Reform and Unintended Consequences: The Case of Ban the Box

In early February, Malcolm Feeley won the President’s Award from Western Society of Criminology. It was a real treat to be able to recognize and reward, if only modestly, all he has been and done for me over the years with a mentorship award, and even more of a treat to hear him give a breakfast keynote titled The Failures of the Adversarial Process. In his talk, Malcolm revisited some of his arguments from Court Reform on Trial, and made the sobering observation that, where criminal justice reform is concerned, failure is the norm; it is the occasional success that should surprise us. Malcolm ascribes this to the structural/organizational context in which the reforms happen, and to the underpinnings of racism and hypercapitalism; according to him, the criminal process is in a constant state of market failure, and it’s only outside innovators that have to bail us out once in a while (seems like this is what this new PAC is trying to do.)

I was thinking about Malcolm’s wise words today, when I was invited to an event to support Ban the Box. As my regular readers probably recall, I’d been fighting for Ban the Box for a long time, until finding out in 2015, to my dismay, that it has had disastrous unintended consequences.

I was speaking at a conference in Sacramento when I ran into the good folks from the Urban Institute, whom no one would suspect of being cryptofascist double agents, and talked to them about this. When they mentioned the findings of this study I was beside myself with disillusionment and shock. Essentially, what they found is that, when criminal record information is unavailable to progressive employers, they tend to discriminate against young men of color–possibly because they see race as a proxy for criminal history (which, in itself, is sometimes used as a proxy for race. Sick, sad world.) In their words:

Research on ban the box has shown that it increases callback rates for people with criminal records (Agan and Starr 2016). Agan and Starr (2016) find that ban-the-box policies “effectively eliminate” the effect of having a criminal record on receiving a callback. Case studies from specific cities support these results, showing that hiring rates for people with criminal records increased after ban the box was implemented (Atkinson and Lockwood 2014; Berracasa et al. 2016). Additionally, ban the box as a social movement has drawn attention to the plight of people with criminal records and has increased awareness of the challenges they face beyond employment.

But recent research has concluded that ban the box also reduces the likelihood that employers call back or hire young black and Latino men (Agan and Starr 2016; Doleac and Hansen 2016). These findings suggest that when information about a person’s criminal history is not present, employers may make hiring decisions based on their perception of the likelihood that the applicant has a criminal history. Racism, harmful stereotypes, and disparities in contact with the justice system may heavily skew perceptions against young men of color.

Several other studies have found similar outcomes. So, I’m no longer on the Ban the Box bandwagon. But what should we do instead? The Urban Institute team runs us through some options and their pros and cons:

My grim conclusion, inspired by Malcolm’s talk, is that as long as we have the nexus race-crime so embedded in the conversation (read Khalil Gibran Muhammad’s book to figure out where this came from) nothing we try to devise to avoid discrimination will get rid of it entirely.

The Courage to Reach Out: Why Addressing Violent Criminals Is Better for All of Us

The classic approach toward violent crime that scares us has been to ratchet up sentencing. But draconian sentences do not function well as deterrents of crime. General deterrence is a function of three factors: the severity of the sentence, the certainty of getting caught, and the speed at which justice is administered. The Achilles’ heel of this trifecta is the certainty factor. It is often very difficult to get witnesses to come forward and testify against perpetrators of violent crime, and this is partly why a third of U.S. homicides remain unsolved. Often, the police and prosecution has some notion of the perpetrator’s identity, but not enough evidence to bring charges against him or her. Even the most aggressive prosecution or the most severe sentences won’t result in getting the person off the street, and certainly not of making us safer (though they will, and do, result in clogging our prisons.) And of course, the goal is not (or should not be) putting people behind bars for incarceration’s sake. We all benefit so much more if we prevent homicides from happening in the first place.

Which is why the City of Sacramento is ready to try something new. Following the example of the City of Richmond, Sacramento is investing in a new initiative, known as Advance Peace.

Advance Peace focuses specifically on gun violence, and on the evidence-backed premise that, typically, a small number of perpetrators are responsible for a considerable percentage of the gun violence in a city. This is true for both Richmond and Sacramento: in the latter, the police estimate that there are fifty easily identified people who commit most gun crimes in the city–even though there isn’t necessarily evidence against them that would stick in court. The program consists of personalized, early intervention with these particular individuals, providing them with mentoring and opportunity, and diverting them away from gun violence. In the program’s words:

Advance Peace interrupts gun violence in American urban neighborhoods by providing transformational opportunities to young men involved in lethal firearm offenses and placing them in a high-touch, personalized fellowship.

By working with and supporting a targeted group of individuals at the core of gun hostilities, Advance Peace bridges the gap between anti-violence programming and a hard-to-reach population at the center of violence in urban areas, thus breaking the cycle of gun hostilities and altering the trajectory of these men’s lives.

Advance Peace works with both public and community-based stakeholders to establish responsive community-driven strategies that achieve high-impact outcomes for those caught in the cycle of urban gun violence.

The Richmond program, which has been in place since 2010, has been a success. Between 2010 and 2016, homicides in Richmond fell 60% (77% according to NPR, but there’s been a little uptick in 2017). This is more than twice–and almost thrice–the decline that other cities have seen. In addition, out of the 84 fellows who started the program in 2010, 94% are alive, 83% have had no gun injuries or hospitalization, and 77% have not been suspected of any gun activity. This is remarkable given the program’s focus specifically on people who were active participants in the gun violence scene in the city.

Sacramento is hoping to see the same benefits, but the program is not without its detractors. As usual, the objection is not scientific but moral/political: the program involves stipends to the perpetrators, and “rewarding bad boys” is a controversial move when the money could be used to reward “good boys.”

