Friday, April 3, 2020

Gov. Newsom, Please Release More Prisoners to Prevent CDCR from Becoming a Mass Grave

Dear Gov. Newsom,

Many thanks for your tireless work on behalf of Californians in their hour of need. I can only imagine the multiple emergencies on your agenda and the many proverbial fires you must put out to "flatten the curve" and give our emergency services a fighting chance against the COVID-19 pandemic.

I appreciated learning about your recent commutations, as well as about the plans you have put in place to release 3,500 prisoners from CDCR custody. It is a good start, but, unfortunately, it will likely be merely a drop in the bucket.

Less than a decade ago, the Supreme Court found healthcare conditions at CDCR so appalling that, every six days, a person behind bars died from a preventable, iatrogenic disease. The Court attributed this massive failure to deliver anything that could be even remotely called "health care" to overcrowding in prisons, and supported the federal three-judge panel recommendation to release approximately 30,000 prisoners. That has somewhat improved the situation, but even with massive efforts toward a turnaround on the part of the federal receiver, we are still seeing woefully deficient healthcare--interminable lines and wait times, people treated in cages in which they have to wait for hours, "group therapy" consisting of a semicircle of cages.

And that's without a pandemic going on.

Gov. Newsom, our prisons are a Petri dish for contagion and disease. It is impossible to provide minimal health care to this many people with a highly contagious virus on the loose.

The Public Policy Institute of California, relying on CDCR statistics, reports that 23% of California inmates are 50 or older. Aging prisoners may be contributing to California’s prison health care costs—now highest in the nation. The state spent $19,796 per inmate on health care in fiscal year 2015, according to the Pew Charitable Trusts. These costs were more than three times the national average and 25% more than in 2010. Moreover, many California prisoners serve extremely long sentences: Approximately 33,000 inmates are serving sentences of life or life without parole. Another 7,000 are “third strikers,” fewer than 100 of whom are released annually after serving about 17 years. Fewer than 1,000 of these inmates are released every year, typically after spending two or more decades behind bars.

Isn't decades in prison enough? How much retribution or deterrence do we still need for people serving sentences of 30, 40, or 50 years, that we must keep them behind bars for longer in the face of a lethal pandemic?

Robust research about aging in prison confirms that people age much faster behind bars than they do on the outside, and they are much more vulnerable to disease--partly because of confinement conditions and partly due to faulty health care.

The scale of releases we should contemplate is in the tens of thousands, not in the thousands. If you do not act now, within a few short weeks, the CDCR will become a mass grave.

Please, don't let the current litigation be the only push to do the right thing. You have done the right thing so many times--as Mayor of San Francisco and as our Governor. The prisoners are Californians, too. They can't vote from prison, but they are your constituents and you must consider their welfare.

Please, act now, before thousands of lives are lost.

Readers, please join this open letter by signing my Change.org petition.

Tuesday, March 31, 2020

Health Measure or Oppressive Social Control?

The 'Splainer: What is a mikvah, and does it have anything to do ...

One of the hottest stories from quarantined Israel is the fierce Haredi (Ultra Orthodox) objection to the closure of mikvaoth (ritual bathhouses.) Almost two weeks ago, Ha'aretz reported:

Another issue of concern is immersion in a mikveh, a ritual bath, especially for women, who must immerse every month under the rules of family purity. 
“The mikvehs for women’s immersion are under constant supervision, so there is no reason to fear keeping the mitzvah of purity properly,” the Rabbinate’s document states. However, “anyone who must be in quarantine must postpone her immersion until she is permitted back out.” 
Indeed, keeping the mikvaoth open is strongly suppported (!) by Israel's health minister Ya'acov Litzman, himself a haredi man. Decrees published late at night confound the Israeli public with contradictory policies: the decree was to close the mikvah for men, but keep it open for women. If you're looking for a patriarchal angle, here it is: women's access to the mikvah to purify themselves after their monthly period is a prerequisite for having sex, and is therefore in the best interest of their husbands. Then, they changed course and reopened the mikvah for men also, apparently under the pressure of Ultra Orthodox groups who wanted to ensure access to this prerequisite for visiting holy sites (in itself a can of worms in the context of quarantine.)

