Friday, November 18, 2016

Ganja in Trumpland: An Introduction



The campaigns for and against Prop. 64, the Adult Use of Marijuana Act, revolved around the minutiae of the proposition: Will the big guns get rich at the expense of mom-and-pop growers? Do we have to give away our medical marijuana cards and pay more for our pot? What do we do with impaired drivers?

It seems like pretty soon we'll have more serious problems on our hands as a result of legalization. Trump's planned nominee for Attorney General, Alabama senator Jeff Sessions, does not share the opinions espoused by reasonable, cost-minded Republicans about the harms of overcriminalization or the sensibility of a public health model for substance abuse. Instead, we will have to contend with a man whose acquaintances define as a "war on drugs dinosaur", and who claims that good people don't smoke marijuana.

(how do good people get their marijuana, then? Do they munch on edibles? Vape? Or maybe they smoke something else? What is it?)

The regime of state regulated-marijuana, as established by the Supreme Court in Gonzalez v. Raich (2005), means that Congress, despite its federal prohibition of marijuana, has not preempted the states from regulating it within their borders. On the other hand, it is perfectly permissible for the use of marijuana to be legal statewise and illegal vis-a-vis the federal government: after all, citizens can freely choose to obey both laws by not using cannabis. Granted, this reason was more upsetting with regard to the original plaintiffs in Raich, who suffered from debilitating medical conditions, than with regard to the prospective users of recreational marijuana in 2016. Still, it is a reminder that, while the State of California has decided to opt out of a criminal justice model, the feds can freely ignore Eric Holder and James Cole's memos about federal restraint in enforcement.

In other ways, gentle reader, there is nothing to stop Jeff Sessions from taking away your pot.

The progressive and libertarian outcry against prospect of federal intervention in recently-legalizing states is understandable. The Trump victory makes the marijuana victory hollow. Federal law enforcement can make, and has in the past made, the lives of marijuana growers, sellers, and users impossible, even in states with lack or no enforcement of their own. And some of the outcomes of this contradiction are downright bizarre. For example, gun salespeople are not allowed to sell guns to anyone who is a "unlawful user and/or an addict of any controlled substance"--including medical marijuana, as the Department of Justice clarified in 2011. Technically speaking, this state of affairs is legally permissible, because Americans can comply with both legal systems by not using marijuana, in which case nothing can stop them from buying guns. But to some commentators this is inappropriate federal intervention in state affairs.

This little example is nothing compared to what we might see during the tenure of a man who finds moral fault in cannabis users: a renewal of the federal war on drugs, with its futility, noxious tactics and tragic outcomes--but this time, with the disturbing history of the Nixon and Reagan eras to school police departments and states in carceral expansion. In this grotesque carnival mirror caused by the election, blue states will now be the ones crying out for state rights.

Sunday, November 13, 2016

Trumpland: Worse Than Nixon

The Trump Administration has published its 100-day plan. Read carefully: it includes mass deportations, as well as a Nixonian plan for federal funding of the police. The cycle continues.

The similarities are striking (especially the noxious racial undertones of both punitive turns,) but this is not merely a re-run of the late sixties: Trumpland is much worse than the early days of Nixonland in several ways.

First, when Nixon ran a campaign of aggressive criminal justice, there was at least partial justification for the public's support of him. He had data in hand showing that crime rates were rising. Whether or not the public felt it on an everyday basis or it was governmental manipulation, it wasn't complete distortion. It's true, as Steven Raphael tells us, that the rise in crime may not have been as dramatic as we think, because crime rates seem to have been considerably underreported until the 1970s because of incomplete FBI data collection (not all counties were included.) But this means that, even if crime wasn't rising that dramatically, there was plenty more of it than there is now.

By contrast, we are now experiencing the lowest crime rates in forty years (and, if the inacuracies from the 1970s are big, even in longer.) Trump's capitalizing on a one-year rise in murder rates is simple deception. And, again by contrast to Nixon, there isn't even a horrible redball crime in the form of the Manson murders to sway public opinion to the cause of oppressive crime control. The basis for this return to Nixonian policies is based on pure fabrication.

