Triggers and Vulnerabilities: Why Prisons Are Uniquely Vulnerable to COVID-19 and What To Do About It

When I reviewed the causes and effects of the 2008 Financial Crisis for Cheap on Crime, I relied partly on a series of lectures given by Ben Bernarke, Director of the Federal Reserve. As he explained it, the Great Recession was a case of "triggers and vulnerabilities:"

The triggers of the crisis were the particular events or factors that touched off the events of 2007-09--the proximate causes, if you will. Developments in the market for subprime mortgages were a prominent example of a trigger of the crisis. In contrast, the vulnerabilities were the structural, and more fundamental, weaknesses in the financial system and in regulation and supervision that served to propagate and amplify the initial shocks. In the private sector, some key vulnerabilities included high levels of leverage; excessive dependence on unstable short-term funding; deficiencies in risk management in major financial firms; and the use of exotic and nontransparent financial instruments that obscured concentrations of risk. In the public sector, my list of vulnerabilities would include gaps in the regulatory structure that allowed systemically important firms and markets to escape comprehensive supervision; failures of supervisors to effectively apply some existing authorities; and insufficient attention to threats to the stability of the system as a whole (that is, the lack of a macroprudential focus in regulation and supervision).

The distinction between triggers and vulnerabilities is helpful in that it allows us to better understand why the factors that are often cited as touching off the crisis seem disproportionate to the magnitude of the financial and economic reaction. 

Bernarke's distinction between triggers and vulnerabilities is useful to the current crisis as well. Today we learned that a man behind bars in Chino is the first acknowledged COVID-19 casualty in CA prisons, and that 59 of his fellow prisoners have tested positive. As of today, we've also seen the first positive test in the San Francisco jail system. It's all going to mushroom from here. 

Several of my colleagues (see especially here and here) are making the important argument that the spread of COVID-19 in prisons is a very big deal, to the point that not addressing it properly could negate much of our social distancing effort outside the prison walls. But what is it about prisons that make them such an effective Petri dish for the virus to spread?

Think of COVID-19 as the trigger, and think of the disappointing--even shocking--reluctance of federal courts to do the right thing as another trigger. These triggers operate against a background of serious vulnerabilities, some of which preceded the decision in Brown v. Plata and some of which emerged from it.

First, what gets called "health care" in CA prisons really isn't. Litigation about it took a decade and a half to yield the three-judge order to decarcerate, and until then, horrific things were happening on a daily basis. Despite ridiculous expenses, every six days, a CA inmate would die from a completely preventable, iatrogenic disease. The cases that spearheaded Plata, including the story of Plata himself, were emblematic of this (see Jonathan Simon's retelling of these stories here.) 

It is important to think again of what it was, exactly, about overcrowding that made basic healthcare impossible to provide. First, medical personnel were, and still are, difficult to hire and retain. California has gigantic prisons in remote, rural locations, and it is difficult to attract people willing to work healthcare in these locations. Housing, clothing, and feeding so many people in close proximity meant not only that violence and contagion were more likely to occur, but also that the quality of these things--diet, especially, comes to mind--was extremely low. Every time someone had to be taken to receive care, the prison would have to be in lockdown, which meant more delays and big administrative hassles. The administration and pharmacies were total chaos. People would wait for their appointments in tiny cages for hours without access to bathrooms. People's medical complaints were regularly trivialized and disbelieved--not, usually, out of sadism, but out of fatigue and indifference in the face of so much need. Moreover, the scandalously long sentences that a fourth of our prison population serves mean that people age faster and get sick, and make the older population an expensive contingent in constant need of more healthcare and more expense.

The outcome of the case--reducing the prison population from 200% capacity to 137.5% capacity--was mixed in terms of the healthcare outcomes. But it also yielded four important side-effects. First, it exposed the inadequacy of county jails for dealing with a population in need of both acute and chronic healthcare. Second, it created big gaps in service between counties that relied more and less on incarceration. Third, because the standard was the same for the entire prison system and relied on design capacity (rather than, following the European model, on calculating minimum meterage per inmate), it yielded some prisons in which overcrowding was greatly alleviated alongside others in which the overcrowding situation was either the same as, or worse than, before Plata. And fourth, because of the way we dealt with Plata, we became habituated to resolving overcrowding with cosmetic releases of politically palatable populations (i.e. the "non-non-nons") rather than addressing a full fourth of our prison population--people doing long sentences for violent crime and getting old and sick behind bars.

So, now we face this trigger--COVID-19--with the following vulnerabilities:

1. We still have a bloated system, because the Court used the wrong standard to create minimal space between people for their immediate welfare.
2. We're now dealing with lots of small systems that answer to lots of different masters and have different priorities and ideologies.
3. We already have a lousy healthcare system behind bars, which could not be fixed even with the release of more than 30,000 people, and that was *without* a pandemic going on.
4. We have gotten used to doing a "health vs. public safety" equation that doesn't make sense and biases us against people who committed violent crimes at the wrong time and for the wrong reasons. In fact, we are so married to the idea that we can't second-guess mass incarceration, that the newest preposterous suggestion has been to protect people from COVID-19 by... introducing private prisons into the mix. 

Stack these vulnerabilities against the trigger, and what you have is an enormous human rights crisis waiting to happen in the next few weeks. It's already started. 

And if you wonder whether this can be contained in prisons, well, it can't. Guards don't live in prison, obviously; prison staff has already been diagnosed positive in multiple prisons. Stay at home all your like, wear your home-sewn masks all you wish; we have dozens of disease incubators in the state and apparently very little political will do do anything to eliminate them.

What should we do about it? Follow the excellent roadmap that Margo Schlanger and Sonja Starr charted here, primarily point four: get over your icky political fears about public backlash and let older, sicker people out--even if they committed a violent crime twenty or forty years ago. If you are a governor or a prison warden with some authority to release people, do as Sharon Dolovich implores in this piece and use your executive power to save lives.  

