Inkwell: Authors and Artists

    
Your rant is dead-on, Jack. "Riding the circuit" is a common practice
in state prisons, too, as you know. It's hard on the prisoner's family,
and also drains staff resources. All in all, it might be better to be
in Florence ADMAX as long as they keep putting him in adseg everywhere
he goes. 

But, hey! It's common knowledge that federal joints are country clubs, right?
  

    
Following up on 73, I would agree that the war on terror has been
played out on the exact schema of the war on on crime.  Thats one of
the reasons its so amusing that Bush was able to bash Kerry for saying
that terrorism should be dealt with as a law enforcement problem. 
Kerry was right in a sense, but since crime already is treated as a war
in the US it doesn't help much.

Terrorism is a good test problem for those of us who would insist that
we work are way beyond the politics of fear.  After all, they really
are out to get us.  Still, the Bush solution has turned out to be away
to grow new terrorists faster then we can destroy them.  

I'm curious what people think of the proposal I make at the end of the
book that we should look to cancer as a model enemy rather than crime
(war on cancer rather than war on crime).  If we treated terrorism as a
cancer we might take the following steps:

1. Immediately stop doing anything that is causing new terrorist cells
to arise

2. Isolate and destroy any existing cells that can be found, but only
through methods that don't violate rule 1.

3. Apply strategies aimed at drawing people in the vulnerable
countries away from terrorism cells and towards benign political forms.

I realize that there is a long problematic history of diseases as
metaphors (if you haven't read the famous book by Susan Sontag its well
worth it)

Thanks for all your participation!  I'll continue to respond to posts
on this conversation and welcome all your comments on my blog,
www.governingthroughcrime.blogspot.com as well

Cheers from Berlin (a city remarkably different than either the cold
war or Nazi era images you may have)

Jonathan
  

    
Hey, drop by for a beer!
  

    

Oh wow, that was fast.
  

    

Jonathan, the past two weeks have gone by in a blur! What a great
conversation this has been. Thanks so much for joining us. And thank you,
Doug, for leading the discussion.

This topic will remain open for further comments indefinitely, so you're all
welcome to continue posting if you wish. We'd love to see this go on longer,
if you can. Thanks!
  

    

Professor, I don't want to take you away from your vacation, but you
probably ought to read this news story which appeared today on abc.com:

Boys Face Sex Trial for Slapping Girls' Posteriors
Do the Two Middle-Schoolers Deserve Jail and a Sex Crime Record for What
They Call an Exuberant Greeting?
By SCOTT MICHELS
July 24, 2007 .


Two middle-school students in Oregon are facing possible time in a juvenile
jail and could have to register as sex offenders for smacking girls on the
rear end at school.

Cory Mashburn and Ryan Cornelison, both 13, were arrested in February after
they were caught in the halls of Patton Middle School, in McMinnville, Ore.,
slapping girls on the rear end. Mashburn told ABC News in a phone interview
that this was a common way of saying hello practiced by lots of kids at the
school, akin to a secret handshake.

The boys spent five days in a juvenile detention facility and were charged
with several counts of felony sex abuse for what they and their parents said
was merely inappropriate but not criminal behavior.

The local district attorney has since backed off -- the felony charges have
been dropped and the district attorney said probation would be an
appropriate punishment. The Mashburns' lawyer said prosecutors offered Cory
a plea bargain that would not require him to register as a sex offender,
which the family plans to reject.

But the boys, if convicted at an Aug. 20 trial, still face the possibility
of some jail time or registering for life as sex offenders.

The boys' families and lawyers said even sentencing them to probation would
turn admittedly inappropriate but not uncommon juvenile rowdiness into a
crime. If they are convicted of any of the misdemeanor charges against them,
they would have to register as sex offenders.

"It's devastating," said Mark Lawrence, Cory Mashburn's lawyer. "To be a
registered sex offender is to be designated as the most loathed in our
society. These are young boys with bright futures, and the brightness of
those futures would be over."

Cory and Ryan were brought to the principal's office Feb. 22, where they
were questioned by school officials and a police officer. They were arrested
that day and taken in handcuffs to a juvenile detention facility.

Court papers said the boys touched the buttocks of several girls, some of
whom said this made them uncomfortable. The papers also said Cory touched a
girl's breasts. But police reports filed with the court said other students,
both boys and girls, slapped each other on the bottom.

"It's like a handshake we do," one girl said, according to the police
report.

The boys were initially charged with five counts of felony sexual abuse. At
a court hearing, two of the girls recanted, saying they never felt
threatened or inappropriately touched by the boys. The judge released the
boys but barred them from returning to school and required that they be
under constant adult supervision.

District Attorney Bradley Berry has since dismissed the felony counts. The
boys face 10 misdemeanor charges of harassment and sexual abuse. They face a
maximum of up to one year in a juvenile jail on each count, though Berry
said there was no way the boys would ever serve that much time.

"An appropriate sentence would be probation," he said. "These are minor
misdemeanor charges that reflect repeated contact against multiple victims.
We never intended for them to get a long time in detention."

