Prop 9 To Be Examined by 9th Circuit

The Ninth Circuit is to finally examine the premises of prop 9 that led Judge Karlton at the District Court to decide they were unconstitutional. Avid followers of this saga will recall that Prop 9, marketed as a pro-victim proposition, pretty much provided victims with the rights they already had in many counties, but in addition made several modifications to parole proceedings, including placing substantial limitations upon the right to counsel. The constitutionality of these premises will be central to this upcoming hearing:

THURSDAY, AUGUST 12, 9 a.m.

Gilman v. Schwarzenegger, 10-15471

California State government appellants challenge the district court's grant of a preliminary injunction barring enforcement of Proposition 9, the "Victims' Bill of Rights Act of 2008: Marsy's Law," which affects California's parole system, including the availability and frequency of parole hearings.

For previous chapters of this saga, read here, here, and here.

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Props to colleague Marsha Cohen for alerting us to the date.

Congress Moves to Reduce Crack/Powder Cocaine Disparity

CCC peeks in from a short summer vacation to inform you of news regarding the well-known, and widely-protested, sentencing disparity between crack and powder cocaine. The New York Times reports:

Under the current law, adopted in 1986 after a surge in crack cocaine smoking and drug-related killings, someone convicted in federal court of possession of five grams of crack must be sentenced to at least five years in prison, and possession of 10 grams requires a 10-year minimum sentence. With powder cocaine, the threshold amounts for those mandatory sentences are 100 times as high.

In the bill passed Wednesday, the amount of crack that would invoke a five-year minimum sentence is raised to 28 grams, said to be roughly the amount a dealer might carry, and for a 10-year sentence, 280 grams.

While crack use has declined since the 1980s, arrests remain common, and some 80 percent of those convicted on crack charges in recent years have been black. A growing number of criminologists have concluded that the sentencing disparity is unjustified and has subjected tens of thousands of blacks to lengthy prison terms while offering more lenient punishment to users and sellers of powder cocaine, who are more often white.

Some points of interest:

• While a large number of experts expressed serious doubts about the justification of the disparity, there were some who argued the much higher sentences for crack cocaine were justified due to the effects of the drug and its addictive qualities, and were not necessarily a proxy for race.
• This new development, while a welcome one, is not necessarily a surprising one. In 2007, the Supreme Court decided Kimbrough v. United States, which allowed judges to depart from the advisory federal sentencing guidelines, even if the reason they cited was disagreement with the cocaine/crack disparity.
• Part of this change may be explained through fads and fashions; as the NYT article mentions, crack usage is on the decline, and it is easier to move forward with such an initiative with a drug that is less of an enforcement priority than it used to be.
• Note the humonetarian bend in the justification for the legislative change: Shorter prison sentences mean savings.

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Props to Laura Beth Nielsen for alerting me to this.

Economist: Rough Justice

We Americans look especially ridiculous from across the pond. California even gets a special international shout-out for just how expensive our prison system is...
The Economist, "Crime and Punishment in America: Rough Justice"
http://www.economist.com/node/16640389

America locks up too many people, some for acts that should not even be criminal

IN 2000 four Americans were charged with importing lobster tails in plastic bags rather than cardboard boxes, in violation of a Honduran regulation that Honduras no longer enforces. They had fallen foul of the Lacey Act, which bars Americans from breaking foreign rules when hunting or fishing. The original intent was to prevent Americans from, say, poaching elephants in Kenya. But it has been interpreted to mean that they must abide by every footling wildlife regulation on Earth. The lobstermen had no idea they were breaking the law. Yet three of them got eight years apiece. Two are still in jail.

America is different from the rest of the world in lots of ways, many of them good. One of the bad ones is its willingness to lock up its citizens (see our briefing). One American adult in 100 festers behind bars (with the rate rising to one in nine for young black men). Its imprisoned population, at 2.3m, exceeds that of 15 of its states. No other rich country is nearly as punitive as the Land of the Free. The rate of incarceration is a fifth of America’s level in Britain, a ninth in Germany and a twelfth in Japan.

Tougher than thou

Some parts of America have long taken a tough, frontier attitude to justice. That tendency sharpened around four decades ago as rising crime became an emotive political issue and voters took to backing politicians who promised to stamp on it. This created a ratchet effect: lawmakers who wish to sound tough must propose laws tougher than the ones that the last chap who wanted to sound tough proposed. When the crime rate falls, tough sentences are hailed as the cause, even when demography or other factors may matter more; when the rate rises tough sentences are demanded to solve the problem. As a result, America’s incarceration rate has quadrupled since 1970.

Similar things have happened elsewhere. The incarceration rate in Britain has more than doubled, and that in Japan increased by half, over the period. But the trend has been sharper in America than in most of the rich world, and the disparity has grown. It is explained neither by a difference in criminality (the English are slightly more criminal than Americans, though less murderous), nor by the success of the policy: America’s violent-crime rate is higher than it was 40 years ago.

