Obama backing off strict crime policy

[Re-posted from POLITICO because: can you imagine replacing “Obama” with “Schwarzenegger” in this article? Nope, me neither, but it feels good to think about it…]

Obama backing off strict crime policy
by Josh Gerstein

http://www.politico.com/news/stories/0910/42004.html

For years, it was one of the GOP’s most potent political epithets — labeling a Democrat “soft on crime.”

But the Obama White House has taken the first steps in decades to move away from a strict lock-‘em-up mentality on crime — easing sentences for crack cocaine possession, launching a top-to-bottom review of sentencing policies and even sounding open to reviewing guidelines that call for lengthy prison terms for people convicted of child pornography offenses.

The moves — still tentative, to be sure — suggest that President Barack Obama’s aides are betting that the issue has lost some of its punch with voters more worried about terrorism and recession. In one measure of the new political climate surrounding the issue, the Obama administration actually felt free to boast that the new crack-sentencing bill would go easier on some drug criminals.

“The Fair Sentencing Act marks the first time in 40 years that Congress has reduced a mandatory minimum sentence,” said White House drug czar Gil Kerlikowske, who billed the new legislation as “monumental.”

Obama’s signing of long-debated legislation last month to reduce the disparity between prison sentences for crack and powdered cocaine is being hailed by some advocates as a watershed moment in the nation’s approach to criminal justice.

And even with a tough election looming, the Democratic Congress is showing a willingness to consider moving away from incarceration and toward rehabilitation and out-of-prison punishments that might have been attacked in the 1990s as the coddling of criminals.

At the urging of a conservative Democrat, Sen. Jim Webb of Virginia , the House passed a bill in July to create a federal commission to study criminal sentences. The measure cleared the Senate Judiciary Committee earlier in the year with little resistance from Republicans.

“I think the political landscape around the issue is shifting and I think that will provide room for the administration to address some of these issues,” said Jennifer Bellamy of the American Civil Liberties Union.

Advocates point to several reasons for the shift toward a less-draconian approach to crime and for its retreat as a hot-button political issue. Crime rates are at some of the lowest levels in a generation. Stories of offenders who got decades behind bars for playing minor roles in drug operations have generated some sympathy in the public. Huge budget woes facing states and the federal government are raising doubts about policies that are causing prison populations and costs to go up.

In addition, Republicans who once accused Democrats of being soft on crime now accuse them of being soft on terrorists. As a result, tinkering with the way run-of-the-mill criminals are treated doesn’t seem to be the political third rail it once was.

Mary Price of Families Against Mandatory Minimums noted that the crack-disparity bill passed in Congress with remarkably little consternation. “I think other concerns have crowded out some of the hysteria around crime,” Price said.

“Republicans could have said, ‘If this passes, we’ll make this an issue in the midterms.’ Nobody said that,” Price observed. “This was not an issue for Republicans.”

While most of the Obama administration’s moves toward rolling back some of the harshest aspects of the war on crime have been tentative, some have been surprising. For instance, a little-noticed letter issued by the Justice Department in June urged a federal commission to review the sentencing guidelines for child pornography offenses — a review that many advocates say would almost certainly result in lowering the recommended sentences in such cases.

“They’re saying, essentially, that they want to level sentences in the middle, but necessarily, leveling in the middle is almost demanding that they bring the guidelines down,” said Doug Berman, a law professor at Ohio State University. “They’ve chosen language … saying we’re open to doing something that is not entirely tough.”

In another sign of the new climate, Attorney General Eric Holder announced a review of criminal sentencing policies soon after he came into office.

“Too much time has passed, too many people have been treated in a disparate manner and too many of our citizens have come to have doubts about our criminal justice system,” Holder said in June 2009. “We must be honest with each other and have the courage to ask difficult questions of ourselves and our system. We must break out of the old and tired partisan stances that have stood in the way of needed progress and reform. We have a moment in time that must be seized.”

The internal review endorsed lowering some crack sentences, something Obama had already promised to do, and publicly offered some vague suggestions on changes to mandatory minimums. Holder also issued a memo giving local federal prosecutors a bit more autonomy in charging decisions.

Another result of that review was a June letter that called for a new look at child porn sentences.

