Distress Call: Suicide Rates in California Prisons

A couple of years ago, Michael Bien alerted us at his keynote speech at WSC to an alarming trend: mental illness was on the rise in CA prisons even as they were getting decrowded. He and his lawyers ran the numbers lots of possible ways, and couldn't find a comprehensive explanation.

And now, we have some distressing data about the suicide rates in CA prisons. The Chron reports:

Last year, an average of three California inmates killed themselves each month in state cells — 34 total suicides in a system with 129,000 inmates. That amounts to an annual rate of 26.3 deaths per 100,000 people, the highest rate in California since at least 2006. 

That figure is higher than the national average for state prisons (20 per 100,000 in 2014) and federal prisons (14.7 in 2018, according to the Washington Post). From 2001 to 2014, according to the Bureau of Justice Statistics, twice as many people killed themselves in California cells than in the entire federal system, which contains more prisons and inmates. There were 448 total suicides in California prisons during that period and 222 in federal prisons. 

The inmate suicide rate has now increased for four straight years in California, and it may rise again in 2019. According to the state, 16 inmates committed suicide during the first six months of this year. Michael Bien, an attorney who represents mentally ill prisoners, said he knows of 10 more inmate suicides since then, for a total of 26 so far in 2019. A state spokeswoman said she couldn’t confirm the 10 recent deaths because “some investigations are still ongoing.”

Read the article in its entirety: it exposes a disturbing pattern of neglect and cover-your-asses mentality and the futility of the ongoing Coleman litigation. What is wrong? and how can we fix it?

The Impeachment of Andrew Johnson

Theodore R. Davis' illustration of Andrew Johnson's impeachment trial in the Senate, published in Harper's Weekly.

Much has been made in the last couple of days of Nixon and Clinton comparisons to, ahem, the current brouhaha. But as I was prepping this slideshow for a virtual talk at Manny's, I was struck by the surprising similarities between our, ahem, situation, and the context of Andrew Jackson's impeachment in 1868. A quick read of this lucid and helpful Wikipedia article will bring you up to speed. It's a rather obscure chapter in American history; as early as 1896, Edmund Ross commented that "little is now known to the public" about it. After Ross's book, three more books were written about the impeachment trial: David Miller DeWitt's in 1903, Michael Les Benedict's in 1999, and David Stewart's in 2010. What is palpable in all of them (perhaps most so in Stewart's book) is the context: a bitter, partisan, no-holds-barred fight between Lincoln's successor, a moderate Southern Republican seeking reconciliation with the South, and Congress, which sought more sanctions against Southern States during Reconstruction.

Johnson's unbridled anger at Congress will remind you of someone we know: He actively campaigned against Congress, which included a massive speaking tour to "fight traitors in the North." This campaign backfired spectacularly when the election yielded two Republican houses determined to thwart his agenda, and when he tried to get rid of Edwin Stanton, the Secretary of War he inherited from Lincoln and a staunch Unionist. Congress tried to thwart these efforts by passing the Tenure of Office Act, and Johnson, determined to get rid of Stanton, did so nonetheless. Nine of the eleven articles of impeachment revolved around this effort.

Through the prism of 2019, I can't help but read this story as that of a small man with no hope of filling the giant shoes of his predecessor, conciliatory and sympathetic to a grim racist heritage, determined to spite anyone placing limitations on his power to appoint and discard people as he chose. It might cheer you up (or not) to learn that the Senate came one vote short of removing him from office. It might also be useful to keep in mind that the failure to secure the additional vote came from four Republicans voting against their own party out of concerns that the evidence presented against Jackson was one-sided--and a good reminder that, in order to garner legitimacy for the impeachment process, it is important to conduct a thorough and objective investigation that might assuage the concerns that some of today's hesitant Republicans about "witch hunts" and "kangaroo courts." If Democrats want to secure removal in the senate, which for obvious reasons will be an uphill battle, the process has to be fair and also to be perceived as fair.

Hunger Strike in Calaveras County Jail

Calaveras County Jail, courtesy
The Calaveras Enterprise.

