The Unbearable Lightness of Tasing

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Avid followers of the Mehserle trial for the fatal shooting of Oscar Grant at the Fruitvale BART station may recall that his defense consisted of a mistake: Mehserle argued — and the jury believed him — that he had intended to use his taser, not his gun, on Grant. This defense argument places an emphasis on the taser as an instrument aimed to minimize the usage of more harmful force. However, we may ask ourselves whether adding this option to the array of devices available hasn’t simply escalated law enforcement’s response to violations and disorder, without diminishing the number of cases in which guns are used.

The latest installment with regard to these “lesser” devices comes from an NPR story about the usage of zapping devices at the Pitchess Detention Center north of Los Angeles.

“You know when they set their phasers to stun, they did that so they didn’t kill people? Well, that’s exactly what this is. It does stun you,” says Mike Booen, a vice president of Raytheon Missile Systems. The company built the device for the Los Angeles County Jail, a scaled-down version of what it designed for the military.

“I don’t care if you’re the meanest, toughest person in the world,” he says, “this will get your attention and make your brain focus on making it stop, rather than doing whatever you were planning on doing.”

Riots are nothing new at this jail. The Pitchess Detention Center has a history of bloody inmate violence. In fact, the latest brawl between 200 inmates broke out two days after the Raytheon device was unveiled.

Dave Judge, the operation deputy for the sheriff’s department, says the machine is more effective than their usual methods of firing rubber bullets and tear gas grenades.

“This is tame; this is mild,” Judge says.” This is a great way to intervene without causing any harm. The nice thing about this is it allows you to intervene at a distance.”

With the remote-controlled device, he says, guards can focus on specific targets using a monitor and a joystick.


Whenever new techniques for order maintenance are introduced, the question is whether they might substitute the usage of lethal or otherwise harmful force, or substitute the usage of lesser options. If this is to be empirically assessed, what we need is to examine a number of incidents and count the frequency in which guns, tasers, and less intrusive techniques were used. Calculating the percentages would not be a perfect measure, because each riot and situation is somewhat different; but it would provide us with some measure as to whether the introduction of tasers is ameliorating, or exacerbating, the use of force in the detention context.

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Props to Colin Wood for alerting me to the story.

Religious Freedom: Is a Courthouse Holding Cell a “Pretrial Detention Facility”?

While this is not a correctional issue per se, it raises interesting questions. Today’s Chron reports:

A panel of the Ninth U.S. Circuit Court of Appeals in San Francisco ruled 2-1 in May that Orange County deputies hadn’t violated Souhair Khatib’s rights by making her take off the religiously mandated headscarf for security reasons when she was placed in the holding cell.

But the court said Monday that a majority of its 27 judges had voted to set that ruling aside and refer the case to an 11-judge panel for a rehearing in December.

The dispute affects thousands of inmates throughout the nine-state circuit who are taken to holding cells before being brought to court, said Khatib’s lawyer, Becki Kieffer. She said it was the first such case to reach a federal appeals court.

Kieffer argued that the majority in the three-judge panel’s ruling had misinterpreted a federal law that broadly protects inmates’ religious freedoms.

The law prohibits government agencies from imposing a “substantial burden” on the right to practice one’s religion in a prison, jail or pretrial detention facility. The issue in the case is whether a courthouse holding cell, where inmates are held up to 12 hours before hearings, is a pretrial detention facility.

Reentry: Felons Cannot be Categorically Excluded as Caregivers

The Chron reports:

An Alameda County judge blocked Gov. Arnold Schwarzenegger on Tuesday from excluding convicted felons and shoplifters from providing in-home care in a program that serves 430,000 low-income elderly and disabled Californians.

Superior Court Judge David Hunter had ruled in February that Schwarzenegger’s action was illegal because state law bars workers from the program for 10 years only if they have been convicted of child abuse, elder abuse or defrauding Medi-Cal or any patient.

In-home patients, who have access to their caregivers’ criminal records, can otherwise employ anyone they want, the judge said.

