Chase Madar on “Reforming the U S Criminal Justice System:Shrinkage or Expansion?” Feb 2, 2018

thanks everyone for coming on a very
cold Friday afternoon but it’s gonna get warmer intellectually I hope anyway in a few minutes because we have a very exciting speaker today so my name is
Heidi Matthews I am an assistant professor of law here at Osgoode
Hall Law School and I co-organized along with professors Palma Paciocco and
Francois Tanguay-Renaud a speaker series this is our inaugural year the speaker
series is called emerging trends in criminal justice and part of the goal of
that series is really to engage with some of the most pressing questions
facing criminal justice today in across jurisdictional and also
cross-disciplinary fashion and so it’s really in that particular vein that that
we thought chase would be a fantastic speaker and he’s gonna speak to us today
on reforming the US criminal justice system shrinkage or expansion which is a
quite a title so just a brief bio chase is a lawyer and a journalist based in
New York City I think he’s been dedicated I think this is fair to say
over his career to furthering the progressive discourse on social justice
issues both in the US but also globally and from a strongly critically informed
perspective he’s the author of the passion of Chelsea Manning the story
behind the WikiLeaks whistleblower published by verso books he’s
contributed to the New York Times The Guardian the London Review of Books the
nation American Conservative which I can explain which well I think that’s
wonderful and Jacobin and and and the host of other can explain those two
explain all of them yeah chase is uh is a graduate of Stanford and and the NYU
Law School and he’s lectured widely although
on issues pertaining to to criminal justice in general and he’s currently
teaching what looks to be a fascinating course on law and war at the Gallatin
school at NYU and so I think what we’re gonna do is have chase speak for like
approximately 30 minutes and then open it up for a Q&A this is obviously being
recorded so bear that in mind when it comes to your interventions and yeah I
take it away chase thank you well thank you so much professor Heidi Matthews for
organizing to bring me and thanks so much to the Jack and Mae Nathanson Center
and the wonderful speaker series that they are supporting and to Osgoode Hall
and to all of you for showing up on a Friday afternoon I’m just going to talk
for about half an hour about criminal justice reform in the United States my
apology is for something that is very US centric but there will be many
peripheral glances and occasional longing gazes to other countries and I
hope in the discussion afterwards anyone will bring up its relevant experiences
from Canada or from any other country whose criminal justice system you are
familiar with because we need comparisons sometimes told well that’s
apples and oranges the US and Portugal’s drug decriminalization you really can’t
cure it’s apples and oranges well apples and oranges two fruits of approximately
the same size shape price nutritional value absolutely comparable they demand
comparison and you know of course they’re different but we can learn a lot
from comparing things that are similar if not the same going to be talking
today about the need for shrinkage as a guiding ethic in criminal justice reform
in the United States that’s something that often gets lost sight of believe it
or not there’s a need for shrinking the American criminal justice system you
probably all know this if you have made it into this room but the United
States has the highest incarceration rate in the world at about 693 per
hundred thousand people compare that to Canada where it’s 114 per hundred
thousand in Germany where it’s just 76 there’s a great deal of variation in the
United States between our 50 states in Louisiana where they let the good times
roll the incarceration rate is a 1143 per hundred thousand whereas in Vermont in Massachusetts it’s 347 and 330 respectively there’s an enormous racial
disparity as I’m sure you have read and heard perhaps even witnessed in the
United States black Americans are about 13 percent of the u.s. population that’s
13 but make up about 38% of the incarcerated population so about
triply over-represented similar stat in Canada I believe where the the stats
that I found so that black Canadians are about 3% of the Canadian nation but make
up about 10% of the prison population but a very large disproportion in the
number of indigenous people here who are incarcerated making up about 10% of the
Canadian nation what’s a good and but making up close to 28% of the
incarcerated population I don’t want to present this world historically high
degree punitive punitiveness that we have in the US right now as somehow the timeless
essence of our nation well that’s sometimes tempting to do so because it’s
a relatively recent phenomenon rocketing up since the mid 70s
where before hand in recent living memory
America’s incarceration rate was certainly high compared to the EU
countries in Canada but not a whole order of magnitude higher but now things are
different there’s a growing recognition however in
the u.s. that this is a problem that needs to be solved
something that needs to be fixed that recognition is of course not evenly
distributed throughout our political system or throughout our society we have
a president and Attorney General of the federal system who are you know very
reactionary and running ran their campaign in a way on a law-and-order
campaign that was like a ad a vista clash back to the 70s and this is amid
crime violent crime rates that have been on secular decline since the early 90s
but at the state level at the local level and certainly at the level of
think pieces op-eds nonprofit foundations and universities there’s a
strong recognition that our incarceration rate is a disgrace and
that something needs to be done to to lower it and many things need to change
so we become a less punitive Society in the u.s. the question is what needs to
change and very often criminal justice reform becomes a kind
of expansion of the criminal justice system let me give a few examples both
local and national trends from the United States in New York City we have
homicide rates that are lower than they’ve ever been since reliable records
were began to be kept in the early 60s you have a liberal Mayor Bill DeBlasio
just reelected by a very comfortable margin liberal city council and yet one
of the first things that de Blasio did the mayor did in his first term was to
hire 1,100 new police officers that’s what he did with that what you could
think of as a peace dividend hire more police we have a new Speaker of the City
Council who was just elected a few weeks ago named Corey Johnson young at age 35
HIV positive part Korean queer and a fresh new voice in city politics central
to his campaign for being AIDS Speaker of
New York City Council was hiring more police officers there is a vision that
we can solve our problems and create social order without relying so heavily
and police officers but it is still somewhat marginal even to center-left
politicians in a center-left City another example of the expansion of
criminal justice as a reform mechanism the federal Department of Justice
investigative report on Ferguson Missouri where the police killing of a
young man Michael Brown sparked riots with a heavily militarized response that
shocked not just the world but even the United States very often looked into it
and came up with the solution that there needs to be a bigger police budget with
a lot more training both in dealing with people implicit bias training implicit
racial bias training but then there needs to be an expansion of the police
budget and drug courts are a magical solution that is touted right now this
is where center-right criminal justice reformers meet with center-left
criminal justice reformers a recent op-ed by Newt Gingrich former Speaker of
the House conservative Republican Trump supporter and Van Jones black
progressive CNN news commentator and leader of the cut 50 Enterprise to cut
the American incarceration rate by 15 co-authored an op-ed saying the solution
is drug courts and what this does of course is expand the criminal justice
system to incorporate more kinds of therapy but always under the purview of
the criminal justice system not in the Department of Health but in the
Department of Justice and that difference is significant I think this
needs to be rethought this tendency to reform and fix the criminal justice
system in the u.s. by expanding it as the Austrian sociologist Rudolf gold
she’d wrote about a century ago the budget is the skeleton of the state
stripped of all misleading ideologies to paraphrase that sometimes it pays to hit
the ideological mute button on what people in politics are saying and just
look at what parts of government are expanding getting more Authority getting
more money and we see that many of these nice reform efforts the sweet spot where
center right and center left meet is an expansion of budget and authority and
the message that I want to bring to you you’ve probably heard it before is that
the real solution long-term and very often short and medium turn as well to
our over punitive society and our sky-high world-beating incarceration
rate flies fundamentally in transferring massive amounts of budget and authority
from the criminal justice system to non-punitive arms of the state okay and
I want to talk about that but what we see more and more in the expansion of
the criminal justice system in often in a humane way into west coercive forms of
regulating people and to intervene in in their lives is a kind of net widening
widening the net and net widening are the terms of art used to describe this
process by which people who might not necessarily have been caught up in the
criminal justice system to begin with now are because the criminal justice
system has assumed a kind of coercive therapeutic role through probation
services through rehab services and other kinds of coercive therapy that that are
meant to you know intervene after people have been caught or busted or arrested
there’s an excellent article by Carl Takei of the American Civil Liberties
Union from mass incarceration to man control published in the UPenn Journal
of of social justice that explores the problem of this and very often with in
