Grandma Goes to Prison – 15 Years After the Fact

An astonishing reversal by the Supreme Court this week of a decision regarding the guilt of a grandma who allegedly killed her grandchild by shaking him. This does not directly relate to correctional policy, but it does bring to mind the question of the futility of incarceration in such cases. I figured our readers might find it interesting, so here’s a summary by my colleague Rory Little, made for the ABA Criminal justice Section. 
Supreme Court Case Summaries: Professor Rory Little’s Perspective[1]
A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust
Cavazos v. Smith (6-3 per curiam summary reversal, Oct. 31, 2011).
            Summary:  What would the opening of a new Supreme Court Term be without an early summary reversal of the Ninth Circuit?  After two prior GVRs (grant, vacate and remand) of the panel’s decision to grant habeas in a state infant-abuse-death prosecution, a majority of the Court rules (in an unsigned per curiam) that the Circuit improperly “substituted its judgment for that of a California jury” on a question of constitutional sufficiency of evidence under Jackson v. Virginia, 443 U.S. 307 (1979).
            In a dissent equal in length to the majority’s opinion, Justice Ginsburg (joined by Breyer and Sotomayor) rebukes the Court for using its discretionary review authority for mere “error correction” in a case the dissenters call “tragic” as well as questionable.  A notable irony here is that had the dissenters attracted Justice Kagan’s fourth vote, they could have granted plenary certiorari review, which Justice Ginsburg says would be better than summary reversal.  Meanwhile, the case was before the Justices for twelve conferences, starting last spring.  That must be close to a record.  So some interesting behind-the-scenes Court strategy and politics appear to be in play here.
            Per Curiam opinion:  Shirley Ree Smith was convicted for the 1996 death of her 7-week-old grandson, under a California statute specifically making it a crime to assaults a child under eight (resulting in death) with “force that to a reasonable person would be likely to produce great bodily injury.”  The prosecution theory was that Smith had shaken the infant, who then died of “shaken baby syndrome” (“SBS”).  The government’s evidence was that Smith had told a social worker that she had given the baby “a little shake, a jostle,” to awaken him, and when the social worker told Smith of the coroner’s SBS conclusion, Smith said “Oh my God.  Did I do it?  Did I do it?  Oh my God.”  Smith denied these statements (which are ambiguous in any case) and denied shaking the baby.  There was no evidence of prior violence, temper, or abuse, and the evidence was apparently undisputed that Smith was a loving grandmother watching her daughter’s children while the daughter was asleep in the next room.
            Thus the trial centered almost entirely on medical testimony, over seven days, with three experts for the prosecution and two for the defense.  All three prosecution experts testified that even though the medical evidence was not entirely consistent, the cause of death must have been SBS because other causes were eliminated or much less supported.  By contrast, one defense expert said the cause of death was “sudden infant death syndrome,” and while the other expert said “old brain trauma.”  (Tangentially, there is some hint that Smith’s lawyer was ineffective – Justice Ginsburg lays this out in her dissent.  The lawyer has since resigned from the Bar with disciplinary charges pending.)
        The jury returned a guilty verdict, and Smith was sentenced to 15 years to life.  The California state court affirmed the conviction, noting that “The expert opinion evidence … was conflicting.  It was for the jury to resolve the conflicts.  The credited evidence was substantial and sufficient….”  On federal habeas a Magistrate-Judge recommended denial and the district judge adopted that recommendation.  But a panel of the Ninth Circuit (Canby, Pregerson and Reed (DJ)) reversed, saying that there was “no evidence to permit an expert conclusion one way or the other” and that “Absence of evidence cannot constitute proof of reasonable doubt.”  Thus “no rational juror” could have found guilt here, and the state’s affirmance was an “unreasonable application” of Jackson v. Virginia.
            “That conclusion was plainly wrong,” the per curiam Court wrote yesterday.  A reviewing court “must presume” that the jury resolved conflicts in favor of the prosecution, “and must defer to that resolution.”  Jackson, at p. 326.  “A federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees.”
            Interestingly, it took five years of tussling to get to this point.  First the Circuit denied rehearing en banc over five dissenting votes.  Then the Supreme Court twice summarily granted the State’s cert petitions, vacated, and remanded (“GVR”) for reconsideration in light of two different Court opinions (Carey v. Musladin, 2006, and McDaniel v. Brown, 2010).  But (says the majority in a clear rebuke to CA9), “each time the panel persisted in its course, reinstating its judgment without seriously confronting … the cases called to its attention.”  [Ed. Note:  No doubt the panel would disagree with this characterization.  It did issue opinions addressing the new cases, expressly noted the “double” deference required under AEDPA, and called the case rare and “extraordinary.]  Thus, says the Court, “”the decision below cannot be allowed to stand.”
            Smith was released on bail in 2006 pending further appeal.  She will presumably now have to return to prison to serve at least the five years remaining on her minimum sentence, unless “clemency” is granted, an option the majority notes but says “it is not for the Judicial Branch” to consider.  [Ed. Note:  Interesting to consider what the new/old Calfornia Governor Jerry Brown will do with the case.]
            Ginsburg dissenting, joined by Breyer and Sotomayor:  “The Court’s summary disposition … is a misuse of discretion.”  This case is “as tragic as it is extraordinary and fact intensive.”  The Circuit undisputedly applied the “correct rule of law.”  This Court ought not engage in mere “error correction,” particularly since new scientific research since 1996 “casts grave doubt” on the prosecution’s expert testimony and theory of guilt.  [Justice Ginsburg goes over the new research and the trial evidence in some detail.]  “What does the Court achieve other than to prolong Smith’s suffering and her separation from her family?  Is this Court’s intervention really necessary?  Our routine practice counsels no.”  “The Court is bent on rebuking the Ninth Circuit….  I would not ignore Smith’s plight and choose her case as a fit opportunity to teach the Ninth Circuit a lesson.”
            Even if the Court is inclined to examine this decision, it ought not do that by a summary disposition.  “I would at least afford [Smith] a full opportunity to defend her release from a decade’s incarceration.”  [Ed. Note:  Since it takes only four Justices to grant full review, this point in a three-Justice dissent accentuates Justice Kagan’s silence here – although it is quite possible to imagine a “strategic” decision to not provide the fourth vote for plenary review in a case you feel certain you would “lose.”]  “Justice is not served by the Court’s exercise of discretion to take up this tragic, fact-bound case.”


