Friday, April 29, 2011

CA Prison Crowding Crisis Event

The Bay Area lawyer chapter of the American Constitution Society for Law and Policy is holding an event, free and open to the public, on California prison overcrowding.

When: May 10, 2011 - 12:30pm - 1:30pm
Where: Public Defender's Office , 555 Seventh Street, San Francisco, CA
  • Wendy Still, Chief Adult Probation Officer, City and County of San Francisco; Senate Appointed California Rehabilitation Oversight Board Member for the California Department of Corrections and Rehabilitation, Former Director of Rehabilitation for the California Federal Medical Prison Receiver; Associate Director, Female Offender Programs and Services
  • Jeanne Woodford, Senior Fellow, Berkeley Center for Criminal Justice; Former Acting Secretary, California Department of Corrections and Rehabilitation; Warden, San Quentin State Prison; Chief Adult Probation Officer, City and County of San Francisco
And an introduction by:
  • Rebekah Evenson, Staff Attorney, Prison Law Office; Counsel, Schwarzenegger v. Plata

Attorney attendees - you receive CLE credits for attending the event.
To RSVP, click here.

Less Gubernatorial Interference with Parole For Lifers Under Brown

More this morning from the Chron on the Era of Jerry: Governor Brown interferes with parole board recommendations of parole for lifers much less than his predecessor.

Brown has reviewed 130 decisions by the Board of Parole Hearings granting release to murderers sentenced to life with possible parole and has approved 106, or 81 percent, according to the governor's office. He has vetoed 22 paroles and sent two back to the board for new hearings.

In comparison, former Gov. Arnold Schwarzenegger approved about 30 percent of lifers' paroles. Former Gov. Gray Davis - who declared early in his term that "if you take someone else's life, forget it" - vetoed 98 percent of murderers' parole cases he considered.

Now, here's the nice bit, in which happily, facts somewhat trump the fear-mongering public-safety rhetoric:

For those who see crime as the overriding issue, Brown said, state records show that only a small fraction of the 900 life-sentenced prisoners paroled in the past 15 years have committed new crimes, compared with nearly 70 percent of other parolees.

Of course, even these cited statistics are presented in an inaccurate manner: The 70 percent non-lifer recidivists are, for the most part, parole violators, so their recidivism reflects not so much a return to a criminal career as the type of conditions they are subject to after release. A new report from Pew contains data that is sensitive to this breakdown. In 2004, for example, California's 58% recidivism rate was comprise of 40% parole violators and only 18% commissions of new crimes. And, as the report states,

[i]n some states, released offenders who break the rules of their supervision are routinely punished with a short prison stay. California, for example, has for years taken this route, an approach that has helped to keep its prison population the highest in the nation.

Setting aside this misleading slant on recidivism rates, it is still refreshing to see Brown's administration paying attention to lifers' low recidivism rates without apologetic or panic-generating rhetoric. The low recidivism rates of lifers can be attributed to age as well as to the type of crime (murder does not tend to be an offense that generates recidivism.)

Thursday, April 28, 2011

Brown Cancels Plans to Build New Death Row

The SF Chron reports:

Gov. Jerry Brown announced today that he is dropping plans to build a new $356 million Death Row at San Quentin because of the state's budget crisis.

In a released statement, Brown said canceling the project - which has been in the works since 2003 - would save the state hundreds of millions of dollars. He said spending that money on a new Death Row while making budget cuts in other services would be "unconscionable."

"At a time when children, the disabled and seniors face painful cuts to essential programs, the state of California cannot justify a massive expenditure of public dollars for the worst criminals in our state," Brown said. "California will have to find another way to address the housing needs of condemned inmates."

The new Death Row would have been able to house up to 1,152 condemned inmates. There are less than 700 people in state prison who have been sentenced to death.

Faithful readers may recall some twists and turns with the plan to rebuild death row. The construction was given the green light by former governor Schwarzenegger, but these plans were then halted through the efforts of progressive lawmakers that argued against the expenditure. The question is, of course: What now? Sixteen states have abolished the death penalty, several of them recently for cost reasons (humonetarianism at work here.) Governor Brown, would you like to save more money for our children, disabled and senior citizens? Join those states and abolish the death penalty.

