Killer Counties: Los Angeles, Orange and Riverside

The ACLU's new report, Death in Decline '09, provides a mix of good and bad news.

The tide is turning in the United States from death sentences to permanent imprisonment. A growing number of states are choosing permanent imprisonment over the death penalty, fueled by growing concerns about the wrongful conviction of innocent people and the high costs of the death penalty in comparison to permanent imprisonment. In 2009, the number of new death sentences nationwide reached the lowest level since the death penalty was reinstated in 1976. California lags behind in this national trend. The Golden State sent more people to death row last year than in the seven preceding years. By the close of 2009, California’s death row was the largest and most costly in the United States. But the aggressive pursuit of the death penalty in California is limited to a few “Killer Counties.” In fact, nearly all of California’s 58 counties have, in practice, replaced the death penalty with permanent imprisonment, mirroring the nationwide trends. Only three counties—Los Angeles, Orange and Riverside—accounted for 83% of death sentences in 2009. Together, these “Killer Counties” sentenced more people to die in 2009 than did the entire state each year from 2002 to 2008. The increase in death sentences in 2009 was most stark in Los Angeles County. With 13 death sentences, Los Angeles County sent more people to death row in 2009 than any year this decade—more than the entire state of Texas for the same period—making Los Angeles the leading death penalty county in the country.

While the report focuses, among other issues, on the racial trends of these recent death sentences, and particularly, the overrepresentation of Latinos, it also puts a humonetarian spin on it, mentioning the fact that California's financial situation should make this countertrend a cause for concern.

Free

Tonight's Passover, a holiday of freedom.

This Spring and onward, may we all be free to sit on city sidewalks without being cited or arrested.
May we be free to choose a rewarding, enriching life path, without poverty constraints.

May we be free from victimization and domestic violence.

May we be free from draconian legislation, excessive mandatory minimums, and the Three Strikes Law.
May we be free to provide for our families and to live with dignity, honor and good health.
May those of us who work in the law enforcement system be free to connect with our community and help it without animosity and danger.
May the prosecutors among us be free to do our jobs exercising discretion and compassion, released from constraining legislation and a punitive organizational culture.
May the defense attorneys among us be free to provide our clients with the best representation, released from budgetary constraints.
May those of us who work in corrections be free to do a correctional job that respects our safety and the human dignity of the people entrusted to our care.
May those of us within walls be free from prison rape and abuse.
May those of us within walls be free from boredom, narcotics, the endless chatter on TV.
May we be free to choose education, vocational programs, and avenues of life within walls that will help us rebuild bridges with our loved ones outside upon our release.
May those of us in juvenile care be free to choose a bright future.
May those of us who work in parole be free to furnish our parolees with hope and possibility, rather than oppression and supervision.
May those of us on early releases be free to rebuild our lives.
May those of us who have just been released from prison be free to find a home and a job without discrimination.
May all of us, as a society, be free from prejudices, biases, and irrational fears of the "other".

The CCC Blog wishes you all a happy Passover.

Receiver Advocates Medical Parole

Clark Kelso encourages voters to endorse medical parole for chronically ill inmates as a measure for significantly reducing expenditures on the prison health system. This morning's Sac Bee reports:

"I am keenly aware, as are the courts," Kelso said, "that a dollar that we can save in the prison health care program is a dollar that can be spent on other important priorities for the state, such as education, money for children, the elderly, other health care programs."

An aide in Kelso's office said that, conservatively, the prison system could save $213 million over five years by paroling just 32 inmates identified as severely incapacitated.

Twenty-one of those 32 inmates are in nursing facilities or hospitals outside prisons, which requires spending for expensive guard time – including overtime – as well as huge health care costs.

These 21 inmates' average annual health care and guard costs total more than $1.97 million apiece – a total of $41.4 million a year for 21 individuals, said Kelso aide Luis Patiño.

The bill was introduced by Mark Leno. Interestingly, the bill would do something else that reverses a 40-year trend: it would give parole boards some of their power and discretion back. Medical releases would depend on a parole board determination that the inmate no longer poses a danger to society due to his or her medical condition.

As I told my students last week, one of the most significant implications of the shift from indeterminate to determinate sentencing was a shift in power within the system. The most noticeable effect of this change was the transfer of power from judges to prosecutors and legislators; determinate sentencing "locked" the defendants into a sentence based on the charge, and therefore awarded prosecutors a powerful bargaining chip in deciding which offense to charge. However, these changes were accompanied by "truth in sentencing" laws, requiring that inmates serve the majority of their sentence, stripping the parole board from its previously immense power to assess rehabilitation and risk.

It seems that the new proposal would reinfuse parole boards with some of that discretion, but keep it within reasonable boundaries. The concern about disparities and inconsistent criteria for release is significantly narrowed when the parole board has to hear evidence from doctors about the extent to which a certain inmate might be incapacitated due to his or her illness. This seems to be a not-unreasonable assessment, especially since much of the argument against early releases has to do with the concern about putting violent, dangerous people back on the streets. If someone's illness renders him or her non-dangerous, the only argument remaining for keeping them behind bars is retribution. And the question is whether we can afford pure retribution, as things stand today.

