Wednesday, December 29, 2010

More Construction... This Time, in California

In the heels of the report from Michigan come two new construction projects within California, both funded by AB 900. In Calaveras County, the local jail's capacity is to be quadrupled. And the expansion in San Bernardino adds maximum security beds.

Unsurprisingly, the Republican Caucus has been following on the progress made with AB 900 funding. From their perspective, "[i]t does not help that CDCR seems to have little direction and produces a new strategy plan on an annual basis. In the meantime, Democrats are pushing policies through the legislature – and supported by the Governor – that decrease the population through early release and place the burden of monitoring and controlling these individuals on local entities. Sadly, these are the exact same policies and actions that AB 900 was supposed to prevent."

From an empirical perspective, however, it is the massive construction of more prison cells that should be prevented. Building prisons is akin to building public highways; as we build more to prevent congestion, congestion gradually increases to fill the volume available. It is frightening to think that incarcerating one in 100 Californians is not enough. But perhaps they are the "wrong" kind of Californians, and therefore the Republican caucus should lose no sleep over them.

In any case, these new construction projects highlight the dark and problematic side of the Plata/Coleman decision. In an effort to be courteous to the state, and not to micromanage its affairs, the three-judge panel asked for a population reduction without mandating methods the state might employ to achieve such reduction. In his response to SCOTUS Justices, Don Specter seemed to agree that building new facilities would be among the range or responses that would be in compliance with the order. I actually think a narrow interpretation of the Plata/Coleman order is not only possible, but reasonable. The court did use the word "reduction" and stated a number of inmates. To say that "reduction" is the same as "dilution" of inmates is a bit of an interpretive push. But the real point is, of course, that building new prisons, in the long run, will push California away from compliance with the order, because the new facilities will, in due course, become just as overcrowded as the old ones.

Friday, December 24, 2010

Michigan: Preparing a Prison for California Inmates

(image courtesy Cory Morse from the Grand Rapids Press)

The Michigan dream, which encountered some serious hurdles before getting back on track, is apparently becoming reality. Via Sara at the Prison Law Blog, here are some details about the preparations to receive California inmates at this new Michigan facility:

As The GEO Group Inc. prepares to reopen the site once known as a “punk prison” for youth convicts, the California Department of Corrections and Rehabilitation is getting ready to send nearly 2,600 inmates here to help solve the state’s prison overcrowding.

This time, the inmates will not be deviant youth, but adults who ran afoul of California law for a variety of reasons.

The prisoners coming to Baldwin as part of a $60 million-a-year contract with GEO will be medium-security inmates deemed not extremely dangerous. Still, their backgrounds may include everything from murder to sexual assault.

Michigan has been hailed as a model for inmate population reduction. Apparently, these commendable steps have put them, and GEO corporation, in a position to benefit from our failure to act similarly.

A Surprising Voice Against Mandatory Minimums and Criminalization

"Tough on crime, tough on crime, lock 'em up! This is how these guys ran, but it isn't working! . . . We're locking up people who take a couple puffs of marijuana and next thing you know we lock them up for ten years. . . Judges say there's nothing we can do, we got these mandatory sentences. . . They go in as youths, they come out as hardened criminals..."

Bipartisanism reaches new surprising heights with this surprising little Pat Robertson video clip. Happy Holidays!

Many thanks to Billy Minshall for this bit of holiday news.

Wednesday, December 22, 2010

Merry Christmas, Taxpayers

After a conference and travel hiatus, CCC returns to a semi-regular posting regimen. And what better than a post on California Watch, according to which, despite the fee hikes in the UC system, "on a per-capita basis, UC is still cheaper than another big and expensive component of the California state bureaucracy – the prison system."

We've posted in the past about the gubernatorial problematic effort to create legislation that curbs prison expenditures in relation to educational expenditures. We also reported on the correctional angle to student protests of fee hikes. Here's hoping that 2011 will be a year that continues the nascent trend of decrease in incarceration rates, and as a result, incarceration expenditures.

Friday, December 10, 2010

The Fight Over Preston Youth Correctional Facility

On occasion, we have covered the abysmal state of juvenile prisons in California. Since our juvenile prison population has been declining, Some of them, like the juvenile institution in Chino, have been closed and repurposed into adult incarceration facilities. The Books Not Bars project at the Ella Baker Center for Human Rights lists some of the atrocious occurrences in these institutions:
  • Young people locked in 20- to 23-hour-a-day solitary confinement for days, weeks and months on end;
  • Young people locked in 4'x4' cages for temporary detention;
  • Guard and staff abuse, neglect, manipulation, and humiliation of the young people in their care;
  • Rampant sexual assault;
  • Guard/staff abuse of chemical weapons against the young people;
  • Virtually non-existent care for young people with mental health or substance abuse needs;
  • Shocking negligence in medical care, especially emergency care;
  • Woefully inadequate educational programming;
  • A culture and atmosphere of constant intimidation, isolation, fear and violence;
  • Five deaths of young people in less than three years.
Their report states,

Stark and Preston youth prisons are the most severe examples of the DJJ’s continuing failures, where daily chaos prevents most youth from participating in programs. Even where programs are administered with regularity, almost no programming proven to reduce recidivism is available, and at many prisons, only a small minority of youth participates. The DJJ has so dramatically failed to comply with court-ordered remedial plans that in 2008, plaintiffs sought a receiver to take over the reforms.

Today's Chron article is about one of these most notorious juvenile facilities, Preston Youth Correctional Facility. And, it appears that the hurdle in the path of doing the right thing and closing Preston is a lawmaker concerned about job losses among her constituents.

Preston, located an hour northeast of Stockton, houses just 224 youths and, as one of the state's oldest correctional facilities, is in terrible condition. Most of the youths serving time there are hours away from their families.

The facility employs about 450 people in a county with just 38,000 residents and a 12.4 percent unemployment rate. Closing it would save the state $30 million this fiscal year and more in future years, officials estimate.

"It's like closing a military base," said Don Specter, director of the Prison Law Office. "People want to keep it just for jobs, but that shouldn't be the reason that the state or government implements a program."

Huber's arguments against the closure are as follows:

Huber said the closure of Preston would "kill an entire county," because it is one of the largest employers in the area.

"This is going to turn the city of Ione into Flint, Mich.," Huber said, referring to the depressing impacts the closure of General Motors facilities had on that company town 20 years ago. "I'm not disagreeing with the fact that a facility needs to be closed ... the question is how do we decide which is the best facility to close."

Huber contends that Preston has higher graduation rates than other youth facilities; is best complying with the settlement that came out of the 2003 lawsuit; and, because of its dorm settings, offers a better setting for youths.

"The five facilities we have are like a school district," she said. "I think Preston is the best school - if you have to save $30 million, do you close the best-performing school?"

I recommend reading the entire article - it provides more information on Preston, quoting references to it as a "dungeon".

Thursday, December 9, 2010

The Crime of Punishment in California: NYT Editorial

Earlier this week, the New York Times published an editorial on the California correctional crisis, apropos the Plata/Colemen arguments.

At the intense, sometimes testy argument, Justice Samuel Alito revealed the law-and-order thinking behind the California system. “If 40,000 prisoners are going to be released,” he said overstating the likely number, “you really believe that if you were to come back here two years after that you would be able to say they haven’t contributed to an increase in crime?” To Justice Alito, apparently, it was out of the realm of possibility that, rather than increasing crime, the state could actually decrease it by reducing the number of prison inmates.