Props to Christoffer Lee for the link.

Wednesday, April 27, 2011

Petition to Save Troy Davis' Life

Two years ago we covered Troy Davis' probably wrongful conviction and his impending execution and participated in a day of action on his behalf. About a month ago, the Supreme Court rejected Davis' appeal.    Richard Stack, who has been helping Davis and his family, has asked to share this blog post, inviting you to join the petition to the Governor of Georgia to save Troy's life.

Please sign the online petition and forward it to friends and colleagues. We may still be able to prevent a terrible, irreversible, tragic miscarriage of justice.

Saturday, April 23, 2011

Brown Defends Prison Guard Contract

Jerry Brown's traditional alliance with CCPOA, the prison guard union, has resumed, much to the chagrin of Republican lawmakers. The Chron reports:

Overall, the six contracts would, among other things, do away with imposed furloughs, increase state employees' pension contributions and temporarily cut pay for a year before giving top earners a raise in 2013. Schwarzenegger negotiated the same terms with other public worker unions last fall, and lawmakers approved those contracts.

But opposition to the new agreements was fueled this week when the nonpartisan Legislative Analyst's Office concluded the six contracts would result in only about $179 million in savings next fiscal year for the deficit-plagued general fund, not the $308 million assumed in the 2011-12 budget approved by lawmakers last month. Those savings will disappear by 2012-13, the analyst said, when costs will begin to climb once again.

Republican lawmakers said the discrepancy is a major problem, because the state is facing a $26.6 billion deficit.

Brown's election must have seemed a blessing to the CCPOA, who have had long and prosperous relationships with California governors and with Brown in particular (see Joshua Page's informative post on that). Their abysmal relationship with Schwarzenegger, that culminated in a 2008 effort to recall him, is now behind them. Guard salaries were somewhat cut (to $92,000, which was subsequently balanced by allowing overtime); here are more details on the pay scale and contracts. We can expect the "toughest beat" rhetoric to resume its influence in California politics.

Is There a Death Penalty Religious Divide? Jesus on Trial

Things are a'changing for the death penalty. After the good news from Illinois, we recently learned that Ohio is discussing an abolition bill. Thinking of the prospect of such developments in California brings on some reflection on the hearts that could be won for the cause, and how that might be achieved.

A common misperception is that, in the American context, public opinion about the death penalty tends to follow the political republican/democrat divide. With regard to politics, this is inaccurate, albeit not completely untrue, as data from a Gallup Poll show. The death penalty is supported by a majority of both Republicans and Democrats, but while it is endorsed by 80% of Republicans, support rates for Independents and Democrats are 65% and 58%, respectively. Similar patterns hold for conservatives, moderates and liberals. Moreover, the common perception that religious Americans support the death penalty - brought about by lumping the death penalty with social conservatism - is a blanket statement that requires some nuancing. People who attend religious services are slightly less likely to support the death penalty. Support for the death penalty is more pronounced among Protestants than among Catholics or those without preference. It is important not to go into generalizations: Many religious organizations oppose the death penalty, or at least offer a nuanced view of it. And several religious leaders are actively involved in anti-death-penalty activism; here's a recent example from Georgia.

These findings disprove a common assumption among progressive seculars that the "blame" for the death penalty can be squarely placed upon the shoulders of religious conservatives, and that their collaboration in abolishing it can only be bought using arguments of cost or technology. People's intellect and moral judgment should be respected and appealed to; it is a mistake to settle for technical arguments, like costs or the machinery of death, just to ensure a broader coalition. I agree with Justice Blackmun that doing so cheapens us all.

Which is why I love what the Church of the Holy Comforter in Virginia did this Easter weekend. The church held a modern-day trial for Jesus, with participation of real DAs and PDs, and included a death penalty phase.

