California Prison Population Reduction: First Benchmark

December 27th was the first benchmark for reporting the progress in prison population reduction to the federal three-judge panel. CDCR's press release on the matter reports:

As of December 14, the state’s 33 prisons held 134,804 inmates and were at 169.2 percent design capacity. Since October 1, the state prison inmate population has been dropping by an average of 933 inmates per week without the early release of any state prison inmates.

This comes fairly close to the 167 percent set by the federal panel, and CDCR is confident that it can meet the June 12 benchmark. More data and the graph are available here. Here are the actual numbers of inmates, measured weekly:

Make no mistake; 169.2 percent capacity is still very, very overcrowded. But it is, indeed, an improvement from the statistics that started off the litigation. What remains is to figure out how this has impacted county jail population. If the realignment has merely displaced people, or worse, increased their numbers elsewhere, the trend has not really been reversed, and we may be looking at a county-level version of Plata at some point in the future.

California Chief Justice Urges Reconsidering Death Penalty

In an interview in today's Los Angeles Times, California Chief Justice Tani Cantil-Sakauye expressed her concerns about the death penalty and encouraged a public debate about its abolition.

"I don't think it is working," said Cantil-Sakauye, elevated from the Court of Appeal in Sacramento to the California Supreme Court by former Gov. Arnold Schwarzenegger. "It's not effective. We know that."

California's death penalty requires "structural change, and we don't have the money to create the kind of change that is needed," she said. "Everyone is laboring under a staggering load."
In response to a question, she said she supported capital punishment "only in the sense I apply the law and I believe the system is fair.... In that sense, yes."

But the chief justice quickly reframed the question.

"I don't know if the question is whether you believe in it anymore. I think the greater question is its effectiveness and given the choices we face in California, should we have a merit-based discussion on its effectiveness and costs?"

I think that is a terrific distinction between the judicial role of applying the law and the public and legislative law of reevaluating and changing it.

CDCR Publishes Decrowding Photos

 When we started the California Correctional Crisis blog in 2008, we opened with a post linking to this story from NPR, and included an image of makeshift beds in the gym. Would you believe then that you would be seeing images like the one on the left?

CDCR has published a series of images on Flickr showing decrowded facilities. Do watch the whole slideshow. While these are not quantitative data, they are, indeed, powerful; the before-and-after shots are particularly striking, though I'd be more impressed if they were properly labeled and depicted the exact same locations. For the actual numbers you'll have to wait three days; December 27th is the first court-mandated benchmark for monitoring the progress of population reduction ordered in Brown v. Plata. And, of course, the CCC blog will accompany you then and comment on the state's progress in decrowding its prisons.

Realignment: An Opportunity to Rethink Corrections

Some of the recent developments in realignment implementation, such as the request for jail expansion in Los Angeles County and Riverside's shocking vote to charge inmates $140 per night for their jail stay, make one ponder whether counties really understand the idea behind realignment legislation.

AB 109 is not merely a jurisdictional change. The legislator intended an actual ideological shift in how California treats its inmates. A simple read of the bill's text provides ample proof of that. The bill explicitly states that there would be a preference for intergration in the community, through programs like home detention. More importantly, it shifts inmates from state parole supervision to community postrelease, meant to provide better integration in the community. And to achieve that, community corrections partnerships have been formed in the counties and tasked with planning release in the context of a given community. Yes, the impetus for the realignment was fiscal, but there is ample evidence that this is intended to be a true paradigm shift. This story from Western Cities makes a great read in that respect.

If so, old-school thinking about construction and warehousing needs to be set aside and new models need to be considered. For example, why not reconsider felon disenfranchisement and extend voting rights to jailed inmates? As this ACLU guide explains, felons on parole currently cannot vote, but what about folks on community postrelease? Not only does it appear that these folks are not "on parole", but rather under a probation-like regime, and can therefore vote, but it's also sound public policy: There's robust statistical proof that extending voting rights to people, and getting them involved in civic life, significantly contributes to recidivism reduction. Many countries in the world think nothing of providing inmates with voting rights as they do their time, not only upon release. Reintegration into society and reducing reoffending: Isn't that what this is all about?

Here's another example: As we discovered on our Food Deserts conference earlier this Fall, there are some beautiful prison projects that include community gardens and the like. The produce cannot, for various reasons, be consumed by CDCR inmates themselves. But why should local jail inmates not enjoy the fruits of their labor? And if, for some reason, that doesn't make sense, why not combine their jail sentence with some landscaping work in urban gardens so that low-income families can get more fresh produce?

A third possible opportunity, borrowed from a suggestion Jonathan Simon made at a public talk in 2009, and which would become much more pertinent now: Given the concerns about infrastructure disasters and earthquakes in California, why not use jails and community postrelease programs to teach more inmates and released folks to save lives, homes, and businesses? It is an important function that we would all benefit from.

I truly hope that some counties will be able to think outside the box, set aside their appetite for construction and warehousing, and seize the realignment for what the legislators intended it to be: An opportunity to reverse the California correctional crisis.

Realignment: How Not To Do It, the Construction Version

Californians United for a Responsible Budget (CURB) are raising some serious concerns about rehabilitation implementation. They are circulating a petition against the Riverside County plan to charge inmates for their stay, and also spearheading an effort to stop a planned Los Angeles County jail expansion.

Under AB 900, counties have been invited to appeal for Phase II funding to increase their jail capacity. The list of counties is here; Los Angeles tops the large counties' list.

One of the arguments usually thrown around in support of realignment is that even if the counties do a bad job at imprisonment, they cannot possibly be worse than the state. I'm beginning to think that, in some cases, that may not be true. There is no reason to believe that the state administration has all the punitive foolishness and the counties, all the recidivism-reducing wisdom. It is time for the counties to wake up and seriously commit to the goal of reducing confined population (and the expenses involved in confining it). Otherwise, a precious opportunity will be lost.

New Execution Procedures Deemed Unconstitutional

Those who have been following up on death penalty practices in California recall that, after a six-year hiatus, CDCR instated new proceedings. Now, a Marin County judge has found the new proceedings unconstitutional, which might mean a longer delay.

The L.A. Times Blog reports:

A judge on Friday threw out California's new lethal-injection protocols, which have been six years in the making, because corrections officials failed to consider a one-drug execution method now in practice in other death penalty states.


The action by Marin County Superior Court Judge Faye D'Opal sends the state back to square one in redrafting procedures for lethal-injection executions. The death penalty has been on hold for six years in California after a federal court ruling deemed the previously used three-drug method unconstitutional because it might inflict pain amounting to cruel and unusual punishment.


D'Opal said in her 22-page ruling that the state's failure to consider replacing the former execution practice with a single-injection method violated state law and ignored the courts' and public criticism of the previous protocols.

Readers who are fed up with the new moves to tinker with the machinery of death, and who find themselves exasperated with the prospect of a CDCR appeal of Judge D'Opal's ruling, might find the SAFE voter initiative to abolish the death penalty in 2012 an attractive option. It would certainly put an end to the quibble over technicalities.

If you are on the fence about this, perhaps the humonetarian argument from the L.A. Times story will convince you:

A three-year study published earlier this year by a federal judge and a Loyola Law School professor reported that taxpayers have spent $4 billion to carry out 13 executions since capital punishment was reinstated in 1978, and that it costs at least $184 million a year to maintain death row and the capital defense system.

