Let's Do Something

After a series of legal struggles, Troy Davis' life is in danger again.

The 11th Circuit denied his request for a new trial, rejecting his argument of actual innocence.

This is not a California issue, but it concerns all of us. May 19 has been declared a Global Day of Action for Troy Davis. Whatever you think about the death penalty, please read more about this case, and if you have a feeling, as I do, that something very wrong is about to happen, let's do something.

State Senate Panel Approval: Progress in Cate's Confirmation

A State Senate Panel has voted to confirm Cate as CDCR secretary, but the conversation included some difficult questions, as reported in the Sac Bee and in the Daily Roundup from Capitol Weekly.

The vote came after Cate complied with a request to submit a "benchmarks" report to members setting rehabilitation and education goals.

Steinberg called Cate "the right person for the job" but said the secretary would need "a lot of help."

. . .

Steinberg asked why, out of a population of 155,000 in traditional state prisons, Cate's goal is to have only 15,837 prisoners in academic classes by June 2010.

"It does beg the question: What about the rest of the inmates?" Steinberg said.

. . .

Steinberg also asked about Cate's goal to have 300 mentally ill parolees receiving comprehensive housing and mental health services by June 2010.

Right now, about 22,000 parolees receive limited services at clinics, but no parolees are in a comprehensive program.

Cate, whose resume includes extensive prosecutorial experience, spoke at our conference last month about the difficulties and expenses involved in making programs available to prisoners. He now has his hands full implementing his plan for making $400,000,000 budget cuts.

Jeanne Woodford on the Aftermath of the Oakland Police Tragedy

This comes a bit late, but I didn't want you to miss this thoughtful piece by Jeanne Woodford, titled "California Injustice - Doing Nothing But Time", about the prison crisis and how it is related to the Oakland Police murder by the hand of parolee Lovell Mixon.

Sentencing Commission Bill: Vaguer Definitions

At the request of one of our readers (thanks, Tom!) , we're posting some more information about the legislative proposal to create a California Sentencing Commission. At our conference in March, Kara Dansky, Executive Director of the Stanford Criminal Justice Center, discussed the potential for reform using a commission, as well as answered some possible critiques of the idea. For more on that, here is her review from a while back on the California Progress Report. 

Here is the proposal itself, from Assembly Member Bass, after a few changes made in mid-April. As you'll see when you read it, the main change is moving the sentencing intentions and definitions out of the proposal itself, as well as out of the hands of the legislature, and into the hands of the commission, whose purpose is now defined much more vaguely:

There is hereby established an independent, multijurisdictional body to provide a nonpartisan forum of statewide policy development, information development, research, and planning concerning criminal sentences and their effects. 

This is much vaguer than the original intent behind the proposition, and may have to do with the ability to better "sell" a body whose authority is not clearly defined, as well as with the will to keep the commission free from constraints. It also might mean that their decisions would not necessarily be binding. Who knows? Interestingly, Crime Victims United of California consider A.B. 1376 a "placeholder" bill, and see it as a cause for concern.

More on the CDCR Budget Cut (again, from secondary sources)

I wonder why CDCR does not have the budget cut details posted to its website. All they have done so far, in terms of public information, is to tweet about others' responses to the plan. At this point, therefore, I can provide some more details about the plan and about different reactions to the plan.

You may recall the $400,000,000 cuts from the Governor's budget action in February, which included the Governor's expectation that the cuts be implemented "“in a manner that promotes rehabilitation and preserves public safety.” The original budget action also mentioned some specific ways to deal with the problem:

Counties will recall that over the last several years a range of proposals have been put forth by a variety of sources — expert panels, the Administration, and the Legislature, among others — that aim to reform the corrections system, while realizing cost savings. These proposals include various approaches to parole reform, credit enhancement, increasing thresholds for property crimes, and other sentencing changes. It is not certain whether CDCR will pursue these or other means for achieving the $400 million in savings, but the CDCR Secretary and staff have assured counties and local law enforcement stakeholders that they welcome input and suggestions, given that any reform effort is sure to impact local governments and local public safety. CSAC will continue to be engaged on counties’ behalf regarding these proposals and any others that may be considered in order to meet the Governor’s directive.

Here are the main changes, as they appeared on the Chron, the L.A. Times, and the Sac Bee:

• Reduction of parole population by 25% (about 30,000 parolees), focused on nonviolent offenders
  
• Impact of reduction: lesser parole violations, less returns to prison - a projected reduction of 4,000 in prison population
• Expansion of good behavior credits for inmates who successfully complete educational/rehabilitative programs - a projected reduction of 4,000 inmates
  
• Increased use of GPS monitors for parole violators, rather than a return to prison
• A change in the definition of grand theft, which will raise the threshold from $400 to $950 (the previous number was set in 1982!)
• Elimination of 150-200 positions at CDCR's Sacramento headquarters
• Closure of one juvenile prison
• As a concession to law enforcement opponents: proposed legislation that will allow police to search former prisoners and seize evidence of a crime from them without a warrant for at least three years after their release, even if they are not on parole

Some initial thoughts:

The decrease in parolee numbers is probably a healthy thing. I wonder whether it will be tied to severity of offense or to some measure of risk assessment (CDCR, please post the details on the website!). Most importantly, the hope is that the decisions on who is let off the hook will be in line with the parole reform suggestions that CDCR had begun working on.

The concession seems to be quite dramatic, its constitutionality seems questionable, and it certainly does not lie in CDCR's realm of expertise. Search and seizure raise constitutional issues, and in the current climate, given that this exercise of power doesn't have a price tag attached to it, I don't see CA courts, or even the Supreme Court, dismissing such legislation. The Supreme Court has been typically dismissive of the rights of former prisoners in respect ot search and seizure, exemplified by its decision in Samson v. CA (2006), which allows for a suspicionless search of parolees. So, this concession will be a legislative expansion of Samson to non-parolees as well.

While a 8,000-inmate reduction may seem dramatic to victim advocacy groups, it is a far cry from the 50,000-inmate reduction suggested in the Plata v. Schwarzenegger tentative decision, and will have a very small effect on the overcrowding problem (not that releasing 50,000 inmates with no re-entry programs to speak of is a good idea in this economy, as we argued elsewhere).

One prison is closing down. Will the CDCR continue building other prisons? Three weeks ago there was still talk of looking for $810,000,000 (twice the budget cut!) for purposes of prison expansion.

