Extradition, Extreme Punishment, and American Exceptionalism

While at the American Society of Criminology conference, I had the good luck to run into a colleague I really like and admire–Dirk Van Zyl Smit from the University of Nottingham. Dirk shared with me two recent decisions of the European Court of Human Rights (ECHR), in cases that he worked on (the ECHR allows professors to submit written briefs as “intervenors”, akin to what we do with amicus briefs here in the US), which illuminate the strange contortions that European countries go through in an effort to determine just how much they are willing to passively cooperate with USian punitive barbarism.

A little bit of background: Article 3 of the European Convention on Human Rights states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” In 1985, Protocol 6 to the Convention, which abolished the death penalty for all members, entered into effect. In accordance with the Protocol and with Article 3, all European Council members have abolished the death penalty (Belarus is not and has never been a member; Russia was recently expelled.) Moreover, the Council of Europe fights the death penalty within and outside its borders in numerous ways, including the well-documented refusal of its members to provide the U.S. with chemicals used in American execution protocols. One important aspect of this abolition-beyond-borders policy is a European Court of Human Rights case from decades ago, Soering v. United Kingdom (1989), which forbids extradition of people to the U.S. if they might face the death penalty there (virtually all European countries have extradition treaties with the US, as you can see in the above map.) Dirk tells me that the practice in these cases is to ask the U.S. to provide a guarantee that the death penalty will not be sought against the extradited person.

But what about life without parole, another form of USian extreme punishment? In Vinter and Others (2013) the ECHR found that “irreducible” life sentences were inhumane; this was applied in Trabelsi v. Belgium (2014) to the extradition setting. But later, in Harkins v. Home Secretary (2014), England’s High Court of Justice narrowly interpreted Trabelsi as applying only to life sentences that were grossly disproportionate or completely lacking in any mitigation mechanisms (such as commutation or parole.) Harkins and other cases (Wellington and Haffiz) treated Trabelsi as somewhat of an extreme aberration.

The Council of Europe’s hesitation to wage a war against LWOP makes more sense when you consider the LWOP situation in the European countries themselves, who also seem to interpret Trabelsi rather narrowly. Only Croatia, Bosnia and Herzgovina, and Portugal have abolished all forms of indefinite imprisonment. So did Spain, in 1928, but it brought the penalty back in 2015. By contrast, many countries have legally prescribed LWOP sentences: England and Wales, the Netherlands, Moldova, Bulgaria, Italy, Hungary, Malta, Cyprus, Albania, Ukraine, Serbia, and the Republic of Ireland. In some of these countries, evidentiary findings of dangerousness can prevent life prisoners to be released. In Austria and in Ukraine, the only way out of life imprisonment is presidential clemency or a finding that the person will not commit further crimes. As a consequence of Trabelsi, the Netherlands has recently allowed resentencing of life prisoners who have served at least 25 years. Even in LWOP-retentionist European countries, courts retain judicial discretion to decide whether a sentence of life should include parole or not.

One of the two recent cases before the ECHR involved Ismail Sanchez-Sanchez, who was arrested in the UK for his role in a conspiracy to ship more than 2600 kgs of Mexican marijuana to Atlanta, GA. At his extradition hearing, Sanchez-Sanchez argued that there was “a real risk that he would be sentenced to life imprisonment without parole.” The British judge, following the logic of Harkins, tried to assess the likelihood that Sanchez-Sanchez would receive LWOP at his federal trial. For the drug conspiracy alone, Sanchez-Sanchez was unlikely to receive a life sentence on any count, and it was even less likely that he would be serving his sentences consecutively. The fact that one of his co-conspirators died of a fentanyl overdose made it more likely that they prosecution would request a life sentence; such a sentence, however, would not be “irreducible”, as Sanchez Sanchez could appeal, apply for executive clemency, and/or request compassionate release.

The ECHR looked at the case through the lens of both Trabelsi and the British cases, and also received some information from the U.S. federal government that addressed both the prevalence of LWOP in the federal system and the particulars of Sanchez-Sanchez’s case. As to the latter, the U.S. Attorney specified that the prosecution recommended a life sentence for each of Sanchez-Sanchez’s conspirators, but they pled guilty and so avoided that sentence. The ECHR highlights the distinction between acknowledging that LWOP is inhumane as an institution within member countries and applying it to extradition to the US:

Within the domestic context, the applicant’s legal position, having already been convicted and sentenced, is known. Moreover, the domestic system of review of the sentence is likewise known, both to the domestic authorities and the Court. In the extradition context, on the other hand, in a case such as the present where the applicant has not yet been convicted, a complex risk assessment is called for, a tentative prognosis that will inevitably be characterised by a very different level of uncertainty when compared to the domestic context. This calls – as a matter of principle, but also out of practical concerns – for caution in applying the principles flowing from Vinter and Others, which were intended to apply within the domestic context, to their fullest extent in the extradition context. . .  Therefore, while the principles set out in Vinter and Others must be applied in domestic cases, an adapted approach is called for in the extradition context.

The first step in this “adapted approach”, according to the ECHR, is an inquiry into the “real risk” that the particular person facing extradition will receive LWOP after extradition. If so, we move on to the second step – an inquiry whether “there exists in the requesting state a mechanism of sentence review which allows the competent authorities there to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.” Because of the uncertainty surrounding Sanchez-Sanchez’s odds of LWOP, as well as the sentences of his co-conspirators, the ECHR concludes that “the applicant cannot be said to have adduced evidence capable of showing that his extradition to the US would expose him to a real risk of treatment reaching the Article 3 threshold”, which renders the second step of the analysis unnecessary.

