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October 14, 2009

"Incarceration American-Style"

The title of this post is the title of this new must-read piece from Professor Sharon Dolovich that is now available via SSRN. Here is the abstract:

In the United States today, incarceration is more than just a mode of criminal punishment.  It is a distinct cultural practice with its own aesthetic and technique, a practice that has emerged in recent decades as a catch-all mechanism for managing social ills.  In this essay, I argue that this emergent carceral system has become self-generating — that American-style incarceration, through the conditions it inflicts, produces the very conduct society claims to abhor and thereby guarantees a steady supply of offenders whose incarceration the public will continue to demand.  I argue, moreover, that this reproductive process works to create a class of permanently marginalized and degraded noncitizens — disproportionately poor people of color — who are marked out by the fact of their incarceration for perpetual social exclusion and ongoing social control.  This essay serves as the Foreword to a symposium in the Harvard Law & Policy Review addressing the costs of mass incarceration.

October 14, 2009 at 06:05 PM | Permalink


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If Prof. Berman was trying to provoke, I am a connoisseur and aficionado of that art. If he was serious, I have to doubt the real world sophistication.

The article is a rambling, stream of consciousness, propaganda piece by a left wing, feminist. I am going to guess, a lesbian, and a foreigner with no understanding of our nation. There are no data in the body of the essay. There is a string of unrelated assertions. It reminds me of a high school student trying to add cribbed paragraphs to meet a minimum number of words requirement for a social science class term paper. There is no evidence this feminist attended law school. She has a JD from Harvard Law.

Here is the real story. The vile feminist lawyer and its male rent seeking running dog destroy the black family in the 1960's. It survived the passage from Africa, slavery, war, the KKK, lynchings, poverty, discrimination. It did not survive the feminist lawyer. The majority of black boys grew up learning how to hold a gun sideways, but not how to be real men with moral values, something not acquired from their absent fathers. They grew up in neighborhood devoid of police protection, and no role models, and the sole means of economic progress was to become a criminal. They ended up in jail. The high rate of black crime is a disgrace not for the white power structure but for the black female that fell for the offer of government welfare payment if she got rid of the black male from her household. Not a word about this devastating attack of the feminist lawyer on the black family.

Not a word about the mandatory sentencing guideline that restrained the out of control criminal lover lawyers on the bench, where this nincompoops have no business sitting. These dropped the crime rates across the board, including in black areas by 40%. Now another Harvard grad, quoting an enemy of our beloved patriots is leading the attack on this tremendous beneficial lawyer achievement (profit seeking because the lawyer provided tremendous value to the economy, worth $trillions in added value). This feminist modestly hides her intelligence quite well. She missed the economic boom coinciding with the drop in crime, including a boom in housing value, gentrifications of questionable downtown areas.

Professor, come clean. You were testing us and trying to generate a lively discussion. You are so slick. If a high school student submitted this paper, I would return it, "Very promising beginning. Keep at it, make it flow, get the data for your ipse dixits, try making your points with a fact or two."

Posted by: Supremacy Claus | Oct 14, 2009 9:35:24 PM

Professor Dolovich might be a left-wing, rent-seeking, running-dog, criminal-loving, lesbian, immigrant, feminist lawyer, but she's absolutely right. America's incarceration binge perpetuates and aggravates problems it supposedly exists to ameliorate.

Contrary to SC's assertion, the guidelines and other War on Crime legislation of the late 70s and early 80s were largely overreactions to soaring crime rates of the late 60s...crime rates that were declining significantly on their own well before the products of Nixon and Reagan era demagoguery became part of the mix.

To Prof. Dolovich's classes of "marginalized and degraded noncitizens" add the legions of white-collar Americans heavily set upon since the 1980s when congress warmed to the task of criminalizing business mistakes, failures, associations and business-as-usual gray areas.

Posted by: John K | Oct 15, 2009 2:54:35 PM

John: As you know, there is often a lag between the enactment of a law and its effects. It percolates to the street in about 5 to 10 years. Allowing for such a lag, the crime victimization survey rate decrease on time, and has stayed down. Are you referring to crime victimization data, the sole reliable measure of crime? Please give us a reference to the source of your assertions of dropping crime prior to the guidelines. As I recall, blood ran in the streets as competition for crack territory heated up.

The very cause of the drop in crime victimization rate, the central purpose of having law at all, is being attacked by the left. Why are guidelines under such relentless attack, with no substantive defense by any lawyer in any branch of government? Drops in crime drop lawyer employment. This achievement, yes, tremendous lawyer achievement, added $trillions in value to our economy, and coincided with a great economy. Technology developments obviously fueled the great profits, but drops in crime allowed people to keep these, and not have to spend them on personal survival. Even when I admire the lawyer profession, and praise its great achievement, the lawyer refuses to accept the compliment. Why? because the achievement threatened the rent.

We agree on your objection to the criminalization of bad business decisions and all other insubstantive lawyer gotchas. I explain it by the confiscatory nature of the mission of criminal cult enterprise. That is the business plan fueling the cult oppression of this nation. What is your explanation? Lawyer gotchas are themselves variants of armed robbery, and they should be criminalized. Caning should be the punishment, and should apply to the judges that allow it to proceed, to the advantage of their campaign contributors from both sides.

Because the attack on the guidelines is a lawless lawyer power and money grab, the article seems to be in bad faith. It is devoid of validated data. It is a long series of ipse dixits in lawyer self-interest. The author needs to reflect upon intellectual integrity.

This article does not merit fawning praise. If sincere and not merely provocative, the praise is disappointing to the fans. Even if one agrees with its view, the quality of the rhetoric is, at best, bright high school student.

Posted by: Supremacy Claus | Oct 15, 2009 7:04:46 PM

Professor Berman: I would like to suggest that one step toward closing the gap between felons and the rest of society, noted by Dolovich,is a law that was enacted last July 26 in Washington State, restoring the right to vote for felons, as long as they have completed their sentences and are not under supervision by the state's department of corrections. In the past, restoration of this right required a court order, issued only after a showing of several years of conviction-free life and a showing that the offender had made full payment of all legal financial obligations. (Under the new law, federal and out-of-state felons get their rights back, even if they are still under a supervised release term or the equivalent.) The restoration is automatic -- the felon can simply go and register to vote.

Lyndon Johnson said that the power to vote is the most potent civil right anyone in America has. It will be interesting to see the impact of broadening the franchise in Washington.

Posted by: A. Bentley | Oct 17, 2009 11:58:24 AM

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