Book Review: Last Call by Daniel Okrent

I'm very much looking forward to my seminar today, in which we'll be discussing Daniel Okrent's recent book Last Call, a detailed, vivid, darkly humorous and politically insightful analysis of the rise and fall of Prohibition. I can't recommend it enough, and very much hope my students enjoyed it as much as I did.

In Last Call, Okrent provides an informed history of the emergence of Prohibition. Contrary to some popular notions, according to which the temperance movement was largely a religious movement, prohibition was the result of a narrow coalition between a variety of social and political groups with conflicting political interests, all of which were served in this way or another by a ban on alcohol consumption. The most important and surprising of these allies was the movement for women's suffrage; in fact, many of the important heroines of the suffragette movement joined the cause so that a vote could be cast against alcohol. Alcohol consumption was directly related to gender issues, as the United States had been, for years, awash with drink, and saloon culture was tied to domestic violence, squandering of the family budget, and prostitution. But there were other interesting allies as well. Racism found a home in the temperance movement, as well; just as with the criminalization of drugs, some concerns about alcohol were dressed as the fear of the hypersexualized black, violent man, while other concerns arose in the context of Irish Catholics. And, as with various criminalizing "wars" of later times, the deeply-felt effects of World War I, before, during and after the war, played into the debate, fueling an antipathy toward Germanism, which manifested itself as antipathy toward German distillers and brewers.

The delicate dance between taxing and criminalizing vices, which we spend so much time reflecting on in the context of narcotics, was very present in the Prohibition debate. In fact, the passage of the Eighteenth Amendment was facilitated by a prior revival of the alcohol excise tax. As with the Harrison narcotics act, any form of ceding ground of individual freedoms and making them subject to federal regulation later allowed greater curtailment of these rights, resulting in one of the two only constitutional amendments forbidding people from doing something (the other one is slave ownership.)

We all know, of course, that prohibition failed, and that it had something to do with lax enforcement and with an underworld economy of booze; but Okrent's book provides enormous insight into how lax enforcement was. Not only was manpower limited and the ability to follow up the powerful underworld economy therefore limited, but the government actually created rather wide exceptions to prohibition. The book's delving into the world of "medical alcohol" will remind many Californian readers of the medical marijuana regime.

Was prohibition a success or a failure? We tend to regard it as a failure. But I think that, given the immense obstacles in the way of criminalizing a so-called victimless crime, nation-wide, the coalition for prohibition was an astonishingly successful enterprise. That, for a moment in time, racists and progressive working unions, suffragettes and anti-immigrant activists, managed to put their differences aside and lobby for a change in law, is nothing short of astonishing, and very hard to imagine in today's partisan, polarized political world. In some ways, it makes it more interesting to watch the upcoming elections in November, to see whether Prop 34's proponents will be successful in their efforts to get together former correctional staff, law enforcement officials, victim organizations and inmate rights groups to support the replacement of the death penalty with life without parole.


As a coda, enjoy this witty interview of Okrent on The Daily Show.

The Daily Show with Jon Stewart	Mon - Thurs 11p / 10c
Daniel Okrent
www.thedailyshow.com
Daily Show Full Episodes Political Humor & Satire Blog The Daily Show on Facebook

Breivik Sentenced to 21 Years: Norwegian Justice

This piece of news will be astonishing to American readers: Anders Behring Breivik, who murdered 77 people in a gun and bomb massacre last year, many of them children, was sentenced to 21 years. Al Jazeera reports:

 

 Guilt has never been a question in the trial as Breivik described in chilling detail how he hunted down his victims, some as young as 14, with a shot to the body then one or more bullets to the head. 

 The killings shook this nation of five million people which had prided itself as a safe haven from much of the world's troubles, raising questions about the prevalence of far right views as immigration rises. 

The trial and a commission of investigation into the country's worst violence since World War II have kept Breivik on the front pages for the past 13 months and survivors said the verdict would finally bring some closure. 

 "It has been a tough year ... but I don't want to be Utoeya-Nicoline for the rest of my life," said Nicoline Bjerge Schie, a survivor of the shooting. 