“The time is ripe for evaluating the current guidelines and considering whether reforms are warranted,” Jonathan Wroblewski, director of the Justice Department’s Office of Policy and Legislation, wrote to former judge and FBI director Bill Sessions, who heads the U.S. Sentencing Commission. “Consideration ought to be given to updating many aspects of the child pornography sentencing guidelines to better calibrate the severity and culpability of defendants’ criminal conduct with the applicable guideline sentencing ranges.”

Justice’s call for a review came as defense attorneys have been gaining traction with arguments that the guidelines and mandatory minimums set by Congress call for excessively long sentences. Some lawyers contend that defendants who briefly exchange child porn photos or video online can actually get longer sentences than those who seek to molest children.

The Justice Department has disputed those arguments in court, but federal judges have increasingly given sentences below the guidelines. An assistant federal public defender from Missouri , Troy Stabenow, said he thinks the department’s decision is basically a tactical move to stem the slide towards lower sentences.

“It’s just the logical thing they needed to do,” said Stabenow. He said the notion that any politician would wade into the subject on his own volition boggles the mind.

“I would think no sane politician who values being reelected would want to engage in this area,” Stabenow said. “I don’t think there’s any criminal group that yields a more visceral response than the child pornography group.”

A Justice Department spokeswoman stressed that the June letter didn’t endorse higher or lower sentences for child pornography.

“We asked the sentencing commission to comprehensively review and report on the state of federal sentencing and to explore whether systemic reforms are needed,” Justice spokeswoman Laura Sweeney said. “We also asked the commission to review the guidelines for child exploitation and fraud offenses, but did not recommend necessarily higher or lower penalties for either child exploitation [or] fraud offenses.”

One prominent advocate for long sentences in child pornography cases, Ernie Allen of the National Center for Missing and Exploited Children, said he welcomes a review of the guidelines and why judges are often giving lower sentences. However, he said he would oppose any overall reduction in the guidelines and does not think that’s what Justice officials want.

“If that is the implication, clearly, we would differ with that,” Allen said. “These are crime scene photos that re-victimize the child in the photo over and over again, [but] I think both of us recognize that the crime guidelines are dated.”

Despite the tentative moves in the direction of lessening some sentences, there remain numerous signs that Obama and his aides recognize that the issue could still be politically damaging.

When Obama signed the crack disparity bill, only still photographers were allowed in and the president issued no formal statement. The Justice Department’s sentencing review group has indicated it has no plan to issue a formal report that could become a political football. And, 18 months into his presidency, Obama has yet to issue a single commutation or even a pardon to an elderly ex-con seeking to clear his record.

Some advocates note that the crack sentencing bill was not particularly ambitious: it reduced the crack/powder disparity from 100-to-1 to 18-to-1. And it wasn’t retroactive, so some who were sentenced under mandatory minimum laws may not benefit.

Asked whether Obama might grant requests to commute the sentences of those who would have gotten less punishment if they committed their crimes today, an administration official said the crack-disparity bill “reflected Congress’s judgment that the law should not be retroactive, [and] the president believes that the Fair Sentencing Act will go a long way toward ensuring that our sentencing laws are tough, consistent and fair.”

The official also downplayed the notion that Obama might offer some kind of blanket clemency for earlier crack-cocaine offenders, saying that “as a general matter, the president agrees with the Department of Justice’s long-held view that commutation is an extraordinary remedy that should only be granted in extraordinary circumstances.”

But activists are watching Obama on the issue. “Retroactivity will be the next battle,” Price said. “It would be cruelly ironic for us to take lessons learned from those who are currently serving, change the law for people going forward and then say, ‘OK, the accident of the calendar you are condemned to serve much longer than people who, because of your experience, are getting out sooner.’”

In the heat of the presidential campaign, Obama sent mixed signals on crime. In the primary, he differed with Hillary Clinton by endorsing shortened sentences for some crack offenders already in jail. As the general election neared, he tacked to the right of the Supreme Court by criticizing the court’s 5-4 decision barring the use of the death penalty for child rapists who don’t kill their victims.

Berman said he thinks Obama and his aides can’t fully break with President Bill Clinton’s approach of trying to look as tough or even tougher than Republicans on crime.

“Obama wants to do something, I think, big on criminal justice and I think he’s absolutely afraid to,” Berman said. “Democrats are right to continue to fear tough-on-crime demagoguery. The lessons of Clinton continues to resonate. … This really is, inevitably, low-priority, high-risk kind of stuff.”

