Sometime during the first Palestinian Intifada in the 1980s, Israel began to adopt extended incarceration as its primary strategy for containing the young Palestinian men in the occupied territories from engaging in a wide range of militant resistance activity against Israel (from stone throwing to murder). This never disappeared during the period of the Oslo peace process, as Israel used its imprisonment capacity to deal with militancy that its official partner in the PLO would or could not. Since the second Intifada began in 2000, this carceral strategy has hardened. As the tactics on the streets became more violent, so to has the number of Palestinians serving life sentences. (If anyone knows where there are good numbers on the proportion of life sentenced prisoners among Palestinians in Israeli detention, please post it or email me). The seizure of Israeli soldiers by Hamas and Hezbollah commandos last month, may signal the rise of the prisoner issue as a primary motivator of militancy (along with the older issues of land and blood) and bring Israel's carceral strategy for containing what has been, in effect, a low intensity civil war, into more global scrutiny.

From the perspective of Americans, the Israeli use of imprisonment as a central feature of its long term security management resonates with at least two features of our own national security landscape. Since 9/11, the Bush administration has adopted long term custody of Islamic militants suspected of jihadi terrorism as a primary strategy of its "global war on terror". Prisons like Abu Ghraib, Camp X-Ray, and un named secret prisons in Eastern Europe and Asia, have become some of the most controversial features of American strategy. Perhaps this reflects some direct borrowing from Israel of incarceration as a straetgy to suppress violent militancy. If so, one wonders why the US would embrace a strategy that at best is designed to maintain a permanent state of war, albeit within what its planners hope will be more acceptable risks of continuing violence.

The second analog is surely to the form of mass imprisonment that America has adopted in the war on crime and which has produced unprecedented levels of incarceration and the routinization of punishment for specific segments of the American population, like young African American men in the central cities. Criminologists, including your Jurisprude, have spoken of this as "mass imprisonment" in several senses that might be compared "mass communications", or "mass media", or even, to quote James Jacob's classic book, "mass society." It is mass imprisonment, because the priso is no no longer concerned primarily with the individual offender (Foucault suggested it was intended to be a veritable factory of individualism), but is instead self consciously applied to a population of "high risk" subjects. It is mass because it is carried out with little hope that it can become smaller again. The goal is not transforming young offenders into "normal" subjects, or even deterring law abiding subjects, but instead to permanently manage a segment of the most crime prone population. It is mass in the sense that it is routine, non-exceptional, and has become an established pathway through society. None of these mean that it is evenly distributed, it is highly targetted on young minority male subjects, but in their belonging to such a population. All of these features conspire to make mass imprisonment, and the criminal justice system that supplies it highly corrupting to a democratic society. Specificially, the resulting security systems are highly insulated and non-responsive to community needs, unaccountable to traditional notions of due process, and unconstrained by the aspiration to achieve a positive transformation of the subject.

I do not know whether there was any borrowing of mass imprisonment by Israel from the United States. We can see some clear similarities. The occupied territories produce many of the same kind of social control problems that America's zones of hardened urban poverty do. Both Israeli security and the US criminal justice system have the goal of making secure one population by aggressively policing another, creating massive problems of legitimacy and cooperation. In both contexts, mass imprisonment seems to be a measure of desperation as liberal governments struggle to achieve security demanded by a racially polarized electorate, under conditions of racialized social conflict, without departing too far from global norms of human rights. Along with the security wall Israel is building through the West Bank, mass imprisonment may represent a long term "solution" acceptable to Israel's political class. If so we can expect this summer's bloodbath to be part of a long term pattern.

Here, however, the parallels stop. Israel may ultimately develop a political solution to its conflict with the Palestinians. On that day, or more likely, on the way to it, thousands of Palestinian prisoners will return from detention to their settlements in the West Bank and Gaza. There they will be greeted as heros, by families whose sustenance has been a long term concern of Palestinian administrations. They will return having maintained a sense of pride in their identity as resistance fighters. That sense of honor, and the draw of fulfilling the promise of awaiting families, is surely the best hope for long term peace.

What of America's tens of thousands of prisoners? There seems little likelihood of a political settlement that would bring them home, nor has there been any effort to preserve or create a home for them. We might start with trying to imagine a way out of this carceral maze. A form of peace with honor from the war on crime.

