Starting at 10am, Jones v. Davis, the case in which the death penalty in California was declared unconstitutional because of the delays, streams live here:
If you’re at Hastings, join me at my office at 10am. If not, tune in to the blog later today for fresh commentary.
RSVP via this link.
Remember Jones v. Chappell?
At the time we were very excited: A federal District Court judge, Judge Cormac Carney of Orange County, declared the death penalty in California unconstitutional because of the decades-long delay in its administration. In fact, we were so excited that we organized a public petition to the Attorney General, asking her not to appeal the decision. We got some press and support from more than 2,000 signees (thank you!) and there were even a few surreal plot twists. Much to our disappointment, the Attorney General decided to appeal the decision.
On August 31, the Ninth Circuit will hear oral arguments in the case (now called Jones v. Davis–change of wardens). CCC will be there to report. If you want to read up a bit in the meantime, here’s the amicus brief submitted by Death Penalty Focus.
Today, the Connecticut Supreme Court ruled the death penalty unconstitutional, in a broad retroactive decision that removed all 11 inmates from death row and into general population. The Hartford Courant reports:
The majority decision, written by Justice Richard N. Palmer, found a host of flaws in the death penalty law, which banned “prospective” death sentences, those imposed after the effective date of the law. But the majority wrote that it chose to analyze capital punishment and impose abolition from a broad perspective.
After analysis of the law and “in light of the governing constitutional principles and Connecticut’s unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state’s death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose,” Justice Richard Palmer wrote for the majority.
“”For these reasons, execution of those offenders who committed capital felonies prior to April 25, 2012, would violate the state constitutional prohibition against cruel and unusual punishment.”
Congratulations, Connecticut! Come on, California Supreme Court!
Today a settlement was reached in Quine v. Brown, a case involving housing and healthcare for transgender inmates. The Transgender Law Center reports:
Today, the California Department of Corrections and Rehabilitation reached a groundbreaking settlement with Shiloh Quine, a transgender woman held in a men’s prison, to move her to a women’s facility and provide medical care, including gender-affirming surgery, determined necessary by several medical and mental health professionals. In the settlement, the state also agreed to change its policies so that transgender prisoners can access clothing and commissary items consistent with their gender identity. The state also affirmed that it is revising its policies regarding transgender inmates’ access to medically necessary treatment for gender dysphoria, including surgery.
“This historic settlement is a tremendous victory, not just for Shiloh and transgender people in prison, but for all transgender people who have ever been denied medical care or basic recognition of our humanity just because of who we are,” said Kris Hayashi, Executive Director of Transgender Law Center, which represented Shiloh along with pro bono counsel from the law firm of Morgan, Lewis & Bockius LLP. “After years of unnecessary suffering, Shiloh will finally get the care she desperately needs – and transgender people nationwide will hear a state government affirm that our identities and medical needs are as valid as anyone else’s.”
Just in time for the fiftieth anniversary of the Voting Rights Act, a legal team comprised of various rehabilitation and reentry organizations has triumphed in returning the right to vote to 50,000 men and women who are under mandatory supervision!
A little bit of background: The California Constitution disenfranchises felons who are “imprisoned or on parole”. In League of Women Voters of California v. McPherson, the First District Court of Appeal ruled that these categories did not include people who were in jail as a consequence of violating felony probation. After Realignment, thousands of non-serious, non-violent, non-sexual felons were sentenced to jail terms. A prior litigation effort on their behalf was unsuccessful (though we raised some important questions that were left unanswered.)
The current litigation effort was more modest, but also perhaps more realistic, seeking to restore the right to vote not to all realigned felons, but only to those under mandatory supervision. Folks under supervision serve time on the outside, under conditions strongly resembling probation. The prospective voters’ advocates were successful on the first round. The former Secretary of State appealed, and just as the parties were ready to go forward, the current Secretary of State, Alex Padilla, withdrew his appeal, with the outcome that voting is restored. And here’s what Secretary Padilla had to say–here at CCC we wholeheartedly concur:
“Passage of the Voting Rights Act was not easily won,” Secretary Padilla said. “People marched. People struggled. People died. They bravely sacrificed for each other – for friends, family, for our country so that each of us could be empowered with the opportunity to participate meaningfully in our democracy.”
