When I reviewed the causes and effects of the 2008 Financial Crisis for Cheap on Crime, I relied partly on a series of lectures given by Ben Bernanke, Director of the Federal Reserve. As he explained it, the Great Recession was a case of “triggers and vulnerabilities:”
The triggers of the crisis were the particular events or factors that touched off the events of 2007-09–the proximate causes, if you will. Developments in the market for subprime mortgages were a prominent example of a trigger of the crisis. In contrast, the vulnerabilities were the structural, and more fundamental, weaknesses in the financial system and in regulation and supervision that served to propagate and amplify the initial shocks. In the private sector, some key vulnerabilities included high levels of leverage; excessive dependence on unstable short-term funding; deficiencies in risk management in major financial firms; and the use of exotic and nontransparent financial instruments that obscured concentrations of risk. In the public sector, my list of vulnerabilities would include gaps in the regulatory structure that allowed systemically important firms and markets to escape comprehensive supervision; failures of supervisors to effectively apply some existing authorities; and insufficient attention to threats to the stability of the system as a whole (that is, the lack of a macroprudential focus in regulation and supervision).
The distinction between triggers and vulnerabilities is helpful in that it allows us to better understand why the factors that are often cited as touching off the crisis seem disproportionate to the magnitude of the financial and economic reaction.
Several of my colleagues (see especially here and here) are making the important argument that the spread of COVID-19 in prisons is a very big deal, to the point that not addressing it properly could negate much of our social distancing effort outside the prison walls. But what is it about prisons that make them such an effective Petri dish for the virus to spread?
Think of COVID-19 as the trigger, and think of the disappointing–even shocking–reluctance of federal courts to do the right thing as another trigger. These triggers operate against a background of serious vulnerabilities, some of which preceded the decision in Brown v. Plata and some of which emerged from it.
First, what gets called “health care” in CA prisons really isn’t. Litigation about it took a decade and a half to yield the three-judge order to decarcerate, and until then, horrific things were happening on a daily basis. Despite ridiculous expenses, every six days, a CA inmate would die from a completely preventable, iatrogenic disease. The cases that spearheaded Plata, including the story of Plata himself, were emblematic of this (see Jonathan Simon’s retelling of these stories here.)
It is important to think again of what it was, exactly, about overcrowding that made basic healthcare impossible to provide. First, medical personnel were, and still are, difficult to hire and retain. California has gigantic prisons in remote, rural locations, and it is difficult to attract people willing to work healthcare in these locations. Housing, clothing, and feeding so many people in close proximity meant not only that violence and contagion were more likely to occur, but also that the quality of these things–diet, especially, comes to mind–was extremely low. Every time someone had to be taken to receive care, the prison would have to be in lockdown, which meant more delays and big administrative hassles. The administration and pharmacies were total chaos. People would wait for their appointments in tiny cages for hours without access to bathrooms. People’s medical complaints were regularly trivialized and disbelieved–not, usually, out of sadism, but out of fatigue and indifference in the face of so much need. Moreover, the scandalously long sentences that a fourth of our prison population serves mean that people age faster and get sick, and make the older population an expensive contingent in constant need of more healthcare and more expense.
The outcome of the case–reducing the prison population from 200% capacity to 137.5% capacity–was mixed in terms of the healthcare outcomes. But it also yielded four important side-effects. First, it exposed the inadequacy of county jails for dealing with a population in need of both acute and chronic healthcare. Second, it created big gaps in service between counties that relied more and less on incarceration. Third, because the standard was the same for the entire prison system and relied on design capacity (rather than, following the European model, on calculating minimum meterage per inmate), it yielded some prisons in which overcrowding was greatly alleviated alongside others in which the overcrowding situation was either the same as, or worse than, before Plata. And fourth, because of the way we dealt with Plata, we became habituated to resolving overcrowding with cosmetic releases of politically palatable populations (i.e. the “non-non-nons”) rather than addressing a full fourth of our prison population–people doing long sentences for violent crime and getting old and sick behind bars.
So, now we face this trigger–COVID-19–with the following vulnerabilities:
We still have a bloated system, because the Court used the wrong standard to create minimal space between people for their immediate welfare.
We’re now dealing with lots of small systems that answer to lots of different masters and have different priorities and ideologies.
We already have a lousy healthcare system behind bars, which could not be fixed even with the release of more than 30,000 people, and that was *without* a pandemic going on.
We have gotten used to doing a “health vs. public safety” equation that doesn’t make sense and biases us against people who committed violent crimes at the wrong time and for the wrong reasons. In fact, we are so married to the idea that we can’t second-guess mass incarceration, that the newest preposterous suggestion has been to protect people from COVID-19 by… introducing private prisons into the mix.
Stack these vulnerabilities against the trigger, and what you have is an enormous human rights crisis waiting to happen in the next few weeks. It’s already started.
