CCC Endorsements 2012: YES on 34. NO on 35. YES on 36.

In two weeks, California voters will be offered the opportunity to vote on three criminal justice initiatives: Prop 34, which would replace the death penalty with life without parole; Prop 35, which would increase penalties for sex trafficking, make evidentiary changes, and further burden registration requirements for sex offenders; and Prop 36, which proposes a small but significant revision to the Three Strikes Law. There has been much talk about each of these individual propositions. In this short piece, I examine them together and show how they represent two different strands of thinking about criminal justice: New ideas of parsimony and effectiveness through Props 34 and 36, and old-school punitivism packaged as victims’ rights, via Prop 35.
Proposition 34 has received the most media attention of the three, and with good reason. What is interesting about it is not only the historical opportunity to do away with the death penalty, but also the new justifications and realpolitikbacking up the campaign. Voters are encouraged to look beyond their ideological and philosophical opinions about the death penalty, and instead consider the way the death penalty is actually applied in California. The data, and the Legislative Analyst’s Office fiscal report, paint a disturbing picture. Since renewing executions in the 1970s, the state has executed merely 13 inmates. During that same time, 84 death row inmates died of natural causes. The paucity of executions stems from extensive (and expensive) litigation on behalf of the inmates, which is financed by the state, and is increasingly focused on chemical availability and injection techniques. The result is that the death penalty, in reality, has become no more than life without parole, under special conditions (housing 725 inmates in single, rather than double, cells, with extensive security measures), accompanied by decades of incessant litigation and health care expenses, with or without an execution at the end, the elimination of which will save the state a hundred million dollars in the first year alone according to the Legislative Analyst’s office analysis. Under these circumstances, philosophical differences about the state’s right to kill, the meaning of retribution, and the importance of closure for victims, become irrelevant. Some might think that the right thing would be to fix the death penalty, rather than eliminate it, but no proposition along the former lines is realistically forthcoming, and therefore many former (and current) supporters of the death penalty, including victims’ rights advocates, law enforcement officials, and original proponents of the California death penalty statute, have joined the Yes on 34 campaign.
Prop 36, which would reform the Three Strikes Law, is similar to Prop 34 in that it transcends ideological differences in penal politics to offer a practical, parsimonious fix, albeit a modest one in this case. Currently, the Three Strikes Law inflicts a double sentence on habitual offenders who commit a second violent or serious felony, and a twenty-five-years-to-life sentence upon commission of a third felony, even if the third felony is not violent or serious. The law also allows strikes to be imposed simultaneously, implying that the rationale behind its punitive regime is not deterrence, but rather incapacitation. Currently, California prisons house approximately 32,000 second strikes and 9,000 third strikers; an estimated half of the latter population is serving a twenty-five-years-to-life sentence for a third strike that was neither serious non violent. Beyond the consistently unfavorable media coverage of the injustices propagated on this population (including harsh sentences for thefts of items that cost less than ten dollars), Prop 36 raises serious fiscal issues. While third strikers are a small population, they serve lengthy sentences, which make them by definition expensive inmates. The state spends approximately 50,000 dollars per inmate per annum, and much of this amount is due to health care costs, which apply mostly to old and infirm inmates. The proposed reform to the law is fairly minor: Second strikers’ sentences will remain the same, as will the ability to obtain simultaneous strikes. The only reform would be eliminating the harsh sentence for non-serious, non-violent third strikes, making those a double sentence rather than twenty-five years to life.  Current non-violent third strikers would become eligible for resentencing. The Legislative Analyst’s office estimates annual savings that might exceed 100 million dollars.
As opposed to Props 34 and 36, Prop 35 is a classic example of old-school punitive thinking masquerading as a victims’ rights proposition. Marketed as supportive of sex trafficking victims to give it moral weight, the actual text does little, if anything, to help victims. Moreover, the proposition is a mixed bag of the sort of punitive propositions Californians have experienced (and voted on) for years: An increase in the already-considerable sentences of human traffickers, changes to the mens rea requirement for trafficking minors, nebulous criminalization of sex work, and a host of bizarre and unenforceable additions to the already-pervasive sex offender registration scheme (sex offenders would presumably have to report their email addresses and usernames, which cannot possibly be monitored or enforced in any way.) Beyond lip service to the idea of training police to respond well to victims, the proposition would not really improve the situation of victims of trafficking in any predictable way, and its backers and endorsers are counting on the morality hype to confuse voters into doing what seems morally right and vote yes. It would be a costly mistake, along the lines of the 2009 Marsy’s Law and countless other propositions of the same ilk.
The contrast between Props 34 and 36 on one hand and Prop 35 on the other is more than a juxtaposition of nonpunitive and punitive measures. It is a juxtaposition of a new way of thinking about criminal justice in an era of scarcity. Our paucity of resources requires a careful assessment of what actually works in criminal justice reforms, rather than bombastic expenditures on symbolic punitivism that do little to prevent crime or empower victims. It is not crude or crass to discuss money in this context. Our willingness to spend resources on the criminal justice resources is the clearest statement of our priorities as a society. Voting yes on 34 and 36 is sending a loud and clear message that the money spent on executions and unnecessarily lengthy incarcerations is better spent on education, health care, road maintenance, and—yes—improving police investigation.
This election offers you the opportunity to do away with old partisan thinking and reject the tried-and-untrue method of extreme punishment and ratcheted sentencing. Reverse the punitive pendulum and opt for justice that works, not punitive proclamations that promise and do not deliver. Vote yes on 34, no on 35, and yes on 36. 