The most recent development is Litzman's insistence to keep the mikvaoth open because "it is inconceivable that people should be allowed to take their dog out for a walk and the mikvaoth will be closed." When Netanyahu said, "what can we do, the virus does not respect religion," Litzman replied, "well, we will."

Setting aside the absurdity of a health minister who apparently does not care for the health of Israeli citizens, particularly those of his own congregation, and who will not use his insider influence to talk the Rabbis into saving their own followers, I was starkly reminded of a similar dark period in history--namely, the tragic days of the 1980s, in which San Francisco was in the throes of the AIDS epidemic and the numbers of the stricken rose every day. Young people were going to funerals incessantly, caring for each other in desperation against an indifferent administration, and waging battle on two fronts - against the disease and against homophobia.

When Mervyn Silverman, then the Director of Health in San Francisco, decided to close the bathhouses--a hotbed of gay liberation and sexual activity--he encountered vociferous objections from many in the gay community. The New York Times from 1984 reported:

Dr. Mervyn Silverman, San Francisco's Public Health Director, said at a news conference that the 14 establishments ''have been inspected on a number of occasions and demonstrate a blatant disregard for the health of their patrons and of the community.''
He said the establishments were among 30 businesses investigated by undercover health officials since an April ordinance went into effect banning ''unsafe'' sexual activity at sex parlors and bathhouses. The 14 that he ordered closed have not complied with the ordinance, said Dr. Silverman, who has been under pressure from Mayor Dianne Feinstein to order the shutdowns.
The authorities posted closing notices effective at noon on the sex club buildings. If a notice is ignored, the city would go to a judge to obtain a court order shutting down the operation.
Dr. Silverman's announcement came just a week after the department released figures showing an increase in reported AIDS cases in San Francisco, where officials estimate that 15 percent of the city's population of 700,000 is homosexual.
Last month 39 new cases of AIDS were reported, for a total of 723 since July 1981. Eighteen AIDS patients died in September, the department said. According to the Centers for Disease Control, a Federal agency based in Atlanta, 6,122 AIDS cases have been reported throughout the United States and 2,734 of those patients died.
Gay liberation activists considered this a thinly veiled effort to push the community, who had just recently achieved a modicum of acceptability, back into the closet. In the context of a similar debate in New York, the AP reported:

″My generation sees this (opposition to the bathhouses) as endangering hard-fought, hard-won and well-deserved advances. What they don’t realize is that this was before the virus came along,″ said Caiazza, whose West Side medical practice has become more and more devoted to AIDS in the past three years. 
Fascinatingly, there are still people who believe--today, after all those years--that the closure was an unnecessary homophobic move. Gayle Rubin writes:
Proponents of bathhouse closure, such as Randy Shilts, argued that their program was an obvious common sense measure to save lives. They portrayed the debate about closure as one pitting public health against civil liberties. Shilts in particular wrote as if public health professionals were in agreement on the desirability of closing the baths, and that only political considerations were preventing them from doing so. (Shilts 1987)
On the contrary, bathhouse closure, far from being an obvious public health measure impeded by political pressure, was a case of political pressure overwhelming public health considerations. Public health professionals were not unanimous about the necessity or desirability of closing the baths, which stayed open in most other cities. It is ironic that while there are still no legal gay bathhouses within the San Francisco city limits, establishments in nearby municipalities such as Berkeley and San Jose have continued to thrive.
It is arguable that what mattered in the long run was changing behavior, not its location. Closing the baths may have actually impeded the progress of safe-sex education. Even in situations where the ownership did not cooperate, safe sex was spreading, like the epidemic itself, from person to person, through sexual contact, as men would engage each other in discussions of what they were or were not about to do. Wholesale closure eliminated opportunities for sex education along with opportunities for sex. At the baths, the concentrated populations of those at high risk for AIDS provided opportunities for educators to disseminate condoms along with written guidelines for AIDS risk reduction. (Murray & Payne 1988; Bolton 1992)
The social costs of closing the baths were treated cavalierly. Those who pushed for closure appeared to assume that nothing important or good ever happened in the sex palaces. They failed to recognize the baths and sex clubs as important institutions that served many needs within a diverse gay male community. (Brub 1996) The major gay baths had deep pockets and expensive attorneys, and could afford a protracted legal fight. By contrast, many of the leather clubs were relatively small operations in which a dedicated owner had invested most of his capital and a great deal of personal commitment, and they could not afford prolonged litigation. Calls for closure quickly claimed most of the specialized leather, SM, and fisting sex clubs even before any city actions were taken, and as the agitation intensified, most of the men who ran the leather clubs elected to shut down and limit their losses. The wider social and economic fallout from closure was also substantial. While the owners of bathhouses were frequently vilified as greedy capitalists (and some undoubtedly were), the debates never grappled with the importance of the baths to gay male social life or the economic impact of closure on the gay economy.
I vehemently disagree with Rubin: Closing public bathing facilities in the face of a pandemic, whether they cater to the haredi or the gay community, is not a "case of political pressure overwhelming public health considerations." If anything, the vociferous insistence on the opposite policy is a textbook example of precisely that. While it may be true that people who hate haredim or who are deeply homophobic find a measure of schadenfreude in the resulting harm to community morale--and the pain of that should certainly be acknowledged--when saving lives is at stake, we absolutely must do what we can.