Hunger Strike in Calaveras County Jail

Calaveras County Jail, courtesy
The Calaveras Enterprise.

Chapter 6 of Cheap on Crime dealt with a transition with our perception of inmates--from wards of the state, who need to be clothed and fed and taken care of for the duration of their sentence, to capitalist consumers, whose every need beyond the very bare minimum (and sometimes even the bare minimum!) is monetized. The consumer label, of course, is ironic

Well, the shit finally hit the fan at Calaveras County Jail, where inmates are fed up with the endless monetization of their lives. The Calaveras Enterprise reports:

Seventeen inmates at the Calaveras County Jail have announced their plan to initiate a hunger strike in protest of “outrageous prices” for telephone calls and commissary items including soup and ramen noodles. 

“Not only are we afflicted, but our families as well,” the inmates wrote in a letter to the Enterprise. “We have made attempts at every other level to have this situation resolved, to no avail. We are hoping that the public can get involved and know the real situation that is going on here.” 

According to the inmates, local calls cost $2.91 for the first minute and 41 cents for each additional minute, while long-distance calls cost only 21 cents per minute. A soup from the jail’s canteen currently costs $1.23. They claim that those prices are far higher than those at other California facilities in which some of them have been detained. 

Nineteen-year-old inmate Marc Holocker told the Enterprise on Monday that prices have gone up at the jail since he was incarcerated in May, and that his weekly allowance of $20 provided by his family is no longer sufficient to meet his needs. Outside of the telephone calls to his lawyer, which are free of charge, Holocker no longer calls family members, he said, opting instead to spend his money on food items.

Just recently I posted about how the prison food industry is one small, often unnoticed "piecemeal privatization" that escapes the gaze of the anti-private-prison crowd. The awfulness and meagerness of prison food (nutraloaf anyone?) feeds (no pun intended) directly into the commissary business. The phone call gauging is an ongoing scandal, in CA and elsewhere (and that's before we even ask hard questions about the calls' privacy). In Cheap on Crime I bitterly commented that people in prisons and jails who review their institutions on Yelp have drawn the natural conclusions about how they're being treated, and it seems the people striking in Calaveras are taking to more direct action.

When Cheap on Crime Becomes Mainstream: Santa Clara to Divert Nonviolent Drug Offenders

Chapter 3 of Cheap on Crime opens with a 2009 headline from the San Francisco Chronicle, which reads, "Many Contra Costa Crooks Won't Be Prosecuted." Who are said "crooks"? D.A. Kochly explains: "[B]eginning May 4, his office will no longer prosecute felony drug cases involving smaller amounts of narcotics. That means anyone caught with less than a gram of methamphetamine or cocaine, less than 0.5 grams of heroin and fewer than five pills of ecstasy, OxyContin or Vicodin won't be charged."
This was viewed with suspicion and scorn at the time; Kochly lamented the lack of funds and said, "We had to make very, very difficult choices, and we had to try to prioritize things. There are no good choices to be made here. . . It's trying to choose the lesser of certain evils in deciding what we can and cannot do."

Compare that to today's headline: The Mercury News informs us that "Santa Clara County DA will stop filing charges in most minor drug cases." The policy is basically the same as the one from Contra Costa ten years ago: "the aim of the change is to keep one- and two-time offenders out of the court system, diverting them instead to drug treatment programs and reserving bandwidth for more serious addiction cases that cross over to become community nuisances or public-safety concerns." Again, costs are cited, in the grand humonetarian fashion: "the policy shift also cuts out an exponentially larger number of corresponding court dates, potential bench warrants and jail stays and thousands of work hours for judges, attorneys and police officers. All of those efforts go to address offenders that everyone agrees might have addiction issues but do not pose a threat to public safety."

Same news, different spin. What used to be regarded with scorn at the very beginning of the Cheap on Crime era has now gone mainstream. Note how easy and acceptable (and non-radical!) it is for a prosecutor (!) to cite cost expenses (!) as a justification for diverting nonviolent offenders into a public health treatment silo.

In many ways, this is the coda to Cheap on Crime: the ultimate success of the cost-centered rhetoric in normalizing the decarceration of nonviolent offenders. Years after recovering from the recession, the thinking patterns formed during the recession are here: marijuana should be legalized for revenue and so that our resources can be spent on the "real" offenders; treatment and prevention are cheaper than punishment; crime rates are low, and therefore there is no risk to public safety. It's nice to see this trend continue to play out on the state level, at the heart of the consensus, while War on Drugs dinosaurs rage in the White House.

Cruelty to Migrant Kids Is Not "Cheap on Crime"

The Washington Post reports this absolutely heartbreaking piece of news:

The Trump administration is canceling English classes, recreational programs and legal aid for unaccompanied minors staying in federal migrant shelters nationwide, saying the immigration influx at the southern border has created critical budget pressures. 

The Office of Refugee Resettlement has begun discontinuing the funding stream for activities — including soccer — that have been deemed “not directly necessary for the protection of life and safety, including education services, legal services, and recreation,” said U.S. Health and Human Services spokesman Mark Weber.

Since these days things that used to solidly reside in the "needless to say" category need to be explicitly said, I'll open with this: This is monstrous, gratuitous cruelty. And what is the justification?

Federal officials have warned Congress that they are facing “a dramatic spike” in unaccompanied minors at the southern border and have asked Congress for $2.9 billion in emergency funding to expand shelters and care. The program could run out of money in late June, and the agency is legally obligated to direct funding to essential services, Weber said.

Last week I spoke on a mini-plenary about dignity and austerity. The other presenters addressed issues such as takings, welfare cuts, neoliberal banking, and the like, in which "savings" are synonymous with, essentially, letting go of caring for the world's (or the country's) weakest population. Because in criminal justice things don't operate quite that way, I've had to explain that investing money in people in the context of criminal justice is not necessarily to their benefit, and often works to their detriment. The big exception to this statement, though, is rehabilitative programming: the dark side of the developments I discussed in Cheap on Crime (and on the plenary) is the continued trend to deeply cut rehabilitation programs.