BREAKING NEWS: 9th Circuit Affirms Karlton Decision in Valdivia

Today, the 9th Circuit ruled in Valdivia v. Schwarzenegger. Our original coverage of the case is here and the full decision can be read here.

More expansion on this over the weekend, but the bottom line is:

1) Admissibility of hearsay in parole revocation hearings is still subject to the Comito rule, that is, the need to decide whether to hear the hearsay evidence based on a determination on its importance and the circumstances. Valdivia 1, Schwarzenegger 0.

2) Conflicts between Prop 9 and the court injunction in Valdivia: The case is remanded for the District Court's determination which aspects of Prop 9 violate constitutional rights. This one is a bit more complicated, and it seems that the next move would be the state submitting a plan to the District Court (which they could've done before).

Humonetarianism in Cuts: Voters Concede to Prison and Park Cuts

Today's Chron reported about a field poll conducted in CA in early March. Respondents were required to suggest areas suitable for spending cuts. Almost no public service was mentioned, which is not surprising (and is the reason why policymakers are better than the public in thinking budget issues through!), the public did mention only two areas in which the state should cut spending:

The survey found 56 percent of voters polled support cuts to state prisons and correctional facilities, and 52 percent support cuts to state parks and recreational facilities. Also, 48 percent support cuts to environmental regulations, and 48 percent would cut public transit.

Gov. Arnold Schwarzenegger's budget proposal for next year actually satisfies the top preferences of those surveyed. He has proposed an $811 million cut in prison health care spending and the elimination of spending on parks. He suggests replacing the $140 million to parks with money generated by a lease for oil drilling off the coast of Santa Barbara.

Still, if those two cuts are enacted, they would amount to less than 5 percent of the overall budget shortfall.

The question is, of course, what aspect of prison spending the public would be comfortable with. Would it include rehabilitation and reentry programs? Would the public approve of the suggested health care cuts? How would the public feel if no new prisons were built? Or, does this support extend to decriminalization, early releases, and parole reform, for saving purposes? Some research we discussed elsewhere suggests that budgetary concerns would lead the public to support such reform, but this poll, apparently, was concerned with the entire budget and therefore did not go into detail.

California Humonetarianism Hits the NYT

The developments and reforms in California corrections have drawn attention nationwide. Yesterday's New York Times included this story, which summarizes the recent developments in terms of prison releases and parole reform. The piece includes some data on the new releases, as well as reports of the backlash which we covered here several weeks ago, and some interviews with Mark Leno, Joan Petersilia, and others. The whole thing is an interesting read, but here's what grabbed me in particular:

Eric Susie, 24, recently had his parole terms readjusted under the new law. Mr. Susie had served 13 months in prison for possessing an M-80 firecracker wrapped with razors near a school (he argued, unsuccessfully, that it belonged to a friend).

Now, more than a year out of prison, he no longer reports to a parole officer or submits to monthly drug tests and can travel more freely, including out of state to visit family in Las Vegas.

“I feel like I am finally free,” Mr. Susie said. “I feel like I don’t have that monkey on my back, like being a prisoner. I feel like I am a human being and can get my life together.”

Even the guards’ union, which so heavily promoted and supported the tough sentencing of the past that fueled the prison building and expansion boom, now says it supports the idea of alternatives to prison and did not publicly object to the new law.

The overcrowding, union officials now say, poses a physical threat to its members, and the union has sided with plaintiffs battling in federal court to force even greater reductions of 40,000 inmates over the next two years.

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Merci a mon ami en Maisons-Alfort, Simon Grivet, pour le liaison.

"Tough on crime" -> violence -> incarceration

According to this new report from the Urban Health Research Institute, drug prohibition and mandatory minimums lead to violence... even in Canada. This is strong evidence that some Californian attempts to deter crime actually increase crime, worsening the correctional crisis. Even if you don't have time to read it, I recommend at least checking out their executive summary here.

Mentally Ill Jail Inmates in San Francisco

This morning's Chron features a piece about mentally ill jail inmates in San Francisco.

Due to a severe reduction in beds, both public and private, for acute treatment, San Francisco is paying a huge price.

Those not given treatment and care are spun out to the streets, often ending up in the criminal justice system. Many ultimately go to state prisons. They are the homeless who live and beg on our streets, consumers of street drugs and both victims and perpetrators of street crime.

. . .

Police bring disturbed individuals to San Francisco General Hospital's Psych Emergency Services. In 2007, the hospital had 87 locked ward beds. The 2010 budget would convert them to 22 acute beds and 36 sub-acute beds. Acute wards are locked wards with around-the-clock supervision, and provide an alternative to jail for the most severely ill persons, generally those with schizophrenia or bipolar illnesses, brought in by police under a 14-day hold permitted under state law and reimbursed by Medicare. Sub-acute wards are for those patients who are medically stabilized. For the seriously ill, an acute ward is the only alternative to jail.

The San Francisco Behavioral Health Court has been found to significantly reduce recidivism.

