Tuesday, September 25, 2012

Death Row Inmates Oppose Prop 34... But You Should Support It

This morning's fascinating story on the Chron brings us unexpected commentary about Prop 34: The voices of death row inmates themselves. And, as Bob Egelko tells us, they oppose the proposition.

Counterintuitive? Not really. Here goes:

It's not that they want to die, attorney Robert Bryan said. They just want to hang on to the possibility of proving that they're innocent, or at least that they were wrongly convicted. That would require state funding for lawyers and investigators - funding that Proposition 34 would eliminate for many Death Row inmates after the first round of appeals. 

Bryan has represented several condemned prisoners in California as well as Mumia Abu-Jamal, the radical activist and commentator whose death sentence for the murder of a Philadelphia policeman was recently reduced to life in prison. The attorney said California inmates have told him they'd prefer the current law, with its prospect of lethal injection, to one that would reduce their appellate rights. 

"Many of them say, 'I'd rather gamble and have the death penalty dangling there but be able to fight to right a wrong,' " Bryan said. 

 . . . 

Attorney Natasha Minsker, the Yes on 34 campaign manager, said the initiative would place now-condemned inmates "in the same position as every prisoner convicted of a serious felony in California," with the same right to go to court. 

They would no longer automatically get state-funded lawyers for habeas corpus claims, Minsker said. The main purpose of those lawyers now is "to save a person's life" from a wrongful execution, but that task would disappear if Prop. 34 passed, she said. 

No one has polled Death Row inmates on Prop. 34. But an organization called the Campaign to End the Death Penalty sent letters to 220 condemned prisoners in California and received about 50 replies, all but three of them against the ballot measure, said Lily Mae Hughes, the group's director. 

A few thoughts on this:

1. If anything, death row inmates' opposition to the proposition strengthens the position of those who support it for reasons of financial prudence. What the inmates want is the hope of receiving quality litigation, which is exactly the expensive good that proposition backers, particularly those of the libertarian persuasion, seek to eliminate.

2. Wouldn't the world be a better place if we worried about EVERYONE's innocence, not just that of capital inmates? I imagine after Prop 34 passes we will have to retool habeas resources in a serious way to improve litigation on behalf of lifers. And the next frontier is life without parole.

3. My pal Billy Minshall and I exchanged thoughts on this, and he speculated that, had anyone polled recently freed slaves in 1863 about abolition, we might have been surprised at the outcome. It's very difficult to imagine a more fair world when you've been making the most out of a horrifyingly unjust reality.

Props to David Takacs and Billy Minshall for alerting me to this first thing in the morning. Cross-posted to PrawfsBlawg.

Friday, September 21, 2012

Newt Gingrich and Pat Nolan Publicly Endorse SB9

Wow! Talk about narrow coalitions! First we get Pat Robertson's enthusiastic support of marijuana legalization, and now this: Newt Gingrich and Pat Nolan offering support for Senate Bill 9, which would allow for resentencing youth who have been sentenced to life imprisonment without parole. Their op-ed in the U-T San Diego explains:

You might expect that these LWOP sentences are limited to the “worst of the worst,” but that is not the case. A young teen can be a bit player in a crime, e.g., act as a lookout while his buddies go in to steal beer from a convenience store. None of them is armed, and there is no plan for violence. Then it all goes haywire. The clerk pulls a gun, and one of the kids tries to grab it away. In the struggle that ensues, the gun goes off and the clerk dies. 

Under California’s “felony murder” rule, every person involved in that crime, no matter how minor their role, is equally guilty of murder, even if they did not plan or expect a murder to occur. According to the fiction of our law, the lookout is as much to blame as the person who pulled the trigger. About 45 percent of the inmates serving LWOP for a teenage crime were not the person who caused the death. Yet they will die in prison of old age, with no chance for release. 

But should these youngsters die in prison for something they did when they were so young? Wouldn’t it be better to re-evaluate them after serving a long stretch in prison and consider whether they have matured and improved themselves? 

We are conservative Republicans, and we believe that some people are so dangerous that we must separate them from our communities. That is what prisons are for. But sometimes we overuse our institutions. California’s teen LWOP is an overuse of incarceration. It denies the reality that young people often change for the better. And it denies hope to those sentenced under it.

