Sunday, March 17, 2019

Upcoming Cheap on Crime Appearance at Manny's

Hello Everyone,

I'm writing to invite you to an upcoming talk at Manny's, the new cafĂ©/civic engagement center in San Francisco (Valencia and 16th). 

When: April 9, 7:30pm-9pm
Where: Manny's, 3092 16th Street, San Francisco
What: Cheap on Crime talk, with a special emphasis on the Trump Administration era. A little abstract:

Literature on “late mass incarceration” observed a contraction of the carceral state, with varying opinions as to its causes and various degrees of optimism about its potential. But even optimistic commentators were taken aback by the Trump-Sessions Administration’s criminal justice rhetoric. This paper maps out the extent to which federal, state and local actions in the age of Trump have reversed the promising trends to shrink the criminal justice apparatus, focusing on federal legislation, continued state and local reform, and the role of criminal justice in 2020 presidential campaigns. In this talk, I argue that the overall salutary trends from 2008 onward have slowed down in some respects, but continued on in others, and that advocacy concerns should focus on particular areas of the criminal justice apparatus, notably the intersection of crime and immigration and the issue of violent crime.

Come in your thousands and bring friends!

Wednesday, March 13, 2019

Moratorium!!! What Does It Mean?

California's death chamber: closed. Source:
Office of the Governor.
Today's stunning, forward-thinking announcement from Governor Newsom requires some careful parsing out. I am on my way to KQED, where I will discuss this with Scott Shafer and Marisa Lagos at 11am. If you can't listen to the broadcast, here are some initial thoughts about the implication of this announcement and where I think we should go from here.

Moratorium: What It Is

Bob Egelko from the Chronicle reports:

Gov. Gavin Newsom is suspending the death penalty in California, calling it discriminatory and immoral, and is granting reprieves to the 737 condemned inmates on the nation’s largest Death Row.
“I do not believe that a civilized society can claim to be a leader in the world as long as its government continues to sanction the premeditated and discriminatory execution of its people,” Newsom said in a statement accompanying an executive order, to be issued Wednesday, declaring a moratorium on capital punishment in the state. “The death penalty is inconsistent with our bedrock values and strikes at the very heart of what it means to be a Californian.”
He plans to order an immediate shutdown of the death chamber at San Quentin State Prison, where the last execution was carried out in 2006. Newsom is also withdrawing California’s recently revised procedures for executions by lethal injection, ending — at least for now — the struggle by prison officials for more than a decade to devise procedures that would pass muster in federal court by minimizing the risk of a botched and painful execution.

The elements of Newsom's orders are therefore: (1) a reprieve for every death row inmate; (2) shutdown of the execution chamber (3) a withdrawal of the continuous effort to revise death protocols, which we discussed on this blog numerous times. So, no more "tinkering with the machinery of death," for at least a while.

Moratorium: What It Isn't

Newsom is not commuting anyone's death sentence. Even though executions will not happen, all death row inmates are still sentenced to death and housed on Death Row. He is also not pardoning anyone. This is far from the last step on the road to death penalty abolition. Shutting down the chamber and the protocol revision process, however, will set back executions even if Newsom's predecessor misguidedly brings the death penalty back.

Why Didn't Newsom Commute All Death Sentences?

Not all death sentences are eligible for commutation, and if Newsom were to commute all of them, he would be facing ferocious litigation. Shortly before the end of his gubernatorial career, Jerry Brown offered some commutations, which were reversed by the California Supreme Court, citing "abuse of power." Some capital convictions, under California law, are not eligible for commutation, importantly in cases of prior felony convictions, which is the case for about half the inmates on death row. The last word on commutations lies with the court, not with the Governor, and if the Newsom administration wants to offer commutations, it will have to offer them on a case-by-case basis.

Why now?

It's anyone's guess, so here are some of my speculations. First, even in these cynical times, when the federal government is full of self-interested people for whom values and the good of the country do not rank particularly high on the priority list, there still are folks who do things on the state and local level because they think they are the right thing to do. Newsom is a long-time opponent of the death penalty and what he has done is in line with his personal values (in fact, conservative commentators have already attacked him for putting his values first--as if it is a bad thing.) Other reasons for the timing might involve the Kevin Cooper case, in which Newsom, joining the growing chorus of people with serious doubts about the conviction, recently ordered more DNA testing. Also, keep in mind that this is not a departure from Newsom's previous gubernatorial acts in the criminal justice area. A classic example is his plan to move juvenile justice out of CDCR's control into health and human services. He seems to be hell-bent on dragging the California correctional apparatus, kicking and screaming, into the 21st century, and turn us from a national embarrassment to a national leader in criminal justice.

Can Pro-Death-Penalty Activists Stop This?

They can try, and likely will. There's nothing they can do about the 737 reprieves--those are squarely within the Governor's ambit--but they could argue that the shutdown of the chamber and withdrawal of the regulations slouches toward an encroachment on a legislative process. It is quite likely that, in the next couple of days, they will seek (and perhaps receive) an injunction against that part of the Governor's order, and that will drag on in the courts for a while. Meanwhile, though, no one gets executed, and that's the material thing, and moreover, as of 12:45pm today, the death chamber has already been physically dismantled.

What Happens to Existing Death Penalty Litigation?

Because none of the sentencing has changed, everything in the capital litigation machine remains in place; in fact, just this morning I spoke to a friend who specializes on capital postconviction litigation and he was on his way to court for a death penalty case. So all of that stuff--quibbling over injections and historical miscarriages of justice--continues as scheduled, except perhaps with some less urgency.

Can Prosecutors Seek the Death Penalty in Cases Pending Today?

Yes, they can, and there are already murmurs around the web by prosecutors that they are required to do the bidding of their constituents (remind me again why we elect prosecutors and politicize our justice system?). But it would be, perhaps, more difficult for a San Bernardino, L.A., Orange, or Riverside county D.A. to justify seeking capital punishment, which is costly litigation (partly because it triggers an automatic appeal)

Should We Try to Abolish through an Initiative Again?

