Wednesday, January 23, 2013

Pelican Bay Ordered to Cease Race-Based Punishment

Pelican Bay Prison. Image courtesy CDCR website.
The California Court of Appeal has just issued a decision in re Jose Morales. The decision prohibits Pelican Bay Prison's practice of race-based segregation and denial of privileges. From the decision:

Pelican Bay racially segregates prisoners and, during extended periods of perceived threatened violence, denies family visits, work assignments, yard exercise, religious services and other privileges to prisoners of one race while granting those same privileges to prisoners of other races. This habeas proceeding was brought by a Hispanic prisoner alleging that the prison's policy of disparate treatment based on race and ethnicity denies him equal protection of the laws.

This particular proceeding was tied to a 2008 incident between Hispanic inmates, which led to a segregation of all Hispanic inmates' access to programs, which apparently remained in effect for almost three years. The result of the effective lockdown on Hispanic inmates was that only inmates classified racially as "other", meaning, mostly Asian inmates, had to work double shifts in prison. Other inmates were denied visitation, exercise, religious services, and other privileges. In short, no one won.

The decision relies on a Supreme Court case, Johnson v. California, which held that government officials are not permitted "to use race as a proxy for gang membership and violence without demonstrating a compelling government interest and proving that their means are narrowly tailored" to advance that interest.

The decision in Morales extends that logic to race-based punishment, giving prison authorities narrow leeway to separate inmates based on ethnicity only if prison security requires it, so long as it is done "[o]n a short-term emergency basis" and not "preferentially".

One of the notable things about the decision is the judges' sensitivity to the chicken-and-egg nature of race-based classification. While some administrative policies are a result of gang-related racial hostilities, the classification in itself threatens not only "to stigmatize individuals by reason of their membership in a racial group" but also, importantly, "to incite racial hostility."

Another notable thing is the court's attentiveness to nuance. While many inmates are affiliated with a gang based on their race, not all inmates are affiliated with a gang, and to assume otherwise is to discriminate.

One hopes that the combination of this decision, and the agreement to end racial hostilities in Pelican Bay, will transform carceral practices so that racial strife, whether stemming from gang animosities or institutional unfairness, will diminish if not end.

Tuesday, January 22, 2013

More on Felon Enfranchisement: Voter Turnout in Israeli Prisons Surges

Today's short commentary comes from Israel, where exit poll results are out. Big political questions aside, there has been an interesting change in voter turnout in ballots located in prisons. As some readers might know, Israel fully enfranchises both current and former inmates; even Yigal Amir, who is serving a life sentence for murdering Prime Minister Rabin in 1995, has the right to vote. But traditionally, voter turnout among inmates has been fairly low. Haaretz newspaper reports:

נתונים מעניינים מבתי הסוהר, שם נסגרו הקלפיות ב-20:00. בסך הכול, הצביעו 7,435 אסירים, שהם 70.6% מבעלי זכות ההצבעה. זו עלייה דרמטית בהשוואה לבחירות 2009, אז הצביעו רק 21%, זאת בשל שינוי בחוק שהוביל שב"ס לזיהוי האסירים בכרטיס אסיר ללא צורך בתעודות זהות, שלרוב לא היו ברשותם. עד כה נאלצו האסירים לשלם מכספם כדי להנפיק תעודות חדשות ולכן ויתרו בדרך כלל על ההשתתפות. מלבדם הצביעו גם 1,295 אנשי סגל. לא נרשמו אירועים חריגים לאורך היום.

Interesting data from prisons, where ballot boxes closed at 8pm. Overall, 7,435 inmates voted, who constitute 70.6% of all inmates eligible to vote. This is a dramatic increase compared to the 2009 elections, in which only 21% [of inmates] voted, due to a change in law that led the Prison Authority to identify inmates based on their inmate card without need for an Israeli I.D., which they often did not have. Until now, inmates had to pay out of pocket to obtain new I.D. cards and therefore usually forewent their right [to vote]. In addition [to the inmates], 1,295 correctional staff voted. No unusual events were recorded during the day. [My translation - H.A.]

