Friday, May 31, 2013

BREAKING NEWS: Death Penalty on Hold in CA

The San Jose Mercury reports:

In a 28-page ruling, the 1st District Court of Appeal found that state prison officials failed to comply with administrative rules when crafting new regulations more than two years ago. The unanimous decision of the three-justice panel sends California back to the drawing board, unless the Brown administration takes the case to the California Supreme Court and keeps more than 700 Death Row inmates on an indefinite reprieve.

The appeals court upheld a Marin County judge, who faulted the prison department for a variety of procedural missteps, including offering no public explanation for why San Quentin officials opted to continue with a three-drug lethal injection method instead of a single-drug execution option being embraced by a number of other states.

State officials have indicated in court papers they are exploring the single-drug option, which involves putting condemned inmates to death with one dose of a sedative. Ohio, Washington and Arizona are among the states that have moved to that option to short circuit legal challenges to the three-drug method.

A prison spokesman said state officials are reviewing the ruling but have not decided how to proceed.

. . .

State Justice J. Anthony Kline, writing for the appeals court on Thursday, found California again violated the administrative rules in 2010, rejecting the state's argument that more than 20,000 comments were submitted and public hearings were held to consider its new lethal injection procedures. The appeals court concluded that the public did not receive all the necessary information, particularly surrounding the prison system's decision to stick to the three-drug method, which has been challenged because of concerns it can result in a cruel and painful death.

The full decision can be found here. I will speak about the decision at approximately 8:15 on KPIX (Channel 5) on Sunday.

Saturday, May 25, 2013

Why I Am Not an Abolitionist

Examining what might be the beginning of the decline of prison as a massive mode of governance (and government expenditure) sometimes makes me think about abolitionist criminology - that is, a perspective ruling out the usage of prisons as a mode of punishment at all, and sometimes challenging the very concept of crime. I spend a lot of time on this blog decrying the evils of mass incarceration, and with good reason; the prison complex has become a monstruous apparatus controlling the lives of an astonishing percentage of Americans. That this massive project is shrinking a bit because of the economic downturn can be read as a sad testament to the prism of profit as the main perspective on crime and punishment. If we could execute and confine massive amounts of people on the cheap, somehow, we would do it. And that is horrific, and the goal of bringing this system down certainly merits our energy, passion, time, and money.

But I am not an abolitionist, and I don't think I ever was. A lot of what Gilmore and Davis say is true, but I don't come out of this with the same conclusions. This post is my attempt to clarify to myself how I feel about the prison project in general, and it is more reflective than decisive.

The bottom line is this: Despite everything, despite Discipline and Punish, despite Visions of Social Control, despite The New Penology, despite From the Big House to the Warehouse, I still think that prison is preferable to a regime of corporal punishment. And I think that some people - a very small minority of the people currently doing time in correctional institutions - should be in prison, and should be kept there for a long, long time. My objection to mass incarceration is aimed at the scale of the operation, not at its rationale. I would be at peace with a much, much smaller apparatus, designed to confine the very small percentage of people whom I regard non-redeemable, or whose deeds are abominable to the extreme.

A couple of months ago we had the great honor and pleasure of hosting Marc Klaas on stage at the California Correctional Crisis conference. I have fought Mr. Klaas's politics for much of my professional life, and I truly believe, and always have, that extreme punitive measures advanced as being presumably in the interest of victims are unfair, inhumane, and do much more harm than good. But not only do I have an immense amount of sympathy for Mr. Klaas and the terrible loss of his little girl, I also have a lot of admiration and respect for his commitment to public service and his devotion to what he thinks (and I disagree) is best for California. He is not part of the prison industrial complex. He genuinely believes his work is world-improving, and I have respect for genuine advocacy. And I think some of it, especially the KlaasKids foundation's work to help identify and locate missing children, is very worthwhile.

I also have some understanding of the retributionist perspective, even though I'm not a big subscriber to its punitive corollary. A few months ago I saw the chilling and depressing film An American Crime, which, to my horror, is faithful to the trial transcript in the very real murder case of Sylvia Likens. I can't really recommend the film or the trial transcript - I had nightmares for many weeks and wouldn't wish them upon my readers - but it awakened me to the distressing fact that crime is real, it is sometimes (happily, rarely) truly horrific, and victimization is devastating. Interestingly, the Indiana jury decided, in that trial, not to impose the death penalty. Is the death penalty horrific from a humanistic and systemic perspective? Yes. Would I lose sleep over someone like the defendant receiving it in that case? Probably not. Hannah Arendt, in Eichmann in Jerusalem, found a way to justify the death penalty in that specific case. I consider myself a death penalty abolitionist on various grounds and still agree with her conclusions.

