BREAKING NEWS: Bill Allowing Charging Simple Possession as Misdemeanor Clears Assembly Floor

SB 649 (Leno) will allow prosecuting simple possession of certain controlled substances, including, among others, opiates, opium, opium derivatives, mescaline, peyote, tetrahydrocannabinols (marijuana), and cocaine base, as "wobblers", that is, either as felonies or as misdemeanors. SB 649 has just cleared the assembly floor, 41-30, and it's on the way to Gov. Brown via a Senate approval of the amendments.

This is very good news to those who would like to see the end of the war on drugs, and who think that nonviolent drug offenders are being punished too harshly.

UPDATE (Sep. 10, 2013): The bill has now passed the Senate floor as amended and is on its way to the Governor for signatures.

Riverside Jail Sends Inmates to Fire Camps

Image courtesy prisontalk.com.

This Wednesday, Riverside County Jail became the first county institution to send inmates to California's fire camps, in which state prisoners help put out fires. Richard de Atley of P.E. bloggers reports:

The 20 inmates were sent Wednesday, June 5 to the CDCR’s Sierra Conservation Camp training facility, in Jamestown. CDCR has agreed to place the trained county inmates in Riverside County fire camps, whenever possible.

. . .

County Supervisors in April approved a Sheriff’s Department proposal to supply county inmates to the fire camp program. More inmates will be sent every two weeks until the program reaches capacity of 200 Riverside County inmates at any time during the next five years.

Riverside County’s five jails have been at capacity shortly after realignment began. More than 10,000 inmates have been released early due to realignment, jail officials have said.

. . .

Riverside County will pay $46.19 daily per inmate. The funds were set aside from realignment money controlled by the Community Corrections Partnership, a joint local agency that includes the probation, sheriff, mental health department and district attorney and public defender’s offices.

Riverside County’s fire camps are located in Norco and Hemet. The county also maintains the Oak Glen camp, located in northern Riverside County inside the San Bernardino National Forest in the San Gorgonio Mountain Range, according to the Riverside County Fire Department’s web site.

In addition to helping fight wildfires, inmate camp members do public road maintenance and community service work.



For readers unfamiliar with California's fire camps, I highly recommend Philip Goodman's work (exhibit A, exhibit B). Not only do the fire camps alleviate prison overcrowding, they provide a much-needed public service. As an interesting aside, the strict racial divisions within the institutions blur when inmates work side by side on life-saving work.

Obtaining a job as a fireman after release from prison, however, may be tricky, as the fire departments run thorough background checks.

-------
Props to Caitlin Henry for the blog link.

Restorative Justice in Murder Cases

Conor McBride and Ann Grosmaire in 2010.
Courtesy the Grosmaire family and the New York Times.

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

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

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

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

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

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

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

"Smart on Crime": Retreating from Punitive Discourse Citing Financial Prudence

 In the decades prior to the financial crisis, as Jonathan Simon writes in Governing Through Crime, no politician, regardless of party affiliation, could afford to sound "soft on crime." Propositions running counter to the received wisdom that more punitive is better had to be marketed assmarter, more efficient, or safer law enforcement - and, of course, these drowned in a sea of punitive propositions. But one of the key features of humonetarian discourse - the correctional discourse in the wake of the financial crisis - has been a partial liberation for politicians from the tough/soft on crime dichotomy. The usual tricks for dressing nonpunitive propositions as, well, not nonpunitive, still apply, but now there's justification to do so: Punitiveness is not financially sustainable. 

Our friends at Sentencing Law and Policy posted a link to an "astute recent Washington Post piece" reviewing the GOP's platform on crime after the RNC convention. The piece compares GOP criminal justice policies and ideals to those of yesteryear. The bottom line: Republicans are softer on crime. Here are a few snippets:

Policy experts agree that the omission [of the War on Drugs from the GOP platform] is significant. “This is less a ‘tough on crime’ document than you would have expected. And leaving out the War on Drugs [is] quite astounding,” says Mark Kleiman, a crime policy expert and professor at UCLA. “It’s a bit more of a libertarian attitude,” says Marc Levin, who runs a conservative criminal justice reform project called “Right on Crime” that’s attracted the support of Newt Gingrich and Grover Norquist.

What’s more, the 2012 platform includes new provisions that emphasize the importance of rehabilitation and re-entry programs to help ex-prisoners integrate back into society—using language that Kleiman describes as “a lot less ‘lock ‘em up and throw away the key.’” “While getting criminals off the street is essential, more attention must be paid to the process of restoring those individuals to the community,” the platform says. “Prisons should do more than punish; they should attempt to rehabilitate and institute proven prisoner reentry systems to reduce recidivism and future victimization.” The document also criticizes the “overcriminalization of behavior,” though it doesn’t elaborate on the point much further.

