Monday, July 10, 2017

Heat Wave in Corcoran: Holding Hostages, Talking Consumers

A couple of weeks ago, a friend sent me an email about a serious heat wave in Corcoran prison. According to inmates' family members, the temperatures in the cells were unbearable, and many people needed urgent medical attention. Some of us participated in a "phone zap" to the warden's office, and the mother of one of the inmates received a communication from her son, saying, "I don't know what you did, but they finally came to check the temperature in my cell."

This incident is a grim reminder of the unfortunate location of prisons in California in the central valley, which makes them vulnerable to ecological calamity. In the last few years, California towns have been ravaged by fires and floods, and we all rushed to help. But ordinary people, even when threatened by environmental disasters, have a choice: they can pick up a few personal belongings and leave. They can call and demand help. They can sometimes stay with friends. People who are locked up and at the mercy of the state cannot: they are at the mercy of the state. Moreover, inmates and their families are in a bind, as this thread on PrisonTalk shows. People are concerned to speak up, even when their loved ones drip sweat on the letters they send out and can't concentrate and get hospitalized, because they fear retaliation.

In Cheap on Crime I talk about the shift from perceiving inmates as wards of the state to regarding them as economic burdens or consumers of services. The problem with the "consumer" language is that consumption is normally assumed to be voluntary. When someone pays for a room at a hotel, they do so by choice. When we demand that people pay for sleeping in a jail cell, a choice they did not make, they are not consumers. They are economic hostages.

The state has essentially put its inmates in an impossible situation: On one hand, nothing about their conditions of life is voluntary. On the other hand, all this talk of paying for "services rendered" creates a false equation between their situation and that of and people on the outside. Which means that, when something like the heat wave in Corcoran happens, the quintessential consumer weapon--boycott and complaint--doesn't work nearly as well as it works on the outside. Put fans in the room, or else? or else, what? The families have no negotiation leverage. We made the phone calls because the situation was untenable, and we knew we were running a risk.

This is why inmate families cannot, and should not, carry all the burden in these situations: people from the outside who have clout and influence must get involved. This is hard, because despite everything that has happened in the last few years, prisons are still like the "other city" in China Mieville's The City and the City: it's all around us, and yet we don't know it's there. The only coverage I found of the horrible heat wave and its implications was on prison family chatrooms--no one in the mainstream media picked it up. I've been working on prison issues in California for more than ten years, and even I would not have known about it had a friend not forwarded me the email from the families. What is it going to take for us to say--as a united front, and regardless of political opinion or criminal justice worldview--that, no matter what bad thing someone might have done twenty-five years ago, we cannot keep a human being in a cage in a 114-degree-heat without providing some form of air conditioning or ventilation? What on earth would be "soft on crime" about saying that?

Getting the prison to care about the heat wave was an important first step. But we absolutely must do better.

Wednesday, June 14, 2017

Book Review: 23/7 by Keramet Reiter

It's somewhat encouraging to read Keramet Reiter's book 23/7 in 2017, after two hunger strikes in solitary confinement and dramatic changes in solitary placement policies. Indeed, those of you who followed this blog in 2011 and 2013 remember that the list of demands made by the hunger strikers opened a window into one of our most shameful penal practices: indeterminate segregation, complete with physical and mental health neglects, social deprivations on an unimaginable scale, and a deeply problematic regime for leaving solitary (which Reiter referred to elsewhere as "parole, snitch, or die.") A prisoner-led resistance organization, organized under impossible conditions, yielded a class action lawsuit that resulted in a settlement agreement that shifted the grounds for isolation from status and gang assumptions to behavior and created less harmful alternatives.

Reiter's book, therefore, could evoke some sentiments of smugness among readers: yes, things were bad, but we overcame them and our segregation regime is much more humane than it was. But I think the book teaches us lessons whose relevance goes far beyond solitary confinement, and here is some elaboration on three of those.