Conservatives and liberals will always feud about the right level of punishment. Most Americans think that dangerous criminals, which statistically usually means young men, should go to prison for long periods of time, especially for violent offences. Even by that standard, the extreme toughness of American laws, especially the ever broader classes of “criminals” affected by them, seems increasingly counterproductive.

Many states have mandatory minimum sentences, which remove judges’ discretion to show mercy, even when the circumstances of a case cry out for it. “Three strikes” laws, which were at first used to put away persistently violent criminals for life, have in several states been applied to lesser offenders. The war on drugs has led to harsh sentences not just for dealing illegal drugs, but also for selling prescription drugs illegally. Peddling a handful can lead to a 15-year sentence.

Muddle plays a large role. America imprisons people for technical violations of immigration laws, environmental standards and arcane business rules. So many federal rules carry criminal penalties that experts struggle to count them. Many are incomprehensible. Few are ever repealed, though the Supreme Court recently pared back a law against depriving the public of “the intangible right of honest services”, which prosecutors loved because they could use it against almost anyone. Still, they have plenty of other weapons. By counting each e-mail sent by a white-collar wrongdoer as a separate case of wire fraud, prosecutors can threaten him with a gargantuan sentence unless he confesses, or informs on his boss. The potential for injustice is obvious.

As a result American prisons are now packed not only with thugs and rapists but also with petty thieves, small-time drug dealers and criminals who, though scary when they were young and strong, are now too grey and arthritic to pose a threat. Some 200,000 inmates are over 50—roughly as many as there were prisoners of all ages in 1970. Prison is an excellent way to keep dangerous criminals off the streets, but the more people you lock up, the less dangerous each extra prisoner is likely to be. And since prison is expensive—$50,000 per inmate per year in California—the cost of imprisoning criminals often far exceeds the benefits, in terms of crimes averted.

Less punishment, less crime

It does not have to be this way. In the Netherlands, where the use of non-custodial sentences has grown, the prison population and the crime rate have both been falling (see article). Britain’s new government is proposing to replace jail for lesser offenders with community work. Some parts of America are bucking the national trend. New York cut its incarceration rate by 15% between 1997 and 2007, while reducing violent crime by 40%. This is welcome, but deeper reforms are required.

America needs fewer and clearer laws, so that citizens do not need a law degree to stay out of jail. Acts that can be regulated should not be criminalised. Prosecutors’ powers should be clipped: most white-collar suspects are not Al Capone, and should not be treated as if they were. Mandatory minimum sentencing laws should be repealed, or replaced with guidelines. The most dangerous criminals must be locked up, but states could try harder to reintegrate the softer cases into society, by encouraging them to study or work and by ending the pointlessly vindictive gesture of not letting them vote.

It seems odd that a country that rejoices in limiting the power of the state should give so many draconian powers to its government, yet for the past 40 years American lawmakers have generally regarded selling to voters the idea of locking up fewer people as political suicide. An era of budgetary constraint, however, is as good a time as any to try. Sooner or later American voters will realise that their incarceration policies are unjust and inefficient; politicians who point that out to them now may, in the end, get some credit.

Federal Sentencing Reporter Issue

I've just received the February 2010 issue of the Federal Sentencing Reporter, titled "State of Emergency: The California Correctional Crisis." The articles are short and informative and are all available for download here. Among other topics, you'll find Joan Petersilia's analysis of the Schwarzenegger administration's approach to corrections, Kara Dansky's piece on a California sentencing commission, Roger Warren's commentary on probation reform, and Don Specter's comment on the effects of overcrowding. The editorial comment by Aaron Rappaport and Kara Dansky is very helpful in framing the issue. The entire thing makes for a short read and is highly recommended.

What has Arnold Done for Corrections?

Jennifer Steinhauer's recent piece in the New York Times sees Arnold Schwarzenegger's gubernatorial tenure as a compromise in the spirit of independence and bipartisanism, which eventually ended up pleasing no one. Among other aspects of his tenure, Steinhauer mentions that "The most interesting — though least sexy —of Mr. Schwarzenegger’s political and policy machinations has been in prison reform." She goes on to provide the following analysis:

When he was first elected, the governor vowed to fix the state’s prison system, which was overcrowded and expensive to run, and saddled with a health system so poor it was put under federal receivership. The governor promised to void the contracts of the powerful correction officers’ union, reduce costs and emphasize rehabilitation programs. After battling with public employee unions for his first two years in office, he accomplished little.

But toward the end of his term, over fierce opposition by the guards’ union and the threat of a veto override by Republicans and Democrats, he pushed through a large prison building plan and two changes that reduced overcrowding: moving juveniles out of prison into local facilities and pulling some nonviolent offenders out of the churn of the parole system.

