Burns Institute’s James Bell Explores Norwegian Model of Maximum Security, Proportionality

Earlier this month, James Bell, Founder and President of the W. Haywood Burns Institute (BI), stepped into a large facility about an hour outside of Oslo, Norway. He encountered cheery orange couches in front of flat-screen televisions, flower murals on the wall, and tidy classrooms, plus numerous trade-specific training areas — a woodshop, an auto shop, a chef’s kitchen. The individual bedrooms, each with a wooden bed frame, desk and armoire, gave the impression of a newly furnished dorm room. But this wasn’t a university; Bell had walked into Halden Fengsel, one of Norway’s maximum security prisons.

Having advocated for more humane ways of addressing dangerous law violators for over thirty years, Bell wanted to observe the Scandinavian approach to incarceration, which has often been cited as a model for reform in the United States. So Bell contacted local Norwegian officials, who provided access to two facilities.

“After entering the prison gates, the optics are a bit startling,” Bell admitted. “However, it should be noted that the optics are a reflection of a dramatically different worldview regarding the Norwegian response to law violations.” Bell explained that Norway employs an alternative vision on the basic function of incarceration, “which is almost impossible for us to comprehend — and for good reason,” he continued. “Our historical contexts are quite different and one cannot just cookie cutter one society to another. It is hard to compare a diverse country with close to 400 million people and 300 million guns with another that is mostly homogeneous and has a population of juat under 6 million.”

Despite the differences, he uncovered some important lessons from the Norwegian approach to law violations. “The first that comes to mind is our deep societal need for punishment and retribution. So much of our carceral policies and practices are steeped in the supposedly cleansing effects of punishment,” he said. “We lead the world in mass incarceration because we not only want to separate law violators from society but we also want them to suffer. And suffering means that we treat them as less than human.”

The Norwegian model rejects this premise of punishment and suffering as a response to law violations, leaning on evidence that shows that such an approach does not work. Mass incarceration in the US, for example, has a 60% failure rate, Bell points out, “yet we continue to pour obscene amounts of money, material, and human capital into this failing enterprise.”

In contrast, Norwegian leaders approached their justice system by first determining the standards that, as a civil society, they wish to uphold for those that break their laws and hurt other people. “In other words,” Bell explained, “they have posited, how will Norwegian culture treat the ‘other’?” The Norwegian experiment demonstrated to Bell that their threshold for  treatment of the “other” is not to take away their humanity or dignity. “They believe that people should maintain their dignity; that they’re human beings, and even though they are the ‘other’, the society is not going to go below a certain standard of treatment for them,” he added. “Thus, the prison facilities look and feel so differently from ours.”

Turning away from over-reliance on punishment and suffering, the Norwegian prisons serve to restrict residents’ movements while aiming, ultimately, to integrate residents back into civil society. This is buttressed by the fact that Norwegian prisoners don’t surrender their rights as citizens at the door; they can still vote, and, in some instances, work and maintain housing.  

The unusually progressive approach in the design of the physical structures of the justice system are reflected in courtroom procedures as well: proportionality is an important principle in the administration of justice. This means that criminal penalties take into account the accused and victim’s personal circumstances, plus the services available, with the ultimate goal to reintegrate the individual into society.  This model bucks the punitive approach in the U.S. that relies on bright lines and formulas in sentencing decisions.  “Indeed, Americans rarely notice when ridiculous sentences of three life terms plus 80 years are meted out, or the absurdity of someone sentenced to 840 years,” Bell pointed out.

However, the northern European progressive approach is now facing new challenges. As climate change, extreme poverty, internal conflicts, and the vestiges of colonialism force massive waves of migrants northward, Europe is grappling with how to respond to rapidly growing racial and ethnic minorities in all parts of their societies, including in the administration of justice.  Bell notes that some countries are just beginning to collect data on the race and ethnicity of those incarcerated; others eschew collecting such data, owing to the legacy of the racial data collected by the Nazis during the Third Reich.

However, justice system experts in England, Wales, Ireland, and other parts of Europe are interested in the BI approach to engage race and ethnicity within the justice system. “We can be of assistance as they begin a journey that we have been on for decades,” Bell said. While many of these countries do not have racism coded institutionally into their justice system, they are at a critical point as they develop new laws, which could be aimed at providing safety of all people, or at establishing  social control of the ‘other’, he noted. The possible use of the justice system as an instrument of social control targeting race, ethnicity, religion, and sexual orientation is a question with which European countries are grappling. “In this regard, there is much the BI and others working for transformative justice have to share with our European colleagues,” Bell concluded.

In that vein, the BI has established relations for continued collaboration with other countries, beginning with an introductory seminar for BI staff by Maartje van der Woude from the Netherlands on these issues at the BI offices in Oakland, California, in October. “It is incumbent on us all to envision a new way of doing justice,” said Bell, “and take learnings from those who would seek to increase humanity rather than diminish it.”