There is much to like about the enterprise. Of course, setting what was essentially a political trial in a Roman colony in the context of the American criminal justice system does not do justice to historical context; however, the trial was used as an educational device not only with regard to the Passion story, but to modern American criminal justice. Jesus qualified for a public defender, as would many indigent clients; his role was played by a young African American man, depicting the overrepresentation of minorities in the criminal process. I find this particularly evocative because of the persistent whitewashing of Jesus' image in art and culture. It's also interesting that the jury chose to convict; I think there are good arguments of Fourth, Fifth and Sixth Amendment violations that could be made, including the use of an informant (though new archeological findings may shed new light on such arguments.)

I particularly appreciated the perspective of Mark Osler, the prosecutor who organized the trial. Osler's personal conviction against the death penalty was formed through a religious experience:

“They read John 8, about stoning the adulteress, and I’m like everyone else - when I hear a story like that, I put myself in the role of Jesus. A lot of prosecutors who are Christians who talk about that will say, ‘Jesus said go and sin no more.’ And what I came to eventually is, ‘I’m not Jesus. I’m part of the mob. I’m somebody with a stone in my hand.’

“I think that story is very direct that we don’t have the moral authority” to execute prisoners, Osler said.

These nuanced and important understandings of empathy and morality, rather than arguments of cost and chemical availability, will eventually be those that win more hearts to the abolition cause.

Friday, April 15, 2011

KPFA Report on the Juvenile Justice System

Today's Morning Mix on KPFA included an interesting coverage of the status quo regarding juvenile justice institutions in California.

The story included interviews with Selena Teji from CJCJ and Bryan Lalock from Bay Area Legal Aid. As Teji and Lalock explained, counties offer a continuum of institutions, ranging from electronic monitoring, through community service, group homes, juvenile hall commitments, to fully locked county-run facilities (camps and ranches). The state level institutions are designed to house the "worst of the worst" and unsuitable for the needs of the juvenile population. The infrastructure is run down and violence runs rampant. There has been extensive litigation addressing the inability of state institutions to provide mental health settings and offer reentry services (the latter are much easier on the county level, where public defense has a better interface with community institutions, and where juveniles are closer to the family).

Given the atrocious status of state institutions, they would have to be replaced, but our budgetary difficulties make that impossible; initially, Governor Brown wanted to do away with all state facilities, but was faced with opposition. The new plan is a "buy back" option, in which countries could receive the money and could either handle inmates within the county or pay the state to house them in state facilities. The choice might be different between bigger and smaller counties. However, for all counties, money is an important factor; state-run institutions have exceedingly high recidivism rates.

Finally, should voters decline to reaffirm the vehicle tax, the realignment may be off, and the situation will not improve.

Listen to the whole show - it also featured a discussion of the prison industrial complex.

Thursday, April 14, 2011

Hawai'i Inmates: It's a Long Way Back Home

image courtesy
Remember the horrors and corruption involved in keeping Hawai'ian inmates out of state? And David Johnson's report on the futility of out-of-state incarceration as a recidivism reducing measure? Well, don't hold your breath. The inmates aren't coming home any time soon. And, of course, CCA is in the mix. The Honolulu Star Advertiser reports:

State prison officials are seeking proposals to house about 1,800 prisoners outside Hawaii after the current prison contract ends in June, despite Gov. Neil Abercrombie's call to bring inmates back home as soon as possible.
"It is very clear at this time that we do not have all the facilities to bring the inmates back," said Martha Torney, deputy director of administration for the state Department of Public Safety. "As the state moves toward bringing the inmates back to the islands, that will determine what our needs are in the future."
The state already has returned some prisoners since Abercrombie said in December that he wants prisoners to stay in Hawaii.
During the quarterly rotation in January, the state brought back about 125 more prisoners than were sent to the mainland, Torney said.
The request for proposals, published March 1, designates a three-year contract, but the state can cancel the contract and remove prisoners at any time, Torney said. The submittal period ends March 31.
One company that plans on submitting an offer is Corrections Corp. of America -- the fifth-largest U.S. prison operator behind the federal government, California, Florida and Texas.
Hawaii has 1,699 prisoners at CCA's Saguaro Correctional Center and 58 inmates at CCA's Red Rock Correctional Center, both in Eloy, Ariz., Torney said.
Brad Regens, CCA's vice president of state partnership relations, said CCA is not lobbying to keep Hawaii's prisoners out of state.