Obama also faces one factor Clinton did not: race. While 58 percent of federal inmates arewhite, Berman said some Americans are sure to have the perception that an African-American president is aiding criminals of his own race.

“Whether consciously or subconsciously, everyone understands that the first black president has to tread particularly cautiously in this area,” Berman said.

Most Prisoners Come from Few Neighborhoods

GREAT ARTICLE! Check out http://www.sciencenews.org/view/generic/id/62317/title/Most_prisoners_come_from_few_neighborhoods for a write-up, subtitled, “‘Incarceration Hot Spots’ Inculcate a Vicious Brand of Hopelessness,” of this new Harvard sociology paper.

My favorite quotes:

“Mass incarceration in the United States has a deep local concentration in relatively few disadvantaged communities,” Sampson asserted.

Chicago crime data for 1990 to 1995 show that a large majority of prison and jail populations came from two poor, black sections of the city, Sampson and Loeffler found. During that time, overall rates of crime and violence declined in Chicago while incarceration rates rose in those two areas.

Marijuana and Federalism: California a Test Case

On Friday, August 6, 2010 I attended a forum of the Voluntary Committee of Lawyers called “Marijuana and Federalism: California a Test Case.” The event was originally conceived as a chance for experts to publicly examine the implications of the state-federal conflict of the passage of A.B. 2254, Assm. Ammiano’s tax-and-regulate marijuana bill. Then, Ammiano withdrew 2254 in light of Proposition 19, a voter initiative legalizing marijuana and allowing local governments to tax and regulate sales.

Washington State Representative Roger Goodman, E.D. of the VCL, moderated the first of two panels, “Marijuana Legalization: A Clash of Federal Power and States’ Rights.” His excellent panelists explored the contours of the state-federal conflict, and its implications for potential legal challenges to Prop 19. First, Professor Robert Hirshon, who was president of the ABA during 9/11, spoke. Bob said that his “uber-blue-blood” law firm back in Maine had recently asked the Maine State Bar Association for guidance on the professional responsibility considerations of representing medical marijuana dispensaries (Maine has recently become the first American state to issue licenses to retail marijuana stores). The Maine Board of Overseers of the Bar responded with Advisory Opinion 199, advising that because marijuana is federally illegal, representing dispensaries could be a breach of the professional responsibility rules against knowingly assisting a crime.

Next Allen Hopper of the ACLU Drug Law Reform Project affirmed that representing dispensaries could arguably conflict with federal law and thus the PR code. However, he carved out an exception for attorneys who believe they are acting legally and in good faith. His best point came from his personal experience in representing WAMM, the Wo/Men’s Alliance for Medical Marijuana, in County of Santa Cruz v. Gonzalez. In that case, earlier this year, a medical marijuana collective and the county regulating it reached a settlement in which the federal government agreed to drop its prosecution.

Finally Professor Alex Kreit of the Thomas Jefferson School of Law in San Diego composed the meat of the panel by summarizing the law review articles he has published on this topic. Alex bifurcated analysis of Prop 19’s two sections, one of which legalizes personal possession and cultivation of marijuana, and the other of which allows counties and municipalities to regulate and license marijuana sales. He referred to Section 903 of the federal Controlled Substances Act, which says that the CSA will only preempt state law in the event of a “positive conflict” between state law and the CSA (which prohibits marijuana etc.). Alex analogized that there is no “positive conflict” between prohibiting marijuana and allowing marijuana, since a non-user can comply with both laws — this is, at worst, a passive conflict — whereas a “positive conflict” would result from a state law requiring mandatory marijuana consumption (preventing anyone from being able to follow both state and federal law simultaneously). He supposed that federal prosecutors would likely go after locally-licensed marijuana retailers, but would probably lose. Alex also pointed out that the federal government simply lacks the resources to enforce this federal law, rendering the point largely moot. He mentioned his shortly forthcoming article in the Chapman Law Review on this topic, “Beyond the Prohibition Debate: Thoughts on Federal Drug Laws in an Age of State Reforms.”