Municipalities always operate in an environment of limited resources. Giving money to suspected gun criminals takes it away from education, infrastructure, and health care, which feels understandably unfair. But when allocating money, “what’s fair” should not be the only, or perhaps even the dominant consideration. Where would the money spent on this program make us safer?

To answer this, we need to widen our perspective to understand a debate raging in the last few years about the causes of incarceration. The story we have told ourselves for decades–I’m guilty of this as well–places the blame for mass incarceration on the racialized war on drugs. According to this story, popularized by Michelle Alexander to the point that it’s difficult to argue with laypeople about it, Nixon and Reagan targeted people of color, incarcerating them for nonviolent offenses for unconscionably long periods of time, leading to the explosion of prison population and especially to its racial distribution.

But recently, John Pfaff has drawn our attention to the fact that the bulk of incarcerated people in America are doing time for violent crime. Adam Gopnik summarizes Pfaff’s argument as follows:

During the great wave of incarceration—generally thought to have begun around 1980, and cresting about three decades later—state prisons added something like a million inmates, with about “half that growth coming from locking up more people convicted of violence,” Pfaff calculates. Nonviolent drug offenses accounted for only around a fifth of the new incarcerations.

What’s more, many of the drug convictions were meant to be what Pfaff calls “pretextual attacks on violence.” Violent crimes that are associated with drug dealing are more difficult to prosecute than drug offenses themselves, which usually involve hard evidence rather than the testimony of witnesses. This argument sets off some suspicious-skeptical alarms, since it seems cousin to the idea that we might as well lock ’em up for drugs as for anything else, since, if we didn’t, “they” would be committing violent offenses anyway. “It is, of course, completely fair to debate the morality . . . of using drug charges to tackle underlying violence,” Pfaff observes, to his credit. He accepts that “blacks are systematically denied access to the more successful paths to economic stability,” and therefore “face systematically greater pressure to turn to other alternatives.” But he also makes a more complicated argument, following recent sociological research: it’s not that the prohibition of drugs attracts crime, which then produces violence; it’s that violence thrives among young men deprived of a faith in their own upward mobility, making drug dealing an attractive business. In plain English, young men without a way out of poverty turn to gangs, and gangs always turn to violence. Since efficient drug dealing is, by its illicit nature, likely to involve violence, those accustomed to violence are drawn to drug dealing. One sees the logic: Lucky Luciano and Al Capone weren’t ambitious street kids who chose bootlegging as a business, and were then compelled to become gangsters to pursue it, as in “Boardwalk Empire.” They were already cadet gangsters, who saw that their acquired skills lined up neatly with those demanded by bootlegging.

Pfaff’s conclusion from the data is that the responsibility for mass incarceration lies primarily with county prosecutors. The answer should, according to him, be a more parsimonious prosecutorial policy, avoiding overcharging even in violent offenses, which are, after all, not made of the same cloth. But what if instead of modifying prosecutorial policies after bad things happen we were to try and remedy the problem of lack of alternatives before the violence occurs?

This is exactly the rationale of programs like Advance Peace. By providing people who are at the very heart of violent behavior an opportunity to exit the violent world, we could provide more safety to more people, and at the same time target incarceration where it really matters.

To go down this path, we have to be courageous enough to understand that, ultimately, the city of Sacramento stands to benefit so much more from a reduction of violence–both in terms of preventing the violent incidents in the first place and in terms of reducing the costs of clogging the system with efforts to prosecute the targeted folks–than it would from the business-as-usual lock-’em-up policy. People who commit violent offenses are often caught for low-level drug offenses, and they will eventually leave prison more violent and less conducive to interventions than when they came in, and even if they are caught for homicide and placed in prison, we will all have to keep up the tab. If people do not commit crime to begin with, we all win. This may not be “fair”–to the extent that offering people opportunities that they’ve been deprived of their whole lives, pushing them to violence, is “unfair”–but it turns out to work better than the alternative.

I’m excited and happy to partner with the City of Sacramento to offer an expanded, data-rich version of this argument as a keynote speaker in their upcoming violence reduction summit. I hope to see many of you there.

“I Am Speaking to You Through the Record”: Charles Manson’s Last Parole Hearings

To whet your appetite, this is an excerpt from my book in progress, Yesterday’s Monsters, under contract with the University of California Press.

On November 19, 2017, Charles Manson died in prison. His death sparked renewed interest in the killings, as well as in the peculiar legal circumstances that led to the commutation of his sentence, from the death penalty to life with parole. Little attention, however, was paid to the implication of his commuted sentence: since 1978, Manson attended 11 parole hearings, and was denied parole in each and every one of them.
My book in progress, Yesterday’s Monsters (under contract with UC Press) analyzes close to 50 years’ worth of parole hearing transcripts for Manson and his disciples. To-date, only one of them, Steve Grogan, was released. The remaining members of the Manson “family” have been repeatedly denied parole. Most remarkably, Susan Atkins, who was already seriously and terminally ill at her last hearing to the point of being nonresponsive, was not released on account of posting a risk to the community.
Yesterday’s Monsters analyzes the parole hearing and shows it to be an intricately choreographed spectacle, with a given structure, specific terms and buzzwords, and expectations as to the inmate’s performance. Time after time, most defendants in the case show up for the hearings and are denied parole. The one exception was Manson himself, who to his death played his own game with the parole board, speaking off the record, providing strange statements, and refusing to go along with the plan.
It would be easy to dismiss Manson’s behavior as a symptom of mental illness. While possible, this is only one facet of his behavior. It is especially revealing to see how the parole board attempted to deal with his last three parole hearings, to which Manson did not show up, and in which he did not cooperate with his representing attorneys.

