One For the Weekend: Mathematics by Mos Def

Stiffer stipulations attached to each sentence
Budget cutbacks but increased police presence
And even if you get out of prison still living
Join the other 5 million under state supervision

This post is the first of a new series; every weekend, I'll throw up a song that I like that has interesting things to say about some aspect of the criminal justice system.

I don't have fully formed thoughts on this question yet, but listening to this song for the first time in years just after reading Radley Balko's Rise of the Warrior Cop (which I wrote about here) was powerful. Balko's book reminded me just how panicked the hysteria was around drugs and crime from the 1980's through the end of the 1990's. In this frenzy, politicians like Charlie Rangel from African-American districts were among the strongest advocates for punitive drug laws and policing tactics. At the same time, the constituents of these districts (mostly very young men of color, the same people the policies targeted) were making extraordinary music about the deleterious effects of these laws and tactics.

In the last decade or so, it has become a truism in elite institutions like the New York Times and ivy league universities  that, yes, there are rappers out there with interesting politics. But it's worth remembering that on matters of police and prisons, these young men from rough neighborhoods didn't learn what is now the conventional wisdom from their elected representatives and the New York Times; they beat them to it by decades.

How Should We Refer to People in Prison?

In response to an earlier post, a friend forwarded me An Open Letter to Our Friends on the Question of Language, an interesting piece from the Center for Nu Leadership on Urban Solutions (a pdf is here.) The letter points out that people often use dehumanizing terms to refer to prisoners—animals, predators, sex offenders, and so on. Those of us hoping for reform in the treatment of incarcerated people, it goes without saying, shouldn’t use these terms.

            The letter’s argument, however, is that the official terminology of the criminal justice system is no better. It asks people to stop using terms like inmates, convicts, prisoners, and felons, as these terms have negative connotations; they “identify us as ‘things’ rather than as people.” In their place, the letter makes a simple request: “[R]efer to us as people. People currently or formerly incarcerated, people on parole, people recently released from prison, people in prison, people with criminal convictions, but people.”

            As controversy last month over references to Chelsea Manning in the mainstream media reminds us, calling people what they ask to be called is a foolproof strategy to not being a jerk and any other strategy can get dicey. However, my first instinct is to question the letter’s instruction. First, of course, there are over two million people in prisons and jails, hundreds of thousands in immigration detention facilities, and many millions more under some form of state supervision. They’re a vast and heterogeneous group; no individual or organization speaks for all, or even most of them. Setting aside the representation issue, I have two other concerns.

            First, as a (wannabe) writer and a (wannabe) lawyer, I feel uneasy about replacing words—with specific meanings and as defined in law—with clunky phrases. For example, whether someone committed a felony or a misdemeanor can have serious ramifications for a person’s access to public housing or a person’s immigration status. This distinction is important because laws and judicial decisions have singled out people who have been convicted of felonies; criticizing those laws and decisions is difficult if referring to the group affected as “felons” is universally out-of-bounds. (Above, I used “people who have been convicted of felonies.” It’s long, clunky, and in the passive tense. The dictionary defines “felon” as “Person who has committed a felony,” which is shorter but inaccurate—think of the exonerees, who were convicted of a felony, but didn’t commit anything.) I agree that calling any individual a “felon” or “prisoner” might be categorically inappropriate, but being unable to refer to groups of prisoners as such makes it challenging to write about them in a succinct and legally accurate way.

            Second, I worry about ceding the field on terms like “prisoner” and “inmate.” The terms may have a negative connotation in much of American culture, but they don’t for me. And I am not alone, or even uncommon. Millions of Americans have family members or close friends in prisons or jails. Many more who don’t have become aware of the pathologies of our criminal justice system. If progressives abandon terms like prisoners, which are straightforward descriptions and also often the appropriate legal terminology, they leave the meaning of the term in the hands of people who have a more demeaning view of incarcerated people.

            As a general matter, I am completely unpersuaded that America has a political correctness problem. In my experience, people claim it does do so based on a misunderstanding of negative reactions to their derogatory statements. After saying something offensive (say, a homophobic slur), they perceive any criticism as reacting not to substance (“Of course you know what I meant!”) but only to form. The criticism thus seems pedantic and a little self-aggrandizing; ‘ok, you’ve memorized the code words to be acceptable to a certain cultural elite, and I haven’t.’