And if you wonder whether this can be contained in prisons, well, it can’t. Guards don’t live in prison, obviously; prison staff has already been diagnosed positive in multiple prisons. Stay at home all your like, wear your home-sewn masks all you wish; we have dozens of disease incubators in the state and apparently very little political will do do anything to eliminate them.
What should we do about it? Follow the excellent roadmap that Margo Schlanger and Sonja Starr charted here, primarily point four: get over your icky political fears about public backlash and let older, sicker people out–even if they committed a violent crime twenty or forty years ago. If you are a governor or a prison warden with some authority to release people, do as Sharon Dolovich implores in this piece and use your executive power to save lives.
In addition to being engrossed in my animal rights/criminal justice project, I have the happy and challenging obligation of writing an encyclopedia entry for the Oxford Research Encyclopedia of Criminology and Criminal Justice on “politics and penality.” This is a daunting project because it calls for a preliminary working definition of what current scholarship means by “politics” and what it means by “penality.” Critical writings on punishment and society, especially on the macro level and especially recently, tend to examine punishment within a reality of political priorities, and particularly in the context of power and inequality in their many forms. This calls for a loose, broad definition of “politics”. Moreover, scholarship has come to understand penality as a broad regime, beyond obvious and visible representations of penal power such as criminal courtrooms and prisons.
I’m still thinking about how to conceptualize the project (this post is part of that reflection), but it seems to me like there are at least three trends in recent literature on politics and penality that are particularly interesting:
1. The Separation and Overlap of Politics and Penality and the Importance of Neoliberalism as an Explanatory Factor
As I mentioned, one of the major novelties of the literature is observing and reporting on manifestations of penality outside the prison. In that respect, the work of critical geographers, economists, and public policy scholars has been most instructive. The notion of “million dollar blocks” has brought prison planning and expense out of the prison and into neighborhoods. The work on the impact of incarceration on families expands the circle affected by mass incarceration beyond the prison. The work on the conflation of ghetto and prison shows not only exclusion and confinement operating in and out of the prison, but also the inexorable link between the decline in welfare and the rise in incarceration as economic factors. Work that sees the hand of incarceration in landscape and industry; this “carceral term” is especially linked to the overall rise in importance of neoliberalism in explaining penality. It seems like neoliberalism is now at the heart of any macroanalysis of politics, and penality is no exception: what emerges from the literature is the sense that the tyranny of capitalism, miserly manifestations of shrinking welfare, and in general, the lack of care for the bottom 15% (20%? 50%? 99%?) of the population is what drives penality. This school of thought, which sees penality as the product of a grander political program, manifests itself not only in the context of class, but also race (particularly in North American writings that see punishment as part of a “racial project”). These big picture analyses tend to suggest a grand and sinister plan, in which punishment serves as a tool for a larger political economy scheme (echoing radical Marxist criminology) and has been criticized by some as imposing current notions of neoliberalism and capitalism rather than taking historical or contemporary actors on their own terms. There are also big questions as to the extent to which grand political trends (such as managerialism/actuarial justice) trickle down to actual actors. Neoliberalism also means that, popular progressive calls for abolitionism aside, it’s hard to imagine what abolitionism would actually look like, though some try.
2. The Association of Punitivism with Particular Political Positions
Critical literature of the 1970s through the 1990s that looked at the emergence of mass incarceration in the United States tended to associate classic association with conservatism, and with good reason. The classic bogeymen of this period are Nixon and Reagan–both associated with one of the major bogeymen of mass incarceration, the war on drugs. But more recent literature tends to view Nixon and Reagan not as aberrations, but rather as a continuation of trends that involved pathologization, criminalization, and marginalization, particularly of young black men. This literature ranges from arguments that particular liberal groups unwittingly contributed to disastrous circumstances (including opponents of harsh punishment) to arguments that see liberals as having “built prison America”, including welfare-minded professionals espousing paternalism toward the “pathologies of the black family.” These new writings are not unrelated to agonistic perspectives on criminal justice, which show that, rather than “seismic shifts” to and away from punitivism, criminal justice policy is the product of constant negotiation between political forces and movements.
3. Geopolitical Penality, Penality and Protection, Penality and National Security
New literature sees penality beyond the context of the domestic, as a manifestation of growing nationalism and security trends in a variety of countries around the world. The idea of border criminologies looks at how penality, xenophobia, and national security intersect, as does the relatively new field of crimmigration. As recession-era politics in the global north curbed incarceration, they affected a shift in resources and private investment toward immigration enforcement, the use of criminal logics in the immigration context, and the introduction of criminal technologies in managing immigration. Also important is the penal manifestation of political shifts in postcolonial and developing settings.
Please, let me know if there are other hot topics in politics and penality that you think are relevant!
DxE activists with rescued birds. Image courtesy Indybay.
