On Populism in Criminal Justice Policy, and the Death Penalty Moratorium

Gavin Newsom’s recent announcement of a death penalty moratorium drew critique from supporters of capital punishment who argued that Newsom employed his executive power in a way that flies in the face of what the people of California want (which is, by a small majority, the death penalty to stay.) In the last week I’ve had to debate this issue on TV and on the radio with a few commentators, some more erudite than others, and even though the pace of public appearances was rather frantic, I made a mental note that I need to take the counterargument more seriously and think about populism more deeply.

Thankfully, life provided a really interesting opportunity to do so: I’m just returning home from a beautiful day in New York City, which I spent as Author-in-Residence at St. John School of Law‘s Journal of Civil Rights and Economic Development. I spent the day discussing various implications of a piece I wrote for the journal, which was loosely based on this blog post.The schedule for the day was beautifully student-centered and my gracious hosts made sure that their students got the most out of an informal conversation about writing in the morning, a great lunch conversation, and a more formal presentation with Q&A in the afternoon. 
We talked about lots of things: the perniciousness of social media mobbing, whether rage was exhaustive or generative, whether reputations soiled by formal or informal social control can be redeemed (and at what cost), whether there’s any hope for bipartisan civil discourse—in short, the things that ail and worry us all. Among the students’ excellent comments was a polite-but-passionate disagreement a student had with my position on Judge Persky’s recall. As regular blog readers know, I think the recall was a vile example of the scorched earth mentality that drives a lot of lefty activism nowadays and a terrible message for judges to be harsh. The student who disagreed with me saw it quite differently. He saw it as an important message to the judge (and other judges) that he should respect the will of the people.
After the talk, the student came over and we continued our conversation. It turned out that the student was a community organizer who was appalled by the New York State legislature’s imperviousness to impassioned public calls to change the statute of limitations in a way that would allow prosecuting prominent Catholic Church priests involved in the massive sexual abuse scandal. He expressed regret that New York had so little referendum-based legislation, because he suspected that, had the statute-of-limitations issue come up on referendum, about 80% of state voters would support eliminating barriers for prosecution. 
As the student was explaining his position, I realized something important. My hosts and I live in states that are very different, respectively, in terms of their political culture. New York is governed largely through professional, elitist bureaucracy, whereas California is governed through political and emotional populism. As Vanessa Barker argues in The Politics of Imprisonment, these divergent political cultures have shaped two very different criminal justice systems, with California’s characterized by much more punitive excess in terms of legislation and policy. Of course, the criminal process in New York is not clean of problems—the NYPD scandals and the conditions at Rikers are but two notable examples—but the sheer size of the California apparatus and its patchwork of aggressive sentencing laws reflect the punitive animus stoked in a public that votes for criminal justice policies via referendum. Because of these different cultures, our respective natural tendencies are to see the blemishes in our own environment and perceive the other system in a more favorable light. In other words, while I’m used to seeing the serious problems, excesses, and miscarriages of justice that come from a money-flooded direct democracy rife with oversimplification and disinformation, the student who came to speak to me was used to seeing the legislative elite turn a cold shoulder to the values and expectations of their constituents. 
Reasonable people can disagree, I think, on how much direct democracy is appropriate for a particular political culture. But it’s important to make this call on the basis of facts. Does the public tend to be punitive? And how punitive, and in what contexts? There is rich literature on this, which I reviewed extensively in Chapter 7 of Cheap on Crime. The gist of it is that, while the public holds complicated views on punishment and rehabilitation, it is possible (and easy) to craft questions and provide information in a way that yields punitive outcomes. For example, surveys reveal that people are significantly less likely to support lengthy incarceration when they are provided with real data about how much it costs. The problem is that, in a partisan—indeed, polarized—legislative atmosphere, there’s very little guarantee that the public will actually get credible, dependable facts; instead, supporters and opponents of a particular bill will provide a lot of noise and spin, leaving people with good will, but with little background in public policy and economics, to make their own decisions. 
One example is the idea that someone might support the death penalty in good faith because they believe that capital punishment is good for victims and that victims want it. But we know that different people process tragedy in different ways, and that not everyone sees the death penalty as conducive to their healing from a devastating loss. I can say that, in my visits to the violence prevention coalitions in Santa Rosa and in Sacramento, I heard victims’ family members espouse exactly the opposite—and those are, typically, poor people of color, whose voices do not usually ring very loud in the policymaking arena. Is it elitist, or undemocratic, to consider the possibility that the public has been systematically misinformed about what victims want, and therefore lacks valuable and relevant knowledge?
Similarly, consider this horrifying piece of news I read this morning. The violence, the sheer amount of defense required for mere survival, the blood and bodily secretions at all places… a friend posted today on Facebook that if the public knew just a little of what happens in these institutions, we would not have them. It’s not malice–it’s ignorance. Is it elitist, or undemocratic, to suggest that people who call for lengthy incarceration terms have never been inside a prison, have no idea what it looks and feels like, and cannot imagine themselves or their loved ones go through it?

