California Correctional Crisis

CCC Opposes SOPA and PIPA

2012-01-18T10:20:00.000-08:00

The California Correctional Crisis Blog joins the struggle against Internet censorship, and will therefore not offer new content today.
Tell your representatives that you oppose SOPA and PIPA and be one more voice on behalf of freedom of information.

BREAKING NEWS: Judge Henderson Orders End of Receivership

2012-01-17T22:44:00.000-08:00

Today, Judge Thelton Henderson of the U.S. District Court expressed satisfaction with the improvements to prison health care, and ordered the federal Receiver, Clark Kelso, to report by april 30th when the receivership should end and whether the prison health care system will remain under federal oversight.

The Associated Press and the San Francisco Chronicle report:

The ruling marks an important milestone in a process that began nearly six years ago when the judge appointed a receiver to run California's prison medical system after finding that an average of one inmate a week was dying of neglect or malpractice. He cited inmate overcrowding as the leading cause, but said in Tuesday's order that conditions have improved.

He praised the better conditions throughout the system, particularly noted during inspections of medical facilities by the prison system's independent inspector general.

"Significant progress has been made," Henderson wrote, citing the receiver's own report to the federal court last week. "While some critical work remains outstanding — most notably on construction issues — it is clear that many of the goals of the Receivership have been accomplished."

While the Prison Law Office expressed concern that the Receivership's end is premature, it might be a wise thing to start preparing for the shift in health care with the realignment. Counties will have to incur some of the costs for inmates' health. But it's worthwhile to remember that serious offenders, who usually serve more time, will remain in state prisons, and their lengthy prison sentences also implies that they age in prison and thus require expensive care.

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Many thanks to Brooke McCarthy for alerting me to this.

Correctional Budget 2012-2013

2012-01-06T08:44:00.000-08:00

Governor Brown has released the proposed 2012-2013 California budget. The full details are here and the summary is here.

The correctional budget comprises 7.8% of the total state budget including special funds. Looking just at general fund numbers, the expenditure on corrections is slightly less than that on higher education.

However, counting in special funds and bonds, the total expenditure on corrections will be $10,719 million, which is an increase of 11.4% from last year's budget, and slightly more than the expenditure on higher education.

For those of you wondering how this money will be distributed among various correctional agencies post-realignment, look at the next table:

Most of the money still goes to the state apparatus with only about $100,000 being allocated to the counties. The full breakdown is available here in PDF format.

The report also lists the changes in programs that will ensue from the new budget. The main changes are as follows:

The decrease in numbers of state inmates (from 163,152 to 132,167) and parolees (from 108,338 to 56,440) due to the realignment implies a decrease in state incarceration and parole budgets--a reduction of $453.3 million in 2011-12 and $1.1 billion in 2012-13.
The outcome of Coleman v. Brown (the mental health side of the Plata case) required an increase of $34.3 million in 2011-12 and $27.3 million in 2012-13 in money allocated for mental health programs.
Shifting responsibilities for juvenile offenders from the state level to the county level, which decreased the size of the state apparatus (1174 to 1149 inmates, 850 to 656 parolees) also implies a decrease in budget.
The Estrella Correctional Facility has been cancelled, as there is no need for more beds.
Expenditures for constructing the California Health Care Facility (CHCF) ($10.9 million) have been earmarked.
Pharmaceutical Costs-The Budget includes $59.9 million for adult inmate pharmaceutical costs, primarily driven by an increase in drug prices.
The budget includes an increase of $49 million in Community Corrections Performance Incentive Grants, which county probation departments receive if they demonstrate success in recidivism reduction.
Another $8 million General Fund and $46.3 million are reduced to reflect the transfer of resources from the Corrections Standards Authority to the newly established Board of State and Community Corrections.
FInally, the budget includes $101 million to restore a prior one-time reduction to rehabilitation services programs.

What's also interesting is the distribution of funds within the counties. The full budget for state and community corrections can be found here in PDF format. It seems to still be in somewhat amorphous form, which makes sense given that each county will probably have some freedom in crafting its own budget.

We will continue to follow up on the realignment and on the expenditures of these funds in the future.

Happy New Year from the CCC Blog

2012-01-01T10:59:00.000-08:00

And what a year it will be!

The Criminal Justice Realignment will figure prominently in our posts this year, with a special focus on the recent news regarding cuts that may endanger many juvenile programs. The most serious concern stemming from the cuts is that juveniles will be tried as adults. Some thoughts on the proper direction to take from Selena Teji and Emily Luhrs are posted here.

We're also excited about the prospect of SAFE California's initiative to end the death penalty in California in 2012, as well as a possible amendment of the Three Strikes Law to include only violent felonies.

Thank you, as always, for your readership, and stay with us by reading, commenting, and emailing.

California Prison Population Reduction: First Benchmark

2011-12-27T20:44:00.000-08:00

December 27th was the first benchmark for reporting the progress in prison population reduction to the federal three-judge panel. CDCR's press release on the matter reports:

As of December 14, the state’s 33 prisons held 134,804 inmates and were at 169.2 percent design capacity. Since October 1, the state prison inmate population has been dropping by an average of 933 inmates per week without the early release of any state prison inmates.

This comes fairly close to the 167 percent set by the federal panel, and CDCR is confident that it can meet the June 12 benchmark. More data and the graph are available here. Here are the actual numbers of inmates, measured weekly:

Make no mistake; 169.2 percent capacity is still very, very overcrowded. But it is, indeed, an improvement from the statistics that started off the litigation. What remains is to figure out how this has impacted county jail population. If the realignment has merely displaced people, or worse, increased their numbers elsewhere, the trend has not really been reversed, and we may be looking at a county-level version of Plata at some point in the future.

California Chief Justice Urges Reconsidering Death Penalty

2011-12-24T10:01:00.000-08:00

In an interview in today's Los Angeles Times, California Chief Justice Tani Cantil-Sakauye expressed her concerns about the death penalty and encouraged a public debate about its abolition.

"I don't think it is working," said Cantil-Sakauye, elevated from the Court of Appeal in Sacramento to the California Supreme Court by former Gov. Arnold Schwarzenegger. "It's not effective. We know that."

California's death penalty requires "structural change, and we don't have the money to create the kind of change that is needed," she said. "Everyone is laboring under a staggering load."
In response to a question, she said she supported capital punishment "only in the sense I apply the law and I believe the system is fair.... In that sense, yes."

But the chief justice quickly reframed the question.

"I don't know if the question is whether you believe in it anymore. I think the greater question is its effectiveness and given the choices we face in California, should we have a merit-based discussion on its effectiveness and costs?"

I think that is a terrific distinction between the judicial role of applying the law and the public and legislative law of reevaluating and changing it.

CDCR Publishes Decrowding Photos

2011-12-23T21:25:00.000-08:00

When we started the California Correctional Crisis blog in 2008, we opened with a post linking to this story from NPR, and included an image of makeshift beds in the gym. Would you believe then that you would be seeing images like the one on the left?

CDCR has published a series of images on Flickr showing decrowded facilities. Do watch the whole slideshow. While these are not quantitative data, they are, indeed, powerful; the before-and-after shots are particularly striking, though I'd be more impressed if they were properly labeled and depicted the exact same locations. For the actual numbers you'll have to wait three days; December 27th is the first court-mandated benchmark for monitoring the progress of population reduction ordered in Brown v. Plata. And, of course, the CCC blog will accompany you then and comment on the state's progress in decrowding its prisons.

Realignment: An Opportunity to Rethink Corrections

2011-12-22T23:13:00.000-08:00

Some of the recent developments in realignment implementation, such as the request for jail expansion in Los Angeles County and Riverside's shocking vote to charge inmates $140 per night for their jail stay, make one ponder whether counties really understand the idea behind realignment legislation.

AB 109 is not merely a jurisdictional change. The legislator intended an actual ideological shift in how California treats its inmates. A simple read of the bill's text provides ample proof of that. The bill explicitly states that there would be a preference for intergration in the community, through programs like home detention. More importantly, it shifts inmates from state parole supervision to community postrelease, meant to provide better integration in the community. And to achieve that, community corrections partnerships have been formed in the counties and tasked with planning release in the context of a given community. Yes, the impetus for the realignment was fiscal, but there is ample evidence that this is intended to be a true paradigm shift. This story from Western Cities makes a great read in that respect.

If so, old-school thinking about construction and warehousing needs to be set aside and new models need to be considered. For example, why not reconsider felon disenfranchisement and extend voting rights to jailed inmates? As this ACLU guide explains, felons on parole currently cannot vote, but what about folks on community postrelease? Not only does it appear that these folks are not "on parole", but rather under a probation-like regime, and can therefore vote, but it's also sound public policy: There's robust statistical proof that extending voting rights to people, and getting them involved in civic life, significantly contributes to recidivism reduction. Many countries in the world think nothing of providing inmates with voting rights as they do their time, not only upon release. Reintegration into society and reducing reoffending: Isn't that what this is all about?

Here's another example: As we discovered on our Food Deserts conference earlier this Fall, there are some beautiful prison projects that include community gardens and the like. The produce cannot, for various reasons, be consumed by CDCR inmates themselves. But why should local jail inmates not enjoy the fruits of their labor? And if, for some reason, that doesn't make sense, why not combine their jail sentence with some landscaping work in urban gardens so that low-income families can get more fresh produce?

A third possible opportunity, borrowed from a suggestion Jonathan Simon made at a public talk in 2009, and which would become much more pertinent now: Given the concerns about infrastructure disasters and earthquakes in California, why not use jails and community postrelease programs to teach more inmates and released folks to save lives, homes, and businesses? It is an important function that we would all benefit from.

I truly hope that some counties will be able to think outside the box, set aside their appetite for construction and warehousing, and seize the realignment for what the legislators intended it to be: An opportunity to reverse the California correctional crisis.

Realignment: How Not To Do It, the Construction Version

2011-12-18T15:10:00.000-08:00

Californians United for a Responsible Budget (CURB) are raising some serious concerns about rehabilitation implementation. They are circulating a petition against the Riverside County plan to charge inmates for their stay, and also spearheading an effort to stop a planned Los Angeles County jail expansion.

Under AB 900, counties have been invited to appeal for Phase II funding to increase their jail capacity. The list of counties is here; Los Angeles tops the large counties' list.

One of the arguments usually thrown around in support of realignment is that even if the counties do a bad job at imprisonment, they cannot possibly be worse than the state. I'm beginning to think that, in some cases, that may not be true. There is no reason to believe that the state administration has all the punitive foolishness and the counties, all the recidivism-reducing wisdom. It is time for the counties to wake up and seriously commit to the goal of reducing confined population (and the expenses involved in confining it). Otherwise, a precious opportunity will be lost.

New Execution Procedures Deemed Unconstitutional

2011-12-17T00:43:00.000-08:00

Those who have been following up on death penalty practices in California recall that, after a six-year hiatus, CDCR instated new proceedings. Now, a Marin County judge has found the new proceedings unconstitutional, which might mean a longer delay.

The L.A. Times Blog reports:

A judge on Friday threw out California's new lethal-injection protocols, which have been six years in the making, because corrections officials failed to consider a one-drug execution method now in practice in other death penalty states.

The action by Marin County Superior Court Judge Faye D'Opal sends the state back to square one in redrafting procedures for lethal-injection executions. The death penalty has been on hold for six years in California after a federal court ruling deemed the previously used three-drug method unconstitutional because it might inflict pain amounting to cruel and unusual punishment.

D'Opal said in her 22-page ruling that the state's failure to consider replacing the former execution practice with a single-injection method violated state law and ignored the courts' and public criticism of the previous protocols.

Readers who are fed up with the new moves to tinker with the machinery of death, and who find themselves exasperated with the prospect of a CDCR appeal of Judge D'Opal's ruling, might find the SAFE voter initiative to abolish the death penalty in 2012 an attractive option. It would certainly put an end to the quibble over technicalities.

If you are on the fence about this, perhaps the humonetarian argument from the L.A. Times story will convince you:

A three-year study published earlier this year by a federal judge and a Loyola Law School professor reported that taxpayers have spent $4 billion to carry out 13 executions since capital punishment was reinstated in 1978, and that it costs at least $184 million a year to maintain death row and the capital defense system.

Realignment: How Not to Do It

2011-12-16T10:00:00.000-08:00

Our outrage-de-jour for today comes from that paragon of punitivism, Riverside County (also responsible for many of CA's death sentences). How to handle realignment and an influx of jail inmates? Let them pay for their stay.

I kid you not. The New York Times reports:

With already crowded jails filling quickly and an $80 million shortfall in the budget, Riverside County officials are increasingly desperate to find every source of revenue they can. So last month, the County Board of Supervisors voted unanimously to approve a plan to charge inmates for their stay, reimbursing the county for food, clothing and health care.

Prisoners with no assets will not have to pay, but the county has the ability to garnish wages and place liens on homes under the ordinance, which goes into effect this week.

As the county supervisor who pressed for the ordinance, Jeff Stone, likes to put it: “You do the crime, you will serve the time, and now you will also pay the dime.”

You like the rhyme? Are you a mime? Do you have lyme? Really, if we decide to adopt inhumane, atrocious and self-defeating policies, can we do so based on something empirically loftier than a cute word play?

A slightly less unacceptable explanation comes from neighboring Orange County:

“Sometimes you attack the absurd with the absurd,” said John M. W. Moorlach, an Orange County supervisor. “We’re all messaging to Sacramento that the state has do more than just take our money and download prisoners to us. We’re all finding different ways to scream.”

Mr. Moorlach - you are not writing a Samuel Beckett play. You are dealing with human beings, and the goal, supposedly, is for them not to return to prison. How is placing a lien on their post-jail earnings conducive to that?

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Props to Amir Paz-Fuchs for the link.

Book Review: Thinking, Fast and Slow

2011-12-14T16:11:00.000-08:00

Daniel Kahneman's new and fantastic book Thinking, Fast and Slow is a fascinating journey into an intellectual career spanning more than forty years. Kahneman, who won the Nobel prize for his work on rationality with Amos Tversky, presents a lifetime of research and findings into human rationality and its fallacies in a coherent, intriguing and convincing way. It is a book I would wholeheartedly recommend to anyone regardless of the context of criminal justice. Kahneman and Tversky's ideas on rationality, however, have special bearing on issues of criminal justice policy, and the book might therefore be particularly interesting to this blog's readership.

To fully understand the novelty Kahneman's (and Tversky's) Nobel-winning ideas, it is important to keep in mind that they were generated against the backdrop of very traditional ideas of human rationality in economics. Classic economic theory assumes a human subject who is fully rational, fully knowledgeable, and operates within a framework of cost-benefit analysis. Kahneman and Tversky, students of human behavior rather than of economics, devoted their careers to questioning and refining this model of human cognition to accommodate flaws and fallacies in rationality, revolutionizing the field of economics and enriching it with empirical insights about the actual and irrational workings of human behavior patterns. Which is how a psychologist ended up receiving a Nobel prize for economics.

Kahneman introduces his ideas to the public through a fresh perspective that serves as the leitmotif of the book. Our thinking, he argues, is characterized by two modes, or systems, if you will. System 1 is responsible for the quick-and-dirty judgments and conjectures that allow us to instantaneously make sense of the world. When more effort is needed, System 2 snaps into action, and engages in the complex thinking required to solve problems or think outside our cognitive box. The problem is that System 2 is lazy. It does not come into play unless it absolutely must, and it takes an effort to engage. So, our default mode is to slack and allow System 1 to do our work for us. The result is that we generate our opinions about the world in ways that rely on shortcuts, assumptions, stereotypes, overly causal interpretation, and anchors, that are flawed and lead us to making a myriad of mistakes.

Kahneman proceeds by mapping for us, chapter by chapter, a series of these fallacies. Among the heuristics and biases he mentions are the halo effect (forming an opinion of something based on one or two qualities and extrapolating), What-You-See-Is-All-There-Is (WYSIATI - relying on whatever information is available, no matter how flimsy and unreliable), anchoring (linking our assessments to whatever number is thrown out, no matter how improbable), substituting difficult questions for easy ones, ignoring base lines, ignoring regression to the mean, and creating overly causal narratives for things that could be accounted for through pure chance. He then walks us through the impact these fallacies have on professional decision making, and finally through his more recent work on happiness.

The book is fascinating for anyone who is interested in understanding human behavior, but I found its implications for criminal justice policy particularly startling. The insights on flawed rationality can explain not only public punitivism and voter initiatives, but also the flawed behavior of professionals: judges, prosecutors, and defense attorneys. Here are some of the many examples of possible applications.

A recent Supreme Court decision grappled with the question how to prevent injustices stemming from the prosecution's failure to comply with the Brady requirement to disclose to the defense "any exculpatory evidence". The assumption made by the Court is that monetary compensations to exonerees who were wrongfully accused without an opportunity to receive evidence in their favor are only effective when prosecutors acted out of malice. In a paper I presented at a Constitutional Law conference in Chicago, following Kahneman, Tversky, and a solid body of behavioral research, I suggest that many Brady violations may not be attributable to anyone's fault, but rather to confirmation bias: Prosecutors and defense attorneys simply read evidence differently, and prosecutors, given their professional environment and their pro-government bias and socialization, are less likely to view evidence with an eye toward its exonerative potential. I'm in the process of devising a study to examine the existence and extent of confirmation bias in prosecutorial and defense perception of evidence, as well as its causes.

Another big area where heuristics and biases are important is sentencing. Kahneman's book is full of examples of flawed decision making due to chance issues. Notably, he cites a series of studies comparing judicial decision making to those of computer algorithms, finding that the computer makes less mistakes. But he also shows how judges making parole decisions tended to be more generous in terms of release immediately after eating, when their ability to access System 2, and their cognitive ease, were at their prime. This is, of course, greatly disturbing, and a factor to keep in mind when thinking of the strong judicial opposition to sentencing guidelines and any form of diminished discretion. Contrary to the bon ton in today's analysis of the correctional crisis, it may well be that sentencing guidelines and the diminishing discretion of judges were not a fatal decision reached by overzealous punitive right-wingers and misguided left-wingers, but rather a good decision, whose adverse effects are not due to the decrease in judicial discretion, but due to the increase in prosecutorial discretion.

Another important implication of al this risk prediction and algorithms. Kahneman's experiments strongly support favoring the quantitative tools used by various correctional systems, including CDCR, over the sort of clinical risk assessments popular in the early 20th century. The concern we have with giving machines the power to assess individuals' risk based on stereotypes may be exaggerated, Kahneman's work suggests. Humans may make more serious mistakes, and reliance on past predictors of recidivism or parole violations are more reliable than intuitive impressions of trust and sympathy.

An area I find particularly compelling is the study of public punitivism, and prospect theory could have a field day with what we know of this. A decent argument can be made that much of what passes for public decision making in the field of voter initiatives is System 1 work. First, the public's reliance on "redball crimes" - shocking instances of horrifying, sensationalized crimes, that receive a lot of media attention - is a prime example of WYSIATI. Rather than engaging with statistics that expose the entire picture of crime reality, we rely on what is salient and reported, rather than with what we know to be truer. Moreover, much of the punitive legislation against sex offenders might be an example of substituting difficult questions with easy ones. Rather than thinking what sort of punishment sex offenders deserve, or how many resources to invest in punishing them, or which measures would reduce recidivism, voters may be thinking on how much they dislike sex offenders. A System 1 mechanism of "translating scales" converts the extent of dislike and revulsion to a measure of punishment, and punitive voter initiatives are born and passed as law.

There could be many more examples of possible applications, and I'm happy to entertain some of these in the comments. i just want to add a final note on the delights of Kahneman's book: What distinguishes this book from other popular behavioral science books, such as Dan Ariely's Predictably Irrational, or Malcolm Gladwell's Blink, is not only its quality--Kahneman respects his readers, does not oversimplify, and happily shares the depth of his intellectual process, which places this book in a class of its own--but the moving, nostalgic tribute it makes to the working partnership and decades-long friendship between him and Tversky. As many friends who have collaborated on research projects know, the relationship between collaborators is unique and special; the curiosity and give-and-take of the work creates a strong bond. The book is a love letter to Tversky and to the two researchers' community of students and colleagues. One can almost walk side by side with Tversky and Kahneman, listening in on their conversations and debates, witnessing the generation of ideas sparked by their easy, friendly conversations, and feeling the parental warmth of their respect and enthusiasm for the success of their intellectual children and grandchildren: professors, postdocs, and graduate students. It is a pleasure to enjoy this additional dimension on the book, made more poignant by the heartbreak over Tversky's untimely death at 59 in 1996, six years before the Nobel prize win. And it is a reminder of how important it is to appreciate one's scientific community, or scientific family, and its contributions to one's intellectual and emotional life.

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Many thanks to Haim Aviram for our discussions about this post and to Robert Rubin for the recommendation.

Ajami, Part Two: Romanticizing Alternative Dispute Resolution and Its Discontents

2011-12-12T11:34:00.000-08:00

One of the most hotly debated issues in criminal justice involves the many suggestions to reform what many perceive to be a deeply dysfunctional courtroom process. In suggesting alternatives, commentators have pointed out some of the difficulties with the existing process: A focus on stigmatizing and shaming the perpetrator, ignoring the role and interests of the victim and the community, viewing the issue through the prism of the specific event without reference to the holistic context, and ignoring the importance of restoration and reintegration. These critiques have formed the basis for a variety of alternative processes which, while different from each other, are similar in their efforts to remedy these ills. As examples, we have community courts, drug and mental health courts, victim-offender mediation, family group conferences, restorative circles, and the like.

Ordinarily I would not lump these different suggestions together, but it is important to point out that these models share an interesting feature: A nostalgic, escapist reliance on the way dispute resolution is done in distant, exotic locations, or in forgotten times. Today's implementation may be less idealized and fanciful--problem-solving courts have certainly been around for a while, long enough to forget those roots--but these inventions harken back to writings by criminologists in Australia and Scandinavia, who compared our Western Industrialized model of justice to those in other times and places. Nils Christie's Crime Control as Drama, and Conflicts as Property, both urged to humanize the criminal justice process, giving the example of a community dispute resolution process in Kenya. John Braithwaite and Philip Pettit's Not Just Deserts has been tied to the pioneering Family Group conference practices in New Zealand. In Israel, judges sometimes award importance to the fact that a long-standing family feud between Bedouin clans had been resolved by a sulcha method. A paper by Ron Shapira even urges courts to pay more attention to sulcha as a mitigating factor in punishment, as a way of validating multiculturalism and providing legitimacy to these ancient processes of forgiveness and reconciliation.

