Wednesday, September 30, 2009

Oscar Grant Aftermath: Scathing Review of BART Police

Since our main focus is the correctional system, we haven't blogged in depth about the Oscar Grant shooting and its aftermath. However, the broad nature of our correctional crisis makes all stages of the criminal process - including policing - inexorably linked to each other. Therefore, we thought that some updates may be interesting to our readers.

Today, NOBLE (the National Organization of Black Law Enforcement Executives) published its scathing review of BART police management, training and procedures. The full report can be downloaded here.

Among other things, the report points out to antiquated policing techniques, such as an emphasis on car patrols and very low visibility on the trains, tracks, and parking lots. Training is abysmal, there are no specialized units such as a SWAT team, and the protocols for use of force are sorely deficient.

If anyone is interested in hearing more, the report will be the subject of a public meeting at 9 a.m. Thursday in the BART board room, Kaiser Center 20th Street Mall, Third Floor, 344 20th St., Oakland. I called NOBLE this morning, and they seem to be interested in helping make things better.

Progressive Lawyering Day 2009

Following up on this week's posts on minors in California's criminal justice system, this Saturday there will be a panel on the San Francisco police's interrogation of immigrant youth, featuring Supervisor David Campos. The panel is part of Progressive Lawyering Day 2009, hosted by the San Francisco Bay Area Chapter of the National Lawyers Guild. The day also features a keynote lecture from civil rights attorney John Burris.

Here's the full schedule for the event, 10a-6p Sat 10/3 at UC-Hastings, 198 McAllister St., SF:
10:00am Registration/Free Breakfast
10:30-12:00 2 Panels: Transgender Advocacy & SF Police Interrogation of Immigrant Youth feat. SF Supervisor David Campos
12:00-1:00 Free Lunch
1:00-2:30 2 Panels: Alien Tort Claims Act & Everything You Wanted to Know About Fellowships
3:00-4:30 Key Note Speaker John Burris (attorney for the family of Oscar Grant)
4:30-6:00 Reception with free food/drinks

Facebook invite here. Note that CLE credits are available for both afternoon panels.

Tuesday, September 29, 2009

Drug Dealing in The TL: A Presentation

Tonight the Tenderloin Station held a meeting at the Community Room at 301 Eddy St where guest speakers ADA Sharon Woo (head of narcotics unit) and Judge Ron Albers (Head of the Community Justice Center Court) had a chance to address about 50 members of the TL community regarding concerns about how drug dealing is dealt with in the TL.

An officer (I am a poor reporter) started the presentation stating that, although police chief Gascon could not make it, the recent sweeps of drug dealers in the TL (reported in other articles here on the blog) had been such a success that the Sheriff pods are too full and the police have been asked to back off from making so many arrests. However that moratorium on drug sweeps is likely to end as there are three major police operations scheduled for October 1st(!)

Sharon Woo then began her portion of the talk with a presentation of statistics that she had run regarding arrests made in the TL and the subsequent actions taken by the DA's office. Woo stated that 81% of the cases that had come to the DA's office for felony drug sales and possession had been charged by the DA and an additional 10% of cases resulted in probation violations, meaning that 91% of those types of cases had sort of action taken on them by the DA. Woo added that most of those offenders were kept in custody and if they were released on OR they were given stay away orders to stay away from the area where they were picked up. Woo also rebutted the presumption that most of the dealing that occurred in the TL was the result of people from outside the County by giving a statistic that 67% of those picked up for dealing in the TL were from SF County. Woo stated that she was very pleased with these numbers.

