Newt Gingrich and Pat Nolan Publicly Endorse SB9

Wow! Talk about narrow coalitions! First we get Pat Robertson’s enthusiastic support of marijuana legalization, and now this: Newt Gingrich and Pat Nolan offering support for Senate Bill 9, which would allow for resentencing youth who have been sentenced to life imprisonment without parole. Their op-ed in the U-T San Diego explains:

You might expect that these LWOP sentences are limited to the “worst of the worst,” but that is not the case. A young teen can be a bit player in a crime, e.g., act as a lookout while his buddies go in to steal beer from a convenience store. None of them is armed, and there is no plan for violence. Then it all goes haywire. The clerk pulls a gun, and one of the kids tries to grab it away. In the struggle that ensues, the gun goes off and the clerk dies. 

Under California’s “felony murder” rule, every person involved in that crime, no matter how minor their role, is equally guilty of murder, even if they did not plan or expect a murder to occur. According to the fiction of our law, the lookout is as much to blame as the person who pulled the trigger. About 45 percent of the inmates serving LWOP for a teenage crime were not the person who caused the death. Yet they will die in prison of old age, with no chance for release. 

But should these youngsters die in prison for something they did when they were so young? Wouldn’t it be better to re-evaluate them after serving a long stretch in prison and consider whether they have matured and improved themselves? 

We are conservative Republicans, and we believe that some people are so dangerous that we must separate them from our communities. That is what prisons are for. But sometimes we overuse our institutions. California’s teen LWOP is an overuse of incarceration. It denies the reality that young people often change for the better. And it denies hope to those sentenced under it.

This op-ed joins a long stream of previous statements from conservative politicians who express a willingness to deviate from the traditionally tough-on-crime stance on the right. And notably, while there is a savings strand here, there is also text about compassion and humaneness. Good stuff.

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Cross-posted to PrawfsBlawg.

Felon Disenfranchisement and the California Realignment

In 1974,  California voters passed a constitutional amendment extending voting rights to all Californians with criminal records, save for those “imprisoned or on parole for the conviction of a felony.” Prior to the amendment, disenfranchisement was permanent in CA once you were convicted of a crime. The impetus for the amendment was, hard as it may be to believe in the days of public safety rhetoric and redball crime panic, the wish to help people regain their full citizenship after they complete their parole. In a landmark 2006 case, the CA Supreme Court interpreted this provision as follows: Folks in state prison, and under state parole, can’t vote. Folks in jail or under probation (or in jail for a probation violation) aren’t considered “imprisoned” and therefore can, and do, vote.

A new piece I’m working on (coauthored with Jessica Willis) for the upcoming Loyola Constitutional Law Colloquium examines the application of this provision, and this interpretation, to a new population of offenders created by the Criminal Justice Realignment in California.

Let me present the legal dilemma. In the aftermath of Brown v. Plata, and in order to resolve the serious financial crisis faced by the state (corrections eat up about 7% of CA’s entire budget), the California Penal Code has been amended to sentence non-serious, non-violent, non-sexual offenders to do time in county jail rather than in state prison. Are these people “imprisoned” for the purpose of the constitutional provision?
Constitutional provisions that give people fundamental rights should be interpreted broadly, right? Whenever there’s ambiguity, we should support people’s right ot vote, right? Wrong. The CA Secretary of State instructs felons that, if they are among the realigned group, they cannot vote.

Several civil rights organizations, and several folks doing time in jails or on community supervision, petitioned the CA Court of Appeals for an original writ allowing them to vote (full disclosure – yours truly and coauthor Jessica Willis wrote an amicus brief on behalf of thirty criminal justice scholars in support of the petitioners). The Director of Elections for the City of San Francisco – one of the respondents – actually agreed with petitioners that they should be allowed to vote, and merely asked the Court for instructions what to do. The court threw the case in petitioners’ faces with no reasoning. Petitioners took to the CA Supreme Court, and received pretty much the same response.