            But the criticism is about content. A homophobic slur doesn’t deserve denunciation because the word was indelicately chosen from a list of options but instead because it betrays a way of thinking that has done a lot of damage to vulnerable people.

            So am I the jerk from the above story in this case? Clinging to language that others find offensive for its utility and defending myself with “but I didn’t mean it like that?” I think I might be but am not sure. I’m going to try to be more conscious of word choice issues and see how I feel as I have more occasions to face the dilemma in practice. Feedback welcome.

Immigrants in Solitary

 

            This week, U.S. Immigration and Customs Enforcement (ICE) issued a new directive on the use of solitary confinement in immigration detention facilities. Carl Takie of the ACLU praises ICE for “creat[ing] a robust monitoring regime that will finally enable the agency to oversee the use of solitary confinement.” The directive “takes important steps to impose substantive limits on the use of solitary,” such as requiring centralized review of all placements in solitary for over 14 days.

            However positive a development, the directive does lay bare a bizarre contradiction in how the United States treats immigrants in detention facilities. The directive distinguishes between administrative segregation and disciplinary segregation. Administrative segregation is a “non-punitive form of separation” which facilities may only use to ensure the safety of detainees or staff, the protection of property, or the security or good order of the facility. Disciplinary segregation, alternatively, is “a punitive form of separation.” Using disciplinary segregation requires jumping through a series of procedural hurdles.

Every year, the United States holds several hundred thousand immigrants in immigration detention facilities, waiting to face deportation. As Dora Schriro, a former advisor for ICE, explains, “the facilities that ICE uses to detain aliens were built, and operate, as jails and prisons to confine pre-trial and sentenced felons. ICE relies primarily on correctional incarceration standards designed for pre-trial felons and on correctional principles of care, custody, and control.” Euphemistic names aside, immigrants are in prison.

Yet unlike normal inmates, immigrants are not in prison as punishment. The constitution doesn’t allow the state to punish someone without finding him or her guilty of a crime, a process that comes with numerous procedural protections—the right to a lawyer, to a jury, to confront witnesses. Instead, our law posits, when the state deports someone, it is merely exercising its prerogative to decide who and who is not allowed to remain within its borders, not punishing them. Therefore, if the state is waiting to determine if it should deport an immigrant, throwing her in prison to await the decision isn’t punishment either; it’s civil regulation. The Supreme Court has drawn the line between punishment and mere regulation by asking whether the practice in question is rationally related to a legitimate nonpunitive government purpose, and whether the practice is excessive for that purpose.

            To recap: The state can’t punish immigrants without a trial, but throwing them in prison without a trial isn’t punishment because it is rationally related to a legitimate purpose—determining who is allowed to stay in the country. ICE’s new regulations permit for “administrative segregation,” which lets facilities throw people in solitary to ensure their safety, the staff’s safety, other detainees’ safety, the protection of property (!), or good order. But even if none of those justifications apply, the state can jump through a few additional procedural hoops and still throw immigrants into “disciplinary segregation” to punish them. And this “punitive form of separation,” their words, lack any of the justifications for administrative segregation but still isn’t punishment.

The directive also states that any facility director must alert her Field Office Director if she holds a detainee in solitary for fourteen days, then again if she holds the detainee for thirty, then at every thirty-day interval thereafter. The United Nations’ Special Rapporteur on Torture Juan Mendez has argued that holding someone in solitary confinement in excess of 15 days should be subject to an absolute prohibition because it can function as torture. In the United States, it doesn’t even amount to punishment. And this, genuinely, is progress.

The Spring Breakers Get Pay-or-Stay Sentenced

 

On my flight today, I watched Spring Breakers, Harmony Kormine’s 2012 film of four young women on a raucous trip that descends into crime and violence. A third of the way through the movie, the police bust a party, and the women find themselves bikini-clad in front of a judge. The judge tells them, “You’re not going to be charged with narcotics possession because it wasn’t found on your actual person. You will be issued citations, and you’re going to have to pay those fines or you’re going to have to do two more days in county.” Our protagonists protest: “We don’t have any money.” The judge replies, “Call mommy and daddy or do the time.”

The state has not convicted the women of a crime—it has not even charged them with one. Instead, the court has imposed a fine, and ordered that if the women fail to pay it they must serve a jail sentence instead. The court expresses disinterest in whether they can afford to pay the fine, meaning that whether or not they are incarcerated turns entirely on if they have the resources to pay up to the state.

