Friday, September 9, 2016

November 2016 Ballot: Yes on 64

My colleagues and I at UC Hastings made a series of nonpartisan, informational videos on the California propositions on the November 2016 ballot. Here's a video made by my colleague Marsha Cohen, an expert on food and drug law, about Prop. 64, the legalization of marijuana:



On this blog I make endorsements as well, and my recommendation would be to vote Yes on 64.

In 2010, there was a legalization proposition on the ballot which I supported, Prop 19, and it failed by a fairly narrow margin. I supported that one even though I found it problematic and vague: Prop 19 legalized personal use and limited cultivation of marijuana, but left the business end unregulated and up to the counties. As a result, it was unclear how much we would gain in tax revenue.

Prop 64 offers a much clearer legalization regime. Flowing from the recommendations of the Blue Ribbon Commission and relying on the experience of Colorado, Washington, Oregon, Alaska, and DC, it has set realistic price points and tax rates on sales, thoroughly regulated cultivation, possession, and sales, and provided safeguards for sales to minors.

Let's talk about the money first. The Legislative Analyst's Office anticipates gains of many hundreds of millions of dollars, up to a billion, in tax revenue. These gains are based on assumptions about patterns of use and commerce that we see in other countries and states. For substances, there is typically a group of hard-core users (See Philip Cook's analysis of alcohol: 60% of American's either don't drink at all or drink very, very little, and only 10% of Americans constitute the vast majority of drinking in the market, with an average of ten drinks a day.) Those folks will use (and pay for it) no matter what, and making sure that they buy (and pay taxes) lawfully is pretty essential. Which is why setting the price point and the taxes properly is important. It seems that this is a key consideration in the states that already have recreational marijuana: you don't want to tax too much, because that'll keep the market alive. But even though those states are considering lowering the tax, they still got revenue that far exceeded expectations, and the hope is that the same will happen here. Prop 64 sets excise tax at 15% for retail and 2.75-9.25 percent for cultivation. Sales tax for nonmedical will hover around 8%.

The proposition sets up a licensing program. Selling without a license will be an offense. Selling to minors would be an offense. Setting up shop near a school will be an offense. And, driving under the influence would be an offense.

The most convincing argument against the measure is a recent Washington state study showing a rise in THC-positive drivers involved in accidents. Here's the full study. But that someone is THC-positive does not mean that marijuana was a factor in the accident. THC is detectable in the blood up to three weeks from the time of use, and a positive finding does not mean that the person was under the influence of marijuana when the accident happened. The study took into account differences in levels of THC, but those are imprecise. Also, keep in mind that drivers were not tested for THC presence before the legalization of marijuana in Washington, so we don't have great comparative data (who knows how many people were THC-positive before legalization?) Moreover, the findings on THC alone are dwarfed by the findings on alcohol, or on alcohol and THC combined (in which case the causality issue is murkier.) The National Institute on Drug Abuse website claims that marijuana impairs driving ability, but cites a National Highway Traffic Safety Administration study that found that carefully controlled studies relying on measurements find no appreciable difference in driving. NORML, who is far from an unbiased group but who does cite unbiased research, cites far less convincing evidence of impairment under marijuana than under alcohol.

As for arguments for legalization, the existing prohibition regime has been far from successful in curbing drug use and has led to huge monetary and personal costs for people charged, convicted and incarcerated for growing and selling. We wouldn't be the pioneers of a different path, but it's a thoughtful effort and definitely worth a try. I'm going with a Yes on 64.

November 2016 Ballot: Yes on 62 and No on 66

In anticipation of the November ballot, my colleagues and I at UC Hastings made a series of nonpartisan informational videos explaining the 2016 propositions. Here's the video I made on Prop 62:



On this blog I also make endorsements. It's an unequivocal YES, YES, YES on 62.

It's not a particularly well-kept secret that I vehemently oppose the death penalty for all the obvious reasons: it's inhumane, there's no good evidence that it deters murderers, there are grave concerns about the fairness of its application, and with social psychologists estimating that 5% of all convictions are wrongful, there is also the grave risk of mistake. Add to that the important factor I discuss in Cheap on Crime--the expenditure involved in capital punishment--and repeal should be an obvious choice.

But I'd like to address this post not to the folks who are convinced, for moral reasons, that repeal is the right choice. I'd like to talk to decent, reasonable people who are on the fence about the death penalty, because they feel that some people--serial murderers, people who kill and assault little children, etc.--should have an especially harsh sentence reserved for them. Even if you are such a person, you should vote yes on 62. Here's why.