This op-ed joins a long stream of previous statements from conservative politicians who express a willingness to deviate from the traditionally tough-on-crime stance on the right. And notably, while there is a savings strand here, there is also text about compassion and humaneness. Good stuff.

Cross-posted to PrawfsBlawg.

Wednesday, September 12, 2012

Pelican Bay Inmates Reach Agreement to End Racial Hostilities in CA Institutions

Yeah - you read it right. What follows is the press release:


The statement calls for the cessation of all hostilities between groups to commence October 10, 2012, in all California prisons and county jails.   “This means that from this date on, all racial group hostilities need to be at an end,” the statement says. It also calls on prisoners throughout the state to set aside their differences and use diplomatic means to settle their disputes.   The Short Corridor Collective  states, “If personal issues arise between individuals, people need to do all they can to exhaust all diplomatic means to settle such disputes; do not allow personal, individual issues to escalate into racial group issues.”  In the past, California prisoners have attempted to collaborate with the Department of Corrections to bring an end to the hostilities, but CDCR has been largely unresponsive to prisoners’ requests. The statement warns prisoners that  they expect prison officials to attempt to undermine this agreement.

“My long-time experience in urban peace issues, gang truces, prevention and intervention, is that when gang leaders and prisoners take full stock of the violence, and how they can contribute to the peace, such peace will be strong, lasting, and deep. I honor this effort as expressed in this statement,” says Luis J. Rodriguez, renowned violence intervention worker and award-winning author of Always Running: La Vida Loca, Gang Days in L.A.  Rodriguez has helped broker gang truces throughout the US as well as in other parts of the world. This spring, Rodriguez was involved in a historic truce between gangs in El Salvador leading to a 70% drop in violence in that country.  According to Rodriguez, “What is needed now—and where most peace efforts fail—is the meaningful and long-lasting support of society and government, in the form of  prison reform, training, education, drug and mental health treatment and proper health care. We need an end to repressive measures that only feed into the violence and traumas.”

Azadeh Zohrabi of the Prisoner Hunger Strike Solidarity Coalition sees the agreement as a positive development that stems from last year’s hunger strikes.  “While living through some of the worst conditions imaginable, the authors of this statement continue to work for change,” states Zohrabi. “While the prison administration drags its feet on even the most basic reforms, these guys are trying to build peace throughout the system.  That says a lot their humanity and hope.”

Advocates and the Short Corridor Collective are eager to spread the word as far and wide as possible and implement peace plans throughout California’s prisons and jails.  “We must all hold strong to our mutual agreement from this point on and focus our time, attention, and energy on mutual causes beneficial to all of us [i.e., prisoners], and our best interests,” says the Collective. “The reality is that collectively, we are an empowered, mighty force, that can positively change this entire corrupt system into a system that actually benefits prisoners, and thereby, the public as a whole.” The PBSP-SHU Short Corridor Collective has strongly requested that its statement be read and referred to in whole.  It can be found here.


If this agreement will be respected by inmates in all CA institutions, it's a major, major breakthrough. Interracial violence is often seen as a ubiquitous fact of life within walls. It also speaks volumes about the impact that the Pelican Bay hunger strike has had on organizing inmates, who are realizing that in order to end solitary confinement and debriefing they need to fight a common enemy, rather than each other. This is huge, and might hopefully bring CDCR to discard extreme incarceration practices if they cannot be justified as gang violence prevention measures.

cross-published to PrawfsBlawg

Sunday, September 9, 2012

Should Inmates' First Amendment Speech Allow for Media Interviews?

An interesting bill lies on Governor Brown's desk, awaiting his signature: AB 1270 would allow, and set procedures for, media interviews with prisoners.

The bill, sponsored by Assemblymember Tom Ammiano, would dramatically change the parameters of free speech in prison.

Under the new bill, CDCR would be required to allow interviews with inmates on a pre-arranged and on a random basis, unless the warden determines that the interview "poses an immediate threat to public safety or the security of the institution." The interview request should be presented within a reasonable time, and the interview itself requires the inmate's consent, as well as a notification to the victim or his/her family ahead of time. The inmate is not to receive any form of remuneration for participating in the interview, and CDCR is not to change an inmate's status or punish him or her for giving an interview.

