Cause of Death

Source here.

Today I came across this sobering table, which struck me as important not only for the obvious reasons. You’ll note that homicide is nowhere in the top-ten list of causes of death for Americans. If you look at the CDC reports for causes of death in 2017 based on vital statistics, you’ll see homicide ranked anywhere between #106-108 (interestingly, “legal intervention” is ranked 109.)

Yet, to browse through the list of Netflix and Prime Video shows we are offered to numb our souls from the pandemic experience, you could be mistaken to believe that a much higher proportion of Americans succumb to homicide. And to me, this suggests that the current debate about who to release on the basis of “public safety” is guided more by folk devils than by real concerns.

Assuming that you include people in prison in the overall category of human beings whose lives and health matter (if you don’t, thank you for reading this far–we probably don’t speak the same language and I hold no hope of convincing you, nor should you hope to convince me), it should be obvious that COVID-19 poses a much greater risk to public safety, broadly defined, than homicide.

Now, releasing people convicted of violent crimes is not really a trade-off between COVID-19 deaths and homicide deaths, given that the folks most at risk healthwise, as I explained yesterday, are old and sick and also happen to have committed violent crime decades ago.

So, if there is reluctance to release the folks colloquially known as “violent offenders”–many of whom would barely have a technical write-up or two for the last two or three decades–it’s not really coming from concerns for public safety, is it? It’s coming from concerns for palatability and an idea that this is the right time for abstract ideas for retribution.

If I put the state’s resistance to do the right thing here together with the mismanagement of homeless populations, it almost seems like, at our time of need, we’ve simply decided that the bottom rung or two in the American class ladder don’t matter. And they do, which makes my heart hurt.

In Tricycle Magazine, Chenxing Han writes so beautifully:

The Buddha is often likened to a physician. He diagnosed the unsatisfactoriness of the human condition and revealed its cause. The Buddha was no doomsayer, however: his teachings were treatments that promised a cure, an ultimate freedom from that which ails us. SARS-CoV-2 is a truth-teaching virus. It has revealed to me a deep well of fear: of my loved ones dying, of dying myself (or, during more mundane moments, of running out of brown rice). More incisively, it has revealed society’s disturbing inequities and gross iniquities, forcing us to confront the truth of how the most vulnerable among us—the poor, the disabled, the unhoused, and the otherwise marginalized—bear the brunt of this crisis.   

What this cruel teacher will teach our state about caring for its most vulnerable wards remains to be seen–hopefully before it is too late.

Yes, We *Have* to Release People Originally Convicted of Violent Crime: The Last Hearing of Susan Atkins

Manson follower Susan Atkins loses 13th attempt at freedom -- and ...
Susan Atkins wheeled into her last parole hearing in 2009, accompanied by her husband,
James Whitehouse. Photo credit: Ben Margot for the Associated Press.

Latest news on prisoner release: A couple of days ago, the three-judge Plata panel denied relief for procedural reasons (TL;DR “we are not the appropriate forum for this – go to the original courts.”) As good people are scrambling to put together writs for those courts, I wanted to address something that I *thought* would be obvious, but apparently isn’t.

In the aftermath of putting up my petition to release prisoners, I’ve been hearing commentary that we should limit the releases to “nonviolent criminals.” I use the quotation marks because the definitions of what is and is not “violent” and “nonviolent” is not as clear as people think, and because someone’s crime of commitment is not necessarily an indication of their violent tendencies at present, nor does it predict their recidivism.

In Cheap on Crime and elsewhere I described the post-recession efforts to shrink prison population, which targeted only nonviolent people; reformers understandably thought that such reforms would be more palatable to the public. The problem with this kind of policy, though–as this excellent Prison Policy report explains–is that these kind of reforms ignore the majority of people in prison, who happen to be doing time for violent crime.

In addition to this, if we are looking at releases to address a public health crisis, we have to release the people who are vulnerable to the public health threat. And who, in prison, is most vulnerable? Aging and infirm prisoners.

The math is simple. Out of the prison population, folks who were sentenced for a violent crime are the ones most likely to be (1) aging and (2) infirm. Aging, because the sentences are much longer; and infirm, because spending decades in a hotbed of contagion, with poor food and poor exercise options, does not improve one’s health. We know that a considerable portion of the health crisis in California prison is iatrogenic; not so long ago, Supreme Court Justices were horrified to learn that a person was dying behind bars every six days fo a preventable disease. So, a person who has spent decades in prison is more likely to be vulnerable to health threats. Such a person is also more likely to be older (by virtue of having been in prison for 20, 30, 40 years!) and therefore far less of a public risk of reoffending than a younger person who’s been inside for a few months for some nonviolent offense.