On Conspiracy Theories and the Prison Industrial Complex

Business Insider is not one of the usual places where I go for news, but I got there this morning via the Prison Law Blog. The newssite suggests that hedge funders like Bill Ackman might be displeased with the recently dropping prison rates. The reason? Counting on growing imprisonment rates, Ackman has invested heavily in Corrections Corporations of America. Here is his presentation on the company. One of the slides bears the title, "Tenants Unlikely to Default".

Bill Ackman's Presentation on Corrections Corp of America (CXW) @ the Value Investing Congress

Much has been written about the business aspect of prisons, and especially on privatization. The broader context is discussed in Nils Christie's Crime Control as Industry, which defines the prison system as a mechanism of "depersonalized pain delivery". A more personal-political statement, highlighting racial differences as well as the economic angle, can be found in Angela Davis' The Prison Industrial Complex. For our purposes, this is an important discussion to have when policymakers are contemplating contracts with CCA for out-of-state institutions as overcrowding relief. The question is whether it is accurate to see Bill Ackman's cost-benefit calculation as proof of an intentional conspiracy to keep the prison industry alive and well. And if so, who's in on the conspiracy?

My sense is that a more subtle and nuanced description will do better. While CDCR employment depends on prisons, not all CDCR employees cynically hope for overcrowded prisons. If anything, CCPOA decry prison overcrowding, if only because it makes the correctional staff's job more difficult. Yes, there are those who make profit off the size of our correctional apparatus. But it's important to distinguish actors with financial interests from actors within large bureaucracies who operate out of inertia, and some of whom probably rejoice in the news of population decline.

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cross-posted on PrawfsBlawg.

Prison Rape: NYRB Series and CA Report

I wanted to draw your attention to Sasha Natapoff's recent post on Prawfsblawg about prison rape. She links to a two-part essay in the New York Review of Books about the variation in state efforts to stop prison rape. I really recommend the post.

There is also a California angle: UC Irvine researchers at the Center for Evidence-Based Corrections prepared a 2007 report to CDCR about sexual assault in CA institutions. Conducting face-to-face interviews with 322 randomly-selected inmates, Val Jenness, et al., found great variance in the frequency of assaults: 4% of the interviewee sample reported being sexually assaulted in a CA institution, but the rates were much higher among special populations: 59% of transgender inmates reported abuse. While sexual assault was prevalent for almost all inmates, non-heterosexual inmates and Black inmates were considerable more vulnerable to sexual assault.. There was also a strong correlation between victimization and mental health problems. The report includes some details about the characteristics of incidents, notably the gang context of many incidents, and the difficulty in labeling incidents as coercive, as opposed to "part of prison life", even when all incidents invoke fear, self-blame, and subsequent problems. Jenness et al also address overcrowding as a contributing factor to sexual assault incidents.

Schwarzenegger Proposes UC Oversight over Prison Health System

The L.A. Times reports:

The arrangement, similar to a centralized system of managed care, would dramatically expand the use of telemedicine, a technique by which patients are seen by doctors in remote locations over a screen with an Internet connection. It would institute electronic record-keeping so providers could access medical information from anywhere.

And the plan, still being refined, could include the purchase or construction of a central hospital near several prison infirmaries for housing and treatment of the chronically sick. That would reduce the state's current -- and expensive -- practice of paying correctional officers overtime to transport and guard inmates at community hospitals around the state.

Thoughts?

New Bill introduced: Pregnant Inmates and Wards' Conditions

Assembly Bill 1900, authored by Assemblymember Nancy Skinner, advocates for special standards of care for pregnant inmates and wards.

There has been some attention to the particular circumstances of pregnancy within bars. This 2006 NYT article exposes some of the less pleasant aspects of care: women in labor kept in shackles, given no more than Tylenol, supposedly out of concerns of escape (though there aren't any known cases of women in labor escaping. Pregnant inmates experience particular challenges during their incarceration. High rates of drug abuse and addiction complicate medical treatment (also see here). In addition, pregnant inmates report traumatic family histories and require more assistance and support during their pregnancy. A 1997 study suggests that adequate shelter and nutritional support make a big difference in terms of birth outcomes among inmates.

The proposed bill would amend the CA Penal Code to require the usage of the least intrusive methods (consistent with public safety concerns) for restricting pregnant inmates or wards during transportation and incarceration. It also requires monitoring other conditions, such as offering nutritional support and counseling about pregnancy, birth, and childcare options. The Corrections Standards Authority would assume responsibility for the particulars and would consult with a variety of professionals before setting them. Some prohibited measures are listed in the bill (though it is not an exhaustive list): shackling the feet and hands, shackling across the body, or shackling to another inmate.

The bill comes before the Assembly's Public Safety Committee on March 30.

On a related topic, here's an interesting blog post from Feministing about inmates' access to abortion.

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Props to Ocean Mottley for alerting me to this.

2.5% Decline in CA Prison Population

For the first time in nearly 40 years, states see a decline in prison population, as reported by this new Pew report. The decline in California, though not the most impressive percentagewise (that honor falls to Rhode Island, per Jesse's post), is the largest in total numbers: we have shedded 4,257 prisoners in 2009. Compared to the total numbers we are dealing with, this is a modest beginning, but maybe the financial crisis will have a "humonetarian" impact after all. The report ascribes the reduction in California to a combination of the financial crisis and the development of intermediate sanctions for parole violators.

