BREAKING NEWS: Amicus Brief Submitted in Felon Disenfranchisement Case

“Vote” by Anthony Papa,

Today I filed an amicus brief on behalf of a list of leading criminal justice scholars, supporting petitioners in All Of Us Or None v. Bowen. AOUON and other organizations have filed a petition asking that the Secretary of State allow people serving their sentences in jails post-realignment, or under community post-release supervision, to vote in the elections. In doing so, they rely on the California Constitution, which grants the vote to everyone except those “imprisoned or on parole for the conviction of a felony”. The Secretary of State, however, guides inmates not to vote if they are felons, even if they are serving their sentence in jail.

Here’s the summary of our argument in support of the petition:

Following the California Criminal Justice Realignment, inmates convicted of non-serious, non-violent, non-sexual offenses will serve their sentence in county jails, rather than in state prisons. The legislative history of AB 109, as well as its language and the practices it directs and encourages, suggest that the legislature intended to use local facilities not merely as a cost-saving measure, but rather as a tool in recidivism reduction through community corrections, reentry and rehabilitative programming. Amici posit that the local setting of jails is an ideal locus for implementing community reintegration goals, and that civic involvement, including enfranchisement, is paramount to these goals. A broad interpretation of the right to vote as including all population in local jails—convicted of non-serious, non-sexual, non-violent offenses, felonies and misdemeanors alike—is fully congruent with these goals. Moreover, enfranchising a broader population, as a result of AB 109, would increase democracy and encourage participation of underserved low-income communities and communities of color in the political and civic process. Finally, Amici rely on empirical research findings to suggest that enfranchisement of all jailed and formerly jailed individuals can positively contribute to recidivism reduction, a socially and economically desirable outcome.

The full brief can be downloaded from Dropbox.

Plea Bargains: Not Such a Bargain

A new study by David Abrams, recently published in the Journal of Empirical Legal Studies, casts doubt upon one of the classic assumptions of the criminal process: That plea bargains pay off for defendants.

More than 90% of all criminal cases, in CA and elsewhere, end in plea bargains rather than in a jury trial. Rather than this being an aberration, it is, as some commentators believe, a necessary mechanism to account for the cost and hassles of an impractical and unsustainable jury system.

The common understanding of the plea bargain system is that each party to the agreement gains and loses something by the bargain. The prosecution is prepared to offer a sentence that is less than what the defendant might receive from the judge in return for an expedited and less expensive resolution of the matter, leaving prosecutors with more time to devote to cases on trial. The defendant, however, gives up his/her right to trial for the certainty that s/he will not incur a “trial penalty”, that is, be sentenced more harshly by the judge if he or she is convicted.

But it turns out this may not be true.

In Is Pleading Really a Bargain?, Abrams runs regressions on a dataset from Cook County in an effort to predict which trial strategy (trial or plea bargain) yields a more lenient sentence. The results, as described in the abstract below, are surprising.

A criminal defendant’s decision of whether to accept a plea bargain is one with serious consequences both for his or her immediate and long‐term future. Conventional wisdom suggests that defendants are better served by entering into a plea bargain, to avoid what is known as the “trial penalty.” In this article I present evidence that this notion is likely mistaken. In OLS regressions using data from Cook County state courts, I find that a risk‐neutral defendant seeking to minimize his or her expected sentence would do substantially better by rejecting a plea bargain. I also employ an IV approach to the question and, while the instrument is weak, the results are consistent with the OLS: defendants are better off going to trial.

Admittedly, there are some methodological problems with Abrams’ piece. Since he’s using court data, he cannot appropriately control for self selection of cases; it may well be that defendants who chose to go to trial did so because they, or their defense attorneys, thought they had a better chance with the judge. Nonetheless, his analysis is impressive.

Abrams offers two possible explanations for his data. The first is the availability heuristic. Defendants perceive trials as being more lengthy and more harsh, because they are exposed to sensationalized trials via the media. The second is the difference in interest between defendant and defense attorney, which I expect grows when public defense offices are weighed down with caseload and slashed budgets.