So, if there’s any reluctance to release people who are (1) old, (2) sick, and (3) more likely to contract a serious form of disease that will (4) cause more suffering and (5) cost more money, it’s time to look in the mirror and ask ourselves – why?

Is it really because of a mission to protect the public? Because old, sick people are not a safety risk to the public.

So, is it perhaps because we think of these releases not as an essential public health action, but as some kind of “reward” for people who we think are “worthy” or “deserving”?

The correctional system’s ignorance of old age and sickness is a topic I know something about. In Chapter 6 of my book Yesterday’s Monsters I describe the 2009 parole hearing for Susan Atkins, one of the Manson Family members who participated in the murder of Sharon Tate and her friends in 1969. Forty years later, in her early sixties and ravaged by an inoperable brain tumor, Atkins–a devout Christian with a clean disciplinary record for decades–was wheeled into her hearing on a gurney. At her side was her 17-year husband, lawyer James Whitehouse, who represented her in the hope that she be allowed to spend the last few months of her life by his side.

The Parole Commissioners’ treatment of the case was shockingly obtuse. They started by offering the barely conscious Atkins a hearing aid (as if she could hear them), analyzed old psychological reports from her file, and addressed her educational and rehabilitation “prospect.” They even mocked her husband for being able to afford palliative care for his wife. Incensed by this facetiousness, Whitehouse exploded:

For the record, she’s lying in her gurney here. She is paralyzed over 85 percent of her body. She can move her head up and down. She can move it to the side. She used to have partial use of her left arm, partial limited use, meaning she can’t wave to you. She can’t give you a thumbs up. She no longer can point at you, I believe. She can’t snap her fingers. And this is the evidence. . . . We haven’t been able to get her in a wheelchair for well over a year. Permanent speech impairment—“does not communicate, speaking or writing”—complex medical needs, assistance needed eating, bathing, grooming, moving, cleaning, permanent speech and comprehension impairment due to underlying medical problems. . . . That’s the only evidence regarding her medical condition. And all those things have to do with what we are supposed to be looking for the future of behavior. In light of that, is there anything that her commitment offense has to do that’s probative to what she’s going to be doing in the future as far as you know? That’s a question.

The Parole Board refused to release Atkins, arguing that “these Manson killings and the rampage that went on is almost iconic and they have the ability to influence many other people, and she still has that ability as part of that group.” Atkins, who had no ability to do anything at all, died alone in prison a few months later.

If this outcome feels okay to you, ask yourself: what’s it to you? Do you have an idea of deservedness, of a price to pay, of just deserts? Do you think your idea of an appropriate time spent behind bars bows to no one, to nothing, not even to old age, sickness, and death?

Do you feel comfortable sentencing thousands of California prisoners to death because of these ideas of deservedness, or appropriate retribution, that you have? Will these ideas give you comfort when CDCR has to reckon with thousands of preventable deaths of human beings, just like you?

And if your answer is, “well, they didn’t consider that when they killed their victims, right?”, I have news for you: The victims are not coming back. They’ve been gone for decades. It’s horrible, and tragic, and we can’t fix that. Certainly not with another tragedy.

Get in touch with our common humanity. Write to the Governor. Sign my petition. Do something.

CA Divests from Private Prisons: Realistic? A Good Thing?

Hailed, and partly for good reasons, as a positive development, the Guardian today announces:

The private prison industry is set to be upended after California lawmakers passed a bill on Wednesday banning the facilities from operating in the state. The move will probably also close down four large immigration detention facilities that can hold up to 4,500 people at a time. 

The legislation is being hailed as a major victory for criminal justice reform because it removes the profit motive from incarceration. It also marks a dramatic departure from California’s past, when private prisons were relied on to reduce crowding in state-run facilities. 

Private prison companies used to view California as one of their fastest-growing markets. As recently as 2016, private prisons locked up approximately 7,000 Californians, about 5% of the state’s total prison population, according to the federal Bureau of Justice Statistics. But in recent years, thousands of inmates have been transferred from private prisons back into state-run facilities. As of June, private prisons held 2,222 of California’s total inmate population.