Realignment: How Not to Do It

Our outrage-de-jour for today comes from that paragon of punitivism, Riverside County (also responsible for many of CA's death sentences). How to handle realignment and an influx of jail inmates? Let them pay for their stay.

I kid you not. The New York Times reports:

With already crowded jails filling quickly and an $80 million shortfall in the budget, Riverside County officials are increasingly desperate to find every source of revenue they can. So last month, the County Board of Supervisors voted unanimously to approve a plan to charge inmates for their stay, reimbursing the county for food, clothing and health care.


Prisoners with no assets will not have to pay, but the county has the ability to garnish wages and place liens on homes under the ordinance, which goes into effect this week.


As the county supervisor who pressed for the ordinance, Jeff Stone, likes to put it: “You do the crime, you will serve the time, and now you will also pay the dime.”

You like the rhyme? Are you a mime? Do you have lyme? Really, if we decide to adopt inhumane, atrocious and self-defeating policies, can we do so based on something empirically loftier than a cute word play?

A slightly less unacceptable explanation comes from neighboring Orange County:

“Sometimes you attack the absurd with the absurd,” said John M. W. Moorlach, an Orange County supervisor. “We’re all messaging to Sacramento that the state has do more than just take our money and download prisoners to us. We’re all finding different ways to scream.”

Mr. Moorlach - you are not writing a Samuel Beckett play. You are dealing with human beings, and the goal, supposedly, is for them not to return to prison. How is placing a lien on their post-jail earnings conducive to that?

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Props to Amir Paz-Fuchs for the link.

Book Review: Thinking, Fast and Slow

Daniel Kahneman's new and fantastic book Thinking, Fast and Slow is a fascinating journey into an intellectual career spanning more than forty years. Kahneman, who won the Nobel prize for his work on rationality with Amos Tversky, presents a lifetime of research and findings into human rationality and its fallacies in a coherent, intriguing and convincing way. It is a book I would wholeheartedly recommend to anyone regardless of the context of criminal justice. Kahneman and Tversky's ideas on rationality, however, have special bearing on issues of criminal justice policy, and the book might therefore be particularly interesting to this blog's readership.

To fully understand the novelty Kahneman's (and Tversky's) Nobel-winning ideas, it is important to keep in mind that they were generated against the backdrop of very traditional ideas of human rationality in economics. Classic economic theory assumes a human subject who is fully rational, fully knowledgeable, and operates within a framework of cost-benefit analysis. Kahneman and Tversky, students of human behavior rather than of economics, devoted their careers to questioning and refining this model of human cognition to accommodate flaws and fallacies in rationality, revolutionizing the field of economics and enriching it with empirical insights about the actual and irrational workings of human behavior patterns. Which is how a psychologist ended up receiving a Nobel prize for economics.

Kahneman introduces his ideas to the public through a fresh perspective that serves as the leitmotif of the book. Our thinking, he argues, is characterized by two modes, or systems, if you will. System 1 is responsible for the quick-and-dirty judgments and conjectures that allow us to instantaneously make sense of the world. When more effort is needed, System 2 snaps into action, and engages in the complex thinking required to solve problems or think outside our cognitive box. The problem is that System 2 is lazy. It does not come into play unless it absolutely must, and it takes an effort to engage. So, our default mode is to slack and allow System 1 to do our work for us. The result is that we generate our opinions about the world in ways that rely on shortcuts, assumptions, stereotypes, overly causal interpretation, and anchors, that are flawed and lead us to making a myriad of mistakes.

Kahneman proceeds by mapping for us, chapter by chapter, a series of these fallacies. Among the heuristics and biases he mentions are the halo effect (forming an opinion of something based on one or two qualities and extrapolating), What-You-See-Is-All-There-Is (WYSIATI - relying on whatever information is available, no matter how flimsy and unreliable), anchoring (linking our assessments to whatever number is thrown out, no matter how improbable), substituting difficult questions for easy ones, ignoring base lines, ignoring regression to the mean, and creating overly causal narratives for things that could be accounted for through pure chance. He then walks us through the impact these fallacies have on professional decision making, and finally through his more recent work on happiness.

The book is fascinating for anyone who is interested in understanding human behavior, but I found its implications for criminal justice policy particularly startling. The insights on flawed rationality can explain not only public punitivism and voter initiatives, but also the flawed behavior of professionals: judges, prosecutors, and defense attorneys. Here are some of the many examples of possible applications.

A recent Supreme Court decision grappled with the question how to prevent injustices stemming from the prosecution's failure to comply with the Brady requirement to disclose to the defense "any exculpatory evidence". The assumption made by the Court is that monetary compensations to exonerees who were wrongfully accused without an opportunity to receive evidence in their favor are only effective when prosecutors acted out of malice. In a paper I presented at a Constitutional Law conference in Chicago, following Kahneman, Tversky, and a solid body of behavioral research, I suggest that many Brady violations may not be attributable to anyone's fault, but rather to confirmation bias: Prosecutors and defense attorneys simply read evidence differently, and prosecutors, given their professional environment and their pro-government bias and socialization, are less likely to view evidence with an eye toward its exonerative potential. I'm in the process of devising a study to examine the existence and extent of confirmation bias in prosecutorial and defense perception of evidence, as well as its causes.

Another big area where heuristics and biases are important is sentencing. Kahneman's book is full of examples of flawed decision making due to chance issues. Notably, he cites a series of studies comparing judicial decision making to those of computer algorithms, finding that the computer makes less mistakes. But he also shows how judges making parole decisions tended to be more generous in terms of release immediately after eating, when their ability to access System 2, and their cognitive ease, were at their prime. This is, of course, greatly disturbing, and a factor to keep in mind when thinking of the strong judicial opposition to sentencing guidelines and any form of diminished discretion. Contrary to the bon ton in today's analysis of the correctional crisis, it may well be that sentencing guidelines and the diminishing discretion of judges were not a fatal decision reached by overzealous punitive right-wingers and misguided left-wingers, but rather a good decision, whose adverse effects are not due to the decrease in judicial discretion, but due to the increase in prosecutorial discretion.

Another important implication of al this risk prediction and algorithms. Kahneman's experiments strongly support favoring the quantitative tools used by various correctional systems, including CDCR, over the sort of clinical risk assessments popular in the early 20th century. The concern we have with giving machines the power to assess individuals' risk based on stereotypes may be exaggerated, Kahneman's work suggests. Humans may make more serious mistakes, and reliance on past predictors of recidivism or parole violations are more reliable than intuitive impressions of trust and sympathy.

An area I find particularly compelling is the study of public punitivism, and prospect theory could have a field day with what we know of this. A decent argument can be made that much of what passes for public decision making in the field of voter initiatives is System 1 work. First, the public's reliance on "redball crimes" - shocking instances of horrifying, sensationalized crimes, that receive a lot of media attention - is a prime example of WYSIATI. Rather than engaging with statistics that expose the entire picture of crime reality, we rely on what is salient and reported, rather than with what we know to be truer. Moreover, much of the punitive legislation against sex offenders might be an example of substituting difficult questions with easy ones. Rather than thinking what sort of punishment sex offenders deserve, or how many resources to invest in punishing them, or which measures would reduce recidivism, voters may be thinking on how much they dislike sex offenders. A System 1 mechanism of "translating scales" converts the extent of dislike and revulsion to a measure of punishment, and punitive voter initiatives are born and passed as law.