Both Kleiman and Levin believe it’s partly the outgrowth of a prison-reform push on the part of GOP governors whose state budgets have been saddled with high incarceration expenses. In recent months, Pennsylvania Gov. Tom Corbett, Ohio Gov. John Kasich, and Gov. Chris Christie have embraced crime reform legislation to support the kind of rehabilitation programs that the GOP platform now advocates, with some also reducing jail time for non-violent offenders. Conservative reformers like Levin are heartened by the changes. “We’ve gone a long way in four years,” he says, crediting the growing interest in more cost-effective ways to tackle crime.

This is not a coincidence. A coalition of conservative politicians, including recent signatory Jeb Bush, identifies as "right on crime". The emphasis is on being fiscally prudent, which this post, again analyzing the RNC and the resulting platform, calls "reapplying basic conservative principles" to criminal justice. Yes, there are some punitive ideals advocated by the GOP - most notably with reference to gang conspiracies - but being comfortable 

Who else feels comfortable being less belligerent on drugs? Well, Pat Robertson, for one. But if you want to get more serious, that the father of classic market economics (and inspiration of the Reagan Administration)Milton Friedman would find marijuana prosecutions a waste of resources is perhaps not surprising, but the timing of this review, and the focus on revenue, means that these times call for new approaches among conservative politicians.

I've focused on conservative politicians so far, but the same analysis applies to progressive ones. In 2007, when Simon wrote Governing Through Crime, progressive politicians could not afford to be "soft on crime." That hasn't changed. What has changed is that progressive politicians, like conservative ones, apply to financial prudence as reasoning. One interesting example is the marketing of Prop 19 ("regulate, control and tax marijuana"), which failed at the ballot, as a revenue-enhancing proposition. I spoke to folks at Tom Ammiano's office; going into the election, support for the proposition significantly rose when they marketed the proposal as revenue enhancing. There is some indication that the proposition's failure was due to its vague tenets (leaving the mechanisms of sales up to the individual counties) rather than due to the basic idea.

To sum up: I don't thin politicians have become ideologically soft on crime. But the crisis is giving them a license to be cheap on crime, in a way that appears more genuine and does not damage their credibility.

-----------

Cross-posted to PrawfsBlawg.

Ajami, Part Two: Romanticizing Alternative Dispute Resolution and Its Discontents

One of the most hotly debated issues in criminal justice involves the many suggestions to reform what many perceive to be a deeply dysfunctional courtroom process. In suggesting alternatives, commentators have pointed out some of the difficulties with the existing process: A focus on stigmatizing and shaming the perpetrator, ignoring the role and interests of the victim and the community, viewing the issue through the prism of the specific event without reference to the holistic context, and ignoring the importance of restoration and reintegration. These critiques have formed the basis for a variety of alternative processes which, while different from each other, are similar in their efforts to remedy these ills. As examples, we have community courts, drug and mental health courts, victim-offender mediation, family group conferences, restorative circles, and the like.

Ordinarily I would not lump these different suggestions together, but it is important to point out that these models share an interesting feature: A nostalgic, escapist reliance on the way dispute resolution is done in distant, exotic locations, or in forgotten times. Today's implementation may be less idealized and fanciful--problem-solving courts have certainly been around for a while, long enough to forget those roots--but these inventions harken back to writings by criminologists in Australia and Scandinavia, who compared our Western Industrialized model of justice to those in other times and places. Nils Christie's Crime Control as Drama, and Conflicts as Property, both urged to humanize the criminal justice process, giving the example of a community dispute resolution process in Kenya. John Braithwaite and Philip Pettit's Not Just Deserts has been tied to the pioneering Family Group conference practices in New Zealand. In Israel, judges sometimes award importance to the fact that a long-standing family feud between Bedouin clans had been resolved by a sulcha method. A paper by Ron Shapira even urges courts to pay more attention to sulcha as a mitigating factor in punishment, as a way of validating multiculturalism and providing legitimacy to these ancient processes of forgiveness and reconciliation.

But is the sulcha, or the reconciliation, or the conference, really all that? The sulcha scene in Ajami presents us with some serious doubts about its fairness and effectiveness. In the scene, a boy whose uncle was murdered by members of another clan seeks reconciliation with the enemy clan in an effort to save his family's lives. The process is depicted with stark realism. The cold negotiations, the status differences, the judge's monetary rewards for brokering peace, and the involvement of underworld characters in brokering the compromise, all suggest that romanticizing this as an exotic, peaceful process, superior to criminal justice, is naive and futile.

To wholeheartedly accept an indigenous practice and praise it without critique is as paternalizing as it is to reject it wholesale. An honestly curious and just judge would inquire as to the realities of this bargain and strive to understand any power or status differences that may have influenced the outcome. This is not to say that restorative justice processes, and holistic courtroom practices influenced by other times and places, are categorically bad. It is just a reminder not to embrace such processes without asking the same difficult questions we ask of our existing criminal process.

Jail expansion: Counties seek millions from state

Check out today's SF Chronicle cover story, "Jail expansion: Counties seek millions from state," and especially its ending:

Lenard Vare, director of Napa County's Department of Corrections, said he agrees with advocates that incarceration isn't the only answer. But the rural county also anticipates an increase of at least 70 inmates per year - and its jail is already over capacity.