The number of federal prisoners, however, has increased.

Incidentally, check out the impressive 6.7% reduction in the Michigan inmate population. Ironically, Michigan's ability to do more about overcrowding than we do is what allows them to try and enter contracts to house our prisoners out of state. If we were able to do, in-state, what Michigan has done, we would have no need for Michigan's services.

RI Leads Nation in Reducing Incarceration

Adding to our last post on the new Pew study, as a transplanted Rhode Islander I was thrilled to see Pew report that Rhode Island now leads the states in prison population reduction. As Bruce's post reminds me, we never thought we'd see the day RI had fewer than 4,000 state prisoners. The RI General Assembly has recently eliminated mandatory minimum sentences for drug crimes, restoring judicial discretion. The Department of Corrections has increased sentence reductions for inmates' good behavior.

Last night, the RI Senate Committee on Marijuana Prohibition released its final report, and concluded its business by releasing its final report and voting to recommend that the legislature decriminalize marijuana. This change would result in vast savings: in 2009 RI arrested 2,546 people for first-time marijuana possession. According to re-entry institute OpenDoors's new report, in 2008 RI imprisoned 188 people and jailed 396--who spent a collective 2,366 days in jail.

Are We Focusing on Black Males?

The diagram on the left, taken from the Pew Center on the States' report on incarceration, breaks down the prison population by race. The results are rather startling, though by no means surprising to anyone following the crisis. What is interesting, though, is the fact that the data has propelled many critical thinkers to address the racial disparities, and not very many to examine the gender disparities.

It is a sobering statistic that one in nine black men aged 18-24 is in prison. And much energy has gone into explicating such disparities in a supposedly post-racial era. Some of the explanations have to do with criminalization and police control, and some offer cultural explanations; this book, which I haven't read yet (but I will!) seems like it would make an interesting read. This Chron piece from 2007, which is the first reading on my criminology syllabus, is a classic example of the mix of explanations our society offers for these stark racial disparities. One of the most interesting thing about it is observing how professionals make meaning of the connection between race and gang culture: cops mention a lack of morality and values, social workers mention the lack of father figures, some inmates tell of powerful socialization mechanisms. It is a fascinating topic that has received plenty of attention.

One interesting thing I have come across recently is Saperstein and Penner's study of incarceration and race perception (I found it through this excellent post on the equally-excellent Racism Review). Interestingly, Saperstein and Penner found that--

NLSY participants who self-identified as European American in 1979 were significantly more likely to self-identify as black in 2002 if they had been incarcerated compared with those who had not been incarcerated. As Saperstein and Penner report, “these findings demonstrate . . . that incarceration leads to changes in racial self-identification and the effect operates primarily through making individuals see themselves as not quite white. To put this into perspective, consider that currently nearly 6 million people in the United States have been incarcerated . . . Based on our results, we would expect that more than 250,000 previously incarcerated individuals no longer identify as white as a result of their incarceration” (p. 103).

Saperstein and Penner also found that interviewers were more likely to change the racial/ethnic classification of NLSY respondents if the respondent was currently or had been incarcerated since the time of the last survey – and the change they made was to “darken” incarcerated respondents. That is, respondents who had been classified by interviewers as white prior to incarceration were more likely to be classified by interviewers as black once they were incarcerated.

This self-identification of the African American community with the incarceration experience may have some seriously unsalubrious effects toward black women as well, says L'Heureux Lewis, assistant professor of sociology at the CUNY. In this NPR interview, he talks about black male privilege, especially vis-a-vis black women, and at the expense of victimization discourse. Black men's experience of racism and oppression, says Lewis, absolves them from the responsibility of supporting and respecting black women, and leads to irresponsible fatherhood and deplorable dating practices on the part of those who "survived the crisis" and managed to reach adulthood without having been to prison. In the interview, he mentions a sexual assault case on campus, in which popular discourse centered on the criminalization of black men rather than on the need to support the victims.

MARTIN: Whats driving this, in your view? Is it their idea that group solidarity is so important in the African-American community, somehow the community has made a decision that when theres an issue involving black men and black women that black men are to be favored?

Prof. LEWIS: I think youve unfortunately identified one of the central issues of black male privilege. So often, black men are used to being under attacked that when it comes to being accountable for the actions we may have, we quickly say, well, I couldnt possibly be doing anything wrong. Look at all the ways in which Im oppressed. Look at all the ways in which Im at the bottom of the barrel. What that does is rob us of an opportunity to actually build stronger community and it robs black men of a chance to actually take hold of the actions that they have so that we can empower the community.

Where to go from here? I don't know. It seems that any anti-punitivist sentiments stemming from humonetarianism don't really address the racial disparity problem at a deep level. Blame games and debates about responsibility for the disparities seem unproductive. There has to be a way to generate better, forward-looking discourse about this, as well as about re-entry programs tailored for the needs of specific communities.

