Foster v. Chatman and the Limits of the Sayable

This morning, the Supreme Court decided Foster v. Chatman, a case involving race considerations in jury selection proceedings in Georgia.

There are two types of challenges that the prosecution and the defense may use to disqualify prospective jurors from the panel: for cause challenges, in case there’s evidence that the prospective juror is biased and might not be able to decide the case fairly, and a limited number of peremptory challenges, which either side can use for no express reason at all. There is one limitation on the use of peremptories: under a 1986 Supreme Court decision, Batson v. Kentucky, race is not an appropriate reason for a peremptory challenge (J.E.B. v. Alabama extended this decision to gender.)

In cases in which a party suspects that the other party is disqualifying jurors due to their race or gender, that party needs to prove a prima facie case that there is a systematic pattern of disqualification. If successful, the ball moves to the other party’s court, and they have to provide a race-neutral (or gender-neutral) reason for the disqualification. The reason need not be a good one; after all, if there were a good reason they could have used a for-cause challenge. It just needs to be unrelated to race or gender. Then, the court has to decide whether the challenges were race or gender based.

Foster, an African-American man, was charged with the sexual assault and murder of a 79-year-old white woman. The prosecution, which under Georgia law has ten peremptory challenges, used nine of them, and four of those were used to strike all four black prospective jurors. Foster immediately lodged a Batson challenge, which the court rejected. And here is where things get dicey.

At the time of trial, the prosecutors provided various race-neutral reasons for their use of peremptory challenges, relying partly on their perception that some of the black jurors were hesitant about the death penalty (which was on the table, given the severity of Foster’s crime.) However, on appeal Foster was able to produce the papers on which the prosecutors scribbled notes for themselves. You can see a section of one of those at the top of these post. The prosecutors marked black jurors with a “b” next to their name. In one occasion, a prosecutor scribbled, “no black church” next to a juror’s name. The author of those “b” letters and other comments could not be ascertained, but it had to be someone in the prosecutor’s office.

The Supreme Court decision analyzes carefully the race-neutral reasons the prosecutor provides, and shows that these were pretextual. Chief Justice Roberts’ method of analysis is to compare the black jurors to white counterparts on the panel who had similar circumstances and, yet, were not disqualified. In the Opinion of the Court, he therefore finds these reasons pretextual, “reek[ing] of afterthought”, or in short: a mere coverup for the real reasons for the disqualification: race, the reason expressly prohibited in Batson.

From a doctrinal perspective, the decision in Foster is the correct one. I have no doubt in my mind that they got the facts completely right. There is a clear contradiction between the reasons the prosecutors proffered for the disqualifications and the reasons that their paperwork clearly suggests. Their complicated race-neutral explanations easily fall apart when comparing jurors to each other. The court’s thorough analysis is a great example for why we need federal review of state practices: federal courts are removed from the judicial and legal climate on the states, and this is especially important in the context of racially controversial proceedings.

It’s also a decision that supports solid values, and one that heralds back to the reason the death penalty was temporarily abolished in Furman v. Georgia in 1972: jury selection and trial processes designed to disfavor African American defendants.

And yet, I’m left feeling very uneasy about the lessons prosecutors might learn from Foster. There’s no reason to pretend, or be facetious, about consistent social science findings, which confirm again and again that people’s demographics–including their race and gender–correlate significantly with their criminal justice perspectives. In experimental settings, when confronted with incidents of police brutality, race is a significant predictor of whether prospective jurors support the police or the suspect.  In mock jury experiments, white male jurors significantly and disproportionately sentence black defendants to death, and influence other jurors to do the same. According to Gallup data, men support the death penalty significantly more than women. With race, the differences are even more stark: whites support the death penalty 75 to 24, whereas blacks oppose it 49 to 44. I could cite dozens, if not hundreds, of studies coming to the same conclusions.

This shouldn’t come as a big shocker to anyone. The reason race is influential in forming criminal justice opinions is the racialized nature of criminal justice itself, its history as a system of racial domination, and its massively disparate impact based on race. Some might not like Paul Butler’s prescription to fellow African-American jurors to nullify in every case involving race, but at least he’s honest about the fact that many folks see our system of incarceration as the battlefront in race war–and with substantial justification.

So what is really going on? Prosecutors, defense attorneys, and judges, all know what social science clearly tells them: that racial identity, and racialized life experiences, are one important and influential way in which people form opinions about the world. They will not excise this piece of information from their memory. What they have learned this morning from the Supreme Court is that they need to find better ways to hide what they know. Indeed, post-Foster, we probably won’t see better race-neutral explanations; we just won’t see racial notations on papers, and whatever texts the prosecutors might send each other under the table will be deleted before discovery proceedings find what’s there. Maybe the prosecution will recur to various real or perceived proxies for race (neighborhood, income, family structure), and maybe, as is increasingly the case, professional trial consulting firms and software will come up with some corporatespeak or sciencespeak that will appear to be racially neutral. Because that’s what we do every time a word becomes offensive and unsayable: we put it through the laundromat and it comes out worded differently, within the realm of the sayable, and the discrimination creeps underground.

