Monday, March 23, 2009

Designer Laws -- Introduction to Second-Class Citizenship

The ultimate designer law, of course, is slavery—which is a legal entitlement that allows one human being to own another, and to profit from his labor as if it were his own. Second to that are laws which place whole classes of people at a permanent disadvantage so that they can not bargain as equals, and must accept whatever inferior and exploitative bargain that is given to people of second-class or third-class status. In this respect, “designer laws” are tailor made to disenfranchise, disempower, disadvantage and even damage whole classes of people within the population for the purpose creating inferior classes of citizenship.

For example, during Reconstruction Southern legislators would pass laws specifically addressed to circumstances particular Black folk in ways that were calculated to limit their participation in the political system. One of these was the “grandfather clause,” which stated that in order to be qualified to vote, your grandfather had to have voted—which, of course, effectively eliminated Black voters whose grandfathers had been slaves. In other places, it was a literacy test, and in others, an education requirement, a property requirement, a poll tax, or they simply diluted the minority vote by gerrymandering the voting districts. Some designer laws, such as those forbidding the races to marry, to drink from the same water fountains, or attend the same schools existed for the sole purpose of providing an occasion to harass, intimidate, control, segregate and, generally, remind the target population of their subordinate and outcast status. The last surviving remnant of this unjust and hateful system of Jim Crow laws is felony disenfranchisement, which excludes people from voting who are incarcerated, who are on parole or, in some states, who have ever been convicted of a felony.


So, anything that is a crime, or that can be made a crime, can be “designed” to be of particular detriment to one group or another. Take the war on drugs, for example. White drug dealers don’t hawk their wares on street corners. They deal behind closed doors over the kitchen table, at a friend’s house, or in a back room at work. But these kinds of environments are inaccessible to the guys in squad cars, so the practical effect is that white middle- and upper-class drug users pursue their habit relatively unmolested, while inner-city dealers who ply their trade on the street are harvested like wheat through a combine.[i] According to federal statistics gathered by the Sentencing Project, only 13 percent of monthly drug users of all illegal drugs are Black, which is about their proportion in the population. But 37 percent of drug-offense arrests are Black; 53 percent of convictions are Black; and 67 percent of all people imprisoned for drug offenses are Black. Adding in Latinos, about 22 percent of all monthly drug users are Black or Latino, but 80 percent of people in prison for drug offenses are Black or Latino.[ii]

Another invidious “designer” legal distinction is between crack and powdered cocaine. Chemically, the two are identical. But, if you are caught with a fifth of an ounce of powdered cocaine (about the weight of two copper pennies), you are probably risking a few weeks in jail. However, the minute you combine that with two cents worth of baking soda and turn it into crack, you are looking at a mandatory minimum of five years without parole.[iii] It’s like punishing a wino who drinks Ripple a hundred times more severely than someone who drinks champagne. And, since crack is the poor man’s freebase cocaine, this disproportionate criminalization of crack cocaine becomes an effective tool for eliminating Black men from society under the pretext of saving the nation from crime and drugs. Indeed, the zeal with which these laws are enforced should leave no doubt as to whom and what this war is about.

Nationwide, 1.4 million or 13 percent of African American men have lost the right to vote, a rate that is seven times the national average.[iv] In six states that deny the vote to ex-offenders, 25 percent of Black men are permanently disenfranchised. Given current incarceration rates, 30 percent of the next generation of Black men can expect to be disenfranchised at some point in their lifetime. In several Southern states as many as 40% of Black men may permanently lose their right to vote. There are approximately 1.7 million disenfranchised ex-offenders who have completed their sentences in the United States.[v] Due to the explosion of incarceration driven by drug prohibition, more than 5 million people are now barred from voting, and the United States is the only industrial democracy that does this.



Felony Disenfranchisement circa 2004

Florida disenfranchised approximately 827,000 ex-felons for the 2000 presidential election. And although the average estimated turnout rate for ex-felons is relatively low—about 24 percent in non-presidential year and about 35 percent in a presidential election year—these numbers would be enough to change electoral outcomes.[vi] Al Gore would have won the popular vote by more than one million in 2000, and would have carried the State of Florida by 80,000 votes and, thereby, the presidency.[vii] In nine states—Arizona, Florida, Iowa, Missouri, Nevada, New Mexico, Oregon, Washington, and Wisconsin—the number of disenfranchised felons exceeded the margin of victory.[viii] Indeed, there would have been no Contract with America, no Republican majorities in both houses up until 2004. There would have been no President George W. Bush, no Supreme Court packed with right-wing conservatives, and no war in Iraq if ex-felons had been allowed to vote.

In New York there are the “Rockefeller Drug Laws.” Enacted in 1973 under Nelson D. Rockefeller, they required harsh mandatory minimum terms (8 to 20 years) for the possession (of 8 ounces) or the sale (of 2 ounces) of a “narcotic” substance. And the penalties were applied without regard to the circumstances of the offense or the individual’s character or background. About 63,500 (or 93%) of New York State inmates are housed in prisons located in Republican Senate Districts, the vast majority of which are located upstate. Approximately 65% of New York State prisoners are from New York City--almost all from poor communities of color. So, in effect, New York has transferred a population roughly the size of Utica from its inner cities to upstate areas and, along with it, the government funding and electoral influence that are based on an area’s population, increasing the political power of the already powerful at the expense of the already politically disadvantaged

By 2007, Florida had disenfranchised 950,000 citizens who had felony convictions – the vast majority of whom were Black, Latino and low-income people. In an unexpected move, Florida Republican Governor Charlie Crist changed his anti-felon position, to declare that the time had come for his state to leave the "offensive minority of states that uniformly denied ex-prisoners voting rights." On April 5, 2007, Governor Crist persuaded Florida’s clemency board to restore voting rights to about 800,000 former prisoners. Crist’s action was vigorously opposed by Florida Attorney General Bill McCollum, as well as by former governor Jeb Bush. Under the new rules, about 80 percent of the disenfranchised whose crimes were not classified as "violent" will automatically have heir voting rights restored, so long as they have paid any restitution to victims and have no pending criminal charges.[ix]

This, of course, is why Republicans all over the country shamelessly continue to agitate for evermore punitive laws, and why they resist efforts to overturn these undemocratic laws. And, they do so in the face of contrary to public opinion. In a 1999 study, approximately 70 percent of Whites and 85 percent of Blacks oppose lifetime disenfranchisement,[x] while a 2001 survey found that only 15 percent supported lifetime disenfranchisement, and 80 percent believed that all ex-felons should have the right to vote.[xi]

[i] Gray, Mike, 1998, Drug Crazy: How We Got Into This Mess and How We Can Get Out, Routledge , 29.

[ii] Wood, Erika and Neema Trivedi, he Modern Day Poll Tax: How Economic Sanctions Block Access to the Polls, The Shriver Center Clearing House Review Journal of Poverty Law and Policy, May Jun, 2007, Vol. 41. Numbers 1-2.

[iii] Gray, Ibid, 30.

[iv] The Sentencing Project, April 2007, Felony Disenfranchisement Laws In The United States

[v] Ibid.

[vi] People for the American Way/National Association for the Advancement of Colored People, "The Long Shadow of Jim Crow: Voter Suppression in America", 2004.

[vii] Jeff Manza and Christopher Uggen, 2006, Locked Out: Felon Disenfranchisement and American Democracy.

[viii] Ibid.

[ix] Dr. Manning Marable, Ex-felon disenfranchisement and the struggle for voting rights, April 18, 2007
http://www.freepress.org/columns/display/4/2007/1527


[x] The Joint Center for Political and Economic Studies, 1999, "Racial Profiling and the Disenfranchisement of Ex-Felons."

[xi] Demos, 2001,"Punishing at the Polls: The Case Against Disenfranchising Citizens With Felony Convictions."

Designer Laws -- Targeting Blacks

Driving While Black The racism implicit in designer laws, although it flows from the conception and enactment of the law, actually finds its greatest impetus in the implementation, since “putting away the bad guys” and “thwarting evil” is why people are attracted to law enforcement in the first place. For example, when the drug laws encourage law enforcement to “do whatever is necessary” to interdict drugs, it gives a kind of tacit permission for cops to engage in racial profiling. In fact, up until recently, racial profiling has been just another term for targeting blacks. But, since September 11, 2001, it has also come to be associated with targeting Arab-Americans.

Now, the purpose in creating any kind of profile is to come up with a set of predictors that narrow your search and increase the “hit rate” of whatever it is you are trying to find when you stop and search somebody. If you were going to construct a profile of drug couriers, you would begin with a large sample of known intercepted drug couriers and you would note which characteristics they had in common that were significantly different from a random sample of the population being screened (there are standard statistical tests for this). If race, in combination with other predictive criteria improved your hit rate significantly, so that, instead of a 4 percent success rate you were able to achieve a 30 percent “hit” rate, you would count yourself wildly successful, and you would be justified in using it, at least on technical grounds. There are other balancing social values, such as the base rate in which the prevalence of drugs is such that you could get a 30 percent “hit” rate just by searching everybody at random. And there is also the question of whether it is publicly desirable to turn this kind of methodology loose on society. The fact is, given enough good data, these kinds of actuarial methods can be unnervingly accurate—so they might be something you would not want turned against you in another context. And, no matter what kind of profile you put together, there are always going to be a large number of false positives who are going to complain and cause problems. And then, drug couriers are not stupid either. They are going to adopt strategies (like having kids in the car) that are going to defeat the profile.

But the more fundamental problem with profiling is that no one has actually done the kinds of actuarial studies necessary to create a statistically valid profile. So, the criteria that highway patrolmen use to select their targets tend to be an amalgam of subjective experience, stereotypes and subliminal hunches that have no proven validity. As mentioned above, Whites tend not to deal drugs on the streets; so law enforcement, being confined to the perspective of their squad cars, only sees the visible tip of the drug-dealing iceberg and conclude, on the basis of their experience, that drug-dealing is something associated with people of color when, in fact, that impression is based on a very small and skewed sampling of that world. Cops will argue with you about it being “common sense” to go after the type of people which they know from experience busting dealers every day in the nation’s ghettos—which is why cops are cops and not statisticians. In a 1993 lawsuit challenging a series of traffic stops of black drivers along a stretch of Maryland’s I-95, African Americans made up 13.5 percent of the turnpike's traffic and 15 percent of the speeders. But they represented 35 percent of those pulled over. It’s an experimentally verified fact that human beings can not perceive small statistical differences in speed, especially when a 1.5 percent difference in speed falls largely within the margin of error for the sample of observations. So, from the cop’s point of view, Blacks could not have been perceived as speeding at a noticeably higher rate than non-Blacks, yet they were 4.85 times more likely to be stopped and searched than others. And, although Blacks were no more likely than non-Blacks to be found carrying drugs, they were nonetheless 16.5 times more likely to be arrested than others, simply due to the frequency with which they were pulled over.[i]

According the ACLU’s Ira Glasser:

It is ubiquitous. It is happening in every state. And you have to ask yourself: In a country in which police power is so decentralized, 14,000 police departments, most of them don't talk to each other, really, how is it that this practice spreads? How is it that it's so uniform? Well, that's not an accident either. It's uniform because in 1986 the federal Drug Enforcement Agency started something called Operation Pipeline. The purpose of this program was to interdict drugs, and to get drug couriers. And to implement this program, they brought in, have brought in to date, some 27,000 state troopers from 48 states to teach them how to spot a car that is likely to be carrying drugs on the highways…

It is important to talk about the federal DEA training program because many public officials who can no longer deny the fact of racial profiling would like us to believe it is the work of rogue cops. But we are not talking about freelance cowboys here and there who violate rights. No, we are not talking about rogue cops. We are talking about rogue policy. We are talking about rogue leadership. We are talking about a national policy which is training police all over this country to use traffic violations, which everyone commits the minute you get into your car, as an excuse to stop and search people with dark skin. Most of us are not familiar with the full range of traffic violations, but in fact there is virtually no car on the road, when it's stopped, much less when it's going, that does not violate some aspect of the local traffic code.

…So when you have an offense that everyone commits virtually all the time, it ends up vesting enormous discretion in the police. And what happens is that traffic code violations are now used officially as a pretext. They're not interested in getting you to put your seat belt on, or in getting you to fix your tail light, or in getting you to move from lane to lane in the proper way, whatever that is. They're not interested in that when they stop you for those violations. The traffic stops are used as a pretext to look into the car and, one way or another, to obtain your consent to search for drugs, sometimes taking the whole car apart, just as the British soldiers ripped up furniture with their bayonets, and leaving its remains on the road, by the side, after they have failed to find drugs.
[ii]


Walking Around While Black Now, if you can find drugs by stopping and searching people who are driving while Black, then surely you can get the same result by stopping and frisking them when they are simply walking around while Black. And indeed they do. However, normally, you would have to show probable cause. In other words, there has to be known evidence that would lead a reasonably prudent person to conclude that, more likely than not, a crime is, has been, or is about to be committed, and that contraband or evidence of a crime will be found. Unfortunately, it is very difficult to tell who, on a darkened city street, has better than a 50-50 chance of having a weapon on them. So, in Terry v. Ohio (1968) the US Supreme Court decided 8 to 1, in the interest of officer safety, to lower the standard for searches for weapons to a “reasonable suspicion,” which is more than a hunch but considerably less than a 50-50 chance that the person is actually armed. And what makes it “more than a hunch” is simply that the cop can articulate a reason why he believes the person might be armed. The suspect was either seen loitering in the area, or he was seen hurriedly departing it; or he made eye contact with the officer, or he refused to make eye contact with the officer; or he seemed furtive and nervous, or he seemed overly confident in his movements and demeanor; or had a bulge; or he just didn’t look like he belonged in the nice part of town; or, simply, he was suspected of engaging in a crime that “normally” involves guns, like drug dealing, etc., etc.

But, everyone who has been through this drill before knows how it actually goes down. The police see you in a place where they think you don’t belong, they throw you up against a wall or flatten you against the hood of a car and they go through your pockets and they find your bag of dope in a pocket or your shoe. And off you go. In court, they will say they saw you behaving in a suspicious manner, and when they approached you, they will say they saw you “drop a little plastic baggie” to the ground, and when they retrieved “said baggie,” they found it to contain a “white powdery substance” or a “green leafy substance” that was suspected of being an illegal substance.

The "war on drugs" involves officers going onto buses and trains and demanding to see the identification and tickets of passengers. Data from the Los Angeles Police Department covering the period July to November 2002 showed that 22 percent of Black drivers stopped by LAPD were asked to step out their cars, compared to only seven percent of White drivers stopped. Once out of their cars, 67 percent of Blacks were patted down and 85 percent subjected to a body search. Fifty-five percent of Hispanics removed from their cars were patted down and 84 percent searched. By contrast, only 50 percent of Whites stopped were patted down and 71 percent searched.[iii] The huge majority of these searches are fruitless. In New York City during the late 1990s, eight out of nine recorded street frisks did not result in a conviction (and many more, particularly unfruitful frisks go unreported). In customs searches, during the same period, 96 percent of the body searches turned up nothing. This shows two things: first, that there is no actuarial, statistical or evidentiary basis for these stops and, second, that there is a comprehensive practice, if not a policy, of selecting targets by ethnicity anyway.


Just Sitting At Home, Minding One’s Own Business, While Black In April of 1994, a gang war erupted in the Robert Taylor Homes' housing project in Chicago, resulting in 15 shootings and eight fatalities in the course of a single weekend. It shocked the nation and, because it was a federal housing project, put pressure on the federal government to “do something.” In response, the Clinton administration said it would “encourage” tenants to sign “consent clauses” that would allow police and housing officials to conduct unannounced searches of their apartments for guns and drugs, much like an exterminator would check for roaches—only with an important difference—if they found anything, you would be hauled off to jail and your family could be tossed out in the street. Questioned at a press briefing, the acting associate attorney general conceded that consent clauses could "in some circumstances" be a mandatory condition of a tenant's lease. In other words, if you were so poor you had to depend on the federal government for housing, they would present you with a “take it or leave it” choice unless you “voluntarily” signed away your Fourth Amendment rights and submitted to warrantless searches.

Now, even though these “weapons sweeps” were ultimately found to be unconstitutional, what is disturbing here is that policing strategies that would have been both effective and constitutional had not been tried first. A police veteran of New York City public housing, now a law enforcement scholar and consultant, gave expert testimony for the Illinois Civil Liberties Union that guards at the Robert Taylor Homes consistently failed to stop people who set off metal detectors as they entered the lobbies. As long as entry to the buildings is virtually unrestricted, random searches of apartments would not be effective, he testified. Instead, the housing authority should secure the lobbies and form regular patrols through the common areas on each floor of the high rise buildings. But because the residences of these housing projects were primarily Blacks and people of color, it was politically permissible to try the most intrusive and draconian “get tough” measures first.

In 1999, the state of Michigan's began testing welfare recipients before admitting them for government aid, regardless of suspicion. The ACLU, with the assistance of Drug Policy Alliance, challenged the decision in the case of Marchwinski v. Howard. Because welfare recipients are disproportionately black, this policy, apart from violating 4th Amendment protections against unreasonable search, acts as another means of racial profiling in the search for drug offenders. In April 2003, the 6th Circuit Court of Appeals overturned the ruling of a lower court and reinstituted the original District Court decision striking down Michigan’s drug testing plan.

[i] Lamberth, John, [newspaper source not cited] Driving While Black; A Statistician Proves That Prejudice Still Rules the Road Sunday, August 16, 1998; Page C01. http://www.hartford-hwp.com/archives/45a/192.html

[ii] American Drug Laws: The New Jim Crow (6/1/1999), http://www.aclu.org/drugpolicy/racialjustice/10857res19990601.html

[iii] Wrong Then, Wrong Now: Racial Profiling Before & After September 11, 2001, Leadership Conference on Civil Rights Education Fund http://www.civilrights.org/publications/reports/racial_profiling/racial_profiling_report.pdf

Designer Laws -- The Gun and Drug-free School Zone Minefield

The Gun-Free School Zones Act of 1995 makes it a Federal crime, punishable by 5 years in prison to knowingly bring a gun within 1,000 feet of a school or to fire a gun in these zones, with a few carefully crafted exceptions to allow hunters to carry unloaded firearms in a locked container, and law enforcement officers in the course of their duty. Of course, noone opposes prohibiting children from bringing guns to school, but this feel-good law in no way deters someone who is seriously intent on doing so. Extending the perimeter to 1,000 feet--one half mile--does nothing to protect children per se, but it does transform the surrounding city into a penalty minefield that ordinary, law-abiding citizens can blunder into unsuspectingly and risk five years in prison for a behavior that is not inherently criminal and causes no harm. The law tends to target inner-city dwellers who feel most compelled to carrying a gun for personal protection. The density of schools in the inner city virtually ensure that even the most responzible gun owner will pass through one of these zones as a matter of course. And, given the disproportionate tendency of people of color to be stopped and searched, this needlessly subjects people of color to risk of imprisonment for behavior that is not inherently criminal. The only thing this law accomplishes is that it gives prosecutors one more tool to put otherwise law-abiding people away at their discretion. It grants additional power to an already racist police to harrass and discriminate anyone they please.

Drug-Free School Zones. Currently, nearly every state in the union has adopted some version of a drug-free zone law. These are laws enacted in the mid-1990s which markedly increased the penalties for any drug offense that took place within 1,000 feet of a school. They were intended to drive drugs away from school yards and create “drug-free” and presumably violence-free zones. None of these had been evaluated for effectiveness until New Jersey’s Sentencing Commission did a study in order to take a comprehensive look at whether drug-free zone laws actually deter drug activity near schools and what effects resulted from casting wide zones of prohibition around a long list of institutions and places. After more than a year of research and discussion among the Commission’s 15 members, who include representatives from law enforcement and all three branches of state government, the Commission came to several startling conclusions: First, that in urban areas where schools, parks, and public housing developments are numerous and closely spaced, overlapping zones turn entire communities into prohibited zones, erasing the very distinction between school and non-school areas that the law was intended to create. Second, the Commission found that, by blanketing densely populated black and Hispanic neighborhoods, the laws were creating “a devastatingly disproportionate impact on New Jersey’s minority community” in the form of an unwarranted racial disparity in the increased incarceration for people convicted of drug offenses. Third, the Commission determined that the laws had failed entirely to accomplish their primary objective of driving drug activity away from schools and schoolchildren. And fourth, that the law had no measurable deterrent effect and was not being used to sanction individuals that sell drugs to children. In effect, all the law was doing was provide an additional means of penalizing the people who happened to live in the inner city for doing what they normally do.[i]

Minnesota, North Carolina, and Rhode Island have determined that a 300-foot zone provides the necessary protection for children. Alaska and Wyoming did them one better by extending them to 500 feet, while lawmakers in Hawaii set the boundary at 750 feet. Connecticut and Mississippi, not to be outdone, extend theirs 1,500 feet; Missouri and Oklahoma clocked in at 2,000 feet; and South Carolina at a half-mile (2,640feet). Alabama, however takes the prize for the “mine is ridiculously bigger than yours” zone-size competition. Alabama has a three-mile drug-free zone around schools, including colleges and public housing projects. Each zone covers 27 square miles, or an area larger than the city of Boston. In Birmingham, the “school-zone” surrounding the University of Alabama campus alone encompasses bulk of the central city and comes within blocks of the international airport.[ii]

The same kind of “ours are stiffer than yours” lunacy also applies to penalties. People convicted in Alabama, Connecticut, and Massachusetts face a fixed mandatory minimum penalty enhancement that is added to any sentence imposed for the underlying drug offense. Washington State defendants face a two-year enhancement. And, in New Jersey, they face a separate three-year mandatory minimum prison term, although the sentence can be reduced for a plea, and may run concurrent with the sentence imposed for the drug charge. In Indiana and Texas, the enhancement raises the felony class of the underlying offense, exposing the defendant to a more severe penalty or penalty range. In some states, youth who would otherwise be under the jurisdiction of the juvenile justice system can be prosecuted as adults, and sentenced to an adult institution if the offense occurs in a drug-free zone. Alabama, once again, wins the prize for mindless severity. Its courts have ruled that a defendant convicted of selling drugs within three miles of both a school and a housing project must receive two mandatory five-year prison terms which must run consecutive to one another and to any sentence imposed for the underlying offense, resulting in a minimum 10-year prison sentence.[iii] One would think that this would cause people to "think twice" about buying or selling drugs; however, most people don't even know about these laws, until it is too late.

An Ohio man who was charged under that state’s drug-free zone law for a transaction that took place in his home argued that sale of a small amount of cocaine to another adult in a private residence posed no direct risk to schoolchildren, and that the statute therefore could not apply. The appellate court held, to the contrary, that Ohio’s drug-free zone statute says what it means, and means what it says—children no—noting that the language of the statute was clear on its face without resort to the rules of statutory construction. The court considered the dangers of drug activity in the vicinity of schools and schoolchildren to be self-evident, and the defendant’s conduct to fall squarely within the provisions of the law. Nor, it appears, does it matter if you know whether or not you are in a school zone. Appellate courts in Washington State and elsewhere have rejected claims that a drug-free zone law cannot be applied where prosecutors fail to prove that the defendant knowingly and intentionally committed a drug offense in a prohibited zone.

Once a defendant has crossed the threshold by intentionally engaging in illegal drug activity, the prosecution is not obligated to also prove that the defendant intentionally crossed the threshold with respect to his or her presence in a prohibited zone. So, in effect, these laws act like a sentence enhancement minefield, differentially impacting people of color living in densely populated urban neighborhoods 24 times more often than whites living in the open spaces of the suburbs.[iv] Some have attempted to argue the constitutionality under the principle of equal protection, but appellate courts in Florida, Indiana, Massachusetts, and Ohio have noted in each case that the appellants were not able to cite any statistical evidence of the laws’ disparate impacts (and just where would your average poor inner-city defendant get such information?). But, even if they did, they would still have to show discriminatory intent in order to strike these laws down on constitutional grounds.[v] And how do you prove intent when responsibility for any given piece of legislation is necessarily diffused over scores of legislators? Of course, no legislator is going to get out in public and say, “This law is really intended to screw Black folks.” But ask yourself this, if these laws were not intended to target and disadvantage people of color, why are there so many of them?

The consequences of these laws are not at all trivial. In the panhandle town of Tulia, Texas one of the most notorious miscarriages of justice in drug-war history took place in 1999, when Tom Coleman, a corrupt undercover narcotics agent, arrested 46 people—13 percent of the black men—in a town of 5,000 people. They were rousted out of bed, paraded in front of local television cameras in handcuffs—many of them half-dressed—and charged with selling cocaine to Coleman at various times over the course of his investigation. At least 23 defendants faced penalty enhancements because the drug deals were alleged to have been made within 1,000 feet of a school or a park. Much of the town of Tulia—which covers just a bit more than a square mile—falls into one or another drug-free zone.
They were all given harsh sentences, ranging from 20 to 361 years in prison, even though the arrests had turned up no cocaine, no drug paraphernalia, no weapons, no money, or any other signs of drug dealing. The convictions were based solely on the uncorroborated word of Coleman, who had followed none of the standard procedures routinely used in undercover drug operations across the country. Coleman acknowledges that he wore no wire, had no partner to corroborate his testimony, collected no fingerprint evidence and had no surveillance video or still images to prove his allegations of guilt. And, when some of the residents began to produce hard evidence that they could not possibly have been where Coleman says he did drug deals with them, it got their cases dismissed but hardly dented his credibility. In fact, Coleman was honored as the Texas Department of Public Safety’s 1999 Outstanding Lawman of the Year. Coleman, however, fell from grace when a Lubbock, Texas jury found him guilty of one count of aggravated perjury during a March 2003 evidentiary hearing in Tulia. That hearing precipitated a review of four Tulia defendants to see if their convictions were supported by any evidence other than Coleman’s word.

One of the disconcerting things about this case—apart from the fact that the charges were completely fabricated—is that so many defendants were compelled to accept plea bargains ranging from the 12 to 18 years in prison each. The first drug-free zone defendant to be tried was Jason Williams, a 19-year-old with no prior convictions, who had been charged with four separate sales, two of which were alleged to have been made in a drug-free zone. The jury found him guilty and sentenced him to 45 years in prison. Cash Love, was convicted of eight separate deliveries, some with drug-free zone enhancements. The jury stipulated that the sentences they imposed would be served consecutively, for a total of 361 years in prison. After seeing the results of the first few trials, other defendants who faced drug-free zone charges rushed to accept plea offers from the district attorney. And, had it not been for Texas Governor Rick Perry issuing pardons for the 35 wrongly convicted Tulians, they would all be in prison today. The other disconcerting thing about the Tulia case is that if Coleman had only arrested two or three people at a time, it is very likely that no one would have ever noticed that his charges against people were fabricated. Over the course of several years, he could have quietly denounced hundreds of people, and “disappeared” them into the Texas criminal justice system where they would have never been heard from again. It really makes you wonder about how many other innocent people around the country have been falsely accused, ramroded on a plea bargain, and likewise “disappeared” into the American prison system.

Each year approximately 250,000 juveniles are charged as adults in the criminal courts. Once convicted and sentenced in the adult courts, they receive harsher sentences; they are detained in adult jails and prisons; they may be denied access to appropriate treatment; they may lose student financial aid; they are burdened with an adult criminal record; and, in many states, may lose their voting rights. Although the “drug-free school zone” laws initially met with broad public support due to concerns about youth crime and drug abuse, the public is becoming aware of the adverse impact of these laws, thanks to data analysis by the Juvenile Transfer Unit in the Office of the Public Defender in Chicago.

They showed that, in Cook County, 99 percent of all the youth transferred to adult court were African American or Hispanic. Their analysis also showed that the majority of youth transferred had not previously received juvenile court services, and that most transferred youth simply received adult probation, making them eligible for all the adverse consequences facing adults but none of the services available to youth.[vi] In California, minority youths are more than twice as likely as their white counterparts to be transferred out of California's juvenile justice system and tried as adults. Once in the adult system, black juvenile offenders are 18.4 times more likely to be jailed than whites for equivalent crimes; Hispanic youths are 7.3 times more likely to be imprisoned; and Asian youths are 4.5 times more likely to serve time.[vii]

Government limitations on needle exchange programs make it very difficult for drug users to obtain clean needles, which again differentially impacts poor people and people of color. A white drug user can possess unused syringes for a period of time with relatively less fear of being caught and prosecuted because of it; whereas a black user stands a strong possibility of being stopped and frisked, in which case syringe possession can get him or her sent to prison or jail. Hence, black injection drug users are more likely to obtain, use and discard needles in short order upon obtaining them, increasing not only the risk of needle sharing, but also the problem of discarded needles endangering passersby. Roughly 60 percent of the AIDS-related deaths for black men and 90 percent of the AIDS-related deaths for women and babies are attributable to shared needles, making AIDS the leading cause of death for blacks aged 25-44.

[i] Disparity by Design: How drug-free zone laws impact racial disparity – and fail to protect youth. A Justice Policy Institute Report Commissioned by The Drug Policy Alliance, Judith Greene, Kevin Pranis, Jason Ziedenberg, March, 2006.

[ii] Ibid.

[iii] Ibid.

[iv] Ibid. p. 27.

[v] Ibid.

[vi] Law Office of the Cook County Public Defender, Juvenile Transfer Advocacy Unit, October, 1999 through September, 2000.

[vii] Males, Mike and Dan Macallair The Color of Justice: An Analysis of Juvenile Adult Court Transfers in California, January 2000
http://www.buildingblocksforyouth.org/colorofjustice/coj.pdf

Designer Laws -- Guilt by Association


The Presumption of Illegality America's immigration policies have long been premised on the view that Hispanics make up the majority of undocumented persons in the United States and that, therefore, any given Hispanic in the United States may well be here illegally. These presumptions were given legal foundation by the United States Supreme Court, which in 1975, relying on statistical data that Mexicans were 85 percent of the undocumented persons in the United States, held that a police officer may rely on an individual's perceived Mexican appearance in determining whether to make a stop.[i] Let’s suppose 85 percent of all the theoretical physicists in the world were White, by this logic, you would be justified in picking out just about any White in order to find a theoretical physicist. The question that determines your degree of warranted suspicion is, “What percentage of Hispanics are here illegally? Well, one crude estimate would be to ask, “What percentage of Hispanics speaks only Spanish at home?” In California, that would be 39.5 percent; in New Mexico, 36.5 percent; and Texas, 31.2 percent. Then subtract from that the 20.4 percent already known to be registered aliens in California; 8.5% in New Mexico, and 12.4% in Texas (1970 Census Figures quoted in United States v. Brignoni-Ponce). And you get an estimated probability of any given Hispanic having “possibly questionable paperwork” at about, 19.1 percent in California, 28 percent in New Mexico, and around 18.8 percent in Texas. Now obviously, this well below the 51% you need for “probable cause,” but what the Supreme Court is telling us is that it is good enough for “reasonable suspicion”—if they can give an additional reason, as in the Terry frisk case.

Justice Douglas nonetheless concurs with the majority, but reiterates his lone dissent in the Terry case:

I dissented from the adoption of the suspicion test in Terry, believing it an unjustified weakening of the Fourth Amendment's protection of citizens from arbitrary interference by the police. I remarked then:

"The infringement on personal liberty of any `seizure' of a person can only be `reasonable' under the Fourth Amendment if we require the police to possess `probable cause' before they seize him. Only that line draws a meaningful distinction between an officer's mere inkling and the presence of facts within the officer's personal knowledge which would convince a reasonable man that the person seized has committed, is committing, or is about to commit a particular crime." Id., at 38.

The fears I voiced in Terry about the weakening of the Fourth Amendment have regrettably been borne out by subsequent events. Hopes that the suspicion test might be employed only in the pursuit of violent crime - a limitation endorsed by some of its proponents - have now been dashed, as it has been applied [422 U.S. 873, 889] in narcotics investigations, in apprehension of "illegal" aliens, and indeed has come to be viewed as a legal construct for the regulation of a general investigatory police power. The suspicion test has been warmly embraced by law enforcement forces and vigorously employed in the cause of crime detection. In criminal cases we see those for whom the initial intrusion led to the discovery of some wrongdoing. But the nature of the test permits the police to interfere as well with a multitude of law-abiding citizens, whose only transgression may be a nonconformist appearance or attitude. As one commentator has remarked:

"Police power exercised without probable cause is arbitrary. To say that the police may accost citizens at their whim and may detain them upon reasonable suspicion is to say, in reality, that the police may both accost and detain citizens at their whim." Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 395 (1974).

[i] United States v. Brignoni-Ponce, 422 U.S. 873, 886-887 (1975)

Guilt by Association Chances are that when you were in high school you probably hung out with a couple of friends. You might have even experimented with a few different styles—jock, stoner, goth, skater, biker, geek—or you wore whatever the other kids were wearing that seemed “cool” and “in.” And, if you grew up during or after hip-hop, you may have even made up a “gang” name for yourselves, not realizing that if any one of you, individually or collectively did anything illegal, and other people could refer to your clique by name, the lot of you could be charged as belonging to a gang. Let’s say, for example, you and your buddies like to smoke a little pot after school. One of you takes up a collection for your “420” club and goes out to score some weed, then you would all meet on the roof of the school at, say, 4:20 in the afternoon and smoke out (which was how the original 420 group got started). You might even flash the old hippy peace sign to others in your group. Nowadays, that could be enough to put you all in prison for the better part of your lives. If your group is of any size at all, the chances of it containing someone in it who stole something, or got into a fight, or “tagged” something, or who bought or sold drugs, or who had sex with a girl, or stayed out past curfew, or who has access to a gun, who gets drunk and belligerent, who is a natural jerk, who spent some time in juvenal hall, or who had a sordid home life, all greatly increase.

All the prosecutor has to do is employ the techniques of “yellow journalism” and recite each and every one of your various transgressions, while implying that you are all “birds of a feather.” He doesn’t have to actually “prove” anything. All he has to do is scare a group of sweet little blue-haired ladies on the jury into believing that you are too dangerous to live in human company, or convince a group of middle-aged men that you are the evil law-breakers who are at the root of all of society’s problems. This isn’t all that difficult to do, particularly if there is any kind of generation gap, or any kind of racial divide, or any kind of fear or resentment factor at all (or if in fact, you have done something seriously wrong). People are very willing to believe the worst about people they already do not like, and are even much more willing to attribute the ills of society to other people, than from policies stemming from their own attitudes, beliefs and behaviors. In essence, all a prosecutor has to do is play on existing social divisions. His purpose, after all, is to find the weakest fault line along which he can break off those he is intending to turn into social outcasts.

In fact, any kind of social solidarity is inimical to the prosecutor’s purpose. So, he begins by turning one group member against another. He keeps increasing the penalties until somebody cracks and starts telling on the rest. He then takes that information and presents it to the other group members and says, “See, your buddy sold you out, what do you want to tell me about him?” Of course, the natural human response is to feel hurt and betrayed, and to want to respond in kind. So, once the first person “cracks,” the others soon follow suit, and whatever solidarity you may have had as a group quickly unravels. This is another reason why the penalties for drug crimes are so hugely disproportional to the offense. Just consider how much time you would have to be threatened with before you swallowed your self-respect and betrayed your best friend. The effect of such betrayal can be utterly demoralizing for all concerned, since it not only destroys the bonds of loyalty, honor and mutual respect that have sometimes been in place since grade school, it disrupts the entire social network. In the short term, the effect is demoralization and apathy. But in the longer term, the community regroups. It hardens itself. It develops tactics and it forms a counter-culture of resistance.

