inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #51 of 101: Lisa Harris (lrph) Thu 19 Jul 07 12:31
I don't think anyone thinks that murderers and rapists should walk the
streets with a slap on the wrist. But the governing Through Crime has more
to do with a pervasive attitude that crime is so prevalent and we have to
protect the victims and potential victims from the criminals and potential
criminals. That our reasoning for the laws themselves are because of crime,
rather than what is good and right.
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #52 of 101: Jack King (gjk) Thu 19 Jul 07 12:49

I would never let the prosecutor or govt witnesses use the word "victim" in
front of a jury.  It is quinessentially prejudical, as in most crimes there
is no "victim" until a jury finds that a crime has in fact been committed.

"Complainant" or "complaining witness" work just fine.
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #53 of 101: Lisa Harris (lrph) Thu 19 Jul 07 16:03
That sounds like you're a defense attorney. and in that vein, you would be

I am currently reading a book about Youth Sports (for a future inkwell
interview) and there is an example of GTC that I think explains the concept
well.  In the past few years there has been an increase in violence against
parents, coaches, referees and even children playing youth sports.  Because
of this 21 states have passed specific laws regarding violence in  youth
sport related veins.  The fact is, each of these states already had laws
dealing with violence.  Now, we are governing our sports programs through
crime (you can or can not behave this way) rather than letting the sports
programs be sports programs, and if/when violence erupts deal with it as the
isolated issue it is.
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #54 of 101: Jonathan Simon (jonathan-simon) Thu 19 Jul 07 17:18
Governing through crime begins when we start treating matters as
crimes primarily because it is an easier (politically, economically,
legally, or for many reasons) way to govern them, rather than because
the underlying behavior is so alarming or damaging or offensive, that
it calls for the stigma and the pain involved in criminal punishments
(I'm not claiming there is an utterly determinate set of true "crimes"
but only that competent members of our culture can at least deliberate
on the answer to that).

Let me give you an example that is a hard one in the sense that I'm
not sure what to do.  The untreated mentally ill (whether do to refusal
to take medication or inability) who roam many of our cities often
find themselves in the criminal justice system because their behavior
is alarming to residents  and because it technically violates laws and
ordinances that we roughly call "quality of life" laws, like those
prohibiting urination in the park, etc.  Our large jails are becoming
the major asylums in our societies and prisons are not far behind.

While almost everyone agrees this is a terrible result that leads to
tragic deaths (read Mary Beth Pfeiffer's Crazy in America) and greatly
increases the management difficulties faced by police and jail
personnel, nobody has a good alternative.  The only serious reform
effort underway today involves improving the mental health intelligence
of courts and jails, through jail based clinicians and mental health
or behavioral health courts that bring clinical knowledge into their
case management (the Bay Area is very good in this regard).  Moreover,
many families of the mentally ill welcome arrest as the only way to get
their loved ones off the streets and into treatment.

Isn't their an alternative way to govern the untreated mentally ill
other than to arrest them and hope they end up in a humane therapeutic
court of some sort?  

We could invest hugely more in settling the mentally ill homeless into
treatment oriented residential settings where the vast majority would
be much  more likely to take their meds even if you didn't force them. 
But there is no political support for this kind of expansion of the
welfare state.  Indeed, Governor Schwarzenegger's recent budget would
cut millions for such programs.

We could go back to allowing civil courts confine the mentally ill in
asylums (or even community based but mandatory treatment programs) on
the motion of family members or guardians (or the police) but to do so
would require major statutory and possibly constitutional changes.  It
would also raise at least the specter of a return to the abuses of the
past when asylums were almost as full as prisons are today (and just as
empty of treatment), and people were sometimes confined for being
"difficult" (including prematurely feminist housewives back in the 50s
and earlier).

My own preference would be some combination of a welfare and strong
civil governance model.  I think we could guard against the abuses of
the past through drafting in careful safeguards for the liberty
interests of the mentally ill and design efficient community based
programs that would be less costly then jail and prison.  But I have to
acknowledge that the political and even constitutional barriers are
formidable.  For the forseeable future more humane therapeutic courts,
jails and prisons are probably the best goals we can attain, and that
means governing the problem through crime.

Let me take another example (just to get things going in a number of
directions).  We clearly cannot agree as a polity on what to do about
immigrants  who are in the US either without lawful entry papers, or in
a status that violates the terms of those visas (they are working a
tourist or educational visa).  All Americans clearly benefit in some
ways from the labor produced by those immigrants.  Some are clearly
hurt in their economic prospects and some would argue that we are all
hurt by the flouting of our national entry laws.