First, the history of long-term solitary confinement is a classic example of penal expansion. A regime is created explicitly for "the worst of the worst," envisioning vicious serial killers from movies, quietly creeps out and starts applying to people with far less exotic criminal histories and less evidence of immediate dangerousness. This is a trend we see elsewhere in the criminal justice system as well: with sex offenders, we've seen concerns about risk creep beyond the few people who were serial predators to infect the entire universe of people convicted of sex offenses. With violent offenders, we've seen all of them painted with the same brushstroke, and serious hesitation about reforming sentencing for violent offenses (as opposed to people doing time for nonviolent drug offenses.) An idea of who is the worst infects our mind, and gradually the policies we fashioned to handle the worst expand to affect others that do not resemble this ideal type.

Second, good intentions can yield horrible consequences. The book tells the story of Madrid v. Gomez, a lawsuit involving intolerable cruelty to a solitary inmate, and reflects the horror of Judge Thelton Henderson as he was exposed to conditions in the facility. "This cannot be constitutional," he is remembered to have said, and he placed the prison under federal supervision (it remained so until 2011.) But by allowing the basic regime to continue, albeit under supervision, solitary itself became normalized, and the concern is that our desensitization to this regime allowed it to last for so long.

Third, it is not always clear how cruelty manifests itself. Is being safe, away from violent people, and without sharing a cell with companions one didn't choose, the ultimate good? Or do we find out, after decades, that isolation generates irrevocable damage to one's mental health? Recall that the early penitentiary reformers thought that solitude was good for the soul, to the point that advocates of Eastern State and of Albany battled about the best way to isolate people. Sometimes it takes years to realize just how horrible a regime is.

The book leaves open several important issues. First, by ending its account before the Ashker compromise, it avoided the classic "happy end", and it would be good to see future editions with an additional chapter on the lawsuit and settlement. And second, since solitary cells cannot be easily converted to other confinement uses, what is to become of them now? And what might be the conditions we need to worry about, which may lead to a repopulation of these cells?

The book is highly recommended, written in beautiful and lively language, and tells the story of the inmates' struggle for minimal conditions with engaging realism and empathy.

Friday, February 24, 2017

Book Review: Mona Lynch's Hard Bargains

Jeff Sessions' career as Attorney General started exactly with what you would expect from him: a revocation of the Obama Administration's commitment to end reliance on private prisons for domestic inmates and the promise to ramp up marijuana enforcement. Both of these are examples of this government's effort to find the most reasonable, fiscally responsible, and decent thing that should be done and then do the exact opposite.

We know that private prisons in the federal system are not big players in the overall incarceration picture. The Obama Administration's declaration that they would cease to rely on them seemed more a symbolic move than something that would actually make a difference (not that they could intervene in state incarceration matters anyway.) Moreover, throughout that period, private facilities were still used (and are still used) for incarceration of immigrants before deportation, and there was never any talk of stopping that practice.

We also hear the federal government arguing for a dinosaur-era approach to marijuana, featuring a new lie: that marijuana usage is related to opioid overdosing, which is unsupported by research and harkens back to the dark days of the Anslinger war on drugs in the 1920s.

These developments make Mona Lynch's new book, Hard Bargains, remarkably timely. In the book, Lynch conducts a careful and perceptive ethnography of three federal district courts: one in the Northeast, one in the Southeast, and one in the Southwest. Lynch is well aware that federal prosecutions are not the driving force behind mass incarceration, but she uses federal drug enforcement as an interesting laboratory for the study of prosecutorial discretion.

Indeed, the main takeaway from the book is the unhealthy combination of two seemingly contradictory factors: the existence of tough sentencing laws, which presumably bind discretion (albeit less so since 2005), and the existence of broad prosecutorial discretion, which allows them full use of these draconian sentencing provisions. On the back cover, Kate Stith, whose excellent book with Jose Cabranes Fear of Judging was a well-informed and passionate cry against sentencing guidelines,  interprets Lynch's analysis as pointing to lack of discretion. I think the lack of discretion is only half of the problem. With the advent of extreme sentencing laws, how they are deployed is up to individual prosecutorial ideology, and as an outcome, a different culture of federal sentencing develops in the three different districts.