"We're not seeking major penalties," he said. "We're seeking change in
conduct."

"More and more, they are criminalizing normal adolescent or preadolescent
behavior," said Chuck Aron, co-chairman of the National Association of
Criminal Defense Lawyers juvenile justice committee.


And that's just *excerpts* from the story.  Full version at:
<http://www.abcnews.go.com/print?id=3406214>
  

    
Ann appropriate sentence would be "Boys, stop slapping girls' behinds. Do it
again, and you're suspended." Done.  Anything more is criminal behavior
against the boys. Signed, the mother of a soon-to-be middle school girl.
  

    

You wouldn't want them convicted as sex felons?  Or even sex misdemeanants
who have to be on sex offender web sites for the next 25 years?  What is the
matter with you?  WHAT ABOUT THE CHILDREN?

(I mean "the children" in a general sense, not the fanny-patters, those
perverts.)
  

    
In all seriousness, it is my children I'm thinking about. If we criminalize
what has historically been treated as normal deviant behavior that can be
redirected and used as a teaching tool, then we doom the children to feeling
dirty for normal feelings and feeling criminal for making a childish
mistake.

Ah hell, let's just put everyone in jail for being imperfectly human.
That'll solve all of our problems.
  

    
Then, in jail, most of us can come and go as we please, but some people will
do something realy heinous, and we'll have a special section where we lock
them up. We can call it, I dunno, ja-jail.
  

    
Jonathan, have you read Jessica Mitford's Cruel and Usual Punishment,
and what did you think of it, if so?
  

    
As an Associate Dean at Boalt Hall, you must be aware of the controversy
surrounding Boalt professor John Yoo and his advocacy of the torture of
prisoners in Federal custody, a controversy that has severely tarnished
Boalt's reputation within and beyond the legal community. What has been the
response by the Boalt administration (of which you are a member) to the
ethical and social-policy issues raised by his employment, and what has been
your personal response?
  

    
That's a good question <ronks>.
  

    
I saw the story on children, boundary crossing, and sex offending as
well.  Its a good indication of the cultural pull of the crime model. 
Are presumptive approach is to treat troubling behavior, even by our
youngest citizens, as crimes that require a punitive approach, rather
then risks that have complex sources and require subtle strategies. 
Another good example is on my blog today, an LA times story about
employers that are trying to address high health care costs by fining
overweight employees that won't lose weight on schedule.

Sharon mentions Jessica Mitford's classic "Crue and Usual Punishment."
 If you read it now keep in mind that Mitford was effectively exposing
the hypocrisy of a system (California's in the 1960s) that promised to
rehabilitate people but punished them instead.  Since the 1980s
California and most states have eliminated the hypocrisy but dumping
the promise to rehabilitate.  Still Mitford's critique is a good
reminder that simply shifting back to the promise of rehabilitation (as
some now want to do) is no guarantee that treatment will really
happen.  I believe we would be better off by using the criminal justice
system much less period, rather then simply changing our rationale for
why we use it (and that less is more philosophy was also Mitford's).

Ah John Yoo.  I was wondering when someone would bring that up. 
Wouldn't firing John be a classic example of "governing through crime"
(as well as a quick way to destroy academic independence from
politics)?  I much prefer what scores of dignified protesters have done
for the past several years, i.e., regularly appear at John's lecturers
and speeches to remind him and others that his loony ideas have done
terrible damage to humanity (and to American power).  On one occasion I
recall, a man in an orange jump suit wearing a black bag over his
head, like a prisoner at Abu Ghraib, simply stood in the back of one of
John's presentations on campus.  It was an act of quiet dignity and
extraordinary power.  Without even interrupting Yoo's talk , the
protestor assured that nobody could ignore the consequences of what
John has done.

But actually I would very much support impeaching George Bush and Dick
Cheney, the men actually responsible for the terrible results that
Yoo's ideas have facilitated.  I don't consider impeachment to be
governing through crime, but instead a remarkably non-punitive response
to re-establish democratic government after a prolonged assault on the
very idea of legality.
  

    

Prof. Simon, I was charged last week with exploring the idea of soliciting
a (fairly short) article from you on the issue of governing through crime
for a criminal justice magazine I work for.  E-mail me at gjk@well.com for
details if you are interested.

Item of possible interest:  every federal judge gets a copy every month, and
many read it -- we get letters from them.
  

    
> Since the 1980s California and most states have eliminated the hypocrisy 
> but dumping the promise to rehabilitate.  

The implementation of rehabilitative programs in prisons certainly 
remains underwhelming, and fiscal and political obstacles sometimes
seem insurmountable. If we're defining "rehabilitation" as the implementation
of prison programs intended to lead toward some semblance of personal
transformation, I think that the rehab issues isn't quite as bi-modal in 
practice.

A few studies have suggested that prison administrators still support
rehabilitative programs, although this varies by state and by institution 
(see, for example, Frank Cullen's work, among others). The adage
that "security begins with prison programming" also motivates wardens
who may not believe in rehab to support at least some programs.

