Drug Court Humonetarianism

Reuters has a fascinating article here on drug courts, empathy, and the monetization of humanitarianism. The author discusses shifting economic priorities in the war on drugs.

Contextually, it begins with Judge Gorsalitz’s drug court in Kalamazoo, MI. The writer’s title, “America’s new touchy-feely war on drugs,” and tone suggest amusement or even contempt for the drug-court approach, but then the litany of drug war harms and legalization benefits belies a different understanding.

The piece favors Judge Aim’s Project Hope in Hawaii, which saves money by making drug treatment voluntary not mandatory, and uses penalties of short jail stays instead of reinstating full sentences. Of course, here in the City&County of SF we have Judge Albers’s Community Justice Center — for its drug court context see Prof. Aviram’s post here.

Two Bites at the Apple: The Power of Suspending Imposition of a Sentence

Dr. Aviram has graciously permitted me to post my thoughts on one aspect of the criminal justice system that I came across in the course of a recent externship. In one particular case before our court, a trial court judge suspended imposition of the defendant’s sentence. Although it was not the subject of the defendant’s appeal, I was fascinated by the process and felt it shed light on a Judge’s role and the power of the criminal justice system. Here is how the process works in a hypothetical where I have changed the facts and names in the case:

Hypothetical

18-year old Adam Smith went out drinking late one night with a friend. After some heavy drinking, they take some cocaine Smith’s friend brought along. Intoxicated and high on drugs, they decided to throw fruit at cars from a walkway on an overpass. One orange seriously dented the front hood of a police officer’s vehicle as the officer was finishing her shift for the night. The two friends began laughing, but realized it was now time to run. When the police officer caught up to them, Smith’s friend immediately gave himself up but Smith defiantly resisted and tried to punch the police officer, striking her left shoulder and forcing the police officer to use her police taser.

On the advice of his public defender, Smith entered a guilty plea before Judge Foltz, known for her cautious leniency towards defendants who admit their crimes and save the taxpayers the expense of a long trial. At sentencing, Smith insisted that his crimes that night were childish indiscretions. He told Judge Foltz that a few days before the evening in question, he found out his father was cheating on his mother and that they would be getting a divorce. Depressed and in need of “self medication” he went out and tried drugs for the first time, and made a series of poor decisions because his friend thought cocaine would make him feel better.

Smith maintained that he was simply rebelling against the situation when he went out and did not know how to handle himself. His acts were the unfortunate byproduct of not being in his right state of mind. He promised it would never happen again. Smith’s parents testified on his behalf, and lamented that really, this incident was all their fault. Judge Foltz was reluctant to take Smith at his word, but she sympathized with his argument that it was a youthful indiscretion and found no evidence that Smith was a “bad apple.” To avoid letting him get off “scott free” for what are serious offenses but also to not unnecessarily institutionalize an otherwise good kid and ruin his prospects of college, she told Smith that she would suspend imposition of his sentence and place him on probation for a period of three years if he made restitution for any damage. Only days before his three year probation was to be over, Smith robbed an elderly woman at gunpoint at an ATM.


Now Smith went before Judge Holmes, known for his no-nonsense approach to criminal defendants. Because Judge Foltz suspended imposition of Smith’s prior sentence, Judge Holmes gets to determine the sentence for all three crimes: the first two crimes (vandalism and assaulting a police officer), as well as the subsequent crime, armed robbery. Holmes throws the book at Smith, giving him the statutory maximum for all of the crimes, including a mandatory 10-year sentence enhancement for using a gun during his robbery, giving him a total of 25 years in jail. Smith now wished he hadn’t gotten off “scott free” in front of Judge Foltz, and simply received a reduced sentence.

Commentary
It’s easy to see the downside to a defendant where a Judge suspends imposition of a sentence. A subsequent Judge will sentence the defendant knowing what crime the defendant went on to commit, and that inevitably colors a Judge’s perception of the defendant’s earlier offense. Judge Holmes looked at the mitigating circumstances of the original offenses differently from Judge Foltz, and rather than seeing them as youthful indiscretions, saw a young man committing crimes of escalating seriousness who did not take advantage of the break Judge Foltz gave him. Holmes likely felt that leniency would not do Smith any favors, who did not seem to learn from his mistake when he avoided prison time following Smith’s first encounter with the justice system. Moreover, Judge Holmes was forced to make his decision about the subsequent crime while carefully examining the details of a prior crime necessary to formulate his sentence, making the Judge less sympathetic about any mitigating circumstances of the subsequent offense as well.