But is the sulcha, or the reconciliation, or the conference, really all that? The sulcha scene in Ajami presents us with some serious doubts about its fairness and effectiveness. In the scene, a boy whose uncle was murdered by members of another clan seeks reconciliation with the enemy clan in an effort to save his family's lives. The process is depicted with stark realism. The cold negotiations, the status differences, the judge's monetary rewards for brokering peace, and the involvement of underworld characters in brokering the compromise, all suggest that romanticizing this as an exotic, peaceful process, superior to criminal justice, is naive and futile.

To wholeheartedly accept an indigenous practice and praise it without critique is as paternalizing as it is to reject it wholesale. An honestly curious and just judge would inquire as to the realities of this bargain and strive to understand any power or status differences that may have influenced the outcome. This is not to say that restorative justice processes, and holistic courtroom practices influenced by other times and places, are categorically bad. It is just a reminder not to embrace such processes without asking the same difficult questions we ask of our existing criminal process.

Ajami, Part One: Between "Security Crime" and "Ordinary Crime"

2011-12-12T10:14:00.000-08:00

As I post this, I am en route to Israel, to participate in the Israeli Law and Society Association Annual Meeting. At the conference, I plan to discuss a recent Israeli-Palestinian film, Ajami. The film examines the complex relationships between Israeli Jews, Israeli Arabs, and Palestinian undocumented workers, in the Ajami neighborhood in Jaffa. The plot is incredibly complicated, and throws the heroes of our story into a web of drugs, violence, political turmoil, and neighborly disputes. It is the perfect film for any criminal justice scholar and practitioner who wants or needs a window into the Israeli criminal underworld.

At the talk, I plan to use scenes from Ajami to uncover and dispel two prevalent myths in Israeli criminal justice: The dichotomy between "crime" and "security" and the romanticization of restorative justice. This post will be devoted to the first of those myths.

Israeli newspapers often report of ongoing police investigations, particularly of violent crime, by pointing out whether the investigation is pursuing a "criminal angle" or a "security angle". The assumption is that these two categories--security crime and ordinary crime--are mutually exclusive, and each requires a different model for understanding and approaching it. These models are different in our perception of them, in our discourse about them, and in the techniques and technologies we apply to them.

"Security crime" is special and takes prevalence over "ordinary crime". When an act is labeled a "security crime", it is placed in the context of the permanent state of emergency in Israel. It is seen not just as a threat among criminals or to the "other", but as a direct threat to "us", the collective Israeli social fabric. As such, it draws in the army as a primary respondent, as well as the increasingly militarized Israeli police (now governed by the Ministry for Internal Security, rather than its former name, the Ministry of Police). Investigations into security crimes bring to life the dilemma of torturing suspects, supposedly forbidden by the Supreme Court, but alive and well (albeit reduced) according to human rights organizations.

The isolation of security crime above all crime, and the approach that it is somehow special and merits special governing techniques, is a feature of the general, ethnicity-based "divide and conquer" taxonomy Israel applies to its residents and their problems. Among some examples of these approach, we can think of the un-Arabizing of Israeli Druze citizens (some of whom serve in the army as military judges and attorneys); the un-Palestinizing of Israeli Arab citizens; and the supposedly impermeable boundaries between race, religion, and degrees of religiousness.

There are several problems with this rhetoric. The first is that it is false. The Israeli crime map, masterfully exposed and illuminated in Ajami, shows that the distinction between security crime and "ordinary" crime is false. Crime occurs across all categories, and the complex motivations behind the crime cannot be reduced to a national/profit-based dichotomy. In fact, the supposedly impermeable boundaries in society constitute optimal conditions for crime to occur: The Israeli car theft industry flourished due to these boundaries, as seventy percent of all stolen cars in Israel found their way to chop shops in the Palestinian authority. Ironically, what reduced much of this activity was a non-security, specified policing unit dedicated specifically to car theft, and unpreoccupied with the security/crime dichotomy.

Another problem with this dichotomy is that it allows the Israeli public to keep criminal activity compartmentalized and labeled, without making the connections between different types of marginalization. That the occupation creates undocumented labor markets plagued by illness and poverty, which in itself gives rise to "regular crime", is conveniently hidden from the overt discussion of "security crime". Moreover, while "security crime", such as the kidnapping of a soldier, serves a Durkheimian function of galvanizing and uniting us, "ordinary crime", especially in the context of organized crime or drugs, creates a sense of alienation and indifference. Not only is this harmful to law enforcement efforts, it is harmful to our national psyche. This approach of alienation reminds me of a phenomenon that Darnell Hawkins discusses in the context of African American crime: While crimes perpetrated by Black offenders against White victims are seen as threatening, crimes within the Black community are treated with relative leniency and indifference.

Some of the implications of this dichotomy can be seen in the realm of criminal courtroom practices and sentencing. Research consistently confirms that Arab defendants are treated worse by the Israeli law enforcement system, starting with arrest rates and ending with sentencing. Is this mere ethnic discrimination? Or does it stem from the suspicion that any crime involving an Arab or Palestinian defendant has some security overtones that require attention and special severity?

But one of the most harmful effects of the dichotomy is related to Jonathan Simon's Governing Through Crime. In the book, Simon argues that one of the perversities of modern society is seeing everything through a lens of crime and victimization. Citizens come to see themselves primarily as potential victims, which affects our modes of living, our choice of vehicles, our recourse to situational crime prevention, and our demonization of cities, urban youth, and the poor. Simon makes the suggestion to shift from models of "war on crime" to "wars" on something else, such as cancer or natural disasters. My critique of Simon's argument builds on the Israeli experience. As opposed to the U.S. experience, in which crime is a metaphor for anything else, in Israel war in itself is the metaphor, for crime among other things. While the boundaries between "security crime" and "ordinary crime" remain in place, the prestige, urgency and importance of security-related concerns creates a warped social universe in which, to gain priority for one's issue, the issue needs to be framed in terms of national security. And so, the police becomes increasingly militarized, in discourse as well as in approaches and technologies; and we launch war against environmental pollution, obesity, and other harms that are analogized to the security survival threat. This survivalist approach creates a culture of fear that magnifies, and sometimes exceeds, its counterpart in the United States.

More on this in our next post.

Plea Bargains: Not Such a Bargain

2011-12-08T13:16:00.000-08:00

A new study by David Abrams, recently published in the Journal of Empirical Legal Studies, casts doubt upon one of the classic assumptions of the criminal process: That plea bargains pay off for defendants.

More than 90% of all criminal cases, in CA and elsewhere, end in plea bargains rather than in a jury trial. Rather than this being an aberration, it is, as some commentators believe, a necessary mechanism to account for the cost and hassles of an impractical and unsustainable jury system.

The common understanding of the plea bargain system is that each party to the agreement gains and loses something by the bargain. The prosecution is prepared to offer a sentence that is less than what the defendant might receive from the judge in return for an expedited and less expensive resolution of the matter, leaving prosecutors with more time to devote to cases on trial. The defendant, however, gives up his/her right to trial for the certainty that s/he will not incur a "trial penalty", that is, be sentenced more harshly by the judge if he or she is convicted.

But it turns out this may not be true.

In Is Pleading Really a Bargain?, Abrams runs regressions on a dataset from Cook County in an effort to predict which trial strategy (trial or plea bargain) yields a more lenient sentence. The results, as described in the abstract below, are surprising.

A criminal defendant's decision of whether to accept a plea bargain is one with serious consequences both for his or her immediate and long‐term future. Conventional wisdom suggests that defendants are better served by entering into a plea bargain, to avoid what is known as the “trial penalty.” In this article I present evidence that this notion is likely mistaken. In OLS regressions using data from Cook County state courts, I find that a risk‐neutral defendant seeking to minimize his or her expected sentence would do substantially better by rejecting a plea bargain. I also employ an IV approach to the question and, while the instrument is weak, the results are consistent with the OLS: defendants are better off going to trial.

Admittedly, there are some methodological problems with Abrams' piece. Since he's using court data, he cannot appropriately control for self selection of cases; it may well be that defendants who chose to go to trial did so because they, or their defense attorneys, thought they had a better chance with the judge. Nonetheless, his analysis is impressive.

Abrams offers two possible explanations for his data. The first is the availability heuristic. Defendants perceive trials as being more lengthy and more harsh, because they are exposed to sensationalized trials via the media. The second is the difference in interest between defendant and defense attorney, which I expect grows when public defense offices are weighed down with caseload and slashed budgets.

I have a third possible explanation, which I believe is at least as plausible. In a world of mass incarceration and normalized, mechanical sentences with little discretion, bargaining is more like buying groceries at a supermarket than at a Middle Eastern bazaar (this analogy is Malcolm Feeley's). In this sort of situation, the bargain price comes to manifest exactly what the prosecution expects from the court given the vast amount of evidence predicting it. The cases that go to trial are cases in which the defense believes there are enough unique features to take them out of the "normal crimes" category and make them seem special enough to the judge to warrant a downward departure from the acceptable range. And so, since so few cases go to trial, the ones that do appear special and benefit from the special attention. Some research by the late Yael Hassin, which compared actual parole committees to computers in terms of predictions of dangerousness in early releases, suggests that providing agencies with more discretion (in parole, sentencing, and the like) yields more merciful and lenient results. If so, it is not surprising that judicial attention, in a universe of otherwise mechanized sentencing, yields more lenient sentences.

Policing a Legalized World: Marijuana Growing, Searches, and Probable Cause

2011-12-06T10:39:00.000-08:00

One of the things people often forget in debates about legalizing marijuana is that any effort at regulating a field creates interesting ambiguities. Our example-de-jour comes from the city of Arcata, where a lawsuit has been filed against the police for searching a house in which medical marijuana was grown. Here are the facts from the newspaper:

The claim -- based on injuries allegedly suffered by Sage and her late husband, Charles Sage, 67 -- alleges that Arcata Police officers unlawfully searched the Sages' Zehndner Avenue home early in the morning of May 27, when Sage opened her door to an officer disguised as a utility meter reader only to have about a dozen officers enter her home with guns drawn. No marijuana was found on the premises.

While officials declined to comment specifically on Sage's claim, they said law enforcement acts in a good faith attempt to target individuals who are in flagrant violation of Proposition 215 and Arcata's medical marijuana ordinance. However, they noted that most violators do so under the auspices of medical marijuana and that the foggy state of California's laws make enforcement a tricky endeavor.

Here's the problem: Arcata's medical marijuana growth is regulated by a land use ordinance "which allows for grows of up to 50 square feet and utilizing no more than 1,200 watts per residence." That is, while you need a CA card to be a medical marijuana user, you don't need one to be a grower. There is no approved list of growers anywhere, and Sage and her husband grew marijuana for Charles Sage's prostate cancer and other ailments.

So, what was the police doing there? Well, the basis for the search warrant was marijuana smell emanating from the house. But hey - in order to obtain a search warrant, there has to be probable cause that an offense is being committed. In a post-prop-215 world, growing marijuana in itself is not an offense; growing it in violation of the ordinance is. The smell alone does not furnish probable cause that an offense is being committed.

But what is the police to do? Is home search the only way to ascertain whether there is compliance with the ordinance? If the smell of marijuana does not imply illegal activity, then something more is needed. The police could stake the house and see if there is an unusually high volume of people coming and going; conduct undercover investigations; or do something of the sort. Interestingly, in Kyllo v. United States (2000), the Supreme Court banned the usage of thermal images to scan a house for heat activity (including marijuana growth lamps). The reasoning was that it's an invasion of one's home. Ironically, in a post-215 world, Sage's privacy would be less intruded upon through the usage of a thermal imager, that could tell the police whether she's growing the allowed amount, than through a full search of the house with guns drawn. This is an interesting example of the many enforcement dilemmas the police would have to cope with had Proposition 19, which allowed home growth for personal use, passed. And it is a reminder that legalizing drugs for personal use requires careful attention to detail.

Realignment Funds: How to spend them?

2011-12-05T10:27:00.000-08:00

This morning's Chron has a fantastic story by Marisa Lagos about counties' preparation for realignment. Among other things, it includes this critique from CJCJ:

Daniel Macallair, executive director of the Center on Juvenile and Criminal Justice in San Francisco, said the discrepancies between counties mirror what was already happening in each jurisdiction prior to realignment. The center conducts criminal justice research and provides direct services, including a substance abuse program for adults who are released from prison.

"Most counties are not prepared to meet the challenges of realignment, and for many of them it's their own fault. They have engaged in bad practices and policies for 30 years," he said. "The counties that will have the hardest time are some of the Southern California and Central Valley counties that have relied heavily on the state prison system."

Macallair said probation departments need to change the way they approach their job and rely more on the community.

"What people don't realize is that even though we're the state of California and we have one set of criminal laws, you have 58 counties responsible for interpreting and applying those laws and essentially 58 different criminal justice systems," he said. "You're going to have well functioning counties able to meet this challenge and a lot that are going to lag behind. There's nothing uniform about this."

Fresno County Jail Frees Parole Violators

2011-11-27T14:22:00.000-08:00

No room in Fresno Co. Jail for parole violators

Posted: 11/26/2011 10:29 PM

In another sign that Fresno County is struggling to manage more criminals, the sheriff has ordered that state parole violators no longer will be held at the county jail.

The parolees, who were once sent to state prison if they got into trouble, are now sent to local jails instead – part of the state's recent realignment of the penal system. But in Fresno County, where the jail already is crowded, the Sheriff's Office has determined there's no room for the former convicts.

State parole officials, acknowledging counties are being asked to do more under the realignment, say they'll try to find other ways to deal with problem parolees.

Orders to not lock them up began Thanksgiving Day. While the jail has long been releasing inmates early because of the lack of space, the directive to turn away parolees only reinforces concerns that criminals aren't serving the time they should.

"They're out in the community and they're violating their parole, and when there's no consequence for violating, that's going to be a public safety issue," said Kelly Keenan, chief assistant district attorney for Fresno County.

Book Review: Inside This Place, Not Of It

2011-11-22T11:42:00.000-08:00

A new title from Voice of Witness, Inside This Place, Not Of It, provides a series of narratives based on interviews with incarcerated and formerly incarcerated women. The book personalizes the background stories of women in prison, their experiences within walls, and their difficulties upon release.

The editing is graceful, light-handed, and almost invisible, making the stories ring true and fresh, as if the reader is sitting in the room with the speaker. Most of the time, the editors' hand is only seen in a helpful introductory paragraph, and the quality and sensitivity of the interviews themselves shines through the stories. There is something very genuine about some women's willingness to discuss the offense that brought them to prison, and others' reluctance to elaborate on the more difficult parts.

A few common themes emerge. So many of these stories begin with familial neglect and abuse, set in a general environment of deprivation and discrimination. The balance between being a product of one's environment and having personal responsibility for one's actions is delicate, but many of the interviewed women are very thoughtful and reflective, and provide a nuanced understanding of their actions in the context in which they were committed.

The two most alarming aspects of the narratives, for me, involved seldom-highlighted aspects of women's imprisonment. The first is the truly shoddy health care system. Shocking stories of giving birth while shackled and being separated from one's baby, receiving a mistaken HIV diagnosis that remained uncorrected for years (and treatment for it), having one's diabetes untreated and undiagnosed, callous carelessness about the possibility that an inmate might lose all her teeth, repeat themselves throughout the book.

The other aspect is the frequency with which sexual abuse by guards occurs in the prison environment. Many women report sex with guards under physical coercion or lack of choices, and for many of them, speaking up and complaining entails harsh retaliation and isolation from the prison staff as well as the inmates. Popular culture tends to focus on rape and sexual assault among inmates. It would appear that assault and exploitation on the part of staff requires much more serious and urgent attention.

The book also includes a series of great appendices, providing solid, readable information about topics such as the Prison Litigation Reform Act (PLRA), health care issues, and the incidence of prison rape. I can't recommend this enough as a great, honest window into lives seldom discussed publicly.

Prison plan sways prosecutors in filing charges

2011-11-21T09:37:00.000-08:00

Check out yesterday's piece in the Chronicle about prosecutors' reactions to realignment. In particular, this scary quote:

"After all, it doesn't matter what prosecutors charge a person with if they don't have the evidence to win a conviction, said California District Attorneys Association Chief Executive Officer Scott Thorpe."

Whole article:

Los Angeles District Attorney Steve Cooley's office handles about one-third of California's felony convictions, making this single county critical to the success of Gov. Jerry Brown's plan to reduce prison overcrowding by sentencing nonviolent felony offenders to county jails.

Cooley, however, is a Republican who adamantly opposes the Democratic governor's plan and is training his staffers to do everything they can to work around it - including pushing for the most serious charges to ensure that as many offenders as possible are sentenced to state prison. In a recent interview, Cooley said he is trying to mitigate the "public safety nightmare" that realignment will bring - particularly in a county like Los Angeles, where the jails are overcrowded and the sheriff regularly releases offenders early.

"It is going to lead to an increase in crime, which is unfortunate, because Los Angeles is at a 60-year low," he said. "There is no place for them to serve their sentences."

Cooley and his senior staff said the office may take this training to other counties as well.

A greater stake

Brown's realignment plan, which took effect Oct. 1, changes the way California locks up criminals: Those convicted of nonviolent felonies - such as drug possession and auto theft - serve time in county jail instead of state prison, and will be supervised by county probation departments rather than state parole officers. The program is a response to a U.S. Supreme Court order to reduce the state's prison population by 33,000 inmates by 2013.

The plan is supposed to give local officials, including prosecutors, a greater stake in the outcome of criminal cases in their counties. For prosecutors, that could mean more incentive to pursue probation and other alternatives to incarceration in low-level cases, because the cost of caring for that inmate now falls to the county, rather that state.

But even in liberal cities such as San Francisco, some defense attorneys say they are not seeing changes in the way prosecutors handle low-level cases. San Francisco District Attorney George Gascón supports realignment but argues that some offenders are not good candidates for staying in local jails or serving probation because of past crimes.

Prosecutor reaction

Though most of the attention surrounding realignment has focused on how sheriffs' departments, which run jails, and probation agencies, which will be supervising far more offenders, will handle that workload, experts say the way prosecutors react to the change in law could have a huge impact on the program's ability to reduce the state prison population and curb the state's 67 percent recidivism rate.

UC Berkeley criminologist Barry Krisberg noted that offenders convicted in Southern California counties make up the majority of the state prison population, and leaders there tend to be the most skeptical of the realignment plan. If prosecutors in those counties do not change the way they approach and charge cases, he said, the state prison population will continue to rise.

"The heart of the matter is, 'Is there any commitment to use realignment as a way to advance rehabilitation?' Clearly some places are doing that - Santa Clara and Alameda, and San Francisco will make a good effort," he said. "But the larger question is, once you get to the jurisdictions that are dubious about realignment, that have not bought into rehabilitation as the main goal of the justice system, are we just going to see people gaming the system?"

'Scouring' records

Cooley said his office is teaching its lawyers to "scour" criminal records to make sure they note any prior offenses when they file new charges, and to make sure that new charges include offenses categorized as serious, violent or sexual when possible.

"We are trying to create awareness among law enforcement," he said. "They don't all realize how devastating and disastrous this will be."

It's unclear how much impact these charging decisions will have on convictions, and ultimately, the prison population. After all, it doesn't matter what prosecutors charge a person with if they don't have the evidence to win a conviction, said California District Attorneys Association Chief Executive Officer Scott Thorpe.

"It goes back to an individual district attorney's philosophy (and) charging decisions," he said. "There are certain things that obviously disqualify you from realignment, but if you look at a case and say, 'Here are our charging choices,' there is discretion and clearly counties will apply it differently. But discretion is only as broad as the evidence."

Some prosecutors have publicly embraced the goals of realignment, including Gascón. He is sponsoring legislation to create a San Francisco sentencing commission, is in the process of hiring a sentencing analyst to work with prosecutors, and said he has been "talking to staff for months now about how we can do everything we can to actually make this work, and to do it in a way that that creates better outcomes for the community."

Making it work

"My philosophy is that we want to be creative, we want to work within the system and we want to make it work - but obviously, we are always looking out for public safety," Gascón said. "But there are some people that are not going to qualify for realignment, because they have a history of violence or sex crimes."

One of those people, he said, is Jason Collins, a 30-year-old man who will be sentenced Monday for selling 0.19 grams of crack to a police officer. He is facing up to 11 years in state prison.

Qiana Washington, Collins' public defender, said he has a long history of drug abuse but has never been offered treatment. Washington said Collins was offered a plea deal of three years in state prison in the most recent case, but elected to go to trial because he denied selling the drugs and claimed he was beaten by the arresting officers.

"To me, it seems like prosecutors are going for more state prison - I have another case where the offer before realignment took effect was one year in county jail, and now, after realignment, they want three years in state prison. It's not like the case has changed in any way," she said. "It doesn't seem to be in line with what the citizens of the state want to happen (to drug offenders), and it doesn't seem like it will do a lot of good."

But Gascón spokeswoman Stephanie Lee said Collins was convicted of robbing an 83-year-old man in 2007 - a violent offense that automatically disqualifies him from a county-jail sentence. Washington argued that prosecutors could have moved to strike the prior offense from his record. The district attorney's office disagrees.

"Mr. Collins had the chance to accept responsibility and plead guilty and he chose not to and went to trial," Lee said. "He attacked an 83-year-old man ... that is not a nonviolent offense."

Gascon said that his office is "looking at one case at a time," to determine what is best for both an offender and the community.

"We really are trying to look very globally at an offender as opposed to just their offense," he said. "Safety is always the overarching concern."

E-mail Marisa Lagos at mlagos@sfchronicle.com.

This article appeared on page A - 1 of the San Francisco ChroniclE.

Juvenile Curfews?

2011-11-14T14:34:00.000-08:00

Recently, the Oakland City Council degerred voting on a proposed juvenile curfew, titled the "Juvenile Protection Act". Is it a good idea to enact such curfews,and what is their effect on crime?