This is even more depressing considering that the legal system itself has a massively ambivalent approach to the social science truth that demographics impact opinions. Under Taylor v. Louisiana, when the legal process excludes a distinctive social group (again, the clearest cases are race and gender), we don’t like this, and the court says that we lose a “distinctive flavor” or a special perspective. In that context, we’re perfectly comfortable admitting that a person’s experiences–including her race and gender–might impact the way she sees a criminal justice issue. But when the day comes to pick the actual jury, when lawyers draw the exact same conclusion, and use it in a partisan fashion, we get upset and would like them to do a better job pretending that they’re not doing that. The difference is that blocking groups of people from the venire and disqualifying individuals, whom you can presumably question to detect bias, are two different types of enterprise. And yet, how much can you possibly learn about a stranger’s inner life and worldview in open court?

The bottom line: this decision, while correct and certainly better than the opposite, is a mere band-aid on a problem that is intractable. I cannot see, in the current climate or in any future version of it, a time in which people’s racial identity will not be inexorably linked to their criminal justice opinions. Teaching prosecutors to do a better job hiding these considerations from view does not make them less racially motivated; they’ll keep their opinions, which happen to be aligned with scientific findings, and become so good at covering their tracks that post-Foster defendants will have a difficult time uncovering them. Holding our nose doesn’t make something smell better; it just helps better disguise the smell. If the current presidential campaign teaches us anything, it’s that hiding our ugly racism problem under the rug, in the realm of the unsayable, has done little to improve racial equality in the United States. What we’re seeing now, when Trump makes the unsayable sayable, is merely the ugly truths that were there all along.

The Ninth Circuit: The Feds are Responsible for the Health of Inmates in Privately-Managed Prison

Petitioner Richard Nuwintore with his attorneys,
Ian Wallach and Jason Feldman, after their Ninth Circuit victory

Today the Ninth Circuit decided Edison and Nuwintore v. U.S.–two cases involving the government’s responsibility for the valley fever epidemic at Taft, a federal prison located in Kern County. Taft is owned by the U.S. government but operated by the GEO Group, the second largest private prison company in the country.

Gregory Edison and Richard Nuwintore were sent to Taft without warning about the dangers of valley fever. The disease, also known as coccidiodomycosis, has a severe variation that disproportionally manifests in African American patients. Both Edison and Nuwintore fell ill; Nuwintore, who has been released, is now treated under Obamacare, and Edison is being released soon and will also receive care under Obamacare. The condition is chronic and can make people too sick to work.

Is the United States responsible for their illness? The federal government tried to argue that, under the independent contractor exception to the Federal Tort Claims Act, it cannot be held responsible for the actions of a private contractor. Today, the Ninth Circuit found that, due to the government’s special responsibility for the plaintiffs (as their jailer), the exception does not apply and the government is liable. I had the great pleasure to correspond with Ian Wallach of Feldman and Wallach, who told me a bit more about the case:

Walk me through the ownership/operation structure of Taft. I understand that Taft is the only federal facility which is owned by the Government and operated by a private contractor. Why is this arrangement so rare?

Taft is presently owned by the USA, who contracted with Management and Training Corporation back in 2007 to operate the facility.  I don’t know why the arrangement is so rare.  It did create some novel issues with the application of the independent contractor exception.  Colleagues have wondered if it is because of the valley fever issue.  It may sound like a conspiracy theory, but there are some legitimate concerns.  The USA recognized the cocci (another word for valley fever, short for coccidiodomycosis) problem potentially in 1999, and knew some would get ill, and perhaps die.  And the USA has less liability if someone else is operating the facility, even though the USA sends people there.  And the facility is, for unknown reasons, primarily a pre-deportation facility.  That means that people facing low terms, or people about to be deported, are held there.  If they get sick, and are deported, there is not much practical legal recourse available.  Worse than that — there isn’t much access to medical care.  This is why we know of only one fatality from valley fever at Taft, but there may be many more.

Given Taft’s unique status as government-owned and privately operated, would the government’s responsibility in this case extend to private prisons in which the facility is both owned and operated by private contractors? How much government involvement should create responsibility and prevail over the independent contractor exception?

Sure.  As to the failure to warn claim.  And the negligent implementation of policy claim — if the USA developed and implemented policy.  And if the USA reserved control over any aspect of the facility — as it did here with structural changes.

The test, as adopted by the Court, is “is there an independent basis for liability?”

If yes, then the claim should stand. As to your second questions, people have brought challenges, in other contexts, to the independent contractor exception, asserting that the USA asserted so much control that it didn’t really delegate the duties at issue.  I have some charts with summaries of cases on this issue I prepared for use in the oral argument (which can be seen here).  I should clean them up before circulating them, and today has been busy, but let me know if I should send them along.  The standard was too high for us to meet, so we didn’t make that argument on appeal (we did below).  And we had some independent bases for liability, which we felt was the right way to go.

Should we be concerned about a potential incentive for the federal government to distance itself from inmates and shift any potential liabilities on the shoulders of private contractors?

