Correcting the Crack/Powder Cocaine Sentencing Disparity

Yesterday, SB 1010 passed in the California Senate, and it is on its way to the Assembly. The purpose of the bill is to eliminate all disparity between the sentences for possession with intent to sell of crack  and powder cocaine, by reducing the sentence for the former from 3, 4, or 5 years, to 2, 3, or 4 years. It also eliminates the differences in quantities (a 1:2 ratio in California) between the two drugs for a variety of manufacturing offenses and mandatory prison sentences.

For those unfamiliar with California sentencing, we do not have a sentencing commission. Our sentences are meted out by the legislature, and felony sentencing follows a “triad” of offenses. After Cunningham v. California (part of the Apprendi line of cases), the judge can pick any of the three sentences (but nothing above, below, or in between).

The passage of SB 1010 is a reminder of how much the zeitgeist has changed. Four District Attorneys–in Los Angeles, Santa Barbara, Santa Clara, and San Francisco–are supporting the proposition. In a few short years, the crack/cocaine disparity has lost favor fairly dramatically.

That the disparity is proxy for racial discrimination is now a commonly held perspective (see here and here), but it is not a wall-to-wall consensus. There are still commentators who believe that the addictive power per molecule justifies a disparity, and others who attribute the rise in urban crime in the 1990s to the crack epidemic. As many readers know, the Obama administration reduced the federal disparity from 100:1 to 18:1. With public climate about crack sentencing considerably altered since the 1990s, I think we can expect SB 1010 to pass in the Assembly in August and reach Governor Brown’s desk soon.

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cross-posted to PrawfsBlawg.

Solitary Confinement Lawsuit Attains Class Action Status

The struggle against long-term solitary confinement in California continues! Months ago, we reported about the certification hearing for Ashker v. Brown, a lawsuit against solitary confinement.

The most recent news are from June 2: U.S. District Court Judge Claudia Wilken granted the lawsuit class action status. The L.A. Times reports:

“We pose a fundamental question: Is it constitutional to hold someone in solitary confinement for over a decade,” said Alexis Agathocleous, staff attorney for the Center for Constitutional Rights in New York. 

The class action motion was filed by 10 Pelican Bay inmates in solitary confinement, but California has since moved five of them to other quarters. Wilken’s order allows the remaining five prisoners to represent the larger class of some 500 Pelican Bay prisoners who have spent more than a decade in isolation, and some 1,100 put into solitary because of alleged gang associations.

Many of the inmates named in the suit also were organizers of a lengthy statewide prison hunger strike last summer. 

Wilken refused to allow the state prison guard union to intervene in the lawsuit. The California Correctional Peace Officers Assn. had argued that it had an interest in protecting the safety of its members by preventing prisoners from leaving solitary confinement.

We will keep following up on the lawsuit and reporting on its progress.

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cross-posted with some changes at Prawfs Blawg.

From Reproductive Crimes to the Prison Industrial Complex

This coming October, the Hastings Women’s Law Journal will hold a special symposium on family and reproduction in prison, which is incredibly timely. Several important stories from the last few years have raised serious concerns about the correctional authorities’ responsibility for women’s health, pregnancy, and birth in prison.

First, as you may recall, there were efforts to restrict the notorious and common practice of having incarcerated women give birth while shackled. It’s fairly obvious why this is an extremely barbaric practice, and this ACLU report adds some important details.

Then, we heard with shock about a sterilization of female prisoners in California, with very questionable consent. This eventually yielded SB1135, which prohibits the practice.

And just a couple of days ago, this was in the news. Nicole Guerrero, a pregnant inmate in Texas’ custody, was placed in a solitary cell, repeatedly begging for help as her water broke and she was in labor, her cries for care ignored by the guards. Guerrero’s baby died, and the chronology that led to this horrific tragedy includes a nurse who works for a private healthcare contractor. Guerrero is pursuing a §1983 lawsuit against the prison.