In the Article I go in depth into what the Court should have weighed and considered if it took these Californian citizens’ rights seriously. But in a nutshell, here’s what I think is going on: There are two visions of Realignment. You can see it as a technical way to resolve a budgetary problem and warehouse people on someone else’s dime. Or, you can see it as  a real opportunity to bring people back to their communities, through a correctional method that actually might make sense for people who will eventually come out of prison and reintegrate into society. And by throwing the case out, the Court has opted, regrettably and apparently without much thought, for the former vision. A huge opportunity has been missed. People who could, and should, have been reintegrated into society; who could’ve channeled their experiences into civic engagement; and who could’ve started to care about their communities and neighborhoods will remain isolated and alienated.

In the movie Recount, a fascinating flick about the Bush v. Gore election, a person mistaken for a felon is sitting at home, watching Bush’s acceptance speech. His face is difficult to read. Is he angry? Sad? Disillusioned? Robbed of the promise of a voice or full citizenship? When you vote in November, think about the immense number of U.S. citizens behind bars, or under supervision, from whom this right has been denied.
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cross-posted on PrawfsBlawg.

“Smart on Crime”: Retreating from Punitive Discourse Citing Financial Prudence

 In the decades prior to the financial crisis, as Jonathan Simon writes in Governing Through Crime, no politician, regardless of party affiliation, could afford to sound “soft on crime.” Propositions running counter to the received wisdom that more punitive is better had to be marketed assmarter, more efficient, or safer law enforcement – and, of course, these drowned in a sea of punitive propositions. But one of the key features of humonetarian discourse – the correctional discourse in the wake of the financial crisis – has been a partial liberation for politicians from the tough/soft on crime dichotomy. The usual tricks for dressing nonpunitive propositions as, well, not nonpunitive, still apply, but now there’s justification to do so: Punitiveness is not financially sustainable. 

Our friends at Sentencing Law and Policy posted a link to an “astute recent Washington Post piece” reviewing the GOP’s platform on crime after the RNC convention. The piece compares GOP criminal justice policies and ideals to those of yesteryear. The bottom line: Republicans are softer on crime. Here are a few snippets:
Policy experts agree that the omission [of the War on Drugs from the GOP platform] is significant. “This is less a ‘tough on crime’ document than you would have expected. And leaving out the War on Drugs [is] quite astounding,” says Mark Kleiman, a crime policy expert and professor at UCLA. “It’s a bit more of a libertarian attitude,” says Marc Levin, who runs a conservative criminal justice reform project called “Right on Crime” that’s attracted the support of Newt Gingrich and Grover Norquist.

What’s more, the 2012 platform includes new provisions that emphasize the importance of rehabilitation and re-entry programs to help ex-prisoners integrate back into society—using language that Kleiman describes as “a lot less ‘lock ‘em up and throw away the key.’” “While getting criminals off the street is essential, more attention must be paid to the process of restoring those individuals to the community,” the platform says. “Prisons should do more than punish; they should attempt to rehabilitate and institute proven prisoner reentry systems to reduce recidivism and future victimization.” The document also criticizes the “overcriminalization of behavior,” though it doesn’t elaborate on the point much further.

Both Kleiman and Levin believe it’s partly the outgrowth of a prison-reform push on the part of GOP governors whose state budgets have been saddled with high incarceration expenses. In recent months, Pennsylvania Gov. Tom Corbett, Ohio Gov. John Kasich, and Gov. Chris Christie have embraced crime reform legislation to support the kind of rehabilitation programs that the GOP platform now advocates, with some also reducing jail time for non-violent offenders. Conservative reformers like Levin are heartened by the changes. “We’ve gone a long way in four years,” he says, crediting the growing interest in more cost-effective ways to tackle crime.