Theoretically, a good compromise between my position and that of the student might be a referendum system that also delivers nonpartisan information about the bills (particularly the budget) and limits expenditure and propaganda to a minimum. How that is to be achieved in a country in love with an absolute First Amendment is a difficult question. What leads me to despair is the fact that, in general, we’re experiencing a fairly shaky hold on the truth in the last few years, intensifying the already existing problem of voter ignorance and campaign misinformation that plagues referendum systems.

It’s pretty distressing to end up with this position, which seems to dovetail with Tom Lehrer’s introduction to one of his songs, where he says that “the reason folk songs are so atrocious is that they were written by the people.” An old friend who grew up in Saudi Arabia told me of going to public executions at the ripe age of 9 and seeing the crowds cheer. Sometimes we need to be dragged, kicking and screaming, away from a site of an atrocity by a responsible adult. I think what Newsom is trying to do is be that adult for us. 

Oh, and let’s talk more about this on April 9 at 7:30pm at Manny’s. Here’s the link to the event–I hope to see many of you there.

Barr v. Sessions: A Return to Cheap on Crime?

A short while ago I posted about the bipartisan enactment of the First Step Act, a bipartisan compromise bill offering evidence-based rehabilitation programming and early releases for nonviolent drug offenders. Harkening back to the pre-Trump era of cooperation, the animus behind this law is pragmatic, but I does have some important humanitarian provisions, such as the categorical prohibition of shackling pregnant women or women who have just given birth.

William Barr’s confirmation hearings yielded many interesting insights into his future as Attorney General. For me, one interesting moment was when Chuck Grassley (!!!) pressed Barr on his tough-on-crime record. The Brennan Center reports:

“Will you commit to fully implementing the FIRST STEP Act?” asked Sen. Chuck Grassley, a key champion of the law. 

“Yes, senator,” Barr responded. Barr said that when he was last attorney general in the early 1990s, the violent crime rate was high and prison sentences were short. The system had broken down, he said. Barr argued that the growth of the prison population helped bring crime down since then, something the Brennan Center strongly disputes. But he acknowledged that times have changed. 

“I have no problem with the approach of reforming the prison structure and I will faithfully implement the law.”

This excerpt is a real gem. First, note that the question comes from Grassley, not usually who you’d think of as a champion for the oppressed. Second, note that Barr does not just say he’ll uphold the law, but actually goes into the merits of the law and essentially makes the argument that times have changed.

As the Brennan Center reports elsewhere, Barr is no bleeding heart prison reformer himself. The exchange between him and Grassley is an exchange between two Republicans, which confirms that much of the spirit of Cheap and Crime is alive and well.

This makes Sessions’ tenure as Attorney General even more interesting as an outlier. When touring with Cheap on Crime, I met Vikrant Reddy, an interesting and sharp-minded thinker about criminal justice reform on the right side of the political map. When we met, Reddy was working for Right on Crime, a conservative think tank about which I wrote extensively in the book. Right on Crime was making the argument that economic sustainability and small government principles required trimming the criminal justice apparatus, calling a truce on the war on drugs, and considering programs for reducing imprisonment. He has since then changed affiliations and now works for the Koch institute as a Senior Fellow. When we met, I asked Reddy what he thought about the diversity of opinion about criminal justice within the Republican Party. He said something that I found very interesting.

There was a generational gap, Reddy explained, between “old-skool” Republicans, who came of age politically during the era of high crime rates between the 1960s and 1980s, and the newer generation of conservative politicians, who were representing constituencies that experienced much safer streets and communities. The latter group was much more open to political compromise, if only for the sake of financial prudence.

Sessions is definitely a card-carrying member of the former group of politicians. In his confirmation hearings, he referred to marijuana smokers as “bad people”, an approach woefully out of touch not only with empirical research but with public opinion across the political spectrum. In an era of reasonable Republicans invested in reform, the Trump administration had to look long and hard for the only war-on-drugs dinosaur left in the Republican Party, and in Sessions, they found this rare and dying breed, to the detriment of us all: Sessions proceeded immediately to instruct federal prosecutors  to adopt a “zero tolerance” policy, which the prosecutors themselves called him to recant.  He revoked the Obama-era moratorium on the use of private prisons and took part in various other nefarious criminal justice initiatives that could not be justified by humanism or by efficiency.