Among experts, as a forthcoming issue of the journal Criminology & Public Policy relates, there is a growing belief that less prison and more and better policing will reduce crime. There is almost unanimous condemnation of California-style mass incarceration, which has led to no reduction in serious crime and has turned many inmates into habitual criminals.

Jonathan Simon writes in Governing Through Crime:

For the Court's "liberals", the staggering portrait drawn by the many experts who testified before both original courts and the 3-Judge panel of the way physical and mental health needs are unmet appears to have broken through their own instincts to defer on criminal matters. The routine way in which California prisoners met death not through lethal injections, but by fatal neglect of their obvious and remediable medical needs, or by suicide after florid psychotic symptoms were ignored, animated a livelier questioning of the state in a criminal matter than in a long time. The Court's "conservatives", stripped of their preferred grounds of deference to the state's penological rationality, by the sheer scale of California's organizational failures over a twenty year period, were left to rest on the primal fear of violent crime and the biblical conviction that keeping people locked up must mean fewer crimes. Of course even if the Supreme Court (5-4), upholds the population cap, it will not end mass incarceration, that claim was not yet before the Court (and probably never will be).

Sobering words.

LA Times favors parole for youth LWOPs

Today's LA Times carries this piece:,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.

Tonight! A Hard Straight screened at the San Francisco Public Library

The Reentry Council and the San Francisco Public Library present A Hard Straight, a documentary film by Goro Toshima, about the real experiences of three people transitioning from prison to life outside. Featuring individuals on parole in San Francisco, the film highlights some of the struggles and triumphs of people returning to their communities. A panel discussion will follow.

Where: San Francisco Public Library, Koret Auditorium
When: 5:30pm-7:30pm

The film is terrific; we reviewed it last year and very much recommend seeing it.

Friday, December 3, 2010

More Out-Of-State Prisoners

The Plata/Coleman oral arguments included an exchange about the means by which the state purports to reduce prison population. Don Specter mentioned, in his arguments, the possibility of doing so not through mass releases, but through shipping inmates out of state. And, sure enough, the Chron recently reported that our inmate export business will be expanding in the near future.

The latest deal will ship 5,800 inmates to private prisons across state lines, bringing the total to more than 15,000. The transfers will begin in May under a contract that runs through June 2013 - nearly halfway through the term of Gov.-elect Jerry Brown.

. . .

Critics of moving prisoners to out-of-state facilities say it does little to relieve the underlying problems that have caused crowded conditions and questioned the timing of the new, no-bid contracts with two private companies. One of the companies houses nearly 10,000 California prisoners.

"This is the governor doing what he wants to in the last minutes of his administration," said state Sen. Mark Leno, D-San Francisco. "It is a way he can, on his watch, knock another 5,000 from the official numbers."

When California first signed contracts to ship prisoners over state lines four years ago, it began with 2,260 inmates at a cost of $51 million annually. Now, it is set to pay the companies $330 million a year to house 15,424 prisoners, and spend a total of $365 million once administrative costs are factored in.

If the outcome of Plata/Coleman will be further reliance on the privatization/export option, I fear the whole purpose of the exercise will be missed. The underlying issue of mass incarceration will remain unaddressed, private companies will have further incentive to support and fund measures like Arizona's notorious 1070 bill (now at the risk of being replicated in other states), and what's worse, the momentum gathered by the public's exposure to the costs involved will be lost as the problem recedes underground.

Wednesday, December 1, 2010

More on Plata/Coleman Oral Arguments

A few more details on the oral arguments for the benefit of our readers:

The State's case, presented by Carter Phillips, started with strong statements regarding the receiver, and how his appointment and deeds were remedy enough. Phillips caught much flak on this from Justices Ginsburg and Sotomayor, who pointed out that the receiver himself declared several times that his efforts at improvement would be futile without a decrease in population.

Justice Sotomayor left little doubt as to where she stood on the state's failure to provide care (and generated some rudeness from Justice Scalia):

JUSTICE SOTOMAYOR: So when are you going to get to that? When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?
Your Honor.
JUSTICE SCALIA: Don't be rhetorical.
MR. PHILLIPS: I'll do my best. Thank you, your Honor.

Justice Kennedy, who as many commentators said is key in this case, seemed to accept the idea that overcrowding is the cause for the medical crisis.

JUSTICE KENNEDY: Overcrowding is the principal -- overcrowding is the principal cause, as experts have testified, and it's now time for a remedy. The Court can't -- has to at some point focus on the remedy, and that's what it did, and that it seems to me was a perfectly reasonable decision.

And elsewhere:

But I think it means that overcrowding must not be ordered unless that is the only efficacious remedy in -- in a permissible period of time. And it seems to me there is massive expert testimony to support that proposition on the part of the prisoners.

Justice Breyer also seemed to be sympathetic to the appellees, from a pragmatic standpoint:

I mean, I read the newspaper. It doesn't seem to me California has been voting a lot of money for new programs. The -- the -- what is it -- what is it specifically that would happen that would cure this problem were we to say -- I mean, a big human rights problem -- what would we say -- what would happen if we were to say, no, this panel's wrong? What would happen that would cure the problem?

Justice Kagan highlighted the main problems with judicial review - to some extent providing support for the original three-judge panel and its dedication:

JUSTICE KAGAN: Mr. Phillips, my trouble listening to you is that it seems as though you are asking us to re-find facts. You know, you have these judges who have been involved in these cases since the beginning, for 20 years in the Plata case, who thought we've done everything we can, the receiver has done everything he can; this just isn't going anywhere and it won't go anywhere until we can address this root cause of the problem. And that was the view of the judges who had been closest to the cases from the beginning and the view of the three-judge court generally. So how can we reach a result essentially without, you know, re-finding the facts that they have been dealing with for 20 years?

Phillips: there have been big developments, but the state itself limited discovery from 2008 onward.

Phillips also distinguished the medical from the mental health problems. The Coleman problem, as he stated, was worse; and he said,

if the Court were to conclude ultimately that Coleman ought to go back for another analysis based on the problems there, I could understand that. And it would be a very different prisoner release order under those circumstances because then you would have to take out all of the evidence with respect to Plata and let that play out.

Questions to Don Specter, arguing for the appellees, focused on the fact that the "cutoff date" was 2008 and things may have vastly improved since then, as well as on the percentage of reduction.

By contrast to Justice Kennedy, Justice Alito expressed his opinion that there was a disconnect between overcrowding and medical care.

You could have a prison where the -- the cells themselves are crowded, and yet there are other facilities available for medical care and plenty of staff to attend to those things. So what's the connection?

He then pressed Specter to reflect on the fact that the released inmates are not necessarily of the class that is arguably compromised. Specter explained that population reduction could be done by a variety of ways, conceding that transferring inmates out of state is one possible way. (not talking about overcrowding in itself as making the operations difficult).

Justice Roberts seemed to lean toward a 145% capacity solution and pressed

The other issue on which Specter had to answer questions had to do with the public safety angle. Note the Justices' shock at the California recidivism rates. They must truly be disconnected from the world they live in. I found this exchange particularly illuminating, and to be honest and personal, quite distressing.