As the recent immigration bill debacle demonstrated, their is neither
consensus on what to do about this nor even much clarity on what
institutions could effectively negotiate an acceptable compromise.  

So in the absence of an effective policy to govern immigration and the
labor markets of the US what has emerged is, you guessed it, governing
immigration through crime.  Since the 1990s we have steadily ratcheted
up the use of crime as reason to remove even legal resident aliens
from the US without substantial opportunity for courts to consider
equitable considerations (e.g., a legal resident alien who has lived in
SF for 25 years since he moved here from El Salvador at age 4 and is
arrested with a small amount of marijuana may be subject to only a fine
or perhaps probation in criminal court, but is treated as an
aggravated felon for purposes of the immigration code and is subject to
mandatory detention until deportation, even he has a wife and four US
citizen kids).  

As recently detailed in a series in the  NYTimes, aliens, both legal
and illegal, who are found to have violated immigration rules
increasingly find themselves in custody in actual jails and prisons
(even though its supposed to be "civil custody").  As towns and cities
express anxiety about immigration, more local police are being asked to
use criminal law to arrest immigrants and even landlords who rent to

I have no easy solution to the problem of unregulated immigration and
the labor market that comes to depend on access to such labor, but I am
convinced that governing this problem through crime, as we are doing
is both cruel (it subjects all kinds of good people to the risk of
imprisonment and of crossing a highly enforce border --- see Babel if
you haven't).  Also, by defining the undocumented as criminals (to
which are added "criminal aliens") we actually make it harder to
negotiate the complex compromise we must ultimately reach by
encouraging US citizens and legal aliens to think of themselves as
innocent victims rather than as participants with complex relationships
to both the costs and benefits of unregulated immigration.

While I do not have a solution, I have a theory that allows me to at
least choose among solutions.  Put simply, I'm against any approach to
addressing the immigration crisis that treats either the undocumented
or their employers, landlords, etc. as criminals or with imprisonment
of any kind.  I'm for solutions that move us toward developing other
handles on the problem.  

Example, if we had national health insurance that was not employer
based, we could enforce a requirement that employers pay special taxes
into the health system to cover the costs of the undocumented they
hired (who are not already covered by the system).  This would go a
long way to reducing the low wage economic incentives to hire the
undocumented, while giving us a civil handle the flow of such
immigrants (who would not have to hide).  Enforcement would focus on
payment not on the status of who you hired.  Yes ultimately, an
employer that flouted the tax and refused to pay might have to go to
jail, but not for hiring the wrong kind of people, for cheating the
health care system.

More later on what I would reserve criminal law and punishment for.
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #55 of 101: Michael E. Marotta (mercury) Thu 19 Jul 07 19:23
Thank you, professor.  (Actually, in the German style, "Doctor Jurist
Simon" once for the Ph.D. and once for the JD ... and the WELL blurb
failed to mention "associate dean.")  Back to that, later.

re Lisa Harris in #53 -- One would think that "larceny" is pretty much
a crime on its own merits, but, here in Michigan, it seems that mere
"larceny" needs some help.  At my community college, my instructor for
criminal law and constitution law was actually from Ohio, down the road
a piece, and she would make fun of Michigan by saying that larceny
from a blueberry patch is a separate crime here.

From Michigan Compiled Laws:
Section 750.356 Section Larceny. 
Section 750.356a Section Larceny; motor vehicles or trailers;
aggregate value; prior convictions; breaking or entering; damaging. 
Section 750.357 Section Larceny from the person. 
Section 750.357a Section Larceny of livestock. 
Section 750.357b Section Committing larceny by stealing firearm of
another person as felony; penalty. 
Section 750.358 Section Larceny at a fire. 
Section 750.359 Section Larceny from vacant dwelling. 
Section 750.360 Section Larceny; places of abode, work, storage,
conveyance, worship and other places. 
Section 750.360a Section Electronic or magnetic theft detection;
shielding merchandise prohibited; violation as crime. 
Section 750.361 Section Larceny or maliciously removing journal
bearings or brasses. 
Section 750.362 Section Larceny by conversion. 
Section 750.362a Section Larceny; rented motor vehicle, trailer or
other tangible property; penalty. 
Section 750.363 Section Larceny by false personation. 
Section 750.364 Section Larceny from libraries. 
Section 750.365 Section Larceny from car or persons detained or
injured by accident. 
Section 750.367 Section Taking or injuring trees, shrubs, vines,
Section 750.367a Section Larceny of rationed goods, wares and
Section 750.406 Section Military stores, larceny, embezzlement or
Section 750.411j Section Definitions. 
Section 750.529a Section Carjacking; felony; penalty; “in the course
of committing a larceny of a motor vehicle” defined; consecutive
Section 750.530 Section Larceny of money or other property; felony;
penalty; “in the course of committing a larceny” defined. 
Section 750.531 Section Bank, safe and vault robbery. 