Some evidence, including this paper by Patrick Kline, suggest that youth curfews overall are effective in reducing crime for the juveniles below curfew age, but have no spillover effects above the curfew age. The study's population was that of cities with a 1990 population greater than 180,000, and compared cities with municipal codes that included youth curfews. The focus was on serious felonies, as other offenses could be attributed to police behavior rather than to youth criminality. The arrest data, he says--

suggest that being subject to a curfew reduces the number of violent and property crimes committed by juveniles below the curfew age by approximately 10% in the year after enactment, with the effects intensifying substantially in subsequent years for violent crimes.

The magnitude of any biases in the estimates due to spillover effects is difficult to assess. The data do not provide evidence of any spillovers, though given the imprecision of the estimates we also cannot reject modest sized effects. It does seem safe to say that there are probably not any large spillover effects, meaning that curfews do not seem to reduce crime in general, but rather only for the targeted age-groups. This suggests that cities designing curfew legislation should choose the statutory curfew age carefully according to which age-groups are in greatest need of intervention.

However, for Oakland and San Francisco specifically, there are reasons to be skeptical. A recent piece by Mike Males in the Chron was a good reminder of the fact that the US seems to be the only country that its citizens "can shop happily only when everyone under 18 is under house arrest. Not even in London during recent riots - and certainly not in Hong Kong, Tokyo, Rome, Mexico City, Rio de Janeiro, Toronto or other major cities - do police forcibly sweep young people off the streets."

Today's op-ed by Selena Teji makes similar arguments. Examining curfews and incarceration, she notes that the plummeting rates of juvenile crime in California are not due to incarceration-driven policy. In fact, she says, "over the last 15 years, California’s youth prisons and local youth jails have released more than 10,000 formerly incarcerated youths onto the streets and in 2010, California youth crime stands at an all-time low."

Incarcerating, therefore, is not a great idea. Would judicious use of curfews minimize our reliance on incarceration? That's unclear. But it would seem that, before making a decision about such steps, we should pay attention to actual crime rates, rather than to our perception of crime.

Film Review: Into the Abyss

2011-11-11T19:53:00.000-08:00

Werner Herzog's new documentary Into the Abyss takes us on a nightmarish trip into the lives of criminals and victims in the aftermath of a triple murder that happened in Texas ten years ago. Michael Perry and Jason Burkett, teenagers at the time, were convicted of murdering Sandra Stotler and tied to two more homicides of teenage boys. The murders, according to the police and some witnesses, were committed with the sole objective to steal cars.

Eight days before his execution, Perry speaks to Werner Herzog in prison about his faith and his life behind bars. Also included in the documentary are Stotler's daughter (sister of Adam Stotler, another one of the victims), Jason Burkett who did not get the death penalty, and Burkett's father, who, incredibly, is also serving a forty-year sentence and who was handcuffed to his own son on the way from court. Witnesses and death row personnel speak about the meaning of life and death for them. And Burkett's wife, who met him after he was imprisoned, speaks of their life together.

To me, the film was not a heavy-handed, idealistic or pragmatic critique of the death penalty. Instead, it presented a much subtler argument based on the futility of death -- of law, really -- to truly ever encompass and address the abyss of sadness and dysfunction that permeates the lives of all the people involved. Strikingly, everyone featured in the documentary -- victims and defendants -- is surrounded by imprisonment and death. Jail is a fact of life, as is victimization in dreadful accidents and violent altercations. So much loss and grief, to which more loss and grief is added through the crime and, subsequently, through the punishment.

I found Ms. Stotler's words at the end to be absolutely fascinating. She says she would be satisfied with life without parole, and nonetheless, she got something out of attending the execution. It brought her some closure and relief. As Herzog invites her to reflect on the source of the closure and relief, she says, "he was just a boy. I had made him into that monster, and then I saw him, and he was just a boy." Who knows how much relief, mercy, and grace would have been attained had Perry reached out to the family of his victims.

A subtle, profound, and thought-provoking piece, Into the Abyss is highly recommended to those who want to think about the death penalty, victimization, and criminality beyond crude partisan abstractions.

RIVERSIDE COUNTY: Supervisors approve plan to charge inmates

2011-11-10T15:18:00.000-08:00

(from The Press-Enterprise)

BY DUANE W. GANG

STAFF WRITER

dgang@pe.com

Published: 09 November 2011 04:08 PM

Riverside County supervisors voted unanimously Tuesday to introduce a law requiring those convicted of crimes and sentenced to county jail to pay for their stays.

It costs an average of $142.42 per day to house someone in a jail. In order to collect the money, the board must have a formal ordinance in place.

The measure, sponsored by Supervisor Jeff Stone, is expected to come back before the board next week for final adoption.

With the ordinance, County Counsel Pamela Walls said the county does have the legal authority to seek reimbursement. But in a memo to supervisors, she said collecting the money may be difficult.

The courts must first determine whether a defendant has the ability to pay, Walls wrote. And the county isn’t first in line to get money from prisoners. Restitution to victims, state surcharges, fines and other charges are ahead of the county.

Walls said Tuesday the ordinance in no way creates a debtors jail and only applies to those convicted of crimes. Going after the money would only be done through a civil court action, she said.

Would California Be Better with Private Prisons?

2011-11-07T17:34:00.000-08:00

The discussions around Josh Page's book The Toughest Beat, which we reviewed here, have made me think quite a bit about prison privatization. While the private prison industry thrives in other states, and actively lobbies for punitive policies - including the abominable SB 1070 in Arizona - could they possibly do a worse job than the state of California in incarceration?

A recent story on NPR was a reminder that, while state prisons are in such poor shape, allowing private institutions would be a very poor choice. The article is astonishing in that it documents the lengths to which private corporations will go to try and find inmates for prisons built on speculation. But does it at least pay off for the communities that agree to build their economies around the prison industry?

Shapiro says it's possible a town could reap some small economic benefits from a private prison, but it may not bring the larger economic boost the county is hoping for.

"That's what the empirical evidence has shown ... and there are various theories for why that may be the case," Shapiro tells weekends on All Things Considered guest host Laura Sullivan.

The presence of a prison might actually squeeze out other businesses that could bring greater benefits than the prison itself, he says. Also, many of the jobs created by a private prison don't actually go to people in the community.

The bigger problem, he says, is that state and federal taxpayers — who in the end are paying for these prisons — aren't getting the most value for their money.

To cite just one example, he says, last year the Arizona auditor general found that it actually might be more expensive to hold Arizona prisoners in private, for-profit facilities than in public ones.

Grandma Goes to Prison - 15 Years After the Fact

2011-11-04T06:27:00.000-07:00

An astonishing reversal by the Supreme Court this week of a decision regarding the guilt of a grandma who allegedly killed her grandchild by shaking him. This does not directly relate to correctional policy, but it does bring to mind the question of the futility of incarceration in such cases. I figured our readers might find it interesting, so here's a summary by my colleague Rory Little, made for the ABA Criminal justice Section.

Supreme Court Case Summaries: Professor Rory Little’s Perspective[1]

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

Cavazos v. Smith (6-3 per curiam summary reversal, Oct. 31, 2011).

Summary: What would the opening of a new Supreme Court Term be without an early summary reversal of the Ninth Circuit? After two prior GVRs (grant, vacate and remand) of the panel’s decision to grant habeas in a state infant-abuse-death prosecution, a majority of the Court rules (in an unsigned per curiam) that the Circuit improperly “substituted its judgment for that of a California jury” on a question of constitutional sufficiency of evidence under Jackson v. Virginia, 443 U.S. 307 (1979).

In a dissent equal in length to the majority’s opinion, Justice Ginsburg (joined by Breyer and Sotomayor) rebukes the Court for using its discretionary review authority for mere “error correction” in a case the dissenters call “tragic” as well as questionable. A notable irony here is that had the dissenters attracted Justice Kagan’s fourth vote, they could have granted plenary certiorari review, which Justice Ginsburg says would be better than summary reversal. Meanwhile, the case was before the Justices for twelve conferences, starting last spring. That must be close to a record. So some interesting behind-the-scenes Court strategy and politics appear to be in play here.

Per Curiam opinion: Shirley Ree Smith was convicted for the 1996 death of her 7-week-old grandson, under a California statute specifically making it a crime to assaults a child under eight (resulting in death) with “force that to a reasonable person would be likely to produce great bodily injury.” The prosecution theory was that Smith had shaken the infant, who then died of “shaken baby syndrome” (“SBS”). The government’s evidence was that Smith had told a social worker that she had given the baby “a little shake, a jostle,” to awaken him, and when the social worker told Smith of the coroner’s SBS conclusion, Smith said “Oh my God. Did I do it? Did I do it? Oh my God.” Smith denied these statements (which are ambiguous in any case) and denied shaking the baby. There was no evidence of prior violence, temper, or abuse, and the evidence was apparently undisputed that Smith was a loving grandmother watching her daughter’s children while the daughter was asleep in the next room.

Thus the trial centered almost entirely on medical testimony, over seven days, with three experts for the prosecution and two for the defense. All three prosecution experts testified that even though the medical evidence was not entirely consistent, the cause of death must have been SBS because other causes were eliminated or much less supported. By contrast, one defense expert said the cause of death was “sudden infant death syndrome,” and while the other expert said “old brain trauma.” (Tangentially, there is some hint that Smith’s lawyer was ineffective – Justice Ginsburg lays this out in her dissent. The lawyer has since resigned from the Bar with disciplinary charges pending.)

The jury returned a guilty verdict, and Smith was sentenced to 15 years to life. The California state court affirmed the conviction, noting that “The expert opinion evidence … was conflicting. It was for the jury to resolve the conflicts. The credited evidence was substantial and sufficient….” On federal habeas a Magistrate-Judge recommended denial and the district judge adopted that recommendation. But a panel of the Ninth Circuit (Canby, Pregerson and Reed (DJ)) reversed, saying that there was “no evidence to permit an expert conclusion one way or the other” and that “Absence of evidence cannot constitute proof of reasonable doubt.” Thus “no rational juror” could have found guilt here, and the state’s affirmance was an “unreasonable application” of Jackson v. Virginia.

“That conclusion was plainly wrong,” the per curiam Court wrote yesterday. A reviewing court “must presume” that the jury resolved conflicts in favor of the prosecution, “and must defer to that resolution.” Jackson, at p. 326. “A federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees.”

Interestingly, it took five years of tussling to get to this point. First the Circuit denied rehearing en banc over five dissenting votes. Then the Supreme Court twice summarily granted the State’s cert petitions, vacated, and remanded (“GVR”) for reconsideration in light of two different Court opinions (Carey v. Musladin, 2006, and McDaniel v. Brown, 2010). But (says the majority in a clear rebuke to CA9), “each time the panel persisted in its course, reinstating its judgment without seriously confronting … the cases called to its attention.” [Ed. Note: No doubt the panel would disagree with this characterization. It did issue opinions addressing the new cases, expressly noted the “double” deference required under AEDPA, and called the case rare and “extraordinary.] Thus, says the Court, “”the decision below cannot be allowed to stand.”

Smith was released on bail in 2006 pending further appeal. She will presumably now have to return to prison to serve at least the five years remaining on her minimum sentence, unless “clemency” is granted, an option the majority notes but says “it is not for the Judicial Branch” to consider. [Ed. Note: Interesting to consider what the new/old Calfornia Governor Jerry Brown will do with the case.]

Ginsburg dissenting, joined by Breyer and Sotomayor: “The Court’s summary disposition … is a misuse of discretion.” This case is “as tragic as it is extraordinary and fact intensive.” The Circuit undisputedly applied the “correct rule of law.” This Court ought not engage in mere “error correction,” particularly since new scientific research since 1996 “casts grave doubt” on the prosecution’s expert testimony and theory of guilt. [Justice Ginsburg goes over the new research and the trial evidence in some detail.] “What does the Court achieve other than to prolong Smith’s suffering and her separation from her family? Is this Court’s intervention really necessary? Our routine practice counsels no.” “The Court is bent on rebuking the Ninth Circuit…. I would not ignore Smith’s plight and choose her case as a fit opportunity to teach the Ninth Circuit a lesson.”

Even if the Court is inclined to examine this decision, it ought not do that by a summary disposition. “I would at least afford [Smith] a full opportunity to defend her release from a decade’s incarceration.” [Ed. Note: Since it takes only four Justices to grant full review, this point in a three-Justice dissent accentuates Justice Kagan’s silence here – although it is quite possible to imagine a “strategic” decision to not provide the fourth vote for plenary review in a case you feel certain you would “lose.”] “Justice is not served by the Court’s exercise of discretion to take up this tragic, fact-bound case.”

[1] These summaries are created by Professor Rory K. Little, U.C. Hastings College of the Law, San Francisco (littler@uchastings.edu) soon after the Supreme Court’s opinions are released. They represent his quick, personal and unofficial reading of the Justices’ opinions. Remarks in [brackets] are Professor Little’s own editorial comments. Minor punctuation may be changed. The original opinions should be consulted for authoritative content.

Occupy Oakland, Policing, and Secondary Deviance

2011-11-03T07:03:00.000-07:00

Angela Davis yesterday at Occupy Oakland.
Photo courtesy Joe Feria-Galicia, RP&E Journal

This morning's Chronicle reports fierce encounters between Occupy Oakland protesters and police. As was the case with the protests following Johannes Mehserle's verdict, protests in Oakland were peaceful until the evening, and then escalated into vandalism and violent clashes.

The Chron piece documents serious debates within the protesting community regarding violence, as well as about the appropriateness of police response. We have no data yet as to the identity of the arrestees, but if this is anything like the Oscar Grant protests of yesteryear, at least some of them might be out-of-towners taking advantage of the protest to engage in vandalism.

What is going on in Oakland? The ferocious animosity between communities of color and the city police force have been long noted in literature, the latest example being Victor Rios' recent book Punished. The book is an ethnography of Black and Latino youth in Oakland, documenting their constant criminalization by their surroundings, including police, the schools, and their own families. Rios argues that the pervasive perception that these young men are either actual or potential criminals, to be constantly monitored, addressed, and oppressed, provokes some of them to actually live up to the label and join street gangs. While Rios does not explicitly pay homage to labeling theory, his interviews and observations seem to support Edwin Lemert's theory of secondary deviance, according to which young people who are constantly labeled as deviants eventually internalize the label:

When a person begins to employ his deviant behavior or a role based upon it as a means of defense, attack, or adjustment to the overt and covert problems created by the consequent societal reaction to him, his deviation is secondary. Objective evidences of this change will be found in the symbolic appurtenances of the new role, in clothes, speech, posture, and mannerisms, which in some cases heighten social visibility, and which in some cases serve as symbolic cues to professionalization.(1951: 76)

Lemert's theory, and Rios' findings among Oakland youth, may go a long way toward explaining why protest events in Oakland have such potential to deteriorate, while similar events in San Francisco go by more peacefully. Encounters between police and community in San Francisco simply do not carry the same baggage that they do in Oakland. And, while it would be absurd to argue that vandalism does not really exist and is solely the product of a label, it is important to acknowledge the role of police and government expectations in encouraging/discouraging violence. In San Francisco, supervisors urged police to treat protesters peacefully. At our District Attorney debate at Hastings, all four candidates present vehemently stated that they would never treat Occupy protesters using violent means, nor would they seek charges against them. The role of environment and charged past encounters in generating violence cannot be ignored, and the Oakland police force, constantly sitting atop a keg of resentment on the part of racialized and criminalized communities, should not be surprised at its prophecies coming true.

The Myth of Free Health Care for Inmates

2011-11-01T06:45:00.000-07:00

In the last weeks I have been giving talks about various aspects of California corrections in universities all over the Bay Area. Interactions with college students are refreshing and interesting, especially as local elections are rolling in.

One argument I've heard a few times now in these discussions has to do with bitterness about the fact that inmates receive free health care, while those of us on the outside pay for our health care out of pocket. That this argument persists in the face of the Brown v. Plata aftermath is a grim reminder of the misinformation out there. For the benefit of those of our readers who hear this argument made in their immediate vicinity, or who have made this argument, here are some ways to answer it.

First, any complaint about inmates' "free health care" begs the question whether what they receive in prison is, in fact, health care. The medical system in California prisons is so broken and inept that it was handed, several years ago, to a federal receiver. The budgetary woes have consistently hindered the receivership's efforts to reform the system. And, eventually, the Supreme Court affirmed a three-judge federal panel decision to release tens of thousands of inmates because health care could not be provided given the overcrowding status of the prison. The bottom line, according to Jeanne Woodford, is that short-term inmates receive exams and an intake, and little beyond that. The Supreme Court decision and the brief appendices cite numerous examples of unnecessary disease and preventable death in California institutions. No, this is not comparable, by any standard, to whatever health care you might be receiving on the outside.

Second, the requirement to provide inmates with health care in prison stems from the fact that the government put them there. Warehousing people against their will is one thing. Doing so without caring for their basic needs is quite another. Some argue, of course, that this could be done more cheaply and efficiently. Much of the expense stems from the fact that we insist on imprisoning elderly, infirm inmates. The financial crisis is finally making us rethink this policy. And, by the way, check out Legal Services for Prisoners with Children's initiative on behalf of old prisoners.

Third, apparently the free health care for inmates idea is no longer the universal rule. Much to my horror, I find that in some places, apparently, this is no longer the case.

As a coda, ever since I relocated to the United States I have been perpetually astonished at how little people in this country expect from their government. The argument against free health care for inmates is saddening because of its focus not on what you deserve to have, but on what someone else does not deserve to have. We talked about this "othering" of criminals before. Why not insist on being provided national health care at low or no cost, as is the case for every other industrialized democracy? The spite and bitterness against inmates is a distraction from a common goal, which is to be treated decently and fairly and being taken care of by one's government, and it is proof that just and reasonable citizen expectations can be confounded if people are presented with an enemy to hate. I urge Californians to look beyond these divisive mechanisms and really think about their expectations from their leaders.

Expanding Operation Boo: Thoughts on the Place of Sex Offenders in a Financially-Strapped System

2011-10-31T17:25:00.000-07:00

Today's news from CDCR are provoking a sigh and a head shake, as we've already discussed, ad nauseam, the ridiculous love affair the parole authorities have with Operation Boo here and here. Doesn't the Division of Adult Operations grow tired of this festival of spook? Is no one critical of the fact that there have been ZERO recorded incidents of molestation during trick-or-treating?

My only comment for this year's gloomy shaming ritual is this: Sex offenders are the only population who I believe will not benefit from the cost argument. Their lobbying power is, well, nil, and the fact that these baseless operations go on year after year are an indication that the public wants to continue believing that they are all, uniformly, monsters to be monitored and controlled in the face of no evidence whatsoever. We can turn around several important punitive trend, but it'll be a long time before we reassess the devastation our excessive policies toward a population with extremely low recidivism rates has wreaked on released inmates and their families.

Let's Build Us Some Jailz!

2011-10-27T13:02:00.001-07:00

Prison officials open up $600 million for jail construction to 25 counties

State officials have invited 25 counties to apply for a total of $602 million to construct new jail beds, after narrowing the list in recent days.
The bond funding, available under a 2007 law known as AB900, will be awarded by March and will allow a number of counties to expand their jail capacity. It comes as the state implements “realignment” the governor’s plan to address overcrowding in state prisons by letting thousands of low-level offenders serve their time in local jails instead of state prison. Advocates for prisoners oppose the release of funds.
The counties given the green light to apply for the funds are: Los Angeles, Riverside, Orange, Sacramento, Santa Clara, Fresno, Stanislaus, Tulare, Monterey, Yolo, Sonoma, Placer, Kings, Shasta, Sutter, Madera, Imperial, Napa, Siskiyou and Tuolumne. Additonally, Kern, San Joaquin, Santa Barbara, Amador and San Benito counties are being asked whether they would like to forgo earlier AB900 funds awarded to them and instead reapply for this round of bond money.
Leslie Heller, an official with the Correction Standards Authority, said the majority of the state’s 58 counties expressed interest in the money, and that the counties invited to apply were chosen solely on the increased number of prisoners they are expected to be housing under realignment.
“We knew with realignment there would be a lot of interest, and we know there is not enough money to go around to all the counties, so we thought, ‘Let’s find out how many are interested, then pick an appropriate number from that to go through the application process, so they don’t expend their resources unnecessarily’,” she said.
She added that there is “absolutely not” enough money for all 26 counties, and that some may not ultimately choose to submit an application.
For more information on AB900 funding, visit this website.

Today at Hastings: Realignment Panel

2011-10-27T06:09:00.000-07:00

Today, UC Hastings will host a panel about the realignment. The panel is free and open to the public. Details:

When: 10/27/2011, 5:30 PM to 7:30 PM
Where: 200 McAllister, Alumni Reception Center (2nd floor)
Who:

Chief Presiding Judge Lisa Novak—San Mateo County
Deputy District Attorney Jeff Rubin—Alameda County
Assistant Public Defender Don Landis—Monterey County
Executive Director of Death Penalty Focus Jeanne Woodford

Moderated by UC Hastings Professor Kate Bloch.

Panel and Q&A to be followed by a wine reception. Please RSVP to HCLS@uchastings.edu.

Today at Hastings: San Francisco District Attorney Debate

2011-10-26T11:21:00.000-07:00

UC Hastings will be holding a free, open to the public event today, which might help some of our readers make up their minds regarding their voting choices on Nov. 8. We'll be hosting four of the five candidates for San Francisco District Attorney: Sharmin Bock, Bill Fazio, David Onek and Vu Trinh. The event will be moderated by my colleague Rory Little, and live streamed through the event listing.

Start: 10/26/2011 from 3:30 PM to 5:00 PM
Location: 200 McAllister, Alumni Reception Center

See you there!

KALW Show on Realignment Podcast

2011-10-25T23:13:00.000-07:00

Yesterday I spoke on KALW with Keramet Reiter and the Chronicle's Marisa Lagos about the realignment. Supervisor Ross Mirkarimi and Director of Probation David Muhammad called in, and it was, all in all, a literate and informative discussion. A full podcast of the show can be found on the City Visions website or by opening this file.

Jail expansion: Counties seek millions from state

2011-10-24T09:30:00.000-07:00

Check out today's SF Chronicle cover story, "Jail expansion: Counties seek millions from state," and especially its ending:

Lenard Vare, director of Napa County's Department of Corrections, said he agrees with advocates that incarceration isn't the only answer. But the rural county also anticipates an increase of at least 70 inmates per year - and its jail is already over capacity.