strong incentives from private enterprises that are contracted by the
government to perform these therapeutic services but always contracted by the
Department of Justice and by the criminal justice system often they have
an incentive to keep people in their system of taking urine tests of showing
up to mandatory treatments you know education classes it’s staying in as
long as possible and it’s very easy for private firms to gain this so even if
there’s a cash incentive or monetary incentive provided by the state to get
people out to keep people in the categorical imperative of any private
firm is of course to make money and that’s just the amoral nature of it they
say that you know without any condemnation really it’s critical I
think to focus on how to shrink the criminal justice system there are a lot
of sexy interesting topics right now you know that involve you know flashy moving
parts in criminal justice system but I’m not sure they address that the you know
the fundamental issue beneath it what we see in Portugal for instance was a very
successful effort deemed successful across the political spectrum where
dealing with illegal drugs was pulled out by the roots from the criminal
justice system and repotted transplanted into the Ministry of Health so now if
you are caught shooting up in public there you get a ticket or just
information from the police where you are referred to the Ministry of Health
and you don’t suffer consequences there if you don’t show up you aren’t thrown
back into prison if you fail a urine test but instead there is a well-funded and
it’s essential that it be well-funded public health approach there you know
that will provide therapy to those who need it and there is a clear distinction
made between someone who might be caught smoking hashish in the street and
someone caught for the seventh time injecting heroine as to what kind of
response is needed so it’s not all conglomerated together needlessly the
criminal justice system one thought was supposed to shrink on its own accord
with the economic downturn of 2008 but it hasn’t really happened that way and
historically that’s not how things happen first of all prisons don’t close
on their own and there isn’t really much savings in in prison budgets unless you
close either entire wings of Prisons or it shut down entire prisons themselves
this is because so much of the cost of incarceration are with overhead and the
average cost of a prisoner is much higher than the marginal cost to put it
in economic terms so even if you you know close you know empty urine you’re
incarcerated pump by 30% which New York State has done since its peak you might
find that you’re still spending just as much money as New York State still is
and some prisons have been reconverted but there’s a strong incentive to keep
you know these jobs in rural communities where the prisons are increasingly
shoehorn I want to point out that these are not private prisons but usually
public prisons there’s a mistaken emphasis in the United States on private
prisons as the driver of mass incarceration and as you know being the
kind of monopoly moneybags villain who’s behind it all and I can see
psychologically why that is it’s kind of comforting to think that we have this
horrible and sadistic system because a few people are making big
money off of it I think it’s truly disturbing to realize the fact that this
is actually the result of the general political will by no means unanimous and
many people are against it but this is a collective political choice that we in
the United States have made and although there are some you know financial
incentives from the public sector unions of corrections officers and other
service providers only about 5% of our total prisoners in the US are in
for-profit facilities now the percentage is much higher in the federal system and
that gets weighed out but only about 12 to 15 percent of the total incarcerated
population in the u.s. is in the federal system Washington’s role in criminal
justice in the u.s. is surprisingly if you don’t follow this small and right
now I would say thank God for that now the stickiness of these economic
incentives to maintain prisons and it keeps spending it can be overstated it’s
true that for many rural mostly white areas this is you know the main employer
but economists who have looked at the impact of prisons have not found that
they are that enriching to a particular county or region and that many people
you know when asked are provided with alternatives would prefer to have other
ways of employment than as a corrections officer the husband and wife team of
Ruthie Wilson Gilmore a great scholar and Craig well Craig Gilmore an
organizer as well as an intellectual have done successful organizing
campaigns in California around this issue and it can be beat it’s not
entirely hopeless the challenge right now I think is to change horses in the
middle of the stream and find other ways of maintaining a benign social order I
mean actually social order I can’t say the social order we have now is is
benign but switching from a punitive approach to
other arms of the state and that is not easy the social disorder caused by you
know opioid heroin and fentanyl use in public is very real and I don’t think
anyone wants to see needles or you know on their streets dirty needles around or
in their playgrounds but in order for this to happen it there needs to be not
just a letting go on the side of the criminal justice system but a picking up
in the public health world and then the medical treatment world and there needs
to be will there and belief among public health professionals and bureaucrats at
the local level that harm reduction strategies can work in the u.s. right
now all eyes are on Philadelphia which just elected in a landslide a new
district attorney who is utterly different from all the district
attorneys who have come before someone named Larry crasner who is a career
criminal defense and civil rights attorney and already a large percentage
of the the career prosecutors have been let go from the office since
krasner took office in January and there’s been an announcement that a safe
injection facility will be opened up Philadelphia is one of the cities that
has the harshest problems with fentanyl and heroin use but part of the challenge
there will be not just instilling new habits in the police department and even
the prosecutor’s office deceased prosecuting these as as drug crimes but
also to build up that capacity in the ability to treat fentanyl and heroin
users in a non-punitive way in a way that is completely separate from the
criminal justice system we find looking at what effects crime and what can lower
the incarcerated population that shuffling budget and money from one kind
of police activity another is is only a small part of it
that very often the solution lies in to diverting budget and energy to arms of
government that are not punitive at all for instance employment the relationship
between employment and serious crime rates is not straightforward and the
secular spike in violent crime in the United States between 1960 in the early
90s was often accompanied by tight labor markets so it’s not a crystal clear and
simple relationship however University of Chicago just got very dramatic
results published in the journal Science which found a significant drop in
violent crime after a randomized trial that gave working-class youth in Chicago
summer jobs moreover this drop in arrest rates for violent crime lasted not just
in the summer but for a full year and a half so that’s where money can go
expanding healthcare in general not just drug treatment also seems to correlate
with a drop in crime as Brookings Institution just published in a
meta-analysis by Jennifer Doleac this is a double move in all cases and it’s
challenging to change horses in the middle of the stream and I want to
differentiate what I’m saying the message I’m getting with the
conservative libertarian view which just seems to have faith in you know ending
policing and ending punitive state approaches to these problems and just
hoping for the best that either private corporations can and can clean it up
through for-profit treatment services or that some mythical community will take
over we found that was not the case in the u.s. with the massive wave of
deinstitutionalization of people with mental illness that in the absence of
local treatment that was well funded and well resourced all this led to was a
reshuffling of people from mental institutions into prisons and now the
largest mental institutions in the United States
are the county jails of Chicago and Los Angeles as the sheriff’s who run those
facilities are saying at every opportunity to any audience but while we
need to come up with not punitive approaches to mental illness they have
to be adequately funded and and planned out and there are other strategies to
combat crime and to combat it preempted punitive state responses to this by
funding some community groups to that do a great job at violent violence prevention
Patrick Sharkey chair of the NYU sociology department has a fascinating
new book out and he talks about going to Perth Australia where he spent a few
nights traveling around with the indigenous Aboriginal anti violence
groups that are not done on a volunteer basis but are professionalized and
adequately funded by the government and Australia has found that happy results
there in preventing arrests and also preventing what comes after arrest very
often deaths in prison for this vulnerable and at-risk population always
this is a double move so I want to compare what I’m saying to a school of
thought that is getting more and more attention which is awfully good that’s
abolitionism prison abolitionism which you may have heard of Angela Davis the
veteran radical who continues to inspire many people is the figure most commonly
associated with that and there’s a metaphor here that prisons just like
slavery can and should be abolished I I think this is an important and really
essential school of thought and it’s a vision that feeds Pratt and nourishes
practical work done by a growing number of people who work in prison reform who
work in the criminal justice system and social workers and who are doing at you
know straight things I think about the
program administrator at the prison ed program where I taught a year ago is a
