My reaction to Brown vs Plata

In times of hardship, it is always the powerless and disenfranchised who suffer the most. The massive economic downturn facing the nation is no exception.

A recent decision in the case of Brown vs Plata, demonstrates this fact. Lack of revenue coupled with massive rates of incarceration in California has created massive overcrowding in the prison system. (140,000 people currently occupy facilities that were built to house a maximum of 80,000.) The Supreme Court held that the overcrowding of California prisons has created conditions that are so inhumane that it amounts to "cruel and unusual punishment". Therefore California's prison policy violates "the Supreme Law of the Land" contained in the eighth amendment to the Constitution.

The reports of the living conditions hit me particularly close to home. Currently, someone very close to me is living in a prison in California. He recently had a rather intense infection. His gums became red and inflamed and became the source of a great deal of pain. He told his gaurds about the development in his mouth, but they told him that there was nothing they could do for him. He was denied treatment for over two weeks. Meanwhile, His gums continued to worsen and became extremely engorged and would bleed when he ate. Finally, the gaurds agreed to provide him with anti-biotics - but no pain medication. They also offered to pull his teeth out for him (surprisingly, my friend rejected the offer). Now, my friend is living in rather awful conditions. Yet, his prison is relatively posh compared to the overcrowded penitentiaries that the Supreme Court come down on.

Slow and inadequate health care are endemic in California's massively overcrowded prison system. Huffpost's Laura Gottesdiener reports that "From 2003 to 2004, one inmate each week died as a result of lack of treatment." Contributing to these numbers are the squalid conditions of inmates crammed together in close quarters. California authorities have created fantastic conditions for the spread of disease.

Consider the case of a severely mentally ill inmate, who was held in a cage the size of a "telephone booth". Without access to a toilet for over 24 hours, the inmate was found sitting in a pool of his own urine. The horrific stories of the treatment of these inmates is reminiscent of the dehumanizing management of "enemy combatants" at Abu Graib. But all the more alarming considering that these are US citizens. Two days ago I wrote a blog whose title read: "Are we living in the state of exception?" If you are a prisoner in a California state prison, the answer is unequivocally Yes. These prisoners are homo sacer, excluded from the realm of the living they can be mistreated and killed with impunity. (With overcrowding wardens can treat inmates as less than people - quickly resulting in sickness and deaths.) I find it frightening that this de facto condition has come to pass.

Furthermore, I was struck by the biopolitical reasoning employed in the majority opinion of the Supreme Court. The court concludes that that it is precisely because the prisoners are excess, that they are being mistreated (rendered expendable). "Overcrowding" is identified as the cause of the inhumane conditions. Therefore, the surplus of people (of life) is the cause of sickness and untimely death. Kennedy is very clear on this point; overcrowding is the problem. (Kennedy explains in his decision that if there were enough prisons to hold them, the state would be free to incarcerate as many people as they please, but the excess of people exceeds the states capacity to hold them.) This understanding of the problem serves to diffuse the culpability of the state in its willingness to provide for killings with impunity. "Overcrowding" even allows us to shift the blame on to the victims themselves; the inmates. It is after all their excessive life, that is the heart of the problem. In this way the state anathematizes a certain type of life (the lives of prisoners). Up until now the state's only solution to this excess has been systematic mistreatment and killing - the same solution utilized whenever and wherever life is found to be existing in "excess" by the state.

However, The Supreme Court was correct in ruling against the State of California. The conditions in California prisons does amount to cruel and unusual punishment. My primary criticism of the majority decision - rendered by, power broker, swing-vote Kennedy - is that it does not go nearly far enough in remedial action. Kennedy calls for 30,000 prisoners to be released from custody in order to ease crowding in the state prisons. This may seem radical, but the reality is that the Court creates a slew of loopholes that allow California to avoid taking any action to address the problem, if they determine that corrective action would be too expensive or too "unsafe". Essentially, the Supreme Court told California that what they're doing is illegal and they have to change, but if it turns out to be too difficult to treat inmates humanely, they can forego any changes. This legal exception ensures that California inmates will continue to exist as homo sacer - permanent residents of the "state of exception."

