Monday, November 08, 2004

Crime and the Constitution of Community Security in 2020 -- post by Jonathan Simon

Few developments have had as large an effect on the legal status of Americans over the last quarter century, then the emergence of crime as the dominant domestic policy imperative and the punitive policies which have placed more than three percent of adult residents of the United States, more than two million of them in confinement. These Americans, in varying degree, have lost their rights to privacy, suffrage, and equal access to markets for housing, jobs, and education.

When we look at the populations most effected by this revolution, especially African Americans, the consequences are shocking (even if well known). With nearly 10 percent of African American men in prison or jail on any given day, and more than half of them bound to experience a period of incarceration during their lives, the criminal justice system has become a dominant governmental institution in inner city black communities. The result according to some criminologists is a growing crisis of informal social control as the adult elements necessary to form viable economic and child rearing solidarities within the community are transported to prison. In real respects this quest for security through crime control has reversed the gains of the civil rights era and created a new form of racialized domination less attractive in many respects than the mid-20th century versions of Northern Ghettos and Southern Jim Crow.

During a period that witnessed the “end of the era of big government”, the war against crime led to massive growth in the penal sector of government (and what is a prison if not big government), one might add at an enormous costs to tax payers. At the same time, fear of crime has led many in the white middle class to create a gated society in the sprawling post suburban counties that are themselves socially dysfunctional and generative of more fear (once people have distanced themselves physically from public housing and urban public schools they can direct their fear at opposing bicycle paths and parks which might attract strangers). All of these crime related trends have been intensified and reinscribed by the appearance of terrorism.

Most of this happened without an equally dramatic change in the judicial interpretation of the Constitution. The efforts of the Burger and Rehnquist Courts to weaken the Warren Court’s restrictions on law enforcement may have contributed marginally but most analyses suggest that arrest rates have changed only modestly. Recent efforts to confront penal severity with the proportionality principal of the 8th Amendment have failed but even the dissenters would never have applied that principal to the sentences under which all but a tiny portion of the two million incarcerated Americans. The Warren Court itself backed off quickly from any real attempt to limit the criminalizing or punishing capacity of state governments. (It remains unclear how committed Chief Justice Warren, former District Attorney of Alameda County, former Attorney General of California and son of a murder victim was to significant limitations on crime control).

With rare exceptions, state constitutions have also been silent witnesses to these developments and have often (especially where ballot initiatives makes populist fears readily translatable into constitution text) been amended to voice punitive demands (like California’s three strikes law). In short, America is governed through crime by way of powers readily available under almost any conventional interpretation of the Constitution.

Yet if the conservative constitutional revolution of the last twenty-five years is not the cause of these ills, the Constitution in 2020 could be playing a more significant role in checking the growth of these trends and helping to assimilate the troubled forms of political subjectivity produced by them. That becomes clear once we acknowledge that in sum these changes have produced a real threat to the operation democratic self governance or the republican form of government which the Constitution promises.

Federal courts might play a role (although that’s hard to believe after Red Tuesday). There should be remedies in the 13th and 14th Amendments to protect the descendants of the freed slaves from their subjection to a distinct and overtly racist mode of governance.

We may also look to state supreme courts (like the much maligned Florida Supreme Court which has emerged as the only institution in that state willing to confront the most grotesque forms of punitive politics including the execution of the innocent). Some of them have preserved a form of substantive due process that might be used to protect a sphere of liberty from the encroachment new criminal laws.

More than anything perhaps, we need strategies that will impose political costs on the ever tempting logic of solving social problems by placing more of the population in prison. Toward that end, consider the following no doubt unachievable constitutional amendment.

•Representatives shall be apportioned among the several States according to their respective number of persons in each State, except that the basis for representation therein shall be reduced in the proportion which the number of persons incarcerated for sentences of one year or more in prison, jails, or juvenile detention facilities, bear to the whole number of persons.

-- Jonathan Simon