Second, when Nixon's policies started fueling arrests and convictions, we didn't already have so many people in prison. The arc of growth was enormous, but it grew from a much lower place. Even with recession-era reductions, prison population has only started to decline. An increase in prosecutions and incarcerations means enhancing an already grotesquely bloated criminal justice apparatus.

Third, after years of Nixonian growth, states already know all the tricks of prison construction: rather than taxing voters (who might like prisons, but don't like paying for them) they'll use lease-revenue bonds to house people.

And fourth, privatization is already well fused into the wheels of the penal machine. By that I don't mean private prisons - I mean mostly the pervasive privatization of the insides of public prisons. In a hypercapitalist America, headed by the epitome of hypercapitalism, this industry is already well-positioned to take advantage of a further increase in incarceration.

I don't think all of this is happening because the economy is better, but that certainly isn't helping. Don't get me wrong: of course I'm happy that the economy has improved. But one of the effects of this will be that a neo-Nixonian influx of money into policing and sentencing is going to create the same cycle I talked about in Cheap on Crime: we can afford to, so let's arrest and charge lots of people, and let the states worry about how to pay for incarcerating them.

We're looking at some dark times ahead. On many fronts.

Friday, November 11, 2016

When They Go Low, We Go High

ExpertFile is a service that allows the public to contact experts with queries. Today, as we're all reeling from the results of this election, I received the following query from them:

Event Inquiry Details
Event Name: fuck you cunt
Event Location: going to hell
Event Date: 11/30/2016
Event Description: hope you crash and die
Message: "voting to end the long wait for death to the fucking killers... hope you are a victim of one of them someday... karma cunt...."
Contact Details
Name: Dead Victim
Organization:
City: San Francisco
State/Prov: CA
Country: US
Email: localcemetary@aol.com
Phone:
Website:
******

In the last few days, people with far less support and social advantage than me have been on the receiving end of slurs, insults, threats, and hate crimes. This is a piece of cake compared to what many good people have been exposed to because of what they believe, how they look, or who they love.


I will not stand for it. Decent people everywhere--of which there are many--will not stand for it.


I am resolved to respond to noxious, misogynistic, threatening messages by doubling down on my commitment to criminal justice reform, the end of capital punishment, and . When they go low, we go high.

A Horrible Setback to Criminal Justice Reform

Prop. 66 is not the first "speed up the death penalty" proposition to pass in the last few years. Florida's similar "fix" was tossed out by the courts as unconstitutional just a few months ago, and let's hope this one meets a similar end.

What got me out of bed and into the office on Wednesday was this interview on ABC News, in which I express grave concerns for the deterioration in the quality of justice with the passage of 66. Capital punishment attorneys know: you cannot resolve a death row case in five years, and you certainly can't do it in Superior Court. You cannot provide people adequate representation without pouring even more money into an already costly process.

This, by the way, is why Prop. 62 was a decent application of the ballot process and 66 was not. In The Forms and Limits of Adjudication, Lon Fuller distinguishes between monocentric and polycentric problems. I think that 62 is easily of the former variety: a simple yes/no question. 66 has a lot of moving parts (and funding) that are difficult for voters to understand. Even among my students, who are considerably better legally informed than the average voter, there were a few people who voted yes on both propositions, perhaps thinking that they could live with a death penalty "fix" one way OR the other. But it is hard to consider the ramifications of creating an entire system of reviewing huge cases with enormous consequences in lower courts and hiring new lawyers en masse to represent them (with what money???).

But I want to say something also to the families of victims, like Ms. Loya, who is interviewed in the newsstory.

Ms. Loya, I am so, so sorry for your loss. What terrible grief you must feel every day. Losing a loved one so violently is such a traumatic experience, and dealing with endless litigation on the part of the killer must be gut-wrenching.

When I hear you on TV, I worry, because I have heard from other victim families that fighting to get people killed faster intensifies the pain, fills you with soul-destroying feelings of revenge, and could compound your suffering in that this proposition could become the instrument of grave injustice.

Among the people whose executions could be expedited by this new law are people who are innocent of the crimes they committed--such as Shujaa Graham and Paris Powell, innocent men who spent long years on death row before their exonerations, and whom I met campaigning against Prop. 66. And these people also have mothers, like you, who will live to see their sons die violently, like you.

It is so hard to think beyond your personal pain. But I am so concerned about all this additional and unnecessary suffering this will bring to other people, just like you. I can't see how this adds up to a net good in the world.