I have a third possible explanation, which I believe is at least as plausible. In a world of mass incarceration and normalized, mechanical sentences with little discretion, bargaining is more like buying groceries at a supermarket than at a Middle Eastern bazaar (this analogy is Malcolm Feeley’s). In this sort of situation, the bargain price comes to manifest exactly what the prosecution expects from the court given the vast amount of evidence predicting it. The cases that go to trial are cases in which the defense believes there are enough unique features to take them out of the “normal crimes” category and make them seem special enough to the judge to warrant a downward departure from the acceptable range. And so, since so few cases go to trial, the ones that do appear special and benefit from the special attention. Some research by the late Yael Hassin, which compared actual parole committees to computers in terms of predictions of dangerousness in early releases, suggests that providing agencies with more discretion (in parole, sentencing, and the like) yields more merciful and lenient results. If so, it is not surprising that judicial attention, in a universe of otherwise mechanized sentencing, yields more lenient sentences.

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,
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 ( 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.

Are Gang Members Special? From the California Supreme Court to Pelican Bay

This month the California Supreme Court, presiding at UC Hastings, heard oral arguments in People v. Vang, an assault case involving gang expert testimony. Under California sentencing laws, a gang sentencing enhancement requires the jury to decide whether the defendant committed the offense to benefit the gang. Evidence to this effect is often presented through the testimony of gang experts, usually police officers, who testify as to the norms and practices of gangs in general and the gang in question, to show whether a given defendant’s behavior falls in line with gang-related behavior. In Vang, the prosecutor asked the cop/expert two detailed hypothetical questions based on the facts of the assault according to the evidence, then asking the expert whether an assault under such facts would be gang related. By doing so, argued the defense, the prosecutor thinly disguised questions regarding the actual defendants’ behavior as hypothetical scenarios, effectively substituting the testifying cop/expert’s logic and common sense for the jury’s. The government, on the other hand, argued that it would be difficult to define permissible questions that are abstract enough to require the jury to make a “logical leap” and independently assess the perpetrator’s mens rea, while only being provided with guidelines from the cop/expert about the impact of gang membership on the development of such mens rea.

Setting aside the important criminal justice question of the merits and pitfalls of treating police officers as supposedly impartial ethnographers and gang experts—this practice is, by now, modus operandi in California courts—I would like to suggest that there is an even more fundamental issue at the root of Vang: The assumption that gang members are fundamentally different from other people; that their behavior is governed by special rules inaccessible through common personal experience; and, therefore, special knowledge is required to make sense of them and interpret their lifestyle to the ordinary jury member. This assumption did not originate with modern gangs; it is approximately 150 years old.

In 1865, a doctor named Cesare Lombroso wrote the first medical criminology book, titled L’Uomo Delinquente (“The Criminal Man”). Lombroso’s premise, a novelty at the time, was that criminals were innately different from law-abiding citizens, and predisposed to commit crime by virtue of being “atavistic”, that is, “stuck” in a less-developed evolutionary phase. Lombroso gleaned this predisposition from a series of medical findings involving the measurements of inmates’ skulls (based on the then-popular science of phrenology), their bodily and facial features, tattoos, handwriting, and laughter patterns. Pages upon pages of the book included photographs showing the common features of criminals and distinguishing these “special” features from those of ordinary people.

In the years since 1865, we have come to reject Lombroso’s “science”, both in itself and as a measure for establishing criminality (not before making a lamentable detour into the territory of eugenics for several tragic decades). However, the idea that criminals were special, or somehow different from law-abiding citizens, persisted. Much of the criminology of the early 20th century consisted of ethnographies and observations of criminal groups under the assumption that lack of privilege, living in a given neighborhood, or having a certain subset of role models shapes a unique human being, predisposed to commit crime. This literature—much of which was, admittedly, incredibly helpful for understanding phenomena such as juvenile gangs—suggests that, while some human beings are within the realm of the knowable through common sense and life experience, others cannot be understood without the benefit of special expertise.

Today’s California gang members are the new Lombrosian criminals. To curb criminal gang activity, we have adopted special sentencing rules and uniquely oppressive correctional practices. This special treatment goes beyond the mere development of special investigation practices, evidentiary rules and penal technologies; it includes the development of a new body of knowledge that regards gang members as special, their lives and behavior beyond the reach of ordinary human common sense. But we have done more: By examining gang practices as special and unique, through the lens of clinical expertise, we have relegated gang members to the status of incorrigible specimens, who can only be studied, controlled, governed, and suppressed through special, dehumanizing technologies.