Judge Albers then gave a presentation regarding the CJC wherein he outlined the purposes of the CJC (to address the concerns of the community by looking at the root causes of the types of crime committed in the TL and address the behavioral issues of the persons committing those crimes) and how the CJC is designed to treat those individuals (increased emphasis on social services and addiction treatment programs, and uniquely tailored strategic plans for different types of offenders). Judge Albers placed emphasis on the fact that about 2/3 of the people that he sees in the CJC have addiction issues, about 50% have mental health issues, and overall about 80% have one or the other, or both. The emphasis in the presentation given by Judge Albers seemed to be on letting the community know exactly what the CJC was doing and that the concerns of the community about rampant drug dealing and use are being addressed

The members of the community present reflected many different points of view from "I have seen no difference whatsoever since the drug sweeps" to "the new enforcement scheme seems to be making a big difference." Some people were frustrated with the inability to go into their homes without being harassed by drug dealers and users and seemed to be advocating for a more strict enforcement scheme. Others felt that the CJC was a good approach to dealing with drug problems: "You need to combat the demand, and when you get rid of the demand for drugs you will see the suppliers leave" one woman said, turning to Ms. Woo "Do you want some crack?" Though asking an Assistant DA if they want any crack seems rather odd, the point seemed to support the position of the CJC: If you treat the addiction you will get rid of the crime that goes along with it.

More on Minors: Failing Report Cards for Juvenile Institutions

(Preston Juvenile Facility images courtesy Center of Juvenile and Criminal Justice, at

As Jesse pointed out in a recent blog post, our general concerns about the California correctional crisis are warranted especially with regard to our treatment of minors. Much of the recent attention to the crisis concerned adult institutions exclusively; however, given the connection between age and crime, and the difficulties in rehabilitating adults, juvenile institutions have an enormous potential as centers of rehabilitation, and could provide a turning point away from criminal career.

What are our juvenile institutions like? A recent report by Books Not Bars paints a rather grim picture. The organization examined six California juvenile institutions to the Missouri Model and issued report cards for them. Sadly, all institutions miserably failed to prove adequate; the report finds conditions to be abysmal, and not conducive in the least to rehabilitation. Dated building standards, remoteness from family, chaotic and violent environments, and a paucity of rehabilitative programs, do not bode well for the future of juvenile corrections, or for a decline in adult criminal careers. Books Not Bars should be commended for bringing these invisible problems to light and raising awareness to this sad state of affairs.

Monday, September 28, 2009

More on Sex Offender Monitoring

The CDCR website reports on the Adult Parole Division's Operation "Eagle Eye", which consists of GPS monitoring of sex offenders in state fairs. We've already discussed California's fascination with GPS monitoring, its promise and discontents. Here's the newest in that vein:

Every sex offender on active parole has GPS monitoring as part of their supervision requirements. Any sex offender parolee who entered the fair zone set off an alarm notifying parole agents of their whereabouts. Once a notification was received, on-site CDCR parole agents tracked an offender's movement and investigated if any law, parole violation or any public safety issue existed. During the various runs of the fairs, CDCR parole agents received numerous zone alerts, which culminated in parolee arrests for violations of special conditions of parole.

"When it comes to the supervision of sex offenders, we cannot and will not compromise public safety," said Marvin Speed, District Parole Administrator. "Operation Eagle Eye was so beneficial to enhancing public safety that we will replicate the operation at other venues."

Is Incarcerating Minors an Even More Wasteful Crisis?

WireTap Magazine has a great interview with Liz Ryan of the Campaign for Youth Justice. CYFJ argues that incarcerating minors does not work (does not reduce recidivism, does not deter crime), is very unsafe, and is unfair.

According to the California Attorney General's Criminal Justice Statistics Center, in 2005 the state of California incarcerated juveniles at a rate of 23.8 per 100,000 at-risk population, compared to 131.9 for adults. In particular, in 2005 California arrested juveniles for drugs at a rate of 486.9 per 100,000 at-risk population, versus 1173.5 adults.

Minors are arguably the most vulnerable members of our prison population. In a recent post, California Corrections Crisis points out that Zimbabwe has just decided to release all minors from all prisons to reduce overcrowding. Since California is having trouble finding 40,000 inmates to release, perhaps we should consider releasing all inmates under 18 years age.