VCL President Eric Sterling moderated the second panel, “Marijuana Legalization on the Ground: Practical Considerations.” First, Assm. Tom Ammiano discussed his marijuana legalization bill, which gained notoriety last year as AB 390 when it passed the Public Safety Committee. He mentioned that this legislation would pass in a “hallway vote,” highlighting his fellow legislators “cowardice” on this issue. He also explained to the audience the concept of “contingency legislation.” The legislature could pass a law or laws regulating marijuana sales this year, set to take effect only in the event that the voters approve Prop 19. Though the Supreme Court would be required to overturn legislation amending a voter-approved initiative, legislation that adds to an initiative and is within its spirit and intent is not only acceptable but good planning. In fact, Section 5 of Prop 19’s text specifically allows for new laws creating a statewide regulatory system.

Drug Policy Alliance Staff Attorney Theshia Naidoo (disclaimer: was recently my boss) addressed the main substance of the panel by raising numerous practical considerations related to the passage of Prop 19. She provided an overview of the legal issues, especially on the civil side, likely to arise. She also mentioned the social justice implications of legalization, as DPA has just released a new report, “Targeting Blacks for Marijuana: Possession Arrests of African Americans in California, 2004-08,” available here. African Americans are 7% of California’s population but 33% of all felony marijuana arrests.

Americans for Safe Access Chief Counsel Joe Elford discussed Prop 19’s effects on medical marijuana law. ASA neither supports nor opposes Prop 19, but is neutral. He used medical marijuana as a case study for potential legal challenges to Prop 19. Joe mentioned that the upcoming appellate ruling in Qualified Patients Association v. Anaheim could undermine retail sales (though the ruling, since released, did not). He focused on his “greatest loser,” Ross v. RagingWire, in which the California Supreme Court ruled medical marijuana patients can be discriminated against for purposes of employment. Joe’s main takeaway was that Prop 19 expressly does not change our medical marijuana laws, except that it would overturn RagingWire — and would likely lower the price of medicine for patients.

Finally, Sheriff Tom Allman of Mendocino County explained his opposition to Prop 19. He said he supports medical marijuana, but opposes the way it has been implemented in California: by patchwork. He explained that medical marijuana has brought money, and money has brought greed, and greed has brought violence. He sees Prop 19 bringing more marijuana money into the public eye, and thus leading to more violence. His specific stated example for opposing medical marijuana implementation in Mendocino County was “stench,” i.e., neighbors’ complaints about odor from cultivation.

Economist: Rough Justice

We Americans look especially ridiculous from across the pond. California even gets a special international shout-out for just how expensive our prison system is…
The Economist, “Crime and Punishment in America: Rough Justice”
http://www.economist.com/node/16640389

America locks up too many people, some for acts that should not even be criminal

IN 2000 four Americans were charged with importing lobster tails in plastic bags rather than cardboard boxes, in violation of a Honduran regulation that Honduras no longer enforces. They had fallen foul of the Lacey Act, which bars Americans from breaking foreign rules when hunting or fishing. The original intent was to prevent Americans from, say, poaching elephants in Kenya. But it has been interpreted to mean that they must abide by every footling wildlife regulation on Earth. The lobstermen had no idea they were breaking the law. Yet three of them got eight years apiece. Two are still in jail.

America is different from the rest of the world in lots of ways, many of them good. One of the bad ones is its willingness to lock up its citizens (see our briefing). One American adult in 100 festers behind bars (with the rate rising to one in nine for young black men). Its imprisoned population, at 2.3m, exceeds that of 15 of its states. No other rich country is nearly as punitive as the Land of the Free. The rate of incarceration is a fifth of America’s level in Britain, a ninth in Germany and a twelfth in Japan.

Tougher than thou

Some parts of America have long taken a tough, frontier attitude to justice. That tendency sharpened around four decades ago as rising crime became an emotive political issue and voters took to backing politicians who promised to stamp on it. This created a ratchet effect: lawmakers who wish to sound tough must propose laws tougher than the ones that the last chap who wanted to sound tough proposed. When the crime rate falls, tough sentences are hailed as the cause, even when demography or other factors may matter more; when the rate rises tough sentences are demanded to solve the problem. As a result, America’s incarceration rate has quadrupled since 1970.

Similar things have happened elsewhere. The incarceration rate in Britain has more than doubled, and that in Japan increased by half, over the period. But the trend has been sharper in America than in most of the rich world, and the disparity has grown. It is explained neither by a difference in criminality (the English are slightly more criminal than Americans, though less murderous), nor by the success of the policy: America’s violent-crime rate is higher than it was 40 years ago.