The perversity of this approach is evident these days, as the Pelican Bay inmates plan on renewing their hunger strike on September 26th. The hunger strike, which lasted for 21 days in July and received woefully little media coverage, aimed at changing the correctional policies involved in incarceration at the Security Housing Units (SHU) in Pelican Bay. When inmates are identified as gang members, they are subject to a penal regime that consists of complete isolation for 22 ½ hours a day in tiny cells, their only companion often the blearing sound of a television set. Their daily respite from years of solitary confinement is a 90-minute outing in a barren exercise pen surrounded by 15-foot-high concrete walls and a limited sky view. The entrance ticket into the SHU consists of being identified by prison authorities as a gang member, placing the burden of “debriefing”—disavowing and disproving gang membership—on the inmates themselves, most of whom never find their way out of the SHU. Despite consistent findings by social psychologists about the immense, irrevocable harms of subjecting human beings to a regime of isolation, and despite a federal judge’s comment in 1995 according to which such practices “hover on the edge of what is humanly tolerable”, courts have consistently found SHU incarceration practices constitutional.

To add insult to injury, during the July Pelican Bay hunger strike CDCR officials went on record discrediting the strike because it is “led by gang leaders.” This argument is the epitome of Lombrosian thinking. It implies that the public is to disregard the merit in the striking inmates’ claims against the dreadful conditions of their confinement merely because they are (suspected to be) gang members or led by gang authorities. Why would the arguments against solitary confinement and its devastating effects on the human psyche be any less valid just because the humans making them, and subject to them, happen to be (suspected of) belonging to gangs?

Indeed, gangs are unique organizations. So are corporations, hedge funds, motorcycle clubs, cults, schools, military units, and academic departments. Crime has occurred in each and every one of these contexts, and while criminal decisionmaking has required an explication of the social setting for the crime, it has not deprived us of the sense that juries are capable of understanding these microcosms of human experience. Nor has it implied that any of these settings rightfully denies its participants of human status. While belonging to a subculture has important implications as to a person’s behavior, social context, and range of choices, it does not deny the person’s humanity, relegate his or her behavior to a place beyond the realm of the logically accessible, or make him or her less worthy of basic necessities and rights. Gang members may be more difficult to explicate—and empathize with—than people whose lives more closely resemble that of the average jury member, but they are people, just like prosecutors, jurors, and prison officials. As such, their lives are not completely beyond the realm of reasoning, understanding, and empathy. As we follow up on the upcoming hunger strike, we would do well to educate ourselves on the merits of the inmates’ demands and remember that the measure of a society is the dignity with which it treats its weakest members.

WM3: A Personal Perspective

Even on weekend mornings, in which I could stay in bed and sleep, I wake up a bit after 5am. It’s still cold and dark, and the pool is not open yet, so there is no hurry. This evening we have dinner guests and are planning to watch Paradise Lost, a documentary about the recently released West Memphis Three. Next week I’ll be showing the same movie to my seminar students. It’s not an easy movie to watch, and for the most part what I remember from the last time I saw it are the horrifying crime scene photos, shown at the very beginning with a Metallica soundtrack. This is why I don’t buy the radical criminology paradigm wholesale, but find myself more in Jock Young’s camp of radical realism. Crime is real and victimization is real. It’s not all socially constructed. Someone did murder those kids and abuse them in horrifying ways, leaving them in the woods, their little bodies in deplorable condition. But I believe, as do many others, that that someone was not Damien Echols, nor was it Jason Baldwin or Jesse Misskelley.

I don’t remember whether I knew about the case when I was in law school in Israel. It was in the early 1990s, and Damien Echols and his supposed accomplices were arrested when I was in my second year. Echols and I are the same age. Since 1993, I graduated law school, worked criminal defense for five years, changed countries several times, finished two advanced degrees, handled health and family changes, made many new friends, and have been very blessed in a life of research, pedagogy, political action, endurance sports, and music of all kinds. Throughout this time, Damien Echols lived on Death Row in Arkansas, his skin turning translucent white from the lack of sun. He seemed almost extraterrestrial last week, giving interviews, pale as death itself and wearing dark sunglasses to protect himself–from what? The sun, the people, the abundant stimuli of which he was deprived for eighteen years?–sitting by his wife and co-defendants and quietly proclaiming his innocence, as he had done throughout his arrest, trial, and lengthy incarceration.

The documentary is rather long and includes extensive in-court footage. Seeing it years before the Alford plea that released the three defendants was like witnessing a dreadful train wreck in progress. Richard Ofshe, an expert on false confessions and memory fallacies, testifying about the many problems with Jesse Misskelley’s confession; the Arkansas prosecutor sneering at him, saying, “we’re not in Berkeley.” The “cult expert”, on the witness stand with his mail-order degree, blaming the defendants for a murder showing supposed Satanic features, as they were the only kids in town who wore black and listened to heavy metal. The complete lack of physical evidence.

