(Cross-posted to dKos and MyDD. – promoted by SFBrianCL)

Last week, I wrote an article about the 3 Strikes Law and its effect on the California prison system.  Of course, Arnold is talking about building more prisons.  But, the problem is really deeper than that.  And in today’s California Report on KQED, a discussion about California’s prisons centered around the question of whether to build new prisons and how to actually incorporate the “and Rehabilitation” to the Department of Corrections.  Of course, the question of the strength of the prison guards union, CCPOA, came up.  Strangely, the CCPOA’s defense to that claim was “If we controlled the system, would we really be complaining so strenuously.” I’m not sure that such a statement is really their best argument, but that’s really a sidebar to this discussion.  A real kernel of truth was revealed at the end, when the commentator said that (rough paraphrase), “After the election, perhaps the government can face what has been the big taboo of the prison debate, the mandatory sentencing guidelines which are keeping thousands of prisoners in prison.”  The actual program will likely appear on the California Report website tomorrow, I will try to correct it then.

Indeed, mandatory sentencing is the Big Taboo.  In Joel Dyer’s The Perpetual Prisoner Machine: How America Profits from Crime, he explains why mandatory sentencing is so important to the prison industrial complex.  Justice Anthony Kennedy, the most powerful judge in the nation right now, said the following of mandatory sentencing:

I think I’m in agreement with most judges in the federal system that mandatory minimums are an imprudent, unwise and often unjust mechanism for sentencing – Justice Anthony Kennedy in 1994 Congressional hearings

Lots more on the flip…

America has approximately 5% of the world’s population, but approximately 25% of the world’s prison population.  We have well over 2 million prisoners, which equates to 724 prisoners per 100,000 citizens.  At our current rate of prison growth, it will not be long until a full percent of our nation will be in prison. (Source: BBC News) Put in another way, our rate of prison growth is untenable, and unquestionably related to mandatory sentencing guidelines, of which 3 strikes is just one.

Resolving The Big Taboo really involves focusing on two issues, which, while related, are really separate problems:

1. The “Tough on Crime” meme

George Bush the elder liked to fashion himself “tough on crime.”  He ran on his toughness against Dukakis using the now infamous Willie Horton campaign.  However, Dyer also points out a quote by then Congressman George H.W. Bush from 1970 when he voted to repeal the last of the federal minimums:

“Contrary to what one might imagine, however, this bill will result in better justice and more appropriate sentences. … Federal judges are almost unanimously opposed to mandatory minimums, because they remove a great deal of the court’s discretion. … As a result [of repealing mandatory minimums], we will undoubtably have more equitable action by the courts, with actually more convictions where they are called for, and fewer disproportionate sentences.” – Congressman George H.W. Bush, 1970

During the 70s, the last of the mandatory sentences were gone.  They had been tossed on the scrapheap of bad ideas from the 1800s.  Congress understood that they were impractical But by the mid 1980s, Congress reversed course by passing the Sentencing Reform Act.  And by the 1990s, the tough on crime meme held complete sway, prompting Orrin Hatch to say:

The reason why we went to mandatory minimums is because of these soft-on-crime judges that we have in our society, judges who just will not get tough on crime. (Cited in Dyer, originally from Frontline, 4/28/98)

As can be seen in the contrast of these two quotes, there was a fundamental sea change in the mood of the country.  We began to get more isolated, locked up in our own homes, in constant fear of the next boogeyman to come down the street.  It’s also what W is using in his march against civil liberties: Fear®.  Fear Sells.  It works, it got W re-elected in 2004, just as it worked for his father in 1988.

But tough on crime isn’t enough.  It doesn’t address the root of crime and only results in increased prison populations.  The increased prison populations breed additional crime, and we end up with a vicious cycle.  Recidivism increases and the overall crime rate is not decreased, but rather increased.  We get large, extremely violent prison gangs that end up controlling the drug trade from within the prisons that are able to send messages within prisons.  We get many things, but the one thing we do not get from being “tough on crime” is less crime.

2. The Failed “War on Drugs”.

It’s time to change the framing on the war on drugs.  It’s not a war on drugs.  We aren’t putting drugs in jail (although there are plenty there, which makes the prison environment doubly unsafe), we aren’t trying drugs for crimes of addiction, we aren’t removing the children of drugs from their parents.  No, we are doing this to Americans.  In America.

Further, the drug war has had bizarre twists and turns.  For example, crack cocaine is punished far more heavily than traditional cocaine?  Why?  Who knows, but it is difficult to see any reason other than the one based on poverty. 

The War on Drugs is Lost.  It’s time to accept that and deal with the problem in a more realistic way.  Prop 36, which was recently “renewed” by the legislature in a controversial move that included possible brief jail stays, set a tone of rehabilitation.  However, drug treatment needs to be a priority not only for drug offenders, but also for other criminals.  The number of crimes that are related to drugs is substantially larger than the actual number of drug offenses.  It is imperative that we solve the root problem, addiction, and not keep trying to punish addicts into submission.