I feel for you and it breaks my heart to see you feel your loss so keenly after so many years. And at the same time, so that others will not know such losses at the hand of their government, I will continue to fight for the repeal of the death penalty in my lifetime.

Thursday, November 10, 2016

Wear a White Rose

When my students arrived to class today, they were greeted with dozens of white roses--one at every seat. We talked about the election.

Our Muslim students talked about their family's fear. Our African-American students talked about feeling like other Americans see them as less than human. Our immigrant students talked about how they had thought of America as a beacon of hope and diversity, only to wake up to a horrible reality. Our students who are parents talked about the difficulty of explaining what happened to children and giving them hope to go on.

I talked about how months of my work on Prop. 62 - time, talent, energy, verve, money--yielded negative returns: the failure of Prop. 62 combined with the horrifying and worrisome Prop. 66.

We talked about how difficult it is to get up in the morning and gear up for the work we so desperately need in these times.

I shared two things that have been personally helpful to me. One comes from my Buddhist practice, in which one traditional form of meditation involves "touching the Earth for our adversaries." Our adversaries and enemies, formidable as they might be, reprehensible as their actions are, abhorrent as their values are, provide us with an important service: they remind us of our strength, our preferences, our values, and our actions. The opportunity to resist gives us an opportunity to examine and solidify our own intentions about what's right in the world. It is a reminder of things greater than the self, of the impermanence of everything, and of how the mind (of an individual or of a society) has a limitless capacity for love and hate, generosity and greed, valor and fear. Our adversaries remind us to make mindful choices about our own values and strengthen our resolve.

The other one comes from growing up under the shadow of the Holocaust, in a country where upset and frustration and anxiety over the rise of fascism and bigotry comes in a healthy dose every four years since Yitzhak Rabin's murder. What I learned from living in Israel, and from my grandma who fled Frankfurt in the 1930s, is that in times of great crisis and fear lies an immense opportunity to protect and help the persecuted and the downtrodden. It is in times like this that the social advantage, skills, and character of people like Oskar Schindler or Raoul Wallenberg can make a real difference in people's lives. My students are uniquely positioned--due to their education and skills--to help and protect others, some from their own communities and some from other communities that may face perils and threats in the next few years. This means that everyone's marginal utility in the world will grow manifold. Whether it's working a public service job, picking cases, or donating a portion of a comfortable income to the cause of justice and civil rights, they--and you--have the power to make intentional decisions that can have a dramatic impact on your families, friends, neighbors, and fellow humans.

To keep a ritual and symbolic reminder of how much we can do to help, protect, and champion the people and values we care about, I am going to be wearing a white rose on my lapel from now on. The White Rose Society (die Wei├če Rose) was a non-violent, intellectual resistance group in Nazi Germany led by a group of students and a professor at the University of Munich. The group conducted an anonymous leaflet and graffiti campaign which called for active opposition against the Nazi regime. Their activities started in Munich in June 1942, and ended with the arrest of the core group by the Gestapo in February 1943. They, as well as other members and supporters of the group who carried on distributing the pamphlets, faced unjust trials by the Nazi People's Court (Volksgerichtshof), and many were sentenced to death or imprisonment.

The group wrote, printed and initially distributed their pamphlets in the greater Munich region. Later on, secret carriers brought copies to other cities, mostly in the southern parts of Germany. In total, the White Rose authored six leaflets, which were multiplied and spread, in a total of about 15,000 copies. They branded the Nazi regime's crimes and oppression, and called for resistance. In their second leaflet, they openly denounced the persecution and mass murder of the Jews. By the time of their arrest, members of the White Rose were just about to establish contacts with other German resistance groups like the Kreisau Circle or the Schulze-Boysen/Harnack group of the Red Orchestra. Today, the White Rose is well-known within Germany and worldwide.

I've been giving away white rose lapel pins all day long, and am happy to send you one, reader, if you email me with your address. Wear it as a symbol of hope and commitment to compassion and action even in dark times.

Grieve as you need, and then roll up your sleeves and let's get to work.