This is not a coincidence. A coalition of conservative politicians, including recent signatory Jeb Bush, identifies as “right on crime“. The emphasis is on being fiscally prudent, which this post, again analyzing the RNC and the resulting platform, calls “reapplying basic conservative principles” to criminal justice. Yes, there are some punitive ideals advocated by the GOP – most notably with reference to gang conspiracies – but being comfortable 
Who else feels comfortable being less belligerent on drugs? Well, Pat Robertson, for one. But if you want to get more serious, that the father of classic market economics (and inspiration of the Reagan Administration)Milton Friedman would find marijuana prosecutions a waste of resources is perhaps not surprising, but the timing of this review, and the focus on revenue, means that these times call for new approaches among conservative politicians.
I’ve focused on conservative politicians so far, but the same analysis applies to progressive ones. In 2007, when Simon wrote Governing Through Crime, progressive politicians could not afford to be “soft on crime.” That hasn’t changed. What has changed is that progressive politicians, like conservative ones, apply to financial prudence as reasoning. One interesting example is the marketing of Prop 19 (“regulate, control and tax marijuana”), which failed at the ballot, as a revenue-enhancing proposition. I spoke to folks at Tom Ammiano’s office; going into the election, support for the proposition significantly rose when they marketed the proposal as revenue enhancing. There is some indication that the proposition’s failure was due to its vague tenets (leaving the mechanisms of sales up to the individual counties) rather than due to the basic idea.
To sum up: I don’t thin politicians have become ideologically soft on crime. But the crisis is giving them a license to be cheap on crime, in a way that appears more genuine and does not damage their credibility.
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Cross-posted to PrawfsBlawg.

Prop 34 – Death Penalty “Replacement” and the Money Argument

This month, my posts here will be cross-posted at PrawfsBlawg. 
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As a first post, I want to introduce a voter initiative on the November ballot – Prop 34, also known as the SAFE California Act – and talk a little bit about incremental change and “marketing techniques” for soft-on-crime propositions.
Jonathan Simon, Katherine Beckett and more recently Vanessa Barker told it like it is: Regardless of a politician’s party affiliation, presenting oneself as soft on crime is akin to political death (interestingly, Kamala Harris, who as San Francisco DA was opposed to the death penalty, called her book Smart on Crime). Bringing up propositions for leniency using human rights discourse is an unacceptable thing to do in American politics. But, as I discuss in the book, the last few lean years have had a silver lining: Scaling back punitive policies becomes more acceptable if done in the guise of financial prudence. So, in recent years we see some developments that are swinging back the punitive pendulum that has been moving in one direction for forty years. We’re seeing more talk of drug legalization and decriminalization; we’re hearing more talk of priorities in prosecutorial offices; and we’re discussing categories of offenders based on their cost, such geriatric parole of the old and the infirm.
One manifestation of these developments is a recent trend of death penalty abolition or, in the least, moratoria. Over the last year alone, five states have abolished the death penalty, citing its costs as a main factor, and bringing the number of no-death-penalty states to 17. After a legislative effort to do the same in CA failed, a public movement consisting of a coalition between activists, new non-punitive victim groupsand law enforcement supporters managed to obtain the necessary 750,000 signatures to place the proposal on the ballot as a voter initiative.
I can’t engage in prophecies as to the outcome in November, but Prop 34 has been fairly successful so far in winning endorsements from newspapers, public organizations, former supporters of the death penalty, and important public figures in law enforcement. And I think the reason they have managed to appeal to so many different constituents has a lot to do with their remarketing of the death penalty as costly and unaffordable. Their printed and online materials refrain from using the word “abolition” but rather use the term “replacement” (funny enough, many friends of mine have not jumped on the wagon because they are uncomfortable with the movement’s extolment of life without parole anddo not believe in incremental reform.) Their activists and volunteers are advised to stay away from denouncing the death penalty as barbaric and inhumane, but rather to argue for its expense and inefficiency. Watch how this video, ofr example,  emphasizes the issue of cost. The cost factor may also partially explain the recent decline in public support for the death penalty in CA.
This sort of newspeak isn’t really new. Nonpunitive propositions are often marketed as “smart” (which they often are!). What’s new here is the emphasis on money.
Elsewhere, I talked about the changing discourses in anti-death-penalty activism. The intellectual, Enlightenment-era conversation about its merits and pitfalls, which was so powerful and influential in Europe despite being a top-down intellectual experience rather than a public conversation, didn’t really happen seriously in the United States. Our first serious conversation about this happened in the 1970s, with the period of moratorium between Fuhrman and Gregg. And then, much of the conversation revolved around deterrence. Then, with the emergence of DNA testing and innocence projects, the conversation turned to wrongful convictions and the irreversibility of mistakes (see more about the exoneration process in Brandon Garrett‘s new book.) And now, the discourse focuses on cost and savings.
And there’s one more thing to consider: In most countries, as Frank Zimring and David Johnson eloquently showed, once the death penalty goes away, it doesn’t come back. But American exceptionalism, as David Garland points out, cannot be discounted. And, in the United States, the death penalty did return after four years of constitutional moratorium. Assuming Prop 34 passes (and, being a huge believer in incremental reform, I very much hope it does), would we bring back the death penalty when the economy improves?