Several commentators said this week that the DNA evidence “excluded” the defendants’ involvement in the crime .That’s not true, but it’s as good as true. DNA was found at the crime scene, and it does not belong to any of the defendants. It is, of course, possible that the defendants were at the scene of the crime and did not leave DNA there, but it is highly unlikely. It was a messy set for extensive, cruel carnage, and high school boys would probably not have the sophistication and know-how to avoid leaving any marks. So, the convictions rested on the confession of Misskelley, a frightened boy with low IQ, pushed and manipulated by the police, who planted details of the crime within his confession.

The big mystery, of course, is the Alford plea. It doesn’t exactly mean the defendants have pled guilty. Alford pleas allow defendants to maintain their innocence while acknowledging that there is factual basis for their convictions. Why the state offered the deal is a no-brainer. The plea explicitly rules out the possibility of a 1983 lawsuit, which would entitle the three defendants to a hefty sum in damages. Moreover, it allows the state actors to escape accountability for what appears to have been a terrible miscarriage of justice. The defendants’ decision to accept the plea makes sense when considering the alternative, but raises some serious questions. Their new hearing, complete with DNA evidence, was to be held in a few months (and might still be held.) I can only imagine the horrors of repeated miscarriages of justice would drive one to admit anything, as long as it entails a certain release from prison, and particularly death row, rather than take one’s chances on one more hearing. Nonetheless, odds seemed better than ever that the miscarriages would finally be examined and fixed. One can only imagine the set of cost-benefit considerations that went into deciding whether to agree to this plea.

So, this week my friends, my students and I will revisit a particularly dark chapter in the book of American criminal justice, and will have an opportunity to ponder upon the inevitability of human cruelty, alienation, and hatred, and the destruction it brings to lives and communities.

“This planet upon which I live is ostracized from God.” –Jacob Wassermann, Das Gold von Caxamalca

Crimmigration: The Dark Side

The Lawyers’ Committee for Civil Rights, with the ACLU and several other civil rights organizations, have filed a lawsuit seeking to stop the practice of shackling undocumented immigrants appearing before immigration court. The Huffington Post reports:

According to the lawsuit, the overwhelming majority of prisoners who show up in immigration courts have no violent criminal history. The lawsuit seeks to compel the Department of Homeland Security to make individual determinations about shackling rather than have a blanket policy. DHS officials declined to comment Wednesday.

This practice, and others, are an example of the false dichotomy between criminal and immigration matters. Make no mistake – these two issues are closely interrelated, as the financing of Arizona’s SB 1070 by private companies demonstrates. Shackling is a distressing practice, and we’ll be following this lawsuit closely.

Extra credit: As always, the question if one of incrementalism versus radicalism: Is the call to “stop treating undocumented immigrants as criminals” equivalent to a call that perpetuates treating criminals the way we have been treating them? Hmmmm.

“A Crime Was Definitely Committed on this Case, But Not By Me.”

(photo by AP’s Patrick Semansky, courtesy NPR)

This week, the Supreme Court decided Connick v. Thompson. The decision received some justifiably scathing critique, and this morning, an eloquent, moving response from John Thompson himself, the man who spent eighteen years in prison, most of them on death row, for a crime he did not commit, because of prosecutorial misconduct. For an excellent summary of this distressing affair, and of Thompson’s dramatic last-minute acquittal, I recommend the excellent NPR coverage. It’s difficult to provide a short version, but the facts are, in essence, as follow:
Thompson got arrested for murder and subsequently charged with an unrelated burglary. The prosecution decided to proceed with the burglary trial first, because a conviction would rule out Thompson’s testimony in the murder trial and would allow them to seek the death penalty. They did not reveal to the defense several important pieces of exculpatory evidence, including a blood sample taken from the crime scene. Thompson was convicted of burglary, did not testify in his murder trial because of the conviction, got convicted of the murder, too, and sentenced to death.
A month before his execution, a private investigator managed to unearth the blood sample hidden almost twenty years before. The blood type did not match Thompson’s. Thompson was retried and acquitted of all charges.
Unbeknownst to Thompson at the time, several years before the discovery – when he had already been in death row for years – one of the prosecutors, diagnosed with a terminal illness, revealed to another prosecutor that he had withheld the exculpatory evidence. Now aware of the misdeed, no one else in the prosecutor’s office had done anything to bring this information to light. After his exoneration, Thompson sued the prosecutor’s office for damages under Section 1983. He was awarded 14 million dollars in damages by a jury. The decision was appealed to the Supreme Court.
Justice Thomas’s opinion was that the prosecution’s failure to disclose the exculpatory evidence did not constitute a general flaw on the municipal/organizational level. The opinion states that this was a personal, intentional misdeed, and that there was no duty to train attorneys in discovery rules beyond what they learned in school. Justice Scalia’s opinion is even more alarming: He says no discovery violation was committed, at all. Justice Ginsburg’s dissent points out a pattern of prosecutorial misconduct at the office, arguing that better training might have prevented this tragedy.
Here are my two cents about this: The opinion and concurrence are wrong, empirically and morally. But the dissent also misses the point. Whether a given discovery error, or any other prosecutorial error, stems from negligence, lack of training, or intentional deed, it occurs within the fertile Petri dish of prosecutorial organizational culture.
Classic social science courtroom research in the 1960s and 1970s focused on “the courtroom workgroup”: Judges, prosecutors, and defense attorneys. In ethnographical studies of these groups, scholars have consistently found a strong adherence to the organizational culture of the office. One “goes native” upon starting to work there, and it impacts not only one’s value system, but also how one reads criminal cases.