It's instructive to read Silverman's aftermath thoughts about the closures, as he laid them out in an interview in 2004:

What was unique here was that people could come there and have multiple partners, as many as 20 or 30 a night. Most men, heterosexual men, could not understand how this was possible, but if you are the recipient, then obviously you could have as many partners as you can tolerate. And if you had 30 partners, and one or more of those partners was HIV positive, there was a good chance, not necessarily every night or whatever, but you were placing yourself at great risk -- unknowingly, of course, in the early years -- at risk for getting infected. ...
The mayor at that time said, "If you save one life, then it's worth closing the bathhouses." At the time that this was going on, it was my feeling that we wouldn't save one life; we would lose many more, because the bathhouses represented 5 or 10 percent of the gay community on any regular basis. That's who frequented those bathhouses. That left you with 90 or 95 percent of the community you needed to reach, because if you could make the bathhouses disappear overnight, you weren't going to make the transmission of this virus disappear overnight. One had to think of the entire community, and how do you reach that community and get a behavior change?
Interestingly enough, before any of the drugs were discovered and out in general distribution, the rectal gonorrhea rate in this city dropped from 100 percent that we had figured that we had before down to 15 percent. There was an 85 percent drop. The reason I bring that up is in the early years, that was what we were using as a surrogate marker. We didn't have HIV identified or the test, so we figured if someone had that, there was a good chance they may have whatever this new disease was. This dropped 85 percent before any drugs, and the reason it dropped was the exposure that the Health Department and working with the gay community had in getting the message out and getting behavior change, a behavior change never seen before.
If you have an obesity clinic, a smoking cessation clinic, a drug substance abuse clinic, where you're trying to get people to stop, and you get a 20 percent success rate, ... you feel you've had a success. We're talking here about an 85 percent drop in rectal gonorrhea. That meant that from a public health perspective, we must have been doing something right.
Had Litzman not been, essentially, a mouthpiece for Rabbis who flout state law and regulation, he could have been a bridge that reaches across the abyss with empathy and compassion for the community's plight. There is still an opportunity to do this, because every day that the mikvaoth remain open is another victory for the contagion. I write this being fully aware of the fact that I'm not on the receiving end of such measures, and that--as opposed to Rubin--I didn't live through the worst of the AIDS epidemic and perhaps that dulls my appreciation for the psychological blow that the closures had on the community. While emergency measures must be taken if lives are to be saved, we can do so as we express sensitivity to people's communities, sense of collective identity, and allegiance to community norms.

