Here in America, last week the Providence Journal (the news source of record for the state of Rhode Island) took a related stance. The editorial board called for, not decriminalization, but taxation and regulation of all substances. The editorial argues, “Even if legalization were to increase drug use, that risk is overshadowed by the benefits. Crime would drop in our streets as dealers lose their livelihood, and users don’t have to rob others to support their habit. Governments can regulate the drugs for purity and collect taxes on their sale.”
However, the Cato report found that Portugal’s total decriminalization actually led to declines both in drug usage rates and in HIV infection rates. People found in possession of drugs are sent to a panel of a psychologist, a social worker, and a legal adviser to consider treatment and rehabilitation options. For the short version, read the TIME Magazine summary. This usage decline suggests that the public safety and economic benefits of drug policy reform would not merely offset harms of any increase in drug use, but rather, represent independent public policy gains.
According to this new report from the Urban Health Research Institute, drug prohibition and mandatory minimums lead to violence… even in Canada. This is strong evidence that some Californian attempts to deter crime actually increase crime, worsening the correctional crisis. Even if you don’t have time to read it, I recommend at least checking out their executive summary here.
Adding to our last post on the new Pew study, as a transplanted Rhode Islander I was thrilled to see Pew report that Rhode Island now leads the states in prison population reduction. As Bruce’s post reminds me, we never thought we’d see the day RI had fewer than 4,000 state prisoners. The RI General Assembly has recently eliminated mandatory minimum sentences for drug crimes, restoring judicial discretion. The Department of Corrections has increased sentence reductions for inmates’ good behavior.
Last night, the RI Senate Committee on Marijuana Prohibition released its final report, and concluded its business by releasing its final report and voting to recommend that the legislature decriminalize marijuana. This change would result in vast savings: in 2009 RI arrested 2,546 people for first-time marijuana possession. According to re-entry institute OpenDoors’s new report, in 2008 RI imprisoned 188 people and jailed 396–who spent a collective 2,366 days in jail.
Next week, my Theoretical Criminology class will discuss labeling theory in criminology. Critiqued by some later theorists for its naïvete, I actually find it very useful for explaining crime and social control, often more so than its more structured theoretical counterparts.
Labeling theory was a break from the criminological scholarship that preceded it in that it did not try to explain crime through criminal propensity. Rather than ask the question, “why do people commit crime?”, which assumes a consensus about the definition of crime, labeling theorists chose to ask, “how do certain behaviors come to be defined as crime?”. Social deviance, as some theorists suggested, is in the eye of the beholder; once a certain social group succeeds in labeling a certain set of behaviors as crime, we come to see the people who engage in that behavior as criminals. And, sometimes, they come to see themselves as criminals.
The sit/lie ordinance is a case in point. Haight Ashbury, the neighborhood that prompted Mayor Newsom’s enthusiasm for the new ordinance, gets its special character from its 1960s heritage as the cradle of the hippie movement and free love. Back in the sixties, the first generation of hippies forming communes and challenging conventional culture were seen as deviants, but their impact on the city’s culture, and beyond, was immense. Today, the tie-dye clothes and head shops are mostly mementos of a time past, and our attitude toward the youth on the sidewalk has also transformed. If the behavior is the same, why the change in attitude?
Labeling theory sees the social order as conflict between different groups, all racing to impose their values on society by labeling the behaviors they see as problematic as crime. In this case, business owners at the Haight, and politicians running for office, have incentives to label the sidewalk dwellers as criminals and treat them as such. Greg Kamin’s review of the police commission meeting about the sit-lie ordinance is an excellent demonstration of this principle: different stakeholders in the city coming together to fight over labeling this behavior. While the issues at stake are clearly political and ideological, using the law, and particularly the criminal apparatus, to enforce such views is a powerful strategy. After all, the law is seemingly universal in its application: Everyone, not only runaway youth and homeless people, will be forbidden from sitting on the sidewalk, n’est ces pas? As Anatole France said in 1874, “[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”
Watch this space tomorrow for more on labeling theory.