I like them all but you gotta love 750.530 which says that stealing
money while you are stealing something else is also a crime...  I mean,
myself, I would have thought, you know... or 750.361, theft of journal
bearings (  I mean, if
you steal the box car surely that must be a crime, even if you leave
the bogey.

But what happened (back to #53 and Det. Ruth Walsh's blueberry patch),
is that everytime there was a "problem" someone with a connection to a
state representative got a special law passed.

Chicago Nobel Prize winner Ronald Coase
COST that it is better to let people pay you for the privilege of
violating your rights, than to pass laws against the violation of your
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #56 of 101: Doug Masson (dmasson) Fri 20 Jul 07 07:23
One problem is that when something bad happens, government --- legislators
in particular -- are pressed to "do something." Well, when the only tool you
have is a hammer, the whole world starts looking like nails. Government has
tools aside from the criminal law, but they're harder to use and more
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #57 of 101: Lisa Harris (lrph) Fri 20 Jul 07 12:38
I vote for public ridicule!
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #58 of 101: Michael E. Marotta (mercury) Fri 20 Jul 07 14:11
When you look at initiatives such as the National Institutes of
Health, the Centers for Disease Control, NASA, HHS, and so on, it is
clear that government can take action without the excuse of fighting

One problem goes back to an early post as well as to the root of
government: what is government for if not to fight crime?  In other
words, Aristotle and Plato never deeply questioned this.  Hobbes and
Locke agreed that people get together for self-defense, surrending some
freedom of action in return for protection and justice.  It was Max
Weber who succinctly said:
Der Staat ist, ebenso wie die ihm geschichtlich vorausgehenden
politischen Verbände, ein auf das Mittel der legitimen (das heißt: als
legitim angesehenen) Gewaltsamkeit gestütztes Herrschaftsverhältnis von
Menschen über Menschen. -- 
(The state is, like the political associations that historically
preceded it, a power structure of people over people, based on the
legitimate (i.e. as legitimate perceived) use of violence. -- aka
"Calopteryx Splendens")

As a conservative and libertarian, I would have agreed that the only
valid purpose of government is to protect the rights of its citizens
via police (and army) and courts of law.  However, I have also known
for many years that private agencies can provide those services better
than the government can.  So, my viewpoint is now closer to a claim
that the government should undertake that for which there is no
market...  going to Mars, unraveling the genome, getting sex education,
birth control and prenatal care alike to those who need them most,
regardless of ability to pay.  Nice as all that sounds, however, each
of those has its own attendant problems.  

In the mean time, as our guest host points out, it is far easier to
get action -- any kind of action -- on something that is a "crime."
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #59 of 101: Jonathan Simon (jonathan-simon) Fri 20 Jul 07 21:48
I argue in the book that Governing through Crime has been created by
both liberals and conservatives and betrays the values of both.  This
is pretty controversial.  Most of the others who write about the war on
crime see it as an arm of the Republican Party and the conservative
movement.  I argue in my book that it begins with liberal Democrats
like Robert Kennedy and LBJ.  While conservatives were able to use
crime as an effective way to criticize the welfare state (for creating
an underclass), liberals supported the expansion of the war on drugs
and mass incarceration as well.  

Both now find their central values, equality for liberals, liberty and
autonomy for conservatives, endangered by the logics of governing
through crime.

Its worth saying something now about what kind of uses of criminal law
I would support.  A useful though experiment is to imagine that in
1973, at the height of the Watergate scandal, the military had seized
power.  Imagine that thirty years later they restored constitutional
government and we were now in the midst of a transition to democracy. 
Clearly we would still want to have a military, but we would want to
change it root and branch to assure that it never again sought to usurp
the space of democracy.

I believe we did experience something like that with the war on crime.
 It was carried out by elected leaders so it does not appear to be a
break with constitutional democracy, but as a result of governing
through crime, democratic institutions are now distorted and

Were we to get our democracy back, we would still want a criminal
justice system but a very different one that would not pose a risk of
overreaching again.  This new criminal justice system would be
organized around three principles.

First, we would eliminate the vast corpus of preventive criminal law
developed in the course of the 19th and 20th centuries which in the
name of intervening early to prevent more serious crimes, has given law
enforcement broad discretion to arrest those perceived as dangerous,
discretion that is almost always used to over punish the poor and
racial minorities.