There’s an obvious objection to this tool, which is that the subsequent crime cannot be considered as part of the sentencing of the original offense and vice-versa. Strictly speaking, they can’t. But a Judge probably cannot escape what he or she knows about the defendant’s subsequent and prior conduct, and thus whatever mental barriers which have been erected to compartmentalize the analysis are likely to be ineffective. A judge may simply be careful to not articulate her sentence for the earlier offense in terms of what happened in the subsequent crime.

The constitutionality of statutes which authorize judge’s to suspend imposition of a sentence has already been affirmed. Moreover, it’s not clear eliminating such a power would necessarily change the outcome. In Peterson v. Dunbar 355 F.2d 800 (1966), a court affirmed the statute granting the right to Judge’s to suspend imposition of a sentence and noted: “If there be any merit in appellant’s argument, the obvious alternative, still available to the judge, is to start at the top instead of at the bottom– to impose the maximum sentence at the outset, suspend its execution and subsequently vacate it if probation is successful, or, should probation be revoked, reduce it to the extent, if any, then felt suitable.”

From a Judge’s perspective, suspending imposition of a crime is preferable to granting a lesser sentence. Such a tool allows a Judge to distinguish between a “career criminal” and a someone who committed a “youthful indiscretion” while preserving the system’s ability to revisit the issue in light of subsequent conduct. It is likely that the tool allows a Judge to grant mercy more often by reducing the cost of leniency and allows a more accurate sentence in a subsequent proceeding because of superior information. Moreover, with the prospect of an even harsher sentence the second time around, it can serve as a greater deterrent to subsequent crime. Of course, this assumes the criminal mind rationally calculates his or her behavior based upon the length of sentence.

Nevertheless, suspending imposition of a sentence may satisfy both the DA-minded and PD-minded alike by keeping one-time offenders out of jail but increasing the sentence of repeat players. Many lawyers would appreciate the increase in discretion such a tool affords a judge, although others might fear the punitive aspects of its application. But on the whole, the ability to suspend imposition of a sentence increases the discretion of a Judge and therefore reduces the power of other institutional actors like prosecutors who might vigorously oppose leniency under any other circumstance.

It’s unclear whether suspending imposition of a sentence increases prison time on an aggregate basis or reduces it. If I were trying to generate a hypothesis on this point, I would start by determining how many repeat players are in the system. If the numbers of repeat players are extremely high, then suspending imposition of a sentence is likely to increase prison overcrowding on the whole. Additionally, I would look to what kinds of crimes Judge’s typically apply this tool towards to see how much it reduces prison sentences. In my hypothetical the bulk of the defendant’s prison sentence is still coming from the armed robbery and the mandatory sentence enhancement.
In any event, it’s a fascinating tool and has important implications for sentencing, overcrowding, and judicial economy.

Community Justice Center Picks Up

We now take a break from the State’s budget woes – though not entirely, as you’ll see – to report on the news at the San Francisco Community Justice Center.

A quick bit of background: as some frequent readers may recall, the Community Justice Center was formed to address misdemeanors and non-violent felonies committed in the Tenderloin area. Its beginnings were difficult, with politically-charged budget struggles and a high percentage of non-appearances; it later received some publicity due to the personal appearance of the SF Public Defender, who was trying to make a point about budget difficulties.

Recently, the court has been getting some media attention. The Examiner reported on the Public Defender’s Office’s objections to the court, which included, as it turns out, the argument that many of the services it offers duplicate services available elsewhere.

“Other than being able to sign up for [social security insurance] and in some cases get shelter, the services at the CJC were essentially the same type of outcomes as at the Hall of Justice,” said Adachi, who has tried to pull his staff out of the center, which he views as a waste of scant public resources. “This court was set up to provide different outcomes than what would happen at the Hall of Justice.”

A study commissioned by Adachi’s office found that 90 percent of justice center clients — the percentage served by a public defender — were found to be eligible for drug court and several other drug diversion programs already in place.

Much of the study, which was prepared by UC Berkeley Ph.D. candidate Melissa Sills using public defender data from March to June of this year, is disputed by the justice center. Measuring duplication of services requires further analysis, said the center’s coordinator, Tomiquia Moss.