In the second case, Beverly Ann McCallum, suspected of involvement in the brutal murder of her husband in Michigan, was apprehended in Italy (the murder was a cold case from 2004, solved only in 2015.) During her years of absence from the U.S., her daughter and a friend were charged with first degree murder (the friend pled to second-degree murder; the daughter pled not guilty, was tried, and received LWOP.) The Italian court found that the extradition could go forward given the sentence mitigation options under Michigan law, and McCallum appealed. While awaiting the decision (under home arrest due to ill health), McCallum received a diplomatic note from the Eaton County district attorney, promising that if extradited she would only face second-degree murder charges (no conspiracy charges, only disinterment and mutilation of a dead body), taking LWOP off the table and resulting in a maximum sentence of life with parole. Under Michigan law, lifers are eligible for parole after 15 years, and may also petition the governor for clemency. The Italian authorities, animated by this communique, extradited McCallum to the United States.

Before the ECHR, McCallum argued that the diplomatic note contained insufficient assurances that the Eaton County DA would not revert to the serious charges (note: they did keep their promise despite the brutality of McCallum’s involvement in the murder – H.A.) The ECHR disagreed: Diplomatic notes, they wrote–

are a standard means for the requesting State to provide any assurances which the requested State considers necessary for its consent to extradition. … [T]he Court also recognised that, in international relations, Diplomatic Notes carry a presumption of good faith and that, in extradition cases, it was appropriate that that presumption be applied to a requesting State which has a long history of respect for democracy, human rights and the rule of law, and which has longstanding extradition arrangements with Contracting States. … [I]t seems to the Court that if, following her extradition, the original charges against the applicant were to be revived, that would not be compatible with the duty of good faith performance of treaty obligations.

The ECHR also proceeded to dismiss McCallum’s argument that her eventual release on parole depended on the unchecked discretion of the Governor of Michigan in granting clemency and was therefore “irreducible.” The Court again disagreed, highlighting the fact that the clemency power was procedural, rather than legislated, and had nothing to do with parole, which in Michigan is the sole purview of the parole board:

[T]he Court is not persuaded that the applicant’s understanding of the Michigan system is correct. It observes that. . . a prisoner’s release on parole is at the discretion of the parole board. While the Governor of Michigan indeed enjoys a broad power of executive clemency, he or she is not involved in the parole procedure. Nor do the relevant legal provisions empower the Governor to overrule the grant of parole to a prisoner. As indicated above, appeal against the grant of parole lies to the competent circuit court.

An applicant who alleges that their extradition would expose them to a risk of a sentence that would constitute inhuman or degrading punishment bears the burden of proving the reality of that risk. In light of all of the above-mentioned factors, the Court considers that the applicant has not discharged that burden. Contrary to her claim, it appears that there is no real risk of the applicant receiving an irreducible life sentence, i.e., life imprisonment without eligibility for parole, in the event of conviction of the charges now pending against her in Michigan.

I find two important takeaways here. The first is that the ECHR draws a real line between the death penalty–now widely outside of the acceptable margin of reasonable state behavior for Council of Europe members–and LWOP which, unless absolutely mandatory, remains within the realm of the reasonable. The second is that, among the members of the “extreme punishment trifecta”, life with parole–even with everything we know about the slim odds of obtaining parole–is not in the same league as LWOP, and assurances that the sentence will be the former fully satisfy the requirements of Article 3. What this teaches me is that American exceptionalism seems to have been relegated only to the world of the death penalty, and that Europe isn’t that far ahead of us in fully recognizing the possibility of LWOP as barbaric.

Urban Alchemy in the News

SF-based nonprofit Urban Alchemy, which I discussed here and here, is in the news this week. First, there was BBC coverage, and this morning a lengthy investigative story in the Chron. Mallory Moench and Kevin Fagan’s story is interesting and informative, and offers lots of useful perspectives, but does adopt an unnecessarily skeptical emphasis and tone, which rankled me because I work in the Tenderloin and see the transformation it has undergone through Urban Alchemy’s intervention.

In the early pandemic months, the open drug market around my workplace was so brazen and violent that my students feared going out of their dorm rooms at the Hastings towers. Mayor Breed and SFPD tried to resolve the problem by doing police sweeps of the area, which only resulted in new people coming in to deal and shoot every day. At some point I was contacted by a civil rights org, which shall remain anonymous out of compassion, with a well meant, but absurd, invitation to support their lawsuit against gang injunctions with an amicus brief refuting the existence of the drug market. Refuting? I thought. Are you kidding me? Do you have eyes? Do you live or work here? It was a prime example of what I’ve come to recoil from: the refusal, by some quarters of the Bay Area’s delusional left, to concede that crime is real and has real victims and real implications (that’s why I have no patience for armchair abolitionism, by the way.)

Then, our Dean signed a contract with Urban Alchemy, which has them support the area adjacent to the school. This proved to be a complete game changer. The first morning I showed up to work with the UA practitioners surrounding the perimeter of the school I was amazed; the change in energy, the peacefulness, the friendliness, the sense of personal safety, were palpable. I started chatting with some of the practitioners around my workplace, who came from backgrounds of serious incarceration, and found that their personal experiences provided them with just the right interpersonal skills to intervene in complicated situations in the Tenderloin. Finally, someone is doing the right thing, I thought. There are so many occupations in which a background of criminal invovement and incarceration is a priceless resource – and this includes lawyering. Recently, I interviewed people with criminal records who applied to the California bar and wrote:

In the few occasions in which bar membership with criminal records are discussed, it is not in the context of diversity, but rather in the context of a public concern about “crooks” in the legal profession. Accordingly, the bar orients its policies, including the recent requirement that current members undergo periodic fingerprinting, toward the exposure and weeding out of “crooks.” Criminal experiences are seen as a liability and a warning sign about the members’ character.