In his testimony to Congress, William B. Moffitt, President of the National Association of Criminal Defense Lawyers closed with the following statement.  I could not hope to do better, so I will reprint that here:

No; my question to you is when will our society be unable to pay, fiscally, for incarcerating our own? When will our society be unable to cope with our bloated prison population? When will our very fabric crumble as the hundreds of thousands of individuals who we have locked away for five, ten or twenty years, return to our midst, unenlightened and disfranchised. For I do not believe that they have assimilate and become “one of us.” I believe that they will feel betrayed and angry and we will have no answers only regrets.

The question that remains is when will you, our elected officials recognize that we cannot continue down this path of ever increasing incarceration. I will end my testimony with some remarks from Don Williamson, Philadelphia Daily News, November 4, 1985.

If for no more honorable reason than our own societal self preservation, we need to heed where the current state of affairs is taking us: A raging epidemic of poor, dumb children in the richest, most educated nation on earth can be ignored (for now) because these children have no power, no constituency. They cannot vote.

They have no money. They own no property. There is no well financed, influential Washington based lobby group insuring that their birth right is protected.

But there will be more of them every day. And they are having babies who will be poorer, and dumber then they are. They will be poorer and dumber and have no allegiance to this or any nation, no concept of right or wrong, no adherence to cherished traditions and no compassion or regard for the elders who abandoned them. Soon fourteen million poor children will become fourteen million unskilled uneducated, angry dangerous adults. There will not be enough jails, enough bullets, enough quick fix federal programs. There will be them and an older feebler, increasingly dependent us. They will blot out the sky, foul the air, make the water unfit to drink. They will steal tomorrow. They are time bombs.

They will steal tomorrow. And society will have aided and abetted the theft. (National Association of Criminal Defense Lawyers May 11, 2000)

Today’s California Blog Roundup is on the flip. Teasers: Phil Angelides, Arnold Schwarzenegger, CA-50, Richard Pombo, Jerry McNerney, John Doolittle, Marcy Winograd, prisons, immigration, biodiesel, redistricting, reform.

Governor

• Frank Russo is excited about Angelides.
• Remember, folks, when Schwarzenegger’s not running for office, he’s a slash-and-burn bully-boy Republican. He’s no moderate.
• The California Observer notes that Phil Angelides has hired on Bill Carrick. That is, of course, an inside-baseball story, but it will be interesting to see what effect Carrick has on Angelides’ campaign.
• Ms. Geek has some words of wisdom for Angelides to counter the bogus “borrow to balance” Schwarzenegger plans and canards about “moving backward“.
• It appears that Schwarzenegger’s campaign managers (almost all Bush/Cheney alumni) have adopted the campaign model of “if we say it, it’s true“, no matter how bogus the attack. This is par for the course from a Bush crew, of course. See, for example, nukes in Iraq, Iraq’s involvement with Al Qaeda, jailing American citizens, asserting state secrets defenses whenever challenged. It’s all the same mode of operation.
• Martini Republic on Angelides on smart growth. And GM on subsidizing stupid growth.
• Live from the Nuke Free Zone asks some really good questions about where the votes are going to come from.
• Bill Cavala on Schwarzenegger’s deferral of deficits through debt (i.e., taxing our children).

CA-50 (Finally, the end of the post-mortems)

• Brian Bilbray: nativist and fundamentalist. Sounds like he’s planning to run exclusively on culture war wedge issues. And the Republican line is that Democrats are negative and don’t have any new ideas…
• Idiotarian Savant thinks that Bilbray’s win wasn’t much of a win.
• Nicholas Beaudrot posts at Ezra Klein’s blog with YACA-50PM.

Other Electoral

• Say No To Pombo on McNerney’s chances and the chances that the DCCC will participate (productively) in the CA-11 race now that Filson’s out. Down With Tyranny asks the same question, and makes a great populist pitch for McNerney.
• Also from SNTP, Paid-For Pombo attacks Jerry McNerney for McNerney’s answers to a Project Vote Smart survey that Paid-For apparently thinks he’s too good to answer at all.
• 15% Doolittle puffs out his chest, after outspending his challeger 13 to 1 and still losing a third of the Republican vote in CA-04. And 15% Doolittle’s minions fellow travelers in Placer County aren’t doing so well either.
• I wonder if 15% Doolittle got his cut?
• Down With Tyranny writes about Marcy Winograd, and the value of challenging a complacent incumbent.
• Ariel on Cynthia Matthews challenging David Dreier in CA-26.

Miscellany

• From Fish Wars on Cars, BioDiesel, baby. Blue Santa Clarita points us to a Mark Schmidt piece explaining the “no gubmint never did nothing for me delusion” under which Western Republicans labor. It ain’t just the Sun Belt, either. I grew up in Alaska, and despite almost always being a net recipient state, most Alaskans are convinced the government does nothing for them.
• Frank Russo went to Sacramento yesterday to visit the taxpayer-funded Republican media event, in which they invited a lot of Republican-friendly talk radio hosts (and to be “fair”, Air America) to set up shop.
• Brad DeLong points out a WaPo Op-Ed that talks some sense on immigration. And of course, border security is not really the issue.
• Ned Wigglesworth, guest-posting at California Progress Report, on the IE campaigns’ distortions of the political process.
• Ah, a good piece on narratives for a change.
• Our prisons are a train wreck. I’d love to see a breakdown on how much of the overcrowding is attributable to 3 Strikes and the war on marijuana.
• Kathay Feng of Common Cause on the case for neutral redistricting. Bill Cavala against.