“For the left, he was able to keep juveniles and nonviolent offenders out of prisons,” said Joan Petersilia, a law professor at Stanford who chaired several panels on prisons, “and what went to the right was he never wavered on three strikes or releasing sex offenders or violent offenders.”

My sense is that analyzing correctional policy in right/left terms is inaccurate and unhelpful. While the topic is undoubtedly a political one, and we do often see a party split in state votes on correctional policy, the concern about public safety, the fear of crime, and the punitive recourse, tend to transcend party lines. As many of my colleagues often say: No politician, on the right OR on the left, wants to be seen as "soft on crime."

In this light, i think a better analysis of Schwarzenegger's dealings with the correctional apparatus should have included his interesting response to the Plata/Coleman panel population reduction order. On one hand, the Governor immediately sprang to action defending CDCR and its machinations. The State has vigorously opposed the order just as it opposed the initiatives of the Receiver, continuously attempting to thwart his efforts and remove him from office. On the other hand, in the heels of the Plata/Coleman decision, Schwarzenegger himself proposed a population reduction plan that was less ambitious but pursued some similar reduction mechanisms: Good work credits, a reduction in parole, and increased use of GPS monitoring.

A Macchiavellistic analysis of this move could be that, given the existence of a gubernatorial reduction plan, the Supreme Court (which is now hearing Plata/Coleman on the merits) might be accepting the state's appeal, noting that the state makes efforts to decarcerate on its own, without need of federal interference. But I tend to think the answer is simpler: Schwarzenegger hopped on the decarceration wagon not because of shrewd political considerations or a commitment to bipartisanship, but because there is no other choice. The budget slice allotted to corrections was simply too big to be sustainable. Public opinion slowly drifted away from punitivism once it became clear that our correctional policies directly impacted our wallets. The center could not--and still cannot--hold, and Schwarzenegger understood that as a practical, not a political, matter. His out-of-the-box ideas, such as housing inmates in Mexico, were an attempt to resolve a pressing problem that stood--and stand--in the way of balancing our state's checkbook.

The correctional crisis was not Schwarzenegger's doing, and his awakening came way too late in his gubernatorial career. Our options for this office are not exciting; we've looked at both Jerry Brown and Meg Whitman's respective correctional policies. I leave it to you, gentle reader, to decide which is the lesser evil.

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Props to Simon Grivet for the NYT link.

Why Riots? Ingredients for Moral Panic

Many of our readers are probably already abreast of the events in Oakland last night. The Oakland Tribune live blog offered full coverage. The bottom line is that what was a peaceful demonstration in the evening (when I was there, at around 7:30-8:00pm) turned, after sundown, into a looting scene that led to 83 arrests. This, of course, is saddening. Protest over the outcome of Mehserle's trial should never have turned into an ugly display of property crime. It is important to mention that, in the earlier hours, I heard multiple calls from speakers and community organizers to maintain the peace; that the many hundreds of people who gathered at 14th and Broadway were engaged in a peaceful protest; that displays of verbal violence and incitement were often, according to reports, countered by people from the community discouraging them; and that we have no information on whether the looters arrested were locals or out-of-towners that took advantage of the events to commit ugly and serious property crime. In any case, stealing sneakers from an athletic store is hardly a useful way to make a political statement.

What we can, however, examine, is why riots happen in the first place. While older literature from the 1960s analyzed riots and community action in itself, newer studies of riots by criminologists and sociologists portray a very complex picture of how such events develop. It is important to see, as Michael Keith argues, race riots within the larger context of race relations, and to acknowledge the fact that a great part of the problem is not the riot itself but the moral panic generated by the riots. I would not go as far as to say that the riots would not happen if not for the projected police response. But seeing thousands of officers, helicopters, and various devices in Oakland yesterday did seem to communicate an expectation that something very foul was about to occur. This sort of overpreparedness communicates to citizens the expectation of violence and crime. In this interesting paper by Clifford Stott and Stephen Reicher, they interview police officers, showing how tense situations can escalate through the communication between police and protesters at the event.

And then, of course, there's this. The irony, I believe, would be lost on the ABC7 anchorperson.

Another related issue pertains to the safety of Mehserle himself, should he be sentenced to prison time (which he very well might, unless the judge stays the gun enhancement). Regardless of geographical location, I can't imagine this will be an easy stint in prison. Does any of our readers know how CDCR guarantees the safety of unpopular inmates?

Trees and Prisons

As an inspiring diversion from our local problems, check out this inspiring lecture by Nalini Nadkarni, who brings tree conservation and life sciences to inmates in Washington State prisons, which "cry for change and dynamicism."



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Props to Lisa Bach for the link.