There is an additional point that matters a lot. Recently, Cianna Stewart, who worked on the front lines of AIDS prevention in the 1990S, wrote a piece comparing her personal experiences of the two pandemics. She found many similarities between the two experiences, but some important differences:

  • this timeline is much faster
  • this virus is much easier to spread
  • a racist/xenophobic backlash operates differently from a homophobic backlash because while individuals are being racist against Chinese (and perceived Chinese) people, as a society we have a different understanding of how racism is wrong, in contrast to the societally-supported moral outrage against gays and bisexuals which was widespread then and still lingers to this day (it’s also different that now we have a President who is actively stoking the racism where before the Presidents primarily engaged in homophobia and racism by omission)
  • the coronavirus is spread through everyday activities, while HIV is spread primarily (although not exclusively) through vilified behavior and actions veiled in secrecy (for example: it’s generally easy to have conversations with family about wanting to play basketball or hug people, but generally hard to talk with family about longing for unprotected sex)
  • COVID-19 has the potential to spread through families and there are many stories about families in grief about not being able to be with their dying loved ones, in contrast to people getting kicked out of their families for being gay and/or when they contracted HIV (I will note that in the early days of the AIDS crisis there was a lot of fear and misinformation about routes of transmission and some families wanted to be with their dying but were afraid or prevented from doing so)
  • people don’t have to get infected or know anyone who’s infected in order to feel their lives are being torn apart by this pandemic because it already has had a broad economic impact that is likely to get worse, and in the short term is devastating for so many individuals and in the long(er) term may push us into a depression and is likely to restructure our global economy
  • many people in epidemiology circles have been predicting a superflu pandemic like this for a long time and we shouldn’t act like it’s a surprise

To the extent that the decision to close the bathhouses in 1984 is still controvesial, a decision to close the mikvaoth should be consensual precisely because of these factors: the fast spread of the virus, the contagion, and the spread through everyday activities that cannot be stereotyped as prioritizing one group over others.

Mr. Litzman, while it is too late for too many people, it is not too late to save lives in a community ravaged by this virus. Close the mikvaoth now.

Sunday, March 22, 2020

Israel and the U.S. - Emergency Measures

Political historian Heather Cox Richardson writes a daily news digest titled Letters from an American. In last night's edition, she flagged the story about the DOJ secretly seeking emergency powers. She writes:
In the last two days, we learned that the administration and Republican members of Congress heard dire warnings about the coming coronavirus and continued to lie to the American people, telling us the Democrats trying to alert us were simply bent on undermining Trump. 
We also learned that Trump has refused to use the Defense Production Act, passed under President Harry S. Truman, who used it during the Korean War. This law would enable Trump to demand that American industries produce the medical equipment we currently need so badly. Business leaders say the invoking the law isn’t necessary, and Trump claims they are volunteering to produce what the nation needs in a public-private partnership. Currently there is such a critical shortage of medical equipment that some hospitals are asking people to sew basic masks at home, but today Trump announced that the clothing manufacturer Hanes is retrofitting factories to make masks; it has joined a consortium that is expected to produce 5-6 million masks weekly. 
These two stories reveal the same ideology that would underlay a law permitting arrest and imprisonment without trial: that society works best when it defers to a few special people who have access to information, resources, and power. Those people, in turn, use their power to direct the lives of the rest of us in larger patterns whose benefit we cannot necessarily see. We might think we need medical supplies but, in this worldview, using the government to force individual companies to make those supplies would hurt us in the long run. This ideology argues that we are better off leaving the decisions about producing medical supplies to business leaders. Similarly, we need leaders to run our economy and government, trusting that they will lead us, as a society, toward progress. 
But there is another way to look at the world, one that is at the heart of American society. That ideology says that society works best if everyone has equal access to information and resources, and has an equal say in government. In this worldview, innovation and production come from people across society, ordinary people as well as elites, and society can overcome challenges much more effectively with a multiplicity of voices than with only a few who tend to share the same perspective. To guarantee equal access to information, resources, and government, we all must have equality before the law, including the right to liberty unless we have been charged with a crime. 
For decades, now, America has increasingly moved toward the idea that a few people should consolidate wealth and power with the idea that they will most effectively use it to move America in a good direction. But the novel coronavirus pandemic has undercut the idea that a few leaders can run society most effectively. The administration’s response to this heavy challenge has been poor. And now we know that the very people who were publicly downplaying the severity of the coronavirus were told by our intelligence agencies that it was very bad indeed, and they were sharing that information with a few, favored individuals. Their leadership will literally, and quite immediately, cost a number of our lives.
I was struck by parallels in Israel. Dan Yakir, legal advisor to ACRI (the Association of Civil Rights in Israel) shared an email last night--here's my translation (Dan, I hope I'm staying true to the letter):


