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.

On Protesting, Rioting, and Fighting Nazis

It has been a week of rage and action, as decent people have been astounded by the government’s actions to oppress the vulnerable. The trauma of the inauguration was closely followed by a series of horrifying executive orders and a slew of appointments of unqualified billionaire bullies to important positions, where they will have the power to essentially obliterate the bottom rungs of the American socio-economic ladder.

Horrifying as all of this was, the worst from my perspective was the anti-Muslim travel ban, which has already derailed lives and broken families, with Jeff Sessions’ looming appointment coming in as a close second. This was a strong reminder that all criminal justice scholars and practitioners need to also have at least basic proficiency in immigration law, and I’m planning on filling the gaps in my own education and taking some courses.

I have spent my week in street protests, starting with our epic takeover of the San Francisco International Airport (SFO) over the weekend. The protest made me fall in love with my city all over again. I saw all of San Francisco–old and new, techie and artist and construction worker, parents and grandparents and children, come together in a way that can move mountains. I saw people being firm and effective, and at the same time unfailingly kind and nonviolent, even in the face of some aggression from impatient passengers. I saw lawyers receive the respect and gratitude they deserve. I saw police officers, including the tactical team, taking on difficult jobs and opting for nonviolence when they could have opted for much worse. I saw strangers being kind and generous toward each other. I saw one of the busiest airports in the United States grind to a complete halt–and a statement from airport management supporting “the members of the public who have so bravely taken a stand against this action by speaking publicly in our facilities.” I saw my friends and neighbors at their best, resisting the Neo-Nazi regime, coming together in solidarity for vulnerable and frightened people, and being both capable and reasonable in doing so. Mostly, I saw the light of basic goodness and dignity shine out of a thousand faces, and that gave me more than a modicum of hope about what lies ahead.

On Tuesday I was in Oakland, for the teddy bear protest against the appointment of Betsy DeVos. I am a product of public education, all the way through my Berkeley Ph.D., and am disheartened at the prospect of it being ruined and dismantled by a clueless billionaire. And yesterday, I was at UC Berkeley, protesting against the arrival of Milo Yiannopoulos, who was to address his Neo-Nazi supporters and, I presume, dehumanize women and people of color, as he tends to do. Later journalistic reports described “student violence” and “protesters throwing stuff and burning things.”

As in the case of prior demonstrations I have attended, I may have been lucky in that I left shortly after we were told that the talk was canceled. While I was there I saw no violence on the part of the protesters. What I *did* see was a handful of Yiannopoulos fans–one of them particularly vocal, in a fuzzy green beanie and a phone he kept shoving in the protesters’ faces–trying to goad the crowd into violence.

Since apparently things got a bit dicier after I left–though I think the reports in the media are fairly exaggerated–I feel I have to say something. What on earth would anyone expect with the combination of Nazi provocateurs and nineteen-year-olds, whose prefrontal cortex has yet to develop? Even the Supreme Court acknowledges that adolescents are less able to be restrained and controlled. Would anyone in their right mind expect a protest against Nazis at UC Berkeley to *not* get dicey?

To be clear: violence, at this stage, is not only unlawful: it is harmful and underproductive, not only because it taints us with the violence of the government but because it offers them the opportunity to act all offended. Case in point: last night’s protest caught the attention of our fascist-in-chief, who tweeted that he will withhold federal funding if there’s no “free speech.” He doesn’t know the meaning of the word, and has been hard at work dampening the free speech exercised by hundreds of thousands of people in the last week who rose up against him. But I think it is important to continue holding the moral high ground. When they go low… you know the rest.

And yet – my grandma’s cousin, Yehoshua Gold, fought the Nazis in the woods as a partisan guerrilla warrior in WWII. I find myself thinking about him a lot these days. Things are deteriorating fast, but I wonder, if and when they become as terrible as they were in WWII, whether I’m made of the same stuff that Uncle Yehoshua. I hope we don’t have to find out, and I hope that, if we do find out, we will all rise to the occasion.

We will prevail, and we will take our country back, and we will work hard and fix all the direct and collateral damage this administration has wrought.