It’s as if prosecutors are trained to see the faces and defense attorneys the vase, or vice versa. Prosecutors are trained to look at convicting evidence and at the “convictability” of the case. Defense attorneys are trained to find flaws in the police files. After a while – and it really doesn’t take much – it becomes a second nature. Very little crossover and cross-pollination occurs, and as a result, ironically, the people in charge of spotting exculpatory evidence are prosecutors, who would naturally be less inclined to notice its exculpatory nature.

I sometimes run a little experiment when I teach our criminal law concentrators. Following this interesting experiment, I show them this video of a police chase and ask them several questions: Whether they think the driving was dangerous to the driver, the police, the public, and whether ending the chase in a way that endangered the driver was justified on the part of the police. Without fail, every year the classroom splits along several demographic lines, the notable being people who have interned in prosecutorial offices and in defense offices. Not only is there a split on whether the behavior was justified. There is a split about the facts; they have been socialized to perceive the facts in different ways.

This is what I think is at the bottom of this. One man’s willful act of deceit gets support by others, who are too lazy/obtuse/corrupt to report, but all of this cannot happen without a culture that has educated them to dehumanize and disbelieve defendants, even in the face of evidence to the contrary. This cognitive failure is not an aberration; it is the natural outcome of a hyper-adversarial system, in which prosecutors basically run the show.

The bottom line is: Justice Thomas is wrong. Justice Scalia is even more wrong. Thompson should have prevailed. However, I am much less optimistic than Justice Ginsburg, and truly believe that no amount of training could have helped here. What is needed is more socialization, starting in law school and continuing, into the thinking patterns of the other side. Prosecutorial offices should hire more people with defense experience and vice versa, and those people – trained into the ways of thinking of the other side – should run training programs. Law school should emphasize the importance of arguing both ways, not as an empty exercise in fancy rhetoric, but as a tool for improving perception. The bar exam should place more weight on the performance exam, asking future practitioners for persuasive memos in both directions. And, of course, toning down our farcical, game-show-like enthusiasm for hyperadversarialism would help, but that may not happen in my lifetime.

Death Investigations: Incompetence, Negligence, Tragic Mistakes

This excellent and disturbing Frontline documentary exposes the deplorable state of death investigations around the United States. Incompetent, inattentive pathologists, whose performance is never scrutinized, work for medical examiner offices whose accuracy and adherence to professional standards is never reviewed or accredited. People with no medical education or skills are employed as medical examiners. While numerous medical examiner offices are portrayed, considerable attention is given to terrible mistakes in Sonoma County and elsewhere in California.

This relates to the focus of this blog in two ways: First, one of the distressing implications of incompetent death investigations is the potential for wrongful convictions. And second, considering the high incidence of inmate deaths, the concern is that deaths resulting from negligence (or worse) of correctional personnel will go undetected.

Props to Crystal Ratliff for the link.

More on Plata/Coleman Oral Arguments

A few more details on the oral arguments for the benefit of our readers:

The State’s case, presented by Carter Phillips, started with strong statements regarding the receiver, and how his appointment and deeds were remedy enough. Phillips caught much flak on this from Justices Ginsburg and Sotomayor, who pointed out that the receiver himself declared several times that his efforts at improvement would be futile without a decrease in population.

