2012-04-26 "Few borrowers applying for foreclosure reviews" by Kathleen Pender
[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/04/25/BUKM1O912M.DTL]
If foreclosure irregularities are as widespread as regulators, consumer advocates and Occupy protesters say, why have so few borrowers jumped at the chance to have their foreclosures reviewed and receive compensation if they were financially harmed?
That's one of the big conundrums of the foreclosure mess.
In response to the robosigning scandal and other issues, federal banking regulators last year ordered 14 mortgage servicers to send a letter to every borrower whose primary residence was in any stage of the foreclosure process in 2009 or 2010 and give them the opportunity to have their case reviewed by an independent auditor at no charge. To get the free review, borrowers have to submit a five-page form.
If the reviewer determines the borrower suffered "financial injury" resulting from "errors, misrepresentations or other deficiencies" during the foreclosure process, the servicers must provide "compensation or other remedy" to the borrower, according to the Office of the Comptroller of the Currency and the Federal Reserve, which ordered the review process. Borrowers do not have to be out of the house to be eligible.
Only 3% want review -
The letters went out to 4.3 million people in November and December, but only 3 percent have requested a review. Less than 6 percent were returned as undeliverable.
The response was so low that regulators extended the application deadline by three months, to July 31. They also ordered servicers to send a second mailing in June and mount another public awareness campaign.
Some people say the tepid response proves that foreclosure errors were rare.
"While the response rate is lower than the regulators had hoped, it is not out of line with expectations of some observers," Bank of America spokesman Rick Simon said in an e-mail.
BofA identified 1.3 million customers in the foreclosure pipeline in 2009 and 2010. "We believe the processes and basis for foreclosures were accurate in the vast majority of these cases, and to the extent customers recognize that is their situation, we would not expect a large percentage to respond to the (independent review) process," Simon adds.
Others say foreclosure errors were rampant but the review offer was poorly publicized, hard to understand and indistinguishable from the flood of junk mail people in foreclosure get from outfits - sometimes posing as government agencies - offering mortgage assistance for a fee.
"The letter came to me, but I was so overwhelmed with all these groups trying to sell you services, I may have destroyed it," says Clarindo Gomes, who was denied a modification in 2009 and was proceeding with a short sale when his house was sold in foreclosure on March 7.
Gomes decided to apply for a foreclosure review this week at independentforeclosurereview.com.
People can also request an application by calling (888) 952-9105. The form is not posted online because regulators don't want scammers to copy it.
Bryan Hubbard, a spokesman for the comptroller's office, says he "would not want to speculate" on why so few people responded to the offer. "We are not targeting a specific response rate. We want to make sure this process has the credibility it needs," he says.
Some have questioned how independent the system will be because the reviewers - companies such as Deloitte, PricewaterhouseCoopers and Promontory Financial - are hired and paid by the banks.
So far no borrowers have received a dime from the program. Remedies could range from "a few hundred dollars for minor errors to more than $100,000 plus interest in the most egregious cases where people were wrongfully foreclosed and lost their home," Hubbard says. He adds that if the payment is large, consumers might have to give up their right to other settlements.
Paul Leonard of the consumer group Center for Responsible Lending says, "The communication and outreach functions of this program so far have been plagued by a number of problems. They haven't done a good job of announcing it, penetrating the mass media, telling people to expect it and what the program will offer."
Holiday season -
Most of the letters went out between Thanksgiving and Christmas, the busy holiday season. And there was no testing of the mailing to see if consumers would open or understand it. "The letter looked very formal. The reading level was for college-educated folks," Leonard says.
The form gives several examples of situations that might have led to financial injury, such as "The mortgage balance amount at the time of the foreclosure action was more than you owed," "You were doing everything the modification agreement required but the foreclosure sale still happened," or "Fees charged or mortgage payments were inaccurately calculated, processed or applied."
But the mailing does not explain what kind of compensation people might get.
"There is a lack of clarity around what compensation means," says Helene Raynaud, vice president of development with the National Foundation for Credit Counseling.
The foundation, an association for consumer credit counseling agencies, is one of 11 nonprofit organizations that got a total of $3 million in grants from Bank of America to help raise awareness of the independent review process. The foundation has set up a toll-free hotline - (877) 339-6322 - where consumers can "get additional information, find out if they are eligible and get assistance in submitting a request," says Raynaud. She admits that applying "is kind of a lot of work."
Tiffany Norman, a San Francisco lawyer who works with distressed homeowners, says most ignored the mailing because "they are really jaded by what's going on. Most of the people were trying to get a loan modification for a couple years, they turned in the same documents over and over. They don't really think the courts or the banks are going to do anything to help them, even though they say it's independent."
That describes Pamela Hall, who has been trying to get the mortgage on her San Leandro home modified for 2 1/2 years.
Although her loan is with Countrywide/BofA, she took the time to join a group - Alliance of Californians for Community Empowerment - that was protesting foreclosures outside of Wells Fargo's annual meeting in San Francisco Tuesday. Yet she didn't bother to return the review request last year.
"I figured why waste my time. Filling out paperwork hasn't worked so far," she says. "If Wells Fargo feels like something may have been done incorrectly, why not just modify me?"
Not feeling entitled -
Rick Harper, director of housing with the Consumer Credit Counseling Service in San Francisco, speculates that some homeowners didn't return the form because they don't feel entitled to compensation.
"If you knew you had missed your payments and lost your house because of it, you probably wouldn't think that maybe somebody had made a technical error in the way they foreclosed on you and therefore there may be some opportunity to have that unwound or maybe get some monetary gain," he says.
Others, he says, simply "want to put it behind them and go on."
Thursday, April 26, 2012
Saturday, April 21, 2012
Solidarity against inhumane business practices
2012-02-18 "Wal-Mart unleashes terror campaign at Elwood Warehouse"
[http://www.jasongooljar.com/2012/02/18/wal-mart-unleashes-terror-campaign-at-elwood-warehouse/]
When a warehouse in Elwood, IL violated Wal-Mart’s own ethics policies and denied workers the wages they have earned; instead of bringing justice to the situation Wal-Mart fired all 65 employees and let their contractor off scott-free. This occurred after the warehouse workers sued the contractor for wage theft [http://peoplesworld.org/fired-warehouse-workers-hold-walmart-accountable/]:
[begin excerpt]
Determined not to take it lying down, workers showed up Feb. 17 to fight back at a newly opened Walmart Express store here. And they brought with them a host of supporters from the public, including community, business, and political leaders.
[end excerpt]
I’d love to see these guys show up at major Wal-Mart stores all throughout the country. This can’t be the only instance of injustice against warehouse workers in the country either.
[http://www.jasongooljar.com/2012/02/18/wal-mart-unleashes-terror-campaign-at-elwood-warehouse/]
When a warehouse in Elwood, IL violated Wal-Mart’s own ethics policies and denied workers the wages they have earned; instead of bringing justice to the situation Wal-Mart fired all 65 employees and let their contractor off scott-free. This occurred after the warehouse workers sued the contractor for wage theft [http://peoplesworld.org/fired-warehouse-workers-hold-walmart-accountable/]:
[begin excerpt]
Determined not to take it lying down, workers showed up Feb. 17 to fight back at a newly opened Walmart Express store here. And they brought with them a host of supporters from the public, including community, business, and political leaders.
[end excerpt]
I’d love to see these guys show up at major Wal-Mart stores all throughout the country. This can’t be the only instance of injustice against warehouse workers in the country either.
Wednesday, April 18, 2012
Solidarity with your Neighbor!
Sean Williams' house has been foreclosed on!!!
[sewilliams55@aol.com]
Please pass on, need support in Suisun City for Tuesday
NEED SUPPORT ON TUESDAY APRIL 24, 2012, SOLANO COUNTY APPELLANT AT 4:00P.M. MOTION LIFT TO STAY CONTINUED UNTIL MAY IN BK COURT.
BANK WAS NOT ABLE TO LIFT THE STAY ON APRIL 16.
I HAVE ONE MORE MONTH TO STAY IN MY HOUSE.
[sewilliams55@aol.com]
Please pass on, need support in Suisun City for Tuesday
NEED SUPPORT ON TUESDAY APRIL 24, 2012, SOLANO COUNTY APPELLANT AT 4:00P.M. MOTION LIFT TO STAY CONTINUED UNTIL MAY IN BK COURT.
BANK WAS NOT ABLE TO LIFT THE STAY ON APRIL 16.
I HAVE ONE MORE MONTH TO STAY IN MY HOUSE.