Absolutely.  And that may be what happened here.  Plus privatization of prisons is messy.  I understand that there is a private prison in Ohio that successfully petitioned to control parole hearings (and even here, parol boards can consider reports by an inmate’s prison in determining parole).  And these corporations have a financial incentive for parole to be denied.  That’s flesh-peddling.

This case involved a federal privatized facility, but as we know, state facilities, which are public, are often public only by name, and much of the health care in California state prisons is privatized. Does today’s decision shed any light on questions of liability in this context?

Only to the extent that if you can identify a breach of a separate and distinct duty, and get around any immunity, then your claim should proceed. Today’s case was about federal governmental immunity. This would not apply to private actors (although their attorneys have litigated that it does).

And California has separate immunities.  Which are awful.  In the class action we have, Jackson v. Brown, where 800 inmates need life-long care, and where 40 inmates died, all as a result of infections at Avenal and Pleasant Valley state prisons, the District Court dismissed the case arguing that qualified immunity protected everyone from 8th Amendment claims, because even if the conduct was “cruel and unusual”, there was no “clearly identified right” at issue.  We think it was the right to be housed in a safe facility, but the court claimed it was the right to be in a facility without an excessive amount of valley fever spores, determine by societal standards.  That is on appeal.

There is a great case from the Cal. Supreme Court — Giraldo v. Cal. Dep’t of Corrs. & Rehab., 85 Cal. Rptr. 3d 371 (2008), which we relied on and the 9th Circuit expanded upon in today’s decision, that spoke of the Jailer’s duty to inmates, and set forth a special relationship.  It’s a great read and a positive expression of the law.

As the sad facts in this case remind us, individuals of certain ethnicities are more prone to certain medical conditions; this is true for valley fever, and also for other diseases and chronic conditions. Would this create an incentive for private prison contractors to refuse inmates of certain ethnicities, because their healthcare would be more complicated or costly? And should we resist such bargaining with regulation?

I am not aware of any vehicle where this could occur.  A bidding process is set up to operate a facility, and the bidders know who will be housed there and what is apparently needed, and can request to transfer people away, but no one has to listen to that request.  In three other valley fever cases we have, the contractor argued that they had no say in who they accepted, and the injury was the delegation.  These cases (People v. Hammond, Sutton, and Aluya) were also dismissed on summary judgment — because the court bought it.  This is on appeal too (and you are beginning to see how Eastern District court respond to claims by inmates about valley fever.  Add that there are no attorney’s fees provisions, and these are exhausting mid-level tort cases, so few lawyers fight them.  Which is why these dangerous practices continue, as there is very little accountability).  Regulation is a great idea — but in the interim, I’ll keep suing.

Finally, a big part of today’s decision involved the government’s duty to warn inmates about the medical dangers involved in serving their prison term at Taft. But if inmates have no choice on where they are incarcerated, what lends this duty legal value?

The failure to warn deprived these individuals of four avenues of redress.  Had they been warned, they could have done the following:

  • Seek an administrative remedy to be housed elsewhere, before ever arriving at Taft.
  • Seek an administrative remedy the day they arrive, seeking transfer.  Most people are infected within the first few months of arrival, but if they are lucky, they could be transferred out before getting infected.
  • Change their lifestyle while there. This is largely a camp facility with tons of leisure time.  Which, if warned, would be better spent inside. 
  • And they can choose not to take certain jobs (like those that involve digging or gardening or any contact with soil).  They can wear N95 filtration masks if they wish.  

And these changes may greatly decrease their exposure.

The Ninth Circuit decision sheds an interesting light on the malleability of the public-private divide in the context of prison privatization. Congratulations to the plaintiffs and their attorneys, and wishes of good health to everyone impacted by the epidemic.

California June Elections: CCC Criminal Justice Endorsements

It’s that time again! Elections are afoot and CCC is here with criminal justice endorsements. Our thoughts about the candidates and proposals are limited to their criminal justice and corrections policies, and you obviously may have other considerations in mind. These summaries are here to be useful and informative to the extent that criminal justice concerns drive your vote.

Candidates for Office

President of the United States

Democratic Party: No Endorsement, slight preference for Bernie Sanders

Both Clinton and Sanders have spoken fairly little on criminal justice reform, and when they had it was mostly regarding the issues of stop-and-frisk and police-community relations in the context of Black Lives Matter. Predictably, they both toe the line here: police reform is necessary, racial discrimination is deplorable, and stop-and-frisk are ineffective. Who would actually impact criminal justice matters while in office is a different matter: police-community engagement happens overwhelmingly on the local level, and therefore any declarations on that front would have little impact on people on the ground. The Clinton campaign has done an admirable job apologizing for the 1994 Crime Bill, though its impact on increased punitiveness has been fairly small (again, given its federal scope: most criminal justice policy happens at the state and local level.) Sanders speaks of shutting down the private prison industry, but again, that’s a misleading perspective aimed at pandering to progressives–public prisons these days are public only by name, private prisons incarcerate a very small percentage of U.S. prisoners, and the parade of horribles in prison conditions does not suggest that private prisons are significantly worse than their public counterparts. The slight preference for Sanders comes from the fact that he opposes the death penalty (Clinton supports it), though the extent to which the U.S. President can bring about abolition is questionable. No matter how happy you might be with these folks on other matters, we will be pining for the Obama-Holder initiatives and for the bipartisan reform spirit they encouraged for several years to come.

