Friday, April 14, 2017

The Education of Donald Trump

Slowly but surely the presidency of Donald Trump is being normalized.  By normalized it is
meant that the Trump presidency is increasingly being captured and confined by the institutional powers and realities of American and world politics.  This is something that Steve Bannon feared, and which both Trump’s supporters and distractors should recognize.

There is an old political science and political adage that declares that presidents have more authority and freedom to act internationally than they do domestically.  This is because while the structures of the Constitution–such as checks and balances and separation of powers–limit the domestic power of presidents, they are more free to act internationally, especially with either congressional acquiescence or affirmative grants of power.  This recognition that presidents have more autonomy internationally is rooted in famous Justice Robert Jackson concurrence in the 1952 Supreme Court case Youngstown Sheet & Tube v. Sawyer.  Yes, in many ways this dicta is correct constitutionally, but it misses something far more powerful when it comes to defining presidential authority; specifically the political and institutional constraints on presidents and how, as Stephen Skowronek argues in Presidential Leadership in Political Time, how history and context defines presidential power.

Back in 2008 during the US presidential elections when lecturing in Europe I was asked how the presidency of Barack Obama would differ from that of George Bush in the area of foreign policy.  I argued that the best predictor of a new president’s foreign policy was to look to his predecessor’s.  Presidents really have far less freedom to depart from the past than many think.  The foreign policy establishment is big and powerful in the US and it largely bipartisan.  Geo-political forces such as  the state of the world economy, the political interests of other nations, and the overall limits on US power and reach too further define what presidents can do.  Yes some may claim some presidents made major shifts–Nixon and China–but the changing geo-political role of China in the world made such a choice inevitable.

Obama proved that.  After making numerous promises, the Obama foreign policy was defined by choices made by Bush. The war on terror continued, troops remained in Afghanistan and Iraq, Gitmo was not closed, drone attacks persisted, and the US did not fundamentally change Middle East politics even after the Arab Spring opening because entrenched support for Israel did not change.  Even Obama’s effort to make an Asian pivot has had mixed results, and he was unsuccessful in making many changes in how to handle Syria and North Korea.  Yes Obama did make some marginal changes, but fundamentally more continuity with Bush than a break.

The same is now true with Trump.   Candidate Trump disagreed with almost all things Obama.  The Iran nuclear deal would be torn up.  Trump pledged a Mexican wall, declare China a currency manipulator and impose tariffs on their products.  NATO was obsolete, the Syrian policy wrong, Putin and Russia a friend,  and global engagement must be retracted to put America first.  Great rhetoric, but the reality is tht slowly the forces that constrained Obama are constraining Trump.  

One now sees a new Trump.  The bombing of Syria, while a departure perhaps from what Obama did, is something that Hillary Clinton and most Republicans and Democrats in Congress support.  It produced a rift with Russia that now leads Trump to muse that perhaps our relations with that country are the worst ever (they are not).    Moreover, despite tough talk, trump’s options with Syria are limited, as they are throughout the Middle East.  Expect no major change in politics toward Egypt and Israel, and do not expect any major break in addressing the Palestinian quest for a homeland.

NATO is good, and China will not be declared a currency manipulator, and, in fact, if they help Trump to contain North Korea’s nuclear program, he will give them a great trade deal.  This statement is recognition that despite the show of force the US is demonstrating in sending ships to North Korea, there is little he can do along to change the politics in that country.  Gitmo will not be closed, the policy toward Cuba not reversed, and even the dropping of MOAB–the mother of all bombs–on Afghanistan–it was a policy in the works under the Obama administration.    Trump’s enhanced deportation policy and extreme vetting looks more and more like a variation of what Obama did–partly courtesy of the federal courts–and there will be no shift in the drone war

Nearly 90 days into the Trump presidency one can already seen more continuity with Obama than breaks.  Yes there are still rough edges, yes there appears to be no Trump grand strategy, but that lives a void to be filled by the bureaucracy and foreign policy establishment.  All this is exacerbated by the fact that Trump has not filled many key State and foreign policy positions, but that only means that the weight of the status quois filling the void.

The real sign of Donald Trump’s education or normalizing was the removal of Steve Bannon from the National Security Council.  Bannon saw the power of the bureaucracy and wanted to smash it.  Instead it smashed him and may soon lead to his ouster from the Trump administration in total.  That was a Trump presidency turning point.

It seemed just a few weeks ago people were talking of a failed Trump presidency, impeachment, or a major international crisis.   Yet increasingly likely is that an incompetent Trump will create the space for the bureaucracy to take over in the realm of foreign policy, for good or bad, and to the fear of delight of his supporters and detractors.

Saturday, April 1, 2017

The Folly of Private Prisons



It’s deja vu all over again. Nearly a year ago to this date I did a blog and Minnpost column criticizing efforts to reopen the private prison in Appleton, Minnesota.  Guest what?  There again is a push to reopen it.  For all of the reasons a year ago I wrote to criticize the move, they all apply again today.

Private prisons are a major public policy mistake. This is true regardless of whether they are privately operated or, as is being proposed by the Minnesota Legislature, they are leased and run by the state.

