Death Penalty and the Budget

Today's Huffington Post features a post by James Clark from ACLU of Northern California, making a budgetary argument on behalf of abolishing the death penalty. We've discussed this angle elsewhere here and in print. Read the piece and watch the video.

The arguments in the video feature the narrow coalitions we discussed: victims and law enforcement agents, as well as exonerees.

Fewer inmates entering Md., Va. prisons

I'm reposting this article from The Washington Examiner because I was intrigued by the connection drawn between international interdiction efforts and local corrections statistics.

By Liz Essley

Special to The Washington Examiner

Maryland and Virginia kept fewer people behind bars last year, in step with a nationwide trend that saw the first drop in states' prison populations since 1972.

Maryland held 4.6 percent fewer prisoners in 2009 than in 2008 -- one of the biggest decreases in the United States -- and Virginia held 0.5 percent fewer.

Nationwide, states housed 0.2 percent fewer inmates, though the federal prison population grew by 3.4 percent.

"It absolutely is unprecedented. And that's what was shocking for us. Within the available data, going back 10 years, [prison population] had gone up for 10 years. The drop is absolutely unprecedented," said Baron Blakley, an expert with Virginia's Department of Criminal Justice Services.

Maryland's shift -- 1,069 fewer prisoners last year, leaving the state with 22,255 inmates -- probably reflects new policing policies in Baltimore, said Marty Burns, a spokeswoman for the Baltimore City State's Attorney's Office. About 30 percent of the state prison system's inmates come from Baltimore, he said.

The number of arrests in Baltimore dropped after 2007, when the police commissioner eliminated the city's "zero-tolerance" crime policy and police started concentrating on violent, repeat offenders, said Anthony Guglielmi, spokesman for the Baltimore Police Department.

In 2008 and 2009, there were 5 percent fewer arrests, Guglielmi said.

"When you're reducing the amount at the front of the pipeline, that ultimately will have an effect on the pipeline," Guglielmi said.

Other factors reducing the number of Baltimore arrests could be tighter budgets and fewer officers, Burns said.

In Virginia, experts say a reduction in cocaine availability is decreasing the number of state prisoners.

The state inmate population was 37,633 in May, down from 38,329 in July 2009.

A 30 percent drop in the number of felony drug arrests over the past few years drove the prison population decline, said Meredith Farrar-Owens, a member of the Virginia Criminal Sentencing Commission.

Police are arresting fewer people for felony drug offenses because cocaine has become less available, according to Blakley. The drug war in Mexico, increased coca eradication in Colombia and an expanding cocaine market in Europe mean less cocaine on the streets of Virginia, he said.

More Savings Measures: Prison Visitation Canceled, June 26-27

CDCR canceled visitations last weekend, in an effort to save money, as reported on the CDCR website:

Cancellation of visiting at each of California’s 33 adult prisons for a single weekend – June 26 and 27 – will save $400,000 in overtime to help resolve budget concerns as the fiscal year comes to an end. Legally mandated visiting, such as attorney visits, will continue uninterrupted.

CDCR also is implementing other cost saving measures to address the state’s fiscal crisis including: redirecting custody posts to essential positions when employees call in sick or there are other vacancies; a departmental hiring freeze; reducing costs and staffing at headquarters; delaying or cancelling purchases and contracts unless to do so would create a health or security risk; and cancelling all non-critical travel and training.

The department plans to return to a full visiting program beginning July 1, which is the beginning of the new fiscal year.

“Due to the state’s fiscal crisis, we have to make difficult choices to reduce operational costs this fiscal year in a number of areas, including the last weekend of visitation statewide,” said Terri McDonald, CDCR Chief Deputy Secretary of Adult Operations. “Because visitation impacts families directly, I have directed CDCR staff at the institutional level to ensure that inmate families and staff are notified of this decision.”

Aaron Vargas and the Limits of Accountability

(image courtesy the San Francisco Chronicle)

Yesterday's Chron covered the sentencing of Aaron Vargas, convicted of murdering his neighbor, Darrell McNeil. After the murder, allegations surfaced according to which McNeil had abused Vargas since the latter was a young boy. Vargas, who expressed regret about the killing and testified that he did not go into McNeil's home with the intent to shoot him to death, was supported throughout his trial by family and friends who put together a website and organized a petition on his behalf.

