Birth of the Immigrant-Criminal

I'm back from the Law and Society Association annual meeting in Chicago. The conference itself was fascinating and fun, and offered, among other things, a panel on special criminal court proceedings. The papers examined various aspects of this issue: the promise of a new problem-solving court model, the delicate power dynamics between courts and women who are victims of domestic violence seeking restriction orders, the criteria used by caseworkers to assess who is "sick enough" to neatly fit in a mental health court program, and the thoughts and actions of parents to juvenile delinquents while their children are in the system. Another fun experience, the panel about David Simon's The Wire, featured David Simon himself on Skype and was absolutely fascinating. Simon's take on his own creation consists of two main strands: rampant capitalism and the loss of mutual responsibility and care, and a process he calls "shit to gold", by which failing strategies are not corrected, but rather misrepresented to give the illusion of progress. As he was talking, I had sobering thoughts about how this principle manifested itself in mass incarceration.

I wanted to expand a bit, however, about a strand of conversation we had in the context of a book panel about Mona Lynch's Sunbelt Justice, which we reviewed here a while ago. Since the book involves the penal history of Arizona, discussion inevitably turned to the recent developments there, including SB1070, the anti-immigrant measure that received so much coverage and critique in California among other places. The interesting thing about the California critique is that we are struggling with similar issues ourselves, and our readers will remember that Governor Schwarzenegger's plan for decrowding prisons devoted special attention to undocumented immigrant inmates, and some of his ideas on the matter boarded on the grotesque. San Francisco's experimentation with sanctuary status for juvenile offenders who are undocumented immigrants is yet another signal of our obsession with this particular group. So, it is rather sanctimonious of Californians to perceive the Arizonian law as unique or peculiar in any way. We are just as busy as our neighboring state in addressing illegal immigration through the lens of crime. As Jonathan Simon deftly observed on our panel, "Arizona is California's id."

But one of the things we briefly touched upon was the connection between the two labels: Immigrant and criminal. We floated the idea that the universal "bogeyman", the common enemy whom we fear and bond against in Durkheimian fashion, might have shifted from The Drug-Selling Gang Banger to The Undocumented Immigrant. As we were talking about this, I thought that there is a better way of understanding what happened in Arizona and might happen in California: We have a composite public villain now, the Immigrant-Criminal. Now, xenophobia is not new, of course, but this is a newer version of it. We toyed with some of the characteristics of this villain.

Immigrants are the source of all evil. As per some of the political speeches we hear these days from Steve Poizner and others, "illegals" are the source of our problems. They are to be blamed for the faltering economy, our sense of security, and everything else.

Immigrants are criminals per se, and illegal immigration is a mala per se. This is what criminal law professors refer to as "status offenses": one is an offender not because of what one does, but because of what one is. Moreover, undocumented immigration is perceived not as a documentation problem, but one of moral failing: Public discourse draws a difference between people who arrive to the United States from Mexico legally to participate in, say, the highly exploitative market of strawberry picking, to those who do the same thing illegally. The latter are making a morally depraved choice. This construct completely misunderstands the reasons why U.S-Mexico relationship and economic interdependence not only encourages illegal immigration, but generates it. If you want to know more about it, I strongly recommend the last chapter of Eric Schlosser's Reefer Madness.

On top of that, immigrants are more likely to commit crime. The correlation between illegal immigration and crime is not a new thing, as we know. After 9/11, visa requirements tightened, under the assumption that threats to U.S. security come from these undocumented immigrants, leading to many difficulties entering the country. Recall, by the way, that most of the perpetrators of the 9/11 atrocity were in the States on legitimate visas.

The technologies for battling crime are reapplied to battle illegal immigration. Note how the new proposal shifts the usage of searches and profiling from street crime to immigration, including an allocation of police resources for this matter. This is not a new slice of the police expenditure pie; it is a legitimate use of crime-fighting resources. Moreover, as we said elsewhere, the public gets to have a say when not enough money is allocated to the new crusade.

Immigrants are expensive villains; ousting them is cheap. Governing many of our technologies vis-a-vis the immigrants is the anti-humonetarian misperception that they eat up public resources, and that criminalizing them is a wise move, wallet-wise. It is supposedly cheaper to arrest them in the streets than to provide them with social services; it is supposedly cheaper to house them in federal deportation camps than in state institutions. This is a false savings measure, which might or might not displace the costs of illegal immigration, rather than diminishing them. I don't know whether that would be the case, savings-wise, but neither do those proposing these measures for savings-related reasons.

Underlying all these features is a deep and basic misunderstanding of the problem: Whether or not American society, and particularly the economies of Sunbelt states like California and Arizona, is endangered by undocumented immigrants, it needs them, and its political and economic realities has created them, for better or for worse. As with our complicity in the picture of crime, we cannot ignore our complicity in the creation of illegal immigration.