What is interesting about Barr is that he is not a younger politician. His record on criminal justice from the early days is appalling. And nonetheless, he has been able to look around him, notice that the world has changed, and assure Grassley that criminal justice reformers will find him cooperative and willing to listen to reason. I find a glimmer of hope in this. Old punitive dogs can, and do, learn new tricks sometimes.

—–
Thanks to Jodi Short for our conversation about this.

CCC Field Trip: Wrongful Convictions in Ecuador (and, SCOTUS tells Jerry off)

By now, many readers have already heard the news: Gov. Brown’s plea to modify the release plan and avoid releasing 10,000 inmates per the Plata mandate has failed in the Supreme Court. Justice Kennedy authored the decision.  Law enforcement is already grumbling.

I’m on Quito, Ecuador, on vacation and don’t want to get aggravated, so if you like, go read Scalia’s dissenting opinion for yourselves.

 Quito is a beautiful high-altitude city in the shadow of Mount Pichincha, with amazing art, colonial architecture, and marvelous parks. And, of course, as one does, the first thing I did this morning was read the local paper, El Comercio, which featured this amazing story about a wrongfully convicted man and his post-exoneration life.

Here’s the bit that caught my eye:

Según datos de la Defensoría Pública, el 65% de personas apresadas recuperó su libertad porque no se hallaron pruebas en su contra. Estos datos fueron levantados desde el 2007 hasta el 2010.

(According to data from the Public Defender, 65% of arrested people were freed because there was no proof against them. These data was collected between 2007 and 2010. My translation–H.A.)

In fact, the article notes that wrongful convictions are so common that the Public Defender’s office has a psychological department dedicated to help exonerated people deal with the stigma and reclaim their lives.

Expect more reports on the Ecuadorian justice system.

Crime Policy At Forefront of Oakland Mayoral Race

For the readers who may not have caught this SF Chron piece, it provides some information about the crime policy of different candidates for Oakland Mayor. It makes for a fascinating read; and interestingly, not all the candidates are uniformly knee-jerk-tough-on-crime-for-the-sake-of-it.

City Councilwoman Jean Quan says the city needs to preserve its community policing efforts, bolstering neighborhood-based programs that many credit with cutting crime. She voted to keep some of those programs even at the expense of officers’ jobs.

Former state Senate leader Don Perata is willing to throw many such programs out the window if it will keep more cops on the force, a stance that has earned him the support of the police union.

And City Councilwoman Rebecca Kaplan points to economic development strategies that could provide jobs for residents, rather than more funding for the Police Department, as the surest way to cut crime.

In other Oakland news, it appears that Johannes Mehserle, convicted of involuntary manslaughter in relation to Oscar Grant’s shooting, is seeking a new trial. The relevance of his new evidence to the issue of his guilt seems rather tenuous, but I guess we’ll have to wait and see.

Senator Cuts a Special Deal to Keep Parolees Out of His County


One of the sex-offender related legislative innovations of the last decade was the introduction of residence restrictions. As we explained elsewhere, residence restrictions, which prohibit registered sex offenders from living near schools or parks, have made many parts of California inhabitable for those formerly for sex offenses, many of whom have become homeless.

As to others, well, it turns out that at least one CA lawmaker thought they should stay out of his county, even before Jessica’s Law was enacted. . The Sac Bee reports:

In what state Sen. George Runner characterized as a “side agreement” with the California Department of Corrections and Rehabilitation, the prison and parole agency said it would limit assignments of released offenders into the Antelope Valley to those who had “historical ties” to the area….

CDCR officials, saying that the deal violated the law, terminated the agreement this spring.

“When we took a look at it, we said we can’t treat offenders in this county any different than offenders in any other county,” said Terri McDonald, the CDCR’s chief deputy secretary for adult operations.

Runner sees the agreement as a proper way to correct the imbalance generated by the habit of “dumping” parolees in Lancaster Valley.

“From the very beginning, there was not a connection between the issue of ‘Jessica’s Law’ and this particular issue of parolees in the Antelope Valley,” Runner said in an interview.

He said that the location of a major, maximum-security prison in the Antelope Valley combined with the area’s relatively cheap housing made it “easier to dump (parolees) in Lancaster.”

I think this story is an interesting lesson in the side effects of sweeping punitive legislation, and it is a good reminder of the inequality between different counties. Can we imagine how the segregation of parolees into specific counties might contribute to the big differences in how they are treated and perceived?