My interviewees’ interpretations were diametrically opposed to those of the bar. All of them, without exception, mentioned their experiences in the criminal justice system as catalysts for their decision to become lawyers, and most specifically to help disenfranchised population. Public interest lawyers who spoke to me cited their own criminal experience as an important empathy booster with their clients. Even some of the ethics attorneys cited their personal experiences with substance abuse as a bridge between them and clients with similar histories. By contrast, commercial lawyers, especially in big firms, remained circumspect about their history. Two lawyers spoke to me in the early morning hours, when they were alone in the office, and others spoke from home, citing concern about letting their colleagues know about their history. My conclusion from this was that the interviewees’ background was a rich resource that provided them with a unique and important insider perspective on the system, which remained unvalued and tagged as uniformly negative baggage.

To Moench and Fagan’s credit, their piece does represent this view; one of their interviewees explicitly says that looking at justice involvement as an asset, rather than a barrier, is revolutionary. But overall, their reporting exceedingly amplifies the voices of the naysayers above those of the many people who live and work in the Tenderloin who are quietly grateful for Urban Alchemy’s presence in the streets. You’ll be hard pressed to find detail in their story of the many good deeds that the practitioners perform daily, ranging from lives saved with Naloxone (several times a week, I’m told) to skillfully providing my female students a sense of personal safety when walking the Tenderloin in the evening. Several students described how a practitioner subtly positioned himself between them and someone who was getting too close, and how the threatening situation evaporated before it could evolve in unsavory directions. Moench and Fagan give this a passing nod, but their piece fails to properly capture the magic.

This brings me to another observation: There hasn’t yet been a project evaluation for Urban Alchemy’s Tenderloin intervention. Executing such a study would be a daunting task for several methodological reasons. First, there’s no comparative baseline for the intervention. The situation before their intervention was so abnormal that it would be hard to use it as a control, even if data were available. If the comparison is geographic, it would suffer from the usual problems with situational crime prevention: focusing an intervention in a particular geographical zone means that criminal activity is displaced onto adjacent zones, so the two comparators are not independent of each other. If the study is structured as an in-depth phenomenological project (which is what I would do if I were to do this–and a colleague and I are thinking about this), there’s the Star Trek problem of the Prime Directive: researchers or students hanging out in the Tenderloin to conduct observations would, themselves, change the dynamics in the area that they study. A big part of Urban Alchemy’s success lies in the fact that they do things differently than SFPD. They do not rely on surveillance cameras; in fact, they eschew them, and having any sort of documentation would be detrimental to their working model. And people standing in the corner for hours and taking notes would chill everyone’s behavior. Fieldwork here has to be conducted with care.

I have one more observation to offer: I now work in a service profession that requires crowd management and interpersonal intervention (as a city pool lifeguard) and also have multiple years of experience managing crowds in rowdy, inebriated, unusual situations (as a Dykes on Bikes registration volunteer at Pride and at Folsom Street Fair, for example.) The vast majority of people you encounter at these settings are lovely and a delight to be with. But the one or two percent who are decidedly not lovely can really test anyone’s self control. I’m talking about the driver who insists on driving the car into the area you’re trying to cordone off, the slow dude who insists on swimming in the lane with faster people and not letting them pass, or the people repeatedly told (politely) to move to the sidewalk so that they are not run over by trucks who don’t go where they’re told. My experiences are nothing compared to what the Urban Alchemy practitioners encounter every day on the Tenderloin streets. I really wish our reporting on this were sympathetic to the enormous challenges of interpersonal interactions in this very rough patch of our city and more appreciative of how much conflict and anxiety are spared when people who know what they’re doing take the lead.

Newsom’s Captive Supporters: COVID-19, Sirhan Parole, the Recall, and the Illusion of a Blue State

Tomorrow, the Californians who have not yet voted by mail will participate in yet another recall election. I’ve already spilled enough pixels explaining why I voted no, and why you should do the same. But I do want to say something about the deep ambivalence that prison activists and advocates probably feel around this election. People can and should contain multitudes of contradictions and complicated opinions.

Over the weekend, Bob Egelko of the Chronicle wrote this interesting and insighftul piece about Sirhan Sirhan, now 77 years old after five decades in prison for the murder of Robert Kennedy. Sirhan was recommended for parole by the board,, which means that his case is now on Newsom’s desk. And as Egelko explains (with a little assist from Stanford’s Bob Weisberg and from yours truly), the political calculus is heavily rigged against Sirhan:

“Anybody that has ever walked into my office, you have to walk by photographs of Bobby Kennedy’s funeral procession, those famous train photos,” the governor said, according to a transcript provided by his office. “The first photograph, the only photograph you will see in my office is a photo of my father and Bobby Kennedy just days before Bobby Kennedy was murdered.”

Newsom’s leading opponents in the recall are well to his right politically and would seem equally unlikely to approve Sirhan’s parole. And any decision to release Kennedy’s murderer would surely become a flash point in the 2022 governor’s election.

“I’d be shocked if Newsom didn’t reverse” the parole board’s decision, said Robert Weisberg, a Stanford criminal law professor. Although the governor would have to explain why he believed Sirhan still posed a threat of violence, Weisberg said, he would most likely be “responding to a public view that this guy’s crime was so heinous that he shouldn’t be paroled.”

Egelko is right on the money, as was Jonathan Simon in Governing Through Crime: it is an asset to left-wing politicians to position themselves as tough-on-crime where their supporters have no leverage. This is especially true in California which, as Vanessa Barker explains, is a populist, polarized state. The only two discounts on that front have been recession-era fiscal concerns and riding a popular racial justice wave in progressive cities. And keep in mind that Sirhan is not alone: the entire “Class of ’72′”–the folks whose sentences were commuted after People v. Anderson, including the Manson family members–has been reviled for decades. After the return of the death penalty, the weakening of the parole system, and the politicization of the whole process, the prospects of release for anyone who could peel centrists off the left base became dim. Egelko explains why:

The law allowing the governor to veto parole decisions was passed after courts rejected Gov. George Deukmejian’s attempt in 1983 to block the parole of William Archie Fain, who had served 16 years in prison for murder and rape in Stanislaus County. The Legislature put Proposition 89, a state constitutional amendment, on the ballot in 1988 and it was approved by 55% of the voters.