This is why some gang initiations involve a severe—and I mean severe—beating, not only to offer an opportunity demonstrate one’s commitment by withstanding a life-threatening ordeal but, more importantly, to instill a lasting and very personal memory of the fate that awaits anyone who betrays the group. Such “hardcore” practices may seem barbaric and pointless, to the delicate sensibilities of middle-class suburbanites, but these are adaptations made necessary in order to survive under conditions of constant law enforcement attack. This is not to minimize the acts of brutality and callousness perpetrated by inner-city gang members, but to point out these have been brought about and shaped by the government’s own policies. The party line, of course, is that the police are simply responding to the increased viciousness of gangs when, in fact, it is the gangs that are adapting to the increasingly aggressiveness and invasiveness of police tactics.

I don’t see how anyone can deny that the current prohibition on drugs has made the drug trade hugely profitable. Indeed, the tougher the government gets on the drug trade, the more profitable and competitive it becomes. So, of course the groups which profit from it will do whatever it takes defend and expand their turf—especially when their freedom is on the line and it is the only lucrative game in town. The point is, people are not innately “hardcore,” but they become so when they have to be. When the government can impose huge penalties for relatively minor crimes, and then uses this power to bribe, intimidate, or otherwise induce one friend to betray another, why would anyone be surprised if gangs didn’t resort to the same tactics? The only reason gangs would ever need to intimidate a witness is to counter the awesome power of the state. To imply that the thuggishness of inner-city people innate and that the police are just responding to it, is both fundamentally racist and misdirected.



People who do not live in the inner city are not aware of just how much has changed over the past 20 years. The inner-city police have shed their traditional peacekeeper roles and have become increasingly militarized. There are now over 30,000 SWAT teams around the country, and they are developing a paramilitary culture and a military mindset that is different—even hostile—to traditional policing. Instead, of proactively working with people in the community, helping them to protect themselves, the police have become an armed army of occupation in what they see as a “war zone.” So, it should not be surprising that the inner-city community has adapted to this occupation by increasingly coming to resemble a counterinsurgency. The FBI has called gangs “domestic terrorists,” and the Los Angeles police chief William Bratton calls them “homeland terrorists.” But, there should be no doubt that all of the initiative for this transformation has been entirely on the law enforcement side—and that it amounts to a huge escalation in our domestic wars against crime, drugs, gangs, racial minorities and youth.

In 1988, a California antiterrorism law legalized a dragnet approach to anyone who looked like a gang member. Any three of the following criteria are now enough to classify a person as a "known" gang member, and any two will define him as an "associate": (1) admitting membership, (2) associating with gang members, (3) corresponding with gang members, (4) being identified by another police agency, (5) tattoos, (6) writing graffiti or (7) wearing "gang clothing." [i] So, let’s say you have a tattoo and are wearing a big white t-shirt and some baggy pants. You go over to your cousin Paco’s place, who just so happens to be a gang member. The police show up and start taking pictures and taking names, and since they’ve seen you there a couple times before, they tag you as a “known” gang member—basically, for nothing more than hanging out with your own family. The problem is, that your name goes into a statewide gang tracking database, where it stays forever, and if you ever get in trouble for anything, it raises questions that can complicate your case and add years on to whatever sentence you might otherwise have gotten. The problem with this so-called “profile” is that it has a very high “false positive” or “false alarm” rate due to its poor ability to actually distinguish between bona fide gang members and non-gang members. So, in reality, the gang “profile” it is nothing more than a prefabricated rationalization which allows the police to believe they have “reasonable suspicion” when, in fact, all they have is an official excuse for stopping, searching, and arresting people for any real or imagined offense.

Suspect Classes The Fourth Amendment is supposed to prevent government agents from treating anyone as a suspect without probable cause. Now, it would appear, simply belonging to any number of groups is enough to allow the police to treat you as suspect--and each year the net gets bigger and the mesh gets finer.

It bad enough not to have a car, but now it is official: if you take public transportation, you are a second-class citizen. In 1991, the U.S. Supreme Court ruled that ordinary acts, such as traveling on a Greyhound bus are reasonable cause for a drug squad to search all passengers and luggage (Florida v. Bostic, 111 S.Ct. 2382 (1991)). The Court upheld that bus riders could object to being searched for drugs on the ground that such searches were unreasonable, but the practrical effect of exercising such a right was nil. Indeed, refusal of "voluntary" cooperation in such searches is deemed suspicious (ibid.). A search of 100 buses produced seven drug arrests--that is, seven accusations, not seven convictions. Denver police estimated that they searched 2,000 air travellers in 1990. They arrested 49. A drug squad at the Pittsberg airport searched 527 air travelers and arrested 49. Buffalo, New York, drug agents searched 600 air travellers in 1989 and arrested 10. In 1985, Justices Marshall and Brennan noted that travelers subjected top degrading drug searchers were typically innocent.

In Indiana, police sealed off a junior and senior high complex and searched every student's locker for drugs. Several female students were strip-searched; no drugs were found on them. Out of 3,000 students searched, no drugs or drug paraphernalia were found on the junior high school students and just over a dozen were found to have marijuana, pipes, rolling papers or beer. Indignant parents filed a lawsuit. The court ruled that being a junior or senior high school student was sufficient grounds to suspect a child of being a drug violator, thus searches of students by police require neither a warrant nor observation of suspicious conduct. The U.S. Supreme Court let the ruling stand (Doe v Renfrow 1980). In the 1980s school districts announced mandatory blood tests and urine tests for all students, with results to be turned over to the police. One school system made posession of aspirin a suspension offense, because aspirin tablets might contain LSD.

[i] Hayden, Tom, “LAPD: Law and Disorder” http://www.tomhayden.com/articlesGA6.htm

Designer Laws -- Crack Babies

Demonizing Black Women One of the interesting things about the war on women of color is that this is the first time that mainstream intellectuals, trading on their scientific, medical or academic credentials have “gone yellow” in the sense of using their positions and their prestigious reputations to demonize people of color. For example, a 1989 article, at the height of the crack scare, painted an alarming scenario of the mothers of crack babies. As she described, “Parents seeking the next crack fix have abandoned their young children in the streets and in hospitals. They have sold food stamps and their children's clothes for drug money. A few even have sold their children as prostitutes.”[i] In 1990, Sandra Blakeslee, in a front-page New York Times article proclaimed:

Parents and researchers say a majority of children exposed to significant amounts of drugs in the womb appear to have suffered brain damage that cuts into their ability to make friends, know right from wrong, understand cause and effect, control their impulses, gain insight, concentrate on tasks, and feel and return love… As adults, they may never be able to hold jobs or control anger.[ii]

By 1991, John Silber, president of Boston University, went so far as to lament the expenditure of so many health care dollars on “crack babies who won't ever achieve the intellectual development to have consciousness of God.”[iii] And Judy Howard, a pediatrician at UCLA, regularly gave interviews warning of the horrors of crack babies, once telling Newsweek that in crack babies, the part of their brains that “makes us human beings, capable of discussion or reflection” had been “wiped out.”[iv]

These were followed, in turn, by dire predictions of the supposed havoc these crack babies would wreak upon the world as they grew older. Charles Krauthammer wrote in 1989: "The inner-city crack epidemic is now giving birth to the newest horror: a bio-underclass, a generation of physically damaged cocaine babies whose biological inferiority is stamped at birth."[v] He goes on to quote Douglas Besharove, who says: "This is not stuff that Head Start can fix. This is permanent brain damage. Whether it is 5 percent or 15 percent of the black community, it is there."[vi]

A common thread running through these stories is the insinuation that “crack mothers” and their unholy spawn were something less than human. Crack-addicted mothers horrify and outrage us—first, because they were portrayed as promiscuous, self-indulgent and irresponsible (i.e., crack-whores). And, second, because they violate our sacred notions of motherhood as consisting of selfless caring and self-sacrifice. The drug itself is intensely demonized by presenting it as so sexualizing and addictive that just one exposure is enough to overpower the self-control of normally chaste and virtuous women, and continued use goes on to destroy the very instinctual basis of human morality—the maternal instinct. So, in this respect, crack becomes the very agent of evil in this drama. Crack-addicted mothers are as if possessed. They become subhuman because they have given themselves over, body and soul, to this demonic drug, and are now able to care for their unborn babies. In this context, crack babies can only be viewed as inhuman (or subhuman) as well—not only because of their alleged brain damage, but because they will inherit the neglectful mother’s presumed mental, emotional, and moral deficiencies. Krauthammer compared cocaine-exposed children to "a race of (sub)human drones" whose future, he pronounced, "is closed to them from day one. Theirs will be a life of certain suffering, of probable deviance, of permanent inferiority. At best, a menial life of severe deprivations,” that would exhaust the resources of our educational system, fill the prisons to overflowing, and completely drain the coffers of social welfare. In his opinion, "the dead babies may be the lucky ones."[vii]

What is striking about these assertions, apart from the horrific picture they paint, is that there seems to be no sound scientific evidence to support any of it. In fact, the only rational explanation for why the story achieved such instant popularity—or achieved any credibility at all—is because it evokes a very well-worn and culturally shared scenario—the Night of the Living Dead. In other words, the story was believed not on the basis of the facts (which were sparse and inconclusive) but because it captured our imaginations—specifically our ability to imagine a kind of relentless, mindless evil that threatens to come after and consume us all—unless we fight back and annihilate the monsters with every means at our disposal. To put it another way, crack evoked a deep emotional subtext, which captivated people in ways that made them impervious to the facts. Indeed, once people got around to examining the facts, it turns out that what was once thought to be specific effects of in utero cocaine exposure are in fact correlated with other factors, including prenatal exposure to tobacco, marijuana, or alcohol, and the quality of the child's environment.”[viii] In other words, the sick, shivering premature infant being pulled out of the incubator, where it was being kept alive by respirators and feeding tubes at staggering cost, and presented to the world as a “crack baby” was not the result of crack exposure at all. Rather, it was the victim of a much older and much more familiar inner-city disease—poverty, malnutrition, and lack of prenatal care—a consequence of our collective abandonment and neglect of the inner city. But that was a scenario that nobody wanted to listen to. That was old news—the old liberal story with the expensive social program ending. Here was a new and intriguing story where good triumphs over evil by annihilating it. As a story, it would get people worked up enough so that they would be willing to stand in line for a chance to operate the flamethrowers (figuratively speaking at the ballot box).

Ira Chasnoff, the doctor who gave birth to the crack baby frenzy by suggesting that “prenatal cocaine exposure could have a devastating effect on infants,” had a sample size of only 23 women and no controls. And, in this respect, his study and many which came after it were deeply flawed. You can’t assume that just because you are seeing a bunch of children with problems and you find that a few of them been exposed to cocaine that there is necessarily a cause and effect relationship. There may be (and in fact were) many other confounding factors that hadn’t been measured. For example, women who abuse cocaine also tend to be heavy users of alcohol. This is why you need a comparison group and a sufficiently large sample to statistically control for these effects before you can legitimately attribute any adverse outcome to one thing or another. When Chasnoff finally did such a study, he found that, “long-term, growth is normal, long-term medical issues are normal, and cognitive development is normal” after 2, 4 and 6 years of follow-up.[ix]

Nonetheless, the crack-baby myth persisted even after it began to be scientifically discredited. As a story it had a kind of irresistible “demon spawn” lure to it which, because it violated our sacred notions of motherhood, would draw us into an engrossing state of moral outrage. As such, it was the kind of story which makes everyone feel superior. Even the crack-addicted mothers could look at the stories and feel some small satisfaction that they at least were not as bad as the media was portraying them. But, more importantly, the crack baby myth seemed to invite people to take some sort of stand on what should be done about it. Those on the left could advocate more public social programs to meet the crisis, while those on the right could advocate more punitive drug legislation aimed at solving the problem by punishing the drug-addicted mothers they saw as responsible for it. Like the myth of the black “welfare queen” driving from welfare office to welfare office in her pink Cadillac, picking up welfare checks under different fraudulent names, the crack baby myth was also as false. Nonetheless, it evoked people’s rage against “freeloaders” and “welfare cheats,” diverting attention away from the huge government tax brakes and subsidies that the Republicans were handing out to their friends, and focusing it instead on a group that people like to blame for everything—Blacks who, according to the myth, had no work ethic, sat around all day smoking crack and having sex, and unleashing their unholy spawn on the rest of us.

By identifying crack with Blacks and then making crack the centerpiece of the war on drugs, Reagan could continue to publicly make war on Blacks and Hispanics without appearing to do so. One of Reagan’s advisors sent a memo to Reagan’s communications director on the necessity of the President maintaining a high profile on the drug war. He advised Reagan do so by making regular appearances at select drug awareness events. “Recent poll numbers,” he pointed out, “show that our best issue, as far as Presidential approval and Republican/Democrat differential, is the drug issue. We have about a 20 point spread, while our other issues on peace, economy, etc., have only a two to three point difference.[x]

The crack baby myth led to the enactment of a number of designer laws aimed at specifically at women of color. Hospitals began secretly testing pregnant women for cocaine, and jailing them or taking their children. Tens of thousands of kids were swept into foster care, where many of them remain. By 1995, thirteen states required doctors to report drug use in pregnancy or positive drug tests in newborns to law enforcement authorities. There were also nine states that specifically defined drug use during pregnancy as child abuse or neglect, and addressed it with everything from mandatory treatment, criminal investigation of the mother, and the possible removal of the child. In a throwback to the American eugenics movement of the early twentieth century, programs started offering so-called crack mothers money to buy more drugs in exchange for being sterilized.[xi]

But, more importantly, the demonization of crack and crack babies fueled a huge emotional outpouring of legislation that vastly escalated the war on drugs—the Omnibus Drug Abuse Acts of 1986 and 1988. The 1986 Act was a blueprint for the new federal drug control strategy that would emphasize punishment and incarceration over treatment and prevention. It authorized $1.7 billion in new drug war funding, adding to the previous federal drug control budget of $2.2 billion. It called for increased mandatory sentencing for sale and possession. It eliminated probation and parole for drug sellers and repeat offenders, and instituted an automatic sentence of death for any murder committed by a person involved in the drug enterprise. It added a “good faith” exception to the evidence exclusionary rule, so that illegally seized evidence would no longer be excluded from a criminal case due to a lack of a search warrant or probable cause. The law also increased fines and expanded the forfeiture powers of law enforcement agencies—a development that eventually led to a $500 billion per year profit motive for sustaining the drug war.[xii] It made the distribution of federal funding—even for projects not related to law enforcement, such as highway grants—contingent on states passing similar “zero tolerance” laws, thereby forcing states that favored a more tempered approach to join the crusade. The law even declared that drugs were a threat to national security, and therefore made large-scale trafficking violations federal offenses. To this end, it allocated $278 million for the Department of Defense (DOD) to aid in its interdiction efforts along the southern U.S. border.

The Omnibus Anti-Drug Abuse Act of 1988 piled on an additional $1.5 billion in bloc grants for state and local law enforcement organizations through 1991. It added over $300 million for hiring 3,830 new federal law enforcement officers. It stipulated that any individual convicted of a drug offense would be ineligible for federal benefits—including Social Security and Medicare. It authorized the Attorney General to exact civil penalties against drug offenders; and authorized the withholding of federal highway funds to any state that did not revoke the driver’s licenses of people convicted of drug charges. It even directed the Attorney General “to study the feasibility of prosecuting Federal drug-related offenses in a manner alternative or supplemental to the current criminal justice system,” or, in other words, a way of prosecuting accused federal drug offenders without affording them their constitutional rights.[xiii] It also allocated $200 million for new federal prison construction, $600 million in international.

The bill streamlined the process for asset forfeiture, making it easier for the proceeds from confiscated assets to go directly to the operating budgets of local law enforcement agencies, and lifted the restrictions on the amount of money law enforcement agencies could collect in forfeitures—essentially, eliminating the federal middlemen. This, of course, turned the drug war into a cash cow for state and local law enforcement agencies, which meant higher salaries for officers and millions of dollars worth of new vehicles and equipment, creating powerful, financially vested interested groups whose financial futures depend on maintaining the drug war. By the late 1980s, the war on drugs became the main contributing factor for the largest exponential growth of inmates in the history of the U.S. prison system.

And all of this was deemed absolutely necessary because of politically manufactured fears based on four erroneous beliefs: (1) that crack cocaine was instantly addictive; (2) that it caused violence and other systemic crime; (3) that crack cocaine use was uniquely perilous to developing fetuses, creating “crack babies” that would forever be a burden on society; and (4) crack cocaine’s purity, potency, low cost per dose, and ease of distribution and administration were leading to its widespread use and untold harm. First, crack cocaine and powder cocaine are in fact the same drug, they are only administered differently. In 1996, JAMA published a study that found that the physiological and psychoactive effects of cocaine are similar regardless of whether it is in the form of powder or crack.[xiv] And, addiction is determined by the amount and frequency of administration and not the form of the drug itself. Second, there is no evidence that crack or powdered cocaine physiologically or psychologically causes people to behave violently or to engage in criminality (beyond the fact that government policy chooses to regard the use of crack is itself as criminal). In fact, in a 2000 study, 74.5% of crack offenders had no personal weapons involvement and only 2.3% of crack offenders have actively used a weapon.[xv] The only violence associated with either crack or powdered cocaine stems from the government’s policy of forcing it into an illegal market. Third, there is no such thing as a “crack baby,” and the predicted onslaught of socially burdensome “crack babies” has never materialized. And, fourth, the evidence for a growing “epidemic” of cocaine use, rooted in the newly available, cheap form of the drug crack, was a slight increase in a daily and weekly usage statistic provided by the U.S. General Accounting Office.

These statistics were notoriously unreliable because they relied on very small samples, and this one proved wrong: the percentage of the U.S. population using crack remained absolutely stable between 1988 and 1994.[xvi] Although crack use could be described as an epidemic in the mid-1980s, David Musto points out, drug epidemics are cyclical in nature. Initially, there are periods of high rates of initiation, followed by periods declining usage and low rates of usage, and these are completely unaffected by interdiction, incarceration or any other “get tough” policy on users:
This misunderstanding of the relationship between legislation and actual drug use was illustrated in the 1950s, when strong laws were enacted in response to a rise in heroin use. Mandatory minimum sentences were put in place in 1951. Minimum mandatory sentences were doubled in 1956. The death penalty was imposed for supplying heroin to anyone under 18. Thus, when the next wave of drug use began, the United States had on the books the most severe narcotics penalties in the nation’s history and yet, a major drug epidemic still developed in the 1960s. Public opinion tended to reflect these facts, as the general public came to believe that laws do not seriously affect drug use. (Musto; National Assembly)

[i] 46 Marcia Slacum Greene, “Abuse, Neglect Rising in D.C.; Drugs Ravage Home Life,” in The Washington
Post, September 10, 1989, A1.

[ii] Sandra Blakeslee, “Adopting Drug Babies: A Special Report; Child-Rearing is Stormy When Drugs
Cloud Birth,” in New York Times, May 19, 1990, 1.

[iii] As quoted in Katherine Grieder, “Crackpot Ideas,” in Mother Jones, (July/August, 1995).

[iv] Ibid.

[v] Charles Krauthammer, “Children of Cocaine,” in the Washington Post, (July 30, 1989), c7, op/ed.

[vi] Ibid.

[vii] Ibid.

[viii] Deborah A. Frank, Marilyn Augustyn, Wanda Grant Knight, Tripler Pell, and Barry Zuckerman, “Growth, Development, and Behavior in Early Childhood Following Prenatal Cocaine Exposure: A Systematic Review,” in JAMA, vol. 285, (March 28, 2001): 1613.

[ix] Chasnoff, Ira, on Prenatal Cocaine Exposure interview originally appeared in the Reconsider Drug Policy Quarterly,
Spring 2000 cited in, Impacts of Drug Abuse on Families, The Rural Project Reference Guide . http://www.cattacenter.org/pdf/rural/3RURAL_RG_DrugAbuse.pdf

[x] Macdonald to Thomas Griscom, “Memorandum on Drug Initiative,” April 14th, 1987, in the files of Donald Ian MacDonald, folder “Crusade for a Drug Free America, 1 of 4,” box OA 19322, p. 1. as quoted in The Birth of the Crack Baby and the History that “Myths” Make by Jason E. Glenn (forthcoming 2007), Journal of Health Politics, Policy and Law.

[xi] Malisow, Craig “Deal of a Lifetime,” in Houston Press, February 27, 2003.

[xii] James Bovard, “Seizure Fever: The War on Property Rights,” in The Freeman, vol. 46, no. 1, (January 1996), and Baum, Smoke and Mirrors, 254.

[xiii] See Comprehensive Anti-Drugs Act of 1988, H.R. 4842, 100th Congress, available: http://thomas.loc.gov/cgi-bin/bdquery/D?d100:9:./temp/~bd39m1:@@@L&summ2=m&. See Pub. L. 100-690, Nov. 18, 1988, 102 Stat. 4181.

[xiv] D. K. Hatsukami & M. W. Fischman, Crack Cocaine And Cocaine Hydrochloride. Are The Differences Myth Or Reality?, 279 JOURNAL OF AMERICANMEDICINE , No. 19, Nov. 1996, at 1580.

[xv] U.S. Sentencing Commission, Report to The Congress: Cocaine And Federal Sentencing Policy 102-103 (2002)

[xvi] Ana Teresa Ortiz and Laura Briggs, “The Culture of Poverty, Crack Babies, and Welfare Cheats,” Defending Justice Endnotes and Citations 28 Social Text 21 (3): 39-57.

Designer Laws -- Targeting Youths


In the wake of the 1992 Crips-Bloods truce, gang violence in L.A. declined by half. Five years later, The Los Angeles Times reported that "police and residents of Watts confirm that gang-on-gang slayings over emotional issues of turf boundaries or gang clothing have virtually disappeared." But the truce eventually dwindled as the promised $6 billion in Rebuild LA initiative funding that was supposed to create 74,000 new jobs in five years after the 1992 riots turned out to be a sham. The riot zone had in fact lost about 50,000 jobs in that decade, creating an environment in which youthful rage exploded again in gang warfare.

Superpredator Scare In their 1996 book, Body Count, conservative intellectuals William Bennett, John J. DiIulio, Jr. and John P. Waters declare that, "America's beleaguered cities are about to be victimized by a paradigm shattering wave of ultraviolent, morally vacuous young people some call 'the superpredators.'" "…A new generation of street criminals is upon us—the youngest, biggest, and baddest generation any society has ever known." And they predict that the next generation will be even more predatory, with juvenile crime peaking in 2010.[i] Their thesis, in essence, is that there appear to be a fixed percentage of kids who are natural-born killers who just couldn't be helped by better schools or jobs—a pure assumption based on the wholly unsupportable theory that simple demographic processes, such as those giving rise to a quantitative increase in the teen population, will not only produce “thicker ranks” of the at-risk population, but implicitly a qualitative change in individual propensities toward criminality, rendering youth increasingly sociopathic or, as they put it in a later book:

“Radically impulsive, brutally remorseless youngsters, including ever more preteen-age boys, who murder, assault, rape, rob, burglarize, deal deadly drugs, join gun-toting gangs, and create serious communal disorders. They do not fear the stigma of arrest, the pains of imprisonment, or the pangs of conscience. They perceive hardly any relationship between doing right (or wrong) now and being rewarded (or punished) for it later. To these mean-street youngsters, the words 'right' and 'wrong' have no fixed moral meaning.”[ii]

In other words, not only were there simply going to be more of them, they were going to get worse and worse. In fact, their predictions were dead wrong. Between 1990 and 2000, California's felony arrest rate for juveniles dropped 30% and arrests of juveniles for homicide plummeted 50%.

From 1992 to 1998, the teen population aged 14-19 grew by 15%, adding 500,000 “temporary sociopaths” every year... and crime plummeted. Annual violent crimes decreased 289,000 (-16%), murders dropped by 6,500 (-33%), rapes, robberies, and aggravated assaults declined by 282,000 (-20%), major property crimes fell by 1.7 million (-20%). Black and Latino teen populations, the groups Fox called the most crime-prone, stand at record highs, and crime levels stand at 30-year lows.[iii]

Some media accounts, meanwhile, ignored crime trends altogether and used a single incident of youth violence to frame the threat as an immediate reality. A murder committed by two 15-year-olds in Central Park, for instance, suggests that "America is being threatened by a growing cadre of cold-blooded teens called 'superpredators.'”[iv] As in the “crack baby” scare, the press would continue to hype each sensational crime as new evidence that the onslaught of superpredators was upon us. This laid the foundation for the most massive prison expansion in American history, with its epicenter in California where, during the mid- to late 1990s were about 150,000 [double check] inmates in any given year.

Demonizing Children for Political Gain In the primary election of 2000, California’s Governor Pete Wilson, then presidential hopeful, sought to capitalize on this fear of juveniles and crime by placing Proposition 21, Juvenile Crime Initiative Statute, on the March ballot. Proposition 21 allocated $1 billion for new adult prison construction. It increased punishment for gang-related felonies. It provided the death penalty for gang-related murder, indeterminate life sentences for home-invasion robbery, carjacking, witness intimidation and drive-by shootings. And, it created a new crime of recruiting for gang activities; and authorized law enforcement wiretapping to detect them. It required adult trials for juveniles 14 or older charged with murder or specified sex offenses, and vested discretion with the prosecutor instead of the judge.


Counselor beating ward at California Youth Authority

It eliminated informal probation for juveniles committing felonies, required registration for gang related offenses, and designated of a number of additional crimes as “violent” and “serious” felonies, thereby making offenders subject to longer sentences. Proposition 21 also expanded Three Strikes laws to include a host of non-violent offenses as "strikes" for adults. It required the incarceration of many 16- and 17-year-olds in adult Department of Correction facilities, rather than in the California Youth Authority. The Proposition also allows any juvenile or adult whom the judge finds has committed a "gang-related offense," regardless of the severity of the underlying offense or whether it actually relates to gang participation, to submit to "gang registration" with the state and local law enforcement agencies for five years. Proposition 21 allowed open juvenile proceedings, the release of minor’s names to the public, prevented the sealing of records, created a new probation system for minors, restricted pre-adjudication release and facilitated the issuance of arrest warrants against minors. And it passed by 62 percent.
















The results were predictable. According to the ACLU, three out of four youths standing trial in adult courts are children of color—despite the fact that white youths commit most juvenile crimes. For those charged with drug offenses, Black youths are 48 times more likely than whites to be sentenced to adult prison. And for children charged with violent crimes, white youths averaged 193 days in detention, compared to 254 days for Black youths and 305 days for Latino youths. And all this, despite the fact that there is no evidence that treating children as adults reduces crime—in fact, the evidence shows that it has no effect whatsoever [v] A study comparing Connecticut, which had the highest juvenile-to-adult transfer rate in the United States, with Colorado, the state with the lowest rate of such transfers, found that the youth crime rate was the same in each state. Similarly, studies of violent juvenile crime in Idaho, Florida, and New York have found that making it easier to try youth as adults does not deter violent juvenile crime.[vi] Meanwhile, programs that have been proven to reduce youth crime—such as after-school programs, summer-job programs, and public mental health services—were scrapped.

America's Human Rights Shame The United States is one of the only countries in the world that allows children under 18 to be sentenced to life without parole. Human Rights Watch and Amnesty International report that more than 2,000 inmates are currently serving life without parole in the United States for crimes committed when they were juveniles. In the rest of the world, there are only 12 juveniles serving the same sentence, according to figures reported to the United Nations' Convention on the Rights of the Child. In 2006, Colorado passed a bill ending its practice of sentencing juveniles to life without parole; instead, juveniles who receive a life sentence will have to serve 40 years before they are eligible for parole. But the bill was not retroactive, and the 45 former juveniles now serving life without parole in Colorado will likely die in prison.

In many ways, the law places youth in an untenable situation. On one hand, there are the get-tough advocates who dismiss juvenile courts as too lenient, who are willing to treat young people not only as fully-formed adults, but as hardened and irredeemable adults, whose cognizance of their actions is so fully considered and so consciously depraved, that the individual can not possibly be rehabilitated (something that is seldom true, even in adults). On the other hand, these very same advocates generally do not consider persons under age 18 to be sufficiently competent to make adult decisions, such as whether to have sex, to get married, to enter into a contract, to rent their own apartment, to conduct business, to stay out after curfew, to purchase alcohol or cigarettes, to not attend school, to leave home when they choose, to refuse to submit to the “control” of their parents, or to vote. Indeed, the mere attempt to act as an adult in many of these areas is considered a “status offenses”—a behavior, which although perfectly legal for an adult, can result in a youth’s incarceration, simply because of his or her “underage” status.

The champions of juvenile court deplore trying “children” as adults and defend their institution’s supposedly kinder, gentler rehabilitations for youngsters, but because their efforts are predicated on the presumption of incompetence and irresponsible brainlessness that supposedly characterizes adolescence, these efforts often result in measures that tend to incapacitate and infantilize young people in ways that unnecessarily prolongs their immaturity. As a result, youths sentenced by juvenile courts spend more time in prison than those sentenced in adult courts in for equivalent offenses. Worse still, youths got longer sentences from both juvenile and adult courts than adults received for the same crimes. For murder, burglary and drug offenses, California youths sentenced by juvenile courts served an average of 62, 32 and 22 months, respectively. For these same offenses, youths sentenced by adult courts served just 55, 30 and 19 months, respectively. Adults served a paltry 49, 29 and 16 months. Other offenses show similar patterns.[vii] While publicly lamenting that juvenile courts coddle youthful offenders, California prosecutors are actually trying more youths in juvenile court than they did in the 1980s. For instance, in the 1980s, 43 percent of the youths sentenced for murder in California went through adult courts. In 2001, it was only 9 percent.[viii] Overall, 10 percent of California youths released from prison in the 1980s were tried in adult courts. Today, it’s just 6 percent.[ix]

Modern juvenile courts are a prosecutor's dream. Minors have a right to a lawyer and most of the procedural rights given adult defendants, but juvenile defendants, unlike adults in California, have no right to a jury trial, no right to bail, no right to habeas corpus, and no right to an appeal, while being subject to indeterminate sentences that are contingent on their rehabilitation. The frequent use of incarceration as a first resort for relatively minor crimes (truancy, fighting, or alcohol-related crimes) has so overcrowded juvenile facilities that there is very little prospect for genuine rehabilitation even when it is attempted. As a result, youths tried as juveniles tend to serve more time than adults for comparable crimes—something which is as egregiously impractical as it is unfair, since juvenile offenders typically have shorter criminal records, fewer offenses and fewer victims than do adult offenders. Back in 1966, an outraged Supreme Court quoted juvenile justice experts (in Kent vs. U.S): “The child receives the worst of both worlds … neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.”

Kids kept in cages, under higher security than we keep Charles Manson. Just imagine what kind of message it sends to a kid when you are trying to "rehabilitate" him while he is being treated like a caged animal.

The Special Problems of State-raised Youth Far from being idyllic retreats where youth are gainfully employed in vocational training and counseling, youth institutions are intensely violent and predatory places—sometimes referred to by their graduates as “gladiator school.” John Irwin writes of “state-raised” youth:

The major theme of [state-raised youth] system is related to “toughness”—the focal concern of the lower class described by Walter Miller. In youth prison, which has a high concentration of delinquents committed to this concern, toughness is raised to extreme heights. Violence is accepted as the proper mode of settling any argument, and one must be ready to resort to and face violence…

The second theme of the state-raised system is a clique-forming propensity. In the hostile, violence prone prison world, youths usually band together in small cliques. To some extent this is for protection, to some extent it is an extension of the gang-forming behavior of the delinquent youth. For the most part these are loose-knit, constantly shifting cliques. But occasionally in the youth prison or later in an adult prison a group will share possessions, steal together, participate in prison rackets, and exert some forced over other inmate and other inmate cliques.

A third theme of the state-raised youth is prison homosexuality… The state-raised youth with years of this type of experience is unduly sensitive to homosexuality. He is quick to impute homosexuality to others and to prove his own masculinity. Furthermore, he has acquired a set of sexual meanings and definitions which are hard to reconcile with the sexual meanings of the nonprison worlds.

The last important theme in the state-raised youth’s world is the “streets,” a concept which has a much different meaning for him than for other criminals. “The streets” is some place where you temporarily sojourn and engage in wild, abandoned pleasures. … For these youths, “the streets” is a category within the prison world. Releases from prison are seen as short vacations from prison. At times, a small clique of state-raised youths who have been released in the same time period will form on the streets and then live out the escapades they had planned in prison. These groups tend not to stay out of prison very long because their activities are blatant and bizarre. …

The world view of these youths is distorted, stunted, or incoherent. To a greater extent, the youth prison is their only world, and they think almost entirely in the categories of this world. They end not to be able to see beyond the walls. They do conceive of the streets, but only from the perspective of the prison. Furthermore, in prison it is a dog-eat-dog world where force or threat of force prevails. If one is willing to fight, to resort to assault with weapons (or if he has many friends who will do so), he succeeds in this world.
[x]

Considering that this has been well-known for almost 40 years, it is difficult to see how anyone would find that there would be any practical benefit to incarcerating youthful offenders. However, the clincher is that in the 1970s, a group of innovative juvenile justice researchers sought to measure the relative effect of “get tough” treatments versus “rehabilitative” treatments on youthful offender recidivism. They randomly assigned one-third of 2,500 nonviolent youthful offenders to prosecution in court, one-third to intensive family and community treatment programs, and the remaining third were released the rest without consequences. The percentages rearrested within a year were 32 percent for the court-referred youth; 31 percent for the program-treated youth, and 30 percent for the controls who were released without consequence. In other words, doing nothing actually worked slightly better than the conservative “get tough” approach, and for virtually no expense, as opposed to the considerable expense of incarceration or social and psychological intervention.

[i] William J. Bennett, John J. DiIulio, Jr., and John P. Walters, Body Count: Moral Poverty and How to Win America's War Against Crime and Drugs. Simon and Schuster, 1996.

[ii] Bennett, William J., John J. DiIulio, and John P. Walters, Body Count: Moral Poverty and How to Win America’s War Against Crime and Drugs, New York: Simon and Schuster, 1996.

[iii] Mike Males, Exposing the Myth of “Youth Violence” in San Francisco Attorney, April-May 2000

[iv] Christian Science Monitor, 6/2/97

[v] See Richard Lacayo, "Teen Crime, " Time, July 21, 1997, p. 28; see also Jeffrey Fagan, “Separating the Men from the Boys: The Comparative Advantage of Juvenile Versus Criminal Court Sanctions on Recidivism Among Adolescent Felony Offenders, ” in A Sourcebook: Serious, Violent, and Chronic Juvenile Offenders, edited by J. Howell, B. Krisberg, J.D. Hawkins, and J. Wilson. (Thousand Oaks, CA: Sage Publications, Inc., 1995); Richard E. Redding, “Examining Legal Issues: Juvenile Offenders in Criminal Court and Adult Prison, ” Corrections Today, April 1999.

[vi] Ibid.

[vii] Mike Males, “Do Adult Crime, Do More Than Adult Time” in Youth Today, April 2003

[viii] Ibid.

[ix] Ibid.