Nathan Ballard, a spokesman for Mayor Gavin Newsom, also disagreed with Adachi.

“He’s wrong,” Ballard said. “A similar program transformed Midtown Manhattan in the 1990s and we need to give it a chance to succeed here in San Francisco.”

Statistics from both the CJC and the Public Defender’s Office show that about 55 percent of cases handled by the justice center are dismissed. But supporters say that even in those cases, people are referred to critically needed services. About 55 percent of offenders showed up to court in the first four months, compared to 25 percent at the Hall of Justice, according to CJC data.

That attendance rate is steadily improving, and is currently at more than 60 percent, Albers said.

At the Chron, C.V. Nevius, whose previous pieces on the subject were quite supportive of the court, offers sharp criticism of Adachi’s objection, arguing against his disappearance from the scene precisely when the court is starting to show promise.

It took five months, but the CJC is finally making progress.

Now where is Jeff Adachi? The public defender complained that defendants at the Tenderloin court never showed, and that the court was a waste of time and resources. But now that it is seeing results, Adachi’s office is AWOL.

“If I had the staff, I would definitely staff it,” Adachi said. “Certainly these are cases our office would handle if they were filed in the Hall of Justice, but we barely have enough staff to cover the Hall.”

Look, either you’re the public defender or you’re not. Your mandate is to fulfill every citizen’s right to legal representation – not every defendant whose case is heard in the building where your offices are located.

Frankly, exasperation is building.

“What are our over 400 clients supposed to do?” asked CJC coordinator Tomiquia Moss. “At what point do the numbers become important enough to be worth a lawyer’s time?”

The lack of PD jobs is affecting the system in a variety of ways and exacerbating the existing pathologies (not to mention leaving quite a number of newly minted lawyers, who have a huge potential to be phenomenal public defenders, with no position to apply for). I understand the need not to stretch defense resources too thin to the point that quality of representation decreases. A decline in quality would be what we called elsewhere “the dark side of Gideon”. Nevertheless, it is disappointing to see an important venture, which emerged from a holistic perspective aimed at solving problems from the root, go unsupported by the very people who should be sensitive to openminded solutions to street crime in the Tenderloin. What do you think?

The Process Is the Punishment: A 30-Year Retrospective

Prior to the 1960s and 1970s, most research on procedural justice in the criminal justice system focused on the Supreme Court. This is still the case, to some extent, in law review articles, which focus on watershed Supreme Court decisions to the exclusion of the courts that handle the bulk of everyday criminal cases. In the late 1960s, this trend started to change. Several classic studies on lower courts, focusing on plea bargaining, charging decisions, and public defense work, were published, challenging traditional notions of what a day in the courtroom “should” look like, and bringing to the forefront commonplace processes and events that the constitutional discourse kept hidden. Some of these included Milton Hewmann’s groundbreaking study of plea bargaining, an underwhelmingly discussed phenomenon in light of its prevalence; David Sudnow’s anatomy of plea bargaining based on stereotypization of cases according to their conformity to ideal types of “normal crimes”, and Eisenstein and Jacob’s analysis of felony case disposition. A major contribution to this literature was the classic award-winner The Process Is the Punishment: Handling Cases in a Lower Criminal Court, by my teacher, mentor, and friend, Malcolm Feeley.

In the book, Feeley provides an anatomy of the Court of Common Pleas in New Haven, Connecticut, analyzing its workings and processes from an organizational perspective. He comes to a (then) startling conclusion: The vast majority of defendants plead guilty. Virtually everyone foregoes his or her right to a jury trial. Judges, prosecutors, and defense attorneys, are jaded and overworked. Defense attorneys find themselves engaging in social work, rather than legal work. And, most important, the system generates powerful organizational incentives that push defendants to plead guilty, just so that they can avoid the process itself. Despite the fact that most defendants were not sent to jail, but rather had to pay fines, the process was so byzantine, unfathomable, and unpleasant, that most defendants did everything they could to avoid it. The concern about criminal stigma stemming from conviction was not as significant an incentive to insist on a jury trial; most defendants (disproportionally black and poor back in the 1970s as well) already had criminal records, and it was the daunting court process that they aimed to avoid.