Doing so, especially in the context of juvenile populations, is not a wise, "justice reinvestment move". Beyond being cruel, it is penny wise and pound foolish. Educated, physically active, nurtured children are far more likely to have a "stake in conformity", to use Hirschi's term. Are migrant kids deprived of the opportunity to learn the language most prominently spoken in their new country and, for heaven's sake, to play soccer, more or less likely to desire to be law-abiding, proud residents?

Contrast this horror with another piece of news: San Francisco sets out to eliminate its Juvenile Hall. Readers of Nell Bernstein's Burning Down the House, as well as anyone even minimally informed with the realities of juvenile confinement in California, will surely welcome this beneficial development, and look forward to a public health model of handling juvenile transgressions.

Ending Lifetime Registration of Sex Offenders--A Courageous and Sensible Idea

Yesterday's L.A. Times reports:

“SB 384 proposes thoughtful and balanced reforms that allow prosecutors and law enforcement to focus their resources on tracking sex offenders who pose a real risk to public safety, rather than burying officers in paperwork that has little public benefit,” said Ali Bay, a spokeswoman for the governor. 

Los Angeles County Dist. Atty. Jackie Lacey sought the change because the current registry has grown to a difficult-to-manage 105,000 people, which reduces its value to law enforcement trying to solve sex crimes by checking those on the list. 

Because the registry is public, it also punishes people who have not committed new crimes for decades, including some who engaged in consensual sex, bill supporters argued.

This is an excellent idea. Before you get all riled up, read the actual text:

This bill would, commencing January 1, 2021, instead establish 3 tiers of registration based on specified criteria, for periods of at least 10 years, at least 20 years, and life, respectively, for a conviction of specified sex offenses, and 5 years and 10 years for tiers one and two, respectively, for an adjudication as a ward of the juvenile court for specified sex offenses, as specified. The bill would allow the Department of Justice to place a person in a tier-to-be-determined category for a maximum period of 24 months if his or her appropriate tier designation cannot be immediately ascertained. The bill would, commencing July 1, 2021, establish procedures for termination from the sex offender registry for a registered sex offender who is a tier one or tier two offender and who completes his or her mandated minimum registration period under specified conditions. The bill would require the offender to file a petition at the expiration of his or her minimum registration period and would authorize the district attorney to request a hearing on the petition if the petitioner has not fulfilled the requirement of successful tier completion, as specified. The bill would establish procedures for a person required to register as a tier three offender based solely on his or her risk level to petition the court for termination from the registry after 20 years from release of custody, if certain criteria are met. The bill would also, commencing January 1, 2022, revise the criteria for exclusion from the Internet Web site.

In her book Sex Fiends, Perverts, and Pedophiles, Chrysanthi Leon of the University of Delaware discusses the changes in our approach toward sex offenders. As she lucidly explains, we used to be able to differentiate between different types of sex offenders and find compassion and pragmatism in our approach toward their punishment and rehabilitation. But with the sex panics of the 1980s, we started blurring lines and seeing all sex offenders as just one category, identifying all of them with the perpetrators of the most heinous crimes. This was a big mistake. Sex offenders, as Tamara Lave reminds us, have a remarkably low rate of recidivism, and the effort to warn the public from them would be better spent on narrow categories of sex criminals that actually recidivate. This bill is a step forward toward more careful classification.

But there's something else here that is important. The impetus for the new bill is that the sex offender list has grown so long that it has become difficult to manage. Local authorities spend a lot of time processing paperwork, and time means money. Again, as I discuss in Cheap on Crime, the practicalities of punishment become so cumbersome that we're taking a step in the right direction. Indeed, any deterrent effect the list has becomes diluted once everyone is on the list for everything, as J.J. Prescott and Jonah Rockoff remind us here.

In sight of the federal disaster that is the Trump/Sessions gratuitous, senseless cruelty enforcement mechanism, it's nice to see California once again making a reasonable decision.

This Election, Say No to Old-Skool Crime Panic: Part 1

Last Monday's presidential debate was interesting for a variety of reasons. To me, a particularly interesting point was the reemergence of old-skool crime risk narratives. As I explain in Cheap on Crime, the recession years were characterized by a rethinking of our ideas about crime, crime prevention, and crime control, and by a bipartisan understanding that, regardless of one's stance on the morality of mass incarceration, it is simply not economically sustainable to punish so many people so harshly and for such long periods. This means that, in the last few years, we were exposed to new and surprising declarations from long-time conservatives arguing for more civil rights protections, a truce in the war on drugs, and sentencing reform. This is not just about money, though; new advances in neuroscience and developmental psychology have led to a rediscovery of childhood, which in turn has led to several developments in legislation and in caselaw reforming juvenile justice.

And yet, it seems like some things never change. One such thing was Donald Trump's argument last Monday that murder rates are up. Anyone who lived through the Nixon campaign must have felt, as Yogi Berra would say, déjà vu all over again. The logic behind this old-skool crime panic argument is: crime rates are rising; the only way to stop them is by cracking down on street offenders; the best way to do it is aggressive policing in the streets. The problem is that none of these things is fairly presented or even true.

First, as my colleague John Pfaff explains in The Nation, it is statistically misleading to focus on a rise in one type of crime in the course of one year:

Despite the increases cited in yesterday’s FBI report—the rise in murders in 2015 was the largest in both absolute and percentage terms since crime started dropping in the early 1990s—the United States remains an historically safe place to live. The murder rate in 2015 is still lower than it was in 2009, and before 2009 the last time the murder rate was as low as it was last year was in 1964. Overall, 2015 had the third-lowest violent crime rate since at least 1970, and probably even before that, since our older crime stats likely understate crime much more than they do today.
Yes, crime went up in 2015. But crime remained at near historic lows in 2015, too. Both of these statements can be, and are true. Despite the rise in violent crime, we remain safer today than we have been in decades.