Justice Policy Institute release

FOR IMMEDIATE RELEASE:
May 24, 2010

CONTACT: Adam Ratliff, aratliff@justicepolicy.org, (202) 558-7974 x306

Crime report shows crime fell in 2009 as prison growth rates decreased

Drop in crime comes as states seek ways to reduce prison populations and improve savings for state budgets

WASHINGTON, D.C.-Reported violent crime in the United States fell by 5.5 percent and property crime by 4.9 percent in 2009, according to an analysis released today by the Justice Policy Institute (JPI). The analysis, which was based on the FBI's Preliminary Annual Uniform Crime Report, released earlier today, also found that this drop in crime coincided with decreasing use of prisons from previous years. This corresponds with a national trend of states seeking ways to curtail corrections spending in light of the economic downturn. JPI applauded the news, saying it highlights that states can save money, promote alternatives to incarceration and still maintain public safety.

"Increased incarceration does not increase public safety," said Tracy Velázquez, executive director of the Justice Policy Institute. "The FBI's report shows that we can improve public safety and put fewer people in prisons, which means savings for taxpayers in addition to stronger communities. Investments in jobs, education and treatment are areas where states should focus their dollars, as all of these will help reduce crime more effectively and fairly than building more prisons."

According to the analysis, the 2009 drop in crime came at a time when the prison growth rates fell from previous years. While the number of people in prison is still growing, it is at a slower rate than the last few decades.

"Contrary to the conventional wisdom that locking people up makes communities safer, the data is clearly showing that crime is going down as fewer people are being put in prison," Velázquez added. "Rather than spending more money unnecessarily on policing and incarceration, we recommend that states increase their investments in people and communities, rather than prisons, as a better way of ensuring that public safety continues to improve."

The Justice Policy Institute (JPI) is a Washington, D.C.-based organization dedicated to reducing society's use of incarceration and promoting just and effective social policies.

For a more in-depth analysis of crime trends, and information on effective public safety practices, please visit our website at www.justicepolicy.org.

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SF Public Defender: Justice Summit

On May 19 I attended the San Francisco Public Defender's 2010 Justice Summit, at the SF Public Library. Jeff Adachi eloquently introduced a day of 3 panels, one Clara Foltz impersonator, a TV PSA, and free lunch. The PSA video was a startling, professionally-produced 15-second spot promoting the abstract concept of the public defender ("PD").

The first panel, "Ordinary Injustice," offered a scathing critique of every level of our criminal justice system. The title was taken from the book of the same name by Amy Bach, who spoke first and stole the show with firsthand stories of miscarriages of justice in rural courtrooms. She also noted that these problems affect everyone, not just those caught up in this system, because our tax dollars become the collateral consequences. Laurence Benner made the point that this injustice will inherently remain so long as local politicians are entrusted with funding our indigent defense system. Kenneth Tanaguchi, Fresno PD, mentioned thatjustice suffers in counties using contract defenders because of their innate conflict of interest: turning a profit will trump clients' best interests when criminal defense services are auctioned. John Terzano, Justice Project ED, explained prosecutorial misconduct as a product of prosecutors' discretion, lack of accountability, and entrenched culture. Sam Webby described his series of stories for the San Jose Mercury-News about the San Jose's defendants going without representation at their first (and usually only) appearances, which led to a change in policy: now those courtrooms have lawyers in them everyday for the first time.

The second panel discussed PDs' public relations problem: "Public pretender or public crusader?" Former prosecutor Jonathan Shapiro, now famous for The Practice and Boston Legal, started controversially by telling the audience of PDs to cut their ponytails, lose their earrings, and wear dark suits with white shirts and red ties. His main point was that PDs need more self-promotion, and collective national representation to educate the public on their purpose and worth. Jami Floyd of tv's The Best Defense agreed that the media contributes to misperceptions of the PD's role, because of the pro-prosecution bias in the assumption that defendants did something wrong (violating innocent-until-proven-guilty). A New Yorker, she argued that reforming draconian drug laws is the best issue to start with reshaping the PD's image. Criminal defender Gerald Schwartzbach drew applause for, "You don't fight crime by cutting social services," and for, "Putting a black robe on a jackass doesn't get you a judge," and for, "The whole criminal defense bar, public and private, needs to circle the wagons" and unify to improve its reputation/image. Carol Dee Huneke of PD Revolution (pdrevolution.blogspot.com) pointed out that even though emotionality usually favors victims, occasionally it works for defenders, and then they ought to call the media.

The third panel focused on prisoner re-entry services, from the mixed viewpoints of service providers, former prisoners, and advocates. It was pretty depressing, as highlighted by Eliza Hersh of the East Bay Community Law Center's Clean Slate program: "There's not really such a thing as a 'clean slate' in California."

State Appeal to Terminate Receivership Denied

In a recent decision from April 30 that received surprisingly low coverage, the Ninth Circuit dismissed the State's appeal to terminate Clark Kelso's receivership of the prison health care system.