There could be many more examples of possible applications, and I'm happy to entertain some of these in the comments. i just want to add a  final note on the delights of Kahneman's book: What distinguishes this book from other popular behavioral science books, such as Dan Ariely's Predictably Irrational, or Malcolm Gladwell's Blink, is not only its quality--Kahneman respects his readers, does not oversimplify, and happily shares the depth of his intellectual process, which places this book in a class of its own--but the moving, nostalgic tribute it makes to the working partnership and decades-long friendship between him and Tversky. As many friends who have collaborated on research projects know, the relationship between collaborators is unique and special; the curiosity and give-and-take of the work creates a strong bond. The book is a love letter to Tversky and to the two researchers' community of students and colleagues. One can almost walk side by side with Tversky and Kahneman, listening in on their conversations and debates, witnessing the generation of ideas sparked by their easy, friendly conversations, and feeling the parental warmth of their respect and enthusiasm for the success of their intellectual children and grandchildren: professors, postdocs, and graduate students. It is a pleasure to enjoy this additional dimension on the book, made more poignant by the heartbreak over Tversky's untimely death at 59 in 1996, six years before the Nobel prize win. And it is a reminder of how important it is to appreciate one's scientific community, or scientific family, and its contributions to one's intellectual and emotional life.

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Many thanks to Haim Aviram for our discussions about this post and to Robert Rubin for the recommendation.

Ajami, Part Two: Romanticizing Alternative Dispute Resolution and Its Discontents

One of the most hotly debated issues in criminal justice involves the many suggestions to reform what many perceive to be a deeply dysfunctional courtroom process. In suggesting alternatives, commentators have pointed out some of the difficulties with the existing process: A focus on stigmatizing and shaming the perpetrator, ignoring the role and interests of the victim and the community, viewing the issue through the prism of the specific event without reference to the holistic context, and ignoring the importance of restoration and reintegration. These critiques have formed the basis for a variety of alternative processes which, while different from each other, are similar in their efforts to remedy these ills. As examples, we have community courts, drug and mental health courts, victim-offender mediation, family group conferences, restorative circles, and the like.

Ordinarily I would not lump these different suggestions together, but it is important to point out that these models share an interesting feature: A nostalgic, escapist reliance on the way dispute resolution is done in distant, exotic locations, or in forgotten times. Today's implementation may be less idealized and fanciful--problem-solving courts have certainly been around for a while, long enough to forget those roots--but these inventions harken back to writings by criminologists in Australia and Scandinavia, who compared our Western Industrialized model of justice to those in other times and places. Nils Christie's Crime Control as Drama, and Conflicts as Property, both urged to humanize the criminal justice process, giving the example of a community dispute resolution process in Kenya. John Braithwaite and Philip Pettit's Not Just Deserts has been tied to the pioneering Family Group conference practices in New Zealand. In Israel, judges sometimes award importance to the fact that a long-standing family feud between Bedouin clans had been resolved by a sulcha method. A paper by Ron Shapira even urges courts to pay more attention to sulcha as a mitigating factor in punishment, as a way of validating multiculturalism and providing legitimacy to these ancient processes of forgiveness and reconciliation.

But is the sulcha, or the reconciliation, or the conference, really all that? The sulcha scene in Ajami presents us with some serious doubts about its fairness and effectiveness. In the scene, a boy whose uncle was murdered by members of another clan seeks reconciliation with the enemy clan in an effort to save his family's lives. The process is depicted with stark realism. The cold negotiations, the status differences, the judge's monetary rewards for brokering peace, and the involvement of underworld characters in brokering the compromise, all suggest that romanticizing this as an exotic, peaceful process, superior to criminal justice, is naive and futile.

To wholeheartedly accept an indigenous practice and praise it without critique is as paternalizing as it is to reject it wholesale. An honestly curious and just judge would inquire as to the realities of this bargain and strive to understand any power or status differences that may have influenced the outcome. This is not to say that restorative justice processes, and holistic courtroom practices influenced by other times and places, are categorically bad. It is just a reminder not to embrace such processes without asking the same difficult questions we ask of our existing criminal process.

Ajami, Part One: Between "Security Crime" and "Ordinary Crime"

As I post this, I am en route to Israel, to participate in the Israeli Law and Society Association Annual Meeting. At the conference, I plan to discuss a recent Israeli-Palestinian film, Ajami. The film examines the complex relationships between Israeli Jews, Israeli Arabs, and Palestinian undocumented workers, in the Ajami neighborhood in Jaffa. The plot is incredibly complicated, and throws the heroes of our story into a web of drugs, violence, political turmoil, and neighborly disputes. It is the perfect film for any criminal justice scholar and practitioner who wants or needs a window into the Israeli criminal underworld.

At the talk, I plan to use scenes from Ajami to uncover and dispel two prevalent myths in Israeli criminal justice: The dichotomy between "crime" and "security" and the romanticization of restorative justice. This post will be devoted to the first of those myths.

Israeli newspapers often report of ongoing police investigations, particularly of violent crime, by pointing out whether the investigation is pursuing a "criminal angle" or a "security angle". The assumption is that these two categories--security crime and ordinary crime--are mutually exclusive, and each requires a different model for understanding and approaching it. These models are different in our perception of them, in our discourse about them, and in the techniques and technologies we apply to them.

"Security crime" is special and takes prevalence over "ordinary crime". When an act is labeled a "security crime", it is placed in the context of the permanent state of emergency in Israel. It is seen not just as a threat among criminals or to the "other", but as a direct threat to "us", the collective Israeli social fabric. As such, it draws in the army as a primary respondent, as well as the increasingly militarized Israeli police (now governed by the Ministry for Internal Security, rather than its former name, the Ministry of Police). Investigations into security crimes bring to life the dilemma of torturing suspects, supposedly forbidden by the Supreme Court, but alive and well (albeit reduced) according to human rights organizations.

The isolation of security crime above all crime, and the approach that it is somehow special and merits special governing techniques, is a feature of the general, ethnicity-based "divide and conquer" taxonomy Israel applies to its residents and their problems. Among some examples of these approach, we can think of the un-Arabizing of Israeli Druze citizens (some of whom serve in the army as military judges and attorneys); the un-Palestinizing of Israeli Arab citizens; and the supposedly impermeable boundaries between race, religion, and degrees of religiousness.

There are several problems with this rhetoric. The first is that it is false. The Israeli crime map, masterfully exposed and illuminated in Ajami, shows that the distinction between security crime and "ordinary" crime is false. Crime occurs across all categories, and the complex motivations behind the crime cannot be reduced to a national/profit-based dichotomy. In fact, the supposedly impermeable boundaries in society constitute optimal conditions for crime to occur: The Israeli car theft industry flourished due to these boundaries, as seventy percent of all stolen cars in Israel found their way to chop shops in the Palestinian authority. Ironically, what reduced much of this activity was a non-security, specified policing unit dedicated specifically to car theft, and unpreoccupied with the security/crime dichotomy.