There’s hardly anything I can say about this truly horrible incident and the cruelty that led to it that won’t trivialize it, and the basic facts behind it do not seem to be in dispute. My only additional thought about this has to do with the fact that Guerrero’s tragedy occurred in a public setting–a Texas state prison–but one of the people whose behavior was questionable worked for a private healthcare provider. I think we need to problematize the distinction often made by progressive commentators between state institutions and private providers’ institutions. At this point, and in the context of a neoliberal, hypercapitalist economy, it makes a lot less difference who runs the correctional facility overall than these commentaries would suggest. Many functions within state prisons–utilities, phones, cantine services, food, transportation, health care–are partially or completely privatized, as was health care in the institution in which Guerrero was held. Moreover, state actors are behaving like private actors in the market, and many of the corruption scandals and human rights crimes we saw in the last few years–such as Alabama’s Sheriff Bartlett’s profiteering off his wards’ starvation and former Philadelphia Judge Mark Ciavarella essentially selling juveniles to a private contractor for kickbacks–involved public actors. Private prison companies have not cornered the market on cruelty, stinginess, and indifference to human suffering. And wherever a wicked contract is signed, one party tends to be a public actor.

The only answer to this that I can think of is regulation that carefully examines which actors play which roles in exploiting human suffering for profit. Only recently, AB 1876 prohibited the common practice by which sheriffs received kickbacks from phone providers to give them the contract for prison phone services. There are probably ways for sheriffs to bypass this, and we will have to stay fairly attentive to those, but the bottom line is that the lines between the public and the private are so blurred in this economy that maligning “private prisons” misses the point. All actors in these dramas of human cruelty and profiteering–the state included–are acting in a laissez-faire, capitalist market, responding to market pressures, and trying to get ahead; all actors are vulnerable to the sort of indifferent, dehumanizing mentality that seems to have produced the tragedy that happened to Guerrero; and all actors, private and public alike, should be carefully watched and monitored by those who do not want to see more cruelty.
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Cross-posted on Prawfs Blawg.

Exciting Day for Formerly Incarcerated People!

Today, May 19, is the Formerly Incarcerated People’s Quest for Democracy day. And it’s a good day to inform you of some happy news!

You may recall the ongoing quest to restore voting rights to inmates not serving time in prison. The previous installment, which addressed people serving felony sentences in jail post-realignment, failed. But on May 7, an Alameda County Superior Court judge found that people under mandatory supervision or post-release community supervision, who are not incarcerated in prison OR in jail OR on parole, were entitled to vote! The full text of the decision in Scott v. Bowen is here.

The court’s interpretation seems right on the money. The right to vote is so fundamental, that any opaqueness in the language of the law should be interpreted as to facilitate, rather than curtail, its extent.

But what’s more important, the court provides a fairly broad and generous interpretation of the Realignment as not solely a cost-saving project, but a transformation aimed at increasing rehabilitation and reducing recidivism, of which civic participation is an important part.

Much of the credit for the decision goes to the ACLU of Northern California, the Lawyers Committee, and Legal Services for Prisoners with Children. And now we wait to see if the Secretary of State will appeal. I very much hope she won’t.

Big Developments on the Federal Sentencing Front

The last few months in Federal sentencing have been rather monumental, at least in rhetorical terms. In 2010, as readers may recall, Congress enacted the Fair Sentencing Act, famous particularly for the diminished crack/powder cocaine sentence disparity. And just recently, the Department of Justice announces a clemency initiative that could have far-reaching consequences.

Last December, President Obama took steps toward addressing this situation by granting commutations to eight men and women who had each served more than 15 years in prison for crack cocaine offenses. For two of these individuals, it was the first conviction they’d ever received – yet, due to mandatory guidelines that were considered severe at the time, and are out of date today – they and four others had received life sentences. Since that time, the President has indicated that he wants to be able to consider additional, similar applications for commutation of sentence, to restore a degree of fairness and proportionality for deserving individuals. The Justice Department is committed to responding to the President’s directive by finding additional candidates who are similarly situated to those granted clemency last year, and recommending qualified applicants for reduced sentences.

We are launching this clemency initiative in order to quickly and effectively identify appropriate candidates, candidates who have a clean prison record, do not present a threat to public safety, and were sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate. While those sentenced prior to the Fair Sentencing Act may be the most obvious candidates, this initiative is not limited to crack offenders. Rather, the initiative is open to candidates who meet six criteria: they must be (1) inmates who are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today; (2) are non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; (3) have served at least 10 years of their sentence; (4) do not have a significant criminal history; (5) have demonstrated good conduct in prison; and (6) have no history of violence prior to or during their current term of imprisonment.