The state's arguments targeted the District Court's jurisdiction in appointing the receiver, as well as the receivership itself not being the "least intrusive" measure and the receiver's construction plans.

In reviewing the District Court's decision de novo, the Circuit Court found that the Prison Law Reform Act did not bar the appointment of a receiver. Moreover, given the horrifying standards of medical care, the receivership was the least intrusive measure, and the state did not oppose it at the time of the receiver's appointment. In addition, the state's inability to comply with its own plans necessitated external intervention.

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Props to Aaron Rappaport, as well as to Shaun Martin over at the California Appellate Report.

Sit/Lie Ordinance Will Be on Ballot

My moral standing is lying down.
--Nine Inch Nails, "The Only Time"

Today's Chron reports Mayor Newsom's intention to bypass the Board of Supervisors and take the Sit/Lie Ordinance to the voters on the 2010 ballot. We have discussed this ordinance here and there, but now that the decisionmaking has been shifted unto the voters, it is time to talk a little bit about the details.

If San Francisco voters are presented with a sit/lie ordinance in 2010, there are a few parameters that are worth considering:

Are there alternatives? If the San Francisco police can arrest or cite offenders for loitering, aggressive panhandling, assault, and drug offenses, what is the marginal benefit of this ordinance?

Time/space limitations? An ordinance of this sort is more likely to conform to constitutional standards if it doesn't pursue and persecute people whenever and wherever they are. Similar pieces of legislation elsewhere have limited the criminal prohibition to certain hours in the day and certain areas of the city.

Warning? The law is significantly less draconian if it gives people the opportunity to move away. In some municipalities, a warning needs to be given in writing; in others, an oral warning will suffice.

Authorization to arrest? Does violating the law trigger the risk of arrest? If so, voters might be interested in weighing the interest of proportonality.

Sentencing? This goes to the question how comfortable we are with people doing time in jail--overcrowded as it is--for a municipal petty offense. It is rather likely that, in light of jail overcrowding, most of these cases will be dismissed anyway or dealt with through a fine system, in which case the efficacy and deterrence of the new law should be assessed. And if there is a fine, how much should it be, and how will its amount be tailored to the likely offenders?

Alternative shelter and related expenses? Sit/Lie Ordinances in other municipalities have been found unconstitutional by the 9th Circuit when the court found that the folks lying in the street had nowhere else to go. Providing enough shelter, so as to assure the new law's constitutionality, may cause the city to incur additional preparation and expense.

And, finally--impact on budget? Beyond the issue of shelter, voters need to take into account the impact that citations, arrests, and sentencing will have on the city budget. The more severe the implications of ordinance violation are, the more expensive this measure will be. Even if massive case dismissals will thwart the effort (which may very well be the case), it will still eat up valuable prosecutorial time and money.

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Props to KCBS, with whom I talked about this topic this afternoon, for prompting the discussion, and to Adam Maldonado for some very useful information.

Pregnant Inmate Bill Passes Assembly

A couple of months ago we reported on the introduction of AB1900, a bill aimed at the protection of pregnant inmates. The bill passed yesterday, 70:0. It is an important step toward the protection of pregnant inmates' welfare and well-being.

Impact of Strikers' Health Care on Prison Budget

Marisa Lagos's story this morning on the Chron discusses the impact of old and infirm inmates on prison budget. The piece references a report by State Auditor Elaine Howle (which you can access here in full). Her key findings are as follows:

43,500 inmates currently sentenced under the three strikes law (striker inmates) make up 25 percent of the total inmate population. Further, with regards to striker inmates:

• On average, they receive sentences that are nine years longer—resulting in approximately $19.2 billion in additional costs.
• More than half are currently imprisoned for convictions that are not classified as strikes.
• Many were convicted of committing multiple serious or violent offenses on the same day, while some committed one or more of these offenses as a juvenile.

Health Care Services has not fully estimated potential savings from its proposed cost containment strategies. Further, a significant portion of the cost of housing inmates is for providing health care, which includes contracted specialty health care.

• Roughly 41,000 of the 58,700 inmates that incurred specialty health care costs averaged just more than $1,000 per inmate and cost $42 million in total. The remaining 17,700 inmates incurred costs of more than $427 million in the same year.
• Specialty health care costs averaged $42,000 per inmate for those inmates that incurred more than $5,000 for such costs and were age 60 and older.
• The specialty health care costs associated with inmates that died during the last quarter of the fiscal year were significantly greater than any specific age group—ranging from $150 for one inmate to more than $1 million for another.

Nearly 32 percent of overtime costs in fiscal year 2007–08, or $136 million, were related to medical guarding and transportation for health care.

Custody staff’s growing leave balances—due in part to vacancies, errors in Corrections’ staffing formula, and exacerbated by the State’s furlough program—represent a future liability to the State of at least $546 million and could be more than $1 billion.

We discussed this issue before. While Strikers and infirm prisoners are not the majority of prison population, their impact on the budget is enormous.