What does this mean, exactly? Keep in mind that there are no actual private prisons on California soil–and yet, California is one of the private prison industry’s best clients, as it houses thousands of its inmates in Arizona and other states that have a flourishing array of private facilities (mostly owned by CoreCivic, formerly the CCA, and the Geo Group.) The bill, AB 32, changes this relationship by barring the state from contracting with private providers outside the state. This includes, importantly, the use of private prisons for holding undocumented immigrants: “Detention facility” is defined in the bill as “any facility in which persons are incarcerated or otherwise involuntarily confined for purposes of execution of a punitive sentence imposed by a court or detention pending a trial, hearing, or other judicial or administrative proceeding.”

Is it realistic for CA legislature to divest from private prisons? It is, to the extent that “private prison” is, as defined in the bill, “a detention facility that is operated by a private, nongovernmental, for-profit entity, and operating pursuant to a contract or agreement with a governmental entity.” But what about the many functions provided inside so-called governmental prisons in CA through private subcontractors? This interesting magazine article about prison food in Chino depicts what is an atypically good reality; prison food is hard to provide without recurring to private contracting, and is awful whether provided through public or private means. Similarly, the much-maligned CA prison healthcare system, which has been for years in the hands of a federal receiver, extensively contracts with private health care providers. This stuff is not the alternative to a public prison economy: it *is* the economy. How do we make sure that prisoners have beds to sleep on, doctors and nurses to take care of them, and two or three (meager, yucky) meals a day? In the neoliberal capitalist world, there aren’t a lot of options out there. So divesting from private prisons completely is not a particularly realistic premise, nor is it particularly desirable (private providers are not categorically worse for the inmates than public providers, and everyone is motivated by greed, as I explain here.) It does have one important, unqualified positive effect: we are not building new public prisons, and we are not housing people in private prisons anymore, so we should incarcerate less people, period. That in itself will be a success.

But there’s something else I find somewhat fishy here, and that’s the supposed divestment of CA from private detention of immigrants. The picture here is much more complicated, because undocumented immigrants are primarily the responsibility of DHS and ICE, the latter of which incarcerates and prepares people for removal as the federal arm of law enforcement (Richard Boswell explains this separation of powers very well here.) What the feds do is contract with states such as CA to house undocumented immigrants, over whom Congress has plenary power and ICE has enforcement prerogatives. Some CA cities house immigrants in their public jails; others contract with private subcontractor providers to meet ICE’s demand. CA’s complicity with awful federal policies is not so much in the fact that they deal with private contractors; its in the awful conditions in both private and public facilities and in poorly supervising the conditions in these places. To be fair, it’s not all CA’s fault – their inability to supervise more effectively stems largely from the general chaos in immigration detention and from hurdles placed by ICE. But I’m unclear on whether these undocumented minors are worse off in private facilities than they are in post-Plata public jails, which do a notoriously poor job distinguishing between immigrants and “real criminals” (whatever the heck that means.)

In short, before dancing a jig about divestment from the public industry, let’s ask ourselves some hard questions about the market itself and how it incentivizes public and private institutions alike to do a poor job locking people up (including people whose only supposed “crime” is saving themselves and their families from the conditions in Central America.)

On Populism in Criminal Justice Policy, and the Death Penalty Moratorium

Gavin Newsom’s recent announcement of a death penalty moratorium drew critique from supporters of capital punishment who argued that Newsom employed his executive power in a way that flies in the face of what the people of California want (which is, by a small majority, the death penalty to stay.) In the last week I’ve had to debate this issue on TV and on the radio with a few commentators, some more erudite than others, and even though the pace of public appearances was rather frantic, I made a mental note that I need to take the counterargument more seriously and think about populism more deeply.