"The old adage 'If you build it, they will come' is true, because law enforcement in general - police officers - come with the mind-set to fight crime, and arresting people is one of the ways to fight crime," he said. "Unless we decide to simultaneously work on our overall criminal justice system ... we are not going to make a difference. Locking someone up 50 times does not deter them from committing crimes, because it becomes a way of life."

Realignment Starts Monday

2011-10-23T13:34:00.000-07:00

A great story by the Chron's Marisa Lagos explains the realignment. The piece is a must-read in its entirety and I highly recommend it. I want to highlight one pierce people may not have been attentive to: The important role probation officers will play.

Realignment is not just a numbers game. Under the new law, counties have been given new legal tools meant to help them get at the root issues that lead to criminal behavior.

Most of those tools consist of increased flexibility for judges, prosecutors and probation officers in deciding how to punish a person.

For example, in the past, if a drug offender failed to meet the terms of his probation, the only real option a probation officer had was to send him back to court, where a judge would consider whether to ship him back to prison or jail - a long, ambiguous process that resulted in delayed punishment.

But research shows that open-ended, uncertain punishments do not encourage criminals to change their behavior. What does, according to experts, are swift and certain sanctions - such as a tactic known as "flash incarceration," in which an offender is jailed for a day or two almost immediately after violating the terms of their probation.

Under realignment, a probation officer could make this decision without sending the person back to court. And, the probation officer can tailor the punishment to an offender's work schedule, so they don't lose their job.

Judges will also now be allowed to mandate a split sentence - combining jail time with at-home detention, drug abuse treatment or parenting classes, for example.

Marisa Lagos, Keramet Reiter, and I will participate in an hour-long conversation about the California correctional crisis on KALW tomorrow at 7pm. Tune in, call in with your questions, and join the conversation.

Hunger Strike Ends in Pelican Bay and at Calipatria

2011-10-23T10:44:00.000-07:00

The solidarity website reports:

Mediators who met with hunger strike representatives at Pelican Bay, one of whom had been transferred to Corcoran due to the strike, confirm that prisoners there have decided to stop their hunger strike after nearly 3 weeks. The prisoners have cited a memo from the California Department of Corrections and Rehabilitation (CDCR) detailing a comprehensive review of every Security Housing Unit (SHU) prisoner in California whose SHU sentence is related to gang validation. The review will evaluate the prisoners’ gang validation under new criteria and could start as early as the beginning of next year. “This is something the prisoners have been asking for and it is the first significant step we’ve seen from the CDCR to address the hunger strikers’ demands,” says Carol Strickman, a lawyer with Legal Services for Prisoners with Children, “But as you know, the proof is in the pudding. We’ll see if the CDCR keeps its word regarding this new process.”

Civil Disobedience in Support of Hunger Strikers

2011-10-23T10:39:00.000-07:00

A few important issues that have fallen between the cracks while I was away at conferences: Citizens engaged in civil disobedience actions in support of the Pelican Bay hunger strikers at the CDCR headquartersin Sacramento and at the State Building in Los Angeles. Larry Everest kindly emailed and reported:

*******

A little past 8:00 am, on Friday morning, October 14, three of us – all supporters of the courageous hunger strike by California prisoners – walked up to the main entrance of the headquarters of the California Department of Corrections and Rehabilitation (CDCR) in the Sacramento, California - the state capitol. Then we chained ourselves to the front doors, sat down, and began a non-violent action of civil disobedience;We did so to support the just struggle and demands of the hunger strikers and to condemn the assaults of the CDCR and Gov. Jerry Brown on the prisoners.

With me was Gregory “Joey” Johnson, a revolutionary communist activist, whose bold action in the 1980s of burning an American flag led to a rare Supreme Court victory for the people (Texas v. Johnson), and Maryann, a relative of a California prisoner and a World Can't Wait activist.

We felt it was imperative to take bold to underscore the urgency of the situation faced by prisoners and to make clear our support for all the prisoners who have been on hunger strike – or who are continuing their hunger strike. And we felt that everyone has a moral obligation to step up their support for the hunger strikers and their just demands in whatever ways they possibly can. Anything less is unconscionable.

We made clear to the activists and bloggers who joined us at CDCR headquarters that we were demanding:

* Gov. Jerry Brown and CDCR fully meet all the prisoners demands!

* No mistreatment, punishment, disciplinary retaliation, or denial of medical care, to prisoners who have been on, or are continuing their hunger strike!

* Prisoners are Human Beings – They Must Treated As Such!

Outrageously, we were all arrested and each slapped with 5 different misdemeanor charges. As we were being dragged off, we all shouted our support for the prisoners, the demands of the hunger strikers, and our opposition to retaliation and ongoing torture. And we denounced the fact that we were arrested and dragged off to jail in order to ensure that the CDCR and the State of California could continue carrying on “torture as usual.”

The charges against us are outrageous and we’ll be mounting a legal and political battle for all of them to be dropped. And, these charges are certainly not going to stop us from doing everything in our power to continue fighting for the rights – and humanity – of the prisoners!

CJ Racial Discrim Starts in Schools

2011-10-20T10:11:00.000-07:00

We knew the school-to-prison pipeline starts in schools, but a report published this month shows the criminal justice system's racial discrimination starts in schools too. On Wednesday, October 5th, the Dignity in Schools Campaign, National Education Policy Center (NEPC), and the Annenberg Institute for School Reform hosted a press briefing at the National Press Club for the release of the report "Discipline Policies, Successful Schools and Racial Justice." The report, authored by Daniel Losen of The Civil Rights Project/Proyecto de Derechos Civiles at UCLA, analyzed data from the U.S. Department of Education's Office for Civil Rights and found that more than 28% of Black middle school boys had been suspended at least once, compared with 10% of white males nationwide.

Hunger Strikers' Condition Worsens

2011-10-12T07:50:00.000-07:00

The solidarity website reports:

“Men are collapsing in their cells because they haven’t eaten in two weeks,” says a family member of a striker at Calipatria state prison, “I have been told that guards refuse to respond when called. This is clearly a medical emergency.” In an effort to isolate prisoners perceived by the California Department of Corrections and Rehabilitation (CDCR) to be leaders, some prisoners at Pelican Bay have been removed from the Security Housing Unit (SHU) to Administrative Segregation (Ad-Seg). The Prisoner Hunger Strike Solidarity coalition has received reports that prison officials have been attempting to freeze out strikers held in the Ad-Seg Unit at Pelican Bay, using the air conditioning system in conjunction with cold weather conditions where the prison is located. Last week a hunger striker in Pelican Bay was taken to a hospital in Oregon after he suffered a heart attack. Prisoners have also been denied medications, including prescriptions for high blood pressure.

Brown Vetoed Anti-Shackling AB568

2011-10-10T18:59:00.001-07:00

When a pregnant woman goes into labor in California prisons, guards chain her up, transport her to a medical facility in chains, and then chain her to a bed for the entire birthing process. This practice is a disgusting outrage, and would have been ended by this year's AB 568. Yesterday Governor Brown decided to veto this legislation. Unbelievable.

Expert Alicia Walters has more info here.

World Day Against the Death Penalty

2011-10-10T13:00:00.000-07:00

Today is the 9th World Day against the death penalty. Some things you could do:

Sign the World Coalition petition to the United Nations General Assembly, who will vote on a resolution to halt the death penalty in 2012.
goo
Educate yourself about the voter initiative to end the death penalty in California in 2012.

Prison of Peace

2011-10-05T23:17:00.000-07:00

Today at Hastings we had the pleasure of hosting Laurel Kaufer, founder of Prison of Peace, a unique program at Valley State Prison for Women in Chowchilla, CA. At the initiative of Susan Russo, one of the inmates, who sought to alleviate the violence in her immediate environment, fifteen women were trained in mediation skills and received mediation certification. Some of these women proceeded to become trainers, and now a hundred and fifty women in prison have skills that enable them to help others process conflict in healthy, empathetic ways. Prison authorities report a calmer, less violent prison. What a wonderful thing it is to provide people in a stressful, violent environment the skills they need to resolve conflicts, conduct peace circles, and listen attentively to others.

Prison Hunger Strikers' Numbers Increase

2011-10-04T22:20:00.000-07:00

(reposted from https://prisonerhungerstrikesolidarity.wordpress.com)

12,000 Prisoners Resume Hunger Strike in California

Outrageous Retaliation by Prison Officials

by Larry Everest and Bay Area Revolution Writers Group

A very just, very significant and courageous battle is rapidly spreading in California’s state prisons—and beyond. On September 26, prisoners at Pelican Bay State Prison in the Security Housing Unit (SHU) resumed their hunger strike—in the face of vicious lies and attacks and retaliation by the California Department of Corrections and Rehabilitation (CDCR) and other state officials, including Governor Jerry Brown. They had been on a hunger strike from July 1-July 20, demanding an end to the horrifically inhuman conditions they face. On September 29, the CDCR admitted that 4,252 inmates in eight state prisons had missed nine consecutive meals since Monday, September 26, and that state prisons at Calipatria, Centinela, Ironwood, Pelican Bay, San Quentin, and Salinas Valley, as well as the California Substance Abuse Treatment Facility and state prison at Corcoran, had all reported inmates on hunger strike. (The CDCR won’t count a prisoner as being on hunger strike until he or she has refused nine straight meals.)

These officials figures, it turns out, underestimated the number of prisoner hunger strikers. On October 1, Prisoner Hunger Strike Solidarity’s website reported, “Numbers released by the federal receiver’s office show that on September 28, nearly 12,000 prisoners were on hunger strike, including California prisoners who are housed in out-of-state prisons in Arizona, Mississippi, and Oklahoma.” (The website adds, “Representatives of the hunger strikers have previously stated that this will be a rolling strike, allowing prisoners to come off strike to regain strength. Because of this, numbers will likely fluctuate throughout the duration of the strike.”)

The strike has also reportedly spread to at least one county jail. The Inland Valley Daily Bulletin reported that 50 prisoners in the West Valley Detention Center in Rancho Cucamonga, east of Los Angeles, are refusing to eat in support of the hunger strike in the prisons. (September 27, 2011)

More than 6,500 prisoners joined the three-week hunger strike in July. Prisoners at Pelican Bay suspended the strike on July 20 after prison officials promised they would meet some of the prisoners’ demands and address the main issues prisoners were raising. Then in September, prisoners wrote a statement saying these promises had not been kept: “We remain in SHU indefinitely, deprived of our basic human rights—based on illegal policies and practices, that amount to torture; torture of us, as well as our family members and loved ones on the outside. CDCR remains in denial, and continues to propagate the lies re: ‘worst-of-the-worst’ 3000 gang generals, etc.—in order to dehumanize/demonize us, so as to maintain the status quo... CDCR’s intent is to break us down, and coerce us into becoming state informants! A violation of international treaty law, period! This is not acceptable!” (Go to revcom.us/s/pelicanbay-hungerstrike-en.html for extensive coverage of the July hunger strike.)

These prisoners are now putting their lives on the line again, demanding to be treated as human beings—demanding that the CDCR end the barbaric, inhumane conditions of imprisonment throughout California prisons, particularly in the “Security Housing Units” or SHUs. There, thousands of prisoners are locked in solitary confinement in windowless cells, 7.6 feet by 11.6 feet, for 22 hours or more a day for years, denied human contact. There are 1,111 inmates confined to the SHU at Pelican Bay alone, where the average length of confinement is 6.8 years. More than 500 prisoners have been in the Pelican Bay SHU for more than 10 years; 78 have been in the SHU for more than 20 years!

The prisoners’ demands include an end to group punishment, abolishing the CDCR’s gang status and “debriefing” policies, ending long-term solitary confinement, providing adequate food and expanding constructive programming and privileges. (See “Prisoners at Pelican Bay SHU Announce Hunger Strike, Revolution #237, June 26, 2011, for the prisoners’ five demands.)

Vicious Retaliation Against Hunger Strikers

Prison officials were deeply shaken by the breadth and strength of the July 1-20 hunger strike. This courageous action brought to light the horrific conditions of solitary confinement—amounting to torture—and there was broad support for the prisoners’ just demands.

After prisoners announced the strike would be resumed, prison authorities issued two memos to 165,000 prisoners—warning them against going on strike, claiming they were making changes. Disciplinary warnings were issued to thousands of hunger strikers. Supporters of the strikers report that a number of prisoners lost their jobs as punishment for supporting the strike in July, that some received punitive disciplinary write-ups, and some prisoner negotiators were being singled out and threatened with transfers and subjected to cell searches.

A September 29 press release from the CDCR said it “will not condone organized inmate disturbances” and warned: “Participation in mass hunger strikes and other disturbances will result in CDCR taking the following action: Participation in a mass disturbance is a violation of state law, and any participating inmates will receive disciplinary action in accordance with the California Code of Regulations; and Inmates identified as leading the disturbance will be subject to removal from the general population and be placed in an Administrative Segregation Unit.”

Matthew Cate, Secretary of CDCR, interviewed by Berkeley’s KPFA radio on September 27, threatened prisoners: “If they still want to be on a hunger strike then there will be some consequences to that, because you can’t shut down prison operations with no consequences.” Cate repeatedly described the hunger strike as a “mass disturbance” and compared it to a riot. Attempting to justify why the media are not allowed access to the prisoners on strike—who are risking their lives to demand an end to inhumane conditions—Cates said it was “the same reason that we don’t allow media to have access to Charles Manson.”

On July 29 the CDCR released a revision to its Medical Services Program Policy and Procedures regarding a mass organized hunger strike—including criteria for when the force-feeding of inmates will take place. This could mean the CDCR plans to force-feed prisoners to break the hunger strike. The American Civil Liberties Union has written that “force-feeding contravenes U.S. domestic and international law and is universally considered to be a form of cruel, inhuman and degrading treatment.” (Press Release: ACLU Calls For End To Inhumane Force-Feeding Of Guantánamo Prisoners, January 9, 2009)

In July, the CDCR repeatedly lied, saying the strike was organized by gangs. Governor Jerry Brown, who never said anything about the hunger strike in July, has now publicly attacked hunger strikers and given full backing to the CDCR’s policies and attacks on the prisoners, saying, “We have individuals who are dedicated to their gang membership who order people to be killed, who order crimes to be committed on the outside... My recommendation is to deal effectively with gangs in prisons.” (California Prison Officials Warn Inmates On Hunger Strike,” CBS San Francisco News, September 30, 2011)

Family members of prisoners participating in the hunger strike are having their visits cancelled. And the Prisoner Hunger Strike Coalition reports that Carol Strickman and Marilyn McMahon, both attorneys who have served on the hunger strike mediation team and have coordinated legal visits for prisoners in the SHU, have both been banned from prisoner visits by the CDCR. This is a further effort to isolate the prisoners and prevent the truth of their situation from being known outside prison walls. (“CDCR Bans Lawyers: TAKE ACTION NOW!” Prisoner Hunger Strike Solidarity, September 30, 2011)

Think about what the draconian actions of the CDCR reveal: Who is defending crimes against humanity? Who is lying and justifying criminal violence against human beings? What does all this show about the utter illegitimacy of the prison system—and brutal nature of mass incarceration in the USA? For prisoners subjected to the most isolating conditions, sitting in their cells and refusing to eat is labeled a “mass disturbance.” Their demands simply to be treated as human beings are met with lies and threats of even more violence against them. This is completely outrageous and intolerable!

Carol Strickman put it like this: “We’re saying they are torturing the prisoners and we want them to stop the torture. The prisoners are so concerned about it that they are going to stop eating. If the response is to increase the torture, then they are just proving who they are and what their values are. This is a human rights issue and they are proving that they don’t see the prisoners as human.”

There is an urgent need for those on the outside to expose and oppose all these attacks on the hunger strikers and their supporters.

Strickman also told Revolution that there are other ramifications if prison officials declare the hunger strike a “mass disturbance”: “They could do lockdowns. That would prevent family visits. That means everybody in the prison can’t have visits. That would be another example of group punishment, and abolishing group punishment is one of the prisoners’ demands. So what they would be doing in response to the prisoners’ demands is to crank up group punishment—the behavior that is being protested. It means people can’t go to the law library, people can’t get medical visits, can’t do classes and programming. In women’s facilities they can’t go do their laundry. You can’t go to canteen. There are a lot of things that flow from a lockdown. That is a serious threat.”

Hunger Strike Protest Wednesday

2011-10-04T22:18:00.000-07:00

Families of hunger strikers were denied visits this past weekend, as the California Department of Corrections & Rehabilitation (CDCR) continues to crackdown on the hunger strike.

Before the strike resumed Under-Secretary of CDCR Operations, Scott Kernan, threatened an escalation of violence on hunger strikers. Since lawyers from the prisoner’s legal & mediation team have been banned from communicating with hunger strikers last week pose a threat to CDCR’s security, denied visits are an added punishment that increase family members of hunger strikers have also been denied visits. While the CDCR claims families and lawyers pose a threat to CDCR’s security, denied visits are an added punishment that increase isolation for hunger strikers in an attempt to break the strike and conceal retaliation.

Families & community members are gearing up for another convergence to Sacramento Wednesday, October 5th, to protest the CDCR’s torturous conditions & practices.

Sacramento

Wednesday, October 5th, 12 noon-2pm: Protest outside CDCR Headquarters. 1515 S St, downtown Sacramento. For carpooling and transportation needs from the Bay Area, please contact: 415.238.1801 or prisonerhungerstrikesolidarity [at] gmail.com

CURB Realignment Report Card: Grades are in!

2011-10-02T11:20:00.000-07:00

In case you haven't seen it yet, CURB's realignment budgeting report card is an incredible data mine, with a wealth of info from 13 counties' realignment plans. SF pass, LA incomplete, SD fail... this is a great visual metric of the degree to which counties are investing in new jail expansion plans versus alternatives and re-entry programs.

CDCR Medical Policy Regarding Hunger Strikers

2011-10-02T02:01:00.000-07:00

More on the health concerns regarding the strike: Policy 4.22.2 of Prison Health Care Services, updated on September 29, 2011, details how inmates are to be treated during a hunger strike. Upon the beginning of a strike, participants' baseline weight and height are to be established, and a follow-up spreadsheet is created. Prison authorities are to follow up on participants' health and weight. The regulations emphasize respect for participants' autonomy regarding their health (feeding plans are to be offered, not coerced), and allow force-feeding in two cases only: An emergency situation or an inability to provide informed consent.

According to prison visitors, clinicians are monitoring inmates to keep an eye for any who may begin to show signs of starvation, but so far there have been no concerns. As of Sept. 30, 3,376 inmates in six prisons are on a hunger strike. They have missed nine or more consecutive meals since Monday, Sept. 26.

Institutions with hunger strike participants are:

Calipatria State Prison
Centinela State Prison
California State Prison-Corcoran
Ironwood State Prison
Pelican Bay State Prison
Salinas Valley State Prison

May the State Force Feed Hunger Strikers?

2011-10-01T15:42:00.000-07:00

The CDCR memos did not provide a clear answer as to whether the authorities will seek a court order to force-feed striking inmates should the strike last long enough to jeopardize their health. During the July strike

I got to think about this a bit this week when I got a phone call from a reporter from the Examiner, resulting in this story. The man in question is not taking part in the Pelican Bay solidarity hunger strike, and apparently this is the last in a long series of hunger strikes he has undetaken individually. I am unclear on the extent to which hospital personnel felt comfortable force-feeding him, but apparently the sheriff is seeking a court order to do so.

Apparently, there is no clear answer as to whether, legally, hospital personnel may force-feed a hunger-striking inmate, and under which conditions. This has come up in the context of a large-scale hunger strike in Ireland in 1981, and later in the context of Guantanamo in 2005. A 2007 note by Tracey Ohm provides a concise summary of the law in the matter. In the early 1980s, the courts had ruled that the state had no right to intervene with a hunger-striking inmate, and it could allow him/her to starve him/herself to death; however, just a few years later the court tried to draw a distinction between a strike aimed at death and a strike aimed at a manipulation of the correctional system, with a right to intervene in the latter. Ohm suggests that correctional institutions adopt a four-part standardized test, based on the principles in Turner v. Safley (1987):

A "valid, rational connection" between the prison regulation and the legitimate governmental interest put forward to justify it;
the existence of "alternative means of exercising the right that remain open to prison inmates";
the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally; and
the absence of ready alternatives is evidence of the reasonableness of a prison regulation.

Cases decided after the publication of Ohm's note, such as this Connecticut decision, this Illinois decision, and this Pennsylvania decision (also see this summary) have tended to allow prison authorities to force-feed inmates when there was imminent danger to their health or life. All decisions emphasize the need to grant a court order on a case-by-case basis. There doesn't seem to be any California case law on the matter. This case may be the first time such an issue is tackled by California courts, and it's worth following up not only because of the fate of the individual defendant, but because of the possible implications for Pelican Bay strikers and their supporters in other institutions.

Pelican Bay Strike, Day 6: CDCR Bans Lawyers and Mediators from Contacting Hunger Strikers

2011-10-01T08:19:00.000-07:00

Press release from Prisoner Hunger Strike Solidarity:

With the hunger strike continuing to spread from Pelican Bay and Calipatria State Prisons to at least 6 other prisons, the California Department of Corrections and Rehabilitation has threatened to crack down on the at least 6,000 participants, including sending prisoners to solitary confinement. The CDCR also faxed expulsion orders to two mediation team lawyers, notifying them that they had been banned from all prisons pending an investigation into whether or not they had “jeopardized the safety and security of CDCR” institutions. Meanwhile, the prisoner-selected mediation team that has been trying to negotiate with the CDCR since the strike was initiated in July sent a letter to Gov. Jerry Brown, demanding a meeting and lodging their vehement objections to the actions of CDCR officials.

New Study: Decline in Support for the Death Penalty Among Californians

2011-09-30T07:44:00.000-07:00

Souce: Gallup. Graph depicts national trends.

A new study conducted by Craig Haney of UC Santa Cruz finds that, while a majority of Californians still support the death penalty, there is a marked decline in the percentage of supporters compared with the previous extensive survey, conducted in 1989: Support has declined from 79% in 1989 to 66% in 2011. This trend is in step with the national trend (see Gallup graphic to the left). From the UC Santa Cruz website:

The proportion of adult Californians who view themselves as "strong" supporters of the death penalty has dropped from 50 percent in 1989 to 38 percent today. Conversely, fewer than 9 percent were "strongly opposed" to capital punishment 20 years ago, compared to 21 percent today.

