Historic Arguments in the California Prison Overcrowding Cases - A Guest Post by Rory Little

This morning the U.S. Supreme Court heard oral arguments in what has become known as the “California prison overcrowding cases.” The Court has not heard a case challenging prison conditions and court supervision in decades, and the 1996 Prison Litigation Act (“PLRA”), designed to restrict federal court supervision, has been unexamined until today. The Court accepted the State’s appeal (not certiorari) in two consolidated California cases. It then granted a highly unusual extra 20 minutes to the normal hour-long argument, and ran even beyond that until Chief Justice Roberts blew the final whistle. It was an historic moment in the history of these decades-long cases, and in the area of prison litigation in general.


Although an audiofile will not be available here until this Friday, observers report that the Justices were interrupting each other and even raising their voices, an unusual display of frustration in that august body. Indeed, at one point Chief Justice Roberts calmly cut off Justice Sotomayor (who had interrupted Justice Ginsburg’s question), saying “I’m sorry, could you answer Justice Ginsburg’s question first?” (The transcript is available here).

But the Justices’ reactions at this argument are not surprising – the underlying cases have generated similar frustrations and emotions for some two decades, as unconstitutional conditions in California’s state prisons have defied solution despite an unprecedented amount of executive, legislative, and judicial concentration.

At issue is the order from a special three-judge federal trial court, issued after over 70 prior orders failed to correct problems in the prisons, that directs the State to find a way to reduce its prison population to 137% -- that’s right, “reduce” to 37% over design capacity. It is conceded that California’s prisons have not provided constitutionally adequate medical and mental health services to its inmates for many years. The conditions are “horrible,” as photographic evidence in the record shows. The district court found – and no one really disputes – that the problems all run back to the dramatic overcrowding of California’s prisons.

And because of the California’s seemingly intractable budget problems – as well as legislative gridlock and partisan intransigence – the huge amounts of money necessary to fix the prisons (or construct new ones) is simply not going to happen. “Pie in the sky,” said Justice Scalia today. As Justice Sonya Sotomayor remarked today, “I don’t see how you wait for an option that doesn’t exist.”

However, fifteen years ago Congress’s unhappiness with federal courts “taking over” state prison systems led to enactment of the 1996 PLRA. Now, the very existence of the PLRA, which anticipates special three-judge district courts and recognizes the possibility of court “population reduction” orders, indicates that Congress understood that, at some point a State’s unconstitutional conditions, and inability or refusal to repair them, might still lead to court supervision. The central question today was whether California’s prison system, and the three-judge court’s multi-year patience in ordering the State to fix the problems without success, warrants the reduction order ultimately entered early in 2010, after a number of prior “warning orders” went unheeded.

Also unusual is the contrast between the lawyers who presented the arguments today. The State’s agents hired Carter Phillips, a well-known Supreme Court advocate who clerked for Chief Justice Warren Burger and has argued over 60 cases before the Supreme Court. Indeed, few advocates could get away with what Phillips did this morning:
JUSTICE ALITO: Mr. –
MR. PHILLIPS: Can I just finish this?
JUSTICE ALITO: Yes.

The prisoner plaintiffs hired Paul Clement, also an established Supreme Court litigator who served as U.S. Solicitor General under President George W. Bush. However, the California prisoners have been represented throughout the litigation below by San Francisco lawyer Don Spector, longtime head of the Prison Law Office, and it was Specter who presented their case in the Supreme Court today. (Although the Court was reviewing two cases, it mysteriously denied a motion for Clement and Specter to split the argument – another unusual wrinkle). Although Specter has argued many cases in his quarter-century at Prison Law, he had argued only one Supreme Court case (Yeskey v. Penn (1998), which he won summarily). Today’s cases (Plata and Coleman) present a far more difficult challenge. But Specter, steeped deep in the details of this complicated litigation, did a masterful job. He even got a laugh from the normally reserved Chief Justice (transcript p, 48). Indeed, his intricate knowledge of the facts and record paid off in a number of exchanges with Justices Scalia, who seemed plainly allied with the other side, and Roberts. And with 11 amicus briefs filed on behalf of three times as many groups, the arguments did not suffer from a lack of effective advocacy for any party.