From the Chron piece:

Vargas' family and defense team had hoped he would be sentenced to the 16 months he has already served in county jail, plus probation, and go free Tuesday. They would have settled for perhaps a five-year sentence.

But they said they never thought he would get anything so close to the maximum 10 years in state prison available under the plea deal the former odd-job worker struck in April with the district attorney in exchange for pleading no contest to voluntary manslaughter. Prosecutors had sought 50 years to life in prison before the plea deal.

. . .

"I'm very satisfied with the sentence," said Assistant District Attorney Beth Norman. "This was a difficult case, and I don't think anybody could come away relieved."

Vargas argued that he hadn't intended to kill McNeill, just to scare him away from bothering him and his family. Judge Brown bought only part of it.

While expressing little doubt that Vargas was raped by McNeill, Brown said that "to grant probation in this case would put a stamp of approval on the defendant's actions, which I cannot do."

"The use of violence to correct a wrong only encourages more violence," the judge said.

This terrible tragedy raises important and difficult questions, which go to the core of how we define accountability, how we operationalize sympathy, and how we value human lives in comparison to each other. As we know, the establishment of guilt in a criminal trial is a binary decision - guilty/not guilty - and criminal defenses specify very narrow terms under which an otherwise criminal act is justified and excused. Having been abused in the past does not award a defendant a complete carte blanche; to be acquitted for self defense, the danger to the defendant must be immediate and grave. However, with sentencing or charging we can be more flexible and some states are more lenient toward convicted murderers who were abused by their victims in the past. This doctrine was developed as "battered woman syndrome" or PTSD under the umbrella of mental problems that do not amount to a full insanity defense. In this case, the social reaction is rather interesting. It may be that some of the public rage about the sentence has to do with the gender aspects of this case. It is more probable, however, that the broad sympathy for Vargas comes from our antipathy toward the least-liked group of offenders: Child molesters and rapists. It is a difficult question whether we want our criminal law to reflect the idea that a child rapist deserves what he or she gets if murdered by his/her victim. The question of sentencing flexibility is a bit easier: we could still officially condemn murder, and yet find a way, sentence-wise, to not make the murderer pay the price in such situations. But whether we contemplate guilt or sentence, we are still asking, in essence, the same question: Is killing a child molester more understandable than killing someone else? More justified ? Or, for those of us who would punish murderers out of retributivism, is the life of a child molester worth less than the lives of other potential murder victims?

SCOTUS to hear Plata/Coleman Case on the Merits

As reported on SCOTUS Blog, the Supreme Court is ready to hear Plata/Coleman on its merits now. The issues have been framed as follows:

(1) Whether the three-judge court below properly determined that crowding was the “primary cause” of continuing violations of prisoners’ constitutional rights to adequate health care, and that no remedy existed other than issuance of a Prisoner Release Order pursuant to the Prison Litigation Reform Act, 18 U.S.C. § 3626;

(2) whether the system-wide Prisoner Release Orders issued by the three-judge court are “narrowly drawn, extend no further than necessary to correct the violation of the Federal right, and [are] the least intrusive means necessary to correct the violation of the Federal right” in compliance with the PLRA, 18 U.S.C. § 3626(a)(1)(A);

and (3) whether the same court properly gave ”substantial weight to any adverse impact on public safety or the operation of a criminal justice system” in ordering a reduction in population of approximately 46,000 inmates.

See our summary of the District Court ruling here and in the posts that follow.

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Props to Nolan Shaw for alerting me to this.

Death Penalty Activism: Narrow Coalitions

I've been thinking about the terrific meeting of the World Coalition Against the Death Penalty last Saturday. One of the most remarkable thing about the meeting was the presence of unexpected and very welcome allies: Families of victims and law enforcement agents. It was an amazing thing to see people who we are used to think of as punitive reject the zeitgeist on behalf of really considering, in depth, the meaning of supporting or objecting the death penalty. These two groups are so valuable and important that they made me think about framing questions and goals, and the challenges involved in doing so.