What do you think?

BREAKING NEWS: -$400,000,000

That is the budget cut for CDCR. Today, CDCR Secretary Matthew Cate announced his plan to cope with the significant reduction in corrections budget. As reported on this morning's Chron, Cate,

tasked with finding $400 million in cost savings, unveiled proposals Friday to save money by reducing the number of parolees by 30,000 and the state's prison inmate population by 8,000 by next summer.

We knew this was coming for quite a while; Secretary Cate mentioned the dilemmas involved in crafting the plan back in late March. The objecting parties are, as expected, victim advocacy groups and the prison guards union.

There are no details of the plan yet on the CDCR website, but once the full plan is posted, we will analyze and comment. Stay tuned.

Keeping Track of Inmates: CDCR to Revamp its Offender Database

Here are some highlights from the CDCR press release (the full story is here):

SACRAMENTO - The California Department of Corrections and Rehabilitation (CDCR) announced today the intent to award a contract to EDS, an HP company, to begin a multimillion-dollar effort to automate and streamline offender data systems. The project, called the Strategic Offender Management System (SOMS), will consolidate existing databases and records and replace manual paper processes over a four year contract period. . . SOMS will replace more than 40 aging electronic and paper database systems, which are becoming increasingly difficult and costly to maintain. The system will contain an “Electronic C-file” for inmates and provide the opportunity for electronic data exchange--with Jails, Courts and the Office of Prison Healthcare Services.

This is an excellent idea. And, if this happens in the time allotted, and with the available resources, it could do wonderful things, such as make sure that folks aren't subject to parole/probation requirements in three counties at the same time.

Incidentally, it probably wouldn't be a bad thing to similarly improve the criminal court database, too. Currently, the data is on several different silos, and is rather inaccurate, which, among other problems, also hinder the ability to do research work on CA courts.

One Hand Criminalizeth, and the Other Decriminalizeth Away

Two interesting and seemingly unrelated events were reported on the news yesterday. The L.A. Times reported on the oral argument in the school strip search case. Here is the full text of the oral argument, and as can be seen from the Justice's questions, suspicions and the War on Drugs played an important part in the courtroom discussion, as did concerns about the risks of over-the-counter drugs (the search in the case was conducted to find ibuprofen in the 13-year-old's underwear). Two interesting examples from the transcript, which blur the distinction between drugs and pills:

JUSTICE SCALIA: Had it been the case that, as I recall, someone had -- well, students were popping ibuprofen, weren't they?
MR. WRIGHT: Yes, Your Honor.
JUSTICE SCALIA: I guess they might pop aspirin as well. I'm not aware that one gets a high on either one of those.

CHIEF JUSTICE ROBERTS: I'm sorry, your answer to me was they have to take it seriously. My question to you is, what is the administrator supposed to do? He sees a white pill; nobody can tell him what it is. Is he allowed at that point to search the undergarments or not?
MR. O'NEIL: No.
CHIEF JUSTICE ROBERTS: He's not?
MR. O'NEIL: He is not.
CHIEF JUSTICE ROBERTS: Even if it turns out to be -- you know, I don't know, some very deadly drug?
MR. O'NEIL: Mr. Chief Justice, we do not believe that this Court should get in the business of deciding that searches are okay for, for example, heroin, but not okay for cocaine.
CHIEF JUSTICE ROBERTS: That's what you just told us we should do, in answer to Justice Alito's question.
MR. O'NEIL: No, I simply -- the point was simply that if there is some common understanding that a type of contraband is generally secreted in a certain way, and the example is crack, and there is a known understanding that crack can be hidden in that way, that that would be relevant to the totality of the circumstances.
JUSTICE SOUTER: And I don't see why your answer might not be different if, under the Chief Justice's question, he didn't know it was ibuprofen. All he knew was that it was a white pill. He's not a pharmacologist, he doesn't know what's in it. Wouldn't the reasonableness of the -- wouldn't the scope of reasonable search at least potentially be greater for the undifferentiated white pill than for the known ibuprofen?

At the same time, the SF Chron reports that, due to budgetary constraints, the Contra Costa DA's office will no longer prosecute several misdemeanors.

Kochly wrote that he had long taken pride in saying that his office could do "more with less."

"Unfortunately, we have now reached a point where we cannot maintain the status quo," he said. "We will definitely be doing 'less with less' as a prosecution agency."

The changes are needed to help eliminate a $1.9 million budget deficit in the district attorney's office for this fiscal year. By month's end, six deputy district attorneys will be laid off, and 11 more will have to be let go by the end of the year, Kochly said.

Criminal justice policy is made in many sites, on many levels, and by a variety of actors. It is not a well-planned, intentional conspiracy. As David Garland wrote in The Culture of Control, the "history of the present", as he calls it, is characterized mainly by punitive measures, but there are also counterexamples. Note that the counterexample in this case has to do with costs (humonetarianism raising its head once more), and that in the oral argument the Justices are not preoccupied with the issue of costs.

Documentary: Prison Town, USA

Today's recommendation: the 2007 PBS documentary Prison Town, USA, describing the impact of two large correctional facilities on the economy and community of Susanville. Yet another wake-up call to those who still believe that the correctional crisis is not everyone's problem.

Are Californians Punitive?

A key assumption underlying the discourse of correctional policies has been that the ever-increasing sentences, changes in trial structure, and criminalization, represent the will of the public. This is a particularly strong argument in the case of California, since a substantial amount of our correctional reforms occur through voter initiatives. It's probably time to ask ourselves whether the assumption that Californians are punitive, and desire these reforms, is true.

On its face, the assumption seems to be supported by some anecdotal evidence. In the last elections, Californians passed Proposition 9, which, in addition to strengthening the victim's position in the criminal process, worsens the inmate's position in parole hearings (by increasing pre-parole imprisonment periods and diminishing the scope of the right to counsel); while these particular provisions have not been incorporated yet into law, through Judge Karlton's intervention, they were still elected as "the will of the people". They also rejected Proposition 5, which promised drug treatment and various diversion options for non-violent drug offenders. Anecdotal evidence also seems to support an assumption of punitiveness; it is enough to glance at the comments at SFGate.com to be confronted with anger about crime, which translates itself into demands for more punitiveness. But is this really true? How does one systematically measure punitiveness? And, more importantly, how do we differentiate between public punitiveness and the initiative of lobbyists, interest groups, and politicians?