Feeley’s findings were not meant to be entirely generalizable to other lower court settings. In fact, one of his main points was that justice could differ from one microcosm to another, and that each county had its own procedural personality, affected by the relationship between the court, the prosecution, and the defense, local politics, and the perception of heavy caseloads. Nevertheless, the main argument highlighted an important piece of the plea puzzle: a lower criminal court is more of a Middle Eastern bazaar than a sterile supermarket with prices neatly marked by every offense.

What has changed in the thirty years since the publication of Feeley’s classic? A great deal – and not a lot. The picture in terms of plea bargaining has not changed. The vast majority of defendants in lower courts still plead guilty. As the Department of Justice reports, 97 percent of all felony convictions within a year were obtained through a guilty plea (there are no misdemeanor cases on file). California statistics are difficult to obtain; databases are siloed in a way that makes it tricky to generalize, but some preliminary (albeit dated) numbers are available from the CA Attorney General’s office, suggesting similar trends.

Since 1979, incentives for plea bargaining have grown. The rise of determinate sentencing and of punitive sentencing schemes such as the Three Strikes Law has shifted the bulk of discretion from judges and parole boards to the hands of legislators and prosecutors, putting more bargaining chips on the criminal justice table. Rather than bargaining the sentence, the parties routinely bargain the charge, as well as a plethora of other provisions, such as whether the offense will be “counted” as a strike. We know (from Jeanne Woodford’s talk at the conference, and from John Pfaff’s study) that the majority of prison inmates are in prison for a very short time; it is not the length of sentence, but rather the volume of incomers, that is overcrowding California prisons and jails. Many of these are the product of plea bargaining in order to avoid much longer sentences.

This leads us to one significant change from 1979: sentences have gone up. In that sense, these days, the punishment is also punishment. It is not just process avoidance that leads defendants to plead guilty, though it may play a part in their decisionmaking process. The existing of more chips on the table, underscored by the war on drugs and by growing concerns about sex offenders, provides the prosecution with unprecedented power to enhance a sentence in multiple ways, and while these are not always used, they certainly impact the negotiation process in important ways.

Another important development is the fact that some processes are less punitive than they used to be. Problem-solving courts, community courts, and other specialized institutions have sprung and changed the landscape of criminal justice. Also, therapeutic justice is back, albeit for a small portion of cases concerning drugs and mental health. While there may be coercive and problematic elements in these specialized processes as well, the experience is to a large extent more benign than in the chaos of an ordinary criminal court.

There are important indications that, since the late 1970s, public defense has become more prevalent, and its quality has improved in many jurisdictions. These encouraging developments may be dampened by the distubring scarcity of resources for public defense, which we highlighted elsewhere.

The atmosphere of nepotism and political dealings within the court, which Feeley carefully examines in the book, may also have changed. Perhaps, as argued in Benjamin Smith’s interesting post at the Center for Court Innovation blog, Changing the Court, lower courts have become less parochial in their internal bureaucracies. However, it seems to me that the impact of politics on the process has become more pronounced at the higher, policymaking level. The mechanism that many conference speakers (particularly Mark Leno and Jonathan Simon), according to which politicians cannot afford to be “soft on crime”, is hugely influential precisely because of the rising effect that legislative discretion has on the bargaining process.

Finally, we should keep in mind that observing lower courts is a change catalyst in itself. Much of the changes occurring in bargaining and sentencing policies has been affected by increased public attention to the courts’ inner workings. In that sense, the “starship Enterprise” of courtroom observers can never really follow the “Prime Directive“: paying more attention to hidden phenomena, and bringing them to light through high-quality research, is an important enterprise in generating change. Newer generations of scholars, which have been raised on Feeley’s work, are indebted to the groundbreaking work of the 1970s, which is still a model of classic meticulous ethnography, and which is a continuing inspiration for courtroom research.

Jeff Adachi Shows Up in Person to Defend Clientele at the CJC

(image courtesy sfgate.com)

Here’s another piece of news that got away during our conference preparations: the new battle arena between San Francisco Public Defender Jeff Adachi and the Mayor is the Community Justice Center.

As reported by the Chronicle a few days ago, Adachi had said that, if the Public Defender’s budget would not be adjusted, he would have to staff the CJC in person, which he did, representing a homeless woman he located himself on the street. I really recommend reading the article – Albers’ and Adachi’s personalities really shine through. And, those interested in seeing more of Adachi as a litigator will enjoy the PBS movie Presumed Guilty.