Contrary to what their supporters say, private prisons are not less expensive and better than public facilities. Instead, their track record on cost, rehabilitation and safety is generally inferior to that of public facilities. And — especially pertinent to the current proposal — their use as a way to expand prison capacity has been to facilitate a war on drugs and petty crimes that has been racially discriminatory.

The debate to reopen the private prison in Appleton, Minnesota, is reminiscent of one that took place 19 years ago. In 1998 Minnesota was building a new correctional facility in Rush City. State Sen. Randy Kelly pushed hard for it to be privatized. I was part of a team of impartial national experts at the Institute of Criminal Justice at the University of Minnesota Law School hired by the state to research what we then knew about the performance of private prisons across the country. We looked at cost, recidivism, rehabilitation, safety and legal issues. We examined all of the studies that then had been done on private prisons, we did extensive interviews across the country, and we toured public and private prisons. The final 1999 report, "Privatization of Correctional Services: Evaluating the Role of Private Prison Management in Minnesota," was sharply critical of the claims made by its advocates.

Initially there is a significant ethical and moral question regarding whether the punishment of crimes should be done on a for-profit basis. This is human exploitation at its worst. One can also argue that the use of punishment and force by private individuals against another is inherently a governmental function and not something that should be privatized. Our report raised these questions, but it went beyond the normative considerations to the empirical: What was the actual track record of private prisons?

First, we found that many of the claims of cost savings were suspect. The standard measure of cost for prisons – per diem costs per inmate – did not always stand up. Yes in some cases private prisons were less expensive per diem, but not always. For example, in Oklahoma, where publicly operated prisons had to compete with private operators for contracts to run individual facilities, the public institutions came out less expensive about half the time. Cost was a wash. But even here the numbers failed to reveal hidden costs. In most of the contracts awarded to private prisons, the state was still on the hook for many medical expenses and it would be required to take back control of the prisons as a result of default or to deploy security in the event of riots. Public dollars subsidized private prisons to make them profitable and look as though they were cheaper than the public facilities. Additionally, by the time one added in the public dollars to oversee and regulate the private prisons the savings to the taxpayer disappeared.

We also found that there were costs associated with the savings. The areas where private prisons saved money was, first, in salary and skill level for corrections officers. Public facilities were generally well-paid union jobs that demanded a minimum skill level. Prison privatization across the country often was a union-busting activity that hired less skilled officers at much lower wages. Second, private prisons scrimped on educational and rehabilitation services. Third, they scrimped on everything else, leading, in the case of Oklahoma, to contracts than ran a hundred pages or more so as to require private operators to provide a range of services of sufficient quality that they tried to avoid in order to maximize profits.

What did all this mean? In general, private prisons have more safety problems than public facilities. There was more prisoner or innate-to-inmate violence and more civil-rights violations in private as opposed to public facilities. There was less emphasis on rehabilitation and higher recidivism rates in private prisons. Part of all this is a consequence of trying to save money by not providing services. But something else was also going on. No warden in a public prison wants repeat business. On the other hand, private prisons have a financial interest in recidivism. The interests of the state and private prison operators is contradictory.

Finally, there is also one other major problem we found then with private prisons: The employees are not public and therefore they can go on strike. Public prisons operated by the government employing public employees can prevent strikes by preventing the employees by state law from striking. Private prisons and their labor relations are governed by federal law, pre-empting any state laws that would bar strikes. The potential of a strike or other labor problems raises many questions about safety.

In the 18 years since the Minnesota report was issued I have continued to research and teach about private prisons. For six of those years I also taught criminal justice courses. Subsequent reports and studies largely reconfirmed the conclusions found in the 1999 report.

One might argue that the objections raised against private prisons do not apply to the current proposal in Minnesota, which is for the state to reopen the Appleton facility and staff it with state employees. Fair enough, but the last 18 years have revealed some lessons we could not have seen back in 1999 and which do clearly apply here. The rise of private prisons occurred alongside the war on drugs, the broken windows theory of crime (arrest for the petty stuff before it escalates), mandatory minimum sentences, and three-strikes-and-you’re-out laws.

Nationally the expansion of private prison space exacted a racially discriminatory war against people of color. In Minnesota, prison expansion led to an explosion in a prison population that has the worst racial disparities in the nation. Private prisons have become what Nina Moore argues in "The Political Roots of Racial Tracking in American Criminal Justice" — a linchpin in creating a separate criminal justice system for people of color that is separate and unequal. The private prison industrial complex is central to all the problems that Black Lives Matters rightly protests.

We have spent enormous sums of money since the 1980s incarcerating people instead of investing in them. Imagine had we invested in addressing racial disparities in schools, economic development in concentrated poverty neighborhoods, or civil rights enforcement to bar racial discrimination in employment and housing. We would not have needed to build more prisons.  The issue thus is not looking at how to jail more people but to figure out how to prevent people from being jailed.  It is by addressing the racial disparities in education, income, and voting in the state, and it is by looking at why we are jailing so many people to start.

If Minnesota truly wishes to address the concerns of Black Lives Matters it would not add more prison space that simply enables the currently discriminatory practices that extend beyond criminal justice to many other institutions in our society.

In sum, the lessons of prison privatization or expansion of any kind is that they are bad options for Minnesota. Gov. Mark Dayton is correct in vetoing any bill that would allow this to happen.