Republican Party: No Endorsement

Trump is a massive nightmare from the criminal justice perspective. His xenophobic, inhumane positions on immigration alone should indicate the extent to which immigrants will be criminalized and detained with him in office. But the others are not much better. With Rick Perry and Jeb Bush out of the race–the only two signatories to Right on Crime, and the only two with solid records of prison closures–we are left with rabid old-skool punitive demagogues. Ted Cruz, who in 2010 seemed a sane voice for criminal justice reform and even co-sponsored legislation to mitigate the effects of the war on drugs, has since then changed his tune and is vocally critiquing President Obama for early releases and mandatory minimum relaxation. Jim Gilmore is a strong supporter of the death penalty, using florid and polarizing rhetoric in describing its appropriateness, and has declined to stay executions under truly horrid circumstances. John Kasich would have been a difficult choice on other policy matters, but in criminal justice he has a solid record of reforms in Ohio, reforming drug programs, closing down prisons, etc. There is still a lot of work to do in Ohio: overcrowding, pay-to-stay jails, and other scourges. But Kasich would have been the far lesser evil in this far-from-ideal roster. As things stand, there’s no winning on criminal justice matters with the Republican roster.

United States Senator: Kamala Harris, with some reservations

Kamala Harris is a smart, solid and thoughtful public servant and politician. Her book Smart on Crime shows an ability to think outside the box and her career as San Francisco D.A. was marked by a willingness to work with the Public Defender’s Office to introduce initiatives such as Clean Slate. As California Attorney General, Harris’ decision to appeal Jones v. Chappell was surprising and hurtful, especially given her personal opposition to the death penalty. Her enthusiasm for truancy courts also raises some questions about whether we are criminalizing people for a phenomenon mostly linked to poverty. But even a cursory glance at the other candidates’ statements clearly show her leaving every single one of them far behind in terms of experience, resourcefulness, and, to be honest, sheer literacy. She is our best choice.

United States Representative: Jackie Speier

Speier is running unopposed, but I would pick her out of a hundred candidates. Her unwavering commitment to human rights and her work to expose and eradicate sexual assault in the military are admirable and important, and she has represented us very well. No reservations whatsoever.

Member of the State Assembly, District 19: Phil Ting

Ting hasn’t done a whole lot in the field of criminal justice, but he is responsible for an excellent and well-balanced gun control bill, which introduces the possibility of a “gun violence restraining order” for folks found by courts to be a danger to themselves and others. It’s a sensible balance between Second Amendment rights and the protection of lives. I’ve tried, in vain, to find Taylor’s positions on criminal justice matters. Ting is the incumbent, and seems to be widely endorsed on other grounds, so I doubt Taylor’s odds are that great anyway.

Member of the County Central Committee / Assembly District 19: Angela Alioto

Several good people in that roster, including firefighter and community organizer Keith Baraka, but Alioto has vast experience in San Francisco politics and is a compassionate advocate for the homeless–one of the few people that stood up to Care Not Cash. But you can make other good choices here.

Judge of the Superior Court, Office no. 7: Victor Hwang

All three candidates are qualified and thoughtful: Paul Henderson is an experienced prosecutor, Sigrid Irias is a civil litigator, and Hwang is a civil rights attorney. My preference for Hwang is mostly due to the fact that people with defense/civil rights backgrounds are underrepresented in the judiciary and some balance would be a good thing. Numerous endorsers agree.

State and Local Measures

Only one of these is directly related to criminal justice and that is–

Measure D: Yes, with reservations

Under Measure D, every incident within San Francisco involving a SFPD officer firing a gun that results in death or physical injury would be referred to the Office of Citizen Complaints. In general, more oversight is not a bad idea; sunlight is the best disinfectant, and police-community incidents in San Francisco, including the death of Alex Nieto, the racist and homophobic texting scandal, and others, suggest that there’s plenty of work to be done here. However, the measure comes with a $5 million price tag, and would add 6 investigators to an office that is already understaffed with 17 investigators. Some think that the measure is not enough, and the Office doesn’t have a reputation for thoroughness where police conduct is concerned. 

BREAKING NEWS: Parole Board Recommends Leslie Van Houten’s Release

In her book The Long Prison Journey of Leslie Van Houten, Karlene Faith provides a contextual account of the 1969 Tate-LaBianca murders by members of the notorious Manson Family. Faith tutored and befriended the Manson girls in prison shortly after their sentences were commuted, and provides a sympathetic and complex account of cult life, brainwashing, and sexual exploitation that places the heinous murders in context.

Faith, and others, like John Waters, have long argued that van Houten should be paroled.

Today, the California parole board agreed with them. For the first time since 1978, and forty-seven years after the commission of the murders, the board has recommended her release. The Los Angeles Times reports:

In prior bids for parole, Van Houten’s attorneys have characterized her as a model inmate who has obtained a college degree behind bars and has been active in self-help groups.