Judge Karlton’s Luncheon Address

(image courtesy law.com)

It was our great pleasure to have Judge Lawrence Karlton as our luncheon speaker. Naturally, Judge Karlton could not directly comment on the ongoing Plata/Coleman cases; he did, however, discuss the principles underlying them and some of the broader concerns surrounding them.

Judge Karlton opened with a discussion of the long nature of the problem; the Coleman case hails from Governor Wilson’s days, and the Valdivia case was originally filed against Governor Davis. In hindsight, the expectation that a 1995 determination that the state had violated its inmates’ Eighth Amendment rights would yield immediate results seems rather naive; there is still much work to be done before the system can be brought into compliance with constitutional standards. Fourteen years later, there is still no bed plan for mentally ill people; there is no systematic program for evaluating inmates; treatment programs are few, and sorely lacking sufficiently trained administrators; the confidential maintenance of medical records is far from perfect; and there is no system for identifying suicide risks. Much of the plight of the medical system can be traced back to the massive closing of mental institutions during the Reagan era; so far, no CA institution can be said to comply with constitutional standards. Not much progress has been made with parole revocation reform, either.

The question then becomes why the CDCR does not rectify the situation to rid itself from the federal judiciary; the answers are complex and subtle. One possible answer provided by Judge Karlton is that prison administration is a large bureaucracy, and in such institutions, existing rules have a tendency to perpetuate the status quo and discourage change. There is the additional complicity of other professional systems, such as the psychiatric system; it is difficult to hire professionals to work in prisons located in remote places. As Judge Karlton reminded us, we do not have to have an evil disposition to end up with a dysfunctional system. There is also the issue of lobbying power; prisoners and their families do not represent a real constituency.

As to the broader issue of the court’s role in reforming prisons, Judge Karlton had interesting things to say. Federal judges do not stand for reelection, they present a hope for change. However, law and courts, he argued, are bludgeons; what is needed for these problems is a scalpel. Federal courts can only intervene when state standards fall beneath the Federal constitution. What is desperately needed is a change in culture within the state, and attention to the parts that are hidden from state citizens; those which, according to Dostoyevsky, are the measuring rods for our true level of civilization.

Community Justice Center Opens Its Doors

(image courtesy SF Chronicle)

The Chronicle reports this morning that the Community Justice Center opened its doors yesterday for the very first time. The article documents the CJC’s history, including the struggles for funding that we examined here and here.

In the traditional court system, defendants are given citations and told to appear at the Hall of Justice in 45 days. But many of them are homeless or struggling with mental health or substance abuse problems, so remembering a court date several weeks later is unlikely. At the new court, people will be arrested and seen by a judge within days – and in the same neighborhood where the crime occurred.

Getting people to show up is just one of the many challenges that have plagued the court since Newsom borrowed his idea from Manhattan’s Midtown Community Court, which is credited with turning around the once-notorious Times Square.

The court, which has been replicated in cities around the world, sentences perpetrators to a mix of community service to pay back the neighborhood and social services like mental health or drug treatment to address underlying issues. The idea is to keep perpetrators from cycling in and out in jail.

I found the Chron report to be surprisingly negative. In its subheadings, the article reports that “even voters rejected court”, and somewhat ridicules the fact that the first five “clients” of the court were no-shows (a very common phenomenon at the Hall of Justice as well). I have no horse in this race, but at the risk of sounding over-protective, I wish the Chron had given this a fair chance before introducing the gloomy undertone.

At the last town hall meeting, Commissioner Albers and coordinator Tomiquia Moss were very conscious of their accountability to the community, and said they would closely monitor their progress and report to the public. Part of this includes external evaluation, and I understand that the RAND corporation will be pursuing a study of recidivism rates among CJC defendants. Program evaluation takes time; look at what the Red Hook Community Justice Center has achieved since it opened its doors in 2000. We already know that the old program doesn’t really work. I would urge Chron writers, and readers, to reserve their judgment of the new program until there is actually something to judge.

I hope the collaborative justice blog will provide us with updates on the new court’s function.

Coleman/Plata v. Schwarzenegger: Initial Insights

The full text of the District Court’s tentative opinion is here.