 Dressed in a black suit with a tie and still sporting the under-chin beard familiar from the 10 weeks of hearings that ended in June, Breivik smirked when he entered the courtroom and gave his now familiar, far-right salute when his handcuffs were removed. He smiled again as the judge read out the verdict.

Updated: Under Norwegian law, the maximum penalty for homicide is 21 years and for crimes against humanity, 30 years. At the end of that sentence, people who still present a risk can be held for additional time, in increments of five years, as preventive detention.

It's worth remembering that Norwegian prisons are very different from North American ones; they are well-furnished, moderately populated and safe. How you feel about European justice sentencing a mass murderer the way some American courts sentence people for possession with intent to sell tells you a lot about where you stand on the correctional continuum.

------
Props to Chad Goerzen for the link.

Trust, Law Enforcement, and Power: Nostalgia for a Past that Never Was

In the last few days I have been taking breaks from editing a piece by watching old episodes of the classic TV series Mission: Impossible. The premise, for the few readers who are unfamiliar with it, is that a special team of spies receives an assignment, usually involving a foreign nation (depose a dictator, release a political prisoner, unfix the elections), which they execute using disguise, technology, and sophisticated understanding of the internal politics of their adversary. With no support from official American law enforcement or the Department of State, they operate in the shadows.

I've been trying to think what about this is so soothing and appealing to me, beyond the sophistication of the plan, the assumed credibility of the technology, and Lalo Schiffrin's excellent soundtrack, and I think I've got it. It evokes a feeling of nostalgia for a past that never was; a past in which good and evil are clearly delineated in the opening sequence, and in which our secret service works for the undisputed good while we all sleep soundly in our beds. A past in which power is never abused, but tempered with talent and an old-fashioned gentlemanly code. A past in which the United States is a benevolent patriarch, deftly and subtly governing its childlike counterparts. A past in which women and people of color play cameo roles in the world of secret service, and women are praised and utilized for their sexual appeal without complain or critique.

The problem is that this past never existed. In the late sixties, when this show aired on American television, the US was already angling toward a questionable and destructive elective war in Vietnam, and was already involved in fixing (not unfixing!) the elections in various foreign countries, not to mention the ones it was yet to fix. Involvement in attempted and successful assassinations of foreign politicians and dignitaries has been, since then, clearly documented. And let's not even start discussing foreign military interventions.



 How comforting it was to live in the Mission: Impossible world, in which these developments could be either disbelieved or explained away as benevolent and necessary. Which just makes the courage of people like Daniel Ellsberg, who actually saw what was what and brought it into the realm of public consciousness, all the more impressive.

And then something very important has dawned on me. Many of us still live in that world. Much of the police brutality and correctional abuse of power that has been going on in the last four decades has occurred precisely because we still want to hold on to the belief that government agents, domestic or international, are at the forefront of keeping us safe, would never do anything unnecessary, and can always put disinterested, neutral professionalism and patriotism ahead of self interest.

In that respect, there is little difference between international and domestic security. If we're willing to give a carte-blanche to our special agents abroad, we'll also extend this courtesy to agents at home who present their work as "the toughest beat."We'll disbelieve the possibility that people might be getting shot because of their race and because of unchecked, biased assumptions, because it's inconvenient to think so. Because if we start doubting our police force, and our correctional staff, we'll have to stop sleeping soundly in our beds, and realize that many things - not only in far-away countries - have gone horribly awry.

Decriminalizing Overdose Patients Seeking Emergency Care

As it turns out, drug overdose is the second leading cause of injury and death in the United States. But to seek medical treatment for overdose is to risk criminalization for drug possession.

A new bill, AB 472, is on its way to be signed by the Governor. Under this bill, the Health and Safety Code will disallow prosecution for possession of folks seeking emergency treatment for overdose for themselves, or others. It will not affect prosecution of other drug-related issues, such as violations of the vehicle code or other dangerous behaviors.

Musical Chairs: Two Visions of Realignment

Credit Michael Czerwonka for WSJ.