This analysis seems to already be proving true. Governor Brown's plan to remedy the problems of the state's prison system (in response to the Supreme Court's ruling) is to relocate 30,000 prisoners from state prisons to county prisons in California. This seems to be in compliance with the Supreme Court's holding. However, this plan ultimately does nothing to solve the fundamental lack of funding and resources in the failing prison system. All the plan does, in effect, is to shift the problem from one set of prisons, to another set of prisons. Thereby allowing the systematic overcrowding and inhumane conditions to prevail. (Now it seems even Brown's weak-sauce proposal won't happen due to lack of funds.)

Finally, the last thing I find particularly depressing is how small the majority was that was willing to support Kennedy's very modest proposal for remedial action. The decision was a 5-4 split decision. This means four justices felt that the horrific abuses taking place in California either did not amount to cruel and unusual punishment, or were outside the purview of the court. These four justices are either despicable or cowardly, but likely both. Dostoevsky said "the degree of civilization of in a society can be judged by entering its prisons." I say, we need to seriously reconsider our policies and priorities. We need to stop filling-up our prisons and start focusing on how to find a redeeming sense of humanity in our nation.

I believe this starts by reassessing the efficacy of "tough on crime" initiatives like the infamous "three-strikes" rule, the "War on Drugs", and extended prison sentences for minor offenders (like parole violators). But our discussion shouldn't end there. Redeeming our nation also requires us to address the route causes of crime - which have been identified by Phd criminologist Todd Clear as - social, racial and most importantly economic inequality. Until we find lasting solutions to these problem, we, the United States, are doomed to continually reinforce and perpetuate abuses of the human spirit.

Are we living in the state of exception?

I've recently finished reading Agamben's Homo Sacer: Sovereign Power and Bare Life as well as Bruce Ackerman's The Decline and Fall of the America Republic. The two books have remarkably different rhetorical styles and very different philosophical methodologies, yet I was struck to by the parallels in the two books.

Agamben writes at a very high level of abstraction. His book deconstructs modern sovereignty which has evolved from the model of the polis to the model of the camp. In the modern concept of life we combine the ancient concepts of bios and zoe. Bios is a specific and contingent "life" which is created through its inclusion in the political order. Bios is related to the self-reflective "thinking" or virtual being which Heideggerian labeled Dasien. Zoe, on the other hand, is pure related to Schmitt's "bare life," and refers only to the biological functions of the animal human. Agamben expands on this distinction (elaborated by Michel Foucault) and points to an ancient legal artifact, homo sacer, which marked the point of indistinction between zoe and bios. Homo Sacer is the "sacred man" (sacred in the ancient sense of removed from the realm of man). A person designated homo sacer can be killed with impunity, but cannot be sacrificed. Thus homo sacer is excluded from political existence and in regard to the law is essentially a non-human. His only existence is as pure bare life, which is only defined by its capacity to be killed. However, homo sacer is also deeply political in that is included in the political order by its very exclusion. Homo Sacer is for Agamben part of the originary of sovereignty because homo sacer marks the boundary (the zone of indistinction) which separates law from lawlessness (or more precisely the state from the "virtual state of nature" which is in fact the "state of exception").

However, more and more in modern law and politics the people are becoming indistinguishable from bare life. Human rights, which are maintained to be indivisible from the biological human, are held to be the basis of sovereignty. Yet this democratic ideal breaks down at the very site where it is put to its most important test - in camps of displaced individuals who exist outside a social and legal structure - i.e. refugee camps. Refugees are modern homo sacer, they can be killed, they have no legal rights because they don't belong to any nation. They can be killed with impunity - without a record there is nothing preventing killings which often occur - but they cannot be sacrificed - that is they cannot be put-to-death through the legal system as is done with convicts and murderers. They exist as pure "bare life" defined only by its potential to be killed. The NGOs and UN Aid Agencies that barely sustain their existence are proof of their capacity to be kept alive and conversely to be killed. This is bio-power in an extreme form.