My two cents: Not anytime soon. Here's why: When several European countries abolished the death penalty when local public opinion still favored it (check out the current struggle in Belarus, which embarrassingly is the only other Western country, beside the United States, with a death penalty). This seems to be one of those things--like, ahem, slavery, antimiscegenation, and homophobic laws about legal recognition of relationships--where top-down decisions tend to precede changes in public opinion and the public falls in line later. Keep in mind that support for the death penalty is at its lowest point since the 1960s and declining; in a recent piece, Daniel LaChance assesses the death penalty in the 21st century and concludes that it is in its last throes.

And remember, Newsom is a sharp and accurate predictor of the arc of progress, as he did with the marriage equality debacle, but he sometimes predicts things too soon for the public. Recall that he was on the right side of the same-sex marriage debate back in 2004, when thousands of our friends and neighbors stood in line in front of San Francisco City Hall to get married. What followed was years of arduous litigation, including a legal change AND a constitutional amendment that were supported by a small majority of Californians (just like the death penalty.) Newsom's patience in leading struggles like this, it seems, pays off, and even though some criticized it as a political risky move, Kamala Harris' recent trials and tribulations show that taking the opposite tack (doing politically expedient things that support the death penalty and selling out values for technicalities) also does not exactly pay off. If one has to choose between the fallout from being a careful political tactician and being a leader with values, Newsom has consistently chosen the latter.

Which is why I think we need to let the fallout from this play out for a while without getting public opinion mixed into all this (we know that, in 1865, the Civil War defeat didn't exactly shift all Southerners toward support of slavery abolition.) Let's see where the litigation over the order goes. Let's keep track of homicide rates in the state for a few years, and when we see--as research consistently shows--that the moratorium has not eroded deterrence and that the death penalty has no proven deterrent power, it will be easier to get rid of it. Also, the passage of time plays out into another important aspect of this: the Eighth Amendment interpretation incorporates "evolving standards of decency", so let's allow them to evolve and see what the courts do. Which brings us to our last two points:

Nationwide Implications for the Death Penalty?

Eighth Amendment litigation is often shaped by the passage of time. What seemed kind and usual at one time might not seem like that today, and notwithstanding Foucaultian scholars and postmodernists of all stripes, in general the courts' tendency has been to assume that we are moving forward, not in circles. California becoming a de-facto abolitionist state is a huge boost to the national struggle for abolition. We have the biggest death row in the country and have been very influential in the arena of extreme punishment. This is a big contribution to the critical mass of states that have moved to the abolitionist side--nineteen so far, and with California it'll be twenty--and this bodes very well for a national abolition, though the current Supreme Court might be a more difficult venue to pursue this than how it was in its pre-Gorsuch and Kavanaugh makeup.

What About LWOP and LWP--the Other Two Components of the Extreme Punishment Trifecta?

Newsom's decision does not affect the tens of thousands of people serving lengthy life sentences in California--with and without parole. Moreover, keeping death row inmates on death row means that they continue to litigate extensively at the state's expense, and none of that investment and attention goes into the other two components of what I call, in my forthcoming book Yesterday's Monsters, the "extreme punishment trifecta." If anything, taking the mystery out of whether people are getting executed highlights the lack of difference between death row and life sentences and makes the arguments that life sentences are "the other death penalty" starker.

This only means that what happened today is good news. As readers of this blog know, I've always been upset with the progressive tendency to assume that reform is the enemy of revolution and that Dismantlement of the Prison Industrial Complex Must Happen Today Or Not At All. Which is why I wrote, back in 2016, this op-ed, titled "Are you against the death penalty? Good. Then vote against the death penalty." The point that life sentences are cruel and horrible is not lost on me; quite the opposite, I've written a book that argues that attacking LWOP is not enough and that LWP is just as draconian given the vicissitudes of the CA parole system. But what we must remember is that reform always happens incrementally. I recently got to talk about this with Marc Mauer, coauthor of The Meaning of Life. Mauer says we must focus on life sentence abolition in all states that have already abolished the death penalty, and I think he's right. Newsom's courageous stance means that we can get to that business in California soon, and I, for one, am delighted that we finally get to fight more fights for what's right.

Tuesday, March 12, 2019

Thank You for Your Courage, Governor Newsom

Governor Newsom's announcement of a death penalty moratorium is a breath of fresh air after decades of stagnation. Since the reinstatement of the death penalty in California, 13 inmates have been executed, while close to a hundred died of natural causes. Hundreds spend decades waiting for legal representation in interminable appeals whose focus has gradually shifted from big questions of humanity, discrimination, and innocence, to technicalities and chemicals. The death penalty—not in fantasy, but as actually administered in California—is racially discriminatory, risks tragic miscarriages of justice, and offers no comfort or closure to many victim’s families, as it is essentially an expensive version of life without parole in a dilapidated facility, to the tune of $150 million of taxpayer money annually.

Twice in the last decade did abolitionists attempt to marshal the voters’ common sense to retire the death penalty, and twice they came close, but failed. Public support for capital punishment is at its lowest level since the 1960s; almost half of California voters oppose it, and of those who support it in theory, few are aware of its many flaws, potential for mistakes, and ridiculous price tag. European countries that abolished the death penalty did so when it was still supported by most of their voters; sometimes the government and the legal system needs to take a moral stance when the public is not yet ready to do so.

Our political leaders, who could have dragged California’s extreme punishment into the 21st century, did not deliver. Former Governor Jerry Brown, personally opposed to the death penalty, did not use his last term in office—the perfect opportunity for a courageous, progressive move—to do the right thing. Neither did former Attorney General Kamala Harris, also personally opposed to the death penalty, who appealed a federal judge’s decision that the death penalty in California was unconstitutional due to the delays in its application. While upholding the decision would not have dismantled the death penalty, it would have created a political opportunity for doing so, and could have finally ended the political impasse that rendered California a national leader in so many ecological and social areas and a national embarrassment in its criminal justice system.