California and Phillips clearly wanted the Court to focus on the “federalism” aspects of allowing a federal court to direct the reduction of a State prison population. But Justice Sotomayor quickly set a detail-oriented, fact-specific tone for the argument: she directed Phillips early on to “slow down from the rhetoric and give me concrete details.” The argument then proceeded on that level for the bulk of its over 80 minutes. (Justice Scalia, however, had some fun with Justice Sotomayor’s earlier remark: when she asked Phillips “When are you going to avoid the needless deaths that were reported in this record?,” Justice Scalia interjected (ostensibly directed at Phillips and not his fellow Justice) “Don’t be rhetorical.”)

In the end, decision in the case appears to focus on Justice Kennedy (who is so often the necessary fifth vote that observers call it “the Kennedy Court”). And while he did not show his hand entirely, he did interrupt Phillips’ argument that the district court acted “prematurely,” as follows: “The problem I have with that, Mr. Phillips, is that at some point the Court has to say: You have been given enough time; the constitutional violation still persists…. Overcrowding is the principal cause, and it’s now time for a remedy.” Justice Kennedy also opined that “there is massive expert testimony to support … the prisoners,” and asked why the district court’s order was not “perfectly reasonable.”

Predicting results from oral argument is a dubious enterprise at best. And certainly some Justices, notably Justices Scalia and Alito, expressed skepticism. (Justice Thomas was characteristically silent.) But Justice Kennedy’s remarks demonstrate that the Court faces a sensitive challenge here: unless it wants to become the appellate master for prison litigation around the country as state budgets become increasingly stressed, it needs to demonstrate restrained deference to federal trial judges that provide years of hearings and opportunities for beleaguered state prison systems before they act. As the newest Justice, Kagan, remarked, “”You have these judges who have been involved in these cases … for 20 years ….[H]ow can we reach a [different] result without re-finding facts…?”

Indeed, one can speculate that if this case had not come from the Ninth Circuit, and had not had red-flag liberal Judge Stephen Reinhardt on the three-judge panel, the Court might not have even found appellate jurisdiction (or summarily affirmed). On the other hand, Congress did set strict limits in the 1996 statute, and the High Court needs to interpret just what they may mean in the reality crucible of a hard case. California has argued that the three-judge court was itself convened in violation of the statute. As Specter respectfully noted at one point regarding Phillips’ argument, “my friend and I have a disagreement.” The PLRA deserves Supreme Court resolution.

In the end, Specter’s argument presented the starkest argument: “unless you reduce the crowding, nothing else is going to work.” The district judges involved had issued over 70 previous orders, and appointed two different “receivers” for the prison system, all to no avail. If any set of unconstitutional prison conditions and unresponsive state reactions can ever satisfy the PLRA’s stringent requirements, it would be this one. Yet, as the Chief Justice inquired repeatedly, how can the state reduce prisoner population without endangering public safety, as the PLRA requires? These tensions are why the Court decided to hear the unusual argument session it hosted today.

So stay tuned. A decision is unlikely to issue until late spring. And it seems likely that the case will be remanded with directions to consider amending the Order in various ways. Prison population and conditions are always a dynamic moving target, and wholesale affirmance here seems unlilkely. But whatever the result, these arguments provided a fascinating window into the arena of prison litigation, as well as the working of the “new” Supreme Court whose near majority was appointed a decade after the PLRA was enacted.

TODAY! Oral Arguments at the Supreme Court in Plata/Coleman v. Schwarzenegger

The Supreme Court heard arguments today in Plata/Coleman v. Schwarzenegger, the state's appeal of the order to decrease the California prison population in order to alleviate the hardships of medical and mental health care behind bars. A detailed post on the oral argument by my terrific colleague Rory Little follows.

David Onek for SF DA?

Now that Kamala Harris is officially moving up from SF District Attorney to CA Attorney General, there will be a hotly contested election for a new District Attorney here in San Francisco in November 2011. One leading candidate is David Onek, a former member of the SF Police Commission; see http://www.davidonek.com/about

In a post on Calitics last month stumping for Kamala Harris, Mr. Onek embraced the humonetarian view of criminal justice, leading with financial statistics about the expense of recidivism. Onek applauds Harris's Smart on Crime approach, and in particular the Back on Track program. Overall, the post suggests Onek supports more money for prevention, intervention, and rehabilitation, and less money for useless re-incarceration. Tellingly, Onek's candidacy for SF DA was recently endorsed by Jeanne Woodford, the reform-minded former director of CDCR who supported Prop 5 in 2008.