Occupy Walnut Creek!
28th Consecutive Week!!!
Main Street Meets Wall Street at Occupy Walnut CreekMain Street and Mt Diablo Blvd (Bank of America)
Wednesday, 4:00pm to dark
The Occupy Wall Street movement continues in Walnut Creek with its “Main Street Meets Wall Street” demonstration at the corner of Main Street and Mt. Diablo Blvd (Bank of America).
There will be some signs available and also bring your own.
Vallejo GA weekly update
Howdy y'all, and Greetings of Solidarity,
We
are here, now, defending our way of life against the selfish few who
are remaking the entire system to suit their own greed for "the good
life" at the cost of anything we hold dear, such as peace, freedom, and a
fair deal. The same type of individuals who favor getting rid of Human
Rights also favor implementing a regime which enforces poverty and a
prison system larger than even the old Gulag of the USSR (footnote 1) with privatized
services and slave-labor for military contractors (footnote 2)... and that's just
the tip of the ice-berg of what we observe that is already going wrong
in California and the USA. It's time to sit up and think about how we
can change our
system, now, for the sake of all of humanity and ourselves here in the
San Pablo Bay.
We have been through it all, and we are ready to step up to help our neighbors, for the sake of ourselves.
We
can practice self-sufficiency through a network of solidarity, to
sustain ourselves in times of campaign and crises... we can support
people on strike, under foreclosure, under stress without daycare
options, seniors and disabled being evicted...
All it takes is Just Us.
Each
of you has the gift of having experienced some kind of civil
disobedience. In some way or another, we are all breaking the law, now,
we are all under suspicion, like in any other kind of fascist state. We
know what's been going on, since the days of Nixon the situation has
shown inflation, debasement, permanent ghettos, and
"trickle-down" economics, homelessness, skyrocketing autism and cancer,
wars without end both here at home and across the world...
YET WE CAN END THIS, here, locally and regionally, using the gift of solidarity. Each of us can only do so much, but what we can do together amounts to moving mountains.
YET WE CAN END THIS, here, locally and regionally, using the gift of solidarity. Each of us can only do so much, but what we can do together amounts to moving mountains.
*
Help research for a directory of solidarity groups we will post online
for all of us to have on hand. This resource directory would include
Fair Housing and Tenants Rights organizations, human rights campaigns,
unions, churches,
non-profits and others who share our interests at heart.
* Help with workshops on organizing solidarity, in which we shall invite members of groups we have researched to speak to us about tactics and opportunities for our cause.
* Write press releases notifying journalists about what's happening to us, and how we are dealing with it through using solidarity.
Ongoing campaigns:
* Occupy the Yard!
A homeless shelter in Vallejo has been foreclosed on, and need your solidarity to keep them going.
* Help with workshops on organizing solidarity, in which we shall invite members of groups we have researched to speak to us about tactics and opportunities for our cause.
* Write press releases notifying journalists about what's happening to us, and how we are dealing with it through using solidarity.
Ongoing campaigns:
* Occupy the Yard!
A homeless shelter in Vallejo has been foreclosed on, and need your solidarity to keep them going.
130 Jordan st. Vallejo CA 94591
They have public gatherings every Saturday, at 1pm. and are speaking at the upcoming Vallejo Mayday gathering at City Hall.
Upcoming events:
* 2012-04-20 (Friday), Occupy Earthday!
* 2012-04-20 (Friday), Occupy Earthday!
5pm, Richmond BART station and 6pm at Richmond Civic
Center
Vallejo Mayday!
* May 1st, Tuesday, at 10:30am until 12:30pm.
Gathering at the steps of Vallejo City Hall [555 Santa Clara Street, Vallejo, California 94590]
Speakers
from unions, colleges and the community. Music and Poets.
Carpool will be available for the journey to the massive Mayday gathering in Oakland at Fruitvale BART.
Location: 555 Santa Clara Street,Vallejo, CA 94591, on the Steps of City Hall.
"Mayday, Mayday! We, the People, are under distress!"
On May 1st, people of the Community, Students, and Labor across the USA are coming together in solidarity in defense of Human Rights and Freedom, to loudly express their desire for a system that works for the people. Unions are being broken, schools are being dumbed-down and converted to private management, homeless people are being terrorized while homes lay vacant…
In Solano county, we have seen an extremist political ideology taking root in Vallejo, one which serves the interests of real-estate agents and not those in need. Vallejo’s Mayor Osby Davis recently described his vision as Mayor: “Vallejo cannot help those in need, nor should it.” [2012-03-16 “Annual Prayer Breakfast” video from the Vallejo Faith Organization]. His administration is currently privatizing as many basic services as possible. This is same pattern happening across Solano County, which can be seen with amount of activity by the regional Tea Parties at the local government civic-services forums where they advocate for the abolishment of subsidies for seniors for public transportation, and other cruel and unusual punishments for people who are not of the upper class.
We, the People, say no more of that. We stand in solidarity for all the People.
We ask that you join us in solidarity on the steps of Vallejo City Hall.
* 3pm gathering at Fruitvale BART station in Oakland, with labor unions, students, parents, and everybody else.
Carpool will be available for the journey to the massive Mayday gathering in Oakland at Fruitvale BART.
Location: 555 Santa Clara Street,Vallejo, CA 94591, on the Steps of City Hall.
"Mayday, Mayday! We, the People, are under distress!"
On May 1st, people of the Community, Students, and Labor across the USA are coming together in solidarity in defense of Human Rights and Freedom, to loudly express their desire for a system that works for the people. Unions are being broken, schools are being dumbed-down and converted to private management, homeless people are being terrorized while homes lay vacant…
In Solano county, we have seen an extremist political ideology taking root in Vallejo, one which serves the interests of real-estate agents and not those in need. Vallejo’s Mayor Osby Davis recently described his vision as Mayor: “Vallejo cannot help those in need, nor should it.” [2012-03-16 “Annual Prayer Breakfast” video from the Vallejo Faith Organization]. His administration is currently privatizing as many basic services as possible. This is same pattern happening across Solano County, which can be seen with amount of activity by the regional Tea Parties at the local government civic-services forums where they advocate for the abolishment of subsidies for seniors for public transportation, and other cruel and unusual punishments for people who are not of the upper class.
We, the People, say no more of that. We stand in solidarity for all the People.
We ask that you join us in solidarity on the steps of Vallejo City Hall.
* 3pm gathering at Fruitvale BART station in Oakland, with labor unions, students, parents, and everybody else.
*
The Police may attack under a directive of suppression, so carry a
camera with you at all times for documentation. Remember, the Oakland
General Strike of last November was entirely peaceful, as was the
Westcoast "General Strike" of December. We are the People, and we are
peaceful with eachother.
* If you want to take Mayday off from work but want some backup in case your boss harasses you for doing it, be sure to check
out the flier attached to this email. The contact info from the flier is: "Call or text the tip line at 510.610.2512 or e-mail fireyourboss@hushmail.com". Download a printable copy of the flier here [http://www.indybay.org/newsitems/2012/04/17/18711478.php]
2012-01-16 "Hands Off Our Homes!" [http://handsoffourhomes.wordpress.com/]:
Support your neighbors!
End inhumane foreclosure practices!!
Advocate for a county-wide Foreclosure Moratorium!!!
And advocate for the enforcement of Vallejo’s vacant building code which holds banks accountable to upkeep properties they hold.
6:30 at Vallejo City Hall, during the City Council meeting on January 17th and 31st
For more information, contact:
“Hands Of Our Homes”: HOOH@lavabit.com
Joel Schor: 510-219-9489; dybenko@comcast.net
2012-01-16 "Hands Off Our Homes!" [http://handsoffourhomes.wordpress.com/]:
Support your neighbors!
End inhumane foreclosure practices!!
Advocate for a county-wide Foreclosure Moratorium!!!
And advocate for the enforcement of Vallejo’s vacant building code which holds banks accountable to upkeep properties they hold.
6:30 at Vallejo City Hall, during the City Council meeting on January 17th and 31st
For more information, contact:
“Hands Of Our Homes”: HOOH@lavabit.com
Joel Schor: 510-219-9489; dybenko@comcast.net
Sunday, April 1, 2012
USA prison culture
The main vector in perpetuating street gangs is the eternal domestic Drug War which allocates more resources for prisons and drug enforcement than for schools and local social safety nets. And there's only getting to be more people locked up in the system, leading to a hole in the fabric of society...