Californians should applaud Governor Newsom for doing what he can within the limit of his time in office to move the most draconian piece in the California correctional puzzle to its rightful place—the past. It is thanks to this visionary step that we will be able to shift the obscene expenditure on capital punishment toward what truly benefits Californians—not symbolic, fear-driven clinging to a misguided idea of a functional death row, but education, health care, green industry, and infrastructure. Finally, the sun shines on the darkest corner of California’s correctional landscape.

Tomorrow? Newsom? Death Penalty???

This just in:

Governor Gavin Newsom is expected to announce he is taking executive action to try to eliminate the use of the death penalty in California.
Two sources familiar with the governor's plans tell NBC4's I-Team that Newsom may use the governor office's authority to reduce sentences of all condemned inmates on death row.
Newsom has been calling elected officials around the state to share some information, but details are expected to be revealed at a news conference at 10 a.m. Wednesday.

!!!! Stay tuned !!!!

Saturday, February 23, 2019

Mourning Jeff Adachi

A great light has dimmed. San Francisco Public Defender Jeff Adachi (Hastings '85) has died, leaving behind a tremendous legacy of advocacy of the highest quality for the indigent and disenfranchised. The Chronicle reports:
San Francisco Public Defender Jeff Adachi, a renowned advocate for the accused and an outspoken watchdog on police misconduct, has died. 
He was 59. 
Mayor London Breed confirmed Friday night that Adachi had died, saying that San Francisco had “lost a dedicated public servant.” He was the only elected public defender in California. 
The exact circumstances and cause of Adachi’s death were not immediately known, but sources said he died of a heart attack. 
“As one of the few elected public defenders in our country, Jeff always stood up for those who didn’t have a voice, have been ignored and overlooked, and who needed a real champion,” Breed said in a statement. “He was committed not only to the fight for justice in the courtroom, but he was also a relentless advocate for criminal justice reform.
“Jeff led the way on progressive policy reforms, including reducing recidivism, ending cash bail, and standing up for undocumented and unrepresented children.”
What a shocking loss, and what big shoes for all of us to fill. Jeff fought injustice and cruelty at every junction; I encountered him near San Quentin, working to abolish the death penalty, and at the courts fighting against cash bail. I found him in reentry meetings advocating for clean records and at the helm of realignment, probation, and community corrections. San Francisco is a beacon of common sense in an ocean of California counties that still massively incarcerate largely because of him. He will be, and is already, gravely missed.

Thursday, February 21, 2019

CDCR Eliminates Inmate Copayments for Health Care

Today CDCR announced that, effective March 1, they will eliminate inmate copayments for healthcare, because an internal analysis reveals that copayments "have minimal fiscal benefit and are not aligned with patient care." 

Specifically, copayments may hinder patients from seeking care for health issues which, without early detection and intervention, may become exacerbated, resulting in decreased treatment efficacy and/or increased treatment cost. The Department’s health care delivery system, known as the Complete Care Model, is based on a preventative and comprehensive approach to patient care. Early detection and preventative health care aligns with most public and private health care organizations and can prove to be fiscally prudent.

The first thing that occurred to me upon reading this was how many people are probably unaware that incarcerated patients make copayments, just like patients on the outside. How did that come about? CDCR provides background:

In 1994, Section 5007.5(a) was added to the Penal Code (PC) to read: CDCR is authorized to charge a fee in the amount of five dollars ($5) for each inmate-initiated medical or dental visit of an inmate confined in the state prison, which will be charged to the prison account of the inmate. If the inmate has no money in his or her personal account, there shall be   no charge for the medical or dental visit. An inmate shall not be denied medical care because of a lack of funds in his or her prison account. The medical provider may waive the fee for any inmate-initiated treatment and shall waive the fee in any life-threatening or emergency situation, defined as those health services required for alleviation of severe pain or for immediate diagnosis and treatment of unforeseen medical conditions that if not immediately diagnosed and treated could lead to disability or death. Follow-up medical visits at the direction of the medical staff shall not be charged to the inmate.
This section aligns with other savings trends I reviewed in Cheap on Crime. The most egregious one is, of course, the pay-to-stay jail, but less egregious examples abound and participation in health care costs is one of them. 

What I find interesting is that the same savings rationale used for imposing the costs in the first place is now being used for getting rid of them--copayments are not vile and unjust; rather, the problem is that they don't pay off, because they deter people from seeking health care and thus make their condition worse and therefore more expensive.

The elephant in the room, of course, is the question of quality. Health care in California prisons is becoming more and more expensive and we are once again taking heat from the Ninth Circuit for the disappointing quality of mental health care in prison. But if it's not getting better, it is at least being offered for free.


Saturday, January 19, 2019

Barr v. Sessions: A Return to Cheap on Crime?

A short while ago I posted about the bipartisan enactment of the First Step Act, a bipartisan compromise bill offering evidence-based rehabilitation programming and early releases for nonviolent drug offenders. Harkening back to the pre-Trump era of cooperation, the animus behind this law is pragmatic, but I does have some important humanitarian provisions, such as the categorical prohibition of shackling pregnant women or women who have just given birth.

William Barr's confirmation hearings yielded many interesting insights into his future as Attorney General. For me, one interesting moment was when Chuck Grassley (!!!) pressed Barr on his tough-on-crime record. The Brennan Center reports:

"Will you commit to fully implementing the FIRST STEP Act?" asked Sen. Chuck Grassley, a key champion of the law. 
"Yes, senator," Barr responded. Barr said that when he was last attorney general in the early 1990s, the violent crime rate was high and prison sentences were short. The system had broken down, he said. Barr argued that the growth of the prison population helped bring crime down since then, something the Brennan Center strongly disputes. But he acknowledged that times have changed. 
"I have no problem with the approach of reforming the prison structure and I will faithfully implement the law."
This excerpt is a real gem. First, note that the question comes from Grassley, not usually who you'd think of as a champion for the oppressed. Second, note that Barr does not just say he'll uphold the law, but actually goes into the merits of the law and essentially makes the argument that times have changed.