"The old adage 'If you build it, they will come' is true, because law enforcement in general - police officers - come with the mind-set to fight crime, and arresting people is one of the ways to fight crime," he said. "Unless we decide to simultaneously work on our overall criminal justice system ... we are not going to make a difference. Locking someone up 50 times does not deter them from committing crimes, because it becomes a way of life."

Marin Interfaith Council Considers Death Row

Jeanne Woodford, former Undersecretary and Director of the California Department of Corrections and Rehabilitation (CDCR), Warden of San Quentin State Prison, and current Executive Director of Death Penalty Focus, spoke about capital punishment at Marin Interfaith Council's August clergy luncheon.

By way of background, Jeanne grew up on a ranch in western Sonoma County and went to school in West Marin. So she’s a local gal. Daughter of an Italian Catholic father, she “grew up believing you took care of each other.” In 1970, within two weeks of having been graduated from Sonoma State College, she began working at San Quentin. She loved the work; she felt she was doing something positive. She remained for 26 years.

Over the course of her tenure at San Quentin, she found that the prevailing philosophy and practice of imprisoning criminals became punitive rather than rehabilitative, in spite of addition, in 2005, of the words “and Rehabilitation” to the name of the institution: California Department of Corrections and Rehabilitation. She contends that changing prison policy to one of punishment for crimes led to more recidivism and more violence.

Inmates’ chances of turning their lives around depend in large part upon their remaining a part of their family and community outside of prison. Religious communities provide some of this support, and in the case of San Quentin, its location in Marin County brings about more religious support than is available at other prisons, particularly those in more remote locations.

Although she has personally opposed capital punishment all her life, and that as an authority she was taught not to judge, as Warden of San Quentin, which houses California’s Death Row, Ms. Woodford presided over four executions. This involved leading the prison staff through preparations and rehearsals for those executions. Among other things, she went to every single cellblock – those sentenced to death each has a cell to him or herself, adding to costs associated with capital punishment – on the day of the execution.

Ms. Woodford told of us an inmate named Massey, who, tired after years of “living” in the miserable place that is Death Row with his imminent execution looming, sought a speedier execution as a form of suicide.

Each death sentence requires two costly trials: one trial is to prove guilt or innocence; the other is to determine the penalty. Jurors who serve in cases where the death penalty is being sought must not oppose capital punishment. This limits and skews the pool of potential jurors.

Capital convictions entail further expense because they carry an automatic appeal. It is these appeals that cost the state thousands of dollars. In fact, capital cases cost twenty times more than non-capital cases to pursue and bring to conclusion.

In addition, there is the possibility of a wrongful conviction. One of those so sentenced, a man named Carillo, who was convicted by no fewer than 16 eyewitnesses, later was exonerated by DNA evidence in testing that was not available at the time of sentencing. However, DNA exists in only 20% of homicide cases. How many other innocent people may have been executed? Is there any justification for executing an innocent person, no matter how convincing the evidence? No.

Eventually Ms. Woodford came to believe she could do more to effect change from without the prison system than she could from within. She now works with Death Penalty Focus for the repeal of the capital punishment.

One of the several approaches DPF is taking, under her direction, is that of identifying law enforcement personnel who oppose the death penalty. This may be easier than it would seem at first consideration. DPF will soon release a list of more than 100 names.

Another project is getting 1,400 religious congregations to publicly support the goals of DPF, the abolition of capital punishment.[1]

DPF also seeks to raise awareness of victims to seek more than retributions. Further, funds not expended on perpetuating this irreversible punishment can be put to better use in solving the 46% of homicides that currently go unsolved. I suspect that victims’ families would find some sense of relief when their loved one’s murder is solved. Then trial and the pursuit of justice for the wrong can proceed.

In her work, Ms. Woodford never encountered a family member who advocated, and witnessed, the execution of the person who murdered their loved one who achieved any sense of relief, retribution, or restoration of balance. Killing the perpetrator, which I consider to be state-sanctioned homicide, does not bring back the dead loved one. In the words of the San Diego County District Attorney, the death penalty is “a hollow promise to victims.”

I would like to see some of the people involved in this effort, particularly those who survive the murder of a loved one, come into contact with the good folks at the Worldwide Forgiveness Alliance. I know that forgiveness can be difficult to achieve. I know it’s easy for me to advocate forgiveness when I do not have the experience of having lost a loved one to homicide. But there are others who have. I know that forgiveness is not for the benefit of the forgiven, although they may benefit. Rather, it unburdens the wronged party(ies) and liberates them to go on with their lives, still honoring the memory of those they’ve lost.

Then there is the matter of exonerees. Besides the case of Mr. Carillo mentioned above, Ms. Woodford told of another inmate, a woman named Gloria Killum, who was convicted as a result of false evidence and prosecutorial misconduct. Of the more than 200 men and women in California who were convicted of serious crimes, then subsequently found to have been wrongfully convicted, six had been sentenced to death. Such groups as the Innocence Project are finding innocent people every day. The recent release of the West Memphis Three is a prime example.