The first thing to ask ourselves is whether this is, indeed, a particularly punitive period in our history. While many influential thinkers, such as David Garland, Stanley Cohen, and Jonathan Simon, characterize our times as being increasingly punitive, others disagree. As Roger Matthews reminds us, there also have been examples to the contrary. Think, in the California context, of the recent developments regarding the possibility of decriminalizing marijuana, or on the considerations of incarceration options.

The next step is trying to figure out whether people are particularly punitive, and if so, which factors predict punitiveness. We don't know much about the punitiveness of Californians in particular, but research conducted elsewhere in the States and in the world suggests that public punitiveness is an empirically complex issue.

Shadd Maruna and Anna King, who conducted a survey on the British public, found that factors such as concerns about the economy and the state of ‘the youth today’ account for a substantial proportion of the effect of actual crime concerns on punitiveness. On the other hand, crime-related factors, such as victimization experiences or anxieties about crime did not appear to predict punitiveness. Similar trends, connecting punitiveness with strong emotions or sentiments, were found by Devon Johnson, who used U.S. national survey data. Her work shows that anger about crime is a significant predictor of punitive attitudes, after controlling for other factors such as racial prejudice, fear of crime, causal attributions for criminal behavior, and political ideology. Similarly, in a national survey study, Sherwood Zimmerman, David van Alstyne and Christopher Dunn found considerably punitive trends; they then compared the hypothetical outcomes to a recent conviction cohort from New York State, and found that, had the public's will been faithfully applied to actual convictions, the additional correctional costs would have been very high.

Emotion-driven opinions about punishment are, of course, particularly strong regarding issues like the death penalty. Mona Lynch's study of pro-death penalty discourse on the internet finds that the death penalty is framed as a symbol of justice, a triumph of sorts of the good (the innocent victim) and the evil (the capital murderer). This essentialist perspective eliminates all consideration of costs, let along empathy for the offender.

Some studies, however, have found less punitive outcomes, particularly by tweaking the methodology of punitiveness surveys. Douglas Thomson and Anthony Ragona have critiqued standard punitiveness surveys, arguing that these generally do not ask respondents to consider contingencies such as offense circumstances, behavioral content of various sentences, or fiscal cost differentials. This means that the public will necessarily appear to be more punitive than judges, because they are not faced with the full spectrum of judicial considerations, nor are they offered information about the relative fiscal costs of current and alternative sentencing practices. Thomson and Ragona, who conducted an Illinois survey incorporating issues of costs found that, on several dimensions, the public turned out to be less vengeful than typically portrayed in public opinion poll and media accounts, notably in its openness to community sentences. I find this information particularly interesting, because it suggests, in the spirit of humonetarianism, that a discourse of scarcity has the potential to decrease public punitiveness. It is useful, in this context, to remember the rejection of Proposition 6, which suggested extremely punitive measures against juveniles and gang members; Prop 6 was mostly attacked for its high financial costs.

Neville Blampied and Elizabeth Kahan, who conducted a survey study in New Zealand, found creativity and openness to alternative punishments among community members asked about responses to juvenile noncompliance. The outcomes here may have been less punitive because of the case study, but they may also reflect cultural differences between the U.S. and New Zealand, which has been very open to juvenile justice reforms, and uses family group conferences almost to the exclusion of juvenile courts.

The last important question is whether public punitiveness - if, indeed, it exists - is the reason for punitive policies. As Katherine Beckett argues in her beautiful book Making Crime Pay: Law and Order in Contemporary American Politics, these policies do not originate with the public. She carefully timelines punitive initiatives, demonstrating how public opinion is being swayed by politicians and the media. In states like California, where much public policy is made directly by the public, it is important to examine who stands behind punitive initiatives and how these campaigns are being run.

Judge Alsup: Death Row Conditions in San Quentin Reach Constitutional Threshold

(images courtesy CDCR.ca.gov)

Some of the recent discussion of prison costs has to do with the expenses associated with running San Quentin's Death Row. As some of you may recall, a planned expansion of Death Row, deemed costly, was killed by a bipartisan initiative last year. The struggle around the planned expansion occurred against the background of 30 years of litigation regarding conditions on Death Row.

Yesterday, the Chron reports, Judge William Alsup of the California District Court ended this lengthy era of court supervision, after ruling that the improvements made to Death Row were enough to satisfy constitutional requirements. The improvements included getting rid of dirty water and rodents.

The nation's largest Death Row now houses 665 men. Only 10 inmates were held there when the suit was filed shortly after capital punishment was reinstated in California in 1977.

Fama said the inmates' original complaints were dirty and decrepit housing and a system that classified all condemned prisoners as security risks who had to be confined to their cells nearly 24 hours a day.

The 1980 consent decree required prison officials to evaluate condemned inmates individually and allow the less-dangerous ones the same exercise time and visiting privileges as non-Death Row inmates. It also required improvements in food, medical care, cells, showers and access to a law library.

As the Death Row population multiplied, the state periodically sought to end court supervision. But a series of reports by judicially appointed monitors over the years found a variety of violations, including a flawed cell assignment system that led to violent clashes and disciplinary rules that sent offenders to "strip cells" wearing only a pair of shorts.

One thing that strikes me as interesting is that the improvement in conditions consists, in some respects, of making the Death Row experience more like "regular" life imprisonment. Does this reflect a realistic understanding that Death Row has become no more than a very lengthy imprisonment period, with a possible (but not certain) ending by execution? The time between sentencing and execution has gradually increased since the reinstatement of the death penalty in 1977. San Quentin Death Row currently houses 665 men; between 1977 and 2008, 14 men were executed. The recent trend we have documented, of cost-driven moratoria on the death penalty, is complicated by the costs of death penalty-related litigation (Brandon Garrett of Virginia Law School presented an interesting work on this, in its early stages, at the Conference for Empirical Legal Studies last year); one possible scenario is that, at some point, Death Row will quietly become a thing of the past, and conditions (as well as inmates) will be indistinguishable from those pertaining to life without parole.

This actually has a precedent; after the Roper v. Simmons decision, which rendered the death penalty for juveniles unconstitutional, all death sentences against juveniles were shifted to Life Without Parole (for an argument that Roper deems LWOP unconstitutional for juveniles, as well, check out what the good folks at the Sentencing Law and Policy Blog have to say). The cost argument may be supplemented by some studies that doubt the efficacy and humaneness of death by lethal injection.
In any case, the improvement of conditions may make Death Row more akin to the general population prison, and may be an invisible step toward a CA moratorium that will go beyond a de facto lag in executions.