Book Review: Last Call by Daniel Okrent

I’m very much looking forward to my seminar today, in which we’ll be discussing Daniel Okrent‘s recent book Last Call, a detailed, vivid, darkly humorous and politically insightful analysis of the rise and fall of Prohibition. I can’t recommend it enough, and very much hope my students enjoyed it as much as I did.

In Last Call, Okrent provides an informed history of the emergence of Prohibition. Contrary to some popular notions, according to which the temperance movement was largely a religious movement, prohibition was the result of a narrow coalition between a variety of social and political groups with conflicting political interests, all of which were served in this way or another by a ban on alcohol consumption. The most important and surprising of these allies was the movement for women’s suffrage; in fact, many of the important heroines of the suffragette movement joined the cause so that a vote could be cast against alcohol. Alcohol consumption was directly related to gender issues, as the United States had been, for years, awash with drink, and saloon culture was tied to domestic violence, squandering of the family budget, and prostitution. But there were other interesting allies as well. Racism found a home in the temperance movement, as well; just as with the criminalization of drugs, some concerns about alcohol were dressed as the fear of the hypersexualized black, violent man, while other concerns arose in the context of Irish Catholics. And, as with various criminalizing “wars” of later times, the deeply-felt effects of World War I, before, during and after the war, played into the debate, fueling an antipathy toward Germanism, which manifested itself as antipathy toward German distillers and brewers.

The delicate dance between taxing and criminalizing vices, which we spend so much time reflecting on in the context of narcotics, was very present in the Prohibition debate. In fact, the passage of the Eighteenth Amendment was facilitated by a prior revival of the alcohol excise tax. As with the Harrison narcotics act, any form of ceding ground of individual freedoms and making them subject to federal regulation later allowed greater curtailment of these rights, resulting in one of the two only constitutional amendments forbidding people from doing something (the other one is slave ownership.)

We all know, of course, that prohibition failed, and that it had something to do with lax enforcement and with an underworld economy of booze; but Okrent’s book provides enormous insight into how lax enforcement was. Not only was manpower limited and the ability to follow up the powerful underworld economy therefore limited, but the government actually created rather wide exceptions to prohibition. The book’s delving into the world of “medical alcohol” will remind many Californian readers of the medical marijuana regime.

Was prohibition a success or a failure? We tend to regard it as a failure. But I think that, given the immense obstacles in the way of criminalizing a so-called victimless crime, nation-wide, the coalition for prohibition was an astonishingly successful enterprise. That, for a moment in time, racists and progressive working unions, suffragettes and anti-immigrant activists, managed to put their differences aside and lobby for a change in law, is nothing short of astonishing, and very hard to imagine in today’s partisan, polarized political world. In some ways, it makes it more interesting to watch the upcoming elections in November, to see whether Prop 34’s proponents will be successful in their efforts to get together former correctional staff, law enforcement officials, victim organizations and inmate rights groups to support the replacement of the death penalty with life without parole.

As a coda, enjoy this witty interview of Okrent on The Daily Show.

The Daily Show with Jon Stewart Mon – Thurs 11p / 10c
Daniel Okrent
www.thedailyshow.com
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Trust, Law Enforcement, and Power: Nostalgia for a Past that Never Was

In the last few days I have been taking breaks from editing a piece by watching old episodes of the classic TV series Mission: Impossible. The premise, for the few readers who are unfamiliar with it, is that a special team of spies receives an assignment, usually involving a foreign nation (depose a dictator, release a political prisoner, unfix the elections), which they execute using disguise, technology, and sophisticated understanding of the internal politics of their adversary. With no support from official American law enforcement or the Department of State, they operate in the shadows.