Further, many studies have shown, and experts agree, that the threat of capital punishment doesn’t deter people from committing murder and other violent crimes.

Worse still, the death penalty is inequitably applied: far more minorities are sentenced to death than are Euro-Americans. When the color of the convict determines the sentence, this is not blind justice. It is not justice at all.

The recent Alarcon study concluded that the death penalty costs California $184 million a year. It costs $100,000 more per inmate to house those sentenced to death than it does for non-capital inmates. There are presently 714 people, 15 of whom are women, living on Death Row. A psychiatric social worker has to visit each inmate every day, which increases the cost.

Funding of the DoCR accounts for 11% of the state’s General Fund; it used to be only 5%. By abolishing the death penalty, California could save a billion dollars in only five years. Think of the many ways that kind of money could be used. It could put more cops on the streets. It could be used to solve crimes. It could be used for education and after-school programs, giving at-risk youth knowledge and skills so they have a better chance at success in their lives. Accomplished, learned, self-assured people have more hope and less despair, and are less likely to be lured into lives of violence.

I would prefer that we as a society explore the notion of restorative justice. Although an exploration of the concept and application of restorative justice is beyond the scope of this entry, I encourage readers to consider it.

After Ms. Woodford’s talk, we engaged in conversation at our tables. One of the topics at my table was the matter of justice, fairness, and retribution. We discussed the differences, what each meant. I see crime as a rent in the fabric of society, one that needs to be mended. We need to rebalance “wrong” with “right,” to reweave the cloth into a whole again.

To be fair, MIC provided the opportunity for a member who supports the death penalty to rebut Ms. Woodford’s claims. The Rev. Rob Geiselmann, brave soul that he was in that company, spoke of freedom, of liberty being on a part with life. He contended that society needs to feel a sense of public justice.

Although last week a bill proposed by Sen. Loni Hancock (D-Oakland) to put the death penalty on the California ballot was defeated, we should not take this as a final defeat. We need to keep putting forth measures to abolish capital punishment in the State of California until they are approved. Then voters, the majority of whom polls show do not support the death penalty, can put this shameful and dishonorable practice in our past.

It is programs such as this put on by my local interfaith council that inform, enrich, and provoke us to think and rethink previously held opinions that make interfaith work so satisfying and worthwhile. I encourage other groups, whether they are interfaith organizations or any other kind, as well as individuals, to consider sponsoring such talks. I’m confident that Jeanne Woodford would make time for you in her busy schedule.

* * * * *

Aline O’Brien, aka Macha NightMare, is a Pagan presence in Marin Interfaith Council, where she serves on the Justice Advocacy Team. http://besom.blogspot.com/

---

[1] If I had a formal congregation of my own, I’d gladly sign such a statement. As it is, the Covenant of the Goddess, the religious organization of groups and individuals I represent in the interfaith arena, is too diverse to achieve unanimity on this issue.

Making Sentencing Reform a Priority

Sign this ACLU-California petition at
https://secure.aclu.org/site/SPageNavigator/CN_petition

Save Money and Increase Public Safety

To Governor Brown, Senate President Steinberg and Assembly Speaker Perez:

As you work to solve the long-term budget deficit, please make sentencing reform a top priority. Sentencing reform will help balance the budget, balance our priorities, and balance the scales of justice.

Two simple sentencing reforms would save California taxpayers hundreds of millions of dollars annually:

1. Make possession of small amounts of drugs a misdemeanor instead of a felony.
2. Make low-level, non-violent property offenses misdemeanors instead of felonies.

These two reforms fit with your realignment plan by keeping state prison for violent and serious offenses. But they provide additional benefits – lowering court costs, shortening sentences and saving both state and local dollars that can be used for public safety, drug treatment, social services and public schools and universities.

You have the power to bring back balance to the State of California.

A California Gambling Court?

Some of the problem-solving programs are fairly old and well established. An upcoming event in Los Angeles examines the possibility of creating a gambling court, built upon the existing therapeutic program Beit T'shuvah (some of whose residents come from jail, but is not an official sentencing possibility.) It promises to be an interesting evening.

I wonder what our readers think about the potential for a gambling court. If one accepts the rather established notion that gambling, like alcoholism and narcotics, is an addiction/disease, integrating such programs into the courts falls into the problem-solving pattern rather neatly by dealing with issues holistically. Looking forward to learning more about Beit T'shuvah, particularly about any research done on the impact of the program on recidivism rates and rehabilitation.