[1]  These summaries are created by Professor Rory K. Little, U.C. Hastings College of the Law, San Francisco (littler@uchastings.edu) soon after the Supreme Court’s opinions are released.  They represent his quick, personal and unofficial reading of the Justices’ opinions.  Remarks in [brackets] are Professor Little’s own editorial comments.  Minor punctuation may be changed.  The original opinions should be consulted for authoritative content.

Occupy Oakland, Policing, and Secondary Deviance

Angela Davis yesterday at Occupy Oakland.
Photo courtesy Joe Feria-Galicia, RP&E Journal 

This morning’s Chronicle reports fierce encounters between  Occupy Oakland protesters and police. As was the case with the protests following Johannes Mehserle’s verdict, protests in Oakland were peaceful until the evening, and then escalated into vandalism and violent clashes.

The Chron piece documents serious debates within the protesting community regarding violence, as well as about the appropriateness of police response. We have no data yet as to the identity of the arrestees, but if this is anything like the Oscar Grant protests of yesteryear, at least some of them might be out-of-towners taking advantage of the protest to engage in vandalism.

What is going on in Oakland? The ferocious animosity between communities of color and the city police force have been long noted in literature, the latest example being Victor Rios’ recent book Punished. The book is an ethnography of Black and Latino youth in Oakland, documenting their constant criminalization by their surroundings, including police, the schools, and their own families. Rios argues that the pervasive perception that these young men are either actual or potential criminals, to be constantly monitored, addressed, and oppressed, provokes some of them to actually live up to the label and join street gangs. While Rios does not explicitly pay homage to labeling theory, his interviews and observations seem to support Edwin Lemert’s theory of secondary deviance, according to which young people who are constantly labeled as deviants eventually internalize the label:

When a person begins to employ his deviant behavior or a role based upon it as a means of defense, attack, or adjustment to the overt and covert problems created by the consequent societal reaction to him, his deviation is secondary. Objective evidences of this change will be found in the symbolic appurtenances of the new role, in clothes, speech, posture, and mannerisms, which in some cases heighten social visibility, and which in some cases serve as symbolic cues to professionalization.(1951: 76)

Lemert’s theory, and Rios’ findings among Oakland youth, may go a long way toward explaining why protest events in Oakland have such potential to deteriorate, while similar events in San Francisco go by more peacefully. Encounters between police and community in San Francisco simply do not carry the same baggage that they do in Oakland. And, while it would be absurd to argue that vandalism does not really exist and is solely the product of a label, it is important to acknowledge the role of police and government expectations in encouraging/discouraging violence. In San Francisco, supervisors urged police to treat protesters peacefully. At our District Attorney debate at Hastings, all four candidates present vehemently stated that they would never treat Occupy protesters using violent means, nor would they seek charges against them. The role of environment and charged past encounters in generating violence cannot be ignored, and the Oakland police force, constantly sitting atop a keg of resentment on the part of racialized and criminalized communities, should not be surprised at its prophecies coming true.