[x] John Irwin, “The Felon” Prentice-Hall, Englewood Cliffs, NJ, 1970., pp 26-29.


http://www.counterpunch.org/salasin12222005.html

http://www.indybay.org/newsitems/2004/04/03/19592.php

http://www.commonweal.org/programs/jjp-reports/July2005_VPI_bulletin.html

http://www.geocities.com/three_strikes_legal/lockup_blasted.html
BOOT CAMP FOR KIDS: Torturing Teens for Fun and Profit, Cruelty, sadism, injury & death in locked residential facilities for troubled youth http://www.nospank.net/boot.htm

Designer Laws -- The Invention of the Sexually Violent Predator

The Invention of the Sexually Violent Predator

It used to be that when a person did his crime, he did his time, and that was the end of it. Now, in the case of sex offenders, at the conclusion of his sentence, the state suddenly takes an interest in their mental health. In 1996, the California legislature passed the Sexually Violent Predator (SVP) civil commitment statute. This defined a new category of sexual offender that never existed before. This definition, however, was a political one—which is to say, the term “sexual predator” does not correspond to any pathological mental condition, syndrome or definition known to Mental Health professionals. Rather, it corresponds to a category of offenders that politicians wish to single out for political purposes—a category of already hated individuals that they wish to demonize and vilify further.

From the Minority Report, a science fiction story about people being arrested for murders they are predicted to commit.

To “qualify,” the offenders have to meet specific criteria: They have to be within a month of release on their current prison terms; they have had to have hands-on sexual offense involving two or more victims. And the victims had to be strangers, acquaintances, or persons befriended for the specific purpose of victimization. (This ruled out offenses involving incest or spousal rape, both of which tend to be situation-specific and tend not to reoccur after legal intervention and psychological counseling). And, if two out of three clinical psychologists had to agree that the person had “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.”[i] If he met these conditions, he was to be referred to his home county District Attorney, who would seek his involuntary civil commitment to a two-year treatment program in a maximum security state mental hospital.

California’s SVP statute is modeled after one in Washington State, where a mentally disturbed sex offender took a little boy into the woods, sodomized him, cut his penis off, attempted to strangle him, and left him for dead. Fortunately (or unfortunately, if you want to make political hay by prosecuting them), such cases are extremely rare.

No sooner were the SVP criteria promulgated than local prosecutors began lobbying the State Legislature to relax and broaden them. The first thing to go was the violence. Initially, there had to be an element of force or fear. But soon the simple fact that the adult was larger than the child would be considered “violence” because the larger of the adult created an “aura of menace.” In other words, the adult’s larger size alone was sufficient to count as “violence.” The second thing to go was the sex. Initially, the qualifying offenses had to be “hands-on” in the sense of skin-to-skin touching of genitalia. Any action that may “arouse the prurient interests of the child” now qualifies as “sexual.” In other words, if a child walks into a room where pornography is being played and it arouses their “prurient” interest, or the child is touched over his or her clothes, then that is sufficient to count as “sex.” And the predisposing mental condition requirement grew to be so liberally interpreted that virtually any kind of diagnosed psychological disorder could be deemed as a “predisposing mental condition” for the purposes of the statute. So, if someone has, let’s say, a manic episode, and he pats a little girl on the fanny in a crowded video arcade, and that person has a prior conviction for similar behavior, he can now be involuntarily committed to a state mental health prison as a “sexually violent predator”—something quite a bit different from what the law was originally designed to address.

In 2006, Governor Schwarzenegger sponsored Proposition 83, reduced the required number of victims to one, it extended the commitment period from two years to an indefinite period of time, and it allowed certain crimes committed by a person while a juvenile to be “countable” for purposes of an SVP commitment. The Legislature was already working on Senate Bill 1128 which, together with Proposition 83, broadened the definition of certain qualifying sexual offenses, added new ones—including child pornography, continuous sexual abuse of a child, administering a controlled substance to commit a sex offense—and it extended the penalty for felony sex offenses to life in prison. It prohibited probation in lieu of prison for some sex offenses, including spousal rape and lewd or lascivious acts. It eliminated “good time” credits for those sentenced to prison. It required GPS monitoring of the offender for the rest of their life, during which the person could not go within 2,000 feet of a school or park—which virtually banishes the offender from any populated area for fear of stepping over any of these unmarked boundaries. .

Because the civil commitment proceedings take place under civil law, double jeopardy does not apply. The individual is, in effect, tried again, not on the basis of the evidence in his earlier cases but on the fact that he has been previously convicted (a fairly slam-dunk proposition). He will be committed to an indefinite stay in a state mental health prison—where he will remain until he can convince a panel of not particularly sympathetic psychologists that he is “rehabilitated” and “unlikely” to offend again. And while the accused is entitled to an attorney, and some modicum of due process, he is not afforded all the civil rights and protections pertain to the criminal law. Hearsay, for example, is admissible in civil proceedings. There are no protections against self-incrimination. And, in fact, a defendant can be compelled to testify against himself. The outcome of his case will not turn on any evidence, but rather on the opinion of the three psychologists who interview him, a majority of whom have demonstrable biases against him.

This is quite a departure from our customary notions of crime and punishment, because now you do not even have to commit a crime in order to be punished. Call it “preventative detention” if you like, but the individual is being deprived of his liberty, not for anything he has actually done, but for crimes he might commit in the future. Imagine being punished, not for anything you have done, but because you fit the profile of someone who might commit a crime in the future. And then imagine being punished again, ex post facto for conduct that occurred before the law existed. There is no presumption of innocence in this scheme of things.

Now, you might reasonably ask, is profiling technology “that good” that you really can predict who is going to offend? No, not beyond a reasonable doubt, which is the standard of evidence that applies. But California’s SVP screening program does not use rigorously tested scientific profiling technology anyway. It relies on the subjective judgments of a panel of three clinical psychologists. And their predictive accuracy, according to my own replicated study, is slightly less than zero. In other words, you would be able to predict just as accurately if you simply flipped a coin and sent everyone who came up “heads” to a mental health institution. The reason for this inaccuracy is that the psychologists, not wanting to be personally liable for making any mistakes, purposely err on the side of caution. Unfortunately, in so doing, they commit two to three times the number of people who actually warrant it. Moreover, two-thirds of the clinicians had a statistically demonstrable bias against one offender type or another. And, furthermore, the state differentially rewards these biased clinicians with additional patronage.


A plethsysmograph; a controversial device of dubious accuracy used to measure slight changes in penile erection in sex offender diagnosis and treatment.

You might also reasonably ask, “What is the harm in sending a sex offender to get a little treatment, all expenses paid courtesy of the state?” First of all, it is extremely expensive. It costs around $500,000 per person for the clinical work-up and the civil commitment part of the process alone. It costs another $106,000 per year to keep the inmate in a hospital environment, and then another $20,000 to $30,000 to review his case each year. The price tag for the whole program is about $485 million per year to “preventatively” detain less than 600 individuals, many of whom are “false positives.” And, finally, there is no proven benefit to the “treatment” they receive. The architects of California’s Sex Offender Civil Commitment Program completed a 15-year long randomized clinical trial called SOTEP (or Sex Offender Treatment Evaluation Project) in 2002. And it showed that the “state-of-the-art” treatment program that the clinicians had designed years earlier had no benefit whatsoever. This was no inconclusive study with a flawed study design; the program simply didn’t work. And if it didn’t work on garden-variety sex offenders who were reasonably motivated to participate in the original program, what would make them think it would work on the “worst of the worst,” brought in against their will, for a “treatment” that most of them didn’t need, in what amounts to a second round of punishment for a crime they already have already been punished for? Even more disturbing, is that just as the SOTEP study was coming to fruition, the California Department of Mental Health not only cancelled the project, it dismantled its entire research section in which it was housed, citing budgetary cuts. The final results have yet to see the light of day.

..............................................Real bogeymen live under the bed and bite the fingers and toes off of little nose-pickers.

Rates of childhood sexual victimization have been in decline since around 1994, and have been falling gradually year by year. The SVP program, which started in 1996, did not really have any appreciable numbers in its program until three to four years later. So, it could not possibly be responsible for this decline—if only because it is simply mathematically impossible to remove 300 to 400 persons from a population of 36 million and have it make any detectable difference whatsoever. However, the program does produce some very high profile, very highly demonized sex offenders who, when released back into the public, generate sensational news coverage which, in turn, provides politicians with a sure fire opportunity sound off on how “tough” they are on sex offenders. For example, Timothy Lee Boggs, a 52-year old child molester, is one of the few people ever to have successfully completed the SVP treatment program. He has been hounded from at least two of his residences by Sacramento television crews coming up to his apartment door, like an electronic lynch mob, and broadcasting his address.

The more salacious term, “sexual predator” is now routinely applied to garden variety “sex offenders” or “child molesters” in broadcast journalism. And the term is gradually creeping into other areas of deviant sexual interests. Anyone who engages in sexually suggestive interaction with a minor over the Internet, for example, whether or not they are attempting to lure the minor into an actual meeting, is now termed a “predator.” Individuals looking to share their interest in underage persons with other adults are also now frequently referred to as “predators.” To ferret out and penalize this latter group for what amounts to the thought crime of being sexually interested children, Proposition 83 makes it a felony to possess child pornography, and it provides funds for undercover cops to patrol the net to seek out persons exchanging such materials. Between 1996, when the Child Pornography Protection Act was enacted and 2003, when the US Supreme Court struck down, “virtual” child pornography was illegal to own. In other words, it was illegal to possess any image that simulated underage persons in a sexual situation, including artistic renderings of children sexual situations even when no actual child was involved.

There are about 8,000 persons convicted of a felony sex offense in California each year. Of these, about 4,880 consist of public nudity, “lewdness,” and incest offenders, most of whom receive probation in the community (5 percent), county jail time (1 percent), or both (53 percent). The rest, 3,120 (or 39%), are sent to state prison.[ii] In other words, enough sex offenders go to prison each year to fill an entire prison—and since the prisons are operating at maximum capacity, for every one that goes in, one comes out. There are, as a consequence, about 90,000 registered sex offenders living in towns and cities throughout California. That’s about one in every 193 California adult males.

There are few things that get people more upset than sex offenders. It’s difficult to talk about them at all without someone suggesting something like painting bulls-eyes on them and declaring open season. The trouble is, that most sex offenders are close family and friends, and a great many people are “sex offenders” and don’t even know it. In many states fornication and adultery are still felonies, as are oral copulation and sodomy, and sex between men. Even sex among consenting minors is considered statutory rape. As we shall see in the next chapter, states like California have undertaken an initiative to criminally prosecute cases of statutory rape.

[i] California Welfare. & Institutions Code 6600(c).

[ii] California Legislative Analyst’s Office, Analysis of Proposition 83, Sex Offenders. Sexually Violent Predators. Punishment, Residence Restrictions and Monitoring. Initiative Statute of 2006. http://www.lao.ca.gov/ballot/2006/83_11_2006.htm

Designer Laws -- Statutory Rape

Most of the people who are alive now have had sex before they were 18 years of age. Most of the people who have ever lived in all the generations of Man, were not only having sex by the age of 18, they were married as well, and not very long after puberty. And yet, even though the state considers most teenagers mentally competent to stand trial as adults, the state considers them mentally incompetent to consent to consensual sex.

Though California's statutory rape laws languished on the books for decades, they are the linchpin of a new three-year, $76-million effort by Gov. Pete Wilson's justice department. The Wilson administration claims this will curb teen pregnancy, reduce billions in state and federal welfare payments to teen mothers and lock up "predatory" older fathers who impregnate teenage girls and abandon them, even though statistics show that this occurs in less than 8 percent of all cases.

Critics say the plan is nothing but a political ploy to condition young people to say no to sex rather than use birth-control clinics, pointing out that grown men who impregnate teens create only a small percentage of the state's 63,000 teen pregnancy cases.

Even though they are married, 17-year-old Delia Lopez and 22-year-old Juan Jiminez and their baby son found themselves in court after a doctor reported them to authorities.

In response, the state is spending $56 million over three years on community programs that address teen and unwed pregnancy, $11.6 million on mentoring programs for young men, and $8.4 million a year on the prosecution of cases like Jiminez's.

In a 1995 pilot project, 14 counties received grant money to dedicate a team--attorney, investigator and paralegal--to handle statutory rape cases. Two years later, 52 of California's 58 counties are receiving the special funding. Santa Clara was one of the first counties to get the grant and has kept going back to the till to fund what is the state's most aggressive prosecution program. This year the county received $275,000 to prosecute the crime, and it will receive another installment next year. Though this sum is a drop in the bucket for a DA's office that spends $34.7 million a year on criminal prosecutions, it can now put two full-time attorneys, one full-time and one half-time investigator and a paralegal on the statutory rape beat. Rather than a traditional setup whereby one attorney handles specific parts of each case, the grant allows a prosecutor and an investigator to follow each case from start to finish, which results in higher conviction rates.

Jo Anne McCracken, the deputy district attorney who heads Santa Clara County's program, says that prior to getting the grant, her office prosecuted 35 statutory rape cases a year. Since receiving additional funding in February 1996, the county has handled 280 cases.
This leap in prosecutions here and in counties around the state is due mostly to the strong push from the governor's office to dust off the law books and get offenders behind bars. That initiative, which reached its highest level of funding this year, was sold to the legislature with the help of one very disturbing statistic. Anyone involved in the governor's push to end teen pregnancy is quick to throw that number out up front. It is meant to grab and shock and garner support for Wilson's punitive approach: two-thirds of all teen pregnancies are caused by men over 20.

This is a troubling statistic for anyone worried about what their daughter is doing after dark, or for deficit hawks who see teen pregnancy as the gateway to multibillion-dollar welfare expenses. But that number reveals little about statutory rape and has been misused by those trying to push everything from abstinence to putting more people behind bars, says Susan Tew, a spokeswoman for the Alan Guttmacher Institute, the organization that first published that statistic.

Designer Laws -- Three Strikes

Under California’s Three Strikes law, anyone who commits a third felony after committing two prior similar felonies is sentenced to a mandatory 25 years to life. Leandro Andrade, for example, was given not one but two sentences of 25 years-to-life for stealing nine children's videotapes representing a retail value of $153.54 in two small back-to-back thefts. Ordinarily, petty theft carries a maximum three years, but in California, a non-violent misdemeanor crime can be made into a third strike. They call it a “wobbler,” because it is at the Prosecutor’s discretion whether to charge the strike or dismiss it “in the interest of justice.” As long as the first two crimes are clearly felonies, then a third crime—whether it is stealing a bike or a slice of pizza can send a person to prison for 25 years to life—or, in Andrade’s case, for 50 years, a virtual life sentence without possibility of parole, since the statute requires that the person serve 80 percent of it.

For at least a century, the Supreme Court has upheld the principle that penalties that are grossly disproportionate to the crime violate the Eighth Amendment, which bars cruel-and-unusual-punishment. However, the State of California, in Lockyer v Andrade (2003), argued before the US Supreme Court that the State did not consider this cruel and unusual punishment because it was not punishment for the crime at hand, but for the person’s “failure to heed the lessons of his prior history.” In other words, because the defendant demonstrated a propensity to recidivism, the State was justified in incapacitating him from further crime for a minimum of 25 years, in order to protect the public from serious violent crime. Or, to put it another way, the State did not choose 25 to life because of the inherent moral or social reprehensibility of the triggering offense, but because of its confirmation of the defendant’s danger to society and the need to counter this threat with incapacitation. Surprisingly, the Supreme Court agreed that Andrade’s petty thefts posed such a danger and, on a 5-4 vote, upheld his 50-year sentence.

Justice Souter, writing the dissent for the minority argued that, if a triggering offense signals a propensity to recidivate, two trivial offenses occurring back-to-back do not signal that the person will be dangerous for twice as long. And he goes on to write:

“Implicit in the distinction between future dangerousness and re-punishment for prior crimes is the notion that the triggering offense must, within some degree, be substantial enough to bear the weight of the sentence it elicits. As triggering offenses become increasingly minor and recidivist sentences grow, the sentences advance toward double jeopardy violations. When defendants are parking violators or slow readers of borrowed library books, there is not much room for belief, even in light of a past criminal record, that the State is permanently incapacitating the defendant because of future dangerousness rather than resentencing for past offenses.

That said, I do not question the legitimacy of repeatedly sentencing a defendant in light of his criminal record: the Federal Sentencing Guidelines provide a prime example of how a sentencing scheme may take into account a defendant’s criminal history without resentencing a defendant for past convictions, Witte v. United States, 515 U. S. 389, 403 (1995) (the triggering offense determines the range of possible sentences, and the past criminal record affects an enhancement of that sentence). The point is merely that the triggering offense must reasonably support the weight of even the harshest possible sentences.”[i]

So, the intent of Three Strikes law, like the Sexually Violent Predator statute, is once again not so much to punish the individual for what he has done, but to preemptively detain and punish him for offenses he might commit in the future, only with Three Strikes, there is no attempt to evaluate the offender to determine his likelihood of reoffense. The odd thing about it is that if Andrade’s prior offenses had been rape and murder, the most he could have received as a sentence for stealing videotapes was a year in jail, but because the prior crimes were property crimes, he got 50 years in prison.[ii] There are people in prison that have committed murder that are serving less time than Andrade is for stealing videotapes.

Like the Sexually Violent Predator statute, Three Strikes was enacted in response to a rare but spectacularly heinous crime; namely, that of Richard Allan Davises, who kidnapped, raped and murdered a little girl named Polly Klass. The case drew national attention and provided the firestorm of emotion that drew California voters to the polls in 1994 to pass a ballot Initiative called Prop.183. The SVP statute was enacted by the Legislature a year later. Grover Merritt, the Los Angeles Deputy District Attorney who prosecuted Andrade described him as, “… an individual for whom three strikes was designed and this is an individual who deserves to have had the full weight of it dropped on him.” Thus, in the hands of prosecutors, Three Strikes became a tool they could use to “sweep the streets” not only of the almost unimaginably rare child murders and rapists like Davies, but the far more common shoplifters, bicycle thieves and drug addicts like Andrade. Data released in March 1996 by the California Department of Corrections and analyzed by San Francisco's Center on Juvenile and Criminal Justice show that more people have been put away under Three Strikes for possession (not sale) of drugs than for all violent offenses combined. Indeed, twice as many defendants have been imprisoned under Three Strikes for marijuana possession than for murder, rape, and kidnapping combined.[iii]





Newsweek called it "the toughest law in the nation" kept it simple: "Three strikes keeps career criminals who rape women, molest children and commit murder behind bars where they belong." What few people realized, however, was that the sweeping nature of the law would put thousands of nonviolent men and women in prison for twenty-five years to life, for crimes as minor as shoplifting $2.69 worth of AA batteries, forging a check for $94.94, or attempting to buy a macadamia nut disguised as a $5 rock of cocaine.









But, is it worth it? The proponents of three-strikes think it is. Helland and Tabarrokm, for example, estimate that 4.3 percent of crime in California is committed by people with two or more strikes.[iv] Using 2002 FBI crime report statistics, this works out to about 12,712 crimes per year. The authors note that victimization studies show that much crime goes unreported and so they recommend inflating this number by a factor of 2.08 for violent crimes and 2.8 for property crimes. This under-reporting may be true in for petty thefts and certain sexual offenses, but it is unlikely true of very serious crimes like bank robbery, murder, kidnapping and the like, for the simple reason that these sorts of crimes are likely to involve insurance claims, and insurance companies often require a police report before they will process a claim. Nonetheless, they estimate the cost of incarceration at around $35,000 per inmate per year for 8,000 inmates for 16.6 years to come out to $4.6 billion—or $148,000 per crime avoided. If one takes $43,000 as the annual cost of incarcerating a prisoner, the cost climbs to $184,000 per crime avoided. And, they argue, the "savings" may be even higher than that, because this model assumes that this striker population will never slow down, that they will continue to commit the same level of crime year in year out well into old age, where they become more expensive to incarcerate due to medical expenses.
The assumptions driving these estimated "savings" are considerably at odds with what we know about crime. FBI uniform crime reports are anything but uniform and are notoriously inflated. If one man walks into a bar and gets involved in a fight involving four other people, it is counted as four separate crimes. Suspected murders that are later ruled suicides, justifiable homicides or accidents are all counted as murders, etc. Attempted crimes are counted as completeted crimes, and crimes with multiple perpetrators are counted as separate crimes. We also know that the sorts of crime we are most concerned with are also highly youth-related. Ninty percent of all car thefts are kids out joy-riding, and the car is usually recovered within 24 hours. Thus, criminality tends to peak in the late teens and early twenties and tapers off quite markedly by age 35. So, while it may make some sense to impose a 10-year sentence on a prolific criminal in his 20s, it makes less and less sense to hold him in prison past his 40s, 50s, 60s, and 70s. This is especially true when you measure actual victim losses directly, as did the Bureau of Justice Statistics, and found that the average victim loss per robbery is only $1,258, burglary $1,545, larceny theft $750, and auto theft is $6,646. According to research funded by the Pew Charitable Trust, it now costs the State of California $49,247 to incarcerate one inmate for one year. Given the average length of sentences for robbery (94 months), burglary (52 months), larceny theft (34 months), and auto theft (27 months), it costs Californians $385,768 to punish one single robbery; $213,403 per burglary; $139, 533 per larceny theft, and $110,805 per car theft, before three-strikes kicks in. In order to break even under this arithmetic, the robber would have to be committing about 40 robberies per year, year in year out--an extraordinarily prolific rate that would make it very difficult to live in the same city without being recognized by a former victim and getting arrested. For better or worse, crime is not typically confined to just a few "bad apples" in this way, so proceeding under a theory that says that each repeat offender is a highly prolific criminal simply does not square with reality.

When we compare crime rates in counties that aggressively charge third strikes against those which do not, we find that while crime rates decline further in counties that make the most sparing use of the law. For example comparing the three years before Three Strikes with the three years after Three Strikes was enacted we find that Sacramento, which invokes the law 12 times more aggressively than San Francisco had a decline of -22.1 percent in homicides, -6.4 percent in violent crimes, and -3.2 percent in all other index crimes, while San Francisco had a decline of -31.8 percent in homicides, -28.0 percent in violent crimes, and -24.5 percent in all other index crimes.[v]

So, not only is it insanely expensive, it is discriminatory as well. In 2004, there were 947.8 White males arrested on felony charges per 100,000 in the California population. However the rate for Blacks was 4152.9, or 4.4 times as many. Likewise, the overall rate of incarceration was 7.5 times higher for Blacks than Whites, the rate of incarceration on a second strikes was 10 times higher for Blacks, and the incarcerated on a third strike was almost 13 times higher than the rate for Whites. For Latinos, the felony overall arrest rate was 50% higher than Whites, their incarceration rate was 81% higher, and their rate of incarceration under the Three Strikes law was 82% higher[vi] In this respect, there is little doubt that three Strikes is a handy tool to sweep the streets—and the voting precincts—of people of color.

[i] 538 U. S. Supreme Court Lockyer v. Andrade (2003).

[ii] CBS 60 Minutes II, Three Strikes: Penal Overkill In California? July 9, 2003.

[iii] Jerome H. Skolnick, “Tough Guys,” in The American Prospect, vol. 8, no. 30, (February, 1997): 86-91

[iv] Eric Helland and Alexander Tabarrok Does Three Strikes Deter? A Non-Parametric Estimation, http://mason.gmu.edu/~atabarro/ThreeStrikes.pdf

[v] Daniel Macallair, Striking Out: The Failure of California's "Three Strikes and You're Out" Law, Center on Juvenile Criminal Justice. http://www.cjcj.org/pubs/three_strikes/strikingout.html

[vi] Scott Ehlers, Vincent Schiraldi, and Eric Lotke, “Racial Divide: An Examination of the Impact of California’s Three Strikes Law
on African-Americans and Latinos” Justice Policy Institute, October 2004.

Designer Laws -- The Trap Door of Probation

Another easy way for prosecutors to send people to prison for the full statutory term without having to go through the bother and expense of a trial is to give them probation. This is particularly effective tactic with people who have never been in trouble before, especially while they are in a state of shock from being confined for the first time in a noisy, filthy, crowded, dangerous place like jail. Apart from the fact that the conditions in jail are such that a person will agree to almost anything to get out, the prospect of getting a “go and sin no more” pass on his crime may seem like an act of unbounded mercy. However, there is a catch—and a hair trigger one at that. The person must “obey all laws” for the duration of his probation, which can be quite lengthy. Of course, no one enters into such a bargain intending to commit another offense, and so the deal is underwritten by the person’s sincere good intentions at the time. But the state can afford to take a much more long-term and cynical view: Prosecutors know that people, being human, will soon forget their good intentions and, over time, they will drift back into their old ways, and run afoul of the law again.

For certain “high risk” groups, such as the homeless, the mentally ill, the drug addicted, the recently unemployed, and the recently divorced, this is a better than 50-50 proposition—not only because their lives are in disorder, but because the state now knows who they are. When the police run his ID on a routine traffic stop, they will know immediately that he is on probation and thus subject to “search and seizure”—which means that any law enforcement officer can stop the person and search him without a warrant, and for no particularly good reason. Anything found in his car, his home, or on a companion can be sufficient to violate his probation—at which point the trap springs, and the person finds himself in prison serving the full term on his original offense. As one can see in Table 3 above, any little misdemeanor, like a speeding ticket, or missing a meeting with one's probation officer, or failure to abide by one of any number of special conditions can be enough to trigger a prison term without the state having to try and convict on the original offense. And since there is no chance to plea bargain under these circumstances, one serves the the full sentence asked for, which is usually the maximum.
Quite often there is an expensive course of counseling involved, and fines which, if they are not paid in full and on time, can result in violation of probation and prison time. There were 388,260 people on probation in California at the end of 2005—up from 280,560 in 1995, the largest increase of any state in the country.[i] Nationally, there were 4,162,500 people on probation at the end of 2005.
However, not everyone who violates their probation goes to prison on this kind of deal. There are natural limits posed by the space available in prison. So, there is always a great deal of prosecutorial discretion in who stays and who goes. Generally speaking, the more priveliged you are, the better your chances of the DA looking the other way. If you are a liberal Democrat and the prosecutor is a conservative Republican, chances are he will likely see you as a greater threat to society than one of his own. If you are poor, Hispanic or black, you're toast.

[i] Lauren E. Glaze and Thomas P. Bonczar Probation and Parole in the United States, 2005, Bureau of Justice Statistics, revised 01/18/2007

Designer Laws -- The Revolving Door of Parole

An even more efficient way of “sweeping the streets” and sending people to prison without having to go through the bother of a jury trial, or the passing formality of a plea bargain or, indeed, without the necessity of them even being guilty of a crime at all, is to simply violate their parole. In California, parole violations are decided exclusively by parole officers who are essentially correctional officers employed in the community by the Department of Corrections, and who belong to the same union as prison guards. If a parole officer has a hunch the parolee has done something wrong--say, he finds a beer can in the parolee’s garbage, or somebody tells him that “he scares me,” or he turns in a dirty pee test, he can tell the person, "You've violated parole, " and off he goes to county jail. There's no warrant, no proof—nothing but the parole officer's say so. He’ll then sit in jail for 1-2 months awaiting for a bed to open up in prison, during which he is supposed be granted a “Valdivia” hearing within 35 days.

A Hearing Officer then determines whether the parole officer had sufficient “probable cause” to violate him (which they do something like 99% of the time), at which point, without any kind of court adjudication or jury verdict, they hand down a sentence of anywhere between two weeks and one year in prison. This can either be either “flat time” (serving the full term) or “half time” (or eligible for one-for-one good time credits), but the good time credits do not start until the inmate is transferred to prison and, in the meanwhile, any good time lost is his tough luck. It is not uncommon for the committee Hearing Officer, who is also a CDCR employee, to threaten the parolee with more time (i.e., taking away his half time) during negotiations if he does not “willingly” accept the deal—or, if he appeals.

Once transferred to a state prison, he sits for another 30-90 days before his appeal is heard by a "violation committee," which reads the parole officer's report and hears the inmate's response in person. Sometimes the committee will let him off with "time served," since many parolees have been back in custody for 2-3 months by the time their hearing comes up. If a parole violator wants to appeal this decision, California law requires that he go through the Board of Prison Terms' own administrative appeal process, which usually takes about eight months and again upholds the violation finding about 99% of the time. Only then can the inmate take it to court, but by the time any court would hear the case, even the maximum one-year violation term is over, and the court dismisses the case as moot.

There is, consequently, absolutely no independent oversight to this process. So, in effect, CDC-R can send as many people as they want to prison, and they can keep the prisons as full or as over-full as they want. And they do—creating conditions which manipulate the politicians into building more prisons to relieve the “overcrowding.” In other words, CCPOA members—who benefit from overtime and promotional opportunities in overcrowded trouble-prone prisons, have a direct financial interest in violating people on parole—and a conflict of interest with the public that pays for them.

People seem to feel rather comforted by the thought that their prisons are jammed to the rafters, because they assume that all the people being put away are dangerous and deserve to be there, and that they are being protected from them. But, in fact, about half the people in prison in California are there for parole violations.[lix] And, of these, 57 percent, or roughly 28.5% of the total prison population, are in prison for technical violations of their conditions of parole[lx]—which is to say, for things such as failing to keep an appointment, traveling more than 50 miles away from home without permission, turning in a dirty pee test, failing to go to AA or NA meetings, getting fired from a job, “failure to follow directions,” not being at your listed address when the parole agent comes by—none of which are actually illegal. In addition, parole officers can impose special conditions of parole, which are supposed to relate directly to the inmate’s pattern of offending, but which are often simply ill-informed intrusions into the person’s life. For example, if someone is homeless (and therefore difficult to locate) the parole agent will often tell parolee to report to him every day until they get one. If the person has ever dealt drugs, they might decide to forbid the person to have a cell phone or plastic sandwich baggies. If the person has used a stolen credit card, they might forbid him from having a checking account or a credit card of his own. Or if there is any domestic violence in his history, the officer may decide to forbid him to have any contact with his girlfriend—or any women whatsoever. If they don’t like your attitude, such as getting “uppity” and threatening to file a grievance, they can always make something up to violate you. The burden is always on the parolee to prove his innocence. And even where he can produce witnesses and affidavits that prove the parole agent is lying or mistaken, the Hearing Officer can summarily deny them, and there is nothing the parolee can do about it.

My own experience was instructive. When I checked in with my parole officer, a gung-ho cop with a collection of law enforcement patches on his wall and a ceramic pig cookie jar on his file cabinet. He told me, “My job is not to provide you with social services; it is to put bad guys away, period.” I told him that when I was inside I had heard all sorts of stories about how you didn’t really have to do anything all that bad in order to get “violated.” For example, I heard one story (and many similar) about a guy being violated for falling asleep in the living room in front of his TV set because he had a steak knife in his baked potato. This caused Jones to launch into one of his blustery canned spiels about how you can’t believe anything a prisoner says. “So,” I ask him, “is it okay to have a knife in the living room?” “No, all knives have to be in kitchen at all times.” “What about a plastic knife?” I ask. “Nope, not even a butter knife.” So, in effect, he just confirmed everything he just denied about prisoners’ credibility. This told me that he is the sort of man who sees people in terms of categories. And, in this instance, I was very clearly just another one of “them”—a “bad guy” who was never going to convince him otherwise. Well, at least I knew where I stood and, just to make sure there would never be any doubt, he added for good measure, “And don’t think we won’t violate you, because we’re building more prisons, you know.” So, once a month I drop by for a C&P, and shortly thereafter, he drops by looking very much like the armed agent of the state, and checks out my cutlery.

California wasn’t always like this. In the 1970s, California had indeterminate sentencing where people only got out once they had convinced a parole board that they had been rehabilitated. The role of the parole agent was to support the rehabilitation of the offender by administering funds for housing, transportation, and the acquisition of employment (through the purchase of tools, clothes, etc.). In 1980, 79 percent of admissions to California state prisons were new commitments—or people who had been convicted of a new crime; 10 percent consisted of parolees being returned for a new crime and 11 percent were for technical violations of their conditions of parole.

By 2000, only 31 percent of new admissions were new commitments; 12 percent were parolees returned on new crimes and 57 percent were returned on technical violations. Over this same period, California experienced a 2,884 percent increase in the number of people being returned to prison on parole, as compared to 600 percent nationally.[lxi] California's parole system eventually violates and re-incarcerates 70% of parolees, twice the national average. At the end of 2005, there were 111,743 parolees in California prisons, but 162,329 parolees had cycled through, serving on average about 5 months each, most on petty drug charges an many of the rest on drug charges.

This rapid cycling of inmates can be very destabilizing to a parolee’s life. It’s very difficult to keep a job, have a relationship, or start anything long-term when, at a moment's notice, a parole officer who doesn't like them or who they pissed off (while not violating the rules) can have them re-jailed for up to a year—which automatically adds an extra year onto your parole. By law, it can continue for up to four years even on a one-year sentence. If you're sentenced to 16 months in a California prison, you can actually serve more time on parole violations than you did on your sentence—even more than 16 months total, unlike other states. In addition, each time you go back, your restitution doubles. Two hundred dollars may sound like a trivial amount to pay off, but when it is taken out of your 19 cents per hour wage, it’s quite a burden. Four and eight hundred dollars means you will never see a candy bar or a stick of deodorant unless you brought your own money in from the County jail, or your family sends it in (in which case, they still take 55 percent).

Getting back to parole, here’s how it works: By law, the parole term is a maximum of three years from the date of initial parole, but that clock stops running while you're in prison on a violation, but only for one year. So if you're paroled on July 1, 2003, but "violated" on September 1, 2003, for a period of six months, you've completed two months of the parole, and the clock starts again on March 1, 2004, when you're released again. If you're then violated again for a one-year term on May 1, 2004, the clock starts ticking again on November 1, 2004, even though you're still in prison on the violation. Since you'd completed four months "outside," then when the clock resumes on November 1, 2004, your parole must be discharged by law 32 months later, on July 1, 2007, even if you spend every day of that time in prison on various violations. If you spend no time in custody (as only 30% of parolees do), your term is a maximum of three years. If you spend a year or more in custody on violations, it's four years.[lxii]

Now, as it turns out, California law provides for a "presumptive discharge" of parolees after one year. If you haven't caught a parole violation after 12 months, your parole officer has to fill out a form explaining why you should be discharged from parole. If BPT doesn't disagree with it, then after 13 months, you're discharged from parole and your sentence is completely over. After spending much of the 1990s greasing the rails of the criminal justice system with “designer” laws that declare ever-broader categories of people to be dangerous, life-long offenders, deserving to be locked up for 25 years to life, and doing away with adjudicated guilt, pesky appeals and judicial oversight, California has a high preponderance of non-violent offenders in custody. As long as the offender is on parole, he is a third-class citizen with very few rights. He is subject to the whims of his parole officer, he can be returned to prison at will, there is no meaningful appeal, and the system is designed in such a way that he will never escape the control of the Board of Prison Terms or the Department of Corrections.

However, the real problem in California is the parole system. Most people think "parole" means that if you're released after two years on a three-year sentence due to "good behavior," then you'll be supervised on parole for one more year and that's it. They have no idea you can serve four years in prison on parole violations after a one-year sentence, nor do they know that a judge or jury will never hear the case during any of that time. The only people who will hear it are those who have a vested financial interest in keeping the prisons packed.


It is difficult to imagine a system more likely to cause people to fail. The “new” and improved pre-parole counseling being instituted to remedy California’s 70% return to custody rate consists of a 20-minute questionnaire that asks the inmate all sorts of leading questions about his needs and his past criminality. From a prisoner’s point of view, one might easily get the impression that some of this is intended to be helpful, but beneath the window dressing, it is simply just another means of constructing a net that will be used to catch the person later. For example, if the person admits to having a drug or alcohol problem that he had not admitted to before, this will now become part of his permanent record. It will result in all sorts prohibitions that can trip him up later (such potential parole violations for such things as beer cans in his trash) or requirements that he get into and stay in a “treatment” program whether or not he actually wants treatment or, if he does, whether a particular program is right for him.

