On Looking for Closure from the Criminal Justice System

A day after that horrible 2016 election I was mourning not only what was to become a national nightmare, but also the failure of California's Prop 62, which would have abolished the death penalty. I was on the radio talking about it and someone asked me what I would say to the victims' families. I replied, "first of all, all the sympathy and empathy in the world. And second, if you have lost someone you love, surely you wouldn't want to revisit this suffering--with a real risk that the person is innocent--on anyone else's family."

Some people took offense to that, and I got some hate mail, including a fairly alarming death threat. But I still do feel that the notion that not everyone who has lost a loved one to homicide looks for closure in the form of the death penalty or other severe sentence bears repeating.

I'm writing about this as the verdict has come out in a case involving the murder of my colleague and friend Dan Markel. Sigfredo Garcia was found guilty; there's a hung jury in Katherine Magbanua's case; and the people many of us think are the real culprits, the Adelsons, have so far completely escaped the clutches of the criminal justice system.

Susan Bandes has a a few papers about the notion of "closure", as something that the criminal justice system is supposed to deliver and as something people assume they'll get out of a conviction and a sentence. Her findings dovetail with what I found when working on the Kavanaugh piece and on the Progressive Punitivism piece: the idea that expressing anger through the criminal justice system will bring some form of cathartic relief is unsupported by behavioral science. In working on Yesterday's Monsters, one of the things that most filled me with sorrow was how victims who are singlemindedly invested in punitive outcomes against those who killed their loved ones (and the Tate family literally wrote the book on this--it's called Restless Souls) find so little solace in doing so.

I don't think that nonretributive, nonpunitive victims are more "saintly" than punitive ones. All emotions, including rancor AND forgiveness, are part of the human experience (as we recently found out, if anything, people find it hard to accept that forgiveness is human, and insist on shining some critical light on it).

Dan, who studied retributive justice (here, here, and here), would have found it interesting that what I most wanted from the criminal justice system was an affirmation of the narrative of What Happened. I'm not at all invested in the Adelsons being  arrested, tried, convicted, and incarcerated, let alone executed--that they have to live with themselves strikes me as the worst possible punishment. Not because I'm some sort of saintly, forgiving creature--I simply found out something about myself and what I want from the criminal justice system. And even if we, Dan's family and friends, ever get it, it won't bring our friend back.

Perhaps one of the things that most saddens me in America's punitive victim rights movement is how it offers you the One and Only Way to be an appropriate victim, without allowing you to sit with your own fresh emotions and feelings--grief? anger? frustration? loss?--and process them with yourself, between you and your soul, without a giant machine of a social narrative to run you over. There's not nearly enough quiet, be it in the right-wing halls of the anti-superpredator chorus or in the left-wing halls of #metoo, for you to sit with yourself and be whoever you are with your own feelings.

Much love and support to Dan's family and friends today. What is remembered, lives.

The Central Park Jogger and the Reification of Victims' Perspectives

Those of you familiar with the Central Park Five case should be under no doubt that, despite Trump's insistence on propagating a strange narrative of the case, the five teenagers railroaded into confessing and sentenced to years in prison have been completely exonerated and compensated, with a single perpetrator's confession backed up by solid DNA evidence.

You may also recall that the victim, Trisha Meili, who was violently assaulted and left for dead, has no memory of the attack. But she apparently does not see this as a barrier to opining about guilt and innocence.

In my forthcoming book Yesterday's Monsters: The Manson Family Cases and the Illusion of Parole (forthcoming Feb. 2020 from UC Press) I discuss the serious problems that happen when we reify the perspectives of people at the heart of trauma regarding things they are not qualified to comment on, such as the sincerity of parole hopefuls, their participation in rehabilitative programming, and even their physical health. And here we have a person who cannot recall the attack pushing for a political outcome, claiming the authority to do so because of her victimization.

Trisha Meili suffered horribly at the hands of someone terrifyingly violent and deserves every sympathy and compassion for that horrible ordeal, as well as respect and admiration for regaining her health. But she has no authority or special knowledge to chime in about events she does not recall or to use her authority as a "moral memory" of the crime to push for processes that completely contradict forensic evidence.

This is what happens when we decide that trauma itself is an admission ticket to the discourse. And lest we forget, the right has not cornered the market on this reification of victims.

Nail Polish, or Why Left Realism Fights Rape Culture Better than Radical Demagogy

An interesting invention is making the rounds on social media website: four college students have invented nail polish that would allow its wearer, by inserting their finger into their drink, to detect whether a roofie--frequently used by rapists to overpower their victims--has been mixed into it. The company is called Undercover Colors.

This is a very practical, simple cautionary tool, and may help to spare many women, and some men, too, a traumatic and horrible experience. But the new invention has found some detractors, who in the name of radical feminism criticize the inventors as facilitating rape culture by placing the preventive responsibility onto the shoulders of the victims (see here and here.)

I'm sorry, I have to call bullshit when I see it. And this presumably feminist critique of prevention is grade-A bullshit.

It should probably go without saying that, like any decent human being on the planet, I am committed to ending rape culture, and that I believe that the fault for rape lies squarely on the shoulders of the rapist, which is why I really liked this campaign. Happily, evaluative research has found it to be effective in teaching men to be more respectful toward their partners.

But I get very, very upset when the people who purport to be fighting rape culture seem to be okay with not fighting rape itself, and especially with the radical demagogy that equates sensible self-protection with embracing rape culture.