JUSTICE ALITO: In general, what is the recidivism rate?
MR. SPECTER: Well, overall, the risk is around 70 percent, but for low-risk prisoners the risk is 17 percent who reviolate.
CHIEF JUSTICE ROBERTS: I'm sorry. I couldn't -- what was the first -­
MR. SPECTER: The first number when you take all parolees, all together, it's 70 percent.
MR. SPECTER: 7-0, because -- within three years. That's what -- the situation we have now, and that's the situation that the governor, the secretary,and the court described as a failure. With parole reform you could reduce that number in many ways, and the Court described how you could do that. But the lowest -
JUSTICE ALITO: What is the lowest? It's 17 percent.
MR. SPECTER: 17 percent, and California has a risk assessment instrument which the Court found - which the Court found could be used to make sure that what happened in Philadelphia doesn't happen again. If I understand it -­
JUSTICE ALITO: Well, I understood that of the low-risk -- if only the low-risk people are released, around 3,000 of them are going to commit another crime.
MR. SPECTER: They -- but they don't have to be released, first off. I want to make sure I emphasize the point that this is a crowding reduction measure. You don't have to release 30,000 prisoners.
JUSTICE ALITO: They don't have to be released if you can build enough cells -­
MR. SPECTER: Or you can divert, or you can improve the parole system so that parole violators don't commit so many crimes. If you offer rehabilitation alternatives, if you provide a number of diversion into the community, there are a number of options short of releasing prisoners. And the 70 percent figure concludes -­
JUSTICE ALITO: The 17 percent figure goes exactly to my concern. This is going to have -- it seems likely this is going to have an effect on public safety. And the experts can testify to whatever they want, but you know what? If this order goes into effect, we will see. We will see, and the people of California will see. Are there more crimes or are there not?
MR. SPECTER: Well, if it's based on the experience in other jurisdictions, the court found we wouldn't. And I wanted to say -- to clarify one point, Your Honor: The 70 percent figure includes -- doesn't always include crimes. It includes lots of technical parole violators. People who have missed their appointments, for example. So it's not as grave as some of the figures that are informed by the other side.

In rebuttal, Justice Kagan pressured phillips on whether the state could safely reduce population within five years.

My impression, overall, is that many of the Justices already have their minds made up, and that the oral arguments might have done little beyond furnishing them with ammunition for writing the decision. The big mystery, as Rory pointed out yesterday, is whether Justice Kennedy, who seems to see the causal connection between overcrowding and abysmal health care, will also approve of the remedy.

Tuesday, November 30, 2010

Historic Arguments in the California Prison Overcrowding Cases - A Guest Post by Rory Little

This morning the U.S. Supreme Court heard oral arguments in what has become known as the “California prison overcrowding cases.” The Court has not heard a case challenging prison conditions and court supervision in decades, and the 1996 Prison Litigation Act (“PLRA”), designed to restrict federal court supervision, has been unexamined until today. The Court accepted the State’s appeal (not certiorari) in two consolidated California cases. It then granted a highly unusual extra 20 minutes to the normal hour-long argument, and ran even beyond that until Chief Justice Roberts blew the final whistle. It was an historic moment in the history of these decades-long cases, and in the area of prison litigation in general.

Although an audiofile will not be available here until this Friday, observers report that the Justices were interrupting each other and even raising their voices, an unusual display of frustration in that august body. Indeed, at one point Chief Justice Roberts calmly cut off Justice Sotomayor (who had interrupted Justice Ginsburg’s question), saying “I’m sorry, could you answer Justice Ginsburg’s question first?” (The transcript is available here).

But the Justices’ reactions at this argument are not surprising – the underlying cases have generated similar frustrations and emotions for some two decades, as unconstitutional conditions in California’s state prisons have defied solution despite an unprecedented amount of executive, legislative, and judicial concentration.

At issue is the order from a special three-judge federal trial court, issued after over 70 prior orders failed to correct problems in the prisons, that directs the State to find a way to reduce its prison population to 137% -- that’s right, “reduce” to 37% over design capacity. It is conceded that California’s prisons have not provided constitutionally adequate medical and mental health services to its inmates for many years. The conditions are “horrible,” as photographic evidence in the record shows. The district court found – and no one really disputes – that the problems all run back to the dramatic overcrowding of California’s prisons.

And because of the California’s seemingly intractable budget problems – as well as legislative gridlock and partisan intransigence – the huge amounts of money necessary to fix the prisons (or construct new ones) is simply not going to happen. “Pie in the sky,” said Justice Scalia today. As Justice Sonya Sotomayor remarked today, “I don’t see how you wait for an option that doesn’t exist.”

However, fifteen years ago Congress’s unhappiness with federal courts “taking over” state prison systems led to enactment of the 1996 PLRA. Now, the very existence of the PLRA, which anticipates special three-judge district courts and recognizes the possibility of court “population reduction” orders, indicates that Congress understood that, at some point a State’s unconstitutional conditions, and inability or refusal to repair them, might still lead to court supervision. The central question today was whether California’s prison system, and the three-judge court’s multi-year patience in ordering the State to fix the problems without success, warrants the reduction order ultimately entered early in 2010, after a number of prior “warning orders” went unheeded.

Also unusual is the contrast between the lawyers who presented the arguments today. The State’s agents hired Carter Phillips, a well-known Supreme Court advocate who clerked for Chief Justice Warren Burger and has argued over 60 cases before the Supreme Court. Indeed, few advocates could get away with what Phillips did this morning:
MR. PHILLIPS: Can I just finish this?

The prisoner plaintiffs hired Paul Clement, also an established Supreme Court litigator who served as U.S. Solicitor General under President George W. Bush. However, the California prisoners have been represented throughout the litigation below by San Francisco lawyer Don Spector, longtime head of the Prison Law Office, and it was Specter who presented their case in the Supreme Court today. (Although the Court was reviewing two cases, it mysteriously denied a motion for Clement and Specter to split the argument – another unusual wrinkle). Although Specter has argued many cases in his quarter-century at Prison Law, he had argued only one Supreme Court case (Yeskey v. Penn (1998), which he won summarily). Today’s cases (Plata and Coleman) present a far more difficult challenge. But Specter, steeped deep in the details of this complicated litigation, did a masterful job. He even got a laugh from the normally reserved Chief Justice (transcript p, 48). Indeed, his intricate knowledge of the facts and record paid off in a number of exchanges with Justices Scalia, who seemed plainly allied with the other side, and Roberts. And with 11 amicus briefs filed on behalf of three times as many groups, the arguments did not suffer from a lack of effective advocacy for any party.

California and Phillips clearly wanted the Court to focus on the “federalism” aspects of allowing a federal court to direct the reduction of a State prison population. But Justice Sotomayor quickly set a detail-oriented, fact-specific tone for the argument: she directed Phillips early on to “slow down from the rhetoric and give me concrete details.” The argument then proceeded on that level for the bulk of its over 80 minutes. (Justice Scalia, however, had some fun with Justice Sotomayor’s earlier remark: when she asked Phillips “When are you going to avoid the needless deaths that were reported in this record?,” Justice Scalia interjected (ostensibly directed at Phillips and not his fellow Justice) “Don’t be rhetorical.”)