However, bio-power operates in the US, as well, and is deeply embedded in democratic sovereignty. Agamben demonstrates this point by pointing to the extent to which politics has embedded itself within medicine, in particular in medical definitions of death. Hence, "brain-dead" is now a legal definition of death. Brain death that precedes "biological" death. The heart is still beating but the human is dead, the Dasien is missing. The "brain-dead" living corpse is the purest form of Western homo sacer and bare life. The "brain dead" body is removed from the legal realm of the living (as is homo sacer) and can be killed with impunity (as when doctors begin to harvest organs) yet is still included in the realm of the living as biological life (the heart still beats - even if only with the assistance of machines) and is included only the juridical order only in its capacity to be killed - or as bare life.

Now, eventually (if not currently), all life in modern democracy is reduced to homo sacer/bare life. Politics and medicine come together in biopolitics (decisions about who can be allowed to die and who will be able to live occur in the interaction and connection between the two). Thus all the people become "bare life" which is they are determined primarily by their capacity to be killed (or ended).

Furthermore, the state of exception, or the space outside the polis (the sovereign authority and homo sacer occupy the zones of indistinction which mark the extreme borders of this space) has migrated from the borders of the social and has instead become the regular state of all existence. Emergency states have suspended law and installed martial law in many countries (as was the case in Egypt where "A state of emergency" was maintained for over four decades). When everyone exists in the "state of exception" where the law no longer applies, then everybody is homo sacer.

Finally this brings us to Ackerman's working delving into presidentialism and the growth of executive power. Agamben specifically points to the US constitution as an example of how the traditional sovereign concept of prerogative (in which the sovereign can momentarily suspend the legal system in a state of emergency) is embedded in our constitution with the creation of a unitary executive with power to protect the state in case of emergency. Ackerman details (at a lower level of abstraction than Agamben) the specific process by which US presidentialism is gradually driving the United States into a permanent "state of exception".

This process is a long and drawn out series of events that Ackerman believes will eventually lead to the end of US republicanism as we know it. However, Ackerman is not exactly an alarmist - he doesn't claim to be able to know or predict what a post-republican United State would look like, only that it wouldn't be based on a diffusion of the popular will through roughly co-equal branches of government (as is the typical understanding of US republicanism).

The United States is not the simple - largely ad hoc - institution it started as. It has ballooned into a huge bureaucratic state that could not have been predicted by the Founding generation. This was a necessary transition to changing conditions and complexities that faced a modern state. However the increased power and influence of all the agencies that make up the United States creates a problem for the republican system instituted by the constitution. Agencies are profoundly responsible for interpreting and applying law and have become the de facto face of government to the people. Furthermore, modern Presidents have used their influences over agencies to create the perception that a President can make large shifts in priorities and policies simply by virtue of being president - without any assistance from Congress or the Courts. Hence in modern politics everything done by anybody (Congress, agencies, even the courts) is immediately attributable to the President. (Hence ObamaCare and Bush Tax Cuts, etc.) The president has a great deal of symbolic power which can shape policy, but he does not possess much in the way of formal policy-making power. His oath is to "faithfully execute" the law, not to create it. However, as expectations of presidential guidance over agencies increases, presidential temptation to influence agencies direction becomes ever greater.

Presidents power to influence agencies has also gradually increased as more and more top positions within the gradually expanding bureaucracy are assigned to presidential selection with consent of congress. Presidents have huge incentive to appoint politically zealous acolytes who will push agencies towards pet-projects of the White House.

This temptation to essentially, suspend law, has lead to developments in the office of the president that point towards a permanent state of legal exception in the US.

The path into the state of exception may roughly be said to start with Reagan administration and the first issuance of the first "Executive Order". An executive order is essentially a legalistic document that mandates policy priorities for agencies. These "executive orders" are problematic in that they blend the roles of legislation and execution. Furthermore, Reagan and subsequent presidents have used the EO to great effect in undermining or occasionally outright defying congressional law-making.