Residential programs vary enormously. They are often run by reformed addicts who may have overcome their own addictions, but who are in no way qualified to handle the psychological complexities of other people. Often, these programs are little more than government-subsidized cults which use the threat of parole violation to keep people in line. In any case, failure to adapt to the incestuous politics of these programs can be cause for a parole violation. This can be complicated by the fact that in small communities it isn’t uncommon for people who have some problematic history to meet up with one another.

About two weeks before the prisoner is about to parole, he is handed an envelope full of materials. And, without being given a chance to sit down and look at them, he is asked if he has any questions, and then sent on his way. The packet, despite its heft, contains very little of any actual use—college financial aid forms long past their due dates, a list of all the residential treatment programs in the county, a letter from the Social Security Administration saying that they have no funds for ex-convicts, a list of things you can and can not do while on parole, a list of your rights should you be violated (which are presumed waived if you do not immediately and vigorously assert them in writing). If you checked off on your intake questionnaire that you need transportation, they will give you the address of your local Department of Motor Vehicles. And, if you checked that you need a job, they will give you the address of your nearest Employment Office. You are given $200 at the prison gate (a sum which hasn’t been adjusted for inflation since 1973) and, despite what it says in the brochure about money for clothing, security deposits, tools and transportation, that’s it.
It is difficult to imagine a system more prone to abuse. Any time a woman gets fed up with her parolee spouse or boyfriend, all she has to do is break a few windows and, when the police come, tell them the boyfriend did it. If you want to get rid of your ex-girlfriend’s current boyfriend, all you have to do is call his parole officer and tell him you saw him smoking dope, or he had a knife, or “he scares me,” or he made “terrorist threats,” and away he goes, with very little if any investigation. Owe someone money? Just pick up the phone. Need sweatshop labor? Just make a deal with a parole officer. If your workers don’t like being cheated out of their overtime, or if they start talking union, just pick up the phone and they are instantly replaced.

[i] Gray, Mike, 1998, Drug Crazy: How We Got Into This Mess and How We Can Get Out, Routledge , 29.

[ii] Wood, Erika and Neema Trivedi, he Modern Day Poll Tax: How Economic Sanctions Block Access to the Polls, The Shriver Center Clearing House Review Journal of Poverty Law and Policy, May Jun, 2007, Vol. 41. Numbers 1-2.

[iii] Gray, Ibid, 30.

[iv] The Sentencing Project, April 2007, Felony Disenfranchisement Laws In The United States

[v] Ibid.

[vi] People for the American Way/National Association for the Advancement of Colored People, "The Long Shadow of Jim Crow: Voter Suppression in America", 2004.

[vii] Jeff Manza and Christopher Uggen, 2006, Locked Out: Felon Disenfranchisement and American Democracy.

[viii] Ibid.

[ix] Dr. Manning Marable, Ex-felon disenfranchisement and the struggle for voting rights, April 18, 2007
http://www.freepress.org/columns/display/4/2007/1527


[x] The Joint Center for Political and Economic Studies, 1999, "Racial Profiling and the Disenfranchisement of Ex-Felons."

[xi] Demos, 2001,"Punishing at the Polls: The Case Against Disenfranchising Citizens With Felony Convictions."

[xii] Lamberth, John, [newspaper source not cited] Driving While Black; A Statistician Proves That Prejudice Still Rules the Road
Sunday, August 16, 1998; Page C01. http://www.hartford-hwp.com/archives/45a/192.html

[xiii] American Drug Laws: The New Jim Crow (6/1/1999), http://www.aclu.org/drugpolicy/racialjustice/10857res19990601.html

[xiv] Wrong Then, Wrong Now: Racial Profiling Before & After September 11, 2001, Leadership Conference on Civil Rights Education Fund http://www.civilrights.org/publications/reports/racial_profiling/racial_profiling_report.pdf

[xv] Disparity by Design: How drug-free zone laws impact racial disparity – and fail to protect youth. A Justice Policy Institute Report
Commissioned by The Drug Policy Alliance, Judith Greene, Kevin Pranis, Jason Ziedenberg, March, 2006.

[xvi] Ibid.

[xvii] Ibid.

[xviii] Ibid. p. 27.

[xix] Ibid.

[xx] Law Office of the Cook County Public Defender, Juvenile Transfer Advocacy Unit, October, 1999 through September, 2000.

[xxi] Males, Mike and Dan Macallair The Color of Justice: An Analysis of Juvenile Adult Court Transfers in California, January 2000
http://www.buildingblocksforyouth.org/colorofjustice/coj.pdf

[xxii] United States v. Brignoni-Ponce, 422 U.S. 873, 886-887 (1975)

[xxiii] Hayden, Tom, “LAPD: Law and Disorder” http://www.tomhayden.com/articlesGA6.htm

[xxiv] 46 Marcia Slacum Greene, “Abuse, Neglect Rising in D.C.; Drugs Ravage Home Life,” in The Washington
Post, September 10, 1989, A1.

[xxv] Sandra Blakeslee, “Adopting Drug Babies: A Special Report; Child-Rearing is Stormy When Drugs
Cloud Birth,” in New York Times, May 19, 1990, 1.

[xxvi] As quoted in Katherine Grieder, “Crackpot Ideas,” in Mother Jones, (July/August, 1995).

[xxvii] Ibid.

[xxviii] Charles Krauthammer, “Children of Cocaine,” in the Washington Post, (July 30, 1989), c7, op/ed.

[xxix] Ibid.

[xxx] Ibid.

[xxxi] Deborah A. Frank, Marilyn Augustyn, Wanda Grant Knight, Tripler Pell, and Barry Zuckerman, “Growth, Development, and Behavior in Early Childhood Following Prenatal Cocaine Exposure: A Systematic Review,” in JAMA, vol. 285, (March 28, 2001): 1613.

[xxxii] Chasnoff, Ira, on Prenatal Cocaine Exposure interview originally appeared in the Reconsider Drug Policy Quarterly,
Spring 2000 cited in, Impacts of Drug Abuse on Families, The Rural Project Reference Guide . http://www.cattacenter.org/pdf/rural/3RURAL_RG_DrugAbuse.pdf

[xxxiii] Macdonald to Thomas Griscom, “Memorandum on Drug Initiative,” April 14th, 1987, in the files of Donald Ian MacDonald, folder “Crusade for a Drug Free America, 1 of 4,” box OA 19322, p. 1. as quoted in The Birth of the Crack Baby and the History that “Myths” Make by Jason E. Glenn (forthcoming 2007), Journal of Health Politics, Policy and Law.

[xxxiv] Malisow, Craig “Deal of a Lifetime,” in Houston Press, February 27, 2003.

[xxxv] James Bovard, “Seizure Fever: The War on Property Rights,” in The Freeman, vol. 46, no. 1, (January 1996), and Baum, Smoke and Mirrors, 254.

[xxxvi] See Comprehensive Anti-Drugs Act of 1988, H.R. 4842, 100th Congress, available: http://thomas.loc.gov/cgi-bin/bdquery/D?d100:9:./temp/~bd39m1:@@@L&summ2=m&. See Pub. L. 100-690, Nov. 18, 1988, 102 Stat. 4181.

[xxxvii] D. K. Hatsukami & M. W. Fischman, Crack Cocaine And Cocaine Hydrochloride. Are The Differences Myth Or Reality?, 279 JOURNAL OF AMERICANMEDICINE , No. 19, Nov. 1996, at 1580.

[xxxviii] U.S. Sentencing Commission, Report to The Congress: Cocaine And Federal Sentencing Policy 102-103 (2002)

[xxxix] Ana Teresa Ortiz and Laura Briggs, “The Culture of Poverty, Crack Babies, and Welfare Cheats,” Defending Justice Endnotes and Citations 28 Social Text 21 (3): 39-57.

[xl] William J. Bennett, John J. DiIulio, Jr., and John P. Walters, Body Count: Moral Poverty and How to Win America's War Against Crime and Drugs. Simon and Schuster, 1996.

[xli] Bennett, William J., John J. DiIulio, and John P. Walters, Body Count: Moral Poverty and How to Win America’s War Against Crime and Drugs, New York: Simon and Schuster, 1996.

[xlii] Mike Males, Exposing the Myth of “Youth Violence” in San Francisco Attorney, April-May 2000

[xliii] Christian Science Monitor, 6/2/97

[xliv] See Richard Lacayo, "Teen Crime, " Time, July 21, 1997, p. 28; see also Jeffrey Fagan, “Separating the Men from the Boys: The Comparative Advantage of Juvenile Versus Criminal Court Sanctions on Recidivism Among Adolescent Felony Offenders, ” in A Sourcebook: Serious, Violent, and Chronic Juvenile Offenders, edited by J. Howell, B. Krisberg, J.D. Hawkins, and J. Wilson. (Thousand Oaks, CA: Sage Publications, Inc., 1995); Richard E. Redding, “Examining Legal Issues: Juvenile Offenders in Criminal Court and Adult Prison, ” Corrections Today, April 1999.

[xlv] Ibid.

[xlvi] Mike Males, “Do Adult Crime, Do More Than Adult Time” in Youth Today, April 2003

[xlvii] Ibid.

[xlviii] Ibid.

[xlix] John Irwin, “The Felon” Prentice-Hall, Englewood Cliffs, NJ, 1970., pp 26-29.

[l] California Welfare. & Institutions Code 6600(c).

[li] California Legislative Analyst’s Office, Analysis of Proposition 83, Sex Offenders. Sexually Violent Predators. Punishment, Residence Restrictions and Monitoring. Initiative Statute of 2006. http://www.lao.ca.gov/ballot/2006/83_11_2006.htm

[lii] 538 U. S. Supreme Court Lockyer v. Andrade (2003).

[liii] CBS 60 Minutes II, Three Strikes: Penal Overkill In California? July 9, 2003.

[liv] Jerome H. Skolnick, “Tough Guys,” in The American Prospect, vol. 8, no. 30, (February, 1997): 86-91

[lv] Eric Helland and Alexander Tabarrok Does Three Strikes Deter? A Non-Parametric Estimation, http://mason.gmu.edu/~atabarro/ThreeStrikes.pdf

[lvi] Daniel Macallair, Striking Out: The Failure of California's "Three Strikes and You're Out" Law, Center on Juvenile Criminal Justice. http://www.cjcj.org/pubs/three_strikes/strikingout.html

[lvii] Scott Ehlers, Vincent Schiraldi, and Eric Lotke, “Racial Divide: An Examination of the Impact of California’s Three Strikes Law
on African-Americans and Latinos” Justice Policy Institute, October 2004.

[lviii] Lauren E. Glaze and Thomas P. Bonczar Probation and Parole in the United States, 2005, Bureau of Justice Statistics, revised 01/18/2007

[lix] California's broken parole system, http://friends.macjournals.com/mattd/californiaparole

[lx] Jeremy Travis and Sarah Lawrence, “California’s Parole Experiment, the Urban Institute, Justice Policy Center, August 2002.

[lxi] Ibid.

[lxii] Matt Deatheridge, http://friends.macjournals.com/mattd/californiaparole

Friday, March 20, 2009

The Politics of Moral Disengagement

Prisoners in our wars of social exclusion: Before the War on Terror and the War on Illegal Immigration, there was the War on Drugs; and before that, the War on Crime; and before that, a Civil War in which one side fought (and still fights) to preserve slavery and racial inequality, and before that, a war against Native Americans. To a greater or lesser degree, all of these wars linger on as a war against prisoners, a generic war against people of color and troublesome threatening others; a war fought by casting people out, demonizing them, referring to them as “monsters,” “animals,” “illegals,” “superpredators,” “niggers,” “dirtbags,” and “scum.”

During the 1980s, we turned our backs on the poor. We stopped enforcing the civil rights laws; we defunded inner-city economic development; we continued to allow banks to red-line minority communities; we cut back welfare, the minimum wage, and the equal opportunity programs of the 1960s. When the residents of the inner-city lapsed into poverty, hopelessness and squalor, we blamed it on them for not taking “personal responsibility.” When young inner-city entrepreneurs turned to the drug trade as the only economic opportunity available, we demonized them for having become “criminals”; we castigated the whole community for its “moral bankruptcy”; we increased the penalties in order to keep the “contagion” of drugs from spreading. And then we started sending men off to prison by the tens of thousands.



We built prisons like no society has ever done before, and overfilled them—in California, to double their designed capacity. We gave up any pretense of rehabilitation in favor of punishment, based on hazy assumptions about deterrence—i.e., that if you could only alienate, exclude, antagonize, rape and stigmatize people enough, somehow the horror of it all would terrorize people into being better, more socially upright, more law-abiding citizens. We returned tens of thousands of beaten-down, emotionally traumatized and socially dysfunctional men to their communities without any preparation, education, economic prospects, or social capital of any kind. And then, when the resources of those communities became stressed beyond the tipping point and they imploded in disorder, we militarized the police and sent them in—ostensibly to crack down on the gangs that had grown up around a drug trade that our own prohibitionist policies had made so irresistibly profitable—but also, to reinforce the processes of social sorting and surveillance that make inner-city ghettos so inescapable. The police behaved—and still behave—like an occupying army. That is to say, they treat ghetto residents like a conquered people—invading their homes on a number of legal and quasi-legal pretexts; traumatizing them with shock and awe tactics; humiliating them with disrespectful treatment; intimidating them with their heavily armed presence; taking reprisals against any show of resistance; snatching breadwinners from their families on the flimsiest of parole violation technicalities, and generally creating ever deeper chaos and dysfunction in their wake.

After generations of economic disinvestment and political disenfranchisement, the nation’s slums had become collecting places for a persistent, if not permanent, underclass composed of impoverished people of color, illegal aliens, welfare recipients, the homeless, the alcoholic, the mentally ill, derelict street people, and a criminal subculture that sustained itself primarily through the drug trade—people who were vilified and demonized in the press for having offended the meritocratic sensibilities of the surrounding society by having become a burden upon it. Thus, crime came to be seen in terms of the personal “immorality” of individuals. In other words, if the inner-city youth unemployment rate ranged from 28.6 to 43.4 percent, it was not because of any politics of exclusion, or any disinvestment in economic opportunity by the surrounding society, it was simply assumed that they were lazy and irresponsible didn’t want to work badly enough. If the streets were filled with panhandlers and people living in cardboard boxes, it had nothing to do with closing of mental hospitals, the inadequacy of veteran’s services, or cutbacks in the social safety net, it was the people themselves who were at fault. Politicians pandered to these sentiments by circulating entirely fabricated stories about welfare queens, crack babies, and “invasions” of illegals and “superpredators.” These infuriated the suburban middle class, and garnered their support for a zero-tolerance “law and order” response. Confining the underclass to the ghetto came to be seen as a means of containing violent crime and the “moral contagion” it purportedly represented by ordering the landscape in ways that aimed at segregating risk and segregating the population according to risk.

Invidious social sorting: The warehouse prison has become a logical extension of this politics of exclusion. Mass incarceration is based on the assumption that crime is caused by a relatively small number of “bad apples,” and that if they can be gotten rid of, society will improve. The ghetto provides the first “rough sort” by removing society’s undesirables and concentrating them all in one place. Then the “worst of the worst” of the ghetto are sent to prison, where the “worst” of those are sent to Ad Seg, a prison within the prison, and the “worst” of those are sent to the supermax. And since we believe that these “bad apples” are intrinsically bad, we see no point in trying to rehabilitate them; so the aim of the prison is to eliminate them at the least possible cost. Fortunately, as a society we have not slipped so far that we are actually willing to kill people as a matter of official policy, but, as we shall see, we are quite willing to subject them to conditions and treatment that amount to torture, so that they have to be watched constantly in order to keep them from taking their own lives.

The law, which is supposed to be formally equal and apply to everyone equally, assists in this sorting by defining crime in terms of spatial associations. For example, outside the ghetto people deal drugs in private to people they know rather well. Inside slum communities, where living space and relationships are more tenuous, people tend to deal drugs on the street to people they know only casually, if at all. Crack cocaine, which is a very short-acting drug, tends to require frequent repurchase, generally by anonymous users in a hurry, at odd times of the day and night. It therefore becomes the most visible manifestation “crime” in the inner city, and thus becomes a convenient explanation for all the poverty and squalor in the ghetto. In other words, demon crack cocaine, like demon rum before it, was seen as the cause, not the effect, of the slum’s poverty. Blaming dope for people’s lack of “personal responsibility,” and then blaming lack of personal responsibility for the condition of the slums became a convenient narrative which allowed the larger community to deny any responsibility for having intensified the poverty and demoralization of the slum through its discriminatory practices, policies and abandonment of the slums. Thus, penalizing crack cocaine 100 times more than other forms of the drug became a way for the larger community to strap on the breastplate of righteousness and undertake a moral crusade against what saw as the source of all evil in the ghetto. And thus the law, in its majestic equality, forbids rich and poor alike from buying and selling crack in the ghetto.

Likewise, in the suburbs no one feels the necessity to carry a gun for personal protection, or travel on foot in groups, because everyone feels secure in their own car and very well protected by the police. None of those things apply in a slum neighborhood. People who travel in groups suffer an extreme liability under the law if a prosecutor can convince a middle class jury that the group is a “gang.” If one member of the group commits a crime, all can be charged and found guilty. If one member of the group has access to a gun, even if it is a block away, all can be charged with having committed a felony while armed, in addition to the gang enhancement. Any drug crime committed within 1,000 feet of a school zone or park (as most places within the inner city just happen to be) can add substantial prison time to even the most minor possession charge. These enhancement penalties are so severe that they virtually guarantee that the accused will accept a plea bargain rather than risk taking his case to trial.

In addition, there are special laws that apply only to people who have been through the system once before. For example, it is a crime for felons to own or carry a gun. A parole officer can legally sentence someone to up to a year in prison on his own authority if he so much as suspects that the parolee is in violation of some technical condition of his parole, and there is little the parolee can do about it. Anyone on parole or probation can be searched at will. The police can enter their home without a warrant and search everyone there. If anyone is found in possession of drugs or a weapon (which can be interpreted to be a screwdriver, a steak knife or a wrench) everyone on parole can be “violated” and sent back to prison. So, not only do the inner-city poor enjoy fewer protections under the law, they are subject to a higher degree of surveillance by law enforcement, welfare agencies, child protective services, school authorities and immigration authorities, all of whom are primed to respond with full force and zero tolerance toward the slightest “misbehavior.” Furthermore, millions of people in America cannot vote, receive food stamps, welfare payments, student loans, return to homes in public housing, or reunite with their children because legislatures have determined to add new sanctions to their felony convictions. As such, ghettos come to be collecting places for disenfranchised people under varying kinds of legal disability amounting to a kind of second-class citizenship. Here, the technologies of power are arrayed against them to ensure that everything possible is done to protect people like “us” from people like “them.”


Demonizing the abandoned: In this respect, our preference for incarceration as the punishment of first resort, our policy of mass incarceration, and the institution of the warehouse prison all flow from the same overarching logic and ideology that justifies the concentration of social “undesirables” in inner-city ghettos—an ideology which justifies the enforced deprivation of those who are to be excluded as fundamentally different, dangerous, and “other.”

They are labeled and regarded as “immoral,” “evil-doers,” “lazy,” “shiftless,” “untrustworthy,” “parasites,” “violent,” “psychopaths,” “the worst of the worst” and otherwise “not like us.” This perception of essential difference comes to organize the mindset of those charged with ghettoizing or imprisoning them in ways that allow the compassion and empathy that we would normally extend to persons who are held in degrading conditions; who are in crisis or in need; who are in anguish or desperation; to be suspended, so that their pain not only does not register, but becomes something that they have earned, asked for, or otherwise deserve. Indeed, the greater and longer-lasting these abuses, the greater the need and the tendency to rationalize their mistreatment.

This is the essence of moral disengagement. When we indulge in the universal impulse to degrade, we morally disconnect from those we degrade, and set ourselves adrift from the community of man. When a person is degraded, forced to live in the deprived circumstances afforded prisoners, utterly dependent on the whims of his captors, it becomes virtually impossible for him to initiate behavior, much less present himself as a full human being with anything like the full dignity and personhood of his pre-prison life. There is nothing in the perfunctory and subordinate relationships he has with guards to remind either himself, or those in charge of him, who he really is, or was. Thus, the guards tend to see prisoners as acting in precisely the degraded and dehumanized terms that they expect them to act, confirming their disparaging views, and justifying ever-escalating mistreatment.

In this respect, the ideology of punishment sets up a self-fulfilling prophecy in which demonization of the prisoner forms the basis for rationalizations which allow guards to further degrade and dehumanize them, in a downward spiral of degradation. What’s worse is that these deficits get passed on to the next generation in ways that make it difficult for the children who grow up in these circumstances to imagine a better life, much less organize politically to ensure their communities get better schools and the economic investment necessary to lift themselves out of poverty. In this respect, the warehouse prison becomes a kind of weapon by which the dominant classes for prolong and deepen the subjugation and disenfranchisement of slum residents. This ideology of punishment is itself situated within a larger ideology of apocalyptic struggle and its rhetoric of war—the War of Good against Evil. This is a longing for a renewed and purified world in which Good will finally triumph over Evil, and the human agents of Evil will either be physically annihilated or otherwise disposed of; that the elect will thereafter live as a collectivity, in unanimous agreement and without conflict on a transformed and purified earth. This is the same ideology that nourished the butchers who led the Inquisition and the Crusades; the Conquistadores who swept through the New World; the Puritans who believed that God had had called them to cast out Satan and remove the Native Americans in a campaign of Manifest Destiny; the exterminations perpetrated by the Nazis; the torturers in the clandestine prisons of Argentina during the Dirty War; and the Serbian thugs with heavy machine guns and wraparound sunglasses who stood over the bodies of Muslims they had slain in Bosnia.

The ecstatic belief in the cleansing power of apocalyptic violence does not recognize the right of the victims to self-preservation or self-defense. It does not admit them into a moral universe where they have a criminal’s right to be punished and rehabilitated. They are seen instead through this poisonous lens as pollutants, viruses, mutations that must be eradicated to halt further infection and degeneration within society and usher in utopia. This sacred violence - whether it arises from the Bible, Serbian nationalism, the dream of a classless society, or the goal of a world where all “subhumans” are eradicated - allows its perpetrators and henchmen to avoid moral responsibility for their crimes. The brutality they carry out is sanctified, an expression of not human volition but divine wrath. The victims, in a final irony, are considered responsible for their suffering and destruction. They are to blame because, in the eyes of the dominionists, they have defied God. –Chris Hedges in “American Fascists.”

Once we come to see the prisoner as an enemy, as an object to be manipulated, undermined, destroyed, then we have crossed an ethical line from which there is no return. To consider how far our moral universe has been degraded, how much we have gotten used to, and how far we have fallen, consider the all the words that have recently come into our lexicon over the past several years, words that have been redefined in bizarre ways and now emerge in seemingly serious discussions about ethical behavior. Words and phrases like: evil doers; axis of evil; extraordinary rendition and “torture by proxy”; black sites, ghost planes, ghost flights, and ghost detainees; “torture lite,” “waterboarding,” “monstering’” and “Gitmo-izing.” And then consider our lost capacity to feel outrage, our collective silence about the practice of torture, and our timidity and reluctance about bringing the perpetrators of these outrages to justice. Consider also, our extreme willingness to look the other way as opportunistic media and politicians vilify and demonize our fellow Americans, let loose the rhetoric of war, and pack people off to prison on drug charges and other trumped up crimes, degrade and dehumanize them, and then blame them for having “asked for it.”

When prison guards come to fear and manage “the enemy” as prisoners under their control, they rarely consider the moral compromises they engage in when they rationalize the abuse and degradation of their fellow human beings. Power is addictive; and absolute power absolutely addicting. That is to say, it tends to become an end unto itself, and at the grievous expense of other people. In prisons, the guards f have near total control over prison routines, the conditions of confinement, and literally every aspect of a prisoner’s existence. It is they who manage—or mismanage—the situation. It is they who dispense the carrots and the stick. So, when they come to see the prisoners as enemies and therefore undeserving of any positive reward, they come to rely almost entirely on brute force and punishment as their primary levers of control. They alienate and antagonize; they traumatize and provoke; and when the prisoner “misbehaves,” they punish and degrade him further, and tell him it’s his fault.

This is the core dynamic of a prison and if left unchecked, its polarizing tendency becomes more and more extreme and abusive. In these polarized, antagonistic environments, you are either on one side of this power dynamic or the other. Environments plagued by this kind of polarization allow extreme and pervasive abusive patterns of behavior develop, normalize, and rigidify into a culture of harm. These kinds of malignant institutions are created when those who inhabit them come to believe that ordinary rules, norms, and standards of decency do not—and should not—apply because of the urgency of the situation. A war on crime, a war on drugs, a war on gangs, a war on terror; allow one to jettison the laws, rules and norms governing what is legal, proper, and decent, leaving one free to create one’s own. It is in this respect that the harsh and punitive cultures of prisons become inherently morally disengaging environments. They are places where we have allowed some of the least educated, least introspective, and least compassionate people in our society to create alternative moral universes to their own authoritarian tastes—essentially, cultures of impunity, free of the ethical norms of the larger society, with no accountability to those norms. We have allowed prison guards to form cultures toxic masculinity in which they favor the exclusive use of punishment in order to cultivate self-images of insensitive, destructive, swaggering alpha-male dominance, while avoiding positive reinforcement, helpfulness, and other forms of constructive of influence as a despised “softness.”

With the election of Barack Obama, the closing of Guantanamo, the ending of torture abroad, the ending of extraordinary rendition and secret prisons around the world, we have taken the first step back from the long road of moral compromise. In order to make it back to a respectable decency, we have to reexamine the moral compromises we have made—and continue to make—in our prisons at home. We have to face the ideology of punishment wherever it appears, and undo the inhumanity, the degradation and institutionalized torture being conducted in our names. The suspension of the “ordinary rules of decency” could not have succeeded without the mechanisms of outside monitoring—the press, lawyers, human rights organizations and religious organization being denied access to the institution. As long as the reality that is created inside prisons is immune from critical evaluation, challenge, and debate, and exempted from normal forms accountability, there is no way to correct the destructive norms that have been created inside.

America the punitive: We Americans seem convinced that we are the most civilized country on earth, and the one most solicitous of individual rights. We speak openly of our moral leadership in the world; we proudly offer ourselves as a beacon of democracy and progress; and yet seem completely unaware and unashamed that we have become an international pariah that other countries view with astonishment, horror and disgust.


. Prisoners per 100,000 population, March 2008

Why? Since the mid-1970s, we have become, by far, the most punitive society on earth. We have 6% of the world’s population, but over 26% of the world’s prisoners—more than China, more than Russia, more than South Africa, more than all of Europe combined. We imprison and punish the mentally ill; in fact there are three times more mentally ill people in prison than in mental hospitals; 56 percent of state prisoners and nearly two-thirds of inmates in local jails reported mental health problems within the past year, under conditions that compound their problems. Up until 2002, we executed the mentally retarded. We are the only country in the world that sentences children as young as 13 years old to life in prison without the possibility of parole. We share the dubious distinction with Iran, Nigeria, Saudi Arabia, and the Democratic Republic of the Congo of being the only societies in the world who sentence children to death, and we actually execute more children than all of these other countries combined. In several states, DUI-related vehicular homicides are now being charged as murder even though there is no intent to commit murder. We imprison people for petty property crimes—in California and other 3-strikes states for life. The federal mandatory minimum for a second conviction for possession of crack cocaine is more severe than most states’ penalties for second degree murder. We subject prisoners to such an inadequate standard of medical care that, in California, one inmate dies every six days because of it; a similar number commit suicide, and many more are injured in assaults and riots to overcrowding.

The notorious physical and sexual humiliations revealed in 2004 at Abu Ghraib are not out of place in American prisons. In fact, they were exported by one Charles Granier, who had been a prison guard, at SCI Greene, a notoriously brutal, racist and corrupt stateside prison, has since gone back to work there . Sen. Diane Feinstein has remarked that conditions are better in Guantanamo Bay than in many U.S. prisons, where overcrowding and deliberate attempts to turn them into living “hell holes” have brought down the condemnation of the U.N. and 140 U.S-based human rights organizations. And, as if that were not bad enough, the U.S. is in forefront of new punishment technologies and techniques—tent prisons, boot camps, waterboarding, and high tech supermax prisons where people are kept in windowless Spartan cells around the clock, deprived of any human contact or interaction. We are infamous abusers of human rights in the eyes of the world. And yet, there are many who insist that we are still not punitive enough.

In 1970, there were 196,429 state and federal prisoners in the entire United States, a number that was sufficient to house all of the convicted of murderers, rapists, bank robbers, arsonists, and perpetrators of all the other things we traditionally consider crimes. Between 1970 and 2008, the US population has increased 50 percent to 300 million people, but we now incarcerate over 2.3 million people in the United States—an 11.7-fold increase. In addition, there are 700,000 people on parole and 4 million on probation—7 million people, 1 in 43, or 2.3% of the entire population lives under the watchful eye of the criminal justice system. This is not because there are twelve times more murderers, rapists, bank robbers, and arsonists, etc. than there were in 1970. About 80 percent of this increase is due to our creation of a whole new category of non-violent crimes created by the War on Drugs, which also provides a convenient pretext for sweeping the local streets of the homeless, the mentally ill and other “undesirables.” We have lengthened sentences for existing crimes, sometimes by creatively combining them into new ones. For example, legislators pandering to white suburbanite’s fears about inner city blacks combined the existing crimes of car theft and kidnapping to create the new crime of “carjacking” with a satisfyingly draconian penalty.

We now send people to prison for DUI’s, domestic violence, graffiti, making angry “terrorist” threats, and for trivial things like carrying a fixed blade knife 2¼” long in one’s pocket—things we used to punish with minor jail time, fines, or community service if we punished them at all. We now also punish people for crimes they might commit in the future by drastically increasing the penalty for a second or third strike, or by involuntarily committing sex offenders who have already served their sentences to maximum security mental hospitals for a course of coerced “treatment” that does not—and cannot—work. In California, about half of the people in prison at any given time are parole violators, 70 percent of whom have violated technical conditions of their parole. These are things like failing to keep an appointment, turning in a dirty pee test, having beer cans in their trash, failing to provide a phone number, or being found with a cell phone after being told they couldn’t have one—things that may or may not have anything to do with the individual’s pattern of offending, but which are not crimes in any case. It is now commonplace for prisoners in California to serve more time in prison on technical parole violations than on their actual sentences. And since parole is an extension of the prison system, the California Department of Corrections is able to keeps its prisons overcrowded on its own authority, without having to bother with the constitutional protections inherent in a trial, a jury, or even a plea bargain. All that is required is for a CDC parole officer to say “you’re violated” and away the parolee goes for up to a year at a time.

Mass Incarceration Does Not Reduce Crime

The apologists for mass incarceration argue that prisons are necessary to deter crime. Or, failing deterrence, the sequestering of “criminals” in prison renders them unable to perpetrate crimes against the general public. There is a superficial plausibility to this logic. After all, if people are in prison they aren’t out and about menacing the public. But, if the “criminals” in question are mainly alcoholics, pot smokers or people who violated some technical condition of their parole, then prisons really don’t protect the public from much anything. Even a short stay in prison is a major life disruption. In addition, it marks a person as a social outcast and damages his chances of employment for the rest of his life. Long periods of incarceration tend to induce “prisionization,” or the erosion of a person’s ability to live outside a highly structured institution. Many prisoners suffer from post traumatic stress disorder; or they become demoralized and depressed, unable to trust, or they become so emotionally volatile that they are difficult to employ. So, in this respect, the use of incarceration to punish nonviolent offenses is not only massive overkill and disproportionate to the crime, it is counter-productive.

It is also horrifically expensive. In California, over half of the prisoners are nonviolent. In fiscal 2007-08, it cost $9.8 billion to incarcerate 171,000 prisoners, or $57,173 each to provide them with a third-world standard of living. California’s fiscal crisis is so dire that both the University of California and the State College system have already had to cut back enrollments 10 percent for the 2008-2009 school year. In addition, the Governor has asked that rest of state government close down for two days each month, in effect, sticking public employees with the cost of a bloated and mismanaged prison system.

Experts have studied the deterrent and incapacitation effects of incarceration and have found that they have only a small downward effect on the crime rate, and that this is confined to nonviolent rather than violent crimes. A 1993 report by the National Academy of Sciences commissioned by the DOJ under Reagan noted that the average prison time per violent offense tripled between 1975 and 1989, without any appreciable effect on the level of violent crime. William Spelman reviewed several of the leading studies on the relationship between crime and incarceration in the U.S. and concluded that only about one quarter of the drop in violent crime over the previous twenty-five years could be attributed to the prison buildup. Crime, particularly violent crime, is very much age-related, which is why Steffensmeier and Harer found that virtually all the reported decreases in the Uniform Crime Reports and the National Crime Victimization Survey Index crime rates during the early 1980s could be attributed to the aging of a large cohort of teens and young adults out of their most crime-prone years.

Comparative studies find no correlation between incarceration rates and crime rates. For example, Japan, India, Turkey, and Greece have crime rates that are five to eighty times lower than the U.S., and rates of imprisonment nine to twenty four times lower. In the U.S. we incarcerate 715 people per 100,000 population, compared to 145 in Spain, 141 in England, 100 in Italy, 96 in Germany, and 95 in France, and yet our victimization rate is virtually the same.
Michael Jacobson, a former New York City Correction Commissioner, in his 2005 book, Downsizing Prisons: How to Reduce Crime and End Mass Incarceration, presents the case of New York City, which experienced a 64 percent reduction in crime between 1993 and 2003. Much of the early credit for this reduction was given to Giuliani’s new police commissioner, William Bratton, who instituted a statistical program to identify crime hot spots and a targeted “zero-tolerance” policy of suppressing minor crimes by expanding arrests, searches, and the execution of warrants. However, a closer look at the data shows that the decline in the crime rate began two years before these policies were implemented. And, while New York State’s prison population grew by 5% over this period, this was not due to an increase in offenders from New York City. In fact, that number had declined by 42 percent. Nor could the declining crime rate be attributed to more people serving jail time on minor crimes, since the City’s jail population declined by 25 percent from 1993 through 2001.


Likewise, Mike Males, a Senior Research Fellow at the Center on Juvenile and Criminal Justice, reports on the “San Francisco Miracle,” a 52 percent decline in violent crime led by an 85 percent decline in juvenile homicide and gun murder between 1992 and 2000. The decline in San Francisco’s and New York City’s murder rate between 1990 and 1994 were an identical 64 percent, while San Francisco’s decline in violent crime (52%) exceeded New York’s (-49%).

What Does Work

How did they do it? They resisted the national stampede toward “get tough” zero-tolerance vengeance, where suspicious characters are cuffed on the slightest pretext, casual dopers are busted en masse, kids are banished from public, and bad guys are packed off to prison for 25-to-life—a movement stimulated by James Q. Wilson’s famous 1982 article, “Broken Windows.” Wilson’s theory is based on the observation that you can leave a car parked in a dicey neighborhood and it will remain unmolested for some time. But if you break one of its windows, that communicates to casual passersby that nobody really cares about the car, and so very soon the rest of its windows will be broken out, and the car will shortly be stripped of everything of value. This analogy was applied to the breakdown of communities:

“A piece of property is abandoned, weeds grow up, a window is smashed. Adults stop scolding rowdy children; the children, emboldened, become more rowdy. Families move out, unattached adults move in. Teenagers gather in front of the corner store. The merchant asks them to move; they refuse. Fights occur. Litter accumulates. People start drinking in front of the grocery; in time, an inebriate slumps to the sidewalk and is allowed to sleep it off. Pedestrians are approached by panhandlers.” (p. 2)

The streets may be no more dangerous than they were before, but they are perceived as dangerous and so are fearfully avoided. Over time, people withdraw further and further; they avoid “getting involved” until the neighborhood no longer feels like home. The actual underlying causes of abandoned properties are things like foreclosures on subprime mortgages, the red-lining of communities by banks and lenders, official policies of inner-city abandonment, and voters persistently turning down economic redevelopment bonds. But, instead of focusing on these causes (which might entail some expensive social program) politicians find it much easier pander to the public’s fear of crime. Here, the prospect of a confrontation with an obstreperous teenager or a drunken panhandler can be as fear-inducing for defenseless persons as the prospect of meeting an actual robber; indeed, to a defenseless person, the two kinds of confrontation are often indistinguishable. However, blaming the deterioration of neighborhoods on “derelicts” and “troublemakers” confuses cause and effect; it also singles out convenient scapegoats who can be publicly vilified and punished with great emotional fanfare though “get tough” legislation. In so doing, politicians are able to transforming the act of voting from a policy choice into an act of symbolic vigilante vengeance. The police in this context become a kind of public utility, who are called out to restore the illusion of public order by sweeping the streets of “undesirables,” and the prisons become holding pens for the flotsam and jetsam of society.