Chapter 6 of Cheap on Crime dealt with a transition with our perception of inmates--from wards of the state, who need to be clothed and fed and taken care of for the duration of their sentence, to capitalist consumers, whose every need beyond the very bare minimum (and sometimes even the bare minimum!) is monetized. The consumer label, of course, is ironic

Well, the shit finally hit the fan at Calaveras County Jail, where inmates are fed up with the endless monetization of their lives. The Calaveras Enterprise reports:

Seventeen inmates at the Calaveras County Jail have announced their plan to initiate a hunger strike in protest of “outrageous prices” for telephone calls and commissary items including soup and ramen noodles. 

“Not only are we afflicted, but our families as well,” the inmates wrote in a letter to the Enterprise. “We have made attempts at every other level to have this situation resolved, to no avail. We are hoping that the public can get involved and know the real situation that is going on here.” 

According to the inmates, local calls cost $2.91 for the first minute and 41 cents for each additional minute, while long-distance calls cost only 21 cents per minute. A soup from the jail’s canteen currently costs $1.23. They claim that those prices are far higher than those at other California facilities in which some of them have been detained. 

Nineteen-year-old inmate Marc Holocker told the Enterprise on Monday that prices have gone up at the jail since he was incarcerated in May, and that his weekly allowance of $20 provided by his family is no longer sufficient to meet his needs. Outside of the telephone calls to his lawyer, which are free of charge, Holocker no longer calls family members, he said, opting instead to spend his money on food items.

Just recently I posted about how the prison food industry is one small, often unnoticed "piecemeal privatization" that escapes the gaze of the anti-private-prison crowd. The awfulness and meagerness of prison food (nutraloaf anyone?) feeds (no pun intended) directly into the commissary business. The phone call gauging is an ongoing scandal, in CA and elsewhere (and that's before we even ask hard questions about the calls' privacy). In Cheap on Crime I bitterly commented that people in prisons and jails who review their institutions on Yelp have drawn the natural conclusions about how they're being treated, and it seems the people striking in Calaveras are taking to more direct action.

Crimmigration Meets Sentencing: Assimilating the Apprendi Doctrine to Simplify the Categorical Analysis

As part of my visitorship at Harvard, I'm having the great pleasure of auditing Philip Torrey's terrific Crimmigation class and learning a lot about this relatively new, but hugely important, legal field. After Padilla v. Kentucky, knowing the immigration consequences of criminal convictions are not just "nice to know"--they are an ethical obligation for criminal attorneys, and our shameful immigration policy means that many, many criminal cases will have immigration consequences.

Because removal from the U.S. is one of the most severely destructive things you can do to a person's life--far more destructive than the domestic sentences for many offenses--it is imperative that these consequences be foreseeable. Indeed, when you read caselaw written about crimmigration the judges will often say "this is obvious", but it is not obvious at all. The categories are nebulous and complex, the overlap between federal and state law is far from complete, and on the receiving end of this are people who have to figure out their criminal case strategy with an eye toward the immigration consequences. So, simplifying the analysis is overall a good thing.

In this post I'm presenting one idea/suggestion on a possible simplification of crimmigration, which in the grand tradition of the field, requires importing an idea from the criminal to the immigration realm--namely, planting the Apprendi analysis regarding the definition of an "element" of the offense to the categorical analysis done in immigration removal cases. Let's explain.

When a person is removable from the United States on criminal grounds--whether as "inadmissible" (having not been legally admitted into the country) or "deportable" (having initially arrived here legally)--the law governing the removal can be found in sections 212 and 237 of the INA. These sections enumerate the sorts of criminal consequences that trigger removal. In general--and this is hugely simplified--"inadmissible" noncitizens can be removed following a conviction for a "crime of moral turpitude", a controlled substances offense or two or more convictions of some seriousness, or for being known as a controlled substance trafficker or a trafficker in persons or engaging in prostitution or other commercialized vice. "Deportable" noncitizens can be removed following a conviction for a recent crime of moral turpitude (or a combination of older crimes of moral turpitude), an "aggravated felony" (which need not be aggravated nor a felony), high-speed flight from an immigration checkpoint, failure to register as a sex offender, or an offense involving controlled substances, firearms, or domestic violence (more detail on all this in my colleague Richard Boswell's excellent book.)