Sound like the type of thing that might violate the constitution? It does. The Supreme Court has ruled that courts cannot convert the unpaid fines of an indigent person into a jail sentence and that courts may not revoke probation for an individual’s failure to pay a fine if he or she cannot afford it.

            The scene grabbed my attention not because the scene is unrealistic; a paragon of realism, Spring Breakers is not. Instead, the scene piqued my interest because pay-or-stay sentencing may be unconstitutional, but it is nonetheless a widespread although mostly unexamined phenomenon.

            An amicus brief the ACLU and the Brennan Center filed just two weeks ago details how hundreds of defendants in Michigan have received pay-or-stay sentences despite being too poor to meet their legal financial obligations. In one case the brief mentions, a nineteen-year-old received a ticket for fishing out of season; he was unable to pay the 215 dollars immediately, so the judge sentenced him to a jail sentence instead.

Pay-or-stay sentences create a two-tiered justice system where only the poor go to jail, but they’re lousy policy too. Jail sentences only make it more difficult for the poor to be able to pay back their debts, as jail terms disrupt employment and stigmatize the debtors. They also, of course, force the state to incur more costs by incarcerating more people.

            Despite this troublesome trend, the legal academy hasn’t had much to say about pay-or-stay sentencing. Perhaps the very fact that it flagrantly flouts clearly established law is to explain for this absence; pay-or-stay may be happening, but it is too obviously unconstitutional to be worthy of an interesting article. The dearth off attention from academia and mainstream media makes it all the more surprising to see the practice popping up in film.

            A moment after the court scene, a jail guard enters the women’s cell and tells them “Somebody loves y’all. You’re free to go. You just made bail.” It is here, tragically, that Spring Breakers loses its way in hyper-realistically portraying low-level criminal court proceedings. Made bail on what? They haven’t been charged with a crime.

            The women leave the jail, inexplicably via a garage door, and find James Franco with braids and a grill waiting for them. He tells them, “I saw y’all in there. You looked like nice people. Thought maybe I’d bail you out. Everyone could use a little bailing out once in a while.” So it appears that pay-or-stay’s cameo was an accident, a fumbling in the script. Or at the very least, “Everyone could use a little help fulfilling their legal financial obligations so to avoid unconstitutional incarceration” doesn’t sound as good rolling off James Franco’s tongue. Too bad.

Radley Balko's The Rise of the Warrior Cop

            I adore Radley Balko. The libertarian journalist has spent years writing excellent pieces on government abuses in the criminal justice system, tackling subject matter from junk science to no-knock police raids. His blistering contempt for both major parties seems roughly appropriate, and he is likely the first writer to save a man’s life with blog posts. He has had the sort of career that makes economist Tyler Cowen look at an underexamined civil liberties issue and proclaim, “It needs its Radley Balko.”

            Balko’s first book, The Rise of the Warrior Cop, is nonetheless a bit of a disappointment. The book chronicles how over the last fifty years, American police departments have become increasingly militarized in their equipment, tactics, and attitudes. Increased militarization was purportedly in response to incidents involving riots or gunmen, but militarized police units have spread to small towns, which use them primarily to serve drug warrants, a dangerous and pointless practice. The consequences, Balko writes, are dire—a gutted Fourth Amendment, police with us-against-them attitudes, and a flood of mistaken raids and gratuitous losses of life.

            Balko has researched and written on police militarization for years, but in a peculiar choice he begins not with his arsenal of research but instead in ancient Rome. He spends the first several chapters of the book on Rome, the Founding, and early American history before arriving at the real birth of police militarization in the 1960’s. The diversion is troublesome for two reasons. First, Balko a brilliant investigative journalist, is not a reliable guide through the massive historical literature on Rome and the Founding. While he does find evidence to support his claim (basically ‘smart people have been wary of domestic militarism for quite some time now’) in Rome and Philadelphia, I feel wary in trusting the broad conclusions of a non-expert when they happen to align so perfectly with the arguments he’s been making for years.