Conservatives and liberals will always feud about the right level of punishment. Most Americans think that dangerous criminals, which statistically usually means young men, should go to prison for long periods of time, especially for violent offences. Even by that standard, the extreme toughness of American laws, especially the ever broader classes of “criminals” affected by them, seems increasingly counterproductive.

Many states have mandatory minimum sentences, which remove judges’ discretion to show mercy, even when the circumstances of a case cry out for it. “Three strikes” laws, which were at first used to put away persistently violent criminals for life, have in several states been applied to lesser offenders. The war on drugs has led to harsh sentences not just for dealing illegal drugs, but also for selling prescription drugs illegally. Peddling a handful can lead to a 15-year sentence.

Muddle plays a large role. America imprisons people for technical violations of immigration laws, environmental standards and arcane business rules. So many federal rules carry criminal penalties that experts struggle to count them. Many are incomprehensible. Few are ever repealed, though the Supreme Court recently pared back a law against depriving the public of “the intangible right of honest services”, which prosecutors loved because they could use it against almost anyone. Still, they have plenty of other weapons. By counting each e-mail sent by a white-collar wrongdoer as a separate case of wire fraud, prosecutors can threaten him with a gargantuan sentence unless he confesses, or informs on his boss. The potential for injustice is obvious.

As a result American prisons are now packed not only with thugs and rapists but also with petty thieves, small-time drug dealers and criminals who, though scary when they were young and strong, are now too grey and arthritic to pose a threat. Some 200,000 inmates are over 50—roughly as many as there were prisoners of all ages in 1970. Prison is an excellent way to keep dangerous criminals off the streets, but the more people you lock up, the less dangerous each extra prisoner is likely to be. And since prison is expensive—$50,000 per inmate per year in California—the cost of imprisoning criminals often far exceeds the benefits, in terms of crimes averted.


Less punishment, less crime

It does not have to be this way. In the Netherlands, where the use of non-custodial sentences has grown, the prison population and the crime rate have both been falling (see article). Britain’s new government is proposing to replace jail for lesser offenders with community work. Some parts of America are bucking the national trend. New York cut its incarceration rate by 15% between 1997 and 2007, while reducing violent crime by 40%. This is welcome, but deeper reforms are required.

America needs fewer and clearer laws, so that citizens do not need a law degree to stay out of jail. Acts that can be regulated should not be criminalised. Prosecutors’ powers should be clipped: most white-collar suspects are not Al Capone, and should not be treated as if they were. Mandatory minimum sentencing laws should be repealed, or replaced with guidelines. The most dangerous criminals must be locked up, but states could try harder to reintegrate the softer cases into society, by encouraging them to study or work and by ending the pointlessly vindictive gesture of not letting them vote.

It seems odd that a country that rejoices in limiting the power of the state should give so many draconian powers to its government, yet for the past 40 years American lawmakers have generally regarded selling to voters the idea of locking up fewer people as political suicide. An era of budgetary constraint, however, is as good a time as any to try. Sooner or later American voters will realise that their incarceration policies are unjust and inefficient; politicians who point that out to them now may, in the end, get some credit.

Why Riots? Ingredients for Moral Panic

Many of our readers are probably already abreast of the events in Oakland last night. The Oakland Tribune live blog offered full coverage. The bottom line is that what was a peaceful demonstration in the evening (when I was there, at around 7:30-8:00pm) turned, after sundown, into a looting scene that led to 83 arrests. This, of course, is saddening. Protest over the outcome of Mehserle’s trial should never have turned into an ugly display of property crime. It is important to mention that, in the earlier hours, I heard multiple calls from speakers and community organizers to maintain the peace; that the many hundreds of people who gathered at 14th and Broadway were engaged in a peaceful protest; that displays of verbal violence and incitement were often, according to reports, countered by people from the community discouraging them; and that we have no information on whether the looters arrested were locals or out-of-towners that took advantage of the events to commit ugly and serious property crime. In any case, stealing sneakers from an athletic store is hardly a useful way to make a political statement.

What we can, however, examine, is why riots happen in the first place. While older literature from the 1960s analyzed riots and community action in itself, newer studies of riots by criminologists and sociologists portray a very complex picture of how such events develop. It is important to see, as Michael Keith argues, race riots within the larger context of race relations, and to acknowledge the fact that a great part of the problem is not the riot itself but the moral panic generated by the riots. I would not go as far as to say that the riots would not happen if not for the projected police response. But seeing thousands of officers, helicopters, and various devices in Oakland yesterday did seem to communicate an expectation that something very foul was about to occur. This sort of overpreparedness communicates to citizens the expectation of violence and crime. In this interesting paper by Clifford Stott and Stephen Reicher, they interview police officers, showing how tense situations can escalate through the communication between police and protesters at the event.