Labeling Theory 2: Socialization, Total Institutions, and Re-Entry

(images courtesy the Stanford Prison Experment slideshow)

In 1971, a group of social psychologists including Philip Zimbardo and Craig Haney embarked upon a creative, groundbreaking experiment, which would be cited and referred to for years to come. They hoped to study the psychological effects of imprisonment.

For that purpose, they converted the Stanford Psychology Department's basement into a prison, complete with cells, and monitored by cameras. They recruited male college students, who completed a battery of personality tests, and randomly assigned them to two groups: guards and inmates. At the beginning of the study, there were no detectable personality differences between the participants in each group.

The "guards" (depicted in the bottom image) were instructed to maintain discipline in any way they saw fit, excluding physical violence. The "inmates" went home, and later were "arrested" at home with a police car, brought to a police station, and placed in prison after having undergone a series of booking procedures, which included being assigned a number and special clothes (depicted in the top image). Zimbardo assigned himself the rank of warden, set the guards loose on the prisoners, and the experiment was to run for two weeks.

The research team had to stop the experiment after six days.

The details of what happened are absolutely fascinating, and I strongly recommend following them in this slideshow, or watching the excellent documentary Quiet Rage, which contains footage from the experiment. But the bottom line was that, once in role, both guards and inmates quickly socialized into their roles, and the research team feared the ramifications of the guards' increasing cruelty and the inmates' psychological situation. Despite the fact that the guard and inmate groups were psychologically indistinguishable from each other at the beginning of the experiment, as days went by participants strongly socialized into their roles.

Erving Goffman, who studied roles and status, was a big influence on the Stanford experiment team, as well as on labeling theorists. One of his best-known books, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates, examined how people are socialized into their roles as inmates in enclosed social settings that he named "total institutions". A total institution is a place in which all aspects of life are governed by the institution, there is a strong hierarchy, impermeable boundaries between the inmates and the staff, and your status as an inmate becomes the central aspect of your life. Prisons are an excellent example.

During the 1960s and 1970s, prison researchers found that the entrance rituals into prison, as well as the experience itself, makes inmates strongly identify with their inmate identity. In other words, being an inmate becomes one's "master status", overshadowing other roles and identities that the person has, such as being a father, a friend, an employee, etc. One of the main obstacles to reentry after release from prison is the persistent stigma generated by this master status. The challenge of this status lies not only in how others perceive you, but also, as the Stanford experiment teaches us, in how you perceive yourself.

These days, my colleague Lior Gideon and I are conducting a survey of Californians regarding their opinions about redeemability of formerly incarcerated people, and the extent to which they believe in rehabilitation. While the results might reflect a variety of considerations, such as cost, political opinion, fear of crime, and demographic factors, they might also reflect the public perception--shared by the inmates themselves--that "once an inmate, always an inmate". One of the important things to take into account when planning re-entry programs is finding creative ways to shed this stigma, persistent as it is, and move on.

Labeling Theory 1: Criminalization and the Sit/Lie Ordinance

(image courtesy San Francisco Chronicle)

Next week, my Theoretical Criminology class will discuss labeling theory in criminology. Critiqued by some later theorists for its naïvete, I actually find it very useful for explaining crime and social control, often more so than its more structured theoretical counterparts.

Labeling theory was a break from the criminological scholarship that preceded it in that it did not try to explain crime through criminal propensity. Rather than ask the question, "why do people commit crime?", which assumes a consensus about the definition of crime, labeling theorists chose to ask, "how do certain behaviors come to be defined as crime?". Social deviance, as some theorists suggested, is in the eye of the beholder; once a certain social group succeeds in labeling a certain set of behaviors as crime, we come to see the people who engage in that behavior as criminals. And, sometimes, they come to see themselves as criminals.

The sit/lie ordinance is a case in point. Haight Ashbury, the neighborhood that prompted Mayor Newsom's enthusiasm for the new ordinance, gets its special character from its 1960s heritage as the cradle of the hippie movement and free love. Back in the sixties, the first generation of hippies forming communes and challenging conventional culture were seen as deviants, but their impact on the city's culture, and beyond, was immense. Today, the tie-dye clothes and head shops are mostly mementos of a time past, and our attitude toward the youth on the sidewalk has also transformed. If the behavior is the same, why the change in attitude?

Labeling theory sees the social order as conflict between different groups, all racing to impose their values on society by labeling the behaviors they see as problematic as crime. In this case, business owners at the Haight, and politicians running for office, have incentives to label the sidewalk dwellers as criminals and treat them as such. Greg Kamin's review of the police commission meeting about the sit-lie ordinance is an excellent demonstration of this principle: different stakeholders in the city coming together to fight over labeling this behavior. While the issues at stake are clearly political and ideological, using the law, and particularly the criminal apparatus, to enforce such views is a powerful strategy. After all, the law is seemingly universal in its application: Everyone, not only runaway youth and homeless people, will be forbidden from sitting on the sidewalk, n'est ces pas? As Anatole France said in 1874, "[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

Watch this space tomorrow for more on labeling theory.