prison abolitionist I don’t think it’s unfair to say at the same time that the
audience for prison abolitionism is never likely to be more than small and
small groups of people can do can be incredibly important and do essential
things and I say this want to make clear not in any way to denigrate or cast
aspersions on prison abolitionism but I think there’s a need to come up with a
language for people who are not ready to embrace that metaphor that might be
substantially the same might be a little bit different but you know a little
language that’s a little blander and I see that as part of my role as a
journalist and and activist to to come up with that now why harp on
the need for to shrink the criminal justice system isn’t it obvious and
implicit in any project to reform the system Oh as I have been telling you I
don’t think it’s obvious at all and I think it’s something that can get lost
surprisingly easily certainly in the sweet spot of center left center right
criminal justice reform whereas I have been you know giving examples the so
often reform work is a kind of expansion where the criminal justice system can
grow to include softer forms of social control rather than transplant budget
and authority to other arms of the state but even in two of the other predominant
lenses with which people view criminal justice and reform this this need for
shrinkage can sometimes get lost two of the the most common ways to look at
criminal justice reform in the center left and on the radical left too are seen as
a part of anti racism and as a kind of legal reform and let me talk about those
anti racism is an essential part of criminal justice reform in the US giving
the racist disparities that exist at every level in the continuities between
slavery and violently enforced white supremacy and our present-day can be
kind of in-your-face take the example of Louisiana State
Penitentiary it’s on the site of a former slave plantation called Angola so
named because that’s where many of its slaves came from and black men in
bondage continued to farm that land at the same time even though this legacy
and and present-day existence of violently enforced white supremacy is
the largest single part I think of what determines our criminal justice overdose
and overkill in the US I don’t think it’s more than half the picture and
they’re more other than other things going on as well and it’s important to
keep that in sight first of all when we talk about closing racial gaps and
racial disparities in criminal justice a system of the u.s. it’s not always
exactly clear what we mean take an immortal story from the onion news paper
white girl to be prosecuted as black man very often it’s not clear whether we are
going to close racial disparities by leveling up or leveling down whether
we’re going to find inequality of dignity treating everyone like no a
well-off upper middle class white teenager or treating everyone harshly
like a working-class young black man and that may sound strange isn’t it obvious
we should treat everyone with equal dignity it’s not obvious in the United
States and in the anglo-saxon world in general the post Puritan
english-speaking world very often the leveling tendency has been to treat
everyone you know to an equal degree of nastiness there’s an excellent book by
James Q Whitman a law professor and historian in
that comparing the criminal justice regimes in Germany and France where in
the past aristocrats who were imprisoned for whatever reason were granted special
privileges in jail was kind of like a hotel stay and how those privileges
slowly filtered down to include everyone and so they’re kind of leveling up it
may seem shocking to you here it certainly does in the United States
to find that in Germany not only can the great majority of prisoners vote but
they are actively encouraged to do so and they get federal holidays off from
their jobs in prison that’s not how it is in the United States it lets the seem
far-fetched in thinking about closing racial gaps in the United States
criminal justice system considered the example of Minnesota which in 1992 took
it upon itself to close the sentencing disparity between for crack cocaine
which has mostly non-white users and powder cocaine with mostly white users
and the state Supreme Court decided quite rightly that the sentencing
disparity violated the state constitution against equal treatment
under the law how did they close it by punishing people caught with powder
cocaine just as harshly as crack cocaine users and there are other examples like
that this is in the news now more and more because with the growing heroin and
fentanyl crisis in the US there’s a myth in the US that because a majority of the
victims are white we have somehow switched to a public health paradigm in
contrast to the days of the crack wave of the 80s and 90s and once in a while
one can read about a particular Police Department that has hired a couple of
nurses or social workers and is inviting users to just drop in and get a referral
and these stories make our great dog bites man story
you know human interest but not at all representative of the most common
approach in our very large country where there is still a great deal of punitive
ferocity directed at at opioid users in heroin and fentanyl users and it just
doesn’t make a very good feel good news story when say some 19 year old you know
you know young white woman dies in a rural jail in Oregon you know from a
heroin overdose or going through withdrawal but that’s still a very much a problem we have not turned the corner to a public health approach at all Law Reform is
another way that we tend to look at criminal justice reform and of course we
should because law is important needless to say we are at Osgoode Hall I don’t need to tell you that law is a big part of it at the same time I think it may not be quite as big as it
seems even sentencing law which one school of thought gives overwhelming
weight to in explaining America’s incredibly large incarceration rate in
prison population might not be the huge driver that it is other scholars
particularly John Paff an economist and law professor at Fordham have noted that
the big spikes in incarceration rate in new admissions and and overall prison
pop have not marched in lockstep with the the imposition of mandatory minimums
that very often the determining factor is just the budget of the prosecutors
Department and when a prosecutor’s office has more budget and can hire more
staff and can afford to be more aggressive and there’s been no
comparable growth in the budget of the public defender’s office then that
explains you know the huge growth in in higher and harsher sentences in higher
charges more than the new raft of mandatory minimums which are certainly a
big part of it too but not it you know all powerful the lawyerly devotion to
legal procedure can sometimes obscure substantive
outcomes the project of criminal justice reform in the US and lowering our
incarceration rate is a generational project and may turn out to be a
multi-generational project it’s not going to be solved with just a single
piece of legislation in Washington especially given how disaggregated and
hyper localized American criminal justice like US government in general is
but we can only wonder what criminal justice reform movement might look like
in 30 or 40 years I just think of what’s happened to the human rights movement
and human rights industry since its founding in the 70s the fact that now a
major media outlet like Newsweek magazine can write about a human rights
approach to drone assassination you know where President President Obama’s author
of a legal rationale for Jones was a league-leading human rights lawyer just
shows that you know once the eruption of a new reform movement cool solidifies
and institutionalizes it can be put to all kinds of uses and I think that it’s
not paranoid to be wary of what an institutionalized criminal justice
movement reform movement might look like in 30 years and the need to stress
always the substantive goal of not just clean procedure but also the need to
shrink people under any kind the number of people under any kind of supervision
whether it’s directly carceral or whether it’s some kind of extra carceral
monitoring of the criminal justice system i mean lawyers like law law
professors love law but that solution is not always more law I want to close by
just telling you some of the questions on my mind about this some directions I
want to take this you know in my own writing of op eds think pieces and
perhaps some scholarship institutions in general grow more easily than they
shrink and don’t like to shrink so what are some
examples of this I was at the Ala Jubei prison Museum in the gorgeous Alfama
neighbourhood of Portugal a year and a half ago and this prison this building
had been a prison for centuries probably on an offer over a millennium Algie Bay
is the Arabic word for a dry cistern which is also a more vernacular word for
dungeon or prison and it was been used as a prison on and off and eventually
for political prisoners who resisted the the Salazar regime and to me that just
shows how difficult it is to shut down a prison not impossible but difficult what
are some successful examples or even failed examples of dakar serration the
u.s. right now is up their world historically is one of the most punitive
regimes and one of the most carceral states in world history up there with
legal asana in the 4th and 3rd centuries BCE in late Imperial Rome from the 3rd
to 5th centuries a Common Era and the peak gulag Soviet Union now late
Imperial Rome’s punitive state apparatus collapsed with the Empire and I wonder
if that’s what it might take some day in the United States more happily let’s
look at the Soviet Union and and where there was a real emptying out of the
gulag after the death of Stalin I want to know more about this was their
resistance to Dakar serration was there an attempt to repurpose the punitive
apparatus there I’m sure there was but by the end of the Soviet Union in the
last two decades of it their incarceration rate was significantly
lower than the contemporary American incarceration rate and you know that
should give any of us Americans pause you know there are many indexes of a
society’s freedom but I think the most important one is not just the rhetoric