Bastardizing "Problem Solving"

Drug courts, heavily promoted as a novel way to holistically resolve issues concerning addiction, have generated a fair amount of data on their clients (findings on recidivism rates are still sorely lacking despite the acknowledged need to examine this angle). They have also generated a substantial amount of critique from defense attorneys. But yesterday's This American Life broadcast shed light on something quite different: A drug court in Georgia that seems to operate under very different basic premises than the general problem-solving paradigm. Here's the abstract of Part One:

Ira reports from Glynn County Georgia on Superior Court Judge Amanda Williams and how she runs the drug courts in Glynn, Camden and Wayne counties. We hear the story of Lindsey Dills, who forges two checks on her parents' checking account when she's 17, one for $40 and one for $60, and ends up in drug court for five and a half years, including 14 months behind bars, and then she serves another five years after that—six months of it in Arrendale State Prison, the other four and a half on probation. The average drug court program in the U.S. lasts 15 months. But one main way that Judge Williams' drug court is different from most is how punitive it is. Such long jail sentences are contrary to the philosophy of drug court, as well as the guidelines of the National Association of Drug Court Professionals. For violating drug court rules, Lindsey not only does jail terms of 51 days, 90 days and 104 days, Judge Williams sends her on what she calls an "indefinite sentence," where she did not specify when Lindsey would get out.

The full broadcast will be available here on Sunday.

-----------

Props to Susan Dennehy for the link.

The Community Justice Center and Recidivism Studies

(image by Lea Suzuki, courtesy the Chronicle)

Our point of departure is a new article by the Chron's Will Kane, which has great news for the Community Justice Center fans. The court continues to operate, closely supervise the progress of its defendants, and assign them to helpful mental health, vocational, and addiction-related programs.

Two years after a bitter fight over its creation, more than 3,200 people have come before the court, which is now lauded by its early critics. Unlike jail, supporters say, the program gives San Francisco's underserved residents the support they need to clean up and avoid trouble.

"Those are things we can do faster than most and do more effectively than most," said Commissioner Everett Hewlett Jr., who has overseen the court since January.

Each day, Hewlett hears from as many as 75 people such as Hicks who have agreed to enter the center's program. Seventy percent of program participants have abused drugs or alcohol, and 36 percent are homeless. An additional 38 percent live in residential hotels.

Two questions remain unanswered in the article. The first is whether the Public Defender's Office, once a staunch antagonist of the CJC (and of problem-solving courts in general), has come around (I hope it has). The other one, which will occupy us today, is whether any research team is following the defendants after their involvement with the court ends, so that recidivism can be measured.

A few words about recidivism studies: Merely following the defendants and calculating their recidivism rates is not enough. Whenever presented with recidivism rates, unless the rates are zero, the question is, "compared to what?". Different offenses and offenders have different recidivism rates, and if a program is measured for its success, it has to be compared to the alternative -- in this case, an ordinary criminal process.

The ideal time to have started a project like this would have been when the court was operating under a pilot model, because then many defendants committing comparable offenses were being sent to the Hall of Justice. Of course, the best setting for such a thing would be random allocation of defendants to the CJC and the Hall of Justice, but I hardly need to explain why that would be extremely problematic from an ethics perspective; while random allocation creates a natural experiment that is good for science, it is ethically questionable to condition people's fate upon their random allocation to this proceeding or the other (which is not to say that there aren't research teams doing it out there). But even if such random allocation is impossible or undesirable, you still want to match the experiment group, CJC clients, to a control group of criminally-processed people. As Mark Mitchell and Janina Jolley explain so well in their book Research Design Explained, matched pairs technique requires rigorous adherence to detail, because each member of the experiment group needs to be matched to a member of the control group in terms of all the important variables. In our case, the fact that people voluntarily decide whether to go to the CJC or to trial is a problem. The matching should take into account not only information about the offense (severity, circumstances, type) and the offender (demographics, criminal history) but also the proceeding. Are people who opt for the Hall of Justice for a jury trial different in an important way to people who opt for the CJC? They probably are, in important ways. This is a very difficult thing to do, and the critique is often that matching is not perfect because this variable or another was not taken into account. The statistical test for matched pairs comparison assumes that the pairing was effective and rigorously done. There are some ways to control for this, but they are not perfect.

Nevertheless, following up on the recidivism rates of CJC graduates will provide helpful information, because it will at least allow some comparisons to the general recidivism rates, or to similar studies done in comparable cities. If such a study is currently being done that the CCC blog does not know about, I invite the CJC personnel or the research team to tell us about their design and progress.

Kentucky reforming drug sentences (?!)

So apparently the state of Kentucky is debating legislation to reduce prison sentences and increase diversion for drug convictions. Today's Lexington Herald-Leader has a detailed, well-written, very informative article about the bill, which was presented Tuesday by members of a special drug-specific sentencing committee called the Task Force on the Penal Code and Controlled Substances Act. Please read the whole thing here, but my favorite passage is:

"The bill would establish a penalty of "presumptive probation" for some lesser offenses, such as drug possession, requiring judges to sentence defendants to probation rather than prison unless the judges can state a compelling reason to do otherwise. It also would require addiction treatment for those convicted of drug possession.

Marijuana possession would drop from a Class A misdemeanor, with a penalty of up to a year in jail, to a Class B misdemeanor, with a maximum jail term of 45 days, if the judge ordered incarceration at all."

Street Offense Citation Enforcement: Do We Need Sit/Lie?