A story from early July in the Wall Street Journal looks at the shifts and shuffles in county jails following the realignment. It's a helpful ground-level story on who differently counties have dealt with this. Here's a pretty lengthy excerpt:

California's 58 counties have varied widely in how they manage the inmate shift, known as realignment. Residents in some areas, such as San Francisco, generally have embraced seeking alternatives to incarceration. But as Kern and other counties only begin to experiment with new methods, local residents have protested that people are being let out of jail too early. 

 "I call it 'justice by geography,' depending on where you get arrested," said Barry Krisberg, a criminal-justice expert at the University of California, Berkeley. 

 The total population in the state's 33 prisons has fallen by 16% to 120,946 from 144,138 in late September 2011—days before realignment began, according to the state Department of Corrections and Rehabilitation. 

Under realignment, people who would have gone to state prison for low-level crimes in the past will now be kept under county supervision. Low-level crimes range from drug sales to deadly hit-and-run accidents, under the state's classifications. The counties get state money to cover the added costs, and sheriffs are encouraged to avoid overcrowding in their own jails by finding alternatives to locking people up. 

 The change is being closely watched by public-safety experts and other states, which are dealing with their own overcrowded prisons. California's realignment "certainly has to be one of the most dramatic shifts in responsibility in American history," said Adam Gelb, director of the Pew Center on the States' Public Safety Performance Project. 

Mr. Gelb and other experts say there is increasing evidence that programs like the ones Mr. Youngblood is trying—such as electronic monitoring along with special types of counseling—can keep people from re-offending more effectively than keeping them behind bars. Still, the policies have been met with skepticism in many California counties. 

 In Merced County, southeast of San Francisco, residents slammed officials in May after a woman convicted of driving under the influence in an accident that killed a local firefighter was sent home on electronic monitoring after serving less than a day of her sentence, according to a spokesman for the county sheriff. In San Joaquin County, residents protested in April when a man who had been released early from jail then tried to kill his girlfriend. 

 Officials in Calaveras County disagreed so strongly over whether to allot a big portion of state money for rehabilitation programs for offenders that the county was left unable to spend about $475,000 until they resolved the fight in April. 

 The stakes are particularly high in Kern County, with a population of about 840,000. The county has the second-highest per capita property-crime rate and the sixth-highest violent-crime among the state's counties, according to 2009 state data. 

 So far, under realignment, the number of people in Mr. Youngblood's jails has risen to 2,410 on average from 2,121 last October. The sheriff is seeking funding for a 790-bed jail. 

 At the same time, 981 inmates are supervised with electronic monitoring and other out-of-custody programs—almost double the 499 in October. "This is our virtual jail," said Sgt. Greg Gonzales, Mr. Youngblood's realignment coordinator. 

 Rudy Herrera is among those inmates. The 24-year-old, who had already been to state prison and county jail several times, was convicted in February of possessing stolen property. Under the old system, he would have been sent to a state lockup for as long as several years. Under realignment, he served less than four months in a Bakersfield jail, including 90 days in a drug-abuse treatment program. Now Mr. Herrera stays at home with a monitor strapped to his ankle, typically leaving only for work and his drug-treatment sessions. "It keeps me focused," he said. 

While every county is its own universe, I think we can discern two main approaches. The old-school approach, which dangerously resembles that of state prisons of yesteryear, is to just build and expand, to counter the short-term expansion in inmate numbers. The new approach is to find alternatives to incarceration and to invest in rehabilitation and reintegration with the hopes of reducing recidivism in the long run. Which approach do you think is wiser?
-------
props to David Greenberg for the story.

Pretrial Release: From CJCJ on SB 210

Legislation to provide more opportunities for unsentenced detainees

submitted on Tue, 08/21/2012 - 14:06 by Catherine McCracken

In California, local county jail bed space is not always for the guilty.  Approximately 50,000 un-sentenced individuals are confined to the state’s county jails, awaiting their time before a judge.  A majority of these individuals are confined to local jails because they are not able to post bail .  This contributes to the 71% state average of un-sentenced individuals in county jails.  These individuals haven not necessarily been deemed a flight-risk or a danger to society; they just lack the fiscal resources to secure release back into the community.  This structure is both inefficient and expensive.  Further, the collateral consequences of unnecessary incarceration are expansive as time spent confined to local jail is often idle time away from employment, education, and families.