What happened in 2015 happened in the course of one year, against an opposite trend, and one year cannot be regarded a trend:

Because we have so much less violent crime today than in 1990, any given increase will be a bigger percent jump today than 25 years ago. If we have 100 units of something, five more is just 5 percent, but that same five-unit increase is a 10 percent jump from 50. So while the number of murders rose by 11 percent in 2015, compared to 9 percent in 1990, the total increase in murders in 2015 was about 400 less than in 1990. The percent change looks worse because we are doing so much better.

Second, there are no grounds to fear sensible nonpunitive measures. Remember the vast number of articles in California newspapers quoting cops claiming that criminals have been running rampant in the streets since the early releases of Prop. 47? The proposition passed in November 2014. It is now October 2016 and the numbers are in: there is no correlation, on a county-by-county analysis, between releases under Prop. 47 and crime rates. None. Long prison sentences, serious felony charges, and refraining from paroling people do not make us safer. At all.

Third, cracking down on suspected street offenders via aggressive stop and frisk policies is never a good idea. The odds of actually catching contraband on someone during a brief stop and patdown are very low. In New York City, where the NCLU conducted a multi-year inquiry, they found that nine out of ten people who were stopped and frisked were found to be totally innocent. The benefits of finding contraband on a small percentage of the citizenry are far outweighed by the costs of humiliation, degradation, and the loss of trust between police departments and the communities they serve. Even more importantly, as Jill Leovy's book Ghettoside demonstrates and as David Simon repeatedly explains in his public appearances, the problem is not just overenforcement: it's overenforcement of showy, aggressive police power that comes directly at the expenses of enforcement that requires brainy, creative police work. The time and manpower spent on stop and frisk is time not spent solving murders and robberies, which are presumably the serious crimes that Trump wants us to be afraid of.

This election, Californians have an opportunity to say no to old-skool crime panic by voting on sensible criminal justice reforms that will save us money and help us treat our neighbors and fellow residents more humanely. Vote Yes on 57 to eliminate prosecutorial monopoly on trying juveniles as adults and to give nonviolent adult offenders a chance on parole. Vote Yes on 62 to eliminate the costly and failed death penalty. Vote Yes on 64 to save money on marijuana prohibition and to bring in much-needed tax revenue. Vote No on 66 to refuse a costly and dangerous death penalty "tweak" that will provide (and pay) undertrained attorneys and risk wrongful executions. Say no to unfounded crime panics. We've been there before and we know it doesn't help. And say yes to sensible reforms.

 

November 2016 Ballot: Yes on 64

My colleagues and I at UC Hastings made a series of nonpartisan, informational videos on the California propositions on the November 2016 ballot. Here's a video made by my colleague Marsha Cohen, an expert on food and drug law, about Prop. 64, the legalization of marijuana:



On this blog I make endorsements as well, and my recommendation would be to vote Yes on 64.

In 2010, there was a legalization proposition on the ballot which I supported, Prop 19, and it failed by a fairly narrow margin. I supported that one even though I found it problematic and vague: Prop 19 legalized personal use and limited cultivation of marijuana, but left the business end unregulated and up to the counties. As a result, it was unclear how much we would gain in tax revenue.

Prop 64 offers a much clearer legalization regime. Flowing from the recommendations of the Blue Ribbon Commission and relying on the experience of Colorado, Washington, Oregon, Alaska, and DC, it has set realistic price points and tax rates on sales, thoroughly regulated cultivation, possession, and sales, and provided safeguards for sales to minors.

Let's talk about the money first. The Legislative Analyst's Office anticipates gains of many hundreds of millions of dollars, up to a billion, in tax revenue. These gains are based on assumptions about patterns of use and commerce that we see in other countries and states. For substances, there is typically a group of hard-core users (See Philip Cook's analysis of alcohol: 60% of American's either don't drink at all or drink very, very little, and only 10% of Americans constitute the vast majority of drinking in the market, with an average of ten drinks a day.) Those folks will use (and pay for it) no matter what, and making sure that they buy (and pay taxes) lawfully is pretty essential. Which is why setting the price point and the taxes properly is important. It seems that this is a key consideration in the states that already have recreational marijuana: you don't want to tax too much, because that'll keep the market alive. But even though those states are considering lowering the tax, they still got revenue that far exceeded expectations, and the hope is that the same will happen here. Prop 64 sets excise tax at 15% for retail and 2.75-9.25 percent for cultivation. Sales tax for nonmedical will hover around 8%.

The proposition sets up a licensing program. Selling without a license will be an offense. Selling to minors would be an offense. Setting up shop near a school will be an offense. And, driving under the influence would be an offense.

The most convincing argument against the measure is a recent Washington state study showing a rise in THC-positive drivers involved in accidents. Here's the full study. But that someone is THC-positive does not mean that marijuana was a factor in the accident. THC is detectable in the blood up to three weeks from the time of use, and a positive finding does not mean that the person was under the influence of marijuana when the accident happened. The study took into account differences in levels of THC, but those are imprecise. Also, keep in mind that drivers were not tested for THC presence before the legalization of marijuana in Washington, so we don't have great comparative data (who knows how many people were THC-positive before legalization?) Moreover, the findings on THC alone are dwarfed by the findings on alcohol, or on alcohol and THC combined (in which case the causality issue is murkier.) The National Institute on Drug Abuse website claims that marijuana impairs driving ability, but cites a National Highway Traffic Safety Administration study that found that carefully controlled studies relying on measurements find no appreciable difference in driving. NORML, who is far from an unbiased group but who does cite unbiased research, cites far less convincing evidence of impairment under marijuana than under alcohol.

As for arguments for legalization, the existing prohibition regime has been far from successful in curbing drug use and has led to huge monetary and personal costs for people charged, convicted and incarcerated for growing and selling. We wouldn't be the pioneers of a different path, but it's a thoughtful effort and definitely worth a try. I'm going with a Yes on 64.

