Wednesday, December 16, 2015

No New Jail in San Francisco... Now What?

The long-standing debate about the construction of an alternative to San Francisco's Jail no. 4 at 850 Bryant ended yesterday with a victory for the jail opponents. The supervisors declined to allocate funding to the new building. The advocates who fought against the new jail tooth and nail took to social media to proclaim their victory.

Unfortunately, the alternative--keeping the situation as it is--does not strike me as something to feel particularly victorious about. As I told the Chronicle the day before the vote, the outcome is dismal either way.

The anti-jail advocates are right in saying that we have been housing people that should not have been incarcerated in the first place, and that the high percentage of people with mental illness in the jail suggests that what we need is a mental institution, not a correctional one. They are also right in fearing the construction of a building with more capacity, because our collective experience with incarceration is that new beds tend to fill with new inmates.

I'm sympathetic to these arguments, but they are also somewhat short-sighted. An increase in incarceration is not the only evil under the sun. Unsound, unhealthy incarceration conditions are very problematic as well. Since the existing jail is seismically unsound and dilapidated, the result of the anti-jail victory is basically a temporary return to the status quo, which is dangerous and undesirable. And in the long run, if Jail no. 4 ceases to be operative and there's no alternative, the concern is that other jails will become overcrowded and unhealthy.

This is not the first adverse incentive of the move to close down prisons. When prison budgets are cut without an equivalent reduction in prison populations, what you get is less prisons and more overcrowding in existing, inadequate facilities. 

So, what's to be done? The only way out of this maze of bad alternatives is to do the hard work of an empirical survey. Let's analyze the San Francisco jail population. How many people are there because of a sick money bail system who could otherwise be out on O.R.? How many people should be receiving medical treatment that they can better get in a medical facility? How many people are doing long, realignment-type time in an institution unsuited for a lengthy stay? A budget cut on its own does not lead to a cut in incarceration. It's time, indeed, to move to another system of rationing punishment: return on investment.

Fueling the mental health system and reforming the money bail system (hopefully by legislating the bail bonds industry out of existence) costs money. Possibly a lot of it. But it has to be properly budgeted and invested. Just saying "no" without providing, and budgeting for, a viable alternative, may be touted as a victory, but it leaves San Francisco jail inmates in the lurch.


Saturday, December 5, 2015

Reiter on Solitary Confinement

Keramet Reiter of UC Irvine has recently done a Q&A with the Berkeley Human Rights Center on solitary confinement, her topic of expertise and focus of her forthcoming book.

Will the recent court settlement in California lead to any significant change in regard to solitary confinement practices?
Two big challenges with isolation in particular are that it’s been a very secretive process and there has been significant discretion over what circumstances and for how long people are sent to isolation….Now, under the recent settlement, you have to do something wrong instead of just being labeled a gang member and isolation terms are capped at five years. So that’s an improvement. But you still don’t have a right to a lawyer at the administrative hearing in which people decide whether you’ve done something wrong or not. The prison staff have a lot of control over what counts as a rule violation and who they charge with violations. Five years is a long time, and you’re under really intense scrutiny when you’re in isolation, and it’s easy to break more rules because of that.

Read the whole thing here.

Saturday, November 28, 2015

Podcast Review: Serial

On the last episode of the acclaimed podcast Serial, Sarah Koenig speaks to a retired police detective and asks him whether any murder case would raise the difficult questions raised by the case she focuses on. The detective replies that most cases are straightforward and few would present so many difficulties.

But is that true? It's hard to tell. After all, in his book In Doubt, Dan Simon provides a conservative estimate of the percentage of wrongful convictions: about 4-5% of all convictions. Rabia Chaudry, a family friend of Adnan Syed, thinks that his conviction for the 1999 murder of his high-school girlfriend, Hae Min Lee, is one of those. She enlists Sarah Koenig and the team to investigate, and they spend hours upon hours reinterviewing witnesses, digging up forensic evidence, and recreating the crime.

Indeed, Serial, and the subsequent show by Syed supporters Undisclosed, have raised considerable public interest in Syed's case, which had only provoked some local interest at the time. And the latest news are that Syed has been granted a hearing to present new evidence. Which leaves me wondering the same thing that Koenig asked the detective: how many other cases, murder or otherwise, would merit a rehearing if they received the benefit of hours of careful, NPR-quality attention?

In his famous 1965 essay Normal Crimes, David Sudnow shows how defense attorneys manage to dispose of cases in negotiation with prosecutors. Their professional expertise allows them to fit each case to an existing prototype of cases, thus facilitating the attachment of a "price list" to each case. This means that the cases don't really receive individual attention, leaving the bulk of professional time and attention for the few "abnormal" cases that go to trial. Whenever we hear about a dramatic exoneration, what we envision is someone who had been aggressively litigating and protesting for years, and who had been railroaded by the police and prosecution.

The interesting thing about Serial is that it doesn't try to tell one of those stories. I wouldn't go as far as to call it a "normal crime", but the show drags into the limelight what would appear to be fairly run-of-the-mill in terms of criminal trials. It is not a defense-oriented, the-government-is-the-worst-criminal sort of narrative that we're used to hearing in cases of serious miscarriage of justice, such as the West Memphis Three and so many others. No one is particularly at their best, but no one seems to be at their absolute worst, either. Yes, there's some racism; there's some unexplained defense behavior (this is important, because habeas review is almost impossible without proof of ineffective assistance of counsel); but none of it rises to the level of shock we've been used to experience when reading Innocence Project stories.

To me, that's the strength of Serial: showing the banality of a situation in which the factual disposition remains unclear. And it does so through Koenig's persona, who remains agnostic about the facts. In a way, Koenig is a stand-in for a diligent juror; she repeatedly refers to procedural and technical details as "boring", and classifies the evidence into "bad for Adnan" and "good for Adnan". Her congenial, soft manner never pushes the witnesses to the point of big revelations (to the extent that those are even possible, fifteen years after the crime.) When she says, at the end of the series, that she feels like shaking up the witnesses "like an aggravated cop", you almost wish she had done that in the previous eleven episodes.

And yet, it is precisely this softness and indecisiveness that lends the show its charm and magic. I haven't yet listened to Undisclosed, and I'm hesitant to do so, because Koenig's agnosticism makes me feel more respected and active than an enraged partisan party trying to enlist me to Syed's defense. Which brings me to another thought: what Koenig is trying to accomplish resembles the role of the inquisitor judge in a civil law country: impartial, out there to find out What Happened. The adversarial system calls for partisanship under the assumption that the competition between the parties will yield the best evidence. But the resulting games of obfuscation result in anything but, and Koenig's interviews with the jurors reveal just how much they were manipulated by the parties throughout the trial--regardless of whether they reached the factually correct answer.

I don't know what will happen to Syed now that his case has been picked up. But I wish that many more seemingly simple, run-of-the-mill cases received this careful attention--if not from investigative journalists then from more active jurors and with less partisan manipulation.