Of course it is not the victim's responsibility to prevent crime. It is, of course, anyone's right to go anywhere they wish, wearing whatever they wish, without inviting physical or sexual assault. Nonetheless, we know that crime happens when there is opportunity, and many rapists are opportunists. And each of us takes preventive measures daily, to the extent that they are compatible with our lives and appreciation of freedom. We lock our house doors, we don't leave valuables in the car, we don't escalate arguments with angry drivers. And sometimes we make the choice not to engage in excessive self-protection, when we feel it infringes upon our lives too much, such as, for example, going out anywhere we wish, at any time of the day, wearing whatever we like. Doing so, of course, does not make us blameworthy if something bad happens to us. But taking measures that don't infringe upon that feeling of freedom has the potential of minimizing our odds of victimization, and doing that shouldn't make us blameworthy, either, for inventing such measures, using them, or recommending them to others.

The rhetoric against rape culture also pulls the rug under sensible and empowering acts like taking a self-defense class, even though we know that fighting back significantly reduces the odds of rape completion. Why, in the name of self righteousness and feminist idealism, would I deny myself, my family members and my friends the odds of survival and victory? How is this empowering? How is this preventing rape?

Moreover, as my friend and colleague Edi Kinney mentioned in a Facebook conversation about this:

[T]aking the opportunity to recenter discussions about rape culture to blame rapists is something activists have to do, but to me, we need to take advantage of allyship in its diverse forms and applaud practical efforts to engage in efforts to address sexual violence. What we've been doing hasn't worked. I think we should be emphasizing the fact that the men who developed the product were inspired to do because so many of their own friends had been drugged & sexually assaulted and they wanted to do something to empower their friends and other women w/ tools to identify risks. They apparently had scientific/lab/other expertise that they could deploy to that end, and were motivated to do so out of an effort to give women tools to help them protect themselves. IMHO, their allyship intentions -- AND the fact that bros who see social media accounts of this now might think twice re. engaging in predatory behavior at parties, bars, etc. -- trump the potential to reinforce 'blame the victim' rape culture. Rapists are opportunists, and I'd reckon there's a slippery slope between date rape and predatory behavior, and any tools to identify folks who engage in such behavior seems like a good start (and at least it's raising awareness?)

I think we have enough room for short-term and long-term strategies in the war against rape culture. In the long term, our commitment should be to eradicate it off the face of the earth. But in setting our sites on that and firing up our keyboards with feminist rhetoric, let's not forget that this thing we're fighting is not just an ideology. IT'S REAL AND IT'S VICTIMIZING WOMEN RIGHT NOW. And our first and foremost commitment to potential victims is to prevent their victimization as effectively and practically as possible, without stigmatizing them for it. Let's not lose sight of real rape when talking about the culture that produces it.

Judge Karlton Declares Prop 9 Unconstitutional

I am thrilled to report another important legal development: Judge Karlton of the Northern District has declared Prop 9, otherwise known as Marsy's Law or the Victim Bill of Rights, unconstitutional. He has also struck down Prop 89, adopted in 1988.

This is very good news for the CCC blog, as we fiercely advocated against Prop 9 and were truly dismayed at its passage. We pointed out how pointless it was to advance the rights of victims by denying parole to offenders, showcased research proving that the proposition did nothing to actually increase victim rights, and followed up litigation against the law from its inception through oral arguments and the partial dismantlement of some provisions of the law.

We said it in 2009 and we'll say it again: Propositions that purport to advance victim causes and avenge the cruelties done to them through committing more cruelties do not address the needs of all victims and certainly not of the victim population as a whole. The best thing we can do for victims is to make sure they cease being victims as quickly as possible by empowering them and putting in place social structures that offer chances for rehabilitation and transformation for perpetrators. Any wholesale effort to curtail the ability to offer people a window of hope at the end of a long sentence does no favors to victims, and is unnecessarily cruel and wasteful.

Are Crime Victims Punitive?

Research on punitiveness consistently teaches us that, surprisingly, being a crime victim does not make one more punitive. Incidents like today's death of notorious serial killer Richard Ramirez of natural causes on San Quentin's Death Row raises the issue of what victims expect from the criminal justice system, and what provides them closure and relief.

It is timely, therefore, to read Californians for Safety and Justice's recent report on crime victims in California. Here, for your convenience, are the key findings:

The findings are not unrelated to each other. It is unsurprising that violent crime disproportionately victimizes low income people and people of color. And it is also unsurprising that this is the same population that is affected by mass incarceration. Their views on the value of incarceration are pessimistic, and they are unsurprisingly more likely to hope for justice that works.

The victim advocacy groups that popped up in the mid-1990 to steer California law in a punitive direction represented, for the most part, white, middle-class people who lost family members to violent crime. This group of victims did not experience the devastation that mass incarceration wreaks on low-income communities and communities of color, and they do not speak for the majority of crime victims in the state.

Each victim responds to a violent crime experience in a unique and personal way. For some, lengthy incarceration terms and the death penalty are a relief and a method of closure. For others, they are a waste of money that does not make their personal tragedy a catalyst for world improvement. Before speaking for them, let's keep in mind what they say when they are allowed to speak with their own voices.

UPDATE: The Chron has picked up the story.

Restorative Justice in Murder Cases

Conor McBride and Ann Grosmaire in 2010.
Courtesy the Grosmaire family and the New York Times.

In 2001, still in practice as a reservist for the Israeli Military Defense Counsel's office, I represented an inmate who was serving a life sentence for murder. Four years earlier, he had shot another soldier to death over a dispute about using the public phone. My client wanted help with a petition to the President of Israel. Under Israeli law, all life sentences are not truly for life; it is the President's prerogative (a relic from colonial days, when the British Governor held the equivalent position) to determine how many years "life" would be.

As we put together the documentation for the petition, we also discussed my client's desire to meet the victim's family and express his remorse for what he had done. He wanted to ask for their apology. I was doubtful that we would succeed, but made some phone calls to the Ministry of Justice. At the time, restorative justice was a nascent field in Israel, and the people I talked to were reluctant to take on this project. They had not tried restorative justice in serious offenses such as murder, and in light of the victim's family's position during the trial (they were, understandably, very upset and very hostile toward my client) did not believe that the family would want to hear from my client, let alone be in the same room with him.

