tasked with finding $400 million in cost savings, unveiled proposals Friday to save money by reducing the number of parolees by 30,000 and the state’s prison inmate population by 8,000 by next summer.
SACRAMENTO – The California Department of Corrections and Rehabilitation (CDCR) announced today the intent to award a contract to EDS, an HP company, to begin a multimillion-dollar effort to automate and streamline offender data systems. The project, called the Strategic Offender Management System (SOMS), will consolidate existing databases and records and replace manual paper processes over a four year contract period. . . SOMS will replace more than 40 aging electronic and paper database systems, which are becoming increasingly difficult and costly to maintain. The system will contain an “Electronic C-file” for inmates and provide the opportunity for electronic data exchange–with Jails, Courts and the Office of Prison Healthcare Services.
Incidentally, it probably wouldn’t be a bad thing to similarly improve the criminal court database, too. Currently, the data is on several different silos, and is rather inaccurate, which, among other problems, also hinder the ability to do research work on CA courts.
Two interesting and seemingly unrelated events were reported on the news yesterday. The L.A. Times reported on the oral argument in the school strip search case. Here is the full text of the oral argument, and as can be seen from the Justice’s questions, suspicions and the War on Drugs played an important part in the courtroom discussion, as did concerns about the risks of over-the-counter drugs (the search in the case was conducted to find ibuprofen in the 13-year-old’s underwear). Two interesting examples from the transcript, which blur the distinction between drugs and pills:
JUSTICE SCALIA: Had it been the case that, as I recall, someone had — well, students were popping ibuprofen, weren’t they? MR. WRIGHT: Yes, Your Honor. JUSTICE SCALIA: I guess they might pop aspirin as well. I’m not aware that one gets a high on either one of those.
CHIEF JUSTICE ROBERTS: I’m sorry, your answer to me was they have to take it seriously. My question to you is, what is the administrator supposed to do? He sees a white pill; nobody can tell him what it is. Is he allowed at that point to search the undergarments or not? MR. O’NEIL: No. CHIEF JUSTICE ROBERTS: He’s not? MR. O’NEIL: He is not. CHIEF JUSTICE ROBERTS: Even if it turns out to be — you know, I don’t know, some very deadly drug? MR. O’NEIL: Mr. Chief Justice, we do not believe that this Court should get in the business of deciding that searches are okay for, for example, heroin, but not okay for cocaine. CHIEF JUSTICE ROBERTS: That’s what you just told us we should do, in answer to Justice Alito’s question. MR. O’NEIL: No, I simply — the point was simply that if there is some common understanding that a type of contraband is generally secreted in a certain way, and the example is crack, and there is a known understanding that crack can be hidden in that way, that that would be relevant to the totality of the circumstances. JUSTICE SOUTER: And I don’t see why your answer might not be different if, under the Chief Justice’s question, he didn’t know it was ibuprofen. All he knew was that it was a white pill. He’s not a pharmacologist, he doesn’t know what’s in it. Wouldn’t the reasonableness of the — wouldn’t the scope of reasonable search at least potentially be greater for the undifferentiated white pill than for the known ibuprofen?
Kochly wrote that he had long taken pride in saying that his office could do “more with less.”
“Unfortunately, we have now reached a point where we cannot maintain the status quo,” he said. “We will definitely be doing ‘less with less’ as a prosecution agency.”
The changes are needed to help eliminate a $1.9 million budget deficit in the district attorney’s office for this fiscal year. By month’s end, six deputy district attorneys will be laid off, and 11 more will have to be let go by the end of the year, Kochly said.
Criminal justice policy is made in many sites, on many levels, and by a variety of actors. It is not a well-planned, intentional conspiracy. As David Garland wrote in The Culture of Control, the “history of the present”, as he calls it, is characterized mainly by punitive measures, but there are also counterexamples. Note that the counterexample in this case has to do with costs (humonetarianism raising its head once more), and that in the oral argument the Justices are not preoccupied with the issue of costs.
Today’s recommendation: the 2007 PBS documentary Prison Town, USA, describing the impact of two large correctional facilities on the economy and community of Susanville. Yet another wake-up call to those who still believe that the correctional crisis is not everyone’s problem.