Not that any of these is particularly appetizing. Lynch's account of the Northeast depicts a court that is captive in the hands of a zealous prosecutor on a mission to "rescue" people from themselves and from the streets, who basically wrangles minor drug cases out of the states' hands and pushes them into the federal system, sometimes in violation of the Petite policy of refraining from double prosecution. In his enthusiasm to end the drug epidemic, he imposes lengthy and unreasonable restrictions on their freedom, which the court almost invariably approves. In the Southeast, there isn't even a pretense of rehabilitation: an elderly judge delivers moralizing lectures to defendants on the receiving end of obscene, decades-long sentences for nonviolent drug crimes. And in the Southwest, marijuana backpackers--poor, undocumented immigrants carrying marijuana by foot as payment to their coyotes--are rounded up, summarily shifted to "flip flop court" for misdemeanor charges, where they are made to plead guilty in batches and march off to detention before deportation.

It's difficult to figure out which of the three models is the most horrible. The variations confirm, though, that when outrageous mandatory minimums, unreasonable calculations of criminal histories, and breathtaking arbitrariness in terms of offense categories, come together, the problem is not, or at least not exclusively, lack of discretion. The problem is that a dazzling array of options, including very frightening and oppressive ones, is on the table, and prosecutors get to pick and choose which of these to deploy.

The extent of prosecutorial power here cannot be underrated. The publication of Hard Bargains coincides with the publication of John Pfaff's Locked In, which looks at the unfettered discretion and power of county prosecutors (and which I'll review in a future post). Lynch and Pfaff's analyses are complementary.

As in her previous book Sunbelt Justice, Lynch is not only a meticulous and perceptive observer but also a master storyteller. The defendants, prosecutors, and judges come to life in her vignettes from court cases she witnessed. Her description of the poor, disenfranchised immigrants forced to plead guilty in batches is particularly disheartening (my students were in tears when I read this section aloud in class yesterday.) Lynch has a keen psychologist's eye for personalities and motivations, and she realistically captures the ideologies and worldviews that make her characters tick.

It is horrifying to think of how this system, already bloated, draconian, and rotten in the Obama years, could wreak more havoc and destruction in Trumpistan, and the news from the last two days suggest at least two directions in which things could get even worse: reintroducing the profit mechanisms that drove private incarceration by improving these companies' relationship with the feds, and inflicting the awful drug sentencing scheme on marijuana defendants to an even greater extent (with the obvious potential victims being the people at the bottom of the Trumpistani social ladder: poor immigrants from Mexico.) I dread to think that the horrors and inhumanities described by Lynch could be something we might come to miss in the years to come.


Tuesday, February 21, 2017

Who Is a "Violent Offender?" Amending Prop. 57 and Other Populist Adventures

In the last couple of years, several people--John Pfaff, Christopher Seeds, yours truly--have commented on an important feature of criminal justice reform: it consistently makes a distinction between "violent" and "nonviolent" inmates, ignoring the former and offering the latter early releases, parole, and enlightened sentencing changes. In this vein, Prop. 57, which passed by a great majority this November, offered an escape valve from excessive incarceration to people sentenced for nonviolent crimes (approximately 25,000 inmates in state prisons.)

But what constitutes a "violent crime" is under debate, and some CA lawmakers are under the impression that we have excluded some offenses from this category. They propose amending Prop. 57 to include dozens of offenses, which they perceive as "violent."

This is a terrible, wasteful, and pointless proposal, and here's why.

First, a person's offense of arrest (or even offense of conviction) is no proxy as to the risk they might pose to the public. As Susan Turner and Julie Gerlinger found out, there is no significant correlation between the violence involved in an offense and the recidivism of the offender. This distinction we make is largely for optics and public palatability, and it doesn't really address risk.

Second, if anything, the category we need to rethink is that of violent criminals, whose aggressive prosecution is the engine behind mass incarceration according to John Pfaff's Locked In. As long as we continue to retrench our views about violent offender and perceive them as an indistinguishable mass, our correctional crisis will not be resolved.