Check out this reaction from the Brennan Center:

“With this initiative, the president is making better use of his clemency powers to reduce our exploding prison population,” added Inimai Chettiar, director of the Brennan Center’s Justice Program. “This is an excellent use of executive power by the president. Additional opportunities to use clemency to reduce mass incarceration exist. Specifically, in addition to these important steps forward, the Justice Department should work to identify and seek out the estimated 5,000 Americans who languish in federal prison because they were sentenced before the 2010 Fair Sentencing Act reduced the unjust sentencing disparity between crack and powder cocaine crimes. It should then solicit, review, and expedite clemency applications from these prisoners, instead of waiting for them to identify themselves.”

We can’t help but agree, and add another comment about the difference between executive clemency and other ways of ending the war on drugs: Providing a legal solution that would be retroactive would be incredibly tricky. Many of the cases of people who might receive clemency under this new order are already final, in the sense that all direct appeals of them have been exhausted (or not pursued.) Reopening cases that are final can only occur under very, very rare circumstances. It is exactly in these sort of situations that clemency is a better solution than a necessity for the legal apparatus to admit its defeat and lose legitimacy.

New Bill Proposes Allowing Counties to Import/Export Inmates

One of the declared purposes of the Realignment was to benefit from the added rehabilitative value of doing time within one’s community, close to one’s family and social network, and in the context of one’s future housing and job opportunities upon release. But this concept turns out to be more malleable than we might’ve thought in 2011. A new bill, AB 1512, aims at allowing counties to import/export inmates from/to other counties. The introduction to the bill elaborates:

Existing law, until July 1, 2015, authorizes the board of supervisors of a county, where, in the opinion of the county sheriff or the director of the county department of corrections, adequate facilities are not available for prisoners, to enter into an agreement with any other county whose county adult detention facilities are adequate for and accessible to the first county and requires the concurrence of the receiving county’s sheriff or the director of the county department of corrections. Existing law also requires a county entering into a transfer agreement with another county to report annually to the Board of State and Community Corrections on the number of offenders who otherwise would be under that county’s jurisdiction but who are now being housed in another county’s facility and the reason for needing to house the offenders outside the county.

This bill would extend the operation of those provisions until July 1, 2020.

Existing law, operative July 1, 2015, authorizes a county where adequate facilities are not available for prisoners who would otherwise be confined in its county adult detention facilities to enter into an agreement with the board or boards of supervisors of one or more nearby counties whose county adult detention facilities are adequate for, and are readily accessible from, the first county for the commitment of misdemeanants and persons required to serve a term of imprisonment in a county adult detention facility as a condition of probation in jail in a county that is party to the agreement. Existing law, operative July 1, 2015, requires these agreements to provide for the support of a person so committed or transferred by the county from which he or she is committed.

This is not a particularly original solution to jail overcrowding. After all, we already export thousands of CA inmates to other states, where they are housed in private facilities. Compared to the uprooting and difficulties of out-of-state incarceration, this is really small potatoes. On the other hand, at least with state prisons there was no pretense of trying to rehabilitate people close to their communities. California is a very large state; a family visit to Corcoran or Pelican Bay requires many, many hours of driving from the Bay Area. Large scale import/export of inmates by counties wishing to utilize their facilities to improve their budgets works against the idea of local justice, frustrating one of the purposes of Realignment.

UPDATE: CURB has circulated a petition against the bill. 

Judge Karlton Declares Prop 9 Unconstitutional

I am thrilled to report another important legal development: Judge Karlton of the Northern District has declared Prop 9, otherwise known as Marsy’s Law or the Victim Bill of Rights, unconstitutional. He has also struck down Prop 89, adopted in 1988.

This is very good news for the CCC blog, as we fiercely advocated against Prop 9 and were truly dismayed at its passage. We pointed out how pointless it was to advance the rights of victims by denying parole to offenders, showcased research proving that the proposition did nothing to actually increase victim rights, and followed up litigation against the law from its inception through oral arguments and the partial dismantlement of some provisions of the law.

We said it in 2009 and we’ll say it again: Propositions that purport to advance victim causes and avenge the cruelties done to them through committing more cruelties do not address the needs of all victims and certainly not of the victim population as a whole. The best thing we can do for victims is to make sure they cease being victims as quickly as possible by empowering them and putting in place social structures that offer chances for rehabilitation and transformation for perpetrators. Any wholesale effort to curtail the ability to offer people a window of hope at the end of a long sentence does no favors to victims, and is unnecessarily cruel and wasteful.