            At one point he notes off-handedly, without a citation, that rape was “almost non-existent” in colonial American towns (p. 27). Assuming that Balko is giving “rape” its modern meaning, as he should, this seems unbelievable. Marital rape was not criminalized in the United States until the 1970’s. Some colonial towns, of course, permitted slavery, and the rape of slaves by their masters was infamously common. At the very least, these forms of rape were not “non-existent.” What Balko must mean is that a certain kind of stranger rape was almost non-existent given the small and tight-knit communities. His sloppiness here is likely due not to some antiquated view of what constitutes sexual assault but instead because he is not used to writing about this era and forgot the necessary caveats. This criticism is nitpicking to be sure, but the inattention to detail makes Balko an unreliable narrator through the first several chapters of his book.

Second, the Romans and the Founders may have disapproved of the domestic use of the military and military-like institutions, but what exactly the reader is supposed to draw from that is unclear. Is it simply that the Romans and Founders were really smart, and the fact that they were worried should give us worry too? Or is the description of the Founding supposed to imply that the domestic use of military equipment and tactics is actually unconstitutional, and that courts should be intervening?

Balko’s description of what he calls “The Symbolic Third Amendment” reveals the fuzziness in his answer to the latter question. The Third Amendment, a ban on quartering soldiers, has not been the subject of controversy for the last couple of centuries. (Headline from The Onion: “Third Amendment Rights Group Celebrates Another Successful Year.”) But Balko writes that the Third Amendment went beyond a literal ban of quartering soldiers, that it was “a more robust expression of the threat that standing armies pose to free societies” (p. 13). He peppers the rest of the book with phrases like “the policies that Clinton implemented showed little understanding or appreciation of the Symbolic Third Amendment” (p. 193). Does a Symbolic Third Amendment mean that the Founders intended to prohibit domestic militarism? After all, constitutional amendments are there to ban stuff, not to express displeasure at them. Or does the Symbolic Third Amendment only mean that the Founders were concerned about domestic militarism (see e.g., The Third Amendment) and we should care not because they inserted a prohibition into the constitution but because they were really bright guys?

             The meat of the book is full of excellent reporting, but much of it reads less like a book on a social phenomenon and more like a series of magazine articles on individual incidents strung together. Balko also often goes beyond the narrower subject of police militarism to trace a broader history of the drug war, a history that can be found on other books on the subject like Dan Baum’s Smoke and Mirrors. Balko spends some time digging through the fine print of the legislative acts and policies that caused the growth in police militarization; given that these details are the truly novel analysis in the book, an even more in-depth treatment would have been welcome.

            Balko’s skillful retracing of the drug war, while not particularly novel, does provide some helpful reminders. Here are three: First, the men who developed our drug policies did so without a drop of serious balancing of costs and benefits, with a bellicosity that now seems unimaginable. William Bennett, George H. W. Bush’s drug czar said of drug users in 1990, “It’s a funny war when the ‘enemy’ is entitled to due process of law and a fair trial” and argued that he’d be interested in beheading drug dealers if it weren’t “legally difficult.” Second, Joe Biden is not the lovable rascal of The Onion’s imagination, but instead one of his generation’s most prolific trampers of civil liberties. For one example, and there are many, in 2002 he pushed the RAVE Act, a law that would have made club owners liable for running a drug operation if they sold Ecstasy paraphernalia like bottled water and glow sticks. Third, President Obama is not merely a disappointment by failing to curtail civil liberties violations; he is actively making them worse. He has made no attempt to roll back programs that deliver military equipment to police department and in some cases has expanded them.

            But maybe I’ll have to take all of this back. Three years ago, Michelle Alexander wrote The New Jim Crow: Mass Incarceration in the Age of Colorblindness. I found the book full of interesting information but quite flawed. I doubted the helpfulness of its central analogy, and felt that its attempt to reach a mass audience while still being scholarly led to some sloppy errors and generalizations. By March 2012, the book had sold 175,000 copies. Last month, in a small bookstore in the airport of Lima, Peru, I browsed the small English section and there—sitting next to Tina Fey’s Bossypants—was The New Jim Crow. I could not have imagined that a polemic against mass incarceration would appeal to such a wide audience, and the thrill of seeing it gain mainstream traction far outweighed any gripes I had with its contents. Perhaps Rise of the Warrior Cop’s flaws—the redundant retracing of the drug war, the placement of police militarization at odds with Rome and the Founders, the endless string of anecdotes—are just sensible calculations to persuade a mass audience that police militarization is a problem. If he succeeds and that message reaches kitchen tables, jury deliberation rooms, and city counsel meetings across America, I take back all of these objections too.