Third, Prop. 57 does not offer automatic release. It offers the opportunity to appear before a parole board. Presumably the lawmakers proposing the change want us to be safe, right? Well, if the parole board is unconvinced that the person is safe to release, they can simply decline to release them.

Fourth, it's important to understand what "early releases" mean. Over the years, CA sentencing laws have become a patchwork of draconian enhancements and additions. All Prop. 57 does is offer the person an opportunity to show rehabilitation BEFORE all the draconian additions kick in.

Finally, do these legislatures forget the importance of financial accountability? People who spend unconscionably long times in prison become old before their time, and ill, and therefore expensive.

I really hope this horrible idea crawls back to where it came from. In the last couple of months we've come to think of California as an island of reason and progress amidst the national catastrophe. Looks like we have to stand watch at the state capitol as well.

Sex Offenders Remain Most Reviled Category. Film at 11.

Thousands of people called Simon and Schuster in the last few weeks to ask them to cancel the lucrative book deal they offered self-styled libertarian "bad boy", Milo Yiannopoulos. That there are things to loathe about his ideology should be fairly obvious to my readers--his sexism, racism, and even threats to people's life and safety speak for themselves. Despite, and probably because, of the public uproar, S&S persisted in keeping the contract in place.

What eventually led to the book deal's cancelation, as well as the cancelation of his CPAC participation, was his commentary on pedophilia. All around me, people are treating this outcome as good news.

A few folks have bitterly remarked on the fact that all of Yiannopoulos' other transgressions were not sufficient to put him in political and commercial disfavor. I share the bitterness, but I also think it's fairly naive; I am familiar enough with the book publishing business, and have seen enough of the current administration, to understand that any such controversy simply means more publicity and better business. More people clamoring to cancel the book deal directly translate into more books sold. Controversy is good for commerce. I was one of the thousands of callers, but did so reluctantly, for precisely this reason.

The other part of the bitter equation is a bit more difficult to see through the lens of our own biases, and that is the broad consensus, shared apparently by conservatives and progressives alike, that anyone perceived as reaching out to pariahs should become a pariah by association. As Chrysanthi Leon explains in Sex Fiends, Perverts, and Pedophiles, one of the marked trends in our treatment of sex offenders in the last few decades has been to lump everyone into the same reviled group, even though there are many distinctive and different categories of sex offenders, and even though sexually deviant propensities do not necessarily translate into sexually transgressive behavior that victimizes others.

This dangerous focus on pedophiles is a distraction from the fact that most sex crimes against children are perpetrated by someone known to the child--a family member or a friend of the family. And unsurprisingly, it is precisely these crimes that go underreported. We tend to confuse pedophilia (the transgressive propensity) with sexual molestation (the transgressive behavior) because of availability bias: the people whom we know as pedophiles are familiar to us because they were caught. Not all child molesters are pedophiliacs, and not all pedophiliacs are child molesters. If anything, our attitude of revulsion and ostracism against pedophiliacs is what, perversely, might lead some of them to act out their fantasies.

Since the Yiannopoulos affair ended up working in "our" favor (whoever "our" refers to), people are less likely to examine and critique the perniciousness of our treatment of pedophiles, and far less likely to see how this vast consensus stands in the way of people's rehabilitation and therapy. They are also less likely to examine another pernicious aspect of this: that Yiannopoulous happens to be gay is going to lump him, in the eyes of a considerable part of the population, with the pedophiles he was presumably supporting. Even if you don't find that you can extend sympathy to someone who cannot help their proclivities (even though they absolutely can refrain from acting on those proclivities), you might feel less sanguine about this whole situation when you consider that one of its unfortunate outcomes is that it will solidify, for some conservatives and centrists, the link between gay people and child molestation, which we have worked for so many decades to overcome.

The publisher's decision in this case shows not only that controversy sells, but that biases and ostracism are alive and well. I find it a pyrrhic victory.