Thankfully, life provided a really interesting opportunity to do so: I’m just returning home from a beautiful day in New York City, which I spent as Author-in-Residence at St. John School of Law‘s Journal of Civil Rights and Economic Development. I spent the day discussing various implications of a piece I wrote for the journal, which was loosely based on this blog post.The schedule for the day was beautifully student-centered and my gracious hosts made sure that their students got the most out of an informal conversation about writing in the morning, a great lunch conversation, and a more formal presentation with Q&A in the afternoon. 
We talked about lots of things: the perniciousness of social media mobbing, whether rage was exhaustive or generative, whether reputations soiled by formal or informal social control can be redeemed (and at what cost), whether there’s any hope for bipartisan civil discourse—in short, the things that ail and worry us all. Among the students’ excellent comments was a polite-but-passionate disagreement a student had with my position on Judge Persky’s recall. As regular blog readers know, I think the recall was a vile example of the scorched earth mentality that drives a lot of lefty activism nowadays and a terrible message for judges to be harsh. The student who disagreed with me saw it quite differently. He saw it as an important message to the judge (and other judges) that he should respect the will of the people.
After the talk, the student came over and we continued our conversation. It turned out that the student was a community organizer who was appalled by the New York State legislature’s imperviousness to impassioned public calls to change the statute of limitations in a way that would allow prosecuting prominent Catholic Church priests involved in the massive sexual abuse scandal. He expressed regret that New York had so little referendum-based legislation, because he suspected that, had the statute-of-limitations issue come up on referendum, about 80% of state voters would support eliminating barriers for prosecution. 
As the student was explaining his position, I realized something important. My hosts and I live in states that are very different, respectively, in terms of their political culture. New York is governed largely through professional, elitist bureaucracy, whereas California is governed through political and emotional populism. As Vanessa Barker argues in The Politics of Imprisonment, these divergent political cultures have shaped two very different criminal justice systems, with California’s characterized by much more punitive excess in terms of legislation and policy. Of course, the criminal process in New York is not clean of problems—the NYPD scandals and the conditions at Rikers are but two notable examples—but the sheer size of the California apparatus and its patchwork of aggressive sentencing laws reflect the punitive animus stoked in a public that votes for criminal justice policies via referendum. Because of these different cultures, our respective natural tendencies are to see the blemishes in our own environment and perceive the other system in a more favorable light. In other words, while I’m used to seeing the serious problems, excesses, and miscarriages of justice that come from a money-flooded direct democracy rife with oversimplification and disinformation, the student who came to speak to me was used to seeing the legislative elite turn a cold shoulder to the values and expectations of their constituents. 
Reasonable people can disagree, I think, on how much direct democracy is appropriate for a particular political culture. But it’s important to make this call on the basis of facts. Does the public tend to be punitive? And how punitive, and in what contexts? There is rich literature on this, which I reviewed extensively in Chapter 7 of Cheap on Crime. The gist of it is that, while the public holds complicated views on punishment and rehabilitation, it is possible (and easy) to craft questions and provide information in a way that yields punitive outcomes. For example, surveys reveal that people are significantly less likely to support lengthy incarceration when they are provided with real data about how much it costs. The problem is that, in a partisan—indeed, polarized—legislative atmosphere, there’s very little guarantee that the public will actually get credible, dependable facts; instead, supporters and opponents of a particular bill will provide a lot of noise and spin, leaving people with good will, but with little background in public policy and economics, to make their own decisions. 
One example is the idea that someone might support the death penalty in good faith because they believe that capital punishment is good for victims and that victims want it. But we know that different people process tragedy in different ways, and that not everyone sees the death penalty as conducive to their healing from a devastating loss. I can say that, in my visits to the violence prevention coalitions in Santa Rosa and in Sacramento, I heard victims’ family members espouse exactly the opposite—and those are, typically, poor people of color, whose voices do not usually ring very loud in the policymaking arena. Is it elitist, or undemocratic, to consider the possibility that the public has been systematically misinformed about what victims want, and therefore lacks valuable and relevant knowledge?
Similarly, consider this horrifying piece of news I read this morning. The violence, the sheer amount of defense required for mere survival, the blood and bodily secretions at all places… a friend posted today on Facebook that if the public knew just a little of what happens in these institutions, we would not have them. It’s not malice–it’s ignorance. Is it elitist, or undemocratic, to suggest that people who call for lengthy incarceration terms have never been inside a prison, have no idea what it looks and feels like, and cannot imagine themselves or their loved ones go through it?

Theoretically, a good compromise between my position and that of the student might be a referendum system that also delivers nonpartisan information about the bills (particularly the budget) and limits expenditure and propaganda to a minimum. How that is to be achieved in a country in love with an absolute First Amendment is a difficult question. What leads me to despair is the fact that, in general, we’re experiencing a fairly shaky hold on the truth in the last few years, intensifying the already existing problem of voter ignorance and campaign misinformation that plagues referendum systems.

