The Post-Election Post

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

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

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

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

Leno on Recidivism

I’m at the Students for Sensible Drug Policy West Coast Regional Conference (at SF State — see http://ssdp.org/conference/westcoast) where Senator Mark Leno is currently answering a question about Proposition 19. This initiative would reduce California’s prison population by allowing adult possession and cultivation of 25 square feet of cannabis.

Senator Leno reminds us that California has the USA’s highest recidivism rate, 70%, compared to the national average of 35%. California’s prisons confine 170,000 inmates, 180% of their capacity of 90,000. Wow!

Slate/Daedalus new stats on Prison/Poverty cycle

WOW! Great statistics and charts and graphs in this new publication about the school-to-prison pipeline keeping people in poverty. Check out the summary at http://www.slate.com/id/2270328/?from=rss of the report by Western & Pettit at http://www.mitpressjournals.org/doi/abs/10.1162/DAED_a_00019. Here are some stand-out quotes:

“[I]f current incarceration trends hold, fully 68 percent of African-American male high school dropouts born from 1975 to 1979 (at the start of the upward trend in incarceration rates) will spend time living in prison at some point in their lives, as the chart below shows.”

“After being out of prison for 20 years, less than one-quarter of ex-cons who haven’t finished high school were able to rise above the bottom 20 percent of income earners, a far lower percentage than for high-school dropouts who don’t go to prison.”

“University of California at Berkeley professor of law Jonathan Simon writes that these men and women in many ways become the human equivalent of underwater homes bought with subprime mortgages—they are “toxic persons” in the way those homes have been defined as “toxic assets,” condemned to failure.”

The “Un-Othering” of Crime: A New and Impressive Anti-Rape Campaign

Election season always brings with it an intensified focus on the quintessential modern American citizen according to Jonathan Simon: The victim. The Attorney General race, and the candidates’ websites, are full of references to contacts with the “community”, defining “community” as one of potential victims. This approach, supposedly, is the antithesis to a “soft on crime” approach focusing on coddling the offender and absolving him or her of all responsibility for the crime. This approach is often accused of “blaming the victim”.

Reality is a bit more complicated than that.

There is something that brings together the stereotypical “blame the victim” and “tough on crime” approaches, even though they appear to be antithetical, and that is a sense that crime, as well as victimization, is a phenomenon that only occurs to “others”. Victims of rape, for example, are either complicit in their own victimization through scandalous sexual behavior, or angelic creatures whose tragic fate calls for dramatic displays of legislative punitiveness. Rapists, on the other hand, are either predetermined biological beasts, or evil, conniving men. None of these people–assailants and victims–are real, and none of these scenarios go to the heart of what happens in most rape scenarios, in which the victim and the perpetrator know each other.

Which is why I absolutely love the new anti-rape campaign under the slogan “my strength is not for hurting”. Propagated by Men Can Stop Rape, the campaign addresses common scenarios and offering directives for sensible, considerate behavior. Here are some examples:



Here is some of what I like about this campaign:

1. These posters are full of realistic scenarios in which any man, not just some pathological monster, could be raping a woman. Since we think of rape as a heinous crime, some may find it difficult to identify sleeping with an intoxicated woman, or choosing to ignore lack of full consent, as rape. These posters bring it home.
2. For once, full responsibility is placed on the shoulders of the potential assailants, as those in the best position to stop the bad situation from happening.
3. This campaign is a reminder that rape does not happen in some far away parallel universe, but in dates, and parties, and various other everyday circumstances.
4. Note how the posters endorse an image of masculinity which fosters responsibility, communication, and regard for the other person’s feelings, instead of glorifying violence and humiliation.

In some ways, this is the natural complement to self defense programs such as Impact Bay Area, which empower people with the knowledge they need to get out of bad situations without placing blame or responsibility upon them. Impact, and MyStrength, are a successful pitch because they speak to real people about real phenomena and avoid the trap of stereotypes and cliches.

Preemptive Move? Reclassifying Possession as an Infraction

Yesterday, Governor Schwarzenegger signed Senator Mark Leno’s Senate Bill 1449, which reclassifies possession of less than one ounce of marijuana as an infraction.

Existing law provides that, except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than $100. This same penalty is imposed for the crime of possessing not more than 28.5 grams of marijuana while driving on a highway or on lands, as specified.