At a 2002 parole board hearing, Van Houten said she was “deeply ashamed” of what she had done, adding: “I take very seriously not just the murders, but what made me make myself available to someone like Manson.”


This quote from Van Houten represents the operating principle in California parole hearings: inmates can only prevail if they take full personal accountability. The board does not listen to contextual issues, and bringing out the cult context did not do any favors for Van Houten in her second trial in 1979 or at her parole hearings. Nor has the parole board been persuaded by her clean disciplinary record, academic degree, and rehabilitative work in prison groups. This decision represents a dramatic departure, and one which other long-term inmates, such as Patricia Krenwinkel, are surely watching closely. 

Now, all eyes are on the Governor’s office in Sacramento, where Governor Brown will have four months to decide whether to uphold the parole board’s decision. Brown’s office departed from the police during his predecessors’ tenure, by which no paroles were granted, and this contributed to the kind of optimism that Nancy Mullane describes in Life After Murder. But this optimism has not, so far, included members of the Manson family; most notably, Governor Brown has declined to parole 73-year-old Bruce Davis, whose clean prison record and advanced degrees led to a parole recommendation. Moreoever, Van Houten and the others face formidable opponents in the L.A. District Attorney’s office, who doggedly pursued their continued incarceration for more than forty years. Indeed, as the Los Angeles Times reports, 

Los Angeles County Dist. Atty. Jackie Lacey expressed disapproval after the decision was announced: “We disagree with the board’s decision and will evaluate how we plan to proceed.”

As some old-timer readers know, I’m currently working on a University of California Press book about the parole hearings of the Manson Family, and this development took me by surprise. I’ll be watching the Governor’s office closely for the next few months. It’ll sure be interesting.

Elections 2016: Does It Matter Who’s President?

As in every election cycle, CCC will be releasing endorsements once the propositions are on the ballot. We will also release an official endorsement for president for the Republican and Democratic primaries before June 3. But let’s stay focused on what actually matters: from the criminal justice perspective–from policing to incarceration and beyond–while it somewhat matters who the President of the United States will be, what happens in California matters a lot more.

As I argued in Cheap on Crime, 2008 was the first year in more than three decades in which criminal justice was not a fundamental part of the conversation. Obama and McCain, and in 2012 Obama and Romney, discussed the economy, immigration, and foreign policy (albeit to a lesser extent), but did not much address mass incarceration. With the advent of the financial crisis, and the state and local frantic scramble for funds, the political scene was a fertile Petri dish for bipartisan collaborations.

Indeed, the Obama administration did a lot of important things–some merely symbolic, some practical–to reverse the mass incarceration trend. They reduced the crack/powder cocaine disparity, scaled back mandatory minimums, proclaimed a federal intention to stay away from marijuana-legalizing states, made changes to solitary confinement in the federal system, created the conditions for the DEA to consider descheduling marijuana, and it is rumored that some death row pardons might be in the works. Obama’s personal decency, deep humanity and presidential demeanor contributed to the perception of this administration as more committed to fairness and moderation: among other things, he visited a federal prison in Oklahoma and spoke there of reform, and recently he had lunch with a group of nonviolent drug offenders whose sentences he commuted.

This is wonderful stuff, and the Obama administration should be lauded for all this. Sadly, none of the candidates on offer for 2016, with no exception, match his eloquence, dignity, integrity, and good sense. And indeed, even though the federal system is small in scope, it does have some impact on criminal justice reform.

According to the Bureau of Justice Statistics data, in 2014 there were 1,561,525 federal and state prisoners in the United States. 1,350,958 (86.5%) of them were held in state prisons and 210,567 (13.5%) in federal prisons. The 1% decline in prison population between 2013 and 2014 is attributable in part to the federal system, which saw a decline of 2.5%, compared to the 0.7% in the states. So, yes–some change can be made at the federal level, but its impact on the overall system is fairly limited.

An example that has recently been in the news is the confrontation between Bill Clinton, campaigning for his wife, and the Black Lives Matters activists. As John Pfaff argues in the New York Times, the 1994 Crime Bill–lauded by Clinton for its effects on public safety and excoriated by the activists for its effects on incarceration–did neither of these things. Pfaff writes:

We know the act didn’t cause mass incarceration: Prison populations started rising around 1974, and by 1994 they had roughly tripled, from 300,000 to over one million. It’s almost surely the case that America was the world’s largest jailer well before the act was passed. So if the act didn’t cause mass incarceration, the question becomes: Did it help continue to drive it? The answer, by and large, is no.

For one thing, most of the act’s provisions applied only to federal crimes. The tough new anti-gang laws, the expanded death-penalty provisions, the three-strikes laws: All applied only to those tried in federal court. And those, over all, are fairly minor players, with the federal prison system holding about only 13 percent of all prisoners. The other 87 percent of inmates are in state systems — and none of the act’s new criminal laws affected what happened in state systems.

But, the Act’s role in reducing crime was also marginal at best:

The most obvious thing to consider is that rates of violent crimes and property crime began to decline in 1992, three years before the law’s various provisions started going into effect. There’s no real perceptible change in the rate of that decline after the act. If you want to claim that the law did much to stop crime, this alone is a pretty significant problem. It’s not the only one, either.