I'm not aware of any scholarly work on Israeli detention centers for Palestinian prisons. On the court system that regulates this detention see, Lisa Hajjar, Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (University of California Press, 2005)

Law and Politics in California Prisons

2006-07-17T10:12:00.000-07:00

There is no time like the present to be studying the interaction of courts and state government in shaping California prison policy. Case in point is the remarkable statements by John Hagar, the Special Master appointed by Judge Thelton Henderson to 0versee a broad set of prison reforms in California prisons. In a unique "Draft Report" filed on June 20, 2006 and in a hearing on July 12th, Hagar accused the sitting Governor and his political aids of entering a pre-election conspiracy with the politically powerful California Correctional Peace Officers Association (CCPOA). Hagar began by praising the Schwarznegger administration during its first 24 months for "one of the most productive periods of prison reform in California history." Indeed, after his recall victory in 2003, Schwarznegger moved rapidy to settle a number of law suits against the prison system, conceding major constitutional violations, and called for a reinvigorated committment to rehabilitation in California prisons (going so far as to rename the agency.

Since the Governor's defeat in last year's ballot refenda battle and his hiring of former Gray Davis aid Susan Kennedy, reform has been effectively stalled. A weakened Schwarznegger still espouses reform, but Hagar charges the Governor is now in a deferential posture toward the powerful CCPOA. According to Hagar union representatives have met directly with Kennedy to negotiate about prison management issues, effectively cutting the top management of the Youth and Adult Correctional Agency and the California Department of Corrections.

The acccusations, denied by Kennedy and other Schwarznegger officials, may shed light on the rapid fire resignations earlier this spring of two major reform administrators. Secretary of the Youth and Adult Correctional Agency, Rod Hickman, and his replacement, former Director of Corrections Jeanne Woodford. Both resigned indicating frustration at the pace of reform.

Fascinatingly, this is not just about heated rhetoric. The Special Master seems likely to refer several former California Correctional officials for federal criminal charges relating to the mistreatment of a whiste blower who reported inmate abuse at California's notorious Pelican Bay prison.

Jennifer Warren's reporting in the LA Times.

Mike Martin's reporting in the SF Chronicle on the June draft report

The Limits of Coercive Power

2006-07-15T18:51:00.000-07:00

Your jurisprude was recently rereading the classic study of coercive power under law, William K. Muir's Police: Streetcorner Politicians (Chicago 1977). After noting that policing is essentially about coercive power, Muir says this about the limits of coercive power.

"The truly dispossesed --- those who have nothing to lose, the life prisoner in solitary, the deadbeat, the bankrupt, and the visionary whose life is worth less than his martyrdom --- are not vulnerable to extortionate power. ... Let us call this curious freedom from coercive threats the paradox of dispossession. The less one has, the less one has to lose." (Muir 1977, 38-9)

Does anyone think it would be worth sending a copy to Israeli Prime Minister Ehud Olmert? It seems obvious to this observer (one with great compassion personally for both sides) that one could easily add Hamas and much of Gaza to Muir's litany of the dispossessed without any stretch. But this puts Israel at the heart of Muir's paradox. If they want a purely military victory they can attain that by driving the population off the land altogether or killing them, but if they want a police victory, if they want to be able to govern rather than eliminate Palestinian society (or even allow anyone else to do so) they are already operating at the limits of their ability to coerce.

Law School Teaching and Interdisciplinary Scholarship

2006-06-19T16:29:00.000-07:00

I'm just back from attending a AALS Mid-Year Workshop devoted to Criminal Law and Criminal Procedure, subtitled "Lessons from Other Disciplines and New Realities" where I spoke on a panel titled "Learning from Sociology and Political Science" along with Tracey Meares (University of Chicago) and Austin Sarat (Amherst College) . Other panels addressed history (mainly of criminal procedure); race and gender studies; economics (death penalty deterrence theories); and psychology. As they might suggest, the proceedings provided yet another glimpse at the increasing role of non-law disciplines, especially the social sciences, on law school faculty professional development. The participants included several speakers who are primarily non-lawyer social scientists doing quantitative empirical work including Richard Berk (UCLA), Jeffrey Fagan (Columbia) and Shari Diamond (Northwestern). A decade ago none of them would likely have been on a law faculty, which had little use for quantitative social scientists, today two of the three of them are and I'm sure Berk could move to a law school faculty today if it was his priority. A number of other participants lack a PhD but have been doing serious empirical work either collaboration or solo for some time including Christopher Slobogin (University of Florida) and Tracey Meares, and Boalt Hall's own David Sklansky.