The reason that cities like San Francisco, New York and Boston were able to achieve such substantial reductions in crime is that by “not sweating the small stuff” they did not waste prison or their other criminal justice resources on symbolic “enemies.” Instead of sending people to prison for simple marijuana possession, trying children as adults, or imposing lengthy three strikes sentences for petty nonviolent crimes, they reserved prison for people who posed a direct and substantial danger to others. Further, by not punishing juvenile “status” offenses (i.e., curfew or truancy), they kept impressionable youths out of institutions that would only alienate them, introduce them to bad company, and ensnare them in a cycle of stigma, failure and criminality. San Francisco’s per capita incarceration rate is now lower than that of any other major urban county in California. The rate of violent crime reported to police declined by 50% in San Francisco from 1992 to 1998, and another 10% from 1998 to 2002, with a further large decline (except for homicide) in 2002. Juvenile homicide arrests fell by 75%, from 1990 through 2002. This achievement is even more impressive given that San Francisco has much larger, more active gangs than Eastern cities, has the highest rate of poverty among black and Hispanic youths in urban California, in a state whose gun death rate is triple that of Eastern states.
Michael Lynch, in his book Big Prisons, Big Dreams, (pp. 74-78) presents an analysis of the rate incarceration in the United States vis a vis crimes known to police between 1925 and 2000. In this series, the rate of imprisonment doubles between 1925 and 1982 (a 57-year period) then doubled again between 1982 and 1993 (an 11-year period). Prior to 1973, higher rates of incarceration are related to lower rates of offending, but this effect disappears after 1973, and only reemerges again somewhere between 1995 and 2000. According to Lynch, this inconsistency suggests that crime either has a “natural cycle,” or that the cycling of crime is related to factors other than incarceration. In either case, the data suggest that increases in punishment do not necessarily lead to reductions in crime. Overall, imprisonment increased 390 percent between 1973 and 2000, while the crimes known to police shrunk by only 1 percent. In other words, if you lock up 1 percent of your entire population—as we do—you can expect a 1 percent reduction in crime.

Emotion-Driven Crime Policy


In nearly every other human endeavor—health, education, transportation, and the environment—we defer to experts who are informed by research thoroughly grounded in reality. But, when it comes to crime and punishment, we abandon ourselves to emotionalism and fantasies of savage vengeance, informed by an ideology of punishment. From the kidnapping of the Lindberg baby to rape and murder of little Polly Klaas, the formula is the same: the news media shatter our complacency and fan our outrage and moral indignation by reporting these crimes in sensational lurid detail. Then, while our lynch mob emotions are still running high, legislators compete with one another to propose ever more draconian punishments. This political theater is wildly popular with the voting public because it allows politicians to appear as if they are “doing something” to restore normalcy, order and control. In reality, however, these gestures amount to little more than emotional manipulation, since no matter how gruesome and severe the proposed penalty is, it simply will not cause the next madman to “think twice” before going off the rails and committing some other crime of opportunity.

Making punishment the centerpiece of crime policy defines the problem of crime in terms of the moral breakdown of the individual, rather than on the systemic causes leading up to it. This is not to say that individuals are not responsible for their crimes, but in holding the individual entirely responsible for his crime we allow ourselves to ignore the social, economic and educational deprivations that systematically sabotage and demoralize a person’s character—such as inadequate mental health care, persistent discrimination, sexual molestation, or the predations experienced by state-raised youth. Blaming and punishing individuals may seem cheaper and more satisfying than addressing their formative circumstances, but as we are now beginning to discover, sending people to prison as the punishment of choice is not only ruinously expensive, it does little to restore the victim, repair the criminal, or otherwise mitigate or prevent crime.

One of the problems with allowing sensational news stories to drive criminal justice policy is that the public develops a seriously distorted picture of crime and criminals. We are fed on such a steady diet of sensationalized murders, and TV crime dramas featuring murder, that when someone mentions the word “crime” people automatically thinks of rape and murder. However, the vast majority of murders are committed by loved ones against their family members in a fit of rage. Most are immediately stricken with remorse and never murder again. Moreover, murder and non-negligent homicides account for less than 0.1% of all arrests; forcible rapes account for only 0.2%; robbery 0.8% and aggravated assault 3.1% of all arrests. In other words, serious violent crime—the protection from which is, presumably, the whole raison d’etre for having prisons—accounts for only 4% of all crimes and criminals. Even total serious property crimes—burglary (2%), larceny (8%), motor vehicle theft (1%) and arson (0.1%)—account for only 11% of the crime picture. By comparison, drug and alcohol offenses account for 49% of all arrests: drugs (13%); alcohol and liquor (18%); DUI’s (10%); liquor laws (4%); and public drunkenness (4%). Prostitution, non-rape sex offenses, offenses against the family, forgery and counterfeiting, weapons, receiving stolen property, curfew/loitering, and runaways each account for about 1% of all crime.

Certainly, we would like to be protected from property crimes, but doing so through incarceration is not particularly cost efficient. For example, the average victim loss for robbery is $1,258 while the cost of incarceration is $113,000, assuming a $22,600 annual cost to incarcerate. The average victim loss for burglary is $1,545, while the cost to incarcerate is $64,000. In California, the cost to incarcerate is anywhere from $47,000 to $65,000 per year, depending on how you calculate it. For a fraction of that cost the state could organize an indemnity scheme funded by restitution fines that would cover people’s losses over and above their own insurance. Nonetheless, we casually lump property and violent offenders together; indeed, we treat each and every pot smoker, alcoholic, parole absconder, shoplifter, hot check writer, and knucklehead with an “attitude” as if he were a brutal and unrepentant murderer who, if not forcibly restrained, would kill, and kill, and kill again.
In other words, we treat the mild sex offender who pats a little girl on the fanny over her clothing in a public video arcade (who would not even know that she had been “victimized” had it not been for her alert older brother) with the same unrestrained vengeance that we fantasize about applying to Richard Allen Davis, the psychopath who brutally murdered Polly Klaas. Davis was also a repeat offender, and was held up as an example of why we need three-strikes laws. Now we have three-strikes in California, but 57% of them are doing life for petty nonviolent crimes like stealing a slice of pizza. Hence, we keep hundreds of thousands of nonviolent offenders behind walls topped with razor wire—at staggering expense—because we assume that all “criminals” are dangerous and utterly lacking in self-control. We also assume that each and every one is a psychopath and, therefore, without conscience—completely and irrevocably beyond the pale of moral redemption. As such, the aim of punishment is no longer an attempt to rehabilitate, correct or deter, but to defeat and crush the person utterly.

The Immoral Equivalents of War

The rhetoric of war: The metaphor of war is of limited utility in framing social problems, since it implies that there is an endpoint of either victory or defeat. Social problems like poverty, drugs, crime and terror tend to be systemic and perennial. That is to say, they tend to be the byproduct of normal social processes, ameliorated or exacerbated by the society’s own policies, and more or less obscured by collective rationalizations and ideologies. Drugs, for example, never used to be a problem until we made them illegal and created a highly profitable trade surrounding it. Prohibitionist policies have also changed consumption patterns from moderate daily social usage to problematic binge usage. The metaphor of war prompts us to target drug addicts and traffickers as the “enemy” in all of this. But no matter how we flail and punish; no matter how many we lock away; it makes no dent in the problem. The targets are merely the scapegoats of our failed drug policy.

As such, the war can never be won, because no matter how many prisoners of war one takes; no matter how barren one scorches the earth; human nature, in its indomitable drive for pleasure and profits, continually replenishes the “enemy.” There can never be a decisive battle and, hence, no final victory because the enemy one posits was never a true enemy to begin with, but a scapegoat—a straw man that one can knock down over and over. A true enemy could negotiate a peace. It could sign an armistice and surrender. But a scapegoat can only be sacrificed over and over until the society comes to its collective senses and address its problems in systemic terms. Thus, metaphors of war tend to trap the national discussion concerning social problems in the false choices of “kill or be killed” violent scenarios. War as a framing metaphor tends to inject worry, fear and hatred into any problem it touches; it tends to divide society against itself, as the dominant part of society uses the political process and the law to spin off an outcast, illegal “enemy” class, becomes polarized in conflict with it, and seeks to annihilate it altogether.

War also implies that the whole society has reached a consensus on its national goals; that the whole society has decided to mobilize and devote all its manpower and resources to an all out effort. This implies that the time for normal politics has ended. There is a closing off of debate; a suspension of discussion; so that any further dissent or criticism of the war effort is seen as treasonous. Power flows to the Executive branch for the sake of efficiency, democracy is curtailed for the sake of unanimity, and individual rights are curtailed in order to insure obedience and discipline. When actual war is declared, it implies that no further communication, negotiation, agreement, or even favorable mention of the enemy is possible. And, therefore, the society’s only option is to seek the enemy’s complete destruction.

The “war on terrorism,” for example, is a war against an idea. It is a war without an end in sight; a war without an exit strategy, with enemies defined not by their aims or ideologies, but by their tactics—a never-ending war, because “terror” can be defined as anything its definers find it expedient to be. The exigencies of war always seem to require extraordinary, even desperate, measures. Hence, the unquestioned and unquestionable rightness of one’s cause tends to lead one to think that no atrocity is too great in service of one’s cause, that might makes right, and the ends justify the means.

Unfortunately, once the metaphor of war slips into common usage, it tends to be taken literally. As talk show hyperbole ratchets the violence of language ever upward, the rhetoric becomes superheated. The sense of menace and danger assume cataclysmic, even apocalyptic proportions, and seems to demand action commensurate with the heightened perception of threat. The enemy becomes a faceless and demonic “other” whose motives are seen as inexplicable, irrational and implacable. After all, what reason could they have for opposing us? Talk of “warzones” and “killing” permeate the discussion until it creates an atmosphere in which people panic and come to believe that they really are in danger of physical, cultural, or spiritual annihilation. And, they begin to shut down political discourse just as if they were in a real war. This, unfortunately, leads to an extremely toxic form of political discourse when those who are caught up in heat of warlike emotion begin to accuse anyone who is not “with them” as guilty of treason. This, of course, is an illegitimate assertion, since we only engaged in a metaphorical war, not an actual war. The society is not of one mind on this subject; dissent and criticism have not been shut down, and the give and take of normal politics still applies.

Accusations of treason nonetheless resonate with people who, in their hatred and panic, have become convinced that we face mortal danger in an actual at war. They come to think that anyone who does not side with them has sided with the “enemy” and should be cast out of the political system. In some times and places—such as South Africa, Nazi Germany or the Soviet Union—this has led to a ban on opposition parties, the expulsion of groups from the democratic process, and even doing away with the democratic process itself. We see the beginnings of this nascent fascism in our own right wing. Pundits like Ann Coulter, Bill O’Reilly Dinesh D’Souza and Pat Buchannan regularly accuse liberals of reflexively “siding with the enemy.” Here, any attempt to break out of the “we have to kill them before they kill us” frame tends to be met with vehement accusations of treason. However, the so-called “liberal reflex” is anything but treasonous; it is simply the impulse toward pragmatism.

Certainly right after the shock and insult of 9/11, much of the nation felt as Ann Coulter did when she called on her fellow Americans to rain down destruction on our attackers:

“We should invade their countries, kill their leaders and convert them to Christianity. We weren’t punctilious about locating and punishing only Hitler and his top officers. We carpet-bombed German cities; we killed civilians. That’s war. And this is war.”

Now this is a reflexive knee-jerk reaction, and one grievously inimical to the national interest. It is only now in sad retrospect that we are able to acknowledge the full cost of our tantrum in Iraq: thousands of American lives lost; $750 billion charged to the national credit card; a diminution of our prestige, influence, and moral authority in the world; a rollback of our fundamental rights; and an unprecedented erosion of our constitutional checks and balances. In addition, we have given tens of thousands of people serious reason to hate us. In a society where blood feuds can last for centuries, we raped, kidnapped, tortured, and killed with such a sense of entitlement and impunity that there is scarcely a family in Iraq that does not have a very personal grievance against us. The atrocities we inflicted on the Iraqi people were far worse than anything that Al Qaeda inflicted on us, and all the more unjust because the Iraqi people were in no way responsible for Al Qaeda’s attack.

It is not “siding with the enemy” to point out that people resort to terrorism not because they are evil, but because they have been shut out of political process and are therefore unable to redress their grievances through normal channels. Indeed, it is the refusal of the powerful to negotiate with the weak that gives rise to terror tactics. Terrorism, in other words, is a tactic adopted only reluctantly after all other tactics have failed. Its goal is not to destroy the larger society, or annihilate its people, but to disrupt daily life in ways that are so costly that the larger society comes to see that it is in its interest to negotiate. So, although much ado is made about “refusing to negotiate with terrorists,” in the end this is exactly what the larger power ends up doing. All the bluster and posturing in the meanwhile are face-saving gestures that will ultimately culminate in a behind the scenes negotiated settlement. In the case of 9/11, the point of contention was the U.S.’s refusal to leave Saudi Arabia after liberating Kuwait (not a hatred of our liberal society and its tolerance of feminism, homosexuality and abortion). Bin Laden demanded that the U.S. remove its troops from “the land of the two holy places.” George W. Bush complied, and we haven’t been attacked since.

It is not “siding with the enemy” to point out what should be obvious to anyone: namely, that it is both morally wrong and counterproductive to kidnap people off the street, spirit them away to secret prisons, hold them without charges, torture them for years on end, and then expect them not to want to strike back at us. Likewise, it is certainly not treason to say “No” to the hysterical lunatics who, think that simply because we have the capability, we have a right to invade whatever country we please, bomb their cities, kill their leaders and attempt to forcibly convert them to Christianity (a double irony there) for no other reason than because we are angry and have decided that someone “has to pay.” In this respect, the metaphor of war not only draws us into actual war; it hijacks the national dialogue about who our enemies are and why. It injects our politics with the most toxic kind of partisanship, where the very impulse to engage in calm, reasonable systemic analysis is regarded as a flaw in the person’s character and denounced as treasonous.

Designer laws: There is a theory of law which holds that while laws may be well or poorly conceived, but they are nonetheless the law and ought to be obeyed. But this is a rather narrow and purist vision of the law. It is assumes that laws, insofar as they are duly enacted by a legally constituted authority, are both moral and just. However, the law, like any other institution, can be corrupted to serve the interests of a privileged few. Elections can be stolen; legislatures can be plied with special interest money; groups in power can nibble away at the equality of the law in ways that advantage themselves and disadvantage their rivals. Whole classes of people can be disenfranchised, set apart in apartheid conditions, and reduced to second-class citizenship when majorities ignore constitutional principles and enact their racism, sexism, or intolerant religious beliefs into law. Moreover, the mistakes of the past cannot always easily be undone, as in the case of our prohibitionist policies toward drugs, which are widely regarded as a failure, even by the people who make their living off of enforcing them. Laws with great symbolic political appeal are often enacted with the tacit understanding that they will never be enforced (like the warnings of dire penalties for copying copyrighted material) because there is simply not enough prisons to hold all the people to whom they apply—unless, of course, the politicians find it expedient to build more prisons.

Some laws are “designer laws.” That is to say, they are enacted primarily for political reasons—i.e., to mobilize the racism or other hatred by the majority toward some targeted out-group in order to drum up votes for a party seeking power. Most of our drug laws, for example, were never really about protecting people from the alleged harmful effects of drugs themselves, so much as to target, demonize, and politically isolate racial groups for their drug-taking "immorality." The first drug laws in the United States were the opium laws, enacted in San Francisco in 1875. By this time the Chinese had already been driven off the goldfields and into the cities by a number of earlier designer laws, such as the “foreign miner’s tax” which imposed a hefty fee (equivalent to about $1,000 per month in today’s dollars), to be paid monthly for the simple privilege of holding the claim. Roving thugs claiming to be tax collectors would repeatedly shake down Chinese claimholders and stab or shoot them if they refused to pay. And since the Chinese (and other non-whites) were also legally barred from testifying against white men in court, whites were able to rob them and run them off their claims with impunity. In 1882, the Chinese were forbidden from entering the country altogether, a law that was only repealed in 1942, when it became expedient to acknowledge China as our ally in our war against the Japanese. William Randolph Hearst circulated lurid stories about how white women had been lured into Chinese opium dens, where they became addicted to drugs and held by bonds of addiction as virtual sex slaves. These stories were untrue, but nonetheless stoked the flames of racism that helped many a state and local politician get elected. Later, the campaign was taken national, riding the crest of a wave of anti-Chinese sentiment, and no small amount of legislative trickery. In the end, the opium laws, aimed at the “immorality” of the Chinese, became little more than a means of extracting graft from San Francisco’s already politically marginalized Chinese population.

In this respect, one cannot always take the law at face value as either moral or just. Currently, we are experiencing a replay of the old designer laws targeting the Chinese in our various immigration “reform” laws targeting undocumented Mexican laborers as “illegal” aliens. Here there is both the superheated rhetoric of war and the targeting of an “immoral” other.
In 1994, the American people were promised that NAFTA would eliminate barriers to commerce and trade in North America. Thereafter, poverty would diminish, joblessness would end, and violent crime would melt away. Violent crime did subside, but it had nothing to do with either NAFTA or the rise of zero tolerance policing, or mass incarceration. What NAFTA did do was immediately throw two million Mexican family farmers into direct competition with subsidized U.S. corn and drove them off their land; allowed Wal-Mart to drive 28,000 businesses out of Mexico; and drove wages down 25% along the Mexican border. It also eliminated vast segments of the manufacturing sector in the United States. Nonetheless, there were still many arduous, low-paying non-union jobs in the nation’s slaughterhouses and sweatshops that native born citizens generally didn’t want to do. Employers were more than happy to hire illegal aliens because an illegal workforce is a compliant workforce. You can put “illegals” on piece work so you don’t have to pay them the minimum wage; you can cheat them out of overtime and they can’t go to the authorities to complain. If there is any talk of unions, the employers simply pick up the phone and have ICE round up and deport the lot. The laws are loosely enforced and the fines are negligible, thanks to the lobbying efforts of companies like Tyson Foods and Wal-Mart.

Even so, a great many Anglos are incensed that so many Hispanics are here “illegally” even though they seem to conveniently forget that California, Arizona, New Mexico, Texas, Nebraska, Colorado, Utah and Nevada were once all part of Mexico until we picked a fight and simply took it from them. Indeed, the basis on which we claim it as “legally” ours is the theory of Manifest Destiny, which holds that the white race is inherently superior, and therefore more entitled to own land than the people who occupy it. Thankfully this is not the racism of World War II-era fascist dictators who attributed the ills of society to the biological mixing of the races, but it is racism nonetheless. The White Supremacist tenor of these “Build a Wall, Deport ‘em All” sentiments is unmistakable in the right-wing rant radio talk show circuits, the resurgent KKK, and the Minutemen movement organized to form armed “citizen border patrols” to do “the job the government refuses to do” to defend America from brown-skinned ‘invaders’.”

Right wing pundits like Pat Buchanan rail on about how the immigration crisis is a rerun of the great barbarian conquest that destroyed Rome—only this time it’s personal—they are intent on reconquering land they were forced to give up 160 years ago. This, of course, is news to the millions of Hispanics who have been living here legally for generations, and who are as hostile to newly arrived immigrants as anyone else (but for different reasons). According to Buchanan, because immigrants have more children than their host-country counterparts, they threaten to bring about the slow “genocide” and cultural extermination of European and American civilization—unless we summon the political will to build the Great Wall to keep them out. Buchanan presents immigration through the most violent and hysterical scenario imaginable: genocide argued as if it were a scientific certainty. They are here to kill us, unless we kill them first.

Of course, undocumented workers are not here to do anything of the sort. Like any other immigrant group, immigrants from Mexico are here to work. It generally takes a generation to learn the language and assimilate, and there are several generations of well assimilated Hispanics in California, Texas, New Mexico and Arizona to prove it. Nonetheless, in any given population there are always those who do regrettable things. There was one incident where an undocumented alien ambushed a border guard and killed him with a rock but, anti-immigrant propaganda to the contrary, this is not a harbinger of hoards of rock-brandishing aliens sneaking across the border intent on killing Americans in their beds. Likewise, there was Alfredo Ramos, a 22-year old Mexican national who killed two white teenagers in a drunken driving accident who became an unwitting poster child for those making hysterical arguments about how we are being overrun with “illegals” intent on coming here and committing crimes. Now there is a problem with drinking and driving in Mexican culture, but it is not a reason to demonize all Mexicans.

There are, after all, Americans citizens who drink and drive and kill Mexicans in Mexico. There are also scores of murders and beatings of undocumented workers, by U.S. citizens in the grip of “kill them before they kill us” thinking. Contrary to scurrilous rumors widely circulated on the Internet, there is no disproportionate tendency for undocumented persons to commit crimes or collect welfare. In fact, undocumented workers are ineligible to receive Social Security, Medicare and other retirement benefits they pay into. American prisons and jails do have more than their fair share of Hispanics, but these are native-born and not illegal aliens. And, although the net economic contribution of undocumented workers is a “contested” issue (like global warming), on balance the net contribution of undocumented workers seems to be positive. In the long view, it can hardly be concluded that immigrants have hurt the American economy, since nearly all of those who now call themselves “Americans” have immigrated here from elsewhere.

Once you peel back the hysteria about immigration being an “invasion” and the emotional red herrings of a few over-generalized crimes, it’s obvious that the real reason people in Mexico pick up and come here is not because they are interested in reconquering lost territory, or to kill us, but to find work—and for that, we have NAFTA partially to thank. As long as there are jobs in the U.S. that citizens refuse to do—and as long as employers are willing to wink at immigration status—foreign workers will continue to seek and find these jobs. One of the reasons these jobs are so undesirable is because they aren’t unionized. If they were unionized, they would pay better wages and health benefits, and have other shop floor protections—and they would be offered to U.S. citizens first, just as unions do now. So, at the root of the problem are companies like Wal-Mart and Tyson, who create the sorts of “undesirable” low-paying jobs that only undocumented workers will do; who lobby Congress for lax enforcement; and who use illegals as buffer against unionization.

However, as long as we remain trapped in a racist “kill them before they kill us” mentality, we lay the entire problem at the feet of undocumented workers. We never get around to having an honest national debate about NAFTA, foreign workers and the trade-offs between unionization and the possibility of having to pay higher prices or having these jobs slip off to China. We should see the racist demonization of undocumented workers for what it is; namely, a wedge issue that sabotages rationality and pragmatism, and pits one group of workers against another in order to divide and rule. Not only does it underscore second-class status of undocumented workers, it increases the very vulnerability that makes them so attractive to corporations like Wal-Mart and Tyson. Demonizing foreign workers as invaders and “enemies” doesn’t really make them go away, it only increases the potential violence that is “on tap” should they “forget their place” and try to organize themselves.

Another problem with using war as a metaphor is that it tends to frame each and every problem in the same simplistic way—namely, as a struggle between “good guys” and “bad guys.” Policy debates about drugs, terror, poverty, race and crime tend to become truncated and blur into a generalized cultural war of “us” against “them.” Crime becomes a proxy for race; drugs become a proxy for crime, and crime becomes a proxy for general anxieties about powerlessness and security. Rather than viewing our problems in systemic terms, we tend to ask “Who are the bad guys?” As a consequence, we tend to become a society of witch hunters, scapegoaters, ethnic cleansers and mass incarcerators. We become more authoritarian and less democratic as a society when we single out and then use the law to impose a kind of second or third-class citizenship. (Poor people, for example, tend to be subject to a second-class form of plea bargain justice. Parolees don’t even get that. They can be sent back to prison by their parole officers, and so enjoy a kind of third-class justice. Enemy combatants under the Patriot Act are afforded even fewer protections, and so receive a kind of fourth-class justice.) We treat drug offenders, who are mainly nonconformists and civil disobedients, with the same severity that we treat kidnappers and murderers. We treat the mentally ill, who often self-medicate with street drugs, the same way. We treat undocumented workers who are only trying to get ahead as if they were trying to destroy the society they are actually trying to serve. And, in the process, we tend to assume away our own bad habits and policy choices.

The Toilet Assumption: According to the sociologist Philip Slater, the “Toilet Assumption” is the seemingly universal belief that “unwanted matter, unwanted difficulties, unwanted complexities will disappear if they are removed from our field of vision… Our approach to social problems is to decrease their visibility; out of sight, out of mind.” Slater went on to observe that “the result of our social efforts has been to remove the underlying problems of our society farther and farther from daily experience and daily consciousness, and hence to decrease, in the mass of the population, the knowledge, skill, resources and motivation necessary to deal with them.” This is the real foundation of racial segregation, the ghetto, and the Indian reservation.

Rather than commit ourselves to an equal opportunity society, with job development, mental health funding, health care and a social safety net, we have made it a virtual crime to be homeless or mentally ill, because commuters and theater-goers are left too despondent at the sight of them. Indeed, after decades of red-lining, inner-city disinvestment, and the rolling back of civil rights law enforcement, we have lost our collective ability to look blacks, Hispanics, Native Americans and immigrants in the eye, since to do so would remind us that we have long since abandoned any pretense of social solidarity; that we never did treat them as full members of society, or allow them to compete on anything like a level playing field. Instead, it is much easier to demonize our society’s “undesirables”, and to flush them away by enacting “designer laws,” such as “three-strikes,” federal mandatory minimums, the anti-immigrant laws, and the 100-fold punishment of crack cocaine over powder.

In this respect, the criminal justice system does far more than get “rid” of criminals. The law and the processes of law have become a means of sifting and sorting society’s “undesirables”—its uneducated and learning disabled; its alcoholics and drug addicts; its nonconformists and its angry disaffected youth; the stubborn, the stupid, the shiftless and the redundant. These are deposited in prisons, which become collecting places not only for the dangerous criminals who rightfully scare us, but for the people we don’t like, people we don’t care about, and the people no one will miss. We lump pot smokers and murderers together as “criminals” and say, “Lock them up and throw away the key!” And, since our objective is to never see them again, we attempt to confine them at the least possible expense. We pack them away until there is no room for rehabilitation. Indeed, we continue crowding them until they start hurting one another, committing suicide, and dying of medical neglect. And then, when they are psychologically damaged beyond imagining, we let 95% of them go and seem genuinely perplexed that they fail. We are like the clueless parents who say, “We don’t know why Johnny misbehaves, we beat him every day.”

The idea that if we could only make prisons ghastly enough, people will somehow “behave” is belied by the fact that there is no such thing as a half-full prison. Prisons are like closet space. The more you have, the more “stuff” you find to put in them until they become absolutely full. In the long history of American prison construction, there has never been a prison that has come online that was not immediately filled upon opening. Not only do we incarcerate 7 times more people on a per capita basis than our European counterparts, our prisons are far, far more punishing. And, yet our crime rates, as measured by our victimization rates, are not noticeably better. If punishments were actually a deterrent, we would not have done away with public hangings, floggings, ear-notchings, brandings, and other forms of mutilation. In other words, if these visible reminders of the law’s vengeance did not deter people, how can shutting people away in places where they are forgotten about make any impression on the mind at all? Like the medieval French oubliette, where people were locked away, forgotten about, and left to starve and go mad, our prisons are not about deterring crime, they are about eliminating people.

Militarization of the police: Since 1996, when President Clinton put 100,000 new law enforcement officers on America’s streets, and converted Cold War military hardware, personnel, know-how and surveillance technology to civilian use in America’s police forces, we have seen an abrupt militarization of the police. The result has been a proliferation of SWAT teams, serving an estimated 40,000 narcotics warrants per year, needlessly subjecting nonviolent drug offenders, bystanders, and wrongly targeted civilians to the terror of having their homes invaded while they’re sleeping, usually by teams of heavily armed paramilitary units dressed not as police officers but as soldiers.

Unlike traditional policing, which is peace keeping and community service oriented, the new militarized police tend to have a much more confrontational brute force approach. It also takes a much more "us" versus "them" and "the ends justifies the means" attitude toward the public. The new policing is all about zero tolerance, rule enforcement for the sake of rule enforcement, massive power, brute force methods, shock and awe, coercion and intimidation and humiliation. Instead of peace keeping through community organization, helpfulness and building relationships with people, the new policing is more like an army of occupation, engaged in an a counterinsurgency over an increasingly hostile population.

As officers trained in preparation for the formation of a regional paramilitary unit in the Midwest and shot at “head-sized jugs of water,” one officer wore a T-shirt emblazoned with an image of a city in flames. Beneath it were the words, “Operation: Ghetto Storm.” The two military reserve officers who conducted the training operation offered Kraska a glimpse into the minds of the civilian police officers they were training. “This shit [the creation of paramilitary units] is going on all over. Why serve an arrest warrant to some crack dealer with a .38?” one told Kraska. “With full armor, the right shit [pointing to a small case that contained a nine-millimeter Glock], and training, you can kick ass and have fun.” The other officer added, “Most of these guys just like to play war; they get a rush out on search-and-destroy missions instead of the bullshit they do regularly.” Another SWAT commander told Kraska, referring to his unit, “When the soldiers ride in, you should see those blacks scatter.”

Such us-versus-them, search-and-destroy sentiment has been on display in a number of incidents in which drug agents have invaded entire streets, city blocks, and even entire towns in drug interdiction efforts, which commonly include no-knock raids. In 1998, more than 90 police officers in San Francisco in full SWAT attire raided 13 apartments in the city’s Martin Luther King–Marcus Garvey housing co-op. Police blew doors off their hinges, deployed flashbang grenades, and, according to residents, slapped, beat, and stepped on the necks of the people inside. Police put gun muzzles against the heads of some occupants. One family’s pet dog was shot in front of its owners, then dragged outside and shot again. Children as young as six were handcuffed, which Police Chief Fred Lau said was to done to prevent them from “running around.” The raid was apparently conducted to scare and intimidate a local gang.
Balko pp.17-18

These displays of overwhelming force introduce needless provocation, escalation and risk of violence to what would otherwise be routine police situations. An additional problem is that these raids are often based on information supplied by confidential informants, and so they often go wrong. Even when they do get the right house, they put children, relatives, neighbors and pets in danger. The prevailing legal standard is that if a police officer reasonably believes his life to be in peril, he is permitted to use deadly force to defend himself. Given the high-stakes, adrenalin-fueled nature of these highly militarized drug raids, that standard allows police to shoot at suspects with virtual impunity, while the citizens roused from their sleep, attempting to defend themselves from a blitz attack, enjoy no such deference (Balko p. 35). Being treated as an enemy combatant, and having one’s property tread upon as if it were part of a battlefield, are damaging in another way: they convey the contempt of the surrounding society, and define the extent of their subjugation as second-class citizens.

These Gestapo tactics also incite hatred and resentment in a manner that is completely alienating. It should not be surprising that members of the community tend to withdraw their cooperation from the police, and regard anyone who cooperates as a collaborator. After assaulting the community’s dignity and violating its trust, the police have no choice but to rely on increasingly heavy-handed, brute force methods to stay in control of the situation, which they tend to define in terms of abject submission. There are limits to which a surly contemptuous police force can abuse the general public; there are considerably fewer constraints on what the police can get away with in slum neighborhoods, but there are no constraints when it comes to incarcerated persons.

The Drug War as Jim Crow

The election of Barak Obama notwithstanding, the American criminal justice is still deeply racist. The effect of this racism is to so deeply offend and degrade people of color that they come to reject the dominant white culture so completely that they behave in ways that confirm our worst stereotypes so that we feel as though they have earned their discrimination. The criminal justice system has been used to target blacks, and it will not simply melt away. It has to be dismantled.

In 1995, there were 990 white male prisoners for every 100,000 white males in the population; for blacks, there were an astonishing 6,838, or 7 times as many. This is not because blacks commit proportionately more crime, but because of well-documented racial disparities at every stage of the criminal justice process—from profiling who is first looked at as a suspect, to who is detained and searched, to who is arrested and then convicted, and the lengths of the sentences they receive. These are all heavily skewed to the disadvantage of blacks and, to a lesser degree, Hispanics. The Bureau of Justice Statistics document s that one in six black men had been incarcerated as of 2001. If current trends continue, one in three black males born today can expect to spend time in prison during his lifetime. In 2007, about 4.6 % of all black males in America were in prison or jail, compared with 1.7% of Hispanic males and 0.7% of white males. Black males are 11.8 times more likely than white males to enter prison for drug offenses.

The hidden history of re-enslavement: Most Americans have heard of Jim Crow, the post-Reconstruction laws aimed at intimidating blacks, but most are unaware of the system of corrupt county sheriffs, all white juries, complicit judges, enabling legislators, and the vast system of convict leasing, chain gangs and plantation prisons that stood behind these laws and used them to re-enslave blacks throughout the Old South. Any black who could not produce a pay stub to prove that he was employed could be arrested for “vagrancy,” hastily tried, hit with outrageous fines, and charged with the costs of their own arrest and imprisonment. With no means to pay these ostensible “debts,” prisoners were sold as forced laborers to coal mines, lumber camps, brickyards, railroads, quarries and farm plantations. Thousands of other African Americans were simply seized, often without leaving behind any court record and compelled into years of involuntary servitude. All of this is well-documented by the Pulitzer Prize winning author, Douglas A. Blackmon, in his book, “Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II.”

Racist drug war propaganda: Jim Crow racism has been an integral part of the War on Drugs from its very inception. Harry Anslinger, the first drug czar, assisted by William Randolph Hearst, who had his own score to settle with Mexicans, promulgated the Reefer Madness campaign in the 1930s. Modern readers look back with bemusement the ridiculously heavy-handed and obviously false propaganda, but in the 1930s, people were naive enough about drugs to actually believe that "Marijuana is an addictive drug which produces in its users insanity, criminality, and death." And that marijuana could cause white women to seek out “satanic” jazz musicians and consort with Negros. In 1934, Anslinger was quoted as saying, “Marihuana influences Negroes to look at white people in the eye, step on white men’s shadows and look at a white woman twice.” Later he remarked that, "Reefer makes darkies think they're as good as white men." and, "...the primary reason to outlaw marijuana is its effect on the degenerate races." The prospect of insolent, drug-crazed, sexually disinhibited black men ravishing white women was just too much to bear. Moreover, it seemed to ring true as people vaguely remembered having heard something similar before, in earlier campaigns that demonized cocaine and heroin by playing up these same fears of drug-crazed, hypersexual black men.