***
1997 was the last year in which Manson attended his parole hearings. His 2002 hearing was held in the presence of his state-appointed attorney, Patrick Sparks. The Commissioner addressed Sparks as follows:
Mr. Patrick Sparks has been appointed by the State to represent Mr. Manson. Mr. Manson refused to meet with Mr. Sparks. Therefore, Mr. Sparks is at a substantial disadvantage and has indicated that he would like to be removed or dismissed from this case. Mr. Sparks, would you like to?
ATTORNEY SPARKS: That’s an accurate statement, and I’ll confirm that. That, in fact, Mr. Manson did not interview and I don’t believe that my participation at this hearing would facilitate his parole at this time.[1]
As a consequence, the Board officially removed Mr. Sparks from the case and declared a recess,[2]after which the Commissioner made a statement about the way in which the committee would have respected Manson’s rights—had he been present:
Were Mr. Manson to appear today, he would not have been required to discuss the commitment offense with the Panel. He would not have been required to speak to the Panel. Nor would he be required to actually discuss any aspects at all with the Panel. Again, he has chosen not to appear at all. And had he — Because he’s refused to attend, and had he decided not to speak to us, we would not and will not hold that against him.[3]
The panel then proceeded to read the verbatim description of Manson’s crime, as they had done at the hearings at which he was prensent. They then quoted Manson as refusing to express remorse at his 1997 appearance, which was in 1997—in contrast to his verbatim statement, in which he actually challenged the court’s findings by claiming he had not given an order to kill the victims.[4]
The board tried to make sense of Manson’s file in his absence, without much success:
In a previous report, Mr. Manson stated that in terms of parole plans, he had none. He’s had a variety of responses to that question or that issue. At one point in 1992, he stated he wasn’t interested in paroling. He would be lost in our society, and his main concern was to be released to a general population setting in order to program. There are a number of letters in the file. There are a total of 80 signatures on a petition. The signatures all appear to come from people in England. There are 15 different form letters or individual letters in the file, all of these supporting release for Mr. Manson. And the letters are signed by people who seem to be scattered all over the United States, the 15 letters.[5]
By counterbalance, the police department had provided a letter as well, which cited the original crime and the “risk to the community” posed by Manson, but did not elucidate whether said risk was current, or stemmed from anything beyond the crimes themselves:
[The Commander Officer of the Robbery/Homicide division] writes that Mr. Manson was an active participant in the mutilation and murders of several persons in the Los Angeles area. Crimes committed by Mr. Manson were of such brutality and complete lack of humanity that it is clear Mr. Manson has no concern for human life. It is the opinion of the Los Angeles Police Department that the release of Mr. Manson will create considerable risk to the community and that his release is unequivocally contrary to the interests of society.
Commissioner Mackenberg recited Manson’s unhappy and unproductive prison experience and his disciplinary violations, concluding that—
[B]y and large he has not had a very happy time of it in the last five years. If it sounds like a woeful tale, it’s not because I’m trying to simply disrespect Mr. Manson, it appears that he has serious mental health issues. That they’re causing him some very real problems.[6]
Mackenberg’s summary is as much a failure of the California prison system as it is Manson’s:
The long and short of it is, is that it’s difficult to say a whole lot about the last five years other than that he seems to go back and forth between the Protective Housing Unit, Administrative Segregation, Security Housing, back to Protective Housing Unit. So that’s kind of like a sad circle of rounds in this institution. He doesn’t seem to benefit a whole lot from treatment inasmuch as he resists it so that he often refuses apparently to see the psychologist and doesn’t want to see psychiatrists and that it’s difficult to get him to do the things that they think he should do in order to forward his programs to be able to come to the Board at some point and say really, I ought to be able to go home.
Kay, the original prosecutor, again discusses Manson’s manipulations. He also provides, again, an inaccurate characterization of Manson’s legal position:
He has never understood why he was convicted for these murders because he always thought that if he got other people to commit the murders, then they could be convicted of the murders. But if he didn’t physically do it, then he couldn’t be convicted.[7]
As mentioned before, Manson claim was not that he could not be convicted without physical participation in the crime. His factual contention was that he had not ordered the others to kill the victims. But Kay hits the nail on the head with the following observation:
He knows that he’s never going to get paroled, and he’s just not going to go along with the program.[8]
Last to speak before Manson’s expected denial of parole was Debra Tate, who evinced enough familiarity with the parole board to say:
I’m a little disappointed that Mr. Manson chose not to show up today. However, in order not to waste any time, I also believe that Mr. Manson, for obvious reasons, should be denied parole for five years. I implore you to please give him the five years so that I don’t have to come and see you folks again so soon, although I love you dearly. He is totally unsuitable for release into society in my opinion, and I implore you to please keep him in so that society can have peace for at least five more 13 years.[9]
At his subsequent parole hearing in 2007, not only did Manson not show up, but he was unrepresented before the committee, and the Comissioner stated to the record the board’s intention to “do everything we can to ensure that his rights have not been violated.” She then stated Manson’s rights for the record, but this time, she did it more theatrically, as if narrating a hypothetical play in which Manson had showed up for his hearing, which makes his absence even more glaring:
[A]t this point I would have asked him did he review his Central File, did he get a timely notice of the hearing. It appeared that he did. He declined and refused to sign whether or not he was going to review his C-File, and that was done on January the 23rd 15 , 2007. And also there were no relevant documents that he had to produce. We would always ask that at this time as well. I would also ask him if he had – let him know that he had an additional right to be heard by an impartial Panel, and again, since he’s not here, I would assume he does not object to the Panel. I would also — the nextitem that I would ask him is — and let him know that he would not be required to either discuss his offense if he desires not to do so and we cannot hold that against him, but however, we do accept the finding of the court to be true.[10]
The absurdity of this play in absentia—not only of Manson, but of a representing attorney as well—is an illustration of Kay’s insight from the 2002 hearing: The board had come prepared to play under certain rules and Manson, by virtue of his absence, forced them into a role they did not intend. To compound matters, his lack of willingness to cooperate with his psychiatrist led to a diagnosis based on partial information—antisocial personality disorder and psychopathy.[11]
The panel then mentioned a support letter:
                       