I’ve been trying to think what about this is so soothing and appealing to me, beyond the sophistication of the plan, the assumed credibility of the technology, and Lalo Schiffrin‘s excellent soundtrack, and I think I’ve got it. It evokes a feeling of nostalgia for a past that never was; a past in which good and evil are clearly delineated in the opening sequence, and in which our secret service works for the undisputed good while we all sleep soundly in our beds. A past in which power is never abused, but tempered with talent and an old-fashioned gentlemanly code. A past in which the United States is a benevolent patriarch, deftly and subtly governing its childlike counterparts. A past in which women and people of color play cameo roles in the world of secret service, and women are praised and utilized for their sexual appeal without complain or critique.

The problem is that this past never existed. In the late sixties, when this show aired on American television, the US was already angling toward a questionable and destructive elective war in Vietnam, and was already involved in fixing (not unfixing!) the elections in various foreign countries, not to mention the ones it was yet to fix. Involvement in attempted and successful assassinations of foreign politicians and dignitaries has been, since then, clearly documented. And let’s not even start discussing foreign military interventions.

 How comforting it was to live in the Mission: Impossible world, in which these developments could be either disbelieved or explained away as benevolent and necessary. Which just makes the courage of people like Daniel Ellsberg, who actually saw what was what and brought it into the realm of public consciousness, all the more impressive.

And then something very important has dawned on me. Many of us still live in that world. Much of the police brutality and correctional abuse of power that has been going on in the last four decades has occurred precisely because we still want to hold on to the belief that government agents, domestic or international, are at the forefront of keeping us safe, would never do anything unnecessary, and can always put disinterested, neutral professionalism and patriotism ahead of self interest.

In that respect, there is little difference between international and domestic security. If we’re willing to give a carte-blanche to our special agents abroad, we’ll also extend this courtesy to agents at home who present their work as “the toughest beat.”We’ll disbelieve the possibility that people might be getting shot because of their race and because of unchecked, biased assumptions, because it’s inconvenient to think so. Because if we start doubting our police force, and our correctional staff, we’ll have to stop sleeping soundly in our beds, and realize that many things – not only in far-away countries – have gone horribly awry.

Bill Allowing Resentencing of Lifer Juveniles Passes Assembly

Excellent news: SB9 – a Senate bill allowing lifer juveniles to have their life without parole sentence reevaluated by a judge – has passed the California Assembly.

This is a major achievement. Leland Yee has been pushing this issue for years. The full text of SB9 is here. And there is more information on the Fair Sentencing for Youth website.

In order to pass, the bill needs to be reaffirmed by the Senate (which has already approved it) and signed into law by the Governor, who is already being pressured by opposition groups.

Here’s what you can do to help: Click here to contact the Governor, and your Senator, and express your support for the bill.

And: Regarding our last post – the California Supreme Court has done the right thing. In CA v. Caballero, the Court has held a 110-year sentence to violate Graham v. Florida. This case joins CA v. Mendez, in which the Court struck down a 84-year sentence for a juvenile who did no harm.

Once you’ve emailed your Senator and the Governor, rejoice with all Californians who believe that everyone, especially at a very young age, should be offered a glimmer of hope and redemption.

Book Review: Malcolm X: A Life of Reinvention by Manning Marable

For years I have been assigning portions of the classic Autobiography of Malcolm X, as told to Alex Haley, to my Theoretical Criminology students. Whenever we discussed race and crime, and the prison industrial complex, we came back to the prison as a locus of political rebirth and resistance, and the Autobiography provided a convenient literary vehicle to start the discussion. I feel deeply enriched by this new, inclusive and fascinating volume, which sheds light from multiple perspectives on Malcolm X’s life, and particuarly for illuminating corners that the Autobiography has missed.

Manning Marable, who sadly passed away from grave illness days before the biography was finished, spent years reading countless archival materials and interviewing important figures in Malcolm’s life to provide us with a complicated picture of the man and his ideology. As the title suggests, Marable’s narrative organizes Malcolm’s life around the numerous transformations of his worldview and image.