It should be no surprise that after being primed with the image of Willie Horton, the rapist who became a virtual American icon associating “blackness” with sexualized “criminality,” the American public was more than willing to believe the sensationalized news stories about crack babies. As it turned out, there was no such thing as a crack baby. The shivering preemies held up to the glare of media spotlights, and kept alive at horrifying taxpayer expense, were actually victims of a much older, more familiar malady: poverty, malnutrition and inadequate prenatal care. Nonetheless, both parties in Congress stampeded to “do something” to stem the predicted tsunami of drug-damaged children, who would presumably be so impaired that they would lack the intellectual and moral capacity to know right from wrong, and would form a subhuman biological underclass that would become a permanent burden on society. But, instead of addressing the actual underlying problems of poverty—or even addiction—Congress engaged in political theater, competing to show the public how “tough” they were on crime by enacting draconian mandatory minimums for having or selling even small amounts of crack cocaine.

Thinking twice about thinking twice: In the end, they made the penalties for crack cocaine 100 greater than for powdered cocaine, punishing minor users and traffickers almost as heavily as drug kingpins. The rationalizations offered at the time were that the greater addictiveness of crack cocaine necessitated greater penalties in order to make people “think twice” about using it or selling it. But, if you think about this, even for a moment, you can see how patently disingenuous this is. How can increasing penalties, even by a huge amount, deter people from taking a drug that was reputed to be so addictive that just one puff could override a woman’s maternal instinct and cause her to abandon her baby? In other words, how could you plausibly expect people in the throes of the supposedly most addictive drug known to make rational decisions concerning it? Besides, there is a long line of criminological research showing that increasing time served or the severity of punishment does not contribute to general deterrence; the deterrent effect of the criminal justice system is achieved primarily through the certainty of punishment.

Drug experts knew full well that the addictive properties of crack were being grossly exaggerated and that, like every other drug epidemic, it would run its course (just as it has). Policy experts also knew full well that prohibitions and increased penalties had never deterred drug and alcohol use in the past, and there was no reason to assume that they would work in the future. Indeed, they knew from public health experts advising them on the AIDS epidemic, that people in the underclass tend to have a different hierarchy of needs that cause them to process risk differently than middle class people do. People who live in poverty on the margins of society tend to have chaotic, emotionally turbulent lives. They face so many immediately competing risks, that the distant prospects of coming down with AIDS, or of being caught and sentenced to prison for a crime, tend to seem remote and almost academic in any consideration of consequences. Even the chilling prospect of death did not cause them to “think twice” about safer sex practices, it only made the consequences more unconfrontable, and less likely to be thought about. So, in this respect, women in the underclass were judged by the standard of calm and orderly middle class rationality and found morally wanting. Instead of taking pragmatic action to help them, crack addicts were to be held “personally accountable,” and punished for their addictions even though their own government had flooded their neighborhoods with cheap and abundant crack in order to finance Reagan’s illegal and covert war against the Contras. Hence, the War on Drugs was never about drugs or addiction. It was—and is—only about cleansing society by putting black people away.

Drug War racism gone wild: In 1999, in the town of Tulia, Texas, 46 people—15 percent of the town's African-American population—were arrested in a pre-dawn drug raid, paraded in front of TV cameras in their underwear, and charged with selling small amounts of cocaine to Tom Coleman, a corrupt federally-funded undercover agent and card carrying member of the KKK. The prosecutors threatened the defendants with decades in prison if they did not accept plea bargains they were offered. Joe Moore was found guilty at trial and sentenced to 99 years in state prison; William Love was given 434 years. They were alleged to have sold 3.5 grams of cocaine, which normally carries a 20-year penalty, but in Texas, selling drugs within 1,000 feet of a school brings the penalty up to life in prison. In such a small town, there was hardly a place that wasn’t within 1,000 feet of a school. After the next 6 defendants received 12, 20, 20, 25, 40, 45 and 60 year sentences at their trials, all the other defendants rushed to take to take the plea agreements offered, despite their innocence. In total, 38 people were convicted on the uncorroborated and perjured testimony of Coleman. No drugs, no money, and no hard evidence wrong-doing of any kind were ever found. Even after five of the defendants were able to prove their innocence by producing time cards and bank slips showing that they could not have been at the time and places alleged, it still took 4 years for Coleman’s perjuries to unravel and the convictions overturned because of the complicity and stonewalling of the Swisher County prosecutor, and the judge who presided over the case.

Testalying: This was by no means an isolated incident. A 2002 report from the ACLU of Texas found at least 17 scandals involving the same kind of federally-funded task forces, including cases of falsifying government records, witness tampering, fabricating evidence, stealing drugs from evidence lockers, selling drugs to children, large-scale racial profiling, sexual harassment, and other abuses of lawful authority. Cases involving only one or two defendants almost never attract the kind of attention that led to the overturning of the Tulia cases. Prosecutors routinely obtain convictions by intimidating defendants with Tulia-style prosecutorial overcharging, and the police lie under oath so often that they even have a name for it: “testalying.” This not to say that these cops are necessarily corrupt in other ways; they just don't feel that lying under oath is wrong because politicians tell them they are engaged in a "holy war" fighting evil. Then, too, the "enemy" these mostly white cops are testifying against tend to be poor blacks and Latinos.

Second-class justice: The criminal justices system is so overrun with drug cases that even with special drug courts, the courts have virtually abandoned the jury trial system in favor of plea bargaining system in which, in which there is no presumption of innocence and few of the constitutional protections that would otherwise apply. In 1996, there were an estimated 997,970 felony convictions nationally, 91% of which were disposed of by plea bargain; 5% were convicted by a bench trial, and 4% were convicted by a jury trial. As a consequence, the state very seldom has to actually prove its case beyond a reasonable doubt. And even when it does, one national study of 5,760 capital cases between 1973 and 1995 found prejudicial errors due to prosecutorial misconduct so severe as to warrant the reversal of indictments, convictions or sentences in 35% of the cases. In only 2% of these cases did the prosecutor ever receive any kind of discipline, and none were criminally prosecuted. Indeed, several of these misbehaving prosecutors were later elevated to the bench.

As with the old Jim Crow laws, nobody has to meet in a back room somewhere to conspire how the drug laws can be used to the detriment of blacks, Hispanics and poor whites. All that is required is that the police and the prosecutors have a high degree of discretion. Racism, human nature and the ideology of punishment take care of the rest. The term “inner-city” already tends to connote the terms “black” and “ghetto.” The drug laws, insofar as they purport to attack the root cause of this urban blight, only draws a closer association between blackness, urban problems and criminality. For example, the police tend to see drugs as a manifestation of bad character rather than as one of the few remaining avenues of expression capitalist ambition. So, when inner-city residents call the cops to complain about street dealers on their front steps, the cops crack down on the people called to their attention—who tend to be, conspicuously, people of color. Everyone piles on, thinking that they are saving civilization as they know it. Since it is almost impossible to see on a dimly lit street what exactly is changing hands, the police more or less have to resort to throwing suspects up against a wall, frisking them, and lying in court about how they just happened to see the drugs in plain view.

Even the Supreme Court piles on by relaxing the legal standard for searches and seizures from probable cause, to reasonable suspicion, to “articulable suspicion,” and extending this even to passengers in a motor vehicle where the driver is subject to arrest. Prosecutors, being elected public officials, tend to be almost pathologically ambitious people, who view “putting people away” as their Christian duty, their chief job evaluation statistic, and their path to higher office. They certainly have no incentive to question whether the evidence produced by the police was constitutionally obtained, or if rules were bent or testimony suborned. The rhetoric of war infuses them with a sense of high moral purpose, and it certainly must take its toll when, day after day, your job consists of demonizing the defendant so as to make everyone believe that he is despicable scum and lucky to get plea agreement being offered. Here, the incentive to convict at any cost tends to favor playing to the jury’s racism.

The judges have long since stopped wondering why so many people carelessly leave their drugs out in plain view, or why people are so slow getting to the front door that the police have to break it down, or whether the police really are telling the truth. The dull, mind-numbing repetition of case after plea bargained case, being turned out like flapjacks, more or less ensures that even the defense attorneys end up working for the state, pressuring their defendants to take the plea deal so they can move on to the next paying client. Even bail, which is supposed to be a bond that ensures that the defendant shows up for trial, has evolved into a kind of extrajudicial punishment that is prejudicial to the poor. Bail is now set according to a schedule based on the severity of the charged offense, rather than according to factors pertinent to the person’s flight risk. So, to the extent the person is not a flight risk, the routine imposition of bail amounts a hefty fine before anyone has heard even the first word of evidence. Moreover, this fine comes right when the defendant is in most need of his capital in order to secure a defense. To the extent that making bail wipes out the defendant’s funds, he is more or less forced to go with a public defender. In this respect, the state is able to limit the pool of legal talent available to him, in system already seriously stacked against the defense. Thus, people of modest are afforded a kind of second-class justice consisting of a plea bargain assembly line, where everyone except the stunned and horrified defendant is going through the motions like cogs in a machine.

The Normal Punishments of Prison

Civil death and pauperization: When a person goes to prison, he undergoes a “civil death.” That is to say, he is forcibly separated from civil society and deprived of his rights as a citizen. He gives up the right to come and go as he pleases; his right to privacy, to own property, to engage in business; to choose his own food, medical care, and companionship. He gives up the right to vote, and the right to have any say-so in the conditions under which he lives. Quite often, he loses his home, his car, his credit, and everything else he owns because he is prevented from making the necessary payments on them, or is simply because he is unable to move his assets to safety. Even when a person has the wherewithal to designate a representative and empower him with a power of attorney, there is no guarantee that this representative will perform with diligence, or that the companies he deals with will recognize his bona fides. In addition, the costs of bail and legal defense often wipe out the person’s savings, leaving him destitute when he gets out.

Prison guards are taught in their academies that their job is to guard the prisoners not to punish them, since the punishment of civil death is supposed to be enough, anything over and above their judicially imposed sentence is considered improper because it is disproportionate to the crime—and hence, “cruel and unusual”. However, what counts as “cruel and unusual” has gradually been relaxed over time so that now only deliberate cruelty and depraved neglect seem to count. Over the past few decades legislatures have cut back funding for the support and rehabilitation of prisoners, so much so that it is difficult to imagine how it could be cut back anymore. If a prisoner does not have family on the outside to send them money for food, reading material and grooming supplies, they have a very hard time of it indeed. Public sympathy for prisoners is at an all time low because only the most sensational crimes are reported in the press or depicted in television fiction. The public thus comes to believe that prisoners are all dangerous, violent and depraved when, in fact, most are fairly run of the mill nonviolent offenders in on drug charges, technical parole violations, petty theft, or as a consequence of their mental illness. Even though prisons have become increasingly costly to operate, the standard of living afforded to prisoners has drastically declined to a point that it is difficult to imagine that it can be cutback further.

Poverty as punishment: The general public has come to believe that “free” room and board—the proverbial “three hots and a cot”—somehow constitute a decent standard of living. Throw in “free” cable TV and they think that prisoners enjoy such an easy life of leisure that we have to be careful lest we make our prisons and jails too comfortable or the homeless and the very poor will commit crimes in order to freeload off the taxpayer. A few days in jail would quickly disabuse anyone of such a delusion. What the public generally doesn’t appreciate is that even though the prisoner may be provided with three meals a day, a bed, a roof, and one TV for 200 men, but they are in no sense “free.” The prisoner pays with his time, his dignity, his freedom and, where there is medical neglect, his hide.

Most people are unaware of just how much better homeless people have it than people in prison. Contrary to what one might believe, soup kitchens and homeless shelters are the absolute last places that homeless people choose to go to. It is far easier and more dignified to “live off the land.” Once you figure it out, there is no need to steal. Supermarkets and restaurants throw away an incredible amount of perfectly good food. Even thrift stores have dumpsters if you can’t afford their already low prices. In the warmer months, there are all sorts of places to sleep out under the stars. In the colder months, there are all sorts of sheltered out of the way places, right under people’s noses, one quickly learns how to find. Bathing and grooming can be a challenge, but there are public restrooms and it is doable. If one doesn’t qualify for Social Security disability, there is always General Assistance, which is not enough money to live on, but enough for incidentals and small luxuries, like a fast food burger (which you won’t get while incarcerated). If one’s pocket money runs out, one can always panhandle. People are much more generous than you would think, even to the most disheveled derelict.

The idea that prisoners have better medical care than the homeless, or anyone else, is demonstrably false. The homeless and the medically indigent have access to drugstores, free clinics, urgent care centers, county hospitals, emergency rooms, and even private doctors, since they are generally eligible for Medicaid. And if they don’t like the care they get from one provider, they can always go somewhere else. Once on Medicaid, one can find a personal physician or a clinic for follow-up care. Prescriptions are covered and, overall, the standard of care is far better than anything one will find in prison or jail. In prison, there is absolutely no choice; there are no annual physicals, no routine screening for chronic or infectious diseases, no preventive care, no place to buy glasses, insoles, or over the counter medications. If one gets sick or has a medical complaint, one can walk in to any hospital or emergency room and they will be treated.

Unless one has been through the mill personally, it is difficult to imagine the extreme hassle and humiliation involved in becoming a prisoner. First, you are stripped of every reminder of your identity as a free person, starting with your most personal possessions—your money, your pictures of family, your underwear, your pants with pockets, your shoes with arch supports, and your extra pair of glasses. You are then packed cheek to jowl with the surly flotsam of humanity, gotten up at 4:00 AM to be counted, and counted again every 6 hours thereafter, barked at disrespectfully over a PA system 24/7, strip-searched, and ordered about by bored, irritable, boorish guards, who are just itching for someone to offer the even the slightest resistance, so they can try out their new pepper spray, wrist lock, or collapsible baton. The idea that anyone would voluntarily give up their freedom in order to live as a prisoner in a place where Top Ramen noodles is considered a gourmet delicacy, is patently absurd. The poverty of prison life is extreme and intimate. Life is structured in such a way as to remove all choice and volition; there is little to no intellectual stimulation; the companionship ranges from disagreeable to dangerous, and one is constantly mocked, antagonized, randomly punished, and generally abused so that no matter what you are in for, you come to see your punishment as excessive and unjust. No one, no matter how poor or crazy, thinks of prison or jail as a “step up” from homelessness. Ask anyone.

In California prisons you don’t get “three hots.” Lunch consists of a dry baloney sandwich, an apple, a small bag of pretzels or a stale cookie, and an artificially sweetened packet of Kool-Aid, day in, day out, day after day, relieved only on Friday, when inmates get a 2 oz. packet of peanut butter which can be up to 10 years past its due date, half an ounce of generic jelly, and another sour green apple. Dinner may consist of as little as single steamed quarter-pound, textured meat/soy “burger,” a serving of unsalted beans, Jell-O and Kool-Aid. The serving portions are calculated to just barely satisfy the caloric intake requirements of an average-sized man; so larger than average sized men, and men with more active metabolisms, tend to be chronically hungry and tense, and either constantly pressuring other inmates for food, or else engaged in some sort of “hustle” in order to get things to trade for food. One of the first things an inmate learns how to do is smuggle food which, except for fruit, is considered contraband if it’s not immediately consumed in the 15 to 20 minutes allowed. Many inmates are overweight, but this is not from being well-fed; it’s from a combination of stress, starchy diet and lack of exercise. No one expects good food in prison, and so no one complains as long as the food isn’t deliberately made unpalatable, which it often is.

The water is often foul-tasting and polluted. In many places, it runs distinctly grey or brown from the tap. Washing a white tee shirt in it only turns it a darker shade of grey. In cells, there are no tables or chairs, which can make it quite a challenge to read or write a letter. The mattresses are thin, lumpy, and absolutely filthy. The bunks consist of quarter-inch slabs of steel bolted to the wall, and there are no ladders so you have to be able to jump up 5 feet in order to get into the top bunk, and medical orders limiting people to lower bunks are hard to come by and not always respected. In dorms, the bunks can be stacked three high, so that persons on the lower two bunks cannot sit upright. There are only enough tables and chairs for about 10% of the people, and these are divvied up by race. There are generally only about 8 to 10 working toilets with seats on them for every 100 men, and they are never clean because of the sheer volume of use.

There is no air-conditioning in places where the temperature routinely climbs into the 100s. If one of the previous occupants has broken out the windows of their cell to get relief from the summer heat, you may be expected to make do the following winter with the one thin blanket you are issued. It can take up to 4 months to get from the county jail to a prison mainline. In the meanwhile, you must use a rolled up towel for a pillow. Things like Q-tips, nail clippers, razors, shaving cream, haircuts, and dish or laundry soap are very difficult to come by. Everything is unbelievably filthy. There are no screens to keep out flies and mosquitoes. There is no such thing as Kleenex, a toilet with a door on it, or a shower with adjustable hot water, or even reliably hot water. The payphones cost $3 for the first minute and $1 for each minute thereafter, and are so unreliable that only one in seven calls goes through. And your calls can be terminated at will if the person listening doesn’t like what you are saying.

Contrary to popular belief, prisoners do not lay about watching television all day, least of all on a big-screen TV. Everyone has to “program”; that is to say, they either have to work or study or they lose their good time credits. Prisoners have to earn both the money and the privilege to buy their own clear-plastic 13” TVs and headphones, which is no small feat when you consider that most inmates earn only 19 cents an hour and 55% of that is taken away for restitution and for $5 “co-pays” if you have a medical complaint. If there is a working communal TV, it is almost always under the control of the blacks, who tend to get rather upset if the channel is turned to anything but COPS and sports. In such close quarters, there is constant racial tension; so one must be constantly hyper-vigilant in order not to be caught unawares by an outbreak of violence. Indeed, speaking of outbreaks, if one person gets a lung infection, everyone gets it. Diarrhea and diarrhea epidemics are common, as are skin diseases. Even though prisoners are supposed to receive health care as a matter of right, the actual standard of medical care ranges from inadequate to downright dangerous if, for no other reason, than because only the least competent doctors tend to work in prisons. In this respect, the enforced poverty of prison goes far beyond “civil death” as a punishment.

To say that prisoners have it easy or are being “coddled” is so far from the truth that anyone who mindlessly repeats such a thing, and so perpetuates the falsehood, deserves to go to prison himself.

Blaming prisoners for mass incarceration. There are still those who think that prisoners do not deserve even this third-world standard of deprivation. They want prisoners to suffer—not so much to appease the offender’s victim (since the vast majority of prisoners have no victims) as for themselves, whom they see as victims for having to pay for the prisoner’s upkeep. In fact, they so resentful the idea of prisoners having any amenity or benefit that they openly advocate that prisoners be starved, medically neglected, enslaved, worked to death, or taken out back and shot. Unfortunately, prison guards and other staff carry these attitudes with them back into the prison, where there is absolutely nothing to prevent them from abusing prisoners except their own self-restraint and that of their fellow officers. Indeed, this is how abuses are introduced into the disciplinarian culture of the institution.

One remarkable rationalization, supplied by the ideology of punishment and repeated with alacrity by punishers, is that the prisoner has caused his own punishment. After all, nobody forced him to commit his crime, and he wouldn’t be there if he weren’t at fault in some way. Now, when it comes to traditional crimes that have victims, there is a certain logical truth to this. But, in a great many other cases, it is the society’s choice to criminalize a behavior and to punish it with prison that is the actual cause of the punishment. For example, millions of people smoke pot without causing themselves to go to prison. Indeed, there is nothing inherently criminal about smoking pot. Rather, it’s the government’s policy of persecuting pot smokers, and its differential application of that policy to the poor, that causes so many people to go to prison. In the case of technical parole violators, the parole officer is judge and jury; and he can send someone back to prison for falling asleep in the living room in front of the TV with a steak knife in his baked potato (because the parole officer considers him “armed”). In California, over half of the people in prison in 2007 were there on such offences. Likewise over half of those serving time under the three-strikes laws are there for minor nonviolent offences. In these cases, the prisoner may be responsible for stealing a slice of pizza, but he is not responsible for the draconian excess of the law, or for the actions of an ambitious prosecutor who turned his “wobbler” of a petty crime into a third strike. Making the prisoner responsible for his punishment allows the punisher to justify any level of punishment for even the slightest infraction, or for simply “not having it together.”

Punishment Creates Its Own Management Style

"The more corrupt the state the more numerous the laws." The ideology of punishment rationalizes and justifies the disciplinarian culture of the prison. That ideology holds that prisoners have come to prison because they have chosen to disobey the rules that society has laid down for them. This assumes that the rules laid down are reasonable and fair, and that those who disobey them are somehow morally perverse. This also assumes that conformity and obedience are the natural human condition, and that the purpose of prison is to impose society’s rules on those who rebel. As a consequence, every aspect of prison life is subject to minute and detailed regulation, such that whatever is not compulsory is forbidden. This, of course, is a totalitarian view of society and social adjustment, not a democratic one. Thus, when prisons undertake to re-socialize individuals, they tend to turn out citizens better fitted for living in a totalitarian society than for a free and democratic society. In other words, they strive to reduce prisoners to docile automatons, rather than educated and empowered citizens.

Hence, one means to the end of a disciplinarian institutional culture is the proliferation of rules and regulations. Not only is every aspect of prison life circumscribed by minutely detailed official rules and regulations from the outset, there are additional layers upon layers of obsolete and contradictory orders, guidelines and directives. For example, California’s Title 15 says that inmates in the highest privilege group can use the telephone anytime they wish, subject only to the availability of the phones. However some sergeant or lieutenant will decide to institute a sign-up list requiring inmates to sign up for one 15-minute time slot 24 hours in advance. If you miss the 20-minute window for the sign-up sheet, or the phones happen not to be working, or the called party is not at home, it can take days, even weeks of pointless hassle just to complete a call. Thus, the proliferation of local rules becomes a backdoor way of denying inmates privileges granted to them by law by making it such a hassle that it isn’t worth the bother.

It also provides a pretext for finding inmates “in violation” no matter what they do. For example, when the officer who instituted the telephone sign-up sheet goes off duty or stops enforcing her rule, the system reverts back to a walk-up basis—until she sees someone she doesn’t like using the phone, and then she pounces. Anything that an inmate has over and above the standard issue can be considered contraband. In general, the guards tend not to enforce such rules unless there is a shortage because it gives the inmates something of value that the guards can take away if the inmate acts up. Most jobs in prison pay between 9 and 45 cents an hour, so every job tends to have some little tangible perk. Food service workers, for example, are allowed to help themselves to the leftovers (which will otherwise be thrown away); laundry workers are allowed their pick of the clean laundry; clerks are allowed to write letters on their computers at work; porters have access to cleaning supplies. All of this is considered “honest graft” insofar as the guards not only know about it but actively encourage it, so as give the prisoners something that they value which the guards can take away from them if they misbehave. In the disciplinarian culture of the prison, the “stick” is the only officially sanctioned tool of discipline. Even when privileges and incentives are officially allowed, they are so circumscribed with hassle factors that they are effectively denied. The only reliable “carrots” in this situation are those dispensed as “a favor” to those who are “good.”

This is actually the backbone of the guard’s control over the prisoner, since negative sanctions are only good at stopping behaviors, but only so long as it is applied. To get people to do what you want them to do, you have to reward them. It’s the same with animals. If you were to try to train a lab rat to put a ball through a hoop, you would find that administering an electric shock would only stop it from doing whatever it was doing. If you kept on shocking it, it would become sullen and withdrawn, and would try to get away. Eventually it will become seriously depressed and begin mutilating itself. If, by chance, the rat put the ball through the hoop and you punished it, it wouldn’t repeat the behavior. But, on the other hand, if you reward the rat for playing with the ball, and then reward it for tossing the ball, it will continue to do so, until it tosses the ball in the hoop. Continuing to reward a desired behavior reinforces that behavior, even long after you stop rewarding it.

No one would think of training an animal, much less their own children, using punishment alone. Yet, when it comes to other people’s children, we don’t seem to have any problem with it at all, even though this punishment serves no constructive purpose and is, in fact, quite psychologically destructive. From everything we know of training animals, it isn’t necessary to use punishments at all. Positive reinforcement builds the relationship between the animal and trainer, and keeps the animal engaged. Punishment only drives the animal away, destroying both the engagement and the relationship. In place of punishment, all that is necessary for a trainer to do is “go neutral” and stop paying attention to the animal. The animal soon comes around because it is much more mentally stimulating to be engaged than to be ignored.

Covering for Officer Jackass. In a prison there are so many written rules that no one can learn, much less remember, them all. As a consequence the guards tend to pick a set of rules and enforce just those. Some will be sticklers about taking food out of the mess hall; others will trip out on what you have stored under your bed, others will go crazy if you leave library books on your locker (even though there is no rule against it). On every yard, however, there is at least one alpha male wannabe who disregards his training and begins to look for ways to chew out and discipline inmates if than for no other reason than to keep from being bored. Some are genuine bullies, some are having problems at home, some are mean drunks, some of them actually think that they are the Law, and some can’t tolerate the ambiguity of a positive relationship and so must set everyone at odds in order to know where they stand. They will run their batons along the bars while the inmates are trying to sleep; they will dog inmates or talk to them very disrespectfully, and if the inmate rises to the bait, they will toss their beds and the contents of their lockers on the floor. Or they will go around confiscating inmate’s private property; take back what other officers have let them bring home from work; they will fire the night shift’s favorite clerk; impose group punishments; or they will take someone’s second to last roll of toilet paper during a diarrhea epidemic. They will even punish inmates for engaging in rehabilitative activities, or doing what they have been ordered to do. The other officers are more or less obligated to cover for him, in large part because the officers have to present a united front against the inmates; partly out of professional courtesy; partly out of indifference to the inmate’s suffering; and in large part because it is taboo for one officer to rat out another for lack of professionalism, bad judgment, lack of psychological fitness, or any other reason.

In California, the prisoners have absolutely no recourse. On paper they have an Inmate Appeals process, but any complaint against an individual is sent directly to that individual. This only exposes the inmate to reprisals, if not from Officer Jackass, then one of his friends. Complaints alleging reprisals go nowhere. Despite an explicit written zero-tolerance policy to the contrary, a code of silence remains stubbornly in place. Even complaints lodged about the code of silence are ignored at the highest levels of CDCR. The only time that inmate complaints are taken seriously is when they come to the attention of someone in the command structure who has an axe to grind and can use the issue to “get” the officer being complained about. This, however, is a rather hit and miss (mostly miss) affair. In fact, the inmates are so powerless that when they attempt to use the Inmate Appeals process to complain about something like the hot water going out, it is generally perceived as a challenge to the guards and the prison’s management.

In disciplinarian organizations like prisons and jails the function of rules and regulations is not to set broad policy guidelines within which individuals are free to interpret the mission of the organization and exercise discretion and initiative in achieving it. It is to provide a schedule of infractions and sanctions which prescribe when, and to what extent, individuals can be disciplined. If an Inmate Appeal results in a staff member being found at fault, it tends to result in sanctions involving some monetary loss. So, rather than acknowledging problems and fixing them when they come up—or investigating what systemic policies may have led to the particular breakdown (like lack of preventative maintenance)—there is much blaming, fault-finding, and buck-passing, which generally tends to land on the person least able to do anything about it. In this respect, complaints are treated both as an extreme annoyance and as attacks on the guards or personnel named within them. And, as a consequence, fixing things in response to an inmate complaint is considered a sign of “weakness,” and an act of disloyalty against one’s fellow officers. So, if a solution is to be implemented at all, it has to be so much worse than the condition originally complained of so that the inmate comes to regret having complained, and to appreciate the futility of complaining.

The end result is an institution that is completely incapable of repairing itself—a permanent SNAFU of continuing physical, social and institutional breakdown. It’s a vicious cycle: Things break down; an inmate complains. The staff retaliates or makes things worse; now more inmates are upset and are inclined to misbehave. The staff cracks down; mutual hostilities ratchet up. Things keep breaking down, and the cycle repeats. From the inmate’s point of view, this is experienced as inexplicable random punishment. From the prison establishment’s point of view, this is simply part of the ongoing struggle of “us” against “them,” a war that must be won at all costs. What is at stake in this war is not the security of the institution—that is already well secured by all the checkpoints, sallyports and command centers—but the perception of absolute domination of the prisoner, and the inflated sense of manhood it seems to confer.

The Code of Silence is more than a tacit understanding that correctional officers should overlook one another’s misdeeds; it is the price of membership in the tight-knit disciplinarian social world of the prison and its culture of impunity. It is a subscription to the practices, beliefs and rationalizations that allow them to participate in their “us” against “them” war against the inmates. It requires both complicity and participation in abuses of power that range from as little as addressing prisoners disrespectfully; to mocking and insulting inmates; to sabotaging prisoners’ rehabilitation; to arbitrarily denying earned privileges; taking or tossing inmates’ property without just cause; to ordering inmates to do things that are injurious to their health; ignoring inmates who are in physical or mental distress; “losing” inmates’ paperwork; putting inmates in harm’s way; setting inmates up; selectively and inconsistently enforcing rules; making false accusations; planting evidence; destroying exculpatory evidence.

The Code of Silence also involves a wholesale evasion of accountability. It is not only the falsification and destruction of records, but shoddy record-keeping from the very outset. It is the lack of rigorous audit procedures; the hiring of cronies and incompetents; and the diffusion of responsibility across a Balkanized organization. It is the prohibition of any recording device, camera, or electronic medium that could be used to independently document conditions and situations. It is the exclusion of journalists and the guided-tour handling of court masters and inspectors from other government agencies.

The noncustodial staff are also expected to enlist in the disciplinarian war against the inmates. If doctors, nurses, counselors, educators or chaplains appear too genuinely helpful to inmates, they are quickly told to knock it off, shunted to the sidelines, isolated, ostracized and, if necessary, intimidated. Anyone who is college educated, advocates for, or empowers an inmate is seen as a “liberal,” a “bleeding heart,” “soft” and as trouble for the custodial staff. They are made to feel uncomfortable and eventually driven off. As a consequence, genuinely caring, compassionate and helpful people tend not to last long in prison.

Organizational gridlock. Disciplining inmates isn’t the only—or even the main—attraction for the many control freaks and authoritarian personalities that prisons tend to attract. Anyone who has worked in State service in California and who goes over to CDCR finds a jaw-dropping level of profanity and disrespect that would get them immediately escorted off the premises in any other state agency. Indeed, it begins on day one in the correctional officer’s training academies where, it would seem, they make a special point of demonstrating that a lieutenant is someone who can verbally slap around any sergeant or lower, while a sergeant is someone who do the same to subordinates, and so on. Cutting people off in conversation, making them wait, and other forms of rudeness, are all de rigueur customs and courtesies to establish who is “in charge” in any given situation. Unlike military organizations, where an officer can only give orders to the troops under his immediate command, correctional officers are under no such constraint. This is particularly crazy-making for inmates, who can be given contradictory orders, written up, “rolled up,” or fired from their jobs by any C.O. But it also tends to introduce chaos into the noncustodial departments within the institution.

Every organizational bottleneck and decision point, every functional division, section and link in the command structure tends to be presided over by a local kahuna who jealously guards the prerogatives of his little patch of turf. Nothing moves through his domain without his say-so, whether it is prisoners through a check point, or the paperwork for ordering a hot water regulator valve. If he allows things to flow freely, he is considered a soft touch. So, in order to prove what a big man he is, he more or less has to hold things up until he is properly kowtowed to, flattered, cajoled, bought off with some quid pro quo or he compelled to move by a thunderbolt from above. As a consequence, prisons tend to become Balkanized into a collection of petty fiefdoms, lorded over by local chiefs with huge, easily-bruised egos. Saying “No” allows this “big man” to grow in power and self-importance since only he or his designated underlings can give permission to work around the obstacle he has created.

Anyone who takes any initiative whatsoever and tries to expedite or force things through necessarily encroaches on someone’s turf and either incurs a debt or the undying resentment of whoever’s turf is violated. As a consequence, no one takes the initiative in a prison. In fact, no one lifts a finger unless ordered to do so, since acting without authorization opens one to disciplinary action. Hence, in a prison, one key norm regarding work—and this is true of inmates as well as officers— is to do as little as possible. But the less one does, the more time seems to drag; so what little is done at all is done to escape boredom. (However, one thing that the guards can do that they will not get them in trouble with higher-ups or peers is to get into altercations with prisoners; so some of them will walk among the inmates mocking and haranguing them until they get some pushback. Sometimes this is done in good humor, and relieves the tedium of all concerned; other times it is just plain mean) Ultimately, both the prisoners and the guards come to resent doing any work at all, so they withdraw to their air-conditioned command posts to watch TV, socialize, and do crossword puzzles.

Anyone who comes in to such an organization brimming with good intentions and intent on sweeping change, immediately runs into a host of people defending their turf. To the degree their initiative threatens the fabric of tacit agreements that holds the fief system in place, personalities that would normally be at loggerheads will reflexively unite to stymie anyone who threatens their status quo. Their memos go unanswered; their requests will be sent to the wrong department, where they are placed at the bottom of the queue; computers that have been bought and paid for will sit for months waiting for the IT staff to install the software; and everyone will quietly bide their time and document everything the person does wrong. Everyone knows and usually dislikes the obstructionists. The primary way of getting around them is to cultivate a patron in the chain of command who has influence, at least over his own vassal chiefs. But even the reach of such patrons has its limits. The other way of getting things done is to “get” the obstructionist, either by catching him, frustrating him, or provoking him into saying or doing something he can be disciplined for later. In this way, prisons tend to become chronically gridlocked organizations, beset with bitter interpersonal rivalries and personality politics.

Unfortunately, this personality politics tends to become a preoccupation unto itself, and one that competes with the mission of the organization. It’s like working in a kind of Bizzaro restaurant where the busboys hide forks from the waiters they don’t like; the cooks ignore their recipes and serve up nasty surprises; the waiters pick arguments with their customers, and the maitre ‘d is watching everyone, just waiting for someone to slip up. In other words, when people come to view their role in the organization primarily as one of placating their bosses and avoiding blame, they tend to plod in place and lose any sense of service orientation. In other words they tend to become demoralized. They also tend to feel victimized and aggrieved by the discipline they receive. Those who can leave do; those can’t tend to become bitter and take it out on the prisoners. Not all do. Some guards are Christians or find some other way to come to an accommodation with inmates. In the real world, there are natural checks that prevent service departments from breaking down. Any hotel or restaurant that doesn’t keep its customers happy soon goes out of business, and so it takes proactive steps to remove people who do not advance the enterprise. But in a prison, where people believe that their job is to make their “customers” as miserable as possible, there are no such concerns. Inmate services take a distinct back seat to the “gotcha” interpersonal politics of the custodial staff.

As a result, these service departments tend to be isolated from one another and from upper management; they are strangled by cumbersome procedures, and bedeviled by shortages, poorly managed inmate labor, and high staff turnover. Not surprisingly, the prison’s food turns to slop, the hot water goes out, and the medical care becomes dangerously substandard—not because it saves any money, quite the contrary—but because providing these services to inmates is not seen as important, even though there are obvious security implications. Well-fed, healthy, contented inmates tend to be docile inmates. Conversely, cold, hungry, ill-clothed inmates tend to become irritable and rebellious. One would tend to think that it would be in the correctional officer’s interest to have the prison’s service departments functioning at the highest possible level, but that’s not the way they see it. A calm and placid yard is a boring yard; while an assault-prone, riot-prone yard is not only more interesting, it fosters the public perception that the job of the prison guard is a dangerous one, and worth any pay raise they are asking for. In fact, the guards will deliberately incite riots or let them get out of control for their own amusement, to garner public sympathy. Prisons on lockdown also provide more overtime and hazard pay.