Saturday, September 26, 2009

Parole Documentary from Prisons Under Pressure

I have been pleasantly surprised by the CCPOA-funded documentary series Prisons Under Pressure. The series is a bit dramatic in terms of editing and presentation, and somewhat shallow in its coverage of the broader social issues, but actually provides a lot of interesting information and includes some fascinating interviews. Episode 4, which you can see here, discusses the dysfunctionalities of parole in California and examines the roots behind the success of some programs. The video includes interesting interviews with Mimi Silbert from the Delancey Street Foundation and with Harriet Salarno from Crime Victims United of California.

While the CCPOA's political power and relationship with governors since the 1980s has been criticized by some as a major contributor to the ratcheting up of sentencing, and their involvement in funding political campaigns (such as the Three Strikes Law and the No on 5 campaign) a source of concern, I think they should be commended for funding this documentary, as well as for their public support for a sentencing commission.

Friday, September 25, 2009

When Our Monsters Age and Fall Ill: Thoughts on Susan Atkins' Life and Death

(Atkins parole hearing image courtesy The Daily Mail)

Susan Atkins, member of the notorious Manson Family and participant in heinous and violent crimes, passed away at the age of 61. The L.A. Times features an excellent, detailed story on Atkins' life, her crimes, and her time in prison, including the brain cancer that put an end to her life. Atkins served 38 years in prison, and in her last years lost a leg and became paralyzed as a result of her cancer. She was repeatedly denied parole in light of the severity of her crimes.

The Atkins case is an illustration of the important place retributivism still occupies in the public consciousness. Retribution was the only reason behind the denial of Atkins' parole. She was terminally ill, fully (and apparently honestly) remorseful of her part in the Manson murders, and clearly incapable, physically and otherwise, of committing any further crime. In that sense, the Atkins case is a pure example of the power of such considerations.

The extent to which we defer to retributivism when dealing with a symbolic act that has colored much of our attitudes and imagination of crime in the late 1960s and beyond is a serious question, but I think the more interesting question is whether less extreme cases, involving less notorious acts, would merit the same deference to retributivism when making parole decisions. In the majority of cases, aging and health may give rise to considerations of declining risk and propensity.

Theories of life-course criminology have been quite a trendy field in criminology over the last few years. A good intro to this field is this great piece by Robert Sampson and John Laub. The nice thing about the article is its sensitivity to variation in types of crime, as well as to "turning points", such as marriage, which dissuade some offenders from crime. Sampson and Laub also do a good job at describing the limitations of using life course criminology as a predictive tool for release. Nevertheless, the trends are thought provoking, especially when we are presented with veteran inmates such as Atkins, who have been in prison for decades and decades. Add to the mix the budgetary implications of treating the old and the infirm, and we can question the value of retributivism as an overriding, all-powerful ideology of incarceration and release.

Thursday, September 24, 2009

More on Policing the Tenderloin

The new SFPD chief, George Gascon, is a man on a mission. Having been shocked by drug trafficking in the Tenderloin , he has announced a mission of aggressive policing in the area in an attempt to curb the drug trade. The SFPD enforcement efforts have Today's paper focuses on mass arrests conducted near schools as a result of buy-bust operations.

While some believe this attention is necessary, others are less optimistic. The Public Defender's office wonders about the effect massive arrests (300 by Sep. 3 and counting!) will have on the court system. Others are cynical about the possible outcomes. I'm mostly reminded of the fourth season of David Simon's masterpiece series The Wire, in which police commanders are subject to inquiries and humiliation in their weekly COMPSTAT meetings. Much as they try to juke the stats, crime rates don't go down. Until Bunny Colvin decides to quietly and clandestinely legalize drugs in his district.

The experiment is successful on many levels, though it does have some ill effects. The new district, affectionately called "Hamsterdam" by its inhabitants, mostly regulates itself, the occasional act of violence notwithstanding. Social service providers appear on the scene with condoms, syringes and medication. And everything seems to work, more or less, until the secret is revealed, and the giant machine of the War on Drugs is unable to contain and accept it.

Less arrests, less trials, and the drugs move away from the community. But even if Chief Gascon was willing to consider a Hamsterdam alternative, is there any area in the city which we would feel comfortable ceding to the drug trade?