Justice Sotomayor left little doubt as to where she stood on the state’s failure to provide care (and generated some rudeness from Justice Scalia):

JUSTICE SOTOMAYOR: So when are you going to get to that? When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?
Your Honor.
JUSTICE SCALIA: Don’t be rhetorical.
MR. PHILLIPS: I’ll do my best. Thank you, your Honor.

Justice Kennedy, who as many commentators said is key in this case, seemed to accept the idea that overcrowding is the cause for the medical crisis.

JUSTICE KENNEDY: Overcrowding is the principal — overcrowding is the principal cause, as experts have testified, and it’s now time for a remedy. The Court can’t — has to at some point focus on the remedy, and that’s what it did, and that it seems to me was a perfectly reasonable decision.

And elsewhere:

But I think it means that overcrowding must not be ordered unless that is the only efficacious remedy in — in a permissible period of time. And it seems to me there is massive expert testimony to support that proposition on the part of the prisoners.

Justice Breyer also seemed to be sympathetic to the appellees, from a pragmatic standpoint:

I mean, I read the newspaper. It doesn’t seem to me California has been voting a lot of money for new programs. The — the — what is it — what is it specifically that would happen that would cure this problem were we to say — I mean, a big human rights problem — what would we say — what would happen if we were to say, no, this panel’s wrong? What would happen that would cure the problem?

Justice Kagan highlighted the main problems with judicial review – to some extent providing support for the original three-judge panel and its dedication:

JUSTICE KAGAN: Mr. Phillips, my trouble listening to you is that it seems as though you are asking us to re-find facts. You know, you have these judges who have been involved in these cases since the beginning, for 20 years in the Plata case, who thought we’ve done everything we can, the receiver has done everything he can; this just isn’t going anywhere and it won’t go anywhere until we can address this root cause of the problem. And that was the view of the judges who had been closest to the cases from the beginning and the view of the three-judge court generally. So how can we reach a result essentially without, you know, re-finding the facts that they have been dealing with for 20 years?

Phillips: there have been big developments, but the state itself limited discovery from 2008 onward.

Phillips also distinguished the medical from the mental health problems. The Coleman problem, as he stated, was worse; and he said,

if the Court were to conclude ultimately that Coleman ought to go back for another analysis based on the problems there, I could understand that. And it would be a very different prisoner release order under those circumstances because then you would have to take out all of the evidence with respect to Plata and let that play out.

Questions to Don Specter, arguing for the appellees, focused on the fact that the “cutoff date” was 2008 and things may have vastly improved since then, as well as on the percentage of reduction.

By contrast to Justice Kennedy, Justice Alito expressed his opinion that there was a disconnect between overcrowding and medical care.

You could have a prison where the — the cells themselves are crowded, and yet there are other facilities available for medical care and plenty of staff to attend to those things. So what’s the connection?

He then pressed Specter to reflect on the fact that the released inmates are not necessarily of the class that is arguably compromised. Specter explained that population reduction could be done by a variety of ways, conceding that transferring inmates out of state is one possible way. (not talking about overcrowding in itself as making the operations difficult).

Justice Roberts seemed to lean toward a 145% capacity solution and pressed

The other issue on which Specter had to answer questions had to do with the public safety angle. Note the Justices’ shock at the California recidivism rates. They must truly be disconnected from the world they live in. I found this exchange particularly illuminating, and to be honest and personal, quite distressing.