"These changes appear to be related to changes in the way Californians view the system of death sentencing, rather than just the punishment itself," said Haney.

For example, the poll revealed much greater concern about the possibility of executing innocent people: 44 percent expressed concern this year, compared to only 23 percent in 1989. In addition, the number of respondents who believe the death penalty is a deterrent to murder dropped from 74 percent in 1989 to only 44 percent today. Similarly, the number of people who did not believe that prisoners sentenced to life without parole would actually stay in prison until they died dropped to about 40 percent, compared to 66 percent who held that belief in 1989.

These findings suggest a series of political implications for the supporters of SB490, a voter initiative to abolish the death penalty in California expected to be placed on the ballot in 2012.

First, it appears that, as we have said before, criminal justice reform is often incremental. It is difficult to get a broad coalition of death penalty opponents on a platform of human rights, and the support of several parties, including, possibly, victim families and law enforcement personnel, depends on maintaining a strong option of life without parole. Doug Berman has recently made a strong argument that the strong push against the death penalty has the unsavory effect of bolstering life without parole. Berman's 2008 paper on the topic masterfully argues that the Supreme Court devotes a disproportionate percentage of its energy to the minutes of the "machinery of death" rather than dealing with more other important criminal justice issues on its docket.

Second, Haney's study confirms our observations about the change in persuasive anti-death-penalty rhetoric over time. Concerns about innocence and deterrence, rather than humanitarian concerns, drive much of the trend.

And third, humonetarianism has the potential of converting even more Californians to the opponents' cause. Haney found, disturbingly, that

nearly half the respondents in the 2009 survey, compared to 54 percent in 1989, thought the death penalty is cheaper to implement than life without parole, although the reverse is true.

This misconception can be easily corrected by a well-designed campaign. If costs are, indeed, a springboard to reform in California, a solid argument comparing the costs of the death penalty to life without parole would go a long way toward broadening public support for SB490.

Pelican Bay Strike, Day 4: Strike Expands

2011-09-29T04:14:00.000-07:00

The latest reports from family members, friends and supporters of inmates are that approximately 6,000 inmates in a variety of correctional institutions have joined the hunger strike. Also expressing solidarity are approximately 50 county inmates held in West Valley detention center, who are refusing jail food (but purchasing commissary food). I'm not sure whether the supporters, whose job assessing the size of the strike is admittedly difficult given the lack of data from CDCR, count county inmates among their striker numbers. If the figure is to be believed, the strike is approaching the previous strike in terms of number of participating inmates.

BREAKING NEWS: CDCR Sees Strike as Disturbance

2011-09-28T17:00:00.000-07:00

Two memoranda sent out to all CDCR inmates by Scott Kernan, Deputy Director of Adult Operations, lay out CDCR's approach to the strike.

The first of the two defines the strike as a "disturbance" and threatens serious consequences, including removal from general population and placed in the Administrative Segregation Unit. Moreover, the memo threatens "additional measures" including effective monitoring and management of "the participating inmates' involvement and their food/nutrition intake, including the possible removal of canteen items from participating inmates."

Kernan also raises the possibility that "day-to-day prison operations" may be impacted by the strike. By that he might mean visits, as it is mentioned that this might impact not only inmates, but their families.

The second memo includes a list of steps that CDCR has taken on behalf of the inmates. The "short-term items" include watch caps, wall calendars, exercise equipment, colored chalk, proctors for college examinations, and food services; the "mid-term action items" include a "comprehensive review of SHU policies".

click to enlarge

It remains to be seen what the ramifications of these memos might be in terms of CDCR's actual response to the strike. During the July strike, CDCR decided not to force-feed inmates.

As a reminder, the inmates' core demands are:

1. Eliminate group punishment. Instead, practice individual accountability.

2. Stop forcing prisoners to confess to gang membership. Prisoners are being held in isolation until they "debrief" or give information on gang activity. Whenever torture is used to force confessions, it often produces false information and can endanger the lives of prisoners and their families.

3. Comply with the recommendations of the US Commission on Safety and Abuse in prisons and end long-term solitary confinement. In 2006, the commission said isolation conditions should only be used as a last resort.

4. Provide adequate food.

5. Expand and provide constructive programs and privileges for prisoners held in solitary.

We plan to address some of the issues pertaining to the hunger strike on our upcoming prison food panel on Food Day.

2010 CA Correctional Budget: Rehabilitation at Bottom of Priorities

2011-09-28T10:08:00.000-07:00

Source: The Informant. Click to enlarge.

A recent KALW story examines the California correctional budget for 2010. The data does not accurately correspond to the data in CDCR's "year at a glance" report for 2010. But the picture is not dissimilar: The budget hovers around nine billion dollars, with the largest percentage spent on salaries and a staggering amount on health care and only a fraction on rehabilitative programs.

The CDCR report highlights construction projects funded by AB900 as well as heralds out-of-state incarceration as positive moves to reduce overcrowding. Parole reform is also highlighted, especially decreasing caseloads of parole agents.

But there is a positive piece of news: The total prison population in California has decreased, for the first time in quite a while. This is true for both the female and male populations. Given the trend in recent years, it is hard to tell whether this means a swingback of the incarceration pendulum or a mere anomaly. It is, however, an encouraging piece of news. The decrease is most evident in younger age groups; there is an increase in the percentage of inmates aged 40 and over (which also explains the health care expenses). The trend of decreasing incarceration for drug offenses continues. More than 50% of admissions are still comprised of parole violators; new admissions for felonies account for about a quarter of admissions.

Regionally, Southern California accounts for 65.9% of the inmate population, the San Francisco Bay Area for 11.2%, and the remainder of the state for 22.9%.

The Three Strike population consists of 32,439 2nd Strikers and 8,570 3rd Strikers. A considerable percentage of Strikers are of advanced age.

California Should Regain Its Lead in Setting National Trends and Stop Building New Prisons and Jails

2011-09-28T09:47:00.000-07:00

from California Progress Report

By Emily Harris and Isaac Ontiveros

Across the country, headlines show a new trend of nationwide prison closure. A recent report by the Sentencing Project notes that, to date, 13 states in the US have closed or are considering closing some of their correctional facilities, reversing a 40-year trend of prison expansion. States initiating prison closures include New York, Texas, Colorado, Connecticut, Georgia, Michigan, Florida, Nevada, North Carolina, Oregon, Rhode Island, Washington, and Wisconsin. Michigan, for example, has closed 21 facilities and has prioritized re-entry services for people returning to their communities from prison.
Fiscal crises have definitely fueled the trend, but reforms in sentencing and parole policies have also resulted in less demand for prison space. In turn, the closures have freed up millions and millions of dollars that could be used into rebuilding programs and services proven to keep people out of prison and in their communities.
California, unfortunately, is moving in the opposite direction. Despite an ongoing fiscal crisis in California, there are currently 13 costly prison and jail expansion projects moving forward using our states scarce resources, and we anticipate more construction to roll out under phase II of the notorious AB 900 legislation. AB 900 was signed into law in May of 2007, authorizing at least $7.4 billion in lease revenue bonds for the construction or expansion of our State’s prisons, jails and re-entry centers and marks the largest prison construction scheme in human history.
In May the U.S. Supreme Court issued a ruling in a lawsuit against the state involving deadly prison overcrowding. Specifically, the court upheld the ruling of a federal three-judge panel requiring California to reduce overcrowding in its prisons from nearly 200% to 137.5 % of its "design capacity" within two years. The court's decision will almost certainly result in some of the most dramatic changes to the state's prison system in decades. So far, the state's plan for reducing the prison population relies heavily on shifting prisoners from state lockups to county jails, transferring more people to out-of-state private prisons, and building thousands more prison and jail cells.
As we see it, we could continue down this scary, shortsighted path and waste billions of dollars on prison and jail construction to comply with the Supreme Court ruling. But where will this end? How will we pay for the long-term operating costs? And what about the social costs? Will education, health and human services and our shrinking social safety net continue to be jeopardized to cover the bill for mass imprisonment?
The Supreme Court order and our growing budget crisis provide our state with a unique opportunity to change our approach to public safety. Instead of continuing to push forward these unnecessary and costly prison and jail expansion projects, now is the time to look to these other states that have safely reduced their prison populations by implementing basic and modest parole and sentencing reform. The nonpartisan Legislative Analyst's Office bolstered that argument after releasing a report recommending that California reconsider its costly construction program.
A place to start would include amending or repealing three strikes law, expanding medical parole, utilizing compassionate release, paroling elderly prisoners and reforming non-violent property and drug sentencing laws. Recent polls show the majority of Californians support these simple solutions. However out of touch our Governor and other lawmakers seem to be, we’d wager that Californians would be willing to take even greater steps against further prison crisis. If we want the safe and healthy California we all deserve, we need to make smart, long-lasting decisions that put our state back in a position of national leadership.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Emily Harris is the Statewide Coordinator for Californians United for a Responsible Budget. Isaac Ontiveros is the Communications Director for Critical Resistance.

Pelican Bay Hunger Strike, Day 2: Parole, Snitch, or Die

2011-09-27T14:01:00.000-07:00

Yesterday's panel on the Pelican Bay hunger strike featured, among other speakers, the impressive and insightful Keramet Reiter, a PhD candidate at UC Berkeley whose dissertation examines the history and development of the supermax. Reiter's piece Parole, Snitch, or Die, is a concise history and thorough analysis of California's supermax prisons and their discontents. It makes for an excellent read and I can't recommend it enough. Using a combination of quantitative data and interviews with CDCR officials, Reiter lays out the process against which the inmates are protesting: the little-studied process of paroling through "snitching" and debriefing.

While, initially, at inception the idea behind the supermax was to handle prison violence by removing gang leaders from general population, this design has gone wrong. There is no evidence of a decline in violence as a result of using supermax incarceration and/or SHU units. Moreover, the isolation was never intended to become indefinite. However, Reiter's data suggests that "many supermax terms are indefinite, providing few ways out, and. . . the average term is longer than eighteen months at Pelican Bay." While the maximum lengths of stay in the SHU have declined between 2005 and 2007, the average length has steadily increased.

From its inception, Pelican Bay raised concerns that it would be excessively used. Today, inmates with gang ties are indefinitely assigned to the SHU units. The definition of gang membership is loose and vague, and therefore "the validation process is rather discretionary; any documentation of potentially illegal group activity could lead to gang validation." Disciplinary offenses, leading to definite terms at the SHU, can range from attempted murder to spitting on an officer.

Has lockup at the SHU reduced violence? Not necessarily, as the data suggests. In fact, comparing levels of violence in Pelican Bay and Corcoran with that of other high-security institutions without supermax units suggests that "the supermax units might actually be aggravating problems with violence."

There's a lot more in the piece and I recommend reading it in its entirety. We will continue reporting on the supermax, solitary confinement, and the strike, for the weeks to come.

Pelican Bay Strike, Day 2

2011-09-27T13:32:00.000-07:00

This morning's Democracy Now (full show above) covered the Pelican Bay hunger strike; coverage begins at approx. 8:25.

Food and Nutrition in Correctional Institutions

2011-09-27T11:39:00.000-07:00

You're all invited to join us for a special event on Food Day, Oct. 24, 2011, at UC Hastings. If you're interested in food and social justice, especially in the context of prisons, that's the place to be!

The UCSF / UC Hastings Consortium on Law, Science & Health Policy is sponsoring a conference entitled “Food Deserts: Legal, Social and Public Health Challenges” on Food Day, October 24, 2011 with keynote speech by Dr. David Kessler, former Commissioner of the FDA. The conference will bring together scholars from the health sciences and the law, as well as policymakers, activists, and food industry members, to discuss two important aspects of “food deserts,” places where access to a nutritionally-adequate diet is severely restricted.

One panel, "Nourishing Our Neighborhoods: Insights from Law, Planning, and Industry," will cover the broad issue of geographical food deserts, usually urban areas inhabited by mostly-poor people whose transportation and finances are limited, where food sellers are predominantly small stores that cannot stock a wide variety of fresh food items, and where full-service grocery stores hesitate to locate. Are there policies (such as those in zoning rules) that could be changed to enable oases in these food deserts? What impact does, for example, the addition of a full-service grocery store have on the health of the neighboring area?

Another panel, "Food and Nutrition in Correctional Institutions," will consider issues relevant to prisons and jails. While food offerings must meet certain basic caloric and nutritional requirements, the institutional nature of food preparation and food service might make that food less than appealing, and the healthier elements of meals might well be those not regularly or fully consumed. The supplemental food offerings – those for sale in these institutions – are not likely to be nutritious. Some research suggests that improved nutrition in prisons leads to improved penal outcomes. If that is so, what policy changes should be implemented? Would such changes be cost-beneficial, considering penal outcomes and the government’s responsibility for health care of prisoners?

Our panelists for the prison panel will include doctors, legal scholars, CDCR personnel, and people running organic garden programs in prison. It's going to be a fascinating panel.

At 5 pm, Dr. David Kessler, former Commissioner of the United States Food and Drug Administration and Professor of Pediatrics and Epidemiology and Biostatistics, UCSF, will give the keynote address on The End of Overeating.

The event is free and open to the public, but requires registration. We will be offering CME and CLE credits for attending doctors and lawyers, respectively.

RSVP through the UCSF/UC Hastings Consortium or
RSVP through the Food Day website

Pelican Bay Strike Panel Opening Remarks

2011-09-26T18:32:00.000-07:00

Today's panel on the Pelican Bay hunger strike was well attended and prompted some interesting discussion. A few people emailed asking me to post my opening remarks on the blog.

Good afternoon,

Don’t you know? Talking about a revolution, it starts like a whisper. But this panel is much more than a whisper. It is a strong, loud cry against a dehumanizing, cruel incarceration regime that demeans our society in its entirety. To shed light on these practices, a number of Hastings student organizations have invited former inmates, family members of inmates, and legal professionals, who will discuss this afternoon one of the most exciting and electrifying instances of protest against the evils and inadequacies in our correctional system.

The strike started, and is resuming, at a momentous time in American criminal justice and in California in particular. The State of California is still reacting to the Supreme Court’s decision in Brown v. Plata, affirming a federal three-judge panel decision that population reduction is the only way to combat a prison medical system beneath minimal constitutional standards.

As impressive as the Plata decision is, I suspect several broader developments created the fertile ground upon which it sprouted. For many years, it would be very hard to envision a Supreme Court with this political composition approving such an order. Prisons have been, for decades, invisible cities, out of the public mind and eye, and what happened within them, be it cumbersome ineffective rehabilitation programs or plantation-style farms rife with racial cruelties, interested very few people beyond practitioners and scholars. Supermax institutions and SHU units were particularly immune to critique, because for very long—too long—the public was kept in the dark about the realities within walls, and when these institutions did make headlines, the public was told that the people held there for 22 and a half- hour days in isolation were subhuman, violent beings who deserved such treatment. Ironically, solitary confinement was one of the first incarceration practices used in the early penitentiaries of the 18th and 19th centuries. The solitude was designed to make inmates engage in penitence and reflection. The practice has remained as extreme and harmful as it ever was, but it changed in two important ways. First, the rationale for solitary confinement is no longer penitence and rehabilitation, but mere incapacitation and risk management. And prison sentences today are exponentially longer than they were in the early days of prisons. These two factors – the growing disinterest in reform and change, and the extended periods of time in which people are subjected to solitary confinement – make this practice even more perverse now than it was at its inception. Social scientists researching the effects of such regimes are on agreement regarding the immense harm of placing humans in
solitary confinement.

In reigniting the fire of protest against the deplorable conditions at SHU units, about which you will soon hear from our panelists who have experienced them as inmates, supporters, and family members, Pelican Bay inmates join an honorable tradition of inmate-initiated struggle and reform. A month ago we celebrated the 40th anniversary of the Attica uprising, a defining moment in criminal justice politics. In the 1960s, Fred Cruz and his friends in Texas penitentiaries brought the Texan correctional giant to its knees and dismantled a cruel, dark system through habeas writs written on smuggled toilet paper. And in California, the radical prison movement, beginning with Caryl Chessman’s writings and continuing with Malcolm X, Angela Davis, and George Jackson, has generated attention to the cause of inmates. Most recently, inmates in Georgia engaged in a strike against cruel, inhumane correctional practices; the system they raised their voices against is the same system that, last week, executed a probably innocent man. The execution of Troy Davis made millions of people rise in support and decry an outrageous miscarriage of justice. It is possible to make allies against inhumane regimes that exceed what is psychologically and humanly tolerable. The strength of nonviolent protest coming from people whom the public has been accustomed to read about as subhuman, violent beings engaged in rioting and cruelty, is overwhelming.

Some feel that the time for such activism has passed; that the 1960s and 1970s presented a unique moment in American history, in which civil rights movements and the Warren Court created the perfect storm for radical prison movement. For many decades since, the combination of law-and-order political rhetoric from actors across the entire political spectrum, and managerial warehousing practices infected with rampant profiteering and privatization, created a reform-resistant wall. But, as I mentioned earlier, this is changing before our very eyes. We live in extremely difficult financial times. The public is attentive to the message that our out-of-control correctional monster is financially unsustainable. The practices that Pelican Bay inmates are protesting are the product of a hungry, ever-expanding carceral world that we can no longer afford—morally, organizationally and financially. Public opinion is changing and, have no doubt, decisionmakers are listening and responding. The state is currently engaged in a process of realignment, shifting much of its prison population from state prisons to county jails. The parole system is under revision. And, for the first time in forty years, last year the U.S. prison population decreased. These dramatic changes cannot be underestimated.

This act of protest is, therefore, occurring at a unique historical moment in which taxpayers, practitioners and officials may be more open to the possibility of reform advocated for through nonviolent means. It is, therefore, lamentable that the July hunger strike received so little media coverage in mainstream newspapers. But we are here to change that. Our hosts this afternoon are taking an important step to change this and break the silence.

Audience members may disagree about the dangers of violent crime and the means to fight it. If you are agnostic about the merits of this hunger strike, thank you for coming here this afternoon with an open mind willing to become informed aboutthis side of the debate. Listening to the people who are the most disenfranchised and the least listened to in the American political arena is an important experience. And if you are convinced that this way of doing things must be abolished, that solitary confinement and debriefing should end, thank you for coming here today to do something about it. Finally, the tables are starting to turn.

I wish you all an interesting and informative afternoon.

if only

2011-09-26T13:16:00.000-07:00

Our friends in New York are "reporting" that
California to Allow Prisoners to Serve Sentences Online

Today! Panel on the Pelican Bay Hunger Strike

2011-09-26T07:38:00.000-07:00

This afternoon we will hold a panel at UC Hastings, organized by numerous student associations, on the Pelican Bay hunger strike, which resumes today. The panel is free and open to the public.

Where: UC Hastings, 198 McAllister Street, San Francisco, CA - at the LBM lounge in the ground floor

When: Monday, 3:30pm-5:30pm

Who:

Marilyn McMahon (Prison Focus)
Keramet Reiter from UC Berkeley, whose dissertation examined the emergence of the superman
Marie Levin, family member of SHU inmate
Dorsey Nunn (Legal Services for Prisoners with Children, All of Us or None)

Caitlin Henry will moderate and I'll make opening remarks. We hope to see you there. If you're a blog reader, come by and say hi.

Troy Davis and the Civilizing Process

2011-09-22T21:45:00.000-07:00

What could possibly be left to say on the aftermath of Troy Davis' execution? Words on the evil of the death penalty? On innocence and guilt and doubt? On the inability of the law enforcement mechanism to accept the possibility of mistake? Just in case you missed some of the commentary, here were my favorite picks:

Yesterday, my criminology students and I discussed Norbert Elias' The Civilizing Process. Written in 1939, the book was forgotten for several years as Elias' career was derailed by the second World War. A Jewish European scholar, Elias worked in exile and relative obscurity until he arrived in England, where he resumed an important place in the sociological universe. Still woefully undeacknowledged among the pantheon of sociological giants, Elias' work deserves much praise and recognition.

In The Civilizing Process, Elias argues that the 18th century was a "watershed" time that saw a profound top-down change in European society: From a society of knights to one of courtiers. This change, the reaction to the formation of the modern centralized state, was accompanied by a profound change in etiquette and social sensibilities, including the development of various subtleties in interpersonal interaction, table manners, bodily functions, and the like. Among other things, says Elias, our bloodthirstiness and daily exposure to violence have decreased. While life in the middle ages included a daily unmitigated experience of violence and a relishing of violence, we came later to see it as distasteful.

Much of Elias' theory has been confirmed by later studies. Indeed, the rate of violent crime, especially homicide, has been repeatedly proven to have declined in the last few centuries. One explanation for the decline of violence is that the centralized state came to resume the functions of violence usage as proxy for citizens, and those, in turn, became more sublimated, more docile, and more amenable to its power and thus less violent on their own initiative (the increased regulation and decrease in the use of duels is a case in point.)

But the state changed its practices, too. Following Elias, excellent Dutch historian Pieter Spierenburg's The Spectacle of Suffering points out the change in how executions were carried out in Europe. The "watershed" years, and the years to follow, saw fewer and fewer executions, and a marked toning-down of the pomp and circumstance that surrounded them. According to Spierenburg, the society of courtiers increasingly lost its taste for public corporal rituals and moved away from them.

So, what do we have now? Perhaps the ultimate sublimation: An execution that is nothing more than a sad coda to years of quiet confinement and increasingly technical litigation. Conducted away from the public eye, its only witnesses are those closest to the case--the offender's family and the victim's family--arguably the parties who retain some of that pre-civilizing, raw connection to the act and the social connection. The story is mitigated by its sanitized media coverage. As Austin Sarat argues in When the State Kills, the coverage removes our visceral connection to the violence we delegated to the state; and as Frank Zimring argues in The Contradictions of American Capital Punishment, it masks its origins in lynching and public relishing of violence.

The true strength of the protest in Troy Davis' case was in breaking this boundary of sublimation and sanitation. Millions of people around the world were moved by Davis as a symbol of human suffering. They did not fail to recognize this act for what it is, even when carried out away from the public eye and using advanced chemicals, needles and machines. They saw the racial overtones and origins of the practice and the way they played out in this particular case; and they did not shy away from expressing their utmost distaste with it and the deep ways in which it offended their sense of justice. Distressing as this was--an unsatisfying coda to the tragic death of Mark McPhail, who deserved a better police force and a better inquiry as to his slaying--the public reaction, a vehement expression of our distaste for the modern "machinery of death" and ability to see it for what it is, was an important moment in American history, whose ramifications may bear fruit in the ballot box and in the courtroom.