And then, of course, there’s this. The irony, I believe, would be lost on the ABC7 anchorperson.

Another related issue pertains to the safety of Mehserle himself, should he be sentenced to prison time (which he very well might, unless the judge stays the gun enhancement). Regardless of geographical location, I can’t imagine this will be an easy stint in prison. Does any of our readers know how CDCR guarantees the safety of unpopular inmates?

Would Legalizing Marijuana Increase Revenue?

This morning’s Chron includes a story about a recently-completed RAND study on the expected fiscal effects of legalizing marijuana.

The upshot of the six-month study by the nonpartisan Rand Drug Policy Research Center is this: It’s anybody’s guess as to whether the state will suffer or prosper if voters approve Proposition 19 on the November ballot. The measure would allow local governments to regulate and tax pot sales and controlled cultivation, and to let adults over 21 possess as much as an ounce.

“There is just so much uncertainty, that while we could look at the data and create a scenario that could be very good from an economic standpoint, we could also create a very bad one,” said Rosalie Liccardo Pacula, co-director of the Rand center in Santa Monica. “The overall effect is a bit of a mystery.”

More information, directly from RAND:

While the state Board of Equalization has estimated taxing legal marijuana could raise more than $1 billion in revenue, the RAND study cautions that any potential revenue could be dramatically higher or lower based on a number of factors, including the level of taxation, the amount of tax evasion and the response by the federal government.

Past research provides solid evidence that marijuana consumption goes up when prices go down, but the magnitude of the consumption increase cannot be predicted because prices will fall to levels below those ever studied, researchers say. Consumption also might rise because of non-price effects such as advertising or a reduction in stigma, researchers say.

In addition to uncertainty about the taxes levied and evaded, researchers do not know how users will respond to such a large drop in price. Even under a scenario with high taxes ($50 per ounce) and a moderate rate of tax evasion (25 percent), researchers cannot rule out consumption increases of 50 percent to 100 percent, and possibly even larger. If prevalence increased by 100 percent, marijuana use in California would be close to the prevalence levels recorded in the late 1970s.

The full RAND report, which can be downloaded here, reaches the following conclusions:

  • The pretax retail price of marijuana will substantially decline, likely by more than 80 percent. The price that consumers face will depend heavily on taxes, the structure of the regulatory regime, and how taxes and regulations are enforced.
  • Consumption will increase, but it is unclear how much because we know neither the shape of the demand curve nor the level of tax evasion (which reduces revenues and the prices that consumers face).
  • Tax revenues could be dramatically lower or higher than the $1.4 billion estimate; for example, there is uncertainty about potential tax revenues that California might derive from taxing marijuana used by residents of other states (e.g., from “drug tourism”).
  • Previous studies find that the annual costs of enforcing marijuana laws range from around $200 million to nearly $1.9 billion; our estimates show that the costs are probably less than $300 million.
  • There is considerable uncertainty about the impact of legalizing marijuana in California on public budgets and consumption, with even minor changes in assumptions leading to major differences in outcomes.
  • Much of the research used to inform this debate is based on insights from studies that examine small changes in either marijuana prices or the risk of being sanctioned for possession. The proposed legislation in California would create a large change in policy. As a result, it is uncertain how useful these studies are for making projections about marijuana legalization.

The predictive model adopted by the paper considers a possible scenario: a $50 per-ounce tax (they do consider some alternative scenarios and intervening factors). The researchers find that, in this situation, marijuana consumption is elastic and might increase. This prediction is based on levels of usage in the past. Part of the challenge, as researchers admit, is that predicting changes in consumption is a difficult thing to do; it is difficult to tell how much of the usage level has to do with changes in price or regulatory regime (and, of course, whether changes in usage are going to be short-term or long-term.)

This is an interesting development. Before formulating the proposal, Tom Ammiano’s office had done some public polling, which suggested that the public was much more likely to support a legalization bill if it were marketed as a revenue enhancing measure (“tax and regulate” rather than “legalize”). This plan, however, might backfire in light of the results of the RAND report. However, it is important to keep in mind, when considering whether to vote for this proposition, whether there are not other reasons for legalization.