More Humonetarianism on a National Level: What About Us?

(image courtesy NYT.com)

This New York Times piece from a couple of weeks ago highlights another aspect of humonetarianism: To cut costs, states close prisons down or switch to community programs. Here's the "local interest" bit:

In California, where Gov. Arnold Schwarzenegger, a Republican, has called for $400 million to be cut from the state’s corrections budget, officials are seeking to remove low-level drug offenders from the parole supervision system and to provide them treatment options instead.

Like other states making such changes, California is led by a governor who long opposed such shifts in prison policies. But Mr. Schwarzenegger, as well as other leaders and lawmakers who are far more conservative, has come around to a view held by advocates of sentencing and prison reform that longer sentences do little to reduce recidivism among certain nonviolent criminals.

“In California we are out of room and we’re out of money,” said the state’s corrections secretary, Matthew Cate. “It may be time to take some of these steps that we should have taken long ago.”

But we are by no means the thriftiest state. Other states have been examining prisons to see whether they are efficient, and are closing them down. And other states are also reforming their sentencing laws, particularly minimum sentences for drug offenders. Many concede that the big waste of money is parole and are cutting down on supervision.

A few thoughts on some of the trends in the piece:

• By closing down prisons and transporting people to other prisons, we may be saving costs, but we're perpetuating the setup of prisons as far away gulags. A visit from one's family becomes more unlikely if everyone is shipped to a facility far away.
• The cuts, as Jennifer Steinhauer points out, go both ways. While treatment options are perceived to be cost-saving mechanisms, they need to defend their own funding. In emergency times, when short-term thinking is prevalent, lengthy project evaluation, examining declines in recidivism, may not be possible.
• This is something I've already said regarding the Plata/Coleman decision: I am deeply concerned that mass release of prisoners with no job skills and little support by way of reentry programs is a self-defeating step, which, without overhauling other systems, will lead to their return to prison. This sort of thing will only work if parole is retooled as an instrument of rehabilitation and hope.

Legalizing Medical Marijuana Sales: Habits in the Shadow of the Law

(image courtesy Stichting Institute for Medical Marijuana in the Netherlands, at medicalmarijuana.org)

The reemergence of the marijuana legalization debate, which we covered earlier this week, has been invigorated by San Francisco Supervisor Ross Mirkarimi's legislative proposal, under which the City's Department of Public Health would distribute pot through city clinics. The argument, as so many other criminal justice related arguments these days, has shades of humonetarianism:

"We're spending much more money keeping marijuana underground, trying to hide a fact that is occurring all around us," Mirkarimi said. "Now is the time to take responsibility for something we've deflected to others and to test our ability to take responsibility."

What is the legal stauts of medical marijuana in California? This informational webpage from the Department of Public Health explains is quite plainly. One can obtain marijuana from a licensed dispensary using a medical marijuana ID card. The card can be obtained at San Francisco General Hospital (incidentally, where UCSF scientists working with HIV patients found them unharmed by medical marijuana use). It costs $103, and requires some medical paperwork, or "an original letter from a medical provider stating that you have a serious medical condition where the use of medical marijuana is appropriate".

(image courtesy Contra Costa Health Services)

Forging the card is a criminal offense, but some anecdotal evidence I collected this week suggests there's no incentive to forge; getting medical recommendations is very easy, and several physicians in the Bay Area make their living exclusively from such recommendations. The relationship between the physicians and the dispensaries are much less straightforward. Patients who come to obtain a recommendation are not told the locations of the dispensaries. Not that it is a big secret that requires being "in the know": the cannabis club directory is online.

However, matters are complicated by the fact that federal authorities do not recognize SB 420, which created the dispensaries. Therefore, despite its legal (albeit quiet) status in California, and oversight by the city, the feds still can (and do) raid dispensaries occasionally. The question is, therefore, whether dispensing the drug through the municipality would discourage the feds from paying attention to the market.

For a broader historical perspective on the marijuana market, I strongly recommend Eric Schlosser's Reefer Madness: Sex, Drugs and Cheap Labor in the American Black Market.

The Process Is the Punishment: A 30-Year Retrospective

Prior to the 1960s and 1970s, most research on procedural justice in the criminal justice system focused on the Supreme Court. This is still the case, to some extent, in law review articles, which focus on watershed Supreme Court decisions to the exclusion of the courts that handle the bulk of everyday criminal cases. In the late 1960s, this trend started to change. Several classic studies on lower courts, focusing on plea bargaining, charging decisions, and public defense work, were published, challenging traditional notions of what a day in the courtroom "should" look like, and bringing to the forefront commonplace processes and events that the constitutional discourse kept hidden. Some of these included Milton Hewmann's groundbreaking study of plea bargaining, an underwhelmingly discussed phenomenon in light of its prevalence; David Sudnow's anatomy of plea bargaining based on stereotypization of cases according to their conformity to ideal types of "normal crimes", and Eisenstein and Jacob's analysis of felony case disposition. A major contribution to this literature was the classic award-winner The Process Is the Punishment: Handling Cases in a Lower Criminal Court, by my teacher, mentor, and friend, Malcolm Feeley.

In the book, Feeley provides an anatomy of the Court of Common Pleas in New Haven, Connecticut, analyzing its workings and processes from an organizational perspective. He comes to a (then) startling conclusion: The vast majority of defendants plead guilty. Virtually everyone foregoes his or her right to a jury trial. Judges, prosecutors, and defense attorneys, are jaded and overworked. Defense attorneys find themselves engaging in social work, rather than legal work. And, most important, the system generates powerful organizational incentives that push defendants to plead guilty, just so that they can avoid the process itself. Despite the fact that most defendants were not sent to jail, but rather had to pay fines, the process was so byzantine, unfathomable, and unpleasant, that most defendants did everything they could to avoid it. The concern about criminal stigma stemming from conviction was not as significant an incentive to insist on a jury trial; most defendants (disproportionally black and poor back in the 1970s as well) already had criminal records, and it was the daunting court process that they aimed to avoid.