Existing law provides with respect to these offenses that under specified conditions (1) the court shall divert and refer the defendant for education, treatment, or rehabilitation, as specified, and (2) an arrested person who gives satisfactory evidence of identity and a written promise to appear in court shall not be subjected to booking.

This bill instead provide [sic] that any person who commits any of the above offenses is instead guilty of an infraction punishable by a fine of not more than $100. This bill would eliminate the above-described provisions relating to booking and to diversion and referral for education, treatment, or rehabilitation.

A preemptive move against Prop 19? The “civil unions” of marijuana, which are “almost like legalization, but not exactly”? Unclear. It is important to keep in mind, though, that prior to this amendment of the Penal Code, marijuana possession of less than an ounce was a misdemeanor punishable by a fine, a fact that many Californians were not aware of. It is therefore unlikely that this measure will have any impact, positive or negative, on usage patterns and rates.

Underage Prostitution: A Policy Conundrum


Yesterday, our Hastings Criminal Justice Film Club watched the excellent documentary Very Young Girls, examining teenage prostitution in New York City, and especially the vulnerability of the girls and their fragile dependence on their pimps. This morning’s Chron highlights a similar phenomenon in California.

Peter Doesburg of Upland in San Bernardino County told The Daily Breeze of Torrance Thursday that he believes his daughter was abducted by Leroy Bragg, 34, while she was in Los Angeles a few months ago.

Vice officers arrested Bragg on Tuesday after a foot chase. He pleaded not guilty Thursday to trafficking of a minor, solicitation and other crimes in the abduction of another 13-year-old girl. He was being held on $1.3 million bail.

Upland police said Thursday they don’t have evidence that Bragg kidnapped Doesburg’s daughter, but believe she was abducted by people she knew.

“These subjects are believed to be associated with a group of individuals from the Los Angeles area involved in the exploitation and prostitution of young girls,” Upland police Sgt. Greg Signorio said in a statement.

Doesburg said she was arrested last week in Los Angeles and returned home, but disappeared again because Bragg allegedly made threats toward her family if she did not return to work for him. He said she might not be aware that Bragg is in jail.

“Come home,” Doesburg said. “Everything’s OK and we will protect you. You’ve got nothing to worry about.”

She described living in apartments with other girls who have been forced to meet with men for money and were beaten if they could not meet their quotas, he said.

These cases raise a number of questions about criminalization of special populations. As is the case in many US states (though not necessarily so in all countries), prostitution itself, not just pimping, is a crime. Section 647(b) of the CA Penal Code makes it a misdemeanor to–

(b) . . . solicit[s] or . . . agree[s] to engage in or . . . engage[s] in any act of prostitution. A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution. No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, in addition to the agreement, is done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. As used in this subdivision, “prostitution” includes any lewd
act between persons for money or other consideration.

This means that the girls, who incidentally would be legally beneath the age of consent for all other sex, are committing a misdemeanor by engaging in commercial sex. As you can see, the Johns are committing an offense, too. Incidentally, this offense does not carry automatic registration as a sex offender, but in some cases judges might order such registration. Some lawyers offer legal advice for Johns; for the girls, such legal advice is useless because of their young age and dependence upon the pimps for their livelihood. Many of the girls are very deeply attached to the pimps, which doesn’t help. That makes them, in effect, more victims than offenders. Combine this with family lives and, frequently, drug problems, and you have a bundle of problems, which are not cured by criminalizing and prosecuting girls for the symptom.

It is a very tricky situation to legislate. In 2008, San Franciscans voted against Prop K, which called for legal prostitution in the city. While some thought it healthy to allow sex workers access to medical services and unionization, this would not solve the problem of underage sex and of exploitation. The other tricky aspect of all of this is prosecuting the pimps, often very difficult without the girls’ testimony. The Alameda County DA’s office is making efforts to shift their energy away from the girls toward the pimps and johns, including necessary changes in legislation.

Our attention to sex trafficking emerged as we learned of it as an international phenomenon. It appears, however, that it is a problematic and important issue on the domestic arena, as well. One hopes that organizations such as GEMS manage to survive in these difficult times.