We do have a support letter and it’s dated – it was received in the institution on January 24th 26 , 2007, but it’s undated and it’s from a Carol Gallego. . .  She indicated she was only 13 years old when the inmate came to prison and she’s never met the man, but all she’s ever heard about and learned from is by books and news media, and then she wrote some things that she said that bothers her about the – his incarceration, and she indicated that she thinks it’s time to set this innocent man free. “Please consider initiating a further investigation” and I won’t go into all of the details of what was said about and the five items that she brought up in this support letter for the inmate.[12]
The prosecutor, Sequeira, provided a standard narrative closely following the demonic Bugliosi story, very similarly to Kay before him. Notably, and by contrast to the police and the prosecution. Debra Tate actually provided an argument for current risk posed by the inmate:
I would like it to go on the record that I disagree with some of the things read in the Central File. I believe that Mr. Manson has one very prolific talent and that talent is to pick sociopaths. That is the same reason in which he should never be granted any kind of a release. There are still people that are influenced by him. They grow in numbers every day via the Internet, and in regards to that, anyone of these people being released poses a great public safety issue.[13]
The board’s frustration with having had to play Manson’s game was evident in their decision as well:
We’d like to also go on record to state that we feel that Mr. Manson should be attending these hearings, these suitability hearings, in order for the Panel to be able to discuss and clarify any discrepancies that may be in his record, that he constantly said that this or that is not here, and we could also question him on some of the various conflicting versions that he’s given as relationship to the crimes.[14]
Manson’s last parole hearing, which he also did not attend, was held in 2012. However, this time Manson was represented by a new attorney, Dejon Lewis, who by contrast to Sparks tried to provide representation for the client who did not cooperate with him[15], by making both legal and factual points. Notably, Commissioner Peck, perhaps frustrated with Manson’s absence, chose to address him in the second person throughout the hearing, as if to force engagement on him:
And Mr. Manson, I’m speaking to you through the record now. We have reviewed your Central File. We’ve reviewed your prior transcripts, and nothing that happens here today is going to change the court findings. We’re not here to retry your case. We’re going to accept as true the findings of the court. We’re here for the sole purpose of determining your suitability for parole.[16]
As the hearing began, Lewis presented a legal objection to the timing of the parole hearings. As mentioned above, Marsy’s Law, an ostensibly pro-victim legislative initiative, increased the time between parole hearings to an initial 15 years, and it was applied to cases of people serving current prison terms, even if they had originally been incarcerated long before its enactment. Lewis made the argument that the law should not apply retroactively, and Peck summarily dismissed his argument.[17]
Peck proceeded to quote Manson’s interview with the prison psychiatrist:
“I am special. I am not like the average inmate. I have put five people in the grave. I have been in prison most of my life. I am a very dangerous man.” Further in the psychological assessment, he stated, “I don’t care about the Board’s opinion. I don’t care about your opinion.”[18]
As Peck reviewed the psyhicatrist’s diagnosis, he read this observation:
Clinically, while limited, this indicates some degree of improved insight into his violent and anti-social behavior considering his previous pattern of denial of wrongdoing.[19]
Once more, a solitary support letter was presented on Manson’s behalf, which Peck leaned toward dismissing as vague:
There is a letter by an individual named John E. Ashcraft that says he’s Mr. Manson’s best friend and there’s — I really don’t know if this is even a legitimate letter or not a legitimate letter. But it basically says that he says that Mr. Manson told him that he, that once he did not want to get out on parole, but now he wants to. And if he can, then he wants to live — then Mr. Ashcraft is offering residence in Fullerton. But so that, frankly, is the only support letter that I have, unless you have, do you have any other support letters?[20]
But Lewis refused to go along with this dismissal and actually argued to the point:
I will say, though, Mr. Manson is 77 years old. He doesn’t need to have a job at this time. He can draw Social Security at this point if he was to get a parole date, and him living with Mr. Ashcraft would cover those parole plans, I think. I’m not going to say they’re viable, because we haven’t or the Board hasn’t backed that letter up by, you know, investigating Mr. Ashcraft and what not, but it seems to me if he is genuine in offering him a place to live that that would be an adequate parole plan for a gentleman who is 77 years old.[21]
As in previous hearings, the police department sent a letter opposing the release, and the prosecutor, Sequeira, expressed similar sentiments, echoing, as before, Bugliosi’s demonic narrative. Quoting Manson’s words to his psychiatrist, Sequeira essentially asked the board to give Manson what he asked for:
In his own words, Manson is telling this Board and essentially the public as well, that he is dangerous and he is completely  unsuitable for parole.[22]
It is here that Lewis embarks on the thankless job of doing the most with what he has, which was nearly nothing. He recounted Manson’s absolute lack of collaboration with prison authorities and failure to achieve any educational or vocational milestones.
My client has not accomplished any of these milestones. Why is the question? Why? Yesterday, while watching CNN, I listened to Mark Geragos, Henry Byers and Alan Dershowitz just destroy the two former attorneys for George Zimmerman in the Trayvon Martin case for commenting on Mr. Zimmerman’s mental state. They were of the opinion that this was unprofessional behavior for attorneys to do so. Well, my client has been tried and convicted and has served over 30 years in prison, and I think that’s the difference between the two cases from what I’m about to say. Mr. Manson has not even remotely accomplished any minimal milestones that the Board would like to see an inmate who they are considering parole to do. I cannot purport to you that Mr. Manson has a mental disorder causing his utter failure in the rehabilitation process. I’m not a mental health professional, and I have never met him, and several psychologists say that he has no Axis I severe mental disorder. But one thing is clear to me is that corrections or rehabilitation has not taken place here for Mr. Manson. It is my belief that Mr. Manson could benefit from hospitalization, given his age and his need for more geriatric care as he increases in age. He would also receive excellent psycho-social support in that type of environment. Mr. Manson needs hospitalization, not further incarceration in a state prison of this type.[23]
This was a remarkably generous and therapeutic observation on Lewis’ part, but it received little attention or sympathy from the board.  Peck read the decision to deny parole, again by addressing Manson in the second person through the record. He mentioned that “you chose not to be with us today”, and continued:
We have not yet, in any of our documents, seen any indication of remorse. We have no indication that you have any kind of insight into the causative factors of the life crime. You have absolutely no parole plans. You had a significant drug problem while you were in society, and this drug problem is still unresolved. You’ve been involved in absolutely no rehabilitative programs or self-help to address your substance abuse history. I think the statement that you made to the psychologist or the psychiatrist in the Comprehensive Risk Assessment told us a lot of what we needed to know, and I want to make sure I get this right so I’m just going to read what it, what you told Dr. Reed, and you said, “I am special. I am not like the average inmate. I have put five people in the grave. I’ve been in prison most of my life. I am a very dangerous man.” And this Panel agrees with that statement.[24]
What can we learn from these last three hearings? They reveal some of the embarrassment and absurdity of an institutional engagement with someone who flat-out rejects the rules of engagement. We see different approaches: a withdrawal of one of the attorneys versus a noble effort on the part of another attorney to make legal and factual arguments on behalf of his noncooperative client. We see pro-forma, shortened discussions, versus theatrical efforts to involve, as it were, the absent inmate in his own parole proceeding. For the most part, these hearings stand in stark contrast to the vast majority of inmates—not only the remaining inmates in this case—who make a valiant effort to play the game. It would be easy (and perhaps correct) to conclude that the board made the right call, that Manson was unsuitable for parole, and that the system “won.” But in denying him parole, the board merely came to the predetermined conclusion that Manson set up for it—remaining in control of others till the end of his life.