Feeley's findings were not meant to be entirely generalizable to other lower court settings. In fact, one of his main points was that justice could differ from one microcosm to another, and that each county had its own procedural personality, affected by the relationship between the court, the prosecution, and the defense, local politics, and the perception of heavy caseloads. Nevertheless, the main argument highlighted an important piece of the plea puzzle: a lower criminal court is more of a Middle Eastern bazaar than a sterile supermarket with prices neatly marked by every offense.

What has changed in the thirty years since the publication of Feeley's classic? A great deal - and not a lot. The picture in terms of plea bargaining has not changed. The vast majority of defendants in lower courts still plead guilty. As the Department of Justice reports, 97 percent of all felony convictions within a year were obtained through a guilty plea (there are no misdemeanor cases on file). California statistics are difficult to obtain; databases are siloed in a way that makes it tricky to generalize, but some preliminary (albeit dated) numbers are available from the CA Attorney General's office, suggesting similar trends.

Since 1979, incentives for plea bargaining have grown. The rise of determinate sentencing and of punitive sentencing schemes such as the Three Strikes Law has shifted the bulk of discretion from judges and parole boards to the hands of legislators and prosecutors, putting more bargaining chips on the criminal justice table. Rather than bargaining the sentence, the parties routinely bargain the charge, as well as a plethora of other provisions, such as whether the offense will be "counted" as a strike. We know (from Jeanne Woodford's talk at the conference, and from John Pfaff's study) that the majority of prison inmates are in prison for a very short time; it is not the length of sentence, but rather the volume of incomers, that is overcrowding California prisons and jails. Many of these are the product of plea bargaining in order to avoid much longer sentences.

This leads us to one significant change from 1979: sentences have gone up. In that sense, these days, the punishment is also punishment. It is not just process avoidance that leads defendants to plead guilty, though it may play a part in their decisionmaking process. The existing of more chips on the table, underscored by the war on drugs and by growing concerns about sex offenders, provides the prosecution with unprecedented power to enhance a sentence in multiple ways, and while these are not always used, they certainly impact the negotiation process in important ways.

Another important development is the fact that some processes are less punitive than they used to be. Problem-solving courts, community courts, and other specialized institutions have sprung and changed the landscape of criminal justice. Also, therapeutic justice is back, albeit for a small portion of cases concerning drugs and mental health. While there may be coercive and problematic elements in these specialized processes as well, the experience is to a large extent more benign than in the chaos of an ordinary criminal court.

There are important indications that, since the late 1970s, public defense has become more prevalent, and its quality has improved in many jurisdictions. These encouraging developments may be dampened by the distubring scarcity of resources for public defense, which we highlighted elsewhere.

The atmosphere of nepotism and political dealings within the court, which Feeley carefully examines in the book, may also have changed. Perhaps, as argued in Benjamin Smith's interesting post at the Center for Court Innovation blog, Changing the Court, lower courts have become less parochial in their internal bureaucracies. However, it seems to me that the impact of politics on the process has become more pronounced at the higher, policymaking level. The mechanism that many conference speakers (particularly Mark Leno and Jonathan Simon), according to which politicians cannot afford to be "soft on crime", is hugely influential precisely because of the rising effect that legislative discretion has on the bargaining process.

Finally, we should keep in mind that observing lower courts is a change catalyst in itself. Much of the changes occurring in bargaining and sentencing policies has been affected by increased public attention to the courts' inner workings. In that sense, the "starship Enterprise" of courtroom observers can never really follow the "Prime Directive": paying more attention to hidden phenomena, and bringing them to light through high-quality research, is an important enterprise in generating change. Newer generations of scholars, which have been raised on Feeley's work, are indebted to the groundbreaking work of the 1970s, which is still a model of classic meticulous ethnography, and which is a continuing inspiration for courtroom research.

Humonetarianism in Action: Fiscal Arguments in Support of Regulating Marijuana

It's Deja Vu All Over Again.

The long discussion on regulating marijuana is back, as the Chronicle reports today. Except this time, true to the spirit of Humonetarianism, much of the discussion focuses on finances and costs.

Experts say an unprecedented confluence of factors might finally be driving a change on a topic once seen as politically too hot to handle.

Among them: the recession-fueled need for more public revenue, increased calls to redirect scarce law enforcement, court and prison resources, and a growing desire to declaw powerful and violent Mexican drug cartels. Also in the mix is a public opinion shift driven by a generation of Baby Boomers, combined with some new high-profile calls for legislation - including some well-known conservative voices joining with liberals.

Leading conservatives like former Secretary of State George Shultz and the late economist Milton Friedman years ago called for legalization and a change in the strategy in the war on drugs. This year mainstream pundits like Fox News' Glenn Beck and CNN's Jack Cafferty have publicly questioned the billions spent each year fighting the endless war against drugs and to suggest it now makes more financial and social sense to tax and regulate marijuana.

This is not a new discussion, of course. As some readers probably know, marijuana prohibition has not been with us forever. Scholars who have researched the history of drug criminalization, such as Troy Duster, trace it back to clashes between economic interests, as well as to demonization and oppression of minorities. In fact, the first U.S. law to criminalize drugs - the Harrison Narcotics Act of 1914 - focused on regulating taxation and licensing for drug purveyors and on protecting the medical profession, rather than on blanket prohibitions. Duster argues that it is no coincidence that substances used by middle-class whites, such as barbiturates, were left out of the criminalization frenzy, while marijuana (linked to Mexicans), heroin (linked to Blacks), and opiates (linked to the Chinese) became outlawed.

So, there's nothing given, or immutable, about our prohibition of drugs. Well, is it a good idea? That is a very complex question, since we could think of quite a variety of legalizing/regulating regimes to implement. In their wonderful book Drug War Heresies, Rob MacCoun and Peter Reuter examine a series of drug policies from all over the world and show that each system has advantages and drawbacks. They also highlight the political and economic hurdles to implementing sensible drug policies. Another interesting resource is this cool and well-articulated economic analysis by Andrew Clark from DELTA, who argues that any cost/benefit based analysis of regulating the drug market has to take into account the importance we ascribe to externalities, such as crime and ill health. Jeffrey Miron from Boston University argues that decriminalization will have little impact on marijuana use, and believes that decriminalization might affect other legal provisions, such as eliminating or relaxing the reliance on drug testing to determine parole violations.