SF Public Defender: Justice Summit

On May 19 I attended the San Francisco Public Defender’s 2010 Justice Summit, at the SF Public Library. Jeff Adachi eloquently introduced a day of 3 panels, one Clara Foltz impersonator, a TV PSA, and free lunch. The PSA video was a startling, professionally-produced 15-second spot promoting the abstract concept of the public defender (“PD”).

The first panel, “Ordinary Injustice,” offered a scathing critique of every level of our criminal justice system. The title was taken from the book of the same name by Amy Bach, who spoke first and stole the show with firsthand stories of miscarriages of justice in rural courtrooms. She also noted that these problems affect everyone, not just those caught up in this system, because our tax dollars become the collateral consequences. Laurence Benner made the point that this injustice will inherently remain so long as local politicians are entrusted with funding our indigent defense system. Kenneth Tanaguchi, Fresno PD, mentioned thatjustice suffers in counties using contract defenders because of their innate conflict of interest: turning a profit will trump clients’ best interests when criminal defense services are auctioned. John Terzano, Justice Project ED, explained prosecutorial misconduct as a product of prosecutors’ discretion, lack of accountability, and entrenched culture. Sam Webby described his series of stories for the San Jose Mercury-News about the San Jose’s defendants going without representation at their first (and usually only) appearances, which led to a change in policy: now those courtrooms have lawyers in them everyday for the first time.

The second panel discussed PDs’ public relations problem: “Public pretender or public crusader?” Former prosecutor Jonathan Shapiro, now famous for The Practice and Boston Legal, started controversially by telling the audience of PDs to cut their ponytails, lose their earrings, and wear dark suits with white shirts and red ties. His main point was that PDs need more self-promotion, and collective national representation to educate the public on their purpose and worth. Jami Floyd of tv’s The Best Defense agreed that the media contributes to misperceptions of the PD’s role, because of the pro-prosecution bias in the assumption that defendants did something wrong (violating innocent-until-proven-guilty). A New Yorker, she argued that reforming draconian drug laws is the best issue to start with reshaping the PD’s image. Criminal defender Gerald Schwartzbach drew applause for, “You don’t fight crime by cutting social services,” and for, “Putting a black robe on a jackass doesn’t get you a judge,” and for, “The whole criminal defense bar, public and private, needs to circle the wagons” and unify to improve its reputation/image. Carol Dee Huneke of PD Revolution (pdrevolution.blogspot.com) pointed out that even though emotionality usually favors victims, occasionally it works for defenders, and then they ought to call the media.

The third panel focused on prisoner re-entry services, from the mixed viewpoints of service providers, former prisoners, and advocates. It was pretty depressing, as highlighted by Eliza Hersh of the East Bay Community Law Center’s Clean Slate program: “There’s not really such a thing as a ‘clean slate’ in California.”

Sit/Lie Ordinance Will Be on Ballot

My moral standing is lying down.
—Nine Inch Nails, “The Only Time”

Today’s Chron reports Mayor Newsom’s intention to bypass the Board of Supervisors and take the Sit/Lie Ordinance to the voters on the 2010 ballot. We have discussed this ordinance here and there, but now that the decisionmaking has been shifted unto the voters, it is time to talk a little bit about the details.

If San Francisco voters are presented with a sit/lie ordinance in 2010, there are a few parameters that are worth considering:

Are there alternatives? If the San Francisco police can arrest or cite offenders for loitering, aggressive panhandling, assault, and drug offenses, what is the marginal benefit of this ordinance?

Time/space limitations? An ordinance of this sort is more likely to conform to constitutional standards if it doesn’t pursue and persecute people whenever and wherever they are. Similar pieces of legislation elsewhere have limited the criminal prohibition to certain hours in the day and certain areas of the city.

Warning? The law is significantly less draconian if it gives people the opportunity to move away. In some municipalities, a warning needs to be given in writing; in others, an oral warning will suffice.

Authorization to arrest? Does violating the law trigger the risk of arrest? If so, voters might be interested in weighing the interest of proportonality.

Sentencing? This goes to the question how comfortable we are with people doing time in jail–overcrowded as it is–for a municipal petty offense. It is rather likely that, in light of jail overcrowding, most of these cases will be dismissed anyway or dealt with through a fine system, in which case the efficacy and deterrence of the new law should be assessed. And if there is a fine, how much should it be, and how will its amount be tailored to the likely offenders?