As the Brennan Center reports elsewhere, Barr is no bleeding heart prison reformer himself. The exchange between him and Grassley is an exchange between two Republicans, which confirms that much of the spirit of Cheap and Crime is alive and well.

This makes Sessions' tenure as Attorney General even more interesting as an outlier. When touring with Cheap on Crime, I met Vikrant Reddy, an interesting and sharp-minded thinker about criminal justice reform on the right side of the political map. When we met, Reddy was working for Right on Crime, a conservative think tank about which I wrote extensively in the book. Right on Crime was making the argument that economic sustainability and small government principles required trimming the criminal justice apparatus, calling a truce on the war on drugs, and considering programs for reducing imprisonment. He has since then changed affiliations and now works for the Koch institute as a Senior Fellow. When we met, I asked Reddy what he thought about the diversity of opinion about criminal justice within the Republican Party. He said something that I found very interesting.

There was a generational gap, Reddy explained, between "old-skool" Republicans, who came of age politically during the era of high crime rates between the 1960s and 1980s, and the newer generation of conservative politicians, who were representing constituencies that experienced much safer streets and communities. The latter group was much more open to political compromise, if only for the sake of financial prudence.

Sessions is definitely a card-carrying member of the former group of politicians. In his confirmation hearings, he referred to marijuana smokers as "bad people", an approach woefully out of touch not only with empirical research but with public opinion across the political spectrum. In an era of reasonable Republicans invested in reform, the Trump administration had to look long and hard for the only war-on-drugs dinosaur left in the Republican Party, and in Sessions, they found this rare and dying breed, to the detriment of us all: Sessions proceeded immediately to instruct federal prosecutors  to adopt a "zero tolerance" policy, which the prosecutors themselves called him to recant.  He revoked the Obama-era moratorium on the use of private prisons and took part in various other nefarious criminal justice initiatives that could not be justified by humanism or by efficiency.

What is interesting about Barr is that he is not a younger politician. His record on criminal justice from the early days is appalling. And nonetheless, he has been able to look around him, notice that the world has changed, and assure Grassley that criminal justice reformers will find him cooperative and willing to listen to reason. I find a glimmer of hope in this. Old punitive dogs can, and do, learn new tricks sometimes.

-----
Thanks to Jodi Short for our conversation about this.

Tuesday, January 15, 2019

The Rise of the Progressive D.A.

San Francisco is ablaze with the news that a new contender has joined the race for District Attorney: Public Defender Chesa Boudin. The Chron reports:
“We know the system is broken. Everyone knows that,” Boudin said in a recent interview in his Outer Sunset apartment. “I have the perspective, and the creativity, and the insight into the problems to do something other than just double down on harsher convictions and longer sentences.” 
More than nine months ahead of the Nov. 5 election — the first wide-open race for the district attorney’s office in more than half a century — Boudin has secured endorsements from city progressives like Supervisors Hillary Ronen and Aaron Peskin. He hopes to become the latest in a national wave of reform-minded candidates, in some cases public defenders, to run and win elections for district attorney. 
Boudin believes San Francisco can become safer and a leader in national criminal justice reform by prioritizing rehabilitation and reducing recidivism over punishment.
Boudin's candidacy is making a splash because of his unique background: he is the son of two radicals who, in his infancy, were imprisoned for their part in the robbery of a Brinks armored car that  ended in the murder of two police officers and one safety guard. But in other ways it is characteristic of a recent interesting trend: the rise of progressives interested in reforming the system from a prosecutorial position.

When John Pfaff wrote Locked In he waged what, at the time, was an uphill battle against what he refers to as "the conventional story" of mass incarceration--namely, one that attributes the rise in imprisonment rates to the racialized war on drugs. Relying on statistics, Pfaff disproved the causality: most people are in prison for violent offenses, not drugs, and incarceration flows from criminality, not criminalization. However, notably, it wasn't that people were committing more felonies: rather, county prosecutors were charging more violent felonies than before. The recession-era reforms I discuss in Cheap on Crime targeted, for the most part, the low-hanging fruit of nonviolent offenders, which made them more politically palatable and easier targets of bipartisan good will. To produce a significant dent in incarceration rates, said Pfaff, we need to embrace reform for violent criminals.

While Pfaff's explanation was less edgy and politically popular than the mainstream war-on-drugs explanation, he gradually managed to win over mainstream progressive, as this New Yorker essay by Adam Gopnik demonstrates. Among those convinced that the key to reversing incarceration trends is changing prosecutorial policies was activist Shaun King, founder of the PAC Real Justice. The PAC's goal, per its website, is threefold:

  1. Elect candidates to county prosecutor positions where they can make a material impact on people's lives by helping to combat discriminatory policing, limiting or eliminating money bail, and rolling back other practices that lead to mass incarceration. Electing reformers to county prosecutor positions will also help restore voters' faith in public sector to address their problems.
  1. Win county prosecutor races with a systematic, mass participation approach to digital and field pioneered on the Bernie Sanders presidential campaign. Once prosecutors are elected they face enormous pressure from police unions, other elected officials, and the staff in their offices. A campaign that includes volunteer to vote contact, small dollar fundraising, and social media organizing will strengthen the voices of voters as a countervailing, pro-reform voice to hold newly elected prosecutors accountable to the people who helped elect them.
  1. Win races with a mandate for real justice. By working to help candidates with a bold, clearly articulated platform win by the widest possible margin, we help create a mandate for overcoming the barriers to making big changes on day one of a new administration. The 2017 success of Larry Krasner in Philadelphia raised the bar for what reformers could demand once in office -- and other elected local officials are following suit such as when the Philadelphia City Council voted to abolish cash bail.
Larry Krasner's victory became the blueprint for the new prosecutorial candidate: the progressive D.A. Like Boudin, Krasner was a career defense attorney who famously took on law enforcement in high-profile lawsuits.