It’s pretty distressing to end up with this position, which seems to dovetail with Tom Lehrer’s introduction to one of his songs, where he says that “the reason folk songs are so atrocious is that they were written by the people.” An old friend who grew up in Saudi Arabia told me of going to public executions at the ripe age of 9 and seeing the crowds cheer. Sometimes we need to be dragged, kicking and screaming, away from a site of an atrocity by a responsible adult. I think what Newsom is trying to do is be that adult for us. 

Oh, and let’s talk more about this on April 9 at 7:30pm at Manny’s. Here’s the link to the event–I hope to see many of you there.

Moratorium!!! What Does It Mean?

California’s death chamber: closed. Source:
Office of the Governor.

Today’s stunning, forward-thinking announcement from Governor Newsom requires some careful parsing out. I am on my way to KQED, where I will discuss this with Scott Shafer and Marisa Lagos at 11am. If you can’t listen to the broadcast, here are some initial thoughts about the implication of this announcement and where I think we should go from here.

Moratorium: What It Is

Bob Egelko from the Chronicle reports:

Gov. Gavin Newsom is suspending the death penalty in California, calling it discriminatory and immoral, and is granting reprieves to the 737 condemned inmates on the nation’s largest Death Row.
“I do not believe that a civilized society can claim to be a leader in the world as long as its government continues to sanction the premeditated and discriminatory execution of its people,” Newsom said in a statement accompanying an executive order, to be issued Wednesday, declaring a moratorium on capital punishment in the state. “The death penalty is inconsistent with our bedrock values and strikes at the very heart of what it means to be a Californian.”
He plans to order an immediate shutdown of the death chamber at San Quentin State Prison, where the last execution was carried out in 2006. Newsom is also withdrawing California’s recently revised procedures for executions by lethal injection, ending — at least for now — the struggle by prison officials for more than a decade to devise procedures that would pass muster in federal court by minimizing the risk of a botched and painful execution.

The elements of Newsom’s orders are therefore: (1) a reprieve for every death row inmate; (2) shutdown of the execution chamber (3) a withdrawal of the continuous effort to revise death protocols, which we discussed on this blog numerous times. So, no more “tinkering with the machinery of death,” for at least a while.

Moratorium: What It Isn’t

Newsom is not commuting anyone’s death sentence. Even though executions will not happen, all death row inmates are still sentenced to death and housed on Death Row. He is also not pardoning anyone. This is far from the last step on the road to death penalty abolition. Shutting down the chamber and the protocol revision process, however, will set back executions even if Newsom’s predecessor misguidedly brings the death penalty back.

Why Didn’t Newsom Commute All Death Sentences?

Not all death sentences are eligible for commutation, and if Newsom were to commute all of them, he would be facing ferocious litigation. Shortly before the end of his gubernatorial career, Jerry Brown offered some commutations, which were reversed by the California Supreme Court, citing “abuse of power.” Some capital convictions, under California law, are not eligible for commutation, importantly in cases of prior felony convictions, which is the case for about half the inmates on death row. The last word on commutations lies with the court, not with the Governor, and if the Newsom administration wants to offer commutations, it will have to offer them on a case-by-case basis.

Why now?

It’s anyone’s guess, so here are some of my speculations. First, even in these cynical times, when the federal government is full of self-interested people for whom values and the good of the country do not rank particularly high on the priority list, there still are folks who do things on the state and local level because they think they are the right thing to do. Newsom is a long-time opponent of the death penalty and what he has done is in line with his personal values (in fact, conservative commentators have already attacked him for putting his values first–as if it is a bad thing.) Other reasons for the timing might involve the Kevin Cooper case, in which Newsom, joining the growing chorus of people with serious doubts about the conviction, recently ordered more DNA testing. Also, keep in mind that this is not a departure from Newsom’s previous gubernatorial acts in the criminal justice area. A classic example is his plan to move juvenile justice out of CDCR’s control into health and human services. He seems to be hell-bent on dragging the California correctional apparatus, kicking and screaming, into the 21st century, and turn us from a national embarrassment to a national leader in criminal justice.

Can Pro-Death-Penalty Activists Stop This?

They can try, and likely will. There’s nothing they can do about the 737 reprieves–those are squarely within the Governor’s ambit–but they could argue that the shutdown of the chamber and withdrawal of the regulations slouches toward an encroachment on a legislative process. It is quite likely that, in the next couple of days, they will seek (and perhaps receive) an injunction against that part of the Governor’s order, and that will drag on in the courts for a while. Meanwhile, though, no one gets executed, and that’s the material thing, and moreover, as of 12:45pm today, the death chamber has already been physically dismantled.