Another problem with this dichotomy is that it allows the Israeli public to keep criminal activity compartmentalized and labeled, without making the connections between different types of marginalization. That the occupation creates undocumented labor markets plagued by illness and poverty, which in itself gives rise to "regular crime", is conveniently hidden from the overt discussion of "security crime". Moreover, while "security crime", such as the kidnapping of a soldier, serves a Durkheimian function of galvanizing and uniting us, "ordinary crime", especially in the context of organized crime or drugs, creates a sense of alienation and indifference. Not only is this harmful to law enforcement efforts, it is harmful to our national psyche. This approach of alienation reminds me of a phenomenon that Darnell Hawkins discusses in the context of African American crime: While crimes perpetrated by Black offenders against White victims are seen as threatening, crimes within the Black community are treated with relative leniency and indifference.

Some of the implications of this dichotomy can be seen in the realm of criminal courtroom practices and sentencing. Research consistently confirms that Arab defendants are treated worse by the Israeli law enforcement system, starting with arrest rates and ending with sentencing. Is this mere ethnic discrimination? Or does it stem from the suspicion that any crime involving an Arab or Palestinian defendant has some security overtones that require attention and special severity?

But one of the most harmful effects of the dichotomy is related to Jonathan Simon's Governing Through Crime. In the book, Simon argues that one of the perversities of modern society is seeing everything through a lens of crime and victimization. Citizens come to see themselves primarily as potential victims, which affects our modes of living, our choice of vehicles, our recourse to situational crime prevention, and our demonization of cities, urban youth, and the poor. Simon makes the suggestion to shift from models of "war on crime" to "wars" on something else, such as cancer or natural disasters. My critique of Simon's argument builds on the Israeli experience. As opposed to the U.S. experience, in which crime is a metaphor for anything else, in Israel war in itself is the metaphor, for crime among other things. While the boundaries between "security crime" and "ordinary crime" remain in place, the prestige, urgency and importance of security-related concerns creates a warped social universe in which, to gain priority for one's issue, the issue needs to be framed in terms of national security. And so, the police becomes increasingly militarized, in discourse as well as in approaches and technologies; and we launch war against environmental pollution, obesity, and other harms that are analogized to the security survival threat. This survivalist approach creates a culture of fear that magnifies, and sometimes exceeds, its counterpart in the United States.

More on this in our next post.

Plea Bargains: Not Such a Bargain

A new study by David Abrams, recently published in the Journal of Empirical Legal Studies, casts doubt upon one of the classic assumptions of the criminal process: That plea bargains pay off for defendants.

More than 90% of all criminal cases, in CA and elsewhere, end in plea bargains rather than in a jury trial. Rather than this being an aberration, it is, as some commentators believe, a necessary mechanism to account for the cost and hassles of an impractical and unsustainable jury system.

The common understanding of the plea bargain system is that each party to the agreement gains and loses something by the bargain. The prosecution is prepared to offer a sentence that is less than what the defendant might receive from the judge in return for an expedited and less expensive resolution of the matter, leaving prosecutors with more time to devote to cases on trial. The defendant, however, gives up his/her right to trial for the certainty that s/he will not incur a "trial penalty", that is, be sentenced more harshly by the judge if he or she is convicted.

But it turns out this may not be true.

In Is Pleading Really a Bargain?, Abrams runs regressions on a dataset from Cook County in an effort to predict which trial strategy (trial or plea bargain) yields a more lenient sentence. The results, as described in the abstract below, are surprising.

A criminal defendant's decision of whether to accept a plea bargain is one with serious consequences both for his or her immediate and long‐term future. Conventional wisdom suggests that defendants are better served by entering into a plea bargain, to avoid what is known as the “trial penalty.” In this article I present evidence that this notion is likely mistaken. In OLS regressions using data from Cook County state courts, I find that a risk‐neutral defendant seeking to minimize his or her expected sentence would do substantially better by rejecting a plea bargain. I also employ an IV approach to the question and, while the instrument is weak, the results are consistent with the OLS: defendants are better off going to trial.

Admittedly, there are some methodological problems with Abrams' piece. Since he's using court data, he cannot appropriately control for self selection of cases; it may well be that defendants who chose to go to trial did so because they, or their defense attorneys, thought they had a better chance with the judge. Nonetheless, his analysis is impressive.

Abrams offers two possible explanations for his data. The first is the availability heuristic. Defendants perceive trials as being more lengthy and more harsh, because they are exposed to sensationalized trials via the media. The second is the difference in interest between defendant and defense attorney, which I expect grows when public defense offices are weighed down with caseload and slashed budgets.

I have a third possible explanation, which I believe is at least as plausible. In a world of mass incarceration and normalized, mechanical sentences with little discretion, bargaining is more like buying groceries at a supermarket than at a Middle Eastern bazaar (this analogy is Malcolm Feeley's). In this sort of situation, the bargain price comes to manifest exactly what the prosecution expects from the court given the vast amount of evidence predicting it. The cases that go to trial are cases in which the defense believes there are enough unique features to take them out of the "normal crimes" category and make them seem special enough to the judge to warrant a downward departure from the acceptable range. And so, since so few cases go to trial, the ones that do appear special and benefit from the special attention. Some research by the late Yael Hassin, which compared actual parole committees to computers in terms of predictions of dangerousness in early releases, suggests that providing agencies with more discretion (in parole, sentencing, and the like) yields more merciful and lenient results. If so, it is not surprising that judicial attention, in a universe of otherwise mechanized sentencing, yields more lenient sentences.

Policing a Legalized World: Marijuana Growing, Searches, and Probable Cause

One of the things people often forget in debates about legalizing marijuana is that any effort at regulating a field creates interesting ambiguities. Our example-de-jour comes from the city of Arcata, where a lawsuit has been filed against the police for searching a house in which medical marijuana was grown. Here are the facts from the newspaper:

The claim -- based on injuries allegedly suffered by Sage and her late husband, Charles Sage, 67 -- alleges that Arcata Police officers unlawfully searched the Sages' Zehndner Avenue home early in the morning of May 27, when Sage opened her door to an officer disguised as a utility meter reader only to have about a dozen officers enter her home with guns drawn. No marijuana was found on the premises.


While officials declined to comment specifically on Sage's claim, they said law enforcement acts in a good faith attempt to target individuals who are in flagrant violation of Proposition 215 and Arcata's medical marijuana ordinance. However, they noted that most violators do so under the auspices of medical marijuana and that the foggy state of California's laws make enforcement a tricky endeavor.

Here's the problem: Arcata's medical marijuana growth is regulated by a land use ordinance "which allows for grows of up to 50 square feet and utilizing no more than 1,200 watts per residence." That is, while you need a CA card to be a medical marijuana user, you don't need one to be a grower. There is no approved list of growers anywhere, and Sage and her husband grew marijuana for Charles Sage's prostate cancer and other ailments.

So, what was the police doing there? Well, the basis for the search warrant was marijuana smell emanating from the house. But hey - in order to obtain a search warrant, there has to be probable cause that an offense is being committed. In a post-prop-215 world, growing marijuana in itself is not an offense; growing it in violation of the ordinance is. The smell alone does not furnish probable cause that an offense is being committed.

