Saturday, September 1, 2012

Prop 34 - Death Penalty "Replacement" and the Money Argument

This month, my posts here will be cross-posted at PrawfsBlawg
As a first post, I want to introduce a voter initiative on the November ballot - Prop 34, also known as the SAFE California Act - and talk a little bit about incremental change and "marketing techniques" for soft-on-crime propositions.
Jonathan SimonKatherine Beckett and more recently Vanessa Barker told it like it is: Regardless of a politician's party affiliation, presenting oneself as soft on crime is akin to political death (interestingly, Kamala Harris, who as San Francisco DA was opposed to the death penalty, called her book Smart on Crime). Bringing up propositions for leniency using human rights discourse is an unacceptable thing to do in American politics. But, as I discuss in the book, the last few lean years have had a silver lining: Scaling back punitive policies becomes more acceptable if done in the guise of financial prudence. So, in recent years we see some developments that are swinging back the punitive pendulum that has been moving in one direction for forty years. We're seeing more talk of drug legalization and decriminalization; we're hearing more talk of priorities in prosecutorial offices; and we're discussing categories of offenders based on their cost, such geriatric parole of the old and the infirm.
One manifestation of these developments is a recent trend of death penalty abolition or, in the least, moratoria. Over the last year alone, five states have abolished the death penalty, citing its costs as a main factor, and bringing the number of no-death-penalty states to 17. After a legislative effort to do the same in CA failed, a public movement consisting of a coalition between activists, new non-punitive victim groupsand law enforcement supporters managed to obtain the necessary 750,000 signatures to place the proposal on the ballot as a voter initiative.
I can't engage in prophecies as to the outcome in November, but Prop 34 has been fairly successful so far in winning endorsements from newspapers, public organizations, former supporters of the death penalty, and important public figures in law enforcement. And I think the reason they have managed to appeal to so many different constituents has a lot to do with their remarketing of the death penalty as costly and unaffordable. Their printed and online materials refrain from using the word "abolition" but rather use the term "replacement" (funny enough, many friends of mine have not jumped on the wagon because they are uncomfortable with the movement's extolment of life without parole anddo not believe in incremental reform.) Their activists and volunteers are advised to stay away from denouncing the death penalty as barbaric and inhumane, but rather to argue for its expense and inefficiency. Watch how this video, ofr example,  emphasizes the issue of cost. The cost factor may also partially explain the recent decline in public support for the death penalty in CA.
This sort of newspeak isn't really new. Nonpunitive propositions are often marketed as "smart" (which they often are!). What's new here is the emphasis on money.
Elsewhere, I talked about the changing discourses in anti-death-penalty activism. The intellectual, Enlightenment-era conversation about its merits and pitfalls, which was so powerful and influential in Europe despite being a top-down intellectual experience rather than a public conversation, didn't really happen seriously in the United States. Our first serious conversation about this happened in the 1970s, with the period of moratorium between Fuhrman and Gregg. And then, much of the conversation revolved around deterrence. Then, with the emergence of DNA testing and innocence projects, the conversation turned to wrongful convictions and the irreversibility of mistakes (see more about the exoneration process in Brandon Garrett's new book.) And now, the discourse focuses on cost and savings.
And there's one more thing to consider: In most countries, as Frank Zimring and David Johnson eloquently showed, once the death penalty goes away, it doesn't come back. But American exceptionalism, as David Garland points out, cannot be discounted. And, in the United States, the death penalty did return after four years of constitutional moratorium. Assuming Prop 34 passes (and, being a huge believer in incremental reform, I very much hope it does), would we bring back the death penalty when the economy improves?

1 comment:

dudleysharp said...

Most of the other states' cost reviews have similar problems.

Response to Absurd California Death Penalty Cost 'Study":
A Rebuttal to "Cut This: The Death Penalty"(1)
Death Penalty vs Life Costs in California
By Dudley Sharp. contact info below

NOTE: Clark is a Calif. ACLU activist and The California Commission on the Fair Administration of Justice's (CCFAJ) is a Calif. government commission.

Clark's/CCFAJ's cost review is wildly inaccurate and misleading. I doubt that there is any more veracity to the death row costs than with their lifer cost evaluations. None of Clark/CCFAJ's numbers can be relied upon.

Clark/CCFAJ says: "In total, California's death penalty system costs taxpayers $137 million per year. Contrast that with just $11 million per year if we replace the death penalty with permanent imprisonment."

For 700 inmates, that is:

death penalty costs: $137 million per year or $196,000//inmate/yr.

life imprisonment costs: $11 million/year or $15,700/inmate/yr.

It is complete, utter nonsense.

Some reality:

The last full California audit (Sept 2009) found the average costs, 2007-2008, per adult inmate was $49,000/inmate/yr. (2) In 1997, it was $25,000/inmate/yr. (3).

This $49,000/inmate/yr is the average for all inmates, not the level IV security of death row inmate like criminals that will cost more, if not much more.

Clark/CCFAJ is stating that these enhanced security prisoners will cost $34,000/inmate/yr LESS than the average cost for all Ca inmates. Clark's'SSFAJ's lack of credibility is of an astounding level. Clark's analysis is laughable.

But, Clark/CCFAJ get even worse.

Without the death penalty, Clark/CCFAJ's select group of former death row murderers would likely be in level IV security and, as lifers, would die as geriatric prisoners or from earlier illness, likely costing on average $80,000-$100,000/inmate/yr., or more, with a rare few costing a $1 million or more per year with illness and/or geriatric stages.

Geriatric problems often begins at age 50 for inmates.

NOTE: The California Medical Facility for corrections averages $83,000/inmate/yr. (4). There, likely, would be additional costs when dealing with Level IV security prisoners.

But, for Clark/CCFAJ, former death row inmates, now lifers, cost $15,700/inmate/yr.

But, it gets even worse for Clark/CCFAJ.

Clark/CCFAJ will admit, if prodded (5) that "the figure of $137 million estimates the entire cost of the death penalty system, not simply housing, but also inclusive of all post-conviction costs, including legal appeals."

In other words, Clark/CCFAJ is admitting escalating the death penalty costs over the alleged cost comparisons of incarceration between lifers and death row. Not at all surprising Clark/CCFAJ excludes such from the lifer costs.

The Clark/CCFAJ's cost comparisons/evaluations are a very bad joke. Instead of making an honest apples to apples cost comparison, Clark/CCFAJ brings us an apples to Rolls Royce cost comparison, as if it is apples to apples.