I would reduce the reach of the criminal law to two major categories
of crime, assaults on the person (violence), and taking of property
through force or fraud.  Lots of bad stuff, drug abuse, prostitution,
gang activity, would have to be governed some other way.

Second, criminal convictions should only be imposed after a public
hearing of the evidence.  Today more than 95% of all criminal
convictions are produced through a negotiated plea of guilty without a
public trial.  One of the historic purposes of the criminal trial was
to produce an accepted narrative of events.  A violent crime like
homicide or rape can create ambiguity about what actually happened in
ways that harm the victim and the community.  The trial is a way of
establishing a public narrative of what happened.  The goal of putting
people in prison efficiently has all but replaced the goal of producing
truth and community awareness.  I would restore truth to its rightful
place as the major purpose of criminal process.   Even if someone
admitted guilt, the public has a right to know what happened and that
the police have properly gathered evidence.

Third, the scale and severity of our use of imprisonment today is a
modern scandal.  Today about 500 Americans are in prison for every 100
thousand free people.  For most of the 20th century the American rate
was closer to 100.  In Europe today the highest rates are approximately

Despite the intention that prison would be a humane and rehabilitative
method of punishment it has repeatedly proven itself to be subject to
gross abuse and to be ineffective as a means of improving the character
of people.  Prison should be limited to those whose propensity for
violence cannot be reliably contained otherwise.  Most other people
convicted of the more modest criminal law I envision should be punished
with a combination of stiff fines (calibrated to their actual wealth),
publicity, and restorative justice to assure that the victim will be
protected against future assaults.
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #60 of 101: Doug Masson (dmasson) Sat 21 Jul 07 05:14
Good luck collecting those fines. I think you'd end up just imprisoning
those folks for not paying their fines. (Says the debt collector.)
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #61 of 101: Lisa Harris (lrph) Sat 21 Jul 07 08:00
I think a large problem is that people expect that they can get away with
things until they're arrested and jailed. So, as for fines (or public
ridicule) it really doesn't seem to work because our ethics as a society say
we can do it because we can do it. If you don't like it, stop me. And the
only effective way we have come up with to battle this obnoxious self-
serving, anti-social behavior is to jail people.
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #62 of 101: What is going to amuse our bouches now? (bumbaugh) Sat 21 Jul 07 14:08

(And this reminder: if you're reading this, interested to comment, but not a
member of the Well, you are welcome to e-mail to
contribute, and we can post on your behalf.)
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #63 of 101: Jonathan Simon (jonathan-simon) Sat 21 Jul 07 15:39
I'm amazed at the grip the prison has on all of our imaginations.  As
Lisa noted, it doesn't really feel like punishment unless it involves
locks and bars.  What other area of our lives can you think of where
the advanced technology of the late 18th century remains the advanced
technology of the early 21st century (and seems more popular then

It helps to recall that for a long time people used to a good show of
pain and torment for criminal on the scaffold (if not death than cheek
splitting, flogging, etc.).  Prisons were for debtors, vagrants, and
the mentally ill.  Now we can't imagine punishment without the clang of
metal on metal.

Europeans use fines much more than the US does.  The fines we use are
either too lenient (for the rich) or too severe (of the poor).  In
Europe fines are often scaled to reference actual wealth.  We need to
get more creative.  Imagine a special enforcement force kind of like
contemporary parole or probation officers whose job it was instead of
checking urine for drugs, to check in on convicted criminals sentenced
to a fine and seize any new assets they have (nice Jacket, hand it over

Also don't underestimate the power of publicity.  As online
communities, like the Well, have shown, reputation matters when people
can easily learn of and respond to misbehavior by identifiable persons.
 This is even more true in an economy where more and more of us are
self employed.  Imagine if you are convicted of fraud and you are
engaged in selling stuff on line.  

That leads to what may seem a very bizarre idea.  In an age of
transparency and great concern for personal ethics and integrity,
offenders may actually seek out institutions that can "rehabilitate"
them in the eyes of their fellows.  The state would not need to have a
monopoly on this kind of rehabilitative work.  So imagine our friend
convicted of fraud in his internet sales.  If it is easy for all
potential buyers to learn of this past bad behavior, he's ruined.  He
might have to go to a reputable company engaged in ethics training and
cognitive behavioral therapy.  Under the Utopian Penal Code that I
imagining, he might, if he successfully completes the training, have a
permanent link attached to his conviction page that would inform
potential buyers of his rehabilitation.