Some folks are considering other possible regimes for legalization. One group of advocates for such solutions includes LEAP (Law Enforcement Against Prohibition). Last night I had a chance to hear Norm Stamper, former Chief of Police in Seattle, speak about the harms of the war on drugs and the need to end it. Rather than advocating a free drug market, Stamper advocates a state monopoly on growth, manufacturing and sales, and taxation. I'm not sure a state monopoly system is realistic, but his ideas are interesting.

Your thoughts and comments appreciated.

Tuesday, September 22, 2009

Forum to Discuss Drug Dealing in the SF Tenderloin

In lieu of a September Town Hall, [held periodically by the CJC personnel - H.A.], there will be a forum discussing the drug dealing problem in the Tenderloin and how the Criminal Justice System is handling this situation. Judge Ron Albers from the Community Justice Center and Assistant DA Sharon Woo, who heads the District Attorney’s Narcotics Unit, both will be speaking on how the courts and DA’s office are addressing this plague on our community.

Meeting: September 29th Tuesday 6:00pm Tenderloin Police Station Community Room, 301 Eddy St .

This will surely be a fascinating evening, especially in light of the new agressive police tactics in the tenderloin, propagated by new police chief Gascon but met with skepticism by the neighbors.

Monday, September 21, 2009

CCC Blog 1st Birthday

This week, the California Correctional Crisis Blog celebrates its first birthday. It is a good occasion to look back on the past year and the main issues we have discussed, and perhaps to offer some thoughts on what might happen in the future.

It has certainly been a dramatic year for corrections, and the main issues on our agenda were the most pressing ones: overcrowding and the medical system. These two issues became inexorably linked with each other as the year progressed. Early this year we followed on the struggles between the CDCR and the federally-appointed Receivership around issues of quality of care, and, of course, money. These struggles, and the continued deterioration of the system, led eventually to the three-judge-panel's Plata/Coleman decision, ordering population reduction as the primary means to remedy the health system. And we have seen the state's reluctance not only to comply with the order, but also to comprehend the necessity for change: appealing the order, violating its requirements, and, in the legislative arena, severe limitations on the ability to transcend party lines and slogans to provide an effective solution.

A complicating factor has been the financial crisis, which exposed the cost of relying on a mammoth correctional apparatus as the primary means to solve social problems. Hidden from the public eye, hundreds of millions of dollars are poured in through taxes paid for by Californians to imprison their fellow Californians. The exposure of the frightening impact of these expenditures has led our criminal justice system to pursue some techniques that were not in use, and were certainly not publicly propagated, since the emergence of the new law-and-order paradigm in the Nixon days. We have seen the revival of the marijuana decriminalization debate; prosecutorial prioritizing of charging; sentencing reform ideas; jurisdiction stat-juking; critique of broad parole practices; a National Crime Commission; and even, perhaps, discourse heralding a questioning of the death penalty (though, perhaps, premature in CA). While we still pay tribute to the discourse of public safety, and advocate these changes using a discourse of scarcity, this may be an opportunity--so far only partly utilized--to challenge the status quo and engage the public imagination in designing better alternatives.

We were also following various agents of change and their struggles about the appropriate models of justice. We saw the Public Defense coping with cuts, and the Community Justice Center take its first controversial steps. We witnessed an increasing reliance on technology-based non-custodial alternatives and discussed their promise and pitfalls.

During the 2008 elections, and the months that followed, we had an opportunity to examine our patchwork sentencing structure, as well as our approaches to drug crime and to victim involvement in the criminal process. These provided a lens through which the partisan politics of corrections could be examined.

We read and reported on some new, and less new, books documenting and discussing different aspects of the correctional process.

Oh, and we had a major conference at UC Hastings, in which the major actors in the political and economic drama that is CA corrections came together to discuss different aspects of the problems we face.

Finally, we occasionally glanced beyond state lines to frame the crisis in national, and sometimes international, terms, seeing the idiosyncrasies of California, but also its role within the broader American correctional malady.