Beyond the obvious exasperation, I have two burning questions.

1. Does anyone actually believe Regens? Remember, these are the folks whose money and backdoor wheeling and dealing brought us the horrific and racist Arizona SB 1070.

2. Has anyone given any thought to the fact that, with Hawai'i's low crime rates, most of these people don't need to be in ANY prison - on the island or on the mainland - and therefore, no "facilities" need to be built? We've talked plenty about what California needs to learn from Hawai'i. Now, Hawai'i, learn from California's experience: If you build it, they will come.

In the meantime, if you're looking for a Hawaiian inmate housed in the mainland, away from family and friends, keep looking. You won't find them here.

Tuesday, April 12, 2011

This Evening in Berkeley! Forum on the Death Penalty

2010 was an odd year for the death penalty in California. Remember our discussion of California's killer counties? And the interactive map comparing death row inmates per county? As you may recall, 40 people on death row come from Alameda; district Attorneys have spent $16.5 million pursuing death penalty trials since 2000; and, since 2000, Alameda has sentenced 15 people to death. Which is why this evening's event might be of interest to many.

What? Forum on the Death penalty


  • Aqeela Sherrills, California Crime Victims for Alternatives to the Death Penalty
  • Delane Sims, Board of Directors, Death Penalty Focus
  • Darryl Stallworth, Former Alameda County Prosecutor
  • Moderator, Natasha Minsker, ACLU of Northern California

Where? Berkeley City College Auditorium,2050 Center Street,Berkeley, CA 94704

When? Tonight, Tue, April 12, 6:00-8:00

Admission is free. Contact: Ana Zamora: or (415) 293-6321.

Sunday, April 10, 2011

"A Crime Was Definitely Committed on this Case, But Not By Me."

(photo by AP's Patrick Semansky, courtesy NPR)

This week, the Supreme Court decided Connick v. Thompson. The decision received some justifiably scathing critique, and this morning, an eloquent, moving response from John Thompson himself, the man who spent eighteen years in prison, most of them on death row, for a crime he did not commit, because of prosecutorial misconduct. For an excellent summary of this distressing affair, and of Thompson's dramatic last-minute acquittal, I recommend the excellent NPR coverage. It's difficult to provide a short version, but the facts are, in essence, as follow:

Thompson got arrested for murder and subsequently charged with an unrelated burglary. The prosecution decided to proceed with the burglary trial first, because a conviction would rule out Thompson's testimony in the murder trial and would allow them to seek the death penalty. They did not reveal to the defense several important pieces of exculpatory evidence, including a blood sample taken from the crime scene. Thompson was convicted of burglary, did not testify in his murder trial because of the conviction, got convicted of the murder, too, and sentenced to death.

A month before his execution, a private investigator managed to unearth the blood sample hidden almost twenty years before. The blood type did not match Thompson's. Thompson was retried and acquitted of all charges.

Unbeknownst to Thompson at the time, several years before the discovery - when he had already been in death row for years - one of the prosecutors, diagnosed with a terminal illness, revealed to another prosecutor that he had withheld the exculpatory evidence. Now aware of the misdeed, no one else in the prosecutor's office had done anything to bring this information to light. After his exoneration, Thompson sued the prosecutor's office for damages under Section 1983. He was awarded 14 million dollars in damages by a jury. The decision was appealed to the Supreme Court.

Justice Thomas's opinion was that the prosecution's failure to disclose the exculpatory evidence did not constitute a general flaw on the municipal/organizational level. The opinion states that this was a personal, intentional misdeed, and that there was no duty to train attorneys in discovery rules beyond what they learned in school. Justice Scalia's opinion is even more alarming: He says no discovery violation was committed, at all. Justice Ginsburg's dissent points out a pattern of prosecutorial misconduct at the office, arguing that better training might have prevented this tragedy.