For one thing, if the law had very little impact on prison populations (despite all the claims to the contrary), then it can’t take credit for however much crime was reduced by rising incarceration. And while the act authorized almost $10 billion over six years to hire up to 100,000 additional police officers — a provision that could have reduced crime — the data suggest any impact was fairly slight. (Once again, $10 billion seems like a lot, but local governments spent over $250 billion on policing during the six years the program was in effect.) All told, the policing program seems to have pushed crime rates down by perhaps an additional 1 percent. And a government review of the included assault-weapons ban found that its effect was minimal, if only because people shifted to non-assault weapons with large-capacity magazines.

There are important things that a conscientious federal administration can affect. It can make it easier for inmates to review their cases through habeas corpus, thus perhaps correcting some of the horrific miscarriages of justice in cases of exnoerees. It can make it easier to litigate prison conditions in federal courts. It can make important symbolic gains in the fight against the death penalty and the war on drugs.

But the bottom line is that, if you want to see criminal justice reform with substantial consequences, you are better off focusing on the state and local arena. Among the propositions battling for your attention are Justice That Works, a death penalty repeal measure; Gov. Brown’s initiative to abolish direct filing of juvenile cases in adult courts and to bring back some early releases; and an initiative to legalize marijuana in California. This is a remarkable year that could generate massive improvements where they matter, so don’t let the Drumpf circus throw off your focus.

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

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

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

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

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

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

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

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

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

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

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

More on Governor Brown’s Sentencing Initiative

This is a follow-up to my initial comments on the proposed initiative, titled The Public Safety and Rehabilitation Act of 2016,  I’ve had a chance to read the text, and also to peruse my rockstar colleague David Ball’s terrific comments.

There are basically two parts to the reform. One of them, which I covered in my previous commentary, is the move away from determinate sentencing and toward parole hearings–and as I said in my previous post, this is only a good thing insofar as we believe that parole commissioners will make better decisions than prosecutors. Granted, any decision that takes into account the particular individual’s situation is better than a rubber stamp based on severity of the offense, one’s rap sheet, and these two factors alone, but I have come to see the way parole boards exercise unfettered discretion regarding lifers as something to worry about, and would like to see some supervision and standards (not to mention more training) for commissioners.

The other part is the abolition of direct filing and placing the decision whether to try a juvenile as an adult in the hands of the court, not the prosecutor. As Ball points out, the numbers are pretty small, but for the individual, how discretion is applied could matter a great deal.

I remain overall optimistic, even enthusiastic, about this–but only to the extent that we’re not merely transferring the exercise of unfettered discretion from one actor to another without thinking about effective guidelines and supervision for its application.

BREAKING NEWS: Brown’s Proposed Sentencing Reform Pulls Us Back to the Future

Just two days after the Supreme Court’s encouraging decision in Montgomery v. Louisiana and President Obama’s announcement of a solitary confinement overhaul in the federal system, comes this astounding piece of news from Governor Brown:

Forty years after signing strict, fixed-term sentencing standards into law – and more than a decade after panning them as an “abysmal failure” – Gov. Jerry Brown on Wednesday proposed a ballot measure to make it easier for nonviolent offenders to gain parole.
In a rebuke of criminal enhancements that can dramatically extend prison terms, the measure would let felons convicted of nonviolent offenses seek parole after serving only their base sentences. It would also restructure what Brown called a “crazy quilt” of credits for good behavior, benefiting prisoners who demonstrate evidence of rehabilitation. 

The initiative language would also undo provisions of Proposition 21, the measure approved by voters in 2000 that allows prosecutors rather than judges to decide when teenagers are tried as adults. Brown will need valid signatures from 585,407 registered voters to qualify the measure for the November ballot. 

Brown, announcing the measure in a conference call with reporters, said the “determinate sentencing” law he signed when he was governor before “had unintended consequences.” 

“Unintended consequences” is right. The original pioneering California move in the late 1970s to determinate sentencing was a bipartisan collaboration between conservatives, who were concerned that light sentences amounted to coddling offenders, and progressives, who were concerned about the arbitrariness of parole powers and about its disparate impact on poor people and minorities. The last forty years in California, if seven years’ worth of posts on this blog haven’t made it clear, have been a very, very bad idea.

“And one of the key unintended consequences was the removal of incentives for inmates to improve themselves,” he said, “because they had a certain date and there was nothing in their control that would give them a reward for turning their lives around.”
Though his measure would not change sentencing standards, Brown said “it does recognize the virtue of having a certain measure of indeterminacy in the prison system.”
“The driver of individual incentive, recognizing that there are credits to be earned and there’s parole to be attained, is quite a driver,” he said. 

The announcement of the initiative was the first specific sign of how Brown plans to involve himself in the November ballot measure campaigns. The fourth-term governor holds a campaign war chest of about $24 million.

Asked if he would finance the initiative, Brown said he will do “whatever it takes to get this done.” 