Under Realignment, California’s counties have seen an increased responsibility for managing non-violent, non-serious, and non-sex offenders.  This has caused some difficulty for some local jurisdictions that have historically relied on incarceration at both the state and local level.  So, how do local criminal justice decision-makers manage available bed space without constructing expensive new jails?    

Some counties such as Santa Cruz and San Francisco have been exploring local alternatives to incarceration that have alleviated capacity problems with bed space in their jail system.  These two counties in particular have invested in non-custodial options, which have resulted in the counties’ ability to manage the new responsibilities under Realignment.  For example, Santa Cruz County implemented a wide array of community-based alternatives for the pre-trial population that resulted in a local un-sentenced population that is 20% below the state average.  

Additionally, several counties like Santa Cruz utilize nationally-recognized risk assessment tools to determine if an arrested individual poses no flight risk or risk to public safety; therefore, can be released before their trial on their “own recognizance” (OR), or lightly supervised by the county.  Such individuals also receive pretrial services like drug counseling.  Pretrial interventions such as these have aided in the reduction of Santa Cruz’s pre-trial population.

Yet not all counties have implemented such measures to reduce their jail populations, nor do they believe they have the legal authority to do so.  Therefore, organizations such the American Civil Liberties Union (ACLU) have taken steps, through Senate Bill 210 , to propose new laws that would require the Courts to consider “own recognizance” pretrial release for certain populations of defendants.  By adding this additional step in the court process, current jail detainees who may not be financially able to post their own bail may be able to be released if they meet the conditions of OR.  Additionally, the legislation would clarify the legal authority of the Courts, county sheriffs, and probation departments to conduct risk assessments on the un-sentenced population.

 

This legislation supports the creation of an efficient and fiscally responsible criminal justice system.  By recognizing not all detainees must remain in jail before trial, justice stakeholders are better able to serve those offenders that require confinement.  Maintaining strong community ties for those individuals able to be released on their own recognizance has long-term positive impacts in reducing recidivism rates and improving public safety.     
http://www.cjcj.org/post/adult/corrections/legislation/provide/more/opportunities/unsentenced/detainees

From CJCJ on SB 210 on pretrial release

Legislation to provide more opportunities for unsentenced detainees

submitted on Tue, 08/21/2012 - 14:06 by Catherine McCracken

Share on facebook Share on google_plusone Share on email Share on print More Sharing Services

In California, local county jail bed space is not always for the guilty.  Approximately 50,000 un-sentenced individuals are confined to the state’s county jails, awaiting their time before a judge.  A majority of these individuals are confined to local jails because they are not able to post bail .  This contributes to the 71% state average of un-sentenced individuals in county jails.  These individuals haven not necessarily been deemed a flight-risk or a danger to society; they just lack the fiscal resources to secure release back into the community.  This structure is both inefficient and expensive.  Further, the collateral consequences of unnecessary incarceration are expansive as time spent confined to local jail is often idle time away from employment, education, and families.

Under Realignment, California’s counties have seen an increased responsibility for managing non-violent, non-serious, and non-sex offenders.  This has caused some difficulty for some local jurisdictions that have historically relied on incarceration at both the state and local level.  So, how do local criminal justice decision-makers manage available bed space without constructing expensive new jails?    

Some counties such as Santa Cruz and San Francisco have been exploring local alternatives to incarceration that have alleviated capacity problems with bed space in their jail system.  These two counties in particular have invested in non-custodial options, which have resulted in the counties’ ability to manage the new responsibilities under Realignment.  For example, Santa Cruz County implemented a wide array of community-based alternatives for the pre-trial population that resulted in a local un-sentenced population that is 20% below the state average.  

Additionally, several counties like Santa Cruz utilize nationally-recognized risk assessment tools to determine if an arrested individual poses no flight risk or risk to public safety; therefore, can be released before their trial on their “own recognizance” (OR), or lightly supervised by the county.  Such individuals also receive pretrial services like drug counseling.  Pretrial interventions such as these have aided in the reduction of Santa Cruz’s pre-trial population.