Today's Chron's print edition included a piece by C.W. Nevius providing data on the enforcement of street offenses in San Francisco. As debate proceeds on the sit/lie ordinance, which we discussed here and here, it is interesting to see how little difference it makes whether citizens are cited for various sidewalk offenses. According to the data in the story (to which we will link on Tuesday, when it goes online), only about 10 out of 330 fines for street citations issued this summer were actually paid in full. A large percentage of cases got dismissed, either through the regular channels or as part of a treatment plan with the Community Justice Center.

Nevius, apparently, is trying to make the point that the current municipal code is proving ineffective in regulating street behavior. However, I think the lesson to be learned from the data is quite the opposite. It appears that criminalization has not been a stellar answer to making out sidewalks more pleasant. And it appears that the citation recipients are not a good target audience for revenue enhancement.

Perhaps the answer to the problem lies in a mild version of Broken Windows Theory. As a broad zero-tolerance policy, leading to mass incarceration, it has hardly proven effective in controlling crime (my colleagues Bernard Harcourt and Jens Ludwig make a convincing argument to this effect). However, when limited to the issue of environmental maintenance and discouragement of disorder through grooming and beautifying public space, it may be the ticket to the reduction of street sidewalk unpleasantness.

As an aside, one of the protests designed to combat the new ordinance is a mass lemonade sale on city sidewalk this coming Saturday. As Emma Goldman would put it, a revolution without dancing (and lemonade sipping) is not a revolution worth having.

Humonetarianism in Sentencing: Missouri Judges Consider Prison Costs

This is a new development with humonetarianism: Judges taking punishment costs into account while sentencing. The New York Times reports:

Months ago, members of the Missouri Sentencing Advisory Commission, a group of lawyers, judges and others established by state lawmakers years ago, voted to begin providing judges with cost information on individual cases.

. . .

The concept is simple: fill in an offender’s conviction code, criminal history and other background, and the program spits out a range of recommended sentences, new statistical information about the likelihood that Missouri criminals with similar profiles (and the sentences they received) might commit more crimes, and the various options’ price tags.

I strongly recommend reading the full piece. It is rather astonishing that prosecutors object to providing judges with such data. Why should decision makers not be aware of the fiscal implications of their decisions? And, if there is no software to provide such data, what is there to stop inquisitive judges from finding this information out on their own? Moreover, it is not as if judges do not factor in social costs at present; it would hardly appear unseemly for judges to consider the impact someone's sentence might have on, say, public safety, or public opinion. What makes the public wallet any different?

Obama backing off strict crime policy

[Re-posted from POLITICO because: can you imagine replacing "Obama" with "Schwarzenegger" in this article? Nope, me neither, but it feels good to think about it...]

Obama backing off strict crime policy
by Josh Gerstein

http://www.politico.com/news/stories/0910/42004.html

For years, it was one of the GOP’s most potent political epithets — labeling a Democrat “soft on crime.”

But the Obama White House has taken the first steps in decades to move away from a strict lock-‘em-up mentality on crime — easing sentences for crack cocaine possession, launching a top-to-bottom review of sentencing policies and even sounding open to reviewing guidelines that call for lengthy prison terms for people convicted of child pornography offenses.

The moves — still tentative, to be sure — suggest that President Barack Obama’s aides are betting that the issue has lost some of its punch with voters more worried about terrorism and recession. In one measure of the new political climate surrounding the issue, the Obama administration actually felt free to boast that the new crack-sentencing bill would go easier on some drug criminals.

“The Fair Sentencing Act marks the first time in 40 years that Congress has reduced a mandatory minimum sentence,” said White House drug czar Gil Kerlikowske, who billed the new legislation as “monumental.”

Obama’s signing of long-debated legislation last month to reduce the disparity between prison sentences for crack and powdered cocaine is being hailed by some advocates as a watershed moment in the nation’s approach to criminal justice.

And even with a tough election looming, the Democratic Congress is showing a willingness to consider moving away from incarceration and toward rehabilitation and out-of-prison punishments that might have been attacked in the 1990s as the coddling of criminals.

At the urging of a conservative Democrat, Sen. Jim Webb of Virginia , the House passed a bill in July to create a federal commission to study criminal sentences. The measure cleared the Senate Judiciary Committee earlier in the year with little resistance from Republicans.

“I think the political landscape around the issue is shifting and I think that will provide room for the administration to address some of these issues,” said Jennifer Bellamy of the American Civil Liberties Union.

Advocates point to several reasons for the shift toward a less-draconian approach to crime and for its retreat as a hot-button political issue. Crime rates are at some of the lowest levels in a generation. Stories of offenders who got decades behind bars for playing minor roles in drug operations have generated some sympathy in the public. Huge budget woes facing states and the federal government are raising doubts about policies that are causing prison populations and costs to go up.

In addition, Republicans who once accused Democrats of being soft on crime now accuse them of being soft on terrorists. As a result, tinkering with the way run-of-the-mill criminals are treated doesn’t seem to be the political third rail it once was.

Mary Price of Families Against Mandatory Minimums noted that the crack-disparity bill passed in Congress with remarkably little consternation. “I think other concerns have crowded out some of the hysteria around crime,” Price said.

“Republicans could have said, ‘If this passes, we’ll make this an issue in the midterms.’ Nobody said that,” Price observed. “This was not an issue for Republicans.”