We should keep in mind, though, two important things pertaining to the California situation: First, California has already effectively decriminalized small amounts of marijuana, although, as Rob MacCoun brilliantly proves in a new piece, not many people know that. And second, there is a permit system for medical marijuana operating according to CA laws (albeit in defiance of Federal laws).*

One of the things I like about the resurfacing of the marijuana regulation debate is that, probably for the first time, public discourse is attentive to the big picture. As became clear at the CCC conference, a major problem in addressing correctional policy is the disconnect between lawmaking and correctional implementation; lawmakers do not feel the harms and costs that are later born by those subjected to the correctional apparatus, and as humonetarians argue, by those picking up the tab. It's nice that the prison overcrowding issue has made it to the forefront of the marijuana debate.

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*This it fascinating, complicated, messy, and merits discussion far beyond this framework.

Being a Lever in a Dark Place

Citizen Hope assembled a fascinating panel on Tuesday night at Hastings for a “Conversation on Re-Entry.” The conversation’s starting point was recidivism and re-entry, and San Francisco District Attorney Kamala Harris began by described several of her initiatives aimed at combating recidivism. “Back on Track” targets young (18-30) nonviolent first-time offenders, allowing them, after they’re arrested, to opt into a training program in lieu of an entry of judgment. “Back on Track” participants must have a job or be in college in order to graduate, and the program works “across agencies” to achieve this, bringing together the Housing Department, Child and Family Services, Health and Human Services, the DA, PD, and Court. 

The program is still in its nascence, and so there are lots of questions about its efficacy: is it scalable? Right now it targets a population that self-selected to succeed (if a participant makes any missteps, he is sent back into the regular criminal justice process.) But it's an important policy innovation because it reflects a growing understanding of how connected recidivism and re-integration are with problems like joblessness and inadequate access to services. 

Harris herself represents another important kind of policy innovation, though, a theme which she sounded as she explained her decision to become a prosecutor, rather than following the more traditional path of the civil rights advocate to the public defender’s office. In lots of counties, programs like “Back on Track” never get started because the District Attorney, with his eye on his conviction record for the next election, doesn’t want to cooperate in a program that takes people out of the normal channels of criminal process. People like Harris are important because they are willing to reconceive their roles and the set of incentives and constraints that define them. Conviction records aren’t the only way to show you’re doing a good job as a law enforcement officer – indeed, they may be a remarkably bad indicator of whether you’re improving public safety. 

Panelist Lateefah Simon echoed this theme towards the end of the evening. Simon, who worked for Harris for four years in the DA’s office, and has a powerful way with words, exhorted the audience of law students and community members to become “a lever in a dark place.” In other words, if a system is the cumulative effect of many little decisions made by people in the course of their routines, then a shift in the kinds of experiences and perspectives those people are considering as they go about their jobs can have a huge impact on the success and widespread expansion of a program like “Back on Track.”

Citizen Hope is a social networking organization focused on political activism. The panel featured SF DA Kamala Harris, Jakada Imani, executive director of the Ella Baker Center for Human Rights, Jessica Flintoff, program coordinator of the Safe Communities Reentry Council, Lateefah Simon, executive director of the Lawyers Committee for Civil Rights, and moderator Steve Ngo of the San Francisco Community College Board. 

Chronicle's Nevius: An Unlikely Supporter for the Community Justice Center

This morning's Chron includes an article by C. W. Nevius, reporting about yesterday evening's Community Justice Center informational meeting at Glide Memorial Church. His description of the meeting depicts a typical San Francisco scenario: people with different agendas speaking past each other, not to each other, thinking how to shoot down a project without understanding what it is about.

The real failing is that the backers of the court haven't convinced the neighborhood that the effort is worthwhile.

Instead, at the meeting there were accusations that the Community Justice Center is part of a plan to rid the Tenderloin of poor people, build tall luxury apartment buildings, and encourage the police to arrest anyone on the street who looks shabby.

"It's just the opposite," sputtered Superior Court Judge Harold Kahn, who is presiding over the Justice Center this week while Commissioner Ron Albers is on vacation. "There is not a single case charged here that wouldn't have been charged at the Hall of Justice. The difference is, here they can go upstairs and qualify for services."

The court's director, Tomiquia Moss, was stressing that the court had heard more than 100 cases, and that they'd gotten 40 individuals into services, such as drug and alcohol treatment.

"And as far as this huge conspiracy to wrangle the poor out of the neighborhood," Moss said, "I really disagree with that."

Not that anyone from the opposition was listening. Activists wanted to know what the court was doing to end homelessness and why the money for the court - most of which comes from federal grants and can't be used for other purposes - isn't being used for building more shelters and housing.

Oh Boy.

The fact is, the people behind the Community Justice Center - people like Moss, Albers and the myriad social workers - have long and distinguished records of helping the homeless. So how did they get to be the enemy?

"I think people expect that there is never going to be a solution," Moss said. "So they keep complaining."

Now, it may be that the court won't ultimately work. It is just a pilot program. But I can tell you this - simply complaining is a dead end.

I've been following Nevius' commentary on the situation in the Tenderloin for quite a while, and I often disagree with him; when he reported about a homeless man found dead in the San Francisco public library, and linked this tragedy to his defense attorneys successfully battling his quality-of-life offense citations, I fumed for days. But this time, I think, he is right on the money. Nevius understands something that strikes me as very basic: If you have to choose between appearing more-righteous-than-thou and doing the right thing, it's a no-brainer. One of the regrettable features of our City politics (which are admirable in many other ways) is that, in this kind of debate, too many invariably opt for the former, even before obtaining enough information to make the choice. The conversation stops being about the issue at hand, and becomes an absurd contest of who is more enlightened and whose conspiracy theories are more extreme.

I constantly worry about criminalizing poverty, and am well aware of the many ways in which we do it every day. And, yes, in our flawed system, and within the constraints of a very imperfect social structure, there is a whole host of criminal offenses that act as proxy for social class (and, in many cases, race). However, rallying against people who are trying to make the situation better within this imperfect social structure, I believe, will not change matters. I would really like us to give this experiment a real shot before knee-jerk politics kick in and shoot down the efforts of people who are genuinely trying to do good and who have the qualifications and authority to do so.

"A Conversation on Reentry", Tue, April 7, at UC Hastings

This is a bit last-minute, but for those of you in San Francisco or the Bay Area, it seems very worth attending: CitizenHope, with a host of Hastings student organizations, is offering "A Conversation on Reentry": Making Rehabilitation an Essential Part of Public Safety Policy, featuring Kamala Harris, Jakada Imani, Jessica Flintoft, and Lateefah Simon.