Order Without Oppression: No Police Visibility at Women’s March

San Francisco’s City Hall was lit in pink yesterday as we, more than a hundred thousand residents, rose up to protest and march against the Trump Administration and to support civil rights. It was a powerful and encouraging experience.

San Francisco was not the only city in which huge crowds came together to protest what we fear might roll the course of progress decades back, and crowd scientists estimate that the numbers of protesters far exceeded the number of attendees at the inauguration itself.

Much has already been written, and will be written, about the positive energy of the march. I particularly appreciated the sentiment of unification: rather than carving injured identities and engaging in infighting, the left came together to support civil rights, equality, diversity, feminism, queer rights–all the things that have made our great city what it is. It gave me hope not only for a national movement to take our country back from reactionary fascists, but also for my own city, engaged in bitter conflict between old-timers and newcomers. For a few hours, we were all together, marching and chanting for what we believe in: that love and tolerance are what make a country great.

But as a criminologist, the most notable experience from yesterday’s march was the absence of visible law enforcement. More than 100,000 people got together, cramming some of the busiest streets in the city, and not one arrest took place. Not one expression of animosity by police. No visual police messaging to communicate that violations were expected.

I have written about protests and riots before, in the context of the protest gathering against Johannes Mehserle’s verdict. I very vividly remember arriving in downtown Oakland that day and being surrounded by helicopters, police vehicles, cops in riot gear. The messaging there was clear: people were expected to be violent and difficult and the officers were ready for them. The messaging at this march was the opposite. Even though the gathering had racial justice themes, and many of the walkers were people of color, the sense that the masses should be curbed and subdued was just not there. The only visible evidence of peacekeeping we saw were a few volunteers in colorful vests, but they were not vocal or dominant. The crowd controlled itself, and it did so beautifully and peacefully.

Apparently, this experience was not unique to San Francisco. No arrests in D.C., Los Angeles and other places. A handful of arrests in localized incidents the day before.

Cynics might say that the racial composition of the marchers and protesters might have something to do with police response. I think there’s a bigger truth behind that: events that promise to be peaceful, in which families march together with unifying messages, are perceived by law enforcement as being less threatening. This is not to say there aren’t legitimate law enforcement concerns at such events, starting with the obvious–making sure people are marching safely and not interfering with traffic–and continuing with the fear that someone will take advantage of the opportunity to kill and wound the crowd with explosives. I would not have resented calm and respectful police officers had they been there to engage in safety and protection, and I have no doubt that there *were* such officers, and that SFPD braced itself for a big undertaking. Somehow, to the extent that they were there, they were unseen and unfelt, and that was a very powerful experience.

Death Is Not a Victory: Dylann Roof and the Glorification of Hatred

Of all the people sentenced to death in the United States, Dylann Roof may be among the ones this planet will miss the least. He offered his North Carolina court and jurors no remorse or reflection for the vicious, pre-planned, racially-motivated murder of nine kind, generous people who welcomed him into their church with open hearts. And some of the statements I have heard from my friends on the left side of the map is that, while they “don’t believe in the death penalty,” this sentence offers some modicum of justice or vindication to black and brown people.

I couldn’t disagree more.

My perspective on this is likely skewed by the fact that I spent many of my formative years in a country in which the motivation of suicide bombers, who kill themselves along with innocent citizens–women, children, elderly people, folks of various ages, occupations, and walks of life–is a subject of daily debate. What we know for certain is that shahids acquire mythical notoriety after death, glorified in myths of heavenly rewards and propelling others to follow in their footsteps.

In that respect, I think Dylann Roof got exactly what he wanted from the criminal justice system. This is not a vindication of the Justice Department, as the New York Times argued yesterday. Sentencing a self-represented man to death after he deliberately refuses to mount an effective defense, and boasts of his murderous acts to the jury, is not a victory. It is a capitulation. It awards Roof his utmost wish: to become an unrepentant martyr for other murderous racists to worship and follow.