This is interesting, albeit anecdotal, data for several reasons. First, it refutes the notion that voter turnout among the inmate population is universally low, or the assumption that it would be low if they were given the vote in countries in which they are disenfranchised. Second, and more interestingly, it effectively refutes the tendency to ascribe low turnout to voter apathy. Rather, it indicates that the expense involved in documentation and bureaucracy - even when there is no real voter fraud concerns, or if they are bogus - is the real deterrent from voting. This has implications beyond the inmate population, as to voter I.D. laws in the US in general, criticized - rather colorfully - by Sarah Silverman before the 2012 U.S. election.

The concern about low voter turnout is real, and the corollary - as the Israeli inmate case tells us - is that facilitating the right to vote for people for whom obtaining the appropriate card is an expense or a hassle enriches the electorate in people who are engaged and interested in impacting life in their communities.

And who knows? Maybe recidivism rates in Israel are lower because people are never divorced from the fate of their countries and never cease to be enfranchised citizens.

Friday, January 18, 2013

Film Review: The House I Live In

Eugene Jarecki's new film The House I live in, which is currently available for purchase streaming from Amazon and iTunes, opens with a press conference featuring Richard Nixon. Flanked by his assistants, Nixon declares war on the "Number One enemy of the American people": Drugs.

The remainder of the movie is a sober examination of the colossal failure of the war on drugs. It documents this war through the personal histories of addicts, sellers, police officers, activists, prison guards, and others whose lives are woven into the tapestry of overenforcement and mass incarceration.

Much to my relief, the movie does not minimize the immense harm that drugs bring upon users, their families, and their communities. It acknowledges the devastation of addiction, as well as the fact that many (albeit not all) drug dealers sell to finance their own habits. It also is sensitive to the sociological nuances of drug use. The movie treats the crack epidemic of the 1980s, as well as the subsequent onslaught of meth on the American heartland, with care, acknowledging the seriousness of the problem but avoiding moralistic panic. And yet, as David Simon says on the film, to acknowledge the devastation of drugs is not to automatically condone what has been done to combat that devastation. The immense expense and effort, and the dehumanizing effects of the war on drugs itself, have not led to a decrease in drug abuse, and can be deemed a failure.

One of the movie's great strengths is the finesse with which it treats the relationship between the drug war and racial strife. Particularly attuned to the plight of inner-city African American communities, the movie tells the history of drug criminalization as one of racially-motivated policies. While the movie focuses on the black community as a target (and Michelle Alexander, also interviewed, discusses this aspect of the war, as well as David Kennedy from Harvard,) the movie also includes fascinating footage of the opium wars and of enforcement along the Mexican border. And yet, as it moves to tell the story of poor white meth users, the movie also says that the story of the failed drug war transcends race.

Through David Simon's interview, and fascinating filming of stop-and-frisk scenes, the movie ties up the connection between mass incarceration and street policing. The pay structure for cops is problematized; while brainwork and legwork involved in solving a murder or apprehending a rapist produces, perhaps, one arrest, routine stop-and-frisk activities and warehousing nonviolent drug dealers results in more arrests and in better pay. Another economic angle is the correctional industry; footage from a correctional conference in Tampa shows jocular prison officials trying out tasers and other equipment fueled by an industry of incarceration.

For me, the most controversial aspect of the movie was Jarecki's linking of the war on drugs to the heritage of holocaust survivorship of his parents. He interviews experts on fascism and genocide, showing how laws that support a demonization and dehumanization of an underclass may lead to annihilation. I think the war on drugs is devastating, speak out frequently against prison condition, and am fully aware of what what the prison industrialized complex means for poor people of color, but I found the analogy difficult to digest; I am not sure it was germane to the goal of the movie. What I did find moving and convincing was Jarecki's commitment to help others, and to seeing and highlighting the class aspect of the drug war, as part of the heritage of holocaust-survivor parents who vowed to help others who are less fortunate. 