Sunday, November 22, 2015

Film Review: Ant-Man




Future posts will definitely feature some of these interesting things, but today I want to talk about the movie I saw on the flight to DC: Marvel Comics’ Ant-Man. This is not an indie documentary for bleeding-heart progressives who can wax poetic about the prison industrial complex. It’s a mainstream movie, featuring CGI animation, superpowers, gloom, doom, and beautiful people, and as such it is remarkable, because it represents what the filmmakers think the mainstream is open to seeing and accepting onscreen. And what it shows them is a skewed and flawed, and yet refreshing, slice of incarceration and reentry in the Bay Area.

Set in San Francisco, the film’s hero, Scott Lang, starts his journey in prison—notably, not a generic, imagined institution, but an imagined version of the very real San Quentin. And it’s a very different cinematic San Quentin than the one in which Oscar Grant spends an important scene in Fruitvale Station; one that resembles Justice Scalia's dark fantasies more than it resembles the actual prison we know. Scott’s first scene in Ant-Man sees him engage in a violent fight with another inmate. The many spectators, as well as Scott’s adversary, are large, black, muscular men. But then, the tension breaks, and it becomes obvious that Scott is on friendly terms with his adversary; we are told that this is some sort of rite of passage in honor of Scott’s impending release. Smiling, Scott says to his fellow inmates, “you have strange rituals.”

“You”, not “us”; because early on it is fairly clear that Scott is a special sort of inmate, one for which filmgoers will feel sympathy: he is a conventionally good-looking white man, armed with graduate education (a master’s degree in electric engineering), and his criminal history is that of a high-level hack for the morally allowable purpose of redistributing wealth. In short, Scott is a non-non-non if there ever was one, and we all root for him as he is released—be it because he terms out or because of Realignment.

But even with this relatively privileged starting point, Scott finds it difficult to cope outside. We see him shack up with friends, all of whom are formally incarcerated, and expressing hope of finding a suitable job soon. But his hopes are shattered: he manages to obtain an entry-level job at Baskin Robbins, where he is summarily fired by an unfeeling boss. Not for smart-mouthing a client (which he does, and which would be unthinkable to, say, an uneducated man of color competing for unskilled labor positions); for having a criminal history. Ban the Box, apparently, only gets one through the door; it doesn’t keep him there. And this is a crisis for Scott, who has to provide for, and win back the right to visit, his young daughter. His ex-wife is engaged to a cop, and both of them think of Scott as the deadbeat dad he is. We, however, know better; we’re rooting for Scott, and that’s partly because we haven’t been exposed to his ex-wife’s travails through his trial and incarceration. But we also learn a lesson: when someone is saddled with a criminal record and a history of incarceration, all the whiteness and the education in the world won’t help. It almost goes without saying that this message is deeply flawed. Race, class, and education make a big difference in reentry—as does another thing Scott has going for him, a supportive family. But it drives home the heavy penalty of incarceration and a criminal history with regard to someone with whom some middle-class moviegoers might identify.

It is this economic desperation, rather than a personality flaw, that leads Scott back into crime with his housemates—all of whom, except for him, are either men of color or immigrants with heavy accents. The film plays fast and loose with stereotypes, which is par for the course for sidekicks in a comic book. They are capable men, but they are capable in limited ways, and only as assistants to Scott, whose competence and ability are played up in the sophisticated heist they plan. The film occasionally takes pleasure in breaking these stereotypes; Luis’s unfocused chatter and confused narratives include references to his visits to a museum and enjoyment of Mark Rothko oils. But even when doing so, the Bay Area scenes that fly before our eyes as Luis describes the potential heist place him squarely within the imagined East Bay working class colorful subculture of dive bars, bikers, chicks and shady contacts. Luis has the info and the contacts, but he is not the brain of the operation.

The scenes depicting the heist planning elevate Scott and his accomplices to the coveted status of garage startup techies, and it is this subtle analogy that portrays them at their most competent and heroic. This nod to Silicon Valley reminded me of The Last Mile and other programs encouraging the involvement of folks of low income and education in the tech world upon their release. The film makes it clear, though, that reentry is not kind to any of our heroes, and if they are to make their way in the world, they must do so themselves. And so, their entrepreneurship is modeled after the “innovate first, ask questions later” model of South Bay, and sold as admirable and competent.

As viewers of the film know, the heist goes awry, and a chain of events is set in motion that sets Scott up to becoming “ant man”: a superhero capable of shrinking to the size of an ant. The adventure, villains, goals, and betrayals, are fairly predictable for the genre. What is less predictable, and surprisingly touching, is the ant metaphor, and how it connects to the incarceration and reentry theme from the movie.

Ants are eusocial insects. They are indistinguishable from each other. The inventor who employs Scott refers to them by numbers, not by names. When Scott complains, the inventor explains, “they are just numbers; do you have any idea how many ants they are?” We treat ants, apparently, the way we treat people in total institutions; we see them as a population, not as individuals deserving of life, health, and happiness. But Scott, reduced to the size of an ant, sees them as individuals, and names one of them Anthony. He learns from the inventor’s daughter how to control the ants with his mind by becoming part of the eusocial structure. Thus, the ants’ impersonality and collective organization is their great advantage. When one is struck down, ten rise in its stead (in fact, Anthony is struck in one of the final raids; Scott regrets it, but hops over and rides another ant in its stead). And together, because of their commitment to the collective wellbeing of the community, they are invincible.

It is notable that the penultimate scene in the movie marshals some of the laughable stereotypes for the beginning to marshal the ant metaphor of community and apply it to the formerly incarcerated. Luis tells a convoluted story yet again; but the bottom line of the story is that an indirect contact wants Scott to join the Avengers: “We need a guy that shrinks”. It is through this informal Bay Area network that an opportunity awaits our superhero. Because, like ants, the people who exit our prisons may look to policymakers, jailers, and employers all the same, and it might be easy to discount them—but when they look out for each other and act collectively, that is the source of their strength.



Wednesday, November 4, 2015

Facts, Values, and Cameras: Police Use of Lethal Force

The Oakland police is being sued for the killing of Demouria Hogg. The Huffington Post reports:

Oakland firefighters found an unresponsive man in the driver's seat of a BMW parked near a highway off-ramp one morning in June. They called the police department, saying a handgun was on the passenger's seat.
Police tried for an hour to rouse Demouria Hogg, 30, by using loudspeakers and firing beanbag rounds at the car. Hogg didn’t budge, police said. Hogg finally stirred when police shattered a passenger-side window with a metal pipe. It would be the last movement of his life.
One officer used a Taser on Hogg while another fatally shot him.  
It’s unclear what happened when Hogg awoke. Police said “a confrontation occurred.” An attorney representing the officer who fired the fatal shot said Hogg reached for the handgun.

This is an interesting case. What with the intense politicization of police use of force and partisan heated proclamations of value over fact, we tend to forget the standard in Tennessee v. Garner, and the fact that it's an objective one: force is justified when a reasonable officer would have probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. The fact that the suspect had a gun nearby (rather than, as in so many cases, an innocent item that officers claim appeared to be a gun) does not automatically exonerate the officers, but with the suspect dead, there's little to contradict their version that he reached for it. The strange part: the suspect was apparently sound asleep in the car for a long time before the police shot him.