Facebook users have the opportunity to support David Onek's campaign for DA by clicking "Like" at http://www.facebook.com/DavidOnek

Former Justice Stevens: Death Penalty No Longer Constitutional

A New York Times article quotes former Justice Paul Stevens as expressing his strong objection to the death penalty.

The actual comments were published in the New York Review of Books, in which Stevens reviewed David Garland's new book Peculiar Institution. The NYT faithfully summarizes this interesting public declaration as follows:

In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.

But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.

In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.

What does this mean in the age of lethal injection litigation? Who knows? And, to what extent does Stevens' grim observation of the personnel change in SCOTUS hold true after the recent appointments of Sotomayor and Kagan? Thoughts from our readers welcome.

Harris' Election Bodes Well for Medical Marijuana

The Attorney General race outcome has interesting implications as to the prosecution of medical marijuana dispensaries, and marijuana activists are pleased and optimistic.

Before the results were published, the Sac Bee reported:

Both candidates opposed Proposition 19, the initiative to legalize marijuana for recreational use.

But Harris said she personally knew people "who have benefited" from medical marijuana – while Cooley praised a proposed ban on dispensaries in Los Angeles County and efforts by the city of Los Angeles to rein in its medical pot trade.

"Communities throughout the nation are waiting to see how we handle storefronts illegally pushing pot," he said.

Cooley argues that pot shops violate state medical marijuana laws, which define dispensaries as members-only nonprofits run by medical marijuana patients.

Harris' campaign manager, Brian Brokaw, said Wednesday that Harris "supports the legal use of medicinal marijuana but thinks California needs to bring consistent standards about ownership and operations of dispensaries."

How such consistent standards can be enforced, in the shadow of federal illegality/nonprosecution, is a good question, that merits more attention to Harris' policies in the future.

Harris is Attorney General Elect--Good Tidings for Re-Entry?

By now many of our readers probably already know that Steve Cooley has conceded the race to Kamala Harris, who is California's Attorney General Elect. What does this mean for the criminal justice system?

Over the last two years I've been baffled, and somewhat amused, by progressive and radical activists who have expressed their disappointment in Obama. Their expectation that dramatic radical change would occur overnight, and that all of its features would please them, was, to be frank, absurd. Even progressive politicians are politicians, and they operate in a world of constraints and coalitions. Anyone anointing a politician as the messiah is setting herself for a sore disappointment.

I therefore urge our readers to recall Harris' promises to voters. These included a commitment to fighting hate crime, preventing prevalent phenomena like identity theft, raising the violent felony conviction rate, actively fighting gang-related crime (particularly among juveniles), and addressing quality of crime issues through community courts and mental health outreach. She opposes the death penalty and is committed to reentry solutions as a way to reduce recidivism and alleviate overcrowding. This platform is very promising, and certainly cause for cheer over the election results. Harris is a smart, principled, fair and honest public official. However, being California Attorney General differs greatly from being San Francisco District Attorney. She will be operating on a difficult, polarized political map. It is our responsibility to ensure that she does her job.

"We Don't Want Another Garrido"

The Sac Bee reports:

[Newly formed law enforcement teams] are designed to apprehend parolees who have become fugitives or are otherwise violating terms of their release.

"We're going to look over the fences. We don't want another Garrido," Greg Shuman, who supervises a Sacramento-based California Parole Apprehension Team, told agents heading out for one sweep. "It's no-tolerance. Anything, any violation, they're going to jail."

Five teams were created this year in different parts of California, while five more will start in January.

Money to fund them comes from savings created by a law that took effect this year. That law eliminated parole supervision for thousands of ex-convicts, some of whom served time for serious crimes.

It allows agents to focus on the parolees that state corrections officials consider the greatest risk to the public. Supervising fewer people lets agents concentrate their attention on sex offenders, gang members and violent criminals, said Robert Ambroselli, who heads the Department of Corrections and Rehabilitation's adult parole division.