"US prison population 55% higher than USSR under Stalin" [http://www.dasmirnov.net/blog/us_prison_population_55_higher_than_ussr]
The US prison population now stands at around 2.3 million. This is around 800,000 higher than the PRC with around 1.5 million (with a total population of 1.3 billion) and around 55% higher than the number of prisoners in the USSR under Stalin, which peaked at 1,500,524 in January 1941. The level of crime and the levels of inequality in a society go hand in hand, statistically you are more likely to commit crime the more oppressed you are*. These numbers should be a stark reminder of how polarised the United States is becoming. Throwing more and more people in jail isn't a long term solution, tackling the causes of crime, such as crippling poverty rampant in many inner city areas in the US and shrinking the gap between rich and poor is. Many British politicians too, especially the Conservative Party should take note. Americans should ask questions, why does a country with 4% of the world's population have 25% of the world's prison population? Last year on the 1st of May millions of workers went out on strike, the actions of these people is the example all American workers should follow because only through their combined action can these problems be tackled. They can't be touched by voting in a different pro-business party, only by grass roots action with trade unions and a formation of a labour party upon them; with a radical program of social reforms, nationalisation and re-distribution of wealth can these issues be tackled. *Unfortunately the crimes the capitalists (and Lord Brown) commit screwing the workers with pay cuts and the theft of thousands and tens of thousands of pounds per year per worker in unpaid wages isn't recognised yet as being a crime, just good business.
2012-01-30 "The Caging of America: Why do we lock up so many people? by Adam Gopnik
[http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120130crat_atlarge_gopnik?printable=true¤tPage=all]
Six million people are under correctional supervision in the U.S.—more than were in Stalin’s gulags. Photograph by Steve Liss.
A prison is a trap for catching time. Good reporting appears often about the inner life of the American prison, but the catch is that American prison life is mostly undramatic—the reported stories fail to grab us, because, for the most part, nothing happens. One day in the life of Ivan Denisovich is all you need to know about Ivan Denisovich, because the idea that anyone could live for a minute in such circumstances seems impossible; one day in the life of an American prison means much less, because the force of it is that one day typically stretches out for decades. It isn’t the horror of the time at hand but the unimaginable sameness of the time ahead that makes prisons unendurable for their inmates. The inmates on death row in Texas are called men in “timeless time,” because they alone aren’t serving time: they aren’t waiting out five years or a decade or a lifetime. The basic reality of American prisons is not that of the lock and key but that of the lock and clock.
That’s why no one who has been inside a prison, if only for a day, can ever forget the feeling. Time stops. A note of attenuated panic, of watchful paranoia—anxiety and boredom and fear mixed into a kind of enveloping fog, covering the guards as much as the guarded. “Sometimes I think this whole world is one big prison yard, / Some of us are prisoners, some of us are guards,” Dylan sings, and while it isn’t strictly true—just ask the prisoners—it contains a truth: the guards are doing time, too. As a smart man once wrote after being locked up, the thing about jail is that there are bars on the windows and they won’t let you out. This simple truth governs all the others. What prisoners try to convey to the free is how the presence of time as something being done to you, instead of something you do things with, alters the mind at every moment. For American prisoners, huge numbers of whom are serving sentences much longer than those given for similar crimes anywhere else in the civilized world—Texas alone has sentenced more than four hundred teen-agers to life imprisonment—time becomes in every sense this thing you serve.
For most privileged, professional people, the experience of confinement is a mere brush, encountered after a kid’s arrest, say. For a great many poor people in America, particularly poor black men, prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones. More than half of all black men without a high-school diploma go to prison at some time in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today—perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal-justice system—in prison, on probation, or on parole—than were in slavery then. Over all, there are now more people under “correctional supervision” in America—more than six million—than were in the Gulag Archipelago under Stalin at its height. That city of the confined and the controlled, Lockuptown, is now the second largest in the United States.
The accelerating rate of incarceration over the past few decades is just as startling as the number of people jailed: in 1980, there were about two hundred and twenty people incarcerated for every hundred thousand Americans; by 2010, the number had more than tripled, to seven hundred and thirty-one. No other country even approaches that. In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education. Ours is, bottom to top, a “carceral state,” in the flat verdict of Conrad Black, the former conservative press lord and newly minted reformer, who right now finds himself imprisoned in Florida, thereby adding a new twist to an old joke: A conservative is a liberal who’s been mugged; a liberal is a conservative who’s been indicted; and a passionate prison reformer is a conservative who’s in one.
The scale and the brutality of our prisons are the moral scandal of American life. Every day, at least fifty thousand men—a full house at Yankee Stadium—wake in solitary confinement, often in “supermax” prisons or prison wings, in which men are locked in small cells, where they see no one, cannot freely read and write, and are allowed out just once a day for an hour’s solo “exercise.” (Lock yourself in your bathroom and then imagine you have to stay there for the next ten years, and you will have some sense of the experience.) Prison rape is so endemic—more than seventy thousand prisoners are raped each year—that it is routinely held out as a threat, part of the punishment to be expected. The subject is standard fodder for comedy, and an uncoöperative suspect being threatened with rape in prison is now represented, every night on television, as an ordinary and rather lovable bit of policing. The normalization of prison rape—like eighteenth-century japery about watching men struggle as they die on the gallows—will surely strike our descendants as chillingly sadistic, incomprehensible on the part of people who thought themselves civilized. Though we avoid looking directly at prisons, they seep obliquely into our fashions and manners. Wealthy white teen-agers in baggy jeans and laceless shoes and multiple tattoos show, unconsciously, the reality of incarceration that acts as a hidden foundation for the country.
How did we get here? How is it that our civilization, which rejects hanging and flogging and disembowelling, came to believe that caging vast numbers of people for decades is an acceptably humane sanction? There’s a fairly large recent scholarly literature on the history and sociology of crime and punishment, and it tends to trace the American zeal for punishment back to the nineteenth century, apportioning blame in two directions. There’s an essentially Northern explanation, focussing on the inheritance of the notorious Eastern State Penitentiary, in Philadelphia, and its “reformist” tradition; and a Southern explanation, which sees the prison system as essentially a slave plantation continued by other means. Robert Perkinson, the author of the Southern revisionist tract “Texas Tough: The Rise of America’s Prison Empire,” traces two ancestral lines, “from the North, the birthplace of rehabilitative penology, to the South, the fountainhead of subjugationist discipline.” In other words, there’s the scientific taste for reducing men to numbers and the slave owners’ urge to reduce blacks to brutes.
William J. Stuntz, a professor at Harvard Law School who died shortly before his masterwork, “The Collapse of American Criminal Justice,” was published, last fall, is the most forceful advocate for the view that the scandal of our prisons derives from the Enlightenment-era, “procedural” nature of American justice. He runs through the immediate causes of the incarceration epidemic: the growth of post-Rockefeller drug laws, which punished minor drug offenses with major prison time; “zero tolerance” policing, which added to the group; mandatory-sentencing laws, which prevented judges from exercising judgment. But his search for the ultimate cause leads deeper, all the way to the Bill of Rights. In a society where Constitution worship is still a requisite on right and left alike, Stuntz startlingly suggests that the Bill of Rights is a terrible document with which to start a justice system—much inferior to the exactly contemporary French Declaration of the Rights of Man, which Jefferson, he points out, may have helped shape while his protégé Madison was writing ours.
The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles—no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done—it talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life. You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong. Even clauses that Americans are taught to revere are, Stuntz maintains, unworthy of reverence: the ban on “cruel and unusual punishment” was designed to protect cruel punishments—flogging and branding—that were not at that time unusual.
The obsession with due process and the cult of brutal prisons, the argument goes, share an essential impersonality. The more professionalized and procedural a system is, the more insulated we become from its real effects on real people. That’s why America is famous both for its process-driven judicial system (“The bastard got off on a technicality,” the cop-show detective fumes) and for the harshness and inhumanity of its prisons. Though all industrialized societies started sending more people to prison and fewer to the gallows in the eighteenth century, it was in Enlightenment-inspired America that the taste for long-term, profoundly depersonalized punishment became most aggravated. The inhumanity of American prisons was as much a theme for Dickens, visiting America in 1842, as the cynicism of American lawyers. His shock when he saw the Eastern State Penitentiary, in Philadelphia—a “model” prison, at the time the most expensive public building ever constructed in the country, where every prisoner was kept in silent, separate confinement—still resonates:
I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers. . . . I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body: and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay.