Schwarzenegger, acting by executive order, is seeking to bar from the program anyone ever convicted of a felony or certain misdemeanors, which include shoplifting. After appealing Hunter’s ruling in May, the governor had planned to implement his restrictions later this week.
The state’s appeal automatically suspended Hunter’s decision but allowed the judge to reinstate it if he concluded that the new limits on caregivers would cause irreparable harm. Hunter made that finding Tuesday, saying both caregivers and their patients would suffer if the governor’s rules took effect during his appeal.

I find this report fascinating, because it is a reminder of the mistakes we make when we engage in the “othering” of crime. To people in need of caregiving, convicted felons are not necessarily the “other”. They are their parents, siblings and close friends. Attention to these relationships–which surely are not uncommon given the large percentage of Californians who have been convicted and spent time behind bars–is important.

Does Felon Disenfranchisement Amount to Discrimination?

This question will be raised soon at the Supreme Court.

As many readers probably know, many U.S. state laws prohibit current inmates, and to differing degrees formerly incarcerated people, from voting. Accepting this as a given situation ignores other countries, in which felons (and, of course, former felons) can and do vote, and can under certain circumtances run for office. The disenfranchisement of felons has actual impact on election results: In a 2001 article, Jeff Manza conducted a fascinating quantitative quasi-experiment, proving that, had felons been allowed to vote, several U.S. senate elections, and at least one presidential election, would have come out differently.

These findings may play an important part in the upcoming discussion at the Supreme Court. SCOTUS will review a First Circuit case, Simmons v. Galvin, in which Massachusetts inmates argued against a 2000 legislative amendment disenfranchising felons. The argument is rather creative, and it goes as follows:

 (1) … the Commonwealth’s disenfranchisement provisions violated the Voting Rights Act (“VRA”) § 2, 42 U.S.C. § 1973, because the percentage of imprisoned felons who are Hispanic or African-American is higher than the percentages of those groups in the population of the state;  and (2) that the provisions violated the Ex Post Facto Clause, U.S. Const. art.   I, § 10, as to those inmates who were not disqualified from voting before the these provisions took effect.   As to their claim under the VRA, the plaintiffs make no allegation of any intentional discrimination or of any history by Massachusetts of intentional discrimination against minority voters.   All they have claimed is that past practices in the Massachusetts criminal justice system produced inmate populations which, in combination with the disqualification of inmates imprisoned for felonies, have resulted in disproportionate disqualification of minorities from voting.   Theirs is a claim of disparate impact.

The 1st Circuit found that the Voting Rights Act was not violated; that is, that it never intended to prevent states from disenfranchising felons. Citing a 1967 case:

[I]t can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws, the executives who enforce these, the prosecutors who must try them for further violations, or the judges who are to consider their cases.

That said, there is still room to argue that the disenfranchisement of felons, combined with the de facto overrepresentation of minorities, amounts to racial discrimination, which goes against the voting rights act. This is an interesting argument, and I expect it will not be an easy one to raise in the Supreme Court; our approach toward discrimination tends to rely a lot (too much) on questions of intent. In any case, it will be a discussion worth following.