------
Props to my Theoretical Criminology students, whose commentary yesterday prompted much of this post.

BREAKING NEWS: No Reprieve for Troy Davis

2011-09-21T20:14:00.000-07:00

The Supreme Court rejected Troy Davis' last minute appeal for a delay. The New York Times reports:

The United States Supreme Court rejected a last-ditch request to step in late Wednesday to stay the Georgia execution of Troy Davis, who was convicted of gunning down a Savannah police officer 22 years ago, after Mr. Davis filed an eleventh-hour plea Wednesday with the high court.
His execution, by lethal injection, had been set to begin at 7 p.m., but Georgia prison officials waited for the court’s decision late into the evening. It took the court more than four hours to issue its one-sentence order.

This is a dark day for truth, justice, mercy, and the appellate process. Thank you to everyone who signed petitions, emailed, shared information about the case on social networks, and offered help through Amnesty, the NAACP, and other organizations. May this be the last time a probably innocent person is put to death.

Prison Hunger Strike Panel at UC Hastings

2011-09-21T17:50:00.000-07:00

The Hastings Race and Poverty Law Journal, with Hastings Prisoner Outreach, La Raza Law Students Association, Black Law Students Association, Hastings National Lawyers Guild, Hastings Students for Sensible Drug Policy and Hastings Criminal Law Society are organizing a panel on the upcoming Pelican Bay hunger strike.

When: Monday, September 26, 3:30-5:30pm
Where: UC Hastings, the LBM Lounge, 198 McAllister Street, San Francisco, CA (ground floor)

Speakers will include attorneys that have been working with the Solidarity Coalition to support the strikers, family members, and formerly incarcerated people. Yours truly will give opening remarks.

The event is free and open to the public.

BREAKING NEWS: Last Minute Appeal in Troy Davis Case

2011-09-21T17:46:00.000-07:00

In a last minute appeal that many did not think possible under post-conviction remedy law, Troy Davis has just filed an appeal with the Supreme Court.

Lyle Denniston from SCOTUSBlog comments:

Six months after the Supreme Court previously refused all attempts to stop the execution of Georgia inmate Troy Anthony Davis, his lawyers on Wednesday filed a new plea seeking to head off the state schedule to put him to death Wednesday evening. . . [i]n urging the Justices not to delay execution any further, the state Wednesday evening said that Davis’s lawyers had waited too long to challenge an execution that had been scheduled 15 days ago.

The brief (read it in full here) asks for a delay so that a writ of certiorary can be filed that will point out "substantial constitutional errors." It argues that "newly available evidence reveals that false, misleading and materially inaccurate information was presented at his capital trial in 1989, rendering the convictions and death sentence fundamentally unreliable."

The state's reply (read it in full here) is that Davis' appeal "presents no new evidence or argument."

-----
Props to Billy Minshall for alerting me to this development.

CCC'S 3rd Birthday

2011-09-21T08:03:00.000-07:00

This week, the CCC Blog celebrates its third birthday. Inaugurated in Fall 2008 anticipating our 2009 California Correctional Crisis Conference, we started covering the then-in-progress litigation in Plata v. Schwarzenegger, which this year became Brown v. Plata. We provided a full analysis of the Supreme Court decision here and here.

This year was a momentous occasion in California corrections. The state is struggling to comply with the Plata decision and is behind schedule. It has also been a momentous year in terms of humonetarianism (the practice of leniency and moderation in corrections initiated by budgetary cuts). Humonetarian discourse is characterized by a bipartisan focus on costs and financial prudence as a reason to promote criminal justice reform. To battle overcrowding as well as comply with Plata, the state is actively pursuing realignment, shifting inmates from state prisons to county jails, thus ending what Frank Zimring refers to as the "correctional free lunch" (county sentencing, state budget). Different counties are adjusting to the change in different ways, and realignment has important implications for juvenile offenders and for female inmates. Oh, and we followed several legislation initiatives: Prop 19, "control, regulate and tax marijuana", which failed at the ballot, and the San Francisco sit/lie ordinance, which passed. We've just started covering this year's crop, complete with a death penalty abolition proposition, a proposition to amend Three Strikes, and SB9.

We also occasionally looked beyond the California border. This year we examined out-of-state incarceration in Hawai'i, CCA's complicity in the passage of deplorable SB1070 in Arizona, some other fresh Arizona horrors, and we tried to stop the upcoming execution of probably-innocent Troy Davis in Georgia.

Some of the biggest news are occurring this summer. The inmates at Pelican Bay started a hunger strike in July, protesting their dubious profiling as gang members and cruel isolation confinement conditions. They will renew their hunger strike as of September 26 and need your support. Vigils are planned for Thursdays at 5-7pm, in the following locations:

- Sep. 29th: 14th & Broadway, OAK
- Oct. 6th: UN Plaza, SF
- Oct 13th: 24th&Mission, SF
- Oct. 20th: Fruitvale, OAK

Also, Prison Focus will be holding a special event about the strike at UC Hastings, which we will advertise separately.

Finally, we covered a much-hoped-for release of three innocent men, rogue meth-dealing motorcyclist professors, and the distressing news that statistical analysis suggests that the victim participation law did not increase victim participation.

The CCC blog thanks you for your continued support and readership. Please continue reading us, writing to us, following us on Facebook and Twitter, and keeping abreast of the impact of the financial crisis on the American and Californian correctional landscape. What we are is up to you!

Are Gang Members Special? From the California Supreme Court to Pelican Bay

2011-09-20T20:01:00.000-07:00

This month the California Supreme Court, presiding at UC Hastings, heard oral arguments in People v. Vang, an assault case involving gang expert testimony. Under California sentencing laws, a gang sentencing enhancement requires the jury to decide whether the defendant committed the offense to benefit the gang. Evidence to this effect is often presented through the testimony of gang experts, usually police officers, who testify as to the norms and practices of gangs in general and the gang in question, to show whether a given defendant’s behavior falls in line with gang-related behavior. In Vang, the prosecutor asked the cop/expert two detailed hypothetical questions based on the facts of the assault according to the evidence, then asking the expert whether an assault under such facts would be gang related. By doing so, argued the defense, the prosecutor thinly disguised questions regarding the actual defendants’ behavior as hypothetical scenarios, effectively substituting the testifying cop/expert’s logic and common sense for the jury’s. The government, on the other hand, argued that it would be difficult to define permissible questions that are abstract enough to require the jury to make a “logical leap” and independently assess the perpetrator’s mens rea, while only being provided with guidelines from the cop/expert about the impact of gang membership on the development of such mens rea.

Setting aside the important criminal justice question of the merits and pitfalls of treating police officers as supposedly impartial ethnographers and gang experts—this practice is, by now, modus operandi in California courts—I would like to suggest that there is an even more fundamental issue at the root of Vang: The assumption that gang members are fundamentally different from other people; that their behavior is governed by special rules inaccessible through common personal experience; and, therefore, special knowledge is required to make sense of them and interpret their lifestyle to the ordinary jury member. This assumption did not originate with modern gangs; it is approximately 150 years old.

In 1865, a doctor named Cesare Lombroso wrote the first medical criminology book, titled L’Uomo Delinquente (“The Criminal Man”). Lombroso’s premise, a novelty at the time, was that criminals were innately different from law-abiding citizens, and predisposed to commit crime by virtue of being “atavistic”, that is, “stuck” in a less-developed evolutionary phase. Lombroso gleaned this predisposition from a series of medical findings involving the measurements of inmates’ skulls (based on the then-popular science of phrenology), their bodily and facial features, tattoos, handwriting, and laughter patterns. Pages upon pages of the book included photographs showing the common features of criminals and distinguishing these “special” features from those of ordinary people.

In the years since 1865, we have come to reject Lombroso’s “science”, both in itself and as a measure for establishing criminality (not before making a lamentable detour into the territory of eugenics for several tragic decades). However, the idea that criminals were special, or somehow different from law-abiding citizens, persisted. Much of the criminology of the early 20th century consisted of ethnographies and observations of criminal groups under the assumption that lack of privilege, living in a given neighborhood, or having a certain subset of role models shapes a unique human being, predisposed to commit crime. This literature—much of which was, admittedly, incredibly helpful for understanding phenomena such as juvenile gangs—suggests that, while some human beings are within the realm of the knowable through common sense and life experience, others cannot be understood without the benefit of special expertise.

Today’s California gang members are the new Lombrosian criminals. To curb criminal gang activity, we have adopted special sentencing rules and uniquely oppressive correctional practices. This special treatment goes beyond the mere development of special investigation practices, evidentiary rules and penal technologies; it includes the development of a new body of knowledge that regards gang members as special, their lives and behavior beyond the reach of ordinary human common sense. But we have done more: By examining gang practices as special and unique, through the lens of clinical expertise, we have relegated gang members to the status of incorrigible specimens, who can only be studied, controlled, governed, and suppressed through special, dehumanizing technologies.

The perversity of this approach is evident these days, as the Pelican Bay inmates plan on renewing their hunger strike on September 26th. The hunger strike, which lasted for 21 days in July and received woefully little media coverage, aimed at changing the correctional policies involved in incarceration at the Security Housing Units (SHU) in Pelican Bay. When inmates are identified as gang members, they are subject to a penal regime that consists of complete isolation for 22 ½ hours a day in tiny cells, their only companion often the blearing sound of a television set. Their daily respite from years of solitary confinement is a 90-minute outing in a barren exercise pen surrounded by 15-foot-high concrete walls and a limited sky view. The entrance ticket into the SHU consists of being identified by prison authorities as a gang member, placing the burden of “debriefing”—disavowing and disproving gang membership—on the inmates themselves, most of whom never find their way out of the SHU. Despite consistent findings by social psychologists about the immense, irrevocable harms of subjecting human beings to a regime of isolation, and despite a federal judge’s comment in 1995 according to which such practices “hover on the edge of what is humanly tolerable”, courts have consistently found SHU incarceration practices constitutional.

To add insult to injury, during the July Pelican Bay hunger strike CDCR officials went on record discrediting the strike because it is “led by gang leaders.” This argument is the epitome of Lombrosian thinking. It implies that the public is to disregard the merit in the striking inmates’ claims against the dreadful conditions of their confinement merely because they are (suspected to be) gang members or led by gang authorities. Why would the arguments against solitary confinement and its devastating effects on the human psyche be any less valid just because the humans making them, and subject to them, happen to be (suspected of) belonging to gangs?

Indeed, gangs are unique organizations. So are corporations, hedge funds, motorcycle clubs, cults, schools, military units, and academic departments. Crime has occurred in each and every one of these contexts, and while criminal decisionmaking has required an explication of the social setting for the crime, it has not deprived us of the sense that juries are capable of understanding these microcosms of human experience. Nor has it implied that any of these settings rightfully denies its participants of human status. While belonging to a subculture has important implications as to a person’s behavior, social context, and range of choices, it does not deny the person’s humanity, relegate his or her behavior to a place beyond the realm of the logically accessible, or make him or her less worthy of basic necessities and rights. Gang members may be more difficult to explicate—and empathize with—than people whose lives more closely resemble that of the average jury member, but they are people, just like prosecutors, jurors, and prison officials. As such, their lives are not completely beyond the realm of reasoning, understanding, and empathy. As we follow up on the upcoming hunger strike, we would do well to educate ourselves on the merits of the inmates’ demands and remember that the measure of a society is the dignity with which it treats its weakest members.

Early Releases for Female Inmates

2011-09-15T16:46:00.000-07:00

As reported on Forbes online (by the Associated Press):

More than 4,000 female inmates in California could qualify to serve the rest of their sentences at home, as state officials begin complying with a law designed to keep children from following their parents into a life of crime.

The alternative custody program is for less serious offenders. Qualifying inmates must have less than two years left on their sentences, which would be completed while they are tracked by GPS-linked ankle bracelets and report to a parole officer.

. . .

About two-thirds of the 9,484 female inmates in California's prison system are mothers whose children are currently with relatives or in foster care, though many of those women won't qualify for alternative custody.

About 45 percent of the state's female inmates potentially qualify for the program under the law former Gov. Arnold Schwarzenegger signed last year.

Those convicted of sexual offenses are not eligible. To win release, inmates also must compete for a limited number of rehabilitation programs offered by nonprofit and community organizations.

That will sharply reduce the number of women actually freed, said Dana Toyama, a spokeswoman for the California Department of Corrections and Rehabilitation. With no state money for the program, the community organizations are offering services to as many inmates as they can handle for free.

Case managers will determine if qualified inmates have family support, a suitable home and transportation, and are enrolled in drug rehabilitation, anger management or other programs, Toyama said.

""It's not like we're just putting them out in the community and saying good luck," she said.

The inmates can go to a home, a residential substance-abuse treatment program or a transitional-care facility. Those who complete rehabilitation programs can earn extra time off their sentences.

Women account for less than 6 percent of the nearly 161,000 adults in California prisons. Toyama said men could one day be included in the early release program as the department looks for ways to save money and seeks to comply with the federal court order to reduce its prison population.

The program could save the state $6 million in reduced prison costs next year. No inmates are likely to be released for at least 30 days because the department must first notify local law enforcement.

However, Toyama said the entire program could be short-lived because of a more sweeping law that takes effect Oct. 1.

Under Gov. Jerry Brown's prison realignment plan, tens of thousands of lower-level criminals who otherwise would go to state prisons will instead be sentenced to county jails and rehabilitation programs if they are convicted after that date.

Six Days Till Troy Davis is Executed

2011-09-15T09:52:00.000-07:00

Today, CNN features the excellent video above on Troy Davis' case, including interviews with the victim's family and with a juror from the original trial. It also provides a rich background on the racial overtones of the case. The plot is thicker and murkier than it appeared on the newspaper coverage, and this piece does a good job of exposing it.

Do something:

NAACP petition to the original prosecutor
NAACP petition to the Georgia Department of Parole
Legal Professionals petition
Religious Leaders petition

As a coda, I want to offer a thought experiment. Having read plenty about this case, I am fairly convinced that Davis is factually innocent. But if he were guilty - and he's been in prison for the last two decades, scheduled for execution four times - does all that not count as punishment for homicide? The problem with our administration of the death penalty is that it is not merely execution; it's life imprisonment under atrocious conditions with an execution thrown in at the end as a coup-de-grace for good measure. It is an unconscionable system.

So, fight for Troy if you believe, as I do, that he is innocent; and I do hope you come to that conclusion upon learning more about the case. But think on whether this system makes sense for guilty people, too.

Tomorrow: Open House and Petition for Troy Davis, My Office

2011-09-11T06:33:00.000-07:00

An execution date has been set for Troy Davis: September 21 at 7:00pm EST.

Davis has repeatedly said he did not kill MacPhail, and seven out of nine witnesses who gave evidence at his trial in 1991 have recanted or changed their testimony.

No murder weapon was ever found, no DNA evidence or fingerprints tie him to the crime, and other witnesses have since said the murder was committed by another man -- a state's witness who testified against him.

The case has became internationally famous as the face of what critics call a corrupted justice system in the US deep south, with an innocent black man wrongly and hastily convicted of killing a white officer.

Tomorrow I will be holding an open house for Troy Davis at my UC Hastings office, Room #328, at 200 McAllister Street, San Francisco. I'll be in 9:00am-12:00 noon and 1:00pm to 5:00pm. Step in and we can chat about the case. Sign petitions to the Georgia Parole Board and to the Governor of Georgia. Talk about wrongful convictions in general and what they mean for the struggle against the death penalty. Everyone is invited.

Today: Attica Uprising Anniversary

2011-09-09T10:51:00.000-07:00

Today is the 40th anniversary of the Attica prison uprising. The New York Times features a nice opinion piece by Heather Ann Thompson highlighting the importance of this event.

In 1997, the inmates were awarded damages for the many violations of their civil rights and, though the state fought that judgment, in 2000 it had to pay out a settlement of $8 million. In 2005, the state reached a settlement with the guards and other workers for $12 million. The vast majority of the inmates and guards got far less than they deserved.

Despite having to pay damages, 40 years later, the State of New York still has not taken responsibility for Attica. It has never admitted that it used excessive force. It has never acknowledged that its troopers killed inmates and guards. It has never admitted that those who surrendered were tortured, nor that employees were misled.

We have all paid a very high price for the state’s lies and half-truths and its refusal to investigate and prosecute its own. The portrayal of prisoners as incorrigible animals contributed to a distrust of prisoners; the erosion of hard-won prison reforms; and the modern era of mass incarceration. Not coincidentally, it was Rockefeller who, in 1973, signed the law establishing mandatory prison terms for possession or sale of relatively small amounts of drugs, which became a model for similar legislation elsewhere.

This is particularly timely and poignant in light of the renewal of the Pelican Bay hunger strike.

And today at 7pm, a restored version of the 1974 film Attica will be shown at 518 Valencia St.

More details here.

Pelican Bay Hunger Strike: Volunteers Needed

2011-09-09T10:46:00.000-07:00

As we reported a short while ago, plans are in place for the Pelican Bay inmate hunger strike to resume as of September 26. Volunteers are needed to travel to Pelican Bay (in Crescent City, CA) to visit hunger strikers in the coming weeks. The trip takes three days- and legal visits are conducted between Tuesday and Friday.

More background on the strike here.

If you are interested contact Marilyn McMahon, at marilyn@prisons.org, for an email with details.

Fees for Inmate Visits in Arizona?

2011-09-06T09:07:00.000-07:00

Here's a twist on the cost savings angle that left me stunned and speechless this morning: The Arizona Department of Corrections plans on charging $25 for visiting inmates in its correctional institutions.

Yes, I know. I had to do a double-take as well. But here it is, large as life, in the New York Times:

New legislation allows the department to impose a $25 fee on adults who wish to visit inmates at any of the 15 prison complexes that house state prisoners. The one-time “background check fee” for visitors, believed to be the first of its kind in the nation, has angered prisoner advocacy groups and family members of inmates, who in many cases already shoulder the expense of traveling long distances to the remote areas where many prisons are located.

Beyond the obvious commentary - what a mind-boggling limitation on the budget of already impoverished families and friends of inmates, what an imposition on top of travel to distant locations, what a hindrance to rehabilitation and reentry by way of alienating inmates from their support system - this makes one think of Mona Lynch's excellent Sunbelt Justice, which we reviewed here a while ago. Arizona has always been big on doing things on the tough-and-cheap. Like Texas, and unlike California, Arizona prisons were originally fashioned like farms and produced revenue based on inmate labor; both Texas and Arizona correctional officials used to mock the cumbersome, expensive rehabilitative apparatus ran in California.

Of course, since those days, the Arizona apparatus has grown large and cumbersome, and as opposed to California, very much enmeshed with Correctional Corporation of America. But the heritage is still there, which explains how the legislature can even come up with such ideas. As disturbing as the state of incarceration is in California, I doubt our legislators would initiate this idea. Mass hysteria, unmitigated punitivism, case-specific sentencing laws following redball crimes, yes. Cynical savings of this ilk, no.

Activist Humonetarianism: Californians United for a Responsible Budget

2011-09-05T22:10:00.000-07:00

More on utilizing the cost argument to fight for the cause of prison reform: Californians United for a Responsible Budget are an Oakland-based organization formed in 2003 to fight overcrowding. Among their activities is fierce opposition to AB 900 and staunch support of SB 9.

I really recommend spending some time on the CURB website. It's a prime example of marshaling the cost argument as the rhetorical spearhead in the fight against overcrowding.

Hunger Strike to Resume September 26

2011-09-04T04:21:00.000-07:00

As reported last month on KQED (click above for report), CDCR is reconsidering its isolation policy at SHU units. But according to an open letter by Pelican Bay inmate Mutope Duguma to the Bay View, plans are in place for inmates to resume their hunger strike beginning September 26.

We had our last and final meeting with Undersecretary Scott Kernan on Aug. 18, 2011. Sitawa and the rest of the negotiators were very disappointed with the outcome because the undersecretary’s horns came out for real!

All the same, we are going forward with our indefinite hunger strike, which will start on Sept. 26, 2011. We know they probably have manipulated some new attempt to deal with us, but what they fail to realize is that we were never playing. If these people think we are going to remain under this tortuous treatment, then they will get the body count that they seek or a bunch of hospitals filled up throughout the state.

This is the only way to expose to the world how racist prison guards and officials have utilized policy in order to torture us. And we have the material to expose them because many of us suffer from serious medical conditions or a lack of medical treatment, which we inherited right here in SHU.

This letter would suggest that the meeting with Kernan, held a day after the announcement about reconsidering the conditions, failed to satisfy the inmates. I wonder what piece of the puzzle we're missing; that is, whether the inmates were told different things than suggested in the media. Do any of our readers have any information about the new strike plans?

The Un-Othering of Crime: The Kinzey Chronicles

2011-09-03T06:10:00.000-07:00

Yesterday brought about a turn of events that puts Sons of Anarchy and Breaking Bad to shame. The newspapers yesterday and this morning were full of news about Cal State San Bernardino professor Stephen Kinzey, who is wanted in connection with meth drug dealing. The L.A. Times reports:

Photo courtesy Phil Willon, L.A. Times

The San Bernardino County Sheriff's Department on Thursday said Stephen J. Kinzey, a 43-year-old kinesiology professor, allegedly led a local chapter of the Devils Diciples Outlaw motorcycle gang and a methamphetamine drug operation that brought in tens of thousands of dollars.

Authorities arrested nine suspected mid- and street-level dealers involved in the drug ring shortly after raiding Kinzey's home, where they allegedly found more than a pound of methamphetamine, rifles, handguns, body armor, leather biker vests and other biker paraphernalia.

Kinzey remains a fugitive and is considered armed and dangerous, officials said.

This news story elicited quite a bit of witty commentary on my Facebook page, and after the laughs subsided a bit I started thinking about why this story piqued so much interest. I think the key to this is in Kinzey's father's words, quoted in the LA Weekly:

"My son is a Christian. He's a good father of a good little girl. My son doesn't drink. My son doesn't smoke. I don't get it. He's a Ph.D."