The move to use budget savings from early release to target high-risk offenders is, of course, a sensible one. But are these folks high-risk offenders? The article mentions that 480 out of the 900 parole violators who have been arrested recently are sex offenders, which, according to CDCR's own recidivism report, are the lowest risk group among released inmates. That is, if one does not count parole violations. Whether any risk has been prevented by a registered sex offender's arrest would depend on whether the parole violation that led to the arrest is, indeed, a crime in its own right, or some technical violation.

This surge in law enforcement energy might explain the following curious story that appeared this week in the San Jose Mercury News:

Lawrence Joseph Brown, 52, was taken back into custody in Tustin just 30 miles from the California Institution for Men in Chino.

"We had investigators following him, and he was in a car with a woman," a violation of a stipulation of his parole, Orange County District Attorney Tony Rackauckas told The Associated Press in a phone interview.

The woman was Ruby Huggler, a woman Brown had stayed with during a brief parole earlier this year, and Rackauckas said he believed she picked him up from the prison.

This week I showed my students Fritz Lang's 1931 masterpiece M. In one of the movie's best scenes, Lorre, a child murderer and sex offender, is apprehended by the mafia, and "tried" by a kangaroo court trying to decide whether to execute him or hand him over to official law enforcement. His speech, and their reactions to it, is truly fascinating, and goes to the heart of the question here--do we believe that these offenses come from evil, or from disease, or both. Our persecution of released sex offenders seems to suggest the latter; we rearrest them because we are concerned about compulsion. A student of mine once called this unique perception of guilt "culpable sickness". Feeding our fears of the unknown and unexplainable is important, but it is more important to deal with actual recidivism than with imagined and feared recidivism. I hope we are, indeed, preventing dangerous and risky reoffending by directing our energy toward these released offenders, rather than merely substituting one form of oppressive and wasteful enforcement with another.

Attorney General Race: Kamala Harris' Lead Strengthens

As the vote counting progresses, it appears that Kamala Harris has established a lead that would make it very unlikely that Cooley will catch up. If Harris, indeed, wins the race, that would mean that Jerry Brown will work with someone who has somewhat less traditional approaches to criminalization, law enforcement, and reentry. We'll have to wait and see.

Damien Echols Receives New Trial: Evidence Gate Wide Open

Today, in an Arkansas Supreme Court decision that will thrill supporters of the West Memphis Three, Damien Echols received a new evidentiary hearing, in which all evidence, including the DNA evidence that exculpates him and implicates others in the murder, will be considered.

Echols and co-defendants Misskelley and Baldwin were the subjects of the documentaries Paradise Lost and Paradise Lost 2: Revelations. Having read much about the case, I am convinced of their innocence and very much hope that the new hearing will provide the defendants long-overdue justice.

Impending Executions?

This OC Register article comes to us via our friends at the Sentencing Blog. According to the article, seven death row inmates have exhausted their legal recourses and could potentially be executed in the near future. interestingly, the article contains a hint on the focus of anti-death-penalty litigation in the near future:

The state's attempt to execute convicted rapist/murderer Albert Greenwood Brown, Jr., of Riverside – who has been on Death Row since 1982 — failed in September when the CDC's only dose of the lethal-injection drug passed its expiration date. It would have been California's first execution in five years.

Since then, CDC officials have been scrambling to find an additional source of sodium thiopental to get the executions back on track.

Last month, prison officials announced they had secured enough of the powerful drug to carry out four executions, potentially putting the seven killers who have exhausted their appeals at risk.

Opponents of the death penalty, however, are expected to challenge the propriety of how and from whom prison authorities obtained the latest batch of the drug. The CDC has declined to say where it obtained the drug. The only U.S. manufacturer of the drug can't make more because of raw-material supply issue, the Los Angeles Times reported.

Making the source of a chemical the focal point of the death penalty debate is a further step in what I previously referred to as the farcical nature of the entire debate. And yet, it can be a last resort in litigators' scramble to dig up arguments that have not been made yet.

The Status of Legalization: Guest Post by Brandon Yu

Our guest poster, Brandon Yu, is a Managing Editor of AllTreatment, an online rehab center directory and substance abuse information resource.

***

After much months of national attention, California Proposition 19 has failed by 8 figures in nearly a 600,000 vote difference. The Proposition, which was supposed to legalize marijuana in the state of California for recreational use, was opposed since the beginning by elected officials of both parties, including Democratic Senators Barabar Boxer and Diane Feinstein and Republican Governor Arnold Schwarzenegger. The federal government likewise said it would “vigorously enforce” federal drug laws vigorously against Californians that grow or sell marijuana for recreational use.