Oral Arguments Re: Prop 9 in 9th Circuit

Yesterday morning the Ninth Circuit heard oral arguments in Gilman v. Schwarzenegger. As some of our readers may recall, petitioners challenged the changes made in Prop 9 to the parole hearings, and in particular the deferrals in holding parole hearings. The District Court, after finding out some statistical information about the timing of hearings before and after Prop 9, ruled on behalf of the plaintiffs. The Governor appealed, and the Ninth Circuit will regard the arguments as pertaining not only to the specific prospective parolees, but to the entire class of parolees as well.
The main premises of the Prop 9 changes to parole hearings are outlined in this excellent memo from the Prison Law Office. As the memo explains, Prop 9, marketed as a victim rights proposition, actually made substantial changes to the way parole hearings are conducted. The topic of yesterday’s arguments was the provision lengthening the time before an inmate is eligible for a parole hearing.
In the arguments yesterday, the Judges asked whether it made a difference that the new law has a “safety valve”, that is, a provision that allows for an expedited hearing at the parole board’s discretion. The governor’s representative replied in the affirmative. According to the state, the existence of the safety valve rules out any sort of statistical confidence that a given inmate would be necessarily worse off by the Prop 9 provisions. After all, a given inmate might receive an expedited hearing and be released faster than he or she would under the old law. The attorney, however, left open the possibility that statistical evidence to the contrary might be provided in the years to come. Another problem the judges had was related to the fact that in other cases in which such “safety valves” left the law intact, the default was serving the minimum sentence, whereas after Prop 9 the default is serving the maximum, unless the expedited review is provided.
The representative for the original plaintiffs did not think that the “safety valve” rules out the possibility to argue that, as a class, inmates are worse off after Prop 9. First, the ex-post-facto review the court has to pursue is irrespective of any “safety valves”, as other cases prove. And second, the terms are very problematic. Expedited review is an option only if there are new circumstances or a significant change, and it is a complicated request to make, paperwork-wise and timewise. An interesting question was whether expedited reviews should only be available if circumstances change, given the fact that different panels might rule differently on the fate of a given inmate.
We will follow the litigation and report on the results. Stay tuned!
The full oral arguments can be heard here.

Prop 9 To Be Examined by 9th Circuit

The Ninth Circuit is to finally examine the premises of prop 9 that led Judge Karlton at the District Court to decide they were unconstitutional. Avid followers of this saga will recall that Prop 9, marketed as a pro-victim proposition, pretty much provided victims with the rights they already had in many counties, but in addition made several modifications to parole proceedings, including placing substantial limitations upon the right to counsel. The constitutionality of these premises will be central to this upcoming hearing:

THURSDAY, AUGUST 12, 9 a.m.


Gilman v. Schwarzenegger, 10-15471

California State government appellants challenge the district court’s grant of a preliminary injunction barring enforcement of Proposition 9, the “Victims’ Bill of Rights Act of 2008: Marsy’s Law,” which affects California’s parole system, including the availability and frequency of parole hearings.
For previous chapters of this saga, read here, here, and here.

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Props to colleague Marsha Cohen for alerting us to the date.

“Five Faiths” Prison Chaplain Policy: Developments

A while ago, we reported about Patrick McCollum’s legal stuggle for recognition by CDCR as a paid Chaplain for the Wiccan inmate community. The Pagan blog The Wild Hunt, which is closely following the proceedings, offers a rather useful summary of the developments in the case, including some links to documents. One notable new development is this amicus brief by the right-wing Christian organization Wallbuilders, which argues that the Founders’ original intent would not have included Paganism or Witchcraft as a religion in its own right, and therefore, McCollum cannot be awarded standing for representing Pagan taxpayers. This seems to be a rather dated argument, especially in light of developments such as the Department of Veteran Affairs agreement (after a legal struggle) to allow the pentagram, a Wiccan symbol, as a marker on soldiers’ graves. Constitutional law enthusiasts might be interested in following this case when it gets to the 9th Circuit.

Residency Restrictions on Sex Offenders Apply to Parolees

More than a year ago we reported on legal challenges to the residency restrictions in Jessica’s Law. The proposition, which passed in 2006, included the following section:

This measure bars any person required to register as a sex offender from living within 2,000 feet (about two fifths of a mile) of any school or park. A violation of this provision would be a misdemeanor offense, as well as a parole violation for parolees. The longer current law restriction of one-half mile (2,640 feet) for specified high-risk sex offenders on parole would remain in effect. In addition, the measure authorizes local governments to further expand these residency restrictions.

Yesterday, the Chron reports, the California Supreme Court decided in re E.J. The 5-2 majority decision was that these restrictions apply to current parolees who were imprisoned even before the measure passed. This decision rejects the parolees’ argument that the provision is retroactive “because it attaches new legal consequences to their convictions of registrable sex offenses suffered prior to the passage of Proposition 83.” Here is the full decision, authored by Justice Baxter.

The court relies on People v. Grant, where the retroactivity of a similar provision was discussed. In Grant, the following retroactivity test was adopted:

In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party‟s liability for, an event, transaction, or conduct that was completed before the law‟s effective date. . . Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute‟s effective date. . . A law is not retroactive merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.