Death Row Inmates Oppose Prop 34… But You Should Support It

This morning’s fascinating story on the Chron brings us unexpected commentary about Prop 34: The voices of death row inmates themselves. And, as Bob Egelko tells us, they oppose the proposition.

Counterintuitive? Not really. Here goes:

It’s not that they want to die, attorney Robert Bryan said. They just want to hang on to the possibility of proving that they’re innocent, or at least that they were wrongly convicted. That would require state funding for lawyers and investigators – funding that Proposition 34 would eliminate for many Death Row inmates after the first round of appeals. 

Bryan has represented several condemned prisoners in California as well as Mumia Abu-Jamal, the radical activist and commentator whose death sentence for the murder of a Philadelphia policeman was recently reduced to life in prison. The attorney said California inmates have told him they’d prefer the current law, with its prospect of lethal injection, to one that would reduce their appellate rights. 

“Many of them say, ‘I’d rather gamble and have the death penalty dangling there but be able to fight to right a wrong,’ ” Bryan said. 

 . . . 

Attorney Natasha Minsker, the Yes on 34 campaign manager, said the initiative would place now-condemned inmates “in the same position as every prisoner convicted of a serious felony in California,” with the same right to go to court. 

They would no longer automatically get state-funded lawyers for habeas corpus claims, Minsker said. The main purpose of those lawyers now is “to save a person’s life” from a wrongful execution, but that task would disappear if Prop. 34 passed, she said. 

No one has polled Death Row inmates on Prop. 34. But an organization called the Campaign to End the Death Penalty sent letters to 220 condemned prisoners in California and received about 50 replies, all but three of them against the ballot measure, said Lily Mae Hughes, the group’s director. 

A few thoughts on this:

1. If anything, death row inmates’ opposition to the proposition strengthens the position of those who support it for reasons of financial prudence. What the inmates want is the hope of receiving quality litigation, which is exactly the expensive good that proposition backers, particularly those of the libertarian persuasion, seek to eliminate.

2. Wouldn’t the world be a better place if we worried about EVERYONE’s innocence, not just that of capital inmates? I imagine after Prop 34 passes we will have to retool habeas resources in a serious way to improve litigation on behalf of lifers. And the next frontier is life without parole.

3. My pal Billy Minshall and I exchanged thoughts on this, and he speculated that, had anyone polled recently freed slaves in 1863 about abolition, we might have been surprised at the outcome. It’s very difficult to imagine a more fair world when you’ve been making the most out of a horrifyingly unjust reality.

—————
Props to David Takacs and Billy Minshall for alerting me to this first thing in the morning. Cross-posted to PrawfsBlawg.