Yet not all counties have implemented such measures to reduce their jail populations, nor do they believe they have the legal authority to do so.  Therefore, organizations such the American Civil Liberties Union (ACLU) have taken steps, through Senate Bill 210 , to propose new laws that would require the Courts to consider “own recognizance” pretrial release for certain populations of defendants.  By adding this additional step in the court process, current jail detainees who may not be financially able to post their own bail may be able to be released if they meet the conditions of OR.  Additionally, the legislation would clarify the legal authority of the Courts, county sheriffs, and probation departments to conduct risk assessments on the un-sentenced population.

 

This legislation supports the creation of an efficient and fiscally responsible criminal justice system.  By recognizing not all detainees must remain in jail before trial, justice stakeholders are better able to serve those offenders that require confinement.  Maintaining strong community ties for those individuals able to be released on their own recognizance has long-term positive impacts in reducing recidivism rates and improving public safety.     
http://www.cjcj.org/post/adult/corrections/legislation/provide/more/opportunities/unsentenced/detainees

State Asks Federal Court to Modify Plata Requirements

In a late filing on Friday, the State of California argued it cannot comply with Plata requirements to reduce the inmate population by 33,000, and should not be made to do so. The Chron reports that CDCR -

. . . said it can provide adequate medical care at higher population levels - about 6,000 higher - than the Supreme Court required in its May 2011 ruling.

Department officials rejected the three-judge court's suggestion that the state could comply with the population standards by releasing some prisoners early without endangering the public. Those possibilities would include granting inmates greater sentence reductions for good behavior and expanding Gov. Jerry Brown's realignment program, which has moved low-level felons from prisons to county jails.

"The Supreme Court did not authorize the early release of prisoners," state lawyers told the court. Continued enforcement of the requirement to reduce the inmate population to 112,000 by next June, they argued, "will come at a significant, and legally unnecessary, cost to the state" and also "interferes with the state's democratic processes."

Instead, state lawyers said, the court should increase the population target to 118,000, a goal the prisons can meet by March 2013. Recent improvements in prison health care - which has been under federal court supervision since 2006 - show that "constitutionally adequate" care can be provided without further reductions, the lawyers said.

Ironically, CDCR now openly argues that the path to "compliance" involves some people-shuffing rather than a real effort to decarcerate:

If that target stands, state lawyers said, California's only recourse would be to cancel plans to return about 5,000 inmates from prisons in other states, where they have been temporarily transferred. That would help lower the population to 112,000 by December 2013, they said, at a cost of more than $300 million to the state, while keeping the inmates separated from their families.

Readers - do you think, as Don Specter argues in the article, that CDCR never "meant to comply" with the Plata order? Or that there was a bona-fide attempt to do so and, confronted with the realities, they changed their minds?

Bill Allowing Resentencing of Lifer Juveniles Passes Assembly

Excellent news: SB9 - a Senate bill allowing lifer juveniles to have their life without parole sentence reevaluated by a judge - has passed the California Assembly.

This is a major achievement. Leland Yee has been pushing this issue for years. The full text of SB9 is here. And there is more information on the Fair Sentencing for Youth website.

In order to pass, the bill needs to be reaffirmed by the Senate (which has already approved it) and signed into law by the Governor, who is already being pressured by opposition groups.

Here's what you can do to help: Click here to contact the Governor, and your Senator, and express your support for the bill.

And: Regarding our last post - the California Supreme Court has done the right thing. In CA v. Caballero, the Court has held a 110-year sentence to violate Graham v. Florida. This case joins CA v. Mendez, in which the Court struck down a 84-year sentence for a juvenile who did no harm.

Once you've emailed your Senator and the Governor, rejoice with all Californians who believe that everyone, especially at a very young age, should be offered a glimmer of hope and redemption.

A 175-Year Sentence for a Juvenile: Is It Life Without Parole?

Ryan Gosling in Fracture (2007).
Image courtesy Allmoviephoto.com. 