In my work on Yesterday’s Monsters, my book in progress, I look at correspondence between lifers and people on the outside, a small minority of which think that the heinous murders that landed their pen pals life without parole is “cool.” The subjects of my study have written books and articles and argued before the parole board that there is nothing they abhor more than these followers. But even though some like the attention, a living inmate is largely that: a curiosity. I am reminded of Charles Manson’s failed marriage, that petered out as a sick curiosity. No, a dead perverse hero is much better than a living, incarcerated one: a dead one lives on in glory in the twisted minds of his followers, while a living one is reduced to a dishonorable and diminished existence at the mercy of his jailers, marred and shrunk over time by age and sickness.

It is distressing to us, and especially to families of victims, when the state is manipulated into being lenient toward someone who is perceived to deserve punishment. I submit that it is far more distressing when the state is manipulated into being complicit in an act of violence so that its proposed victim, who orchestrates the violence, emerges as a victimized, lauded hero of “the system.” For that reason alone, if for no other, the death penalty should be abolished. Even, and perhaps especially, in cases such as Roof’s, in which it can only lead to the amplification and glorification of hatred.

Ganja in Trumpland: An Introduction

The campaigns for and against Prop. 64, the Adult Use of Marijuana Act, revolved around the minutiae of the proposition: Will the big guns get rich at the expense of mom-and-pop growers? Do we have to give away our medical marijuana cards and pay more for our pot? What do we do with impaired drivers?

It seems like pretty soon we’ll have more serious problems on our hands as a result of legalization. Trump’s planned nominee for Attorney General, Alabama senator Jeff Sessions, does not share the opinions espoused by reasonable, cost-minded Republicans about the harms of overcriminalization or the sensibility of a public health model for substance abuse. Instead, we will have to contend with a man whose acquaintances define as a “war on drugs dinosaur”, and who claims that good people don’t smoke marijuana.

(how do good people get their marijuana, then? Do they munch on edibles? Vape? Or maybe they smoke something else? What is it?)

The regime of state regulated-marijuana, as established by the Supreme Court in Gonzalez v. Raich (2005), means that Congress, despite its federal prohibition of marijuana, has not preempted the states from regulating it within their borders. On the other hand, it is perfectly permissible for the use of marijuana to be legal statewise and illegal vis-a-vis the federal government: after all, citizens can freely choose to obey both laws by not using cannabis. Granted, this reason was more upsetting with regard to the original plaintiffs in Raich, who suffered from debilitating medical conditions, than with regard to the prospective users of recreational marijuana in 2016. Still, it is a reminder that, while the State of California has decided to opt out of a criminal justice model, the feds can freely ignore Eric Holder and James Cole’s memos about federal restraint in enforcement.

In other ways, gentle reader, there is nothing to stop Jeff Sessions from taking away your pot.

The progressive and libertarian outcry against prospect of federal intervention in recently-legalizing states is understandable. The Trump victory makes the marijuana victory hollow. Federal law enforcement can make, and has in the past made, the lives of marijuana growers, sellers, and users impossible, even in states with lack or no enforcement of their own. And some of the outcomes of this contradiction are downright bizarre. For example, gun salespeople are not allowed to sell guns to anyone who is a “unlawful user and/or an addict of any controlled substance”–including medical marijuana, as the Department of Justice clarified in 2011. Technically speaking, this state of affairs is legally permissible, because Americans can comply with both legal systems by not using marijuana, in which case nothing can stop them from buying guns. But to some commentators this is inappropriate federal intervention in state affairs.

This little example is nothing compared to what we might see during the tenure of a man who finds moral fault in cannabis users: a renewal of the federal war on drugs, with its futility, noxious tactics and tragic outcomes–but this time, with the disturbing history of the Nixon and Reagan eras to school police departments and states in carceral expansion. In this grotesque carnival mirror caused by the election, blue states will now be the ones crying out for state rights.