But the fact that the officers, like all Oakland police officers, had lapel cameras that captured the event, makes things even more interesting. Note this bit:

“The video absolutely supports the officers,” said attorney Stephen Betz, who represents the female cop who shot Hogg, whose name hasn’t been released. “But if you’re suspicious of the police, the video that I saw doesn’t necessarily show what happened inside the car.”

Betz has hit on an inconvenient truth for those who support openness, disclosures, and social media activism: Cameras do not show "the truth". Footage of cameras is often grainy and confusing, especially if people are running or moving quickly. Moreover, to a disturbing degree, cameras show what we want to see.

In 2007, the Supreme Court decided a case called Scott v. Harris. Harris sued police officers for a car chase that ended in an accident (the police basically ran Harris off the road and he became paraplegic.) The jury awarded Harris compensation, but the Supreme Court took it back, relying on camera footage. Justice Scalia wrote:

There is, however, an added wrinkle in this case: existence in the record of a videotape capturing the events in question. . . The videotape tells quite a different story [than Harris's version]. There we see respondent’s vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit.6 We see it run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up. Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him.

But is it? Dan Kahan, Dave Hoffman, and Donald Braman decided to find out. They asked hundreds of respondents to view the following video and answer a series of questions:


Kahan et al. found considerable variation in the respondents' assessment of the danger Harris posed and on the appropriateness of police conduct here. More disturbingly, they found that these assessments strongly correlated with people's political values.[1]

I haven't seen the tape that depicts Hogg's killing, but I don't know that a tape alone can condemn or exonerate anyone. This is, perhaps, why the Oakland police is trying different strategies with the footage: a few months ago, they showed tapes to the media, then to the public. The plethora of responses they are getting proves Kahan et al.'s point: the camera is not an undisputed arbiter of the justification of police action, and what it shows can be interpreted in dramatically different ways. On the other hand, not releasing the footage gives rise to serious concerns that the police has something to hide; moreover, there are instances in which the police officer's version of the events clearly contradicts the footage, such as in the killing of Samuel DuBose.

So, what is the police to do? It seems like the camera technology's availability has preceded any law or policy on such matters. This coming Friday, the Hastings Race and Poverty Law Journal is hosting a one-day symposium on policing, in which we will have a panel on body cameras including the Oakland Chief of Police. I very much look forward to hearing from him, and from two public defenders who have confronted issues involving lapel cameras, about the proper policies to handle such incidents and the evidentiary value of the cameras--in a way that respects people's diverse values, but does not tout them over the important inquiry about the facts.

[1] by the way: almost every year I replicate this study with my Criminal Concentration students, except I add a question to the demographic part: I ask them whether they want to be prosecutors or defense attorneys. The answers are independent of people's political perspectives--most, albeit not all, my students are liberal, vote Democratic, and self-identify as progressive--and, unsurprisingly perhaps, people's assessment of the video, including of facts such as Harris's speed, wildly diverges based on their future career choice.

Tuesday, November 3, 2015

New Issue of Social Justice: Beyond Incarceration

The journal Social Justice has a new issue out, titled Beyond Mass Incarceration: Crisis and Critique in North American Penal Systems. The issue examines the latest developments in incarceration rhetoric and policy and promises to be a very engrossing read. Among the highlights are an article by Marie Gottschalk, who expresses pessimism about the two strands of prison reform--racial justice and bipartisan initiatives. There are also reviews of Jonathan Simon's Mass Incarceration on Trial and of Cheap on Crime. The issue sells for $13.45, which seems like a pretty worthwhile investment in such interesting content.

Tuesday, October 20, 2015

Film Review: The Black Panthers: Vanguard of the Revolution



The new documentary The Black Panthers: Vanguard of the Revolution opens with the renown story of the blind men touching an elephant, and the rest of the movie shows the party, like the proverbial elephant, to be as multifaceted and enigmatic as the people involved in it.

Narrated by many members of the Black Panther party, historians, police officers, FBI agents, and informants, the movie offers a kaleidoscope of perspectives on the history of the party since its inception, through Huey Newton's incarceration, Eldridge Cleaver's escape to Algeria, the infiltrations and struggles, the social programming, the collaboration with other social movements, the internal strife, and the last days. It is a mesmerizing, mature, and complex portrayal of a movement that embraced both revolution and reform; gender progress and traditional gender roles; inclusivity and exclusivity.

While the best part of all is the focus on individual narratives, the historical footage, mostly of Oakland in the 1960s, is stunning and extensive. The Panthers light up the screen with their distinctive appearance--the afros, the jackets, the berets, the weapons--and with their powerful display of black freedom and independence. The movie ingeniously moves from images of prominent Party members to interviews with the same members, many years later, in which they offer mature, reflective commentary about the explosive events. Many Panthers have remained on the public scene as activists; we recently covered Elaine Brown's reentry farm project. Their honesty in describing their experiences in the movement--being watched by the police, conflicted about the aims of the movement, and, for the women--pushed out by Huey Newton's later years, in which he was erratic and abusive--make the movie an unforgettable experience.

The film provoked me to think about two angles. The first is the prominence of the criminal process, and especially police-citizen interactions, with both the formation and the eventual destruction of the movement. One of the main points in the Black Panther platform was the fight against police brutality--and it is that very brutality that is evinced in police reactions to the party, starting with J. Edgar Hoover's institutional plan to "neutralize" the party and prevent a "messiah" from rising (via, as is convincingly argued, the assassination of Fred Hampton. Moreover, the intense and oppressive use of the criminal process against the Panthers, especially the "New York 21" trials, makes the point the Panthers themselves wished to make. In one of the trials covered in the documentary, Bobby Seale (later to unsuccessfully run for Mayor of Oakland) is gagged and bound at his own trial, making the comparison between the old and new Jim Crow painfully evident.

The second angle is the provision of much-needed historical context for the current Black Lives Matter protest movement. First, it is always useful to inform young joiners of the protest that the problems between police and communities of color are not new and run deep. And second, I think the current movement would do well to learn from the Panthers' willingness to reach a hand to other social movements and find common themes in different struggles for justice. It is possible to have a strong voice stemming from one's identity AND to involve allies and partners beyond merely asking them to "shut up" or "check their privilege". It is possible to highlight distinctive experiences AND appeal to a common ember of the human experience and to empathy. Sadly, the Panthers, like other social movements, were not immune to the left's destructive tendency to eat its own. While their internal struggles, such as the strife between Newton and Cleaver, were initially exploited by the FBI, toward the end, all the FBI needed was to watch from the sidelines as the movement destroyed itself.

Sunday, October 4, 2015

Marijuana Legalization Proposition Filed Today!

Today, The Coalition for Cannabis Policy Reform filed a proposition to legalize and tax marijuana in California. All the information on the propsition is on their website, Reform CA. The full text of the initiative is here.

The new law would make the following behaviors legal:

(a) To personally possess, process, share, or transport not more than one ounce of cannabis or cannabis products, solely for personal use, and not for sale. 