Some of the focus on the book has related to Marable’s revelations about Malcolm’s personal life, which provide much more detail and accuracy than in the Autobiography. The book lays out a rich introduction about Malcolm’s family, his father’s murder, and the ways in which his childhood experience had shaped his political thinking. Even in the years preceding his conversion to Black Islam, he was not an apolitical man living in an intellectual vacuum; rather, even his early thinking was heavily influenced by the Garveyism with which he grew up. Of special interest to readers of thsi blog will be Marable’s account of Malcolm’s career in crime, which apparently was significantly aggrandized for rhetorical purposes. Marable does not shy from details about Malcolm’s intimate life and relationships, with particular emphasis on his trouble marriage to Betty Shabazz. It is this part of the book, presumably, that led his daughter, Ilyasah, to resent the publication to the point of giving this agitated interview to NPR. But I find those details less of interest, except to the extent that they illustrate what should be obvious: that the pop culture icon is but one facet of a complicated man, with virtues and flaws, like the rest of us. To me, that does not make Malcolm’s life’s work any less revolutionary and astounding. What is more interesting, politically and ideologically, is the astounding series of transformations Malcolm went through, cut short by his tragic assassination.

Marable’s account of Malcolm’s career in the Nation of Islam highlights the complexities of working within a deeply hierarchical organization. A nuanced analysis of Malcolm’s speeches during this time, including the infamous “chickens come home to roost” comment (finally put in context) reveals his struggle between being his own person and his loyalty to Elijah Muhammad. It also reveals the inner workings of the organization, complete with power plays at the different Mosques and at the Chicago headquarters, and the ways in which Malcolm’s charisma and quick ascension to power frightened the people who initially nurtured and revered him. Similarly, the book shows the unraveling of Malcolm’s relationship with Muhammad and the process of his ousting from the Nation of Islam as a mix of ideological and ethical issues. Previous accounts of the unraveling of Malcolm’s relationship with Nation of Islam have focused on his disgust with Elijah Muhammad’s sexual escapades and his treatment of his numerous mistresses and illegitimate children, but have glossed over Malcolm’s gradual understanding of the serious flaws in a program of Black separatism and apolitical stance. Marable provides blow-by-blow accounts of Malcolm’s debates on the media with civil rights advocates, particularly Bayard Rustin, exposing the strengths and weaknesses in Malcolm’s program. Beyond the personal and ethical issues he might have had with Muhammad’s personality or with the Nation of Islam’s theology (to which he was gradually exposed as he became better acquainted with mainstream Sunni Islam), these accounts show that his parting from the Nation was a natural consequence from his growing understanding that political action was essential.

Particularly precious are Marable’s detailed accounts of Malcolm’s trips to Africa and the Middle East. Relying on numerous interviews, letters and Malcolm’s own journal, we see him go through a series of intellectual transformations, embracing racial inclusiveness, and coming to see the challenges of race in America through the prism of international human rights. This progression of ideas was too quick-paced for Haley to be able to fully capture in a book written and published in 1965, but from the vantage point of later times we are able to appreciate that Malcolm was still undergoing important ideological and spiritual changes as he was struggling to construct a platform for activism. These changes – particularly his embrace of Pan-Africanism and universal Islam as detached from skin color, and his interest in presenting the case for American Blacks on the international stage – were naturally confusing to his followers, who remained behind when he was on his trips, and who were for the most part people who remembered him well from his Nation of Islam days and still embraced, at least partly, the old ideology. This phase of confusion, which was never fully over, was enhanced by the tensions between Malcolm’s two post-Nation-of-Islam organizations: Muslim Mosque, Inc., and the secular, human-rights oriented Organization of Afro-American Unity. Marable aims at sketching some possible directions that these organizations might have taken if not for Malcolm’s death.

Finally, the book provides a prism of perspectives on the assassination, strongly suggesting that the wrong people were apprehended and pointing at some directions to reveal the full assassination plot  that have not been adequately investigated; it was Marable’s hope that the book would lead to a reopening of the murder investigation.