Another personal angle is Jarecki's ongoing conversation with Nannie Jeter, who escaped the traumas of Jim Crow south to work for his family. In doing so, and wanting to better her circumstances, she encountered more problems and discrimination, and eventually lost a son to the war on drugs. The dialogue between them is moving and convincing, and opens a window to Jarecki's personal motivation and sense of guilt and commitment in making the movie.

Those of us who have been following mass incarceration for a while will not find much new or shocking information in the movie, but it is a great introduction to mass incarceration in the United States for the many people whose taxes pay for this failed war and who might be unaware of its destructive implications.

Thursday, January 17, 2013

Redball Crimes and Criminalization: Why Gun Control Makes Sense

The last few days have seen abundant web commentary for and against President Obama's gun control legislation plan, as well as some localized efforts in that direction. Critiques based on the Second Amendment as a constitutional right are not as interesting to me as the ones that argue this is unnecessary regulation based on moral panic.

We've talked before about moral panic in the context of shootings. Legitimate horror and shock aside at such events, they are not as common as they might seem; as a cause of death, shootings generate much less death than illnesses (some of them preventable and treatable.) So is gun control an exaggerated, moral-panic-triggered response to Newtown? Should we hesitate more before introducing such legislation?

There's an important difference between gun control and criminalization, and it goes to the proportionality of state reaction. While CNN seems to have serious doubts as to whether this legislation will pass congress, the content of the legislation itself does not feel too onerous or dramatic. No one goes to prison for years for victimless crimes, which is often the end product of moral crusades. People can still have guns and shoot them to their heart's content, as long as they don't use assault rifles and/or high-capacity magazines. Mental health access is improved, as is school security. In short, this is more of a situational crime prevention measure, which is exactly what we advocated here, rather than an initiative that demonizes a group of people. In short, nothing truly earth shattering. The panic that these fairly sensible and mild reforms is generating among the NRA and their allies is a sobering reminder of how partisan politics closes one's ears to reason.

Thursday, January 10, 2013

New Homelessness Decriminalization Bill

AB 5, a new Assembly bill by Tom Ammiano, aims at decriminalizing homelessness. Titled The Homeless Person's Bill of Rights and Fairness Act, the bill aims at providing legal representation against quality of life offenses, access to social services, and the right to rest in public spaces and in their cars around the clock.

The California Progress Report sees this bill as a prison reform bill as much as a civil rights issue.

When stripped of the rhetoric, it seems that Ammiano is trying to override municipal sit/lie ordinances, whose impact on the homeless population has been heavily protested against both in cities in which they passed (like San Francisco) and where they failed (like Berkeley in the last election.)

Props to Eric Chase for the link.

Is Realignment Obsolete? Harmful?

In recent days, realignment isn't getting much love. A Wall Street Journal story this week blames realignment for a recent rise in property crime. Veteran readers of this blog, read the piece (or the excerpt below) and let's find what's fishy here.

California saw a year-over-year increase of 4.5% in property crime in the fourth quarter of 2011, immediately after the overhaul, marking the first rise since 2004, according to a report from the state attorney general this fall. In contrast, property crime, which includes burglary, auto theft and larceny, fell 2.4% in the nine months before the sentencing changes stemming from a U.S. Supreme Court decision. 

 While the attorney general doesn't release 2012 data until late this year, localities ranging in size from Sacramento to Santa Rosa in Sonoma County saw property crimes rise last year. The Federal Bureau of Investigation, which hasn't reported 2012 crime data, says property crimes fell 0.5% nationally in 2011 from a year earlier. 

. . . 

Known as realignment, the changes are "causing more of these people to be out in society rather than locked up," said Santa Rosa Police Sgt. Michael Lazzarini, and that could be a "pretty good reason" for the rise in property crimes. "Not only is it continued workload for the investigators, but it's also a quality-of-life issue for the citizens," he said. 

Santa Rosa saw property crime rise 5% last year through November to 3,568 crimes, while violent crimes declined 7% to 585 crimes. Sgt. Lazzarini, the head of the property-crimes-investigation team, said detectives have been stretched thin since the new state law, which he neither supported nor opposed. He said he has struggled to decide which crimes to investigate. 