On March 21, 2020, we wrote to the Attorney General and expressed concern about government offices acting without legal authority, sheltered by the coronavirus crisis. For example, this week, the spokesperson for the Ministry of Health shared an announcement that included a variety of prohibitions, such as leaving the house for any nonvital purposes and hosting family and friends, with no basis; the legal office at the Ministry of Health demanded, with no legal authorization, that all Deans of health sciences schools provide a list of their students so they can be drafted if there's a shortage in medical personnel; the Ministry of the Treasury published on its website on Friday instructions to employers about minimizing the number of onsite workers, even though corresponding emergency regulations have not been published yet. 
Most extreme is the Prime Minister, who almost every evening announces new limitations and decrees to the public. He never announces when they will attach. Most of the time, these are instructions with no legal validity and in some cases they are policies that have not yet been solidified and detailed. Ever since the Prime Minister's announcement on the evening of Feb. 19, 2020, the public has been misled to think that a curfew policy is in effect. The publication of the draft regulation in the news outlets has bolstered this [mistaken] impression, but in this case, also, emergency regulation has not been published and its complete articulation has not been completed. 
Against this backdrop, consider the Minister of Security's tweet from a few days ago, in which he encourages senior state workers to act at any price to anticipate the coronavirus: "If need be, knowingly violate the rules!"
ACRI's letter to the Attorney General (in Hebrew) is here.

The whole world, of course, is experimenting with emergency regulation these days. But the striking similarities between the U.S. and Israel in particular are not surprising. In a recent paper, I argue that American influence on Israeli criminal justice policy stems from some similarities between the two political cultures. Drawing on Malcolm Feeley's argument about viewing American criminal justice through the lens of American Political Development, I argue that the U.S. and Israel are best compared to developing nations where criminal justice is concerned:
Looking at both countries through the lens of development theory highlights several relevant similarities. First, both countries have a strong legacy of ethnic and racial conflict, which impacts the composition of the population subjected to criminal justice control. Second, both countries are characterized by high levels of interpersonal violence and, relatedly, a high concentration of guns. In the United States, gun ownership is the outcome of both illegal purchase and permissive gun laws, and in Israel, guns circulating in civilian hands are related to the wide access—legal and illegal—to military weaponry even in civilian spaces. In both countries, fetishization of protectionism and aggressive bravery plays into the culture of interpersonal violence. Third, both countries are characterized by unusual levels of police overreach and brutality, far beyond their Western industrialized counterparts. And fourth, both countries rank considerably higher than other Western industrialized countries in perception of political corruption—in 2018, the United States at 22 and Israel at 34.
The context in which these characteristics arise is, of course, different for the two countries. The United States has a long and difficult legacy of slavery, whereas in Israel the ethnic conflict stems from the Israeli-Palestinian conflict and the Occupation, as well as from ethnic and religious tensions within the Jewish population. Moreover, gun ownership has a very different cultural significance in the two countries, though they both share fear and concern about guns ending up in inappropriate hands. And the differences in scale matter a great deal; it has often been said that “American criminal justice” is not a monolith, as there is considerable difference among state criminal justice policies. Still, on a national scale, the cultural comparisons are striking. The trend of comparison is especially evident when comparing the Netanyahu and Trump administrations’ positions on crimmigration, drug enforcement, severity of punishment, and racial/ethnic discrimination in application of laws. Some manifestations of these policies have been particularly similar: The separation of immigrant children from their families at the American border, widely criticized both domestically and internationally, was reverberated in the incarceration of African asylum seekers at Saharonim prison in the desert, a policy move which similarly provoked international critique. Similarly, the Trump Administration’s enthusiasm for the death penalty for drug dealers, even as the penalty is in its final throes, is echoed by legislative efforts in Israel to make capital punishment a de-facto option --with supporters in both countries making deterrence arguments.