What the Kinzey story reveals is how culturally entrenched the stereotype of a black, urban drug dealer is; when encountering a white one with advanced degrees and privilege we respond with incredulity. So, what do we rely on to reinforce our confirmation bias about the way the world works? Alternative markers of crime. The story, for example, emphasizes Kinzey's motorcycle club activities, seizing (perfectly legal) leather vests with the meth and guns. It also hints at the fact that Kinzey's "live-in girlfriend" (as if cohabitation were uncommon) is a Cal State San Bernardino 2005 grad, so as to imply academic improprieties as well as criminal ones (who knows what the story there is? For all we know, they could have met after she graduated, and she might not even have taken a class with him; and anyway, it's 2011 and Robinson is 33 years old.) What these details do is provide us with some information that will trigger our culturally shared notion of the gang biker, to explain why our criminal, a university professor, doesn't fit our default mode.

Where does the connection between motorcycling and organized crime come from? For those interested in background, this 1992 CNN story provides some information, but if you're pressed for time you're better off with this excellent 2005 article by William Dulaney, which provides plenty of information on the history of outlaw clubs. The "one percenters" (a term incorrectly derived from a supposed quote after a rally, implying that only "one percent" of motorcyclists were also involved in crime) have become an iconic image in American culture. Ken Kesey's Merry Pranksters' historical meeting with the Hells Angels (and their apprehension of the latter, documented by Tom Wolfe in his classic The Electric Kool Aid Acid Test) is best understood on a background of violent, sexist biker culture, reinforced by a genre of biker films. Now, reality is not entirely socially constructed, of course. Motorcycle clubs have been conduits for organized crime, and their members have engaged in real violence that has caused real suffering to real victims. But make no mistake; white people commit crime not only on Harleys, but also in SUVs and Honda Civics and bicycles and public transportation. And organized crime occurs not only in clubs and gangs, but in corporations as well.

This is not to say, of course, that Kinzey is being framed, or that he is not involved in meth trafficking. At this point, he is a fugitive and we have not heard his side of the story; moreover, the evidence found so far would tend to support that. I merely try to point out the ways in which a newspaper story tries to paint an etiology of criminality that might explain the discrepancy between the cultural image of the young, black, urban drug dealer, by fleshing out the image of an alternative white drug dealer using less powerful, but still effective, ways to convey nonconformism, impropriety, and propensity.

Marin Interfaith Council Considers Death Row

2011-09-02T01:54:00.000-07:00

Jeanne Woodford, former Undersecretary and Director of the California Department of Corrections and Rehabilitation (CDCR), Warden of San Quentin State Prison, and current Executive Director of Death Penalty Focus, spoke about capital punishment at Marin Interfaith Council's August clergy luncheon.

By way of background, Jeanne grew up on a ranch in western Sonoma County and went to school in West Marin. So she’s a local gal. Daughter of an Italian Catholic father, she “grew up believing you took care of each other.” In 1970, within two weeks of having been graduated from Sonoma State College, she began working at San Quentin. She loved the work; she felt she was doing something positive. She remained for 26 years.

Over the course of her tenure at San Quentin, she found that the prevailing philosophy and practice of imprisoning criminals became punitive rather than rehabilitative, in spite of addition, in 2005, of the words “and Rehabilitation” to the name of the institution: California Department of Corrections and Rehabilitation. She contends that changing prison policy to one of punishment for crimes led to more recidivism and more violence.

Inmates’ chances of turning their lives around depend in large part upon their remaining a part of their family and community outside of prison. Religious communities provide some of this support, and in the case of San Quentin, its location in Marin County brings about more religious support than is available at other prisons, particularly those in more remote locations.

Although she has personally opposed capital punishment all her life, and that as an authority she was taught not to judge, as Warden of San Quentin, which houses California’s Death Row, Ms. Woodford presided over four executions. This involved leading the prison staff through preparations and rehearsals for those executions. Among other things, she went to every single cellblock – those sentenced to death each has a cell to him or herself, adding to costs associated with capital punishment – on the day of the execution.

Ms. Woodford told of us an inmate named Massey, who, tired after years of “living” in the miserable place that is Death Row with his imminent execution looming, sought a speedier execution as a form of suicide.

Each death sentence requires two costly trials: one trial is to prove guilt or innocence; the other is to determine the penalty. Jurors who serve in cases where the death penalty is being sought must not oppose capital punishment. This limits and skews the pool of potential jurors.

Capital convictions entail further expense because they carry an automatic appeal. It is these appeals that cost the state thousands of dollars. In fact, capital cases cost twenty times more than non-capital cases to pursue and bring to conclusion.

In addition, there is the possibility of a wrongful conviction. One of those so sentenced, a man named Carillo, who was convicted by no fewer than 16 eyewitnesses, later was exonerated by DNA evidence in testing that was not available at the time of sentencing. However, DNA exists in only 20% of homicide cases. How many other innocent people may have been executed? Is there any justification for executing an innocent person, no matter how convincing the evidence? No.

Eventually Ms. Woodford came to believe she could do more to effect change from without the prison system than she could from within. She now works with Death Penalty Focus for the repeal of the capital punishment.

One of the several approaches DPF is taking, under her direction, is that of identifying law enforcement personnel who oppose the death penalty. This may be easier than it would seem at first consideration. DPF will soon release a list of more than 100 names.

Another project is getting 1,400 religious congregations to publicly support the goals of DPF, the abolition of capital punishment.[1]

DPF also seeks to raise awareness of victims to seek more than retributions. Further, funds not expended on perpetuating this irreversible punishment can be put to better use in solving the 46% of homicides that currently go unsolved. I suspect that victims’ families would find some sense of relief when their loved one’s murder is solved. Then trial and the pursuit of justice for the wrong can proceed.

In her work, Ms. Woodford never encountered a family member who advocated, and witnessed, the execution of the person who murdered their loved one who achieved any sense of relief, retribution, or restoration of balance. Killing the perpetrator, which I consider to be state-sanctioned homicide, does not bring back the dead loved one. In the words of the San Diego County District Attorney, the death penalty is “a hollow promise to victims.”

I would like to see some of the people involved in this effort, particularly those who survive the murder of a loved one, come into contact with the good folks at the Worldwide Forgiveness Alliance. I know that forgiveness can be difficult to achieve. I know it’s easy for me to advocate forgiveness when I do not have the experience of having lost a loved one to homicide. But there are others who have. I know that forgiveness is not for the benefit of the forgiven, although they may benefit. Rather, it unburdens the wronged party(ies) and liberates them to go on with their lives, still honoring the memory of those they’ve lost.

Then there is the matter of exonerees. Besides the case of Mr. Carillo mentioned above, Ms. Woodford told of another inmate, a woman named Gloria Killum, who was convicted as a result of false evidence and prosecutorial misconduct. Of the more than 200 men and women in California who were convicted of serious crimes, then subsequently found to have been wrongfully convicted, six had been sentenced to death. Such groups as the Innocence Project are finding innocent people every day. The recent release of the West Memphis Three is a prime example.

Further, many studies have shown, and experts agree, that the threat of capital punishment doesn’t deter people from committing murder and other violent crimes.

Worse still, the death penalty is inequitably applied: far more minorities are sentenced to death than are Euro-Americans. When the color of the convict determines the sentence, this is not blind justice. It is not justice at all.

The recent Alarcon study concluded that the death penalty costs California $184 million a year. It costs $100,000 more per inmate to house those sentenced to death than it does for non-capital inmates. There are presently 714 people, 15 of whom are women, living on Death Row. A psychiatric social worker has to visit each inmate every day, which increases the cost.

Funding of the DoCR accounts for 11% of the state’s General Fund; it used to be only 5%. By abolishing the death penalty, California could save a billion dollars in only five years. Think of the many ways that kind of money could be used. It could put more cops on the streets. It could be used to solve crimes. It could be used for education and after-school programs, giving at-risk youth knowledge and skills so they have a better chance at success in their lives. Accomplished, learned, self-assured people have more hope and less despair, and are less likely to be lured into lives of violence.

I would prefer that we as a society explore the notion of restorative justice. Although an exploration of the concept and application of restorative justice is beyond the scope of this entry, I encourage readers to consider it.

After Ms. Woodford’s talk, we engaged in conversation at our tables. One of the topics at my table was the matter of justice, fairness, and retribution. We discussed the differences, what each meant. I see crime as a rent in the fabric of society, one that needs to be mended. We need to rebalance “wrong” with “right,” to reweave the cloth into a whole again.

To be fair, MIC provided the opportunity for a member who supports the death penalty to rebut Ms. Woodford’s claims. The Rev. Rob Geiselmann, brave soul that he was in that company, spoke of freedom, of liberty being on a part with life. He contended that society needs to feel a sense of public justice.

Although last week a bill proposed by Sen. Loni Hancock (D-Oakland) to put the death penalty on the California ballot was defeated, we should not take this as a final defeat. We need to keep putting forth measures to abolish capital punishment in the State of California until they are approved. Then voters, the majority of whom polls show do not support the death penalty, can put this shameful and dishonorable practice in our past.

It is programs such as this put on by my local interfaith council that inform, enrich, and provoke us to think and rethink previously held opinions that make interfaith work so satisfying and worthwhile. I encourage other groups, whether they are interfaith organizations or any other kind, as well as individuals, to consider sponsoring such talks. I’m confident that Jeanne Woodford would make time for you in her busy schedule.

* * * * *

Aline O’Brien, aka Macha NightMare, is a Pagan presence in Marin Interfaith Council, where she serves on the Justice Advocacy Team. http://besom.blogspot.com/

[1] If I had a formal congregation of my own, I’d gladly sign such a statement. As it is, the Covenant of the Goddess, the religious organization of groups and individuals I represent in the interfaith arena, is too diverse to achieve unanimity on this issue.

Realignment in Alameda

2011-09-01T14:04:00.000-07:00

Read this interesting interview with David Muhammad, the Chief Probational Officer for Alameda County. Seems like his heart is in the right place, and he's doing some serious thinking on how to make this work. This can be a big success if agencies follow Muhammad's example, rather than be pulled into the realignment plan kicking and screaming.

On October 1, California will move 848 prisoners from state prisons to Alameda County jails to finish their sentences. The county anticipates an additional 47 new inmates each month after that.
Also, any low-level parolee from Alameda County who violates their parole will go to county jail instead of back to the state prison where they served their sentence.
Once realignment is in full swing, the county expects 267 more people in jail on any given day than are serving time there today.

. . .

Sergeant J.D. Nelson of the Alameda County Sherriff’s department said they have the space for the new prisoners in county jail. But they still need the additional state funds for new inmates. “You need to be provided with money,” he said, “to feed and clothe them.”
Eventually, Muhammad’s department expects to supervise and serve an estimated 1,900 new cases.
“I hope that it’s actually huge — that we are doing a much, much better job than the State had been doing,” said Muhammad.
The state, he added, has focused too much on incarceration instead of rehabilitation.
Muhammad wants to shift the focus towards rehabilitation by changing the county’s risk assessment system. When a person is first released to the probation department, officers there assess their likelihood to commit another crime. Probation officers then give the most attention to the people who are at the highest risk.
While this system is good in theory, Muhammad said, they are incorrectly assessing people. Under the current system, someone likely to commit 18 small thefts will score the same as someone likely to commit armed robbery – and will be supervised accordingly.
A study by The Pew Center for the States, however, concludes that low-risk people do better with less supervision.
For example, low-risk people are more likely to have a job, Muhammad said, but if they have to go to the probation office during working hours to meet with a probation officer once a week, they are more likely to lose that job.
Muhammad identified another crucial area where the Alameda County probation can improve – he wants to get the department to the point where each probation officer supervises 50 people.
“Right now,” he said, “the ratio is all over the place.”
Currently 15,000 people are on probation in Alameda County. Eleven thousand of them don’t have probation officers because of a lack of staffing and funding.
AB 109 will provide some of that funding.
“I actually see this as an opportunity where we can fix everything at once,” Muhammad said.

Did the Victim Participation Bill Increase Victim Participation?

2011-09-01T06:24:00.000-07:00

Yesterday my students and I were talking about legislation initiatives. One of the insights of our discussion, prompted by the experiences of some of them in drafting bills, was bringing up the question whether legislation was always designed to achieve its stated goals, or to serve some other enforcement goal. Some examples we floated around were the San Francisco sit-lie ordinance, which aims not at criminalizing sitting on the sidewalk per se, but rather to provide the police with an easy enforcement tool against undesirable urban elements without having to spell out the problem. This gap between proclaimed legislative intent and actual intent to enforce is something Dan Portman and I refer to in this piece as "inequitable enforcement."

As has often been the case since the mid-1990, our example this morning comes from the world of pro-victim legislation. The 1990s, as Jonathan Simon convincingly argues in Governing Through Crime, were the decade of the victim, who became the symbolic citizen, occupying the role previously occupied by the yeoman farmer and the small business owner. In 2008, California citizens voted for Prop 9, also known as Marsy's Law. Ostensibly a victim rights proposal (pretty much granting the same rights victims already had before the law passed), the big changes made by the proposal included lengthening the period before a given inmate is entitled to a parole hearing. At the time, we floated around the question whether Prop 9 violated the single subject rule, and some aspects of it were challenged at the 9th Circuit.

But the real question, which we could not answer at the time, was of course whether a legislative initiative ostensibly designed to increase victim participation in the criminal process really does so. And we now have an empirical answer, from a study by Laura Richardson: No, but it sure impacted the process in other ways.

Here is what the black-letter law purported to do:

Marsy’s Law has made major changes to many aspects of parole. Section 3041.5 of the California Penal Code was the most significantly altered by the adoption of Marsy’s Law. Marsy’s Law changed the default time for the date of the next parole hearing from a single year to fifteen years. It changed the amount of time that could be set between parole hearings from 1-5 years to 3-15 years. It altered the standard for deciding when to set the next hearing, shifting the burden from the state on justifying why the inmate continued to be a threat to public safety necessitating a longer time before the next hearing, to the inmate in showing the non- existence of reasons why he or she continues to be a threat to public safety. It also gave the board less discretion in setting parole hearings only allowing parole hearings to be initially set at either 3, 7, 10 or 15 years.

Section 3043 of the California Penal Code was significantly changed by the adoption of Marsy’s Law as well; allowing for victims, victims’ families and up to two representatives to have greater input during the parole hearing. Victims’ [sic] are now entitled to have their “entire and uninterrupted statements” heard by the Parole Board. Additionally, the inmate does not have the right to cross-examine the victim at the parole hearing.

After coding and analyzing 211 randomly-selected parole hearings both before and after the implementation of Marsy's Law, Richardson's findings are twofold: First, the time between parole hearings has nearly doubled, and the law is a strong determining factor of parole setting.

Controlling for the factors described in Part II, the coefficient for Marsy’s Law in the regression shows a positive increase in the amount of time set by the Parole Board until the next hearing by 2.06 years (+/-0.72) for full parole hearings . . . No other variable showed an equal positive increase in the amount of time set between parole hearings by the Parole Board. Marsy’s Law had a more significant impact on the time set until the next parole hearing by the Parole Board than any of the factors that the board must utilize in making their parole decisions or the inmate’s activity.

And, the analysis fails to find any increase in victim participation in the process:

Using least squares regression to test the validity of my model I was unable to find any impact of Marsy’s Law on victim participation at the parole hearing. The only variable that was significant was whether the hearing was an initial or subsequent hearing. When the hearing was a subsequent hearing victim participation decreased by 1.219 (+/1 .46).

Wait - Decreased?

This raises an open-ended question: In light of these findings, is Marsy's law a failure or a success?

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Props to our friends at the Prison Law Blog and at Crim Prof Blog for the link.

Beautiful Op-Ed on BART Police Shooting

2011-08-30T09:32:00.000-07:00

Yesterday morning at the Oakland Local: The physician who treated the latest BART police shooting victim wrote an evocative letter. Read it here in its entirety.

Last month, I learned that one of my former patients - Charles Hill - was shot and killed by BART police. Per the police, he was armed with a bottle and a knife and had menacing behavior. Per eye witnesses, he was altered and appeared to be intoxicated, but did not represent a lethal danger.

I remember Charles vividly, having taken care of him several times in the revolving door, which is the health care system for the people who do not fit neatly into society. Charles was a member of the invisible class of people in SF - mentally ill, homeless and not reliably connected to the help he needed. While I had seen him agitated before and while I can't speak to all of his behavior, I never would have described him as threatening in such a way as to warrant the use of deadly force.

...

I would like to lend my voice to the growing protest of the BART police's excessive use of violent force and know that weekly protests are being organized on Mondays until demands are met for BART to fully investigate the shooting of Charles Hill, disarm its police force and train them properly, as well as bringing the officer who shot him to justice.

The media is portraying the annoyance of the protests to commuters more than the unbelievable horror that an innocent man was shot dead by the force that is meant to protect us. I don't want to upset commuters or be a nuisance. I would like to be part of educating and not letting this slip under the proverbial rug, in honor of Charles Hill and in order to help prevent something like this from ever happening again.

Legislative Effort Against the Death Penalty Revived!

2011-08-29T13:45:00.000-07:00

The Sac Bee reports:

Opponents of the state's death penalty announced a new effort Monday aimed at getting an initiative before voters next year that would abolish the death penalty and replace it with life without parole.

The effort uses the enormous costs of California's death penalty as a sales point with voters, and organizers said this morning that roughly $4 billion has been spent since 1978 to execute only 13 inmates.

Usually, one would predict that such an initiative had better odds at the legislature than among the public, who has consistently supported the death penalty, and given its failure earlier this week, odds would look rather grim. But with the budget crisis what it is, the public is less likely to be held hostage by victim groups. We will be following this up closely.

SB9 Defeated in Assembly

2011-08-28T17:26:00.000-07:00

Short by five votes, the measure to allow juveniles serving life without parole to have their sentences reviewed by a judge after fifteen years failed in the Assembly. The Huffington Post reports (complete with links):

[T]the United States is the only country that sends people under 18 to prison for life with no parole. "No other country sentences kids to die in prison," said Yee's chief of staff, Adam Keigwin. In California, juvenile offenders are ineligible for a death penalty sentence, but they can be sentenced to life with no parole, guaranteeing that they will die in prison. SB9 aimed to change that by offering a chance to appeal if a defendant served a minimum of 25 years and showed remorse and serious change.

The arguments against the bill were victim-centered. For various reasons we explained in an earlier post, this is political rhetoric more than realistic concern. What a disappointment, albeit not as great as the disappointment over the demise of the death penalty abolition bill. Overall, a disappointing week for Californian criminal justice.

WM3: A Personal Perspective

2011-08-27T09:36:00.000-07:00

Even on weekend mornings, in which I could stay in bed and sleep, I wake up a bit after 5am. It's still cold and dark, and the pool is not open yet, so there is no hurry. This evening we have dinner guests and are planning to watch Paradise Lost, a documentary about the recently released West Memphis Three. Next week I'll be showing the same movie to my seminar students. It's not an easy movie to watch, and for the most part what I remember from the last time I saw it are the horrifying crime scene photos, shown at the very beginning with a Metallica soundtrack. This is why I don't buy the radical criminology paradigm wholesale, but find myself more in Jock Young's camp of radical realism. Crime is real and victimization is real. It's not all socially constructed. Someone did murder those kids and abuse them in horrifying ways, leaving them in the woods, their little bodies in deplorable condition. But I believe, as do many others, that that someone was not Damien Echols, nor was it Jason Baldwin or Jesse Misskelley.

I don't remember whether I knew about the case when I was in law school in Israel. It was in the early 1990s, and Damien Echols and his supposed accomplices were arrested when I was in my second year. Echols and I are the same age. Since 1993, I graduated law school, worked criminal defense for five years, changed countries several times, finished two advanced degrees, handled health and family changes, made many new friends, and have been very blessed in a life of research, pedagogy, political action, endurance sports, and music of all kinds. Throughout this time, Damien Echols lived on Death Row in Arkansas, his skin turning translucent white from the lack of sun. He seemed almost extraterrestrial last week, giving interviews, pale as death itself and wearing dark sunglasses to protect himself--from what? The sun, the people, the abundant stimuli of which he was deprived for eighteen years?--sitting by his wife and co-defendants and quietly proclaiming his innocence, as he had done throughout his arrest, trial, and lengthy incarceration.

The documentary is rather long and includes extensive in-court footage. Seeing it years before the Alford plea that released the three defendants was like witnessing a dreadful train wreck in progress. Richard Ofshe, an expert on false confessions and memory fallacies, testifying about the many problems with Jesse Misskelley's confession; the Arkansas prosecutor sneering at him, saying, "we're not in Berkeley." The "cult expert", on the witness stand with his mail-order degree, blaming the defendants for a murder showing supposed Satanic features, as they were the only kids in town who wore black and listened to heavy metal. The complete lack of physical evidence.

Several commentators said this week that the DNA evidence "excluded" the defendants' involvement in the crime .That's not true, but it's as good as true. DNA was found at the crime scene, and it does not belong to any of the defendants. It is, of course, possible that the defendants were at the scene of the crime and did not leave DNA there, but it is highly unlikely. It was a messy set for extensive, cruel carnage, and high school boys would probably not have the sophistication and know-how to avoid leaving any marks. So, the convictions rested on the confession of Misskelley, a frightened boy with low IQ, pushed and manipulated by the police, who planted details of the crime within his confession.

The big mystery, of course, is the Alford plea. It doesn't exactly mean the defendants have pled guilty. Alford pleas allow defendants to maintain their innocence while acknowledging that there is factual basis for their convictions. Why the state offered the deal is a no-brainer. The plea explicitly rules out the possibility of a 1983 lawsuit, which would entitle the three defendants to a hefty sum in damages. Moreover, it allows the state actors to escape accountability for what appears to have been a terrible miscarriage of justice. The defendants' decision to accept the plea makes sense when considering the alternative, but raises some serious questions. Their new hearing, complete with DNA evidence, was to be held in a few months (and might still be held.) I can only imagine the horrors of repeated miscarriages of justice would drive one to admit anything, as long as it entails a certain release from prison, and particularly death row, rather than take one's chances on one more hearing. Nonetheless, odds seemed better than ever that the miscarriages would finally be examined and fixed. One can only imagine the set of cost-benefit considerations that went into deciding whether to agree to this plea.