In November we'll be voting not about the philosophical merits of the death penalty, but on whether to keep it as it is practiced here in California. Here are some facts, not opinions: we currently have 751 people on death row. Since the reinstatement of the death penalty in 1978 we executed a grand total of 13 people. Meanwhile, 90 people died of natural causes. They spend decades on death row, during which they are held in expensive conditions in a dilapidated facility, and they also litigate. Their confinement, and especially their litigation, is costing us $150 million a year, which would be saved if all these people were to be transferred tomorrow to general population. And most of these death row inmates are not the "worst of the worst" for whom you'd like to reserve the death penalty.

I get that you think that in principle there should be something special for really heinous crimes. But we don't live in a principle. We live in California. And in California, this is expensive and it doesn't work.

"So the death penalty is broken," you say. "Why not fix it? Why not make it cost-effective, and then I can continue to support it?"

There is a proposition on the ballot that argues just that--Prop 66. Its proponents, mostly county district attorneys, argue that adding lawyers and shortening procedures would save money and allow California to retain the death penalty. Here's the informational video I made of Prop 66:



The two reforms proposed by 66 are unrealistic, expensive, and very risky. They would not solve the problem. I strongly oppose it and urge you to vote No on 66. 

Currently, each death row inmate receives two attorneys at the state's expense to litigate his/her case. "Quelle luxe!" I hear you say. Well, not so much. The Habeas Corpus Resource Center has a whooping grand total of 34 attorneys, who get assigned the hundreds of cases on death row. According to the Legislative Analyst's Office, as of September 2015, 57 individuals were awaiting appointment of counsel in direct appeals and 358 individuals were awaiting appointment of counsel in habeas corpus proceedings. Those are hundreds of people whose lives depend on a determination of their legal claims, who have to wait an average of 16 years to get an attorney. That's why it takes so long to execute people in California.

Hiring and training more attorneys to take on capital cases would cost tens of millions of dollars a year--on top of the $150 million we're already paying by having capital punishment. While I'd love for there to be more jobs for my students, this is an unnecessary expenditure we can ill-afford.

What's worse, Prop 66 supporters propose to shorten the times for appellate and habeas proceedings. But there's a reason why these procedures take time. It's because they have the potential of diminishing the risk of horrible mistakes. When someone does life without parole and is found to be innocent, their life has been detailed, but amends can be made. When an innocent person has been executed, there are no amends. The risk of a mistake is graver than we can tolerate: remember, a conservative estimate puts wrongful convictions at 5% of all convictions.

There is no fix here that saves money and prevents injustice. And even if you think you're willing to compromise, ask yourself--how much is it really worth to you to keep 751 people on death row? Is it really conscionable to pay $150 million annually to keep this going?

Yes on 62. No on 66.


November 2016 Ballot: No on 60

My colleagues and I at UC Hastings have prepared a series of informational and neutral videos to educate voters about the CA ballot. Here's a video I made about Prop 60:



Before educating myself about the proposition, my inclination was to vote yes, and I'm sure many voters feel the same way. What could possibly be wrong with condoms? Aren't they wonderful things that prevent pregnancies and sexually-transmitted diseases? Shouldn't we communicate a message to the public that it's cool and sexy to use them, by requiring that they be used in adult films?

Then, I talked to my awesome student Stephan Ferris, who wanted to write a research paper on this. We discussed the advantages and drawbacks of this regime for the better part of last spring, and Stephan's resulting excellent paper on Prop 60 is coming out on the Hastings Women's Law Journal (I'll add the link once it's published.) My student convinced me that the right move on this one is a NO on 60, and here's why.

My natural inclination, as well as that of other well-meaning do-gooders, is to assume that porn actors are defenseless, vulnerable folks with no bargaining power, for whom condoms are the last frontier in the fight against HIV. Neither of these claims is true, and there's actually a regional issue here that is important.

The ecology of porn in California is such that, for the most part, straight porn is produced in Los Angeles and gay porn in San Francisco. What works for the industry on a regional basis in Los Angeles would not necessarily apply statewide. In the world of gay porn, the working assumption in the industry is that anyone involved is HIV positive, and therefore the performers have an incentive to protect themselves. The state-of-the-art standard for protection against HIV is the use of PrEP. This medication, which in San Francisco is covered by citywide insurance, protects HIV-negative people from getting infected and lowers the detectability of the virus in HIV-positive people to the point that the risk of infection is extremely low. While health care advocacy giant AIDS Healthcare Foundation (AHF) is fighting for this measure, other AIDS-prevention groups claim that the proposition is upholding antiquated health standards that don't work for the industry. My student, who interviewed industry performers for his article, found that the industry effectively self-regulates the risks away, and putting people who have financial stake in adult film in a position that exposes them to lawsuits (particularly moralistic ones) creates a bad incentive. Adult entertainment companies concerned about the prospect of litigation will simply move somewhere else in the country--Nevada, perhaps?--and California will lose tens of millions of dollars in tax money