Native Hawaiians Over-Represented in Hawai’i’s Criminal Justice System

Groundbreaking research shows that Native Hawaiians are more likely to be incarcerated than other racial or ethnic groups in Hawai’i

FOR IMMEDIATE RELEASE:
September 29, 2010

NATIVE HAWAIIANS OVER-REPRESENTED IN HAWAI’I’S CRIMINAL JUSTICE SYSTEM

Groundbreaking research shows that Native Hawaiians are more likely to be incarcerated than other racial or ethnic groups in Hawai’i

HONOLULU, HAWAI’I – The Office of Hawaiian Affairs (OHA) released a new report today, The Disparate Treatment of Native Hawaiians in the Criminal Justice System , which examines the impact of the criminal justice system on Native Hawaiians. While detailing how Native Hawaiians are disproportionately impacted at various stages of Hawai’i’s criminal justice system, the report also includes first-hand accounts of Native Hawaiian concerns with the criminal justice system and how it affects their families and their culture. Native Hawaiians are the indigenous, native people of Hawai’i. Findings from the report show that the criminal justice system incarcerates Native Hawaiians at a disproportionate rate.

“This crucial research shows the need to address the unfair treatment of Native Hawaiians in our state’s criminal justice system,” said Clyde Nâmu’o, OHA’s chief executive officer. “Native Hawaiians make up almost 40 percent of the populations in Hawai’i’s prisons and jails. We are more likely to be sent to prison, and for longer periods of time, than nearly every other racial or ethnic community in Hawai’i. OHA strongly supports a fair justice system and this study sets the course for change.”

Additional key findings in the report include:

* Of the people serving a prison term in Hawai’i, approximately 50 percent are housed in facilities on the mainland. Of this population, about 41 percent are Native Hawaiian, the most highly-represented group. While incarcerated out of state, these people are further disconnected from their communities, families and culturally appropriate services for re-entry.
* Native Hawaiians do not use drugs at drastically different rates from people of other races or ethnicities, but Native Hawaiians go to prison for drug offenses more often than people of other races or ethnicities.
* Once released from prison, Native Hawaiians experience barriers that prevent them from participating in certain jobs, obtaining a drivers license, voting, continuing education, obtaining housing and keeping a family together.
* Without a sufficient number of culturally appropriate services, Native Hawaiians are not given the best chance at achieving success upon re-entry into the community.

“In 2009 the OHA Board submitted Concurrent Resolutions to the 25th Legislature noting that a study would be helpful in determining the extent, nature and impact of perceived disparities. The Senate urged with the House of Representatives concurring in HCR27, HD1, that OHA should contract a nationally respected and objective consulting firm to conduct a study of disparate treatment of Native Hawaiians in Hawai’i’s criminal justice system. That study is now complete.” said OHA Chairperson Apoliona.

The resulting report provides a number of recommendations to reduce the unfair impact of the justice system on Native Hawaiians, including:

* Reform the criminal justice system in Hawai’i to embrace the cultural values of Native Hawaiians. Changing the justice system so it is in line with culturally significant norms and values will help preserve a historic culture and strengthen the Hawaiian community and its identity.
* Develop a targeted plan to reduce racial disparities. One immediate proposal by OHA is the establishment of a task force that will review the findings and recommendations of the report, and formulate policies and procedures to eliminate the disparate treatment of Native Hawaiians in the criminal justice system. Members of the task force will include OHA, government agencies, legislators, prosecutors, public defenders, the state attorney general, the judiciary, public safety and probation officials, the police, a former prisoner and treatment providers.
* Concentrate efforts to reduce the punitive nature of the criminal justice system and fund community-based alternatives to incarceration. Investing in alternatives to incarceration and the investment of funds into re-entry and preventative programs will aid in addressing the disproportionate impact on Native Hawaiians.
* Reduce collateral consequences associated with criminal justice involvement. The current system deprives pa’ahao of full integration into the community. Barriers to education, housing, employment and parental rights only serve to increase the likelihood of future re-imprisonment which would further destabilize families and communities.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System was written at the request of the Hawai’state legislature following the approval of House Concurrent Resolution 27, and was compiled through research by the Washington, D.C.-based Justice Policy Institute (JPI), and experts at the University of Hawai’i and Georgetown University.

To read the Executive Summary and the full report of The Disparate Treatment of Native Hawaiians in the Criminal Justice System visit www.oha.org/disparatetreatment. For more information on OHA, please visit www.oha.org. If you are interested in reading additional research from the Justice Policy Institute on racial disparities and efforts to reduce the number of people affected by the criminal justice system, please visit www.justicepolicy.org.