(b) To consume cannabis or cannabis products that are obtained and possessed in compliance with this Act when such consumption occurs at a private residence or such other location as permitted under this Act. Nothing in this section shall alter current law regarding the rights of a property owner or landlord to regulate or prohibit smoking on their property. 

(c) To cultivate homegrown cannabis in an area not to exceed one hundred (100) square feet; to possess the living and harvested plants and results of any lawfully harvested homegrown cannabis pursuant to this Article; and to transport homegrown cannabis between a lawful cultivation site and the cultivator’s residence. 

The new law also eliminates the penumbral legal implications of marijuana:

26012. (a) No person shall be prosecuted for child endangerment pursuant to Section 273(a) of the Penal Code, or any similar or successor statutes, for an action taken that is in compliance with the provisions of this Act, unless it is determined that there exists an immediate and actual threat to the health and welfare of a child. 

(b) Notwithstanding any other provision of law, an action taken that is in compliance with the provisions of this Act, by itself, shall not be sufficient evidence of parental unfitness, or child abuse, or otherwise be used to restrict or abridge custodial or parental rights to minor children, and shall not be the basis of a criminal act nor the basis to diminish parental rights or remove a child from his or her home, unless it is determined that there exists an immediate and actual threat to the health and welfare of a child. 

The law also sets up an office that will steer policy, manage interstate issues, and determine impairment standards, among other things, and a fund for the tax revenue (5% plants, 10% edibles). The money will go toward environmental restoration of damages resulting from cannabis industry.

Still defined as a criminal offense are supplying to a minor and involving people under 21 in cultivation enterprises; and there are still duties imposed on public employees to be sober during the performance of their duties.

Wednesday, September 30, 2015

Who Pays? Impact of Incarceration on Families

The Ella Baker Center's recent report, titled Who Pays? The True Cost of Incarceration on Families employed trained community researchers who reached directly into communities in 14 states, probing into the financial costs faced when a family member goes to jail or prison, the resulting effects on physical and mental health, and the challenges and barriers encountered by all when an individual returns home. The research included surveys with 712 formerly incarcerated people, 368 family members of the formerly incarcerated, 27 employers, and 34 focus groups with family members and individuals impacted by incarceration.

The key findings of the report are as follows (to read the full report, click here):

People with convictions are saddled with copious fees, fines, and debt at the same time that their economic opportunities are diminished, resulting in a lack of economic stability and mobility. Forty-eight percent of families in our survey overall were unable to afford the costs associated with a conviction, while among poor families (making less than $15,000 per year), 58% were unable to afford these costs. Sixty-seven percent of formerly incarcerated individuals associated with our survey were still unemployed or underemployed five years after their release.

Many families lose income when a family member is removed from household wage earning and struggle to meet basic needs while paying fees, supporting their loved one financially, and bearing the costs of keeping in touch. Nearly 2 in 3 families (65%) with an incarcerated member were unable to meet their family’s basic needs. Fortynine percent struggled with meeting basic food needs and 48% had trouble meeting basic housing needs because of the financial costs of having an incarcerated loved one.

Women bear the brunt of the costs—both financial and emotional—of their loved one’s incarceration. In 63% of cases, family members on the outside were primarily responsible for court-related costs associated with conviction. Of the family members primarily responsible for these costs, 83% were women.

In addition, families incur large sums of debt due to their experience with incarceration. Across respondents of all income brackets, the average debt incurred for court-related fines and fees alone was $13,607, almost one year’s entire annual income for respondents who earn less than $15,000 per year.

Despite their often-limited resources, families are the primary resource for housing, employment, and health needs of their formerly incarcerated loved ones, filling the gaps left by diminishing budgets for reentry services. Two-thirds (67%) of respondents’ families helped them find housing. Nearly one in five families (18%) involved in our survey faced eviction, were denied housing, or did not qualify for public housing once their formerly incarcerated family member returned. Reentry programs, nonprofits, and faith-based organizations combined did not provide housing and other support at the levels that families did.

Incarceration damages familial relationships and stability by separating people from their support systems, disrupting continuity of families, and causing lifelong health impacts that impede families from thriving. The high cost of maintaining contact with incarcerated family members led more than one in three families (34%) into debt to pay for phone calls and visits alone. Family members who were not able to talk or visit with their loved ones regularly were much more likely to report experiencing negative health impacts related to a family member’s incarceration.

The stigma, isolation, and trauma associated with incarceration have direct impacts across families and communities. Of the people surveyed, about one in every two formerly incarcerated persons and one in every two family members experienced negative health impacts related to their own or a loved one’s incarceration. Families, including their incarcerated loved ones, frequently reported Post-Traumatic Stress Disorder, nightmares, hopelessness, depression, and anxiety. Yet families have little institutional support for healing this trauma and becoming emotionally and financially stable during and post incarceration.

These impacts hit women of color and their families more substantially than others, deepening inequities and societal divides that have pushed many into the criminal justice system in the first place. Almost one in every four women and two of five Black women are related to someone who is incarcerated.4

Poverty, in particular, perpetuates the cycle of incarceration, while incarceration itself leads to greater poverty. Estimates report that nearly 40% of all crimes are directly attributable to poverty5 and the vast majority (80%) of incarcerated individuals are low-income.6 In fact about two-thirds of those in jail report incomes below the poverty line.7 The research in this report confirms that the financial costs of incarceration and the barriers to employment and economic mobility upon release further solidify the link between incarceration and poverty.

Most of all, this report’s collaborative research found that while supportive families and communities can help reduce recidivism rates, these bedrocks of support lack the necessary resources to help incarcerated individuals serve out their sentences and reenter society successfully. It is not enough to reform the criminal justice system without considering its purpose and impact on communities. Institutions with power must acknowledge the disproportionate impacts the current system has on women, low-income communities, and communities of color and address and redress the policies that got us here. Additionally, society as a whole must rethink our approach to accountability and rehabilitation, shift perceptions, and remove barriers that prevent formerly incarcerated individuals and their families from getting another chance at life.

Tuesday, September 29, 2015

Our Friends from the North: Canada's Conservative Turn


As policymakers in the United States are rethinking the country's reliance on mass incarceration, both from a fiscal and a humanistic perspective, disturbing trends in Canada merit some attention--both because they are interesting and disconcerting on their own, and because they provide an interesting comparison to the Nixon and Reagan years.

In The Harper Decade, our Canadian colleagues are examining the impact of the Harper administration on a variety of issues, ranging from public services to environmental protections. Their conclusion across all these areas: Canada has changed, and not for the better.