The blog has given us an opportunity to reach a broad audience of parties to the correctional enterprise. We hear often, by email or by phone, from CDCR employees, inmate advocates, victim organizations, lawyers, activists, and of course the population who is most affected by the crisis--inmates and their families. You have contacted us; brought our work to the attention of the mainstream media; sent us books and materials; informed us about the realities of living affected by the California prison system; involved us in your efforts for reform; and have been honest, forthright, and generous, in sharing your experiences, even when they left you uncomfortable or pained. This blog is for you, and it would not exist without you. Thank you.

We invite you to stay with us for another year, as we continue bringing to light one of the weak and shameful links in our social chain: how we treat each other when we transgress. Please keep emailing and commenting; what we know is up to us, and understanding is the first step toward systematic, evidence-based reform.

Saturday, September 19, 2009

Contempt or Cooperation?

Given the State's population reduction plan, which falls short of the Plata/Coleman order, the question becomes: What can the court do, and what should it do?

I find the latter question much more interesting than the former. We know that courts have the authority to send one to prison for contempt, sometimes not as reasonably as one would hope. But I don't see how that would be helpful in any way in this situation. But what about monetary penalties? Or asking for adjustments to the order?

There are various complicating factors here. On one hand, as Judge Karlton explained in his luncheon address at our conference last March, this is the last in a long series of problematic interactions between the state and federal courts regarding corrections and constitutional rights. Faithful followers of the crisis will recall how close the court was to hold Governor Schwarzenegger in contempt for not providing the receiver with funds to improve health care.

On the other hand, even the Plata/Coleman decision acknowledged that, while the state was late to respond to court requirements in the Coleman case, state officials eventually did cooperate with the special masters. Given the dramatic implications of federal intervention in prison population management, the court would prefer cooperation and, possibly, an incremental improvement of the proposed plan, to an adversarial step that will alienate the state even further.

Friday, September 18, 2009

CA Plan Falls Short of Reduction Order

The expected plan is much closer to the original Governor's plan. The AP reports (with interviews with Michael Bien and yours truly):

Instead of 40,000 inmates, the state's plan is expected reduce the population by about 25,000 over two years, according to those who were briefed on the plan. Details were to be released late Friday afternoon.

The state already has taken steps to get part way to the goal.

Earlier this month, the Legislature voted to use a variety of methods to reduce the prison population by 16,000 inmates as a way to save nearly $1 billion in this fiscal year's state budget. Corrections officials also are expected to recommend transferring additional inmates to prisons in other states and adding more beds under a prison-construction program previously approved by the Legislature.

Thursday, September 17, 2009

Zimbabwean Prison Decrowding

Looking for another country to teach California some lessons about dealing with overcrowding? Try Zimbabwe. President Mugabe, the NYT reports, is releasing women, minors, the terminally ill and prisoners sentenced to 38 months or less who had served at least a quarter of their terms - 1500 prisoners in total - to relieve overcrowding.

Props to Tal Niv for alerting me to this interesting tidbit.

The State Will Not Comply with Plata/Coleman Requirement!

Tomorrow is the deadline imposed by the Plata/Coleman panel for the State to come up with a population reduction plan. As the Chron reports today, the State will NOT comply with the deadline.

[T]he plan California officials will submit by midnight Friday will fall short of meeting the 40,000-inmate reduction ordered last month by the federal panel, state prison officials said in a briefing Wednesday to various parties, including legislative staffers who work on prison issues.

. . .

The state officials did not tell by how much their plan would fall short but said they may revise it before they submit it Friday, sources said. The officials also said they expect the judges to find the state in contempt for failing to meet the demand, one source said.

If the judges decide the state deliberately violated their order, they could hold the defendants - Schwarzenegger, Corrections Secretary Matthew Cate and state Controller John Chiang - in contempt. The court would have the power to send any or all of them to jail until they complied with the order, but that's unlikely in light of events earlier in the case.