November 2016 Ballot: Yes on 62 and No on 66

In anticipation of the November ballot, my colleagues and I at UC Hastings made a series of nonpartisan informational videos explaining the 2016 propositions. Here's the video I made on Prop 62:



On this blog I also make endorsements. It's an unequivocal YES, YES, YES on 62.

It's not a particularly well-kept secret that I vehemently oppose the death penalty for all the obvious reasons: it's inhumane, there's no good evidence that it deters murderers, there are grave concerns about the fairness of its application, and with social psychologists estimating that 5% of all convictions are wrongful, there is also the grave risk of mistake. Add to that the important factor I discuss in Cheap on Crime--the expenditure involved in capital punishment--and repeal should be an obvious choice.

But I'd like to address this post not to the folks who are convinced, for moral reasons, that repeal is the right choice. I'd like to talk to decent, reasonable people who are on the fence about the death penalty, because they feel that some people--serial murderers, people who kill and assault little children, etc.--should have an especially harsh sentence reserved for them. Even if you are such a person, you should vote yes on 62. Here's why.

In November we'll be voting not about the philosophical merits of the death penalty, but on whether to keep it as it is practiced here in California. Here are some facts, not opinions: we currently have 751 people on death row. Since the reinstatement of the death penalty in 1978 we executed a grand total of 13 people. Meanwhile, 90 people died of natural causes. They spend decades on death row, during which they are held in expensive conditions in a dilapidated facility, and they also litigate. Their confinement, and especially their litigation, is costing us $150 million a year, which would be saved if all these people were to be transferred tomorrow to general population. And most of these death row inmates are not the "worst of the worst" for whom you'd like to reserve the death penalty.

I get that you think that in principle there should be something special for really heinous crimes. But we don't live in a principle. We live in California. And in California, this is expensive and it doesn't work.

"So the death penalty is broken," you say. "Why not fix it? Why not make it cost-effective, and then I can continue to support it?"

There is a proposition on the ballot that argues just that--Prop 66. Its proponents, mostly county district attorneys, argue that adding lawyers and shortening procedures would save money and allow California to retain the death penalty. Here's the informational video I made of Prop 66:



The two reforms proposed by 66 are unrealistic, expensive, and very risky. They would not solve the problem. I strongly oppose it and urge you to vote No on 66. 

Currently, each death row inmate receives two attorneys at the state's expense to litigate his/her case. "Quelle luxe!" I hear you say. Well, not so much. The Habeas Corpus Resource Center has a whooping grand total of 34 attorneys, who get assigned the hundreds of cases on death row. According to the Legislative Analyst's Office, as of September 2015, 57 individuals were awaiting appointment of counsel in direct appeals and 358 individuals were awaiting appointment of counsel in habeas corpus proceedings. Those are hundreds of people whose lives depend on a determination of their legal claims, who have to wait an average of 16 years to get an attorney. That's why it takes so long to execute people in California.

Hiring and training more attorneys to take on capital cases would cost tens of millions of dollars a year--on top of the $150 million we're already paying by having capital punishment. While I'd love for there to be more jobs for my students, this is an unnecessary expenditure we can ill-afford.

What's worse, Prop 66 supporters propose to shorten the times for appellate and habeas proceedings. But there's a reason why these procedures take time. It's because they have the potential of diminishing the risk of horrible mistakes. When someone does life without parole and is found to be innocent, their life has been detailed, but amends can be made. When an innocent person has been executed, there are no amends. The risk of a mistake is graver than we can tolerate: remember, a conservative estimate puts wrongful convictions at 5% of all convictions.

There is no fix here that saves money and prevents injustice. And even if you think you're willing to compromise, ask yourself--how much is it really worth to you to keep 751 people on death row? Is it really conscionable to pay $150 million annually to keep this going?

Yes on 62. No on 66.

BREAKING NEWS: Brown's Proposed Sentencing Reform Pulls Us Back to the Future

Just two days after the Supreme Court's encouraging decision in Montgomery v. Louisiana and President Obama's announcement of a solitary confinement overhaul in the federal system, comes this astounding piece of news from Governor Brown:

Forty years after signing strict, fixed-term sentencing standards into law – and more than a decade after panning them as an “abysmal failure” – Gov. Jerry Brown on Wednesday proposed a ballot measure to make it easier for nonviolent offenders to gain parole.
In a rebuke of criminal enhancements that can dramatically extend prison terms, the measure would let felons convicted of nonviolent offenses seek parole after serving only their base sentences. It would also restructure what Brown called a “crazy quilt” of credits for good behavior, benefiting prisoners who demonstrate evidence of rehabilitation. 

The initiative language would also undo provisions of Proposition 21, the measure approved by voters in 2000 that allows prosecutors rather than judges to decide when teenagers are tried as adults. Brown will need valid signatures from 585,407 registered voters to qualify the measure for the November ballot. 

Brown, announcing the measure in a conference call with reporters, said the “determinate sentencing” law he signed when he was governor before “had unintended consequences." 

"Unintended consequences" is right. The original pioneering California move in the late 1970s to determinate sentencing was a bipartisan collaboration between conservatives, who were concerned that light sentences amounted to coddling offenders, and progressives, who were concerned about the arbitrariness of parole powers and about its disparate impact on poor people and minorities. The last forty years in California, if seven years' worth of posts on this blog haven't made it clear, have been a very, very bad idea.

“And one of the key unintended consequences was the removal of incentives for inmates to improve themselves,” he said, “because they had a certain date and there was nothing in their control that would give them a reward for turning their lives around.”
Though his measure would not change sentencing standards, Brown said “it does recognize the virtue of having a certain measure of indeterminacy in the prison system.”
“The driver of individual incentive, recognizing that there are credits to be earned and there’s parole to be attained, is quite a driver,” he said. 