Brown will enjoy a relatively favorable electorate, with high turnout for a presidential election typically benefiting Democratic politicians and their causes. 

California voters in recent years have demonstrated a willingness to move away from tough-on-crime policies. In 2014, voters approved Proposition 47, which reduced penalties for some drug and property crimes. Two years earlier, voters passed Proposition 36, revising “three strikes” to require that the third strike be a violent or serious felony. 

The initiative is likely to face opposition from some conservatives. State Sen. Jim Nielsen, R-Gerber, said in a prepared statement that “weakening the criminal justice system will only increase the victimization of California citizens.” 

Brown said the ballot measure’s proposal followed “intense conversation” with law enforcement groups, representatives of which joined him on his conference call.
Brown said he considered including violent offenders in the initiative but that it “met with, I would say, near-universal disinterest” from law enforcement. 

“It became a nonstarter,” he said. 

Brown, who helped create the state’s “determinate sentencing” system when he was governor before, has said for years that it should be revisited. In a speech to judges in Sacramento in November, Brown said he didn’t foresee the dramatic impact determinate sentencing would have on the growth of California’s prison population. The policy scaled back judicial discretion in prison sentences.

I haven’t seen the full text yet [UPDATE: I just read it–here it is–and am posting a follow-up], and will of course comment in depth when I do, but I think some preliminary remarks are in order:

  1. In many ways, the last forty years made us smarter than we were in 1977. We know that Martinson’s somber prediction that “nothing works” in rehabilitation was not true, and that doing rehabilitation properly can reduce recidivism. And we also know that determinate sentencing, and that treating kids as adults, achieves little in the way of equality and streamlining and plenty in the way of packing prisons.
  2. Another way in which we’re smarter now is that we understand that discretion doesn’t go away–it merely moves around. What we did in 1977 was shift it from the hands of judges and parole boars to the hands of prosecutors and legislatures–to the point that some commentators, like John Pfaff and the always fabulous Grits for Breakfast, attribute mass incarceration primarily to prosecutorial charging decisions gone amok.
  3. But let’s not throw the baby with the bathwater. One of the reasons California moved away from determinate sentencing in the first place was concern about unfettered discretion by judges and parole boards. Even now, when parole hearings are relegated to lifers, the board enjoys a lot of discretion and very little transparency. My research for my book in progress about the parole hearings of the Manson family members, Yesterday’s Monsters, shows the very limited responsiveness of the parole board to the California Supreme Court’s supervision, and if we want to get the good stuff (incentives to rehabilitate, shorter sentences) without the bad stuff (discrimination and arbitrariness) we need to design parole in a smarter way. With great power, Spiderman’s uncle reminds us, comes great responsibility, and there are no guarantees that parole boards are much better than prosecutors in the discretion department.
  4. Note the humonetarianism theme throughout the proposal. Just like in the initiative on juvenile justice, the language relies heavily on the issue of cost.
  5. So, what happens to the California Penal Code if this passes? Do we rewrite felony sentencing to eliminate the “triad” and affix broad ranges to allow judges discretion? This is going to be a massive redrafting job, but quite an interesting one, and how successful it is depends on how  controlled it might be by partisan politics.
  6. Finally, the article talks about the possible broad support by California voters–the same ones that voted, by large majority, to make lots of punitive changes that we regret to this day. And it may well be that, beyond cost, one of the major reasons that the Republican lawmaker’s it’s-a-scary-world retort falls flat is that crime rates are low. Very low compared to what our predecessors in 1977 were facing. It may be the case that it’s time to put aside the hubris and conclude that crime rates, like the weather, happen for a variety of causes, of which sentencing reform is only one, and that our decisionmaking process should not sway to and fro every time the pendulum swings.

SCOTUS Offers Hope for Lifers Without Parole Sentenced When They Were Juveniles

In 1963, Henry Montgomery killed a police officer. His murder conviction in Louisiana, for “guilty without capital punishment”, carried a mandatory life without parole sentence. That is, under Louisiana law, Montgomery could not present mitigating evidence–he was automatically sentenced to life without parole. At the time the crime was committed, Montgomery was 17 years old. Today he is 70 years old, and he’s been in prison ever since.

In 2009, decades after Montgomery’s sentence, the Supreme Court decided Miller v. Alabama, which rendered mandatory life without parole statutes unconstitutional insofar as they apply to juveniles. The decision was one of several decisions, starting with Roper v. Simmons, which incorporated insights from developmental psychology into criminal justice. We now know that the brain continues developing well into our mid-twenties, and that impulse control, resistance to peer pressure, and the ability to consider long-term goals  are not quite there yet for juveniles. So, sentencing them to a lengthy period of time, without option to reconsider, now seems unjust in light of what we know of their cognitive capabilities.

But what about people who were sentenced to automatic life without parole before Miller v. Alabama? Thousands of these folks, who were teenagers when they were sentenced, are now middle-aged or even elderly (certainly by prison standards.) Many of them have spent most of their life in jail. Should their sentences be reconsidered? In other words, does Miller apply retroactively? This morning, the Supreme Court ruled that it does–and that states who used to apply these schemes to juveniles should now award them remedial parole hearings to reconsider their possible release.