Hello, friends! I’m writing this from the Harvard Animal Law Policy Program, where I am a Visiting Fellow this fall. My plan for this fellowship is to examine the intersection of criminal justice, social movements, and animal rights–in other words, what happens when animal rights activists engaging in open rescue are criminally charged for their actions?
A brief primer: the conditions of confinement experienced by animals–cows, pigs, chickens, turkeys, and others–in factory farms are beyond atrocious, and this is true not only for conventional farms, but also for so-called “humane” or “cage-free” facilities. I have seen footage that has torn my heart apart. In one video, from a chicken farm, I saw emaciated and sick chickens, some of which were barely moving and clearly close to death. The animals trampled upon each other to breathe and carcasses of trampled chickens were clearly visible on the ground. Parts of the animals’ bodies were torn, likely by other animals trying to push through to obtain food and air. There were some indications that the animals, starving and parched, had turned to cannibalizing each other.
These are difficult things to see and experience, partly because opening our eyes and hearts to animal suffering requires seriously reconsidering our consumption habits that contribute to this cruelty. But the first step is, of course, to raise public awareness to these conditions, and there are very few legal avenues to doing so. Because of that, activist organizations turn to a technique called open rescue.
The Animals and Society Institute defines open rescue as “[t]he process of giving aid, rescue, and veterinary treatment to animals confined in typical factory farm living conditions. The immediate aim of the rescuers, who identify themselves even when trespass is necessary, is to save lives, while documenting the animal suffering inherent in large-scale industrialized food production.” This definition has several important components.
First, it is a “rescue” mission, and therefore often involves not only documenting conditions at the farm, but also removing sick and endangered animals. The activists I spoke to explained that they seek to identify animals that might imminently die or suffer irreparable harm unless they are removed from the facility (this, in itself, requires them to do some selection, because all animals subject to factory farm lives are in dire circumstances.) They also do this because working for animal rights can be emotionally devastating and demoralizing, and rescuing animals provides an optimistic element to the experience.
Second, open rescue is “open”. In an article about the need for solidarity and cooperation in the animal rights movement, Taimie Bryant quotes Paul Shapiro, formerly of Compassion over Killing, who explains that, by contrast to other animal liberation actions in which participants “go to great lengths to conceal their identities”, the point of open rescue is to rescue the animals “completely openly… you videotape yourself doing it, you take full responsibility for the fact that you did it and you openly publicize the fact that you did it.” Shapiro argues that the overt nature of the action garners much more sympathy for the activists and focuses attention away from the morality of their own actions (“should we treat them like orderly criminals, or like political prisoners?”) and toward the conditions suffered by the animals.
–> But, as it turns out, you can’t really avoid the question of how to treat the people, even in the face of the serious question how to treat the animals. Entering factory farms to document conditions does not only violate garden-variety penal code provisions against trespass (and, if animals are rescued, larceny), but also a slew of ag-gag laws–laws lobbied for by the agricultural industry prohibiting entry to, and documentation of, animal factory farms.
As an aside, saving animals turns out to be a fairly dangerous proposition in general. During Hurricane Katrina, the Animal Legal Defense Fund composed a memo offering legal guidance for the brave people who broke into abandoned, flooded homes to rescue animals left behind. Even in the face of the heartbreaking story of Snowball— reportedly, the inspiration behind legislation requiring states to come up with animal rescue planning as a condition for FEMA assistance–the law offered (and still offers) little to no protection even for people who rescue the most sympathetic animals of all: domestic pets. Good Samaritan Laws, which protect emergency rescuers from criminal and/or civil liability, either do not refer explicitly to animals or explicitly use the term “person.” Local animal cruelty laws do not go as far as offer coverage for rescuers.
This is especially true for farmed animals: as reported by the Animal Welfare Institute, several states explicitly exclude farmed animals from the definition of “animal” in their animal cruelty laws, so that these laws do not apply to them. Moreover, the aforementioned ag-gag laws were designed specifically to protect agricultural interests, as exemplified in this Intercept story by Glenn Greenwald. So, from the perspective of the farmers, the legislature, and the prosecutors, open rescuers are trespassers (when they step on the premises) and thieves (when they remove animals from the premises.)
My project involves a study of an organization called Direct Action Everywhere (DxE) which, among other avenues, pursues open rescue and documentations. DxE activists use sophisticated technology–drones, virtual reality filming–to present the horrors of factory farms to the public. And, the organization often rescues animals, whom they name and care for with the help of vets and sanctuaries. Such acts have resulted in several criminal cases against activists. Some of these have been dismissed (such as the case against a woman who gave water to thirsty pigs on their way to slaughter) but some are still pending, in California (Sonoma County), Utah, and North Carolina.
The activists facing trial have, so far, declined plea bargains in favor of jury trials, and they plan to argue for a necessity defense.
The next installment in this blog post series will examine the elements and feasibility of relying on a necessity defense in open rescue cases.