I think the same mechanisms are at work in the creation of emergency legislation. The same vulnerabilities and predatory governing techniques are at work in both countries, and they fuel fantasies of despotic governing, for which the global health crisis provides the perfect cover. It's not that the measures themselves are unreasonable; if adopted through proper parliamentary process, many of them make sense in the current crisis. My concern is that disturbing precedents to proper governance are made in both countries, whose poisonous effects will remain with us long before the virus is abated.

Saturday, March 21, 2020

Coronavirus and Criminal Justice Compendium

General
No need to wait for pandemics: The public health case for criminal justice reform
California Coalition of Women Prisoners Syllabus on Coronavirus and Corrections

Crime Rates
Concerns about layoffs leading to rise in crime rates
Some police say crime down during COVID-19 fight
INTERPOL warns of financial fraud linked to COVID-19
The Virginia Coronavirus Fraud Task Force

Compilations of State Responses
Justice Collaborative: COVID-19 (Coronavirus) Response & Resources
The Appeal: The Coronavirus Response: Spotlight on State & Local Governments 

Bay Area Jail Releases
San Francisco Releasing 26 Jail Inmates To Help Stem Coronavirus Spread

SF Marijuana Dispensary Debacle
San Francisco cannabis dispensaries win reprieve from coronavirus shutdown order
Confusion Plagues Bay Area Cannabis Industry Over ‘Essential’ Designation

Drug Addiction Therapy and Response
DEA COVID-19 Response Page
Safe Injection Sites: Coronavirus Underlines Why They Make Sense
AA Response to COVID-19

Policing
D.C. Cops Balance Bravado and Caution During COVID-19 Pandemic
SFPD Response to COVID-19

Prisons
This Chart Shows Why The Prison Population Is So Vulnerable to COVID-19
What Coronavirus Quarantine Looks Like in Prison
Tracking Prisons’ Response to Coronavirus
As COVID-19 Measures Grow, Prison Oversight Falls

Experiencing and Fixing Miscarriages of Justice
What It’s Like to Be Freed from Death Row During the COVID-19 Pandemic
Amidst Coronavirus Pandemic, Darrill Henry Wins a New Trial, But Must Wait in Prison
Alabama halts pardon, parole hearings due to COVID-19

Wednesday, February 19, 2020

Body-Worn Cameras in Prison?


I just got off the phone with a person who is serving a long sentence in a CA prison (I will keep the person's details to myself to preserve their anonymity.) The person heard my KPFA interview about Yesterday's Monsters and some of the reforms I suggested resonated with them. They had some reform ideas of their own, which struck me as interesting and important, and I promised them I would float them to the criminal justice reform community, and here's the most obvious and interesting one: Why not require that correctional personnel wear body-worn cameras in prison?

It's certainly an idea whose time has come; I've looked at a few correctional gear websites and the technology exists. Problems with privacy and technology quality now have solutions. More importantly, everybody wins. I think it's an easy sell to the correctional community: look at this CorrectionsOne article from 2014, before the technology became ubiquitous in police departments around the country. Prison guards might be well served to rely on the proven effects of the technology in improving the behavior of the incarcerated people they interact with, as well as addressing false accusations of brutality and avoiding lengthy and costly litigation. Incarcerated folks could use them to pursue redress in cases of physical or sexual assault. Moreover, footage captured in the course of an incident leading to a disciplinary write-up (115/128 in CA) could be used to explain the circumstances of the write-up to the prison authorities and/or to the parole board. In short, everyone wins. 

The privacy concerns that are often raised in the context of police-worn cameras are largely mitigated in a prison environment. Prisons are already equipped with cameras (apparently woefully antiquated ones compared to the capabilities we have now) and people do not have what the law recognizes as a reasoanble expectation of privacy in prison (e.g., Samson, Florence). 

Cops, Cameras, and CrisisAili Malm and Mike White have a wonderful new book out about body-worn cameras for police officers. They review the scientific evidence we have on the impact of body-worn cameras on policing quality, use of force by and against the police, behavior toward the police, complaints (true and false), etc., and offer some helpful policy guidelines for how to regulate the use of cameras. The thorniest issue, I think, is how the footage gets used. Prisons would require careful regulation of the footage use and access to it--even more so than in the police context, because the access to technology to see, let alone use, the footage is so asymmetric. But that something is difficult doesn't mean it should not be done. If it's something that is likely to improve behavior in prisons and prevent violence and abuse, it should be in everyone's benefit to implement it. 