The technical question at the heart of Montgomery has to do with the retroactivity rules. Imagine a situation in which a criminal justice rule is changed in a way that could benefit defendants.

Under constitutional doctrine in a case called Teague v. Lane, defendant no. 1, whose case hasn’t even started yet, will of course benefit from the new rule, which applies prospectively. Defendant no. 2’s case is still alive–that is, it’s undergoing an appellate process or the time to appeal hasn’t run out yet–and because the case is not “final” yet, she will also benefit from the rule change. But Defendant no. 3, whose case has already become final–which is to say, she exhausted her direct appeals, or the time to appeal has run out–will not be able to benefit from the rule change. There are two exceptions to this doctrine: the new rule will apply retroactively if it is either a “substantive rule of Constitutional Law”, which includes  “rules forbidding criminal punishment of certain primary conduct,” as well as “rules prohibiting a certain category of punishment for a class of defendants because of their status or offense” or a “watershed rule of criminal procedure”, which is to say, a very momentous change (most rules are not that important; when SCOTUS thinks of such a rule, they think about things like the right to counsel and somesuch.)

According to the today’s ruling, Teague v. Lane applies not only to federal defendants on habeas, but also to defendants like Montgomery, who have been using their state’s collateral proceedings. Or, as Justice Kennedy stated for the majority,

The Court now holds that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. Teague’s conclusion establishing the retroactivity of new substantive rules is best understood as resting upon constitutional premises. That constitutional command is, like all federal law, binding on state courts.

The rule in Miller is, according to the majority, a “substantive rule of Constitutional Law”, as it doesn’t merely address process–it addresses the question whether a certain category of punishment (in this case, mandatory life without parole) is applicable to a certain category of people (in this case, juveniles.) It stems from the string of cases that recognized that children are different from adults in their “diminished culpability and greater prospects for reform.” These differences mean that imposing automatic LWOP on children “poses too great a risk of disproportionate punishment.” While the decision has a procedural component–the need to hold a hearing before imposing LWOP on juveniles–it is, in essence, a substantive statements that juveniles should simply not be subject to that category of punishment. The Court is not concerned about the extent to which this hinders finality–in this case, the state really can no longer exercise its punitive power by sending juveniles to prison for the rest of their lives without discretion, and once there is a social agreement there, finality arguments really do not apply.

The Court also gives states that used to have mandatory LWOP schemes for juveniles a corrective path: they should award people who are currently serving time under these schemes for crimes committed when they were juveniles an appropriate opportunity to be heard and to provide evidence for their rehabilitation, in which their young age at the time they committed the crime (and all we know about the implications of age to development) shall be taken into account.

Justices Scalia, Alito, and Thomas dissented, on the grounds that the Court had no jurisdiction to decide the case and that its classification of the Miller rule as a substantive rule was overbroad beyond the original intent in Teague.

No New Jail in San Francisco… Now What?

The long-standing debate about the construction of an alternative to San Francisco’s Jail no. 4 at 850 Bryant ended yesterday with a victory for the jail opponents. The supervisors declined to allocate funding to the new building. The advocates who fought against the new jail tooth and nail took to social media to proclaim their victory.

Unfortunately, the alternative–keeping the situation as it is–does not strike me as something to feel particularly victorious about. As I told the Chronicle the day before the vote, the outcome is dismal either way.

The anti-jail advocates are right in saying that we have been housing people that should not have been incarcerated in the first place, and that the high percentage of people with mental illness in the jail suggests that what we need is a mental institution, not a correctional one. They are also right in fearing the construction of a building with more capacity, because our collective experience with incarceration is that new beds tend to fill with new inmates.

I’m sympathetic to these arguments, but they are also somewhat short-sighted. An increase in incarceration is not the only evil under the sun. Unsound, unhealthy incarceration conditions are very problematic as well. Since the existing jail is seismically unsound and dilapidated, the result of the anti-jail victory is basically a temporary return to the status quo, which is dangerous and undesirable. And in the long run, if Jail no. 4 ceases to be operative and there’s no alternative, the concern is that other jails will become overcrowded and unhealthy.

This is not the first adverse incentive of the move to close down prisons. When prison budgets are cut without an equivalent reduction in prison populations, what you get is less prisons and more overcrowding in existing, inadequate facilities. 

So, what’s to be done? The only way out of this maze of bad alternatives is to do the hard work of an empirical survey. Let’s analyze the San Francisco jail population. How many people are there because of a sick money bail system who could otherwise be out on O.R.? How many people should be receiving medical treatment that they can better get in a medical facility? How many people are doing long, realignment-type time in an institution unsuited for a lengthy stay? A budget cut on its own does not lead to a cut in incarceration. It’s time, indeed, to move to another system of rationing punishment: return on investment.

Fueling the mental health system and reforming the money bail system (hopefully by legislating the bail bonds industry out of existence) costs money. Possibly a lot of it. But it has to be properly budgeted and invested. Just saying “no” without providing, and budgeting for, a viable alternative, may be touted as a victory, but it leaves San Francisco jail inmates in the lurch.