Not Long Sentences or War on Drugs: Problem Is Prosecutorial Discretion

My colleague John Pfaff from Fordham (who is quoted extensively in Chapter 1 of Cheap on Crime) is an economist, and has tested the various explanations given for mass incarceration. His conclusion: the main cause for prison growth was not an increase in sentencing or the war on drugs. The problem is prosecutorial discretion.

"I understand where they come from. It’s true that legislators have passed a lot of new, tougher sentencing laws over the past 30 or 40 years. And it’s true that we have increased the attention paid to drugs. But in the end, there are other things that play a much, much bigger role in explaining prison growth. The fact of the matter is in today’s state prisons, which hold about 90 percent of all of our prisoners, only 17 percent of the inmates are there primarily for drug charges. And about two-thirds are there for either property or violent crimes."

. . . 

"What appears to happen during this time—the years I look at are 1994 to 2008, just based on the data that’s available—is that the probability that a district attorneys file a felony charge against an arrestee goes from about 1 in 3, to 2 in 3. So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies. I can’t tell you why they’re doing that. No one’s really got an answer to that yet. But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down."

Reentry to Nothing

My terrific colleague Alessandro de Giorgi has an excellent series of posts on the Social Justice blog, titled Reentry to Nothing. They are based on ethnographic work he is doing and expose the difficulties of making life work on the outside.

#1 - Get a Job, Any Job

At 1:30 p.m. I get a message from Melisha, who tells me that her job application at the Walmart in East Oakland had been turned down after they performed a background check on her: 

Hi bra happy Memorial day. It all bad for me sad … about the Walmart job … that Walmart did a nationwide check everthing came back from fines old address criminal record from Arkansas. Cant nobody say I didn’t try … sad … my life is fuck up. Is there any kind of away you can get that removed for me … don’t u study criminal justice. I need u on this bra I’m stress now I try to tell Ray 

#2 - The Working Poor

Ray tells me they are desperate for money. He has only been able to work for a few hours a week at KFC since being released from jail last month. He still works on call for $8.00 an hour and makes less than $200 each week. Meanwhile, Melisha has been unable to find any job—despite filling out applications at McDonald’s, Pack n’Save, Ghirardelli, and several other places—and her SSI payments were suspended while she was in jail.

Alex: Right now … The two of you, how much cash do you have?
Ray: Nothin’.
Alex: Nothing?
Ray: Zero. Pennies. Oh, here you go [searches into his pockets, then opens his hand to show me a few dimes]. That’s our savings right here. Oh yeah … And our free cookie [hands me a greasy paper bag from KFC with a half-melted chocolate chip cookie inside].Alex: A free cookie?
Ray: Yeah! Free cookie, from KFC. Free cookie, that’s all we got right here.

#3 - Home Sweet Home

I follow Rico to the last room on the left, which is occupied by one of his old friends. Peering through the open doors, I see only decrepit rooms with littered floors. In some, people are sitting on their beds eating, smoking, watching TV, and arguing loudly. All residents of the premises share two bathrooms and showers.  Like the rest of the building, they are filthy. Hip-hop music blasts from the surrounding rooms, including the one we enter. There, two middle-aged white men, whose teeth are mostly missing, are smoking crystal meth. They become nervous at the sight of me, but when Rico reassures them that I’m not a cop, they intently inhale the vaporizing crystals again. After a few minutes of silence, Rico explains that the building was formerly the site of a transitional housing program for recovering drug addicts. Now it is just a ghetto building with cheap rooms for rent. Since Rico is no longer on parole, he cannot go back to the halfway house; moving here may be his only option, because the landlord does not require a deposit or credit report. 

Public Defender Arrested in Court!