I left the country shortly after handling the case, but often wondered over the years what happened to my client. We recently got in touch again and I was glad to hear that he was doing well in prison, working and studying, and making plans for his release.

This is why yesterday's New York Times story about restorative justice moved me very deeply. It is a story from Florida about a restorative justice meeting between the family of Ann Grosmaire, who was murdered by her boyfriend, and Conor McBride, the man who took her life after a long argument. The article is worth reading in full, because it vividly tells the story from the perspectives of the different parties that took part in the process: Ann's parents, Conor's parents, Sujatha Baliga, the facilitator and a former public defender from Oakland, and the prosecutor, Jack Campbell. The pain of the victim's family is indescribable; the depths of their forgiveness - granted for themselves as well as for him - incredible. I can't recommend it enough.

One of the major challenges on the road to accepting restorative justice as a legitimate and important step in the criminal justice is the victim's contribution to the outcome. After all, two murderers can end up receiving very different sentences, depending on their victim's family's feelings on the subject. Is that fair? Perhaps not from the traditional criminal justice stance. But it is easier to accept such an outcome if one thinks of a murder as something that happens in a certain context, a certain relationship between the murderer and the victim and the people in their lives. As such, the murder "belongs" not only to its perpetrator, but also to those who suffer the ramifications. Nils Christie's classic article Conflicts as Property advocates returning the conflict to the victim and minimizing the role of "conflict thieves" - lawyers, judges, system actors - in its resolution.

This is why it was important, in the Prop 34 campaign, to remind all of us that not all victims are punitive and not all of them believe in the death penalty. This nuanced L.A. Times story shows that different victims responded differently to the prospect of applying the death penalty. Respect for victims means not treating all of them, cookie-cutter style, automatically as staunch supporters of the prosecution, but rather giving them the space to say what they want from the process and how they choose to engage with what happened to them.

----------------
Props to Sal Giambona and David Takacs for alerting me to the article.

On Sandy Hook, Moral Panic, and Legitimate Fear

Map of shooting incidents courtesy Mother Jones;
interactive version on the website.

Much of the commentary on Sandy Hook has highlighted the rise in the number of public shooting incidents in the course of the last few years. Some of the aggregate data on the shootings can be found on Mother Jones or on the Citizens Crime Commission of New York City website. Does the fact that there seem to have been many recent incidents of mass murders and spree killings of this sort mean that we have a phenomenon we need to worry about in a systematic way? We are, of course, saddened, heartbroken, angry--but should we also be afraid?

The answer to that question depends on how one defines "phenomenon" and how one decides what to worry about. Since there is no official measurement for "worrisomeness that merits criminalization/heightened enforcement", the extent to which we take steps to criminalize, police, and curtail rights depends on how severe we assess the threat to be. And that is, generally speaking, a question that involves politicians, the media, and the public.

One criminological concept that pops up in these discussions quite often is moral panic. A term coined by Stanley Cohen in his classic book about the Mods and the Rockers, it is "a condition, episode, person or group of persons [who] become defined as a threat to societal values and interests." Cohen emphasized that the panic is amplified by media reports and often culminates in a call to do something on the matter. Goode and Ben Yehuda identify consensus, a heightened level of concern, and hostility, as important factors in a moral panic.

Unmentioned in the definition, but implied in the literature, is the assumption that the panic is exaggerated. That is, that there is no real cause for concern, or at least not to the extent that justifies criminalization or curtailment of personal rights.

In 1999, Ronald Burns and Charles Crawford published an article on Crime, Law and Social Change about school shootings as a moral panic. The article shows the interaction between politicians, media reports, and public outcry, in the aftermath of Columbine. As they analyze the political and media attention to school shootings, they offer the following to show that the concern was disproportionate:


Were these massive societal responses to what were indeed heinous, threat- ening offenses against schoolteachers and students justified? A closer look at statistics regarding juvenile crime and more specifically school violence suggests that what occurred was arguably an overreaction to the situation. For example, consider the following sample of recent findings regarding juvenile crime in the context of the aforementioned societal responses: 

• There has been no increase in the number of children under age 13 arrested for homicides in the U.S. In 1965, 25 children under age 13 were arrested for homicides and in 1996 it was 16, a 36 percent decline (Donahue, Vincent and Schiraldi, 1998). 
• Overall, fewer than 3 percent of the killings in America in 1996 involved someone under age 18 killing someone else under age 18 (FBI, 1997). 
• FBI data suggest that national youth violence arrests went down both in number and in share of total youth arrests between 1992 and 1996 (“Violent youth . . .,” 1998). 
• Three of four young murder victims – 90% of them under age 12 and 70% of them agged 12–17 – are killed by adults, not by juveniles (Males, 1998). 

While one cannot discount the substantial increases in juvenile crime during the late 1980s, recent reports suggest that the problem is diminishing. Bernard (1999) suggests that although there exists conflicting trends, the most consist- ent interpretation is that juvenile crime, with the exception of homicide, has declined by about one-third over the last twenty years. In their chapter titled: “Juvenile Superpredators: The Myths of Killer Kids, Dangerous schools and a Youth Crime Wave,” Kappeler, Blumberg and Potter (2000) elaborate upon these and similar findings. There has been a similar, and probably more pro- nounced decrease in the amount of school violence. Consider the following: 

• There were 55 school shooting deaths in the 1992–1993 school year; 51 in 93–94; 20 in 1994–995; 35 in 1995–96, 25 in 1996–97; and 40 in 1997–98 (Lester, 1998). There are more than 50 million students and more than 80,000 schools across the country (Sanchez, 1998). 
• A child’s chances of being struck by lightning are greater than the million- to-one odds of being killed in school. The number of children killed by gun violence in schools is about half the number of Americans killed annually by lightning (Byrne, 1998). 
• According to PRIDE, the number of students bringing guns to school dropped from 6 percent in 1993–94 to 3.8 percent in 1997–98 (“1 million . . .,” 1998). 
• In Los Angeles, 15,000 people have been murdered during the 1990s. Five occurred at school. Of 1,500 murders in Orange County during the 1990s, none took place at school. Institutions in these areas serve 2 million students, including 700,000 teenagers (Males, 1998). 
• The United States has approximately 338 million children between the ages of ten and seventeen who attend roughly 20,000 secondary schools. In 1994, there were no school shootings in which more than a single person was killed; in 1997, there were four; and in 1998 there were two (Glassman, 1998).