In the end, decision in the case appears to focus on Justice Kennedy (who is so often the necessary fifth vote that observers call it “the Kennedy Court”). And while he did not show his hand entirely, he did interrupt Phillips’ argument that the district court acted “prematurely,” as follows: “The problem I have with that, Mr. Phillips, is that at some point the Court has to say: You have been given enough time; the constitutional violation still persists…. Overcrowding is the principal cause, and it’s now time for a remedy.” Justice Kennedy also opined that “there is massive expert testimony to support … the prisoners,” and asked why the district court’s order was not “perfectly reasonable.”

Predicting results from oral argument is a dubious enterprise at best. And certainly some Justices, notably Justices Scalia and Alito, expressed skepticism. (Justice Thomas was characteristically silent.) But Justice Kennedy’s remarks demonstrate that the Court faces a sensitive challenge here: unless it wants to become the appellate master for prison litigation around the country as state budgets become increasingly stressed, it needs to demonstrate restrained deference to federal trial judges that provide years of hearings and opportunities for beleaguered state prison systems before they act. As the newest Justice, Kagan, remarked, “”You have these judges who have been involved in these cases … for 20 years ….[H]ow can we reach a [different] result without re-finding facts…?”

Indeed, one can speculate that if this case had not come from the Ninth Circuit, and had not had red-flag liberal Judge Stephen Reinhardt on the three-judge panel, the Court might not have even found appellate jurisdiction (or summarily affirmed). On the other hand, Congress did set strict limits in the 1996 statute, and the High Court needs to interpret just what they may mean in the reality crucible of a hard case. California has argued that the three-judge court was itself convened in violation of the statute. As Specter respectfully noted at one point regarding Phillips’ argument, “my friend and I have a disagreement.” The PLRA deserves Supreme Court resolution.

In the end, Specter’s argument presented the starkest argument: “unless you reduce the crowding, nothing else is going to work.” The district judges involved had issued over 70 previous orders, and appointed two different “receivers” for the prison system, all to no avail. If any set of unconstitutional prison conditions and unresponsive state reactions can ever satisfy the PLRA’s stringent requirements, it would be this one. Yet, as the Chief Justice inquired repeatedly, how can the state reduce prisoner population without endangering public safety, as the PLRA requires? These tensions are why the Court decided to hear the unusual argument session it hosted today.

So stay tuned. A decision is unlikely to issue until late spring. And it seems likely that the case will be remanded with directions to consider amending the Order in various ways. Prison population and conditions are always a dynamic moving target, and wholesale affirmance here seems unlilkely. But whatever the result, these arguments provided a fascinating window into the arena of prison litigation, as well as the working of the “new” Supreme Court whose near majority was appointed a decade after the PLRA was enacted.

TODAY! Oral Arguments at the Supreme Court in Plata/Coleman v. Schwarzenegger

The Supreme Court heard arguments today in Plata/Coleman v. Schwarzenegger, the state's appeal of the order to decrease the California prison population in order to alleviate the hardships of medical and mental health care behind bars. A detailed post on the oral argument by my terrific colleague Rory Little follows.

Monday, November 29, 2010

David Onek for SF DA?

Now that Kamala Harris is officially moving up from SF District Attorney to CA Attorney General, there will be a hotly contested election for a new District Attorney here in San Francisco in November 2011. One leading candidate is David Onek, a former member of the SF Police Commission; see

In a post on Calitics last month stumping for Kamala Harris, Mr. Onek embraced the humonetarian view of criminal justice, leading with financial statistics about the expense of recidivism. Onek applauds Harris's Smart on Crime approach, and in particular the Back on Track program. Overall, the post suggests Onek supports more money for prevention, intervention, and rehabilitation, and less money for useless re-incarceration. Tellingly, Onek's candidacy for SF DA was recently endorsed by Jeanne Woodford, the reform-minded former director of CDCR who supported Prop 5 in 2008.

Facebook users have the opportunity to support David Onek's campaign for DA by clicking "Like" at

Sunday, November 28, 2010

Former Justice Stevens: Death Penalty No Longer Constitutional

A New York Times article quotes former Justice Paul Stevens as expressing his strong objection to the death penalty.

The actual comments were published in the New York Review of Books, in which Stevens reviewed David Garland's new book Peculiar Institution. The NYT faithfully summarizes this interesting public declaration as follows:

In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.

But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.

In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.

What does this mean in the age of lethal injection litigation? Who knows? And, to what extent does Stevens' grim observation of the personnel change in SCOTUS hold true after the recent appointments of Sotomayor and Kagan? Thoughts from our readers welcome.

Saturday, November 27, 2010

Harris' Election Bodes Well for Medical Marijuana

The Attorney General race outcome has interesting implications as to the prosecution of medical marijuana dispensaries, and marijuana activists are pleased and optimistic.

Before the results were published, the Sac Bee reported:

Both candidates opposed Proposition 19, the initiative to legalize marijuana for recreational use.

But Harris said she personally knew people "who have benefited" from medical marijuana – while Cooley praised a proposed ban on dispensaries in Los Angeles County and efforts by the city of Los Angeles to rein in its medical pot trade.

"Communities throughout the nation are waiting to see how we handle storefronts illegally pushing pot," he said.

Cooley argues that pot shops violate state medical marijuana laws, which define dispensaries as members-only nonprofits run by medical marijuana patients.

Harris' campaign manager, Brian Brokaw, said Wednesday that Harris "supports the legal use of medicinal marijuana but thinks California needs to bring consistent standards about ownership and operations of dispensaries."

How such consistent standards can be enforced, in the shadow of federal illegality/nonprosecution, is a good question, that merits more attention to Harris' policies in the future.

Thursday, November 25, 2010

Harris is Attorney General Elect--Good Tidings for Re-Entry?

By now many of our readers probably already know that Steve Cooley has conceded the race to Kamala Harris, who is California's Attorney General Elect. What does this mean for the criminal justice system?

Over the last two years I've been baffled, and somewhat amused, by progressive and radical activists who have expressed their disappointment in Obama. Their expectation that dramatic radical change would occur overnight, and that all of its features would please them, was, to be frank, absurd. Even progressive politicians are politicians, and they operate in a world of constraints and coalitions. Anyone anointing a politician as the messiah is setting herself for a sore disappointment.

I therefore urge our readers to recall Harris' promises to voters. These included a commitment to fighting hate crime, preventing prevalent phenomena like identity theft, raising the violent felony conviction rate, actively fighting gang-related crime (particularly among juveniles), and addressing quality of crime issues through community courts and mental health outreach. She opposes the death penalty and is committed to reentry solutions as a way to reduce recidivism and alleviate overcrowding. This platform is very promising, and certainly cause for cheer over the election results. Harris is a smart, principled, fair and honest public official. However, being California Attorney General differs greatly from being San Francisco District Attorney. She will be operating on a difficult, polarized political map. It is our responsibility to ensure that she does her job.

Saturday, November 20, 2010

"We Don't Want Another Garrido"

The Sac Bee reports:

[Newly formed law enforcement teams] are designed to apprehend parolees who have become fugitives or are otherwise violating terms of their release.

"We're going to look over the fences. We don't want another Garrido," Greg Shuman, who supervises a Sacramento-based California Parole Apprehension Team, told agents heading out for one sweep. "It's no-tolerance. Anything, any violation, they're going to jail."