The announcement of the initiative was the first specific sign of how Brown plans to involve himself in the November ballot measure campaigns. The fourth-term governor holds a campaign war chest of about $24 million.

Asked if he would finance the initiative, Brown said he will do “whatever it takes to get this done.” 

Brown will enjoy a relatively favorable electorate, with high turnout for a presidential election typically benefiting Democratic politicians and their causes. 

California voters in recent years have demonstrated a willingness to move away from tough-on-crime policies. In 2014, voters approved Proposition 47, which reduced penalties for some drug and property crimes. Two years earlier, voters passed Proposition 36, revising “three strikes” to require that the third strike be a violent or serious felony. 

The initiative is likely to face opposition from some conservatives. State Sen. Jim Nielsen, R-Gerber, said in a prepared statement that “weakening the criminal justice system will only increase the victimization of California citizens.” 

Brown said the ballot measure’s proposal followed “intense conversation” with law enforcement groups, representatives of which joined him on his conference call.
Brown said he considered including violent offenders in the initiative but that it “met with, I would say, near-universal disinterest” from law enforcement. 

“It became a nonstarter,” he said. 

Brown, who helped create the state’s “determinate sentencing” system when he was governor before, has said for years that it should be revisited. In a speech to judges in Sacramento in November, Brown said he didn’t foresee the dramatic impact determinate sentencing would have on the growth of California’s prison population. The policy scaled back judicial discretion in prison sentences.

I haven't seen the full text yet [UPDATE: I just read it--here it is--and am posting a follow-up], and will of course comment in depth when I do, but I think some preliminary remarks are in order:

1. In many ways, the last forty years made us smarter than we were in 1977. We know that Martinson's somber prediction that "nothing works" in rehabilitation was not true, and that doing rehabilitation properly can reduce recidivism. And we also know that determinate sentencing, and that treating kids as adults, achieves little in the way of equality and streamlining and plenty in the way of packing prisons.
2. Another way in which we're smarter now is that we understand that discretion doesn't go away--it merely moves around. What we did in 1977 was shift it from the hands of judges and parole boars to the hands of prosecutors and legislatures--to the point that some commentators, like John Pfaff and the always fabulous Grits for Breakfast, attribute mass incarceration primarily to prosecutorial charging decisions gone amok.
3. But let's not throw the baby with the bathwater. One of the reasons California moved away from determinate sentencing in the first place was concern about unfettered discretion by judges and parole boards. Even now, when parole hearings are relegated to lifers, the board enjoys a lot of discretion and very little transparency. My research for my book in progress about the parole hearings of the Manson family members, Yesterday's Monsters, shows the very limited responsiveness of the parole board to the California Supreme Court's supervision, and if we want to get the good stuff (incentives to rehabilitate, shorter sentences) without the bad stuff (discrimination and arbitrariness) we need to design parole in a smarter way. With great power, Spiderman's uncle reminds us, comes great responsibility, and there are no guarantees that parole boards are much better than prosecutors in the discretion department.
4. Note the humonetarianism theme throughout the proposal. Just like in the initiative on juvenile justice, the language relies heavily on the issue of cost.
5. So, what happens to the California Penal Code if this passes? Do we rewrite felony sentencing to eliminate the "triad" and affix broad ranges to allow judges discretion? This is going to be a massive redrafting job, but quite an interesting one, and how successful it is depends on how  controlled it might be by partisan politics.
6. Finally, the article talks about the possible broad support by California voters--the same ones that voted, by large majority, to make lots of punitive changes that we regret to this day. And it may well be that, beyond cost, one of the major reasons that the Republican lawmaker's it's-a-scary-world retort falls flat is that crime rates are low. Very low compared to what our predecessors in 1977 were facing. It may be the case that it's time to put aside the hubris and conclude that crime rates, like the weather, happen for a variety of causes, of which sentencing reform is only one, and that our decisionmaking process should not sway to and fro every time the pendulum swings.

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.

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.

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.

College Education Grants for Inmates Restored

Pell grants for inmates pursuing college education, which were terminated during the Clinton administration, have been renewed! The Wall Street Journal reports:

The plan, set to be unveiled Friday by the secretary of education and the attorney general, would allow potentially thousands of inmates in the U.S. to gain access to Pell grants, the main form of federal aid for low-income college students. The grants cover up to $5,775 a year in tuition, fees, books and other education-related expenses.

Prisoners received $34 million in Pell grants in 1993, according to figures the Department of Education provided to Congress at the time. But a year later, Congress prohibited state and federal prison inmates from getting Pell grants as part of broad anticrime legislation, leading to a sharp drop in the number of in-prison college programs. Supporters of the ban contended federal aid should only go to law-abiding citizens.

Between the mid-1990s and 2013, the U.S. prison population doubled to about 1.6 million inmates, many of them repeat offenders, Justice Department figures show. Members of both parties—including President Barack Obama, a Democrat, and Republican Sen. Rand Paul of Kentucky—have called for a broad examination of criminal justice, such as rewriting sentencing guidelines.

A 2013 study by the Rand Corp. found that inmates who participated in education programs, including college courses, had significantly lower odds of returning to prison than inmates who didn’t.

Some congressional Democrats have proposed lifting the ban. Meanwhile, administration officials have indicated they would use a provision of the Higher Education Act that gives the Education Department the authority to temporarily waive rules, such as the Pell-grant ban, as part of an experiment to study their effectiveness.

Education Secretary Arne Duncan and Attorney General Loretta Lynch are expected to announce the program, which likely would last three to five years to yield data on recidivism rates, at a prison in Jessup, Md., on Friday. Key details aren’t yet clear, such as which institutions and what types of convicts would be allowed to participate.

I really like this administration's focus on rehabilitation and return-on-investment strategies. I hope Obama will manage to accomplish as much as possible in this arena before the election in 2016.