What Happens to Existing Death Penalty Litigation?

Because none of the sentencing has changed, everything in the capital litigation machine remains in place; in fact, just this morning I spoke to a friend who specializes on capital postconviction litigation and he was on his way to court for a death penalty case. So all of that stuff–quibbling over injections and historical miscarriages of justice–continues as scheduled, except perhaps with some less urgency.

Can Prosecutors Seek the Death Penalty in Cases Pending Today?

Yes, they can, and there are already murmurs around the web by prosecutors that they are required to do the bidding of their constituents (remind me again why we elect prosecutors and politicize our justice system?). But it would be, perhaps, more difficult for a San Bernardino, L.A., Orange, or Riverside county D.A. to justify seeking capital punishment, which is costly litigation (partly because it triggers an automatic appeal)

Should We Try to Abolish through an Initiative Again?

My two cents: Not anytime soon. Here’s why: When several European countries abolished the death penalty when local public opinion still favored it (check out the current struggle in Belarus, which embarrassingly is the only other Western country, beside the United States, with a death penalty). This seems to be one of those things–like, ahem, slavery, antimiscegenation, and homophobic laws about legal recognition of relationships–where top-down decisions tend to precede changes in public opinion and the public falls in line later. Keep in mind that support for the death penalty is at its lowest point since the 1960s and declining; in a recent piece, Daniel LaChance assesses the death penalty in the 21st century and concludes that it is in its last throes.

And remember, Newsom is a sharp and accurate predictor of the arc of progress, as he did with the marriage equality debacle, but he sometimes predicts things too soon for the public. Recall that he was on the right side of the same-sex marriage debate back in 2004, when thousands of our friends and neighbors stood in line in front of San Francisco City Hall to get married. What followed was years of arduous litigation, including a legal change AND a constitutional amendment that were supported by a small majority of Californians (just like the death penalty.) Newsom’s patience in leading struggles like this, it seems, pays off, and even though some criticized it as a political risky move, Kamala Harris’ recent trials and tribulations show that taking the opposite tack (doing politically expedient things that support the death penalty and selling out values for technicalities) also does not exactly pay off. If one has to choose between the fallout from being a careful political tactician and being a leader with values, Newsom has consistently chosen the latter.

Which is why I think we need to let the fallout from this play out for a while without getting public opinion mixed into all this (we know that, in 1865, the Civil War defeat didn’t exactly shift all Southerners toward support of slavery abolition.) Let’s see where the litigation over the order goes. Let’s keep track of homicide rates in the state for a few years, and when we see–as research consistently shows–that the moratorium has not eroded deterrence and that the death penalty has no proven deterrent power, it will be easier to get rid of it. Also, the passage of time plays out into another important aspect of this: the Eighth Amendment interpretation incorporates “evolving standards of decency”, so let’s allow them to evolve and see what the courts do. Which brings us to our last two points:

Nationwide Implications for the Death Penalty?

Eighth Amendment litigation is often shaped by the passage of time. What seemed kind and usual at one time might not seem like that today, and notwithstanding Foucaultian scholars and postmodernists of all stripes, in general the courts’ tendency has been to assume that we are moving forward, not in circles. California becoming a de-facto abolitionist state is a huge boost to the national struggle for abolition. We have the biggest death row in the country and have been very influential in the arena of extreme punishment. This is a big contribution to the critical mass of states that have moved to the abolitionist side–nineteen so far, and with California it’ll be twenty–and this bodes very well for a national abolition, though the current Supreme Court might be a more difficult venue to pursue this than how it was in its pre-Gorsuch and Kavanaugh makeup.

What About LWOP and LWP–the Other Two Components of the Extreme Punishment Trifecta?

Newsom’s decision does not affect the tens of thousands of people serving lengthy life sentences in California–with and without parole. Moreover, keeping death row inmates on death row means that they continue to litigate extensively at the state’s expense, and none of that investment and attention goes into the other two components of what I call, in my forthcoming book Yesterday’s Monsters, the “extreme punishment trifecta.” If anything, taking the mystery out of whether people are getting executed highlights the lack of difference between death row and life sentences and makes the arguments that life sentences are “the other death penalty” starker.