Five teams were created this year in different parts of California, while five more will start in January.

Money to fund them comes from savings created by a law that took effect this year. That law eliminated parole supervision for thousands of ex-convicts, some of whom served time for serious crimes.

It allows agents to focus on the parolees that state corrections officials consider the greatest risk to the public. Supervising fewer people lets agents concentrate their attention on sex offenders, gang members and violent criminals, said Robert Ambroselli, who heads the Department of Corrections and Rehabilitation's adult parole division.

The move to use budget savings from early release to target high-risk offenders is, of course, a sensible one. But are these folks high-risk offenders? The article mentions that 480 out of the 900 parole violators who have been arrested recently are sex offenders, which, according to CDCR's own recidivism report, are the lowest risk group among released inmates. That is, if one does not count parole violations. Whether any risk has been prevented by a registered sex offender's arrest would depend on whether the parole violation that led to the arrest is, indeed, a crime in its own right, or some technical violation.

This surge in law enforcement energy might explain the following curious story that appeared this week in the San Jose Mercury News:

Lawrence Joseph Brown, 52, was taken back into custody in Tustin just 30 miles from the California Institution for Men in Chino.

"We had investigators following him, and he was in a car with a woman," a violation of a stipulation of his parole, Orange County District Attorney Tony Rackauckas told The Associated Press in a phone interview.

The woman was Ruby Huggler, a woman Brown had stayed with during a brief parole earlier this year, and Rackauckas said he believed she picked him up from the prison.

This week I showed my students Fritz Lang's 1931 masterpiece M. In one of the movie's best scenes, Lorre, a child murderer and sex offender, is apprehended by the mafia, and "tried" by a kangaroo court trying to decide whether to execute him or hand him over to official law enforcement. His speech, and their reactions to it, is truly fascinating, and goes to the heart of the question here--do we believe that these offenses come from evil, or from disease, or both. Our persecution of released sex offenders seems to suggest the latter; we rearrest them because we are concerned about compulsion. A student of mine once called this unique perception of guilt "culpable sickness". Feeding our fears of the unknown and unexplainable is important, but it is more important to deal with actual recidivism than with imagined and feared recidivism. I hope we are, indeed, preventing dangerous and risky reoffending by directing our energy toward these released offenders, rather than merely substituting one form of oppressive and wasteful enforcement with another.

Attorney General Race: Kamala Harris' Lead Strengthens

As the vote counting progresses, it appears that Kamala Harris has established a lead that would make it very unlikely that Cooley will catch up. If Harris, indeed, wins the race, that would mean that Jerry Brown will work with someone who has somewhat less traditional approaches to criminalization, law enforcement, and reentry. We'll have to wait and see.

Monday, November 15, 2010

Damien Echols Receives New Trial: Evidence Gate Wide Open

Today, in an Arkansas Supreme Court decision that will thrill supporters of the West Memphis Three, Damien Echols received a new evidentiary hearing, in which all evidence, including the DNA evidence that exculpates him and implicates others in the murder, will be considered.

Echols and co-defendants Misskelley and Baldwin were the subjects of the documentaries Paradise Lost and Paradise Lost 2: Revelations. Having read much about the case, I am convinced of their innocence and very much hope that the new hearing will provide the defendants long-overdue justice.

Wednesday, November 10, 2010

Impending Executions?

This OC Register article comes to us via our friends at the Sentencing Blog. According to the article, seven death row inmates have exhausted their legal recourses and could potentially be executed in the near future. interestingly, the article contains a hint on the focus of anti-death-penalty litigation in the near future:

The state's attempt to execute convicted rapist/murderer Albert Greenwood Brown, Jr., of Riverside – who has been on Death Row since 1982 — failed in September when the CDC's only dose of the lethal-injection drug passed its expiration date. It would have been California's first execution in five years.

Since then, CDC officials have been scrambling to find an additional source of sodium thiopental to get the executions back on track.

Last month, prison officials announced they had secured enough of the powerful drug to carry out four executions, potentially putting the seven killers who have exhausted their appeals at risk.

Opponents of the death penalty, however, are expected to challenge the propriety of how and from whom prison authorities obtained the latest batch of the drug. The CDC has declined to say where it obtained the drug. The only U.S. manufacturer of the drug can't make more because of raw-material supply issue, the Los Angeles Times reported.

Making the source of a chemical the focal point of the death penalty debate is a further step in what I previously referred to as the farcical nature of the entire debate. And yet, it can be a last resort in litigators' scramble to dig up arguments that have not been made yet.

Tuesday, November 9, 2010

The Status of Legalization: Guest Post by Brandon Yu

Our guest poster, Brandon Yu, is a Managing Editor of AllTreatment, an online rehab center directory and substance abuse information resource.


After much months of national attention, California Proposition 19 has failed by 8 figures in nearly a 600,000 vote difference. The Proposition, which was supposed to legalize marijuana in the state of California for recreational use, was opposed since the beginning by elected officials of both parties, including Democratic Senators Barabar Boxer and Diane Feinstein and Republican Governor Arnold Schwarzenegger. The federal government likewise said it would “vigorously enforce” federal drug laws vigorously against Californians that grow or sell marijuana for recreational use.

Proponents noted many benefits of legalization. The passing of the proposition would have generated $1.4 billion a year in tax revenue, resulting significant savings for state and local governments and boosting the economy in the process. Some believed it would also reduce drug-related violence and take revenue away from drug lords. However, opponents argued that it would raise the cost for programs in substance abuse due to the supposed increase in marijuana use, and that the state’s medical marijuana program would flounder since people would gain the drug through other means.

So what does the prospects look like for legalization in California, let alone the status for the country’s future?

Marijuana laws in California have grown increasingly more relaxed in the year leading up to the proposition. Though he did not support the legalization proposition, Governor Schwarzaneggar signed a bill into law that downgraded marijuana possession from a Misdemeanor to a simple Civil Infraction during his final months as governor.

Bordering states looked to California to set an example. Measures in South Dakota and Arizona had measures that advocated for medical marijuana, but both were similarly rejected. Foreign countries, particular Mexico, had also been looking to how California would react to legalization. Mexican President Felipe Calderon, whose country had been entrenched in a drug war for the last half decade, was considering legalization in order to put money out the opposition’s pockets. The Mexican drug cartels make anywhere from $20 billion-$30 billion annually off drug trafficking alone, with marijuana comprising of 60 percent of that income. Legalization would have reduced that number dramatically by $12 billion.

Despite the setbacks, the legalization movement is stronger than ever. Marijuana legalization had been defeated before in California. In 1972 a similarly titled Proposition 19 also failed when put at the hands of voters. However, that proposition failed by a much higher margin, with a 66.5/33.5 No/Yes differential, a considerable difference than the 54/46 resulted from Tuesday.

Proponents are vowing to get a similar one on a ballot in the near future despite Proposition 19’s failure. Some exit polls have shown that some Voters think that marijuana should be legalized, in a margin of 49%-41% with 10% undecided, suggesting that voters had more issues with the wording of the proposition rather than legalization.

Recidivism Discussion on KGO

Yours truly was on the radio this week, speaking to Gene Burns on the Gil Gross show, about the CDCR recidivism report. Listen here.