A key assumption underlying the discourse of correctional policies has been that the ever-increasing sentences, changes in trial structure, and criminalization, represent the will of the public. This is a particularly strong argument in the case of California, since a substantial amount of our correctional reforms occur through voter initiatives. It’s probably time to ask ourselves whether the assumption that Californians are punitive, and desire these reforms, is true.
On its face, the assumption seems to be supported by some anecdotal evidence. In the last elections, Californians passed Proposition 9, which, in addition to strengthening the victim’s position in the criminal process, worsens the inmate’s position in parole hearings (by increasing pre-parole imprisonment periods and diminishing the scope of the right to counsel); while these particular provisions have not been incorporated yet into law, through Judge Karlton’s intervention, they were still elected as “the will of the people”. They also rejected Proposition 5, which promised drug treatment and various diversion options for non-violent drug offenders. Anecdotal evidence also seems to support an assumption of punitiveness; it is enough to glance at the comments at SFGate.com to be confronted with anger about crime, which translates itself into demands for more punitiveness. But is this really true? How does one systematically measure punitiveness? And, more importantly, how do we differentiate between public punitiveness and the initiative of lobbyists, interest groups, and politicians?
The first thing to ask ourselves is whether this is, indeed, a particularly punitive period in our history. While many influential thinkers, such as David Garland, Stanley Cohen, and Jonathan Simon, characterize our times as being increasingly punitive, others disagree. As Roger Matthews reminds us, there also have been examples to the contrary. Think, in the California context, of the recent developments regarding the possibility of decriminalizing marijuana, or on the considerations of incarceration options.
The next step is trying to figure out whether people are particularly punitive, and if so, which factors predict punitiveness. We don’t know much about the punitiveness of Californians in particular, but research conducted elsewhere in the States and in the world suggests that public punitiveness is an empirically complex issue.
Shadd Maruna and Anna King, who conducted a survey on the British public, found that factors such as concerns about the economy and the state of ‘the youth today’ account for a substantial proportion of the effect of actual crime concerns on punitiveness. On the other hand, crime-related factors, such as victimization experiences or anxieties about crime did not appear to predict punitiveness. Similar trends, connecting punitiveness with strong emotions or sentiments, were found by Devon Johnson, who used U.S. national survey data. Her work shows that anger about crime is a significant predictor of punitive attitudes, after controlling for other factors such as racial prejudice, fear of crime, causal attributions for criminal behavior, and political ideology. Similarly, in a national survey study, Sherwood Zimmerman, David van Alstyne and Christopher Dunn found considerably punitive trends; they then compared the hypothetical outcomes to a recent conviction cohort from New York State, and found that, had the public’s will been faithfully applied to actual convictions, the additional correctional costs would have been very high.
Emotion-driven opinions about punishment are, of course, particularly strong regarding issues like the death penalty. Mona Lynch’s study of pro-death penalty discourse on the internet finds that the death penalty is framed as a symbol of justice, a triumph of sorts of the good (the innocent victim) and the evil (the capital murderer). This essentialist perspective eliminates all consideration of costs, let along empathy for the offender.
Some studies, however, have found less punitive outcomes, particularly by tweaking the methodology of punitiveness surveys. Douglas Thomson and Anthony Ragona have critiqued standard punitiveness surveys, arguing that these generally do not ask respondents to consider contingenciessuch as offense circumstances, behavioral content of varioussentences, or fiscal cost differentials. This means that the public will necessarily appear to be more punitive than judges, because they are not faced with the full spectrum of judicial considerations, nor are they offered information about the relativefiscal costs of current and alternative sentencing practices.Thomson and Ragona, who conducted an Illinois survey incorporating issues of costs found that, on several dimensions,the public turned out to be less vengeful than typically portrayed in publicopinion poll and media accounts, notably in its openness to community sentences. I find this information particularly interesting, because it suggests, in the spirit of humonetarianism, that a discourse of scarcity has the potential to decrease public punitiveness. It is useful, in this context, to remember the rejection of Proposition 6, which suggested extremely punitive measures against juveniles and gang members; Prop 6 was mostly attacked for its high financial costs.