A few points of interest:

The court was basically faced with an issue of causality, namely, whether the health system’s conditions are due to overcrowding. It agrees with the Govt. that “the delivery of constitutional medical and mental health care in prisons is a complicated and ‘polycentric’ problem”. In doing so, the court is invoking a concept from Lon Fuller’s 1971 classic “The Limits and Forms of Adjudication“. But, interestingly, by invoking that concept it may be saying some difficult thing about its own ability to properly adjudicate this conflict. Fuller says:

Now, if it is important to see clearly what a polycentric problem is, it is equally important to realize that the distinction involved is often a matter of degree. There are polycentric elements in almost all problems submitted to adjudication. A decision may act as a precedent, often an awkward one, in some situation not foreseen by the arbiter. Again, suppose a court in a suit between one litigant and a railway holds that it is an act of negligence for the railway not to construct an underpass at a particular crossing. There may be nothing to distinguish this crossing from other crossings on the line. As a matter of statistical probability it may be clear that constructing underpasses along the whole line would cost more lives (through accidents in blasting, for example) than would be lost if the only safety measure were the familiar “Stop, Look & Listen” sign. If so, then what seems to be a decision simply declaring the rights and duties of two parties is in fact an inept solution for a polycentric problem, some elements of which cannot be brought before the court in a simple suit by one injured party against a defendant railway. In lesser measure, concealed polycentric elements are probably present in almost all problems resolved by adjudication. It is not, then, a question of distinguishing black from white. It is a question of knowing when the polycentric elements have become so significant and predominant that the proper limits of adjudication have been reached.

Has the District Court reached the “limit of adjudication”, beyond which it is engaging in managerial, rather than judicial, tasks? The panel judges do not think so. They go on to say:

[W]e believe that a polycentric problem can have a primary cause – a cause that underlies and affects nearly every dimension of the problem and that in this case must be substantially mitigated before the constitutional failure can be resolved. Evidence offered at trial was overwhelmingly to the effect that overcrowding is the primary cause of the unconstitutional conditions that have been found to exist in the California prisons. There is, for example, uncontroverted evidence that, because of overcrowding, there are not enough clinical facilities or resources to accommodate inmates with medical or mental health needs at the level of care they require. There is also uncontroverted evidence that, because of overcrowding, there are not enough clinical or custodial personnel to ensure that inmates with medical or mental health needs are receiving appropriate treatment, are taking the medications that they need to take, are being escorted to their medical appointments in a timely manner, and are having their medical information recorded and filed properly. Additionally, as the Governor has stated, and as the California appellate court has found, overcrowded conditions – the use of triple bunks in gymnasiums and other areas not intended to be used for housing, for example – have “substantially increased the risk of the transmission of infectious illnesses among inmates and prison staff.”

Another interesting bit is the role played by the medical system’s Receiver’s work in all this. As the court notes, the argument against releasing prisoners relies, in part, on attributing the conditions to other factors. As proof of this,

[t]he defendants argue that the work of the Receiver and the Special Master has significantly improved the conditions in the prisons, and that with more time the Receiver and California Department of Corrections and Rehabilitation (sometimes referred to as CDCR), as monitored by the Special Master, can remedy the constitutional violations without decreasing the prison population.

This is somewhat ironic, because the government seems to be relying on the quality of the Receiver’s work while, at the same time, trying to remove him from his position. The irony does not escape the court:

The defendants argue that the Receivership and the Special Master’s monitoring efforts constitute other “relief” short of a prisoner release order that could remedy the constitutional violations. But the defendants have opposed the Receiver’s work in Plata and are seeking the dissolution of the Receivership.

And it becomes even more interesting when the court goes on to protect the receivership by presenting the Receiver’s position regarding what is and is not possible to achieve in CA prisons:

The Special Master stated that although much has been achieved in the past eleven years, “many of these achievements have succumbed to the inexorably rising tide of population.” Pls.’ Exh. P-35. The Receiver stated in a letter to the Governor and legislators dated July 24, 2006, that “[i]t will not be possible to raise access to, and quality of, medical care to constitutional levels with overpopulation at its current levels.” Pls.’ Exh. P-55. In addition, of course, the Receiver’s ability to help ameliorate the overcrowding is currently seriously threatened by the defendants’ actions to cut off his funding and terminate the receivership.