When They Go Low, We Go High

ExpertFile is a service that allows the public to contact experts with queries. Today, as we’re all reeling from the results of this election, I received the following query from them:

Event Inquiry Details
Event Name: fuck you cunt
Event Location: going to hell
Event Date: 11/30/2016
Event Description: hope you crash and die
Message: “voting to end the long wait for death to the fucking killers… hope you are a victim of one of them someday… karma cunt….”
Contact Details
Name: Dead Victim
Organization:
City: San Francisco
State/Prov: CA
Country: US
Email: localcemetary@aol.com
Phone:
Website:
******

In the last few days, people with far less support and social advantage than me have been on the receiving end of slurs, insults, threats, and hate crimes. This is a piece of cake compared to what many good people have been exposed to because of what they believe, how they look, or who they love.

I will not stand for it. Decent people everywhere–of which there are many–will not stand for it.

I am resolved to respond to noxious, misogynistic, threatening messages by doubling down on my commitment to criminal justice reform, the end of capital punishment, and . When they go low, we go high.

A Horrible Setback to Criminal Justice Reform

Prop. 66 is not the first “speed up the death penalty” proposition to pass in the last few years. Florida’s similar “fix” was tossed out by the courts as unconstitutional just a few months ago, and let’s hope this one meets a similar end.

What got me out of bed and into the office on Wednesday was this interview on ABC News, in which I express grave concerns for the deterioration in the quality of justice with the passage of 66. Capital punishment attorneys know: you cannot resolve a death row case in five years, and you certainly can’t do it in Superior Court. You cannot provide people adequate representation without pouring even more money into an already costly process.

This, by the way, is why Prop. 62 was a decent application of the ballot process and 66 was not. In The Forms and Limits of Adjudication, Lon Fuller distinguishes between monocentric and polycentric problems. I think that 62 is easily of the former variety: a simple yes/no question. 66 has a lot of moving parts (and funding) that are difficult for voters to understand. Even among my students, who are considerably better legally informed than the average voter, there were a few people who voted yes on both propositions, perhaps thinking that they could live with a death penalty “fix” one way OR the other. But it is hard to consider the ramifications of creating an entire system of reviewing huge cases with enormous consequences in lower courts and hiring new lawyers en masse to represent them (with what money???).

But I want to say something also to the families of victims, like Ms. Loya, who is interviewed in the newsstory.

Ms. Loya, I am so, so sorry for your loss. What terrible grief you must feel every day. Losing a loved one so violently is such a traumatic experience, and dealing with endless litigation on the part of the killer must be gut-wrenching.

When I hear you on TV, I worry, because I have heard from other victim families that fighting to get people killed faster intensifies the pain, fills you with soul-destroying feelings of revenge, and could compound your suffering in that this proposition could become the instrument of grave injustice.

Among the people whose executions could be expedited by this new law are people who are innocent of the crimes they committed–such as Shujaa Graham and Paris Powell, innocent men who spent long years on death row before their exonerations, and whom I met campaigning against Prop. 66. And these people also have mothers, like you, who will live to see their sons die violently, like you.

It is so hard to think beyond your personal pain. But I am so concerned about all this additional and unnecessary suffering this will bring to other people, just like you. I can’t see how this adds up to a net good in the world.

I feel for you and it breaks my heart to see you feel your loss so keenly after so many years. And at the same time, so that others will not know such losses at the hand of their government, I will continue to fight for the repeal of the death penalty in my lifetime.

With Great Power Comes Great Responsibility

Wry Craigslist ad created in the aftermath of the Malheur takeover acquittal.

My first reaction upon hearing of the acquittal of the defendants involved in the armed takeover in Oregon was probably similar to yours, gentle reader: I saw no legal argument for acquittal and it was plain as day to me that what happened here was jury nullification (despite what this juror says here, I find myself incredulous that it was difficult to deduce intent from what transpired there.) It was a powerful reminder of the unchecked and untamed potential that lies beneath the legal structures we have built. The right to a jury of your peers also has a built-in, hidden-from-sight extension, which is the right to vie for the kind of peers who might be sympathetic to you even when the law is not.

The web is ablaze with cynical commentary and comparison memes, and arguments of white privilege. But what has happened here is no different–legally speaking–than what happens when people follow The Wire creator David Simon‘s call, or, for that matter, critical race theory scholar Paul Butler‘s call, to nullify in drug cases, or in cases involving defendants of color.