Do progressive D.A.s live up to their promise? It remains to be seen. David Sklansky study of the change in police demographics was not optimistic about the effect of police diversification on police culture, but we could differ on whether the prosecutorial organizational culture is more amenable to change. Boudin's candidacy promises a memorable race, but should he win, his tenure as D.A. could be an interesting test case: will he change the face of San Francisco prosecutions, or will the office change him?

Good Intentions, Bad Consequences: Appreciating the Value of "We Blew It" Explanations of Mass Incarceration

In his 1985 masterpiece Visions of Social Control, criminological giant Stanley Cohen starts off by identifying the main features that transformed the way Western industrialized societies control deviance, which were largely completed by the 19th century: increased state involvement, increased classification of deviants, increased segregation into total institutions, and the decline in the infliction of bodily pain. He goes on to sketch three primary templates in which scholarly literature has sought to explain this transformation:

Uneven Progress: this story is an "arc of progress" trope, which essentially sees shifts in social control as overall benign. Not only are they motivated by a desire to do good, but they actually do good: in the overall scheme of things, our ideas of appropriate punishment become more humane and sophisticated, and the occasional misstep along the way will course-correct itself in time.

Good (but Complicated) Intentions - Disastrous Consequences: this story, of which David Rothman's Conscience and Convenience is the perfect example. Notions of enlightenment and benevolence (often misguided by paternalistic perceptions of who the underclass is and what's best for them) shape  basic notions of what the solution should be, but along the way the values become diluted and the original plan is undermined by managerial and practical goals.

Finally, the Discipline and Mystification story, whose best representatives are structural Marxists and Foucault, argue that the terrible system we've come to create is exactly what it is intended to be. Controlling and repressing the underclass is the goal of the capitalist elite, or the ultimate aim of governmentality. This is a much more cynical view than the one espoused by the previous model: we actually don't want to do good--what we really want is to produce docile workers and citizens and our social control systems achieve exactly that.

While Cohen mostly addresses the classic subject of the emergence of the prison and other confinement institutions (in other words, the shift that Foucault addressed in Discipline and Punish and Rusche and Kirchheimer addressed in Punishment and the Social Structure), I find that his classification of templates applies well to the study of mass incarceration as well. Visions was published in 1985, when a rise in incarceration patterns in both the United States and the United Kingdom was already becoming evident but not near its maximum rate circa 2008 (and the declining crime rates were probably not a clearly pronounced trend yet.) Since the publication of Visions, many scholars of punishment and social control have provided their own accounts of the rise of mass incarceration, and while the accounts conflict with each other on various theoretical and practical points, one feature they tend to share is eschewing the "uneven progress" perspective. You'd be hard pressed to find an analysis of mass incarceration that thinks that the shift in incarceration patterns has been positive. Criminologists look at the mirror through a negative slant, one that is not solely attributable to bias: in a lot of ways, things *have* gotten worse, or at least it is easy to problematize the argument that they have gone better. For example, is it really better to give lethal injections in highly controlled and supposedly medicalized conditions than to hang people in the town square? The rate of botched executions would suggest not. And, is it really better to put people in county jails ill-equipped to provide for their needs than to warehouse them in giant, overcrowded facilities? The complaints about basic conditions and health care would suggest not. If there are narratives of progress, uneven or not, they are usually to be found in official communiques of correctional authorities and institutional actors, not in scholarly critiques.

As to the more critical paradigms, perhaps because of the dramatic influence of radical criminologies and Foucaultian thinking (see also here), most classic and new accounts of mass incarceration tend to fall into the "discipline and mystification" category. These employ categories of class and race (less frequently, gender) to argue that the system is deliberately shaped to oppress, control, and marginalize the bottom rungs of the social hierarchy. This theme became even more pronounced with the rise to prominence of the conversation about neoliberalism (at least the way we have redefined the concept) and with the vast popularization of critical race analyses of mass incarceration (which not so much offer theoretical novelty, but have had a dramatic effect on the world outside academia.)

It is easy to see the appeal of the "discipline and mystification" approach. First, virtually all punishment and society scholars agree that mass incarceration has been, overall, an unqualified evil, and the natural tendency is to look for blame, mostly among people and institutions we find objectionable. And second, the world of criminal justice does offer clear examples of people and institutions whose bad will cannot be denied. The Southern judge in Mona Lynch's Hard Bargains comes to mind, as does the prosecutor that opens Nicole Gonzalez van Cleve's Crook County. Similarly, Joe Arpaio (to whom Lynch has appropriately referred to as a "penal cartoon") is not someone you have to strain much to ascribe bad will to--and neither is Harry Anslinger.

These folks make for easy cases. But much of the perspectives that assume bad will, or some negative design from inception, do not actually feature ill-willed individuals at the helm, but rather the argument that individuals' reactions to events are shaped by deeper systemic inequalities. The source of evil, in other words, lies in society, culture, or established state institutions, and people operate largely within these structural boundaries, thus fulfilling the goal of evil that the institutions intend. These larger-scale analyses follow the theoretical frameworks of Foucault and the Marxists, neither of whom pointed fingers at individuals, and all of which, especially Foucault, actually emphasized the impersonal nature of evil.

The appeal of this perspective is obvious in the American context. Many accounts of American mass incarceration start at the outset by pointing fingers toward Richard Nixon and Ronald Reagan as Bad Guys no. 1 and 2 (for a classic example see Katherine Beckett.) In both of these cases, especially regarding Nixon, we have enough evidence to know that there was actual bad animus behind the decisions. The more recent punishment and society works, however, have been expanding the circle of blame to institutions and individuals previously perceived as part of the "good guy" bloc. In Governing Through Crime, Jonathan Simon argues that politicians of every stripe, including progressives, benefit from posturing as tough on crime. In The Prison and the Gallows, Marie Gottschalk places some of the blame for mass incarceration on the shoulders of prisoners' rights advocates and death penalty opponents. In The First Civil Right, Naomi Murakawa attributes much of the evil of mass incarceration to civil-rights liberals. And in From the War on Poverty to the War on Crime, Elizabeth Hinton argues that Nixon was not so much an aberration, but rather a direct continuation of the oppressive, paternalistic, racist approaches to crime control of his predecessors, Kennedy and Johnson, who were assisted by the oppressive, paternalistic, and racial top-down policies espoused by their academic advisors, criminologists Cloyd Ohlin and Richard Cloward.