Burns Statement on the Human Rights Crisis at the Border

The W. Haywood Burns Institute (BI) was founded on principles of human dignity and fair treatment for communities of color that are too often subject to policies and practices that are steeped in racialized institutional social control. The current immigration crisis represents this nation’s continuing tragic history of formally justifying inhumane treatment and the cruelty of “the other.” Beginning with the genocide of Native Americans and the barbaric enslavement of African people, the country has developed a playbook for how it engages communities of color. This sad predictable script begins by using false and exaggerated claims to create threats to national safety and exploit those threats to gin up fear of “savages” “rapists” “gangs” “super predators” “coolies” “anchor-babies” and “terrorists”.

When the hysteria reaches the correct pitch, an authority figure, in this case the President of the United States, normalizes unconscionable acts by saying “these aren’t people, these are animals” thereby unleashing violent racialized oppression with little regard for long term consequences.

The current iteration of this too familiar playbook is falling on asylum seekers from Mexico, Central America and Arabs that practice Islam. Mainstream and social media have well documented cruelty involving thousands of children being separated from parents, “disappeared” without due process and prevented from the basic nurturing necessary for infants and toddlers to thrive. The tsunami of racism, intolerance, dehumanizing language, family disruption and separation provide real world evidence of what racialized oppression looks like today. We need only look to our nation’s recent past to understand that this level of familial trauma will have catastrophic consequences for generations. The need for health and healing services will reveal themselves soon enough and the predictable failure to deliver them will lead to more stress and morbidity for communities of color.

The BI forcefully opposes these policies and rejects any rationale for their existence. Indeed, they are shocking and visible demonstrations of the more mainstream uses of state sanctioned family and community violence. The overuse of foster care, mass incarceration and the racial and ethnic disparities present therein must be considered part of this continuum. We must examine this current crisis in the context of all instruments of social control and the destruction and trauma that communities of color confront daily.

The BI believes we must combat the structural and institutional racism that cause the existence and implementation of these deplorable policies and practices. Regardless of political party or affiliation, we know the origins of our country’s social and legal fabric are ingrained in the targeted and inhumane treatment of communities of color.

The BI believes that the root causes of state sanctioned violence must be confronted. We support challenging the existence and mission of ICE, increasing the capacity of rapid and quality legal services, providing health and healing services and forever ending the separation of children from parents and families. The BI fully supports any individual, collective, institution, network and advocacy organization committed to fighting for justice, fairness and equity for all of humanity.

The echoes of the cries of our ancestors that were the previous recipients of similar acts of cruelty must be heard and inform our voices and actions of defiance. This country is in transition as we now have the first minority white generation and it is clear that those in power intend to use draconian policies to maintain power. Let us not forget that our future is at stake and worth the fight.

Tshaka Barrows, Chief Executive Officer
James Bell, President

Trans-Atlantic Dialogues on Race and Incarceration

James Bell delivering a seminar at the Centre for Justice Innovation in London, UK.

To talk about race and ethnicity as it relates to the justice system is often seen as a uniquely American conversation. Yet, although America certainly leads the way when it comes to incarceration and its disproportionate effects on communities of color, there are many lessons and insights to be gleaned from a trans-Atlantic dialogue around the issues of race, justice, and trust in publicly serving institutions. This summer, I traveled to the UK and the Netherlands to begin engaging in these broader dialogues. Although our histories, social systems, and legal particularities are different and often make for tough comparisons, there are disturbing similarities between the treatment of people of color in the American justice system and minority communities in the European contexts that should not be ignored.

Across the United States and Europe, there is now a growing sentiment that minorities and people of color are disproportionately and negatively impacted by the administration of justice.  In the UK, it has become a widespread concern within Black, Asian and Minority Ethnic (BAME) communities prompting politicians to dig deeper into the issue. In the Netherlands, it has come to the attention of many in the legal profession and academic community as multicultural neighborhoods, whose residents come primarily from African and Asian countries, continue to grow. Despite their relatively low prison populations, attempts to close institutions have led to documented disparities. In the UK, as reports citing the statistical disparities in outcomes for BAME communities as compared to similarly situated whites continue to emerge, it would appear that bias and racial hierarchy within the justice apparatus is far from a uniquely American problem after all.

A conversation with David Lammy, a Member of Parliament currently researching disparities in the justice system, gave the impression that in addition to these disparities, there appears to be a growing sense of distrust in the administration of justice amongst ethnic minorities, particularly Blacks. In a letter to then Prime Minister David Cameron, Mr. Lammy stressed that, “the justice system must be seen as legitimate”.