Here are my two cents about this: The opinion and concurrence are wrong, empirically and morally. But the dissent also misses the point. Whether a given discovery error, or any other prosecutorial error, stems from negligence, lack of training, or intentional deed, it occurs within the fertile Petri dish of prosecutorial organizational culture.

Classic social science courtroom research in the 1960s and 1970s focused on "the courtroom workgroup": Judges, prosecutors, and defense attorneys. In ethnographical studies of these groups, scholars have consistently found a strong adherence to the organizational culture of the office. One "goes native" upon starting to work there, and it impacts not only one's value system, but also how one reads criminal cases.

It's as if prosecutors are trained to see the faces and defense attorneys the vase, or vice versa. Prosecutors are trained to look at convicting evidence and at the "convictability" of the case. Defense attorneys are trained to find flaws in the police files. After a while - and it really doesn't take much - it becomes a second nature. Very little crossover and cross-pollination occurs, and as a result, ironically, the people in charge of spotting exculpatory evidence are prosecutors, who would naturally be less inclined to notice its exculpatory nature.

I sometimes run a little experiment when I teach our criminal law concentrators. Following this interesting experiment, I show them this video of a police chase and ask them several questions: Whether they think the driving was dangerous to the driver, the police, the public, and whether ending the chase in a way that endangered the driver was justified on the part of the police. Without fail, every year the classroom splits along several demographic lines, the notable being people who have interned in prosecutorial offices and in defense offices. Not only is there a split on whether the behavior was justified. There is a split about the facts; they have been socialized to perceive the facts in different ways.

This is what I think is at the bottom of this. One man's willful act of deceit gets support by others, who are too lazy/obtuse/corrupt to report, but all of this cannot happen without a culture that has educated them to dehumanize and disbelieve defendants, even in the face of evidence to the contrary. This cognitive failure is not an aberration; it is the natural outcome of a hyper-adversarial system, in which prosecutors basically run the show.

The bottom line is: Justice Thomas is wrong. Justice Scalia is even more wrong. Thompson should have prevailed. However, I am much less optimistic than Justice Ginsburg, and truly believe that no amount of training could have helped here. What is needed is more socialization, starting in law school and continuing, into the thinking patterns of the other side. Prosecutorial offices should hire more people with defense experience and vice versa, and those people - trained into the ways of thinking of the other side - should run training programs. Law school should emphasize the importance of arguing both ways, not as an empty exercise in fancy rhetoric, but as a tool for improving perception. The bar exam should place more weight on the performance exam, asking future practitioners for persuasive memos in both directions. And, of course, toning down our farcical, game-show-like enthusiasm for hyperadversarialism would help, but that may not happen in my lifetime.

Movie Review: On the Outs

Lori Silverbush and Michael Skolnik's 2004 movie On the Outs is a heartbreaking, empathetic peek into the world of three girls caught in the juvenile justice system. The script grew from the directors' experience bringing a workshop into a juvenile detention center in Secaucus, NJ. Their familiarity with, and empathy toward, the girls is palpable and moving, and their experiences getting to know the inmates have made the film credible.

Suzette, a 15-year-old living with a stern, involved mother, meets a guy in the street. Her infatuation with him leads to an unplanned pregnancy and running away from home. As she meets his friends and gets introduced to his world, she learns unpleasant realities about their relationship; she eventually gets arrested when he drops a murder weapon into her bag. Her world begins to spiral out of control, and her well-intentioned mother is powerless to keep her away from the streets.

Marisol is first shown as a dedicated single mother, playing with her daughter in the yard. We later learn that she relies on her grandma in raising her child, as she is hopelessly addicted to crack; her arrest after a car accident leads to losing her child to the foster care system. Marisol's raw desperation at losing her child is matched in intensity by her continuing need for the drug; she is unable to face and overcome her addiction.

Oz, the daughter of an addict, is the family's breadwinner; a tough drug dealer, she holds her own in the streets, and has a soft spot for her brother, Chuey, who suffers from mental disabilities and from asthma. Her frustration with her mother's addiction and her protectiveness of her brother are moving and complement her street wisdom and straight talking, which make her the unofficial leader of the juvenile facility.