Utopian?  May be.  But considering that more than 2/3 of people who
leave California's hellish prisons (Golden State Guantanamo in my
terms) come back.
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #64 of 101: Sharon Lynne Fisher (slf) Sat 21 Jul 07 17:14
I don't know exactly what my question is, or even if it is one, but
it's interesting to me how much of a meme it is, being part of jokes on
tv and everything, that one of the things that happens in prison, and
one of the worst parts about prison, is homosexual rape.
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #65 of 101: Cupido, Ergo Sum (robertflink) Sat 21 Jul 07 22:33
Glad to see Max Weber being entered into the discussion. And to think
his observations are nearly 100 years old.
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #66 of 101: Doug Masson (dmasson) Sun 22 Jul 07 06:42
How much of the popularity of prisons do you figure has to do with the
increased mobility of the population? (And, I mean physical mobility, not
social mobility.) Not too awfully long ago, in historical terms, most
communities were fairly small and fairly stable. You knew who people were.
Reputation mattered and you could be suspicious of strangers without
impeding the community too much because strangers were relatively rare.
Consequently, punishments that affected a wrongdoer's reputation was
effective in terms of deterrence and effective in terms of protecting the
community (because they were alerted to the fact that the person was bad

Now, strangers are more the rule than the exception. Wrongdoers who become
notorious in one community can fairly easily move to another where they're
not well known. Physical restraint seems necessary to prevent someone from
simply packing up and moving away from the consequences of their actions.

Just a thought.
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #67 of 101: Jack King (gjk) Sun 22 Jul 07 08:54
When communities were small, crime happened in the dark.  This is still true
in fairly "utopian" communities in Micronesia, where tramp steamers  visit
only once every three or six months, generators and gasoline are rarely used
for electric lighting, and nobody sends or receives any mail from off-
island.  And though there is little real crime (not much property to steal,
and murder is pretty rare), shit still happens.  When the community gets
larger, then people want police to protect them.

Here's one of my all-time favorite philosophers on crime and government:

"How the Law Got Started"
transcribed from Lenny Bruce's last concert, Fillmore East (S.F. CA),
7/25/1966 (condensed, typos mine):

 "We oughta have some rules.  Some laws.  We'll sleep in area A. We'll eat
in area B. We'll crap in area C. We're all agreed, fine.  Now a guy wakes up
with a face fulla crap. POW! 'HEY! WHAT'S THE DEAL? AM I SLEEPING IN THE
WRONG PLACE? I GOTTA FACE FULLA CRAP!' 'I dunno ... we all voted on it, and
agreed ... you crap over here.'

 "We got a constitution, we agreed on it.  We need a remedy -- I got it! If
anybody throws any crap on you while you're sleeping, they get thrown in the
craphouse. That's the remedy. That'll keep the crap off us....

 "Now some of you guys, you work out in the fields, you throw these guys in
the craphouse, you never have to see them again.  But I gotta sell cars to
some of these people. Now, when I throw a guy in the craphouse, he gets out
and I go to see him a car, and he goes 'Crap you! You threw me in the
craphouse!' So I can't sell him a car. So we gotta get somebody to throw him
in the craphouse but me. We gotta get somebody who will enforce the law,
some kind of department to do that.

 "We find out with no law, we crap on each other. The only thing that can
save us is some kind of law. And we got to get somebody to enforce it. So we
 interview -- here's a job, fellas. We wanna get some sleep without getting
crap on us.  But look -- don't do it in front of me. Now, here's a stick and
a gun, and you DO IT."
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #68 of 101: Sharon Lynne Fisher (slf) Sun 22 Jul 07 10:12
Oh, that's wonderful. I've never heard that one before.

I wonder if I can find a way to cite it in an MPA paper before I
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #69 of 101: Jack King (gjk) Sun 22 Jul 07 10:18

The routines longer, and I left out some choice lines.  I could e-mail you a
MP3 I guess -- have to convert it -- and you might look for a nugget or
maybe just reference it.
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #70 of 101: Lisa Harris (lrph) Sun 22 Jul 07 13:39
In the NYT Magazine today there is an excellent article about youth sex-
offenders and making their identities known via the internet web sites that
alert us to adult sex offenders. The last line of the article sticks in my
head, "As Elizabeth Letourno told me recently, 'If kids can't get through
school because of community notification, or they can't get jobs, they are
going to be marginalized.' And marginalized people, she noted, commit more
crimes."  It is the same with marginalized adults.  The more criminals we
create with our laws, the more crime will be committed.

I don't know how to resolve the issue between this and the desire to punish
wrong-doers, but there must be a better way.
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #71 of 101: Jack King (gjk) Sun 22 Jul 07 13:39

Having read Prof. Simon's book, I see that governing through crime will,
like water, trickle down to the lowest levels.