So, this week my friends, my students and I will revisit a particularly dark chapter in the book of American criminal justice, and will have an opportunity to ponder upon the inevitability of human cruelty, alienation, and hatred, and the destruction it brings to lives and communities.

"This planet upon which I live is ostracized from God." --Jacob Wassermann, Das Gold von Caxamalca

Death Penalty Bill Will Not Go Forward

2011-08-26T09:10:00.000-07:00

SB490, the proposition to abolish the death penalty in CA, will not move forward. The Chronicle reports:

A bill that would have let California voters decide whether to repeal the death penalty will not move forward because of a lack of support in the Legislature, the measure's author announced Thursday.

SB490 by Loni Hancock, D-Berkeley, was introduced in June following the release of a study that found the state is paying $184 million more a year to keep people on death row than it would if inmates were simply left in prison for life.

But look at the statement from Hancock:

"The votes were not there to support reforming California's expensive and dysfunctional death penalty system," Hancock said in a written statement Thursday. "I had hoped we would take the opportunity to save hundreds of millions of dollars that could be used to support our schools and universities, keep police on our streets and fund essential public institutions like the courts. Study after study has demonstrated that the cost of maintaining the death penalty when so many basic needs are going unmet has become an expense we can no longer afford."

If this is not humonetarianism, I don't know what is.

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Props to David Takacs for alerting me to this.

Medical Parole Law in Action: The State Focuses on Expensive Inmates

2011-08-26T06:15:00.000-07:00

SB1399, recently passed by the legislature, allows the state to grant inmates medical parole. It confirms sections already in the existing penal code, but note the cost-related rationale:

The California state prison health system has identified 21 inmates whose average annual health care and guard costs total more than $1.97 million apiece. This is approximately $41.4 million a year for the care of 21 prisoners. These inmates are located in off-site nursing facilities or hospitals which require paying guard time, even though these prisoners are severely incapacitated. Eleven other inmates are inside prison health centers, where their annual medical bills average $114,395 each. There are currently 1,300 California state inmates whose health care costs exceed $100,000 a year. Inmates released on medical parole would shift the cost of their health care from the state to the federal government as prisoners cannot enroll in Medi-Cal or Medicare, but paroles [sic] can.

CDCR news has reported granting medical parole to the 7th inmate since the passage of the law.

As I've said elsewhere, humonetarianism is not unlike the risk management regime that has permeated corrections in that it is busy conducting selective incapacitation and grouping people into categories. But note the shift in focus: Rather than focusing on risk as the dominant category for classification, we are now focusing on cost. The cost-centered discourse and practice are shifting the way we look at the prison population. Rather than focusing on the high-risk inmates, we are focusing on the expensive ones as targets for reform and legislation.

Oh, and apropos costs: I'm working on a book that examines the impact of the financial crisis on the American correctional landscape, focusing particularly on California. Basically, it would be a book about humonetarianism. Your thoughts and contributions about this fascinating phenomenon, which I've been documenting here for the last two and a half years, are most welcome.

Isolation at SHU Reconsidered

2011-08-24T10:15:00.000-07:00

The Pelican Bay hunger strike has created a ripple effect of attention. This morning's piece on the San Jose Mercury News is encouraging.

State regulations say there are two ways to enter the Security Housing Unit: commit a new violation while incarcerated or be a validated member of one of six prison gangs.
It is the gang designation that has caused the most controversy.

At the Assembly hearing, several speakers said the California Department of Corrections should move from showing mere association with a gang to proving criminal activity.

"I've seen a great deal of variance as to how gang validation protocols are applied," said San Francisco Bay Area attorney Charles Carbone. He attributes the "wildly different interpretation" to a lack of training, and said gang validations are "decided by personality, not by policy."

Many relatives of SHU inmates said their loved ones had been unjustly validated. For example, one of the three pieces of evidence needed to validate an inmate could be the word of a debriefing informant or possession of a George Jackson book, such as "Soledad Brother."

Jackson was a founder of the Black Guerilla Family, which corrections officials define as a prison gang. He was shot to death by prison guards in San Quentin Prison during an escape attempt.

In addition to those who may have been wrongfully labeled, the SHU is by gang members' own admissions home to members and leaders of the Nuestra Familia, Aryan Brotherhood, Mexican Mafia and the Black Guerilla Family.

In fact, the Nuestra Familia's rules state that its top leaders must reside in Pelican Bay's Security Housing Unit. Current and former gang members have told The Monterey County Herald they thought it was a point of pride to be sent to the SHU, because all the leaders were housed there.
To earn a gang SHU term, corrections regulations state that an inmate must be more than a street gang member, such as Norteño or Sureño.

The SHU stay for a prison gang member is indeterminate, meaning the inmate cannot leave the unit until his prison sentence ends -- or he leaves his gang through a process of debriefing, which carries the stigma of "snitching."

Corrections officials have contended this is the only viable way, because transferring an active prison gang member into the general population would jeopardize inmate and officer safety.
Other states, though, offer programs based on good behavior that can lead to release from a SHU without having to inform on others.

California corrections undersecretary Scott Kernan said his department is studying SHU criteria from 28 other states and is developing new policies.

Those policies will next be reviewed by "stakeholders," he said.

Not a week goes by that I don't receive a letter from Pelican Bay, in which an inmate protests a wrongful classification as gang member. Reconsidering the way in which these classifications are made is long overdue.

SB9, Review of Juvenile LWOP: A Few Misperceptions Corrected

2011-08-23T14:22:00.000-07:00

Our posts about SB9 yielded several reader comments, some of which I had to refrain from publishing because of their incendiary tone. I thought it might be worthwhile to tackle some of the misapprehensions regarding SB9. While I think SB9 is a great idea and endorse it wholeheartedly, I am not officially affiliated, politically or financially, with Senator Yee or anyone else involved. Therefore, consider this an academic's opinion, rather than political propaganda.

This proposal sets dangerous people loose in the streets.

The proposal addresses only two hundred inmates or so, and none of them is being set loose in the street quite yet. What the bill does is allow a judge to review again the case of juveniles sentenced to LWOP after they have already served at least a fifteen-year sentence. And even then, the judge will only have the ability to modify the sentence to twenty-five to life. Overall, it's a fairly mild proposition.

Aren't these people dangerous?

Well, some of them might be, and some of them might not. It will be up to the judge to review their history, when petitioned to do so, and to assess whether it is risky to make them eligible for parole. There will be discretion about this. What we know about the trajectory of criminal careers tends to suggest that, for many folks who committed crime in their teens, age tends to "mellow people out" and they become less dangerous as they age.

If it's only a few hundred people, why is this such a big deal?

In the grand scheme of things, it's not a big deal at all. A handful of inmates will be serving a very long prison term, rather than an even longer one. But the difference to the individual, in terms of offering a ray of hope, is immense.

Doesn't that teach juveniles that it's okay to murder?

Not at all. Twenty-five to life is a very long time for a young person. And that's assuming that juveniles even think about the repercussions when committing crimes, many of which are expressive crimes rather than cold, calculated ones.

We're not really saving a lot of money by letting these people out earlier than expected, are we?

That's impossible to answer accurately without proper data. However, it stands to reason that the older our inmate population is, the more we'll be spending on its health care, which is already approximately one third of our correctional budget. Letting someone out when he or she is in his or her fifties, rather than letting him or her die behind bars, might spare us some of the costlier inmates and allow us to focus resources on others who need urgent care.

They committed murder and deserve never to see the light of day again.

Well, that is a legitimate opinion, but what someone "deserves" depends on your definition of just desert. Spending twenty-five to life behind bars, subject to violence, overcrowding, and prisons devoid of rehabilitative programming is very far from being a walk in the park.

What about the victims' families?

That is very much a matter of personal feeling. Many families of murder victims feel immense amounts of rage and sadness and translate those to a wish that the perpetrator of their tragedy rot behind bars. That is understandable. But it doesn't mean that the state has to grant these wishes to the letter. Moreover, there are plenty of families of victims who do not derive satisfaction from revenge or retribution, and would much rather the money spent on incarceration be spent on more and better homicide investigation, to prevent future tragedies. There are many people who feel this way; the media exposes you to the vocal, angry ones, and they do not necessarily represent everyone.

If the legislators think LWOP sentences should be reviewed, why not abolish LWOP for juveniles altogether?

At this point, Supreme Court case law regards LWOP for juveniles as constitutional for murder (not for other offenses.) Maybe future cases will follow the rationale of Roper v. Simmons and extend the abolition of LWOP to murder as well. But this is an opportunity to do something, now.

For a matter pertaining to so few people, this is eating up plenty of public energy and discourse. Why are we dealing with this, rather than with death penalty abolition and fighting mass incarceration?

Because this is easier to achieve, and these folks need some attention, too. But there is a bill on the CA ballot to abolish the death penalty. There's also a bill to reform the Three Strikes Law. And it's about time.

Crimmigration: The Dark Side

2011-08-22T15:29:00.000-07:00

The Lawyers' Committee for Civil Rights, with the ACLU and several other civil rights organizations, have filed a lawsuit seeking to stop the practice of shackling undocumented immigrants appearing before immigration court. The Huffington Post reports:

According to the lawsuit, the overwhelming majority of prisoners who show up in immigration courts have no violent criminal history. The lawsuit seeks to compel the Department of Homeland Security to make individual determinations about shackling rather than have a blanket policy. DHS officials declined to comment Wednesday.

This practice, and others, are an example of the false dichotomy between criminal and immigration matters. Make no mistake - these two issues are closely interrelated, as the financing of Arizona's SB 1070 by private companies demonstrates. Shackling is a distressing practice, and we'll be following this lawsuit closely.

Extra credit: As always, the question if one of incrementalism versus radicalism: Is the call to "stop treating undocumented immigrants as criminals" equivalent to a call that perpetuates treating criminals the way we have been treating them? Hmmmm.

Book Review: The New Jim Crow by Michelle Alexander

2011-08-20T09:37:00.000-07:00

A couple of months ago I attended a dinner fundraiser by the American Friends Service Committee and had the pleasure of hearing Michelle Alexander speak about her book (full video of the speech, as well as an interview with Alexander, available here.) I immediately bought a copy of the book and was very much looking forward to reading it. It did not disappoint, and while its basic argument is not novel, the book presents it in a compelling, engaged way.

The New Jim Crow is an attempt to take the prison-slavery comparison, often made as hyperbole, seriously. In order to do so, the book begins by providing a basic and concise introduction to race relations in the United States before, during, and after slavery. Readers unfamiliar with the post-reconstruction nadir of American race relations would do well to examine the particulars of life at the time, because, as Alexander demonstrates, much of the racial discrimination we see today through the correctional system has its roots in the disenfranchisement and separation of those days. Simply put, in the aftermath of the Civil War, the seeds were planted for a thriving system of discrimination and segregation that would utilize very similar methods to create a caste system, originally based on the color of one's skin, and now using one's status as a felon as proxy for said color.

The following two chapters provide a basic summary of the criminal process, relying for the most part on Supreme Court cases, and demonstrating how racial biases permeate the process from policing till release from prison. Readers with legal and socio-legal backgrounds may find these chapters somewhat oversimplified and spot some inaccuracies, but for a general audience this overview clearly communicates the message: A seemingly colorblind system is loaded with opportunities for discretion that generates the overrepresentation of African American men in the criminal process, and by exposing them in vast disproportion to this horrifying experience, generates an underclass deprived of a share in American conformity.

Alexander sets out to show that the role of race in the criminal process and in mass incarceration is not accidental. This argument, in itself, is not new. In her 1999 book Making Crime Pay, Katherine Beckett provides a full analysis of the political campaigns of the late 1960s and clearly shows how Nixon, and other candidates, relied on fear of crime and rising crime rates to confront, head on, the civil rights movement of the 1960s. The Warren Court's lenient approach to defendants, and its tendency to generate bright-line rules limiting the discretionary powers of the police and prosecution, became the enemy, and was a thinly-veiled foil for the 'real' enemy, race inequality. Alexander's book, however, makes this argument more accessible to the general public. By substituting crime for race, Nixonian politics succeeded in combating their real enemy, while maintaining a façade of race-neutrality.

My favorite chapters of the book are the last ones, in which Alexander takes on the broader implications for society of a caste system driven by crime control. She discusses the impact of criminal record and inmate disenfranchisement on a complete alienation of the African-American community from the political process and from access to basic necessities and rights. And, she sounds a loud wake-up alarm to those who have basic sympathy to the idea of criminal justice reform and race equality but who may not have made the connection explicitly. The ideal audience for this book, whom Alexander mentions in her introduction, would be folks who think that the comparison between Jim Crow and mass incarceration is merely rhetorical hyperbole. Upon reading this book, they may be convinced otherwise.

More Realignment Information

2011-08-20T09:10:00.000-07:00

Sara at the Prison Law Blog has posted a clear, helpful analysis of how realignment will work. Highly recommended.

The West Memphis Three are Finally Free

2011-08-19T12:26:00.000-07:00

Incredibly good news. The West Memphis Three, who have fought since the 1990s for their exoneration, have been freed from prison.

Three men convicted of killing three 8-year-old boys in a notorious 1993 murder case were freed from jail on Friday, after a complicated legal maneuver that allowed them to maintain their innocence while acknowledging that prosecutors had enough evidence to convict them.
Related

A district court judge declared that the three men — Damien W. Echols, 36, Jason Baldwin, 34, and Jessie Misskelley Jr., 36, known as the West Memphis Three — who have been in prison since their arrest in 1993, had served the time for their crime. The judge also levied a 10-year suspended sentence on each of the men.

With his release Friday, Mr. Echols became the highest-profile death row inmate to be released in recent memory.

The agreement, known as an Alford plea, does not result in a full exoneration; some of the convictions stand, though the men did not admit guilt. The deal came five months before a scheduled hearing was to be held to determine whether the men should be granted a new trial in light of DNA evidence that surfaced in the past few years. None of their DNA has been found in tests of evidence at the scene. The Arkansas Supreme Court ordered the new hearing in November, giving new life to efforts to exonerate the three men.

SB9 Discussed in Today's Chronicle

2011-08-17T10:27:00.000-07:00

This morning's Chron features a front-page discussion of Senator Leland Yee's SB9, which would allow juveniles sentenced to life without parole to have their sentences reviewed by a judge.

This is a very tame, limited version of the proposal.

The California measure, which Yee has tried to make law several times before, is not as ambitious: It would let inmates, after 15 years behind bars, petition the court to change their sentence to 25 years to life, with the possibility of parole. That means that even if the court agreed to modify a sentence, there is no guarantee the inmate would get out: The offender would have to wait until 25 years have been served, then could appeal to the state's parole board for release. To request a reduced sentence, the offender would have to "describe his or her remorse" and prove he or she has worked toward rehabilitation.

Interestingly, as is often the case with parole-related proposals, the possibility that someone who maintains his or her innocence might want to make use of the review mechanism is not even considered.

Rally in Support of Pelican Bay Inmates

2011-08-17T10:24:00.000-07:00

Don't you know? Talkin' 'Bout a Revolution, It Starts Like a Whisper.

2011-08-16T15:19:00.000-07:00

More good news, confirming the general trend that the financial crisis is beginning to push the punitive pendulum in the opposite direction.

The death penalty is quietly losing its grip in the American penal landscape. One reason: Costs.

A ballot initiative to reform Three Strikes is in the works. One reason: Costs.

And finally, the tables are starting to turn.

Moving from Tough and Cheap to Lenient and Cheap: Why Conservative States are Ahead of the Curve

2011-08-16T14:50:00.000-07:00

Emily Luhrs from the CJCJ posted a really great think piece today. Taking on the ACLU point on the bipartisanism of criminal justice reform, they point out that conservative states have had a much easier time closing down prisons and decrowding institutions than, say, California.

Texas prisons, for example, went from a projected increase of 17,000 new prison beds in 2007 to below capacity in 2011, paving the way for an unprecedented state prison closure this year. The reforms have not only reduced system-swelling, but have led to the desired goal of increased safety. In the years following the reform efforts, crime rates have continued to drop more than the year before. In fact, research proves longer sentences have no effect on deterring future crime.

. . .

While California often leads the country with progressive reform efforts, it is not leading the way on the issue of incarceration. The same issues that are bloating California’s prison population were identified in previously prison-reliant states like Texas, providing hope that California can seek effective rehabilitative options as the state begins to reduce its prison population. CJCJ has long advocated for smart alternatives to incarceration and if Texas can close prisons, maybe California can too.

Here's my take on the phenomenon Luhrs highlights: This is all about humanitarianism. Clearly, the dominant, if not only, factor at operation here is the wish to cut costs, and it's the only factor that has succeeded in reversing the punitive pendulum. Conservative states like Texas and Arizona have a distinct edge over California in doing so, because traditionally, both of these penal systems have operated on the cheap. In fact, as Mona Lynch explains in her terrific book Sunbelt Justice, during the big Rehabilitation Years in California (before the 1970s brought disillusionment with that ideal), Texas and Arizona boasted farm/plantation models that were self-sufficient and did things on the tough and cheap. So, operating on the cheap is not a new consideration in these states. They've always done corrections with less. They are simply doing less with less. Here in CA, on the other hand, savings and corrections are not concepts that have traditionally gone hand in hand. We've done everything--incarceration, parole, probation, death row--on a mammoth scale and are used to decades of immense expenditure on corrections. That mindset may be even more difficult to change than the punitive mindset. The approach that corrections, by definition, have to be expensive, has always been part of the Californian paradigm, and has always been alien to the Texan and Arizonian paradigms.

So, as Californians, we need to learn how to be two things that we haven't traditionally excelled at: Being lenient and being thrifty. Ironically, despite Three Strikes and Marsy's Law and determinate sentencing and all that, we have a better track record with the former than with the latter. But reality is forcing us to acknowledge that and seeking more financial wisdom with corrections, and this will guide us on the right path with regard to punitivism.

BART Riots and Police Brutality: More on the Othering of Crime

2011-08-15T21:13:00.000-07:00

As I write this post, BART is finally opening its downtown stations, after shutting them down in an effort to curb protests against police violence. What has been referred to in the media as "civil unrest" is yielding broad coverage, not least because of BART's decision to cut down cellular phone service within its premises. Now that's what some would call grounds for "civil unrest".

But back to the topic of protest. So, the stations have been shut down, and it is rush hour. The Chronicle reports:

BART police closed the Civic Center station after at least one protester blocked a door of a Dublin-Pleasanton train for two minutes as others chanted "No justice, no peace." The train continued east, and a dispersal order was soon issued.

"Once we got to a situation where the BART platform was unsafe, we cleared the station," said BART Deputy Police Chief Daniel Hartwig, referring to the first closure. "We cannot jeopardize the safety of the patrons or the employees here."

Some transit riders were infuriated. Jennifer Cohn, an attorney who works downtown, arrived at the Civic Center station at about 6 p.m. with her two sons, ages 3 and 4, after picking them up from day care. She was trying to get home to the Glen Park neighborhood.

With the station closed, she tried to catch a cab, but they seemed to be avoiding the area.

"This is an outrage. We just want to get home," Cohn said. "I don't really see why they should be shutting down the stations. If they have an issue with BART, they should go to BART headquarters."

No, Ms. Cohn; what's outrageous is that the police shoot innocent people. This "issue" is a prime example of people standing up to police abuse. And there are good reasons for all rush hour commuters to join them, rather than complain. We posted here before about the scathing review of BART police practices in the aftermath of Oscar Grant's tragic death.

Now, why would Ms. Cohn and other riders be indifferent to this important issue? Could they possibly think that the abuses of force, unfettered discretion, and lack of professionalism at BART are good things? In all likelihood, they have not been paying much attention to the news. Or maybe, like Costelloe, Chiricos and Gertz's survey subjects, they think that, at the receiving end of police abuse, are only people who deserve such abuse. Thuggish people. Scary people. Gang-y people. People who don't look or behave like them.

Because, as we all know, if you don't finish the vegetables off your plate, a cop will come get you. But if you do, no harm will befall you.

I heartily wish to all those perturbed rush-hour BART passengers, that they will never be shot in the back when handcuffed by an officer who was, assuming the best of scenarios, untrained in distinguishing between his gun and his taser (gentle reader, you can assume other scenarios if you prefer.) And that, if by any chance or bad luck, they are ever mistaken by an overzealous cop with poor vision for one of those "other" "bad" people, that others will be willing to stand up for them and raise their voice in protest. Even if it means that a few good, law-abiding citizens get home for dinner fifteen minutes late.

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Many thanks to Kathryn Nettles and Tom Oster for the conversation that inspired this post.

Tony Platt on Pelican Bay

2011-08-13T09:49:00.000-07:00

Historian Tony Platt has a wonderful blog post out about the Pelican Bay hunger strike, titled The Shame of California. You should really read the whole thing, but here is a short excerpt:

On July 1st, a small group of prisoners in Pelican Bay’s SHU, calling themselves the Short Corridor Collective, initiated a hunger strike, calling for the abolition of long-term solitary confinement, improvement in programs for SHU prisoners, and an end to various abusive administrative procedures. Unlike a similar action by prisoners in 2002, this strike drew the support of thousands of prisoners throughout the state. Moreover, Prison Hunger Strike Solidarity was so successful in getting out information about the strike that European human rights organizations urged the Governor to respond to prisoners’ demands and the New York Times carried an Op Ed condemning the “bestial treatment” of prisoners in Pelican Bay State Prison (Colin Dayan, “Barbarous Confinement,” 17 July 2011).

During the strike, according to the Short Corridor Collective, at least seventeen strikers, including three leaders, were transferred to another prison for medical treatment. The Collective ended the action on July 22nd after gaining the right to wear cold weather caps, to have calendars in their cells, and to have access to educational programs in the SHU. Though these concessions by prison authorities are modest, we should not underestimate the larger significance of the strike. It draws worldwide attention to the widespread use of torturous practices by the United States against its own citizens; it forces the government of California to sit down, face-to-face, and negotiate with people who have been demonized as semi-human beasts; and it raises the possibility of once again incorporating prisoners into a larger struggle for social justice.

Great ACLU report today on AB109 realignment!

2011-08-11T11:30:00.001-07:00

De-mystifying and evaluating realignment, and offering crucial implementation advice to counties: http://www.aclunc.org/issues/criminal_justice/aclu_of_california_ab_109_realignment_implementation_report.shtml