In 1974, California voters passed a constitutional amendment extending voting rights to all Californians with criminal records, save for those “imprisoned or on parole for the conviction of a felony.” Prior to the amendment, disenfranchisement was permanent in CA once you were convicted of a crime. The impetus for the amendment was, hard as it may be to believe in the days of public safety rhetoric and redball crime panic, the wish to help people regain their full citizenship after they complete their parole. In a landmark 2006 case, the CA Supreme Court interpreted this provision as follows: Folks in state prison, and under state parole, can’t vote. Folks in jail or under probation (or in jail for a probation violation) aren’t considered “imprisoned” and therefore can, and do, vote.
A new piece I’m working on (coauthored with Jessica Willis) for the upcoming Loyola Constitutional Law Colloquium examines the application of this provision, and this interpretation, to a new population of offenders created by the Criminal Justice Realignment in California.
Let me present the legal dilemma. In the aftermath of Brown v. Plata, and in order to resolve the serious financial crisis faced by the state (corrections eat up about 7% of CA’s entire budget), the California Penal Code has been amended to sentence non-serious, non-violent, non-sexual offenders to do time in county jail rather than in state prison. Are these people “imprisoned” for the purpose of the constitutional provision?
Constitutional provisions that give people fundamental rights should be interpreted broadly, right? Whenever there’s ambiguity, we should support people’s right ot vote, right? Wrong. The CA Secretary of State instructs felons that, if they are among the realigned group, they cannot vote.
Several civil rights organizations, and several folks doing time in jails or on community supervision, petitioned the CA Court of Appeals for an original writ allowing them to vote (full disclosure – yours truly and coauthor Jessica Willis wrote an amicus brief on behalf of thirty criminal justice scholars in support of the petitioners). The Director of Elections for the City of San Francisco – one of the respondents – actually agreed with petitioners that they should be allowed to vote, and merely asked the Court for instructions what to do. The court threw the case in petitioners’ faces with no reasoning. Petitioners took to the CA Supreme Court, and received pretty much the same response.
In the Article I go in depth into what the Court should have weighed and considered if it took these Californian citizens’ rights seriously. But in a nutshell, here’s what I think is going on: There are two visions of Realignment. You can see it as a technical way to resolve a budgetary problem and warehouse people on someone else’s dime. Or, you can see it as a real opportunity to bring people back to their communities, through a correctional method that actually might make sense for people who will eventually come out of prison and reintegrate into society. And by throwing the case out, the Court has opted, regrettably and apparently without much thought, for the former vision. A huge opportunity has been missed. People who could, and should, have been reintegrated into society; who could’ve channeled their experiences into civic engagement; and who could’ve started to care about their communities and neighborhoods will remain isolated and alienated.
In the movie Recount, a fascinating flick about the Bush v. Gore election, a person mistaken for a felon is sitting at home, watching Bush’s acceptance speech. His face is difficult to read. Is he angry? Sad? Disillusioned? Robbed of the promise of a voice or full citizenship? When you vote in November, think about the immense number of U.S. citizens behind bars, or under supervision, from whom this right has been denied.
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cross-posted on PrawfsBlawg.
In the decades prior to the financial crisis, as Jonathan Simon writes in Governing Through Crime, no politician, regardless of party affiliation, could afford to sound “soft on crime.” Propositions running counter to the received wisdom that more punitive is better had to be marketed assmarter, more efficient, or safer law enforcement – and, of course, these drowned in a sea of punitive propositions. But one of the key features of humonetarian discourse – the correctional discourse in the wake of the financial crisis – has been a partial liberation for politicians from the tough/soft on crime dichotomy. The usual tricks for dressing nonpunitive propositions as, well, not nonpunitive, still apply, but now there’s justification to do so: Punitiveness is not financially sustainable.
As it turns out, drug overdose is the second leading cause of injury and death in the United States. But to seek medical treatment for overdose is to risk criminalization for drug possession.