This only means that what happened today is good news. As readers of this blog know, I’ve always been upset with the progressive tendency to assume that reform is the enemy of revolution and that Dismantlement of the Prison Industrial Complex Must Happen Today Or Not At All. Which is why I wrote, back in 2016, this op-ed, titled “Are you against the death penalty? Good. Then vote against the death penalty.” The point that life sentences are cruel and horrible is not lost on me; quite the opposite, I’ve written a book that argues that attacking LWOP is not enough and that LWP is just as draconian given the vicissitudes of the CA parole system. But what we must remember is that reform always happens incrementally. I recently got to talk about this with Marc Mauer, coauthor of The Meaning of Life. Mauer says we must focus on life sentence abolition in all states that have already abolished the death penalty, and I think he’s right. Newsom’s courageous stance means that we can get to that business in California soon, and I, for one, am delighted that we finally get to fight more fights for what’s right.

Tomorrow? Newsom? Death Penalty???

This just in:

Governor Gavin Newsom is expected to announce he is taking executive action to try to eliminate the use of the death penalty in California.
Two sources familiar with the governor’s plans tell NBC4’s I-Team that Newsom may use the governor office’s authority to reduce sentences of all condemned inmates on death row.
Newsom has been calling elected officials around the state to share some information, but details are expected to be revealed at a news conference at 10 a.m. Wednesday.

!!!! Stay tuned !!!!

From “Nothing Works” to “Something Works”

This morning, the Guardian is covering a great vocational program in Southern California called Manifest Works, “an immersive workforce development and job placement organization; we turn real-world experience into learning opportunities for those impacted by foster care, homelessness, and incarceration.” From the Guardian story:

One of the most common entry points into the entertainment industry is as a production assistant, or PA. The PA might get coffee, run electrical cords, or break down the set; the job’s chameleonic nature makes it a behind-the-scenes linchpin. Manifest Works, a not-for-profit based in Los Angeles, ties the hustle of a PA job to its training program for people affected by incarceration, homelessness and foster care. Some participants had been out of prison as little as three months.

Williams spoke softly and deliberately, rocking back and forth in his crisp white sneakers. He applied to the program after an alum recommended him. He was doing security before that. “Not what I wanted to do with my life,” he said. “This is giving me an opportunity to pursue something closer to what I wanted for myself.”

He still wasn’t sure what on-set role he’d like most. “Everybody wants to be the director,” he said, knowingly.

California, as the country’s most populous state, has one of its highest prison populations, and the highest population of people on probation or parole. It is also home to the multibillion-dollar entertainment industry.

A 2017 study in the Economic Journal evaluated the career trajectories of 1.7 million people released from California prisons between 1993 and 2008, and concluded that, while employment curbs recidivism among the released, the quality of opportunities may be more important than the quantity available.

Sixty-three people have completed the Manifest Works program since it began in fall 2014. Many have established steady freelance careers doing production work. No alum has gone back to prison.

What do they mean by “quality of opportunities?” The study referred to in the Guardian story is by Kevin Schnepel, an economist from the University of Sydney and you can find it here. The abstract reads:

I estimate the impact of employment opportunities on recidivism among 1.7 million offenders released from a California prison between 1993 and 2008. The institutional structure of the California criminal justice system as well as location, skill, and industry-specific job accession data provide a unique framework for identifying a causal effect of job availability on criminal behaviour. I find that increases in construction and manufacturing opportunities at the time of release are associated with significant reductions in recidivism. Other types of opportunities, including those characterised by lower wages that are typically accessible to individuals with criminal records, do not influence recidivism.

This kind of careful study is exactly what we need to counter the despair of the “nothing works” legacy. Because of the dramatic cuts to rehabilitation and vocational programs, which I discuss in Cheap on Crime, opportunities in California prisons really vary. San Quentin benefits from its proximity to the Bay Area, which guarantees an influx of volunteers–but are they programs they offer really effective? More importantly, why are opportunities in construction and manufacturing more important in curbing recidivism than opportunities in other fields, such as service?

A few things come to mind: construction and manufacturing are opportunities that structure one’s day in addition to providing an income. It’s easier to stay the course when you have to be somewhere and perform a job that shows tangible improvement (i.e., putting together a kitchen or producing X gadgets.) They are also jobs that, in the right setting, can provide camaraderie, and have fairly strong unions. But who knows if this is true? To understand why some job opportunities are more effective, we’d need to interview formerly incarcerated folks who are employed in these jobs and ask them about their day and their thoughts about this.

In any case, it’s important for prisons to follow up on studies such as Schnepel’s and on the success of programs such as Manifest Works. Resources are limited, and they need to be invested where they’d yield real results.