Saturday, October 29, 2016

With Great Power Comes Great Responsibility

Wry Craigslist ad created in the aftermath of the Malheur takeover acquittal.
My first reaction upon hearing of the acquittal of the defendants involved in the armed takeover in Oregon was probably similar to yours, gentle reader: I saw no legal argument for acquittal and it was plain as day to me that what happened here was jury nullification (despite what this juror says here, I find myself incredulous that it was difficult to deduce intent from what transpired there.) It was a powerful reminder of the unchecked and untamed potential that lies beneath the legal structures we have built. The right to a jury of your peers also has a built-in, hidden-from-sight extension, which is the right to vie for the kind of peers who might be sympathetic to you even when the law is not.

The web is ablaze with cynical commentary and comparison memes, and arguments of white privilege. But what has happened here is no different--legally speaking--than what happens when people follow The Wire creator David Simon's call, or, for that matter, critical race theory scholar Paul Butler's call, to nullify in drug cases, or in cases involving defendants of color.

The constitutional trial rights we all have apply universally: there is no boilerplate section in the Bill of Rights that restricts them only to defendants and causes we like and support. This is, in part, why I opposed the ban on grand juries in police violence cases and signed a letter against Judge Persky's recall: When we take away justice and discretion "only" in cases of defendants we dislike, like police officers or entitled frat boys, we shouldn't be surprised when these rights disappear for defendants we do like and support.

Nullification is not a constitutional trial right, but it is an implicit power that comes with the secrecy of jury deliberations, their exemption from providing reasons for their decisions, and the inability to appeal acquittals in the U.S. criminal justice system. With great power comes great responsibility, and when we call for the use of this power for causes we believe in, it shouldn't be too shocking that people who vastly disagree with us use the same power for causes they believe in.

So, is nullification the tool of armed white supremacists, lynchers, and antigovernment insurgents, or of racial justice protesters and war-on-drugs opponents? There's no way to measure who uses it more, because jurors interviewed after trial are very unlikely to admit that they nullified. Everyone wants their decisions to be perceived as legitimate. Without actually knowing what happened in the jury room and inside the head of each juror, we can never know with absolute certainty--even when it seems obvious--whether they nullified, misunderstood the law, misunderstood the (often badly phrased) jury instructions, or any combination of these factors. We are also unlikely to be able to reproduce and measure this in mock jury experiments, because I think jurors nullify in cases that matter to them a lot emotionally, and experimental conditions will not produce that amount of passion and anguish. In the absence of data on this, we have to assume that juries do this, and keep in mind the knowledge that it can be used by anyone, for any goal, to support any political agenda.

The one thing to learn from this, I think, is that the outcome in highly political contested cases depends on the skills, science and juju that went into the jury selection process, more than on those that went into the trial--and that holds true for all of these cases, sympathetic and antipathetic alike. Which is an excellent reason for every lawyer, on either side of the adversarial process, to learn the art and science of voir dire.

Thursday, October 27, 2016

Are You Against the Death Penalty? Good. Then Vote Against the Death Penalty.

It's no big surprise that the Prop 62 campaign, which calls for the death penalty repeal, is working hard to build a coalition across political lines. Because of that, the campaign rhetoric understandably aims at reassuring undecided voters that, even with abolition, they will remain safe; and its two main arguments, the obscene costs ($150 million a year) and the risks of wrongful convictions, are arguments that should appeal to all of us, regardless of our political convictions. But lately I've been hearing from some folks on the very left edge of the political map--progressives and radicals--who are thinking of voting no on 62 for various progressive reasons. If you are one of these people, this blog post is addressed to you.

First of all, friend who cares about progressive causes and criminal justice reform: I hear you. I hear that you are frustrated because you need the system to change at a faster pace and that some provisions in these propositions aren't exactly what you'd hope for, and that you are concerned that if we pass these it'll stall further steps. I hear that the democratic process is not moving things far enough and soon enough for you. I hear that you are giving this a lot of thought and are genuinely concerned about aspects of the proposed reform. I believe you that your dilemma is real. I understand that you are trying to do what you think is best for people in vulnerable situations.

I hope you can hear me when I say that, when you tell me you might be voting to keep the death penalty in place, it really, really frightens me.

I am frightened because I've been thinking, writing, and speaking about criminal justice reform for twenty years, five as a practitioner and sixteen as an academic, and the one thing I learned is this: in criminal justice, the perfect is the enemy of the good. And I am really afraid that in our quest to attain a perfect criminal justice system we might opt out of a crucial step on the way to where we want to be.