[1] Manson 2002, 1.
[2] Manson 2002, 2.
[3] Manson 2002, 7.
[4] Manson 2002, 14-15.
[5] Manson 2002, 19.
[6] Manson 2002, 20.
[7] Manson 2002, 30.
[8] Manson 2002, 30.
[9] Manson 2002, 36.
[10] Manson 2007, 6.
[11] Manson 2007, 17-18.
[12] Manson 2007, 20-21.
[13] Manson 2007, 29.
[14] Manson 2007, 34-35.
[15] Lewis explains that Manson had refused to come out of the cell and discuss the case with him at his visit, 30 days prior to the hearing. Manson 2012, 8-9.
[16] Manson 2012, 7.
[17] Manson 2012, 11.
[18] Manson 2012, 17.
[19] Manson 2012, 18,
[20] Manson 2012, 21.
[21] Manson 2012, 21-22.
[22] Manson 2012, 34.
[23] Manson 2012, 35-36.
[24] Manson 2012, 42.

Are CA Prisons Really Less Crowded?

Hello, Dear Readers,

It’s been a while since I updated this blog, and it’s time for an update as well as a substantive post. I am hard at work trying to finish the manuscript of Yesterday’s Monsters, my new book, which examines the parole hearings of the Manson Family–and am doing so as the new mom of a (delightful) infant, so my days are packed! In addition, I became interested in a variety of topics beyond California corrections, as this administration provides us daily reminders of how bad things can be if we don’t actively stand guard on our civil rights. Local readers probably know I’ve been appearing on TV and on the radio several times a week discussing immigration reform, the Mueller investigation, various excesses and civil rights abuses, and the possibilities and implications of an impeachment campaign. I also find that my opinions on various issues, ranging from the #metoo cultural moment to state support for parenting, exceed the boundaries of our topic, and am therefore hesitant to share them here. Would love to hear thoughts in the comments.

In the meantime, I received a fascinating email from our reader Nick Jones, who has taken an interest in population counts in CA prisons. As our readers recall, under the Plata decision, CDCR was under obligation to reduce the population in CA prisons to 137.5% capacity, and complied with the order. But things are, apparently, not what they seem.

CDCR publishes its monthly population report here, but the format they use does not allow for any sort of manipulation or statistical testing. Nick very graciously, out of his curiosity and the goodness of his heart, created an online tool to parse out the data, and we now have a .csv file containing the population since 1996, broken down by prison. Nick is offering the file freely to me and you under a digital commons license and you can find it here. Thank you, Nick!

Analyzing the data brought Nick to a disturbing conclusion. Yes, technically the system as a whole is not overcrowded beyond the Plata requirement. But the general number in all prisons combined hardly matters when the very reason for the Plata decision was that it is impossible to provide minimal medical treatment when there’s overcrowding at the individual prison level. And indeed, no less than 15 of California’s 33 correctional institutions are beyond the Plata crowding mandate:

It is interesting to note that among the least crowded prisons (hovering around 100% capacity) are both Pelican Bay and Corcoran, which might be attributed to the Ashker settlement. But does that mean that people who were previously held in the SHU are now held in general population in other institutions? Yes, holding people in solitary is inhumane, but how is holding them in overcrowded facilities a solution?