and the blahblah and the ability to start a new business but
many people are getting locked up I think that is the highest consideration
another object of study is an object lesson in failure but that might shed
some light on how to dakar serrate is the failure of the US defense industry
to convert to civilian needs after the Cold War and its end
now many foreign bases in Europe in particular have shut down by the
Department of Defense and its budgets have not at all collapsed and they are
higher than ever and instead you have a kind of supply driven threat inflation
what can we learn from that object lesson in failure you know it you know
to you know be equipped to face the challenges because any kind of punitive
apparatus does not shut down by itself I asked the police chief of Camden New
Jersey an impoverished city very close to Philadelphia if he thought you know
that it was his Police Department that was really best equipped to deal with
mental illness and drug use which is you know a large part of what police
departments do nowadays and he said with great weariness and I think with real
compassion to like oh god don’t get me started
I mean if you can’t medicate it you incarcerate it in those days and then
when I asked him and there was a former police chief of Tampa Bay Florida well
do you think then that you know these police departments budgets should be
gouged and that budget should be transferred to the public in department
of public house they suddenly got well I wouldn’t say that you know and you know
there’s an absolute need to do that to have that strategic shift of budget and
authority away from the punitive arms of the state to the non-punitive arms of
the state I don’t think this is totally hopeless I mean there have been several
prisons that have been converted you know all around into museums or
condominiums or just left to rot and I was you Bay prison in Lisbon which I
visited it’s now a really great museum dedicated to the victims of fascism and
to the anti-colonial struggle against Portugal surprisingly long lived african
empire and in that struggle so it can’t be done it’s not hopeless but I think
always with the eyes on the prize and that’s not just short term transfer of
people from prisons to other forms of monitoring by the criminal justice
system where they’re at risk to be thrown back into prison you know with
just one fit you know missed appointment or failed urine test and even you know
when we look at the very new pressing need for closing racial disparities and
for law reform we’ve got to keep our eyes on the prize of actually shrinking
the whole system and finding a benign social order in other forms of
governance I’d be happy to take questions now and please introduce
yourself if you don’t mind I’d love to hear about you know whatever you guys
are doing – we have a roving mic good earlier on you mentioned that the
emphasis on private prisons and their hand in growing the criminal justice
system is often over emphasized I was wondering how would you situate
the the larger prison industrial complex in terms of you know lobbying groups
that are meant to represent prison guards and other support staff as well
as the industries that create you know textiles in supply food for these
prisons because I understand that a lot of even government-run prisons award
these contracts no so how would you situate those groups within this topic
of the growing criminal justice system I I think it’s essential to look at these
lobbying groups and their interests without a doubt and I uttered that word
of caution not to dismiss but just so that too much weight is not placed on
its butt typically had private prisons but as to
scholar to notable scholars Murray got shocked geo TT SCH ALK and Ruthie Wilson
Gilmore I’ve shown these economic interests are not insurmountable they’re
sticky but they’re not bolted in ok and and it’s always about offering people
are benefiting from decent sentiments with some alternative a hell of a lot of
corrections officers don’t like their jobs and if they could get you know a
comparable wage doing something else they would jump at the chance you know
and it’s about offering something better I mean and I am pushing this requires
government spending I’m not gonna pussy foot around that that’s essential and
you know prison reform is much easier in a social democratic context overall
whether we’re talking about the services you’re providing prisoners or whether
you know alternate means of employment that you were offering people who
currently benefit you know that the wage level or the career level from the
carceral system but Murray got Chuck in particular somewhat skeptical of the
notion or the the phrase a – industrial complex you know which is I the
military-industrial complex really the the father of that you know and it’s
very useful for some things but it’s maybe obscures some things as well as
cogently clarifies then so yeah I mean these these incentives I think very
often though it’s a political choice and the culture of punitive nests in the
United States is something that’s really grim I think the way to overcome this
culture though it’s not by individual conversion of people to like missionary
I don’t think that’s how you change people said so much is by changing laws
and institutions the to move in lockstep and it it’s not easy
any of it yes can we get a mic thank you for your
presentation as you’re speaking I was thinking of so many many things
especially when you mentioned Angela Davis and I recall the time as a little
girl wanting to run away and join the Black Panther Party and she had the big
afro and it was all inspiring and we understand now her history with the
prison system but I wanted to ask you your thoughts about you mentioned
underlying causes and I’m interested in hearing more about the underlying causes
for not advancing towards some of the changes you’ve highlighted such as what
we have observed say in Australia where different systems of justice are taking
place and are proving to be highly effective for marginalised groups so I’d
like to hear more maybe some more examples of why that transformation
isn’t taking hold yeah although in Western you know in Canada and the
United States we’re making these observations but yet not gravitating
towards them and the second thing I wanted to comment on or to hear your
thoughts about is Professor Derrick Bell a famous legal scholar talked about this
model of interest convergence it was one of the theories and critical race theory
to help explain why change is so difficult and he drew our attention to
the idea of when we try to eliminate segregation for example it’s that did
not take hold until white power elites saw that with the hoses and the police
and the protests in the streets began to erode America’s value proposition of
being the greatest liberal democracy on earth when the whole world was seeing
that it was not so in the light of day it wasn’t until that erosion started to
take place that there was a move towards really desegregating schools it wasn’t
the idea of people liberal good liberal intentions you know to pave the way so
he had this model that it was due to interest conversions and I wondered if
that type of model can apply to the prison reform that you’re speaking of in
terms of its abolition much like the abolition of segregated schools and
Brown versus Board of Education in the u.s. yeah thank you for two great
questions I’m gonna answer the first one and then I’m going to undermine my own
answer so what are the the kind of you know underlying things that make reform
so difficult and that really led to this you know cancer like growth in punitive
nests and prisons and Punnett in state punishment in general in the u.s. I mean
the three long delay answers that people give up and come up with frequently are
you know the the history in the United States of violently enforced white
supremacy you know first by slavery and then by
the descendants of late Jim Crow and that now that’s something that summed up
in you know the new Jim Crow by Michelle Alexander I don’t know if that book has
been is tremendously popular in galvanizing and here in Canada has it
has been in the US also the fact that US is a settler colonial society by Canada
you all know what that means but there’s a you know that it kind of gets a lot of
violence into the the cultural DNA of a society and third the kind of
puritanical cultural attitude where equality means leveling everyone down
and always lay you know cutting down the mighty and degrading people so that
the you know this equality of objection that we see not happening at all in
other you know Western countries you know like Germany or France where
there’s been a leveling up now what undermines the value of these three long
term you know cultural or longer explanations is that it’s only until the
late 70s in the United States that you have this you know violent spike in
incarceration and all those three explanations they were valid 50 years
ago you know we’re a hundred where our incarceration rate was always higher but
still comparable to say Finland or Germany so there’s something new in the
past forty years now Michelle Alexander sums up a story that many people find
very compelling okay in her book the new Jim Crow and that’s that there’s a
backlash a white backlash to the gains made by black Americans in the civil
rights movement and since you know slavery and de jure segregation are now
illegal there’s a turn to incarcerate them you know through you know disparate
treatment under drug laws in particular and that’s kind of the common sense
explanation among American reformers it’s an explanation that has deep flaws
in it though or you know deep problems there’s an excellent essay which you may
well be familiar with by James Forman jr. in the New York and weiu Law Review
with the wealth of information and he points out that there’s some truth to
that for sure I mean there is disparate enforcement of drug laws I mean
marijuana use rates among white people and black people in the US are pretty
much the same but the arrests are much higher for me one but still even if you
released every single nonviolent drug offender in the US the US would still
have the highest incarceration rate in the world
I want I’m gonna say that again because that’s something that’s outside the
common sense of reformers in the u.s. or you know but even if you locked up every