There aren't enough data yet to back up Sgt. Lazzarini's hunch on a statewide basis. Gil Duran, a spokesman for Mr. Brown, said it is impossible to make claims about the reason for the crime increase with limited data. "Any respectable criminologist will tell you that [they] don't determine overall trends in a year or two," he said in an email. "Attempts to tie any increases to realignment are purely political."

Here's what's odd here, from a (respectable?) criminologist:

We're given data on crime in California and on crime in Santa Rosa. What we are not given is a county-by-country breakdown. I'm not just saying this just to take pleasure in countering Sgt. Lazzarini's hunch (since when does the Wall Street Journal write stories based on police officers' hunches, anyway?) Every single report on realignment implementation shows that different counties have been dealing with sentencing reform in different ways. The crime rise might not be a result of people being "out of jail". It might be the result of releasing people after their sentences without any appropriate probation mechanisms to help them find jobs. Or it might be that the recession is hitting some counties worse than others. I want Sgt. Lazzarini to show me that property crime in San Francisco and Alameda is going up (because, supposedly, these counties "let people out") and down in Los Angeles, Riverside, and Orange (where there is an orgy of county jail building). Now that'll be special, and even then, correlation is not causation.

Police hunches are not unimportant. Police hunches in individualized, specific situations, can and do save lives. But hunches have no place when generalizing from data, and people who can't read data carefully should not drive policymaking.

So, apparently Governor Brown also doesn't buy Sgt. Lazzarini's hunch. But he has his own beef with realignment. Here's what Governor Brown said to the federal court this week, as reported by the L.A. Times:

"At some point, the job's done," Brown said at a Capitol news conference before catching a plane for Los Angeles, where he repeated the message. "We spent billions of dollars" complying with the court orders, the governor said. "It is now time to return control of our prison system to California." 

 . . . 

The population now hovers around 119,000 — about 50% more than state facilities were designed to hold. Some prisons are at 180% of their intended capacity. 

The federal courts set a June 2013 deadline to reduce that total to 137.5%. The state says it now expects to exceed the cap by 9,000 inmates. On Tuesday, Brown argued those numbers were meaningless in light of improved inmate healthcare. He further called the design capacity of the state's prisons "an arbitrary number." 

But former state prisons chief Jeanne Woodward disputed the governor's assertion and said she worried that without federal intervention, the governor and Legislature would find it easier to cut funding for improvements such as new healthcare facilities. 

"Without court oversight, resources tend to get taken away," said Woodward, a senior fellow at UC Berkeley School of Law.

This is the most recent attempt by the state to avoid complying with the Plata mandate. Of course the design capacity is an "arbitrary number"; all numbers are arbitrary. What makes this number magical is that it didn't pop out from the sky; it was decided by the court after hearing expert testimony about proper medical care and quality of life.

And here's another reason why this is interesting. As you may recall, the government's solution to depopulation as a response to the Plata order was to combine it with a savings measure. Plans to move inmates from state prisons to jail were in place back in the Schwarzenegger days, before Plata. Now, suddenly we're being told that further depopulation would not save money; it would actually waste money.

I don't think that realignment is the best thing since sliced bread, and I think in some cases jail conditions could be worse than prison conditions. But I do think that, done thoughtfully and thoroughly (like what these folks did), it is a step in the right direction. The state's resistance to the plan as a whole seems misguided. What the state should do instead is guide the counties, with proper fiscal incentives, to do realignment as it should be done.

Christoffer Lee, David Takacs and Aatish Salvi sent me links. The grumpy commentary is mine and mine alone.

Sunday, January 6, 2013

Put us in your calendar! News on our Upcoming CCC Conference

We want to remind our readers that the California Correctional Crisis conference will be held March 21-22 at the California State Building in downtown San Francisco!

Among our featured speakers will be Senator Mark Leno, exiting CDCR Secretary Matthew Cate, and former Warden of San Quentin Jeanne Woodford. Many other speakers, including law enforcement officials, prosecutors, defense attorneys, judges, victims rights advocates, probation and parole officers, sheriffs, doctors, and formerly incarcerated activists, will illuminate various aspects of our correctional crisis.