Alternatively, it might be the case that the 15 overcrowded institutions feature new entries. In which case, why are we so bad at judging where to send people based on capacity? Is there anything distinctive about the geography of the overcrowded prisons? Their security classification? I think this calls for deeper thinking, and will continue to work with the data and reflect on what this means.

If any prisoner rights litigators are reading this post, it seems to me that this result is NOT what the Supreme Court intended when it set the 137.5% upper limit in Plata. If anyone wants to talk about more research on this, and possibly legal recourse on behalf of the folks who are doing time in the top 15, please reach out to me via email.

Heat Wave in Corcoran: Holding Hostages, Talking Consumers

A couple of weeks ago, a friend sent me an email about a serious heat wave in Corcoran prison. According to inmates’ family members, the temperatures in the cells were unbearable, and many people needed urgent medical attention. Some of us participated in a “phone zap” to the warden’s office, and the mother of one of the inmates received a communication from her son, saying, “I don’t know what you did, but they finally came to check the temperature in my cell.”

This incident is a grim reminder of the unfortunate location of prisons in California in the central valley, which makes them vulnerable to ecological calamity. In the last few years, California towns have been ravaged by fires and floods, and we all rushed to help. But ordinary people, even when threatened by environmental disasters, have a choice: they can pick up a few personal belongings and leave. They can call and demand help. They can sometimes stay with friends. People who are locked up and at the mercy of the state cannot: they are at the mercy of the state. Moreover, inmates and their families are in a bind, as this thread on PrisonTalk shows. People are concerned to speak up, even when their loved ones drip sweat on the letters they send out and can’t concentrate and get hospitalized, because they fear retaliation.

In Cheap on Crime I talk about the shift from perceiving inmates as wards of the state to regarding them as economic burdens or consumers of services. The problem with the “consumer” language is that consumption is normally assumed to be voluntary. When someone pays for a room at a hotel, they do so by choice. When we demand that people pay for sleeping in a jail cell, a choice they did not make, they are not consumers. They are economic hostages.

The state has essentially put its inmates in an impossible situation: On one hand, nothing about their conditions of life is voluntary. On the other hand, all this talk of paying for “services rendered” creates a false equation between their situation and that of and people on the outside. Which means that, when something like the heat wave in Corcoran happens, the quintessential consumer weapon–boycott and complaint–doesn’t work nearly as well as it works on the outside. Put fans in the room, or else? or else, what? The families have no negotiation leverage. We made the phone calls because the situation was untenable, and we knew we were running a risk.

This is why inmate families cannot, and should not, carry all the burden in these situations: people from the outside who have clout and influence must get involved. This is hard, because despite everything that has happened in the last few years, prisons are still like the “other city” in China Mieville’s The City and the City: it’s all around us, and yet we don’t know it’s there. The only coverage I found of the horrible heat wave and its implications was on prison family chatrooms–no one in the mainstream media picked it up. I’ve been working on prison issues in California for more than ten years, and even I would not have known about it had a friend not forwarded me the email from the families. What is it going to take for us to say–as a united front, and regardless of political opinion or criminal justice worldview–that, no matter what bad thing someone might have done twenty-five years ago, we cannot keep a human being in a cage in a 114-degree-heat without providing some form of air conditioning or ventilation? What on earth would be “soft on crime” about saying that?

Getting the prison to care about the heat wave was an important first step. But we absolutely must do better.

Book Review: 23/7 by Keramet Reiter

It’s somewhat encouraging to read Keramet Reiter’s book 23/7 in 2017, after two hunger strikes in solitary confinement and dramatic changes in solitary placement policies. Indeed, those of you who followed this blog in 2011 and 2013 remember that the list of demands made by the hunger strikers opened a window into one of our most shameful penal practices: indeterminate segregation, complete with physical and mental health neglects, social deprivations on an unimaginable scale, and a deeply problematic regime for leaving solitary (which Reiter referred to elsewhere as “parole, snitch, or die.”) A prisoner-led resistance organization, organized under impossible conditions, yielded a class action lawsuit that resulted in a settlement agreement that shifted the grounds for isolation from status and gang assumptions to behavior and created less harmful alternatives.

Reiter’s book, therefore, could evoke some sentiments of smugness among readers: yes, things were bad, but we overcame them and our segregation regime is much more humane than it was. But I think the book teaches us lessons whose relevance goes far beyond solitary confinement, and here is some elaboration on three of those.

First, the history of long-term solitary confinement is a classic example of penal expansion. A regime is created explicitly for “the worst of the worst,” envisioning vicious serial killers from movies, quietly creeps out and starts applying to people with far less exotic criminal histories and less evidence of immediate dangerousness. This is a trend we see elsewhere in the criminal justice system as well: with sex offenders, we’ve seen concerns about risk creep beyond the few people who were serial predators to infect the entire universe of people convicted of sex offenses. With violent offenders, we’ve seen all of them painted with the same brushstroke, and serious hesitation about reforming sentencing for violent offenses (as opposed to people doing time for nonviolent drug offenses.) An idea of who is the worst infects our mind, and gradually the policies we fashioned to handle the worst expand to affect others that do not resemble this ideal type.