Please allow me to address your concerns one by one.

"If we get rid of the death penalty, aren't we entrenching life without parole? I think life without parole is horrible, and we are affirming it as the upper range of punishment."

You feel that life without parole is a hopeless, soul-destroying punishment, which offers a person no prospect of ever seeing life outside prison. And you feel this is especially cruel for very young people (a big chunk of our prison population) who become incarcerated in their twenties and are looking at a very long stretch behind bars.

You know what? I agree with you. Life without parole is, indeed, an extreme form of punishment. Like you, I am committed to a struggle to bring a possibility of hope--an exit possibility--to any prison sentence.

Unfortunately, we can't start our fight against life without parole until we win our fight against the death penalty, which is within reach. This is, unfortunately, how political reform works: incrementally, with bipartisan support, and with a big base of consensus.

I wish there were a critical mass of Californians of all political persuasions convinced that our criminal justice system needs to be immediately reformed. Not just at the edges, not just for nonviolent inmates, not just for juveniles, but for everyone. But that is not the world we live in. The political reality is that, in order to make change, incremental steps have to be taken. Remember same-sex marriage? That didn't happen overnight. There were revolutionaries calling for marriage back in the seventies, when it was unthinkable. Then, the movement had to regroup, advocate for lesser protections (domestic partnerships, workplace protection). Yes, domestic partnership was less than marriage in important ways. But this is why public opinion changed, between the mid-1990s and the early 2010s. Incremental change is what led to the triumph of that movement. 

For an even more relevant example, see what is happening with juvenile justice. Life without parole for juveniles is horrible, right? And look at how close we are to eradicating it--because in 2005, in Roper v. Simmons (2005) the Supreme Court abolished the death penalty for juveniles. It was the first step in a long series of reforms. In Graham v. Florida (2010) the Supreme Court felt comfortable relying on the same arguments to abolish life without parole for nonhomicide crimes. In Miller v. Alabama (2012) the Supreme Court relied on that logic to abolish mandatory life without parole for all juveniles, and then felt comfortable making that ruling retroactive in Montgomery v. Louisiana (2016). We are now within striking distance of abolishing life without parole for juveniles. None of this would have been possible without Roper v. Simmons.


This is even truer for legislative/public campaigns than for judicial change. To make reform happen, we need wide public consensus--not just an agreement among progressives. We need our conservative and moderate friends to live with the new situation for a while, realize that the sky doesn't fall if punishment is less extreme, and accustom themselves to the idea of further reform. A classic example is marijuana legalization. Recreational marijuana would not be on the ballot--within reach and polling great so far--if Californians of all persuasions didn't have a chance to live with medical marijuana for years and realize that it was not the end of the world. Do you think we would have been here, at this point in time, if progressive voters had declined to vote for medical marijuana, claiming that limiting legalization to medical patients wasn't good enough? Similarly, conservatives and centrists grew accustomed to same sex marriages because they lived with domestic partnerships. They will be willing to consider a reform of life without parole if and when they see that the death penalty was abolished and it didn't lead to a rise in crime rates, a decline in public safety, or any other negative consequences. You and I already know that giving reformed, aging folks a chance at parole is also not a safety risk. But not everyone knows that, and we need our friends across the political map to agree with us. We can't make change otherwise.


I've been studying criminal justice reforms for the last sixteen years. I have not seen a single criminal justice reform that sprang perfectly from nothing. Every change we've seen since 2008--and we've seen plenty, believe me--was the product of incremental, bipartisan reform. This will be no exception. We can't get from A to Z skipping steps along the way. I know you're ready for Z. So am I. But the people whose hearts and minds we have to change so that Z happens--and we can't make it happen without them--need us to go through all the steps so that we can have a coalition. What we want won't happen otherwise.



"We are not really executing people in California anyway, and the delays are lengthy, so our death penalty really is just life without parole, with or without an execution at the end. So what would abolition actually achieve?"

Our peculiar situation in California is that we have about 750 folks in limbo. We could execute them, but through litigation efforts and mobilization we're trying to stall their executions. Being on death row, friend, is not the same as being in general populations. Folks on death row are also in solitary confinement, do not work, and do not have access to the social and educational opportunities available in general populations. Our death row is notoriously dilapidated.