A new bill, AB 472, is on its way to be signed by the Governor. Under this bill, the Health and Safety Code will disallow prosecution for possession of folks seeking emergency treatment for overdose for themselves, or others. It will not affect prosecution of other drug-related issues, such as violations of the vehicle code or other dangerous behaviors.
submitted on Tue, 08/21/2012 – 14:06 by Catherine McCracken
This legislation supports the creation of an efficient and fiscally responsible criminal justice system. By recognizing not all detainees must remain in jail before trial, justice stakeholders are better able to serve those offenders that require confinement. Maintaining strong community ties for those individuals able to be released on their own recognizance has long-term positive impacts in reducing recidivism rates and improving public safety.
http://www.cjcj.org/post/
submitted on Tue, 08/21/2012 – 14:06 by Catherine McCracken
This legislation supports the creation of an efficient and fiscally responsible criminal justice system. By recognizing not all detainees must remain in jail before trial, justice stakeholders are better able to serve those offenders that require confinement. Maintaining strong community ties for those individuals able to be released on their own recognizance has long-term positive impacts in reducing recidivism rates and improving public safety.
http://www.cjcj.org/post/
A new report by the ACLU of California examines realignment so far, including the allocation of funds to counties. Their executive summary finds four troubling themes:
The report makes the following recommendations:
So much has been written in the last few days about Trayvon Martin’s death, that everything I might add seems superfluous. But this New York Times piece by Rich Benjamin is really worth a read.
I remember interviewing for an academic position at an excellent academic institution located in an area where gated communities proliferated. As part of my interview, I had a chance to talk to the local grad students for an hour. One of them asked me, “what don’t you like about the campus so far?” I replied that I’d strolled around campus in the morning and didn’t see a single living person in the streets. “Oh, there are no streets,” the students said. “Everyone lives behind gates.”
Here’s Benjamin’s experience:
From 2007 to 2009, I traveled 27,000 miles, living in predominantly white gated communities across this country to research a book. I threw myself into these communities with gusto — no Howard Johnson or Motel 6 for me. I borrowed or rented residents’ homes. From the red-rock canyons of southern Utah to the Waffle-House-pocked exurbs of north Georgia, I lived in gated communities as a black man, with a youthful style and face, to interview and observe residents.
The perverse, pervasive real-estate speak I heard in these communities champions a bunker mentality. Residents often expressed a fear of crime that was exaggerated beyond the actual criminal threat, as documented by their police department’s statistics. Since you can say “gated community” only so many times, developers hatched an array of Orwellian euphemisms to appease residents’ anxieties: “master-planned community,” “landscaped resort community,” “secluded intimate neighborhood.”
No matter the label, the product is the same: self-contained, conservative and overzealous in its demands for “safety.” Gated communities churn a vicious cycle by attracting like-minded residents who seek shelter from outsiders and whose physical seclusion then worsens paranoid groupthink against outsiders. These bunker communities remind me of those Matryoshka wooden dolls. A similar-object-within-a-similar-object serves as shelter; from community to subdivision to house, each unit relies on staggered forms of security and comfort, including town authorities, zoning practices, private security systems and personal firearms.
Residents’ palpable satisfaction with their communities’ virtue and their evident readiness to trumpet alarm at any given “threat” create a peculiar atmosphere — an unholy alliance of smugness and insecurity. In this us-versus-them mental landscape, them refers to new immigrants, blacks, young people, renters, non-property-owners and people perceived to be poor.
Benjamin goes on to discuss how this real-estate mentality translates itself to criminal justice concepts, where the increased privatized justice system touches public criminal doctrine:
“Stand Your Ground” or “Shoot First” laws like Florida’s expand the so-called castle doctrine, which permits the use of deadly force for self-defense in one’s home, as long as the homeowner can prove deadly force was reasonable. Thirty-two states now permit expanded rights to self-defense.
In essence, laws nationwide sanction reckless vigilantism in the form of self-defense claims. A bunker mentality is codified by law.
Those reducing this tragedy to racism miss a more accurate and painful picture. Why is a child dead? The rise of “secure,” gated communities, private cops, private roads, private parks, private schools, private playgrounds — private, private, private —exacerbates biased treatment against the young, the colored and the presumably poor.