Saturday, November 6, 2010

Blame, Accountability, Criminalization

My amazing day at CELS ended with two papers about assigning criminal accountability and criminalizing, which were particularly thought provoking in the respective aftermaths of the Mehserle trial and the failure of Prop 19. First came Janice Nadler and Mary‐Hunter Morris' paper The Psychology of Blame: Criminal Liability and the Role of Moral Character. Nadler and Morris conducted a series of fascinating experiments in which respondents were required to express their views on criminal culpability and causality in scenarios they were provided with; respondents were provided with some background about the offenders' moral character, and Nadler and Morris concluded that this extraneous information colored their opinion regarding culpability. The questions from the audience yielded an excellent discussion about the situations in which moral character "leaks" into the legitimate justice system, such as in discussing an offender's motive.

The following paper was The Plasticity of Harm: An Experimental Demonstration of the Malleability of Judgments in the Service of Criminalization, by Avani Mehta Sood and John M. Darley. Sood and Darley provided their respondents with a series of rather colorful scenarios, asking them whether they saw them as violating social norms, whether they were harmful, and whether they would criminalize them. Respondents tended to ascribe harm to situations they wanted to criminalize. Sood and Darley then proceeded to provide respondents with scenarios that did not tend to invoke a lot of harm rationales, priming half of them with an instruction according to which "U.S. courts have ruled that for something to be a crime it has to cause harm." Respondents that were primed with this instruction tended to come up with more harm rationales for their scenarios, some of them rather creative and farfetched. The paper reminded me of the harm arguments brought up against Prop 19, and the amount of pseudo-harm arguments we have heard, and are likely to continue hearing, about same-sex marriage.

CELS is a fantastic conference, I learned a lot and had a terrific time. Now, it's back to my students and... to the California correctional crisis.

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.

Incarceration Length and Recidivism

This morning at CELS I heard a paper by David Abrams titled Building Criminal Capital vs Specific Deterrence: The Effect of Incarceration Length on Recidivism. Abrams sought to figure out what sort of relationships existed between incarceration and recidivism. These sort of studies often present serious challenges, because length of incarceration might reflect other factors about the defendants that might predict recidivism later on. However, Abrams built on an opportunity to control for that, since defendants were randomly assigned to public defenders of differing attorney ability. Attorney ability therefore allowed him to instrument for sentence length. The findings were that the relationship between sentence length and incarceration was not linear. For the lowest sentences, the relationship is negative; it becomes positive for an intermediate sentence length, and then negative for the longest sentences. The conclusions tie the findings with theories of criminal capital formation and with specific deterrence.

Re-Entry, Housing, and the Job Market

I am at the 5th Conference on Empirical Legal Studies at Yale University, and have heard two interesting presentations on re-entry.

Amanda Geller and Marah Curtis' paper A Sort of Homecoming: Incarceration and the Housing Security of Urban Men compares the housing status of previously incarcerated and non-incarcerated fathers in fragile, poor families. Using a database formed for studying fragile families, Geller and Curtis compare how fathers fare during their child's infancy in terms of housing. As measures of housing, they use not only eviction, but also other measures mortgage default and living with others. They find that formerly incarcerated fathers have more trouble finding a stable housing situation, and while some of this difficulty is attributed to lack of income, it does not explain away all the difficulty.

Charles Loeffler's paper The Effects of Imprisonment on Labor Market Participation: Evidence from a Natural Experiment compares the job status of convicted people who were sentenced by high-incarceration and low-incarceration judges. Suprisingly, Loeffler finds that the former tend to fare better in the job market--but only temporarily. This finding might be explained in three main ways: Parole agents do a better job than, say, probation officers in finding jobs for formerly incarcerated people (but not good enough to provide enduring employment); incarceration breaks inmates' ties to their former environment and therefore requires them to shift to the "covered" economy; or, inmates simply age out of crime while in prison.

Thursday, November 4, 2010

The Post-Election Post

In the grand tradition we started in the 2008 elections, I'd like to offer some reflections about some of the results.

The first issue on the agenda is the meaning of Jerry Brown's election for governor, especially if accompanied by Kamala Harris as Attorney General (an outcome which is still uncertain as I write this). As we said earlier in the race, while there are plenty of corrections-related reasons to be relieved that Meg Whitman will not be commanding our ship, Jerry Brown's platform in these matters is not particularly innovative or efficient. Some have made much of his personal distaste for the death penalty and have predicted that, as part of a team with Kamala Harris, the institution may be abolished or at least halted de facto. Brown's behavior during the countdown toward Albert Brown's execution does not appear to predict such an outcome. It remains to be seen what sort of relationship Brown forges (or rekindles) with CCPOA, and what his position might be on Plata/Coleman, which he litigated fiercely against petitioners as Attorney General.

We then have the failure of Prop 19, which I decline to read as stemming from fear or demonization of marijuana users. Much of the feedback I received after publicly endorsing Prop 19 had to do with people who in principle supported legalization but thought the initiative was poorly designed and would lead to chaotic local regulation and, possibly, to "corporatization" of pot. I found it curious that the concerns about possible "corporatization" exceeded, for some, the concerns about racist oppressive enforcement, but to each their own. The lesson to be learned here is, perhaps, that the initiative process is not a good place for such reforms, and given the broad public support for the idea of legalization, creating an appropriate legal framework should be left to professional legislators.

Finally, a municipal disappointment was the disheartening passage of Prop L, the sit/lie ordinance. We blogged extensively here, here, here and here about the punitive and classist animus behind this initiative and are dismayed to see it come to life. Our hope is that the police will act sensibly in enforcing this measure.

Tuesday, November 2, 2010

CDCR Recidivism Report

CDCR has just released its recidivism report, which is fairly detailed and merits some discussion. First, I think these reports are a good start and CDCR should be commended for tracking down the information and analyzing it. The Office of Research did an overall good job at highlighting some of the major issues and, while i'm sure more could be mined from the raw data, there is enough content to comment on. Here are some points that come to mind, in no particular order:

The recidivism rates in general, while not surprising, are disheartening, and attest to the complete failure of our prison system in achieving deterrence, rehabilitation, or both. It is telling that the statistics haven't changed significantly over time, despite increased punitive measures. Clearly, what we are doing under the title "corrections and rehabilitation" does not correct OR rehabilitate. The percentages are particularly distressing for people who have been incarcerated at least once before.

Some interesting demographics: The report tracks people up to three years after release. Almost 50% reoffend within first six months; at one year, the percentage rises to 75%. Women recidivate at much lower rates than men (it would help to have a breakdown of this by offense, because perhaps offense patterns matter here). Unsurprisingly, recidivism declines with age. Also, recidivism rates for first-time offenders are highest for Native Americans, African Americans, and White inmates. But these effects dissipate for re-releases.

The releases from prison are unevenly distributed across counties (a large percentage of released inmates goes to LA). However, most of the folks that end up in LA are first-time releases, which explains why the recidivism rate in LA is actually the lowest. Other counties, such as SF, Fresno, and San Joaquin, have the highest recidivism rates, but they receive re-releases (for whom the rates are higher in general) more than first-time releases.

The distribution of offenses is interesting. 20% of released inmates were in for serious/violent crimes, and this percentage holds for recidivism, so it would appear that people do not "graduate" to more serious crime (perhaps they just do more of the same). Also, there doesn't seem to be a connection between seriousness of crime and recidivism (which might suggest that it's the institutionalization that contributes to it). Also, the report doesn't track a connection between the original offense and the re-offense, save for sex offenders. Notably, however, 47% of returnees to prison are brought back in because of parole violations.