Narrow Coalitions? CCPOA's Blueprint for Prison Reform

The CCPOA website features, these days, their statement on prison reform. Prison activists might find, to their possible surprise, that there are some issues on which a narrow coalition can be formed. Granted, CCPOA supports building more prisons under AB900, but they are also staunch supporters of a sentencing commission, strongly support parole reform, and bemoan the lack of rehabilitation programs in prison. The document makes for an interesting read.

Let's Criminalize Something: The Quality of Life Edition

This week's posts seem like an endless stream of complaints about various futile criminalization efforts. Today's contribution has to do with the recently proposed San Francisco "sit-lie" ordinance. Proposed by Mayor Newsom after a stroll with his baby on Haight, the ordinance would forbid sitting or lying on public sidewalks within the city of San Francisco.

The public discourse about this has centered on the question of criminalization of the poor. Beyond that question, which obviously has to do with the ideological divides in the city, I would like to bring once more, with your permission, gentle reader, the question of enforceability and benefit.

As characterized by Nevius (critiquing Jeff Adachi), the proposal "would restrict sitting or lying on public sidewalks anywhere in the city between 7 a.m. and 11 p.m. First-time violators would be warned to move, then could receive a citation with a $50 to $100 fine. The second violation could result in 10 days in jail or a fine of $300 to $500, and each violation after that would be subject to a $500 fine and 30 days in jail." Since the targeted offenders would, for the most part, be unable to pay the fine, they'd be shunted to court, where the case would be closed or diverted to the Community Justice Center or to the Mental Health Court, where the same population could end up anyway, for the exact same reasons, if prosecuted for one of the following violations of the already existing San Francisco Police Code, Article 2:

120-2: Aggressive Solicitation
122: Aggressive Pursuit
124.2: Loitering

Why do we need yet another low-level municipal law for people who are easy to tangle in the law enforcement web anyway, if we really want to entangle then in it? Could this be yet *another* politically-motivated symbolic piece of useless legislation? I leave that to you, gentle reader.

Oh, and if anyone feels that this piece of legislation might be a waste of precious policymaking time, it appears you'll have a chance to speak up today at the police commission meeting.

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Props to Michael Mutalipassi for digging out the police code provisions.

Residence Restriction for Sex Offenders violated... in Piedmont

(image courtesy the City of Piedmont official website)

There is so much going on in this New York Times piece, I hardly know where to begin.

A convicted sex offender has moved into a home across the street from Wildwood Elementary School in Piedmont, infuriating parents, who are asking school officials and the police why the 2006 state law mandating a minimum distance of 2,000 feet between schools and the residences of sex offenders is not being enforced.

But the Piedmont police, on the advice of county and state law enforcement officials, say there is nothing they can do.

As it turns out, the 2,000 feet requirement is unenforceable, because while it contains ex-ante provisions, it does not include an ex-post sanction for violators. This sort of legislation--like the one we showcased earlier today--screams symbolism, demonization, and electoral appeal, rather than practicality and prevention.

The story itself includes all the elements of sex offender policy and panic: a horrible redball crime discovered that inflames the discussion, an account of the unintended negative consequences of the law (many transient registered sex offenders), and plenty of interviews with concerned parents. Note these interesting comments, including the neighbor's paternalist concern for the registered offender himself:

District Attorney O’Malley, who sits on the management board, said officials across the state spent a disproportionate amount of time on where registered sex offenders lived.

“With Jessica’s Law, the residency restriction component has been an enormous challenge,” she said, adding, “It has probably taken up a huge portion of our time and attention over the last year in just trying to figure out how to support locals to keep their communities safe.”

John McWeeny, who lives adjacent to Ms. McCaffrey, said that as a neighbor and parent of two children who attend Wildwood Elementary, he was “disturbed” by the situation.

“A hundred kids probably walk by these houses every day on their way to and from school,” Mr. McWeeny said. “You could throw a rock from here and hit it. This can’t be a good environment for him either.”

And then we have another usual component of these stories: both parties--the sex offender and his neighbors--confounding pedophilia with child porn, and confounding both of these with homosexuality. I can't possibly quote it all here.

But this story also includes a prominent class element. The setting for this community affair is the affluent Piedmont neighborhood, the images of which are on the heading of this post. As it turns out, the only place where there sex offenders can live in compliance with the Jessica's Law 2000 requirement is Hunters Point.


(image courtesy the Examiner)

It is a sad commentary on the Bay Area, that the school requirement is a good index for the relative affluence of the different vicinities. And an even sadder aspect of it is that Hunters Point becomes a site of banishment for sex offenders, driven away from the more affluent communities.

Not surprisingly, there is commentary from George Runner, who has plenty of experience generating "not in our backyard" class-based banishment of released inmates:

State Senator George C. Runner, Republican of Lancaster and an author of the proposition, bristled at the idea that it was inadequate. The Piedmont situation is “outrageous,” Mr. Runner said, but he rejected the idea that the law was to blame.

Parole officers had the responsibility for ensuring adherence with the law, he said.

Mr. Runner also suggested that the law should be enforced at the local, not state, level — which in this case would mean that it fell to the Piedmont City Council to address the situation.