“Civic engagement and participation in the election process can be an important factor helping former offenders reintegrate into civil society. If we are serious about slowing the revolving door at our jails and prisons, and serious about reducing recidivism, we need to engage—not shun—former-offenders. Voting is a key part of that engagement; it is part of a process of becoming vested and having a stake in the community,” Padilla added.
“The United States Supreme Court eloquently proclaimed, “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”
“Our California Supreme Court has made similar pronouncements: “No construction of an election law should be indulged that would disenfranchise any voter if the law is reasonably susceptible of any other meaning.”
“Today’s announcement is in line with these statements, the arc of California history, and the spirit of the Voting Rights Act,” Padilla said.
See you at the ballot, fellow Californians!
Pell grants for inmates pursuing college education, which were terminated during the Clinton administration, have been renewed! The Wall Street Journal reports:
The plan, set to be unveiled Friday by the secretary of education and the attorney general, would allow potentially thousands of inmates in the U.S. to gain access to Pell grants, the main form of federal aid for low-income college students. The grants cover up to $5,775 a year in tuition, fees, books and other education-related expenses.
Prisoners received $34 million in Pell grants in 1993, according to figures the Department of Education provided to Congress at the time. But a year later, Congress prohibited state and federal prison inmates from getting Pell grants as part of broad anticrime legislation, leading to a sharp drop in the number of in-prison college programs. Supporters of the ban contended federal aid should only go to law-abiding citizens.
Between the mid-1990s and 2013, the U.S. prison population doubled to about 1.6 million inmates, many of them repeat offenders, Justice Department figures show. Members of both parties—including President Barack Obama, a Democrat, and Republican Sen. Rand Paul of Kentucky—have called for a broad examination of criminal justice, such as rewriting sentencing guidelines.
A 2013 study by the Rand Corp. found that inmates who participated in education programs, including college courses, had significantly lower odds of returning to prison than inmates who didn’t.
Some congressional Democrats have proposed lifting the ban. Meanwhile, administration officials have indicated they would use a provision of the Higher Education Act that gives the Education Department the authority to temporarily waive rules, such as the Pell-grant ban, as part of an experiment to study their effectiveness.
Education Secretary Arne Duncan and Attorney General Loretta Lynch are expected to announce the program, which likely would last three to five years to yield data on recidivism rates, at a prison in Jessup, Md., on Friday. Key details aren’t yet clear, such as which institutions and what types of convicts would be allowed to participate.
I really like this administration’s focus on rehabilitation and return-on-investment strategies. I hope Obama will manage to accomplish as much as possible in this arena before the election in 2016.
Those of you who are following the news might appreciate a few of these books as summer companions that offer some context for what we’re seeing in policing and the community.
Chuck Epp, Steven Maynard-Moody, Donald Hayder-Markel (2014) Pulled Over: How Police Stops Define Race and Citizenship
David Simon (2006) Homicide: A Year on the Killing Streets
Victor Rios (2011) Punished: Policing the Lives of Black and Latino Boys
Adrian LeBlanc (2003) Random Family: Love, Drugs, Trouble, and Coming of Age in the Bronx
James Liebman and the Columbia DeLuna Project (2014) The Wrong Carlos: Anatomy of a Wrongful Execution
Ioan Grillo (2012) El Narco: Inside Mexico’s Criminal Insurgency
Radley Balko (2013) Rise of the Warrior Cop: The Militarization of America’s Police Forces
William Garriott (2011) Policing Metamphetamine: Narcopolitics in Rural America
If readers have additional recommendations, feel free to post them in the comments. And if any readers would like to spend some time discussing one or more of these books on the blog, please let me know.
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| Source: Legislative Analyst’s Office |
SB 382, coauthored by Senators Ricardo Lara and Mark Leno, clarifies the criteria under which the criminal justice system should determine whether to try a juvenile as an adult.
This summary by the Legislative Analyst’s Office provides a good guideline to the way discretion is applied in processing juveniles. Some serious offenses trigger a prosecutorial prerogative of “direct filing”, that is, charging and trying a juvenile’s case in adult court. Alternatively, the D.A. can ask for a “fitness hearing”at the juvenile court, which includes a report by a probation officer and a judicial decision whether to transfer the case.
The newly passed bill enumerates the five criteria to be taken into account when making the call whether to try juveniles in juvenile or adult court, which are as follows:
(A) The degree of criminal sophistication exhibited by the person. This may include, but is not limited to, giving weight to the person’s age, maturity, intellectual capacity, and physical, mental, and emotional health at the time of the offense, the person’s impetuosity or failure to appreciate risks and consequences of criminal behavior, the effect of familial, adult, or peer pressure on the person’s actions, and the effect of the person’s family and community environment and childhood trauma on the person’s criminal sophistication.