This week’s posts seem like an endless stream of complaints about various futile criminalization efforts. Today’s contribution has to do with the recently proposed San Francisco “sit-lie” ordinance. Proposed by Mayor Newsom after a stroll with his baby on Haight, the ordinance would forbid sitting or lying on public sidewalks within the city of San Francisco.
The public discourse about this has centered on the question of criminalization of the poor. Beyond that question, which obviously has to do with the ideological divides in the city, I would like to bring once more, with your permission, gentle reader, the question of enforceability and benefit.
As characterized by Nevius (critiquing Jeff Adachi), the proposal “would restrict sitting or lying on public sidewalks anywhere in the city between 7 a.m. and 11 p.m. First-time violators would be warned to move, then could receive a citation with a $50 to $100 fine. The second violation could result in 10 days in jail or a fine of $300 to $500, and each violation after that would be subject to a $500 fine and 30 days in jail.” Since the targeted offenders would, for the most part, be unable to pay the fine, they’d be shunted to court, where the case would be closed or diverted to the Community Justice Center or to the Mental Health Court, where the same population could end up anyway, for the exact same reasons, if prosecuted for one of the following violations of the already existing San Francisco Police Code, Article 2:
Why do we need yet another low-level municipal law for people who are easy to tangle in the law enforcement web anyway, if we really want to entangle then in it? Could this be yet *another* politically-motivated symbolic piece of useless legislation? I leave that to you, gentle reader.
Oh, and if anyone feels that this piece of legislation might be a waste of precious policymaking time, it appears you’ll have a chance to speak up today at the police commission meeting.
——-
Props to Michael Mutalipassi for digging out the police code provisions.
There is so much going on in this New York Times piece, I hardly know where to begin.
A convicted sex offender has moved into a home across the street from Wildwood Elementary School in Piedmont, infuriating parents, who are asking school officials and the police why the 2006 state law mandating a minimum distance of 2,000 feet between schools and the residences of sex offenders is not being enforced.
But the Piedmont police, on the advice of county and state law enforcement officials, say there is nothing they can do.
As it turns out, the 2,000 feet requirement is unenforceable, because while it contains ex-ante provisions, it does not include an ex-post sanction for violators. This sort of legislation–like the one we showcased earlier today–screams symbolism, demonization, and electoral appeal, rather than practicality and prevention.
The story itself includes all the elements of sex offender policy and panic: a horrible redball crime discovered that inflames the discussion, an account of the unintended negative consequences of the law (many transient registered sex offenders), and plenty of interviews with concerned parents. Note these interesting comments, including the neighbor’s paternalist concern for the registered offender himself:
District Attorney O’Malley, who sits on the management board, said officials across the state spent a disproportionate amount of time on where registered sex offenders lived.
“With Jessica’s Law, the residency restriction component has been an enormous challenge,” she said, adding, “It has probably taken up a huge portion of our time and attention over the last year in just trying to figure out how to support locals to keep their communities safe.”
John McWeeny, who lives adjacent to Ms. McCaffrey, said that as a neighbor and parent of two children who attend Wildwood Elementary, he was “disturbed” by the situation.
“A hundred kids probably walk by these houses every day on their way to and from school,” Mr. McWeeny said. “You could throw a rock from here and hit it. This can’t be a good environment for him either.”
And then we have another usual component of these stories: both parties–the sex offender and his neighbors–confounding pedophilia with child porn, and confounding both of these with homosexuality. I can’t possibly quote it all here.
But this story also includes a prominent class element. The setting for this community affair is the affluent Piedmont neighborhood, the images of which are on the heading of this post. As it turns out, the only place where there sex offenders can live in compliance with the Jessica’s Law 2000 requirement is Hunters Point.
It is a sad commentary on the Bay Area, that the school requirement is a good index for the relative affluence of the different vicinities. And an even sadder aspect of it is that Hunters Point becomes a site of banishment for sex offenders, driven away from the more affluent communities.
Not surprisingly, there is commentary from George Runner, who has plenty of experience generating “not in our backyard” class-based banishment of released inmates:
State Senator George C. Runner, Republican of Lancaster and an author of the proposition, bristled at the idea that it was inadequate. The Piedmont situation is “outrageous,” Mr. Runner said, but he rejected the idea that the law was to blame.