Another interesting aspect of the decision is the court’s assessment of what level of capacity would constitute compliance with constitutional standards. The evidence cited in the decision points out to levels far above 100% capacity as “acceptable”.

One important argument made by the Govt., which does not seem to be adequately answered in the decision, is the economic impact of releasing tens of thousands of inmates into the job market without proper skills or a decent re-entry program. The court responds to the counties’ concerns by saying,

This, however, appears to be an existing problem regardless of whether the prisoners are released under the current regime or pursuant to the reform measures. More important, the Expert Panel found that, if CDCR were to adopt the recommended combination of earned credits and parole reform, it could save $803 to $906 million annually. These savings could be diverted from the current prison budget to fund community based programming, which would allow the communities to continue and expand the programs that they have described to the Court.

But, for the saved money to optimally provide systematic reentry programs, these need to be carefully thought out and created in an atmosphere of cooperation rather than contention. And what good might it do to release folks without a properly designed and funded guiding hand without reforming parole regulation to provide a sensible, consistent regime of assessing parole violations?

It is important to note that the order is a tentative ruling, meant to prepare the parties to the implications of the final order, which brings us back to Fuller and his polycentric problems. Part of the reason why adjudication is unsuitable, by design, to address such problems, is that adjudication is a zero-sum game; there are winners and losers. This might not be the best approach to solve the problem CA prisons face. Is the tentative order conducive to bringing all concerned parties together and seeking a sensible release and reentry regime?

The Dark Side of Gideon


It is universally acknowledged that the 1960s were good years for criminal defendants. The Warren court, subscribing to a philosophy of constitutional incorporation, bright-line rules and prioritizing accuracy over efficiency, provided defendants with a series of constitutional rights which would be chipped at by the post-Warren courts for many years afterwards. The right of rights – a right as well as a tool to achieve other constitutional rights – was the right to counsel, affirmed in Gideon v. Wainwright, and later (in Argersinger v. Hamlin and in Scott v. Illinois) more narrowly defined as to include any situation of “actual imprisonment”. Those of you seeking some of the story behind the monumental Gideon decision, will find it in Anthony Lewis’ fantastic Gideon’s Trumpet. 

By making the decision applicable against the States, the Warren court did more than intervene in State systems of values; it intervened with their budget. It required the states to come up with good strategies to provide subsidized representation for indigent defendants. An important rationale behind this decision was the wish to generate more equality between defendants of different classes. One way of doing so was through creating Public Defender offices around the country, though not all states did so, and some chose to work with contracting and retainer systems. 
The dark side of providing broad, free legal services has to do with the quality of service. Research in the 1960s and 1970s was not oblivious to this fact, and was notably skeptic about the quality of representation offered by public defenders to indigent clients. Abraham Blumberg compared such representation to “a confidence game”, in which the public defender, in cahoots with other members of the “courtroom workgroup”, “cons” the client into agreeing to plea bargains, thus making the system run more soothly and efficiently. The recently and sadly deceased David Sudnow, in a no-less classic and more systematic study, shows how defense attorneys assess the extent to which a specific case is a “normal crime”, which can be “sold” as such to the prosecution for a preset tariff. Newer studies, such as Debra Emmelman’s 1996 article and her subsequent book, Justice for the Poor, had a more positive and less cynical perspective on legal services to indigents; however, Emmelman points out to the lack of resources faced by lawyers in these situations.
And, indeed, with no resources, institutions that provide ample representation cannot guarantee quality representation. Just a few months ago, the New York Times reported on several Public Defender offices around the nation who had refused to take on new cases, being unable to properly and adequately handle the load they faced. 
These budgetary problems have come to haunt the Bay Area as well. As reported in today’s Chronicle, the San Francisco Public Defender, Jeff Adachi, is reporting a dire lack of resources, and arguing that if the office does not get two more paralegals, some cases will need to be referred to firms outside the office. This bothers me profoundly not only as someone who cares about the criminal justice system, but also as an educator who prepares public-interest-minded students for, among other vocations, careers in public defense. This year, scores of bright, talented, and hardworking students will graduate from top law schools, and many of those who seek public defender careers will find themselves working temporary hourly-paid jobs, or, worse, unpaid clerkships. 
The system is not only bankrupt where prisons are concerned; it is bursting at the seams in other stages of the criminal process. Here’s hoping that things get better sooner rather than later.