If I have to choose a criminological camp to belong to, therefore, I pledge my allegiance to Jock Young's left realism. Crime, says Young, is real, and victimization is real. Any effort to present the crack epidemic and its immense devastation as nonexistent, or some sort of fantastic FBI conspiracy, should be rejected (and if you want to know more, read David Kennedy's Don't Shoot.) Any effort to present violent street crime as "community organizing" should be firmly rejected. As Jimmy McNulty says in The Wire, an underground economy can and should exist without horrific violence and the devastation of entire neighborhoods. I don't think I'm feeding into the establishment and justifying mass incarceration by acknowledging crime and victimization.

Yes, crime is situational. But there is almost always a modicum of responsibility. We have to believe in responsibility if we believe in change. Yes, help and initiative and welfare and reform is essential to bring about that change. It cannot happen on its own. But to argue that deprivation, racial and class discrimination, and other situational factors necessarily produce violent crime is an insult to the vast majority of poor people of color who do NOT engage in violent crime. In that way, the abolitionist radical position, that would interpret any criminal act as having political meaning, is as reductionist and offensive to me as the right-wing race- and class-blind position that expects everyone to conform to the law regardless of their status in life, or worse, that assumes that race and class are criminogenic because the perpetrators subscribe to a different set of values.

Moreover, radical criminology does a disservice to poor people of color when it decries stop and frisk wholesale and argues for underenforcement. As Sasha Natapoff convincingly argues in Underenforcement, street crime tends to victimize folks who live in low-income, minority neighborhoods. Yes, police brutality and abuse of power should be fiercely protested and stopped. But no policing at all throws the baby in with the bathwater.

So, let's all fight the good fight. Let's demolish the California correctional monster. But let's not forget that the distinction between offenders and victims is false; let's not forget that prisons, while instruments of incapacitation, profit and corruptions, are the right place for a small minority of the people who inhabit their walls; and let's not subscribe to an essentialist view that, by denying crime and its devastating consequences, defies reality.

Such a short post cannot possibly do justice to many topics we could discuss, such as the false distinction between street crime and other forms of crime, and the roots of American incarceration in the abolition of slavery. I acknowledge their importance and welcome thoughts and comments.

Thursday, May 23, 2013

Cutting Food Benefits for the Formerly Incarcerated?

An amendment to a farm bill, currently debated in the senate, would permanently drop anyone ever convicted of a violent crime from the Supplemental Nutrition Assistance Program (SNAP). Colorlines reports:

According to Robert Greenstein, president of the Center on Budget and Policy Priorities. . . 

The amendment would bar from SNAP (food stamps), for life, anyone who was ever convicted of one of a specified list of violent crimes at any time — even if they committed the crime decades ago in their youth and have served their sentence, paid their debt to society, and been a good citizen ever since. In addition, the amendment would mean lower SNAP benefits for their children and other family members.

So, a young man who was convicted of a single crime at age 19 who then reforms and is now elderly, poor, and raising grandchildren would be thrown off SNAP, and his grandchildren’s benefits would be cut. … Democrats accepted it without trying to modify it to address its most ill-considered aspects.

Two-thirds of SNAP recipients are children, elderly or the disabled, and two-fifths of SNAP households live below half the poverty line.

Beyond the obvious implications for the income gap and the disproportionate harmful impact on the African American community, this provokes some thought about the way the financial crisis has yielded a new perception of the offender. Our focus on inmates prior to their crisis had been on their risk level, and the crisis has focused our attention on their cost. This is what has yielded some of the advances in geriatric and medical parole, but it has also led to some bitterness over the "free healthcare" that inmates receive. This seems to be a development of the same ilk. In an era of competition over resources, formerly incarcerated folks are seen as somehow less deserving of help and compassion than others, and thus their benefits, regardless of economic condition, are first to go.

This is why, even though humonetarianism has made some significant dents in the mass incarceration machine, it cannot be relied upon as an exclusive strategy for reform. We've seen enough developments of the tough-'n'-cheap variety to know that savings don't always work in the direction of penal reform. The way to frame the savings argument here would be as a  long-term concern: Poor people with nothing to eat have less opportunities and might therefore resort to crime, and one way to save is to reduce recidivism.