A more recent development is the use of "signing statements." Signing statements are questionably constitutional, documents which the President includes when he signs a new bill into law. SSs give the presidents interpretation of legislation and give cues to agencies about how they should interpret legislation. These documents are often hastily written and lack legal rigor, but are often referred to by agencies in justifying decisions in how they choose to apply guidelines provided by Congress. Now, in order to apply legislation, it is necessary to interpret the law. Agencies interpret law constantly and there is no constitutional problem. However, the president's signing statements in interpreting law often state that specific provisions of an act are unconstitutional, and therefore should not be applied. Thereby assuming the role that has traditionally been fulfilled by the Supreme Court. This is problematic for two resons. First, the President only has 60 days to either veto or sign a bill into law. This means signing statements are often completely hastily and do not make for clear and compelling constitutional constructions. Furthermore, because the signing statements essentially pre-empt the supreme courts judicial review, it undermines the Courts ability to control constitutional interpretation (if a law is never applied, how can a challenge to its constitutionality ever percolate to the Supreme Court.) This pre-emption undermines legal continuity and severely hinders the ability of the Courts to structure the law in a consistent and comprehensive way.

With Executive Orders and Signing Statements the president essentially writes the law, interprets the law, and executes the law. Thereby, consolidating three powers (that our founders separated into three branches of government) to the President and his staff.

Finally, there is no reason to believe that the President will use these powers benignly and maintain inter-branch strength balance. John Yoo's torture memos, demonstrate how painfully extreme the opinions created by the White Staffers can be. John Yoo was recruited to the office of the Attorney General, because he was a committed conservative ideologue. Yoo's theories and legal opinons - while very written - are not moderate and do not represent a balanced approach to inter-branch authority. Yoo's positions on Executive Authority come dangerously close to Nixon's Maxim, "If the presiden does it; then it's legal". Reading Yoo's theory of executive prerogative is like a reading Agambens theory of sovereignty through a twisted fun-house mirror, in which the permanent "state of exception" is endorsed wholeheartedly rather than critiqued and resisted.

Agamben (de)constructs a theory of sovereignty in which bare life - existing in the state of exception - marks the limits of the state and is also at its center and point of origin. Our own US constitutional system clearly includes artifacts of sovereignty as bare life - the unitary executive has the power to exercise prerogative before the slow moving deliberative branches can catch up with it to stop it (ironically the sovereign power enforces the law, but is also exists in a "state of exception" outside the law). This basis of the state in bare life, is becoming more and more problematic, as the executive gradually expands. Eventually, through the processes described by Ackerman, the US will becomed engulfed in a permanent state of exception. The institutions and practices are in place for the President to suspend the law and launch the US into an era of Executive Hegemony, all that is necessary is a concatenation of events that creates the impetus for this transition - perhaps another terrorist attack or a massive double-dip recession.

Conflict in Refugee Resettlement

One time, perhaps unwisely, I criticized a fellow job developer from a different agency for what I felt was a demeaning and condescending attitude toward recent immigrant refugees. I felt that she often treated her clients like children and did not give them the proper respect owed to individuals who have overcome extremely difficult circumstances and who are remarkably capable and intelligent. Essentially, I believed that this person hindered her clients ability to develop and learn job search skills by completing tasks for them which they were perfectly capable of doing themselves.

How can our clients learn job search skills if we don't allow them to be involved in their own job search process?

The particular instantation of this problem was that this person was telling her clients not to attempt to complete their new hire paperwork. Instead she shouted to them that they were to wait for her to do it for them. Many of these clients were perfectly capable of completing the paperwork - either by themselves or with moderate assistance.

I feel the best way to learn is by doing. Therefore, even when clients ask me to fill out paperwork for them I will often turn them down and say, "I won't do it for you, but I'll sit here and help you fill it out yourself." I bring this same philosophy to applications. I expect clients to fill out applications by themselves. Not only does this teach my clients job search skills, but it also demonstrates to employers that my clients are capable of completely an application independently.

For this reason my approach in this particular instance, was to let them do their own paperwork; thereby, giving them an opportunity to learn how to complete new-hire documents (such as I-9 and a W-2 Forms). The ability to complete these rather tricky documents is essential to any self-sufficient independent job seekers. Therefore, I felt it was valuable for them to have a hand at filling them out.