We could debate the factual assertions underlying these works. While many of the arguments they advance are grounded in careful historical inquiry, others overlook the ways in which liberals and progressives have fought against the incarceration sprawl (I have some classic examples of this in Yesterday's Monsters, where I show that, contrary to received wisdom, many civil rights organizations saw right through determinate sentencing and, back in the mid-1970s, warned that it would bring about a bloated correctional apparatus.) Maybe some of the tendency to blame liberals and progressives comes from an effort to "overcorrect" previous literature, which relegated the blame to Nixon, Reagan, and their cronies, without any self introspection on the left. But for our purposes here, I think it's more helpful to look at tone. To the extent that these folks have "blown it" and contributed to the scale of imprisonment and its adjacent, or embedded, racial injustices, should we spend scholarly effort at looking at their intentions, or at the structural constraints within which they were working? The tendency in the field is clearly to do the latter, which is why I find two recent books so refreshing.

The first of these is James Forman's Locking Up Our Own, which uses as its case study Washington D.C., a city characterized by robust participation of African American politicians and law enforcement officials in its structure of policymaking structure. Forman takes on the question why these African American stakeholders ended up supporting some of the policies that brought about increased crime control crackdowns in the streets, as well as punitive sentencing policies. The book revolves around several historical axes: the advent of the war on drugs, the crossroad on gun control policies, sentencing policies, the response to the crack epidemic, and the expansion of stop-and-frisk police strategies.

What is important about Forman's account is that at no point does he make light of the gravity of the problems faced by the African American community. Violent crime and drug-related devastation, as well as the proliferation of illegally-obtained weapons, were all real things that were happening in real neighborhoods to real people, and raised serious problems that imperiled and burdened communities already burdened by institutional racism (of course, these problems themselves originated from institutional racism as well; this is the tragic double-winged problem of racialized law enforcement, that both criminality and criminalization stem from the same poisoned fountain of stunted opportunities and crippling poverty.) Moreover: Forman does not doubt at all the altruistic motivation of the actors--police chiefs, journalists, lawmakers--who, in the name of wanting to assist their community in its plight, ended up espousing policies that, in hindsight, yielded disastrous consequences. The urge to clean up the streets from drugs led to aggressive, disproportionate enforcement. The desire to help people help themselves against armed assailants exacerbated the proliferation of guns. Sentencing reforms filled prisons and fueled punitive animus, and adding stop and frisk to the police's toolbox disintegrated any trust between the police and the communities they were hoping to serve.

But it is important to recognize that, even as African American stakeholders participated in locking up their own, their own biographies and stories show their genuine good intentions. Forman's account shines with historical nuance when he delves into the personal history of Burtell Jefferson, Washington D.C.'s first African-American Chief of Police. Jefferson rose through the ranks making ten times the effort of his white counterparts, overcoming immense structural racism and outsmarting the racist selection policies by excelling in the promotion tests so that his blackness could not count against him by those who sought to exclude him from rank. Jefferson shines as someone whose truly admirable rise through the ranks was motivated by a desire to do well for a plighted community, and as someone who spent an enormous effort mentoring others who followed in his footsteps. Jefferson is just one example of the people Forman introduces in the book, most of whom were motivated by a similar genuine desire to help their communities. Their motivations, except when he finds evidence to the contrary, are taken at face value, even as he places them in the context of the structurally rotten situation they were in.

Forman's answer to the main question animating his book is therefore not one of evil, mystification, and bad faith: it all boils down to lack of imagination. When you have a hammer, he argues, everything looks like a nail. In the absence of workable public health models for handling the drug crisis, or a memory of using more innovative models, people sought, in good faith, to represent the interests of the community and assist it in its plight. It is valuable to acknowledge, as Forman does, the tragedy in the fact that violent crime--which was and is a real problem in urban neighborhoods--disproportionally implicates as well as victimizes people of color. Because of this, the politicians' and cops' demands for a crackdown is not merely motivated by racial animus, but by the value of protecting the very community that produced both the crime and the victimization. Was the fix worse than the problem? Sure. Could it be avoided? We can only tell in hindsight. Can we fault the architects of the fix? Only for their lack of prescience.

Heather Schoenfeld's Building the Prison State offers a similar nuanced analysis, though her take on the reformers is somewhat less benign than Formans. The book looks at the growth of mass incarceration in Florida, identifying the root of the problem as a cynical exploitation of a loophole left in the consent decree in Costello v. Wainwright. In the case of Schoenfeld book, the interventions that paved Florida's path toward astronomical growth in incarceration were not so much front-end policing reforms, but rather the construction of additional institutions. The growth of the state's population by two million throughout the sixties,  as well as the actual rise in crime and the new policing techniques, meant that between 1968 and 1972 the prison population grew by 31 percent (p. 74). The warden, Wainwright, was amidst a modernization project, and saw the overcrowded and outdated facilities as hurdles on his path to implement more rehabilitative programming behind bars. Civil rights attorney Toby Simon, who fought for the inmates who suffered from the overcrowding, prevailed, but so did prison officials who wanted updated facilities. Since the entire Florida system was overcrowded, Wainwright would not be able to reduce overcrowding by moving inmates from facility to facility, but by pursuing one of two courses of action: releasing prisoners (via good behavior or parole) or increasing capacity (via building more prisons.) The political developments in the years that followed, argues Schoenfeld, and the law-and-order sense that releasing inmates was a non-starter, led to the latter strategy--which was not only technically compliant with the consent decree, but also true to its spirit: Judge Scott gave equal weight to both strategies. It was the historical aftermath, complete with the rise in racist animus, that led to the increase in incarceration.