Also, can you imagine living with the uncertainty of whether you'll be executed by the state some day? Ernest Dwayne Jones couldn't. And in Jones v. Chappell (2014), a conservative District Court judge from Orange County agreed with him. Based on sound research on the effects of uncertainty, and the horrible thing it is to live with the prospect of being killed by your fellow men, the judge found the death penalty unconstitutional. We didn't win that fight, even though we tried very hard: the Attorney General decided to appeal, and the Ninth Circuit reversed for technical reasons. But the reasoning behind Jones is sound: it is very different to be a death row inmate than a lifer.

But let's assume for a minute that these two experiences are comparable (after all, we always compare them to each other.) If you really can't see that the death penalty is worse than life without parole, how about a tie breaker? We don't like to talk much about savings in the progressive left--it's an argument that some of us think is designed to appeal to centrists. But we're talking about a lot of money here: $150 million a year, to be precise. If you really have no preference between the death penalty and life without parole, does this obscene waste of money not tip the scale in the repeal direction for you? Think about all the things you care about: education, health care, roads. Is it really a progressive move to keep something happening, in which you see no virtue, and spend this much on it when we could spend it on the things you care for?

Finally, I know you'd like to see the death penalty go away not only in California, but also in other places. You know where people on death row do get executed? In Texas, for example. Unfortunately, change in Texas is not going to spring to life, fully formed, out of nowhere. We have the biggest death row in the country and have been the vanguard of criminal justice innovation, for better and for worse. Determinate sentencing? Us. Enhancements? Us. The most punitive version of Three Strikes? Yup, we started that one, too. But we can use this power we have, as a huge and influential state, to make changes in other places as well. We adopted Realignment; we reformed Three Strikes; we passed Prop. 47. These things have a ripple effect in other states. We have to make the first step here. The death penalty doesn't take the same shape in all states, but it is abhorrent in all of them. Reform in Texas begins here, with you.


"If we abolish the death penalty, aren't we depriving people of valuable and free legal representation? Only death row inmates get two free lawyers paid for by the state, and that increases their odds of exoneration."

It's true: The California Constitution awards death row inmates two free attorneys to represent them in their appellate and habeas proceedings. But what does this mean in practice? We have hundreds of inmates on death row who are unrepresented and unable to benefit in any way from this constitutional provision.

As of August 2016, 46 inmates are awaiting appointment of both an appellate attorney and a habeas corpus attorney. 310 inmates have been appointed an appellate attorney, but are still awaiting appointment of a habeas corpus attorney. This is almost half of all death row inmates, and there are only 34 attorneys employed by the Habeas Corpus Resource Center. You could do what tough-on-crimes conservatives might do and vote yes on 66, but to actually close the huge representation gap we'd have to train and appoint 402 defense attorneys just for the cases now pending. This is a huge expense, and it would come with the added price tag of speedy proceedings that run the risk of executing innocent people. And that is something neither of us wants (I really hope you're voting no on 66. It's a horrible and draconian proposition.) So, if we're staying with the existing situation, what guarantees of exoneration do we really have?

Ask Shujaa Graham, who spent 16 years in San Quentin for a crime he did not commit. Yes, he was exonerated at the end, but what a huge risk he ran while he was still there! Beyond the horrible conditions, the cruelty, the loneliness, the boredom--an innocent person on death row lives every hour or every day of his life with the fear that the miscarriage of justice that happened to him will be irreversible. For that matter, ask any of the 150 exonerees whether they'd trade what happened to them with a guarantee that they won't be in a situation where the horrible wrong done to them can never be rectified.


"Hey, wasn't there some survey of death row inmates four years ago where they said they preferred to keep the attorneys they have? Why would we oppose something that the inmates themselves support?"

Four years ago, indeed, the Chronicle published a survey with death row inmates who said something like this. But the Chronicle did not disclose the methodology of the survey, nor did it share the questions they were asked. How does one even conduct a valid survey on death row? And how do we know whether the people who asked the questions weren't only those who are represented--and not the hundreds of people who wait, on average, 16 years to even get an attorney so they can begin the proceedings?