Of particular interest to us is Lisa Kerr and Anthony Doob's excellent essay The Conservative Take on Crime Policy, which examines Canada's punitive turn during the Harper years. Kerr and Doob write:

There is no question that Harper’s Conservatives have talked tough about criminal justice, departing from the more moderate tone that has characterized Canada’s history on this topic. Before Conservative rule, Canada had a long tradition of allowing criminal justice experts – like judges and prosecutors – to make decisions in ways that were largely insulated from politics.  One result is that Canada has been able to sustain a stable, moderate rate of imprisonment. Even during decades when violent crime was much higher across North America – when the US was busy generating the policies that would deliver its current situation of ‘mass imprisonment’ –  Canada relied on imprisonment comparatively sparingly. Since 1950, imprisonment rates have varied between about 81 and 116 adults per hundred thousand Canadian residents. In 2005 the rate was about 104. Currently it appears to be about 115.

This tone of moderation in crime policy has changed. With the Conservative politicization of the field of criminal justice we have seen an uptick in rates of imprisonment, an increase in the severity of the punishment experience, and a new reliance on crime as a salient topic with which to mobilize political support. Harper’s Conservatives have overseen decisions to close prison farms, fire prison chaplains, strip judges of sentencing discretion, and increase the use of solitary confinement. The overrepresentation of indigenous people in our jails and prisons – already a problem under past governments – has also become worse during Conservative rule.

Kerr and Doob identify three key areas of punitivism: rhetorical change, designed to sweep the public into a tough-on-crime ideology; consequential change, which targets especially people serving long sentences for violent crime by diminishing their hopes for parole; and unconstitutional change, which includes reforms that may be short-lived because of their unconstitutionality, but waste legislative time.

One important difference between the Nixon and Harper administrations is that Nixon's election campaign at least relied on some objective grounds: the massive rise in violent crime. Even commentators who argue that Nixon exploited this development to introduce, top-down, a massive fear of crime and combat the civil rights movement, do not doubt these numbers. By contrast, Kerr and Doob note--

the peculiarity of a desire to reform the criminal justice system – or at least talk about reforming it – at a time when crime is in a longstanding state of decline.  Total crime in Canada peaked in the early 1990s and declined thereafter. Homicide rates peaked in 1977 at 3 per hundred thousand residents. In 2014, the rate was 1.46 homicide victims per hundred thousand residents. These patterns fit a larger story of peak and decline that has occurred in the United States and many other industrialized democracies. For well over a decade, Canada has been enjoying the same drop in crime as similarly situated nations. The causes of the drop in crime are not well understood.  What is known for certain, however, is that the drop in crime in Canada has little to do with criminal justice punishment policies. Indeed, Canada’s imprisonment rate was remarkably consistent in the decades before crime fell.

In that sense, Harper's government may more easily be compared to the increased war on crime and drugs during the Reagan administration. In the 1980s, crime rates in the United States started falling, but punishment continued to increase. Most U.S. commentators do not find a significant causal relationship between mass incarceration and the drop in crime rates, attributing most of the decline to better policing, gun control, and a variety of unrelated factors such as age. But even this factor defies comparison: Even in the years in which crime peaked in Canada, incarceration rates did not change much.

I think that one key factor that has facilitated Harper's rhetoric in the face of overwhelming evidence to the contrary is the fact that his conservative reforms, while senseless and damaging, are not--yet!--unsustainable. Canada was the only G-7 country that managed to avoid the financial crisis, and its recession was much milder than the U.S. recession. Here, the crisis acted as a catalyst of change, bringing together bipartisan allies to initiate cost-centered reforms. There will be many reasons for Canadians to regret Harper's criminal justice policies for years to come, but they may not feel them for a long time because they won't be hitting them in the wallets any time soon. But it's also true that Canadian legislation in such matters is not as driven by financial and fiscal concerns as U.S. legislation, and it may be that, if enough Canadians are sick of Harper on October 19, much of this disturbing trend will go away.

Monday, September 28, 2015

What Does the Settlement in the Solitary Confinement Lawsuit Mean?

Almost a month ago we reported of a historic settlement ending Ashker v. Brown, the class action suit regarding conditions in solitary confinement. What remains is to figure out exactly what the settlement means. And who better to illuminate the matter than UC Irvine's Keramet Reiter, an expert on solitary confinement and the editor of the recently published anthology Extreme Punishment?

In a recent blog post at Social Justice, Reiter argues that the settlement is a good first step, but there is plenty more to do:

The settlement attracted national attention and is still being celebrated by prisoners, their families, and legal advocates. Perhaps it will be a model for other states to reduce or eliminate prison conditions the United Nations has conclusively defined as torture. One settlement agreement, however, cannot sweep away decades of abusive prison policies. First, it is a settlement, not a legal opinion. At best, the settlement is a non-binding model of what other jurisdictions might attempt. Second, even though prison officials withdrew many of their claims about the dangerousness of SHU prisoners by agreeing to the provisions of the Ashker settlement, these beliefs have hardly been renounced. The genuine fear prison guards experience in coping with hunger strikes, managing mental illness, or dealing with prisoners like Hugo Pinell must be acknowledged and addressed, so that they are motivated to strategize to support, rather than resist, reform. Third, the data collection and monitoring associated with the settlement is scheduled to conclude in two years—and may never be made public in the first place. The practice of solitary confinement has historically been defined by discretion and invisibility, and is therefore hard to investigate, control, and reform. So the practice of solitary confinement could easily retreat back into the shadows in two years, absent longer-term requirements to institutionalize transparency. 

We plan to continue monitoring the post-Ashker developments.


Saturday, September 26, 2015

Pope Francis to Visit Philadelphia Jail: From Domestic Triviality to Human Rights Crime

Pope Francis greets a refugee during mass at the Church of
the Gesu (Italy, 2013). Photo courtesy the Jesuit Refugee Service.
Among Pope Francis plans for his stay in Philadelphia is a visit to Curran-Fromhold Correctional Facility.

Local activists are hoping that the visit will draw attention to the atrocious conditions in the jail, but that is not all. As Maurice Chammah writes in the Marshall Project:

Ironically, Curran-Fromhold was opened in 1995 in part to deal with overcrowding. But by 2001 the Philadelphia Inquirer was reporting the system could no longer “keep pace with arrests,” a problem, the newspaper noted, that had hit jails in Los Angeles, Indianapolis, and other large cities as police focused on making frequent arrests for low-level crimes. Many of the men and women arrested for these lesser crimes could not make bail, so they stayed. From 1999 to 2008, according to a study by the Pew Charitable Trusts, “the percentage of bed-days in the Philadelphia jails consumed by pretrial inmates on an annual basis rose from 44 percent of the total to 57 percent.” In 2009, the Philadelphia Prison System, designed to hold roughly 8,000 people, was holding more than 9,000. 

The numbers don’t capture how these jails feel, though. Lawsuits against the conditions at Curran-Fromhold have described how three prisoners are sometimes housed in cells designed for two. The odd man out sleeps in a plastic cot on the floor called a “blue boat.” One inmate, Everett Keith Thomas, scribbled on a handwritten federal complaint in October 2014, “I awakened to find mouse feces on my face and blanket in the blue boat.” Jail officials say they are careful never to keep an inmate in a triple-cell for more than 45 days.

Chammah hopes that the Pope will join the growing movement for prison reform:

You are probably aware that over the last few years there has been a major shift in the politics of criminal justice throughout the U.S. Philadelphia is no different, and city officials have begun to look at criminal justice reform for its own sake — not just to satisfy judges and civil rights lawyers.