The challenge in applying these categories lies in that the federal definition of these offenses, as well as of the concept of "conviction", can differ from the state definition where the person was tried and convicted. Setting aside the issue of "conviction", which in itself is complicated, how can we tell whether a state conviction for a violation of a particular state statute is the equivalent of a conviction for an "offense involving controlled substances" as per immigration law?

To resolve this question, immigration courts recur to the "categorical approach": the analysis focuses on the content of the relevant statutes (the state criminal statute and the federal immigration statute) rather than on the facts that gave rise to the incident. Basically, the court will analyze the offense from the immigration statute, analyze the elements of the criminal statute, and if the former is narrower or equal to the latter (at its least culpable version), the person is deportable on criminal grounds. This kind of analysis is reminiscent of the analysis of several criminal procedure and sentencing doctrines, starting with the application of the ACCA (Descamps, despite having nothing to do with immigration, is regarded as precedent for immigration cases) and continuing with the Blockburger test for "same offense" in the double jeopardy context.

But wait! Things get complicated, because state statutes are seldom straightforward. They often include several alternative actions, circumstances, or mental states. When faced with such complexity, immigration judges have to figure out whether it is a "divisible" or an "indivisible" statute. A "divisible" statute is a statute that includes several alternative elements, in which the jury has to find positively, beyond a reasonable doubt, that a particular subset of these alternatives (as opposed to the other alternatives) occurred. If that's the case, the "modified categorical approach" allows the court to go beyond the face of the statute and look at actual documents from the case--say, the indictment, the plea colloquy, the jury instructions--to figure out which version of the divisible statute the person was convicted of. Then, the court proceeds with the categorical analysis with respect to that particular subdivision. By contrast, some statute will enumerate alternative features, but those don't rise to the level of "elements"--they are merely "means", which is to say, a criminal jury is not required to specify which of these they found occurred in the case. If so, the regular categorical analysis stands and the court won't be permitted to go beyond the language of the statute.

Corollary: It is very important, for immigration law purposes, to know whether the alternative wording in the statute constitute "elements" or "means".

For an example of this analysis, look at the Ninth Circuit decision in Rendon v. Holder (2014). The case involved the California burglary statute, which prohibits entry with intent to commit “grand or petit larceny or any felony.” Because not any felony is larceny, there's a possible argument that this is a divisible statute; but the Ninth Circuit analogized this case to Descamps, which deals with the exact same statute in the ACCA context, to say that it is not a divisible statute. The reason? A California jury deliberating a burglary case would not be required to unanimously decide between “larceny” versus “any felony,” or to unanimously agree as to the “felony.”

How do we know this? One tell-tale sign would be if the burglary statute affixed different sentences to people entering to commit "larceny" and people entering to commit some other felony. That would be an indication that these elements have to be found by a jury. But this is not the case here, so the courts in Descamps and Rendon have to go into the statute and into jury instructions etc.

The thing is, we don't actually need the middle man. In 2000, SCOTUS decided Apprendi v. New Jersey, which is not an immigration case but a sentencing case. The story was as followed: Apprendi fired several shots into the home of an African-American family and made a statement–which he later retracted–that he did not want the family in his neighborhood because of their race. He was charged under New Jersey law with second-degree possession of a firearm for an unlawful purpose, which carries a prison term of 5 to 10 years. But New Jersey also had a hate crime statute, which was not mentioned in Apprendi's charge, and which doubles the sentence of a crime if a trial judge finds, by a preponderance of the evidence, that the defendant committed the crime with a hate motive. Apprendi pleaded guilty, the prosecutor filed a motion to enhance the sentence, and the judge found by a preponderance of the evidence that the shooting was racially motivated. As a consequence, Apprendi got 12 years - 2 more than the maximum sentence for the basic firearms conviction. On appeal, Apprendi argued that the hate motive should have been mentioned in the charging document and proven to a jury beyond a reasonable doubt--in other words, according to the classification that was valid at the time, that the "hate motive", despite appearing in a separate statute, was an "element of the offense" and not merely a "sentencing enhancement." Writing for the majority of the Court, Justice Scalia found that the distinction between an "element" and an "enhancement" was unclear and unnecessary, and that the 6th Amendment, as well as the principle of legality, required a jury decision beyond a reasonable doubt regarding "any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction."