Of course we care what death row inmates think. And former death row inmates who have been exonerated have been aggressively campaigning against the death penalty and on behalf of Prop 62. Have you heard a single exoneree publicly praising his good luck in being sentenced to death? Maybe there's a reason for that and we should listen to them.

You know who else is worth listening to? Lifers. I teach lifers in San Quentin and what I hear from them is uniform, wall-to-wall support of death penalty repeal. They think that the death penalty is a massive waste of resources. And, while they yearn for the day we fight against life without parole, they are relieved to be in general population, studying, working, and interacting with others, rather than on death row. Most importantly: they know that we are spending a lot of effort on a policy that affects only 750 people instead of focusing on the thousands of lifers out there. And they know that we can't get to other penal reforms before we make this one happen. You want us to get to the business of reforming LWOP? Great, me too! Let's repeal the death penalty so we can get there sooner - there are no shortcuts that don't pass through death penalty repeal.


"Prop. 62 is mandating that the folks we commute to life without parole work and give money to victims. That's forced labor and I don't support that."

I know how the concept of work in prison makes you feel. It's a grim reminder of how, when we abolished slavery, we threw in a little exception: forced labor is allowed in prisons. It is something that we have come to abhor, because it means that our prison regime perpetuates, in a new guise, abhorrent forms of coercion and racial domination.

But abolishing labor in prisons is not on the ballot. Abolishing the death penalty is.

Some progressive voters bristle at the campaign's emphasis on making lifers work to compensate victim families. You can be forgiven for mistakenly thinking that the proposition "creates forced labor." But that is, simply, not factually true. Section 2700 of the Penal Code, which requires that inmates work, has existed for a very long time, and already applies to everyone on life without parole. Prop 62 doesn't hasn't invented anything new and does not change that section; it would merely apply to a few hundred more lifers--for the simple reason that they would now be lifers, not death row inmates.

The only modification that Prop. 62 would make is increasing to the maximum restitution withholding from wages (not family donations), from the 50% (which is already in effect) to 60%. Is objecting to an increase in victim restitution from wages really a progressive cause you feel proud to fight for? Considering the enormous change we can effect here, this is a fairly small matter to stand in the way.

Even if you are uncomfortable with this small increase in restitution, I want to remind you that it is not enough for confirmed progressives to vote Yes on 62. We have to have a majority of Californian voters, and that includes conservatives and centrists. It also includes families of victims that are campaigning against the death penalty. And one of the things that is a convincing argument for them--and not unreasonably so--is that the proposition addresses concerns about victims. Compromising on this point is part and parcel of getting things done in the political reality in which we live. And this is the world in which we have to vote.


"I'm against the initiative process. This, and other propositions, are a flawed feature of California lawmaking. I vote "no" in principle on all propositions."

Friend, I hear you. Every election season it's the same thing: money, deceptive ads, easily manipulated voters, a polarized state. Yes, this is a bad way to make a lot of decisions. For example, this is a bad way to create nuanced criminal justice reform.

But I want to ask you to really think about what's at stake here. The legislature is not going to repeal the death penalty on its own. We know; we tried. Our governor (who is personally against the death penalty) is not going to unilaterally commute everyone's sentences to life without parole. We know; we tried. Our courts cannot get rid of the death penalty. We know; we tried, and we came close, and we failed because of habeas technicalities.

The only one who can get rid of the death penalty in California is YOU.

And compared to other propositions, this one is actually fairly well suited to an initiative process: as opposed to, say, medical or recreational marijuana regimes, parole regimes, registration requirements, etc., death penalty repeal is a fairly simple question, which has a straightforward yes-or-no answer: repeal or retain. This is one of the least objectionable uses of the referendum method.

You have to decide: when you look back at this election, which of your values will you be more proud that you upheld: your concerns about direct democracy, or your opposition to the death penalty?


In Summary

Sometimes, with good intentions, we overthink things, and that leads us astray. Listen to your heart and your common sense. Are you against the death penalty? Good. So am I. For the reasons the campaign highlights, but also for all the traditional, good reasons to be against the death penalty: because it is barbaric, inhumane, risky, racially discriminatory, and obscenely expensive.

Are you against the death penalty? Then vote against the death penalty. 


Vote Yes on 62.