About OHA

The Office of Hawaiian Affairs (OHA) is a unique, independent state agency established through the Hawai’i State Constitution and statutes to advocate for the betterment of conditions of all Native Hawaiians, with a Board of Trustees elected by the voters of Hawai’i. OHA is guided by a vision and mission to ensure the perpetuation of the culture, to protect the entitlements of Native Hawaiians, and to build a strong and healthy Hawaiian people and nation. For more information, visit www.oha.org.

Revenue Implications of Marijuana Legalization Prop Unclear to State Analysts

The California State Board of Equalization, which is in charge of taxing various products and currently taxes medical marijuana, is uncertain as to the tax revenue that might result from the adoption of Proposition 19 (legalization of marijuana). Previous testimony by Robert Ingenito, Chief of the BOE Research and Statistics Section, specified that some state revenue was to be expected, but its exact amount would be difficult to estimate. According to the Sac Bee,

[i]n its previous analysis, the BOE heavily based its tax revenues estimate on a $50 per ounce pot tax proposed in state legislation by Assemblyman Tom Ammiano. But no such tax is proposed in Proposition 19.

The initiative leaves it up to local governments to tax and regulate retail marijuana operations. Ammiano, D-San Francisco, has introduced a bill to regulate the sale of recreational pot, but he says he’ll likely pick up his push in the Legislature for a statewide pot tax if Proposition 19 is approved.

But until then, BOE officials say, don’t expect them to come up with a state pot revenues estimate.

It is, of course, not surprising that the amount of tax revenue is incalculable if we do not know the amount of tax. For various political reasons, the proposition leaves the taxation issue to local jurisdictions. Voters who are inclined to vote for Prop 19 for revenue-enhancement reasons might want to remain active and interested after the election, to guarantee that the proposal actually delivers the tax benefits that were an important part of Ammiano’s original proposal.
But, as my colleague Jonathan Simon argues in a brilliant blog post, there are many other excellent reasons to consider voting for Prop 19, including undoing unnecessary criminalization and battling a lethal and unscrupulous cartel. While not oblivious to the costs of the proposition in terms of increased usage, Simon writes:

The best way to prevent and remedy addiction, is through outreach, education, and counseling to the user community. The current state of illegality makes that harder in countless ways. Once legalized, local regulation could require marijuana stores to provide all of those services to their clients, and creative regulators could celebrate innovations and circulate best practices widely.

And this is precisely where marijuana legalization could do the most good. By demonstrating, through empirically tested regulations, that civil governance can remedy the negative consequences of recreational drug use, the legal marijuana regime could help wean us from our dependence on criminal law as a way to govern America.

Street Offense Citation Enforcement: Do We Need Sit/Lie?


Today’s Chron’s print edition included a piece by C.W. Nevius providing data on the enforcement of street offenses in San Francisco. As debate proceeds on the sit/lie ordinance, which we discussed here and here, it is interesting to see how little difference it makes whether citizens are cited for various sidewalk offenses. According to the data in the story (to which we will link on Tuesday, when it goes online), only about 10 out of 330 fines for street citations issued this summer were actually paid in full. A large percentage of cases got dismissed, either through the regular channels or as part of a treatment plan with the Community Justice Center.

Nevius, apparently, is trying to make the point that the current municipal code is proving ineffective in regulating street behavior. However, I think the lesson to be learned from the data is quite the opposite. It appears that criminalization has not been a stellar answer to making out sidewalks more pleasant. And it appears that the citation recipients are not a good target audience for revenue enhancement.

Perhaps the answer to the problem lies in a mild version of Broken Windows Theory. As a broad zero-tolerance policy, leading to mass incarceration, it has hardly proven effective in controlling crime (my colleagues Bernard Harcourt and Jens Ludwig make a convincing argument to this effect). However, when limited to the issue of environmental maintenance and discouragement of disorder through grooming and beautifying public space, it may be the ticket to the reduction of street sidewalk unpleasantness.

As an aside, one of the protests designed to combat the new ordinance is a mass lemonade sale on city sidewalk this coming Saturday. As Emma Goldman would put it, a revolution without dancing (and lemonade sipping) is not a revolution worth having.