nonviolent drug offender in the u.s. we would still have the highest
incarceration rate now nonviolent drug offenders are anywhere between you know
it varies a lot from state to state it’s about 20 to 25 percent big piece of the
puzzle it’s not a reason not to let them out you know but that is not the driver
or the only driver by any means and Forman also points out and this is
leading to your second question that you have the same giant spike in
incarceration even in states of of the Union where there are very few black
people Idaho Wyoming Oklahoma Oklahoma is one of the most punitive states and
it’s it’s not the dynamic there isn’t the racial dynamism or may be more
indigenous and white then you know it does have a history of anti black racism
too you know but it but even the incarceration rate for white people is
skyrocketed to so interest convergence I mean I the politics are tricky because
in it difficult and take some finesse in navigating and take a lot of tact and
coalition building because first of all what tends to motivate people is
morality or a moralized sense of their own interests or their own wrongs and
it’s really important to you know listen to math and and honor that but there has
to be you know there has to be room for interest coalition’s to build to and I
was encouraged greatly by a tweet I just saw by someone who’s running for
governor of Maryland and has an excellent chance of being the next
governor on the Democratic ticket and he’s a former president of the n-double
a-c-p his name is Benjamin jealous he’s someone who is into criminal justice
reform before it got discovered by the foundations before it was cool and he
wrote out I can’t remember the exact words was like you know it’s horrible we
have the highest black and Carson raishin rate in the world that’s
shocking but guess what we also have the highest white incarceration rate in the
world and let’s work on this together and end it and I thought wow you know
this guy’s going to win and and and it’s it’s tough because how can I you know
put this you know for many liberals and left of center people in the United
States that the predominant sin and problem with our criminal justice system
can is summed up in two words racial disparities okay and that certainly is a
problem but I can guarantee that the bulk of white people will not be that
interested if they say oh well it’s a black problem
okay well then black people can solve it only if there’s a realization that this
is also a problem that is harming a lot of white people too and you know I it’s
unfortunate that’s that it’s that way but that’s really how it is and waiting
for a kind of anti racism you know enlightenment to come and the anti
racism rapture that’s not a political strategy so so I think that you know if
I remember correctly Darth bell he doesn’t he for him this interest
convergence there is somewhat pejorative in nature I mean he points out that this
was utterly self-interested and you know it was to a high degree self-interest it
interested and by Cold War logic to if you’re trying to you know win hearts and
minds of post you know deep recently decolonized non-white nations and
they’re seeing what Bull Connor is doing on TV you know you you know there was
major pressure from the State Department to you know step this up this this has
got to stop but I think there needs to be more politics of interest in the
United States and finding that interest in couching it in language that gives
people an on-ramp to it you know people who are not already there is very
important and very tricky and very challenging but it has to be done yeah hi my name is Brennan so at the very
start we talked to vote how not only is this a right wing position to take up
that incarceration is not an incarceration but the expansion of the
criminal justice system is positive is a good thing we spoke of Bill DeBlasio
calling for 1,100 new police officers in that sense it’s undeniable that it is a
politically popular thing to expand the criminal justice system certainly the
u.s. is that is there a reason that you think for that like how does the US
compared to elsewhere in terms of maybe a public perception of danger in the
imminency of that danger such that it may feel that you can’t wait for a
health policy to take effect yeah I need someone to keep my child from even X
fentanyl overdose yeah well III think it’s not so much that the fentanyl
overdose is part of it but I think it’s because the fact that even though the US
has a fairly low homicide rate now compared to the past 40 years it’s still
higher and a lot higher than in Germany or Canada or Japan there are a lot of
guns and we’re heavily mediatised Society I think probably more so than in
other OECD nations and the cable news cycle is all about constantly drumming
up fear of violence and violent crime and the amount of public ignorance in
the United States the results is staggering I mean there was a recent
poll by chaplain universe Chapman University they found that you know over
half the u.s. thinks that crime violent crime is getting is worse than ever and
still getting worse when in fact it’s been on a secular decline since the 90s
I mean in this decline has been uneven and I can see why people living in
Baltimore or the west side of Chicago might say yeah things are wasn’t but
overall the u.s. is is much safer than it’s been so I think media and and not
just in the kind of junk tabloid may be media and in cable news media but even
the quality media reporting on crime is frequently very
enumerate and the struggle for real criminal justice reform is a struggle
for numeracy to the idea that oh my god you know crime just went up you know 30
percent you know well there’s a need to know about base rates if you’re starting
from a very low rate than a 30% increase in you know over the month before is
kind of meaningless when you’re talking about low incident events you know a
large spike is kind of meaningless I mean as john path a very empirically
minded economist a law professor i mentioned earlier a generally speaking
the larger the number of increased the smaller the real increase and the more
meaningless it is so and also i mean i think that if two large degree people
don’t know what they want and the vision of a social order that is less heavily
reliant on police and law enforcement been forcefully presented enough and i
think it is slowly entering the mainstream and i think 10 years from now
things will be different for the better and I’m greatly encouraged by the way by
the fact that many urban district attorneys races have been politicized in
a good way I don’t know how it is in Canada but prosecutors in nearly all of
the 50 states the US are elected it’s a political position that wields immense
power it’s not just a you know being a technocratic jurist system it you’re
elected and the fact that prosecutors and big cities in particular under real
pressure to show now that they do not want to lock people off that they want
to find alternatives to punishment is very encouraging especially with the
election of Larry crasner in Philadelphia this is something genuinely
new a major American city with a prosecutor who has a vision of criminal
justice that is fundamentally different not slightly less bad but fundamentally
different from what came before so I I think you know the heartbreaking thing
about de Blasio hiring new police and the new City Council Speaker agitating
for more police’s I don’t I think they could have gotten away easily without
doing it I think it was more pre-emptive to preempt any possible criticism rather
than a response to public demand and I think we’re at a kind of a turning point
there that talk was really great thank you so I think a lot my name is Daniel I
think a lot about the relationship between culture and ideology on the one
hand and institutions and laws and the other and I agree that the sort of
meaningful changes that were looking for here need to kind of be inscribed and
it’s in laws and and sort of encoded in institutions but of course it’s very
hard to do that when we have like a sort of spectacular media cycle of that as
we’re just saying you know sort of capitalizes on crimes of the worst
magnitude and often talks for you and critically about them
and that you know like I’m persuaded by this idea that this sort of you know
punitive impulse in American culture precedes some of the kind of material or
economic you know things that have that have shaped it you know sort of like
Roger Lancaster’s argument about like the punitive turn preceding the sort of
new liberalization of the of the market of the culture of the economy in the
early 70s and late 60s so my question then is that when when you have this
sort of cycle of attempts to you know sort of intervene in laws and
institutions and then this like unbelievable reaction in sort of like
spectacular crime public sort of you know like there there’s a retrenchment
of sort of like punitive impulses in the public because of like oh my goodness
we’re all in danger you know me too is part of this in
certain ways right like that kind of like feeling that if I
crime is everywhere it is stranger danger and we need to be protected right
so my question is like do you think I mean well what do you think are the
relative merits of trying to intervene as a sort of directly as in a sort of
single issue kind of way the way that abolitionists can sometimes err on the
side of doing in criminal justice reform and to what extent do you think that
this needs to be connected to a broader kind of interest based politics that
seeks to you know sort of reestablish the terms of the social contract in
America on let’s say like Social Democratic on a social democratic basis
through things like progressive taxation and you know medicare for all and
whatever that aren’t as highly spectacular eyes as criminal justice
perform per se yeah well I think you need both you need a full spectrum
attack on this and criminal justice shrinkage you know will be a lot easier
in a social democratic climate okay it’s a lot easier to convince people that
prisoners should be able to you know take classes and learn skills and you
know have books and things if and you know have classes if people outside the
prisons have a right to those things too it’s a lot easier to convince people