Thus, disciplinarian organizational cultures tend to produce Balkanized and gridlocked institutions; beset and distracted by personality politics; subject to deteriorating conditions, and a reactive, crisis-driven management. It is very difficult for prisoners to lodge a successful complaint about deteriorating prison conditions because the courts consider them part of the “normal incompetence of the institution” and, therefore, not specifically intended to harm the prisoner. Without a showing of specific ill intent by a specific guard toward a specific inmate, the U.S. Supreme Court has ruled, the punishment cannot be considered “cruel and unusual,” even though the punishment the prisoner receives is exactly the same as if it had been intentionally inflicted. Concepts of “depraved indifference” and “action in concert” that apply elsewhere in the law, simply do not apply to prisoners seeking relief from cruel and unusual punishment. And, furthermore, the federal courts have shown both an unwillingness and an inability to force state departments of corrections to follow their own rules.

Demoralization: One would think that having unlimited power over inmates and having to present a united spit-and-polish face toward them would lend itself to a high degree of morale among prison guards but, in fact, prisons tend to be severely demoralized places. A high morale organization is spit-and-polish because it is high morale, not the other way around. High morale is characterized by consistently high levels of efficiency, when tasks are carried out promptly and effectively. Each member is likely to contribute his share, willingly doing what he believes to be worthwhile and assuming that his associates will do their part. Individuals spontaneously chip in and help one another to achieve group goals without even being asked. In contrast, a demoralized or low morale organization is marked by a style of performance that is consistently desultory and sluggish. In addition, it is often marked by constant bickering, factionalism, and reluctant compliance with regulations. In low morale groups, serious doubts arise about the avowed mission and goals of the group, while those who remain conscientious are dismissed cynically as “suckers.” Absenteeism, alcoholism, malingering and turnover become commonplace, and group members may voice a sense of futility and despair. When confronted by adversity such groups are more likely to disintegrate, as each person becomes preoccupied with saving himself.

When faced with similar adverse conditions, however, some low morale groups collapse. Activity becomes disorganized as the participants work at cross purposes. Very little is accomplished. Since each group has a unique style of performance, each flounders in its own way. What is of special interest, however, is that in spite of these differences the symptoms of breakdown are astonishingly similar; they have been observed over and over in diverse historical contexts. Evasion of duty becomes commonplace. As authority deteriorates, local officials are no longer able to enforce regulations. Increasing numbers refuse to obey, even when threatened with punishment. Since disciplinary action against everyone is impractical, many formal norms are simply ignored. … Such disorganized situations are often marked by a sense of frustration, occasional outbursts of hostility and egotistical individualism. Those trapped in them rely increasingly on informal arrangements among themselves. Factionalism becomes pronounced, and further disruptions result from the disunity.

When a group becomes demoralized, not only is efficiency impaired, but in some instances the participants actively engage in obstruction. The men get together among themselves to mount campaigns of resistance and transgression. Inefficiency becomes intentional and organized, as in the deliberate slow-down tactics of sullen factory workers. When authorities try to make corrections, they often encounter open defiance. …

Where differences in class, religion, or ethnic identity have already led to divisive factionalism, animosities may be intensified. Unrestrained by law, some of the disgruntled may band together into gangs that launch campaigns of terror. … Riots may break out.

Embittered members of demoralized units sometimes turn against the organization itself. Their retaliation may take several forms—verbal expressions of indignation, petitions, picketing, demonstrations, sabotage, defection, or outright rebellion. Collective protest consists of more than mere convergence of the spontaneous reactions of outraged individuals. The participants communicate and thereby reinforce one another’s feelings of bitterness; whether they merely jeer in unison or engage in violent reprisals, their reactions involve some measure of organized coordination. … When some official is singled out as being particularly odious, schemes may be contrived for vengeance. … Sabotage is another form of retaliation against the organization. Unexplained damage to equipment and intentionally bungled repair work become commonplace. … Even when men in demoralized units are unable to accomplish anything else, some of them may mobilize at a high level of efficiency for retribution.

The[ ] officers [in charge of such a unit] reacted as many administrators do when confronted by such disorder. They were confused and resentful. They punished the company commander. They scolded the men. They made some precipitous changes. When these remedial measures failed to restore order, they concluded that the men were hopeless. –Tamostu Shibutani “The Derelicts of Company K”

In a nutshell, demoralization occurs when the leadership of an organization consistently behaves in ways that earn the undying hatred of its rank-and-file. This is more than the usual bureaucratic bungling and SNAFUs that plague large institutions, or the occasional entrenched incompetent. This is a management style that consistently betrays the fundamental trust that subordinates reflexively place in their leaders—namely, the good faith belief that one’s leaders are acting with one’s welfare in mind. Hence, when leaders show a pointed indifference to the suffering and inconvenience of their underlings, it strikes at the very core of the leader-follower relationship. Forcing underlings to hurry up and wait while their leader conspicuously dawdles, forcing subordinates to stand outside in the rain when it isn’t necessary, being a stickler for irrelevant details for the sake of meting out discipline, humiliating subordinates in front of their peers just to show everyone who’s “boss,” and otherwise acting like a jerk, all tend to undermine an essential aspect of the leader’s credibility; namely, that the officer in charge is mindful of his subordinate’s welfare and safety and will not needlessly sacrifice them by putting them in harm’s way. Issuing pointless orders; issuing orders that don’t appear to make sense because they lack of explanation; orders that ruin hard work already completed; inconsiderate orders, or even necessary and constructive orders issued disrespectfully, or in ways that denigrate the subordinate’s ability, willingness to contribute, or value as a team member, all further undermine the subordinate’s trust in his leaders. Blatant favoritism, dishonesty, racial discrimination, blaming subordinates for their leader’s mistakes, sexual harassment and other similar abuses of rank, tend call into question the legitimacy of the enterprise itself, and whether one’s role in it actually fulfills some constructive purpose.

Demoralization, in other words, is not simply a matter of organizational atmospherics. It is a symptom of serious mismanagement, as those in charge become powers unto themselves, place their agenda above the mission of the organization, and the organization disintegrates into factions who begin looking out for themselves, building little fiefdoms for self-protection and aggrandizement, and then become consumed by the infighting and personality politics of these turf battles. Any service orientation takes a backseat to one’s personal comfort and convenience, or making hated others look bad. Self-dealing and corruption flourish because no one wants to make trouble for people who have every incentive to retaliate to protect their profitable side deals and perks. Burnout becomes epidemic in demoralized organizations because people can no longer see any connection between what they are doing and any larger social purpose; they become frustrated in their assigned roles; their frustration crushes their idealism; cynicism takes over; and a general presumption of bad-faith supplants good-faith action, so that everyone’s actions and motives are viewed in the worst possible light, making every little issue that comes up seem all the more contentious.

In California, CDCR and CCPOA, the prison guard’s union are openly at loggerheads—not only over the usual labor-management issues of contracts and pay—but for the very control of the Department. Indeed, it is officially conceded that the union has too much control over the Department, and that the union’s “dysfunctional relationship” with the Department impedes both the Legislature’s and the Administration’s ability to address the many issues facing the state’s prison system. There is no doubt that the CCPOA sets the tone for this relationship, which is uniformly and relentlessly adversarial. With a dues base of at least $24 million per year, CCPOA has an enormous war chest. The CCPOA gave Governor Gray Davis $3.4 million and Davis used his connections to ensure that the CCPOA received an immediate pay raise to be followed with five unsustainable annual raises worth over $5 billion at a time when other state agencies were not only not receiving raises but were actually cutting back staff. This fell short of the legal standard for official corruption, but it was nonetheless a significant factor in the public’s decision to recall Davis.

The CCPOA doesn’t stop with generously rewarding its friends; it goes out of its way to punish anyone who opposes them, and not simply punish them, but to make examples of them so that other politicians automatically fall into line when CCPOA lays out its wish list of perks, pay raises and managerial concessions. This threat is substantial since the union can afford to send five and six figure donations to the opposing candidates or dig up unpleasant facts about any candidate who falls out of favor. In 2004, the Assembly refused to change a part of the union's labor contract which allowed the union to hamper the state's investigations into crimes committed by guards, by tipping the guards off with the name of their accuser and other information, such as access to video tapes of incidents before the internal affairs interviews are conducted. This allows time to get rid of evidence, concoct alibis, get stories straight, tamper with witnesses, or threaten the inmates or whistleblowers reporting the wrongdoing. Sen. Gloria Romero, D-Los Angeles, whose bill sought to strengthen investigations into prison corruption, received a death threat from a gang of rogue guards calling themselves “The Green Wall.” Several months later, when the Legislature balked at funding the annual pay raises agreed to by Davis, CCPOA’s Lance Corcoran issued a statement to the press saying, "I don't have complete control over what correctional officers do. I don't know what could happen. When you treat employees badly, they have a tendency to treat you badly in return any way that they can." Obviously, if the CCPOA isn’t the least bit concerned or embarrassed about threatening members of the Legislature publicly, they certainly aren’t going to hold back on threatening or intimidating some voiceless prisoner behind locked doors.

Aside from pay issues, the CCPOA spends a great deal of effort on securing things that allow them to avoid oversight and accountability to their management, elected officials, and the public they represent. One of the managerial concessions they won in 2004 was a loophole that would allow guards to evade psychological testing and background checks when they transferred (as problem guards often do). Another had to do with doing away with having to pass physical fitness tests in order to qualify for substantial monetary bonuses for physical fitness. Another removed the requirement of getting a doctor’s note in order to take sick time. This resulted in a 27% increase in sick time usage, allowing those filling in for those calling in sick to claim overtime, an opening that allows officers to game the system at an annual cost of $200 million per year. As part of another deal the Legislature gave up its right to confirm wardens at state prisons. In the run-up to the 2006 election, Gov. Schwarzenegger had two bills before him. One was a bill that would allow press access to the prisons; the other would have prohibited prisons and jails from blackballing chaplains who reported any wrongdoing that they witness. CCPOA-funded ads hammered the Governor for the state of the prisons (after the CCPOA rejected all of his reform proposals), and then the ads abruptly stopped, the day after he vetoed the two bills. In 2008, when the Governor Schwarzenegger refused to approve the 7% annual automatic pay raises as the state’s budget deficit passed the $17 billion mark on its way to $42 billion, the CCPOA initiated a petition to have him recalled.

This opposition to oversight and accountability goes beyond the kind of tunnel vision that tends to afflict special interest groups in the pursuit of their narrow interests. There is a deep-seated contempt among the CCPOA rank and file not only toward management, whom they see as dishonest, incompetent, insular and self-serving, and prone to favoritism in matters of promotion. From time immemorial, prison guards have embraced a “get tough” big stick approach to managing unruly prisoners. This goes to the core of guard’s self image as a kind of hero who keeps the barbarian rabble in line by meting out force to people who only seem to understand brute force. As a consequence, the guards tend to feel unbridled contempt for “outsiders,” whom they regard as “clueless liberals” because they advocate rehabilitation, positive reinforcement, or a service orientation in which prisoners are treated as clients. These they regard as the “failed policies of the 1960s,” to be resisted at all costs. In the “Masters of the Universe” mindset of the guards, anything less than absolute power over inmates would project weakness, sympathy, solicitude, or worse yet, subservience, and would therefore be perceived as a virtual invitation for prisoners to attack—and to the sense that inmates actually are held in check by brute force and terror, a sudden change of strategy in that direction likely would be. Nonetheless, despite its political power, the CCPOA is under constant pressure from the Administration, the Legislature, the courts, the press, academics, and the general public to “work smarter” to rein in the explosive growth and cost of mass incarceration, bloated and mismanaged prisons, and to reduce recidivism by ensuring that prisoners are at least no worse coming out of prison than going in.

Just as teachers feel they should have a say in education policy, the CCPOA feels it should have a say in criminal justice policy. However, unlike teachers, their recommendations are not grounded in empirical research or the best academic theory. The CCPOA is not concerned with crime prevention, reducing crime through rehabilitation, or scientific approaches to supervision, or reducing recidivism; it is concerned with one thing only—getting “tougher” on crime and criminals—that is to say, locking more people up for longer periods of time, for less and less serious offenses. Unlike education, crime inspires deep visceral emotions that can be exploited politically by presenting them with sensationalized crime stories and then offering them draconian policies that allow them to symbolically express their inspired vengeance. And to translate this clamor for vengeance into an effective political voice, the CCPOA has been the primary financial backer of at least a dozen victims’ rights groups, such as Mothers Against Drunk Driving, and the Crime Victims United of California, and the Crime Victims Action Alliance. Almost single handedly, the CCPOA has transformed victims’ rights and prisoners’ rights into a zero sum game, in which any gain by prisoners is almost reflexively and vociferously denounced as a loss of victims’ rights.

Both directly and through these surrogates, the CCPOA has lobbied hard for longer sentences under harsher conditions. In 1994, it contributed heavily to California’s Proposition 184, enacting a particularly disastrous form of three-strikes, which allows misdemeanors to count as felonies and non-violent offences to count as “strikes.” As a result, over half of the people in California prisons doing 25-to-life under three strikes are doing time for drug possession and relatively minor property crimes—putting a huge strain on the system’s already meager health care delivery system as they age. In 2004, the CCPOA contributed $600,000 to defeat Prop 66, which would have reformed three-strikes by limiting them to serious violent offences. The CCPOA contributed $50,000 to the defeat of California’s hugely popular Prop 36, which now successfully diverts tens of thousands of jail and prison-bound drug offenders to a drug education program much like the program for drunk drivers. It also contributed heavily to the defeat of Prop 5, which would have created individualized treatment and rehabilitation programs for nonviolent drug offenders, treatment in lieu of prison, shortened sentences and parole periods. The CCPOA also gives heavily in local races for District Attorney in order to insure that the most hard-charging prosecutors possible get elected, and also to stave off prosecutions of corrections officers accused of abuse or misconduct. The CCPOA is single-minded in its pursuit of more prisoners. It is opposed to any effort to decriminalize drugs, any oversight of its hair-trigger parole violation practices, any attempt to do away with parole, any attempt to divert people to treatment instead of prison, any attempt to implement prisoner self-betterment programs, or other forms of rehabilitation. In this respect, like other special interest groups, it has a conflict of interest with the general public.

Despite being the richest and most politically powerful special interest group in California, the CCPOA and its members are regarded as pariahs and thugs, in part because of their heavy-handed tactics, and in part because of their opposition to even the most common sense reforms,. The CCPOA has become a political power unto itself and, as such, it believes that it should not have to implement “liberal” policies it doesn’t like, or be accountable to the Legislature to whom they give so much money. When things do not go entirely their own way, they tend to feel betrayed, beleaguered, aggrieved, attacked, and even victimized when the Administration seeks to exercise managerial control over the guard’s “turf.” Despite being the best paid prison guards in the country, their morale is abysmal. And, like any other group that hates its leadership, it quietly sabotages, thwarts and undermines every initiative and program that comes down the pike, every way it can—so much so, that parts of the system have had to be put under federal receivership. They particularly resent any kind of service orientation, and complain bitterly about required to perform the role of prisoner’s caregivers, which they regard as a kind of servitude, even though it is their own “get tough” policies that reduce prisoners to such a state of abject dependence that the guards must do for the prisoners what the prisoners can no longer do for themselves. In protest, they reflexively deny prisoners’ requests. There is a prevalent mindset among prison guards that holds that “If the prisoners are happy, you are not doing your job.” Indeed, any prisoner naïve enough to go to a guard to complain about the hot water going out, or to request some cleaning supplies because their cell is filthy, or to beg an aspirin because they have a headache, they are very likely to be told, “I’m sorry, but you obviously have me confused with someone who gives a fuck.”

The War Against Inmates

Demoralization rolls downhill: If the guards are demoralized by what they perceive as an incompetent and adversarial management, the inmates are incomparably more so. Even though prison guards are in a de facto managerial position vis a vis prisoners, they do not see themselves in any kind of leadership capacity, and so continually violate the managerial norms that people in our society expect leaders to uphold. Leaders generally take a “we’re all in this together, let’s make the best of it” approach when exhorting their followers to give their best for the common good, because people tend to willingly, even eagerly, go the extra mile for things for people they trust and admire and for causes they think are generally worthwhile. In a prison, the guards tend to see their roles as more akin to that of a master in a master-slave relationship. Rather than taking a “we’re all in this together” approach they tend to open with, “I am in charge and I am going to force you to do what I say; moreover, I am going to do this to you against your will.” This, like slavery itself, is a form of humiliation, and it completely and utterly destroys any sense of common purpose, goodwill, or desire to cooperate the prisoners may have had. And, of course, productivity suffers as demoralized and humiliated prisoners seethe with resentment and find creative ways of sabotaging the project at hand and otherwise resisting without getting into more trouble than they can handle.

There are, of course, practical limits to which guards can be high-handed martinets. No prison can run for very long without the cooperation of the prisoners because the inmates do so much of the essential labor in and around the prison. What the inmates don’t do the free staff and the guards have to do, and since the guards consider any task a prisoner would do beneath them, they are generally in no mood to exert themselves in such tasks for any prolonged length of time. Hence, the impulse to be high-handed and autocratic tends to be checked by practical considerations, such as a desire to avoid having to do the “lowly” menial work of prisoners themselves. Also, if prisoners are abused to a point where they don’t see any benefit to setting aside their personal grievances for the duration of the work day, eventually one inmate will assault another, causing an incident that often precipitates a general lockdown. The less incentive prisoners have to preserve the general peace, the more riot-prone the whole situation becomes as prisoners are reduced to bickering and fighting amongst themselves. However, when productivity is of primary concern, officers tend to employ conventional managerial strategies involving empathy and respect. And, to the degree they genuinely respect the prisoner’s dignity, they tend to be rewarded with productivity—not high productivity (this is prison after all), but a relatively smooth level of job performance that everyone can live with.

Unfortunately, in the demoralized institutional culture of the prison, any autocratic dickishness at the top seems to roll down the ranks until it lands on a prisoner. Indeed, the guards will sometimes play a game in which they will taunt prisoners to see how abusive and disrespectful they can be before a prisoner strikes back. Even female guards compete to show off how macho and “tough” they are. On certain low security level yards, especially where there are a high proportion of parole violators and other short-timers being processed through, the prisoners will put up quite a bit of abuse in order not to blow off their parole date. Unfortunately, this sort of thing often takes precedence over getting things done.

For example, I know of one situation where the institution was on lockdown due to an epidemic. The staff had brought about 30 prisoners in from the adjoining ranch to have their pictures retaken. One of the officers decided that they should all stay and help make sandwiches because the normal kitchen crew was ill. But instead of asking them to volunteer, the ranking officer, a lieutenant, began to rudely address the assembled prisoners threatening to send them to the hole “for refusing to program” if they did not “volunteer” for the task. The prisoners, who had just come from jobs where they were used to being treated with a modicum of respect, were disgusted by the lieutenant’s histrionics; this is not the way you ask people for a favor. They exchanged eye-rolling glances to one another but didn’t say anything, since they hadn’t actually been asked anything.

Everyone knew that writing up disciplinary actions on 30 prisoners would be far more work for the guards than making the sandwiches, which they would still have to make. Besides, the prisoners were already following orders, so the charges would never stick, even in the improbable event that there were 30 empty beds in Ad Seg. Many of these inmates worked in jobs where they would be missed, especially since there would be no one to fill in behind them due to the epidemic. The monetary losses could be substantial if cows didn’t get milked and subsequently went dry. As the guards began to ponder the costs of escalating the matter further, the clearer it became that doing so would become a huge debacle. Fortunately, a quick-thinking sergeant asked the inmates politely if they would volunteer, they instantly agreed and made quick work of the task.

However, it could just as easily have gone the other way, as it very frequently does. The lieutenant hadn’t thought things through before he so impetuously put his ego on the line. If one of the inmates had made a smart-alecky remark that would have made the lieutenant look foolish if he backed down, he would very likely have escalated the situation regardless of the cost to the institution or the inconvenience to all concerned. This is one of the reasons why prisons tend to be such dysfunctional organizations. These kinds of arrogant power plays frequently occur and, when they do, they take precedence over the task at hand. They force a showdown in which humiliated prisoners feel compelled to defend their dignity and honor regardless of the cost. And, in so doing, they create unnecessary flashpoints that disrupt the organization at every turn, sometimes escalating into situations that disrupt the entire institution. So, when the guards pit their honor against that of the prisoners’, they choose a win-lose scenario in which they are arrogate pride to themselves at the expense of the prisoners, over a win-win scenario in which everyone walks away with mutual respect. In other words, they tend to see humiliating prisoners as the “tough,” honorable and macho thing to do, and managing prisoners with consideration and respect as “coddling,” solicitous, and “soft.”

Making enemies: It is, of course, difficult to manage people constructively when you view them with utter contempt. This is what happens when you view “criminals” as having forfeited the right to any human compassion, dignity or rights of any kind. The core of this belief is that prisoners deserve no consideration because they are “lawbreakers” who, by virtue of having broken the law, have shown by their actions that they are opposed to society and its core values, and are therefore people of bad character. A necessary assumption of this belief system is that all of society’s laws, even the regulatory ones, mark a boundary between good and evil; that the law is written for the good for the whole society and that it does pursue political agendas, such as racism, party advantage, or the temporary exigencies of “law and order” politicians. For example, it is assumed that the law does not impose unreasonable penalties simply to make politicians look “tough” on crime; nor does it have any ulterior motives, such as disadvantaging certain minorities, or excluding certain classes of “undesirables” from full citizenship. And, once it is assumed that the law is neutral and good, it is further assumed that when people transgress the law, it is because they are fundamentally and essentially evil. Hence when someone offends in a minor way, it is just as bad as if they offend in the worst possible way. Shoplifting is as bad as murder or treason because it is an expression of the same essential evil. No rehabilitation is possible because repentance and forgiveness do not enter into the equation; one little sin and one is as good as eternally damned.

There is an additional complex of assumption about justice; namely, that every criminal has a victim; that this victim cries out for vengeance; and until the criminal is brought down and made low, this victim can never be healed or come to “closure.” Here, the “criminal” is seen as having been arrogant in placing his needs and wants over the rights of his victim. Fitting justice demands that he learn the error of his ways; that he be humbled for his arrogance; that he receive his comeuppance; that he suffer at least what his victim suffers, so that he knows what it feels like to be a victim, so that he will no longer victimize others either out of fear of being victimized himself, or because his ignorance is now corrected and he understands that it is wrong to treat others in a way he would not wish to be treated. Here, the punishers feel that it is their moral duty to punish—to humiliate those who transgress the law.

The problem is that while fitting justice may demand that the arrogant be brought down and humbled, it is quite something else to degrade someone to a sub-human status and hold them there. This is the crux of the matter: when punishment goes beyond chastising and humbling the arrogant, it creates a new victim who feels justifiably aggrieved and genuinely so. This victimization feels especially unjust when it is done extra-judicially, without limits or due process in the name of the law. The sense of injustice surrounding this victimization is compounded when the “criminal” in question has no victim, where his crime is a matter of civil disobedience (as are drug crimes), or where the crime is so petty that it is a stretch to send him to prison in the first place (as the bulk of property crimes are).

As a society, we are extraordinarily ambivalent about what goes on in prison. We have always had prisons so we assume that they must serve some necessary function. We are told that they protect us from bad people, but how can that be if prison only makes them worse. We give prisons the benefit of the doubt, that it is necessary to have bad places, where bad men do bad things to evil men, just so long as we don’t have to know the details. When we hear of some particularly odious sex offender going to prison where he may very well be raped, there is part of us that inwardly gloats. If we thought about it, we wouldn’t feel as comfortable about the same fate being inflicted on someone who shoplifted or was mentally ill. There is a part of us that recoils from overt sadism. Indeed, it is the very essence of our instinct for justice, the same instinct that causes us to want the arrogant be humbled. The problem is that we suspend this consideration when it comes to people we don’t approve of—often people we don’t even know, but have grown up learning to fear and hate—or people we find nuisances, like derelicts, aggressive panhandlers and the mentally ill. In this respect, prisons become the mirrors of our collective hatreds and annoyances—our racism, ethnocentrism and class biases—some of which we are proud of, and others that we can scarcely acknowledge even to ourselves.

Unfortunately, there is no shortage of racists and sadists who find their way into prisons, where they can manipulate the rules and the situation in order to victimize others under the color of law.

There is also the “Lucifer Effect,” the corrupting effect of power itself: Philip Zimbardo, a professor of psychology at Stanford University, set up a famous experiment in which two groups of male volunteers drawn from the University and given psychological tests in order to ensure that they were psychological normal. They were then randomly assigned to one of two groups. One group would play the role of prison guards, the other would be prisoners.

To everyone's astonishment, the two groups quickly came to act like their real-life counterparts. The prisoners became despondent; some broke down. In less than 36 hours, one had to be released because of extreme depression, disorganized thinking, uncontrollable crying and fits of rage. Over the next three days, three more prisoners were let go because they exhibited similar symptoms of anxiety. A fifth prisoner was discharged when he developed a psychosomatic rash over his entire body, an apparent reaction to the rejection of his parole appeal by the mock parole board.

The guards' behavior was even more disturbing. All flexed their power to one degree or another. They made the prisoners obey trivial, often inconsistent rules and forced them to perform tedious, pointless work, such as moving cartons from one closet to another or continuously picking thorns out of blankets… The inmates were made to sing songs or laugh or stop smiling on command; to curse and malign one another publicly; to clean out toilets with their bare hands. They were required to sound off their numbers repeatedly and to do endless push-ups, occasionally with a guard's foot or that of another prisoner on their backs.

The inmates became so engulfed in the situation that, during the mock parole board hearing, a majority of them said they would forfeit the money they were owed in exchange for release. Had they forgotten they were in an experiment in the psychology building at Stanford University, not a real prison, and were owed their daily salary whether they quit or not? Even Zimbardo became myopically trapped in his role as warden. He began worrying more about malingering prisoners and the prevention of prison breaks than about the wave of insanity his experiment had set in motion. When a woman Zimbardo was involved with who had recently received her doctorate and was helping out with the project finally made him realize how far out of hand things had gotten, the study was aborted. It had lasted just six days and nights. –
Robert Levine

The guards began humiliating and psychologically breaking down the inmates simply because they could. “They steadily increased their coercive aggression tactics, humiliation and dehumanization of the prisoners,” Zimbardo recalls. "The staff had to frequently remind the guards to refrain from such tactics," he said, and the worst instances of abuse occurred in the middle of the night when the guards thought the staff was not watching. Moreover, some of the guards were observed to undergo a kind of Jekyll and Hyde transformation as they started their shifts, transforming from “pleasant, charming, funny and smart” to a swaggering sadist talking with a false Southern accent. “It is especially important to hear how the worst of the guards justified his evil as wanting to see how far he could torment them before they stood up for [their] dignity, and rebelled against the brutality of the guards. They did not, and thus they deserved what they got. And suppose they did rebel? Would that have pleased him, and then would he say he was glad to see they had spunk and dignity, and so would no longer torment them? I doubt it; they lose no matter what they do.” Within days, those guarded and those doing the guarding had both ceased to function as normal, morally conscious members of society. The “prisoners” began dissociating and obeying orders with blank stares. They became emotionally volatile and started behaving in ever more antisocial and manipulative ways, thus justifying in the guards’ minds, their own brutal responses. The “guards” gradually shifted from the “functional” and ostensibly purposeful violence of controlling the prisoners to being straightforwardly sadistic. “It’s not that we put bad apples in a good barrel,” Zimbardo explained to reporters in the wake of the Abu Ghraib revelations, “We put good apples in a bad barrel. The barrel corrupts anything that it touches.”

Unfortunately, when things get out of hand in a real prison there is typically no one there with a detached perspective with both the authority and the presence of mind to call a “time out.” Rather, it’s more like The Lord of the Flies, without any adults to arrive in the nick of time. As a consequence, the guards tend to get trapped in a reactive style of management in which they meet every perceived challenge to their authority with crackdowns and punishments. These only serve to denigrate the prisoners further, causing the prisoners to feel justifiably aggrieved and victimized, motivating them to strike back to assert their dignity and avenge their grievances. The result is an asymmetrical vendetta which effectively precludes any return to a proactive “leadership” style of management, in which the correctional officers appeal to prisoners as fellow human beings and try to find common ground and ways where they can make the best of a bad situation.

If prisoners are insubordinate, confrontational, and constantly on the edge of open revolt, it is because they have been mismanaged. It does not matter whether the prisoners are of good or bad character, if you treat anyone arrogantly and unfairly, betray their trust, insult their dignity, taunt them and harass them, they will resist you to their utmost of their ability—especially when they feel as though their backs are against the wall. It is the guards, not the prisoners, who are in control of the institution. It is therefore the guards who choose the managerial style and set the overall tone of the institution. Anyone will become disrespectful if you treat them with disrespect; anyone will become rebellious if you try to subjugate them; anyone will become conning and manipulative if you treat them in bad faith. If you treat people as if they have no legitimate concerns, they have no reason to care about your concerns. If you treat them as if everything they say is a lie, they have no reason to listen to anything you have to say. If you treat them as if they have no honor or self-respect, they have no reason to give you the satisfaction of doing what you want without screwing it up or short-changing you in some way.

On the other hand, when you treat people with respect, they will tend to respect you in return. When you listen to people’s concerns and treat them as if they matter, people will listen to you and respond to your concerns. When you treat people consistently and fairly and allow them to improve their lot, people begin to value their relationship with you, and will go out of their way to keep a good thing going. To the extent that anything works in prison (and little does), it works because there is a meeting of the minds and a confluence of interest between the prisoners and the custodial staff. Hence, mutual respect and the good will and common ground that flow from it form the basis of the correctional officer’s first line of control. When mutual respect is lost, it becomes harder and harder to control the inmates and the situation deteriorates. So, when officers have to resort to punishment and crackdowns, it is because they have previously mismanaged the prisoners and lost their respect. For better or worse, respect cannot be commanded; it has to be earned. And it is earned by consistently acting in good faith. It is furthered and maintained by using the managerial tools of leadership—finding common ground, appealing to people’s better natures and interests held in common, positive reinforcement, fairness, resolution of grievances, negotiation, mutual accommodation, and compromise.

Resistance to professionalization Since the 1970s, most states have tried to professionalize their prison guards. They now call them “correctional officers” and have attempted to inculcate this new management philosophy and its leadership techniques in their academy training. Indeed, best practices prescribe that correctional officers review and pass certifying exams this material on annually. It is also officially codified in their rules, regulations, and department operations manuals. However, the “big stick” theory of management and its medieval philosophy of aggressive coercion is so ingrained in the culture of the prison that this professionalism frequently doesn’t take. In California, for example, Title 15 explicitly states that inmates and correctional officers “shall treat one another with mutual respect.” There is even an Inmate Appeals (grievance) process that is supposed to enable inmates to ensure that the officers do so. There are additional rules that are supposed to protect the inmates from arbitrary discipline, particularly against retaliation if they complain. There is also a provision for limited inmate self-governance. Unfortunately, in California, the Inmate Appeals process and Inmate Advisory Councils have been turned into shams, so the rules that protect inmates are ignored with impunity.

Prison guards who see their role as primarily one of subjugating prisoners find any limitation on their power an anathema. It simply cannot be allowed for a prisoner to get what he wants. Because once prisoners get the idea that they can get results by working within the system, they will use the system to reform the system by holding the guards accountable to their own rules. They will go on to insist that the guards to treat them with professionalism, fairness and respect—and fix all the other things that are broken—the hot water, the medical system, the arbitrary punishment, the lack of rehabilitation, etc., etc. They will become “demanding” and “uppity” about their rights, and the guards will be “forced” to run the prison’s delivery systems the way they are supposed to be run, rather than using the food, the water, the laundry, the medical system, the work incentive program, and even the toilet paper as instruments of punishment. Prisoners have a strong interest in the efficient running of the prison. It could be a fertile common ground for a meeting of the minds and a constructive peace. But it only takes a few guards who prefer conflict to cooperation to derail the whole process. At the first little setback they say, “See, we tried doing it by the book but it didn’t work; they are not human beings like us; the only thing they understand is brute force.” But, of course, they never viewed prisoners with anything but contempt. In the California Department of Corrections and Rehabilitation it isn’t difficult to find signs where guards have cynically crossed out Rehabilitation, or they abbreviate it as CDCr, or when they wish to be really derisive DORC, or the Department of Rehabilitation and Corrections.

The guards tend to slough off their professional training; they disregard the official rules and regulations; they set themselves up as local petty potentates, at odds with their own management and the elected government—all to feed their addictions to power. Like bullies, sadists, slavers and wife-beaters everywhere, they get satisfaction out of degrading others. They have no trouble finding reasons to punish, and they have no end of rationalizations about how “the bitch deserved it.” They also actively set about damaging those they punish; beating them down, humiliating them and holding them down; destroying their ability to act and think for themselves; telling them it’s all their own fault; making them passive and dependent; and using any assertion of their own volition or personhood as a pretext for further punishment. It’s the perfect cover, since nobody seems to care if “criminals” are victimized.

They know what they are doing is wrong, which is why they have a code of silence and have created a wall of secrecy about what goes on in prison. They constantly lobby for laws that exclude the press from prisons; they black-ball and muzzle chaplains; they corrupt and stonewall investigations; they dismantle the inmate grievance and self-governance processes; they routinely retaliate against anyone who complain, file lawsuits, organizes or challenges their power in any way; they interfere with prisoners who try to write about conditions in prison, and so on. Unfortunately, the mistreatment that goes on is not only illegal and immoral, it is counter-productive. It is rehabilitation in reverse. The guards become an ever-present reminder of 1) how the Department of Corrections has become a captive of the prison guard union; 2) how the prison guard union has become the most powerful special interest group in state politics; 3) how it runs the prisons according to its own punitive conservative ideology; 4) how this conservative ideology “just so happens” to involve building not only more prisons but more punitive prisons; 5) how this prison growth just so happens to economically benefit prison guards in terms of job security, promotions and overtime; 6) how this has corrupted lawful authority in America to serve a narrow right-wing political class; 7) how the criminal justice system has become politicized in ways that subjugate whole classes of people based on race, class, national origin and political party; 8) how this “law and order” politics is based on a culture of manipulation and fear; and 9) how, if one is a minority or an outsider, one can come to see the dominant white culture, when it brings all its knowledge and expertise to bear on one’s subjugation, as a malevolent force in the world. These injustices don’t merely destroy a person’s good will; they sicken and disgust to such a profound degree that those who are subject to them lose all interest in contributing to society. They create grievances that harden into grudges, and make enemies where none existed before. And it all begins with a fundamental act of disrespect.

The punishment of prisoners is supposed to have limits. An eye for an eye, for example, is supposed to place a limit on personal and state vengeance. Punishment is supposed to chastise and humble the arrogant, not cripple the person or become a permanent way of life. A year in prison is no trivial punishment. The time taken out of one’s life is significant. Add to that the extreme poverty and privations of prison, the loss of business opportunities and permanently impeded social advancement and the loss is even more considerable. Prison is not supposed to be a blank check for bullies and sadists. It is not supposed to be a long, drawn-out, soul-destroying rape—especially when you consider that the vast bulk of offenders are not dangerous scary people, but rather ordinary people who have committed relatively minor property crimes, drug offenses, are mentally ill, or have violated some technical condition of their parole. Even more serious violent offenders should not be punished without limit. Prison should not dehumanize a person; it should not destroy a person’s health or sanity. It should not degrade a person for years on end, rendering them so dysfunctional and “prisonized” that they become unable to function in conventional society—unable to parent, hold down a job, or get off parole.

Prison guards know full well that it is wrong to humiliate and degrade people; nonetheless, they deliberately damage inmates in order to increase the likelihood that they will recidivate. It is against their training and their rules and regulations. It is against the public interest to make prisoners worse. The golden rule, Kantian ethics, and our American tradition of natural and constitutional rights all demand respect for human dignity and prohibit the subjugation of one human being by another. Therefore, prisoners are within their rights to resist the humiliation, torture and undignified treatment they receive. And, right-wing ideology notwithstanding, the human rights movement—the ethos of the entire modern world—supports them in this.