Available data from sources such as the Centers for Disease Control, National School Safety Center, National Center for Education Statistics, U.S. Depart- ment of Education, and The Sourcebook of Criminal Justice Statistics support the suggestion that the recent school shootings were idiosyncratic events and not part of any recognizable trend. Ironically, the shootings may have received such intense coverage because of the infrequency of these occurrences rather than their frequency (Donohue, Schiraldi and Ziedenberg, 1998).

Similar arguments can be made today. While there has been an uptick in the number of these murderous incidents, crime, and violent crime in particular, is on the decline nationwide. And while the prospect of falling victim, or losing a loved one, to a mass shooting is terrifying and horrible, the odds of this occurrence are still very, very low.

Does that mean that the concern is unjusfied? Disproportionate? I don't think so. I think that fear of crime is an entirely real and reasonable response to such an incident. We respond strongly to experiences and events not just on account of their frequency, but also on account of their magnitude and meaning. So, yes. We are sad, and heartbroken, and angry, and have every right to be sad, and heartbroken, and angry.

The next question to tackle, after we dry our tears and sit at the policymaking desk, is how do we want the odds of another horrific occurrence to shape and affect the architecture and organizational culture of our schools. Do we want more metal detectors? More armed guards? More search points at the entrance to schools? How would that affect the learning experience, intellectual growth, and social interactions of the nation's children? All of those balances will have to be done delicately and carefully, because, by contrast to a horrifying mass murder scene, their effects will be subtle and intangible. And we should keep in mind, that it is okay to be sad, and heartbroken, and angry, and at the same time, wise and thoughtful in our policymaking reactions.

On Sandy Hook and Violence Prediction

Photo courtesy ibtimes.co.uk.

In the aftermath of the dreadful Sandy Hook tragedy, much of my Facebook wall is the arena of political debates about gun control and about national mental health care. But what of the human factor? Can we predict such horrific violence?

A recent story in the New York Daily News provides a profile of mass murderer Adam Lanza as described by former classmates and neighbors. He's described as having either Asperger's syndrome or some other disorder, and there are abundant details about his parents' amicable divorce and generous alimony arrangement. What is interesting to me is that many of the commentators on the piece express lack of surprise at the identity of the murderer.

 . . . 

 A “longtime” family friend said Lanza had a condition “where he couldn’t feel pain.” “A few years ago when he was on the baseball team, everyone had to be careful that he didn’t fall because he could get hurt and not feel it,” said the friend. “Adam had a lot of mental problems.” 

 . . . 

 Lanza walked the halls of his middle school carrying a black briefcase while most students lugged their belongings in backpacks. “That stuck out,” said Tim Lalli, 20, who graduated with Lanza in 2010. “It was different.” Lalli said Lanza wasn’t a total outcast, but he didn’t speak much. “Everyone just assumed he was a smart kid and that’s why he didn’t like talking to people all the time,” he said. “He hung out with the smart crowd.” 

 . . . 

 One family friend described Adam Lanza as a gamer who “rarely spoke.” “He was weird,” said the friend, who asked to remain anonymous. “He was quiet.” 

 . . . 

 Do these remind you of anything? In the aftermath of the Columbine shooting, the media and the public were quick to blame and label Goth youth who wore trench coats to school. Dave Cullen's 2009 book Columbine debunked these stories. The killers' personal journals reveal that Eric Harris was a sophisticated psychopath, while Dylan Klebold was deeply depressed and captivated by Eric. But it was much easier to look for external signs of not fitting in than for the killers' personal psyche.

And so, after every senseless tragedy that claims the lives of innocent people, we are subjected to these generalizations. The price we pay is much more intangible and less noticed. And that is the stigmatization of entire populations of youth who may not fit in at school, who carry a briefcase in lieu of a backpack, whose hobbies involve gaming. Fortunately, the vast majority of these people will never kill. And this is true for the many harmless, kind, nonviolent people many readers probably know who have Asperger's or other personality disorders.

So how can we tell who might do this? The answer may be more situational than anything, really. As Gavin de Becker reminds us in The Gift of Fear, watching a situation attentively and paying attention to our feelings is important, and it is equally important not to let fear paralyze us so much that we stop paying attention in the situations in which it is there as a friend, to warn and alert us. If we now fear and loathe all our fellow human beings who behave eccentrically and suffer from mental illness, we will lose our valuable, precious instinct for predicting a violent situation near us. Because we will start stereotyping and hating, and we'll stop watching and paying attention.

And after all that is said and done, the only thing left to do is cry for the many lives that were lost, for the potential squandered, for friendships and toys and notebooks and story time, for fish fingers and peas and coloring books, for a love of learning and a love of teaching. And maybe to remind ourselves that these incidents are horrific, but uncommon. And that love wins over fear. Most of the time.

CCC Endorsements 2012: YES on 34. NO on 35. YES on 36.