Parole officers had the responsibility for ensuring adherence with the law, he said.
Mr. Runner also suggested that the law should be enforced at the local, not state, level — which in this case would mean that it fell to the Piedmont City Council to address the situation.
Sometimes I just don’t know what more to say; this is really a textbook example of doing everything as badly as possible. Public safety isn’t helped. The symbolic, futile, unenforceable message is thwarted and becomes a vehicle of hate. Class differences raise their ugly head, spearheaded by politicians whose allegiances are defined by class and locale. Different issues, which require different treatment, get mixed up with each other. The entire affair reminded me very much of a scene in the excellent 2006 movie Little Children, based on Tom Perrotta’s excellent novel. In this particular scene, Ronnie, a registered sex offender well known to the parents of this affluent suburb, goes to the pool on a hot day. The movie does not take sides with regard to registration; Ronnie is a fairly sinister, albeit miserable and pitiable, character. Note the complexity and the subtlety of the movie’s portrayal of community panic, and the delicate hand with which it portrays the class aspect of the disturbing event. The police materializes within seconds; the community congregates around the swimming pool. What a powerful scene; it looks like something out of Durkheim or Kai Erikson.
Kamala Harris is proposing a new law that would forbid registered sex offenders from joining or maintaining accounts on social networking websites. Her website explains:
Today, one in five children have been sexually solicited online. Only 25 percent of those children ever told their parents.
Just since 2007, the number of users on social networking sites like MySpace, Facebook, and Bebo has doubled. An estimated 750,000 children between the ages of 8 and 12 use social networking websites, despite many of these sites’ prohibition on child users. Many millions more teenagers use social networking websites as one of their primary mechanisms for social interactions with other teenagers or adults. Nearly 80 percent of teen users report that they are not careful about giving out personal information online.
Currently, there is no prohibition for registered sex offenders on using social networking Internet websites. AB 2208 will prohibit any registered sex offenders from using any Internet social networking website, requiring all offenders to sign this prohibition in writing at the time of their registration. A violation of this law would be a misdemeanor punishable by imprisonment in a county jail for a period not exceeding six months, by a fine not exceeding one thousand dollars ($1,000), or by both imprisonment and fine.
If these stats are accurate, this is a grim picture indeed. There is some research out there about how the internet has changed our considerations about victim accessibility and grooming habits. And, according to researchers such as Ilene Berson, there needs to be more awareness of the way in which nonsexual “friending” can seamlessly become sexual grooming. However, resorting to legislation as a solution in this case seems extremely problematic. Rather than resort to cynicism regarding the role of sex offender legislation in electoral campaigns, I think it’s more interesting to take this thing at face value and think about the implications. The first thing that comes to mind is a constitutional challenge. Unless some readers believe that potential people subjected to this requirement have a plausible First Amendment argument, I don’t think this will practically hold water. Even if one’s freedom of expression includes the right to register for Facebook, it is unlikely that any judicial forum in today’s political reality will think these rights overweigh the risk to children (assuming the stats are true; I confess I didn’t check). Previous challenges to sex offender post-sentence regulation consistently passed constitutional muster, and this one will probably pass it as well.
The more interesting question, to me, is that of enforceability. How can one effectively monitor who does or does not log onto a social networking website? After all, you can register with an alias, and in some cases, join chat rooms as a guest without registering. Facebook doesn’t verify your identity or your picture. The only time this might become an issue is if a child complains about being harrassed or propositioned online. Given the underreporting problem mentioned by Harris, this might not yield as much information as law enforcement would like. And when there is a report, the police could investigate and the prosecution could charge with various offenses involving harrassing minors.
Which brings me back to the discussion I didn’t want to pursue: given the unenforceability problems, is this a piece of symbolic legislation used as yet another “tough on crime” tool in an electoral campaign? Your thoughts appreciated.
————— Cross-posted on PrawfsBlawg. Props to Jeremy Seymour for alerting me to this.