We offer MCLE credits to lawyers and would love to have you with us!

Restorative Justice in Murder Cases

Conor McBride and Ann Grosmaire in 2010.
Courtesy the Grosmaire family and the New York Times.
In 2001, still in practice as a reservist for the Israeli Military Defense Counsel's office, I represented an inmate who was serving a life sentence for murder. Four years earlier, he had shot another soldier to death over a dispute about using the public phone. My client wanted help with a petition to the President of Israel. Under Israeli law, all life sentences are not truly for life; it is the President's prerogative (a relic from colonial days, when the British Governor held the equivalent position) to determine how many years "life" would be.

As we put together the documentation for the petition, we also discussed my client's desire to meet the victim's family and express his remorse for what he had done. He wanted to ask for their apology. I was doubtful that we would succeed, but made some phone calls to the Ministry of Justice. At the time, restorative justice was a nascent field in Israel, and the people I talked to were reluctant to take on this project. They had not tried restorative justice in serious offenses such as murder, and in light of the victim's family's position during the trial (they were, understandably, very upset and very hostile toward my client) did not believe that the family would want to hear from my client, let alone be in the same room with him.

I left the country shortly after handling the case, but often wondered over the years what happened to my client. We recently got in touch again and I was glad to hear that he was doing well in prison, working and studying, and making plans for his release.

This is why yesterday's New York Times story about restorative justice moved me very deeply. It is a story from Florida about a restorative justice meeting between the family of Ann Grosmaire, who was murdered by her boyfriend, and Conor McBride, the man who took her life after a long argument. The article is worth reading in full, because it vividly tells the story from the perspectives of the different parties that took part in the process: Ann's parents, Conor's parents, Sujatha Baliga, the facilitator and a former public defender from Oakland, and the prosecutor, Jack Campbell. The pain of the victim's family is indescribable; the depths of their forgiveness - granted for themselves as well as for him - incredible. I can't recommend it enough.

One of the major challenges on the road to accepting restorative justice as a legitimate and important step in the criminal justice is the victim's contribution to the outcome. After all, two murderers can end up receiving very different sentences, depending on their victim's family's feelings on the subject. Is that fair? Perhaps not from the traditional criminal justice stance. But it is easier to accept such an outcome if one thinks of a murder as something that happens in a certain context, a certain relationship between the murderer and the victim and the people in their lives. As such, the murder "belongs" not only to its perpetrator, but also to those who suffer the ramifications. Nils Christie's classic article Conflicts as Property advocates returning the conflict to the victim and minimizing the role of "conflict thieves" - lawyers, judges, system actors - in its resolution.

This is why it was important, in the Prop 34 campaign, to remind all of us that not all victims are punitive and not all of them believe in the death penalty. This nuanced L.A. Times story shows that different victims responded differently to the prospect of applying the death penalty. Respect for victims means not treating all of them, cookie-cutter style, automatically as staunch supporters of the prosecution, but rather giving them the space to say what they want from the process and how they choose to engage with what happened to them.

Props to Sal Giambona and David Takacs for alerting me to the article.

Friday, January 4, 2013

Guns, Pediatricians, and Framing Violence Risks

Joey, 11, killed his first deer when he was 7. He lives with
his family in Kentucky.
Image from New York Times "Where Children Sleep"
photo essay.
Is it within a pediatrician's authority to warn parents about unlocked guns in the homes of child patients?

That question came up in Florida last year, and the recent tragic events in Newtown have brought it back to the forefront. This fascinating article, by Schaechter et al., provides a good overview of the question in the context of a Florida law that was supposed to block pediatricians from asking about gun ownership, pointing out the risks to patients' families, and recommending that they don't keep a gun in the home, or at least that the gun is kept locked.

Now, the legal controversy was about whether the law protected people from the pediatricians' supposed infringement upon their Second Amendment rights. A Florida court found that it did not:

“Despite the State’s insistence that the right to ‘keep arms’ is the primary constitutional right at issue in this litigation, a plain reading of the statute reveals that this law in no way affects such rights,” wrote U.S. District Judge Marcia Cooke. “A practitioner who counsels a patient on firearm safety, even when entirely irrelevant to medical care or safety, does not affect nor interfere with the patient’s right to continue to own, possess, or use firearms.”

