Crisis and Criminal Justice

How does the political and economic crisis - both on a national and international level - affect the criminal justice system (legislation, police, prosecution, judiciary, prisons)? How does it, more specifically, affect individual rights, the balance of powers, and the democratic order?

Decline of Democracy Yascha Mounk & Roberto Stefan Foa (2016/2017) The Danger of Deconsolidation: The Democratic Disconnect. July 2016. Journal of Democracy. And January 2017. The Signs of Deconsolidation. - Political scientists long assumed that “democratic consolidation” was a one-way street, but survey evidence of declining support for democracy from across the established democracies suggests that deconsolidation is a genuine danger. The Danger of Deconsolidation: The Democratic Disconnect. In recent years, parties and candidates challenging key democratic norms have won unprecedented popular support in liberal democracies across the globe. Drawing on public opinion data from the World Values Survey and various national polls, we show that the success of anti-establishment parties and candidates is not a temporal or geographic aberration, but rather a reflection of growing popular disaffection with liberal-democratic norms and institutions, and of increasing support for authoritarian interpretations of democracy. The record number of anti-system politicians in office raises uncertainty about the strength of supposedly “consolidated” liberal democracies. Guatemala. Italy. Hungary. Greece Tsipras. Turkey. (Wilders. AfD. Denmark, Finland, Norway ...).

The demise of socialist parties in Europe and beyond. France.

Complaints: Gender statt Arbeitsplätze und Wohlfahrt, Pflege, Frieden. Geld für Flüchtlinge statt für Mittelschicht. Es geht uns doch gut bezieht sich auf Statistiken, nicht auf Menschen. Peinliche Versuche der Kommunikation mit dem Volk.

Legislation gives more powers to the police - and in some instances to prosecutors, liberating them from political influence, conferring the potential of an independent political role (PT) to prosecutors and judges. Involvement of military in domestic criminal policy. Estrangement between an ever more outspoken political right (Bolsonaro) and a fragmented "left" and grassroot movements (Marielle Franco).

Police more powerful. But relevance of video.

Prosecution: powerful in Brazil.

Judiciary:

Prisons: Overload. They used to be symbols of state pride and power (Takagi). Today they are the same in the U.S. - a return to old splendor with little humanity. But they are a symbol of the state's absence and impotence in other coutnries. Large rund-down prisons.

Crisis or Crises?

The Drug Wave of 1968: Implications for Criminal Policy. A second frontline beside the Cold War. The Secret State and the erosion of civil liberties. Punitiveness, Enemy criminal law. Devaluation of marginalized persons. Gropnik.

The Financial Crisis of 2008: Implications for social cohesion. Growing inequality. Less empathy. Aggravating prior tendencies towards a dual state. Sovereign police. Police killings. Competing forces of order. Extrajudcial killings. Prison as privilege.

The Global Crisis of 2018: Populism unchained. Belligerence. Destructive malignant narcissism. Desublimation.

Consequences

Individual rights on the way out
Balance of powers: increasing powers for the executive branch (state of exception), immunisation of military and police. Legislative branch? Corruption? Brazil: Judiciary thanks to PT policy (Vanessa Ruales 2018).
Competing powers: problem for democracy and voting. General disillusionment with democracy.
Prison expansion and overcrowding. Why?

The Prison Crisis

The State and the Prison

Paul Takagi (1975): Walnut Street served to legitimize the idea of a state prison, which meant the creation of a state apparatus. To put it differently, the transformation that was to occur had implications far beyond the matter of penal reform. The political process toward creating a state prison system re ected in miniature the problems of the Confederation in centralizing the powers of the state. The demand for a strong centralized government was to guarantee the development of a new economic order on the one hand, and on the other, to solve the problem of law and order.

Eastern State Penitentiary (1829) had cost nearly $780,000, one of the most expensive buildings of its day in the United States.

What does it look like? What does it look like in rich and in poor countries? In ex-slaveholder and ex-convict republics?

In equal societies and in unequal ones?

In 2003, Finland was second highest and Norway and Sweden were joint fourth highest for age-adjusted public expenditure on educational institutions

Where does it come from? The role of drug policy. Seychelles.
Which functions does it fulfill and which not?
What does the prison crisis signify in terms of social theory and the future for humankind?

The Way Out

The ethical one: see Gropnik and NO PRISON

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.

2012: Frank Zimring, The City that became safe. Reasons: there was a decline all over the Western world in the 1990s that still escapes explanation. But the extra 40% percent of crime drop in NYC can be explained.

The change did not 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.
Instead, small acts of social engineering, designed simply to stop crimes from happening, helped stop crime. In the 90s, the NYPD began to control crime not be fighting minor crimes in safe places but by putting lots of cops in places where lots of crimes happende - hot-spot policing. The cops also began an aggressive, controversial program of stop and frisk including "profiling". Minority communities paid a disproportionate price in kids stopped and frisked, and detained, by they also earned a disproportionate gain in crime reduced. "The poor pay more and get more" (Zimring).

A "light" stop and frisk brought down urban crime and had the net effect of greatly reducing the number of poor minority kids in prison for long stretches.

1961: 26% of NYC population was minority African American or Hispanic. 2012: 50%. And less crime. 'Brings down supply side criminology = If you bring it down here, it pops up there.

Close down Washington Square and it does not automatically migrate to Tompkins Square Park. It just stops, or the dealers og indoors, where dealing goes on but violent crime does not.

Virtuous cycle: when yours friends don't do robberies anymore, you don't do them anymore. Crime is recreational, part of a lifestyle. Crime does not stop by being tough, nor by alleviating social grievances. It stops by being met with small, annoying barriers to entry.

NYC locked up much less people (different from other states) during its crime drop than before. The crime drop had nothing to do with locking up more people.

Other factors: mobile phone may have driven drug dealing indoors, in ways that helped drive down crime.

One lesson: 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.

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. .. 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, hte injusitce 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 revlutionizing the entire social order. In very case, humanity and common sense made the insoluble problem just get up and go away. Prisons are our this. We need take more care.

The probable one: see Harari and Helotes

===1. The financial crisis and the divided global village

Equality is happiness, but the real world is polarising

2. It is especially bad in ex-slaveholder societies, where freed slaves turn into the new helotes (Harari)

3. Populism as an instinctive revolt with paradoxical consequences

Lack of education elects clowns and radical rambos with no experience, who are therefore vulnerable to influencers, i.e. lobbies, that turn their policies around

Tendency to elect autocrats (philippines, nativist iran, near east)

4. Affects the criminal justice system at large:

4.1 legislation tends towards measures and decrees, harsher and more unprofessional - Doppelstaat

4.2 StA und Polizei: StA hat weniger Gewicht, außer lava jato. Polizei weitgehend souverän. Militarisierung. PPP

4.3 Strafvollzug: hier finden sich die Überflüssigen, soweit sie nicht außerjustiziellen Exekutionen zum Opfer gefallen sind. Massaker. Heloten werden hier diszipliniert. Israel. BR, weltweit.

5. Demokratischer Prozess: Wahlen, Parteien, Oligarchien - fed up, Burnheim: Losverfahren?

10. Why not abolish prisons? In reichen Ländern ginge das vielleicht - wären da nicht die unsachgemäßen Gründe (falsches Signal etc.).

In armen Ländern sind die Verhältnisse schlimm. Da wäre Abolition noch dringender.