Even before the ballot measure, convicted murderers were seldom paroled, even after decades in prison. The board has historically approved their release in less than 10% of the cases, and in some years less than 5%, leaving the others to continue serving life sentences.

Gov. Pete Wilson overruled the board about 30% of the time. His successor, Gov. Gray Davis — who declared, soon after his election, that “if you take someone else’s life, forget it” — vetoed all but six grants of parole, just above 1% of the total approved by the board. Gov. Arnold Schwarzenegger rejected about 70% of the board’s parole decisions.

The trends shifted under Gov. Jerry Brown, who overturned the board only about 20% of the time, and so far under Newsom as well.

And warnings of the dangers of paroling convicted murderers do not appear to be supported by the evidence: Between 1995 and 2010, 48.7% of all former prisoners in California went on to commit new crimes after their release, but among the 860 prisoners convicted of murder who were paroled, only five — 0.58% — had been jailed or imprisoned again, according to a report by the Stanford Criminal Justice Center.

“You age out of violent crime,” said Hadar Aviram, a law professor at UC Hastings in San Francisco.

But while Newsom has overseen the court-ordered reduction of the prison population, now at lowest its level since 2006, and has proposed closing two state prisons by 2023, Aviram — author of the recent book “Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole” — said Newsom’s response to the proposed parole of a Charles Manson follower was a likely indicator of his future decision on Sirhan.

The parole board has repeatedly recommended release of Leslie Van Houten, who was convicted of taking part in two of the Manson family’s Los Angeles-area murders in 1969, when she was 19. While Van Houten has a clean prison record and has earned college degrees behind bars, Newsom said in November that her “explanation of what allowed her to be vulnerable to Mr. Manson’s influence remains unsatisfying” — his second veto of her parole, after two similar decisions by Brown.

“The gubernatorial veto was introduced in 1988 anticipating precisely this scenario,” Aviram said. It was a “power shift,” she said, from “professionals,” such as psychologists and prison counselors who advise the parole board, “toward the limelight of sensationalized, politicized coverage” and changed outcomes.

The upshot of all this: I feel quite bitter. In the last few weeks I’ve seen the people who have ample cause for resenting Newsom–the people whose family and friends are behind bars, facing risk of illness and death because this administration wallowed and waffled on releases while at the same time vigorously defending medical atrocities, indifference and ineptitude in court–unequivocably and firmly doing the right thing, voting “no” on the recall and encouraging everyone they know to do the same. I resent that they are being put in this position. I resent that we are all being put in this position. I resent that a politician whom I deeply admire for what he has done for same-sex marriage and death penalty abolition takes the easy and expedient way–again and again!–whenever someone behind bars is concerned. I resent that incarcerated people and their families are always the sacrificial lambs in these left-versus-right California tumbles, because the right-wing candidates are perceived as much worse. I resent that the incentive structure is always stacked against releasing old and sick people from prison–even though there is compassion and redemption to be gained and nothing to be lost from a public safety perspective. I resent that the people doing the hardest activist work stand to gain absolutely nothing–no sympathy, no consideration, no concessions, no compassion, no fairness–from doing the right thing for everyone else.

In sum, if you feel resolute and at the same time awkward about your “no” vote, you’re not alone. You’re part of a captive support contingent for blue politicians in California–some members of which are literally captive. It is possible to accept that anyone on the replacement list–particularly Larry Elder–would be disastrous as governor, and to respect and admire Newsom as a capable and experienced politician, while at the same time deeply resent the fact that, once again, urgent human rights issues–true life-and-death matters–have been swept under the rug.

How to fix this? Abolish the gubernatorial veto. Diversify parole boards. Change parole from a wacky card game with no rules, which the house always wins, to an instrument of true hope and transformation. But none of this will happen before tomorrow. So, we will dutifully vote “no”, because we are not single-issue dolts, and continue to await the change that never comes.

Support A.B. 1210 – Diversify the Parole Board

This morning I’m scheduled to testify before the Senate Public Safety Committee in support of AB 1210 (Ting). The proposition is to diversify the parole board by including commissioners with a variety of professional backgrounds, including therapeutic backgrounds.

Those of you who read Yesterday’s Monsters may recall that, while the Board is diverse in terms of race and gender, it is not diverse in terms of professional background. The vast majority of commissioners come from law enforcement backgrounds: former sheriffs, police chiefs, and correctional officers. This has far-reaching implications as to the nature and result of the hearings.

The current composition of the board dates back to several transformations in California punishment that happened throughout the late 1970s and 1980s. Over the years, the time before the initial hearing and between hearings increased; actuarial risk assessment replaced correctional counselors and psychologists; the role of prosecutors and victim supporters vastly increased; and voters approved a gubernatorial veto on parole board decisions to release. Despite repeated instruction from the California Supreme Court to focus on future prospects and risks, the Board acts defensively, finding ways to bypass this requirement and deny parole on the basis of crimes that happened decades ago—even to people who, according to vast criminological research, have long ago aged out of crime. As a consequence, recommendations for release are rare, accounting for only 16-17% of all hearings.