that prisoners should be entitled to Medicaid expansion and quality state
provided health care if people outside the prison have those things – I mean
this may seem shocking to you but yeah a lot of people resent prisoners in the
United States like and when I taught I taught a year ago a course in a
medium-security prison and it was great my students were just wonderful man they
had just the best manners in their you know great attitudes always did the
reading and I missed students and I just saw five of my
former students last week because they’ve since been released and you know
they’re all smiles and and taking you know enrolled and at either at NYU or
Columbia and you know working jobs and it was just great to see them but you
know I going up to their prison some of the corrections officers you know we’re
super nice like some of them they could fit in this room and I wouldn’t be able
to guess that they’re corrections officers but then other guys I’m
thinking of one guy in particular was like a stereotype of the stereotype of
the surly beady-eyed alcoholic looking corrections officer I’d get like one
foot out you know the classroom at the end of the class tonight here’s so how
is this gonna help them get a job why why do they deserve this my kids can’t
go to college you know and and you know that this resentment you know it’s it’s
bound to happen though it’s entirely predictable in a nation where health
care is not a matter of right and people go bankrupt paying for it where you know
the social contract is shredded and frayed on many ends I mean this is the
reason why in Norway you know Germany where there’s a very thick universal
welfare state you know politicians can offer or you know you know high quality
services and you know rehabilitation activities whitewater rafting trips to
prisoners because you know other people can do those things too so I I don’t
know to answer your question I think you need both but I I and I I’m always happy
to work towards common ground with center-right criminal justice reform
errs whose main issue is fiscal conservatism with libertarians who are
great on many civil libertarian issues but also tend to be extremely fiscally
conservative privatize their own grandmother’s if they could and and also
Christian conservatives who have their own vision for how things should be you
know and I wrote a cover story for a right-wing
magazine interviewing the former head of the largest prison ministry in the
United States which now has a policy advocacy wing that’s all about shrinking
the criminal justice system interviewing and there’s there’s common ground to be
found but you know common ground doesn’t mean complete overlap and you capitulate
and I think anyone left of center and I think even people right-of-center
should do some rethinking about the direction of the consensus of criminal
justice reform which as I was talking about leads to just a kind of a marriage
of the culture of punishment and the culture of therapy with you know the the
the punitive state apparatus still being in charge
that’s not something it’s not a road we want to go down because this could be
path dependent as they say and in 30 years God knows how dystopian even more
dystopian that could look like so yeah all of the above I know that’s not a
great answer we do in real life have to prioritize things political energy and
time and budget you know has to be prioritized but there’s room for a lot
of approaches another question well I’ll tell you I mean I this first whole
concept was like a seed planted in my mind when I first started practicing law
I worked at a community center nonprofit in a spanish-speaking immigrant part of
Brooklyn you know very working-class I would say back in the 80s and 90s it
would qualify as a slum now it’s a working-class neighborhood I mean it’s
doing much better but going to the local high school which my Institute you know
my nonprofit group had a relationship with they had metal detectors and I was
told by students there that the metal detectors were useless there in true
SIV the guards are jerks it’s a terrible way to start the morning and it’s easy
to get anything past it if you put your mind to it for half a second and I was
told the same thing not only by the students but by a teacher or two and
even by a vice principal so what’s the point why do we have this over-policing
if you know and you know one of the things I did as a lawyer you know for
this group was looking at alternatives to metal detectors and police personnel
in a school how can you get social order in a school a an orderly a benign order
for learning without these things and I found you know four or five other
schools with very working-class demographics I’m not talking about the
prestige you know public schools but working-class members look where the the
administrators and teachers at these schools had found you know a different
path where they almost in a ritualized way were emphasizing mutual respect
order but in giving students a voice and how the school was run sometimes in kind
of a token e way but still in a respectful way and these schools had
better disciplinary records you know with far fewer suspensions better
attendance records better four-year graduation rates because it was not the
police personnel running to school and you see this in New York every you know
year or two things have gotten a bit better because you know I’m not the only
one who is noticing this but that you know as a third grader like an eight
year old would be handcuffed in school for I freaking out and having a tenant
that is obviously the wrong way to deal with it and I’m not saying it’s easy to
deal with kids anyone who’s worked in a school knows you know teenager I’m not
weird I don’t like some teenagers to tina’s could be you know the pain in the
ass there’s no no death but there’s a better
way than treating people like potential criminals every single morning and
having them and not only do you have that in it but you’d have every year two
instances of a teacher or even a principal also getting
arrested after trying to intervene if a security guard I mean this isn’t
something that happens every day I don’t want to paint too bleak a picture or
sensational picture so you know the nonprofit group they worked for teamed
up with other nonprofit groups we had a big youth swing and they were doing you
know agitation about this and you know finally the big what it took was more
transparency now transparency does not always work
very often it’s you know nothing but if an institution is capable of being
shamed then it can work and once the the Department of Education in New York
which has 1.1 million students is like the population of Estonia you know it’s
huge complicated but once they started publishing it and people saw the number
of you know 12 year olds getting handcuffed they were shamed into
changing things and it’s a slow process but there’s already real results there
anyway reading about that has got me thinking about well why are we trying to
solve all our problems in the US by throwing police and prosecutors and
prisons at them and that’s something that I’ve written about you know the
over policing of sex even you know you’re in a group that’s even less
popular than sex criminals white-collar criminal bankers I think that there’s
this belief that you can prosecute your way to a just economic order no you
can’t I mean that that’s just reinforcing this bad Apple system in the
u.s. that Wall Street’s actually a wonderful place and the financial system
is perfectly fair except for people who criminally abuse it and Donald well yeah
like that but you know the problem is bigger than just criminal abuses there’s
some things that are very wrong that are not criminal there’s a kind of
regulatory capture right now the whole immigration system is become devoured by
criminal law and you have criminal law encroaching and displacing and
colonizing other areas of law and and you know and that needs to be
checked and rolled back and so I’ve been writing for one conservative magazine
since 2009 mainly starting about foreign policy because believe it or not there
is a minority of conservatives in the US who are very anti-war and think that the
US should not be constantly acting as the world’s policeman and are against
the humanitarian Wars that Democrats often like to do whether in Libya or the
escalade Obama’s escalation of the Afghan war and so finding a new audience
there this is a good way to write I mean I do believe in coalition building and
finding converging interests when you can and you know I have dirty hands with
this and I wouldn’t trust anyone who doesn’t have some you know some dirty
hands I thought of as you were speaking is is pacification really I mean yeah
it’s not just that this target crime specifically but that these mechanisms
the state mechanisms are ways of like even just governing the population well
what why is it now that so you spoke at this moment in the 70s and there’s spike
in violent crime which accompanied an economic slowdown and depression right
why is it now that we have increasing inequality but violent crime has
decreased and it’s even more complicated in that because the spike in violent crime
really starts in the early 60s where you have a booming economy you know largely
up until the mid 70s so yeah I the connection between violent crime
and full employment is something that is not straightforward okay it’s not
straightforward you have other things going on you know in the u.s. you have
massive social dislocation and then reimplantation of the great migration
you know from the south to the north the like working-class African Americans
whose treatment in the north is you know not always so welcoming to say the least
and does anyone surely some people must make the argument that the reason that
there is a that the fact that there is less violent crime actually vindicates
this overwhelming growth and special right in other words there’s less
because it’s worked yeah no that’s a very common argument that well you know
you criticize the carceral state but hey crimes down like draw the connect but
you know in other you know social scientists have tried to piece out just
how much of the drop in crime can be attributed to incapacitating you know
hundreds of thousands of people and surely some of it can be attributed to
that I think you can’t it would be wrong to just deny it categorically but you