But what is the police to do? Is home search the only way to ascertain whether there is compliance with the ordinance? If the smell of marijuana does not imply illegal activity, then something more is needed. The police could stake the house and see if there is an unusually high volume of people coming and going; conduct undercover investigations; or do something of the sort. Interestingly, in Kyllo v. United States (2000), the Supreme Court banned the usage of thermal images to scan a house for heat activity (including marijuana growth lamps). The reasoning was that it's an invasion of one's home. Ironically, in a post-215 world, Sage's privacy would be less intruded upon through the usage of a thermal imager, that could tell the police whether she's growing the allowed amount, than through a full search of the house with guns drawn. This is an interesting example of the many enforcement dilemmas the police would have to cope with had Proposition 19, which allowed home growth for personal use, passed. And it is a reminder that legalizing drugs for personal use requires careful attention to detail.

Realignment Funds: How to spend them?

This morning's Chron has a fantastic story by Marisa Lagos about counties' preparation for realignment. Among other things, it includes this critique from CJCJ:

Daniel Macallair, executive director of the Center on Juvenile and Criminal Justice in San Francisco, said the discrepancies between counties mirror what was already happening in each jurisdiction prior to realignment. The center conducts criminal justice research and provides direct services, including a substance abuse program for adults who are released from prison.


"Most counties are not prepared to meet the challenges of realignment, and for many of them it's their own fault. They have engaged in bad practices and policies for 30 years," he said. "The counties that will have the hardest time are some of the Southern California and Central Valley counties that have relied heavily on the state prison system."


Macallair said probation departments need to change the way they approach their job and rely more on the community.


"What people don't realize is that even though we're the state of California and we have one set of criminal laws, you have 58 counties responsible for interpreting and applying those laws and essentially 58 different criminal justice systems," he said. "You're going to have well functioning counties able to meet this challenge and a lot that are going to lag behind. There's nothing uniform about this."

Fresno County Jail Frees Parole Violators

http://m.fresnobee.com/fresno/db_271104/contentdetail.htm?contentguid=94xC336S
Fresno & Valley News

No room in Fresno Co. Jail for parole violators

Posted: 11/26/2011 10:29 PM

In another sign that Fresno County is struggling to manage more criminals, the sheriff has ordered that state parole violators no longer will be held at the county jail.

The parolees, who were once sent to state prison if they got into trouble, are now sent to local jails instead – part of the state's recent realignment of the penal system. But in Fresno County, where the jail already is crowded, the Sheriff's Office has determined there's no room for the former convicts.

State parole officials, acknowledging counties are being asked to do more under the realignment, say they'll try to find other ways to deal with problem parolees.

Orders to not lock them up began Thanksgiving Day. While the jail has long been releasing inmates early because of the lack of space, the directive to turn away parolees only reinforces concerns that criminals aren't serving the time they should.

"They're out in the community and they're violating their parole, and when there's no consequence for violating, that's going to be a public safety issue," said Kelly Keenan, chief assistant district attorney for Fresno County.

Book Review: Inside This Place, Not Of It

A new title from Voice of Witness, Inside This Place, Not Of It, provides a series of narratives based on interviews with incarcerated and formerly incarcerated women. The book personalizes the background stories of women in prison, their experiences within walls, and their difficulties upon release.

The editing is graceful, light-handed, and almost invisible, making the stories ring true and fresh, as if the reader is sitting in the room with the speaker. Most of the time, the editors' hand is only seen in a helpful introductory paragraph, and the quality and sensitivity of the interviews themselves shines through the stories. There is something very genuine about some women's willingness to discuss the offense that brought them to prison, and others' reluctance to elaborate on the more difficult parts.

A few common themes emerge. So many of these stories begin with familial neglect and abuse, set in a general environment of deprivation and discrimination. The balance between being a product of one's environment and having personal responsibility for one's actions is delicate, but many of the interviewed women are very thoughtful and reflective, and provide a nuanced understanding of their actions in the context in which they were committed.

The two most alarming aspects of the narratives, for me, involved seldom-highlighted aspects of women's imprisonment. The first is the truly shoddy health care system. Shocking stories of giving birth while shackled and being separated from one's baby, receiving a mistaken HIV diagnosis that remained uncorrected for years (and treatment for it), having one's diabetes untreated and undiagnosed, callous carelessness about the possibility that an inmate might lose all her teeth, repeat themselves throughout the book.

The other aspect is the frequency with which sexual abuse by guards occurs in the prison environment. Many women report sex with guards under physical coercion or lack of choices, and for many of them, speaking up and complaining entails harsh retaliation and isolation from the prison staff as well as the inmates. Popular culture tends to focus on rape and sexual assault among inmates. It would appear that assault and exploitation on the part of staff requires much more serious and urgent attention.

The book also includes a series of great appendices, providing solid, readable information about topics such as the Prison Litigation Reform Act (PLRA), health care issues, and the incidence of prison rape. I can't recommend this enough as a great, honest window into lives seldom discussed publicly.

Prison plan sways prosecutors in filing charges

Check out yesterday's piece in the Chronicle about prosecutors' reactions to realignment. In particular, this scary quote:

"After all, it doesn't matter what prosecutors charge a person with if they don't have the evidence to win a conviction, said California District Attorneys Association Chief Executive Officer Scott Thorpe."

Whole article:

Los Angeles District Attorney Steve Cooley's office handles about one-third of California's felony convictions, making this single county critical to the success of Gov. Jerry Brown's plan to reduce prison overcrowding by sentencing nonviolent felony offenders to county jails.

Cooley, however, is a Republican who adamantly opposes the Democratic governor's plan and is training his staffers to do everything they can to work around it - including pushing for the most serious charges to ensure that as many offenders as possible are sentenced to state prison. In a recent interview, Cooley said he is trying to mitigate the "public safety nightmare" that realignment will bring - particularly in a county like Los Angeles, where the jails are overcrowded and the sheriff regularly releases offenders early.

"It is going to lead to an increase in crime, which is unfortunate, because Los Angeles is at a 60-year low," he said. "There is no place for them to serve their sentences."

Cooley and his senior staff said the office may take this training to other counties as well.

A greater stake

Brown's realignment plan, which took effect Oct. 1, changes the way California locks up criminals: Those convicted of nonviolent felonies - such as drug possession and auto theft - serve time in county jail instead of state prison, and will be supervised by county probation departments rather than state parole officers. The program is a response to a U.S. Supreme Court order to reduce the state's prison population by 33,000 inmates by 2013.

The plan is supposed to give local officials, including prosecutors, a greater stake in the outcome of criminal cases in their counties. For prosecutors, that could mean more incentive to pursue probation and other alternatives to incarceration in low-level cases, because the cost of caring for that inmate now falls to the county, rather that state.

But even in liberal cities such as San Francisco, some defense attorneys say they are not seeing changes in the way prosecutors handle low-level cases. San Francisco District Attorney George Gascón supports realignment but argues that some offenders are not good candidates for staying in local jails or serving probation because of past crimes.

Prosecutor reaction

Though most of the attention surrounding realignment has focused on how sheriffs' departments, which run jails, and probation agencies, which will be supervising far more offenders, will handle that workload, experts say the way prosecutors react to the change in law could have a huge impact on the program's ability to reduce the state prison population and curb the state's 67 percent recidivism rate.