In his opening remarks, Senator Mark Leno mentioned that the death penalty was not a necessary factor in ensuring public safety. After all, he said, we can lock up violent criminals for life without possibility of parole. I wonder if this position is substantive or strategic. After these remarks, it was interesting to see that, beyond the wall-to-wall objection to the death penalty, there was no consensus on other, broader perspectives on crime and punishment. Some of the activists (including yours truly) felt rather uncomfortable with this narrow definition of what is wrong with the correctional system. The answer to crime lies, perhaps, not in simply substituting the death penalty with a wholesale system of LWOP. However, framing the struggle for human rights as an issue pertaining to ALL corrections, not just the death penalty, might mean the loss of victims and their family, as well as of law enforcement entities. It's really a tough one.

Changing Discourses in Anti-Death Penalty Advocacy

Several people at the World Coalition Against the Death Penalty meeting asked me to post my plenary panel remarks online; I hope you find them interesting.

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Good morning everyone,

This gathering is a historical event, an attempt to place this country, whose pride and shame so often lie in its exceptionalism and uniqueness, in a global context, as part of a global movement. I looked at the program and it promises to be a fascinating day of examining world trends and exploring the ways in which the United States, an industrialized democracy whose execution statistics dwarf those of many developing nations, might fit into a paradigm of nation-wide abolition. Before we embark upon this important journey, though, I thought I would offer a few comments that might touch on this U.S. exceptionalism. More accurately, I would like to discuss the strategies and arguments that death penalty abolitionists, academics and activists, have used over the last decades, and situate them in the unique context of U.S. bipartisan politics, the legal profession, and the centrality of race in U.S. criminal justice policy.

Anti-death penalty discourse around the world often appeals to notions of humanitarianism, human rights, and morality. This family of arguments, which dates back centuries to rationales offered by Cesare Beccaria in his 17th century book Delle Crimen y Delle Penne, has always been part of the abolitionist agenda in the United States. However, over the years, American discourse has also included three non-humanitarian arguments, which have taken a place of prominence in public discourse here about the death penalty. I would like to present the three of them and talk about the unique U.S. conditions that produced them as part of the discourse. The three arguments are:

1) The lack of deterrent effect of executions;
2) the rate of wrongful convictions among those sentenced to death;
3) and the cost of administering the death penalty.

I presented the arguments in a rough chronological fashion. If you look today at activist websites about the death penalty, you are likely to find all three of these arguments represented, but each of them occupied center stage in public discourse for a while, later giving way to a new non-humanitarian argument.

Our love affair with deterrence arguments came in the heels of the 1976 Supreme Court decision in Gregg v. Georgia, which reinstated the death penalty after a four-year moratorium. This is well known, of course, to many people interested in the death penalty. What is somewhat less known is the role that an empirical study by Isaac Ehrlich, published shortly before the decision in Gregg, played in bringing this development about. Ehrlich used econometric calculations to show that each execution prevented eight murders. His study was extensively cited by the Supreme Court as an argument for the death penalty. Ehrlich’s study was not an outlier and its timing was not a coincidence. Its seeds were sown in the late 1960s, when the rise in crime rates, and fear of crime, were central features of the Nixon campaign. During this era, crime control and law enforcement became a regular feature of the U.S. political game, and particularly of the right/left divide. This played out in important ways during the 1970s, when a meta-research conducted by Robert Martinson found that rehabilitative programs in prison did not reduce recidivism. The general disillusionment with rehabilitation—until then a feature, at least in terms of rhetoric, of the U.S. sentencing and correctional system - pushed policymakers back to the traditional paradigm of aims of punishment, seeking retribution and deterrence. This was aided by the rise of punitive, fear-driven discourse, particularly in connection with the nascent war on drugs of the 1980s. Under such conditions, it was unavoidable that anti-death penalty discourse would address this issue. Critique of Ehrlich’s model emerged almost immediately. His methodology was heavily criticized. And several permutations of the deterrence arguments persist to this day. Last year I went to the Empirical Legal Studies conference, and, indeed, two teams of researchers were still battling minute econometrical details, trying to prove or discredit the deterrent effect of the death penalty. The methodological aspects of the debate would be lost on the general public, and the political motivation behind the argument was rather obscured; ironically, the better people got at producing models that predicted or disproved deterrent effects of the death penalty, the less interesting their work got in terms of its public appeal. In other words, the debate about deterrent effect has lost some of its steam and has been relegated to the realm of specialized, sophisticated scholars.