Apprendi yielded a whole series of cases dealing with the question of what counts as an "increase in penalty", but that's not of concern here: what I argue is that the same test can be used in the immigration context, and it renders unnecessary the whole distinction between "elements" and "means." If the ruling in Apprendi is adopted in the immigration context, immigration judges looking at a complex statute need only ask about a particular part of the statute: does this part impact what sentence the person's going to get? If so, the statute is divisible, and this fact is the subdivision we have to apply the modified categorical approach to. If not, the statute is indivisible, and we don't have to worry about this part and we apply the straightforward categorical approach.

Why is this a good suggestion? Well, for one thing, it makes things simpler. This in itself is a virtue in immigration, and the reason why the categorical approach was adopted to begin with: clear administrative decisionmaking and uniformity. This is especially important, because while the logic behind not getting into the facts was supposedly to make things easier, it hasn't, and courts bumbling through doctrinal analysis don't necessarily do a better job than courts bumbling through case facts. If there's something we can do to simplify the doctrinal analysis, we're actually helping.

In addition, adopting Apprendi in immigration removal cases the trend of adopting criminal law logic in immigration contexts, and would do something to correct the imbalance in the interface between the two areas of law. It would also harmonize the tendency to prefer these kind of clean, element-based analysis with other areas of criminal law, such as double jeopardy. 

Finally, this is not a bleeding-heart-open-borders suggestion: presumably, if you are the "you do the crime, you do the time, you leave the country" type, without fair warning as to what the "crime" consists of, you don't have much of a moral basis for your retributive stance.

I'd love to hear your thoughts.

We Have Lost Joan Petersilia

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... and by "we", I don't mean academics, activists, abolitionists, rehabilitation people, professional do-gooders. I also don't mean prison guards, bureaucrats, politicians, paper pushers. And I don't even mean prisoners and their families.

I mean all of us.

Joan was one of those rare academics who managed to find common language with everyone involved in corrections without compromising her ideals. I had read her scholarship before meeting her in person in the early 2000s, when she gave a talk at Berkeley about how she convinced then-CDC officials to add the "R" for rehabilitation to CDCR's mission. I was young and naive and thought she was compromising to even sit at the table with them. I didn't quite understand that the way to get things done is to forge coalitions, and the compromise and incrementalism are necessary. It's a wisdom that comes with age and experience, but Joan seemed to be precocious at implementing its lessons throughout her career.

Joan knew California prisons inside and out. Her early work in 1978 was an interview-based examination of criminal careers, in the fine tradition of Shaw and McKay--15 years before "life-course criminology" was even on the horizon. She studied racial disparities in criminal justice when David Baldus' study was fresh off the presses and broadened his work in a systematic, quantitative way far beyond the death penalty. She collaborated with people of all political stripes, including J.Q. Wilson. She knew that being kind, generous, and collaborative with politicians and administrators meant access to the things we crucially needed to know about our prisons, and that actually researching and exposing truth was more important than empty posturing about integrity. Many of us in the field would do well to follow her example.

Much of her later work was devoted to issues of reentry, rehabilitation, and parole. She conducted excellent quantitative studies on probation and parole release. She was a pioneer in thinking about the fact that most people in prison eventually return to their communities and thinking about what would work best to address their needs. Joan collaborated with colleagues and students to offer a series of sensible recommendations that would make parole so much better by depoliticizing it and making it about hope and support, rather than about emotion and hysteria.