also have to ask what’s the opportunity cost
how could crime have been prevented in a way that doesn’t shred the social fabric
and just recondite incredible panoramic view of this and I sense that there’s a
lot of puzzles that you still feel aren’t resolved like these general
theories just don’t seem to work but let me just pause yeah I mean buddy let me
point you to two some writers who’ve looking at the political economy of this
there’s Ruthie Wilson Gilmore Christian Parenti
Loic walk home of course a famous one who’ve all looked at you know that the
explosion of American incarceration in the context of the neoliberal order
after the Keynesian order and what how it all fits together I think it’s
important not to fit the Legos together too tightly though because I think you
do have to look at you’ve had different kinds of neoliberal ization in other
countries in Canada even in Western Europe where you don’t have the
explosion of incarceration I mean and you know the United States is just so
aberrant and from other advanced capitalist countries right now that you
know which doesn’t mean that maybe it’s because America’s you know capitalism is
it’s American characteristics but you know that’s surely part of it anyway the when you when you speak of the
unhappy marriage you know right now between that culture like the therapy
and the punishment side of the criminal justice system it made me think of how
when like when many speak of prevention of preventative approaches they use the
language of like epidemiology and so there’s this like there’s this turn
towards you know big data policing and and have some like it’s being posed as a
more effective or precise way of targeting crime before it or
neighborhoods before serious things happen but what I mean I’ve always
wondered what the where you draw the line between that which is often couched
in progressive terms as and and just straightforward broken broken windows
policing mm-hm I mean yeah connected to that this to
this idea of prevention and how we like how we like somebody on the Left would
would treat these questions is like I wonder like it always seems to come down
to like a greater greater surveillance so maybe fewer people thrown in jail but
just this enhanced targeting well we’ll just rely on like a surveillance of
everyone like I don’t really know how to reconcile these these two impulses and
in the u.s. yeah I mean unfortunately that’s that’s a very accurate view I
mean one recent piece of federal legislation
that Karl Takei ta Kei writes about in a great law review article came out last
year is that uh you know at the federal level demands and legislation for lower
mandatory minimums or fewer mandatory minimums minimums always washed down
with an expansion of kind of outpatient surveillance or of you know you know
expansion of probation and the need for probation and which often go to private
companies and the the trick is to just I think make the right demand it’s it’s
not we just need fewer people period in the criminal justice system we need to
shrink the system period while expanding other non-punitive arms has to be non
punitive and in talking about decriminalization in Portugal I mean I
talked to some people about that say oh yeah well we have drug courts here
that’s kind of the same thing well no it’s not if if it’s essential even
though this is like a boring thing it’s a question of bureaucracies and
institutions you have to pull all this out by the roots from the justice system
and repot it and Transplant it in the Department of Health the Department of
Health and Human Services what-have-you and and just transfer that budget and
authority you can’t just expand in a softer but still very coercive way and I
just think that we’re at a point where center-left and even center-right
advocates really need to wise up a bit about what we’re they’re really pushing
for oh end go back very quickly to Daniel I mean you’re despairing a bit
about well the media does this you know the oh there’s the tabloid media with
its angle it’s sensational but you know universities have a lot of power law
schools have a lot of power the bar wields a lot of power and to instill a
totally different guiding ethic in law in legal professionals of all kinds in
people with degrees okay that has a real impact on
the whole society I mean you know the tabloid press does not always win yeah
hi I’m Evelyn third year law and I noticed you made some reference and and
we’re separating violent drug offenders from nonviolent drug offenders and
certainly I agree with your point that the way to decrease incarceration rates
is not to have more legislation but I was just thinking about instances where
the violence is committed as a direct result of the drug prohibitions like if
someone’s resisting arrest for a you know drug charge I mean the reason for
that resistance was the criminalization of the drugs they had on them and also
some of the tertiary effects where the criminalization of drugs increases their
value to the point where a number of users addicts turned to property crime
and other means illegal means of getting the money to support their habit or
where drug dealers engage in turf wars again as a result of the legislation and
so when you factor those considerations into the equation the number of people
incarcerated as a result of the drug prohibitions may be considerably higher
yeah I mean the consequences of drug prohibition are large and I don’t mean
to poopoo them and there probably are bigger than the you know 20 to 25
percent who are in strictly speaking for you know nonviolent drug offenses to
back up a bit you know I I make the distinction and
talk because it’s conventionally made but I do very much want to include
people convicted or charged with violent crimes as people whose treatment needs
very much to be reformed and too often you know nonviolent drug offenders are
held up is kind of the poster-child you know for the deserving
recipients of criminal justice reform and sometimes those pieces of
legislation are washed down with harsher sentences for violent criminals and I
think we over punish violent criminals too much we over define what violence is
in the United States it’s very erratic from state to state in in my country
what counts as a violent crime and as you point out circumstantially resisting
arrest which and police have a ton of discretion about what can count as
resisting arrest can lead to that now same time I don’t think that all violent
crimes would go away if drugs were completely decriminalized I mean as one
book ghetto side by Jill Leo V le ovy she writes about it’s a very interesting
book about the homicide squad in Los Angeles where the victims are mostly
working class black and Latino men you know she points out that you know one of
the largest drivers of violence in any society it’s it’s violence is committed
by young men who feel they have no prospects and that’s true whether or not
you know potentially something is criminalized and until you know everyone
you know every young man in particular in the u.s. feels that they have a
chance at a you know you know good living good income and a place in
society you know people that push to the margins
are going to be committing some degree of more violent crime you know but
certainly a group and I never meant to suggest that all violent crime would
disappear if drugs were legal yeah so my name is Regina and I am teaching
assistant at the criminology Department so I thought this was really we found
this really interesting and I was tempted to invite my students this
afternoon and then I forgot and then I came here and I was like wow this is so
interesting I’m kind of glad they didn’t come because they would like so then
they would like I I’m just I was just concerned that they would it would blow
their minds thank you helping me bring it home okay yes so that was that’s
definitely but anyways so to my to my to my question I think I found the talk
very compelling and I’m deeply persuaded by your arguments I I think my question
relates to like where you were going with it right and the comparisons you
draw between the incarceration rate in the u.s. right now and former Roman
Empire in the Soviet Union right and and I thought that was you
know it was it was funny but it was also I was also interesting to see how the
incarceration rates have not gotten back to where they were at the time of the
Soviet Union and so the US could draw some insights from that but I also want
to go back to the comments you made about apples and oranges right so they
obviously don’t have the same history that the US has and you have made the
very important point that about how settler colonialism and violence and and
violently entrenching white supremacy has
been at the heart in the root and the core of criminal justice system I just
wonder if if drawing insights from for example the Soviet Union is is something
that is comparable even and if you’ve thought about how issues around race
would sort of complicated yeah well I comparable yes
identical no I mean I long overdue with the feature article for the Nation
magazine left liberal weekly about Portugal’s
drug decriminalization and what it offers the u.s. of course Portugal is
very different from the us Portugal doesn’t have tons of handguns like
barely any guns and that you know certainly alters how a Portuguese model
might be transplanted or adapted you know I it’s essential to compare than to
look and I know that this some people are uncomfortable with this and
comparing doesn’t mean you just impose it wholesale you always have to adapt to
local circumstances and you know in the United States the criminal the politics
of criminal justice is very much tied up with the politics of race as you point
out but it’s important to look at the way that the politics the criminal
justice system affects you know racial attitudes and racist attitudes
specifically not just the other way around I think too often in the United
States there’s a fixation on racism as kind of this spiritual thing and only by
individual conversion and lycra baptism can the whole nation escape from it
that’s not how it works that’s not how it’s going to be overcome it’s going to
be a come by changing institutions and laws
primarily and you know we almost don’t like to admit this but you know who we