Currently, media interviews in CDCR prisons with specific inmates are not allowed (visiting prison and speaking to inmates at random is allowed under certain conditions.). The Supreme Court's decision in Pell v. Procunier (1974) upheld this regime, arguing that the existing provisions for media contact meant that there was no First Amendment violation.

Let's think about a few potential applications of this. One of the concern folks might have is about sensational interviews providing wanton publicity for perpetrators of heinous crimes. Notifying the victim's family is not, of course, procuring the victim's family's consent. And yes, it would mean more air time for tasteless, heinous and sensationalist media coverage. But how would that be different from the tasteless, heinous, sensational television we already watch?

Think about how much good it could do an innocent inmate if reporters would pick up the cause and pursue it, and how helpful it would be if, in addition to other footage, they could speak to the inmate him/herself. It's enough to be reminded of the stunning impact that Paradise Lost, Paradise Lost 2: Revelations, and Paradise Lost 3: Purgatory have had on the West Memphis Three case (here's a great interview with the filmmakers).

And think of how much more attention the Pelican Bay hunger strike would have received if the public got its news not just from CDCR officials, and some crumbs from what families got through letters. But under the new proposition, it's likely that CDCR would still have the prerogative to decline the interviews based on institutional safety reasons.

If you support the bill, you can let the Governor know your position.

cross-posted to PrawfsBlawg.

Friday, September 7, 2012

Judge Henderson Orders Continuation of Receivership

A lengthy battle has been fought between the California Department of Corrections and Rehabilitation (CDCR) and the federal Receiver, Clark Kelso. Long before Brown v. Plata, Judge Thelton Henderson placed the entire prison medical system in the hands of a federal receivership. There has been some noticeable improvement (some investigating reporting revealed mixed results), but the court, deciding that overcrowding in prison impeded more improvement, kept the receivership in place while ordering the State to decrowd prisons. The State has been repeatedly asking the court to end the receivership and criticizing the Receiver's spending; the Receiver has consistently asked to sever health care from CDCR. And, as of yesterday, this is officially NOT OVER. The Los Angeles Times reports:

In an order issued Wednesday, U.S. District Judge Thelton Henderson said he would require tougher reviews than the state wanted before agreeing to dissolve the receivership that has run inmate medical care for six years. 

"Evidence of progress made under the direction and control of the receiver does not constitute evidence of [the state's] own will, capacity, and leadership to maintain a constitutionally adequate system of inmate medical care," Henderson wrote. California officials have "not always cooperated with, and have sometimes actively sought to block, the receiver's efforts."

Would Judge Henderson be more willing to bring the Receivership to an end if the state seemed more ready and willing to comply with the population reduction order, which it now seeks to change? For the court, quality of services is inexorably tied to prison population. But if services improve as population dwindles, is that evidence of the state's ability to provide quality health care, or a testament to the Receiver's efforts?

But there's more here. This is interesting to me because the debate over the quality of prison health care has drawn attention to a special population of inmates: The old and the infirm.

In their 1992 article The New Penology, Malcolm Feeley and Jonathan Simon speak of a change from a correctional regime that aspired to deter or reform inmates to a managerial, actuarial, risk-management regime that merely aspires to efficiently warehouse inmates. This regime is characterized, in part, by "selective incapacitation" - creating a continuum of institutions to house people according to the risk they pose.

I submit that we still classify and categorize inmates, but these days our attention focuses on a slightly different criterion for incapacitation: Cost. Where our legislative energy has focused on groups we deemed, justly on unjustly, to be dangerous (like sex offenders and habitual offenders), we now consider the expense involved in incarcerating groups of people. This has been evident in the dynamic of incarcerating juveniles vs. adults, and it has also been evident in our approach toward Three Strikers. The latter are, in fact, a fairly small percentage of the prison population (about 8,000 inmates in total), but they have spent a long time in prison, and are old and sick. This is important because a stunning percentage of California's correctional budget is spent on health care. Several states have considered, and enacted, provisions for geriatric parole (CA has done so most recently in jails as well.) The use of GPS tracking devices for ill inmates has become more prevalent. And, while members of the notorious Manson family still hold symbolic, horrified fascination that would impede their release even if they are very old and sick, we are more open to considering such solutions.