Second, good intentions can yield horrible consequences. The book tells the story of Madrid v. Gomez, a lawsuit involving intolerable cruelty to a solitary inmate, and reflects the horror of Judge Thelton Henderson as he was exposed to conditions in the facility. “This cannot be constitutional,” he is remembered to have said, and he placed the prison under federal supervision (it remained so until 2011.) But by allowing the basic regime to continue, albeit under supervision, solitary itself became normalized, and the concern is that our desensitization to this regime allowed it to last for so long.

Third, it is not always clear how cruelty manifests itself. Is being safe, away from violent people, and without sharing a cell with companions one didn’t choose, the ultimate good? Or do we find out, after decades, that isolation generates irrevocable damage to one’s mental health? Recall that the early penitentiary reformers thought that solitude was good for the soul, to the point that advocates of Eastern State and of Albany battled about the best way to isolate people. Sometimes it takes years to realize just how horrible a regime is.

The book leaves open several important issues. First, by ending its account before the Ashker compromise, it avoided the classic “happy end”, and it would be good to see future editions with an additional chapter on the lawsuit and settlement. And second, since solitary cells cannot be easily converted to other confinement uses, what is to become of them now? And what might be the conditions we need to worry about, which may lead to a repopulation of these cells?

The book is highly recommended, written in beautiful and lively language, and tells the story of the inmates’ struggle for minimal conditions with engaging realism and empathy.

Book Review: Mona Lynch’s Hard Bargains

Jeff Sessions’ career as Attorney General started exactly with what you would expect from him: a revocation of the Obama Administration’s commitment to end reliance on private prisons for domestic inmates and the promise to ramp up marijuana enforcement. Both of these are examples of this government’s effort to find the most reasonable, fiscally responsible, and decent thing that should be done and then do the exact opposite.

We know that private prisons in the federal system are not big players in the overall incarceration picture. The Obama Administration’s declaration that they would cease to rely on them seemed more a symbolic move than something that would actually make a difference (not that they could intervene in state incarceration matters anyway.) Moreover, throughout that period, private facilities were still used (and are still used) for incarceration of immigrants before deportation, and there was never any talk of stopping that practice.

We also hear the federal government arguing for a dinosaur-era approach to marijuana, featuring a new lie: that marijuana usage is related to opioid overdosing, which is unsupported by research and harkens back to the dark days of the Anslinger war on drugs in the 1920s.

These developments make Mona Lynch‘s new book, Hard Bargains, remarkably timely. In the book, Lynch conducts a careful and perceptive ethnography of three federal district courts: one in the Northeast, one in the Southeast, and one in the Southwest. Lynch is well aware that federal prosecutions are not the driving force behind mass incarceration, but she uses federal drug enforcement as an interesting laboratory for the study of prosecutorial discretion.

Indeed, the main takeaway from the book is the unhealthy combination of two seemingly contradictory factors: the existence of tough sentencing laws, which presumably bind discretion (albeit less so since 2005), and the existence of broad prosecutorial discretion, which allows them full use of these draconian sentencing provisions. On the back cover, Kate Stith, whose excellent book with Jose Cabranes Fear of Judging was a well-informed and passionate cry against sentencing guidelines,  interprets Lynch’s analysis as pointing to lack of discretion. I think the lack of discretion is only half of the problem. With the advent of extreme sentencing laws, how they are deployed is up to individual prosecutorial ideology, and as an outcome, a different culture of federal sentencing develops in the three different districts.

Not that any of these is particularly appetizing. Lynch’s account of the Northeast depicts a court that is captive in the hands of a zealous prosecutor on a mission to “rescue” people from themselves and from the streets, who basically wrangles minor drug cases out of the states’ hands and pushes them into the federal system, sometimes in violation of the Petite policy of refraining from double prosecution. In his enthusiasm to end the drug epidemic, he imposes lengthy and unreasonable restrictions on their freedom, which the court almost invariably approves. In the Southeast, there isn’t even a pretense of rehabilitation: an elderly judge delivers moralizing lectures to defendants on the receiving end of obscene, decades-long sentences for nonviolent drug crimes. And in the Southwest, marijuana backpackers–poor, undocumented immigrants carrying marijuana by foot as payment to their coyotes–are rounded up, summarily shifted to “flip flop court” for misdemeanor charges, where they are made to plead guilty in batches and march off to detention before deportation.

It’s difficult to figure out which of the three models is the most horrible. The variations confirm, though, that when outrageous mandatory minimums, unreasonable calculations of criminal histories, and breathtaking arbitrariness in terms of offense categories, come together, the problem is not, or at least not exclusively, lack of discretion. The problem is that a dazzling array of options, including very frightening and oppressive ones, is on the table, and prosecutors get to pick and choose which of these to deploy.

The extent of prosecutorial power here cannot be underrated. The publication of Hard Bargains coincides with the publication of John Pfaff’s Locked In, which looks at the unfettered discretion and power of county prosecutors (and which I’ll review in a future post). Lynch and Pfaff’s analyses are complementary.

As in her previous book Sunbelt Justice, Lynch is not only a meticulous and perceptive observer but also a master storyteller. The defendants, prosecutors, and judges come to life in her vignettes from court cases she witnessed. Her description of the poor, disenfranchised immigrants forced to plead guilty in batches is particularly disheartening (my students were in tears when I read this section aloud in class yesterday.) Lynch has a keen psychologist’s eye for personalities and motivations, and she realistically captures the ideologies and worldviews that make her characters tick.