Wednesday, May 15, 2013

Inmates Review Prisons and Jails on Yelp

I suppose in an age of free information and web democracy this was to be expected:
To me, this is interesting because it is the perfect retort to the increasing perspective of viewing inmates as customers. Jails that expect their "guests" to pay for their lodging, food, and health care, shouldn't be surprised if their "services" get reviewed.

Tuesday, May 7, 2013

Ban the Box: Screening Job Applicants by Criminal Record

Today's New York Times editorial is devoted to the problem of screening job applicants who have criminal records.

Sixty-five million Americans have criminal records that might cause them to be denied jobs, even for arrests or minor convictions that occurred in the distant past. Last year, the federal Equal Employment Opportunity Commission reaffirmed a longstanding ruling that it was illegal to screen out employees unless the offense was directly related to the job.

The problem, however, has become so acute that a growing number of states and municipalities have explicitly prohibited public agencies — and in some cases, private businesses — from asking about an applicant’s criminal history until the applicant reaches the interview stage or receives a conditional job offer. In addition, many jurisdictions now require employers to show that the disqualifying offenses are directly related to the position in question.

The editorial links to this report by the National Employment Law Project (NELP), which lists states and localities that have adopted "ban the box" initiatives, which do not allow employes to inquire about prospective employees' criminal records. Among the localities mentioned in the report are San Francisco, Oakland, East Palo Alto, Carson, Compton, Richmond, Alameda County, and Santa Clara County. As the report explains, many of the "ban the box" initiatives are fairly new (adopted within the last seven years) thanks to the work of prison and reentry activists, and some of them were adopted during the financial crisis and despite job shortages.

As far as statewide policies, a Schwarzenegger gubernatorial executive order from 2010 ordered two questions regarding conviction history removed from the State of California Employment application.  The State Personnel Board has issued a new application, and background checks will not be required for every position. For more information about the successful campaign to bring about Ban the Box in California, read how Legal Services for Prisoners with Children spearheaded the campaign or use the toolkit available on their website.

What about private employers? The California Labor Code, summarized in this report, asking employees to provide information about arrests that did not lead to a conviction is illegal. The statues do not prohibit employers from asking about arrests for which employees are out on bail, but it seems that seeking such information about applicants would be tricky, if not illegal. Asking about criminal convictions is allowed when accompanied by a statement that criminal records do not necessarily disqualify an applicant from consideration, and asking about certain marijuana convictions (more than two years old) and expunged/sealed convictions, as well as misdemeanor convictions for which probation has been completed, is illegal.

The progress made by Ban the Box activists is astounding particularly against the background of job losses in the last few years. It's a display of fairness and equity in a setting that usually does not have much empathy for currently or formerly incarcerated people. Readers - why do you think that is? Is this a rehabilitative animus - that is, people feel more inclined to help folks who have already completed their sentences? Or is there anything else afoot?

Friday, May 3, 2013

Gov. Brown Reveals Plan to Comply with Plata Mandate

A gym at the Deuel Vocational Institution in Tracy
emptied of triple bunks. Photo credit AP.
Yesterday, Gov. Brown revealed the State's plan to comply with the Supreme Court's mandate in Plata. The Greenwich Time reports:

Options in the state's plan include:

— Granting more early release or "good time" credits to inmates, including second-strike inmates who have serious prior convictions.
— Paroling elderly and medically incapacitated inmates who are deemed unlikely to commit new crimes.
— Expanding the number of inmate firefighters by letting some serious and violent offenders participate.
— Increasing the use of drug treatment centers.
— Paying to house more inmates at county jails with extra space, and possibly at private prisons within California.
— Slowing the return of the 8,400 inmates who are being housed in private prisons in three other states at an annual cost of about $300 million.
— Adding space for 1,700 sick and mentally ill inmates when a new $840 million treatment facility opens in Stockton this summer.
— Freeing a projected 900 inmates because voters in November softened the state's tough three-strikes lifetime sentencing law for career criminals. Proposition 36 changed the law to require that the third strike be a violent or serious felony and lets third-strikers with lesser offenses apply for shorter sentences. The administration rejected a proposal to release about 2,800 eligible inmates without court hearings.

The administration argued against many of the proposals even as it presented the options to the court in a series of legal filings.