The intense battle between CDCR and the federal Receivership is an indication of the immense difficulties of administering passable health care to a large population, and as no end is in sight, legislature might need to think more seriously about handling its old and infirm prison population.

cross-posted to PrawfsBlawg.

Thursday, September 6, 2012

SAVE THE DATE!!! CCC 2013 Conference

The UC Hastings Criminal Justice Institute, 
the Hastings Race and Poverty Law Journal,
and the California Correctional Crisis Blog

are happy to invite 


to attend the California Correctional Crisis Conference of 2013.

Where? California State Building, 350 McAllister Street, San Francisco
When? Thu and Fri, March 21-22, 2013

Featured speakers include Jonathan Simon and Jeanne Woodford
MCLE credits available

More information to come! Watch this space!

Wednesday, September 5, 2012

Felon Disenfranchisement and the California Realignment

In 1974,  California voters passed a constitutional amendment extending voting rights to all Californians with criminal records, save for those "imprisoned or on parole for the conviction of a felony." Prior to the amendment, disenfranchisement was permanent in CA once you were convicted of a crime. The impetus for the amendment was, hard as it may be to believe in the days of public safety rhetoric and redball crime panic, the wish to help people regain their full citizenship after they complete their parole. In a landmark 2006 case, the CA Supreme Court interpreted this provision as follows: Folks in state prison, and under state parole, can't vote. Folks in jail or under probation (or in jail for a probation violation) aren't considered "imprisoned" and therefore can, and do, vote.

A new piece I'm working on (coauthored with Jessica Willis) for the upcoming Loyola Constitutional Law Colloquium examines the application of this provision, and this interpretation, to a new population of offenders created by the Criminal Justice Realignment in California.

Let me present the legal dilemma. In the aftermath of Brown v. Plata, and in order to resolve the serious financial crisis faced by the state (corrections eat up about 7% of CA's entire budget), the California Penal Code has been amended to sentence non-serious, non-violent, non-sexual offenders to do time in county jail rather than in state prison. Are these people "imprisoned" for the purpose of the constitutional provision?
Constitutional provisions that give people fundamental rights should be interpreted broadly, right? Whenever there's ambiguity, we should support people's right ot vote, right? Wrong. The CA Secretary of State instructs felons that, if they are among the realigned group, they cannot vote.

Several civil rights organizations, and several folks doing time in jails or on community supervision, petitioned the CA Court of Appeals for an original writ allowing them to vote (full disclosure - yours truly and coauthor Jessica Willis wrote an amicus brief on behalf of thirty criminal justice scholars in support of the petitioners). The Director of Elections for the City of San Francisco - one of the respondents - actually agreed with petitioners that they should be allowed to vote, and merely asked the Court for instructions what to do. The court threw the case in petitioners' faces with no reasoning. Petitioners took to the CA Supreme Court, and received pretty much the same response.

In the Article I go in depth into what the Court should have weighed and considered if it took these Californian citizens' rights seriously. But in a nutshell, here's what I think is going on: There are two visions of Realignment. You can see it as a technical way to resolve a budgetary problem and warehouse people on someone else's dime. Or, you can see it as  a real opportunity to bring people back to their communities, through a correctional method that actually might make sense for people who will eventually come out of prison and reintegrate into society. And by throwing the case out, the Court has opted, regrettably and apparently without much thought, for the former vision. A huge opportunity has been missed. People who could, and should, have been reintegrated into society; who could've channeled their experiences into civic engagement; and who could've started to care about their communities and neighborhoods will remain isolated and alienated.

In the movie Recount, a fascinating flick about the Bush v. Gore election, a person mistaken for a felon is sitting at home, watching Bush's acceptance speech. His face is difficult to read. Is he angry? Sad? Disillusioned? Robbed of the promise of a voice or full citizenship? When you vote in November, think about the immense number of U.S. citizens behind bars, or under supervision, from whom this right has been denied.
cross-posted on PrawfsBlawg.