The constitutional trial rights we all have apply universally: there is no boilerplate section in the Bill of Rights that restricts them only to defendants and causes we like and support. This is, in part, why I opposed the ban on grand juries in police violence cases and signed a letter against Judge Persky’s recall: When we take away justice and discretion “only” in cases of defendants we dislike, like police officers or entitled frat boys, we shouldn’t be surprised when these rights disappear for defendants we do like and support.

Nullification is not a constitutional trial right, but it is an implicit power that comes with the secrecy of jury deliberations, their exemption from providing reasons for their decisions, and the inability to appeal acquittals in the U.S. criminal justice system. With great power comes great responsibility, and when we call for the use of this power for causes we believe in, it shouldn’t be too shocking that people who vastly disagree with us use the same power for causes they believe in.

So, is nullification the tool of armed white supremacists, lynchers, and antigovernment insurgents, or of racial justice protesters and war-on-drugs opponents? There’s no way to measure who uses it more, because jurors interviewed after trial are very unlikely to admit that they nullified. Everyone wants their decisions to be perceived as legitimate. Without actually knowing what happened in the jury room and inside the head of each juror, we can never know with absolute certainty–even when it seems obvious–whether they nullified, misunderstood the law, misunderstood the (often badly phrased) jury instructions, or any combination of these factors. We are also unlikely to be able to reproduce and measure this in mock jury experiments, because I think jurors nullify in cases that matter to them a lot emotionally, and experimental conditions will not produce that amount of passion and anguish. In the absence of data on this, we have to assume that juries do this, and keep in mind the knowledge that it can be used by anyone, for any goal, to support any political agenda.

The one thing to learn from this, I think, is that the outcome in highly political contested cases depends on the skills, science and juju that went into the jury selection process, more than on those that went into the trial–and that holds true for all of these cases, sympathetic and antipathetic alike. Which is an excellent reason for every lawyer, on either side of the adversarial process, to learn the art and science of voir dire.

Are You Against the Death Penalty? Good. Then Vote Against the Death Penalty.

It’s no big surprise that the Prop 62 campaign, which calls for the death penalty repeal, is working hard to build a coalition across political lines. Because of that, the campaign rhetoric understandably aims at reassuring undecided voters that, even with abolition, they will remain safe; and its two main arguments, the obscene costs ($150 million a year) and the risks of wrongful convictions, are arguments that should appeal to all of us, regardless of our political convictions. But lately I’ve been hearing from some folks on the very left edge of the political map–progressives and radicals–who are thinking of voting no on 62 for various progressive reasons. If you are one of these people, this blog post is addressed to you.

First of all, friend who cares about progressive causes and criminal justice reform: I hear you. I hear that you are frustrated because you need the system to change at a faster pace and that some provisions in these propositions aren’t exactly what you’d hope for, and that you are concerned that if we pass these it’ll stall further steps. I hear that the democratic process is not moving things far enough and soon enough for you. I hear that you are giving this a lot of thought and are genuinely concerned about aspects of the proposed reform. I believe you that your dilemma is real. I understand that you are trying to do what you think is best for people in vulnerable situations.

I hope you can hear me when I say that, when you tell me you might be voting to keep the death penalty in place, it really, really frightens me.

I am frightened because I’ve been thinking, writing, and speaking about criminal justice reform for twenty years, five as a practitioner and sixteen as an academic, and the one thing I learned is this: in criminal justice, the perfect is the enemy of the good. And I am really afraid that in our quest to attain a perfect criminal justice system we might opt out of a crucial step on the way to where we want to be.

Please allow me to address your concerns one by one.

“If we get rid of the death penalty, aren’t we entrenching life without parole? I think life without parole is horrible, and we are affirming it as the upper range of punishment.”

You feel that life without parole is a hopeless, soul-destroying punishment, which offers a person no prospect of ever seeing life outside prison. And you feel this is especially cruel for very young people (a big chunk of our prison population) who become incarcerated in their twenties and are looking at a very long stretch behind bars.