So, this happened today: Two guys were arraigned for petty theft charges. Cops showed up and started asking them questions about an unrelated robbery and taking their pictures. The defense attorney intervened, and this is what transpired:


A short version of what happened, including my commentary, is already on the Chronicle. Since people already know about this, and I therefore can't use it for the perfect exam question that it is, here's my analysis:

A. Did the cops violate the clients' constitutional rights?

A. 1. Sixth Amendment. 

In "criminal prosecutions", that is, after a person is formally charged, he or she is entitled to legal representation. This means, under Massiah v. U.S., that once the person has retained a lawyer, the police is not allowed to elicit information from him/her. But: The Sixth Amendment is offense-specific, which means the cops *can* approach the person regarding an unrelated offense. So far, what the cops did was kosher.

A. 2. Fifth Amendment

But people also have a privilege against self-incrimination, and when under custodial interrogation, they should be Mirandized so that they know they may remain silent and consult with an attorney. Was this "custodial interrogation"? sticky. On one hand, these guys are not under arrest; they are merely standing in the court hallway. On the other hand, the cop says, "you'll be free to leave when we're done", which presumably means they are not free to leave at the moment. And, does asking for names and taking pictures count as "interrogation"? does it produce "testimonial evidence"? If so, they should have been Mirandized. My instinct, lamentably, is that it doesn't. No custody, questionable interrogation.

B. Was the lawyer allowed to intervene?

Even assuming that there was a violation of the clients' privilege against self-incrimination, under Moran v. Burbine the privilege belongs to the client, not to the lawyer. The clients should have stopped the interrogation and asked for the lawyer, not vice versa. Of course, this is ridiculously unrealistic--who better than the lawyer to help people with their rights? But there you have it.

C. Should the cops have arrested the lawyer?

Even if the lawyer did not, constitutionally, have a right to intervene, the arrest is ridiculous. There's an argument there, but the lawyer is not being violent or disruptive in any way. The cops clearly got carried away.

All the other stuff that is going on in the political chatter--racial profiling, zealous representation, yada yada--strikes me as nothing more than political flourish. The bare bones of the legal situation are, I think, as I stated above. Thoughts?

Upcoming Conference: Policing on Trial

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.

Bringing to Light: Invisible Abuses in Prison

Today I attended the Hastings Women's Law Journal symposium Bringing to Light: Invisible Abuses against Women and LGBT People in Prison. The symposium had three panels: reproduction, family, and specific issues concerning trans inmates.

The main theme that stood out for me was the question of choice and alternatives, and especially the inability to offer good alternatives in the context of a prison regime. Surely we can do better than the quality of health care that is offered to pregnant women, but that requires a lot of thought and working within difficult constraints. The first panel was held, of course, in the shadow of the horrifying discoveries about sterilizations in California prisons, and many of the panelists referenced that incident, as well as other horrors involving the management of pregnancy and birth in prison. The birth process itself and the immediate separation from the child are obvious problems. But what about, for example, the practice in Riverside of having pregnant women wear neon orange bracelets? The intent is probably good--to ensure that they are handled with extra care and safety--but what about a woman who wants to terminate her pregnancy and does not necessarily wish for the pregnancy to be common knowledge?

The same issue reverberated in the last panel, the one about trans inmates. The options for classification are fairly limited: a trans woman, for example, could be exposed to atrocious forms of abuse on the part of inmates and guards if placed in a men's prison, but would also be ostracized in a women's prison. And, as it turns out, different trans people have different preferences in this regard--some involving their safety and some involving their desire to form intimate relationship (which is very human and understandable and, in my opinion, deserving of the same amount of respect.) Isolation may protect one from some forms of abuse, but open other avenues of abuse, and has its own huge detriments. So what's to be done?

Subjecting people to regimes of incarceration inherently robs them of a modicum of autonomy about their lives, and the choices are not abundant or good. Even when there are good intentions--and that is not always the case--they can be distorted by misunderstandings and generalizations. Advocating for special populations under these circumstances can be extremely fraught, and I'm very grateful to have learned more about this from the folks at the front line of advocacy.