How does Marable’s book change the experience of reading the Autobiography? As Marable himself points out, the best way to read and appreciate the Autobiography is as a memoir rather than a work of documented truth. Readers of the Autobiography are advised to keep in mind that Haley was not without his own perspective on Malcolm, and that both he and Malcolm had important agendas when creating the Autobiography. It is also important to keep in mind the timing of the Autobiography’s publication, which explains why the fascinating transformations that followed Malcolm’s departure from Nation of Islam are left, for the most part, without serious treatment in the Autobiography. I think that reading the two books as companions provides a thoroughly rich experience, one that does justice to an important and enigmatic leader whose legacy informs many of the struggles we still face today, including the struggle near and dear to our readers’ hearts–the struggle for social and racial justice in the context of mass incarceration.

The Price of Partisanism and the End of Public Debate

Dear readers – this post is more of a personal reflection than a news item. I hope you will forgive the indulgence.

As you know, I’m in the process of putting together a benefit concert for SAFE California. I posted a link to the event page on Facebook, and invited everyone I could think of who lives in the San Francisco Bay Area. I hesitated to invite folks who disagreed with the message, but figured that I would be inclusive in the invitations and allow people to make up their own minds as to whom they would like to support.

A Facebook friend who is a former student declined the invitation and posted the following, verbatim:

“I would rather perform a labotomy [sic] on myself with a rusty butter knife than support this idiotic cause.”

After the initial personal shock – I think highly of my former student and our interactions in school had always been respectful despite our deep disagreements about criminal justice policy – I started thinking a bit about the pros and cons of framing issues through the broad, but shallow, prism of cost.

What the death penalty debate was in the European Enlightenment era – and should have been here – was a debate about the limited powers of the state, about proportionality in punishment, about retributivist and utilitarian punitive goals. We could fundamentally disagree on those perspectives, but all opinions could be heard and respected, and we would have a deep understanding of where our disagreements lay. I might not be a believer in retributivism, and I might think that many victims just suffer more through the capital punishment appellate process, but I understand why people value retributivism on a philosophical level, and I also understand that some victims do feel closure after the person who murdered their loved ones is executed. I still think the death penalty is rotten policy that has no place in modern life in its present form, but I don’t think that those who disagree with me are out of their minds.[1] Nor do I think we’re nearly done with that aspect of the debate.

In some ways, shifting the debate to issues of cost and technologies ameliorates these fundamental disagreements about the moral and ethical aspects. We don’t have to talk about human rights or retribution or victims’ feelings, because we can talk about money.

But money doesn’t make those big issues go away. It just buries them deep underground, so we can avoid discussing the real issues. And so, we lose our practice in respectfully debating our positions, our civil discourse muscles atrophy, and when we do lash out – usually on the Internet, because we’re oh-so-polite race to face – the rudeness and disrespect are overwhelming.

I understand the power of the fiscal argument. After all, I’m writing a book about the power of the fiscal argument and the immense systemic transformation it is already generating. It can convince conservative folks who believe in fiscal prudence to swing back the punitive pendulum, and it has already convinced many. But I think it’s an open question whether we’re paying a dear price for it. We’re giving up the opportunity to have a serious, thorough public debate about a fundamental moral question, and by doing so, we’re keeping, and perhaps deepening, our resentment and possibly hatred of our fellow Californians (those behind bars and those who disagree with us, regardless of where we stand.)

Perhaps the money argument isn’t as shallow as it seems. American independence started off with a quibble about empowerment and representation, but it was framed as a tax debate. We often use money as a proxy for values; as in, how much we are willing to spend on various causes and services represents how we feel about the order of social priorities. In that respect, attending a fundraiser for a cause is a proxy for supporting that cause. The problem is, though, that it isn’t the same. While money indicates our support of a cause, discussions of money don’t explain why we support it. We are impoverished in intangible way by creating a shallow discourse to appeal to the heart of the consensus. And in the process, we relegate our interactions with our fellow human beings to two categories: Either we agree on superficial issues that we don’t care about. or we’re at each other’s throats without respect or dignity over things we do care about.