Each girl sees the lives of other girls through the prism of her own experiences; Oz, for example, is exasperated with Marisol, because she sees her own helpless mother in her. Suzette, a newcomer to the juvenile justice system, is apprehensive and afraid of the more hardened inmates, but gradually loses her innocence as her romantic dreams fall apart. The girls' relationships - with their families, with men, with the streets - are woven together to present a tapestry of dysfunction, exploitation, and miscommunication.

All three girls are movingly and convincingly portrayed. The clever script does not shirk away from presenting personal responsibility when appropriate, but places it within the context of environment and circumstances. Suzette's story was particularly touching to me, because it echoed what I learned this year from the GEMS foundation and from their excellent documentary Very Young Girls. Shying away from generalizations and heavy-handed social critique, the movie focuses on the personal, intimate details of the girls' lives, leaving it to us to connect the dots.

On the Outs is available for live streaming from Netflix, and might be part of our criminal justice film club next fall.

More Tinkering with the Machinery of Death

This morning's New York Times features an article explaining the differences between the different chemicals used for executions.

Opponents of the death penalty object to either drug. Some say thiopental can wear off too quickly, allowing inmates to feel pain. Others object to using pentobarbital, because it is so infrequently used in humans.

In the three-step cocktail common in executions, a barbiturate is given with pancuronium bromide, a paralyzing drug, and potassium chloride, which induces cardiac arrest. Dr. Segal said all three drugs can have lethal effects.

“I’m not sure anyone knows which drug actually kills someone,” he said.

In fact, one can do the job. Ohio has used both barbiturates by themselves in executions.

This discussion comes in the heels of several stays of execution, for reasons unrelated to the technology.

Thursday, April 7, 2011

Beyond the Numbers of the School to Prison Pipeline:

Community Conversations with Assemblywoman Ma and Senator Leno

First Event with Assemblywoman Ma Tomorrow, April 8th, 3-5PM at Golden Gate School of Law, 536 Mission Street, San Francisco, Room 3214

Golden Gate University School of Law’s student organization Dignity In Schools and a supporting coalition of community organizations, as well as the following student organizations at Golden Gate University: Queer Law Student Association (QLSA), Black Law Students Association (BLSA), La Raza, ACLU, National Lawyers Guild (NLG), Students for Sensible Drug Policy (SSDP), and the American Constitution Society (ACS) invites you to join us at two community conversations about strategies that the State can take to reduce truancy and support students in finishing high school. Assemblywoman Fiona Ma will be the speaker on Friday, April 8, 2011 from 3:00 – 5:00 p.m. Senator Mark Leno will be the speaker on Saturday, April 16, 2011 from 9:00 a.m. – 12:00 p.m.

California faces a crisis in students not finishing high school. The San Francisco Chronicle recently reported that 37% of African American students are not finishing in the state and 22 % of all California students are unable to complete school. A large portion of students who do not finish high school end up incarcerated. According to the Harvard Civil Rights Project, 60% of African American males who do not finish high school will end up in prison at some point in their lives. The California Dropout Research Project found that a 50 percent reduction in dropouts statewide could save $12 billion and prevent nearly 15,000 criminal acts.

We believe that an important way for us to address this crisis is to develop well-designed strategies to address education deficits and that truancy is a significant point where this issue can be addressed. Students at our University are eager to hear from you about your ideas, as we have been actively holding events to critically examine different strategies to combat the school-to-prison pipeline, and we have found that many of the students in our program made the decision to come to law school so that they could better serve the children in our community.

We hope you will join us for a dynamic discussion that we hope will be the first of many, as we work together to build solutions to this significant civil and human rights issue that plagues our state and our nation.

Our first event will be a community conversation with Assemblywoman Fiona Ma on Friday, April 8, 2011 from 3pm – 5pm at GGU in room 3214.

We will also be having a community conversation with Senator Mark Leno on Saturday from March 16, 2011 from 9am – 12pm. This will also be held at GGU in room 3201.