It is unsurprising that a group comprised almost exclusively of law enforcement officers is professionally and culturally predisposed to accept court records and disciplinary write-ups as incontrovertible truth, makes biased assumptions about people from their demeanor and body language, and tends to accept simplistic narratives at the expense of more complicated stories involving people’s environment and circumstances. The commissioners also exhibit complacency regarding the woeful inadequacies of our prison programming system, laying the blame for inaccessible or nonexisting rehabilitation programs on the parole applicants themselves. Despite some continuing education workshops, the commissioners as a group do not possess deep professional knowledge on issues such as substance abuse and mental health.

The commissioners regularly pride themselves for being able to detect false remorse or lack of insight. Unfortunately, this self-assessment claim is contradicted by robust empirical research. In experiments, law enforcement officers regularly express significantly more certainty about their ability to detect lies–and regularly do significantly WORSE than general population in telling truth and lies apart.

We are at a unique moment in history, in which we acknowledge that multiple forms of wisdom and expertise—not only the expertise of law enforcement officers—are essential to solve social problems and offer hope to families and communities. Tune in to the hearing today and make your voice heard in support of this important change.

New Policy re Good Time Credits toward Release at CDCR: Truth, Misrepresentation, and Panic

On Friday afternoon, CDCR announced an amendment to its regulations regarding the earning of good time credits. It’s always important to pay attention to such regulations, because as Kevin Reitz, Ed Rhine, and their colleagues at the Robina Institute remind us, whether a sentence is determinate or indeterminate is a question with many moving parts and many institutional actors, including prison administrators.

The new regulations are good news, albeit modestly so. For people doing time for nonviolent felonies, the good time credits will increase from 33% to 50% credit earned. For people doing time for violent felonies, the increase will be from 20% to 33.33%. In addition, the new regulations establish a new credit, called “minimum camp credit”: those who make it to conservation camps, earn a day for each day at the camp.

Reading these plain facts doesn’t suggest much cause for alarm, does it? But someone at the Associated Press decided that injecting some inflammatory, dehumanizing language was de rigueur, so they published this article, which was originally titled “76k California violent, career felons get earlier releases.”

The article is not only inflammatory, but deeply misleading. The number of people eligible for credits is far fewer than 76,000. First, the people presumably doing time for the most serious offenses–lifers without parole and people on death row–are ineligible for the credits. Second, for all those serving life sentences with the possibility of parole, release is not automatic, but rather conditioned upon success before the parole board which, if you’ve read Yesterday’s Monsters, you know is exceedingly rare (less than 20% of applicants receive parole.) Third, anyone who is already in the parole pipeline–including people with youth offender parole dates (who have aged out of crime) and people with elderly parole dates (who have also aged out of crime)–is not eligible. Fourth, the credits will be fairly modest because the regulations are not retroactive: the new percentage will only apply to the remaining portion of the person’s sentence, effective May 1, 2021. And finally, the choice of headline highlighting “violent, career felons” produced (as far as I could see) the predictable fatuous shrieks on Twitter, I’m sure will play a role in the similarly fatuous recall campaign, and is not the sort of thing that is conducive to reasonable conversations about criminal justice reform.

The regulations are a small step in the right direction. In the last few weeks, Chad and I are noticing increases of approximately 150-200 people at CDCR, presumably intake from jails. To curb new outbreaks and prevent the next pandemic, we must keep prison population lower to offset these transfers.

Diversify CA’s Parole Board and Broaden Medical Parole: Support AB 1210 and 960!

Here’s the letter I submitted in support of AB 1210 and AB 960 today. To do the same, click here!

Dear Committee Members,

Letter of Support: AB 1210 and AB 960

My name is Hadar Aviram. I am a UC Hastings law professor specializing in corrections and the author of a recent book about parole in California, Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole (UC Press, 2020.) I write to offer my strong support for two measures discussed at today’s hearing: AB 1210 and AB 960.

AB 1210 is an essential step for reforming parole. While the BPH is diverse in terms of gender and race, it is not at all diverse in terms of professional background. My research revealed that, almost invariably, gubernatorial appointees to the BPH are former law enforcement officers from the police and correctional fields. This means that, continuing education notwithstanding, the board is truly impoverished in terms of several topics that are incredibly germane to the commissioners’ deliberation: substance abuse, mental health, and the like, which are part and parcel of the skillset of people from the helping professions. In addition, my research reveals that the commissioners are overconfident about their ability to discern remorse or insight from nonverbal clues such as the parole applicant’s demeanor. This confidence is unfounded: robust social science research shows that law enforcement officers, who believe they are better than the general population at detecting sincerity or release, are actually worse at it in controlled experiments. This is another reason to diversify the board.

I also offer my strong support for AB 960. I am currently working on a book about the COVID-19 crisis in California prisons (under contract, UC Press) and have several publications out on the topic. Among the things I have found is that the Governor’s release policy was flawed not only in its modest numbers, but also in terms of determining *who* was to be released. I suspect that the tendency to release people with short sentences toward the end of their sentence was largely political, to avoid backlash; in fact, the people who are older and serve longer sentences (now about a third of the CA prison population) are the ones who pose the least risk to the outside and who need the most help because they, themselves, are at medical risk. It is essential not to pollute public health considerations with a flawed discourse of deservedness. We must expand medical parole, not only for the sake of abating this pandemic, but also for the sake of preventing the next.

Many thanks for adding my research into your considerations. I am happy to provide any further information you need.

Best,

Hadar Aviram

The Marshall Project Survey and “Programspeak”

The Marshall Project has published the results of a political survey of incarcerated people, and they are extremely interesting. In a previous installment, they refuted the widely-held belief in broad support for Democrats behind bars; the majority of white prisoners would vote for Trump if they could. The current installment, in which the respondents were invited to opine on criminal justice policy, is just as interesting. Among other findings, even though there was a marked racial divide on questions about police violence and support for Black Lives Matter, 64% of incarcerated Republicans supported transferring funds from policing to social programs, by contrast to only 5% of incarcerate Republicans.