Proponents noted many benefits of legalization. The passing of the proposition would have generated $1.4 billion a year in tax revenue, resulting significant savings for state and local governments and boosting the economy in the process. Some believed it would also reduce drug-related violence and take revenue away from drug lords. However, opponents argued that it would raise the cost for programs in substance abuse due to the supposed increase in marijuana use, and that the state’s medical marijuana program would flounder since people would gain the drug through other means.

So what does the prospects look like for legalization in California, let alone the status for the country’s future?

Marijuana laws in California have grown increasingly more relaxed in the year leading up to the proposition. Though he did not support the legalization proposition, Governor Schwarzaneggar signed a bill into law that downgraded marijuana possession from a Misdemeanor to a simple Civil Infraction during his final months as governor.

Bordering states looked to California to set an example. Measures in South Dakota and Arizona had measures that advocated for medical marijuana, but both were similarly rejected. Foreign countries, particular Mexico, had also been looking to how California would react to legalization. Mexican President Felipe Calderon, whose country had been entrenched in a drug war for the last half decade, was considering legalization in order to put money out the opposition’s pockets. The Mexican drug cartels make anywhere from $20 billion-$30 billion annually off drug trafficking alone, with marijuana comprising of 60 percent of that income. Legalization would have reduced that number dramatically by $12 billion.

Despite the setbacks, the legalization movement is stronger than ever. Marijuana legalization had been defeated before in California. In 1972 a similarly titled Proposition 19 also failed when put at the hands of voters. However, that proposition failed by a much higher margin, with a 66.5/33.5 No/Yes differential, a considerable difference than the 54/46 resulted from Tuesday.

Proponents are vowing to get a similar one on a ballot in the near future despite Proposition 19’s failure. Some exit polls have shown that some Voters think that marijuana should be legalized, in a margin of 49%-41% with 10% undecided, suggesting that voters had more issues with the wording of the proposition rather than legalization.

Recidivism Discussion on KGO

Yours truly was on the radio this week, speaking to Gene Burns on the Gil Gross show, about the CDCR recidivism report. Listen here.

Blame, Accountability, Criminalization

My amazing day at CELS ended with two papers about assigning criminal accountability and criminalizing, which were particularly thought provoking in the respective aftermaths of the Mehserle trial and the failure of Prop 19. First came Janice Nadler and Mary‐Hunter Morris' paper The Psychology of Blame: Criminal Liability and the Role of Moral Character. Nadler and Morris conducted a series of fascinating experiments in which respondents were required to express their views on criminal culpability and causality in scenarios they were provided with; respondents were provided with some background about the offenders' moral character, and Nadler and Morris concluded that this extraneous information colored their opinion regarding culpability. The questions from the audience yielded an excellent discussion about the situations in which moral character "leaks" into the legitimate justice system, such as in discussing an offender's motive.

The following paper was The Plasticity of Harm: An Experimental Demonstration of the Malleability of Judgments in the Service of Criminalization, by Avani Mehta Sood and John M. Darley. Sood and Darley provided their respondents with a series of rather colorful scenarios, asking them whether they saw them as violating social norms, whether they were harmful, and whether they would criminalize them. Respondents tended to ascribe harm to situations they wanted to criminalize. Sood and Darley then proceeded to provide respondents with scenarios that did not tend to invoke a lot of harm rationales, priming half of them with an instruction according to which "U.S. courts have ruled that for something to be a crime it has to cause harm." Respondents that were primed with this instruction tended to come up with more harm rationales for their scenarios, some of them rather creative and farfetched. The paper reminded me of the harm arguments brought up against Prop 19, and the amount of pseudo-harm arguments we have heard, and are likely to continue hearing, about same-sex marriage.

CELS is a fantastic conference, I learned a lot and had a terrific time. Now, it's back to my students and... to the California correctional crisis.