Applying the “last act or event” test to Jessica’s Law’s residence restrictions, the court finds:

Section 3003.5(b) places restrictions on where a paroled sex offender subject to lifetime registration pursuant to section 290 may reside while on parole. For purposes of retroactivity analysis, the pivotal “last act or event” . . . that must occur before the mandatory residency restrictions come into play is the registered sex offender‟s securing of a residence upon his release from custody on parole. If that “last act or event” occurred subsequent to the effective date of section 3003.5(b), a conclusion that it was a violation of the registrant‟s parole does not constitute a “retroactive” application of the statute.

But how do we deal with the fact that people, at the time of their conviction, did not know that one of the consequences would be a severe limitation on their housing conditions after release?

By parity of reasoning, the provisions of Jessica‟s Law here under scrutiny — section 3003.5(b)’s statutory residency restrictions — are not implicated until a convicted and registered sex offender is released from custody and must take up residency in the community to which he has been paroled. Applying the mandatory residency restrictions to these four petitioners, who were released from prison on parole after the effective date of Jessica‟s Law, and who thus had ample notice of the necessity of securing housing in compliance with the restrictions at the time they moved into noncompliant housing, is simply not a retroactive application of the new law. . . Contrary to petitioners‟ argument, the fact that they were all convicted of sex offenses giving rise to their status as lifetime registrants pursuant to section 290 well prior to the passage of Jessica‟s Law does not, in itself, establish that the new parole residency restrictions are now being applied retroactively to them.

Justice Moreno wrote the dissent (to which Justice Kennard concurred). He responds by invoking the plain language of Prop 83. And he adds:

the majority opinion‟s characterization of what constitutes the pivotal date for purposes of retroactivity analysis in this case is simply wrong. These petitioners did not become subject to the residency restriction when they were released from custody on parole for nonsexual offenses; they were subject to the residency restriction by virtue of their status as registered sex offenders and they acquired that status upon their convictions for their sex offenses. . . Indeed, the current registration law in effect requires eligible offenders to register even before they are released from prison. (§ 290.016.) Clearly, the registration requirement is imposed upon conviction of the registrable offense as are all ancillary restrictions that flow from that requirement including the residency restriction. Therefore, for purposes of the retroactivity analysis here, the pivotal date is the date of conviction for the registrable offense.

The decision in re E.J. affects all parolees who were imprisoned for sex offenses before Jessica’s Law came into effect and released after its enactment. I wonder about the size of this population. Also, either by coincidence or not, I found two emails in my inbox this morning from convicted parolees who detailed the difficult conditions of their parole, highlighting the issue of residence restrictions.

NYT on Compassionate Relief puts CA in perspective

The New York Times has a story today on compassionate release for inmates who are physically or cognitively unable to present a threat to society. This paragraph stands out:

“In California, where federal judges ordered the state to cut the prison population by 40,000, three people were granted compassionate release last year. In Alabama, where prisons are at double their capacity, four sick inmates were let out on compassionate release in the 2009 fiscal year; 35 other prisoners in Alabama died while their applications were being reviewed. Since New York adopted medical parole in 1992, at the height of the AIDS crisis, 364 people have been released.”

The situation may be egregious in New York, and proportionately worst in Alabama, but by sheer quantity California’s prison crisis is most dire. What values are we pursuing, what metrics are we optimizing, by paying for incapacitated inmates to die in prison rather than at home?

Kristof on Humanity

In case you missed Nicholas Kristof’s column in the 1/27/10 New York Times, it’s right here. Kristof relates statistics and instances of violence in prisons, especially sexual violence, especially in juvenile prisons, especially by prison guards. “I’ve never written about the horrors that unfold in American prisons — especially juvenile correctional facilities — on a far larger scale than at Guantánamo.”

Of course, it is a premise of this blog that our prisons are in a financial crisis. But as Kristof indirectly recognizes, sometimes the economic angle lets me temporarily forget the human angle. Rights that we can often take for granted in this country, including physical safety, are daily struggles frequently lost in our prisons. The real human costs of our failing correctional institutions are sickeningly deplorable, and prison reform will always be about more than money.