Cultures of resistance. It’s very difficult for the guards, who are belittled, demeaned and punished in the course of their own discipline, to know how to manage prisoners in constructive ways. There is, of course, their training, but this is no match for Zimbardo’s “Lucifer Effect,” made all the more potent by having years to spiral out of control and become entrenched in the institutional culture. After all, the sort of people who are inclined to become prison guards are typically not very educated people who are inclined to think independently and critically; nor are they people who get the “big picture”; who can look at an organizational mission statement and break it down into major and subsidiary goals, policies, programs, projects, timelines, action plans, orders and guidelines. Rather, they tend to be authoritarian people who expect every situation be governed by some rule which they can learn and follow by rote. To accommodate them, everything in prison has been simplified, routinized, deskilled and turned, as far as possible, into an assembly line process. Consequently, any disruption tends to become a calamity, which is generally met with varying degrees of overreaction, crackdowns and the promulgation of new local rules. Over time, these rare and one-off events create a labyrinthine array of layers upon layers of archaic, obsolete, and often contradictory rules and prohibitions, which persist indefinitely because there is no mechanism for rescinding them, even if there was anybody with a big enough picture, the authority and the motivation to do so. As a consequence, the “rule of law” tends to become a rather arbitrary and one-sided affair, with those in power making “the rules” up as they go along.

In the absence of outside oversight or the self-corrective effect of a working inmate grievance process, prisoners become subject to all sorts of arbitrary discipline: group punishments, random punishments, overboard and undeserved punishments—all of which create an environment in which there is no particular incentive to be “good.” Prisoners are punished no matter what they do. There is no particular reason to “play it safe,” so many decide to “go for the gusto,” do what they like, and let the guards catch them if they can. After all, the only real boundaries are the rules that the guards enforce. When guards engage in selective rule enforcement, inconsistent rule enforcement, group punishment and random punishment, they exercise their authority in bad faith. In such an environment, there is no particular reason for the inmates to respect their authority, unless it is to feign respect in order to build trust that can be exploited or betrayed it later. In this respect, the contingencies of reinforcement (or the selection pressures on behavior) tend to bring out the worst in people—duplicity and guile, manipulativeness, hedonism, opportunism and short-sighted impulsiveness and thuggishness.

When the guards have taken away your last treasured possession, you learn not to become too attached to anything. When you talk to your fellow prisoners and discover that most of them have been to prison many times before—most of them on technical parole violations for things that aren’t even crimes, it becomes very clear how little you actually have to lose. Pretty much the only thing you have left is your dignity and your self-respect, and you become quite determined that they are not going to take that away from you, no matter what. Having given up any hope of a normal life—any rehabilitation or reintegration into conventional society—many prisoners come to see themselves as “convicts.” Instead of collapsing in to a state of depression and demoralization at the prospect, they join the convict culture of resistance, and engage in a collective asymmetrical struggle against their common oppressor. In other words, the prisoners develop their own code of honor—don’t snitch off your fellow convicts; ride your own beef; do your own time; be a man (be brave in the face of overwhelming force and threats); don’t cooperate with the hacks; and a “don’t take shit from anybody” attitude, least of all the totalitarian regime of the prison. If something isn’t nailed down, one is almost obligated to “liberate” it. Malingering, dawdling, circumventing procedures, smuggling and deliberately screwing things up become a hobby, a vocation, an art form, and an occupation. You lose your fear of punishment. And when the guards try to stare you down with their mean piggish eyes, you learn to give them such a look of withering hatred that they forget about taking things out on you and move on to softer prey.

The Nigger Factory. The blacks bump fists and call each other “nigga” in an act of solidarity which symbolizes not only their hatred of the prison and the racist white society that sends them there in such disproportionate numbers, it signals their solidarity in hatred of the whole of white culture—its intellectualism, its etiquette, its reverence for knowledge—indeed, everything it stands for. After the Tuskegee experiment, where the U.S. Public Health Service allowed 399 black men to die of untreated syphilis, many blacks are skeptical of white people and their motives. In prison—where racism is unimaginably blatant and unrestrained—black people’s worst fears about whites are constantly realized. The result is such a profound disgust with white culture that prisonized blacks come to reject any form of intellectualism. This includes such things as turn-taking in conversation; following topics and developing logical arguments; abstract reasoning in general; making distinctions between facts and opinions, or suspicions and evidence; entertaining speculative reasoning and “what-if” scenarios; or anything else that smacks of “book learning.” To show their contempt for white culture blacks in prison deliberately morph the English language in ways to make it sound profoundly “ignorant,” “slovenly” and “black” to white ears. They deliberately drop consonants; they use grammar “incorrectly”; and generally make up their own rapidly changing “slang” words their own private language of “Ebonics.”

In other respects, they act the way whites expect “niggers” to act; only they exaggerate for effect, throwing the stereotypes of their spoiled black identity back in whites’ faces. It becomes a kind of in-group banter, much the same way gay men in the 1950s use “camp” to parody the effeminacy that the surrounding culture expected homosexuals to manifest. However, unlike gay camp and its projections of spoiled masculinity, these projections of “negritude” are not intended to deflate the negative stereotypes by puncturing them with humor. Rather, they are intended to rub white people’s noses in it, as if to say, “I have become your worst nightmare; now you have to live with me and all my angry tribe.” Becoming a nigger and confirming white people’s worst stereotypes of black people, may not be the best way to win white people over in the long run, but the fear and disgust you inspire is empowering in a perverse sort of way. Besides, being sensitive to white people’s fears is the least of your problems when you are black and in prison. And, as for furthering the cause of black people, what has the civil rights movement or the black establishment done for black prisoners lately? Excuse me for saying so, but if the black community wants to do something about angry, hardcore, in-your-face black men emulating their worst racial stereotypes, they need to address the carceral state and the prisons which support this kind of class apartheid. Now that we have a black Attorney General, this is more likely to happen now than in generations.

Whites in prison are only slightly less alienated. Nonetheless, they call one another “wood,” and “peck” have their own shibboleths to express their “white trash” solidarity. For example, in prison it is a mild insult to call someone an “inmate,” since “inmate” connotes someone who accepts the authority of the guards and the prison as legitimate and cooperates with them on that basis. The term “convict” is reserved to refer someone who “knows what time it is” and does not accept the guard’s abuses of power as legitimate, and stands with his fellow convicts in opposition to them. Some whites cultivate their own swastika-splashed scary stereotypes. But, despite all the shaved heads and White Pride tattoos, a surprising number secretly like hip-hop and its angry message rejection of the dominant culture and its police. And for the same reason: they are beginning to understand that they too are an expendable class that can be used as fodder for the prison-industrial-complex and the convenience of “law and order” politicians. It’s the prisons that put the trash in “white trash.”

The presumption of moral unworthiness: Contrary to popular belief, only a minority of convicted felons are strongly and exclusively committed to a criminal career when arrested and sent to prison. John Irwin, in “The Felon,” a sociological study of California prisons in the 1960s, describes how the process of being arrested, tried, and imprisoned inevitably tears a person away from the orderly roles and relationships that sustain his social world, leading to its eventual collapse. During this collapse, the person typically experiences extreme disorientation, remorse and regret, as he struggles to fit the pieces of himself back together in an attempt to restore himself to dignity in his own eyes, and in the eyes of those who matter to him. In California, before a person can be sentenced under the Penal Code, he must be evaluated by a probation officer who is supposed to review the circumstances and motivations surrounding the defendant’s crime; his age, character, education and criminal history; his stability, motivation, capacity for introspection and change; his attitudes toward people, authority; and his prospects for modifying the factors contributing to his offending. In the 1960s, only the most committed criminals were ever sent to prison. The rest were given probation, often in combination with restitution and community service. However, ever since rehabilitation went out of vogue in the mid-1970s, probation officers simply rubber-stamp the prosecutor’s sentencing recommendation. Since 2004, even first time offenders with stable, productive lives and pro-social attitudes are sent to prison on simple drug possession charges.

According to Irwin, there is a similar period of disorientation and remorse when the person firsts gets to prison. In the1960s, these first few weeks would be an intensive period of observation and evaluation during which it would be determined whether the person’s criminality was due to 1) an emotional disturbance or mental health disorder; 2) whether he was basically normal but had fallen in with the wrong crowd; 3) whether he had gotten himself into an untenable situation and “did what he had to do” to get out of it; or 4) whether the person’s criminality was due to an ingrained psychopathic or sociopathic personality, where the person knows the difference between right and wrong, but is either too impulsive or hedonistic to care about and respect the rights of others.

These evaluations are no longer done, because now, everyone is simply assumed to be in category four and, therefore, morally unworthy of redemption and rehabilitation. Here, the prisoner is expected to rebuild his personality and his self-esteem in an institution whose every rule and procedure is based on the assumption that he is immoral, can’t be trusted, and is therefore unworthy of any dignity and respect. In this respect, the culture of resistance that defines convict life is often the only viable compromise for a person struggling to reintegrate themselves into a social world with a modicum of mutual esteem. Ask yourself, how many times would you be able to put up with being hauled off to prison on some parole violation technicality, or how many times would you put up with officious jackbooted goons throwing the contents of your house on the front lawn before you turned against them in implacable hatred?

The destructiveness of random punishment: Random punishment is particularly psychologically destructive. It blurs the connection between specific acts and the punishment which follows. The punishment generalizes to the entire self, which comes to be experienced as bad or unlovable. The punishment is received as a punishment of the self rather than for an act. Children who are shamed and punished in this way grow up to be abusive adults. Punishment shatters one’s relationship with the punisher. In this case, random punishment sets the prisoner fundamentally at odds not only with the actual officers that punish him, and the institution, but with the whole society that the guards and the prison represent. It destroys the prisoner’s sense of being a worthwhile human being; it destroys his sense of connection and engagement with society and its values. Unless the prisoner has unusual internal resources, he comes to see himself not only as an outcast but beyond the pale of redemption. He becomes demoralized; which is to say, he no longer subscribes to the higher purposes and altruistic values of his society. The idea of voting, recycling, or even picking up after himself in consideration of the next guy, only fills him with cynicism and disgust. He loses interest in improving himself; he turns to immediate self-gratification; he stops caring for anyone but himself; he becomes part of the demoralized, disempowered, disenfranchised, outcast culture of the prison; and he begins to think like a convict, and then like a criminal. And, after a while, he actually becomes one.

Unfortunately, this only plays into the guard’s—and the public’s—perceptions of prisoners as “dirt bags,” “niggers,” “animals,” and “scum.” The guards assume that the problem is the defective moral character of the prisoners, when in fact it is the state of war between them—a state of war brought on by undeserved, excessive and random punishment. The guard’s response to any perceived challenge to their authority is to escalate the war further. Here, the formula is, “Find out what the prisoners want and take it away from them.” Make everything, absolutely everything, a point of contention. If an indigent inmate wants to write home, deny him the five postage-paid envelopes that the regulations say he is due. If he is still engaged in legal work on his case, deny him ready access to law books, writing materials, copy machines, or place such onerous restrictions on them that they are effectively denied. Take the cardboard backing off his pads of paper and give him a 4” pencil with no eraser and no sharpener. Find little excuses to take away prisoners books and newspapers. If inmates want to sit quietly and meditate or practice yoga, take their room away from them. Take away their tobacco, their weights and weight rooms, their conjugal visits, their art supplies, and their packages from home. Prevent them from making phone calls and receiving visitors.

Turning the prisoner’s ambitions, dreams and work-ethic against him. If the inmate likes to read or study, take away his books, or put him in a class where he is forced to read something he has no interest in. Confiscate his library books and then bill him for the full cost of the book claiming that he caused it to be lost. If the inmate wants to work, make sure it is at a job that he doesn’t like. Make the task as pointless and unenjoyable as possible; don’t train him and continually find fault with him when he fails to perform up to expectations. Make him feel as though work is a form of punishment which is being imposed on him against his will. If he signs up for an apprenticeship program that has to log, say, 1,700 hours in order for him to get his certificate, make sure that he gets bounced out of his position 40 hours shy of completion. Or tell him you are going to mail him his certificate, but don’t. Deny him the fruits of his labor. Tell him that there is a rule somewhere that makes it impossible to pay him for all the hours he has worked; find reasons not to give him the raises he would automatically be due. Post a huge sign displaying the hundreds of thousands of dollars the enterprise has made off of his labor, so that he feels appropriately exploited when he gets his 25 cent an hour paycheck. Always know just what to say to win a person over, and then say exactly the opposite. Make him want to throw his tools down in disgust. Assign him a task like cleaning the officer’s gym, but tell him he can’t use the equipment even though there is no specific rule against this. Then, leave him unsupervised for hours at a time, and bust him for using the equipment a week before he is supposed to go home and give him an extra month on his sentence. Also, whenever you want to feel especially macho or self-important, bark at him in ways that make him fantasize about stabbing you in the neck. (And then seem genuinely surprised and indignant when he does so.)

It is not the same everywhere, but there has been a gradual movement away from controlling inmates through work incentives, personal interaction and relationships toward a reliance on brute force, steel and technology. As result, hostilities have escalated between prisoners and their captors. The prisons have responded by “hardening” the guards with vests, deadly collapsible metal batons, tasers, restraint chairs, and evermore concentrated forms of pepper spray. The guards come to feel invincible and entitled to use their tasers, cattle prods and chemical weapons not just in the cases of life-threatening confrontation for which they were designed, but to scoot prisoners along, and as punishments for disobedience and, when they are in the mood for it, outright torture. This is not an exaggeration. Amnesty International USA has documented 270 taser-related deaths between 2001 and 2007, and many more non-lethal uses of tasers to discipline and punish prisoners who don’t move quickly enough when ordered, or instead of wrestling prisoners down to gain physical control over them. Likewise, there are many similarly documented cases of using chemical weapons to discipline and torture prisoners. These have not made the guards safer. On the contrary, guards prefer not to walk among the prisoners and interact. Instead, they have withdrawn to their podiums, command posts and watch towers. Their contact with inmates is further limited by reliance on video “eye in the sky” surveillance cameras, and shouting commands at prisoners over the PA system.

“Treated as de facto war zones, prisons, especially the crop of super-maximum-security-institutions—supermaxes—that have opened up since the 1980s, become war zones, with prisoners and staff engaged in a perpetual, albeit unequal, arms race. Treated as enemy combatants, even many initially nonviolent inmates end up getting swept into the culture of brutality. When prisoners don’t come out of their cells after being ordered to do so, or don’t return their food trays, extraction teams gas them and drag them out with overwhelming force. When gangs fight on the prison yards, entire prisons can be locked down for weeks or months at a time, their inmates allowed out of their cells for less than an hour a day. When mentally ill inmates disobey orders or behave in the erratic, bizarre, self-destructive manner typical of people suffering from diseases such as schizophrenia and bipolar disorder, guards frequently respond with beatings, the firing of TASER stun guns or other “nonlethal weapons,” and use four-and five-point restraint devices to hold down these individuals. Often when this happens, prison administrators hold hearings and decide to place the disruptive inmates into secure housing units—prisons-within-prisons where inmates are held for long periods of time in virtual isolation. The conditions inside these buildings have been described by psychiatrist Stuart Grassian as producing a “devastating psychological impact,” somewhat akin to the mental collapse experienced by many prisoners of war when kept in solitary confinement for extended periods of time.” (Sasha Abramsky in “American Furies” pp. xx-xxi.)

The Banality of Torture: For those who think that by ending waterboarding and closing the prison at Guantanamo Bay that we have turned the page on torture, think again. On any given day in America there are 20,000 prisoners undergoing the torture of solitary confinement in the country’s supermax prisons. In addition, there are a similar number of prisoners in Segregated Housing Units (SHU’s) and Administrative Segregation (Ad Seg) and jail cells colloquially referred to as “the hole.” Out of sight, out of mind, the inexorable logic of exclusion fulfills itself, with all of the usual rationalizations: They are the “worst of the worst,” it really “isn’t so bad” because we lay no hand on them and leave no physical mark, and besides, they “wouldn’t be there if they didn’t have it coming.”

The media’s natural tendency is to focus on the most visible and sensational forms of brutality. However, this focus on physical brutality—beatings, gassings, electrical shocks, sleep deprivation, starving, waterboarding—tends to trivialize the far more common, insidious and psychologically destructive forms of torture built into the everyday life of the prisoner. To people who feel the press of schedules and obligations of everyday life, the prospect of being alone with nothing to do may seem like an inconsequential form of punishment, and perhaps even a leisurely respite of peace and quiet. But for those who are forced to endure the reality of solitary confinement, where the mind has nothing to do but operate on itself, words can scarcely express the sense of profound sense of horror and helplessness as lack of stimulation drains the mind of its content, and it begins to lose coherence and collapse in on itself. Time and self become distorted; thoughts run in annoying circles like the repetitive tunes played by old ice cream trucks; hallucinations come unbidden; noises startle and touch off anxious ruminations that magnify one’s phobias; little things become overwhelming. People, who can scarcely sit still for even a few minutes, cannot imagine the extent to which solitary confinement is torture, and this is what makes it a favorite of torturers everywhere.

Torture, or in CIA language “coercive interrogation,” is a set of techniques designed to put prisoners into a state of deep disorientation and shock in order to force them to make concessions against their will. The guiding logic is to create violent ruptures between prisoners and their ability to make sense of the world around them. First, the senses are starved of any input (with hoods, earplugs, shackles, total isolation), then the body is bombarded with overwhelming stimulation (strobe lights, blaring music, beatings, electroshock).

The goal of this “softening up” stage is to provoke a kind of hurricane in the mind: prisoners are so regressed and afraid that they can no longer think rationally or protect their own interests. It is in that state of shock that most prisoners give their interrogators whatever they want—information, confessions, a renunciation of former beliefs. One CIA manual provides a particularly succinct explanation: “There is an interval—which may be extremely brief—of suspended animation, a kind of psychological shock or paralysis. It is caused by a traumatic or sub-traumatic experience which explodes, as it were, the world that is familiar to the subject as well as his image of himself within that world.” –Naomi Klein,
The Shock Doctrine

One might well ask what purpose it serves to reduce a prisoner to a state of gibbering imbecility, shattering his personality and reducing him to a state of childlike helplessness. In an interrogation, there is something that his captors want. The subject can theoretically signal his captors as to when he has had enough by giving the information they seek. But in a supermax or a SHU, there is no comparable moment of surrender, no moment where he can “give up” and cease resistance, after with the torture will cease, because the torturers are not after anything in particular. The practitioners of long-term solitary confinement are not interested in using the principles of reward and punishment to train the prisoner to comply with orders; or even to impress upon them the futility of resistance. They are engaged in the destruction of the very core of the prisoner himself. They seek to destroy not only his dignity and his self-respect, but his ability to resist by destroying his very capacity to engage in volitional action.

In the 19th Century (and among some religious fundamentalists still today) there is something called the strict father model of child rearing, which is in distinct contrast to the nurturant parent model, in which leading pedagogues counseled parents that breaking the will of their child was necessary to the rearing of obedient underlings:

The father has authority to determine the policy that governs the family. He has moral authority and his commands are to be obeyed. He teaches his children right from wrong by setting strict rules for their behavior and by setting a moral example in his own life. He enforces these moral rules by reward and punishment. The father also gains his children’s cooperation by showing love and by appreciating them when they obey the rules. But the children must not be coddled, lest they become spoiled. A spoiled child lacks the appropriate moral values and the moral strength to and discipline to live independently and meet life’s challenges. The mother has day-to-day responsibility for the care of the household, raising the children, and upholding the father’s authority. Love and nurturance are a vital part of family life, but they should never outweigh parental authority, which is an expression of love and nurturance—tough love. As the children mature, the virtues of respect for moral authority, self-reliance, and self-discipline allow them to incorporate their father’s moral values, empowering them to be self-governing and self-legislating. –Lakoff and Johnson, as quoted in Linder

This style of childrearing was deemed appropriate and even necessary to socialize children into hierarchical societies in which they would be expected to accept their place as underlings in the social order, where everyone was to know and accept their subordinate place. It is no longer appropriate in the modern globalized world, where people are expected to regard one another and conduct themselves as equals. But the method didn’t work even as prescribed: The result was a weakening, not a strengthening of the child. Evidence from three areas of psychological research—attachment theory, socialization theory, and family violence studies—shows that the strict father model “…tends to produce children who are dependent on the authority of others, cannot chart their own moral course very well, have less of a conscience, are less respectful of others, and have no greater ability to resist temptations.” Thus the strict father model tends to produce people with authoritarian personalities; that is to say, personalities characterized by rigid, stereotypical thinking, intolerance, superstition, insecurity, excessive conformity, submissiveness to authority, and willing to blindly follow orders, irrespective of their moral content.

And that is when the strict father model is applied as directed. In prison, the prisoner is certainly regressed to a childish state, but there are no rewards, no showing of love or appreciation when the child/prisoner obeys the rules; there is only an absence of punishment. There is no moral example to speak of in the example of the prison guard. Rather, you have a cold, distant and abusive authority figure who punishes impersonally and randomly without consistent distinction between right and wrong. To the extent that this experience succeeds in modifying the personality, it tends to achieve the worst possible result. It tends to produce people who are beaten down, but who in their humiliated fury are consumed with vengeful fantasies, paranoia, or cruelty. They are less empathetic and desensitized to conventional notions of right and wrong. Hence, there is nothing correcting about this kind of punishment; it victimizes the person that greatly increases his potential for victimizing others.

The entire social organization and architecture of the supermax is designed to assert a regime of absolute control over the prisoner. This is accomplished by reducing the prisoner’s life to a series of “choices” in which the prisoner is faced with only two options: comply or get hurt. Thus, when it comes down to a decision to, say, return his meal tray (something he would normally do willingly without a second thought), this now becomes a contested terrain, a battle of wills, a theater of war in the guards’ take up as a campaign of Good against Evil. Should the prisoner disobey, he does not merely fail to comply, he “chooses” to “go to war” with the staff. This precipitates an emergency “situation” which, under the rules and customs of the prison, calls for a heavily armored “cell extraction” team that gases the prisoner through a slot in the door, tasers and beats him into submission, and then adds time to his solitary confinement in order to make him further regret his “decision” to resist.

From the guard’s point of view, this “willingness” to “go to war” despite its obvious futility and the inevitability of dire punishment, can only be explained by the prisoner being in the grip of an inexplicable and incorrigible Evil. Indeed, even the prisoner’s madness—his confusion, his psychotic babble, his head-banging and self-mutilation, and smearing himself with feces, are all interpreted as acts of hostility and resistance—i.e., as “manipulative” attempts to gain to gain concessions from staff by appealing to their sympathy and common decency. And in a sense they are. They prisoner is “resisting” the attempts of his captors to deprive him of his essential humanity, his dignity, his self-respect, his ability to engage in volitional action; he is, quite simply, asserting the last remaining remnant of his will to live. The guards have developed such an array of cognitive distortions that they read even prisoner’s suicide attempts and his desperate appeals for mercy, as acts of “asymmetrical warfare” and, therefore, as further evidence of his essential “evil” and “otherness.”

It should go without saying (but since we have become so morally compromised as a nation I feel compelled to say it anyway) the guard’s “all stick and no carrot” war against the inmates is morally repugnant and shocking; it runs not only contrary to the norms of civilized society but everything we know about managing people, training animals and modifying behavior. It is not merely torture, it is torture without any practical objective and, therefore, without any purpose or limits. To reduce a person to a state of abject and utter dependency; to regress him to a state of childlike helplessness; to compromise his sanity and judgment, and then to punish him for “misbehaving” is so unjust that boggles the mind. But to go even further, to deprive the person of any means of extricating himself from this torture; to deny him any hope of it ending; any means of redress, or even the knowledge that their agonizing screams are being heard—is absolutely unconscionable and wrong. To put someone in a position where the only way they can protest, assert their dignity or their personhood is through a nominal act of “disobedience,” which unleash a sensory hurricane of punishment, made all the more overwhelming by the period of sensory deprivation that precedes it—is so fundamentally inhuman and unjust that calls into question the humanity of those who perpetrate it.

And that is not even the full horror of it. Under normal conditions a person’s sense of self is automatically sustained through the push and pull of social interaction. But in solitary confinement, where there is only a routinized, impersonal environment to interact with, the environment takes on a threatening and hallucinatory quality as one’s thoughts and one’s sense of self lose their normal boundaries. The more autonomy one surrenders by complying, the more difficult it becomes to tell where the self ends and the environment begins. As the boundaries of the self break down, the person’s paranoia, delusions, and hallucinations threaten to overwhelm and engulf his personality.

As Lorna A. Rhodes observes, “Prisoners describe a preoccupation with the pervasive cameras, distorted auditory effects connected to the high noise level, and fantasies of poisoning or of evil influences from towers and booths. Staff appear as robots or as persecuting and demonic figures liable to launch a personal attack at any moment.” Unless the person can assert himself in some way, his personality loses coherence and unravels. So, it is out of psychological survival, not out of an unfathomable appetite for evil, that the prisoner “chooses” to “misbehave.” To resist, and especially to protest the horrific injustice of being driven to this brink, not only affirms the boundaries of one’s self, it reconstitutes oneself as a moral being. It is a reassertion of one’s honor and dignity, one’s right to exist, one’s right to defend himself as a person and not a thing. To unleash the terrible punishments that typically follow someone’s “disobedience” to this regime on someone who is so psychologically vulnerable is an unspeakable crime, since it attacks the person’s very will to live in a way calculated to drive him to suicide.

The worst of the worst. It’s always the same old story, whenever the privileged first class-citizens want to justify the exclusion and segregation those it consigns to second-class citizenship, it invokes imagery that they are protecting themselves from the worst of the worst. Fifty years ago, we didn’t mince words about it; we called them “chinks,” “spics” and “niggers,” and everyone knew the “niggers” were the worst of the worst. In the post civil rights era, we don’t use such terminology anymore, but the people who complain about “political correctness” still think in those terms. Basically, they are complaining about not being talk openly about how they yearn to go back to the “good old days” of America’s apartheid—of legalized discrimination, segregation and Jim Crow—when white people were undisputedly on top. In the post civil rights era, such talk would appear bigoted and reactionary and, well, un-American; so we speak about our segregationist ideas in the coded language of “law and order,” where the same cast of racial groups and foreigners has morphed into “criminals” and “illegal aliens.” We are now even willing to sacrifice poor white folks to preserve the illusion that we are a color-blind society. Of course, the “worst of the worst” are the same people they always were, only instead of keeping them in their place on the other side of the tracks; we now put them in prison, where they provide good jobs for the privileged classes who guard them and exploit their cheap labor both in prison and afterwards.

The phrase “the worst of the worst” is inevitably used to describe “problem” prisoners. Just as poverty is seen as the personal moral failure of individuals, rather than as a matter of discrimination and social policy, so too “problem” prisoners are conceived as the individual failings of morally defective human beings, not the system to which they are subject. The “worst of the worst” suggests that only those who have committed particularly heinous crimes prior or during incarceration are subject to further isolation in supermax facilities or Administrative Segregation. In reality, supermax placement is rarely determined by the crime for which an inmate is sentenced and can result not only from serious offenses committed in prison but also from mental illness, need for protection, the accumulation of multiple minor infractions, or membership in “threat” groups. Any natural leader; any prisoner who organizes other prisoners; any prisoner who complains on behalf of his fellows, or who files Inmate Appeal or a lawsuit, or helps other prisoners to do so, runs a various serious risk of being placed in a disciplinary situation where they are needled and provoked until they “misbehave,” whereupon they are subject to even more punishment until they “misbehave” again and again, until they are locked down 24/7 in a supermax. Quite often these decisions are made by administrative fiat for reasons of convenience and retaliation, rather than for misconduct requiring a disciplinary hearing, as would normally apply in cases of increased punishment. Once the option of isolation in solitary confinement exists, it tends to be normalized as a “common sense” fix for inadequate mental health care, overcrowding, “uppity” inmates, and failure to adequately protect prisoners in the general population.

The supermax, with all its high technology surveillance and control of the prisoner, gives the impression of that something of value is being accomplished with “incorrigible” and violent criminals with specialized expertise and facilities. In fact, it simply takes prisoners who acting out and decompensating because they have been poorly managed and subjects them to the worst possible management, literally destroying their sanity, altering their personalities in ways that make them less social, less attuned to conventional morality, less able to control themselves, and therefore even more unmanageable, all the while blaming it on the irredeemable and intrinsic evil of the individual. In other words, they needle and provoke prisoners beyond endurance, and then, when they attempt to restore their psychological equilibrium through protest, violence, or “disobedience,” they systematically and mercilessly crush them, saying it was the prisoner’s own unfathomable evil that made necessary for them do so. The machinery of isolation brings the full force of the prison’s apparatus of security and control to bear on the task of stripping these prisoners of the elements that sustain their personhood and citizenship, leaving them not only traumatized and broken, but a stigmatized second-class citizen fit only for menial drudgery.

Supermax proliferation is also supported by the contemporary spread of "war" imagery and militarism into the prison complex. In what Jonathan Simon, following James Gibson (1994), describes as the "New War," "small units ... fight a comparatively low-level but almost continuous war, largely devoid of fixed positions or territory.... New Wars allow for temporary victories and defeats." Simon suggests that the assumptions of the New War "are reflected in the obsession with crime" and contribute to the idea that both crime and war are "the products of evil individuals motivated by ultimately demonic forces" (Simon, 2001: 110, 112). The supermax participates in this imagery, both because its inhabitants can be represented as demonic and because it allows for "temporary victory" over individual prisoners while remaining always open to the admission of new candidates as "wars" (on drugs or terrorism, or between prisoners and prison staff, or among inmate groups) ebb and flow elsewhere in the system. This approach is one of tactics in which the emphasis is not on long-term goals for prisoners but rather the day-to-day suppression of even the appearance of resistance. As Kateb notes, "The ideal enemy is bellicose, perhaps inflamed, but manageably so" (1997: 898). Supermax is thus an element in a militarized response with the premise that both domestic and foreign enemies deserve extreme measures and must be placed beyond the reach of empathy or law. The prisoner is "manageable" so long as more effective technologies of control--mechanical, impersonal and absolute--can be made available. –Lorna A. Rhodes, “Supermax as a technology of punishment.”

This is a war in which the armed might of the entire nation is pitted against a single defenseless human being. It is obscene. And yet we allow it to continue because we have been reassured that this form of incarceration is rational, necessary, and effective. It is none of these things.

The effects of solitary confinement have been known for over a century. Indeed, by 1890, in In re Medley, 10 S.Ct. 384, the United States Supreme Court explicitly recognized the massive psychiatric harm caused by solitary confinement: “This matter of solitary confinement is not ... a mere unimportant regulation as to the safe-keeping of the prisoner .... [E]xperience [with the penitentiary system of solitary confinement] demonstrated that there were serious objections to it. A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.” Deprived of a sufficient level of environmental and social stimulation, individuals will soon become incapable of maintaining an adequate state of alertness and attention to the environment. Indeed, even a few days of solitary confinement will predictably shift the electroencephalogram (EEG) pattern towards an abnormal pattern characteristic of stupor and delirium. Dr. Stuart Grassian, a psychiatrist whose observations have been cited in a number of federal court decisions, discusses the neuropsychiatric effects of solitary confinement:

Most individuals have at one time or another experienced, at least briefly, the effects of intense monotony and inadequate environmental stimulation. After even a relatively brief period of time in such a situation, an individual is likely to descend into a mental torpor—a “fog”—in which alertness, attention and concentration all become impaired. In such a state, after a time, the individual becomes increasingly incapable of processing external stimuli, and often becomes “hyperresponsive” to such stimulation; for example, a sudden noise or the flashing of a light jars the individual from his stupor, and becomes intensely unpleasant. Over time, the very absence of stimulation causes whatever stimulation is available to become noxious and irritating; individuals in such a stupor tend to avoid any stimulation, and progressively to withdraw into themselves and their own mental fog.

An adequate state of responsiveness to the environment requires both the ability to achieve and maintain an attentional set—to focus attention—and the ability to shift attention. The impairment of alertness and concentration in solitary confinement leads to two related abnormalities.

The inability to focus, to achieve and maintain attention, is experienced as a kind of dissociative stupor—a mental “fog” in which the individual cannot focus attention, cannot, for example, grasp or recall when he attempts to read or to think.

The inability to shift attention results in a kind of “tunnel vision” in which the individual’s attention becomes stuck—almost always on something intensely unpleasant—and in which he cannot stop thinking about that matter; instead, he becomes obsessively fixated upon it. These obsessional preoccupations are especially troubling. Individuals in solitary easily become preoccupied with some thought, some perceived slight or irritation, some sound or smell coming from a neighboring cell, or—perhaps most commonly, by some bodily sensation—tortured by it, unable to stop dwelling on it. I have examined countless individuals in solitary confinement who have become obsessively preoccupied with some minor, almost imperceptible bodily sensation, a sensation which grows over time into a worry, and finally into an all-consuming, life-threatening illness.

In solitary confinement, ordinary stimuli become intensely unpleasant, and small irritations become maddening. Individuals in such confinement brood upon normally unimportant stimuli, and minor irritations become the focus of increasing agitation and paranoia.

Moreover, solitary confinement is especially debilitating in people with subtle neurological or attention deficit disorder, or individuals with psychopathic personality disorders, who appear to experience a chronic under-arousal of their central nervous system, leading them to have a pathological need for external stimulation. When such vulnerable individuals are exposed to conditions of solitary confinement, they are especially likely to experience states of florid psychotic delirium. Individuals with more stable personalities and stronger cognitive function fare better, but they still experience a degree of stupor, difficulties with thinking and concentration, obsessional thinking, agitation, irritability and difficulty tolerating external stimuli. EEG studies have corroborated these findings. A substantial proportion of those who suffer from mental illness, or who are marginally retarded, or who tremble on the brink of those conditions, tend to respond unfavorably and with increasing resistance to punitive controls.

Supermax prisons also have a debilitating and dehumanizing effect on prison guards, as Lorna Rhoads explains:

In the resulting “war” between disturbed prisoners and staff, structural power is expressed in direct force that ultimately overwhelms the prisoner. Correctional workers and prison industry advertising, however, frame the situation as a never-ending series of skirmishes with rational and “cunning” adversaries. Within this frame, even extreme acts of self-harm can be conceptualized as manipulation.

Officers and other supermax workers are far less constrained than prisoners, but they share some of negative conditions of these environments. They are separated from others in the system and inserted into a clockwork operation that in many ways resembles factory work; they too experience a noisy, pressured, and unpredictable environment. The power they exert over prisoners is intrusive and intimate, yet they are enjoined to psychological distance. In ways that parallel, to a lesser degree, the effects on prisoners, they may become depressed, violent, or excessively preoccupied with the technical and tactical aspects of their jobs. The interruption of "emergencies" into their routines can seem a disproportionate threat, an opportunity to alleviate boredom by making use of the available array of emergency response tools, or an invitation to "get away with" the use of excessive force. Under these circumstances the specialized tools of control become objects of desire, symbolizing status, safety, and a kind of industrialized consumerism. In a parallel kind of institutionalization, staff develop an eagerness for "war," a numbing of emotional response, and a diminished capacity for empathy with implications for their outside lives as well as for the prisoners in their charge.

Quite often these prisoners are released directly onto community—placed literally on the street—with no transition or preparation. Some do not even make it out of the bus station before attempting to score drugs or reoffending in some way. Given the hair-trigger conditions that become part of their terms of parole, even so