Neville Blampied and Elizabeth Kahan, who conducted a survey study in New Zealand, found creativity and openness to alternative punishments among community members asked about responses to juvenile noncompliance. The outcomes here may have been less punitive because of the case study, but they may also reflect cultural differences between the U.S. and New Zealand, which has been very open to juvenile justice reforms, and uses family group conferences almost to the exclusion of juvenile courts. The last important question is whether public punitiveness – if, indeed, it exists – is the reason for punitive policies. As Katherine Beckett argues in her beautiful book Making Crime Pay: Law and Order in Contemporary American Politics, these policies do not originate with the public. She carefully timelines punitive initiatives, demonstrating how public opinion is being swayed by politicians and the media. In states like California, where much public policy is made directly by the public, it is important to examine who stands behind punitive initiatives and how these campaigns are being run.
Some of the recent discussion of prison costs has to do with the expenses associated with running San Quentin’s Death Row. As some of you may recall, a planned expansion of Death Row, deemed costly, was killed by a bipartisan initiative last year. The struggle around the planned expansion occurred against the background of 30 years of litigation regarding conditions on Death Row.
Yesterday, the Chron reports, Judge William Alsup of the California District Court ended this lengthy era of court supervision, after ruling that the improvements made to Death Row were enough to satisfy constitutional requirements. The improvements included getting rid of dirty water and rodents.
The nation’s largest Death Row now houses 665 men. Only 10 inmates were held there when the suit was filed shortly after capital punishment was reinstated in California in 1977.
Fama said the inmates’ original complaints were dirty and decrepit housing and a system that classified all condemned prisoners as security risks who had to be confined to their cells nearly 24 hours a day.
The 1980 consent decree required prison officials to evaluate condemned inmates individually and allow the less-dangerous ones the same exercise time and visiting privileges as non-Death Row inmates. It also required improvements in food, medical care, cells, showers and access to a law library.
As the Death Row population multiplied, the state periodically sought to end court supervision. But a series of reports by judicially appointed monitors over the years found a variety of violations, including a flawed cell assignment system that led to violent clashes and disciplinary rules that sent offenders to “strip cells” wearing only a pair of shorts.
One thing that strikes me as interesting is that the improvement in conditions consists, in some respects, of making the Death Row experience more like “regular” life imprisonment. Does this reflect a realistic understanding that Death Row has become no more than a very lengthy imprisonment period, with a possible (but not certain) ending by execution? The time between sentencing and execution has gradually increased since the reinstatement of the death penalty in 1977. San Quentin Death Row currently houses 665 men; between 1977 and 2008, 14 men were executed. The recent trend we have documented, of cost-driven moratoria on the death penalty, is complicated by the costs of death penalty-related litigation (Brandon Garrett of Virginia Law School presented an interesting work on this, in its early stages, at the Conference for Empirical Legal Studies last year); one possible scenario is that, at some point, Death Row will quietly become a thing of the past, and conditions (as well as inmates) will be indistinguishable from those pertaining to life without parole.
This actually has a precedent; after the Roper v. Simmons decision, which rendered the death penalty for juveniles unconstitutional, all death sentences against juveniles were shifted to Life Without Parole (for an argument that Roper deems LWOP unconstitutional for juveniles, as well, check out what the good folks at the Sentencing Law and Policy Blog have to say). The cost argument may be supplemented by some studies that doubt the efficacy and humaneness of death by lethal injection. In any case, the improvement of conditions may make Death Row more akin to the general population prison, and may be an invisible step toward a CA moratorium that will go beyond a de facto lag in executions.
This New York Times piece from a couple of weeks ago highlights another aspect of humonetarianism: To cut costs, states close prisons down or switch to community programs. Here’s the “local interest” bit:
In California, where Gov. Arnold Schwarzenegger, a Republican, has called for $400 million to be cut from the state’s corrections budget, officials are seeking to remove low-level drug offenders from the parole supervision system and to provide them treatment options instead.