It is horrifying to think of how this system, already bloated, draconian, and rotten in the Obama years, could wreak more havoc and destruction in Trumpistan, and the news from the last two days suggest at least two directions in which things could get even worse: reintroducing the profit mechanisms that drove private incarceration by improving these companies’ relationship with the feds, and inflicting the awful drug sentencing scheme on marijuana defendants to an even greater extent (with the obvious potential victims being the people at the bottom of the Trumpistani social ladder: poor immigrants from Mexico.) I dread to think that the horrors and inhumanities described by Lynch could be something we might come to miss in the years to come.

Who Is a “Violent Offender?” Amending Prop. 57 and Other Populist Adventures

In the last couple of years, several people–John Pfaff, Christopher Seeds, yours truly–have commented on an important feature of criminal justice reform: it consistently makes a distinction between “violent” and “nonviolent” inmates, ignoring the former and offering the latter early releases, parole, and enlightened sentencing changes. In this vein, Prop. 57, which passed by a great majority this November, offered an escape valve from excessive incarceration to people sentenced for nonviolent crimes (approximately 25,000 inmates in state prisons.)

But what constitutes a “violent crime” is under debate, and some CA lawmakers are under the impression that we have excluded some offenses from this category. They propose amending Prop. 57 to include dozens of offenses, which they perceive as “violent.”

This is a terrible, wasteful, and pointless proposal, and here’s why.

First, a person’s offense of arrest (or even offense of conviction) is no proxy as to the risk they might pose to the public. As Susan Turner and Julie Gerlinger found out, there is no significant correlation between the violence involved in an offense and the recidivism of the offender. This distinction we make is largely for optics and public palatability, and it doesn’t really address risk.

Second, if anything, the category we need to rethink is that of violent criminals, whose aggressive prosecution is the engine behind mass incarceration according to John Pfaff’s Locked In. As long as we continue to retrench our views about violent offender and perceive them as an indistinguishable mass, our correctional crisis will not be resolved.

Third, Prop. 57 does not offer automatic release. It offers the opportunity to appear before a parole board. Presumably the lawmakers proposing the change want us to be safe, right? Well, if the parole board is unconvinced that the person is safe to release, they can simply decline to release them.

Fourth, it’s important to understand what “early releases” mean. Over the years, CA sentencing laws have become a patchwork of draconian enhancements and additions. All Prop. 57 does is offer the person an opportunity to show rehabilitation BEFORE all the draconian additions kick in.

Finally, do these legislatures forget the importance of financial accountability? People who spend unconscionably long times in prison become old before their time, and ill, and therefore expensive.

I really hope this horrible idea crawls back to where it came from. In the last couple of months we’ve come to think of California as an island of reason and progress amidst the national catastrophe. Looks like we have to stand watch at the state capitol as well.

Sex Offenders Remain Most Reviled Category. Film at 11.

Thousands of people called Simon and Schuster in the last few weeks to ask them to cancel the lucrative book deal they offered self-styled libertarian “bad boy”, Milo Yiannopoulos. That there are things to loathe about his ideology should be fairly obvious to my readers–his sexism, racism, and even threats to people’s life and safety speak for themselves. Despite, and probably because, of the public uproar, S&S persisted in keeping the contract in place.

What eventually led to the book deal’s cancelation, as well as the cancelation of his CPAC participation, was his commentary on pedophilia. All around me, people are treating this outcome as good news.

A few folks have bitterly remarked on the fact that all of Yiannopoulos’ other transgressions were not sufficient to put him in political and commercial disfavor. I share the bitterness, but I also think it’s fairly naive; I am familiar enough with the book publishing business, and have seen enough of the current administration, to understand that any such controversy simply means more publicity and better business. More people clamoring to cancel the book deal directly translate into more books sold. Controversy is good for commerce. I was one of the thousands of callers, but did so reluctantly, for precisely this reason.

The other part of the bitter equation is a bit more difficult to see through the lens of our own biases, and that is the broad consensus, shared apparently by conservatives and progressives alike, that anyone perceived as reaching out to pariahs should become a pariah by association. As Chrysanthi Leon explains in Sex Fiends, Perverts, and Pedophiles, one of the marked trends in our treatment of sex offenders in the last few decades has been to lump everyone into the same reviled group, even though there are many distinctive and different categories of sex offenders, and even though sexually deviant propensities do not necessarily translate into sexually transgressive behavior that victimizes others.

This dangerous focus on pedophiles is a distraction from the fact that most sex crimes against children are perpetrated by someone known to the child–a family member or a friend of the family. And unsurprisingly, it is precisely these crimes that go underreported. We tend to confuse pedophilia (the transgressive propensity) with sexual molestation (the transgressive behavior) because of availability bias: the people whom we know as pedophiles are familiar to us because they were caught. Not all child molesters are pedophiliacs, and not all pedophiliacs are child molesters. If anything, our attitude of revulsion and ostracism against pedophiliacs is what, perversely, might lead some of them to act out their fantasies.

Since the Yiannopoulos affair ended up working in “our” favor (whoever “our” refers to), people are less likely to examine and critique the perniciousness of our treatment of pedophiles, and far less likely to see how this vast consensus stands in the way of people’s rehabilitation and therapy. They are also less likely to examine another pernicious aspect of this: that Yiannopoulous happens to be gay is going to lump him, in the eyes of a considerable part of the population, with the pedophiles he was presumably supporting. Even if you don’t find that you can extend sympathy to someone who cannot help their proclivities (even though they absolutely can refrain from acting on those proclivities), you might feel less sanguine about this whole situation when you consider that one of its unfortunate outcomes is that it will solidify, for some conservatives and centrists, the link between gay people and child molestation, which we have worked for so many decades to overcome.

The publisher’s decision in this case shows not only that controversy sells, but that biases and ostracism are alive and well. I find it a pyrrhic victory.