In two weeks, California voters will be offered the opportunity to vote on three criminal justice initiatives: Prop 34, which would replace the death penalty with life without parole; Prop 35, which would increase penalties for sex trafficking, make evidentiary changes, and further burden registration requirements for sex offenders; and Prop 36, which proposes a small but significant revision to the Three Strikes Law. There has been much talk about each of these individual propositions. In this short piece, I examine them together and show how they represent two different strands of thinking about criminal justice: New ideas of parsimony and effectiveness through Props 34 and 36, and old-school punitivism packaged as victims’ rights, via Prop 35.

Proposition 34 has received the most media attention of the three, and with good reason. What is interesting about it is not only the historical opportunity to do away with the death penalty, but also the new justifications and realpolitik backing up the campaign. Voters are encouraged to look beyond their ideological and philosophical opinions about the death penalty, and instead consider the way the death penalty is actually applied in California. The data, and the Legislative Analyst’s Office fiscal report, paint a disturbing picture. Since renewing executions in the 1970s, the state has executed merely 13 inmates. During that same time, 84 death row inmates died of natural causes. The paucity of executions stems from extensive (and expensive) litigation on behalf of the inmates, which is financed by the state, and is increasingly focused on chemical availability and injection techniques. The result is that the death penalty, in reality, has become no more than life without parole, under special conditions (housing 725 inmates in single, rather than double, cells, with extensive security measures), accompanied by decades of incessant litigation and health care expenses, with or without an execution at the end, the elimination of which will save the state a hundred million dollars in the first year alone according to the Legislative Analyst’s office analysis. Under these circumstances, philosophical differences about the state’s right to kill, the meaning of retribution, and the importance of closure for victims, become irrelevant. Some might think that the right thing would be to fix the death penalty, rather than eliminate it, but no proposition along the former lines is realistically forthcoming, and therefore many former (and current) supporters of the death penalty, including victims’ rights advocates, law enforcement officials, and original proponents of the California death penalty statute, have joined the Yes on 34 campaign.

Prop 36, which would reform the Three Strikes Law, is similar to Prop 34 in that it transcends ideological differences in penal politics to offer a practical, parsimonious fix, albeit a modest one in this case. Currently, the Three Strikes Law inflicts a double sentence on habitual offenders who commit a second violent or serious felony, and a twenty-five-years-to-life sentence upon commission of a third felony, even if the third felony is not violent or serious. The law also allows strikes to be imposed simultaneously, implying that the rationale behind its punitive regime is not deterrence, but rather incapacitation. Currently, California prisons house approximately 32,000 second strikes and 9,000 third strikers; an estimated half of the latter population is serving a twenty-five-years-to-life sentence for a third strike that was neither serious non violent. Beyond the consistently unfavorable media coverage of the injustices propagated on this population (including harsh sentences for thefts of items that cost less than ten dollars), Prop 36 raises serious fiscal issues. While third strikers are a small population, they serve lengthy sentences, which make them by definition expensive inmates. The state spends approximately 50,000 dollars per inmate per annum, and much of this amount is due to health care costs, which apply mostly to old and infirm inmates. The proposed reform to the law is fairly minor: Second strikers’ sentences will remain the same, as will the ability to obtain simultaneous strikes. The only reform would be eliminating the harsh sentence for non-serious, non-violent third strikes, making those a double sentence rather than twenty-five years to life.  Current non-violent third strikers would become eligible for resentencing. The Legislative Analyst’s office estimates annual savings that might exceed 100 million dollars.

As opposed to Props 34 and 36, Prop 35 is a classic example of old-school punitive thinking masquerading as a victims’ rights proposition. Marketed as supportive of sex trafficking victims to give it moral weight, the actual text does little, if anything, to help victims. Moreover, the proposition is a mixed bag of the sort of punitive propositions Californians have experienced (and voted on) for years: An increase in the already-considerable sentences of human traffickers, changes to the mens rea requirement for trafficking minors, nebulous criminalization of sex work, and a host of bizarre and unenforceable additions to the already-pervasive sex offender registration scheme (sex offenders would presumably have to report their email addresses and usernames, which cannot possibly be monitored or enforced in any way.) Beyond lip service to the idea of training police to respond well to victims, the proposition would not really improve the situation of victims of trafficking in any predictable way, and its backers and endorsers are counting on the morality hype to confuse voters into doing what seems morally right and vote yes. It would be a costly mistake, along the lines of the 2009 Marsy’s Law and countless other propositions of the same ilk.

The contrast between Props 34 and 36 on one hand and Prop 35 on the other is more than a juxtaposition of nonpunitive and punitive measures. It is a juxtaposition of a new way of thinking about criminal justice in an era of scarcity. Our paucity of resources requires a careful assessment of what actually works in criminal justice reforms, rather than bombastic expenditures on symbolic punitivism that do little to prevent crime or empower victims. It is not crude or crass to discuss money in this context. Our willingness to spend resources on the criminal justice resources is the clearest statement of our priorities as a society. Voting yes on 34 and 36 is sending a loud and clear message that the money spent on executions and unnecessarily lengthy incarcerations is better spent on education, health care, road maintenance, and—yes—improving police investigation.

This election offers you the opportunity to do away with old partisan thinking and reject the tried-and-untrue method of extreme punishment and ratcheted sentencing. Reverse the punitive pendulum and opt for justice that works, not punitive proclamations that promise and do not deliver. Vote yes on 34, no on 35, and yes on 36. 

No on 35

Over the course of the last few weeks, I've been asked, in professional and personal settings, to comment on Prop 35, billed as Stop Human Trafficking. I have given this a lot of thought, read the text as well as the Legislative Analyst's Office take on the proposition, and have come to the conclusion that the right thing to do is to vote NO on 35. This is a punitive, unenforceable measure that masquerades as a victims' rights proposition, which will do nothing beyond ratcheting up sentences, overenforce laws that already adequately cover the social problem they address, and criminalize behaviors that should not be criminalized.