And at the same time she was producing an astounding volume of high-quality scholarship, Joan encouraged and mentored everyone around her, including her students. She was unfailingly kind and generous. She followed Yesterday's Monsters since its inception with good advice (I believe she's the first name listed in the acknowledgments) and inspired much of its inquiry. A few weeks ago I sent her an email inviting her to write a blurb for the back cover. She wrote back right away:

This book sounds incredibly exciting and path breaking. I’m afraid I have to decline providing a blurb, as my health is just not up to it. I’m back on chemo and it really affects my brain. What they say about this is really true! I have a very hard time reading and remembering what I have read, or composing anything literate. The doctors say this will pass and my prognosis is good, but it is what it is for now and I have no way to gauge how long this will last but likely for more than a year. I hope you understand, as I am sorry about this and would have done it in a minute under normal circumstances. I can’t wait to read your book and hope it’s a bestseller! You can count on me to buy one of the first copies available!

That Joan was so sick and yet took the time to write me such a kind email is emblematic of her unfailing kindness and generosity. She was such a class act. Little did we know that things were going to turn around and we were going to lose such an important and precious colleague and friend. Joan, the first signed copy of the book is in the mail on its way to heaven. What is remembered, lives, and by that measure, your goodness and wisdom is immortal.

Progressive Punitivism in the Animal Protection Movement

Juno, the dog from Oregon v. Newcomb. Image
courtesy BarkPost.

A while ago, I read and commented on Oregon v. Newcomb, a Fourth Amendment case involving animal cruelty charges. The case was very interesting both from an animal rights perspective and from a search-and-seizure perspective: A cop was called to a woman's house following complaints of abuse and neglect of her dog. Upon arriving, the cop found the dog emaciated, seized him, and took him to the police vet. The vet took a blood test, found out there was nothing wrong with the dog except he was being starved, and charges were filed against the woman. She filed a motion to suppress the blood test results, arguing that it was a warrantless search of her property. 

The Oregon Supreme Court wrote a wonderful opinion from an animal rights perspective: Even though the Fourth Amendment protects people's "effects" from unreasonable search and seizure, some "effects" differ from others in that they are sentient. From a Fourth Amendment perspective the decision was more nebulous; it is unclear whether the court meant that the blood test was not a "search", or a permissible search due to exigent circumstances because of Juno's condition. 

But there was one thing that caught my eye as I was reading the decision, and I highlighted it in my review:

It's not difficult to read between the lines in Newcomb, even though the Court doesn't really do that. Newcomb said to the police officer that she fed the dog WinCo food bought in small packages. WinCo is a low-grade kibble that sells in bulk at Costco, chock-full of grains, chemicals, and artificial fillers. It's telling that the defendant did not buy the kibble in bulk, but rather in small packages: poor people can't afford to spend on bulk and reap the savings, which is true for every product. As Yesim Orhun and Mike Palazzolo found in a study based on Nielsen data, frugality is hard to afford. 

Hastings is located in San Francisco's Tenderloin neighborhood, which is a window into the lives of people ravaged by extreme poverty. We frequently see folks who live in the streets with pets, which almost always seem groomed, well-fed, and very much loved. But since homeless people's lives, by their very nature, are exposed to the eyes of strangers, the ability to detect animal welfare and neglect is heightened, to the point that the police might intervene more frequently than when it gets reports of neglect in houses. Obviously, Newcomb was not homeless. But the reason she provided for the dog's emaciated condition is very telling, and might also explain the police's zealousness in following up on the complaint. 

Don't get me wrong: I think the court's decision is 100% correct. The rights of an animal that is mistreated should trump the "ownership" rights of whoever owns him or her, regardless of social class. But I think it does raise questions as to whether we enforce these laws equitably, and whether we should develop means to report and expose animal abuse and neglect in other settings. 

Happily, my colleague Justin Marceau from Denver University has addressed this issue much more thoroughly in his excellent new book Beyond Cages. Marceau's main argument is that, amidst the diverse and varying opinions and philosophies underpinning human enthusiasm for protecting nonhuman animals, the movement, such as it is, tends to coalesce around the lowest common denominator: crying out for harsher and harsher punishments for animal cruelty. And, just so that we understand, this rarely manifests in thorough investigations against corporate giants propagating animal cruelty, such as Smithfield Foods or Sunrise Farms (suppliers of the so-called 'humane meat/eggs' to Whole Foods and Amazon): much more common is taking out our collective ire at individuals, because, as both Marceau and Sherry Colb argue, this allows us to keep engaging in everyday complicity in cruelty to animals (via consuming animal products, visiting zoos and circuses, wearing leather, etc.,) while pretending that cruelty to animals is an aberration, a personal pathology of deranged, psychopathic individuals who abuse and neglect the animal we most care about as a society: our beloved, anthropomorphized pets (for a fascinating critique of pet ownership, see Jessica Pierce's fantastic and thoughtful book.)