Like other states making such changes, California is led by a governor who long opposed such shifts in prison policies. But Mr. Schwarzenegger, as well as other leaders and lawmakers who are far more conservative, has come around to a view held by advocates of sentencing and prison reform that longer sentences do little to reduce recidivism among certain nonviolent criminals.
“In California we are out of room and we’re out of money,” said the state’s corrections secretary, Matthew Cate. “It may be time to take some of these steps that we should have taken long ago.”
But we are by no means the thriftiest state. Other states have been examining prisons to see whether they are efficient, and are closing them down. And other states are also reforming their sentencing laws, particularly minimum sentences for drug offenders. Many concede that the big waste of money is parole and are cutting down on supervision.
A few thoughts on some of the trends in the piece:
By closing down prisons and transporting people to other prisons, we may be saving costs, but we’re perpetuating the setup of prisons as far away gulags. A visit from one’s family becomes more unlikely if everyone is shipped to a facility far away.
The cuts, as Jennifer Steinhauer points out, go both ways. While treatment options are perceived to be cost-saving mechanisms, they need to defend their own funding. In emergency times, when short-term thinking is prevalent, lengthy project evaluation, examining declines in recidivism, may not be possible.
This is something I’ve already said regarding the Plata/Coleman decision: I am deeply concerned that mass release of prisoners with no job skills and little support by way of reentry programs is a self-defeating step, which, without overhauling other systems, will lead to their return to prison. This sort of thing will only work if parole is retooled as an instrument of rehabilitation and hope.
(image courtesy Stichting Institute for Medical Marijuana in the Netherlands, at medicalmarijuana.org)
The reemergence of the marijuana legalization debate, which we covered earlier this week, has been invigorated by San Francisco Supervisor Ross Mirkarimi’s legislative proposal, under which the City’s Department of Public Health would distribute pot through city clinics. The argument, as so many other criminal justice related arguments these days, has shades of humonetarianism:
“We’re spending much more money keeping marijuana underground, trying to hide a fact that is occurring all around us,” Mirkarimi said. “Now is the time to take responsibility for something we’ve deflected to others and to test our ability to take responsibility.”
What is the legal stauts of medical marijuana in California? This informational webpage from the Department of Public Health explains is quite plainly. One can obtain marijuana from a licensed dispensary using a medical marijuana ID card. The card can be obtained at San Francisco General Hospital (incidentally, where UCSF scientists working with HIV patients found them unharmed by medical marijuana use). It costs $103, and requires some medical paperwork, or “an original letter from a medical provider stating that you have a serious medical condition where the use of medical marijuana is appropriate”.
(image courtesy Contra Costa Health Services)
Forging the card is a criminal offense, but some anecdotal evidence I collected this week suggests there’s no incentive to forge; getting medical recommendations is very easy, and several physicians in the Bay Area make their living exclusively from such recommendations. The relationship between the physicians and the dispensaries are much less straightforward. Patients who come to obtain a recommendation are not told the locations of the dispensaries. Not that it is a big secret that requires being “in the know”: the cannabis club directory is online.
However, matters are complicated by the fact that federal authorities do not recognize SB 420, which created the dispensaries. Therefore, despite its legal (albeit quiet) status in California, and oversight by the city, the feds still can (and do) raid dispensaries occasionally. The question is, therefore, whether dispensing the drug through the municipality would discourage the feds from paying attention to the market.
Prior to the 1960s and 1970s, most research on procedural justice in the criminal justice system focused on the Supreme Court. This is still the case, to some extent, in law review articles, which focus on watershed Supreme Court decisions to the exclusion of the courts that handle the bulk of everyday criminal cases. In the late 1960s, this trend started to change. Several classic studies on lower courts, focusing on plea bargaining, charging decisions, and public defense work, were published, challenging traditional notions of what a day in the courtroom “should” look like, and bringing to the forefront commonplace processes and events that the constitutional discourse kept hidden. Some of these included Milton Hewmann’s groundbreaking study of plea bargaining, an underwhelmingly discussed phenomenon in light of its prevalence; David Sudnow’s anatomy of plea bargaining based on stereotypization of cases according to their conformity to ideal types of “normal crimes”, and Eisenstein and Jacob’s analysis of felony case disposition. A major contribution to this literature was the classic award-winner The Process Is the Punishment: Handling Cases in a Lower Criminal Court, by my teacher, mentor, and friend, Malcolm Feeley.