JUSTICE ALITO: In general, what is the recidivism rate?
MR. SPECTER: Well, overall, the risk is around 70 percent, but for low-risk prisoners the risk is 17 percent who reviolate.
CHIEF JUSTICE ROBERTS: I’m sorry. I couldn’t — what was the first -­
MR. SPECTER: The first number when you take all parolees, all together, it’s 70 percent.
MR. SPECTER: 7-0, because — within three years. That’s what — the situation we have now, and that’s the situation that the governor, the secretary,and the court described as a failure. With parole reform you could reduce that number in many ways, and the Court described how you could do that. But the lowest –
JUSTICE ALITO: What is the lowest? It’s 17 percent.
MR. SPECTER: 17 percent, and California has a risk assessment instrument which the Court found – which the Court found could be used to make sure that what happened in Philadelphia doesn’t happen again. If I understand it -­
JUSTICE ALITO: Well, I understood that of the low-risk — if only the low-risk people are released, around 3,000 of them are going to commit another crime.
MR. SPECTER: They — but they don’t have to be released, first off. I want to make sure I emphasize the point that this is a crowding reduction measure. You don’t have to release 30,000 prisoners.
JUSTICE ALITO: They don’t have to be released if you can build enough cells -­
MR. SPECTER: Or you can divert, or you can improve the parole system so that parole violators don’t commit so many crimes. If you offer rehabilitation alternatives, if you provide a number of diversion into the community, there are a number of options short of releasing prisoners. And the 70 percent figure concludes -­
JUSTICE ALITO: The 17 percent figure goes exactly to my concern. This is going to have — it seems likely this is going to have an effect on public safety. And the experts can testify to whatever they want, but you know what? If this order goes into effect, we will see. We will see, and the people of California will see. Are there more crimes or are there not?
MR. SPECTER: Well, if it’s based on the experience in other jurisdictions, the court found we wouldn’t. And I wanted to say — to clarify one point, Your Honor: The 70 percent figure includes — doesn’t always include crimes. It includes lots of technical parole violators. People who have missed their appointments, for example. So it’s not as grave as some of the figures that are informed by the other side.

In rebuttal, Justice Kagan pressured phillips on whether the state could safely reduce population within five years.

My impression, overall, is that many of the Justices already have their minds made up, and that the oral arguments might have done little beyond furnishing them with ammunition for writing the decision. The big mystery, as Rory pointed out yesterday, is whether Justice Kennedy, who seems to see the causal connection between overcrowding and abysmal health care, will also approve of the remedy.

Historic Arguments in the California Prison Overcrowding Cases – A Guest Post by Rory Little

This morning the U.S. Supreme Court heard oral arguments in what has become known as the “California prison overcrowding cases.” The Court has not heard a case challenging prison conditions and court supervision in decades, and the 1996 Prison Litigation Act (“PLRA”), designed to restrict federal court supervision, has been unexamined until today. The Court accepted the State’s appeal (not certiorari) in two consolidated California cases. It then granted a highly unusual extra 20 minutes to the normal hour-long argument, and ran even beyond that until Chief Justice Roberts blew the final whistle. It was an historic moment in the history of these decades-long cases, and in the area of prison litigation in general.

Although an audiofile will not be available here until this Friday, observers report that the Justices were interrupting each other and even raising their voices, an unusual display of frustration in that august body. Indeed, at one point Chief Justice Roberts calmly cut off Justice Sotomayor (who had interrupted Justice Ginsburg’s question), saying “I’m sorry, could you answer Justice Ginsburg’s question first?” (The transcript is available here).

But the Justices’ reactions at this argument are not surprising – the underlying cases have generated similar frustrations and emotions for some two decades, as unconstitutional conditions in California’s state prisons have defied solution despite an unprecedented amount of executive, legislative, and judicial concentration.

At issue is the order from a special three-judge federal trial court, issued after over 70 prior orders failed to correct problems in the prisons, that directs the State to find a way to reduce its prison population to 137% — that’s right, “reduce” to 37% over design capacity. It is conceded that California’s prisons have not provided constitutionally adequate medical and mental health services to its inmates for many years. The conditions are “horrible,” as photographic evidence in the record shows. The district court found – and no one really disputes – that the problems all run back to the dramatic overcrowding of California’s prisons.

And because of the California’s seemingly intractable budget problems – as well as legislative gridlock and partisan intransigence – the huge amounts of money necessary to fix the prisons (or construct new ones) is simply not going to happen. “Pie in the sky,” said Justice Scalia today. As Justice Sonya Sotomayor remarked today, “I don’t see how you wait for an option that doesn’t exist.”

However, fifteen years ago Congress’s unhappiness with federal courts “taking over” state prison systems led to enactment of the 1996 PLRA. Now, the very existence of the PLRA, which anticipates special three-judge district courts and recognizes the possibility of court “population reduction” orders, indicates that Congress understood that, at some point a State’s unconstitutional conditions, and inability or refusal to repair them, might still lead to court supervision. The central question today was whether California’s prison system, and the three-judge court’s multi-year patience in ordering the State to fix the problems without success, warrants the reduction order ultimately entered early in 2010, after a number of prior “warning orders” went unheeded.

Also unusual is the contrast between the lawyers who presented the arguments today. The State’s agents hired Carter Phillips, a well-known Supreme Court advocate who clerked for Chief Justice Warren Burger and has argued over 60 cases before the Supreme Court. Indeed, few advocates could get away with what Phillips did this morning:
MR. PHILLIPS: Can I just finish this?