UC Berkeley criminologist Barry Krisberg noted that offenders convicted in Southern California counties make up the majority of the state prison population, and leaders there tend to be the most skeptical of the realignment plan. If prosecutors in those counties do not change the way they approach and charge cases, he said, the state prison population will continue to rise.

"The heart of the matter is, 'Is there any commitment to use realignment as a way to advance rehabilitation?' Clearly some places are doing that - Santa Clara and Alameda, and San Francisco will make a good effort," he said. "But the larger question is, once you get to the jurisdictions that are dubious about realignment, that have not bought into rehabilitation as the main goal of the justice system, are we just going to see people gaming the system?"

'Scouring' records

Cooley said his office is teaching its lawyers to "scour" criminal records to make sure they note any prior offenses when they file new charges, and to make sure that new charges include offenses categorized as serious, violent or sexual when possible.

"We are trying to create awareness among law enforcement," he said. "They don't all realize how devastating and disastrous this will be."

It's unclear how much impact these charging decisions will have on convictions, and ultimately, the prison population. After all, it doesn't matter what prosecutors charge a person with if they don't have the evidence to win a conviction, said California District Attorneys Association Chief Executive Officer Scott Thorpe.

"It goes back to an individual district attorney's philosophy (and) charging decisions," he said. "There are certain things that obviously disqualify you from realignment, but if you look at a case and say, 'Here are our charging choices,' there is discretion and clearly counties will apply it differently. But discretion is only as broad as the evidence."

Some prosecutors have publicly embraced the goals of realignment, including Gascón. He is sponsoring legislation to create a San Francisco sentencing commission, is in the process of hiring a sentencing analyst to work with prosecutors, and said he has been "talking to staff for months now about how we can do everything we can to actually make this work, and to do it in a way that that creates better outcomes for the community."

Making it work

"My philosophy is that we want to be creative, we want to work within the system and we want to make it work - but obviously, we are always looking out for public safety," Gascón said. "But there are some people that are not going to qualify for realignment, because they have a history of violence or sex crimes."

One of those people, he said, is Jason Collins, a 30-year-old man who will be sentenced Monday for selling 0.19 grams of crack to a police officer. He is facing up to 11 years in state prison.

Qiana Washington, Collins' public defender, said he has a long history of drug abuse but has never been offered treatment. Washington said Collins was offered a plea deal of three years in state prison in the most recent case, but elected to go to trial because he denied selling the drugs and claimed he was beaten by the arresting officers.

"To me, it seems like prosecutors are going for more state prison - I have another case where the offer before realignment took effect was one year in county jail, and now, after realignment, they want three years in state prison. It's not like the case has changed in any way," she said. "It doesn't seem to be in line with what the citizens of the state want to happen (to drug offenders), and it doesn't seem like it will do a lot of good."

But Gascón spokeswoman Stephanie Lee said Collins was convicted of robbing an 83-year-old man in 2007 - a violent offense that automatically disqualifies him from a county-jail sentence. Washington argued that prosecutors could have moved to strike the prior offense from his record. The district attorney's office disagrees.

"Mr. Collins had the chance to accept responsibility and plead guilty and he chose not to and went to trial," Lee said. "He attacked an 83-year-old man ... that is not a nonviolent offense."

Gascon said that his office is "looking at one case at a time," to determine what is best for both an offender and the community.

"We really are trying to look very globally at an offender as opposed to just their offense," he said. "Safety is always the overarching concern."

E-mail Marisa Lagos at mlagos@sfchronicle.com.

This article appeared on page A - 1 of the San Francisco ChroniclE.

Juvenile Curfews?

Recently, the Oakland City Council degerred voting on a proposed juvenile curfew, titled the "Juvenile Protection Act". Is it a good idea to enact such curfews,and what is their effect on crime?

Some evidence, including this paper by Patrick Kline, suggest that youth curfews overall are effective in reducing crime for the juveniles below curfew age, but have no spillover effects above the curfew age. The study's population was that of cities with a 1990 population greater than 180,000, and compared cities with municipal codes that included youth curfews. The focus was on serious felonies, as other offenses could be attributed to police behavior rather than to youth criminality. The arrest data, he says--

suggest that being subject to a curfew reduces the number of violent and property crimes committed by juveniles below the curfew age by approximately 10% in the year after enactment, with the effects intensifying substantially in subsequent years for violent crimes.


The magnitude of any biases in the estimates due to spillover effects is difficult to assess. The data do not provide evidence of any spillovers, though given the imprecision of the estimates we also cannot reject modest sized effects. It does seem safe to say that there are probably not any large spillover effects, meaning that curfews do not seem to reduce crime in general, but rather only for the targeted age-groups. This suggests that cities designing curfew legislation should choose the statutory curfew age carefully according to which age-groups are in greatest need of intervention.

However, for Oakland and San Francisco specifically, there are reasons to be skeptical. A recent piece by Mike Males in the Chron was a good reminder of the fact that the US seems to be the only country that its citizens "can shop happily only when everyone under 18 is under house arrest. Not even in London during recent riots - and certainly not in Hong Kong, Tokyo, Rome, Mexico City, Rio de Janeiro, Toronto or other major cities - do police forcibly sweep young people off the streets."

Today's op-ed by Selena Teji makes similar arguments. Examining curfews and incarceration, she notes that the plummeting rates of juvenile crime in California are not due to incarceration-driven policy. In fact, she says, "over the last 15 years, California’s youth prisons and local youth jails have released more than 10,000 formerly incarcerated youths onto the streets and in 2010, California youth crime stands at an all-time low."

Incarcerating, therefore, is not a great idea. Would judicious use of curfews minimize our reliance on incarceration? That's unclear. But it would seem that, before making a decision about such steps, we should pay attention to actual crime rates, rather than to our perception of crime.

Film Review: Into the Abyss

Werner Herzog's new documentary Into the Abyss takes us on a nightmarish trip into the lives of criminals and victims in the aftermath of a triple murder that happened in Texas ten years ago. Michael Perry and Jason Burkett, teenagers at the time, were convicted of murdering Sandra Stotler and tied to two more homicides of teenage boys. The murders, according to the police and some witnesses, were committed with the sole objective to steal cars.

Eight days before his execution, Perry speaks to Werner Herzog in prison about his faith and his life behind bars. Also included in the documentary are Stotler's daughter (sister of Adam Stotler, another one of the victims), Jason Burkett who did not get the death penalty, and Burkett's father, who, incredibly, is also serving a forty-year sentence and who was handcuffed to his own son on the way from court. Witnesses and death row personnel speak about the meaning of life and death for them. And Burkett's wife, who met him after he was imprisoned, speaks of their life together.

To me, the film was not a heavy-handed, idealistic or pragmatic critique of the death penalty. Instead, it presented a much subtler argument based on the futility of death -- of law, really -- to truly ever encompass and address the abyss of sadness and dysfunction that permeates the lives of all the people involved. Strikingly, everyone featured in the documentary -- victims and defendants -- is surrounded by imprisonment and death. Jail is a fact of life, as is victimization in dreadful accidents and violent altercations. So much loss and grief, to which more loss and grief is added through the crime and, subsequently, through the punishment.