Not roused up to stay—that was the point. Once the procedure ends, the penalty begins, and, as long as the cruelty is routine, our civil responsibility toward the punished is over. We lock men up and forget about their existence. For Dickens, even the corrupt but communal debtors’ prisons of old London were better than this. “Don’t take it personally!”—that remains the slogan above the gate to the American prison Inferno. Nor is this merely a historian’s vision. Conrad Black, at the high end, has a scary and persuasive picture of how his counsel, the judge, and the prosecutors all merrily congratulated each other on their combined professional excellence just before sending him off to the hoosegow for several years. If a millionaire feels that way, imagine how the ordinary culprit must feel.
In place of abstraction, Stuntz argues for the saving grace of humane discretion. Basically, he thinks, we should go into court with an understanding of what a crime is and what justice is like, and then let common sense and compassion and specific circumstance take over. There’s a lovely scene in “The Castle,” the Australian movie about a family fighting eminent-domain eviction, where its hapless lawyer, asked in court to point to the specific part of the Australian constitution that the eviction violates, says desperately, “It’s . . . just the vibe of the thing.” For Stuntz, justice ought to be just the vibe of the thing—not one procedural error caught or one fact worked around. The criminal law should once again be more like the common law, with judges and juries not merely finding fact but making law on the basis of universal principles of fairness, circumstance, and seriousness, and crafting penalties to the exigencies of the crime.
The other argument—the Southern argument—is that this story puts too bright a face on the truth. The reality of American prisons, this argument runs, has nothing to do with the knots of procedural justice or the perversions of Enlightenment-era ideals. Prisons today operate less in the rehabilitative mode of the Northern reformers “than in a retributive mode that has long been practiced and promoted in the South,” Perkinson, an American-studies professor, writes. “American prisons trace their lineage not only back to Pennsylvania penitentiaries but to Texas slave plantations.” White supremacy is the real principle, this thesis holds, and racial domination the real end. In response to the apparent triumphs of the sixties, mass imprisonment became a way of reimposing Jim Crow. Blacks are now incarcerated seven times as often as whites. “The system of mass incarceration works to trap African Americans in a virtual (and literal) cage,” the legal scholar Michelle Alexander writes. Young black men pass quickly from a period of police harassment into a period of “formal control” (i.e., actual imprisonment) and then are doomed for life to a system of “invisible control.” Prevented from voting, legally discriminated against for the rest of their lives, most will cycle back through the prison system. The system, in this view, is not really broken; it is doing what it was designed to do. Alexander’s grim conclusion: “If mass incarceration is considered as a system of social control—specifically, racial control—then the system is a fantastic success.”
Northern impersonality and Southern revenge converge on a common American theme: a growing number of American prisons are now contracted out as for-profit businesses to for-profit companies. The companies are paid by the state, and their profit depends on spending as little as possible on the prisoners and the prisons. It’s hard to imagine any greater disconnect between public good and private profit: the interest of private prisons lies not in the obvious social good of having the minimum necessary number of inmates but in having as many as possible, housed as cheaply as possible. No more chilling document exists in recent American life than the 2005 annual report of the biggest of these firms, the Corrections Corporation of America. Here the company (which spends millions lobbying legislators) is obliged to caution its investors about the risk that somehow, somewhere, someone might turn off the spigot of convicted men:
Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities. . . . The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.
Brecht could hardly have imagined such a document: a capitalist enterprise that feeds on the misery of man trying as hard as it can to be sure that nothing is done to decrease that misery.
Yet a spectre haunts all these accounts, North and South, whether process gone mad or penal colony writ large. It is that the epidemic of imprisonment seems to track the dramatic decline in crime over the same period. The more bad guys there are in prison, it appears, the less crime there has been in the streets. The real background to the prison boom, which shows up only sporadically in the prison literature, is the crime wave that preceded and overlapped it.
For those too young to recall the big-city crime wave of the sixties and seventies, it may seem like mere bogeyman history. For those whose entire childhood and adolescence were set against it, it is the crucial trauma in recent American life and explains much else that happened in the same period. It was the condition of the Upper West Side of Manhattan under liberal rule, far more than what had happened to Eastern Europe under socialism, that made neo-con polemics look persuasive. There really was, as Stuntz himself says, a liberal consensus on crime (“Wherever the line is between a merciful justice system and one that abandons all serious effort at crime control, the nation had crossed it”), and it really did have bad effects.
Yet if, in 1980, someone had predicted that by 2012 New York City would have a crime rate so low that violent crime would have largely disappeared as a subject of conversation, he would have seemed not so much hopeful as crazy. Thirty years ago, crime was supposed to be a permanent feature of the city, produced by an alienated underclass of super-predators; now it isn’t. Something good happened to change it, and you might have supposed that the change would be an opportunity for celebration and optimism. Instead, we mostly content ourselves with grudging and sardonic references to the silly side of gentrification, along with a few all-purpose explanations, like broken-window policing. This is a general human truth: things that work interest us less than things that don’t.
So what is the relation between mass incarceration and the decrease in crime? Certainly, in the nineteen-seventies and eighties, many experts became persuaded that there was no way to make bad people better; all you could do was warehouse them, for longer or shorter periods. The best research seemed to show, depressingly, that nothing works—that rehabilitation was a ruse. Then, in 1983, inmates at the maximum-security federal prison in Marion, Illinois, murdered two guards. Inmates had been (very occasionally) killing guards for a long time, but the timing of the murders, and the fact that they took place in a climate already prepared to believe that even ordinary humanity was wasted on the criminal classes, meant that the entire prison was put on permanent lockdown. A century and a half after absolute solitary first appeared in American prisons, it was reintroduced. Those terrible numbers began to grow.
And then, a decade later, crime started falling: across the country by a standard measure of about forty per cent; in New York City by as much as eighty per cent. By 2010, the crime rate in New York had seen its greatest decline since the Second World War; in 2002, there were fewer murders in Manhattan than there had been in any year since 1900. In social science, a cause sought is usually a muddle found; in life as we experience it, a crisis resolved is causality established. If a pill cures a headache, we do not ask too often if the headache might have gone away by itself.
All this ought to make the publication of Franklin E. Zimring’s new book, “The City That Became Safe,” a very big event. Zimring, a criminologist at Berkeley Law, has spent years crunching the numbers of what happened in New York in the context of what happened in the rest of America. One thing he teaches us is how little we know. The forty per cent drop across the continent—indeed, there was a decline throughout the Western world— took place for reasons that are as mysterious in suburban Ottawa as they are in the South Bronx. Zimring shows that the usual explanations—including demographic shifts—simply can’t account for what must be accounted for. This makes the international decline look slightly eerie: blackbirds drop from the sky, plagues slacken and end, and there seems no absolute reason that societies leap from one state to another over time. Trends and fashions and fads and pure contingencies happen in other parts of our social existence; it may be that there are fashions and cycles in criminal behavior, too, for reasons that are just as arbitrary.
But the additional forty per cent drop in crime that seems peculiar to New York finally succumbs to Zimring’s analysis. The change didn’t come from resolving the deep pathologies that the right fixated on—from jailing super predators, driving down the number of unwed mothers, altering welfare culture. Nor were there cures for the underlying causes pointed to by the left: injustice, discrimination, poverty. Nor were there any “Presto!” effects arising from secret patterns of increased abortions or the like. The city didn’t get much richer; it didn’t get much poorer. There was no significant change in the ethnic makeup or the average wealth or educational levels of New Yorkers as violent crime more or less vanished. “Broken windows” or “turnstile jumping” policing, that is, cracking down on small visible offenses in order to create an atmosphere that refused to license crime, seems to have had a negligible effect; there was, Zimring writes, a great difference between the slogans and the substance of the time. (Arrests for “visible” nonviolent crime—e.g., street prostitution and public gambling—mostly went down through the period.)
Instead, small acts of social engineering, designed simply to stop crimes from happening, helped stop crime. In the nineties, the N.Y.P.D. began to control crime not by fighting minor crimes in safe places but by putting lots of cops in places where lots of crimes happened—“hot-spot policing.” The cops also began an aggressive, controversial program of “stop and frisk”—“designed to catch the sharks, not the dolphins,” as Jack Maple, one of its originators, described it—that involved what’s called pejoratively “profiling.” This was not so much racial, since in any given neighborhood all the suspects were likely to be of the same race or color, as social, involving the thousand small clues that policemen recognized already. Minority communities, Zimring emphasizes, paid a disproportionate price in kids stopped and frisked, and detained, but they also earned a disproportionate gain in crime reduced. “The poor pay more and get more” is Zimring’s way of putting it. He believes that a “light” program of stop-and-frisk could be less alienating and just as effective, and that by bringing down urban crime stop-and-frisk had the net effect of greatly reducing the number of poor minority kids in prison for long stretches.