Last year, the city received $750,000 from the U.S. Justice Dept. to improve services for former jail inmates as they reenter the community. In May, the city was one of twenty to receive a grant of $150,000 from the MacArthur Foundation as a part of their Safety and Justice Challenge, which the city is using to analyze its criminal justice data and try to find ways to reduce the jail population. (If MacArthur is impressed, the city may be selected to receive up to $4 million for this project). In July, the city’s likely next mayor, Jim Kenney, indicated that he might push for Philadelphia to eliminate cash bail for some pretrial defendants, allowing them to be supervised in the community rather than locked up, further easing the burden on the jail system.

He ends his letter to the Pope thus:

You happen to be catching our country at a particularly rich moment of reassessment, and many — both jailers and jailed — hope you will contribute to that moment.

Of course, I agree with Chammah; the Pope's visit is happening as the humonetarian move is in full swing, and could only contribute to this welcome trend. But I think it will do something even more important: it will highlight what has been, for many years, perceived as a domestic problem to the level of a human rights crime deserving of international attention.

One of the things that always struck me as odd is the extent to which the international community is preoccupied with international, or foreign, conditions, to the exclusion of the domestic ones. I was raised, of course, on the distinctions the Israeli legal system makes between domestic, "ordinary" criminal behavior and "security crime", which is often a false dichotomy. But I see the same meme in literature and film that highlight the misery of Westerners doing time in exotic, Eastern facilities, such as Brad Davis in Turkey in Midnight Express or Bridget Jones in Thailand in The Edge of Reason. There's a certain degree of perverted Orientalism in these accounts. No doubt, the experience of being incarcerated far away from home in a foreign culture is pretty shocking. But the focus on these unusual situations has the effect of trivializing the "usual" horrors of being incarcerated at home.

Shane Bauer, who was incarcerated in Iran, visited California prisons upon his release and return home. Much to his horror, which he documents in this Mother Jones article, he found domestic incarceration conditions to be worse. The horrific medical neglect and unnecessary, iatrogenic death toll exposed in Brown v. Plata would yield international outrage if it was reported from a developing country. The fact that we incarcerate juveniles in adult institutions and put them in solitary confinement would raise a serious alarm and much tongue-clucking if it were reported to happen in a so-called primitive country.

Some of these conditions have received international attention. Our use of long-term solitary confinement has been reviewed and severely criticized by the U.N. expert on torture. Because torture is no less torture if it happens to domestic citizens on domestic soil. It is hoped that the Pope's visit will lead to a reframing of U.S. prison conditions as a serious human rights crime deserving of international attention and corrective measures.

Friday, September 18, 2015

Juveniles in Adult Institutions

Yesterday we held a film screening and a panel on juveniles serving prison terms in adult institutions, which was cosponsored (and generously funded) by Rosen Bien Galvan and Grunfeld, LLP.

 

 Our guests included Caitlin McNally, the filmmaker, by Skype, and three speakers in person: Michael Bien of RBGG, Sue Burrell of the Youth Law Center, and Nate Williams of Westside Community Services, who spoke movingly about his own experiences behind bars as a teenager. You can watch the post-film panel below.





Wednesday, September 16, 2015

Elaine Brown Starts Farm Reentry Project in Oakland

For some optimistic news, look no farther than Oakland, where former Black Panther activist Elaine Brown has put together a beautiful reentry project. Civil Eats reports: 

Brown’s project, announced last October, is ambitious. The first step has been establishing a for-profit West Oakland Farms, whose 40 raised beds are already overflowing with tomatoes, peppers, kale, squash, corn, and other produce. Down the road, Brown wants to add a juice bar, fitness center, grocery store, and tech design space, along with affordable housing on the city-owned property under the umbrella of the nonprofit organization she founded last year, Oakland & the World Enterprises.

“I’m not in the farm business,” she told Civil Eats recently. “I’m in the business of creating opportunities for Black men and women who are poor and lack the education, skills, and resources to return to a community that is rapidly gentrifying without economic avenues for them in mind.”

Think of it as part prisoner re-entry program, part small business startup incubator, and part community hub. Brown chaired the Black Panthers from 1974 to 1977 and, after more than a 30-year absence, moved back to Oakland in 2010. The project marks her return to activism in the city. Since 2013, Brown has been working closely with Alameda County Supervisor Keith Carson on youth and employment re-entry projects in West Oakland.

This strikes me as a very exciting program for so many reasons, not the least of which is connecting disenfranchised populations with fresh produce and high-quality food often unavailable in the "food deserts" of poor neighborhoods. I hope it succeeds and flourishes.

Richard Glossip Granted Stay of Execution

Remember Glossip v. Gross? The Supreme Court decided it just this summer, where five Justices were in a big rush--unsupported, it seems, by science--to approve the sedative midazolam in executions, because European countries do not import the other drugs anymore, because they know what we do with them.

Apparently there was a big rush to execute Richard Glossip, who is likely innocent.

Today, the Oklahoma Court of Criminal Appeals granted Glossip a two-week stay. News Channel Four report:

“The Oklahoma Court of Criminal Appeals did today, what elected officials have refused to do. We stand with the many Oklahomans and individuals around the world in expressing our gratitude to the court. For today, at least, the state of Oklahoma has avoided the execution of a man not guilty of any capital offense,” said Ryan Kiesel, the executive director of the ACLU of Oklahoma.

Sister Helen Prejean, who is publicly campaigning on behalf of Glossip, firmly believes his innocence. On CNN she provided the following summary:

On January 7, 1997, Barry Van Treese, the owner of the Best Budget Inn in Oklahoma City, was bludgeoned to death by a man, Justin Sneed, who confessed to the killing. However, he claimed that Glossip, the manager of the motel, had offered him money to kill Van Treese. The jury apparently believed Sneed's testimony, and despite the Oklahoma Court of Criminal Appeals in 2001 describing the evidence in the first trial as "extremely weak," the decision was affirmed by the U.S. Court of Appeals in 2013.

As a result of all this, the person who actually committed the murder is now serving a life sentence in a medium security prison, while Glossip, convicted of "murder-for-hire" -- almost solely on Sneed's word, and in the absence of physical evidence from the scene -- now faces death by lethal injection.

Kudos to the Oklahoma appellate instance for doing the right thing, and fingers crossed that justice will come out.

In the SCOTUS decision regarding the drug, Justice Breyer expressed frustration with the fact that the bigger issue--should the United States execute people, or is it cruel and unusual punishment--was once more buried under the details. I deduce (and hope) that there's some interest in reopening it for debate. This case should be a lesson to SCOTUS Justices that, before rushing to embrace new chemicals and execution paraphernalia, we should focus on the crux of the matter--in this case, the risk that an innocent man will be buried in the technicalities.