Programming tends to vary by security level. The higher the security,
the fewer the rehab programs. The model of "working your way through
the system" is intended to provide incentive to prisoners in higher
security institutions to clean up their act and work toward medium or
minimum levels. Some prisons are also structered around particular
types of programming (eg, sex offenders, substance abusers, vocational
training). 

In Angola (La), 95 percent of the prisoners will die in prison. Yet,
programming and rehab is heavily emphasized. In Illinois, the maximum
prisons are programless. Nothing of substance other than GED. Other
than a few job assignments, prisoners stay in their cells, sleep, and
watch tv, and get out for meals, yard, or shower a few times a week.
Medium institutions offer far more programming, minimum even more.
The women's institutions are heavily program-oriented.

Does rehab work? Depends what you mean by "work." Programs, if
implemented correctly, can reduce violence and serious disciplinary
problems. They can also help adjustment to prison culture and provide
a bit of hope. Two studies in Illinois found that prisoners who participate
in programs 18 months prior to release are about 25 percent less likely
to recidivate. 

Rehab policies are a bit schizoid - pressures for, pressures against,
some pressures legit, some not. Rehab is a bit like post-Katrina
New Orleans: Some areas are thriving and vibrant, some still struggling,
and some just mired in the mud with the life-support systems unplugged.
  

    
Jim's points about rehabiltation are well taken and I agree with all
of them.  In 1976 California law was amended to define the purpose of
prison as punishment, but some effort at rehabilitation has never died
and has Jim points out, has always found its major support among actual
prison managers (rather than legislators).  Today there is some real
momentum behind the idea of bringing rehabilitation back to the fore. 
Consider that Governor Schwarzenegger actually changed the name of the
Department of Corrections to add rehabilitation into the title (bit
duplicative of corrections itself, but thats ok).  Still I'm
ambivalent.  With the system now holding nearly 200 thousand inmates
(compared with about 10 percent of that number at the height of the
rehabilitative era in the '60s) I question whether talk of
rehabilitaiton can do any more than legitimize what is a vastly too
large system.  Lets slim the system down to a third of its current size
or less and then we can start talking about appropriate programs to
rehabilitate those inside (we will certainly have plenty of space and
personnel at that point).
  

    
Some might be interested in an op-ed I published in the LA Times last
week calling on Governor Schwarzenegger to go beyond his refreshing
frankness about the failures of the prison system to actually embrace a
a major reduction in its size.

You can read it at:

http://www.latimes.com/news/opinion/la-oe-simon1aug01,0,4401279.story?coll=la-
opinion-rightrail
  

    

Call me a big fat idiot, but while there are people who certainly need to be
kept away from the rest of us for the rest of their lives, I think they're
quite few.  I only represented a few true cold-blooded sociopaths who could
not be reformed in my whole adult life.

I say rehabilitate those who are capable of going straight -- many will be
technically violated and sent back to the pokey a few times -- but given
treatment, education and support, the majority of those folks we're locking
away for life for stuff like possession of too much drugs or simple
possession of a firearm, or testing postive for marijuana while on parole,
are capable of eventually straightening out and becoming tax-payers rather
than burdens on the tax-payers.

Which makes more economic sense: two million behind bars at any given
moment, or 660,000 behind bars and 1.34 million extra tax-payers to help pa
for those 660,000 who won't or can't behave?
  

    

Stop that! You're making too much sense, Jack!
  

    

I'm a big fat idiot.
  

    
Add mt to the ranks of big fat idiots, then. You make more sense than the
"put em in jail and throw away the key" idiots.
  

    
>You make more sense than the "put em in jail and throw away the key"
idiots.<

It doesn't take much. Those idiots  make us look good even if our
ideas aren't much more practical.  

I understand that those that actually do the work of rehabilitation
often burnout due to frustration.  You would think superior intellects
would be attracted to such a distinct challenge and  the public kudos
lavished on those that do the rehab work.
  

    
Yeah, but they also need to eat, and rehab work doesn't pay what lock-em up
work pays.
  

    
Events like the terrifying rape, kidnapping, murder of a Connecticut
family several weeks ago by a pair of persistent but mostly petty
criminals, are a big part of what leads people in California and
elsewhere to support mass incarceration.  As long as there might be one
Richard Allen Davis or two in among the seemingly hapless losers who
occupy most prison cells many will believe that it is a good idea to
keep them all locked up.  

After all Governor Schwarzenegger has been reluctant to grant parole
even to elderly or physically disabled killers nearing the end of life,
they still, somehow, might be a danger to the community.

My strategy has been all about focusing people on the costs to private
freedom and civil life that governing through crime has imposed on us
all, as well as looking to other kinds of "fears", cancer, global
warming, pandemics, that might move Americans off their obsessions with
crime.  

Still all it takes is another terrible murder, covered endlessly by
cable and local news, or even a reminder of an old one like today's
release of the report about the Virginia Tech killings (see my blog for
more on that) to bring people back to the conviction that locking them
and us up makes sense.

It leaves me at a loss for how to talk people down from this kind of
fear.