Sometimes I just don't know what more to say; this is really a textbook example of doing everything as badly as possible. Public safety isn't helped. The symbolic, futile, unenforceable message is thwarted and becomes a vehicle of hate. Class differences raise their ugly head, spearheaded by politicians whose allegiances are defined by class and locale. Different issues, which require different treatment, get mixed up with each other. The entire affair reminded me very much of a scene in the excellent 2006 movie Little Children, based on Tom Perrotta's excellent novel. In this particular scene, Ronnie, a registered sex offender well known to the parents of this affluent suburb, goes to the pool on a hot day. The movie does not take sides with regard to registration; Ronnie is a fairly sinister, albeit miserable and pitiable, character. Note the complexity and the subtlety of the movie's portrayal of community panic, and the delicate hand with which it portrays the class aspect of the disturbing event. The police materializes within seconds; the community congregates around the swimming pool. What a powerful scene; it looks like something out of Durkheim or Kai Erikson.



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Props to David Greenberg for the NYT link.

New Sex Offender Law Proposal: Restriction from Social Networking Websites

Kamala Harris is proposing a new law that would forbid registered sex offenders from joining or maintaining accounts on social networking websites. Her website explains:

Today, one in five children have been sexually solicited online. Only 25 percent of those children ever told their parents.

Just since 2007, the number of users on social networking sites like MySpace, Facebook, and Bebo has doubled. An estimated 750,000 children between the ages of 8 and 12 use social networking websites, despite many of these sites' prohibition on child users. Many millions more teenagers use social networking websites as one of their primary mechanisms for social interactions with other teenagers or adults. Nearly 80 percent of teen users report that they are not careful about giving out personal information online.

Currently, there is no prohibition for registered sex offenders on using social networking Internet websites. AB 2208 will prohibit any registered sex offenders from using any Internet social networking website, requiring all offenders to sign this prohibition in writing at the time of their registration. A violation of this law would be a misdemeanor punishable by imprisonment in a county jail for a period not exceeding six months, by a fine not exceeding one thousand dollars ($1,000), or by both imprisonment and fine.

If these stats are accurate, this is a grim picture indeed. There is some research out there about how the internet has changed our considerations about victim accessibility and grooming habits. And, according to researchers such as Ilene Berson, there needs to be more awareness of the way in which nonsexual "friending" can seamlessly become sexual grooming. However, resorting to legislation as a solution in this case seems extremely problematic. Rather than resort to cynicism regarding the role of sex offender legislation in electoral campaigns, I think it's more interesting to take this thing at face value and think about the implications. The first thing that comes to mind is a constitutional challenge. Unless some readers believe that potential people subjected to this requirement have a plausible First Amendment argument, I don't think this will practically hold water. Even if one's freedom of expression includes the right to register for Facebook, it is unlikely that any judicial forum in today's political reality will think these rights overweigh the risk to children (assuming the stats are true; I confess I didn't check). Previous challenges to sex offender post-sentence regulation consistently passed constitutional muster, and this one will probably pass it as well.

The more interesting question, to me, is that of enforceability. How can one effectively monitor who does or does not log onto a social networking website? After all, you can register with an alias, and in some cases, join chat rooms as a guest without registering. Facebook doesn't verify your identity or your picture. The only time this might become an issue is if a child complains about being harrassed or propositioned online. Given the underreporting problem mentioned by Harris, this might not yield as much information as law enforcement would like. And when there is a report, the police could investigate and the prosecution could charge with various offenses involving harrassing minors.

Which brings me back to the discussion I didn't want to pursue: given the unenforceability problems, is this a piece of symbolic legislation used as yet another "tough on crime" tool in an electoral campaign? Your thoughts appreciated.

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Cross-posted on PrawfsBlawg. Props to Jeremy Seymour for alerting me to this.

Early Releases Nationwide: The Policy, The Backlash

Yesterday's New York Times reported that the Californian trend is not unique. Many states find themselves recurring to early releases, good time credits, and other mechanisms, in an attempt to save money. The interesting part of the article pertains to the backlash against early releases in Oregon and Michigan; the examples in the article are, of course, of convicted sex offenders.

Happy Birthday, Community Justice Center

The Collaborative Courts blog Moving Justice Forward features a "birthday post" for the Community Justice Center. Handling serious felony cases as well as quality-of-life offenses, the court engages its clientele in services, many of which have to do with drug treatment or housing. In its first year, the court has handled 1,800 defendants. Given the critique in its early days, the post also mentions the high appearance rate.

The high percentage of felonies handled at the CJC has been a bone of contention between the court and the San Francisco Public Defender, who does not staff the court. As a message to the attorneys who work the court--many talented law students with a strong commitment to public service are graduating this Spring, and many who graduated last year with excellent grades and impressive achievements are still looking for work. Please consider sharing the work with them.