Obama's Post-Punitivism

President Obama's speech yesterday at the NAACP was a dream come true for American prison reformers, who have waited for decades to hear a U.S. president retreat from the punitive proclamations we have gotten so used to hearing.

I highly recommend listening to the speech in its entirety, but wanted to point out a few highlights:

1. In the spirit of the events of the last few months, Obama links the NAACP's activism in the area of criminal justice reform and poverty to their historical standing up to lynching and voting restrictions.

2. "For the first time", said the President, "the crime rate and incarceration rate both went down at the same time." This is the first time a U.S. president is acknowledging low crime rates.

3. "Crime is like an epidemic; the best time to stop it is before it starts. . . if we make investments early in our children we will reduce the need to incarcerate those kids." Obama references investing in early childhood and in summer jobs, mentioning that these will "save the taxpayers money, if we are consistent about it." These statements are reminiscent of President Ford's statements on crime (for more on this, see Cheap on Crime.)

4. Obama states an unwavering commitment to enfranchising felons: "If folks have served their time, and they’ve re-entered society, they should be able to vote.”

5. As befitting the setting for the speech, Obama spends a great deal of time "un-othering" crime, by speaking about how "other people's kids" should be treated like "our kids", speaking directly about the urgent need to restore trust between the police and the communities it serves.

6. Obama discusses sentencing reform and urges a sentencing reform bill that should be "passed through Congress this year", which will restore judicial discretion and invest in diversion programs, which "can save taxpayers thousands of dollars per defendants each year."

(read more about the speech on Slate.)

Some of this is right out of the Cheap on Crime playbook: diversion, nonpunitivism, and rehabilitation are cheaper, make sense in the face of declining crime rates, and should therefore be a bipartisan concent. But there is also a concept of dignity as a communitarian value that is being advanced here. Echoing sentiments that remind me of his days as a community organizer, Obama expect solidarity from his constituents, and he expects them to feel responsible for even the weaker links in the American social chain. Toward the end of his second term, Obama wants to galvanize his supporters to fix some of the things that are wrong in the criminal justice system.

It bears to mention that Obama's criminal justice mandate extends only to the federal system, which houses a small minority of the inmates in the United States. But even so, changes to the federal sentencing laws may become an important influence on state legislation and, perhaps, also on federal judicial review of state practices. It is also worth mentioning that most presidential candidates for the 2016 elections--from Bernie Sanders to Ted Cruz--are not opposed to the ideas that Obama articulates in this speech; notably, Bill Clinton expressed enthusiasm and relief for his wife's platform of reversing the punitive excesses of his own presidency. In short, being panicky and punitive is passé, and being fiscally conscious and community-oriented is "in".

How much of this will translate to real-life policies remains to be seen, but it is encouraging to think that Obama still has a year and a half left to wrangle Congressional Republicans on criminal justice. And he's dealing with less opposition from the Right than he would have in, say, 2006.

Should California "Talk Its Walk" About Corrections?

Over the weekend, at the Law and Society Association meeting in Seattle, I learned from colleagues that California is largely responsible for the 6 percent decline in U.S. incarceration. Three large-scale reforms are responsible for this contribution: the Schwarzenegger-era SB xxx 18, which provided good-time credits and reformed parole; the Brown-era Criminal Justice Public Safety Realignment, which shifted groups of low-level felons from prisons to jails and allowed for mandatory supervision and split sentences; and, most recently, Prop 47, which shifted several low-level offenses from felonies to misdemeanors.

Given the overall effect of these reforms not only on California prisons, but on the U.S. prison population as a whole, you'd expect California to take pride in its role as decarceration pioneer. But that would only be if you were unfamiliar with California and its neopopulist, polarized political culture. Instead, these reforms were justified as responses to the budgetary crisis; politicians did not openly acknowledge their connection to the decision in Plata v. Schwarzenegger, later Brown v. Plata; and they were justified as small-scale reforms and jurisdictional shifts, with at least the architects of Realignment proclaiming "no early releases". Contrast this to the proclamations from red states about prison closures and "returns on investment" that I review in Cheap on Crime, and ask yourselves--wouldn't it be better if California boasted more about its contribution to decarceration?

I'm trying to think about the relationship between rhetoric and practices, and am wondering whether the fact that California is controlled by a Democrat legislature means that Republicans here don't have to sound bipartisan as they do elsewhere (such as, for example, in the federal government). I'm also wondering why gubernatorial candidates--Jerry Brown, now in his fourth term--still espouse, at least in name, law-and-order politics and think this is a good idea. I find this modest rhetoric puzzling and am curious to hear your thoughts.

SB 443: Bring an End to Civil Asset Forfeiture in CA!

A new bill sponsored by Senator Holly Mitchell proposes to reform the absurdities of civil asset forfeiture in California.

From the bill text:

The purpose of this bill is to 

1) require a criminal conviction for forfeiture of alleged cash drug proceeds and assets in excess of 

$25,000; 

2) reduce the percentage of forfeiture proceeds distributed to prosecutors, law enforcement and the 

General Fund; 

3) distribute 5% of forfeiture proceeds to each of the courts and public defense; 

4) require that California standards be met before federal forfeiture proceeds can be distributed to 

a state of local law enforcement agency through equitable sharing; 

5) grant a right to counsel for indigent defendants in civil drug forfeiture matters; 

6) authorize attorneys' fees and costs for prevailing defendants in forfeiture cases; 

7) prohibit adoption by federal authorities of a state forfeiture matter; and 

8) require the California Department of Justice's annual asset forfeiture report to include data on 

forfeitures initiated under California law,federal adoptions, forfeiture case that were prosecuted 

under federal law, the number of suspects charged with drug crimes, the number of criminal charges brought under each of state and federal law and the disposition of these cases.

In short, to stop this travesty:

Wed, Feb 25, 6pm: SF Release Party for Cheap on Crime

Cheap on Crime is out in print and you're all invited to celebrate!