While most of the Obama administration’s moves toward rolling back some of the harshest aspects of the war on crime have been tentative, some have been surprising. For instance, a little-noticed letter issued by the Justice Department in June urged a federal commission to review the sentencing guidelines for child pornography offenses — a review that many advocates say would almost certainly result in lowering the recommended sentences in such cases.

“They’re saying, essentially, that they want to level sentences in the middle, but necessarily, leveling in the middle is almost demanding that they bring the guidelines down,” said Doug Berman, a law professor at Ohio State University. “They’ve chosen language … saying we’re open to doing something that is not entirely tough.”

In another sign of the new climate, Attorney General Eric Holder announced a review of criminal sentencing policies soon after he came into office.

“Too much time has passed, too many people have been treated in a disparate manner and too many of our citizens have come to have doubts about our criminal justice system,” Holder said in June 2009. “We must be honest with each other and have the courage to ask difficult questions of ourselves and our system. We must break out of the old and tired partisan stances that have stood in the way of needed progress and reform. We have a moment in time that must be seized.”

The internal review endorsed lowering some crack sentences, something Obama had already promised to do, and publicly offered some vague suggestions on changes to mandatory minimums. Holder also issued a memo giving local federal prosecutors a bit more autonomy in charging decisions.

Another result of that review was a June letter that called for a new look at child porn sentences.

“The time is ripe for evaluating the current guidelines and considering whether reforms are warranted,” Jonathan Wroblewski, director of the Justice Department’s Office of Policy and Legislation, wrote to former judge and FBI director Bill Sessions, who heads the U.S. Sentencing Commission. “Consideration ought to be given to updating many aspects of the child pornography sentencing guidelines to better calibrate the severity and culpability of defendants' criminal conduct with the applicable guideline sentencing ranges.”

Justice’s call for a review came as defense attorneys have been gaining traction with arguments that the guidelines and mandatory minimums set by Congress call for excessively long sentences. Some lawyers contend that defendants who briefly exchange child porn photos or video online can actually get longer sentences than those who seek to molest children.

The Justice Department has disputed those arguments in court, but federal judges have increasingly given sentences below the guidelines. An assistant federal public defender from Missouri , Troy Stabenow, said he thinks the department’s decision is basically a tactical move to stem the slide towards lower sentences.

“It’s just the logical thing they needed to do,” said Stabenow. He said the notion that any politician would wade into the subject on his own volition boggles the mind.

“I would think no sane politician who values being reelected would want to engage in this area,” Stabenow said. “I don’t think there’s any criminal group that yields a more visceral response than the child pornography group.”

A Justice Department spokeswoman stressed that the June letter didn’t endorse higher or lower sentences for child pornography.

“We asked the sentencing commission to comprehensively review and report on the state of federal sentencing and to explore whether systemic reforms are needed,” Justice spokeswoman Laura Sweeney said. “We also asked the commission to review the guidelines for child exploitation and fraud offenses, but did not recommend necessarily higher or lower penalties for either child exploitation [or] fraud offenses.”

One prominent advocate for long sentences in child pornography cases, Ernie Allen of the National Center for Missing and Exploited Children, said he welcomes a review of the guidelines and why judges are often giving lower sentences. However, he said he would oppose any overall reduction in the guidelines and does not think that’s what Justice officials want.

“If that is the implication, clearly, we would differ with that,” Allen said. “These are crime scene photos that re-victimize the child in the photo over and over again, [but] I think both of us recognize that the crime guidelines are dated.”

Despite the tentative moves in the direction of lessening some sentences, there remain numerous signs that Obama and his aides recognize that the issue could still be politically damaging.

When Obama signed the crack disparity bill, only still photographers were allowed in and the president issued no formal statement. The Justice Department’s sentencing review group has indicated it has no plan to issue a formal report that could become a political football. And, 18 months into his presidency, Obama has yet to issue a single commutation or even a pardon to an elderly ex-con seeking to clear his record.

Some advocates note that the crack sentencing bill was not particularly ambitious: it reduced the crack/powder disparity from 100-to-1 to 18-to-1. And it wasn’t retroactive, so some who were sentenced under mandatory minimum laws may not benefit.

Asked whether Obama might grant requests to commute the sentences of those who would have gotten less punishment if they committed their crimes today, an administration official said the crack-disparity bill “reflected Congress’s judgment that the law should not be retroactive, [and] the president believes that the Fair Sentencing Act will go a long way toward ensuring that our sentencing laws are tough, consistent and fair.”

The official also downplayed the notion that Obama might offer some kind of blanket clemency for earlier crack-cocaine offenders, saying that “as a general matter, the president agrees with the Department of Justice’s long-held view that commutation is an extraordinary remedy that should only be granted in extraordinary circumstances.”

But activists are watching Obama on the issue. “Retroactivity will be the next battle,” Price said. “It would be cruelly ironic for us to take lessons learned from those who are currently serving, change the law for people going forward and then say, 'OK, the accident of the calendar you are condemned to serve much longer than people who, because of your experience, are getting out sooner.'”