The prisoner plaintiffs hired Paul Clement, also an established Supreme Court litigator who served as U.S. Solicitor General under President George W. Bush. However, the California prisoners have been represented throughout the litigation below by San Francisco lawyer Don Spector, longtime head of the Prison Law Office, and it was Specter who presented their case in the Supreme Court today. (Although the Court was reviewing two cases, it mysteriously denied a motion for Clement and Specter to split the argument – another unusual wrinkle). Although Specter has argued many cases in his quarter-century at Prison Law, he had argued only one Supreme Court case (Yeskey v. Penn (1998), which he won summarily). Today’s cases (Plata and Coleman) present a far more difficult challenge. But Specter, steeped deep in the details of this complicated litigation, did a masterful job. He even got a laugh from the normally reserved Chief Justice (transcript p, 48). Indeed, his intricate knowledge of the facts and record paid off in a number of exchanges with Justices Scalia, who seemed plainly allied with the other side, and Roberts. And with 11 amicus briefs filed on behalf of three times as many groups, the arguments did not suffer from a lack of effective advocacy for any party.

California and Phillips clearly wanted the Court to focus on the “federalism” aspects of allowing a federal court to direct the reduction of a State prison population. But Justice Sotomayor quickly set a detail-oriented, fact-specific tone for the argument: she directed Phillips early on to “slow down from the rhetoric and give me concrete details.” The argument then proceeded on that level for the bulk of its over 80 minutes. (Justice Scalia, however, had some fun with Justice Sotomayor’s earlier remark: when she asked Phillips “When are you going to avoid the needless deaths that were reported in this record?,” Justice Scalia interjected (ostensibly directed at Phillips and not his fellow Justice) “Don’t be rhetorical.”)

In the end, decision in the case appears to focus on Justice Kennedy (who is so often the necessary fifth vote that observers call it “the Kennedy Court”). And while he did not show his hand entirely, he did interrupt Phillips’ argument that the district court acted “prematurely,” as follows: “The problem I have with that, Mr. Phillips, is that at some point the Court has to say: You have been given enough time; the constitutional violation still persists…. Overcrowding is the principal cause, and it’s now time for a remedy.” Justice Kennedy also opined that “there is massive expert testimony to support … the prisoners,” and asked why the district court’s order was not “perfectly reasonable.”

Predicting results from oral argument is a dubious enterprise at best. And certainly some Justices, notably Justices Scalia and Alito, expressed skepticism. (Justice Thomas was characteristically silent.) But Justice Kennedy’s remarks demonstrate that the Court faces a sensitive challenge here: unless it wants to become the appellate master for prison litigation around the country as state budgets become increasingly stressed, it needs to demonstrate restrained deference to federal trial judges that provide years of hearings and opportunities for beleaguered state prison systems before they act. As the newest Justice, Kagan, remarked, “”You have these judges who have been involved in these cases … for 20 years ….[H]ow can we reach a [different] result without re-finding facts…?”

Indeed, one can speculate that if this case had not come from the Ninth Circuit, and had not had red-flag liberal Judge Stephen Reinhardt on the three-judge panel, the Court might not have even found appellate jurisdiction (or summarily affirmed). On the other hand, Congress did set strict limits in the 1996 statute, and the High Court needs to interpret just what they may mean in the reality crucible of a hard case. California has argued that the three-judge court was itself convened in violation of the statute. As Specter respectfully noted at one point regarding Phillips’ argument, “my friend and I have a disagreement.” The PLRA deserves Supreme Court resolution.

In the end, Specter’s argument presented the starkest argument: “unless you reduce the crowding, nothing else is going to work.” The district judges involved had issued over 70 previous orders, and appointed two different “receivers” for the prison system, all to no avail. If any set of unconstitutional prison conditions and unresponsive state reactions can ever satisfy the PLRA’s stringent requirements, it would be this one. Yet, as the Chief Justice inquired repeatedly, how can the state reduce prisoner population without endangering public safety, as the PLRA requires? These tensions are why the Court decided to hear the unusual argument session it hosted today.

So stay tuned. A decision is unlikely to issue until late spring. And it seems likely that the case will be remanded with directions to consider amending the Order in various ways. Prison population and conditions are always a dynamic moving target, and wholesale affirmance here seems unlilkely. But whatever the result, these arguments provided a fascinating window into the arena of prison litigation, as well as the working of the “new” Supreme Court whose near majority was appointed a decade after the PLRA was enacted.