A new argument, however, emerged on the horizon. In the late 1980s and early 1990s, anti-death penalty discourse was fuelled by arguments pertaining to mistakes in convictionsk, made particularly tragic in the context of the death penalty because of its irreversibility. Several developments made the wrongful conviction and exoneration argument possible and important at the time. First, proving innocence seemed to be a dream finally attained through the introduction of DNA as an inexpensive, realistic option for the broad population of criminal defendants. It is important to point out that, despite the mystique of DNA, most exonerations of wrongfully convicted inmates did not occur through DNA testing, but rather through discrediting eyewitness identification. The early and mid-1990s were good years for the field of criminal psychology, yielding “white paper” about the unreliability of lineups and eyewitness identification, as well as a discredit of testimony by hypnosis. The success of U.S. television programs based on criminal forensics and science, particularly the CSI franchise that started showing in 2000, reflect the great hope awarded in the public imagination to science and the body as a means for uncovering the truth. The potential of scientific techniques in correcting wrongful convictions was harnessed by another important development: The emergence of clinical education in law schools, and particularly the emergence of innocence projects, in which students pursued, pro bono, wrongful conviction claims on behalf of inmates. The first Innocence Project was founded in 1992 in Cardozo School of Law under the leadership of Barry Scheck and Peter Neufeld, and offered, perhaps for the first time, the promise of scientific arguments to support abolition. There is one more important factor to keep in mind as we consider the emergence of exoneration and wrongful conviction arguments as anti-death penalty discourse: the growing public acknowledgment of the part played by race in the criminal justice system in general and on death row in particular. As our attention to wrongful convictions grew, we became more aware of the particular ways in which racial minorities in the U.S. were particularly vulnerable to intrusive police techniques, identification mishaps, racist jury panels, and vindictive judges, particularly in certain regions of the country. Not only were most people on death row members of racial minority groups, the stories of exonerees revealed how their racial identity impacted the prognosis of their criminal cases.

The exoneration argument was, however, not without its flaws and weaknesses. First, contrary to the grand promise of science and its appeal to the public (now known in the U.S. as the CSI Effect), DNA methods lost some of their iron-clad hold in court, if not on the general public. Wrongful conviction scholars find it increasingly difficult to gauge the exact number of wrongfully convicted people in prison in general, and on death row in particular. Do we count cases in which multiple eye-witnesses have recanted? Do we count cases in which police interrogation was abusive and coercive, even if we do not know whether it yielded the truth? While the public perhaps continued to perceive science and forensics as good ways to weed out the innocent, a growing discourse of fear and punitivism took hold. This seemingly contradictory trends are easy to explain when one considers that punitiveness gains legitimacy if it is guaranteed that those suffering from it are the guilty. Add to this the enlistment of the nascent victim advocacy movements to support the agenda of punitive politics (which I know many brave people in this audience, who have been victimized by crime, actively resist) and you’ll get a perfect punitive storm, pushing various reforms such as the Three Strikes Law. While the death penalty is unique, it should be seen in the context of this discourse of fear. Under such conditions, politicians of all stripes were concerned, and still are, about not appearing “soft on crime”, and in many regions of the U.S., opposing the death penalty is unthinkable for symbolic reasons as well as for reasons of realpolitik.