In case you think this is a positive because "we don't want them here", I'd like to remind you that porn watching knows no borders. Porn is viewed almost exclusively online regardless of where it is produced and filmed. You'll still be able to see plenty of unprotected sex, much of it done by amateurs filming themselves; what you won't get is the tax revenue. This proposition smells like unwarranted moral panic. I'm going with no on this one.


November 2016 Ballot: Yes on 57

My colleagues and I at UC Hastings made a series of neutral, informational videos about the propositions on the November ballot. Here's the one about Prop 57:



For readers of this blog, I'm also making endorsements. It should be a resounding YES on 57, and here's why.

The first part of Prop. 57 is a no-brainer: who do you trust more with the decision to prosecute juveniles in adult court--a judge after a fitness hearing or a prosecutor? We've trusted prosecutors since we adopted Prop. 21 in 2000. We're talking about thousands of cases here, but even one case of a young person unnecessarily doing time in an environment full of older people should be avoided. What we know about juveniles in adult institutions (which is not a lot, because it's difficult to study) is disconcerting: suicide rates and vulnerability to abuse, assaults, and victimization. Moreover, when this decision is left to prosecutors, there are big differences between the different counties. Juvenile offenders should not be political pawns.

The second part requires a bit more unpacking, but also turns out to be a no-brainer. A typical felony sentence in California consists of the basic sentence for the offense plus a series of "enhancements" added in bills and voter initiatives over the years. Our determinate sentencing allow for people's release from state prison after they complete most of their entire sentence, including the enhancements--which can sometimes double or even triple the original sentence. Most folks don't come up for a parole hearing: California holds parole hearings only for lifers.

If Prop. 57 passes, some version of parole hearing will be returned to the system and applied to non-lifers as well. The idea is to award nonviolent felons doing time in prison (not a big population since Realignment and Prop 47) a parole hearing after their base sentence is completed. The proposition requires that CDCR adopt regulations about rehabilitation programming and the worth of doing programs in "good credit" days that count toward early release. So, while its target population isn't big and some of the details on how exactly these parole hearings will be held are still obscure, a few things are clear: This will not result in more incarceration, and it will award release to people whose records show them to be rehabilitated. At worst, it'll be an ineffectual proposition (albeit not a harmful one). But if implemented correctly, it could liberate some folks from the Byzantine maze of enhancements that leads to truly ridiculous sentences.

Some voters might be wondering whether Prop. 57 violates the single subject rule. The best two readings I can recommend on this are Michael Gilbert's 2006 paper and his excellent 2011 followup. Using an ingenious research design, Gilbert finds that our natural tendency is not to enforce this rule when proposition are more or less on the same topic. His analysis with Robert Cooter also suggests that there's positive value in "bundling" similar issues in one proposition.

The "bundling" of juvenile and parole here is relatively benign. Remember Marsy's Law in 2009? The one where you thought you voted to support victims and you actually voted to extend the period between parole hearings? This one's not like that. These two issues make the system more deliberative and personalized, things of which we could use more, and if well implemented can save lives (and dollars.) So, vote yes on 57.

Tuesday, July 19, 2016

Play Review: The Box by Sarah Shourd

It's hard to say that watching The Box, Sarah Shourd's new play, was a pleasurable pastime. But it was an important play, incisively written, beautifully acted, and impressively produced, that could not leave the audience indifferent.

The Box is a play about solitary confinement. In a cleverly constructed set of six cells, approximately the size of a real SHU cell, sit six prisoners. Some are there for a brief disciplinary interlude; some have been there for years. Shourd's characters are fictional, but their biographies are reminders of real people in solitary, such as the Angola Three and Todd Ashker.

With the views, video projections, and convincing soundtrack of noises, we are transported to a world of cruelty and deprivation. We meet different people, who approach the reality of their situation in different ways. We see them in conflict; we see them in solidarity; we see them at their noblest and basest. Shourd, who has spent years fighting solitary confinement ever since her release from Iranian prison, based the play not only on authentic dialogue, but also on genuine proceedings in solitary (the play takes the trouble of taking us through the routine of getting people out for visitation, including the wait time of the visitor.)