You know what? I agree with you. Life without parole is, indeed, an extreme form of punishment. Like you, I am committed to a struggle to bring a possibility of hope–an exit possibility–to any prison sentence.

Unfortunately, we can’t start our fight against life without parole until we win our fight against the death penalty, which is within reach. This is, unfortunately, how political reform works: incrementally, with bipartisan support, and with a big base of consensus.

I wish there were a critical mass of Californians of all political persuasions convinced that our criminal justice system needs to be immediately reformed. Not just at the edges, not just for nonviolent inmates, not just for juveniles, but for everyone. But that is not the world we live in. The political reality is that, in order to make change, incremental steps have to be taken. Remember same-sex marriage? That didn’t happen overnight. There were revolutionaries calling for marriage back in the seventies, when it was unthinkable. Then, the movement had to regroup, advocate for lesser protections (domestic partnerships, workplace protection). Yes, domestic partnership was less than marriage in important ways. But this is why public opinion changed, between the mid-1990s and the early 2010s. Incremental change is what led to the triumph of that movement. 

For an even more relevant example, see what is happening with juvenile justice. Life without parole for juveniles is horrible, right? And look at how close we are to eradicating it–because in 2005, in Roper v. Simmons (2005) the Supreme Court abolished the death penalty for juveniles. It was the first step in a long series of reforms. In Graham v. Florida (2010) the Supreme Court felt comfortable relying on the same arguments to abolish life without parole for nonhomicide crimes. In Miller v. Alabama (2012) the Supreme Court relied on that logic to abolish mandatory life without parole for all juveniles, and then felt comfortable making that ruling retroactive in Montgomery v. Louisiana (2016). We are now within striking distance of abolishing life without parole for juveniles. None of this would have been possible without Roper v. Simmons.

This is even truer for legislative/public campaigns than for judicial change. To make reform happen, we need wide public consensus–not just an agreement among progressives. We need our conservative and moderate friends to live with the new situation for a while, realize that the sky doesn’t fall if punishment is less extreme, and accustom themselves to the idea of further reform. A classic example is marijuana legalization. Recreational marijuana would not be on the ballot–within reach and polling great so far–if Californians of all persuasions didn’t have a chance to live with medical marijuana for years and realize that it was not the end of the world. Do you think we would have been here, at this point in time, if progressive voters had declined to vote for medical marijuana, claiming that limiting legalization to medical patients wasn’t good enough? Similarly, conservatives and centrists grew accustomed to same sex marriages because they lived with domestic partnerships. They will be willing to consider a reform of life without parole if and when they see that the death penalty was abolished and it didn’t lead to a rise in crime rates, a decline in public safety, or any other negative consequences. You and I already know that giving reformed, aging folks a chance at parole is also not a safety risk. But not everyone knows that, and we need our friends across the political map to agree with us. We can’t make change otherwise.

I’ve been studying criminal justice reforms for the last sixteen years. I have not seen a single criminal justice reform that sprang perfectly from nothing. Every change we’ve seen since 2008–and we’ve seen plenty, believe me–was the product of incremental, bipartisan reform. This will be no exception. We can’t get from A to Z skipping steps along the way. I know you’re ready for Z. So am I. But the people whose hearts and minds we have to change so that Z happens–and we can’t make it happen without them–need us to go through all the steps so that we can have a coalition. What we want won’t happen otherwise.

“We are not really executing people in California anyway, and the delays are lengthy, so our death penalty really is just life without parole, with or without an execution at the end. So what would abolition actually achieve?”


Our peculiar situation in California is that we have about 750 folks in limbo. We could execute them, but through litigation efforts and mobilization we’re trying to stall their executions. Being on death row, friend, is not the same as being in general populations. Folks on death row are also in solitary confinement, do not work, and do not have access to the social and educational opportunities available in general populations. Our death row is notoriously dilapidated.