Microgoverning through Crime

Illegal aliens, status crime, made local --

      Prince William County, VA
      Resolution of the Board of Supervisors on Illegal Immigration

      · The board "has determined that illegal immigration is causing
economic hardship and lawlessness" and that "illegal immigration may be
encouraged by public agencies within the county by failing to verify
immigration status as a condition of providing public services."

      · Under the resolution, "county police officers shall inquire into the
citizenship or immigration status of any person detained for a violation of
a state law or municipal ordinance, regardless of the person's national
origin, ethnicity or race where such inquiry does not expand the duration of
the detention."

      "In all such cases where a person indicates that he or she is not a
citizen or national of the United States, the police department shall verify
whether or not the person is lawfully present in the United States. . . .

      "If the person is verified to be unlawfully present in the United
States, the police department shall cooperate with any request by federal
immigration authorities to detain the alien or transfer the alien to the
custody of the federal government."

      · No county employee may be prohibited from "sending, receiving or
maintaining" information about the immigration status of any person or
exchanging such information with any federal, state or local government for
the purpose of determining eligibility for "any federal, state or local
public benefit, service or license which is restricted . . . to persons who
are not United States citizens or non-qualified aliens."


Free speech, prohibition of, lack of vendor's license (Kensington MD):

Kensington Tells Retiree to Button Up or Pay Up

The left-leaning town of Kensington would seem fertile ground for Alan
McConnell to peddle his little green buttons.

"Impeach Him," the buttons state, and for months the 74-year-old has sold
them for a dollar apiece at the town's Saturday morning farmers market.

But things hardly have been easy for him lately.

Three weeks ago, the retired mathematician was issued a trespassing warning,
after he'd been told to leave the market. Last week, Kensington's mayor
canceled the market, concerned that McConnell and "potentially aggressive"
supporters of ousting President Bush could endanger safety there. And at
10:35 a.m. Thursday, a woman from the town and two Montgomery County police
officers knocked on McConnell's door.

"I'm sorry to be in a state of undress," he told them politely, standing in
his underwear. "How long do you folks want to talk?"

Ten minutes, McConnell was told.

"I'll get dressed very quickly," he said, heading back to do so.

"Thank you," one of the officers responded.

When it was over, McConnell was left holding two documents: an updated
trespassing warning and a citation charging him with selling merchandise at
the farmers market without a permit. He is to stand trial or pay a $500

Activist Arrested In Dispute Over Hot-Button Sales At Public Market

The 74-year-old retired mathematician who is fighting Kensington officials
over his right to sell buttons urging President Bush's impeachment was
arrested yesterday at a farmers market and charged with trespassing.

Alan McConnell, who had been selling his "Impeach Him" buttons at the Howard
Avenue market for about a half-hour without a permit, lay down on the
pavement after Montgomery County police asked him to come with them. After
McConnell failed to respond to a request that he "please stand up," four
officers each grabbed one of his limbs and carried him to the front seat of
a squad car....
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #72 of 101: Jonathan Simon (jonathan-simon) Mon 23 Jul 07 12:30
Pardon for the interruption.  We left SF for a 3 week trip to Germany
on Saturday and I'm just beginning to get on top of the jet lag.  

First impression is that this is a society, remarkably, relatively
free of governing through crime.  There is a strong sense of comfort
with diversity, trust (e.g., no gates leading to trams and trains, you
are trusted to pay for the right ticket), and the German love for beer
includes lots of people walking around, and riding the trams, with open
containers.  In the 1960s Germany had the highest imprisonment rate in
Europe.  The end of the Cold War and the institutionalization here of
a strong belief in human rights seems to have produced a strong
cultural resistance to governing through crime.

Let me add a few comments to the last few posts.

re 64: Yes its amazing how many people who purport to care about human
rights like to joke about Scooter Libby dropping his bar of soap in
jail etc.  It speaks, I'm afraid, to a considerable internalization of 
mass incarceration.  In an essay I wrote a few years ago I wondered
out loud whether our culture would begin to find ways to use the
massive surplus of cruelty our prison system was creating.  This is one
sign of such an adaptation.

re 66: The prison arose precisely to deal with the increasing mobility
of society.  Earlier methods of trying to use family pressure to bring
offenders to heal through security bonds and the like came to seem
futile in a society of constant mobility.  As the late great Caleb
Foote (one of my teachers) described in his 1950s articles on vagrancy
law and bail, jail and prison are ways of seizing the most alarming
types of mobile subjects in our midst, disciplining them and containing
them.  Foucault called the prison an "anti-nomadic device."