I'd like to hear from you, readers, what you think about this idea. What do we know about current camera coverage of prisons? What gaps are there in the factual accounts of narratives about encounters between prisoners and guards that cameras could fill? How much would it cost to fit the entire correctional staff at CDCR with cameras and to process and store the footage on the cloud? Most importantly, are there any drawbacks to this idea that my correspondent or I might not have thought about?

Sunday, February 9, 2020

Release Party for Yesterday's Monsters

Hi, Dear Readers! My new book Yesterday's Monsters: The Manson Family Cases and the Illusion of Parole is out from UC Press and I am inviting you to celebrate!



When: Wednesday, March 11

Where: Manny's, Valencia & 16th

What:

In 1969, the world was shocked by a series of murders committed by Charles Manson and his “family” of followers. Although the defendants were sentenced to death in 1971, their sentences were commuted to life with parole in 1972; since 1978, they have been regularly attending parole hearings. Today all of the living defendants remain behind bars.

Relying on nearly fifty years of parole hearing transcripts, as well as interviews and archival materials, Hadar Aviram invites readers into the opaque world of the California parole process—a realm of almost unfettered administrative discretion, prison programming inadequacies, high-pitched emotions, and political pressures. Yesterday’s Monsters offers a fresh longitudinal perspective on extreme punishment.

Book reading, signing, parole reform, food, drink!

RSVP HERE!

Tuesday, January 28, 2020

The Prefrontal Cortex Strikes Again: Bill to Raise Age for Trying Juveniles as Adults to 20

The Sac Bee reports:

A California lawmaker argues that 18- and 19-year-olds aren’t mature enough to do prison time if they break the law, and so she has submitted a bill that would treat them like juveniles.
“When teenagers make serious mistakes and commit crimes, state prison is not the answer,” said bill sponsor Sen. Nancy Skinner, D-Berkeley. “Processing teenagers through the juvenile justice system will help ensure they receive the appropriate education, counseling, treatment, and rehabilitation services necessary to achieve real public safety outcomes.”
Skinner's proposal is the last in a series of legislative and judicial changes reflecting what I referred to, in Yesterday's Monsters, as the "rediscovery of childhood." Since the early 2000s, our understanding of childhood and its implications as to accountability has undergone a dramatic scientific, legal, and social transformation. Recall the miscarriage of justice depicted in Ken Burns’ documentary The Central Park Five, in which five teenagers were accused, and wrongly convicted, of assaulting Trisha Meili in New York’s Central Park in 1985 and leaving her for dead. 



Current audiences bristle at the tough prosecutorial interrogation of children, but the newspaper headlines of the day (as well as rabid ads and media appearances by a younger Donald Trump) depict the youngsters as a “wolf pack” of “superpredators.” This case was no outlier: prompted by the media frenzy over the crack epidemic,  young criminal offenders, particularly African Americans, were regularly dehumanized, their age denoting danger rather than mitigation or rehabilitative potential.

However, the early 2000s, new brain imaging technologies enabled neuroscientists discover that the prefrontal cortex, which is responsible for the ability to delay gratification, exercise emotional regulation, and resist pressure, continuously grows well into our mid-twenties,  which explains impatience and rash decisions by teenagers and adolescents.



These developments first permeated the legal field in Roper v. Simmons,  where the Supreme Court struck down the death penalty for minors as unconstitutional. The court found that juveniles to be immature and irresponsible, more vulnerable to peer pressure, and possessing a “more transitory, less fixed” character. These differences “render suspect any conclusion that a juvenile falls among the worst offenders”, and therefore, from a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed.” 

The decision in Roper energized petitioners serving lengthy sentences for crimes committed when they were minors, and other landmark decisions followed. In Graham v. Florida,  the Supreme Court struck down life without parole for non-homicide offenses committed by juveniles, citing similar rationales, and explaining that the aims of punishment do not support such a harsh sentence for crimes other than homicide. Subsequently, in Miller v. Alabama,  the Court invalidated, for juvenile offenders, sentencing schemes under which certain murder convictions yielded mandatory life without parole sentences, finding that such schemes “preclude a sentencer from taking account of an offender’s . . . chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. . .  And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.”