The Myth of Free Health Care for Inmates

In the last weeks I have been giving talks about various aspects of California corrections in universities all over the Bay Area. Interactions with college students are refreshing and interesting, especially as local elections are rolling in.

One argument I’ve heard a few times now in these discussions has to do with bitterness about the fact that inmates receive free health care, while those of us on the outside pay for our health care out of pocket. That this argument persists in the face of the Brown v. Plata aftermath is a grim reminder of the misinformation out there. For the benefit of those of our readers who hear this argument made in their immediate vicinity, or who have made this argument, here are some ways to answer it.

First, any complaint about inmates’  “free health care” begs the question whether what they receive in prison is, in fact, health care. The medical system in California prisons is so broken and inept that it was handed, several years ago, to a federal receiver. The budgetary woes have consistently hindered the receivership’s efforts to reform the system. And, eventually, the Supreme Court affirmed a three-judge federal panel decision to release tens of thousands of inmates because health care could not be provided given the overcrowding status of the prison. The bottom line, according to Jeanne Woodford, is that short-term inmates receive exams and an intake, and little beyond that. The Supreme Court decision and the brief appendices cite numerous examples of unnecessary disease and preventable death in California institutions. No, this is not comparable, by any standard, to whatever health care you might be receiving on the outside.

Second, the requirement to provide inmates with health care in prison stems from the fact that the government put them there. Warehousing people against their will is one thing. Doing so without caring for their basic needs is quite another. Some argue, of course, that this could be done more cheaply and efficiently. Much of the expense stems from the fact that we insist on imprisoning elderly, infirm inmates. The financial crisis is finally making us rethink this policy. And, by the way, check out Legal Services for Prisoners with Children’s initiative on behalf of old prisoners.

Third, apparently the free health care for inmates idea is no longer the universal rule. Much to my horror, I find that in some places, apparently, this is no longer the case.

As a coda, ever since I relocated to the United States I have been perpetually astonished at how little people in this country expect from their government. The argument against free health care for inmates is saddening because of its focus not on what you deserve to have, but on what someone else does not deserve to have. We talked about this “othering” of criminals before. Why not insist on being provided national health care at low or no cost, as is the case for every other industrialized democracy? The spite and bitterness against inmates is a distraction from a common goal, which is to be treated decently and fairly and being taken care of by one’s government, and it is proof that just and reasonable citizen expectations can be confounded if people are presented with an enemy to hate. I urge Californians to look beyond these divisive mechanisms and really think about their expectations from their leaders.

Expanding Operation Boo: Thoughts on the Place of Sex Offenders in a Financially-Strapped System

Today’s news from CDCR are provoking a sigh and a head shake, as we’ve already discussed, ad nauseam, the ridiculous love affair the parole authorities have with Operation Boo here and here. Doesn’t the Division of Adult Operations grow tired of this festival of spook? Is no one critical of the fact that there have been ZERO recorded incidents of molestation during trick-or-treating?

My only comment for this year’s gloomy shaming ritual is this: Sex offenders are the only population who I believe will not benefit from the cost argument. Their lobbying power is, well, nil, and the fact that these baseless operations go on year after year are an indication that the public wants to continue believing that they are all, uniformly, monsters to be monitored and controlled in the face of no evidence whatsoever. We can turn around several important punitive trend, but it’ll be a long time before we reassess the devastation our excessive policies toward a population with extremely low recidivism rates has wreaked on released inmates and their families.

Let’s Build Us Some Jailz!

Prison officials open up $600 million for jail construction to 25 counties

State officials have invited 25 counties to apply for a total of $602 million to construct new jail beds, after narrowing the list in recent days.
The bond funding, available under a 2007 law known as AB900, will be awarded by March and will allow a number of counties to expand their jail capacity. It comes as the state implements “realignment” the governor’s plan to address overcrowding in state prisons by letting thousands of low-level offenders serve their time in local jails instead of state prison. Advocates for prisoners oppose the release of funds.
The counties given the green light to apply for the funds are: Los Angeles, Riverside, Orange, Sacramento, Santa Clara, Fresno, Stanislaus, Tulare, Monterey, Yolo, Sonoma, Placer, Kings, Shasta, Sutter, Madera, Imperial, Napa, Siskiyou and Tuolumne. Additonally, Kern, San Joaquin, Santa Barbara, Amador and San Benito counties are being asked whether they would like to forgo earlier AB900 funds awarded to them and instead reapply for this round of bond money.
Leslie Heller, an official with the Correction Standards Authority, said the majority of the state’s 58 counties expressed interest in the money, and that the counties invited to apply were chosen solely on the increased number of prisoners they are expected to be housing under realignment.
“We knew with realignment there would be a lot of interest, and we know there is not enough money to go around to all the counties, so we thought, ‘Let’s find out how many are interested, then pick an appropriate number from that to go through the application process, so they don’t expend their resources unnecessarily’,” she said.
She added that there is “absolutely not” enough money for all 26 counties, and that some may not ultimately choose to submit an application.
For more information on AB900 funding, visit this website.