This challenge, of not appearing “soft on crime” while rejecting punitivism in general and the death penalty in particular, may have been addressed by the third non-humanitarian anti-death penalty discourse: The issue of cost and expense. With the recent financial crisis, the expenses associated with punitive sentencing regimes and mass incarceration have revealed to the public what was previously an invisible, underground “city” of corrections. The public is much more aware of incarceration conditions in general and conditions on death row in particular. Proposals to expand the San Quentin death row made headlines in California newspapers. And media discussions have led to a rising profile of the typically lengthy death row litigation. It should be mentioned, ironically, that as the costs of lengthy appeals and habeas corpus writs become a subject of public concern, the actual legal opportunities for post-conviction remedies grow narrow. Habeas corpus litigation in the U.S. has been gradually curbed, and overworked courts are more reluctant every day to hear death row appeals. Nevertheless, the argument seems to be that the death penalty, as it is administered today in the U.S., is no more than life imprisonment under difficult, expensive conditions, and accompanied by incessant litigation. This is a premise that budget-conscious politicians, whether conservative or progressive, can get behind with less risk to their public image.

Why do U.S activists use these arguments? Primarily, because they work. They are uniquely tailored to the realities of a bipartisan political system, in which, for various historical reasons, the death penalty has come to be a political issue. This is often difficult to understand for those unfamiliar with the U.S. context. After all, in Western democracies that abolished the death penalty the political divide is no longer an issue. And of course, once the death penalty has been abolished it is much more difficult to reinstate than it is to keep in place where it still exists. In non-democratic countries that still have the death penalty, the need to persuade the government to abolish it is irrelevant. The unique position of the U.S. as a punitive democracy is what necessitates this family of utilitarian arguments. If the human rights argument has been disabled due to fear and rhetoric, the public is spoken to through the lowest common ground: its wallet.

The proof is in the pudding. Recently, New Mexico abolished the death penalty, prominently citing issues of costs. Numerous U.S. states have placed moratoria on executions for the same reasons. Support for abolition, as well as for other nonpunitive measures such as drug legalization, skyrockets when they are presented as revenue-enhancing measures. California periodicals are peppered with editorial pieces by conservative politicians arguing that the costs of lengthy litigation and safe confinement are too much to spend if executions continue being administered at the current rate, thus supporting a cheaper solution: life without parole. The cost argument, therefore, holds the promise of persuasion.

The costs of using the cost argument, however, are a little less tangible. Everytime an argument against the death penalty is based solely on issues of cost, non-deterrence, and possible mistake, anti-death penalty activists accept their adversary’s rules of engagement and play their game on their terms. And while cost arguments are not fake or misleading – the costs are true – there is something misleading about presenting them at the forefront of what used to be, and should always be, a concern for our fellow human beings, be they offenders, victims, or correctional personnel. As a movement, we need to make a decision whether, and to what extent, we are willing to play this game to obtain the desired outcome, and what is the combination of strategy and ideological conviction that we can live with best. Thank you.

New Death Penalty Procedures Rejected

Executions in CA, halted by a federal judge order in 2006, will not resume for now; the Office of Administrative Law has rejected the new lethal injection protocol proposed by CDCR after District Judge Jeremy Fogel halted executions due to various problems and irregularities..

As this Associated Press article explains,

on Tuesday, the obscure state agency sent prison officials a blistering 21-page "decision of disapproval of regulatory action."

Among its many objections, the office said the proposed regulations conflict with state law by explicitly authorizing media witnesses to the executions. Reporters have attended all 13 executions since their resumption in the state after a U.S. Supreme Court ruling 1976.

There are 702 inmates with a death sentence living in California prisons

Office of Administrative Law Deputy Director Linda Brown said the state law spelling out who may witness an execution doesn't include reporters, but the proposed regulations do. She said either the regulations have to be redrafted to eliminate explicit mention of the media or the Legislature needs to change the language of the law to specifically authorize the attendance of reporters.

She said the same goes for representatives of the governor's office and the inspector general, whom the proposed regulations allow as witnesses but who are not specifically authorized to attend by the law.

Brown speculated that reporters and the others have been allowed to attend as the "at least 12 reputable citizens" the San Quentin warden must select to witness each execution.

Brown said the office found five passages to be unclear, including how the death warrant is to be presented to the inmate scheduled for execution.

The timing of this delay coincides with the meeting of the World Coalition Against the Death Penalty, in which we'll discuss, among other things, American exceptionalism and the effect of global strategies on U.S. policies.