What complicates matters, of course, is the "rival plan" approved by the Assembly, which we discussed elsewhere, and which falls short of generating any serious systematic change through sentencing reform. Given the disappointing scope of this plan, the State's argument against Federal judicial involvement in prison management becomes significantly weaker. Stay tuned for tomorrow's developments.

Wednesday, September 16, 2009

Chino "Archaeology" as Example of Overcrowding

This morning's editorial in the Contra Costa Times offers a critique of the legislature's watered-down decrowding plan.

Critics claimed that the original plan would have sparked crime sprees across the state. Done properly that would not have been likely, but the scare tactic carried the day.

That simply guarantees next year's session will be much more difficult because more severe changes must come.

A three-member federal judge panel ordered the state to reduce its inmate population by 40,000 in two years and the state has until Friday to come up with the plan. The state appealed to the U.S. Supreme Court and asked for a delay of that order, but, as expected, it lost.

The state is in this corner because it has put itself there. It is the consequence of inaction — years of inaction.

This attention to the crisis in Contra Costa County is quite notable. As some readers may remember, the downscaling in charges, stemming from budgetary cuts to the DA's office in Contra Costa, has drawn critique from the police and the community. Nevertheless, the local newspaper does a good job aiming at raising awareness to the crisis. A few days ago, the newspaper reported on prison overcrowding, focusing on Chino, in the aftermath of the riots, as an example.

A gymnasium is a sea of bunk beds. The 213 inmates inside are quarantined on this day, the result of worries about a swine flu outbreak. In a room such as this, there is nowhere for a virus to go but directly to another inmate never more than a foot or two away. The basketball hoops and theater stage are reminders that this decaying part of the prison was never meant to house prisoners.

. . .

The situation ensures the spotlight will remain on prisons such as Chino's, which has operated at or near 200 percent of its intended capacity, brimming with nearly 6,000 inmates in a facility designed 70 years ago for half that.

Even the stretches of this prison actually designed to house inmates appear bleakly overtaxed. Inside Madrone Hall, two inmates jam into 6-by-11-foot cells meant for a single bed. A second bed chained to the wall during the day is dropped to the floor at night, flat and tin-looking to earn the name "cookie sheet bed."

The overcrowding also is causing predictable chaos. Indeed, just four days after the federal court order, it was the Chino prison that erupted in violence. And while the Aug. 8 riot was linked to race-related tensions, it underscored how incendiary it can be to run a prison so overstuffed with inmates.

Saturday, September 12, 2009

Decrowding Debate: 1:0? 0:1?

Two important events have just occurred more or less simultaneously with regard to the decrowding debate.

First, the gutted prison reform plan, that will lead to the release of 17,000 inmates and the transfer of minor parole violators to local jails, has passed and is moving forward, for the Governor's signature.

And second, the Supreme Court has declined to grant a stay to the State with regard to the Plata/Coleman order. The State's arguments have been rejected, albeit not on the merits (that will be decided on appeal). CDCR will therefore have to come up with a decrowding plan for 40,000 inmates by Sep. 18.

We will elaborate later on the possible connection between these two events.

Wednesday, September 9, 2009

Jonathan Simon on Democracy Now

Jonathan Simon was on Democracy Now today, eloquently discussing our correctional crisis and the latest developments.

Friday, September 4, 2009

BREAKING NEWS: Plata/Coleman Request for Stay Filed with the Supreme Court!

Today, the State filed for a stay regarding the Plata/Coleman order to come up with a 137.5% decrowding plan. Here is the application itself, which I placed on a free media host for your convenience.