Let me preface this analysis by saying: Voting NO on 35 does not mean you support human trafficking. It does not mean that the suffering of trafficking victims is not important to you. It does not make you a bad person and it does not make you side with the bad guys. The power of this proposition is by lumping a variety of punitive measures under a headline that carries a huge moral weight. Don't fall for it.

Here's what Proposition 35 does:

(1) It greatly enhances the already considerable prison sentences for human trafficking, which would be a very poor deterrent in a world of organized crime. Deterrence in this business is much more likely to be affected by certainty of apprehension. A much better policy would be to improve the quality of police investigations. Granted, the proposition includes provisions for police training on handling complaints, but until this is approached as high-level organized crime, there is little you can do by making the sentences more severe. And, you're adding more old, sick people to the folks in state institutions whose dysfunctional health care we already finance.

(2) Not a whole lot for victims. The proposition purports to set a fund for victims of trafficking, but the funding source for this is the fines that would supposedly be collected from the people we can't apprehend. Compare this to Prop 34, which sets up a fund to improve clearance rates for unsolved crime, but there the money comes from the savings that the proposition itself provides. Prop 35 is a money spender, not a money saver. I'm not optimistic about how this would improve victims' condition at all.

(3) Creates some changes to evidentiary law. This one is really a toss-up. It strikes me that, if you're prosecuting someone for trafficking in minors, there's something fundamentally unfair about denying the defendant the defense of being unaware of the minor's age (granted, you could impose a duty of inquiry.) But even if you think this makes sense - it would actually make the doctrine similar to the one behind statutory rape in various states - you can't separate this from the bundle of other effects the bill will have, and you are not offered an opportunity to vote separately on this.

(4) Perhaps the worst effect of this: Bizarre, unenforceable additions to the already-cumbersome sex offender registration laws. This has precious little to do with human trafficking or victim protection and does nothing to make us safer, because if this passes, sex offenders will have to report their emails and usernames to authorities. Really? And how are we going to enforce that?

One last comment: Over the last couple of weeks, friends who advocate for sex workers' unions have told me that virtually all sex worker rights organizations are very strongly opposed to Prop 35. My opposition to the proposition is not based on the same grounds. To be honest, I am undecided about wholesale legalization and regulation of prostitution. As opposed to various other so-called victimless crimes, such as the marijuana market, this industry operates under unique rules. Unionized, co-op sex workers are the tip of the iceberg, and I am much more concerned about the welfare of teenage boys and girls manipulated and coerced into this industry. Criminalizing sex work itself, as such, doesn't strike me as a particularly great idea, but I think that any debate about pimping should be resolved against pimps. So, with apologies to the sex-positive activist grounds, I'm going to keep my objection to Prop 35 purely on the grounds of excessive, useless punitivism.

Film Review: Into the Abyss

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.

Did the Victim Participation Bill Increase Victim Participation?

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.

SB9, Review of Juvenile LWOP: A Few Misperceptions Corrected

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.

Rise of the Non-Punitive Victim

An op-ed in the local San Gabriel Valley tribune is a strong testament to the changing sentiments of victims' families, a growing number of whom are not adequately represented by punitive organizations such as Crime Victims United of California and the like. Judy Kerr's op-ed eloquently provides a humonetarian critique of the death penalty from the perspective of the family of a murder victim.

In California, in the last ten years, 46 percent of murders went unsolved. This means over 25,000 murders remain unsolved, and 25,000 other families are waiting, like mine, to know who killed their loved ones. And it means as many as 25,000 killers roam freely on our streets. In the midst of this crisis of unsolved murders, we are also facing the biggest budget crisis in our state's history. While people literally get away with murder, the public safety network in California has unraveled. Police officers in every county in the state are being laid off. And, in every county, we are cutting back on homicide investigations and eliminating victims' services.


As thousands of family members wait for justice only to be told there is not enough money to fund an investigation, we watch as hundreds of millions of dollars are spent on the death penalty each year. Death penalty appeals, special housing for death row inmates, additional corrections officers to monitor them, a double-trial system which separates guilt and penalty phases - the costs associated with the death penalty are endless.


Many hear this and ask: Can't we just speed up the execution process? Reports from respected judges and criminal justice experts, both for and against the death penalty, have shown that the only way to make the system move faster while still preventing the execution of an innocent person is to spend even more money.

This local op-ed is notable for various reasons - its invocation of a humonetarian discourse, its disavowal of the traditional victim sentiments - but it is particularly important because a legislative proposal to abolish the death penalty in California is on the agenda, advanced and advertised for humonetarian reasons.

Book Review: Josh Page, The Toughest Beat

California has often been proclaimed ungovernable, its politics described either as too dense to fathom or, in an oversimplified fashion, as a mess generated by unfettered direct democracy and shortsighted financial policies. But some astute political actors have accrued the knowledge and skills to navigate these complex political seas, and the California Correctional Peace Officers’ Association (CCPOA) is one of them.  Joshua Page’s new book The Toughest Beat  clearly and intelligently transcends theoretical abstractions and simplistic clichés to provide a sobering, thorough analysis of the CCPOA’s role in shaping California’s penal policies, and in doing so, provides an excellent primer to the entire landscape of California politics and decisionmaking.

The book begins with a detailed, fascinating history of the rise of the CCPOA from an “old boys’ club” providing social opportunities and camaraderie for its members to a powerful player in state legislation and policy. Using a myriad of sources, in the tradition of “old-school,” well-done ethnographies, the book cleverly tells this story oscillating between the macro world of the state and national contexts and the microcosm of specific personalities. Don Novey‘s role as the architect of the CCPOA’s lobbying and influence strategy is particularly highlighted. Emphasis is placed on the CCPOA’s bipartisan alliances with Democracts (with respect to union concerns) and Republicans (with respect to punitiveness concerns).

