The Status of Legalization: Guest Post by Brandon Yu

Our guest poster, Brandon Yu, is a Managing Editor of AllTreatment, an online rehab center directory and substance abuse information resource.

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After much months of national attention, California Proposition 19 has failed by 8 figures in nearly a 600,000 vote difference. The Proposition, which was supposed to legalize marijuana in the state of California for recreational use, was opposed since the beginning by elected officials of both parties, including Democratic Senators Barabar Boxer and Diane Feinstein and Republican Governor Arnold Schwarzenegger. The federal government likewise said it would “vigorously enforce” federal drug laws vigorously against Californians that grow or sell marijuana for recreational use.

Proponents noted many benefits of legalization. The passing of the proposition would have generated $1.4 billion a year in tax revenue, resulting significant savings for state and local governments and boosting the economy in the process. Some believed it would also reduce drug-related violence and take revenue away from drug lords. However, opponents argued that it would raise the cost for programs in substance abuse due to the supposed increase in marijuana use, and that the state’s medical marijuana program would flounder since people would gain the drug through other means.

So what does the prospects look like for legalization in California, let alone the status for the country’s future?

Marijuana laws in California have grown increasingly more relaxed in the year leading up to the proposition. Though he did not support the legalization proposition, Governor Schwarzaneggar signed a bill into law that downgraded marijuana possession from a Misdemeanor to a simple Civil Infraction during his final months as governor.

Bordering states looked to California to set an example. Measures in South Dakota and Arizona had measures that advocated for medical marijuana, but both were similarly rejected. Foreign countries, particular Mexico, had also been looking to how California would react to legalization. Mexican President Felipe Calderon, whose country had been entrenched in a drug war for the last half decade, was considering legalization in order to put money out the opposition’s pockets. The Mexican drug cartels make anywhere from $20 billion-$30 billion annually off drug trafficking alone, with marijuana comprising of 60 percent of that income. Legalization would have reduced that number dramatically by $12 billion.

Despite the setbacks, the legalization movement is stronger than ever. Marijuana legalization had been defeated before in California. In 1972 a similarly titled Proposition 19 also failed when put at the hands of voters. However, that proposition failed by a much higher margin, with a 66.5/33.5 No/Yes differential, a considerable difference than the 54/46 resulted from Tuesday.

Proponents are vowing to get a similar one on a ballot in the near future despite Proposition 19’s failure. Some exit polls have shown that some Voters think that marijuana should be legalized, in a margin of 49%-41% with 10% undecided, suggesting that voters had more issues with the wording of the proposition rather than legalization.

Blame, Accountability, Criminalization

My amazing day at CELS ended with two papers about assigning criminal accountability and criminalizing, which were particularly thought provoking in the respective aftermaths of the Mehserle trial and the failure of Prop 19. First came Janice Nadler and Mary‐Hunter Morris’ paper The Psychology of Blame: Criminal Liability and the Role of Moral Character. Nadler and Morris conducted a series of fascinating experiments in which respondents were required to express their views on criminal culpability and causality in scenarios they were provided with; respondents were provided with some background about the offenders’ moral character, and Nadler and Morris concluded that this extraneous information colored their opinion regarding culpability. The questions from the audience yielded an excellent discussion about the situations in which moral character “leaks” into the legitimate justice system, such as in discussing an offender’s motive.

The following paper was The Plasticity of Harm: An Experimental Demonstration of the Malleability of Judgments in the Service of Criminalization, by Avani Mehta Sood and John M. Darley. Sood and Darley provided their respondents with a series of rather colorful scenarios, asking them whether they saw them as violating social norms, whether they were harmful, and whether they would criminalize them. Respondents tended to ascribe harm to situations they wanted to criminalize. Sood and Darley then proceeded to provide respondents with scenarios that did not tend to invoke a lot of harm rationales, priming half of them with an instruction according to which “U.S. courts have ruled that for something to be a crime it has to cause harm.” Respondents that were primed with this instruction tended to come up with more harm rationales for their scenarios, some of them rather creative and farfetched. The paper reminded me of the harm arguments brought up against Prop 19, and the amount of pseudo-harm arguments we have heard, and are likely to continue hearing, about same-sex marriage.

CELS is a fantastic conference, I learned a lot and had a terrific time. Now, it’s back to my students and… to the California correctional crisis.

Retributivism and Restorative Justice

The afternoon panels at CELS also featured wonderful work. First I heard Dena Gromet and John Darley’s paper Gut reactions to Criminal Wrongdoing: The Role of Political ideology. In the paper, Gromet and Darley examine whether people’s support for a retributive or restorative framework depends on reason considerations, or whether it is a gut reaction. To measure that, they conducted a survey in which they asked respondents’ opinions on victims and on offenders, assessing their support for each framework. They also inquired about their political opinion (on a conservative to liberal scale). To measure gut reactions, rather than calm reasoning, they asked respondents these questions under cognitive load (made them memorize an 8-digit number while they responded). They found that the satisfaction with restoration, whether on its own or as added to satisfaction with retributivism, goes up for liberals and down for conservatives with cognitive load. Their conclusion was, therefore, that liberals and conservatives have different intuitive reactions to serious crime: Liberals endorse restoration while conservatives favor retribution.