We're coming in from our semi-hiatus to report on an unusual sentencing decision currently on appeal at the California Supreme Court, People v. Núñez. The New York Times reports:

The California Supreme Court is currently reviewing a case in which a juvenile defendant received a sentence of 175 years, which the state attorney general insisted “does not foreclose the possibility that he may one day be eligible for parole.”

The absurdly high sentence is an attempt, of course, to bypass the Supreme Court's decision in Graham v. Florida, which declared life without parole unconstitutional for juveniles for any offense other than homicide. 

The Appellate Court in Núñez wrote:

Here, we explain again that juveniles who commit nonhomicide offenses do not share identical culpability with adult offenders who receive LWOP sentences for the same offenses.  (Nuñez, supra, 173 Cal.App.4th at p. 726 [“Age . . . matters” and “Youth is generally relevant to culpability”].)  The United States Supreme Court recently determined the immature and potentially malleable nature of juveniles precludes a judgment at the outset that a nonhomicide juvenile offender will never be fit to reenter society.  (Graham v. Florida (2010) __ U.S. __; 130 S.Ct. 2011 (Graham).)  Graham invalidated a de facto sentence of life without the possibility of parole as a sentencing option for juveniles who do not kill.  (Id. at p. 2030.)  As a practical matter, the consecutive life sentences the trial court imposed here denied Nuñez any possibility of receiving a parole hearing.  We perceive no sound basis to distinguish Graham’s reasoning where a term of years beyond the juvenile’s life expectancy is tantamount to an LWOP term. 

Beyond the obvious facetiousness in remarking that one might be eligible for parole after 175 years, there's a deeper issue here, which has to do with the sort of creative "tricksterism" on the part of the prosecution that results in asking the court for this sort of sentence. In a really great law review article, Carrie Menkel-Meadow argues that the abundant representation of lawyers in popular culture has created multiple models of viewing their ethics. Here's the table she uses to analyze the various sources based on their treatment of lawyers' acts or character:

It strikes me that a good way to transcend the positive/negative distinction, for both professional acts and professional character traits, could be examining the extent to which the lawyer deviates from an uninspired, technical adherence to the obvious black letter law. The acts in question could be dragging unexpected parties into the trial, making an unexpected argument, or engaging in some unusual sleuthing maneuver. Let's call the character trait that informs such acts, for the sake of discussion, creativity.

I haven't empirically tested it, but my sense is that we see a lot more portrayals of creative defense attorneys than prosecutors. We sort of expect defense attorneys to be represented as using legal loopholes for "getting their clients off on a technicality." Portrayals of creative prosecutors, who come up with original arguments and use legal loopholes for conviction and harsh sentencing, are few and far between, but they do exist. One notable example that comes to mind is Kelly McGillis' portrayal of the prosecutor in The Accused, where following an unsuccessful rape prosecution she tries - and succeeds in - convicting the spectators and bystanders. Another one is Ryan Gosling's portrayal of the prosecutor in Fracture, who is involved in a battle of wits with the defendant. Both of those portrayals evoke a great deal of sympathy for the prosecutors, who are using the tools that they have to put despicable and dangerous people behind bars. And it is this sort of positive representation of prosecutorial creativity that I have a serious problem with.

There is no absolute symmetry in the criminal process. Defense attorneys represent the client (setting aside for a minute the problematic perception of public defense) but prosecutors represent the state.This distinction has important implications: Prosecutors have an array of police and state power tools at their disposal. Since most defendants are not like the Anthony Hopkins character, but disproportionately poor people of color, prosecutors wield even more power, and resorting to trickery and creativity to "nail" someone strikes me as cynical abuse of authority. Arguing that "well, theoretically this kid could live to the ripe age of 200, in which case he could potentially come up for parole" reads as if the prosecution is smirking. And smirking has no room in representation of the State.

And I haven't even started on the trial court that accepted this sort of argument. What could the judge possibly be thinking? Hurray, I'm so smart that I managed to bypass Graham and subvert the Supreme Court?

We'll be closely following this case and hoping that the CA Supreme Court reaches the right decision. Because there should be no smirking when sentencing a juvenile offender, no matter how heinous his act, to decades in prison. It is a tragedy, and creative maneuvering has no room in a tragedy.