Zimring insists, plausibly, that he is offering a radical and optimistic rewriting of theories of what crime is and where criminals are, not least because it disconnects crime and minorities. “In 1961, twenty six percent of New York City’s population was minority African American or Hispanic. Now, half of New York’s population is—and what that does in an enormously hopeful way is to destroy the rude assumptions of supply side criminology,” he says. By “supply side criminology,” he means the conservative theory of crime that claimed that social circumstances produced a certain net amount of crime waiting to be expressed; if you stopped it here, it broke out there. The only way to stop crime was to lock up all the potential criminals. In truth, criminal activity seems like most other human choices—a question of contingent occasions and opportunity. Crime is not the consequence of a set number of criminals; criminals are the consequence of a set number of opportunities to commit crimes. Close down the open drug market in Washington Square, and it does not automatically migrate to Tompkins Square Park. It just stops, or the dealers go indoors, where dealing goes on but violent crime does not.
And, in a virtuous cycle, the decreased prevalence of crime fuels a decrease in the prevalence of crime. When your friends are no longer doing street robberies, you’re less likely to do them. Zimring said, in a recent interview, “Remember, nobody ever made a living mugging. There’s no minimum wage in violent crime.” In a sense, he argues, it’s recreational, part of a life style: “Crime is a routine behavior; it’s a thing people do when they get used to doing it.” And therein lies its essential fragility. Crime ends as a result of “cyclical forces operating on situational and contingent things rather than from finding deeply motivated essential linkages.” Conservatives don’t like this view because it shows that being tough doesn’t help; liberals don’t like it because apparently being nice doesn’t help, either. Curbing crime does not depend on reversing social pathologies or alleviating social grievances; it depends on erecting small, annoying barriers to entry.
One fact stands out. While the rest of the country, over the same twenty-year period, saw the growth in incarceration that led to our current astonishing numbers, New York, despite the Rockefeller drug laws, saw a marked decrease in its number of inmates. “New York City, in the midst of a dramatic reduction in crime, is locking up a much smaller number of people, and particularly of young people, than it was at the height of the crime wave,” Zimring observes. Whatever happened to make street crime fall, it had nothing to do with putting more men in prison. The logic is self-evident if we just transfer it to the realm of white-collar crime: we easily accept that there is no net sum of white-collar crime waiting to happen, no inscrutable generation of super-predators produced by Dewar’s-guzzling dads and scaly M.B.A. profs; if you stop an embezzlement scheme here on Third Avenue, another doesn’t naturally start in the next office building. White-collar crime happens through an intersection of pathology and opportunity; getting the S.E.C. busy ending the opportunity is a good way to limit the range of the pathology.
Social trends deeper and less visible to us may appear as future historians analyze what went on. Something other than policing may explain things—just as the coming of cheap credit cards and state lotteries probably did as much to weaken the Mafia’s Five Families in New York, who had depended on loan sharking and numbers running, as the F.B.I. could. It is at least possible, for instance, that the coming of the mobile phone helped drive drug dealing indoors, in ways that helped drive down crime. It may be that the real value of hot spot and stop-and-frisk was that it provided a single game plan that the police believed in; as military history reveals, a bad plan is often better than no plan, especially if the people on the other side think it’s a good plan. But one thing is sure: social epidemics, of crime or of punishment, can be cured more quickly than we might hope with simpler and more superficial mechanisms than we imagine. Throwing a Band-Aid over a bad wound is actually a decent strategy, if the Band-Aid helps the wound to heal itself.
Which leads, further, to one piece of radical common sense: since prison plays at best a small role in stopping even violent crime, very few people, rich or poor, should be in prison for a nonviolent crime. Neither the streets nor the society is made safer by having marijuana users or peddlers locked up, let alone with the horrific sentences now dispensed so easily. For that matter, no social good is served by having the embezzler or the Ponzi schemer locked in a cage for the rest of his life, rather than having him bankrupt and doing community service in the South Bronx for the next decade or two. Would we actually have more fraud and looting of shareholder value if the perpetrators knew that they would lose their bank accounts and their reputation, and have to do community service seven days a week for five years? It seems likely that anyone for whom those sanctions aren’t sufficient is someone for whom no sanctions are ever going to be sufficient. Zimring’s research shows clearly that, if crime drops on the street, criminals coming out of prison stop committing crimes. What matters is the incidence of crime in the world, and the continuity of a culture of crime, not some “lesson learned” in prison.
At the same time, the ugly side of stop-and-frisk can be alleviated. To catch sharks and not dolphins, Zimring’s work suggests, we need to adjust the size of the holes in the nets—to make crimes that are the occasion for stop-and-frisks real crimes, not crimes like marijuana possession. When the New York City police stopped and frisked kids, the main goal was not to jail them for having pot but to get their fingerprints, so that they could be identified if they committed a more serious crime. But all over America the opposite happens: marijuana possession becomes the serious crime. The cost is so enormous, though, in lives ruined and money spent, that the obvious thing to do is not to enforce the law less but to change it now. Dr. Johnson said once that manners make law, and that when manners alter, the law must, too. It’s obvious that marijuana is now an almost universally accepted drug in America: it is not only used casually (which has been true for decades) but also talked about casually on television and in the movies (which has not). One need only watch any stoner movie to see that the perceived risks of smoking dope are not that you’ll get arrested but that you’ll get in trouble with a rival frat or look like an idiot to women. The decriminalization of marijuana would help end the epidemic of imprisonment.
The rate of incarceration in most other rich, free countries, whatever the differences in their histories, is remarkably steady. In countries with Napoleonic justice or common law or some mixture of the two, in countries with adversarial systems and in those with magisterial ones, whether the country once had brutal plantation-style penal colonies, as France did, or was once itself a brutal plantation-style penal colony, like Australia, the natural rate of incarceration seems to hover right around a hundred men per hundred thousand people. (That doesn’t mean it doesn’t get lower in rich, homogeneous countries—just that it never gets much higher in countries otherwise like our own.) It seems that one man in every thousand once in a while does a truly bad thing. All other things being equal, the point of a justice system should be to identify that thousandth guy, find a way to keep him from harming other people, and give everyone else a break.
Epidemics seldom end with miracle cures. Most of the time in the history of medicine, the best way to end disease was to build a better sewer and get people to wash their hands. “Merely chipping away at the problem around the edges” is usually the very best thing to do with a problem; keep chipping away patiently and, eventually, you get to its heart. To read the literature on crime before it dropped is to see the same kind of dystopian despair we find in the new literature of punishment: we’d have to end poverty, or eradicate the ghettos, or declare war on the broken family, or the like, in order to end the crime wave. The truth is, a series of small actions and events ended up eliminating a problem that seemed to hang over everything. There was no miracle cure, just the intercession of a thousand smaller sanities. Ending sentencing for drug misdemeanors, decriminalizing marijuana, leaving judges free to use common sense (and, where possible, getting judges who are judges rather than politicians)—many small acts are possible that will help end the epidemic of imprisonment as they helped end the plague of crime.
“Oh, I have taken too little care of this!” King Lear cries out on the heath in his moment of vision. “Take physic, pomp; expose thyself to feel what wretches feel.” “This” changes; in Shakespeare’s time, it was flat-out peasant poverty that starved some and drove others as mad as poor Tom. In Dickens’s and Hugo’s time, it was the industrial revolution that drove kids to mines. But every society has a poor storm that wretches suffer in, and the attitude is always the same: either that the wretches, already dehumanized by their suffering, deserve no pity or that the oppressed, overwhelmed by injustice, will have to wait for a better world. At every moment, the injustice seems inseparable from the community’s life, and in every case the arguments for keeping the system in place were that you would have to revolutionize the entire social order to change it—which then became the argument for revolutionizing the entire social order. In every case, humanity and common sense made the insoluble problem just get up and go away. Prisons are our this. We need take more care. ♦
"US prison population 55% higher than USSR under Stalin" [http://www.dasmirnov.net/blog/us_prison_population_55_higher_than_ussr]
The US prison population now stands at around 2.3 million. This is around 800,000 higher than the PRC with around 1.5 million (with a total population of 1.3 billion) and around 55% higher than the number of prisoners in the USSR under Stalin, which peaked at 1,500,524 in January 1941. The level of crime and the levels of inequality in a society go hand in hand, statistically you are more likely to commit crime the more oppressed you are*. These numbers should be a stark reminder of how polarised the United States is becoming. Throwing more and more people in jail isn't a long term solution, tackling the causes of crime, such as crippling poverty rampant in many inner city areas in the US and shrinking the gap between rich and poor is. Many British politicians too, especially the Conservative Party should take note. Americans should ask questions, why does a country with 4% of the world's population have 25% of the world's prison population? Last year on the 1st of May millions of workers went out on strike, the actions of these people is the example all American workers should follow because only through their combined action can these problems be tackled. They can't be touched by voting in a different pro-business party, only by grass roots action with trade unions and a formation of a labour party upon them; with a radical program of social reforms, nationalisation and re-distribution of wealth can these issues be tackled. *Unfortunately the crimes the capitalists (and Lord Brown) commit screwing the workers with pay cuts and the theft of thousands and tens of thousands of pounds per year per worker in unpaid wages isn't recognised yet as being a crime, just good business.