The panels mainly addressed scholarship but some presentations, including that of your Jurisprude, were focused on teaching and a whole final panel addressed that topic. As a speaker and a member of the audience at most of the conference (I missed the first panel on history) I was struck by a certain tension between the two. On the one hand this professional development conference of the establishment AALS seemed to have the very clear subtext to new criminal law and criminal procedure teachers that scholarship based on disciplinary and interdisciplinary approaches is where the action is (a proposition I can't disagree with) and where new law teachers should go in developing their research agendas. On the other hand the teachers themselves were mainly coming from practice (after careers as prosecutors or public defenders) rather than PhD programs. Moreover the conversations I had suggests that teaching remains oriented toward furthering the classic 20th century law student skills (regardless how much lawyering may have changed since 1950). By far the most popular casebook mentioned in the small group I attended was that by Joshua Dressler (Ohio State), a distinguished scholar of both criminal law and criminal procedure whose work embodies the classic virtues of doctrinal scholarship. Thus a growing divergence. Scholarship better be responsive to disciplinary and interdisciplinary methods and theories if you want to get tenure and have lateral prospects, but if teaching strays too far from doctrine beware your teaching evaluations!

Law and Empirical Studies, Signs of the Times

2006-05-30T15:20:00.000-07:00

For anyone interested in the robustness of the current academic law interest in empirical studies, the scene in Boalt Hall's Goldberg room last Thursday was interesting. JSP's own Rob MacCoun (JSP and the Goldman School of Public Policy), www.law.berkeley.edu/faculty/profiles/facultyProfile.php?facID=239, gave a lecture/mini-workshop on quantitative analysis. I expected maybe 15 or 20 colleagus to show up. By my count more than 40 were in attendance. The lecture was superb and raised a lot of key questions about reading empirical findings in the now conventional regression table format that his becoming very common at job talks here at Boalt and elsewhere. Rob pointed out that quantitative research isn't really about numbers, but about concepts. Brilliant numbers cannot save a bone-head concept. Moreover, all numbers are vulnerable to error so that careful researchers seek to triangulate around their predictions.

Notice that such triangulation requires something totally non-statistical, i.e., a convincing story about what the output you are counting really means in context. Of course telling such a story requires theory and qualitative information about the entities emitting the numbers. This leads to Simon's first law of the new empirical order:

The race is not to the quantitatively swift but to those who can marry quantitative and qualitative data in the most creative and theoretically reflexive ways.

Probing the Penal State

2006-05-16T22:40:00.000-07:00

May 5 and 6th JSP co-sponsored a conference titled "Probing the Penal State" that brought together faculty and graduate students from Princeton, University of Chicago, and Berkeley. The conference was organized by Loic Wacquant, of Berkeley's Sociology Department, and Bruce Western of Princeton's Sociology Department. Students reported on a wide range of scholarship exploring aspects of hyper incarceration in America and its correlates. Topics included ethnographies of parolees who work in the commercial day labor industry and of young black men in urban Philadelphia who spend much of their time in legal limbo wanted on warrant, and quantitative research on the affect of incarceration on families. The conference reveals a distinct revival of socio-legal research on penal institutions. In the 1980s when I was in JSP, it was one of the few places to study the growing trend of hyper or mass incarceration in America. Few if any sociology or political science graduate students were encouraged to do research on penality. Today it is very much on the agenda of both disciplines, as well as economics and psychology. JSP continues to attract students interested in the field. Santhi Leon, a recent Boalt JD who is working on a dissertation on the new wave of sex offender laws presented some analysis of the forms of psychiatric expertise mobilized in earlier periods of heightened enforcement of laws against sex offenders. Kellie Bryant, who just completed her first year in the JSP program, presented a paper on the Supreme Court's decision of last year in Johnson v. California, holding that California's practice of segregating some inmates on the basis of race as a hedge against gang violence must be tested against the heightened standard fo racial classifications. Bryant sees the case as balancing two faces of the penal state, rights protector and security enforcer.

For further information on the conference see:

http://igov.berkeley.edu/conferences/

	Republican	Democrat	Winner
1980	Reagan	Carter	Reagan
1984	Reagan	Mondale	Reagan
1988	Bush I	Dukakis	Bush I
1992	Bush I	Clinton	Clinton
1996	Dole	Clinton	Clinton
2000	Bush II	Gore	Bush II *
2004	Bush II	Kerry	Bush I