There don't seem to be many surprises here; in essence, the plan follows standard paths to decarceration. But it is also important to note that CA intends to slow down the rate at which it will bring back inmates held out of state in private institutions.

The other thing that is not surprising is the state's tendency to speak in two voices at once every time these plans are discussed. The message is: We'll comply, so as not to be held in contempt, but we don't like this one bit, and are concerned about the implications for public safety. By now, Gov. Brown's grumpy rhetoric - there's no crisis, gyms are empty, everything's fine, inmate's lawyers and court-appointed masters are getting rich on taxpayer dollars, etc etc - should be familiar to regular readers. But the contempt threat, rarely made in the context of federal litigation, seems to have upped the ante.

It's also notable that CA intends to expand its fire camp program as a plan for decarceration. Any readers interested in learning more about fire camps, and about the difference in conditions, demeanor, and interpersonal relationships between prisons and fire camps, I highly recommend Philip Goodman's work, such as this terrific article.

Props to Caitlin Henry for the Greenwich link; I am surprised not to see this covered in CA periodicals.

Thursday, May 2, 2013

Devastating Overcrowding at Chowchilla Women's Prison

Litigation about overcrowding has focused on men's institutions. But what about women's prisons? Watch this video for some personal testimonies about heartbreaking tragedies caused by the lack of ability to attend to people medically at Chowchilla Women's Prison.

Wednesday, May 1, 2013

Effort to Speed Executions Dies in Committee

Image courtesy KALW News.
One of the main features of the Prop 34 campaign was an increase in support for abolition by people who are not necessarily ideologically opposed to the death penalty, but resent the wastefulness of essentially holding people in life imprisonment conditions in a costly and dilapidated facility while allowing them free representation and litigation space. The campaign emphasized that, since resuming the death penalty, only 13 people have been executed in California, while 84 died of natural causes. And several conservative editorials in support of Prop 34 explicitly said that they fully support the death penalty, but not as administered by the state. This trend is pretty pronounced not only in CA policymaking, but also in states that recently abolished the death penalty. The recent issue of the ABA Criminal Justice section journal features an article by yours truly and Ryan Newby in which we analyze the way in which savings have impacted the anti-death-penalty activism realm (I've said similar things here.)

But, Houston, there's a problem. One of the negative consequences of eliminating all activist arguments against punitivism save for the cost argument is that one can conceive of rather horrific criminal justice policies that are also cheap. You don't have to go as far as Texas to see the ill effects of tough-'n'-cheap mentality. If the death penalty is broken, a potential conservative argument goes, just fix it by making sure that these people DO get executed, and save money that way!

Which is why I found Bob Egelko's story on today's Chron fascinating. Apparently, the California District Attorneys Association proposed to amend the death penalty law in CA, proposing SB779, which would shorten death penalty appeals and habeas proceedings and resuscitate the gas chamber as an execution method (in response to the chemical shortage that postponed an execution a while ago.) The proposal died in the Public Safety Committee, 5-2. The Chron reports:

The bill would have limited most condemned prisoners to one round of appeals in the state court system and another in federal court. Other provisions would have eliminated public review of regulations on execution procedures, barred disclosure of the suppliers of drugs used in executions and authorized a new method of gas chamber executions. 

California's last execution by cyanide gas was in 1993. A federal judge ruled a year later that the gas chamber at San Quentin caused excruciating pain and violated the constitutional ban on cruel and unusual punishment. 

Lethal injections at the prison were halted in 2006 when another federal judge ruled that the executions, carried out by poorly trained staff in a dimly lit chamber, posed an undue risk of a prolonged and agonizing death. The court-imposed moratorium is likely to remain in place at least through 2013 as the state tries to validate new regulations and cope with a shortage of execution drugs. 

Under SB779, a gas execution would have been carried out by filling the chamber with a nontoxic gas, such as nitrogen or helium, displacing the oxygen and suffocating the prisoner. The condemned inmate could choose between gas and lethal injection, but the bill specified that the execution would be conducted by gas if injections were not legally available. 

To readers who are death penalty supporters, this is an interesting turn of events. It seems like, even in principle we endorse the death penalty, it is hard to live with the consequences of thinning out due process. There is no way back, folks. The only direction to go is forward, and any fantasy of saving money by hanging people in the town square cannot override the reality of many decades of death penalty litigation. Abolition is the only way to go now.