This account is followed by two somber chapters, which illuminate the role played by CCPOA in shaping penal policies. The first reveals the complex interdependency between the CCPOA and a few victim organizations, such as the Crime Victims United of California; the latter organizations, representing the interest of specific demographics and a particularly punitive and vengeful victim perspective, were effectively created, managed, and puppeteered by CCPOA. Rather than flinging radical accusations and conspiracy theories, Page’s careful analysis of this web of interdependency and coalitions is understated and backed with hard evidence, including a personnel and finances analysis and ethnographic data. The CCPOA’s wisdom in fostering such mutually beneficial coalitions with victim organizations, district attorneys, sheriffs, and wealthy private citizens, is grimly shown to prove itself in the following chapter, which analyzes, blow-by-blow, the passage of the Three Strikes Law, California’s pioneering piece of punitive legislation. While the story behind California’s return to determinate sentencing, and the subsequent story of its romance with an ultrapunitive sentencing regime, are a larger story than that of the CCPOA, the union played a pivotal role in selected phases, and was a dominant factor in swinging the punitive pendulum. This account is an indictment not only against CCPOA, but against a system in which the idea of direct democracy is marred by a reality of unregulated funding, misleading advertisements and abundant disinformation and ignorance.

But Page’s book cannot be reduced to a good guy/bad guy formula. His masterful account of the CCPOA’s epic fight against prison privatization shows the different strategies employed by CCPOA and the private prison corporations, and relies on a deep, intuitive understanding of how the state works to explain how, despite resorting to nefarious techniques such as building a prison on speculation, the private companies did not prevail.

The book reads like a fascinating political thriller. It does not resort to extremism or unfounded proclamations, is concisely written, and is refreshingly free of jargon. Page’s reliance on Pierre Bordieu’s field analysis as his theoretical framework is light-handed and nimble; the theory facilitates, rather than obscures, the book’s clear narrative. It is a book that professionals and laypeople alike would appreciate and enjoy.

I take issue with two minor aspects of Page’s analysis. Firstly, in presenting the punitive background for the rise of the CCPOA, Page paints the “era of rehabilitation” and indeterminate sentencing in nostalgic, overly rosy colors. While the rhetoric and logic of rehabilitation and positivism governed the penal field in California, studies of actual incarceration practice and conditions reveal a grim picture of cruelty, hard labor in the guise of correction at the time, not to mention the arbitrary sentencing practices which dramatically disfavored minority and poor inmates. Determinate sentencing led to a great many evils in California’s correctional system, but it was preceded by a great many evils in its prior regime, which many activists and legal professionals fought to eradicate for all the right reasons.

Second, Page portrays the CCPOA in two somewhat contradictory ways: As an astute political player, who will choose alliances according to what suits its members’ narrow interests, and as an ideologically-committed “law and order” player. I am curious as to which of these frameworks he finds to be a better descriptor. When presenting the CCPOA’s involvement in the creation of Three Strikes, Page refers to it as an “exception” to the “nonintervention rule” regarding sentencing matters, adopted by the union, but his analysis of the involvement and ideological choices made could also regard Three Strikes as a pivotal moment in CCPOA policy, in which it morphed into an ideological player. As Page grimly reminds us at the end of the book, despite CCPOA’s support of sentencing commissions and seemingly more reasonable positions, its powerful, debilitating shadow still looms large over any attempt to reform the correctional system, and its interests in hindering such reforms go beyond its union objectives.

Notwithstanding these minor critiques, The Toughest Beat is a terrific read, and I highly recommend it not only to readers interested in penal policies, but to anyone interested in the inner workings of the political system in the Golden State.

The New CCPOA? Victimhood, Citizenhood, and Political Gain

(image from Crime Victims United of California website)

Joshua Page's recent post on the California Progress Report about the CCPOA raises interesting and important questions about the extent to which the union that shaped so much of California's punitive landscape has morphed into a more realistic factor in policymaking. In recent years, the CCPOA has periodically spoken out against overcrowding (in our conference, too) and issued its fairly sensible blueprints for reform. "Despite these signs of a softened stance," writes Page, "the CCPOA’s actions question the extent of its transformation." He cites sad examples such as the CCPOA's objection to the now-forgotten Prop 5 and its support of Prop 9, the punitive proposal masquerading as a victim rights proposition, which voters in CA approved under the name Marsy's Law.

There are other important aspects in Page's post, but the one I found most intriguing has to do with the CCPOA's deliberately political use of victim rights.

In the early 1990s, the union effectively created Crime Victims United of California (CVUC), the most influential crime victims’ organization in California, if not the entire United States. (The union also helped establish another influential group, the Doris Tate Crime Victims Bureau, but now works primarily with CVUC). The CCPOA committed extensive resources to the development of the CVUC, providing office space, lobbying staff, attorneys, and seed money. Harriet Salarno, president of CVUC, says forthrightly, “I could not do this without CCPOA, because we didn’t have the money to do it.” Beyond material resources, the CCPOA also taught CVUC how to play the political game.

The union developed CVUC for strategic purposes. This is not to say that CCPOA’s leaders do not genuinely care for and want to assist victims and their families; they do. But, CVUC helps the CCPOA achieve its goals from outside its ranks in three main ways. First, it validates the CCPOA’s public claims that prison officers are uniquely skilled professionals who work the “toughest beat in the state.” Second, it legitimates the CCPOA’s assertions that the union serves universal purposes (rather than its individual, pecuniary interests) by supporting crime victims and bolstering public safety. Just as families of schoolchildren promote teachers and the California Teachers Association, crime victims’ advocates endorse prison officers and the CCPOA. Third, CVUC helps the union achieve policy objectives, often providing a sympathetic face to campaigns that advance a “tough on crime” agenda.