Behind the Hunger Strike

Todd Ashker. Photo courtesy CDCR,
reproduced from New York Magazine

In the aftermath of the hunger strike against conditions in the SHU, we are witnessing legislative interest in improving conditions in solitary confinement. We recently reported on CDCR’s changes to gang restrictions, on the legislative hearings in Sacramento, and on Tom Ammiano’s proposition to limit gang-related SHU stays to 36 months. At this point, Benjamin Wallace-Wells’ article in New York Magazine, The Plot from Solitary, is particularly welcome. The article is so interesting, thorough, and multifaceted that I strongly recommend you read it in its entirety. Here are just a few highlights that interested me the most:

The article does a very good job juxtaposing the position of inmates and their supporters to that of CDCR staff.

From the beginning, even the most basic matters about the strike—what Ashker and the others were after, why so many people joined them, what the strike ­demonstrated—were opaque, and profoundly disputed. To the prisoners and their supporters, this was a protest against barbaric treatment, and the SHU was both an outrage in itself and a symbol of the arbitrariness and brutality of the prison system across the nation. The strike’s leaders had challenged the SHU’s constitutionality in court, arguing that the limits it placed on social interaction violated the Eighth ­Amendment’s prohibition on cruel and unusual punishment, and they had watched closely as a few other states, some pressured by prisoners and others mandated by judges, had de-emphasized solitary confinement. They believed they were part of a human-rights movement. But the prison officials saw something far simpler at work: a tactical maneuver by the gangs, acting in collusion, to end a system that had made it much more difficult for them to operate as they pleased.

We also get fairly in-depth backgrounds of the Short Corridor strike leaders, complete with their lives before incarceration and some information about their standing vis-a-vis their own gangs, which adds to the complexity of the organization. And, we also get a blow-by-blow description of how news of the strike were transmitted across SHU cells:

Jamaa thought his fellow inmates might need some concrete encouragement. His private fast the previous fall had lasted 33 days, and he believed he could have gone longer. Soon after last summer’s strike began, the four leaders were moved from the SHU to a unit called Administrative Segregation, and Jamaa, entering the unit, started to holler, “Forty days and 40 nights! Forty days and 40 nights!” If prisoners can be counted upon to know any literature, it is the literature of suffering that in the Bible precedes redemption. Jamaa had chosen his slogan with intent: They were Moses in the desert. At night, Jamaa would drop on his knees, put his mouth to the crack between the door and the floor, and yell: “Forty days and 40 nights!” Soon, new hunger strikers arriving in AdSeg were shouting the slogan as they were hustled in. It was then that Jamaa began to believe their movement had some possibility, some momentum. 

And a very sophisticated explanation of the gang leadership controvresy from Craig Haney:

Haney returned to Pelican Bay last year, for a ­follow-up study, and found that these ­patterns of self-isolation had deepened. Many inmates had discouraged family members from visiting, and some seemed to consider all social interactions a nuisance. “They have systematically extinguished all of the social skills they need to survive,” Haney says. Those inmates who do comparatively well tend to replace the social networks outside the SHU with those within it—which, in a society composed of alleged gang members, often means gangs. “In isolation,” he says, “gang activity is the only contact that is possible; it is the only loyalty that is possible; it is the only connection that is possible.”

And this bit about the effects of Judge Henderson’s ruling allowing force-feeding of inmates:

Until this point, the prisoners had thought of the guards—and, more broadly, the state—as their captors. But the state is also their warden and their protector: A prison is designed to separate convicts from society and prevent them from doing more harm, but also to shelter them and keep them alive. The judge’s order returned repeatedly to the problem of coercion. The specter of gang influence was so strong, Henderson’s ruling suggested, that the state could not trust that a prisoner’s advance medical directive had been made freely—that he had made his own decision about the terms under which he was willing to die. The strike leaders had thought that by volunteering to risk their own deaths they could compel the state to see them as individuals, and that in at least this one instance they could reassert freedom of control over their lives. But they had been wrong.

Read the whole thing. It’s fascinating and very well written.

This Saturday: SSDP’s Western Regional Conference

Students for Sensible Drug Policy are holding their annual conference at UC Hastings in San Francisco this coming Saturday. Yours truly will be speaking, but the real reason to show up is to hear the amazing array of health professionals, dispensary businesspeople, advocates, legislation experts, and the keynote speaker, San Francisco Public Defender Jeff Adachi. Here’s the program for the day:

The conference is free and open to the public, but requires your preregistration here. What better way to spend your Saturday than learn more about drugs, and particularly marijuana legalization?