The gist of what is going on is as follows:

In order to obtain a stay, the state has to show:
  1. a reasonable probability that four Justices will consider the issue sufficiently meritorious to . . . note probable jurisdiction;
  2. a fair prospect that a majority of the court will conclude that the decision below was erroneous; and
  3. a likelihood that "irreparable harm" will result from the denial of a stay.
  4. In close cases, the Court is called upon to do a balancing act of harms and interests.
The brief argues that these four conditions apply and require a stay in the Plata/Coleman case.
  1. The importance and drastic scope of the three-judge-panel's relief will probably merit jurisdiction. The Federal interference in this case is unprecedented and the injunctive relief is dramatic. Questions of law concerning the PLRA will be raised (see our previous post on this) as well as issues of federalism and judicial restraint.
  2. Overcrowding is not the "primary cause" for the constitutional violations; a myriad other factors that have to do with prison administration and personnel are also to blame. Even if overcrowding is the main factor in the violations, decrowding will not necessarily result in solving the problem (note that the State does not disagree that there are constitutional violations and the state is to blame! Also note that the gravity of the problem, and the fact that even overcrowding will not solve it, is offered as an argument on behalf of the State!). In addition (this, IMHO, is the strongest point in this brief), the court has not justified its decision to set the reduction level at 137.5%. There are also some procedural issues that might work on the State's behalf, such as the fact that no district court has ordered reduction.
  3. Obeying the order will create irreparable harm by diverting necessary resources to the decrowding plan (this is rather odd in light of the expected savings!) and by putting communities at risk;
  4. Finally, the brief argues, if this is a close case - which it isn't - then there's good reasons to weigh factors in favor of a stay. Since decrowding will probably take two years, there is less harm in waiting than there is in going ahead with the plan.
While it's difficult to be sympathetic to the State's arguments, especially in light of the fact that there is no argument about the ills and their reasons, two things stand out: first, the argument about the decrowding level is not bad and has not been addressed by the court in a tight enough way in the original decision. Second, SCOTUS may buy the argument that there is no harm in waiting. As to this second point, a plausible argument is that there is MUCH harm in waiting. In the meantime, more people are languishing without appropriate care and any time wasted is time during which unnecessary ailments and deaths may occur.

We'll be keeping a close watch on these proceedings and reporting on developments.

Thursday, September 3, 2009

The Partisan Paradox: Why No "Texas Correctional Crisis"

It's always refreshing to take a look at our correctional mess from the outside. Yesterday, Scott Hanson, over at Grits for Breakfast, commented on our crisis, explaining "why Texas didn't go there".

Ironically, California may be suffering because it's trying to confront this problem with a Democratic majority. The turning point for Texas' prison system came in 2003, when Republicans found themselves in charge of both chambers of the Texas Legislature for the first time since Reconstruction. That year, Speaker Tom Craddick named Ray Allen from Grand Prairie House Corrections chair, and Allen was immediately confronted with projections that Texas' already full prisons would require billions in new construction to keep up their astronomical growth rate.

[R]educing incarceration by diverting offenders to probation and keeping more of them there until they're off supervision - became the central strategy Texas employed to reduce incarceration growth. In 2005, Jerry Madden became House Corrections chair and - along with the Democratic Criminal Justice Chairman in the Senate, John Whitmire - sponsored legislation to revamp probation in order to provide more meaningful supervision (especially through reduced caseloads) and alternatives to incarceration, but leaving sentence lengths, at least on the books, alone.

I wonder whether a Republican majority in the CA legislature would be the ticket to resolve this; that is, whether such a majority would have a sense of responsibility for responding to the crisis and therefore come up with good solutions. We have seen quite a few examples of nonpartisan initiatives to save system costs by avoiding death row expansion, legalizing marijuana, and the like. The thing to remember is that the big architects of large-scale historical decarceration efforts have been, traditionally, conservative politicians. I strongly recommend reading Kathlyn Taylor Gaubatz's interesting book Crime in the Public Mind, which mentions, among many other interesting things:

Few may remember, however, that Ronald Reagan was not always the standard bearer of the get-tough movement. In an account of changes in California's criminal justice system, Caleb Foote writes that "during Ronald Reagan's tenure as governor, his administration first ordered the [Adult] Authority, as an economy measure, to reduce prison population by increasing parole release rates, a policy which enabled the state to close one prison and underpopulate San Quentin and some other prisons. Then the Reagan administration, attacked from the southland for being soft on crime . . ., reversed course and ordered the Authority to tighten ship." We know that the tides of public opinion began their harsh upswing during the years of Reagan's first governorship, and here is a revelation that his actions as a political leader were not always oriented to a crackdown on crime.