Re sex offenders: This category merits special attention because it's the one most often targeted by punitive legislative energy. 6.5% of released people registered as sex offenders. The data suggests that sex offender registration slightly reduces recidivism. However: Only 5% of released sex offenders who recidivate are convicted of an actual sex offense. 8.6% commit an unrelated crime, and 86% are back on a parole violation. This speaks volumes about the pervasiveness of registration rules and limitations and about the low risk of sex offenders.

More than half of the released inmates are in for short sentences - but for recidivists the length of sentence grows (this is probably just the effect of previous offenses enhance sentencing or of repeated parole violations.) There is a rise in recidivism for people who serve 0 to 24 months. After that, the rates decline. Possible intervening variables are health and age.

Recidivism rates rise significantly for folks released after their second incarceration (although subsequent re-incarcerations don't make much of a difference). The returnees are also more likely to be assigned a high "risk score". These two findings are not unrelated; I imagine that, when using the CSRA tool for predicting recidivism, one predictor of "high risk" is repeated prison sentencing. This classification therefore probably feeds itself.

On a more general note, I hope that releasing the data also means that our judicial apparatus might rethink some of its policies and approaches. In Malcolm Feeley and Jonathan Simon's 1992 piece The New Penology, they argue that our "actuarial" approach to justice is behind a transformation from external correctional goals (e.g. reducing recidivism) to internal goals (e.g. reduce riots and escapes). If someone is keeping track of recidivism data, let us hope that the data actually gets used.

Incarceration Map

from Online Education (click on link for full size). Props to Jesse Stout for finding this.

Incarceration in the USA
Created by Online Education

Thursday, October 28, 2010

Who Benefits from Arizona's SB 1070?

NPR reports:

The law could send hundreds of thousands of illegal immigrants to prison in a way never done before. And it could mean hundreds of millions of dollars in profits to private prison companies responsible for housing them.

Arizona state Sen. Russell Pearce says the bill was his idea. He says it's not about prisons. It's about what's best for the country.

"Enough is enough," Pearce said in his office, sitting under a banner reading "Let Freedom Reign." "People need to focus on the cost of not enforcing our laws and securing our border. It is the Trojan horse destroying our country and a republic cannot survive as a lawless nation."

But instead of taking his idea to the Arizona statehouse floor, Pearce first took it to a hotel conference room.

This is quite a shocking story. It turns out that private prison corporations are among the main financiers of Arizona's anti-immigration bill. This puts a shocking, cynical slant on what would be deemed a disgraceful bill even if it were sincere, and not profit driven.

Sunday, October 24, 2010

Upcoming Film Event: Presunto Culpable (Presumed Guilty)

This Tuesday, the World Affairs Council, the Berkeley Center for Human Rights and the ACLU of Northern California will be hosting a special screening of the terrific film Presunto Culpable (Presumed Guilty). Filmmakers Roberto Hernández and Layda Negrete, currently graduate students at UC Berkeley and also lawyers in Mexico, have documented the horrors of a criminal trial in Mexico, in which justice is derailed and denied by a perverse justice system that, by law and by fact, presumes defendants are guilty and prevents them from confronting their witnesses. The film follows a particularly horrific example of such travesty of justice: the trial of this José Antonio (“Toño”) Zúñiga for a murder he did not commit. The filmmakers, whose film was crucial in exonerating Zúñiga, will speak at the event (yours truly will moderate the discussion). It's a wonderful, thought-provoking film, and you are all encouraged to attend.

When? This Tue, 10/26, 6:00 PM - 8:00 PM (check-in starts at 5:30, please arrive early for registration)

Where? World Affairs Council Auditorium, 312 Sutter Street , Second Floor, San Francisco

To RSVP, please click here.

Wednesday, October 20, 2010

Black Alcatraz Screening Today

This evening we will be screening Black Alcatraz, a documentary about the African American experience at Alcatraz in the era of segregation. Director Kevin Epps ("Straight Outta Hunters Point") will join us for Q&A and dinner will be served.

Where: UC Hastings, 198 McAllister Street, 2nd Floor, Room F
When: 7pm

Saturday, October 16, 2010

Leno on Recidivism

I'm at the Students for Sensible Drug Policy West Coast Regional Conference (at SF State -- see where Senator Mark Leno is currently answering a question about Proposition 19. This initiative would reduce California's prison population by allowing adult possession and cultivation of 25 square feet of cannabis.

Senator Leno reminds us that California has the USA's highest recidivism rate, 70%, compared to the national average of 35%. California's prisons confine 170,000 inmates, 180% of their capacity of 90,000. Wow!

Thursday, October 14, 2010

Slate/Daedalus new stats on Prison/Poverty cycle

WOW! Great statistics and charts and graphs in this new publication about the school-to-prison pipeline keeping people in poverty. Check out the summary at of the report by Western & Pettit at Here are some stand-out quotes:

"[I]f current incarceration trends hold, fully 68 percent of African-American male high school dropouts born from 1975 to 1979 (at the start of the upward trend in incarceration rates) will spend time living in prison at some point in their lives, as the chart below shows."

"After being out of prison for 20 years, less than one-quarter of ex-cons who haven't finished high school were able to rise above the bottom 20 percent of income earners, a far lower percentage than for high-school dropouts who don't go to prison."

"University of California at Berkeley professor of law Jonathan Simon writes that these men and women in many ways become the human equivalent of underwater homes bought with subprime mortgages—they are "toxic persons" in the way those homes have been defined as "toxic assets," condemned to failure."

Law Professors Endorsing Proposition 19

A long list of law professors and criminal justice experts (including my colleagues and me) are listed as supporting Prop 19. Here is our endorsement letter with some of the reasons for the endorsement.

Tuesday, October 12, 2010

Prop 19 Constitutionality: Fri @ noon

This Friday 10/15 at noon in room A,
Hastings Law Students for Sensible Drug Policy
and American Constitution Society present
Allen Hopper from ACLU
on the constitutionality of Prop 19 to legalize marijuana WITH FREE FOOD

Allen Hopper, Legal Director of the ACLU Drug Law Reform Project, will address constitutional and other legal concerns raised by the text and context of Proposition 19, the November 2010 CA ballot question on taxing and regulating marijuana. Mr. Hopper will discuss the potential legal and practical interactions of Proposition 19 with federal law, including the Controlled Substances Act. Mr. Hopper will also discuss how Proposition 19 may affect the CA state medical marijuana regime, as well as its effects on CA employment law and employer policies.

Sunday, October 10, 2010

Impact of New CA Budget on Corrections

The California budget passed by legislature this week includes "$1.1 billion from public safety, largely in lower medical costs for inmates".

The full budget report can be found here, and highlights the fact that the proposal to "realign" state inmates into local jails, which was strongly resisted by local authorities, has been abandoned.

How will medical costs be lowered? We'll follow up on these issues in the weeks to come.

Saturday, October 9, 2010

What's He Building In There?