This paper was followed by Tyler G. Okimoto, Michael Wenzel and N.T. Feather’s paper Conceptualizing Retributive and Restorative Justice. Drawing on differences in conception of justice, Okimoto, Wenzel and Feather administered a survey in which they asked respondents a series of question to establish the extent to which they subscribed to two alternative views of justice: the need to empower the victim and degrade the offender, versus the need to heal relationships and reassert consensual social values. They generated a scale that allows measuring where respondents lie along a spectrum of retributive to restorative justice.

Incarceration Length and Recidivism

This morning at CELS I heard a paper by David Abrams titled Building Criminal Capital vs Specific Deterrence: The Effect of Incarceration Length on Recidivism. Abrams sought to figure out what sort of relationships existed between incarceration and recidivism. These sort of studies often present serious challenges, because length of incarceration might reflect other factors about the defendants that might predict recidivism later on. However, Abrams built on an opportunity to control for that, since defendants were randomly assigned to public defenders of differing attorney ability. Attorney ability therefore allowed him to instrument for sentence length. The findings were that the relationship between sentence length and incarceration was not linear. For the lowest sentences, the relationship is negative; it becomes positive for an intermediate sentence length, and then negative for the longest sentences. The conclusions tie the findings with theories of criminal capital formation and with specific deterrence.

Re-Entry, Housing, and the Job Market

I am at the 5th Conference on Empirical Legal Studies at Yale University, and have heard two interesting presentations on re-entry.

Amanda Geller and Marah Curtis’ paper A Sort of Homecoming: Incarceration and the Housing Security of Urban Men compares the housing status of previously incarcerated and non-incarcerated fathers in fragile, poor families. Using a database formed for studying fragile families, Geller and Curtis compare how fathers fare during their child’s infancy in terms of housing. As measures of housing, they use not only eviction, but also other measures mortgage default and living with others. They find that formerly incarcerated fathers have more trouble finding a stable housing situation, and while some of this difficulty is attributed to lack of income, it does not explain away all the difficulty.

Charles Loeffler’s paper The Effects of Imprisonment on Labor Market Participation: Evidence from a Natural Experiment compares the job status of convicted people who were sentenced by high-incarceration and low-incarceration judges. Suprisingly, Loeffler finds that the former tend to fare better in the job market–but only temporarily. This finding might be explained in three main ways: Parole agents do a better job than, say, probation officers in finding jobs for formerly incarcerated people (but not good enough to provide enduring employment); incarceration breaks inmates’ ties to their former environment and therefore requires them to shift to the “covered” economy; or, inmates simply age out of crime while in prison.

The Post-Election Post

In the grand tradition we started in the 2008 elections, I’d like to offer some reflections about some of the results.

The first issue on the agenda is the meaning of Jerry Brown’s election for governor, especially if accompanied by Kamala Harris as Attorney General (an outcome which is still uncertain as I write this). As we said earlier in the race, while there are plenty of corrections-related reasons to be relieved that Meg Whitman will not be commanding our ship, Jerry Brown’s platform in these matters is not particularly innovative or efficient. Some have made much of his personal distaste for the death penalty and have predicted that, as part of a team with Kamala Harris, the institution may be abolished or at least halted de facto. Brown’s behavior during the countdown toward Albert Brown’s execution does not appear to predict such an outcome. It remains to be seen what sort of relationship Brown forges (or rekindles) with CCPOA, and what his position might be on Plata/Coleman, which he litigated fiercely against petitioners as Attorney General.

We then have the failure of Prop 19, which I decline to read as stemming from fear or demonization of marijuana users. Much of the feedback I received after publicly endorsing Prop 19 had to do with people who in principle supported legalization but thought the initiative was poorly designed and would lead to chaotic local regulation and, possibly, to “corporatization” of pot. I found it curious that the concerns about possible “corporatization” exceeded, for some, the concerns about racist oppressive enforcement, but to each their own. The lesson to be learned here is, perhaps, that the initiative process is not a good place for such reforms, and given the broad public support for the idea of legalization, creating an appropriate legal framework should be left to professional legislators.

Finally, a municipal disappointment was the disheartening passage of Prop L, the sit/lie ordinance. We blogged extensively here, here, here and here about the punitive and classist animus behind this initiative and are dismayed to see it come to life. Our hope is that the police will act sensibly in enforcing this measure.

CDCR Recidivism Report

CDCR has just released its recidivism report, which is fairly detailed and merits some discussion. First, I think these reports are a good start and CDCR should be commended for tracking down the information and analyzing it. The Office of Research did an overall good job at highlighting some of the major issues and, while I’m sure more could be mined from the raw data, there is enough content to comment on.