The play is also a reminder of the importance of solidarity and interracial unification. It includes a brief and stylized version of the two Pelican Bay hunger strikes, complete with the court order to force feed the inmates that ended the second one. I highly recommend this unforgettable experience to anyone, especially those who have not yet become embroiled in the struggle to end solitary confinement in California.

The Box plays at Z Space until the end of the month. For tickets, click here.

On the Ballot: CA Propositions on Criminal Justice, November 2016

It's pretty early to start talking about these, n'est ces pas? But it's not too early to start thinking about the November election as an opportunity for positive change. Here is a roster of the statewide propositions addressing criminal justice issues, with some initial thoughts. We will take each in turn in the coming weeks.

YES on 57: Civil and Criminal Trials

This is the Jerry Brown proposition, which essentially does two things: takes the authority to file charges against juveniles out of the hands of prosecutors and places it back in the hands of judges (this bit is a no-brainer. OF COURSE it's a good idea) and offers incarcerated folks the opportunity to earn more good credits on their path to release, resuscitating some version of parole for non-lifers. As to the latter part, the devil's in the details, but even at its worst, it won't make people's sentences worse than they are now. There's nothing to lose by saying yes, and moreover, any day someone with a proven rehabilitation record spends outside, working, paying taxes, and quietly living his/her life, is not a day you pay taxes to house him/her.

YES on 62: Death Penalty Repeal

We came close in 2012, and this is our chance to finally join the industrialized Western world and get rid of a punishment that does not serve us well. If you're philosophically inclined, ask yourself what you think about state-sanctioned killings. If you dislike miscarriages of justice, ask yourself how comfortable you are with executing innocent people. If you feel the system is racially biased, here's one classic setting where that is abundantly clear. And if none of these things matter to you, perhaps, like me, you think that $150 million a year is a pretty extreme expenditure for keeping 750 old and sick folks in a dilapidated facility, paying for their endless appeals and habeas, and letting them, for the most part, die of natural causes. Remember: you are not voting about the philosophical appeal of a theoretical death penalty, but rather about the ridiculously expensive, ineffectual, and non-deterrent process we have now in place. Let's say goodbye to this archaic festival of waste and punitivism once and for all.

YES on 64: Marijuana

This legalization proposition is a considerable improvement over its 2010 predecessor. That one was imperfect, and as you recall, I recommended a "yes" despite of its imperfections, because whatever we do, we can't go on doing what we're doing now. Arrests, trials, and convictions, have not impacted the marijuana market at all. Taxation and regulation might--if we do a clever job at setting price points and the appropriate sales tax. Two things have changed since 2010 that make this one a stronger pitch for you: the feds have fairly consistently stayed out of the business of states that legalized recreational marijuana, and we have the experience of five states who legalized and the sky didn't fall down. There are some complicated implications that this proposition might have on marijuana use rates, and we will discuss them in the weeks to come--as well as the reasons why this is of no particular concern in California.

NO on 66: Death Penalty Reform

This is the District Attorneys' Association's horrible response to 62, which consists of something similar to what happened in Florida a few years ago. The idea is that the death penalty is, indeed, broken, but that it can be reformed, and by taking away important constitutional protections, and "streamlining" (read: removing) options for post-conviction relief we can "cure" the delays in its administration and save a bit. This is only a good option if you are indifferent to the risk of executing innocent people or don't care much for state misconduct, which is sure to result from it--it might be cheaper, but also considerably more cruel and stupid. If you feel that the death penalty is too costly or cumbersome, let's get rid of it altogether, rather than serve a barbaric version of it with a side order of miscarriage of justice. NO NO NO.

Thursday, May 26, 2016

Long Sentences for Juveniles: Does Parole Fix Everything?

Today, the California Supreme Court decided People v. Franklin in a way that probably had both the defendant and the state feeling unsatisfied.

The story is tragic in the same way that too many stories are: Tyris Lamar Franklin, 16 years old, was in conflict with other teenage boys, whom they referred to as the Crescent Park Gang. Shortly before the crime, the Crescents fired multiple shots into the apartment where Tyris lived with his grandmother and brothers, and attacked Tyris' 13-year-old brother. In retaliation, Tyris shot and killed Gene, a boy who was associated with the Crescents but who had nothing to do with the attack on the little brother.

