Humonetarianism Interview with Dean Wu

Please watch UC Hastings Dean Frank Wu interviewing me about my book in progress on the impact of the financial crisis on the American correctional landscape.

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

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

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

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

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

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

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

No on 35

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

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

Here's what Proposition 35 does:

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

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

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

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

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

Federal Panel to State: Plata Quotas Will Not Be Reduced

In a story that is getting surprisingly little press, today's Reporter reported on the federal three-judge panel's response to the State's request to modify Plata requirement. The long and the short of it: The answer is no.

A federal three-judge panel has given California corrections officials until January to say how they will reduce the state's inmate population to comply with an order upheld last year by the U.S. Supreme Court. 

The state must reduce its prison population by 33,000, to a maximum of 110,000 inmates, by next June.

Corrections officials say they cannot meet that goal if they follow through on their plan to retrieve inmates who are housed in private prisons in other states. They want to do that to save money.

 Bringing back those prisoners would put the state 3,000 inmates over the court-imposed cap. The judges said last month that they would not adjust the inmate cap. 

On Thursday, they told corrections officials to develop a plan to meet the June deadline.

Will the state make its deadline? How would this affect the plan to bring back out-of-state inmates? We'll continue updating on this vein.

Bringing Out-Of-State Inmates Home

A story published this summer on the California Watch examined the possibility of bringing back 9,500 California inmates currently serving their term in private institutions run by Correctional Corporation of America in Arizona, Mississippi and Oklahoma.

The grand strategic plan includes a provision for ending out-of-state incarceration, and it'll begin by bringing back about 600 inmates. This is compounded by the fact that the state's contract with CCA is based on occupancy rates.

In case you're wondering who benefits from levels of mass incarceration, the CA Watch story says:

The revised contract will reduce California’s fee to the private prison group by $67 million for the current fiscal year, according to corrections spokeswoman Dana Simas. The state will save another $14 million in 2012 by cutting staff positions for the program, which is administered in Sacramento. 

California is paying the Corrections Corporation $61 to $72 per prison bed per day, making the original contract worth more than $280 million for 2012-13, according to the Legislative Analyst's Office and corrections department figures.

The fiscal challenges involved in bringing back inmates involve the need to provide adequate housing and health care and the potential need for more construction. But if the total number of inmates to be returned to the state is less than 10,000, that would still render the prisons less crowded than they were in the pre-Plata era.

Media Access to Prisons

SHU solitary exercise yard. Credit: Nancy Mullane for KALW.

About a week ago, KALW ran a fascinating story about media access to California prisons. Nancy Mullane has been struggling to obtain permission to see California institutions from the inside.

This is particularly poignant, because a few days ago Governor Brown killed AB 1270, which would provide the media the ability to conduct interviews with specific inmates.

I recommend listening to the whole thing - Mullane's observations about Pelican Bay, its staff, and the inmates, are insightful and fascinating.

Prop 36 and the Gift of Fear

Current polls show Proposition 36, the initiative to amend the Three Strikes Law to require that the third strike be not just any felony but a serious or violent felony, leading by a significant majority. In a previous post, we provided an analysis of the proposition, concluding that it was a step in the right direction, though we would have liked to see more reforms (including some hope for second strikes and a consideration of the simultaneous strike problem.) Today I'm thinking about the minority of Californians who still oppose Prop 36 and pondering the sources of said opposition.

As my colleague and friend Josh Page argues in The Toughest Beat, the original Three Strikes Law was heavily promoted by the CCPOA--California's prison guard union--and victim organizations puppeteered by the union. Spearheading the law were families of victims of heinous crimes perpetrated by habitual offenders on parole. The original idea behind the law was not to deter potential criminals from committing crime; if we allow simultaneous strikes to be counted in the same trial, we're pretty much dismissing the deterrent effect. Rather, the idea was to incapacitate; namely, to identify risky individuals and put them behind bars for life.

A Legal Analyst's Office analysis conducted in 2004 stated that only a third of the then-Three-Striker population had committed their third strike offense against a person. The remainder two thirds had committed a nonviolent third strike--a drug or a property offense. Moreover, less than half of the Three Strikers had committed an offense that could be considered serious or violent. However, as the report stated, while the third offenses were often not serious or violent (and sometimes, according to distressing news reports, rather petty), third strikers do have more serious criminal histories than other state inmates.

So, let's look at this from a prism of risk. Does a serious or violent criminal history consisting of two prior offenses predict that more violent might be perpetrated in the future, even if the person's third offense is actually not a violent one? The answer to that question is fairly complicated. Some criminal offenses are better predictors of risk than others.

I've recently read Gavin de Becker's The Gift of Fear. De Becker is a private consultant, specializing in violence prediction. The book examines various scenarios of violence--death threats, stalking, abuse, violence wrought by fired employees, stranger violence--and strongly advocates that readers pay close attention to their own intuition in situations that feel instinctually wrong or dangerous. De Becker's point is that, in any given situation, there are many clues that might help a potential victim predict a violent eruption. Some of these clues may be difficult to verbalize, as the potential victim might only notice them briefly, but our intuition works faster than our logic; therefore, the gut feeling in itself, without the verbal articulation of the grounds for danger, is important.

De Becker's message is well taken in the context of individuals and immediate violence. He is combating many years of socialization that implore us, especially women, to be "nice" and kind to strangers even when we feel something is awry, and the good will that might lead us to discount our instincts as stereotypes which must not be heeded. Being wise, rather than nice, could save our lives, which I think is an important message.

But it would be a big mistake to confound de Becker's message with a message to vote no on 36 because our instinct tells us that people with two prior violent offenses are dangerous, and here's why. First, there's a big difference between predicting imminent violence at the interpersonal, immediate level, and predicting it at the policymaking level as an uncertainty that might occur sometime in the future. For the latter task, one has the luxury of employing statistical predictions that a layperson cannot access in a given situation. Also, assessing a particular situation based on its context is an entirely different task than trying to predict violence without any reference to time, place, and circumstances. The factors that come into play in the latter situation will necessarily be generalized and based on many years of statistical prediction - which is why most parole boards have come to rely on statistical software, rather than on individualized clinical predictions.

Second, it's important to keep in mind that risk prevention in general only goes one way. Sure, if we lock up all convicts with a criminal history indefinitely we might end up safer; we eliminate the risk of false positives; our pity or compassion would be neutralized and we'd make no predictive mistakes. But what about all the people whom we may be locking up needlessly? And what about first-time offenders, for whom we have no such predictors?

And third, violence prevention is only one factor in designing penal policy. The third strikers we incarcerate for twenty-five years to life have already been punished for their two prior offenses. Retribution and proportionality are also important from a justice standpoint, as is the prospect of hope for release.

Which is why I wholeheartedly recommend The Gift of Fear - and voting YES on 36 - and do not see these messages as contradictory at all.