I highly recommend reading the whole thing, and have just one comment to make. In the survey, respondents were invited to comment on the kinds of interventions that would have kept them from prison, and they did list some of the “usual suspects”:

But the article then comments that many respondents ascribed the responsibility for their incarceration solely to their own behavior.

This is worth commenting on, because it dovetails with one of my findings fromYesterday’s Monsters, namely, the insidiousness and proliferation of “programspeak.” Programspeak is more than a jargon–it’s a worldview that is propagated in prison rehabilitative programming, all of which is geared toward telling the parole board a story of personal responsibility. At parole hearings, where the concept of “insight” is kind, there is a constant pressure on people to attribute their incarceration only to their own failings, without any allowance for environmental factors.

Now, there is nothing wrong with encouraging people to be accountable, and I think Marxist theories of crime take things too far when they divorce criminality from anything involving personal autonomy; even when choices are very constrained, we see evidence of agency (and to say otherwise is incredibly insulting to the large majority of people from disadvantaged backgrounds who don’t commit crime.) But adults with complex worldviews should be able to account for criminality in a way that does not discount the robust evidence of environmental factors, including poverty, difficult family lives, lead exposure, governmental neglect, lack of educational and vocational opportunities, and understandable, class- and race-based resentments. Unfortunately, this is not how it plays out on parole, where any effort to contextualize one’s personal history prior to the crime of commitment can be interpreted as “minimizing” or “lack of insight.”

This “programspeak” of personal accountability bleeds over to almost all other prison programming. I should know; I volunteered with, and visited, many of them. But it also bleeds out of the prison experience and accompanies people in their lives on the outside. In his ethnographic study of reentry, Alessandro de Giorgi found this self-attribution is so insidious that even after reentry, people blame themselves for not having a roof over their heads or basic groceries to feed their families.

Given the pervasiveness of programspeak, I’m not surprised to find that the folks surveyed by the Marshall Project emphasized their own responsibility. It’s being drilled into them throughout their incarceration. If anything, it’s a miracle that despite this aggressive, programmatic indoctrination, they articulate environmental factors as well. And to the extent that, after everything we know, people still subsribe to this heavyhanded partly-false consciousness, much of it is going to crumble because of the contrast between the consistent pressure on individuals to take responsibility for their actions and the equally consistent reluctance of prison systems to take even a shred of responsibility for what is being done to them, especially in the context of COVID-19.

How to Reduce California’s Prison Population by 50%

Today’s Chronicle features a great article by Bob Egelko, which tries to parse out who is responsible for the San Quentin catastrophe. Getting into the chain of command that made the botched transfer decision might come in handy at a later date, I think, when the time comes to file the inevitable (and more than justified) lawsuit. But, as I said in the article, the time to squabble over who’s at fault has not come yet. Right now we must have all hands on deck, including Gov. Newsom, Mr. Kelso, and Mr. Diaz, making prison releases their absolute top priority.

By now, regular readers of my COVID-19 prison crisis posts know that Gov. Newsom’s plan to release a mere 8,000 people over the course of the summer will not suffice to curb infections, illnesses, and death in prison. You also know that, at least with regard to San Quentin–an antiquated facility that lacks proper ventilation–the physicians at AMEND recommended an immediate population reduction by 50%. But how is it to be done?

The #StopSanQuentinOutbreak coalition, and the Prison Advocacy Network (PAN) have useful, well-researched answers, which are encapsulated in the lovely infographic above. Here are the coalition’s demands, and here’s the PAN page offering legal resources and pathways to release. I want to spend this post getting into the particulars. Before doing so, though, I need to explain a few important things.The Prisoner Advocacy Network has a list of pathways to release.

A lot of the categories in Newsom’s current release plan make sense and show evidence of public health thinking. They are considering age, medical condition, and time left on people’s sentences. The problem with the categories is that they are unnecessarily restrictive, and I think the restrictions can be attributed to two hangups that many people, including well-meaning, educated folks, share about prison releases: the fear that releasing a lot of people is going to be hugely expensive and the hangup around the violent/nonviolent distinction. So let’s tackle these two first.

Get over the hangup of re-entry costs. You may have read that BSCC is considering offering $15 million to CDCR, and might wonder how we can possibly pay for housing, temporary or permanent, of tens of thousands of people. Of course this is going to cost money; the question is, compared to what. It may shock you to learn that, in the 2018/2019 fiscal year, the Legislative Analyst’s Office estimated that the average cost to incarcerate one person in California for a year was $81,502 – more than a $30k increase since our recession-era prison population reduction in 2010-2011. How much does it cost to help such a person for a year, when their healthcare is funded by Obamacare, rather than by CDCR? Here’s a PPIC report from 2015 detailing alternatives to incarceration. Specifically with regard to COVID-19-related reentries, here’s another great infographic detailing what the needs are going to be. The big one is housing, and there are organizations on the ground that are set up to help with that. Even with transitional housing costs, this does not add up to $80k per person per year.

Get over the hangup of making the violent/nonviolent distinction. I am still seeing lots of well-intentioned folks who read Michelle Alexander years ago tweeting about how ending the war on drugs (with or without the hashtag), or focusing on so-called “nonviolent inmates” is the key to fighting this outbreak. I can’t really fault them for this misapprehension–what I can do is repeatedly present you with facts to correct it.

Take a look at the graph below. It comes from CDCR’s population data points from 2018. You will note that the vast majority of people in California prisons are serving time for a violent offense. Drug convictions are the smallest contributors to our prison population (this is of course not true for jails or for federal prisons; I’m talking about the state prison system.) I know we all love to say “dismantle” these days, but dismantling the war on drugs will do very little to reduce state prison population.