What: Book reading, signing, Q&A, conversations, great food and drinks

Where: Book Passage, the bookstore at the Ferry Building, San Francisco 

When: Wednesday, Feb. 25, 6pm

See you there!

Event page

Does It Matter Whether People Support the Death Penalty?

Yesterday's Asahi Shimbun reported a drop in support for the death penalty in Japan:

In a sign of wavering support for capital punishment, the first decline in the percentage of Japanese who support the death penalty has been noted, although the support rate remains about 80 percent, according to a Cabinet Office survey released Jan. 24.

The decline in support is the first since the survey, which is conducted every five years, began in 1994, it added.

The high percentage in the survey apparently shows the public's continuing sympathy for victims of violent crime.

Now, 80 percent is still a lot, and we should keep in mind that death penalty law varies fairly dramatically across Asian countries. But here's something interesting: there is considerable support for the death penalty even in countries that abolished it long ago, like the UK. Here's an assortment of studies on public opinion in various abolitionist and retentionist countries.

It's important to point out that, in most abolitionist countries, a majority of citizens was in favor of the death penalty at the time of abolition. I have three thoughts about this:

(1) Abolishing the death penalty is a top-down move, not one that typically calls for broad populistic support. For more on this, read Pieter Spierenburg's The Spectacle of Suffering.
(2) Using the financial crisis to abolish the death penalty nationwide in the United States is possible and worth doing, regardless of popular support. Once it goes away, it won't come back.
(3) Over time, the arc of justice bends toward abolition. Whether or not a country has abolished it, and whether or not its citizens are in the throes of inertia, support wanes. That's a good thing.

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Props to Jonathan Marshall for the link.

Prop 47 Reaps Rewards

Wonderful news via KPCC:

Los Angeles County probation officials reported Thursday that Los Angeles County's jail population is at its lowest level since realignment sent it soaring in 2012 - and they expect it to keep dropping. They credit voter-approved Proposition 47, which lowered penalties for drug crimes.

In a status report to the county Board of Supervisors, officials said L.A. County's jails had fewer than 16,000 inmates at the end of 2014. Just two months earlier, there were more than 19,000 inmates.

L.A.'s jail population was last under 16,000 inmates in 2011. The numbers began to climb when the state launched its massive "realignment" effort. That policy called for sentencing non-serious, non-violent, and non-sexual offenders to county jail, rather than state prison, which led to overcrowding in the county's jails.

Proposition 47 passed in November and has effectively erased the crowding caused by realignment.

Officials said the drop has allowed them to keep more offenders incarcerated for larger portions of their sentence. They still don't have enough space to keep everyone for their entire sentence.

But officials expect the jail population to keep dropping.

About 2,500 jail inmates are likely eligible for re-sentencing and early release, according to the probation department. Inmates must apply for re-sentencing, and have it approved in court.

A few comments:

(1) This is further proof that it pays off to be cheap on crime.
(2) It's beautiful to see Prop 47 do what the realignment could not - put people out of incarceration in the first place, rather than shift them across jurisdictions - and cure some of the financial and physical bulges created by realignment.
(3) I'm now sitting and waiting for the other shoe to drop--the stories analyzing the impact of Prop 47 on crime rates. When these start coming through, be mindful of research quality; a lot has happened since the recession, and since the realignment, that needs to be controlled for.
(4) Plenty of the L.A. jail inmates are pretrial detainees, who of course are not affected by the passage of Prop 47. How about alleviating some of that unnecessary crowding via sensible bail reform?


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Props to Francine Lipman for the link.

New Jails: If You Build It, They Will Come?

Yesterday's interesting L.A. Times editorial addresses the plan to build a new jail in Los Angeles, which prison activists have been resisting for a long time. When I visited Los Angeles at the ACLU of Southern California's invitation, our conversation about the plan was fraught with misunderstandings. The Sheriff's Office's position was that a new jail was necessary because conditions in the existing jail were horrific, particularly with regard to treatment for mentally ill inmates.

Can't argue with them on that point, of course; the County Jail is America's largest psychiatric ward. Indeed, recently the authorities have finally started to question the wisdom of jailing the mentally ill and come up with alternatives, but there's still a long way to go. There are some things that the jail gets right, such as when they properly use strategic segregation, as Sharon Dolovich explains here and here. But some of its effects are harmful and problematic, and the need for change is something we can all agree on.

But what sort of change? Yesterday's editorial posits the plan as follows:

The Los Angeles County Board of Supervisors spent the last decade putting off those questions. Then, in May, it adopted a $2-billion plan to demolish the complex and build a new 4,800-bed downtown jail designed around the clinical needs of the large number of inmates with mental health and substance abuse problems, as well as the security requirements of inmates who pose a high risk of harm to others. Also part of the plan is a 1,600-bed campus-like women's jail in Lancaster.

The supervisors chose the plan from among several presented by Vanir Construction Management Inc., a firm in the business of building such facilities. The price tag makes the construction project the most expensive in county history.

The updated design would certainly be an improvement over the current jail, yet it remains rooted in questionable estimates and bygone practices. It ignores the conclusions of a 2011 jail population study commissioned by the board, then for all practical purposes forgotten.

Rather than go with the spirit of Prop 47 and reduce incarceration, this plan may perpetuate the problem. The editorial goes on to say:

In pushing forward with a new jail that could keep as many people locked up as were, say, two years ago, the Board of Supervisors is in effect making an astounding policy statement: The current jail population is the correct one, despite the theoretical embrace of mental health diversion, the ability to authorize some no-bail, pretrial releases, and the recent reduction of sentences for some crimes. And the $2 billion — or perhaps twice that, when including bond interest — should all be spent on incarceration rather than more effective, and cost-effective, alternatives.

I tend to think of prison construction like road construction: traffic congestion increases with road development because it creates an incentive for more private vehicle transportation. This is why activists oppose the new plan. Let's solve the overcrowding problem by, well, not overcrowding the jail with people who are far better off treated in the community for their underlying mental health problems.