Alternative shelter and related expenses? Sit/Lie Ordinances in other municipalities have been found unconstitutional by the 9th Circuit when the court found that the folks lying in the street had nowhere else to go. Providing enough shelter, so as to assure the new law’s constitutionality, may cause the city to incur additional preparation and expense.

And, finally–impact on budget? Beyond the issue of shelter, voters need to take into account the impact that citations, arrests, and sentencing will have on the city budget. The more severe the implications of ordinance violation are, the more expensive this measure will be. Even if massive case dismissals will thwart the effort (which may very well be the case), it will still eat up valuable prosecutorial time and money.

—————
Props to KCBS, with whom I talked about this topic this afternoon, for prompting the discussion, and to Adam Maldonado for some very useful information.

Three Thoughts on the Arizona Immigration Law

Much has been written in the last few days about the infamous Arizona measure–provided here in its entirety–which defines undocumented stay on Arizona soil a state offense and authorizes police officers to stop people based on reasonable suspicion that they might be in the country illegally. Beyond the obvious arguments regarding status offenses and racial profiling, here are a few issues that have received a little less publicity.

First, in creating a state offense of being in the country illegally, Arizona would generate somewhat of a conflict: Should people caught under the new measure be incarcerated or deported? It is quite astonishing that, in times of prison overcrowding and resource scarcity, a state would be willing to undertake the trouble and expense to handle people who can just as easily be handed over to the feds. Our regular readers may recall how much Governor Schwarzenegger emphasized the deportation, and federalization, of undocumented inmates, as a way to overcome the overcrowding crisis–even suggesting, at some point, to build special prisons in Mexico. Does Arizona not face similar problems? Mona Lynch’s recent book is eerily apropos here: Over the last few decades, Arizona grew from a state of sparse, swift, cheap punishment, to a penal monster. Does it really need the budgetary burden of handling undocumented inmates?

Second, this brings up the question whether law enforcement agencies are even interested in enforcing this measure. We know the answer is affirmative at least in one case–that of Maricopa County Sheriff Joe Arpaio, famous for his humiliating punishment methods, odd penal innovations, and ruthless persecution of undocumented immigrants (Arpaio has only recently decided against entering the Arizona gubernatorial race). Other lawmakers, however, might resent the need to devote precious resources to the hunt of undocumented immigrants at the expense of curbing violent crime.

Third, the most astonishing bit of this bill seems to be a clause that allows Arizonians a private right of action if the police does not spend the appropriate resources to pursue undocumented immigrants. Given our previous conversations on public punitiveness, this is a great cause of concern; the lack of budgetary literacy in the public, and the lack of knowledge that any expenditure choice comes at the expense of something else, does not bode well for this measure.

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props to my fabulous colleague David Levine for the conversation that sparked this post.

Truancy Courts: Problem-Solving or Criminalization?

A weekend story on the Chron provides a peek into Oakland’s truancy court, where parents are charged for their children’s absences from school. The consequences include arrest and fines, but also stern lectures from the judge about the need to reduce truancy. This is not the first time we have noted this indirect mechanism for crime control: In San Francisco, Kamala Harris has often drawn attention to the link between truancy and crime, both in op-eds and in her book Smart on Crime. Harris’ website boasts a 23% decline in truancy as a result of these policies (no statistics for recidivism reduction are offered, however).

These policies often raise important questions. Is there a connection between truancy and crime, and if so, is it causal or a mere correlation caused by something else? There are plenty of quantitative studies that point to the correlation, and some have included truancy in models of juvenile delinquency. Life-course criminologists, such as Sampson and Laub in their book Crime in the Making, argue that truancy is one of many “turning points” that direct one’s life toward crime. It appears to be a trend that goes beyond U.S. borders: Joanne Baker, in a project by the New South Wales Bureau of Crime Statistics and Research, recognizes truancy as one of the “risk factors” for crime. But isn’t the real problem lack of parental supervision, or social disorganization in the neighborhood?
Whatever the answer, it seems that attention to truancy also raises important concerns about criminalization. “Crime”, after all, is what the legislator wants it to be, and over the years, the contours of parental neglect have modified and changed. Whether it is paternalism or governing through crime, it seems that focusing on early stages espouses a philosophy that addresses crime indirectly.