Subsequently, the law was permanently blocked, as violating the physicians' First Amendment rights:

“What is curious about this law — and what makes it different from so many other laws involving practitioners’ speech — is that it aims to restrict a practitioner’s ability to provide truthful, non-misleading information to a patient, whether relevant or not at the time of the consult with the patient,” Cooke wrote, citing the benefit of such “preventive medicine.”

 But rather than a doctrinal debate about the First or Second Amendments, let's focus on something that I find more interesting: The question of how one defines what is the legitimate business of a pediatrician and what isn't. This Time article provides some interesting quotes from the sparring parties about what's really at stake: Whether warning parents about gun ownership risks is within the provenance of the medical profession or an unwarranted moral intervention.

”We take our children to pediatricians for medical care — not moral judgment, not privacy intrusions,” NRA lobbyist Marion Hammer told NPR in May.

“The law was crazy,” says Louis St. Petery, a pediatric cardiologist in Tallahassee and executive vice president of the Florida Pediatric Society. “The NRA [National Rifle Association] argued that we were out to rid the state of firearms, but that’s a distortion. Our issues as pediatricians are all about safety.”

Now, there is no doubt that bringing in someone who has been shot by a gun is a medical issue. But does that extend to pointing out the risk that that might happen with a gun kept in the house? On one hand, there are studies linking carrying guns to the risk of being shot, and studies linking keeping guns at home to similar risks. It is these studies that prompted the American Academy of Pediatrics to adopt a policy stance against gun ownership. On the other hand, I suppose studies of causal inference in this regard do not require medical education to understand.

But this raises the question of how much of violence prevention (with injury or death being possible result of said violence) is within the provenance of the medical profession. Interestingly, medicalization is often offered as a counterbalance to criminalization. In the context of drugs, making them a medical, rather than a criminal, issue is sometimes considered a benign approach. And, in Governing Through Crime, Jonathan Simon suggests supplanting the war on crime with war on something else, such as on cancer.

Whenever I've heard Jonathan speak about this, I've thought (and sometimes commented) that the problem is not with the subject of the war; it is war itself as a model to tackle problems. But I also think that Conrad and Schneider were right in pointing out that medicalization can be just as pervasive and intrusive as criminalization, and sometimes more. A case in point is our locking up of sexual violent predators in civil commitment long after their sentences have been served. I also think that the expansion of the field of medicine is perhaps easier to do now that we tend to see disease in holistic, environmental terms. Studies increasingly link disease to factors that involve people's overall lifestyle: Stress, smoking, overworking, sexual habits. Doctors are bound to touch upon these topics when discussing their health risks, and all of these are, to some extent, statements that go beyond treating the person's immediate problem.

Seems to me that one's acceptance of, or outrage at, a doctor's mention of the connection between a given lifestyle is a good litmus test as to one's political beliefs. Remember the fear in the early days of AIDS discoveries that it was a form of "gay cancer?" And the battles in San Francisco and in New York over shutting down bathhouses? Gay activists at the time protested that the medical profession was using AIDS as a tool to oppress them and morally sanction their sexual behavior. We now know that the HIV virus is transmitted through unprotected sex, and that refraining from unprotected sex was sound medical advice. But the community's sentiment that there were political repercussions to these medical policies can be understood. They are not much different than the sentiments expressed by NRA activists.

While I understand the concerns about medicalization as a way to legitimize political interference in private choices, I tend to err on the side of allowing the doctors to rely on studies of risk to educate and warn us about our choices. The bottom line is that providing advice and warning is nothing more than medical advice, which we might heed or discard depending on our priorities in life, risk averseness, and values. And if we get bent out of shape because a doctor tells us that keeping a gun in the house increases the odds that our child will be injured, maybe it's because we are feeling a bit insecure about the choice we made in the first place.

Props to Viet Bui for bringing the article to my attention, and to Aatish Salvi for the conversation that helped me clarify my ideas on the topic.