In the book, Feeley provides an anatomy of the Court of Common Pleas in New Haven, Connecticut, analyzing its workings and processes from an organizational perspective. He comes to a (then) startling conclusion: The vast majority of defendants plead guilty. Virtually everyone foregoes his or her right to a jury trial. Judges, prosecutors, and defense attorneys, are jaded and overworked. Defense attorneys find themselves engaging in social work, rather than legal work. And, most important, the system generates powerful organizational incentives that push defendants to plead guilty, just so that they can avoid the process itself. Despite the fact that most defendants were not sent to jail, but rather had to pay fines, the process was so byzantine, unfathomable, and unpleasant, that most defendants did everything they could to avoid it. The concern about criminal stigma stemming from conviction was not as significant an incentive to insist on a jury trial; most defendants (disproportionally black and poor back in the 1970s as well) already had criminal records, and it was the daunting court process that they aimed to avoid.
Feeley’s findings were not meant to be entirely generalizable to other lower court settings. In fact, one of his main points was that justice could differ from one microcosm to another, and that each county had its own procedural personality, affected by the relationship between the court, the prosecution, and the defense, local politics, and the perception of heavy caseloads. Nevertheless, the main argument highlighted an important piece of the plea puzzle: a lower criminal court is more of a Middle Eastern bazaar than a sterile supermarket with prices neatly marked by every offense.
What has changed in the thirty years since the publication of Feeley’s classic? A great deal – and not a lot. The picture in terms of plea bargaining has not changed. The vast majority of defendants in lower courts still plead guilty. As the Department of Justice reports, 97 percent of all felony convictions within a year were obtained through a guilty plea (there are no misdemeanor cases on file). California statistics are difficult to obtain; databases are siloed in a way that makes it tricky to generalize, but some preliminary (albeit dated) numbers are available from the CA Attorney General’s office, suggesting similar trends.
Since 1979, incentives for plea bargaining have grown. The rise of determinate sentencing and of punitive sentencing schemes such as the Three Strikes Law has shifted the bulk of discretion from judges and parole boards to the hands of legislators and prosecutors, putting more bargaining chips on the criminal justice table. Rather than bargaining the sentence, the parties routinely bargain the charge, as well as a plethora of other provisions, such as whether the offense will be “counted” as a strike. We know (from Jeanne Woodford’s talk at the conference, and from John Pfaff’s study) that the majority of prison inmates are in prison for a very short time; it is not the length of sentence, but rather the volume of incomers, that is overcrowding California prisons and jails. Many of these are the product of plea bargaining in order to avoid much longer sentences.
This leads us to one significant change from 1979: sentences have gone up. In that sense, these days, the punishment is also punishment. It is not just process avoidance that leads defendants to plead guilty, though it may play a part in their decisionmaking process. The existing of more chips on the table, underscored by the war on drugs and by growing concerns about sex offenders, provides the prosecution with unprecedented power to enhance a sentence in multiple ways, and while these are not always used, they certainly impact the negotiation process in important ways.
Another important development is the fact that some processes are less punitive than they used to be. Problem-solving courts, community courts, and other specialized institutions have sprung and changed the landscape of criminal justice. Also, therapeutic justice is back, albeit for a small portion of cases concerning drugs and mental health. While there may be coercive and problematic elements in these specialized processes as well, the experience is to a large extent more benign than in the chaos of an ordinary criminal court.
There are important indications that, since the late 1970s, public defense has become more prevalent, and its quality has improved in many jurisdictions. These encouraging developments may be dampened by the distubring scarcity of resources for public defense, which we highlighted elsewhere.