This attitude toward job development that I've developed herein is not unique to me. Many members of the Refugee Resettlement team in Utah are encouraging their clients to be involved in their own job search process.

Finally, how many times have we heard the saying: "Give a person a fish, you feed them for a day. Teach a person to fish, you feed them for a lifetime"? I felt that the person I criticized was giving her clients' fish; whereas, I was attempting to teach them how to fish. (I.e. She was giving them completed I-9's and W-2; whereas, I was teaching them how to complete this paperwork).

I won't belittle or patronize my clients by "holding their hand." However, I will support my clients and do everything within my power to help them achieve their goals. I want to help my clients be what they are. And what they are, are capable, confident, and self-sufficient individuals.

Why I'm Happy Osama was Killed.

I think it would have been preferable if Osama had been brought to the ICC to be held accountable for his crimes, and summarily executed. However, I'm still happy Osama is dead.

I won't pretend that being happy at Osama's death is a particularly Christian emotion, but I'm not going to waste too much time trying to sympathize with Osama and his family. He knew what he was putting his family through when he chose to kill thousands of innocents and ignite this cycle of hatred and fear (which admittedly the US hasn't always done the utmost to abate). Be angry at Osama for treating his family with so little regard, not Barack.

Especially, when there are people at work and church that I'm struggling to understand, it's not worth feeling sorry for Osama. (Although, he'd probably hate having a hedonistic Westerner like me petty him, so it might be worth it just to anger him a little in the next life.)

Besides, why pity him? He accomplished everything he wanted and lived an extremely self-satisfied existence. Furthermore, he died an epic death. We all die; however, I would be so lucky to have my death featured on every news station in the entire planet. Honestly, I envy Osama that level of epic hyper-being.

Furthermore, empathy doesn't preclude consequences. Even if I perfectly understood Osama, I still might find it appropriate for him to be killed and might even be happy about it.

Osama was the founder, primary financial source and spokesman for Al-Queda. Al-Queda was behind the September 11th attacks. Therefore, even if he never participated in a single planning meeting (which I doubt), he is still culpable for the actions of his organization. A friend of mine recently argued that there is no proof that Osama instigated the September 11th attacks. However, saying he's not responsible just because there is no paper trail is like saying Reagan isn't responsible for the Nicaraguan atrocities of the 1980's. Like Osama, Reagan also denied knowledge or involvement of the affairs of his organization, the CIA. They caused thousand of deaths and wreaked havoc in Nicaragua that to this day the country hasn't fully recovered. Both Osama and Reagan are culpable. Both deserved death sentences (Preferably at the order of the ICC) although only one received it.

(That example is for my fellow leftists. I don't know why Reagan lovers would even read this blog.)

Again, however, I still think we can be happy about Osama being killed. For like 20 minutes the nation was unified in emotional catharsis as the man who (absent lunatic conspiracy theory) caused a great deal of pain to the people of this country. That kind of unity is something I can feel good being happy about.

What I felt when Osama was killed was a sudden release of tension. It was a step towards freeing our nation from the "terror" regime that has taken shape over the last ten years. Osama is dead. The boogey-man is no more. We can finally let go of the unnatural fear that has gripped us and guided us into horrible policy decisions like the Iraq War and Patriot Act. Was there anything real for us to fear to begin with? Maybe No. But it doesn't change the fact that this is a breath of fresh air for a lot of people, including me. September 11th was the most pivotal national Event of my life. I feel that this most recent event, the death of Osama, has indeed brought a great deal of closure to the story of 9/11. We can definitively close the book on that chapter of our national history and start striving for a new vision of the future. (It seems lexicographically significant that this new epoch is dominated by the symbolic force of Obama, rather than Osama. Even if, as a leftist, you often are disappointed in the President, you have to admit the symbolic importance of the election of a black man named Obama - this in itself signals hope for the future of the country.)

Like I said, Osama has succeeded in seriously damaging the US (and we played right into his hands): I don't think we'd have two wars crippling our budget and the Patriot Act to limit our freedom absent Osama. (And screw-you-very-much leaders and voters of 2001 for that kind of overreaction, by the way.)

Anyways, I'm happy Osama was killed.