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found via our friends at Sentencing Law and Policy.

World Coalition Against the Death Penalty Meets in San Francisco

This weekend will feature the first meeting of the World Coalition Against the Death Penalty on U.S. soil, and, to my delight, this will happen at Hastings. The program seems very interesting. If you have interest in the topic, the first day, Saturday, June 12, will be open to the public. It'll be delightful to see you there; if you see me and read the blog, do come by and say hi.

Topography of Crime: The Local Nature of Crime

Several current and former students alerted me to this beautiful topographical rendition of San Francisco crime, rendering crime rates as elevation. The image on the left depicts the city's narcotics crime map, with obvious peaks in the Tenderloin and the Inner Mission.

Beyond the half-amused recognition of familiar patterns, this nice depiction is a reminder that crime is, above all, a local phenomenon, and it would benefit more from local approaches (policing and problem-solving) than from state-wide mass incarceration.

Grant Trial and Jury Composition

News are beginning to trickle in to the Bay Area about Johannes Mehserle's trial for the murder of Oscar Grant at the Fruitvale BART on New Year 2009. This morning's paper reports on the evidence for the prosecution, and yesterday's paper reported on the jury selection, which yielded a panel devoid of any African American jurors, to the dismay of Grant's family and activists in Oakland.

The question is one of framing: Is this incident to be seen as one particular moment in time, or as part of a trend of bad relationship between the police and minority groups? Arguably, even if we are to accept the narrower former prism, juror race is not irrelevant. As we discussed elsewhere, studies consistently show race bias, and a recent one showed that white males are particularly punitive against black defendants. Will they be forgiving of a white defendant in an incident with inter-racial features? Given the jury composition and the secrecy of jury deliberations, whatever the decision is, we will not be able to know the reasons for it with any degree of certainty.

The details on Mehserle's trial come in the heels of a sobering piece in the New York Times, according to which the jury selection process in Southern States seems to block black jurors from panels. Indeed, even after Batson v. Kentucky, the 1986 case that opened the door to considering racial bias in the use of peremptory challenges, it is still possible to circumvent the accusation that racial motivations shaped juror choice by providing "racially neutral" reasons for exclusion. These reasons need not be particularly sound or convincing.

As an aside, the Los Angeles panel does feature some members of minority groups, including four Hispanic jurors. It may be that, in L.A.'s particular racial map, Hispanic and Latino men and women are in a better position to appreciate the broader problems of police interactions with minorities than the Oakland activists predict.

There seems, however, to be some support for the change-of-venue decision. Coverage in the Los Angeles Times seems to be much less prominent than in the San Francisco Chronicle.

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Props to Cullen Wojcik for alerting me to the New York Time's piece.

Don Specter's Review of CA Prisons: It's All About Overcrowding

Don Specter's interesting and important Federal Sentencing Reporter piece is a good overview of conditions in California prisons to-date. I strongly recommend reading the piece in its entirety. I found this bit particularly interesting:

The belief that a reduction in the prison population leads to more crime is not supported by data or the experience in many jurisdictions that have used early release to reduce their correctional populations. A 2007 study by the National Council of Crime and Delinquency reviewed thirteen reports on the early release of prisoners in the United States and Canada.54 In each case, the crime rates remained the same or declined during the early-release period, and the prisoners released early did not commit more crimes than their counterparts who served the full sentence. In jurisdictions that provided community- based supportive services, recidivism rates declined.

Nor is there a change in the crime rate when correctional facilities cap their populations. From 1996 to 2006, twenty-one California counties released 1.7 million inmates early because of jail overcrowding. During that same period, the number of reported serious crimes dropped by 18 percent. A similar, although less dramatic, reduction in the crime rate occurred during the most recent three-year period.

One reason that there is no direct link between releasing prisoners and crime is that parolees are not responsible for as much crime as the public is led to believe. Although featured prominently in media stories about violent crime, parolees actually contribute very little to the crime rate. A study by the U.S. Department of Justice concluded that parolees account for less than 5 percent of serious crimes.