This is true, but there’s more to it. I think the gated regime of locking oneself in, and the “my home is my castle” mentality, harms the white and affluent as well as the poor, minority “outsiders,” albeit not to the same extent. This atomistic, non-organic way of interacting with one’s surroundings is bound to suffocate and limit one’s human experiences in ways whose intangible price we pay not only with Trayvon Martin’s life, but in public discourse, partisanism, intellectual property and social boredom.
Finally, the perception that gated communities are safer, or have less crime, than cities is problematic when one considers the proper definition of crime. Think about sexual assault, domestic violence, drug abuse in the privacy of one’s home, and the countless ways in which people who know each other, and often live with each other, can abuse each other behind closed doors, guaranteeing not only a lower rate of detection but also underreporting by victims. A quote from Arthur Conan Doyle comes to mind:
[“]It is my belief, Watson, founded upon my experience, that the lowest and vilest alleys in London do not present a more dreadful record of sin than does the smiling and beautiful countryside.”
“You horrify me!”
“But the reason is very obvious. The pressure of public opinion can do in the town what the law cannot accomplish. There is no lane so vile that the scream of a tortured child, or the thud of a drunkard’s blow, does not beget sympathy and indignation among the neighbours, and then the whole machinery of justice is ever so close that a word of complaint can set it going, and there is but a step between the crime and the dock. But look at these lonely houses, each in its own fields, filled for the most part with poor ignorant folk who know little of the law. Think of the deeds of hellish cruelty, the hidden wickedness which may go on, year in, year out, in such places, and none the wiser.”
Thinking of this in the context of Benjamin’s piece is sobering and disturbing.
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Props to Amir Paz-Fuchs for the link.
Our four-year foray into the changes in correctional policies since the fiscal crisis has taught us that various states are scaling back their correctional apparatus to respond to money difficulties. California is no different. But as is the case with every regime, there are always folks who would benefit and make a quick buck from a broad social and economic problem.
This astonishing recent story in USA Today is a case in point. Many states are working on closing down their prisons for fiscal considerations. So, Corrections Corporation of America, of which we’ve written here before, is angling to purchase said prisons and operate them. But therein lies the rub:
The $250 million proposal, circulated by the Nashville-based Corrections Corporation of America to prison officials in 48 states, has been blasted by some state officials who suggest such a program could pressure criminal justice officials to seek harsher sentences to maintain the contractually required occupancy rates.
“You don’t want a prison system operating with the goal of maximizing profits,” says Texas state Sen. John Whitmire, a Houston Democrat and advocate for reducing prison populations through less costly diversion programs. “The only thing worse is that this seeks to take advantage of some states’ troubled financial position.”
Corrections Corporation spokesman Steve Owen defended the company’s “investment initiative,” describing it as “an additional option” for cash-strapped states to consider.
The proposal seeks to build upon a deal reached last fall in which the company purchased the 1,798-bed Lake Erie Correctional Institution from the state of Ohio for $72.7 million. Ohio officials lauded the September transaction, saying that private management of the facility would save a projected $3 million annually.
Linda Janes, chief of staff for the Ohio Department of Rehabilitation and Correction, said the purchase came at time when the state was facing a $8 billion shortfall. The $72.7 million prison purchase was aimed at helping to fill a $188 million deficit within the corrections agency.
Ohio’s deal requires the state to maintain a 90% occupancy rate, but Janes said that provision remains in effect for 18 months — not 20 years — before it can be renegotiated. As part of the deal, Ohio pays the company a monthly fee, totaling $3.8 million per year.
This is not new. CCA had AB 1070 passed in Arizona to guarantee prison occupancy, and built a prison on speculation in California. But it’s astonishing to see the machinations presented so matter-of-factly out in the open.
In these days of dire straits and realignment from state prisons to county jails, is it conceivable that California could cut a similar deal? I very much doubt it. CCPOA, the prison guards’ union, would object it with all their might, and might win the battle again, as they have before. But it’s a somber reminder that prisons are, above all, an industry, and subject to cynical manipulation by profiteers.
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Props to David Greenberg for bringing this to my attention.