I would like to live in a world in which I can have immense disagreements with others and argue with them passionately while not losing sight of the humanity and dignity of the other party to the conversation, and I know that my former student (who graciously apologized after I pointed out that we could disagree without being rude) would like to live in that world as well. And I want that world to exist outside my classroom (which is a small start.).

What do you think? Which of the other party’s arguments in the death penalty debate are you willing to respect, if not agree with?

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[1] There are some debates – very few, for me – in which I can see no merit whatsoever to the other party’s position. Same sex marriage is a good example. But the death penalty does not fall into that category for me.

Recount and Felon Disenfranchisement

Movie poster courtesy Tampa Bay Times

Last night I finally saw the 2008 HBO movie Recount. It is a docudrama about the aftermath of the 2000 Bush/Gore election, from the first reports of the results up to the Supreme Court decision in Bush v. Gore.

I arrived in the United States in July 2001, to a shell-shocked Berkeley, where the wall-to-wall consensus was that the election was stolen by Bush supporters and that Al Gore was the President-in-exile. The confusion and rage intensified shortly after my arrival by the 9/11 terrorist attacks. I was a newcomer, and for the life of me, could not figure out who had voted for Bush; I was yet to realize how deep the rift was and how partisanship wrecked and hollowed American politics. So, it was a fascinating experience to see a retelling of the story of that election, with the last twelve years in mind; much of what we experience politically today can date back to that fateful election.

What stuck out for me, though, was not so much the righteousness of one side or other; I entirely believed Ted Olson’s integrity when he said, with a straight face, to a room full of Bush supporters, that Bush had won each and every one of the recounts. Instead, what filled me with rage was the cynical use the Florida state apparatus made of felon disenfranchisement laws.

In the film, a Democratic party volunteer knocks on a door. A guarded, sad man opens the door. The volunteer asks for his name. “Yeah?” says the man. “You were turned away at the ballots this election, right?” The man replies in the affirmative, his face ashen and disaffected. “I’m Jeremy Bash from the Democratic party. Can we talk?” Says the volunteer, and the man lets him in.

It turns out that, in Florida’s enthusiasm to deny the vote to its formerly incarcerated citizens, the list makers included many non-felons in the list. The outrage among the ranks is palpable.

But the strongest scene, for me, is the ending scene of the movie. Bush’s acceptance speech is shown on TV, and as he addresses the people who did not vote for him, he promises to be their president, too, and to earn their respect. The camera moves around the room, showing the man turned away at the ballots on wrong information of his being a felon. His face is hard to read, but it seems to betray a web of complex emotions: Rage? Disbelief? The first seeds of disaffection, disengagement, dissent? The deep realization that he was locked out of his country’s political process, robbed of the choice to vote for either of the candidates?

This scene speaks volumes for me as we’re getting ready for a hearing before the California Court of Appeals with regard to the right to vote for post-realignment inmates in California jails, and for folks on community post-release supervision. And it is gaining importance as we begin to experience the 2012 presidential campaign. We think that the California bureaucratic apparatus has wrongly interpreted the California constitution to deny felons, whether they are in prison or in jail, the right to vote. Not only does this interpretation fly in the face of the intent behind realignment–a new world of community corrections–but by denying civic integration, it is a barrier to re-entry and a successful welcoming back to society.

Inmates have an important voice of their own and important insights into the criminal process and public expenditure. Some of you may recall a series of posts, like this one and this one, that appeared on the SF Bay Guardian by Just A Guy, an inmate with a keen eye for big-picture politics and economics. This is an important voice that needs to be heard. And, as Jeff Manza and Christopher Uggen have repeatedly proven, this voice can make or break an election (and would, indeed, have reversed the 2000 election, as well as another Presidential election and eight Congressional elections.) Thinking about yesterday’s film reinforced my conviction that I would fight for enfranchisement no matter what direction the projected vote would go; it’s no coincidence, however, that inmates and parolees, disproportionately poor and of color, would vote against the regime that subjected them to lengthy, punitive, dehumanizing and unnecessary prison sentences under abysmal conditions.

Florida no longer uses the flawed list that played such an important part in 2000, and that had such disturbing racial implications.

The movie, regardless of your political stance and sentiments about the 2000 elections, is terrific and highly recommended.