CDCR has rebuilt the Chino Institute for Men, destroyed in a riot a few months ago. Some information about the rebuilding process and its outcome, from the CDCR website:

Cost to rebuild the dormitories was reduced significantly by using inmate labor from the Inmate Ward Labor program. The program teaches inmates vocational skills that can be used to gain employment once they are released from prison. Inmates learned how to operate heavy equipment and were taught trades such as masonry, concrete mixing, drywall installation, wall texturing, carpentry, welding and general construction techniques.

The rebuilding effort also incorporated improved safety features.

“The materials used during the rebuilding and some of the systems built into the facility will provide a safer and more secure environment for inmates, staff and the public,” said Deborah Hysen, CDCR’s Chief Deputy Secretary for Facilities, Planning and Construction Management. “For example, porcelain sinks and fixtures, which can be broken into sharp pieces, were replaced with durable stainless steel.”

After the repairs were completed, CDCR changed the mission of CIM West from a reception center to a Level II facility, and the inmate population was reduced from 1,298 before the riot to an estimated 960 in October 2010.

“The mutual aid and cooperation by the city of Chino, law enforcement and surrounding fire departments were invaluable during this emergency," said Fakhoury. "We appreciate the long-standing partnership we share with our surrounding community,”

CIM is one of 33 prisons operated by CDCR. It opened in 1941. The peak population at CIM was 6,665 inmates in October 2003. It currently houses 4,751 minimum- and medium-security inmates and employs 2,327 people.

I'm trying to understand the discrepancy in inmate numbers. Does this mean that the institution as a 960-inmate capacity and it currently houses 4,751 inmates? Or that 960 people remained on the premises after the riot and now there are 4,751? If any of our readers know what the new capacity and population are like, please enlighten us in the comments. The other interesting feature here is the opportunity to make the rebuilding into a vocational program, which might be a successful idea depending on whether it is, indeed, a program shaped to help inmates develop skills such as getting to work on time and collaborating with supervisors, rather than merely cheap labor.

But more rebuilding is going on. The state is looking for a suitable site for a new reentry facility. Building in Fairfield is proving problematic, and CDCR is examining the possibility of building in Vacaville. More details on the Reporter:

As about 1,000 inmates are paroled to Solano each year, local leaders have embraced the need for a re-entry facility, which would house prisoners serving the final 12 to 18 months of their sentence. Through educational, career, life skills and other training, the inmates would be re-acclimated to the community and prepared for life on the "outside."

Choosing a site for the facility has been a challenge. Originally, expansion near Fairfield's Sentenced Detention Facility on Claybank Road was hotly pursued, but dropped when Fairfield officials withdrew their support.

The pitch to Vacaville, which already houses two institutions, has to do with job creation, as is often the case when introducing a correctional institution to a community. The advantage of building in a place that already has a prison is that persuasion might be easier, and the infrastructure, in terms of a cooperative community, is already in place. For more on this, I recommend the excellent documentary about Susanville, titled Prison Town, USA.

Friday, October 8, 2010

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.

The Good, the Bad, and the Ugly

The Good

This comes to us via our friends at the Prison Law Blog: A meditation program in San Quentin.

The Bad

Governor Schwarzenegger vetoes AB 1900, which would prohibit the shackling of pregnant inmates. The reason? “CSA’s mission is to regulate and develop standards for correctional facilities, not establish policies on transportation issues to and from other locations. Since this bill goes beyond the scope of CSA’s mission, I am unable to sign this bill”.

The Ugly

The state has now restocked on sodium thiopental.

Thursday, October 7, 2010

Education Protest Has Correctional "Edge"

Students, faculty and staff at UC Berkeley, my alma mater, are protesting fee hikes and layoffs today. Interestingly, one of the advertised rationales behind the protest is the comparison of yearly funding per student ($14,000) to the funding per inmate ($49,000).

Earlier this year, the Legal Analyst's office examined a gubernatorial proposed measure to limit correctional expenditure to 7 percent of General Fund support and to set a minimum of 10 percent for California public universities. LAO found the measure artificial and fiscally unwise. However, the bottom line stands: Our expenditures are an expression of our social priorities.

I wonder if the students protesting this morning realize that the expenditures per inmate do not mean an intimate investment in inmates' vocational and educational future, and that two thirds of the expenditure per inmate are medical costs, unevenly distributed among the inmate population and addressing primarily the needs of elderly, frail inmates, often incarcerated for unnecessarily lengthy periods. I also wonder what the students perceive as an appropriate solution for "evening out" the odds.

It was at UC Berkeley where I was privileged to study with Malcolm Feeley, Jonathan Simon and Frank Zimring, and was introduced to mass incarceration in the United States as an important social problem. I support the UC Berkeley struggle for funding, and my hope is that those participating in that struggle, who perhaps are reading us this morning, will realize that the university cuts are part of a broader flawed expression of social priorities.

Wednesday, October 6, 2010

California Attorney General Race

The two candidates for Attorney General, a position which would provide its holder with plenty of influence over criminal justice policy in general and incarceration rates in California in particular, are Los Angeles District Attorney Steve Cooley and San Francisco District Attorney Kamala Harris. The Chron summarized the candidates' exchange in a televised debate. Unsurprisingly, the media has portrayed Cooley's traditional "tough on crime" approach as clashing with Harris' "smart on crime" innovations.

Lest the death penalty issue, which is a bone of contention between the candidates, throw you off, Harris is a tough law enforcer, far from being soft on crime. Moreover, while her overall approach to criminal justice emphasizes evidence-based measures and tackling roots rather than symptoms, there have been some gaffes. This year, for example, we've seen Harris endorse some measures that we found questionable, such as the (unenforceable) prohibition for sex offenders to join social networking websites and the truancy courts. While the latter measure tackles a phenomenon closely associated with crime rates, there is little evidence that scolding parents in court will do the trick. Nevertheless, Harris has proven to be a thoughtful, impartial, collaborative policymaker, who among other things endorses San Francisco's Clean Slate program--a rare collaboration between the Sheriff's department, the DA's office and the PD's office.

Cooley's criminal justice policy does appear to be more traditional, but the L.A. District Attorney's office has some community collaboration programs (including one for monitoring truancy!). It also devotes energy to combating gang activity. His campaign seems to include, so far, some of the familiar symbolic tactics, such as using victims as symbols of fear and highlighting controversial issues such as the death penalty to his advantage.

Tuesday, October 5, 2010

Crime Policy At Forefront of Oakland Mayoral Race

For the readers who may not have caught this SF Chron piece, it provides some information about the crime policy of different candidates for Oakland Mayor. It makes for a fascinating read; and interestingly, not all the candidates are uniformly knee-jerk-tough-on-crime-for-the-sake-of-it.

City Councilwoman Jean Quan says the city needs to preserve its community policing efforts, bolstering neighborhood-based programs that many credit with cutting crime. She voted to keep some of those programs even at the expense of officers' jobs.

Former state Senate leader Don Perata is willing to throw many such programs out the window if it will keep more cops on the force, a stance that has earned him the support of the police union.

And City Councilwoman Rebecca Kaplan points to economic development strategies that could provide jobs for residents, rather than more funding for the Police Department, as the surest way to cut crime.

In other Oakland news, it appears that Johannes Mehserle, convicted of involuntary manslaughter in relation to Oscar Grant's shooting, is seeking a new trial. The relevance of his new evidence to the issue of his guilt seems rather tenuous, but I guess we'll have to wait and see.