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.

Has Prop 47 Led to Increased Crime Rates? (Hint: No)

Since the enactment of Proposition 47, which reclassified numerous California felonies as misdemeanors and led to a relief in jail population, cops near and far have been bemoaning a subsequent rise in crime rates. But that a police officer tells a journalist something doesn’t mean that it is necessarily true, or that the correlation holds. Which raises the question: Have crime rates increased? If so, is the increase correlated with Prop 47? If it is, may we assume causality?

In general, whenever a question like this pops up, there are two places to check first: the Public Policy Institute of California (PPIC) and the Center for Juvenile and Criminal Justice (CJCJ). PPIC, notably, studied crime rates after Realignment, with Steven Raphael and Magnus Lofstrom concluding that the only category in which there was a subsequent correlated increase was, oddly, auto theft – by 14.8 percent. But other crime categories, including violent crime, were not affected by Realignment. With regard to Prop. 47, Lofstrom advises caution:

Upticks in violent and property crime rates during the first year of realignment caused similar concerns, Lofstrom said. With the exception of a boost in auto thefts, however, the spike was in line with increases in states that did not undergo realignment, and crime rates have since dropped again.

With a surge of releases under Proposition 47, “it’s fair to say it puts an upward pressure on crime rates” for the types of low-level offenses those inmates committed, he added. But he said it’s very difficult to attribute a particular change in law to a change in crime rates. Cities and counties vary in their staffing levels, law enforcement priorities and reentry services for released offenders.

There is, however, an early effort to figure out what is going on, and it is a new report by CJCJ. A mere observation of crime rates in January-June suggests a rise in several crime categories, though the numbers for other years appear too inconsistent to draw any pattern.

But the question is, if there is an increase, is it related to Prop. 47? The report reads:

If the reduction in local jail populations after Proposition 47 passed in November 2014 is responsible for the urban crime increase in early 2015, as some sources are arguing, then cities in counties with the largest reductions in jail populations in 2015 would show the biggest increases in crime. However, the data suggest this is not the case. 

In fact, the cities in 11 counties with the largest decreases in both total jail populations and felony jail populations showed equivalent changes in violent crime, and smaller increases in property and total crime, than the cities in 10 counties with the smallest decreases in jail populations. In these 11 counties (total urban population 7.4 million) with larger jail population decreases (total average jail ADPs decreased 15 percent, average felony ADP dropped 18 percent), the overall crime rate increased by only 1 percent. In the 10 counties (urban population 5.3 million) with smaller jail population decreases (total average jail ADP decreased 7 percent, average felony ADPs dropped 11 percent), overall crime increased by 6 percent. Both sets of counties experienced violent crime increases of 9 percent, while the 11 large jail population decrease counties saw no increase in property crime. Significantly, the 10 smaller jail population decrease counties experienced a six percent increase in property crime. Los Angeles County (shown separately due to the unreliability of its 2014 crime statistics) had a lesser decrease in total jail ADP and an average decrease in felony jail ADP, while the city of Los Angeles saw more unfavorable crime trends than the state as a whole.

The report concludes that “[t]here are no obvious effects associated with Proposition 47 that would be expected if the reform had a significant and consistent impact on crime,” and that “[i]t is too early to conclusively measure the effects of Proposition 47 on crime rates just one year after the law took effect.” Indeed, early 2016 data from Davis and West Sacramento shows a decline in crime rates.

The real source of concern, then, has to do not with compromising public safety, but with the savings that were supposed to be cycled back into local communities for reentry purposes. One of my initial worries about Prop. 47 was that the funds, which were to be allocated by the Board of State and Community Corrections, would trail a year behind the early releases, effectively having people reenter into nothing. It seems that these concerns are warranted, and that supporters are petitioning Governor Brown to increase the fund allocation for reentry programs. 

Prop 47 Passed… What Now?

By now, gentle readers, you’re probably done with celebrating the passage of Prop 47, which will have the effect of reducing charges and misdemeanors for many nonserious, nonviolent offenses. But what does this mean, practically, for inmates and for people with criminal records for felonies that are now misdemeanors?

Californians for Safety and Justice have compiled this neat resource answering your questions. There’s even a form you can use to petition to change your record, from a felony to a misdemeanor. If you’re unclear about how Prop 47 might affect your case, contact the Public Defender’s office in your county.