Today at Hastings: Realignment Panel

Today, UC Hastings will host a panel about the realignment. The panel is free and open to the public. Details:

When: 10/27/2011, 5:30 PM to 7:30 PM
Where: 200 McAllister, Alumni Reception Center (2nd floor)
Who:

  • Chief Presiding Judge Lisa Novak—San Mateo County
  • Deputy District Attorney Jeff Rubin—Alameda County
  • Assistant Public Defender Don Landis—Monterey County
  • Executive Director of Death Penalty Focus Jeanne Woodford

Moderated by UC Hastings Professor Kate Bloch.

Panel and Q&A to be followed by a wine reception. Please RSVP to HCLS@uchastings.edu.

Today at Hastings: San Francisco District Attorney Debate

UC Hastings will be holding a free, open to the public event today, which might help some of our readers make up their minds regarding their voting choices on Nov. 8. We’ll be hosting four of the five candidates for San Francisco District Attorney: Sharmin Bock, Bill Fazio, David Onek and Vu Trinh. The event will be moderated by my colleague Rory Little, and live streamed through the event listing.

Start: 10/26/2011 from 3:30 PM to 5:00 PM
Location: 200 McAllister, Alumni Reception Center

See you there!

KALW Show on Realignment Podcast

Yesterday I spoke on KALW with Keramet Reiter and the Chronicle’s Marisa Lagos about the realignment. Supervisor Ross Mirkarimi and Director of Probation David Muhammad called in, and it was, all in all, a literate and informative discussion. A full podcast of the show can be found on the City Visions website or by opening this file.

Realignment Starts Monday

A great story by the Chron’s Marisa Lagos explains the realignment. The piece is a must-read in its entirety and I highly recommend it. I want to highlight one pierce people may not have been attentive to: The important role probation officers will play.

Realignment is not just a numbers game. Under the new law, counties have been given new legal tools meant to help them get at the root issues that lead to criminal behavior.


Most of those tools consist of increased flexibility for judges, prosecutors and probation officers in deciding how to punish a person.


For example, in the past, if a drug offender failed to meet the terms of his probation, the only real option a probation officer had was to send him back to court, where a judge would consider whether to ship him back to prison or jail – a long, ambiguous process that resulted in delayed punishment.


But research shows that open-ended, uncertain punishments do not encourage criminals to change their behavior. What does, according to experts, are swift and certain sanctions – such as a tactic known as “flash incarceration,” in which an offender is jailed for a day or two almost immediately after violating the terms of their probation.


Under realignment, a probation officer could make this decision without sending the person back to court. And, the probation officer can tailor the punishment to an offender’s work schedule, so they don’t lose their job.


Judges will also now be allowed to mandate a split sentence – combining jail time with at-home detention, drug abuse treatment or parenting classes, for example.

Marisa Lagos, Keramet Reiter, and I will participate in an hour-long conversation about the California correctional crisis on KALW tomorrow at 7pm. Tune in, call in with your questions, and join the conversation.

Hunger Strike Ends in Pelican Bay and at Calipatria

The solidarity website reports:

Mediators who met with hunger strike representatives at Pelican Bay, one of whom had been transferred to Corcoran due to the strike, confirm that prisoners there have decided to stop their hunger strike after nearly 3 weeks. The prisoners have cited a memo from the California Department of Corrections and Rehabilitation (CDCR) detailing a comprehensive review of every Security Housing Unit (SHU) prisoner in California whose SHU sentence is related to gang validation. The review will evaluate the prisoners’ gang validation under new criteria and could start as early as the beginning of next year. “This is something the prisoners have been asking for and it is the first significant step we’ve seen from the CDCR to address the hunger strikers’ demands,” says Carol Strickman, a lawyer with Legal Services for Prisoners with Children, “But as you know, the proof is in the pudding. We’ll see if the CDCR keeps its word regarding this new process.”