Under California law at the time, the judge had no choice: he had to sentence Tyris to 25-to-life for the murder and to a consecutive 25-to-life for the weapon enhancement. The math is easy: Tyris would come up for parole for the first time after 50 years, at the age of 66. But the judge felt very uncomfortable with this decision. His explanation of the sentence echoes not only his grief and frustration with the unnecessariness of the crime AND the punishment, but also his thinking, which was influenced by the new Supreme Court line of cases, starting with Roper v. Simmons and continuing with Graham v. Florida. These cases relied on new findings in neuroscience and developmental psychology, which suggest that juvenile brains continue developing well into their mid-20s, and that until their prefrontal cortex is fully developed, they are less capable of thinking about consequences, factoring in long-term considerations, and resisting peer pressure. Reflecting this "rediscovery of childhood" perspective, the judge said:

The sentence is the sentence that‘s prescribed by law, not one that the Court chooses. And I will impose it in this case, but first I just want to say a couple of words to both families. I see a lot of pain in this courtroom all the time. And so often it‘s because of senseless things that happen. And if there‘s a senseless case, this is a senseless case. We‘ve got two young men‘s lives destroyed. . . . We‘ve lost two young men. And for what? It‘s so senseless. I would have loved to have seen these two young men grow up to be people, to be the people they‘re supposed to be, both of them. And neither of them is going to have that opportunity. It‘s because of unspeakably stupid choices that you made, Mr. Franklin. And I just hope that something can come out of this that‘s productive. I‘m impressed with Gene[‘s] . . . family‘s dignity going through this. Their empathy for Mr. Franklin‘s family and even Mr. Franklin. And I‘m impressed with Mr. Franklin‘s family‘s understanding and empathy for [Gene]‘s family. And if we can take something from this, I would love for it to be, get the guns out of Richmond, get the violence out of Richmond, and don‘t have these young black men going after each other because we see it so much in this courthouse. And what ends up happening is we have some young men going to prison for the best years of their lives at the least, and other young men who don‘t get to grow up. And how crazy is this? How crazy. So if both families can do anything to try to make some sense and find some good out of this, work together to try to get the guns out of Richmond, get the guns out of the pockets of these young men who haven‘t got the frontal lobes yet to figure out how to deal with their issues.

Shortly after Tyris Franklin was sentenced to 25 + 25, the Supreme Court decided Miller v. Alabama. Under Miller, mandatory life-without-parole schemes for juveniles are unconstitutional. Even before the Supreme Court's subsequent decision in Montgomery v. Louisiana, which applied Miller retroactively, California was already searching for ways to fix these problems. One such way was through SB 260, later codified as Penal Code 3051, which provides a special "youth offender hearing" before the parole board. For someone serving a sentence like Tyris Franklin's, that would mean a parole hearing after 25 years, in lieu of the 50 that the law provided before the amendment. Moreover, under the new law, the board is encouraged to take the person's age when the offense was committed into account in a serious way. For evidence that the parole board takes the "rediscovery of childhood" perspective seriously, see their recent decision recommending Leslie Van Houten's release.

The California Supreme Court found today that the "youth offender parole hearings" provided by Penal Code 3051 preempted Franklin's argument that his sentence violated Miller, because he is already eligible for the "fix" via an earlier parole date. Nonetheless, the Court remanded the case to determine whether Franklin was able to fully present evidence as to his level of maturity, which won't make a difference for the sentence but will make a difference twentysomething years from now on parole. It's a bit of a "neither here nor there" decision. The state representatives would say: if the sentence is fine, and if there's evidence in the judicial explanation that the judge was aware of youth issues, why not take that into account? And Franklin would say: if the judge clearly was unhappy with the mandatory sentence, and the mandatory sentence was unconstitutional, why not give the judge a chance to fix this at resentencing, rather than waiting twenty-five years?

Part of the discomfort with relying on the parole "fix" in this case relates to the proximity between Miller and Franklin. Even though, legally, it doesn't matter whether the case we're remedying with a parole hearing happened one day or fifty years before Miller, it somehow feels different. When the Supreme Court decided Montgomery, Henry Montgomery was in his late 60s, having served fifty years behind bars for a crime committed when he was a teenager. A parole hearing to release him could be held immediately. Here, by contrast, the result is that with the "fix", which was just held to preempt the constitutional channel, Franklin has to wait more than twenty years to argue something that we know the judge felt very strongly about as recently as 2011.

Whether or not you think the result in Franklin was constitutionally permissible, the deeper questions about the parole "fix" emerge. We're very good at ratcheting up sentences and we've done a masterful job at forgetting that children were children. And now that we've remembered the difference between youth and adults, it's taking us a very long time to fix things using very small steps, which put a dent in ultra-severe sentences, but are still very far from undoing their destructive effects.