2012-01-30 "The Caging of America: Why do we lock up so many people? by Adam Gopnik
[http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120130crat_atlarge_gopnik?printable=true¤tPage=all]
Six million people are under correctional supervision in the U.S.—more than were in Stalin’s gulags. Photograph by Steve Liss.
A prison is a trap for catching time. Good reporting appears often about the inner life of the American prison, but the catch is that American prison life is mostly undramatic—the reported stories fail to grab us, because, for the most part, nothing happens. One day in the life of Ivan Denisovich is all you need to know about Ivan Denisovich, because the idea that anyone could live for a minute in such circumstances seems impossible; one day in the life of an American prison means much less, because the force of it is that one day typically stretches out for decades. It isn’t the horror of the time at hand but the unimaginable sameness of the time ahead that makes prisons unendurable for their inmates. The inmates on death row in Texas are called men in “timeless time,” because they alone aren’t serving time: they aren’t waiting out five years or a decade or a lifetime. The basic reality of American prisons is not that of the lock and key but that of the lock and clock.
That’s why no one who has been inside a prison, if only for a day, can ever forget the feeling. Time stops. A note of attenuated panic, of watchful paranoia—anxiety and boredom and fear mixed into a kind of enveloping fog, covering the guards as much as the guarded. “Sometimes I think this whole world is one big prison yard, / Some of us are prisoners, some of us are guards,” Dylan sings, and while it isn’t strictly true—just ask the prisoners—it contains a truth: the guards are doing time, too. As a smart man once wrote after being locked up, the thing about jail is that there are bars on the windows and they won’t let you out. This simple truth governs all the others. What prisoners try to convey to the free is how the presence of time as something being done to you, instead of something you do things with, alters the mind at every moment. For American prisoners, huge numbers of whom are serving sentences much longer than those given for similar crimes anywhere else in the civilized world—Texas alone has sentenced more than four hundred teen-agers to life imprisonment—time becomes in every sense this thing you serve.
For most privileged, professional people, the experience of confinement is a mere brush, encountered after a kid’s arrest, say. For a great many poor people in America, particularly poor black men, prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones. More than half of all black men without a high-school diploma go to prison at some time in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today—perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal-justice system—in prison, on probation, or on parole—than were in slavery then. Over all, there are now more people under “correctional supervision” in America—more than six million—than were in the Gulag Archipelago under Stalin at its height. That city of the confined and the controlled, Lockuptown, is now the second largest in the United States.
The accelerating rate of incarceration over the past few decades is just as startling as the number of people jailed: in 1980, there were about two hundred and twenty people incarcerated for every hundred thousand Americans; by 2010, the number had more than tripled, to seven hundred and thirty-one. No other country even approaches that. In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education. Ours is, bottom to top, a “carceral state,” in the flat verdict of Conrad Black, the former conservative press lord and newly minted reformer, who right now finds himself imprisoned in Florida, thereby adding a new twist to an old joke: A conservative is a liberal who’s been mugged; a liberal is a conservative who’s been indicted; and a passionate prison reformer is a conservative who’s in one.
The scale and the brutality of our prisons are the moral scandal of American life. Every day, at least fifty thousand men—a full house at Yankee Stadium—wake in solitary confinement, often in “supermax” prisons or prison wings, in which men are locked in small cells, where they see no one, cannot freely read and write, and are allowed out just once a day for an hour’s solo “exercise.” (Lock yourself in your bathroom and then imagine you have to stay there for the next ten years, and you will have some sense of the experience.) Prison rape is so endemic—more than seventy thousand prisoners are raped each year—that it is routinely held out as a threat, part of the punishment to be expected. The subject is standard fodder for comedy, and an uncoöperative suspect being threatened with rape in prison is now represented, every night on television, as an ordinary and rather lovable bit of policing. The normalization of prison rape—like eighteenth-century japery about watching men struggle as they die on the gallows—will surely strike our descendants as chillingly sadistic, incomprehensible on the part of people who thought themselves civilized. Though we avoid looking directly at prisons, they seep obliquely into our fashions and manners. Wealthy white teen-agers in baggy jeans and laceless shoes and multiple tattoos show, unconsciously, the reality of incarceration that acts as a hidden foundation for the country.
How did we get here? How is it that our civilization, which rejects hanging and flogging and disembowelling, came to believe that caging vast numbers of people for decades is an acceptably humane sanction? There’s a fairly large recent scholarly literature on the history and sociology of crime and punishment, and it tends to trace the American zeal for punishment back to the nineteenth century, apportioning blame in two directions. There’s an essentially Northern explanation, focussing on the inheritance of the notorious Eastern State Penitentiary, in Philadelphia, and its “reformist” tradition; and a Southern explanation, which sees the prison system as essentially a slave plantation continued by other means. Robert Perkinson, the author of the Southern revisionist tract “Texas Tough: The Rise of America’s Prison Empire,” traces two ancestral lines, “from the North, the birthplace of rehabilitative penology, to the South, the fountainhead of subjugationist discipline.” In other words, there’s the scientific taste for reducing men to numbers and the slave owners’ urge to reduce blacks to brutes.
William J. Stuntz, a professor at Harvard Law School who died shortly before his masterwork, “The Collapse of American Criminal Justice,” was published, last fall, is the most forceful advocate for the view that the scandal of our prisons derives from the Enlightenment-era, “procedural” nature of American justice. He runs through the immediate causes of the incarceration epidemic: the growth of post-Rockefeller drug laws, which punished minor drug offenses with major prison time; “zero tolerance” policing, which added to the group; mandatory-sentencing laws, which prevented judges from exercising judgment. But his search for the ultimate cause leads deeper, all the way to the Bill of Rights. In a society where Constitution worship is still a requisite on right and left alike, Stuntz startlingly suggests that the Bill of Rights is a terrible document with which to start a justice system—much inferior to the exactly contemporary French Declaration of the Rights of Man, which Jefferson, he points out, may have helped shape while his protégé Madison was writing ours.
The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles—no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done—it talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life. You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong. Even clauses that Americans are taught to revere are, Stuntz maintains, unworthy of reverence: the ban on “cruel and unusual punishment” was designed to protect cruel punishments—flogging and branding—that were not at that time unusual.
The obsession with due process and the cult of brutal prisons, the argument goes, share an essential impersonality. The more professionalized and procedural a system is, the more insulated we become from its real effects on real people. That’s why America is famous both for its process-driven judicial system (“The bastard got off on a technicality,” the cop-show detective fumes) and for the harshness and inhumanity of its prisons. Though all industrialized societies started sending more people to prison and fewer to the gallows in the eighteenth century, it was in Enlightenment-inspired America that the taste for long-term, profoundly depersonalized punishment became most aggravated. The inhumanity of American prisons was as much a theme for Dickens, visiting America in 1842, as the cynicism of American lawyers. His shock when he saw the Eastern State Penitentiary, in Philadelphia—a “model” prison, at the time the most expensive public building ever constructed in the country, where every prisoner was kept in silent, separate confinement—still resonates:
I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers. . . . I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body: and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay.
Not roused up to stay—that was the point. Once the procedure ends, the penalty begins, and, as long as the cruelty is routine, our civil responsibility toward the punished is over. We lock men up and forget about their existence. For Dickens, even the corrupt but communal debtors’ prisons of old London were better than this. “Don’t take it personally!”—that remains the slogan above the gate to the American prison Inferno. Nor is this merely a historian’s vision. Conrad Black, at the high end, has a scary and persuasive picture of how his counsel, the judge, and the prosecutors all merrily congratulated each other on their combined professional excellence just before sending him off to the hoosegow for several years. If a millionaire feels that way, imagine how the ordinary culprit must feel.