One of the problems with mass imprisonment and its continuing effects
on released prisoners (through parole conditions) is precisely that it
locks people into communities where they have too many facilitators for
bad behavior, like drug abuse, and too few economic opportunities. 
This is true of rules that require parolees to remain in the county
where they were arrested as well as laws that bar released prisoners
from whole occupations (like barbers and health care workers).  In some
cases we in effect, bar people from working.  Its hard to imagine a
strategy more like to backfire and more opposed to basic American
conceptions of freedom.

70 makes a parallel point about young sex offenders.  If we put you up
on the web as a predator, we are virtually assuring that you will be
locked out opportunities.  Now as I said a few posts ago, I do think
publicity should be part of punishment, but not in ways that prevent
any hope for change (rehabilitation) and not for juveniles.  

71 Good examples of what I think of as the downward drift of governing
through crime.  We may start out worried about murderers and rapists,
but the ceaseless quest for security soon demands action against petty
offenders.  Likewise we come to associate any kind of activism with the
sort of aggressiveness that predicts criminality.  

I return then to a theme of hope.  There is a different model of
security, one founded on trust, mutual aid, and responsible citizenship
in which we seek to create a sense of safety in our collective ability
to produce and reproduce the conditions of mutual thriving rather than
private efforts to wall out those we fear combined with harsh public
justice.  This spirit is embodied in Franklin Roosevelt's powerful Four
Freedoms speech which he gave a state of the Union speech in 1941.  I
think I've referred to it already in our conversation (or an earlier
colloquy with Doug).  

Seeking to mobilize the American people behind a confrontation with
Fascism he said this:

"The first is freedom of speech and expression -- everywhere in the

The second is freedom of every person to worship God in his own way
everywhere in the world.

The third is freedom from want, which, translated into world terms,
means economic understandings which will secure to every nation a
healthy peacetime life for its inhabitants -- everywhere in the world.

The fourth is freedom from fear, which, translated into world terms,
means a world-wide reduction of armaments to such a point and in such a
thorough fashion that no nation will be in a position to commit an act
of physical aggression against any neighbor -- anywhere in the world.

That is no vision of a distant millennium. It is a definite basis for
a kind of world attainable in our own time and generation. That kind of
world is the very antithesis of the so-called “new order” of tyranny
which the dictators seek to create with the crash of a bomb.

To that new order we oppose the greater conception -- the moral order.
A good society is able to face schemes of world domination and foreign
revolutions alike without fear."

You can read it in its entirety at:

Its quite a contrast to Bush's rhetoric in the war on terror, and
quite a contrast to the way we imagine security from crime. 
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #73 of 101: Jim Thomas (jthomas) Tue 24 Jul 07 13:36

Not being one to be dissuaded from chiming in having not read the book,
not having fully digested all the substance in this topic, and coming
in a few weeks late and a couple of dimes goes anyway.

The summaries of Governing through Crime motivated me to order it.
It sounds like an essential book.

From what I'm getting from the summaries above, the central points:

1) The politics of fear (of crime) drives too much public policy.

2) Prisons suck.

3) We need to restructure how we define and process offenders, and how
we integrate them back into the community. 

4) Long-term solutions should be structural and not simply minor tweaks
of policy.

#72 provides an initial response point, especially the last sentence:

   "Its quite a contrast to Bush's rhetoric in the war on terror, and
   quite a contrast to the way we imagine security from crime."

Indeed. And most politicians as well. David Altheide makes a nice argument
in Terrorism and the Politics of Fear: It trades on conventional
beliefs and taken-for-granted images about "them," those not quite like
us. Substitute "crime" for "terror," and it's easy to see how the media
and politicians play on public beliefs and images to promote fear of crime,
that in turn feeds enhanced sentencing, expanded crimes, increased use
of prisons, public animosity toward prison programming, and zero-tolerance
for some behaviors. Sex offender registries are a good example of
fear-driven, ineffective, and costly policies. The irony is that
rehabilitation, re-entry, and other programs to help prisoners are alive
and well in the same system that creates obstacles for them.
((Side note: A warden of a maximum security prison in Illinois created
some cost-effective programs for prisoners. Some administrators disapproved,
and "promoted" her to a newly-created position of developing programs
in adult maximum security prisons. Nice new office, nice title. No funding
for it. She retired shortly after). 

A comment in a post above reminding us that, "If it bleeds, it leads" is just
part of the problem. Conventional tv media formats and logic adds to
the problem. Crime is easy to cover, requires little investigation by
staff, can be easily summarized on good v. evil with a bit of dramatic
footage,and fits nicely in a 30 second time slot. This makes crime reporting
easy to over-simplify and distort. This in turn feeds politicians'
hyperbole in building on fears of predators living among us. Our culture
drive fear as much as fear drives us, so the solution isn't simply one
of changing the media.