Here are some points that come to mind, in no particular order:

The recidivism rates in general, while not surprising, are disheartening, and attest to the complete failure of our prison system in achieving deterrence, rehabilitation, or both. It is telling that the statistics haven’t changed significantly over time, despite increased punitive measures. Clearly, what we are doing under the title “corrections and rehabilitation” does not correct OR rehabilitate. The percentages are particularly distressing for people who have been incarcerated at least once before.

Some interesting demographics: The report tracks people up to three years after release. Almost 50% reoffend within first six months; at one year, the percentage rises to 75%. Women recidivate at much lower rates than men (it would help to have a breakdown of this by offense, because perhaps offense patterns matter here). Unsurprisingly, recidivism declines with age. Also, recidivism rates for first-time offenders are highest for Native Americans, African Americans, and White inmates. But these effects dissipate for re-releases.

The releases from prison are unevenly distributed across counties (a large percentage of released inmates goes to LA). However, most of the folks that end up in LA are first-time releases, which explains why the recidivism rate in LA is actually the lowest. Other counties, such as SF, Fresno, and San Joaquin, have the highest recidivism rates, but they receive re-releases (for whom the rates are higher in general) more than first-time releases.

The distribution of offenses is interesting. 20% of released inmates were in for serious/violent crimes, and this percentage holds for recidivism, so it would appear that people do not “graduate” to more serious crime (perhaps they just do more of the same). Also, there doesn’t seem to be a connection between seriousness of crime and recidivism (which might suggest that it’s the institutionalization that contributes to it). Also, the report doesn’t track a connection between the original offense and the re-offense, save for sex offenders. Notably, however, 47% of returnees to prison are brought back in because of parole violations.

Re sex offenders:

This category merits special attention because it’s the one most often targeted by punitive legislative energy. 6.5% of released people registered as sex offenders. The data suggests that sex offender registration slightly reduces recidivism. However: Only 5% of released sex offenders who recidivate are convicted of an actual sex offense. 8.6% commit an unrelated crime, and 86% are back on a parole violation. This speaks volumes about the pervasiveness of registration rules and limitations and about the low risk of sex offenders.

More than half of the released inmates are in for short sentences – but for recidivists the length of sentence grows (this is probably just the effect of previous offenses enhance sentencing or of repeated parole violations.) There is a rise in recidivism for people who serve 0 to 24 months. After that, the rates decline. Possible intervening variables are health and age.

Recidivism rates rise significantly for folks released after their second incarceration (although subsequent re-incarcerations don’t make much of a difference). The returnees are also more likely to be assigned a high “risk score”. These two findings are not unrelated; I imagine that, when using the CSRA tool for predicting recidivism, one predictor of “high risk” is repeated prison sentencing. This classification therefore probably feeds itself.

On a more general note, I hope that releasing the data also means that our judicial apparatus might rethink some of its policies and approaches. In Malcolm Feeley and Jonathan Simon’s 1992 piece The New Penology, they argue that our “actuarial” approach to justice is behind a transformation from external correctional goals (e.g. reducing recidivism) to internal goals (e.g. reduce riots and escapes). If someone is keeping track of recidivism data, let us hope that the data actually gets used.

Who Benefits from Arizona’s SB 1070?

NPR reports:

The law could send hundreds of thousands of illegal immigrants to prison in a way never done before. And it could mean hundreds of millions of dollars in profits to private prison companies responsible for housing them.

Arizona state Sen. Russell Pearce says the bill was his idea. He says it’s not about prisons. It’s about what’s best for the country.

“Enough is enough,” Pearce said in his office, sitting under a banner reading “Let Freedom Reign.” “People need to focus on the cost of not enforcing our laws and securing our border. It is the Trojan horse destroying our country and a republic cannot survive as a lawless nation.”

But instead of taking his idea to the Arizona statehouse floor, Pearce first took it to a hotel conference room.

This is quite a shocking story. It turns out that private prison corporations are among the main financiers of Arizona’s anti-immigration bill. This puts a shocking, cynical slant on what would be deemed a disgraceful bill even if it were sincere, and not profit driven.

Upcoming Film Event: Presunto Culpable (Presumed Guilty)


This Tuesday, the World Affairs Council, the Berkeley Center for Human Rights and the ACLU of Northern California will be hosting a special screening of the terrific film Presunto Culpable (Presumed Guilty). Filmmakers Roberto Hernández and Layda Negrete, currently graduate students at UC Berkeley and also lawyers in Mexico, have documented the horrors of a criminal trial in Mexico, in which justice is derailed and denied by a perverse justice system that, by law and by fact, presumes defendants are guilty and prevents them from confronting their witnesses. The film follows a particularly horrific example of such travesty of justice: the trial of this José Antonio (“Toño”) Zúñiga for a murder he did not commit. The filmmakers, whose film was crucial in exonerating Zúñiga, will speak at the event (yours truly will moderate the discussion). It’s a wonderful, thought-provoking film, and you are all encouraged to attend.

When? This Tue, 10/26, 6:00 PM – 8:00 PM (check-in starts at 5:30, please arrive early for registration)

Where? World Affairs Council Auditorium, 312 Sutter Street , Second Floor, San Francisco

To RSVP, please click here.