Also, can you imagine living with the uncertainty of whether you’ll be executed by the state some day? Ernest Dwayne Jones couldn’t. And in Jones v. Chappell (2014), a conservative District Court judge from Orange County agreed with him. Based on sound research on the effects of uncertainty, and the horrible thing it is to live with the prospect of being killed by your fellow men, the judge found the death penalty unconstitutional. We didn’t win that fight, even though we tried very hard: the Attorney General decided to appeal, and the Ninth Circuit reversed for technical reasons. But the reasoning behind Jones is sound: it is very different to be a death row inmate than a lifer.

But let’s assume for a minute that these two experiences are comparable (after all, we always compare them to each other.) If you really can’t see that the death penalty is worse than life without parole, how about a tie breaker? We don’t like to talk much about savings in the progressive left–it’s an argument that some of us think is designed to appeal to centrists. But we’re talking about a lot of money here: $150 million a year, to be precise. If you really have no preference between the death penalty and life without parole, does this obscene waste of money not tip the scale in the repeal direction for you? Think about all the things you care about: education, health care, roads. Is it really a progressive move to keep something happening, in which you see no virtue, and spend this much on it when we could spend it on the things you care for?

Finally, I know you’d like to see the death penalty go away not only in California, but also in other places. You know where people on death row do get executed? In Texas, for example. Unfortunately, change in Texas is not going to spring to life, fully formed, out of nowhere. We have the biggest death row in the country and have been the vanguard of criminal justice innovation, for better and for worse. Determinate sentencing? Us. Enhancements? Us. The most punitive version of Three Strikes? Yup, we started that one, too. But we can use this power we have, as a huge and influential state, to make changes in other places as well. We adopted Realignment; we reformed Three Strikes; we passed Prop. 47. These things have a ripple effect in other states. We have to make the first step here. The death penalty doesn’t take the same shape in all states, but it is abhorrent in all of them. Reform in Texas begins here, with you.

“If we abolish the death penalty, aren’t we depriving people of valuable and free legal representation? Only death row inmates get two free lawyers paid for by the state, and that increases their odds of exoneration.”


It’s true: The California Constitution awards death row inmates two free attorneys to represent them in their appellate and habeas proceedings. But what does this mean in practice? We have hundreds of inmates on death row who are unrepresented and unable to benefit in any way from this constitutional provision.

As of August 2016, 46 inmates are awaiting appointment of both an appellate attorney and a habeas corpus attorney. 310 inmates have been appointed an appellate attorney, but are still awaiting appointment of a habeas corpus attorney. This is almost half of all death row inmates, and there are only 34 attorneys employed by the Habeas Corpus Resource Center. You could do what tough-on-crimes conservatives might do and vote yes on 66, but to actually close the huge representation gap we’d have to train and appoint 402 defense attorneys just for the cases now pending. This is a huge expense, and it would come with the added price tag of speedy proceedings that run the risk of executing innocent people. And that is something neither of us wants (I really hope you’re voting no on 66. It’s a horrible and draconian proposition.) So, if we’re staying with the existing situation, what guarantees of exoneration do we really have?

Ask Shujaa Graham, who spent 16 years in San Quentin for a crime he did not commit. Yes, he was exonerated at the end, but what a huge risk he ran while he was still there! Beyond the horrible conditions, the cruelty, the loneliness, the boredom–an innocent person on death row lives every hour or every day of his life with the fear that the miscarriage of justice that happened to him will be irreversible. For that matter, ask any of the 150 exonerees whether they’d trade what happened to them with a guarantee that they won’t be in a situation where the horrible wrong done to them can never be rectified.

“Hey, wasn’t there some survey of death row inmates four years ago where they said they preferred to keep the attorneys they have? Why would we oppose something that the inmates themselves support?”


Four years ago, indeed, the Chronicle published a survey with death row inmates who said something like this. But the Chronicle did not disclose the methodology of the survey, nor did it share the questions they were asked. How does one even conduct a valid survey on death row? And how do we know whether the people who asked the questions weren’t only those who are represented–and not the hundreds of people who wait, on average, 16 years to even get an attorney so they can begin the proceedings?

Of course we care what death row inmates think. And former death row inmates who have been exonerated have been aggressively campaigning against the death penalty and on behalf of Prop 62. Have you heard a single exoneree publicly praising his good luck in being sentenced to death? Maybe there’s a reason for that and we should listen to them.