At each junction of her narrative, Schoenfeld emphasizes that the disastrous outcomes of the implementation of Costello could have been avoided. But her accounts of the motives of individuals show an interesting mix of institutional agents along the political spectrum, most of whom genuinely wanted to fix what they perceived as substandard incarceration conditions. That the outcome became coopted as the raison d'ĂȘtre of a big construction project does not contradict the fact that, absent evidence to the contrary, people's good intentions--both Simon's and Wainwright's--are taken at face value.

Schoenfeld's answer to the question why incarceration spiked in Florida is therefore nuanced and complicated. Far from top-down villainy, it seems to be a combination of the federal court's reluctance to lean on the state, and perhaps a lack of prescience about the possible implications of prison construction.

Both Forman and Schoenfeld's accounts of mass incarceration are attentive to the structural constraints--as Schoenfeld calls them, racial projects--underlying assumptions about crime, criminality, and the need to protect the public. But neither of them goes as far as to deem the disastrous outcome foreseeable, planned, or self-serving. The characters they describe operate within these constraints, but they are not powerless pawns in the clutches of an oppressive machine: they wield power to do what they genuinely believe will make the situation better. This approach is far from naive: it is sensitive to the convergence of institutional interests and to the dilution and perversion of ideals. But it does not assume "intelligent design" in the carceral architecture.

This approach is very promising for various reasons. First, it is historically genuine. Delving into the micro-level of institutional and individual motivations does not superimpose our current ideas about governmentality or neoliberalism on the factual patterns. Analyses in the tradition of the "discipline and mystification" family of approaches can play out in ahistorical ways, ascribing bad intentions and villainy to people and ideas in ways that were far from obvious in their time. A good example is Hinton's critique of Ohlin's support for top-down reforms to address juvenile delinquency. Ohlin, a prominent criminologist, did a substantial amount of public service, as special consultant on delinquency to the United States Department of Health, Education, and Welfare under John F. Kennedy,  associate director of the President's Commission on Law Enforcement and Administration of Justice under Lyndon B. Johnson, and a member of the National Institute of Law Enforcement and Criminal Justice under Jimmy Carter. Today's scholarship on racialized criminal control, infused by the deconstructionist approaches exemplified in Khalil Gibran Muhammad's Condemnation of Blackness, question and critique the emergence of a link between race and criminality; but in a world in which Merton's now-obvious arguments about inequality and criminality was still fresh, Cloward and Ohlin's attribution of crime among low income people of color as a product of diminished opportunities was fresh and revolutionary. In other words, they made strides that today seem reactionary but at the time were perceived as progressive, rehabilitative, and far less oppressive than the alternative. Should they have built on community strengths, rather than espousing a top-down approach that looked at the pathologies of the black family as the causes of crime? In hindsight, sure. But in the 1960s, they did not have the benefit of Muhammad and Hinton's scholarship. Hinton admits that their intentions were likely good, but her analysis for the most part criticizes them for being, essentially, men of their time. In other words, relying on a "good intentions-disastrous outcomes" as the default position fosters another virtue that we tend to fall short on in criminological research: a historically informed approach fosters some understanding, empathy, and forgiveness for reformers, who--like us--wanted to do what they thought as best.

Another advantage of pausing before attributing bad will is that the way we analyze history also shed light on how we should make sense of the present. Many readers of this blog post were (and perhaps still are) ardent supporters of the Ban the Box initiative, because we all want to bring about a reality in which people with criminal records are not excluded from employment and opportunity. Not only do we want to see better reentry and integration of returning citizens into society--especially given what we know of the immense hurdles to successful reentry--but we also harbor serious concerns that discrimination on the basis of criminal records disproportionately burden people of color, widening interracial gaps in employment. But much to our collective dismay, the successful campaign on behalf of Ban the Box has had mixed outcomes.

The policy has increased callback rates for people with criminal records and “effectively eliminated” the effect of having a criminal record on receiving a callback. Case studies from specific cities support these results, showing that hiring rates for people with criminal records increased after ban the box was implemented. Additionally, ban the box as a social movement has drawn attention to the plight of people with criminal records and has increased awareness of the challenges they face beyond employment.  But recent research has concluded that ban the box also reduces the likelihood that employers call back or hire young black and Latino men. These findings suggest that when information about a person’s criminal history is not present, employers may make hiring decisions based on their perception of the likelihood that the applicant has a criminal history. Racism, harmful stereotypes, and disparities in contact with the justice system may heavily skew perceptions against young men of color. In other words, rather than using people's criminal records as a proxy for their race, in the post-Ban-the-Box world we use people's race as a proxy for their possible criminal records.

An improvement in reentry odds, employment, and racial equality? Not really. But does this mean that those of us who supported Ban the Box and advocated for it was part of the overall design to continue to oppress marginalized populations? Despite the disastrous consequences of the policy, which we must strive to correct, the very fact that we managed to put together a coalition advocating for reentry and equal opportunity is important. It shows that it is possible to organize and advocate. The lessons from the story might be more complicated. Maybe we should conclude that we have to be more imaginative in our predictions of unintended consequences. Maybe we should be wary of falling in love with particular reforms, and maintain the flexibility required to "course correct" once it is evident that something we espoused does not work as well as we'd hoped. Or, more pessimistically, maybe the embedded racial animus in society means that racism always finds a gap through which to sneak in and sabotage people's dreams of equality and opportunity, and we have to find ways to work against it while forgiving ourselves for not being perfect. In any case, the Ban the Box example, as well as the examples Forman and Schoenfeld discuss, remind us that some humility is in order whenever assessing failed criminal justice reforms.

Finally, assuming good will on the part of criminal justice reformers that we fear are taking us on the wrong track is more conducive to dialogue, and to the use of facts, than disengaging from opponents because we perceive them as ill-motivated, or as captives in systemic inequality. Of course, sometimes the lack of good will will be obvious, but when there is no evidence of sinister machination, we have nothing to lose from engaging with others--especially when dealing with people on the same side of the political map, who have a largely similar vision for a good society and might disagree only on the way to get there.