Tuesday, September 4, 2012

"Smart on Crime": Retreating from Punitive Discourse Citing Financial Prudence

 In the decades prior to the financial crisis, as Jonathan Simon writes in Governing Through Crime, no politician, regardless of party affiliation, could afford to sound "soft on crime." Propositions running counter to the received wisdom that more punitive is better had to be marketed assmarter, more efficient, or safer law enforcement - and, of course, these drowned in a sea of punitive propositions. But one of the key features of humonetarian discourse - the correctional discourse in the wake of the financial crisis - has been a partial liberation for politicians from the tough/soft on crime dichotomy. The usual tricks for dressing nonpunitive propositions as, well, not nonpunitive, still apply, but now there's justification to do so: Punitiveness is not financially sustainable. 

Our friends at Sentencing Law and Policy posted a link to an "astute recent Washington Post piece" reviewing the GOP's platform on crime after the RNC convention. The piece compares GOP criminal justice policies and ideals to those of yesteryear. The bottom line: Republicans are softer on crime. Here are a few snippets:

Policy experts agree that the omission [of the War on Drugs from the GOP platform] is significant. “This is less a ‘tough on crime’ document than you would have expected. And leaving out the War on Drugs [is] quite astounding,” says Mark Kleiman, a crime policy expert and professor at UCLA. “It’s a bit more of a libertarian attitude,” says Marc Levin, who runs a conservative criminal justice reform project called “Right on Crime” that’s attracted the support of Newt Gingrich and Grover Norquist.

What’s more, the 2012 platform includes new provisions that emphasize the importance of rehabilitation and re-entry programs to help ex-prisoners integrate back into society—using language that Kleiman describes as “a lot less ‘lock ‘em up and throw away the key.’” “While getting criminals off the street is essential, more attention must be paid to the process of restoring those individuals to the community,” the platform says. “Prisons should do more than punish; they should attempt to rehabilitate and institute proven prisoner reentry systems to reduce recidivism and future victimization.” The document also criticizes the “overcriminalization of behavior,” though it doesn’t elaborate on the point much further.

Both Kleiman and Levin believe it’s partly the outgrowth of a prison-reform push on the part of GOP governors whose state budgets have been saddled with high incarceration expenses. In recent months, Pennsylvania Gov. Tom Corbett, Ohio Gov. John Kasich, and Gov. Chris Christie have embraced crime reform legislation to support the kind of rehabilitation programs that the GOP platform now advocates, with some also reducing jail time for non-violent offenders. Conservative reformers like Levin are heartened by the changes. “We’ve gone a long way in four years,” he says, crediting the growing interest in more cost-effective ways to tackle crime.

This is not a coincidence. A coalition of conservative politicians, including recent signatory Jeb Bush, identifies as "right on crime". The emphasis is on being fiscally prudent, which this post, again analyzing the RNC and the resulting platform, calls "reapplying basic conservative principles" to criminal justice. Yes, there are some punitive ideals advocated by the GOP - most notably with reference to gang conspiracies - but being comfortable 

Who else feels comfortable being less belligerent on drugs? Well, Pat Robertson, for one. But if you want to get more serious, that the father of classic market economics (and inspiration of the Reagan Administration)Milton Friedman would find marijuana prosecutions a waste of resources is perhaps not surprising, but the timing of this review, and the focus on revenue, means that these times call for new approaches among conservative politicians.
I've focused on conservative politicians so far, but the same analysis applies to progressive ones. In 2007, when Simon wrote Governing Through Crime, progressive politicians could not afford to be "soft on crime." That hasn't changed. What has changed is that progressive politicians, like conservative ones, apply to financial prudence as reasoning. One interesting example is the marketing of Prop 19 ("regulate, control and tax marijuana"), which failed at the ballot, as a revenue-enhancing proposition. I spoke to folks at Tom Ammiano's office; going into the election, support for the proposition significantly rose when they marketed the proposal as revenue enhancing. There is some indication that the proposition's failure was due to its vague tenets (leaving the mechanisms of sales up to the individual counties) rather than due to the basic idea.

To sum up: I don't thin politicians have become ideologically soft on crime. But the crisis is giving them a license to be cheap on crime, in a way that appears more genuine and does not damage their credibility.

Cross-posted to PrawfsBlawg.

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?