Saturday, September 5, 2015

Juvenile Solitary Bill Fails

Amidst the joyous news following the settlement in Ashker v. Brown comes a less encouraging development: AB 124, which would severely limit the use of solitary confinement in juvenile facilities (to four hours at a time, and not as a form of punishment), failed in the Assembly Appropriations Committee and won't be proceeding forward. The East Bay Express reports:

Proponents of SB 124 — co-sponsored by state Senator Mark Leno, D-San Francisco, and the Ella Baker Center for Human Rights, an Oakland nonprofit — have argued that the bill could go a long way in protecting youth inmates in county and state facilities from the inhumane and unjustified practice of isolation. The documented psychological deterioration associated with solitary confinement — which was a key argument in the state class-action suit — can be especially damaging for vulnerable youth inmates who have often already experienced a wide range of trauma in their lives. With California now agreeing to dramatically curb the use of isolation for adults and with officials increasingly acknowledging the harms of solitary, the failure of SB 124 was particularly painful for advocates who have been pushing versions of the bill for several years. 

"We're talking about the health and lives of young people who are endangered by this practice," Jennifer Kim, Ella Baker Center's director of programs, told me yesterday. Kim helped write the legislation and has repeatedly amended the bill in response to criticisms of correction officials, who have continued to argue that isolation of juveniles is an important tool to control "dangerous" kids. In reference to the state lawsuit and settlement, which will have no impact on juvenile facilities or inmates, Kim added, "Thousands of adults are going to be ordered out of solitary confinement ... [because] the courts have had to intervene. ... And yet the legislature has been largely not leading in the way they could be." 

SB 124, which successfully passed the Senate in June, would ban the use of solitary confinement in juvenile facilities for longer than four hours at a time. The legislation would also prohibit correctional officers from using solitary as a form of punishment and would only allow isolation when youth pose an immediate, substantial risk to themselves or others. Facilities would also be barred from isolating inmates who pose a threat as a result of a mental disorder. Additionally, the legislation requires jails to document all instances of solitary through a statewide reporting system. Correction and probation officials across the state have consistently opposed the measure, arguing that facilities do not use the kind of inhumane solitary confinement tactics that advocates describe. The opponents have also contended that the restrictions of SB 124 would put staff and youth at risk by making it harder for officers to isolate violent youth. 

What with SB 261 passing only recently, the California legislature's approach to juveniles can only be seen as puzzling. Are we treating them as children? as adults? for what purposes? are we willing to resentence but not to limit solitary confinement? and, under the circumstances, what is worse--adult prison or state juvenile facilities?

Join us on 9/17 to discuss these issues with juvenile justice advocates.

Friday, September 4, 2015

Three Jail Guards Arrested in Santa Clara Jail Inmate Death



The shift of numerous inmates from state prisons to county jails has turned our attention to conditions in these local institutions. This morning's news present a particularly tragic example: the brutal killing of 31-year-old Michael Tyree, an inmate at the Santa Clara jail, who was beaten to death by three guards. The San Jose Mercury reports:

The three guards at Santa Clara County Main Jail were only supposed to be conducting a routine search of Michael Tyree's cell, looking for extra clothing or toiletries that inmates often try to hoard. Instead, the correctional officers did something "violent and cowardly," Sheriff Laurie Smith said Thursday, that left the 31-year-old mentally ill man lying naked on the floor, covered in lacerations and bruises and bleeding to death internally.

During a news conference Thursday, flanked by 18 uniformed members of her command staff, Smith announced the arrest of the three correctional officers on suspicion of murder, just a week after Tyree's severely beaten body was found in jail wing 6B.

"The disappointment and disgust I feel cannot be overstated," she said. "His life had value."

The murder allegations against correctional officers 28-year-old Jereh Lubrin, and 27-year-olds Matthew Farris and Rafael Rodriguez, unprecedented in the 165-year history of the Sheriff's Office, have put the jail it runs under a harsh spotlight and drawn attention to the difficult plight and placement of the mentally ill.

Smith said she spoke privately with Tyree's family, just hours after the arrests.

"I want to express my profound sorrow over the loss of Mr. Tyree," Smith said, accusing her officers of losing their "moral compass."

"This violent and cowardly act that took Mr. Tyree's life is not indicative of the values we expect and honor with the men and women of this department."

The murder allegations may be unprecedented, but other problems in the Santa Clara jail, and particularly violent behavior on the part of the guards, are not. In 2014, the jail observer reported that "the guards run the jail" and that numerous calls and complaints pertain to guard behavior.

The sheriff is to be commended for arresting the responsible guards--and if the system works properly, this should be no different than any other brutal homicide trial--but the county's liability largely depends on the extent to which it was negligent in hiring, training, and supervising its staff.

Wednesday, September 2, 2015

Expanding the Definition of Juveniles: SB 261 and Adolescents

Just in time to be an interesting lead to our upcoming event, Juveniles in Adult Institutions, a bill--SB 261--has passed in California that expands the definition of juveniles.

The bill, proposed by Senator Hancock, is an extension of SB 260, which passed in 2013. Under that bill, as explained in this guide, people sentenced to lengthy prison terms in adult institutions for offenses they committed under the age of 18 receive a special "youth offender hearing" before the parole board, in which juvenile development is taken into account in the decision whether to release.

If Governor Brown signs SB 261, the age cutoff will rise to 23.

There are some very good reasons, grounded in developmental psychology, for expanding the definition of "juvenile" to adolescent years. We have known for a while that the transition from juvenile to adult is non-linear, due to considerable changes in brain chemistry, and that adolescent brain development continues occurring until the mid-20s. The emerging findings from this research have already shaped some legal decisions, such as Roper v. Simmons, Miller v. Alabama, and Graham v. Florida.

At our event on September 17, we'll be discussing the implications of these developmental psychology findings on our practices of trying juveniles as adults. Please join us!

Tuesday, September 1, 2015

BREAKING NEWS: Settlement in Ashker v. Brown: The End of Indefinite Solitary Confinement in CA

Today, the Center for Constitutional Rights has announced that the parties to Ashker v. Brown, the case challenging indefinite solitary confinement in California, have reached a settlement. According to CCR's press release,

Today, the parties have agreed on a landmark settlement in the federal class action Ashker v. Governor of California that willeffectively end indeterminate, long-term solitary confinement in all California state prisons. Subject to court approval, the agreement will result in a dramatic reduction in the number of people in solitary across the state and a new program that could be a model for other states going forward. The class action was brought in 2012 on behalf of prisoners held in solitary confinement at the Pelican Bay prison, often without any violent conduct or serious rule infractions, often for more than a decade, and all without any meaningful process for transfer out of isolation and back to the general prison population. Ashker argued that California’s use of prolonged solitary confinement constitutes cruel and unusual punishment and denies prisoners the right to due process. 

. . . 

Today’s settlement transforms California’s use of solitary confinement from a status-based system to a behavior-based system; prisoners will no longer be sent to solitary based solely on gang affiliation, but rather based on infraction of specific serious rules violations. It also limits the amount of time a prisoner can spend in the Pelican Bay SHU and provides a two-year step-down program for transfer from SHU to general population.