Now, take a look at CDCR’s Spring 2020 population projection. What you see in the diagram below are the reductions in population since 2010, and some projections for the years to come. The two big reductions were in 2011, following the Realignment, and, to a smaller extent, in 2015, following Prop. 47. Both of those propositions diverted drug offenders to the community corrections systems–jails and probation. If you care about the injustices of the war on drugs, your heart is in the right place, but this is simply not the most dire problem we are facing in the context of prison population reduction.

It is easier to talk about drugs and nonviolent offenders, because these are typically categories of people that evoke more sympathy from the press. My colleague Susan Turner at UCI has shown that risk assessment tools, when used properly and carefully, yield dependable predictive results, and these are not correlated with the crime of commitment. Because we were so married to the idea that only nonviolent folks need help and public support, our three major population reduction efforts–Realignment, Prop 47, and Prop 57–missed the mark on getting more reductions for little to no “price” of increased criminal activity. Whenever you see a headline lambasting the Governor or the Board of Parole Hearings for releasing a “murderer,” immediately ask yourself the two relevant questions: (1) How old is this person now, and (2) how long ago did they commit the crime? The answers should lead you to the robust insights of life course criminology: People age out of violent crime by their mid- to late-twenties, and at 50 they pose a negligible risk to public safety. Moreover, what a person was convicted of doesn’t tell you a full story of what their undetected criminal activity was like before they were incarcerated. Take a look at the homicide solving rates in California, as reported by the Orange County Register in 2017–a bit over 50%–and ask yourself whether the crime of conviction is telling you a story with any statistical meaning.

In short, my friend, take a breath, let go of your attachment to the violent/nonviolent distinction, and let’s find some real solutions. The #StopSanQuentin coalition has a more in-depth breakdown to offer. Generally speaking, the legal mechanisms to achieve this reduction were identified by UnCommon Law in their letter to the Governor–primarily, early releases, commutations, and parole. Section 8 of Article V of the CA Constitution vests the power to grant a “reprieve, pardon, or commutation” in the Governor. The Penal Code elaborates and explains the process. Section 8658 of the California Government Code provides an emergency release valve: “In any case in which an emergency endangering the lives of inmates of a state, county, or city penal or correctional institution has occurred or is imminent, the person in charge of the institution may remove the inmates from the institution.  He shall, if possible, remove them to a safe and convenient place and there confine them as long as may be necessary to avoid the danger, or, if that is not possible, may release them.  the Governor has the authority to grant mass clemencies in an emergency.”

To begin, there are some bulk populations which, if targeted for release, can deliver the kind of numbers we need to stop the epidemic. These three populations largely overlap, which might make it easier to tailor the remedies to capture the right people. About half of the CDCR population are people designated “low risk” by CDCR’s own admission. CDCR uses risk classification primarily for housing purposes, and their methodology–as well as their practice of overriding their own classification–have been found by LAO to be in dire need of overhaul. LAO and other researchers believe that CDCR’s use of the “low risk” category is too restrictive, and their exceptions to their own classification come from hangups around issues of crime of commitment. This chart from the LAO report tells a useful story: Most of our prison population is doing time for violent crime, and a quarter of it is 50 and older; given the length of sentences for violent crimes, and the fact that a quarter of CA prisoners is serving decades on one of the “extreme punishment trifecta” of sentences (death, LWOP, or life with parole), it’s not difficult to figure out where the older, lower risk people fit in.

Between a quarter to a third of the prison population, depends on how you count: People who have already served a long sentence. This is the time to question the marginal utility of serving a few more years after being in prison for decades. According to the Public Policy Institute of California, About 33,000 inmates are “second strikers,” about 9,000 of whom are released annually after serving about 3.5 years. Another 7,000 are “third strikers,” fewer than 100 of whom are released annually after serving about 17 years. Approximately 33,000 inmates are serving sentences of life or life without parole. Fewer than 1,000 of these inmates are released every year, typically after spending two or more decades behind bars.

23%: People Over 50. Not only does this population intersect with lower criminal risk and higher medical risk, it also correlated with cost. According to the Public Policy Institute of California and Pew center data they cite, in fiscal year 2015 the state spent $19,796 per inmate on health care–more than thrice the national average.

To this, we can add a few smaller populations, numbering a few thousand each. Let’s start with people on death row and people on life without parole, who have been exempted from pretty much any release valve possible. The Governor has the authority to commute both of those sentences to life with parole today, and this is probably the right course of action anyway, pandemic or no pandemic. We have a moratorium on the death penalty, which means no one is getting executed but we are still paying for expensive capital punishment litigation. Cut out the middle man and shift all these folks to life with parole. I talk about how these three sentences are indistinguishable anyway in Yesterday’s Monsters, chapter 2.

There are also, apparently, a few hundred people still incarcerated who have been recommended for parole and approved by the Governor–coalition members have identified a few dozen in San Quentin alone. If these people have been given the green light to be released, why are they still behind bars? As for people who have been recommended for release and still awaiting the Governor’s authorization, now’s the time to expedite that.

Finally, lifting the offense limitations on people from outbreak epicenters, people with medical conditions, and the like, should expand those numbers considerably, given the significant overlap between crime of commitment, length of sentence, age, and health condition.

My point is that all of this is eminently doable, and there would hardly be any downsides. If we can just let go of the tendency to view only one side of the cost equation, and of our hangup about the nonviolent/violent distinction, we can scale up the proposed release plan to the point that it will be effective. Let me end with this thought: Gov. Newsom announced that the goal is to reduce San Quentin population to close to 100% of design capacity. In a sane world, prisons that are at 100% occupancy are not a goal. They are a starting point.

August 14 Update: Jason Fagone has a gorgeous piece in today’s Chron explaining how we could achieve a 50% reduction today, with negligible impact on public safety.