Saturday, January 5, 2019

Before Leaving Office, Jerry Brown Should Commute All Death Sentences

In a few days, Jerry Brown will end his tenure as Governor of California and cede the gubernatorial seat to Gavin Newsom. Newspapers are already summarizing his career, including a record number of pardons and commutations. Indeed, the Brown administration stands out from previous gubernatorial administrations in the extent to which it intervened in release processes, including, as I write in my forthcoming book Yesterday's Monsters, considerably more parole grants than Brown's predecessors.

So one has to wonder: Since Brown is a staunch opponent of the death penalty, why won't he get rid of it de facto by commuting all death row sentences?

Mass commutations of death row are not new. In 1972, as a consequence of the California Supreme Court's decision in People v. Anderson, the sentences of all 174 inmates on death row were commuted to life with parole. Among those whose sentences were commuted, as I explain here (and in Yesterday's Monsters) were Charles Manson and his followers, as well as Sirhan Sirhan. The decision infuriated many in California and led to a backlash legislative workaround (Proposition 17) whose constitutionality was hotly debated in California courts for years.

The difference between then and now was that, in 1972, California law did not include a life without parole option. Moreover, the actual sentences served for homicide offenses were much shorter than they are now. The dramatic gap between the death penalty and a parole hearing after seven years--it was not outlandish at all for a person convicted of murder to be released after ten or fifteen years--infuriated the public.

True, a gubernatorial move here would differ from the post-Anderson situation in that there hasn't been a court decision forcing the governor into action. But the gap in people's fates (and the implications to public safety, to the extent that this is even a consideration for aging, sick inmates) would be much smaller than in 1972.

Brown and Kamala Harris, in her prior office as Attorney General, had a chance to bring death penalty abolition a step closer after Jones v. Chappell and chose not to do so, even though all it would require would be doing nothing. But now, doing something is not only possible (free of technicalities) but imperative. Before leaving office, Brown can join a critical mass of abolitionist states by getting rid of death row de facto. He would be handing the Newsom administration a correctional apparatus that is $150 million a year cheaper to administer.

There are still a few days left to do the right thing.

What Counts as a "Deadly Weapon?"

Minor in possession of a deadly weapon?
Last week, the California Supreme Court decided In re B.M., a case that required the Justices to address the meaning of the term "deadly weapon."

The story, in essence, is this: B.M, a teenaged girl, returned home one night and found that her sister had changed the locks (there's probably a bigger story here than could be examined through the lens of this case, but we'll get to that later.) She managed to get in through the window and confronted her sister. In her anger, she picked up a butter knife in the kitchen--a dull metal knife with round serrations at the end, which is usually used for spreading butter rather than for cutting. She came into her sister's room holding the knife and the sister covered herself with a blanket.

Here is the case's description of the interaction:
B.M. approached Sophia, who was lying on top of the bed with her knees bent. Sophia testified that B.M. “came . . . at [her] trying to stab [her]” and that from a distance of about three feet, B.M. made several “downward” “slicing” motions with the knife in the area around Sophia’s legs. Sophia further testified that the knife hit her blanketed legs “a few” times and that the amount of pressure B.M. used was “maybe like a five or a six” on a scale from one to ten “if one is the least amount of pressure and ten is the most pressure.” Sophia initially said B.M. poked her with the knife, but she later clarified that B.M. did not poke or stab her and that B.M. did not “hurt” her. B.M. testified she only “wanted to scare [Sophia]” and “had no intentions in actually stabbing [Sophia] with [the knife].”
Reading between the lines, it seems that Sophia had originally exaggerated her description of the events to the cop who showed up, and later retracted some of that when she realized this might have consequences. There's also clearly a history between B.M. and Sophia that is left unexplored in this decision.

The Supreme Court reversed the Appellate Court decision, which affirmed B.M.'s conviction for assault with a deadly weapon. In doing so, the Court established a realistic, context-driven definition of "deadly weapon":
We hold, consistent with settled principles, that for an object to qualify as a deadly weapon based on how it was used, the defendant must have used the object in a manner not only capable of producing but also likely to produce death or great bodily injury. The extent of any damage done to the object and the extent of any bodily injuries caused by the object are appropriate considerations in the fact-specific inquiry required by Penal Code section 245(a)(1). But speculation without record support as to how the object could have been used or what injury might have been inflicted if the object had been used differently is not appropriate.
In other words, in the context of this case, when an inexperienced person ineffectually waves the weapon toward someone covered in a blanket, in a manner that cannot hurt the other party, the weapon is not a "deadly weapon."

Common sense decisions like this are important, because the trend in the last decades has been to expand the reach of elements and enhancements involving weapons. But the decision has special significance for cases involving women and juveniles. The method by which women and girls commit violent offenses is different than that of men, and ignoring gender context misses out on important parts of the picture. As Lyn Brown, Meda Chesney-Lind, and Nan Stein explain in this paper, there has been an increase in the criminalization of girls, which is perceived as an increase in girls' violence. This has sparked a moral panic regarding girls. But when you look at the context, what you find is that girls are criminalized with increased frequency for behaviors that are often a response to a larger context of domestic abuse (as might be the.case in B.M.'s case - we simply don't know the full picture.) Moreover, treating assaults involving weapons more seriously, a seemingly straightforward, gender neutral convention, overlooks a fact that my friend and former student Ryan Newby found plays an important role in violent crime sentencing: the fact that, in domestic assault contexts, women are more likely to use a weapon to even the odds against assailants who are frequently bigger and stronger than they are. Ignoring this context makes it appear as if the assault is more serious because a weapon has been used, when oftentimes the weapon is whatever was at hand in the kitchen--such as the butter knife in this case.

The California Supreme Court decision makes no mention of this broader context, but it is useful to keep it in mind. Gender equity in sentencing is not always straightforward, because the language of the law is neutral and ignores what empirical research tells us about the circumstances of violent offending. This is, therefore, an even better decision than it appears at first blush.

Oh, and the kid in the picture is my very own minor. :)