In Governing Through Crime, Jonathan Simon writes about the transformation in our cultural conception of the quintessential citizen - from yeoman farmer to small business owner to victim. Our whole concept of public policy is constructed around our understanding of ourselves as potential victims. Our fetish of homeownership, the emergence of gated communities - all reflect our understanding of the home primarily as a fortress against crime (plenty of crime, of course, happens in upscale well-protected mansions, too; it's just not the crime you would expect.) The fact that a prison guard union finds it useful to create a pet organization of victim advocacy attests to the immense symbolic power of the victim in social discourse. CCPOA, a well-seasoned player in the California political game, understands the power of the victim all too well.

Children on the Outside

This week, Justice Strategies rolled out their excellent new report, "Children on the Outside: Voicing the Pain and Human Costs of Parental Incarceration," by Patricia Allard and Judith Greene. Read it here.

We knew that the USA's enormous prison population has high monetary costs and even higher human costs, but this paper documents the particular costs of separating families. Parental incarceration triples the odds that children will engage in violence or drug abuse, and doubles their odds of developing serious mental health issues. There are more children of incarcerated parents than there are total incarcerated persons; nearly 25% of the 1.7 million children with incarcerated parents are under age four, and over 33% will become adults while their parents are locked up.

LA Times favors parole for youth LWOPs

Today's LA Times carries this piece: http://www.latimes.com/news/opinion/opinionla/la-ed-1208-sara-20101208,0,2931752.story subtitled, "Sara Kruzan's case shows why juveniles should not sentenced to life without parole."

The Times had previously written in favor of Sen. Yee's narrowly-defeated SB 399 to change this policy statewide; today's Times asks Governor Schwarzenegger to offer clemency, if only in this one extreme case.

My favorite quotes: "She has volunteered for dozens of rehabilitation programs and won awards for her participation and attitude. ... The CYA felt that she should have been prosecuted as a juvenile rather than as an adult, which would have put her into a rehabilitation program from which she could have been freed by age 25 — seven years ago."

Sentenced a minor to life behind bars with no chance of parole is a ghastly, inhumane, cruel practice.

Retributivism and Restorative Justice

The afternoon panels at CELS also featured wonderful work. First I heard Dena Gromet and John Darley's paper Gut reactions to Criminal Wrongdoing: The Role of Political ideology. In the paper, Gromet and Darley examine whether people's support for a retributive or restorative framework depends on reason considerations, or whether it is a gut reaction. To measure that, they conducted a survey in which they asked respondents' opinions on victims and on offenders, assessing their support for each framework. They also inquired about their political opinion (on a conservative to liberal scale). To measure gut reactions, rather than calm reasoning, they asked respondents these questions under cognitive load (made them memorize an 8-digit number while they responded). They found that the satisfaction with restoration, whether on its own or as added to satisfaction with retributivism, goes up for liberals and down for conservatives with cognitive load. Their conclusion was, therefore, that liberals and conservatives have different intuitive reactions to serious crime: Liberals endorse restoration while conservatives favor retribution.

This paper was followed by Tyler G. Okimoto, Michael Wenzel and N.T. Feather's paper Conceptualizing Retributive and Restorative Justice. Drawing on differences in conception of justice, Okimoto, Wenzel and Feather administered a survey in which they asked respondents a series of question to establish the extent to which they subscribed to two alternative views of justice: the need to empower the victim and degrade the offender, versus the need to heal relationships and reassert consensual social values. They generated a scale that allows measuring where respondents lie along a spectrum of retributive to restorative justice.

The "Un-Othering" of Crime: A New and Impressive Anti-Rape Campaign

Election season always brings with it an intensified focus on the quintessential modern American citizen according to Jonathan Simon: The victim. The Attorney General race, and the candidates' websites, are full of references to contacts with the "community", defining "community" as one of potential victims. This approach, supposedly, is the antithesis to a "soft on crime" approach focusing on coddling the offender and absolving him or her of all responsibility for the crime. This approach is often accused of "blaming the victim".

Reality is a bit more complicated than that.

There is something that brings together the stereotypical "blame the victim" and "tough on crime" approaches, even though they appear to be antithetical, and that is a sense that crime, as well as victimization, is a phenomenon that only occurs to "others". Victims of rape, for example, are either complicit in their own victimization through scandalous sexual behavior, or angelic creatures whose tragic fate calls for dramatic displays of legislative punitiveness. Rapists, on the other hand, are either predetermined biological beasts, or evil, conniving men. None of these people--assailants and victims--are real, and none of these scenarios go to the heart of what happens in most rape scenarios, in which the victim and the perpetrator know each other.

Which is why I absolutely love the new anti-rape campaign under the slogan "my strength is not for hurting". Propagated by Men Can Stop Rape, the campaign addresses common scenarios and offering directives for sensible, considerate behavior. Here are some examples:






Here is some of what I like about this campaign:

1. These posters are full of realistic scenarios in which any man, not just some pathological monster, could be raping a woman. Since we think of rape as a heinous crime, some may find it difficult to identify sleeping with an intoxicated woman, or choosing to ignore lack of full consent, as rape. These posters bring it home.
2. For once, full responsibility is placed on the shoulders of the potential assailants, as those in the best position to stop the bad situation from happening.
3. This campaign is a reminder that rape does not happen in some far away parallel universe, but in dates, and parties, and various other everyday circumstances.
4. Note how the posters endorse an image of masculinity which fosters responsibility, communication, and regard for the other person's feelings, instead of glorifying violence and humiliation.

In some ways, this is the natural complement to self defense programs such as Impact Bay Area, which empower people with the knowledge they need to get out of bad situations without placing blame or responsibility upon them. Impact, and MyStrength, are a successful pitch because they speak to real people about real phenomena and avoid the trap of stereotypes and cliches.