Assessing the Dangerousness of Redball Criminals: Two Israel Examples

My forthcoming book Yesterday’s Monsters examines the parole hearings of the Manson Family, who have been consistently denied parole for decades. A key issue in the book is the notoriety of the murders and the prevalence of a narrative about them, which I call “the Helter Skelter narrative”, that portrays the crimes as bizarre, sui generis occurrences. You’ll have to read the book to see how the Board of Parole Hearings handles these cases. For now, since I’m visiting Israel for a few weeks, here are two stories of local “redball criminals” and how their requests for parole and vacation have been handled.

A few words about prison sentences for murder in Israel: Until a recent amendment, the only sentence possible for murder was life in prison. The court did not announce a minimum time like in the U.S. (such as “twenty-five to life”); it merely announced “life”. The authority to decide how long “life” lay solely in the hands of the President of Israel–a role he inherited from the British High Commissioner prior to Israeli independence. Life prisoners submitted a request to set the length of their prison sentence, and a special department at the President’s office made a recommendation. From then on the sentence would be treated as a finite sentence for release purposes, whose clock starts ticking after the inmate has served two thirds of the sentence; for example, if the President set the sentence at, say, thirty years, the prisoner would come up for parole after twenty years. There’s been a recent amendment that Americanizes the scheme of homicide offenses in Israel, but it’s not particularly relevant to this post.[1]

Another important note pertains to vacations. Under the Prison Ordinance and relevant regulations, prisoners are eligible for short vacations from prison. These depend on the prisoner’s level of dangerousness, the purpose for the vacation (an important family event, such as a funeral or an important birthday), and the time the prisoner has spent behind bars. Some of my lifer clients from the late 1990s have been receiving vacations regularly.

In 1995, as not only Israeli readers know, Prime Minister Yitzhak Rabin was murdered by political assassin Yigal Amir. The murder shook the country to the core, and as we all know, irrevocably changed the course of history by derailing the peace process, assisting Netanyahu in ascending to the Prime Minister role, and legitimizing hate campaigns against Israeli Arab citizens, Palestinian residents, and the Israeli left-wing. But closer to the events themselves, there was still some horror and shock about the crime, which led the Knesset to legislate a special personal law, colloquially known as the “Yigal Amir Law”: a law that binds the discretion of the parole board in cases of people who murder the Prime Minister for political-ideological reasons. There’s only one such person (so far), and the law was specifically tailored to address his particular case. The President may theoretically disregard the Board’s legally-mandated “recommendation” not to release Amir, and in these times it’s not completely farfetched to imagine a President who might do so, but disincentives abound (the committee is chaired by a Justice of the Israel Supreme Court.)

Interestingly, some members of Meretz, the left-wing, civil-rights political party, abstained from the vote. They explained that creating a special, personal law for just one person was a violation of the principle of legality, no matter who the person was. Others expressed similar trepidation, but thought this was such a rare and unique case that there was no concern about a snowball effect (things have gone so seriously awry in the civil rights arena in Israel to the point that I’m no longer sure this is true.)

Another famous case involved the horrific murder of Asaf Shtierman in 1996, which remained unsolved until 2000. When a woman named Sandrine Ben-David reported severe domestic violence incidents to the police, the investigation revealed that her young husband, Rei Horev, and two young women, Sigalit Heimovitch and Lihi Gluzman, were responsible for the murder. Horev, the main instigator (for psychopathic reasons that are very hard to undestand – Shtierman was a stranger to him), received life in prison, and has been behind bars for nearly twenty years. He is, according to reports, a model prisoner with a clean disciplinary record, entrusted with responsibilities such as working on a computer. When Horev’s son with Ben-David turned 13, Horev received a short vacation from prison to attend his Bar Mitzvah (under heavy Prison Authority guard.) However, when Horev’s son enlisted in the army, Horev’s request for a vacation was denied. The judge who chaired the committee wrote a decision that reminded me a lot of the Californian equivalent Board’s vague justifications to keep the Manson Family behind bars: “According to his employers in prison, he is a responsible, essential prisoner, devoted to work, contributing, serious, and meaningful. . . he participates in educational activities and has successfully completed several therapeutic group. His psychological assessment diagnosed a significant tendency to avoid negative feelings, aggressive urges, and to see the world in an overly optimistic way. This mechanism serves him now, but might make things difficult for him when he confronts situations that evoke strong feelings. Despite a high level of insight about his past, he is lacking a deep understanding about the destructive dynamics of his past close relationships, which could be a source of difficulty in the future.”

A couple of days ago I posted about convicted rapist-murderer Shlomo Haliwa, who gets out in 2024; Horev, if he receives the customary reduction of a third of his sentence ,gets out in 2025. Who is to say which of these men is or is not dangerous? Anyone who’s heard Haliwa on tape explaining to crime documentary producers that he “likes to fuck” and that all his “relationships” were consensual with girls who “wanted them” can conclude that this is not someone who’s shown a smidgeon of insight. When he gets out, he will be 75 years old, and is still a strong, healthy man, probably as easily capable of overpowering and coercing a woman as he did in his thirties. Horev, on the other hand, has expressed remorse for his horrific crime; the extent to which he can be believed is debatable.

These cases raise the same difficulties that Yesterday’s Monsters raise about the Manson Family inmates. To what extent does the notoriety of a case impact decisions to release? And is it a legitimate consideration? Is it legitimate to factor the public’s distaste for a particular murderer in decisions to deny parole or vacations? And is there a proper measure of whether the distaste is justified? Redball crimes matter a lot in creating public policy and fueling the public’s imagination about crime, but they also feature real victims and real perpetrators who are, after all, just people.

Yesterday’s Monsters comes out early 2020 from UC Press.

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[1] It is, however, relevant to some of my other work: I’ve been studying American influences on Israeli criminal justice.

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.