Retributivism and Restorative Justice

The afternoon panels at CELS also featured wonderful work. First I heard Dena Gromet and John Darley's paper Gut reactions to Criminal Wrongdoing: The Role of Political ideology. In the paper, Gromet and Darley examine whether people's support for a retributive or restorative framework depends on reason considerations, or whether it is a gut reaction. To measure that, they conducted a survey in which they asked respondents' opinions on victims and on offenders, assessing their support for each framework. They also inquired about their political opinion (on a conservative to liberal scale). To measure gut reactions, rather than calm reasoning, they asked respondents these questions under cognitive load (made them memorize an 8-digit number while they responded). They found that the satisfaction with restoration, whether on its own or as added to satisfaction with retributivism, goes up for liberals and down for conservatives with cognitive load. Their conclusion was, therefore, that liberals and conservatives have different intuitive reactions to serious crime: Liberals endorse restoration while conservatives favor retribution.

This paper was followed by Tyler G. Okimoto, Michael Wenzel and N.T. Feather's paper Conceptualizing Retributive and Restorative Justice. Drawing on differences in conception of justice, Okimoto, Wenzel and Feather administered a survey in which they asked respondents a series of question to establish the extent to which they subscribed to two alternative views of justice: the need to empower the victim and degrade the offender, versus the need to heal relationships and reassert consensual social values. They generated a scale that allows measuring where respondents lie along a spectrum of retributive to restorative justice.

Incarceration Length and Recidivism

This morning at CELS I heard a paper by David Abrams titled Building Criminal Capital vs Specific Deterrence: The Effect of Incarceration Length on Recidivism. Abrams sought to figure out what sort of relationships existed between incarceration and recidivism. These sort of studies often present serious challenges, because length of incarceration might reflect other factors about the defendants that might predict recidivism later on. However, Abrams built on an opportunity to control for that, since defendants were randomly assigned to public defenders of differing attorney ability. Attorney ability therefore allowed him to instrument for sentence length. The findings were that the relationship between sentence length and incarceration was not linear. For the lowest sentences, the relationship is negative; it becomes positive for an intermediate sentence length, and then negative for the longest sentences. The conclusions tie the findings with theories of criminal capital formation and with specific deterrence.

Re-Entry, Housing, and the Job Market

I am at the 5th Conference on Empirical Legal Studies at Yale University, and have heard two interesting presentations on re-entry.

Amanda Geller and Marah Curtis' paper A Sort of Homecoming: Incarceration and the Housing Security of Urban Men compares the housing status of previously incarcerated and non-incarcerated fathers in fragile, poor families. Using a database formed for studying fragile families, Geller and Curtis compare how fathers fare during their child's infancy in terms of housing. As measures of housing, they use not only eviction, but also other measures mortgage default and living with others. They find that formerly incarcerated fathers have more trouble finding a stable housing situation, and while some of this difficulty is attributed to lack of income, it does not explain away all the difficulty.

Charles Loeffler's paper The Effects of Imprisonment on Labor Market Participation: Evidence from a Natural Experiment compares the job status of convicted people who were sentenced by high-incarceration and low-incarceration judges. Suprisingly, Loeffler finds that the former tend to fare better in the job market--but only temporarily. This finding might be explained in three main ways: Parole agents do a better job than, say, probation officers in finding jobs for formerly incarcerated people (but not good enough to provide enduring employment); incarceration breaks inmates' ties to their former environment and therefore requires them to shift to the "covered" economy; or, inmates simply age out of crime while in prison.

The Post-Election Post

In the grand tradition we started in the 2008 elections, I'd like to offer some reflections about some of the results.

The first issue on the agenda is the meaning of Jerry Brown's election for governor, especially if accompanied by Kamala Harris as Attorney General (an outcome which is still uncertain as I write this). As we said earlier in the race, while there are plenty of corrections-related reasons to be relieved that Meg Whitman will not be commanding our ship, Jerry Brown's platform in these matters is not particularly innovative or efficient. Some have made much of his personal distaste for the death penalty and have predicted that, as part of a team with Kamala Harris, the institution may be abolished or at least halted de facto. Brown's behavior during the countdown toward Albert Brown's execution does not appear to predict such an outcome. It remains to be seen what sort of relationship Brown forges (or rekindles) with CCPOA, and what his position might be on Plata/Coleman, which he litigated fiercely against petitioners as Attorney General.