We've all heard the view that, because the recidivism rate is so high,
prisons "don't work." Dodging, for now, the question of "what do we
mean by 'works?'," a short answer is that prisons cannot "stop crime."
Post-release issues are under-addressed. The problem of placing offenders
back with their facilitators seems insurmountable, especially given
parole/probation restrictions.

An earlier comment that prison rape is one of the biggest fears of new
prisoners might be a tad over-stated (SPR reports notwithstanding). It's
a real fear, it happens. But, it might be a bit over-emphasized as part of
the "prisoners as animals" sydrome. In maximum security prisons, it can
be an issue, but the larger problem is other kinds of predation that
are difficult to avoid unless one has something to offer or is well-connected.
Sexual assault and predation decrease dramatically for prisoners in
lower-security institutions. It's preaching to the choir, I suspect,
to say that most prisoners are normal people who screwed up, often badly,
but are still decent people. Even while in prison. Prisons might be
called "colleges of crime" not because prisoners learn better ways of
committing a crime (how much skill does it take to shoot-up, knock off
a 7-11, or drive after drinking?), but because the adaptation techniques
required aren't those that contribute to healthy socialization or are
marketable on the streets. Especially in maximum security prisons,
manipulation and aggression are two useful coping mechanisms. Or, for
the "weak," withdrawal and passivity.
One of the worst aspects of prison is the boredom, monotony, and lack
of healthy environmental stimulation. That's one reason why programming
is useful. It's not just good for the prisoners, it's good for staff.
There's an adage: "Security begins with programming." Why? I have a 
good acquaintance, the warden of one of the tougher US prisons, who keeps 
saying, closely paraphrased, "Give me everthing you can to give to these men.
The more I give, the more I can take away." For the most part, it's worked

As long as fear drives crime and carceral policy, it remains difficult
to sell legislators on funding prison programs. In Illinois, the maximum
security prisons are virtually programless with the exception of GED,
a few prison industries that employ a trivial percentage of the populations,
and some pre-release programs. Don't even get me started on the super-max.
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #74 of 101: Jack King (gjk) Tue 24 Jul 07 14:01

5) the federal prison gulag really, really, REALLY sucks, and has more
Catch-22's than Yossarian's Army Air Corps.  I've got a parole-eligible
Canadian citizen client who they keep moving from FCI to FCI and his mail
never catches up with him, and they called his parole/recission hearing
today (scheduled by the U.S. Parole Commission) at Lewisburg FCI but by
then the Bureau of Prisons had transferred him again -- to Loretto FCI at
the other end of the state of Pennsylvania.  And my contact at the parole
commission is sad that the BOP keeps moving him from facility to facility,
where he's held in lockdown 23 hours a day and no phone privileges because
he's always a "new" inmate (every time you get transferred to a new
facility, you are held in lockdown until you're "reclassified").

Sorry to rant, but I was supposed to be at his hearing up in PA yesterday,
which didn't happen although he was on the docket, and now it looks like he
may be going to Terre Haute with the rest of the dangerous aliens who have
never even been accused of anything violent, theyr'e just you know the wrong
color and wrong citizenship.  And I'll have to pay all the travel out of my
own fucking pocket, thank you, because I'm pro bono.

Fucking feds.

Okay, back to the discussion.
inkwell.vue.303 : Jonathan Simon, Governing through Crime
permalink #75 of 101: Michael E. Marotta (mercury) Tue 24 Jul 07 14:46
re # 63 from the Guest Host "What other area of our lives can you
think of where the advanced technology of the late 18th century remains
the advanced technology of the early 21st century ..."

Answer: schools.  From K-MA it is a matter of sitting passive in rows
and columns. The only time I did NOT experience this was in a college
class in 19th Century Intellectual History with me, the prof, and one
grad student.  We actually talked to each other, with the expert as the
guide.  Other than that, education is totally what Horace Mann
envisioned: Prussian.  Both "Deutschland Ueber Alles" and the "ABC
Song" are Mozart tunes.  We call passive rows and columns of listeners
"education."  Similarly, locking someone up for a period of years on
the one hand brutalizing them and on the other feeding and sheltering
them (while their victim goes unremediated) is supposed to be

Both public education and public justice are in the Soviet Agriculture

For an alternative WITHIN THE SYSTEM, consider community corrections. 
It has been said here by others (including Dr. Simon) that putting
offenders back in touch with their facilitators is a bad idea.  Their
victims also do not need them around.  My suggestion is to put them
into a DIFFERENT community.  You could have all the same structures for
parole and probation, etc., but the offender would be out of a
dangerous environment.


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