In place of abstraction, Stuntz argues for the saving grace of humane discretion. Basically, he thinks, we should go into court with an understanding of what a crime is and what justice is like, and then let common sense and compassion and specific circumstance take over. There’s a lovely scene in “The Castle,” the Australian movie about a family fighting eminent-domain eviction, where its hapless lawyer, asked in court to point to the specific part of the Australian constitution that the eviction violates, says desperately, “It’s . . . just the vibe of the thing.” For Stuntz, justice ought to be just the vibe of the thing—not one procedural error caught or one fact worked around. The criminal law should once again be more like the common law, with judges and juries not merely finding fact but making law on the basis of universal principles of fairness, circumstance, and seriousness, and crafting penalties to the exigencies of the crime.
The other argument—the Southern argument—is that this story puts too bright a face on the truth. The reality of American prisons, this argument runs, has nothing to do with the knots of procedural justice or the perversions of Enlightenment-era ideals. Prisons today operate less in the rehabilitative mode of the Northern reformers “than in a retributive mode that has long been practiced and promoted in the South,” Perkinson, an American-studies professor, writes. “American prisons trace their lineage not only back to Pennsylvania penitentiaries but to Texas slave plantations.” White supremacy is the real principle, this thesis holds, and racial domination the real end. In response to the apparent triumphs of the sixties, mass imprisonment became a way of reimposing Jim Crow. Blacks are now incarcerated seven times as often as whites. “The system of mass incarceration works to trap African Americans in a virtual (and literal) cage,” the legal scholar Michelle Alexander writes. Young black men pass quickly from a period of police harassment into a period of “formal control” (i.e., actual imprisonment) and then are doomed for life to a system of “invisible control.” Prevented from voting, legally discriminated against for the rest of their lives, most will cycle back through the prison system. The system, in this view, is not really broken; it is doing what it was designed to do. Alexander’s grim conclusion: “If mass incarceration is considered as a system of social control—specifically, racial control—then the system is a fantastic success.”
Northern impersonality and Southern revenge converge on a common American theme: a growing number of American prisons are now contracted out as for-profit businesses to for-profit companies. The companies are paid by the state, and their profit depends on spending as little as possible on the prisoners and the prisons. It’s hard to imagine any greater disconnect between public good and private profit: the interest of private prisons lies not in the obvious social good of having the minimum necessary number of inmates but in having as many as possible, housed as cheaply as possible. No more chilling document exists in recent American life than the 2005 annual report of the biggest of these firms, the Corrections Corporation of America. Here the company (which spends millions lobbying legislators) is obliged to caution its investors about the risk that somehow, somewhere, someone might turn off the spigot of convicted men:
Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities. . . . The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.
Brecht could hardly have imagined such a document: a capitalist enterprise that feeds on the misery of man trying as hard as it can to be sure that nothing is done to decrease that misery.
Yet a spectre haunts all these accounts, North and South, whether process gone mad or penal colony writ large. It is that the epidemic of imprisonment seems to track the dramatic decline in crime over the same period. The more bad guys there are in prison, it appears, the less crime there has been in the streets. The real background to the prison boom, which shows up only sporadically in the prison literature, is the crime wave that preceded and overlapped it.
For those too young to recall the big-city crime wave of the sixties and seventies, it may seem like mere bogeyman history. For those whose entire childhood and adolescence were set against it, it is the crucial trauma in recent American life and explains much else that happened in the same period. It was the condition of the Upper West Side of Manhattan under liberal rule, far more than what had happened to Eastern Europe under socialism, that made neo-con polemics look persuasive. There really was, as Stuntz himself says, a liberal consensus on crime (“Wherever the line is between a merciful justice system and one that abandons all serious effort at crime control, the nation had crossed it”), and it really did have bad effects.
Yet if, in 1980, someone had predicted that by 2012 New York City would have a crime rate so low that violent crime would have largely disappeared as a subject of conversation, he would have seemed not so much hopeful as crazy. Thirty years ago, crime was supposed to be a permanent feature of the city, produced by an alienated underclass of super-predators; now it isn’t. Something good happened to change it, and you might have supposed that the change would be an opportunity for celebration and optimism. Instead, we mostly content ourselves with grudging and sardonic references to the silly side of gentrification, along with a few all-purpose explanations, like broken-window policing. This is a general human truth: things that work interest us less than things that don’t.
So what is the relation between mass incarceration and the decrease in crime? Certainly, in the nineteen-seventies and eighties, many experts became persuaded that there was no way to make bad people better; all you could do was warehouse them, for longer or shorter periods. The best research seemed to show, depressingly, that nothing works—that rehabilitation was a ruse. Then, in 1983, inmates at the maximum-security federal prison in Marion, Illinois, murdered two guards. Inmates had been (very occasionally) killing guards for a long time, but the timing of the murders, and the fact that they took place in a climate already prepared to believe that even ordinary humanity was wasted on the criminal classes, meant that the entire prison was put on permanent lockdown. A century and a half after absolute solitary first appeared in American prisons, it was reintroduced. Those terrible numbers began to grow.
And then, a decade later, crime started falling: across the country by a standard measure of about forty per cent; in New York City by as much as eighty per cent. By 2010, the crime rate in New York had seen its greatest decline since the Second World War; in 2002, there were fewer murders in Manhattan than there had been in any year since 1900. In social science, a cause sought is usually a muddle found; in life as we experience it, a crisis resolved is causality established. If a pill cures a headache, we do not ask too often if the headache might have gone away by itself.
All this ought to make the publication of Franklin E. Zimring’s new book, “The City That Became Safe,” a very big event. Zimring, a criminologist at Berkeley Law, has spent years crunching the numbers of what happened in New York in the context of what happened in the rest of America. One thing he teaches us is how little we know. The forty per cent drop across the continent—indeed, there was a decline throughout the Western world— took place for reasons that are as mysterious in suburban Ottawa as they are in the South Bronx. Zimring shows that the usual explanations—including demographic shifts—simply can’t account for what must be accounted for. This makes the international decline look slightly eerie: blackbirds drop from the sky, plagues slacken and end, and there seems no absolute reason that societies leap from one state to another over time. Trends and fashions and fads and pure contingencies happen in other parts of our social existence; it may be that there are fashions and cycles in criminal behavior, too, for reasons that are just as arbitrary.
But the additional forty per cent drop in crime that seems peculiar to New York finally succumbs to Zimring’s analysis. The change didn’t come from resolving the deep pathologies that the right fixated on—from jailing super predators, driving down the number of unwed mothers, altering welfare culture. Nor were there cures for the underlying causes pointed to by the left: injustice, discrimination, poverty. Nor were there any “Presto!” effects arising from secret patterns of increased abortions or the like. The city didn’t get much richer; it didn’t get much poorer. There was no significant change in the ethnic makeup or the average wealth or educational levels of New Yorkers as violent crime more or less vanished. “Broken windows” or “turnstile jumping” policing, that is, cracking down on small visible offenses in order to create an atmosphere that refused to license crime, seems to have had a negligible effect; there was, Zimring writes, a great difference between the slogans and the substance of the time. (Arrests for “visible” nonviolent crime—e.g., street prostitution and public gambling—mostly went down through the period.)
Instead, small acts of social engineering, designed simply to stop crimes from happening, helped stop crime. In the nineties, the N.Y.P.D. began to control crime not by fighting minor crimes in safe places but by putting lots of cops in places where lots of crimes happened—“hot-spot policing.” The cops also began an aggressive, controversial program of “stop and frisk”—“designed to catch the sharks, not the dolphins,” as Jack Maple, one of its originators, described it—that involved what’s called pejoratively “profiling.” This was not so much racial, since in any given neighborhood all the suspects were likely to be of the same race or color, as social, involving the thousand small clues that policemen recognized already. Minority communities, Zimring emphasizes, paid a disproportionate price in kids stopped and frisked, and detained, but they also earned a disproportionate gain in crime reduced. “The poor pay more and get more” is Zimring’s way of putting it. He believes that a “light” program of stop-and-frisk could be less alienating and just as effective, and that by bringing down urban crime stop-and-frisk had the net effect of greatly reducing the number of poor minority kids in prison for long stretches.