I found Ms. Stotler's words at the end to be absolutely fascinating. She says she would be satisfied with life without parole, and nonetheless, she got something out of attending the execution. It brought her some closure and relief. As Herzog invites her to reflect on the source of the closure and relief, she says, "he was just a boy. I had made him into that monster, and then I saw him, and he was just a boy." Who knows how much relief, mercy, and grace would have been attained had Perry reached out to the family of his victims.

A subtle, profound, and thought-provoking piece, Into the Abyss is highly recommended to those who want to think about the death penalty, victimization, and criminality beyond crude partisan abstractions.

RIVERSIDE COUNTY: Supervisors approve plan to charge inmates

(from The Press-Enterprise)

BY DUANE W. GANG

STAFF WRITER

dgang@pe.com

Published: 09 November 2011 04:08 PM

Riverside County supervisors voted unanimously Tuesday to introduce a law requiring those convicted of crimes and sentenced to county jail to pay for their stays.

It costs an average of $142.42 per day to house someone in a jail. In order to collect the money, the board must have a formal ordinance in place.

The measure, sponsored by Supervisor Jeff Stone, is expected to come back before the board next week for final adoption.

With the ordinance, County Counsel Pamela Walls said the county does have the legal authority to seek reimbursement. But in a memo to supervisors, she said collecting the money may be difficult.

The courts must first determine whether a defendant has the ability to pay, Walls wrote. And the county isn’t first in line to get money from prisoners. Restitution to victims, state surcharges, fines and other charges are ahead of the county.

Walls said Tuesday the ordinance in no way creates a debtors jail and only applies to those convicted of crimes. Going after the money would only be done through a civil court action, she said.

Would California Be Better with Private Prisons?

The discussions around Josh Page's book The Toughest Beat, which we reviewed here, have made me think quite a bit about prison privatization. While the private prison industry thrives in other states, and actively lobbies for punitive policies - including the abominable SB 1070 in Arizona - could they possibly do a worse job than the state of California in incarceration?

A recent story on NPR was a reminder that, while state prisons are in such poor shape, allowing private institutions would be a very poor choice. The article is astonishing in that it documents the lengths to which private corporations will go to try and find inmates for prisons built on speculation. But does it at least pay off for the communities that agree to build their economies around the prison industry?

Shapiro says it's possible a town could reap some small economic benefits from a private prison, but it may not bring the larger economic boost the county is hoping for.


"That's what the empirical evidence has shown ... and there are various theories for why that may be the case," Shapiro tells weekends on All Things Considered guest host Laura Sullivan.


The presence of a prison might actually squeeze out other businesses that could bring greater benefits than the prison itself, he says. Also, many of the jobs created by a private prison don't actually go to people in the community.


The bigger problem, he says, is that state and federal taxpayers — who in the end are paying for these prisons — aren't getting the most value for their money.


To cite just one example, he says, last year the Arizona auditor general found that it actually might be more expensive to hold Arizona prisoners in private, for-profit facilities than in public ones.

Grandma Goes to Prison - 15 Years After the Fact

An astonishing reversal by the Supreme Court this week of a decision regarding the guilt of a grandma who allegedly killed her grandchild by shaking him. This does not directly relate to correctional policy, but it does bring to mind the question of the futility of incarceration in such cases. I figured our readers might find it interesting, so here's a summary by my colleague Rory Little, made for the ABA Criminal justice Section. 

Supreme Court Case Summaries: Professor Rory Little’s Perspective[1]

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

Cavazos v. Smith (6-3 per curiam summary reversal, Oct. 31, 2011).

            Summary:  What would the opening of a new Supreme Court Term be without an early summary reversal of the Ninth Circuit?  After two prior GVRs (grant, vacate and remand) of the panel’s decision to grant habeas in a state infant-abuse-death prosecution, a majority of the Court rules (in an unsigned per curiam) that the Circuit improperly “substituted its judgment for that of a California jury” on a question of constitutional sufficiency of evidence under Jackson v. Virginia, 443 U.S. 307 (1979).

            In a dissent equal in length to the majority’s opinion, Justice Ginsburg (joined by Breyer and Sotomayor) rebukes the Court for using its discretionary review authority for mere “error correction” in a case the dissenters call “tragic” as well as questionable.  A notable irony here is that had the dissenters attracted Justice Kagan’s fourth vote, they could have granted plenary certiorari review, which Justice Ginsburg says would be better than summary reversal.  Meanwhile, the case was before the Justices for twelve conferences, starting last spring.  That must be close to a record.  So some interesting behind-the-scenes Court strategy and politics appear to be in play here.

            Per Curiam opinion:  Shirley Ree Smith was convicted for the 1996 death of her 7-week-old grandson, under a California statute specifically making it a crime to assaults a child under eight (resulting in death) with “force that to a reasonable person would be likely to produce great bodily injury.”  The prosecution theory was that Smith had shaken the infant, who then died of “shaken baby syndrome” (“SBS”).  The government’s evidence was that Smith had told a social worker that she had given the baby “a little shake, a jostle,” to awaken him, and when the social worker told Smith of the coroner’s SBS conclusion, Smith said “Oh my God.  Did I do it?  Did I do it?  Oh my God.”  Smith denied these statements (which are ambiguous in any case) and denied shaking the baby.  There was no evidence of prior violence, temper, or abuse, and the evidence was apparently undisputed that Smith was a loving grandmother watching her daughter’s children while the daughter was asleep in the next room.

            Thus the trial centered almost entirely on medical testimony, over seven days, with three experts for the prosecution and two for the defense.  All three prosecution experts testified that even though the medical evidence was not entirely consistent, the cause of death must have been SBS because other causes were eliminated or much less supported.  By contrast, one defense expert said the cause of death was “sudden infant death syndrome,” and while the other expert said “old brain trauma.”  (Tangentially, there is some hint that Smith’s lawyer was ineffective – Justice Ginsburg lays this out in her dissent.  The lawyer has since resigned from the Bar with disciplinary charges pending.)

        The jury returned a guilty verdict, and Smith was sentenced to 15 years to life.  The California state court affirmed the conviction, noting that “The expert opinion evidence … was conflicting.  It was for the jury to resolve the conflicts.  The credited evidence was substantial and sufficient….”  On federal habeas a Magistrate-Judge recommended denial and the district judge adopted that recommendation.  But a panel of the Ninth Circuit (Canby, Pregerson and Reed (DJ)) reversed, saying that there was “no evidence to permit an expert conclusion one way or the other” and that “Absence of evidence cannot constitute proof of reasonable doubt.”  Thus “no rational juror” could have found guilt here, and the state’s affirmance was an “unreasonable application” of Jackson v. Virginia.

            “That conclusion was plainly wrong,” the per curiam Court wrote yesterday.  A reviewing court “must presume” that the jury resolved conflicts in favor of the prosecution, “and must defer to that resolution.”  Jackson, at p. 326.  “A federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees.”

            Interestingly, it took five years of tussling to get to this point.  First the Circuit denied rehearing en banc over five dissenting votes.  Then the Supreme Court twice summarily granted the State’s cert petitions, vacated, and remanded (“GVR”) for reconsideration in light of two different Court opinions (Carey v. Musladin, 2006, and McDaniel v. Brown, 2010).  But (says the majority in a clear rebuke to CA9), “each time the panel persisted in its course, reinstating its judgment without seriously confronting … the cases called to its attention.”  [Ed. Note:  No doubt the panel would disagree with this characterization.  It did issue opinions addressing the new cases, expressly noted the “double” deference required under AEDPA, and called the case rare and “extraordinary.]  Thus, says the Court, “”the decision below cannot be allowed to stand.”