RI bill to tax®ulate marijuana

Californians are trying to tax and regulate marijuana, through such measures as the Tax Cannabis 2010 ballot initiative and Assm. Tom Ammiano's AB 2254. Meanwhile, legislators in the Rhode Island House of Representatives have also introduced a bill to legalize marijuana; text here: http://www.rilin.state.ri.us/BillText/BillText10/HouseText10/H7838.htm. H7838 would regulate marijuana wholesalers, retailers, and home-cultivators, and set a tax of $50/ounce like CA AB2254. Looks like there's a race on to see who can begin reaping tax revenues, first: at least 6 states (California, Rhode Island, Colorado, Washington, Oregon, Nevada) will consider taxing and regulating marijuana by the end of 2012. H7838 specifically invokes corrections/enforcement savings as a reason for regulating marijuana: "There were more than 847,000 arrests for marijuana offenses in the US in 2008, which is more than Rhode Island's entire adult population."

The Role of Cost in Anti-Death-Penalty Rhetoric

Elsewhere, we discussed the recent moratoria on executions, as well as ALI's retraction of support for the death penalty and its abolition in New Mexico. These trends are undoubtedly linked to the financial crisis. Today's question--and maybe our readers have some thoughts on this--is whether anti-death-penalty activists are making the most of the scarcity-related genre of arguments against the death penalty. There seems to be some evidence that they are.

Broadly speaking, we can classify anti-death-penalty arguments into three groups:

1. Value concerns: this is a broad family of arguments, which include not only the broad issue of the appropriateness of the state's killing of its own citizens, but also doubts about its deterrent effect, as well as concerns about the inequities associated with the death penalty (such as the overrepresentation of minorities);
2. Innocence concerns: featuring cases of wrongful convictions and executions, the death penalty's irreversibility plays an important part.
3. Cost concerns.

There's hardly any doubt that cost-related concerns figure prominently in the discourse nowadays. Mike Farrell's post this weekend on The Huffington Post places particular emphasis on the cost argument. The Death Penalty Information Center also seems to highlight this argument in their publications. What I don't know, and would very much like to find out, is whether this is a new phenomenon, generated by the financial crisis, or whether previous installments of the death penalty debate also featured cost-related arguments. My (unproven) hypothesis is that there would be evidence of all three arguments throughout the debate, but that the focus of the debate has shifted from value concerns (which were always discussed) to innocence concerns (whose importance probably increased with the introduction of DNA testing) to cost concerns. I guess the way to figure this out is to go back to activist literature from before the 1970s and spend some time "counting" reasons in articles. Your thoughts on this, as well as on the effectiveness of cost-related arguments in this debate, are welcome.

Leaniency: The Criminal Process in Times of Scarcity

As regular readers probably know, I have been thinking a lot about the many ways in which the financial crisis has shaped changes in the criminal process. Most of my energy was devoted, recently, to thinking about its impact on the correctional apparatus; in my article Humonetarianism: The New Correctional Discourse of Scarcity (which I started shaping on this very blog!) I argued that the crisis provided a rare opportunity to revisit a forty-year-old punitiveness wave; it gave politicians permission to adopt non-punitive policies with less concerns about appearing "soft on crime". The most striking example of this is the passage of the (admittedly watered-down version of) Governor Schwarzenegger's early release plan, based on comprehensive parole reform and good credits.

This does not mean, of course, that the considerations behind our correctional policy have really become less punitive in any deep or meaningful way. Our discourse has not fundamentally changed; moreover, the solutions we have approved are far from being systematic. California still does not have a sentencing commission. Various serious concerns about prison overcrowding, such as the overrepresentation of minorities, have not been properly addressed. Not much consideration, if any, has been given to the aims of punishment with regard to old and infirm inmates (beyond the issue of cost of their medical expenses). Nevertheless, as studies in punitivism repeatedly show, the public tends to be much less punitive in surveys and experiments when presented with the costs of punishment.

Keeping track of humonetarianism made me more aware of the impact of cost and scarcity on other stages of the criminal process. And, indeed, there is some evidence of crisis-mode budgeting which is changing the nature of the criminal process. This is not real leniency or a turn away from severity, but it often manifests itself in the way of decriminalization, changes in prosecutorial policies, etc, among other phenomena. Which is why I call it "leaniency". One glaring example is the fact that, perhaps for the first time, there is a real chance that California voters might legalize marijuana. As I recently found out from Quintin Mecke, who is Assemblyman Tom Ammiano's Communications Director (who spoke recently at Hastings), they've been seeing increased support of their marijuana legalization/regulation proposal in polls whenever they link it with taxation and increased revenue for the state from marijuana sales.

Other aspects of leaniency have to do with the decreased budgets of the police, prosecution, and defense. All these agencies have to adopt lean, smart policies about work if they are to survive. Beyond the hiring crisis in D.A. and P.D. offices, there is evidence that prosecutorial policies have changed to allow less cases into the criminal process; in some counties, some offenses are not being charged. Public Defenders focus their efforts on cheaper case management, avoiding involvement in mechanisms such as problem solving courts, which tend to suck up resources and time. Has there been an increase in plea bargains? I have no idea, but I would not be surprised if there has. In what other ways is a cheap criminal process different? Is it merely an updated version of Herbert Packer's crime control model, or is something else going on? Your comments appreciated.