Zimring insists, plausibly, that he is offering a radical and optimistic rewriting of theories of what crime is and where criminals are, not least because it disconnects crime and minorities. “In 1961, twenty six percent of New York City’s population was minority African American or Hispanic. Now, half of New York’s population is—and what that does in an enormously hopeful way is to destroy the rude assumptions of supply side criminology,” he says. By “supply side criminology,” he means the conservative theory of crime that claimed that social circumstances produced a certain net amount of crime waiting to be expressed; if you stopped it here, it broke out there. The only way to stop crime was to lock up all the potential criminals. In truth, criminal activity seems like most other human choices—a question of contingent occasions and opportunity. Crime is not the consequence of a set number of criminals; criminals are the consequence of a set number of opportunities to commit crimes. Close down the open drug market in Washington Square, and it does not automatically migrate to Tompkins Square Park. It just stops, or the dealers go indoors, where dealing goes on but violent crime does not.
And, in a virtuous cycle, the decreased prevalence of crime fuels a decrease in the prevalence of crime. When your friends are no longer doing street robberies, you’re less likely to do them. Zimring said, in a recent interview, “Remember, nobody ever made a living mugging. There’s no minimum wage in violent crime.” In a sense, he argues, it’s recreational, part of a life style: “Crime is a routine behavior; it’s a thing people do when they get used to doing it.” And therein lies its essential fragility. Crime ends as a result of “cyclical forces operating on situational and contingent things rather than from finding deeply motivated essential linkages.” Conservatives don’t like this view because it shows that being tough doesn’t help; liberals don’t like it because apparently being nice doesn’t help, either. Curbing crime does not depend on reversing social pathologies or alleviating social grievances; it depends on erecting small, annoying barriers to entry.
One fact stands out. While the rest of the country, over the same twenty-year period, saw the growth in incarceration that led to our current astonishing numbers, New York, despite the Rockefeller drug laws, saw a marked decrease in its number of inmates. “New York City, in the midst of a dramatic reduction in crime, is locking up a much smaller number of people, and particularly of young people, than it was at the height of the crime wave,” Zimring observes. Whatever happened to make street crime fall, it had nothing to do with putting more men in prison. The logic is self-evident if we just transfer it to the realm of white-collar crime: we easily accept that there is no net sum of white-collar crime waiting to happen, no inscrutable generation of super-predators produced by Dewar’s-guzzling dads and scaly M.B.A. profs; if you stop an embezzlement scheme here on Third Avenue, another doesn’t naturally start in the next office building. White-collar crime happens through an intersection of pathology and opportunity; getting the S.E.C. busy ending the opportunity is a good way to limit the range of the pathology.
Social trends deeper and less visible to us may appear as future historians analyze what went on. Something other than policing may explain things—just as the coming of cheap credit cards and state lotteries probably did as much to weaken the Mafia’s Five Families in New York, who had depended on loan sharking and numbers running, as the F.B.I. could. It is at least possible, for instance, that the coming of the mobile phone helped drive drug dealing indoors, in ways that helped drive down crime. It may be that the real value of hot spot and stop-and-frisk was that it provided a single game plan that the police believed in; as military history reveals, a bad plan is often better than no plan, especially if the people on the other side think it’s a good plan. But one thing is sure: social epidemics, of crime or of punishment, can be cured more quickly than we might hope with simpler and more superficial mechanisms than we imagine. Throwing a Band-Aid over a bad wound is actually a decent strategy, if the Band-Aid helps the wound to heal itself.
Which leads, further, to one piece of radical common sense: since prison plays at best a small role in stopping even violent crime, very few people, rich or poor, should be in prison for a nonviolent crime. Neither the streets nor the society is made safer by having marijuana users or peddlers locked up, let alone with the horrific sentences now dispensed so easily. For that matter, no social good is served by having the embezzler or the Ponzi schemer locked in a cage for the rest of his life, rather than having him bankrupt and doing community service in the South Bronx for the next decade or two. Would we actually have more fraud and looting of shareholder value if the perpetrators knew that they would lose their bank accounts and their reputation, and have to do community service seven days a week for five years? It seems likely that anyone for whom those sanctions aren’t sufficient is someone for whom no sanctions are ever going to be sufficient. Zimring’s research shows clearly that, if crime drops on the street, criminals coming out of prison stop committing crimes. What matters is the incidence of crime in the world, and the continuity of a culture of crime, not some “lesson learned” in prison.
At the same time, the ugly side of stop-and-frisk can be alleviated. To catch sharks and not dolphins, Zimring’s work suggests, we need to adjust the size of the holes in the nets—to make crimes that are the occasion for stop-and-frisks real crimes, not crimes like marijuana possession. When the New York City police stopped and frisked kids, the main goal was not to jail them for having pot but to get their fingerprints, so that they could be identified if they committed a more serious crime. But all over America the opposite happens: marijuana possession becomes the serious crime. The cost is so enormous, though, in lives ruined and money spent, that the obvious thing to do is not to enforce the law less but to change it now. Dr. Johnson said once that manners make law, and that when manners alter, the law must, too. It’s obvious that marijuana is now an almost universally accepted drug in America: it is not only used casually (which has been true for decades) but also talked about casually on television and in the movies (which has not). One need only watch any stoner movie to see that the perceived risks of smoking dope are not that you’ll get arrested but that you’ll get in trouble with a rival frat or look like an idiot to women. The decriminalization of marijuana would help end the epidemic of imprisonment.
The rate of incarceration in most other rich, free countries, whatever the differences in their histories, is remarkably steady. In countries with Napoleonic justice or common law or some mixture of the two, in countries with adversarial systems and in those with magisterial ones, whether the country once had brutal plantation-style penal colonies, as France did, or was once itself a brutal plantation-style penal colony, like Australia, the natural rate of incarceration seems to hover right around a hundred men per hundred thousand people. (That doesn’t mean it doesn’t get lower in rich, homogeneous countries—just that it never gets much higher in countries otherwise like our own.) It seems that one man in every thousand once in a while does a truly bad thing. All other things being equal, the point of a justice system should be to identify that thousandth guy, find a way to keep him from harming other people, and give everyone else a break.
Epidemics seldom end with miracle cures. Most of the time in the history of medicine, the best way to end disease was to build a better sewer and get people to wash their hands. “Merely chipping away at the problem around the edges” is usually the very best thing to do with a problem; keep chipping away patiently and, eventually, you get to its heart. To read the literature on crime before it dropped is to see the same kind of dystopian despair we find in the new literature of punishment: we’d have to end poverty, or eradicate the ghettos, or declare war on the broken family, or the like, in order to end the crime wave. The truth is, a series of small actions and events ended up eliminating a problem that seemed to hang over everything. There was no miracle cure, just the intercession of a thousand smaller sanities. Ending sentencing for drug misdemeanors, decriminalizing marijuana, leaving judges free to use common sense (and, where possible, getting judges who are judges rather than politicians)—many small acts are possible that will help end the epidemic of imprisonment as they helped end the plague of crime.
“Oh, I have taken too little care of this!” King Lear cries out on the heath in his moment of vision. “Take physic, pomp; expose thyself to feel what wretches feel.” “This” changes; in Shakespeare’s time, it was flat-out peasant poverty that starved some and drove others as mad as poor Tom. In Dickens’s and Hugo’s time, it was the industrial revolution that drove kids to mines. But every society has a poor storm that wretches suffer in, and the attitude is always the same: either that the wretches, already dehumanized by their suffering, deserve no pity or that the oppressed, overwhelmed by injustice, will have to wait for a better world. At every moment, the injustice seems inseparable from the community’s life, and in every case the arguments for keeping the system in place were that you would have to revolutionize the entire social order to change it—which then became the argument for revolutionizing the entire social order. In every case, humanity and common sense made the insoluble problem just get up and go away. Prisons are our this. We need take more care. ♦
Prison Labor, a patriotic duty!
The Dept. of Defense using slave-labor,
literally, is the wave of the future:
* 2011-05-13 "Cheap prison labor used to build U.S. military weapons?" [http://lake.typepad.com/on-the-lake-front/2011/05/cheap-prison-labor-used-to-build-us-military-weapons.html]
This practice began during the "Reagan Revolution", the first of it's kind since the days of ol' Jim Crow, after the Drug War
captured millions of people (mainly non-whites whose ancestors may have
been slaves):
* 1983-05-09 "Prison Labor making missile cable parts for U.S. military" from "Lakeland Ledger" newspaper [http://news.google.com/newspapers?nid=1346&dat=19830509&id=AgowAAAAIBAJ&sjid=iPsDAAAAIBAJ&pg=7066,4227316]
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