In the heat of the presidential campaign, Obama sent mixed signals on crime. In the primary, he differed with Hillary Clinton by endorsing shortened sentences for some crack offenders already in jail. As the general election neared, he tacked to the right of the Supreme Court by criticizing the court’s 5-4 decision barring the use of the death penalty for child rapists who don’t kill their victims.

Berman said he thinks Obama and his aides can’t fully break with President Bill Clinton’s approach of trying to look as tough or even tougher than Republicans on crime.

“Obama wants to do something, I think, big on criminal justice and I think he’s absolutely afraid to,” Berman said. “Democrats are right to continue to fear tough-on-crime demagoguery. The lessons of Clinton continues to resonate. … This really is, inevitably, low-priority, high-risk kind of stuff.”

Obama also faces one factor Clinton did not: race. While 58 percent of federal inmates arewhite, Berman said some Americans are sure to have the perception that an African-American president is aiding criminals of his own race.

“Whether consciously or subconsciously, everyone understands that the first black president has to tread particularly cautiously in this area,” Berman said.

Portugal Decriminalized All Drugs; Drug Use Dropped

As of this week, it's been one year since the Cato Institute published its land report "Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies," authored by Glenn Greenwald. The report examines eight years of Portugal's drug policy: decriminalization of possession of all substances.

Here in America, last week the Providence Journal (the news source of record for the state of Rhode Island) took a related stance. The editorial board called for, not decriminalization, but taxation and regulation of all substances. The editorial argues, "Even if legalization were to increase drug use, that risk is overshadowed by the benefits. Crime would drop in our streets as dealers lose their livelihood, and users don’t have to rob others to support their habit. Governments can regulate the drugs for purity and collect taxes on their sale."

However, the Cato report found that Portugal's total decriminalization actually led to declines both in drug usage rates and in HIV infection rates. People found in possession of drugs are sent to a panel of a psychologist, a social worker, and a legal adviser to consider treatment and rehabilitation options. For the short version, read the TIME Magazine summary. This usage decline suggests that the public safety and economic benefits of drug policy reform would not merely offset harms of any increase in drug use, but rather, represent independent public policy gains.

Mentally Ill Jail Inmates in San Francisco

This morning's Chron features a piece about mentally ill jail inmates in San Francisco.

Due to a severe reduction in beds, both public and private, for acute treatment, San Francisco is paying a huge price.

Those not given treatment and care are spun out to the streets, often ending up in the criminal justice system. Many ultimately go to state prisons. They are the homeless who live and beg on our streets, consumers of street drugs and both victims and perpetrators of street crime.

. . .

Police bring disturbed individuals to San Francisco General Hospital's Psych Emergency Services. In 2007, the hospital had 87 locked ward beds. The 2010 budget would convert them to 22 acute beds and 36 sub-acute beds. Acute wards are locked wards with around-the-clock supervision, and provide an alternative to jail for the most severely ill persons, generally those with schizophrenia or bipolar illnesses, brought in by police under a 14-day hold permitted under state law and reimbursed by Medicare. Sub-acute wards are for those patients who are medically stabilized. For the seriously ill, an acute ward is the only alternative to jail.

The San Francisco Behavioral Health Court has been found to significantly reduce recidivism.

RI Leads Nation in Reducing Incarceration

Adding to our last post on the new Pew study, as a transplanted Rhode Islander I was thrilled to see Pew report that Rhode Island now leads the states in prison population reduction. As Bruce's post reminds me, we never thought we'd see the day RI had fewer than 4,000 state prisoners. The RI General Assembly has recently eliminated mandatory minimum sentences for drug crimes, restoring judicial discretion. The Department of Corrections has increased sentence reductions for inmates' good behavior.

Last night, the RI Senate Committee on Marijuana Prohibition released its final report, and concluded its business by releasing its final report and voting to recommend that the legislature decriminalize marijuana. This change would result in vast savings: in 2009 RI arrested 2,546 people for first-time marijuana possession. According to re-entry institute OpenDoors's new report, in 2008 RI imprisoned 188 people and jailed 396--who spent a collective 2,366 days in jail.

Happy Birthday, Community Justice Center

The Collaborative Courts blog Moving Justice Forward features a "birthday post" for the Community Justice Center. Handling serious felony cases as well as quality-of-life offenses, the court engages its clientele in services, many of which have to do with drug treatment or housing. In its first year, the court has handled 1,800 defendants. Given the critique in its early days, the post also mentions the high appearance rate.

The high percentage of felonies handled at the CJC has been a bone of contention between the court and the San Francisco Public Defender, who does not staff the court. As a message to the attorneys who work the court--many talented law students with a strong commitment to public service are graduating this Spring, and many who graduated last year with excellent grades and impressive achievements are still looking for work. Please consider sharing the work with them.

Community Justice Center: Interview with Judge Albers

In case our readers might not have seen this, the Center for Court Innovation website features an interview with Judge Albers, who offers his perspective about the Community Justice Center and the politics surrounding it.