Where: UC Hastings, 200 McAllister (2nd floor); a one-block walk from the Civic Center BART station
When: Tuesday, April 7 (tomorrow!), 6-8pm

The event will be followed by a reception at the nearby Soluna Cafe.

California Prison Mental Health – A Failed Delivery System

I have just received the following email from a reader, who introduces him/herself as "a concerned prison mental health clinician" and who prefers to remain anonymous. I am publishing it verbatim.

A suicidal inmate with a diagnosis of Major Depression with Psychosis is handcuffed for up to three hours before he is transferred to a crisis bed.
A correctional officer yells out “you are full of it” to an inmate who requests permission to return to his cell from the yard, because he says he feels that “people are watching him, and he is feeling paranoid.” This inmate has a diagnosis of Schizophrenia, Paranoid Type.
A correctional counselor (CC) says to an inmate diagnosed with rapid cycling bipolar disorder, “you are just a con, you were up and about yesterday, I saw you, and today you won’t come out of your cell.”
A psych tech refuses repeated requests of an inmate to see a psychiatrist, for nearly three weeks, this inmate suffered from racing, and obsessive thoughts – because this psych tech decided that the inmate was “playing.” This inmate is diagnosed with Obsessive Compulsive Disorder.
A mental health clinical supervisor says to his clinical team, that these are all criminals, and they know what to say.
A sergeant in response to an inmate yelling at the TV (because he believes that the TV is talking to him) decides to “clean out his cell” because inmates are not allowed to yell.

These are just a few examples from just one week at a California correctional facility that is supposed to be complying with the Mental Health Service Delivery System, based on the Coleman v. Schwarzenegger decisions. The current prison mental health system is one horror story after another, and here we are talking not about “general population,” but about units that are supposed to specialize in providing mental health treatment.

There are many reasons for this, but primarily it has to do with the way prisons are designed, and the custody culture, that, for the most part, does not consider mental illness to be legitimate. The misperceptions, and stigma that exists in the larger society is hugely magnified inside a prison. Further, the custody staff, and even some of the clinical administration staff do not seem to understand mental health treatment, and the course of recovery.

An example of this stigma, and lack of understanding about mental health treatment is the statement by Department of Corrections and Rehabilitation Secretary Matt Cate:
"... We don't need a treatment room and a yoga room and a music room and a basketball court for our most seriously ill inmates — we need to get those inmates better so they can return to the general population." From Oakland Tribune by Josh Richman, February 3, 2009

Fact is that most of those with serious mental illness are not going to return to the “general population.” Most of the tens of thousands of seriously mentally ill inmates, if in the community, would qualify for disability (SSI) and would only be expected to work part-time at the very most. They would be living in supportive housing, such as licensed board and care facilities, or supported independent living, with onsite case management. The prison general population is a very high stress environment, and many of the mentally ill inmates would decompensate, and end up being hospitalized, or in crisis within a matter of weeks, if not days.

I was heartened to read by U.S. District Judge Lawrence Karlton’s statement that he is considering placing the mental health services also under a receivership. CDCR does not have the capacity, or understanding to provide effective mental health care. Their role is custody, not mental health treatment.

With 40-50% of California inmates seriously mentally ill, we need to enter into a process of rethinking, and redesigning prison mental health treatment. A few recommendations/suggestions that I, as a prison mental health clinician, have are as follows:

1. Under a future receiver’s office create a clinical oversight body within each prison-institution, comprising of both administrative and line clinical staff (psychiatrists, clinical psychologists, and clinical social workers) that would be charged with addressing clinical/treatment issues and obstacles.

2. Recognize that with such high numbers of seriously mentally ill inmates, prisons are effectively locked mental health institutions. The custody staff must re-think their roles as security, and mental health providers. Develop a new classification of “mental health custody” that would specialize in working within mental health units. A very small number of custody staff do have this kind of specialization, and where we have such staff, the units operate smoothly, and some level of mental health services are delivered. Where we do not have this level training, and/or interest, the services are spotty at best – and that would be the case in the vast majority of cases.

3. Begin developing a separate agency outside of the CDCR that would be charged with providing mental health services. This agency would then be held accountable for standards and practices, and would relieve the CDCR from trying to implement services that are outside of its custody role and scope.

4. Mental Health services in prison should be held at the same, or higher level of standard as those delivered in the community in California. This would include confidentiality, and clear protection against abusive or stigmatizing treatment.

5. And finally, but no means least, construct new facilities designed to provide mental health care.

The above recommendations are by no means exhaustive, but we need a public open conversation, and implementation of mental health treatment at the same time. We cannot continue to wait, while the civil and constitutional rights of California prisoners are violated daily. Such stigmatizing treatment would not be tolerated in the community, and there is no reason why such abuse is being tolerated in prisons.

It is time to take mental health out of the hands of the an incompetent state body, and placed in the hands of mental health receivership who would have the necessary mental health background to implement immediate change to the delivery system.

What Works? A Search for Evidence-Based Corrections

In 1974, the world of corrections was quite different from the grim realities we have been discussing here over the last few months. The sentencing system was indeterminate, and the release date of inmates was mostly in the hands of the parole board. Those who grew up with the determinate system adopted in the late 1970s and early 1980s may recall the depiction of this system in The Shawshank Redemption.

Since sentencing was seen as an individualized, offender-based enterprise (as opposed to the administration of guilt, which was based on  completion of the elements of the offense), the main criterion for release was "rehabilitation", that is, establishing that the inmate had been reformed and was no longer a threat to public safety. Prisons had a variety of rehabilitative programs, though many of these, as depicted in the movie, were farcical fronts for the economic enterprise. The move to a system relying on determinate sentences, giving prosecutors and legislators more power than judges and parole boards, was the outcome of a new discourse, which (among other things) discredited the rehabilitative value of prison programs.

This discourse was impacted in a major day by Robert Martinson's meta-study What Works? Questions and Answers About Prison Reform, which was published on The Public Interest. In the study, Martinson examined the recidivism rates of 600 prison programs, as examined by other studies, and came to the conclusion that there is --

very little reason to hope that we have in fact found a sure way for reducing recidivism through rehabilitation. This is not to say that we did not find instances of success or partial success; it is only to say that these instances have been isolated, producing no clear pattern to indicate the efficacy of any particular method of treatment. 