are as individuals our thoughts our consciences or feelings are very much
affected by the institutions we deal with every day
you know school the workplace you know our families other associations you know
that’s and that’s something that’s much more amenable to change many Americans
react very negative many white Americans most white Americans react very
negatively to the imputation of racism again it’s surprising how visceral that
is you would think people would be able to deal with it a little more while
acknowledging which you know I think most people do that the u.s. certainly
has a racist history but you know whether it’s the present that’s where
people disagree about and I think I mean I would like to see the the political
movement for criminal justice reform to be as you know I was talking with Devon
who left four o’clock just like she said you know about interests and finding
common interests as much as at the spiritual level which I think as
politics is not especially fruitful I’m Peter I’m an LLM student here
well first I want to thank you for such a great presentation and your thoughtful
answers to all the questions that we’ve been peppering you with for over an hour
now so I wanted to ask about what you see this being like 40 years from now as
you mentioned and what kind of potential backlashes might exist you mentioned
that after the civil rights there may be or there was sort of a backlash I’ve
heard it referred to as a white lash mm-hmm and I guess one of the unintended
consequences that come to my mind of taking something out of the criminal
justice system and putting it more in a health context is less due process one
of the unintended consequences might be that somebody on the right might say
well this isn’t prison isn’t a criminal justice issue so less
due process is necessary and what we end up putting a whole lot more people in
the system based on that mmm so I’m wondering if if you think that that’s a
concern or if there are other concerns that you think might be unintended
consequences years down the road I mean that scenario that you just sketched out
is so that’s very worrisome and it’s a realistic scenario but I think it points
to the need to make the alternative you know non-coercive okay in a matter of
free choice and treating people like adults guess what if you treat people
like adults they’re much more likely to act like that I mean like good adults I
mean and you know the idea that people are going to refuse to ever get any
mouth medical care if you make it that the option you know or drug treatment
that’s not really what you see in other countries you know be you know one if
there’s a lot of new thinking and in new paradigms that that need to be spread
around and and the way you do that is through universities they’re teaching
you know and changing laws and institutions the whole concept of harm
reduction is very new to most people in the United States harm reduction you
guys some of you may know this not it’s you know in the context of sex work and
in drugs the idea is you don’t try to outlaw these things with their you know
the baggage of social ills and problems they bring with it you just train you
accept it as a reality of life there’s a reason why sex work is called the second
oldest profession but you just try to make it as less bad as possible and for
civil libertarian reasons you know for public health reasons and you know this
is news to a lot of people are not used to thinking like this even my students
in a medium-security prison were just baffled at first by even though many
were locked up for drug-related offenses like Harvard
but you’re you’re letting people have a safe injection nearly giving people why
would you do I mean but that’s just hooking them on one drug methadone or
buprenorphine on drugs well that’s actually not true you can be on
methadone and hold a job maintain normal social relationships with your family in
with your friends it’s not great no one said but life is not great and you know
human beings are a what’s the the academic work or we’re a problematic
species okay and then the idea that you know and I think in the United States
it’s this blind worship of success and this internalized pressure that everyone
should be rich and successful that is absolutely related to our you know mass
unprecedented punishment they go together the inability to accept failure
the weakness of the flesh I mean I’m an atheist but I’m talking your scripture
the inability to accept the frailty of you know you know that it’s so much tied
together and and I think it means you know I I was just saying that it’s not a
spiritual thing but I think by changing institutions we need to change attitudes
and a paradigm shift like that and that’s my best-case scenario for this
but you know we need to push it for it to be not just less coercive but totally
out of the criminal justice system transplanted root and branch okay hi my name is Fred I’m a researcher we
just recently actually submitted a brief on Bill OC 59 which which is national
security overhaul in Canada it’s going through the committee process as we
speak in fact and I guess a question I have is a great deal of policing in
Canada today it’s predicated on prevention hmm and taking it further
from something another speaker said or somebody here you had raised this so
it’s focused on prevention but not in the traditional sense that we understand
prevention it’s a proactive form of prevention intelligence-led policing you
know which is very disruptive and the danger of that is that it takes us out
of the criminal justice system altogether which is an evident
evidence-based system and puts us into the suspicion based system which is far
worse there’s absolutely no due process of any kind and so this is happening in
Canada very much so and you know senior senior RCMP officer on his way out made
some very disparaging remarks about the judicial system in Canada and I will
repeat them here I mean they they’re their offense the so I guess the the the
the the sort of the move that’s underway here in this country was towards that
suspicion based system and away from the criminal justice system
and I don’t see that that is going that’s that’s not actually working very
well so I wonder if you could sort of weigh in on that like how can we reform
criminal justice but without completely exiting that system into that suspicion
base is completely gone you know I can I can I
without knowing the particulars of Canada I mean you’ve sketched it out you
know a good summary but I can offer the example New York where you had stop and
frisk policing for decades it was started by Mayor Bloomberg where you had
thousands and thousands of young men mostly black latino overwhelming
majority very often in high crime neighborhoods getting stopped and padded
down without any need for any concrete suspicion you know for over a decade and
this was described by the police themselves and by its conservative
backers and the right-wing think tank world as essential for Public Order is
the way to get guns off the streets as just being critical without it the city
will degenerate into violent chaos it’ll be like the early 90s again there was a
impact litigation challenge brought by the Center for Constitutional Rights a
blandly named coyly named left-wing civil libertarian group that
successfully challenged this practice and stopped it and at the end of
Bloomberg’s 12-year mayoral tee and what if the consequence has been homicide
rate is now lower than it was then I’m not saying that’s a cause and effect
thing at all I want to be clear about that do you know I’m not saying it’s cut
but hell has not been unleashed there’s no sudden orgy of gun violence
in New York you know a lot of these things that are tentative is being
essential to public order that police are doing whether it’s you know the
suspicion based thing without much due process like our stubbornness turn out
to be not essential not essential I mean it’s odd you know it’s
interesting to study what happens when police go on strike or staged a work
slowdown you had this in Quebec a few years ago there was a police slowdown
about enforcing traffic violations you know how did that impact Road Safety you
know and other kinds of Public Safety you know surprisingly little you know I
think that police do have a role in enforcing traffic safety but a lot is
goes into you know driver education good street design things like that that are
not you know linked to criminal justice in New York the police department had
went into a bit of a pout when mayor de Blasio very early on in his rule you
know made some very anodyne comments about how he teaches his son who’s black
mixed race but you know you know to have the talk with him you know that you
should always be very careful to believe and if you ever stop by the police don’t
do anything rash because they might cheat you know which you would think
police want kids near that but they took utter offence and they said they were
only going to be doing essential arrests which you know which forces some
questions doesn’t it you know now what happened to crime during this period
when the police were in a bit of a sulk you know you had public you know there
were fewer public order arrests obviously because police but you had a
jump in homicides but it’s not a jump that’s statistically significant I mean
and I missed I’m sorry I’m gonna insist on being numerous here because if it’s
not numerous I really don’t want to hear about it especially in a university but
when you have low incident events to go from you know five homicides in a you
know six week period to nine that variation I mean it’s sad that
these people are killed okay but that doesn’t tell you anything because it’s
you know the jumping around it so ie you you that New York did not degenerate
into you know a mass riot or anything during this so I think pushing those
examples of the times when you know police tactics that were advertised as
utterly essential in other places turned out to be you know gratuitous and and
there and just always be looking at other ways to promote a benign social
order one more question I got I got lots more yeah just starting
to feel my oats no all right I wore you guys out was it you’ve been a lovely
audience and if all of us to join me in thanking
you for giving such a riveting

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