I was surprised to learn that justice system legitimacy was being called into question in some quarters. Through my experience in advocating for the equitable administration of justice in the United States, I have seen the devastating impact that a loss of faith in the judicial system and its ability to administer justice, by any segment of the population, can have on civil society at large. When trust in basic societal agreements begins to erode, then a fundamental institution necessary for peace and security is less effective. For those of us here in the United States familiar with communities of color living in concentrated and isolated poverty, we have seen how this distrust has become a problem for the administration of justice in larger society and a significant contributor to our levels of mass incarceration.

Yet, despite this encounter with the uncomfortably familiar breakdown in trust between communities of color and the administration of justice, there are still fundamental differences between our country, the Netherlands and the UK that we would do well to take note of. Chief among those differences is the societal belief that incarcerating people does not reduce crime or increase public safety. This enables the space in those countries to pursue practices that address law violations in ways that are broader than custody, control and suppression.

In these difficult and rapidly changing times it is important that we realize the importance of administrations of justice that promote equity and effectively deliver public safety. Perhaps through a continuation of these international dialogues, we can all learn from one another and work towards creating justice administration that will make good on those promises.

Op-Ed: The Future of Justice Administration Must Not Be a Repeat of Today

Michael-Brown-and-Officer-Darren-Wilson

One year ago, a grand jury voted not to charge Officer Darren Wilson for shooting dead 18-year old Michael Brown, in an incident that sparked a powerful movement against police brutality and the disparate treatment of Black people by the justice system. In the year that followed, the nation has borne witness to a seemingly constant onslaught of evidence that is forcing civil society, in my opinion, to confront uncomfortable yet necessary truths about society’s longstanding negative perceptions of people of color and its racially inequitable administration of justice.

President Obama’s criminal justice tour taking place this fall is providing opportunities that bring the justice conversation into the public sphere. It is a conversation that was resisted by a majority of our society for hundreds of years, as long as we perceived ourselves to be protected from people that will hurt us. Despite the good intentions of the President, much of the justice conversation continues to be defined by judgments about how communities of color are to be policed in order to deliver on the state’s mandate to protect public safety. By and large, we have failed to adequately engage the roots of unequal justice for people of color and address the lack of accountability and transparency within the system.

Clearly, every society needs a justice apparatus to administer the principles necessary to maintain democratic institutions with salience in all our lives. However, justice has never been administered in a vacuum. Long ago, our society struck a dangerous bargain with the justice system; we ignore our mistreatment of people of color in order to feel safe and free from fear of them. Let us not be naïve about how powerful that agreement is and the depth of its roots. These historical roots are embedded in our jurisprudential DNA. They inform impulses, biases, and notions of who should suffer punishment and who should be protected from harm.

The foundation of today’s justice system encompasses three centuries of social and legal norms built on the belief that people of color were at different times savages (Native Americans), feebleminded (Latinos), incapable of normal function (Asians), or not even human (Blacks). The historical narrative guiding the administration of justice today is that communities of color must be controlled in order for law, order, peace and tranquility to be achieved. Thus custody, control and suppression of people of color were seen as synonymous with public safety.

We have evolved, through movement-based struggle, to a place where laws can no longer be explicitly aimed at particular races. However, centuries of laws, policies and practices have built a justice infrastructure that is filled with race effects. Indeed, custody and control of people of color has been so inextricably linked to safety that any response to law violations that challenges the use of incarceration is viewed with suspicion, deemed unworkable, or worse yet, unimaginable. Proponents of the status quo justice apparatus deny this premise of structural racism, using seductive but ultimately hollow and supposedly race-neutral phrases like “tough on crime” and “do the crime, do the time” to support current practices as the best way to public safety.

Recently, F.B.I. Director James B. Comey stated, without any data or research to support his position, that the reason certain crimes may be rising was the so-called “Ferguson effect” in Black communities. He stated:

“I don’t know whether that explains it entirely, but I do have a strong sense that some part of the explanation is a chill wind that has blown through American law enforcement over the last year,”

 That one of the highest law enforcement officials in the land can comfortably comment on the complex factors of race, crime and justice by only having a “strong sense” with no facts in support, speaks volumes about the need for a new narrative on race and justice.

A new justice narrative must have racial equity as a guiding principle and it must also acknowledge the cumulative effects of structural racism on the administration of justice today. New frameworks should assume that the human condition will always have violations of the law, but that the best way for us to be kept safe is to change our justice system from one of revenge and punishment to one of interventions, services and proportionate monitoring of behavior.

It is time we struck a new bargain for how we administer justice and public safety. After centuries of retribution and punishment that has disproportionately affected people of color, it is time to cure the ills of humanity with greater humanity. As Americans, it is so hard for us to use humanity and safety from crime in the same sentence. However, we know that our current model needs an overhaul, as the evidence continues to mount. The mistreatment and mass incarceration of people of color by the justice system is not sustainable. The future administration of justice cannot and should not be a repetition of what we do today.

James Bell, Founding Executive Director, The W. Haywood Burns Institute