Prop 34 – Death Penalty “Replacement” and the Money Argument

This month, my posts here will be cross-posted at PrawfsBlawg. 
****
As a first post, I want to introduce a voter initiative on the November ballot – Prop 34, also known as the SAFE California Act – and talk a little bit about incremental change and “marketing techniques” for soft-on-crime propositions.
Jonathan Simon, Katherine Beckett and more recently Vanessa Barker told it like it is: Regardless of a politician’s party affiliation, presenting oneself as soft on crime is akin to political death (interestingly, Kamala Harris, who as San Francisco DA was opposed to the death penalty, called her book Smart on Crime). Bringing up propositions for leniency using human rights discourse is an unacceptable thing to do in American politics. But, as I discuss in the book, the last few lean years have had a silver lining: Scaling back punitive policies becomes more acceptable if done in the guise of financial prudence. So, in recent years we see some developments that are swinging back the punitive pendulum that has been moving in one direction for forty years. We’re seeing more talk of drug legalization and decriminalization; we’re hearing more talk of priorities in prosecutorial offices; and we’re discussing categories of offenders based on their cost, such geriatric parole of the old and the infirm.
One manifestation of these developments is a recent trend of death penalty abolition or, in the least, moratoria. Over the last year alone, five states have abolished the death penalty, citing its costs as a main factor, and bringing the number of no-death-penalty states to 17. After a legislative effort to do the same in CA failed, a public movement consisting of a coalition between activists, new non-punitive victim groupsand law enforcement supporters managed to obtain the necessary 750,000 signatures to place the proposal on the ballot as a voter initiative.
I can’t engage in prophecies as to the outcome in November, but Prop 34 has been fairly successful so far in winning endorsements from newspapers, public organizations, former supporters of the death penalty, and important public figures in law enforcement. And I think the reason they have managed to appeal to so many different constituents has a lot to do with their remarketing of the death penalty as costly and unaffordable. Their printed and online materials refrain from using the word “abolition” but rather use the term “replacement” (funny enough, many friends of mine have not jumped on the wagon because they are uncomfortable with the movement’s extolment of life without parole anddo not believe in incremental reform.) Their activists and volunteers are advised to stay away from denouncing the death penalty as barbaric and inhumane, but rather to argue for its expense and inefficiency. Watch how this video, ofr example,  emphasizes the issue of cost. The cost factor may also partially explain the recent decline in public support for the death penalty in CA.
This sort of newspeak isn’t really new. Nonpunitive propositions are often marketed as “smart” (which they often are!). What’s new here is the emphasis on money.
Elsewhere, I talked about the changing discourses in anti-death-penalty activism. The intellectual, Enlightenment-era conversation about its merits and pitfalls, which was so powerful and influential in Europe despite being a top-down intellectual experience rather than a public conversation, didn’t really happen seriously in the United States. Our first serious conversation about this happened in the 1970s, with the period of moratorium between Fuhrman and Gregg. And then, much of the conversation revolved around deterrence. Then, with the emergence of DNA testing and innocence projects, the conversation turned to wrongful convictions and the irreversibility of mistakes (see more about the exoneration process in Brandon Garrett‘s new book.) And now, the discourse focuses on cost and savings.
And there’s one more thing to consider: In most countries, as Frank Zimring and David Johnson eloquently showed, once the death penalty goes away, it doesn’t come back. But American exceptionalism, as David Garland points out, cannot be discounted. And, in the United States, the death penalty did return after four years of constitutional moratorium. Assuming Prop 34 passes (and, being a huge believer in incremental reform, I very much hope it does), would we bring back the death penalty when the economy improves?

The Price of Partisanism and the End of Public Debate

Dear readers – this post is more of a personal reflection than a news item. I hope you will forgive the indulgence.

As you know, I’m in the process of putting together a benefit concert for SAFE California. I posted a link to the event page on Facebook, and invited everyone I could think of who lives in the San Francisco Bay Area. I hesitated to invite folks who disagreed with the message, but figured that I would be inclusive in the invitations and allow people to make up their own minds as to whom they would like to support.

A Facebook friend who is a former student declined the invitation and posted the following, verbatim:

“I would rather perform a labotomy [sic] on myself with a rusty butter knife than support this idiotic cause.”

After the initial personal shock – I think highly of my former student and our interactions in school had always been respectful despite our deep disagreements about criminal justice policy – I started thinking a bit about the pros and cons of framing issues through the broad, but shallow, prism of cost.

What the death penalty debate was in the European Enlightenment era – and should have been here – was a debate about the limited powers of the state, about proportionality in punishment, about retributivist and utilitarian punitive goals. We could fundamentally disagree on those perspectives, but all opinions could be heard and respected, and we would have a deep understanding of where our disagreements lay. I might not be a believer in retributivism, and I might think that many victims just suffer more through the capital punishment appellate process, but I understand why people value retributivism on a philosophical level, and I also understand that some victims do feel closure after the person who murdered their loved ones is executed. I still think the death penalty is rotten policy that has no place in modern life in its present form, but I don’t think that those who disagree with me are out of their minds.[1] Nor do I think we’re nearly done with that aspect of the debate.

In some ways, shifting the debate to issues of cost and technologies ameliorates these fundamental disagreements about the moral and ethical aspects. We don’t have to talk about human rights or retribution or victims’ feelings, because we can talk about money.