Martinson's results, later confirmed by a review by a National Academy of Science panel, were devastating to the rehabilitative enterprise, and lent scientific credibility to the critique against indeterminate sentencing. While later studies have criticized some of Martinson's methodology, Martinson provided an invaluable service to us all. As David Farabee argues, there was a broader lesson in all this, which is not different in essence from the important words Harold Atkins said in our opening panel: it is not enough to come up with a rehabilitative program. We have to know that it works.

Newer works in the last few years have come to more optimistic conclusions about rehabilitative programs in prison. Check out, for example, Rick Sarre's excellent conference paper, pointing to newer meta-studies that found more programs that 'work'. However, we have to keep in mind, as Doris MacKenzie reminds us, that these programs differ greatly from each other in terms of their underlying philosophies (boot camps are different from drug courts!), and some of them are more suitable than others for certain types of crimes or groups of offenders.  

If Jim Webb's efforts to create a criminal justice commission, or the important work done in places like the Center for Evidence-Based Corrections, come to fruition, one important question it will have to answer is, how do we measure what works? What indexes of success might we have beyond recidivism measures? And, are we to stick to one penological philosophy, or are we willing to accept that different things "work" for different people? what do you think?

Secretary Cate: Seeking Prison Expansion

The Associated Press reports that Secretary Cate plans to ask state legislators to expand three prisons.

The construction projects would be the first to draw money from a nearly $8 billion bond measure approved two years ago. The money was stalled, though, until Gov. Arnold Schwarzenegger signed the state budget into law in February.

Corrections Secretary Matthew Cate said he plans to seek approval within weeks to build more cellblocks at two prisons near Delano and to convert a juvenile lockup near Paso Robles. Those moves combined would house 2,800 inmates.

The $810 million Cate will seek from legislative budget committees would pay for those three expansions, plus building a re-entry center in Stockton for 500 inmates who are nearing the end of their prison terms. It would be the first of several planned regional re-entry centers to help inmates adjust in the months before they are paroled.

(this was one of the urgent projects seeking approval and financed by bonds approved in 2007, per the L.A. Times)

(and another aspect of the whole thing: prison construction is regarded as one way to generate construction jobs. One person's problem is another's salvation).

I have no doubt that prison authorities are sincere in regarding prison expansion as a viable way to reduce overcrowding; however, I can't help but think about conversations I've had with my father, a transport planner, who often marvels at how new roads built to relieve congestion generate incentives to buy more cars, thus increasing traffic. I know the metaphor is not perfect, but it has been preying on my mind.

A Risk-Assessment Model from a Blog Reader

(all images by Tom McGee; click on graphics for clearer, larger image)

One of our readers, Thomas McGee, who worked for many years in the Youth Authority, has given some serious consideration to questions of risk assessment associated with issues such as the Lovell Mixon case. He writes:

Thank you for your blog, California Correctional Crisis. Your posts have been especially helpful.

I am sending this email, rather than posting a comment, because I wanted to enclose an attachment, which was prepared using Excel. It is a chart depicting a proposed Deprivation Decision-Making System. I believe that sentencing should be put in this broader context. You will see that it makes provision for both determinate and indeterminate courses of action. The Mixon matter you have been writing about is a good example of why something like this is necessary. Of course, I do not have access to his case history, but since he was classified as a high-control parolee, there must have been evidence that he was a high risk. Under the system I propose, Mr. Mixon would have completed the accountability part of his Deprivation Plan. But he would not have been moved to a lower level of restraint, because he had a high level of risk.
I know that risk determinations are contentious, but risk is a fact of life. Insurance companies deal with it all the time. It is not possible to predict with complete certain ty who will commit another crime, or what kind. But it is possible to estimate the probability that a person will recidivate,within a probability range. Policy makers have to decide how much risk is acceptable. If risk determinations do not reach a legally acceptable standard, then lets say so and act accordingly, rather than hiding this in some kind of sentencing double-talk.
Just one more point; I think it is ridiculous to ask judges to consider risk at the time of sentencing. Risk changes. Who can say today what an offender's risk will be five years from now. A Risk Control Board should make periodic risk determinations of this kind. Parole Boards as we knowthem are not equipped for this task.

I would appreciate any comments you may have about the enclosure, and these comments. Again, thanks for the blog.

************

One of the interesting things about Tom's model is that it incorporates quite a multifaceted perspective on offenders and their motivations. One key dilemma in modeling and predicting human behavior has to do with the difficult trade-off between accuracy and simplicity. That is, the more complex the model is , the more accurately it can predict risk, but the more difficult it will be to apply. More on this in future posts.

OIG Inquiry Regarding Mixon's Parole Proceedings: CDCR Followed Appropriate Proceedings

(photo sources: sfgate.com; cdcr.gov)

The Office of the Inspector General has led an inquiry into the proceedings carried by CDCR regarding Lovelle Mixon's parole supervision. The conclusion? The parole agents, and everyone else involved, followed department policies and procedures. Here's the gist of the review, from Undersecretary of Operations Scott Kernan (CDCR story is here and the full report, addressed to Secretary Cate, is here):

“The Inspector General’s conclusions confirm the results of our immediate internal review of the handling of Lovelle Mixon’s parolee supervision records. Our parole agents followed all appropriate supervision, drug testing, and even job assistance protocols when dealing with Mixon, who was classified as a high-control parolee. When Mixon absconded from parole supervision, he was promptly listed as a Parolee-at-Large and search procedures were activated. Local law enforcement agencies were notified and engaged in the attempts to arrest him, and our Fuguitive Apprehension Team laid out a plan to search suspected locations – even notifying the U.S. Marshals on a lead that he may have fled the state".

Given this modus operandi, what can we say about this senseless tragedy? It is not unlikely that this horrible event is an isolated incident, stemming from individual pathology. But perhaps it also says something much broader about our parole policies and their potential to drive people to commit desperate, heinous acts. I found much of the discourse in the last few days remarkably unhelpful, whether it included racist epithets, super-punitive rage, or venomous anti-police messages. If there is a bigger lesson to be learned from this, let's try and learn it on behalf of the parolees who struggle to stay on the straight and narrow; and let's think about reframing parole as a reentry tool, performing aggressive supervision only when appropriate. I believe Evelyn Lara-Lowe, who at our conference last week said that the CDCR has no vested interest in bringing people back into prison; how do we retool parole proceedings and instruments to become a vehicle of hope, rather than desperation?