The agreement creates a new non-solitary but high-security unit for the minority of prisoners who have been held in any SHU for more than 10 years and who have a recent serious rule violation. They will be able to interact with other prisoners, have small-group recreation and educational and vocational programming, and contact visits.

The full details of the settlement are available here.

This is a major victory for those of us who have been fighting against indefinite solitary confinement for many years--especially the inmates, who have participated in two hunger strikes to protest against the physical and psychological harms associated with this practice. It is also remarkable that, in an era in which such struggles often take the shape of bipartisan financial improvements, this struggle was fought as an old-skool human rights pursuit, and ended in an impressive and important victory. The statement from the plaintiffs reads as follows:

This settlement represents a monumental victory for prisoners and an important step toward our goal of ending solitary confinement in California, and across the country.  California’s agreement to abandon indeterminate SHU confinement based on gang affiliation demonstrates the power of unity and collective action.  This victory was achieved by the efforts of people in prison, their families and loved ones, lawyers, and outside supporters.  Our movement rests on a foundation of unity: our Agreement to End Hostilities.  It is our hope that this groundbreaking agreement to end the violence between the various ethnic groups in California prisons will inspire not only state prisoners, but also jail detainees, county prisoners and our communities on the street, to oppose ethnic and racial violence.  From this foundation, the prisoners’ human rights movement is awakening the conscience of the nation to recognize that we are fellow human beings.  As the recent statements of President Obama and of Justice Kennedy illustrate, the nation is turning against solitary confinement. We celebrate this victory while, at the same time, we recognize that achieving our goal of fundamentally transforming the criminal justice system and stopping the practice of warehousing people in prison will be a protracted struggle.  We are fully committed to that effort, and invite you to join us.

Todd Ashker

Sitawa Nantambu Jamaa

Luis Esquivel

George Franco

Richard Johnson

Paul Redd

Gabriel Reyes

George Ruiz

Danny Troxell

Monday, August 31, 2015

Death Penalty Oral Argument: Procedural Debate Belies Anger at State's Dysfunction

This morning, the Ninth Circuit (Judges Graber, Rawlinson and Watford) heard oral argument in Jones v. Davis (formerly Jones v. Chappell). As you may recall, the original case was decided by District Court Judge Cormac Carney, who found the death penalty in California unconstitutional because of the severe delays in its application. The decision was appealed by the Attorney General, and nothing much happened since then in terms of addressing the delays on death row.

What did happen more litigation relying on Jones--notably, Andrews v. Davis before the Ninth Circuit and People v. Seumanu before the California Supreme Court.

At today's hearing, the Government representative argued that Jones was barred from benefitting from the delay in his case for two reasons:

1. It is a claim purporting to create a new rule, not brought up before, and as such is barred by Teague v. Lane.


A little bit of background: New substantive rules apply retroactively. For example, if a certain behavior ceases to be a criminal offense, whoever is still doing time for that offense will probably be let out immediately. But for new procedural rules, appellants can benefit from them only if these rules come into being while their case is still "alive", that is, still under direct review. In the diagram to the left, the rule change can benefit people in situations (1) and (2), but not (3). Note that, if the new rule came into being when (2) was still under direct appeal, but now (2) is arguing for it in a habeas proceeding, (2) still gets to benefit from the rule. (3), however, does not--his case became final before the rule change.


What about announcing a new rule on Habeas? According to Teague v. Lane (1989), the dilemma is as follows: the defendant who is asking for the new rule is, essentially, (3) from the previous diagram. That is, he would not be able to benefit from the new rule if it were announced today in someone else's case. Which also means that all the people who are similarly situated to this defendant--whose cases are final and on habeas--will not benefit from the new rule. Since the court doesn't want to just announce the rule and not enforce it, or to enforce it only in the particular case and not in those similarly situated (inequality), it reached the bizarre conclusion that it will simply not announce new rules on Habeas--unless these rules fundamentally change criminal justice, either in terms of legalizing previously prohibited behavior or being a "watershed rule of criminal procedure."

Jones' representative, Michael Laurence from the Habeas Corpus Resource Center, argued that the issue at stake here is substantive, not procedural. That is, the application of the death penalty is not merely a change in procedure, but rather a fundamental issue of applying the death penalty, as it was regarded in Furman v. Georgia (1972), Atkins v. VA (2001), and Schriro v. Summerlin (2003), the latter specifying that "rules that regulate the manner of punishment" are considered substantive, rather than procedural. Even if it is a procedural rule, it is essentially a reframing of the problem of arbitrariness, which led to the death penalty abolition in Furman, and therefore not a "new one" but merely the application of an old one.


In response, the government's representative argued that the arbitrariness claim, in this context, is a "new rule", and moreover, a procedural one. There hasn't been precedent directly on point claiming that arbitrariness can manifest itself in delay, and since this is a new question, it cannot result in a new rule on Habeas under Teague.

There was some back and forth about whether the court's decision in Andrews, which rejected a Jones-based claim, should be used to interpret whether the rule is new or old. 

2. Even if it's a claim relying on an old rule, Jones has not exhausted his argument in state court (in fact, never brought this up in state court) and is therefore barred from raising it in federal court under the Habeas provisions in section 2254. As 2254(d)(1) says,


(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) 
resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]
This was not the case here, claims the government; Jones didn't even go to state court, and cannot therefore challenge the sentence at the federal court.

Jones' representative argues that Jones benefits from an exception to the exhaustion clause, which appears in 2254(b)(2)(b)(ii):

(b)
(1)An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—
(A)
the applicant has exhausted the remedies available in the courts of the State; or
(B)
(i)
there is an absence of available State corrective process; or
(ii)
circumstances exist that render such process ineffective to protect the rights of the applicant.
This may seem very technical, but there's actually a lot of anger beneath the technicalities. As Jones argues through Laurence, the California Supreme Court would not have provided a cure to the delay, but rather delayed things even further. In 1997, the Ninth Circuit found that 140 people on death row were unrepresented, and released them from the timely submission obligations under AEDPA. Now, there are 358 unrepresented people. The wait for an attorney can be 16 (!!!) years, and after that, litigation can last 8-10 years (!!!)--all this time, obviously, spent by the applicant on death row. Amazingly, the only office limited in its number of lawyerly hires, the Habeas Corpus Resource Center, can only hire 34 (!!!) lawyers, which is a woefully inadequate number of people to handle 758 (!!!) cases. Before and after Jones, the California Supreme Court did nothing to remedy this situation, argued Laurence, and therefore there was no point in trying to "exhaust" the claim in state court. That would be, literally, exhausting.

In response, the government representative said that the prospective delays in state resolution of such issues is speculative.

There was also a bit of back and forth on the merits, with the government resisting the assertion that death penalty in California is "arbitrary" but rather that cases are carefully examined.

I'm hoping that, no matter the result in the Ninth Circuit, this case will go to the Supreme Court, where the dysfunctional application of capital punishment in the state might find a receptive ear in Justice Kennedy and in Justice Breyer, who explicitly said, in Glossip v. Gross, that he would welcome an opportunity to address the constitutionality of the death penalty on the merits.