The atmosphere of nepotism and political dealings within the court, which Feeley carefully examines in the book, may also have changed. Perhaps, as argued in Benjamin Smith’s interesting post at the Center for Court Innovation blog, Changing the Court, lower courts have become less parochial in their internal bureaucracies. However, it seems to me that the impact of politics on the process has become more pronounced at the higher, policymaking level. The mechanism that many conference speakers (particularly Mark Leno and Jonathan Simon), according to which politicians cannot afford to be “soft on crime”, is hugely influential precisely because of the rising effect that legislative discretion has on the bargaining process.
Finally, we should keep in mind that observing lower courts is a change catalyst in itself. Much of the changes occurring in bargaining and sentencing policies has been affected by increased public attention to the courts’ inner workings. In that sense, the “starship Enterprise” of courtroom observers can never really follow the “Prime Directive“: paying more attention to hidden phenomena, and bringing them to light through high-quality research, is an important enterprise in generating change. Newer generations of scholars, which have been raised on Feeley’s work, are indebted to the groundbreaking work of the 1970s, which is still a model of classic meticulous ethnography, and which is a continuing inspiration for courtroom research.
The long discussion on regulating marijuana is back, as the Chronicle reports today. Except this time, true to the spirit of Humonetarianism, much of the discussion focuses on finances and costs.
Experts say an unprecedented confluence of factors might finally be driving a change on a topic once seen as politically too hot to handle.
Among them: the recession-fueled need for more public revenue, increased calls to redirect scarce law enforcement, court and prison resources, and a growing desire to declaw powerful and violent Mexican drug cartels. Also in the mix is a public opinion shift driven by a generation of Baby Boomers, combined with some new high-profile calls for legislation – including some well-known conservative voices joining with liberals.
Leading conservatives like former Secretary of State George Shultz and the late economist Milton Friedman years ago called for legalization and a change in the strategy in the war on drugs. This year mainstream pundits like Fox News’ Glenn Beck and CNN’s Jack Cafferty have publicly questioned the billions spent each year fighting the endless war against drugs and to suggest it now makes more financial and social sense to tax and regulate marijuana.
This is not a new discussion, of course. As some readers probably know, marijuana prohibition has not been with us forever. Scholars who have researched the history of drug criminalization, such as Troy Duster, trace it back to clashes between economic interests, as well as to demonization and oppression of minorities. In fact, the first U.S. law to criminalize drugs – the Harrison Narcotics Act of 1914 – focused on regulating taxation and licensing for drug purveyors and on protecting the medical profession, rather than on blanket prohibitions. Duster argues that it is no coincidence that substances used by middle-class whites, such as barbiturates, were left out of the criminalization frenzy, while marijuana (linked to Mexicans), heroin (linked to Blacks), and opiates (linked to the Chinese) became outlawed.
So, there’s nothing given, or immutable, about our prohibition of drugs. Well, is it a good idea? That is a very complex question, since we could think of quite a variety of legalizing/regulating regimes to implement. In their wonderful book Drug War Heresies, Rob MacCoun and Peter Reuter examine a series of drug policies from all over the world and show that each system has advantages and drawbacks. They also highlight the political and economic hurdles to implementing sensible drug policies. Another interesting resource is this cool and well-articulated economic analysis by Andrew Clark from DELTA, who argues that any cost/benefit based analysis of regulating the drug market has to take into account the importance we ascribe to externalities, such as crime and ill health. Jeffrey Miron from Boston University argues that decriminalization will have little impact on marijuana use, and believes that decriminalization might affect other legal provisions, such as eliminating or relaxing the reliance on drug testing to determine parole violations.
One of the things I like about the resurfacing of the marijuana regulation debate is that, probably for the first time, public discourse is attentive to the big picture. As became clear at the CCC conference, a major problem in addressing correctional policy is the disconnect between lawmaking and correctional implementation; lawmakers do not feel the harms and costs that are later born by those subjected to the correctional apparatus, and as humonetarians argue, by those picking up the tab. It’s nice that the prison overcrowding issue has made it to the forefront of the marijuana debate.
———————— *This it fascinating, complicated, messy, and merits discussion far beyond this framework.
That is the budget cut for CDCR. Today, CDCR Secretary Matthew Cate announced his plan to cope with the significant reduction in corrections budget. As reported on this morning’s Chron, Cate,