Thursday, February 2, 2017

On Protesting, Rioting, and Fighting Nazis

It has been a week of rage and action, as decent people have been astounded by the government's actions to oppress the vulnerable. The trauma of the inauguration was closely followed by a series of horrifying executive orders and a slew of appointments of unqualified billionaire bullies to important positions, where they will have the power to essentially obliterate the bottom rungs of the American socio-economic ladder.

Horrifying as all of this was, the worst from my perspective was the anti-Muslim travel ban, which has already derailed lives and broken families, with Jeff Sessions' looming appointment coming in as a close second. This was a strong reminder that all criminal justice scholars and practitioners need to also have at least basic proficiency in immigration law, and I'm planning on filling the gaps in my own education and taking some courses.

I have spent my week in street protests, starting with our epic takeover of the San Francisco International Airport (SFO) over the weekend. The protest made me fall in love with my city all over again. I saw all of San Francisco--old and new, techie and artist and construction worker, parents and grandparents and children, come together in a way that can move mountains. I saw people being firm and effective, and at the same time unfailingly kind and nonviolent, even in the face of some aggression from impatient passengers. I saw lawyers receive the respect and gratitude they deserve. I saw police officers, including the tactical team, taking on difficult jobs and opting for nonviolence when they could have opted for much worse. I saw strangers being kind and generous toward each other. I saw one of the busiest airports in the United States grind to a complete halt--and a statement from airport management supporting "the members of the public who have so bravely taken a stand against this action by speaking publicly in our facilities." I saw my friends and neighbors at their best, resisting the Neo-Nazi regime, coming together in solidarity for vulnerable and frightened people, and being both capable and reasonable in doing so. Mostly, I saw the light of basic goodness and dignity shine out of a thousand faces, and that gave me more than a modicum of hope about what lies ahead.

On Tuesday I was in Oakland, for the teddy bear protest against the appointment of Betsy DeVos. I am a product of public education, all the way through my Berkeley Ph.D., and am disheartened at the prospect of it being ruined and dismantled by a clueless billionaire. And yesterday, I was at UC Berkeley, protesting against the arrival of Milo Yiannopoulos, who was to address his Neo-Nazi supporters and, I presume, dehumanize women and people of color, as he tends to do. Later journalistic reports described "student violence" and "protesters throwing stuff and burning things."

As in the case of prior demonstrations I have attended, I may have been lucky in that I left shortly after we were told that the talk was canceled. While I was there I saw no violence on the part of the protesters. What I *did* see was a handful of Yiannopoulos fans--one of them particularly vocal, in a fuzzy green beanie and a phone he kept shoving in the protesters' faces--trying to goad the crowd into violence.

Since apparently things got a bit dicier after I left--though I think the reports in the media are fairly exaggerated--I feel I have to say something. What on earth would anyone expect with the combination of Nazi provocateurs and nineteen-year-olds, whose prefrontal cortex has yet to develop? Even the Supreme Court acknowledges that adolescents are less able to be restrained and controlled. Would anyone in their right mind expect a protest against Nazis at UC Berkeley to *not* get dicey?

To be clear: violence, at this stage, is not only unlawful: it is harmful and underproductive, not only because it taints us with the violence of the government but because it offers them the opportunity to act all offended. Case in point: last night's protest caught the attention of our fascist-in-chief, who tweeted that he will withhold federal funding if there's no "free speech." He doesn't know the meaning of the word, and has been hard at work dampening the free speech exercised by hundreds of thousands of people in the last week who rose up against him. But I think it is important to continue holding the moral high ground. When they go low... you know the rest.

And yet - my grandma's cousin, Yehoshua Gold, fought the Nazis in the woods as a partisan guerrilla warrior in WWII. I find myself thinking about him a lot these days. Things are deteriorating fast, but I wonder, if and when they become as terrible as they were in WWII, whether I'm made of the same stuff that Uncle Yehoshua. I hope we don't have to find out, and I hope that, if we do find out, we will all rise to the occasion.

We will prevail, and we will take our country back, and we will work hard and fix all the direct and collateral damage this administration has wrought.