(B) Whether the person can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction. This may include, but is not limited to, giving weight to the minor’s potential to grow and mature.
(C) The person’s previous delinquent history. This may include, but is not limited to, giving weight to the seriousness of the person’s previous delinquent history and the effect of the person’s family and community environment and childhood trauma on the person’s previous delinquent behavior.
(D) Success of previous attempts by the juvenile court to rehabilitate the person. This may include, but is not limited to, giving weight to an analysis of the adequacy of the services previously provided to address the person’s needs.
(E) The circumstances and gravity of the offense for which the person has been convicted. This may include, but is not limited to, giving weight to the actual behavior of the person, the mental state of the person, the person’s degree of involvement in the crime, the level of harm actually caused by the person, and the person’s mental and emotional development.
We will be following juvenile matters more closely in the coming weeks, in preparation for a special event: the Hastings Institute for Criminal Justice, with the collaboration and cosponsorship of Rosen, Bien, Galvan & Grunfeld, LLP, will be holding a special screening and discussion of Caitlin McNally’s film Stick Up Kid, which follows Alonza Thomas as he is prosecuted and punished as an adult. McNally will be with us, as well as a lawyer and a student who were formerly tried and incarcerated as juveniles and two advocates for juvenile justice. Save the date – 9/17 – and stay tuned for more.
President Obama’s speech yesterday at the NAACP was a dream come true for American prison reformers, who have waited for decades to hear a U.S. president retreat from the punitive proclamations we have gotten so used to hearing.
I highly recommend listening to the speech in its entirety, but wanted to point out a few highlights:
1. In the spirit of the events of the last few months, Obama links the NAACP’s activism in the area of criminal justice reform and poverty to their historical standing up to lynching and voting restrictions.
2. “For the first time”, said the President, “the crime rate and incarceration rate both went down at the same time.” This is the first time a U.S. president is acknowledging low crime rates.
3. “Crime is like an epidemic; the best time to stop it is before it starts. . . if we make investments early in our children we will reduce the need to incarcerate those kids.” Obama references investing in early childhood and in summer jobs, mentioning that these will “save the taxpayers money, if we are consistent about it.” These statements are reminiscent of President Ford’s statements on crime (for more on this, see Cheap on Crime.)
4. Obama states an unwavering commitment to enfranchising felons: “If folks have served their time, and they’ve re-entered society, they should be able to vote.”
5. As befitting the setting for the speech, Obama spends a great deal of time “un-othering” crime, by speaking about how “other people’s kids” should be treated like “our kids”, speaking directly about the urgent need to restore trust between the police and the communities it serves.
6. Obama discusses sentencing reform and urges a sentencing reform bill that should be “passed through Congress this year”, which will restore judicial discretion and invest in diversion programs, which “can save taxpayers thousands of dollars per defendants each year.”
(read more about the speech on Slate.)
Some of this is right out of the Cheap on Crime playbook: diversion, nonpunitivism, and rehabilitation are cheaper, make sense in the face of declining crime rates, and should therefore be a bipartisan concent. But there is also a concept of dignity as a communitarian value that is being advanced here. Echoing sentiments that remind me of his days as a community organizer, Obama expect solidarity from his constituents, and he expects them to feel responsible for even the weaker links in the American social chain. Toward the end of his second term, Obama wants to galvanize his supporters to fix some of the things that are wrong in the criminal justice system.
It bears to mention that Obama’s criminal justice mandate extends only to the federal system, which houses a small minority of the inmates in the United States. But even so, changes to the federal sentencing laws may become an important influence on state legislation and, perhaps, also on federal judicial review of state practices. It is also worth mentioning that most presidential candidates for the 2016 elections–from Bernie Sanders to Ted Cruz–are not opposed to the ideas that Obama articulates in this speech; notably, Bill Clinton expressed enthusiasm and relief for his wife’s platform of reversing the punitive excesses of his own presidency. In short, being panicky and punitive is passé, and being fiscally conscious and community-oriented is “in”.
How much of this will translate to real-life policies remains to be seen, but it is encouraging to think that Obama still has a year and a half left to wrangle Congressional Republicans on criminal justice. And he’s dealing with less opposition from the Right than he would have in, say, 2006.