Good morning, and good luck.

Tuesday, September 1, 2009

Dominick Dunne and the Punitive Victim Model

Amidst the budget developments, CJC news, and other pressing events, it is worthwhile to pause for a minute and reflect on Dominick Dunne's recent passing. Others have done a better job at discussing his life, work, and legacy as a journalist and author; I would like to spend a bit of time discussing the victim paradigm advocated by Dunne, its impact on the criminal justice system, and some lessons to be learned from the combination of society intrigue and justice administration.

In a 1999 article, Kent Roach details four models of the criminal process. He supplements the original two models provided by Herbert Packer in a classic piece with two newer ones, arguing that the original models - the crime control model and the due process model - did not account for victims and for the victimization experience. Roach proceeds to provide two versions of criminal justice that include and respect victims: the punitive and non-punitive victim models.

The punitive victim model, argues Roach, is like a rollercoaster. Fuelled by victim advocates and organizations, it features constant pressure to amend criminal provisions in punitive directions, ratcheting up sentences and generating specific regimes to deal with crimes that are prone to moral panic. Calls for victim rights are invariably accompanied by calls for changes in penal policy. A classic example of legislation in this vein is last November's Proposition 9.

Dominick Dunne's work was a contribution to this punitive victim perspective. His writings on celebrity trials often protested what he perceived as horrible crime going unadressed and powerful defendants escaping the system unscathed. In reporting on such cases, he may have found some peace after his horrible ordeal. But when I came across his pieces, on occasion, I have always found them incredibly sad, and have often thought whether he would have found more solace in embracing something akin to Roach's non-punitive victim model, which consists of ways to reconcile, restore, and make amends.

There is, however, an important message to be taken from Dunne's work, though it was never an explicit part of his writings. His pieces, it should be remembered, focused often on upper-crust socialite defendants. In highlighting the ways in which power and social advantage works to thwart the criminal process, he could have drawn a contrast between these rare cases and the cases that constitute the vast majority of courtroom caseload. We can draw these parallels ourselves, though, and contemplate the disadvantages and difficulties of those for whom the process is the punishment, rather than an inconvenience that can be resolved with financial resources.

More on the Garrido Horror and on the Assembly's Decision

The new coverage today of the Assembly's downsized inmate release plan has been even more disheartening than the original reports. Gone is the hope for a sentencing commission that would make sense out of our patchwork sentencing regime. What gets to me today, however, are the readers' comments to the Chron report. Here is one such example:

We need the names of those released, so the Democrats can be held personally responsible when these criminals rob, rape, and murder the tax-paying citizens of California.

As countless studies have recently shown, when the public is educated about sentencing alternatives and costs, there is much less punitivism. What is going on, then? Well, apparently many Californians see the image of Phillip Garrido, Jaycee Lee Dugard's kidnapper and tormentor, when they think of these released inmates -- disregarding (or not knowing) the actual details of the plan, which would lead to the release of non-violent inmates, and probably not of sex offenders. This trend would be in keeping with the tradition of generalizing punitive opinions from rare, outlying, sensational cases. The victims' names on invasive, punitive litigation initiatives are sad memorials - the legal equivalent to the Mexican descansos - of horrible, yet uncommon tragedies, commemorated in an unsuitable way. But rather than a flower wreath or a wooden cross on the side of the road, these sad memorials derail our policies in the majority of cases that do not follow those patterns.

Incidentally, the institutional embarrassment of Garrido's unspeakable crimes while under supervision may have led CDCR to publicize the part played by parole officers in his capture. My colleague Jonathan Simon, over at Governing Through Crime, has some interesting thoughts to offer on the fallacy behind the assumption that the typical protocols of supervision would have led to Garrido's capture. And I would like to add, for those who insist to generalize from atypical cases, the Garrido case might be a lesson about the futility of universal parole, and an argument on behalf of limiting its scope.