We then have the failure of Prop 19, which I decline to read as stemming from fear or demonization of marijuana users. Much of the feedback I received after publicly endorsing Prop 19 had to do with people who in principle supported legalization but thought the initiative was poorly designed and would lead to chaotic local regulation and, possibly, to "corporatization" of pot. I found it curious that the concerns about possible "corporatization" exceeded, for some, the concerns about racist oppressive enforcement, but to each their own. The lesson to be learned here is, perhaps, that the initiative process is not a good place for such reforms, and given the broad public support for the idea of legalization, creating an appropriate legal framework should be left to professional legislators.

Finally, a municipal disappointment was the disheartening passage of Prop L, the sit/lie ordinance. We blogged extensively here, here, here and here about the punitive and classist animus behind this initiative and are dismayed to see it come to life. Our hope is that the police will act sensibly in enforcing this measure.

CDCR Recidivism Report

CDCR has just released its recidivism report, which is fairly detailed and merits some discussion. First, I think these reports are a good start and CDCR should be commended for tracking down the information and analyzing it. The Office of Research did an overall good job at highlighting some of the major issues and, while i'm sure more could be mined from the raw data, there is enough content to comment on. Here are some points that come to mind, in no particular order:

The recidivism rates in general, while not surprising, are disheartening, and attest to the complete failure of our prison system in achieving deterrence, rehabilitation, or both. It is telling that the statistics haven't changed significantly over time, despite increased punitive measures. Clearly, what we are doing under the title "corrections and rehabilitation" does not correct OR rehabilitate. The percentages are particularly distressing for people who have been incarcerated at least once before.



Some interesting demographics: The report tracks people up to three years after release. Almost 50% reoffend within first six months; at one year, the percentage rises to 75%. Women recidivate at much lower rates than men (it would help to have a breakdown of this by offense, because perhaps offense patterns matter here). Unsurprisingly, recidivism declines with age. Also, recidivism rates for first-time offenders are highest for Native Americans, African Americans, and White inmates. But these effects dissipate for re-releases.

The releases from prison are unevenly distributed across counties (a large percentage of released inmates goes to LA). However, most of the folks that end up in LA are first-time releases, which explains why the recidivism rate in LA is actually the lowest. Other counties, such as SF, Fresno, and San Joaquin, have the highest recidivism rates, but they receive re-releases (for whom the rates are higher in general) more than first-time releases.

The distribution of offenses is interesting. 20% of released inmates were in for serious/violent crimes, and this percentage holds for recidivism, so it would appear that people do not "graduate" to more serious crime (perhaps they just do more of the same). Also, there doesn't seem to be a connection between seriousness of crime and recidivism (which might suggest that it's the institutionalization that contributes to it). Also, the report doesn't track a connection between the original offense and the re-offense, save for sex offenders. Notably, however, 47% of returnees to prison are brought back in because of parole violations.

Re sex offenders: This category merits special attention because it's the one most often targeted by punitive legislative energy. 6.5% of released people registered as sex offenders. The data suggests that sex offender registration slightly reduces recidivism. However: Only 5% of released sex offenders who recidivate are convicted of an actual sex offense. 8.6% commit an unrelated crime, and 86% are back on a parole violation. This speaks volumes about the pervasiveness of registration rules and limitations and about the low risk of sex offenders.



More than half of the released inmates are in for short sentences - but for recidivists the length of sentence grows (this is probably just the effect of previous offenses enhance sentencing or of repeated parole violations.) There is a rise in recidivism for people who serve 0 to 24 months. After that, the rates decline. Possible intervening variables are health and age.



Recidivism rates rise significantly for folks released after their second incarceration (although subsequent re-incarcerations don't make much of a difference). The returnees are also more likely to be assigned a high "risk score". These two findings are not unrelated; I imagine that, when using the CSRA tool for predicting recidivism, one predictor of "high risk" is repeated prison sentencing. This classification therefore probably feeds itself.

On a more general note, I hope that releasing the data also means that our judicial apparatus might rethink some of its policies and approaches. In Malcolm Feeley and Jonathan Simon's 1992 piece The New Penology, they argue that our "actuarial" approach to justice is behind a transformation from external correctional goals (e.g. reducing recidivism) to internal goals (e.g. reduce riots and escapes). If someone is keeping track of recidivism data, let us hope that the data actually gets used.

Incarceration Map

from Online Education (click on link for full size). Props to Jesse Stout for finding this.



Created by Online Education