            Smith was released on bail in 2006 pending further appeal.  She will presumably now have to return to prison to serve at least the five years remaining on her minimum sentence, unless “clemency” is granted, an option the majority notes but says “it is not for the Judicial Branch” to consider.  [Ed. Note:  Interesting to consider what the new/old Calfornia Governor Jerry Brown will do with the case.]

            Ginsburg dissenting, joined by Breyer and Sotomayor:  “The Court’s summary disposition … is a misuse of discretion.”  This case is “as tragic as it is extraordinary and fact intensive.”  The Circuit undisputedly applied the “correct rule of law.”  This Court ought not engage in mere “error correction,” particularly since new scientific research since 1996 “casts grave doubt” on the prosecution’s expert testimony and theory of guilt.  [Justice Ginsburg goes over the new research and the trial evidence in some detail.]  “What does the Court achieve other than to prolong Smith’s suffering and her separation from her family?  Is this Court’s intervention really necessary?  Our routine practice counsels no.”  “The Court is bent on rebuking the Ninth Circuit….  I would not ignore Smith’s plight and choose her case as a fit opportunity to teach the Ninth Circuit a lesson.”

            Even if the Court is inclined to examine this decision, it ought not do that by a summary disposition.  “I would at least afford [Smith] a full opportunity to defend her release from a decade’s incarceration.”  [Ed. Note:  Since it takes only four Justices to grant full review, this point in a three-Justice dissent accentuates Justice Kagan’s silence here – although it is quite possible to imagine a “strategic” decision to not provide the fourth vote for plenary review in a case you feel certain you would “lose.”]  “Justice is not served by the Court’s exercise of discretion to take up this tragic, fact-bound case.”

---

[1]  These summaries are created by Professor Rory K. Little, U.C. Hastings College of the Law, San Francisco (littler@uchastings.edu) soon after the Supreme Court’s opinions are released.  They represent his quick, personal and unofficial reading of the Justices’ opinions.  Remarks in [brackets] are Professor Little’s own editorial comments.  Minor punctuation may be changed.  The original opinions should be consulted for authoritative content.

Occupy Oakland, Policing, and Secondary Deviance

Angela Davis yesterday at Occupy Oakland.
Photo courtesy Joe Feria-Galicia, RP&E Journal 

This morning's Chronicle reports fierce encounters between  Occupy Oakland protesters and police. As was the case with the protests following Johannes Mehserle's verdict, protests in Oakland were peaceful until the evening, and then escalated into vandalism and violent clashes.

The Chron piece documents serious debates within the protesting community regarding violence, as well as about the appropriateness of police response. We have no data yet as to the identity of the arrestees, but if this is anything like the Oscar Grant protests of yesteryear, at least some of them might be out-of-towners taking advantage of the protest to engage in vandalism.

What is going on in Oakland? The ferocious animosity between communities of color and the city police force have been long noted in literature, the latest example being Victor Rios' recent book Punished. The book is an ethnography of Black and Latino youth in Oakland, documenting their constant criminalization by their surroundings, including police, the schools, and their own families. Rios argues that the pervasive perception that these young men are either actual or potential criminals, to be constantly monitored, addressed, and oppressed, provokes some of them to actually live up to the label and join street gangs. While Rios does not explicitly pay homage to labeling theory, his interviews and observations seem to support Edwin Lemert's theory of secondary deviance, according to which young people who are constantly labeled as deviants eventually internalize the label:

When a person begins to employ his deviant behavior or a role based upon it as a means of defense, attack, or adjustment to the overt and covert problems created by the consequent societal reaction to him, his deviation is secondary. Objective evidences of this change will be found in the symbolic appurtenances of the new role, in clothes, speech, posture, and mannerisms, which in some cases heighten social visibility, and which in some cases serve as symbolic cues to professionalization.(1951: 76)

Lemert's theory, and Rios' findings among Oakland youth, may go a long way toward explaining why protest events in Oakland have such potential to deteriorate, while similar events in San Francisco go by more peacefully. Encounters between police and community in San Francisco simply do not carry the same baggage that they do in Oakland. And, while it would be absurd to argue that vandalism does not really exist and is solely the product of a label, it is important to acknowledge the role of police and government expectations in encouraging/discouraging violence. In San Francisco, supervisors urged police to treat protesters peacefully. At our District Attorney debate at Hastings, all four candidates present vehemently stated that they would never treat Occupy protesters using violent means, nor would they seek charges against them. The role of environment and charged past encounters in generating violence cannot be ignored, and the Oakland police force, constantly sitting atop a keg of resentment on the part of racialized and criminalized communities, should not be surprised at its prophecies coming true.

The Myth of Free Health Care for Inmates

In the last weeks I have been giving talks about various aspects of California corrections in universities all over the Bay Area. Interactions with college students are refreshing and interesting, especially as local elections are rolling in.

One argument I've heard a few times now in these discussions has to do with bitterness about the fact that inmates receive free health care, while those of us on the outside pay for our health care out of pocket. That this argument persists in the face of the Brown v. Plata aftermath is a grim reminder of the misinformation out there. For the benefit of those of our readers who hear this argument made in their immediate vicinity, or who have made this argument, here are some ways to answer it.

First, any complaint about inmates'  "free health care" begs the question whether what they receive in prison is, in fact, health care. The medical system in California prisons is so broken and inept that it was handed, several years ago, to a federal receiver. The budgetary woes have consistently hindered the receivership's efforts to reform the system. And, eventually, the Supreme Court affirmed a three-judge federal panel decision to release tens of thousands of inmates because health care could not be provided given the overcrowding status of the prison. The bottom line, according to Jeanne Woodford, is that short-term inmates receive exams and an intake, and little beyond that. The Supreme Court decision and the brief appendices cite numerous examples of unnecessary disease and preventable death in California institutions. No, this is not comparable, by any standard, to whatever health care you might be receiving on the outside.

Second, the requirement to provide inmates with health care in prison stems from the fact that the government put them there. Warehousing people against their will is one thing. Doing so without caring for their basic needs is quite another. Some argue, of course, that this could be done more cheaply and efficiently. Much of the expense stems from the fact that we insist on imprisoning elderly, infirm inmates. The financial crisis is finally making us rethink this policy. And, by the way, check out Legal Services for Prisoners with Children's initiative on behalf of old prisoners.

Third, apparently the free health care for inmates idea is no longer the universal rule. Much to my horror, I find that in some places, apparently, this is no longer the case.

As a coda, ever since I relocated to the United States I have been perpetually astonished at how little people in this country expect from their government. The argument against free health care for inmates is saddening because of its focus not on what you deserve to have, but on what someone else does not deserve to have. We talked about this "othering" of criminals before. Why not insist on being provided national health care at low or no cost, as is the case for every other industrialized democracy? The spite and bitterness against inmates is a distraction from a common goal, which is to be treated decently and fairly and being taken care of by one's government, and it is proof that just and reasonable citizen expectations can be confounded if people are presented with an enemy to hate. I urge Californians to look beyond these divisive mechanisms and really think about their expectations from their leaders.