Miller did not explicitly state that it would apply retroactively, to the many inmates already serving lengthy sentences under sentencing schemes that violated Miller. One such inmate was Henry Montgomery, convicted of the murder of a police officer when he was sixteen years old; at the time Miller was decided he was already in his late fifties, still serving time in Louisiana’s notorious Angola prison. Montgomery appealed his sentence,  arguing that Miller should apply retroactively.  Under constitutional doctrine, as established in Griffith v. Kentucky and in Teague v. Lane,  defendants whose cases are final face an uphill battle in reopening their cases in light of Supreme Court landmark decisions. They must convince the court of one of the following three arguments: first, that the landmark decision does not announce a “new rule,” but merely interprets prior precedent; second, that the “new rule” is substantive, rather than procedural, in nature; or third, that the “new rule” is a “watershed rule of criminal procedure,” of such seminal importance that justice requires it to be retroactively applicable.

In Montgomery, the Supreme Court was convinced of the second argument. It found that the Miller rule, according to which mandatory life without parole schemes could not apply to juveniles, was a substantive rule—a rule that “rendered life without parole an unconstitutional penalty for a class of defendants because of their status”, and therefore should apply retroactively. The Court was less decisive about the appropriate remedy, and Justice Kennedy opined that parole hearings might be a suitable forum for raising the age argument. 

 Before the Supreme Court announced its decision in Miller, a large California campaign waged by criminal justice nonprofits and human rights organizations yielded SB 9,  which required holding a judicial resentencing hearing for all juveniles serving life without parole. Subsequently, California lawmakers also adopted SB 260,  which expanded the access to resentencing hearings to juveniles serving other extreme sentences, short of life without parole. SB 260 was later amended by SB 261, further expanding the resentencing hearings to those who were under 23 years of age when committing the crime. This amendment better reflects neuroscience developments, according to which the prefrontal cortext continues to develop well into one’s early twenties. In this respect and others, California is ahead of the rest of the nation in acknowledging the contribution of youth to crime.  A subsequent bill signed into law in 2017, SB 394, set the date for the first opportunity for a hearing by a minor at 24 years of incarceration.   All of these developments, particularly in CA, explain the logic behind Skinner's proposal.

As an aside, because Yesterday's Monsters is about parole hearings, I'll say that these developments did, eventually, find their way into the parole hearing room with the parole grant recommendation for Leslie van Houten in 2016, in which the Board anchored its decision in the new understanding of youth:

Your choices that you made in your life at an early age based on the belief system that the family was over when there was a dissolution led you to a lifestyle of drugs, running away, unplanned pregnancy, the abortion, anti-establishment philosophy of the times. You exhibited these hallmarks of youth at the time of the crime as compared to adults, lack of maturity, underdeveloped sense of responsibility, leading a reckless, impulsive lifestyle. So that was 261. That was what the Supreme Court has ruled on, and that is on point with the case factors we see before the Panel here today, so the great weight played a role. Your age played a role.  

 It remains to be seen whether attention to youth significantly reforms the parole process. Recently, Beth Schwartzapfel observed that parole boards find ways to thwart the Court’s decision in Montgomery, arguing that long-term inmates who committed their crimes at a young age have not yet developed “insight.” The outcome is “a wave of lawsuits from those who claim parole officials are undermining their new constitutional obligations.” 

This is especially true in California, where political considerations might lead the Governor to reverse release recommendations, thus retaining political good will and protecting the gubernatorial office from public backlash. Notably, Governor Brown reversed the Board’s recommendation and denied Van Houten’s parole.

Nevertheless, it is telling that the Board—albeit more politically insulated than the Governor—felt comfortable recommending the release of a high-profile inmate on the basis of age, a fact widely known from the time the crime was committed but only recently considered. This development bodes well for other inmates, and specifically for members of the Manson “family,” whose young age was a deciding factor in their involvement with Manson in the first place.