Californians are trying to tax and regulate marijuana, through such measures as the Tax Cannabis 2010 ballot initiative and Assm. Tom Ammiano’s AB 2254. Meanwhile, legislators in the Rhode Island House of Representatives have also introduced a bill to legalize marijuana; text here: http://www.rilin.state.ri.us/BillText/BillText10/HouseText10/H7838.htm. H7838 would regulate marijuana wholesalers, retailers, and home-cultivators, and set a tax of $50/ounce like CA AB2254. Looks like there’s a race on to see who can begin reaping tax revenues, first: at least 6 states (California, Rhode Island, Colorado, Washington, Oregon, Nevada) will consider taxing and regulating marijuana by the end of 2012. H7838 specifically invokes corrections/enforcement savings as a reason for regulating marijuana: “There were more than 847,000 arrests for marijuana offenses in the US in 2008, which is more than Rhode Island’s entire adult population.”
The New York Times has a story today on compassionate release for inmates who are physically or cognitively unable to present a threat to society. This paragraph stands out:
“In California, where federal judges ordered the state to cut the prison population by 40,000, three people were granted compassionate release last year. In Alabama, where prisons are at double their capacity, four sick inmates were let out on compassionate release in the 2009 fiscal year; 35 other prisoners in Alabama died while their applications were being reviewed. Since New York adopted medical parole in 1992, at the height of the AIDS crisis, 364 people have been released.”
The situation may be egregious in New York, and proportionately worst in Alabama, but by sheer quantity California’s prison crisis is most dire. What values are we pursuing, what metrics are we optimizing, by paying for incapacitated inmates to die in prison rather than at home?
On January 10, the California Supreme Court ruled on People v. Kelley that legislature’s limitations on medical marijuana possession and cultivation are unconstitutional, except for as to their defensive purposes.
In November of 1996 California voters passed Proposition 215 (“the CUA”) which provided official legal protection for the medical use of marijuana in California.The CUA decriminalized the cultivation, possession and use of marijuana by “seriously ill” patients with a doctor’s recommendation and also allows the cultivation and possession by a patient’s caregiver. Its stated purpose was to ensure that “seriously ill Californians had the right to obtain and use marijuana for medical purposes” when appropriate and recommended by a doctor, and to ensure that patients, their caregivers, and doctors “are not subject to criminal prosecution or sanction”. While the CUA was a landmark step, it is an unclear, principal driven statute, which caused a list of difficulties: one was that it established no way for medical marijuana patients to verify their legal status—patients were arrested because police officers were not required to trust that patient’s recommendations were valid.
Due to various problems with the CUA, Senate passed The Medical Marijuana Program Act (“the MMPA”) effective since January 1, 2004, which supplemented the CUA without supplanting it. Among other things, the MMPA set base guidelines for maximum medical marijuana possession. As base limits, they established the minimum quantities a county can set as possession limits; a county was free to set limits exceeding these. Illustrative are Humboldt County’s guidelines, which include an outdoor growth provision that one may not have more than 99 plants which must be contained in less than 100 square feet.
In Oral Argument for People v. Kelley, the Attorney General’s office conceded that the limits set by the MMPA are unconstitutional to limit a medical marijuana patient’s possession of marijuana as guaranteed under the CUA, and as to burdens placed on a patient’s legal defense as provided by the CUA. The Attorney General’s office asserted that instead that the limits should be upheld as guidelines for law enforcement to establish in an arrest situation that marijuana possessed by a patient is truly for medical purpose. The Supreme Court’s decision on People v. Kelley is in line with the Attorney General’s concession.
My understanding is that the court decided that the specific provision of the MMPA (section 11362.77) regarding possession limits could remain, but that it could only be used for defensive purposes by patients, because the limitations would otherwise contravene the intent behind the CUA. Basically, a patient or caregiver can use the fact that they possessed marijuana in accordance with the limits to prevent arrest or to show that their possession was “reasonably related to the patient’s current medical needs,” which is all that is required under the CUA (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549).However, patients or caregiver need not be within the limits to assert that their possession was reasonably for medical purposes.