One of my students wrote a marvelous seminar paper last spring about touch deprivation in the lives of the homeless and, among her other arguments, she highlighted how we dehumanize homeless people while purporting to care for the welfare of their pets. I'm not 100% on board with her (well made) arguments, because I don't see the animals raison d'être as providing companionship to people, but I loved that she problematized the criminalization of poverty through arguments of animal cruelty.

As an animal rights person, I am so glad people are making this point, because I think this recurrence to punitivism weakens, rather than strengthens, the animal rights movement; but it seems that Marceau sees this as an aberration of the animal rights movement compared to other civil rights movements. Marceau writes:

The animal protection movement - on an organizational and individual level - regard the fight to secure protections for animals as a civil rights issue. Analogies to women's rights, LGBTQ legal victories, and even the abolition of slavery and the fight against racism are common tropes. But is the movement seriously interested in civil rights and broad social change? Incarceration is a most unlikely ally for a movement that might earnestly desire far-reaching social reform. Never has a social change or civil rights cause been so thoroughly immersed in the coercive, prosecutorial arm of the State. Indeed, the animal protection movement's commitment to ever harsher criminal punishments and more aggressive enforcement of the criminal law may serve as a case study for understanding how other movements should conceive of their relationship with the carceral state.

Unfortunately, if other movements have not managed to co-opt the "coercive, prosecutorial arm of the State" for social justice ends, it's not for lack of trying. As I explain here, here, here, here, and here (coming soon to a database near you via Vol. 68 of the Buffalo Law Review), a considerable thrust of the social justice struggle's energy has been devoted to shaming, discrediting, obliterating, calling for prosecution and incarceration of, and taking away due process protections from the people these movements dislike. The latest example (for shame!) is the absurd and obscene persecution of Judge Persky; the scorched-earth mentality knows no bounds and has followed him off the bench as well. If anything, the animal rights movement is an example of what happens when this animus, which enjoys considerable success in destroying and ruining people's lives via the cyber-guillotine of social media, is coupled with state cooperation.

Indeed, that we see this phenomenon operating in distinct and separate activist spaces such as the animal rights movements and, say, #metoo, is proof of what I argue in my Progressive Punitivism piece: that this is not some isolated pathology of the left, but rather part of the collective disease we all suffer from--across the entire political spectrum--as a consequence of marinating in the carceral state logic for the last fifty years. When we've been consistently taught, since Nixon (and perhaps even before), that all problems are criminal justice problems, and that all of them can and should be solved by locking people up, is it really any surprise that we see this logic operating in entirely different spheres of the social activism world?

Precisely because the animal rights movement regularly makes comparisons to other social justice causes (which I, for one, see as perfectly apt and insulting only if one views them through a speciest lens), it should lead the way in seeking to liberate, not to incarcerate. The true meaning of intersectionality lies in finding common ground and uniting struggles, not in hairsplitting the left apart. If this movement wants to expend energy in the direction of the criminal process, it must do so by providing strong support to open rescuers arguing for a necessity defense; for people who are facing the carceral state, not propping it up. 

People with Felony Records Approved to Serve on Juries in CA

KTVU reports:

The California Legislature approved "The Right to a Jury of Your Peers," allowing people with a prior felony conviction to serve on juries in California for the first time. 

Current California law excludes from jury service people who may have had a graffiti conviction when they were 18 or a marijuana conviction from high school.  

Under SB 310, those with a felony record would be eligible to serve on a jury, unless the person is on parole or probation, or a registered sex offender for a felony conviction.

Here's the text of SB 310, which suggests that there's now an overlap between voting and serving on juries--with the exception of registered sex offenders.