You know who else is worth listening to? Lifers. I teach lifers in San Quentin and what I hear from them is uniform, wall-to-wall support of death penalty repeal. They think that the death penalty is a massive waste of resources. And, while they yearn for the day we fight against life without parole, they are relieved to be in general population, studying, working, and interacting with others, rather than on death row. Most importantly: they know that we are spending a lot of effort on a policy that affects only 750 people instead of focusing on the thousands of lifers out there. And they know that we can’t get to other penal reforms before we make this one happen. You want us to get to the business of reforming LWOP? Great, me too! Let’s repeal the death penalty so we can get there sooner – there are no shortcuts that don’t pass through death penalty repeal.

“Prop. 62 is mandating that the folks we commute to life without parole work and give money to victims. That’s forced labor and I don’t support that.”


I know how the concept of work in prison makes you feel. It’s a grim reminder of how, when we abolished slavery, we threw in a little exception: forced labor is allowed in prisons. It is something that we have come to abhor, because it means that our prison regime perpetuates, in a new guise, abhorrent forms of coercion and racial domination.

But abolishing labor in prisons is not on the ballot. Abolishing the death penalty is.

Some progressive voters bristle at the campaign’s emphasis on making lifers work to compensate victim families. You can be forgiven for mistakenly thinking that the proposition “creates forced labor.” But that is, simply, not factually true. Section 2700 of the Penal Code, which requires that inmates work, has existed for a very long time, and already applies to everyone on life without parole. Prop 62 doesn’t hasn’t invented anything new and does not change that section; it would merely apply to a few hundred more lifers–for the simple reason that they would now be lifers, not death row inmates.

The only modification that Prop. 62 would make is increasing to the maximum restitution withholding from wages (not family donations), from the 50% (which is already in effect) to 60%. Is objecting to an increase in victim restitution from wages really a progressive cause you feel proud to fight for? Considering the enormous change we can effect here, this is a fairly small matter to stand in the way.

Even if you are uncomfortable with this small increase in restitution, I want to remind you that it is not enough for confirmed progressives to vote Yes on 62. We have to have a majority of Californian voters, and that includes conservatives and centrists. It also includes families of victims that are campaigning against the death penalty. And one of the things that is a convincing argument for them–and not unreasonably so–is that the proposition addresses concerns about victims. Compromising on this point is part and parcel of getting things done in the political reality in which we live. And this is the world in which we have to vote.

“I’m against the initiative process. This, and other propositions, are a flawed feature of California lawmaking. I vote “no” in principle on all propositions.”


Friend, I hear you. Every election season it’s the same thing: money, deceptive ads, easily manipulated voters, a polarized state. Yes, this is a bad way to make a lot of decisions. For example, this is a bad way to create nuanced criminal justice reform.

But I want to ask you to really think about what’s at stake here. The legislature is not going to repeal the death penalty on its own. We know; we tried. Our governor (who is personally against the death penalty) is not going to unilaterally commute everyone’s sentences to life without parole. We know; we tried. Our courts cannot get rid of the death penalty. We know; we tried, and we came close, and we failed because of habeas technicalities.

The only one who can get rid of the death penalty in California is YOU.

And compared to other propositions, this one is actually fairly well suited to an initiative process: as opposed to, say, medical or recreational marijuana regimes, parole regimes, registration requirements, etc., death penalty repeal is a fairly simple question, which has a straightforward yes-or-no answer: repeal or retain. This is one of the least objectionable uses of the referendum method.

You have to decide: when you look back at this election, which of your values will you be more proud that you upheld: your concerns about direct democracy, or your opposition to the death penalty?

In Summary


Sometimes, with good intentions, we overthink things, and that leads us astray. Listen to your heart and your common sense. Are you against the death penalty? Good. So am I. For the reasons the campaign highlights, but also for all the traditional, good reasons to be against the death penalty: because it is barbaric, inhumane, risky, racially discriminatory, and obscenely expensive.

Are you against the death penalty? Then vote against the death penalty. 

Vote Yes on 62.