Let Prisoners Vote

 I’ve been reading Gulag: A History by Anne Applebaum in the hope that learning about one brutal prison system may help shed light on our own. This is the first post in reaction.

I.

            In the late 1930’s, there was a shift in the Soviet gulag system away from “re-forging” the Soviet citizens that landed in the work camps and towards a broader “excommunication” from Soviet society. Guards ceased calling inmates comrades, and barred the inmates from using the term. The camps no longer celebrated civic holidays. Photographs of Stalin hanging from the walls of the buildings and trains disappeared. Foreigners in the camps were surprised to learn that this excommunication had such a powerful effect on Soviet citizens. I can understand the surprise—the Soviet state had arrested the inmates, interrogated them, put them in nightmarish prisons, and shipped them in cattle cars to work camps cutting timber or mining coal. Murder, starvation, and rape were common, dysentery and frostbite more common still. How could inmates be upset by the symbolism of banishment from a society that—in addition to physically banishing them—subjected them to such horrors? But upset the prisoners were.

II.

            In Corey Booker’s new and impressive white paper on criminal justice reform, he argues against the disenfranchisement of ex-felons. Disenfranchisement, he argues, creates a “sub-class that has little or no power over their representatives but is particularly vulnerable to their decisions.” The withholding of voting rights “is counterproductive to the rehabilitation and reintegration of those released from prison into society” and “make[s] the previously incarcerated feel that they will never truly be a part of their community again.”

            Analysis of this sort, of how “the previously incarcerated feel,” is mostly absent from the law school classrooms where I learned how to think about these questions. Those discussions often envision individuals as if they crawled out of microeconomics textbooks. People are perfectly informed, perfectly rational utility maximizers and, thus, perfectly responsive to incentives—or at least close enough that assuming as much produces a more grounded conversation than musing about how ex-offenders “feel.” Up the sentences and crime goes down; make the death penalty available and crime goes down; increase the collateral consequences of incarceration—like the stripping of voting rights—and crime goes down.

            I suspect one reason we enjoy talking about people this way is that it is self-aggrandizing to aspiring young technocrats like us. To young people headed off to work in law and policy, a world in which tweaking of the law results in predictable changes in behavior is a world in which we are important. By playing with different variables in the equation, we can evaluate the straightforward trade-offs and decide in which world we want to live.

            But that world is a fiction. Analyzing incentive structures alone is a lousy way to predict how people will interact with the criminal law. As Tom Tyler demonstrated in Why People Obey the Law, people follow laws when they believe they’re legitimate, not simply because they fear punishment. Tweaking incentives may matter at the margins, but what really matters is the attitude of citizens towards the law’s source.

            Which brings us to elections. People don’t vote in presidential elections because they believe their vote, one of 110 million, may swing the election. Voting is a symbol of participation in the political community. We take time from our day to cast a vote to demonstrate to ourselves and others that we’re participating in the collective project of making a decent life for ourselves.

            If we want ex-prisoners to successfully reenter society, we shouldn’t prevent them from voting; we should beg them to. Booker does a respectable job arguing why, but his explanations are striking in one respect: Not a single one explains why ex-inmates should have the right to vote, but current inmates should not. Even while they’re incarcerated, we don’t want to make inmates “feel that they will never truly be a part of their community again;” especially while they’re incarcerated, we don’t want to take actions “counterproductive to the rehabilitation” of inmates. And the description of a “sub-class that has little or no power over their representatives but is particularly vulnerable to their decisions” describes current inmates far better than it describes former ones. There’s also no reason to believe bestowing of the right to vote requires a trade-off with public safety: Maine and Vermont permit inmates to vote without an apparent turn towards pro-criminal laws, and the research of sociologists Christopher Uggen and Jeff Manza suggests that the act of voting reduced subsequent criminal behavior.

III.

            In Applebaum’s observation, laborers of the gulag so brutalized by a society were nonetheless vulnerable to the pain of being expelled from its symbolic rituals. There is no reason to expel our inmates from the rite of voting and a powerful reason not to—a reduced crime rate for all of us. Booker is right that “voting is a right, not a privilege,” but his logic supports a weightier solution than the one he proposes. We should let prisoners vote.