But money doesn’t make those big issues go away. It just buries them deep underground, so we can avoid discussing the real issues. And so, we lose our practice in respectfully debating our positions, our civil discourse muscles atrophy, and when we do lash out – usually on the Internet, because we’re oh-so-polite race to face – the rudeness and disrespect are overwhelming.

I understand the power of the fiscal argument. After all, I’m writing a book about the power of the fiscal argument and the immense systemic transformation it is already generating. It can convince conservative folks who believe in fiscal prudence to swing back the punitive pendulum, and it has already convinced many. But I think it’s an open question whether we’re paying a dear price for it. We’re giving up the opportunity to have a serious, thorough public debate about a fundamental moral question, and by doing so, we’re keeping, and perhaps deepening, our resentment and possibly hatred of our fellow Californians (those behind bars and those who disagree with us, regardless of where we stand.)

Perhaps the money argument isn’t as shallow as it seems. American independence started off with a quibble about empowerment and representation, but it was framed as a tax debate. We often use money as a proxy for values; as in, how much we are willing to spend on various causes and services represents how we feel about the order of social priorities. In that respect, attending a fundraiser for a cause is a proxy for supporting that cause. The problem is, though, that it isn’t the same. While money indicates our support of a cause, discussions of money don’t explain why we support it. We are impoverished in intangible way by creating a shallow discourse to appeal to the heart of the consensus. And in the process, we relegate our interactions with our fellow human beings to two categories: Either we agree on superficial issues that we don’t care about. or we’re at each other’s throats without respect or dignity over things we do care about.

I would like to live in a world in which I can have immense disagreements with others and argue with them passionately while not losing sight of the humanity and dignity of the other party to the conversation, and I know that my former student (who graciously apologized after I pointed out that we could disagree without being rude) would like to live in that world as well. And I want that world to exist outside my classroom (which is a small start.).

What do you think? Which of the other party’s arguments in the death penalty debate are you willing to respect, if not agree with?

————————————–
[1] There are some debates – very few, for me – in which I can see no merit whatsoever to the other party’s position. Same sex marriage is a good example. But the death penalty does not fall into that category for me.

Benefit Concert for SAFE California

Love Conquers Death: Music and Readings to Benefit Safe California

Join CCC staff and local musicians and actors in an evening of music and readings. All proceeds go to SAFE California, a ballot initiative to replace the death penalty with life without parole.

Where? San Francisco Community Music Center, 544 Capp Street
When? May 26, 8pm

Tickets $15 ($10 with student ID).

See you there!

Deterrence and the Death Penalty: New Report from National Research Council

Before the public conversation about the death penalty was all about money, and before the legal conversation was all about chemicals and devices, before the emergence of innocence projects, research tried to determine whether the death penalty deterred people from committing homicides. This was the first in a series of different discourses about the pros and cons of capital punishment.

As I explained in an earlier post, the first research project of this kind, Isaac Ehrlich’s study from the 1970s, was seminal in bringing back the death penalty in 1976 after a four-year moratorium. Ehrlich found that each execution, on average, prevented eight homicides from occurring.

Throughout the years, the discussion about deterrence was relegated to a bitter feud between two research teams. In 2008, I had a chance to see a confrontation between those teams, and I wrote:

Everyone in the room was allowed to take a peek into the world of econometric studies of the death penalty, and to witness a cross between a genuine debate on the meaning of methodology and replication, and somewhat of an academic three-ring circus. As many readers may know, Ehrlich’s work in the 1970s was cited in Gregg v. Georgia, leading to a reinstatement of the death penalty after a four-year moratorium; studies following Ehrlich’s work have claimed to discredit their findings. The new generation of feuding parties includes Hashem Dezhbakhsh and Paul Rubin, who argue that their work confirms the deterrence effects of the death penalty, and Justin Wolfers (who was the discussant!), whose replication aims at discrediting the findings. Lots of good points were made. There are legitimate questions of what constitutes a faithful replication of a study; also, there’s a respectable debate on the merits of controlling for certain variables and the purpose of including, or excluding, Texas from the analysis. In addition, we all got, for the price of admission, a healthy dosage of mud slinging, including critique over who chose to publish at a peer-reviewed publication and who didn’t, and public exposure of the email exchange that preceded the conference. Afterwards, the two factions exited the room and went to lunch, leaving me to dig into my grilled veggie wrap and ponder other dimensions of the debate, namely, how we should improve dialogue across disciplinary boundaries, and how I wish someone studied the ideological aspect of all this, namely, whether in this sort of debate (or in the gun control/deterrence debate) methodological disagreements scrupulously follow political party lines.

My pal Dave Hoffman thought Wolfers and the dissenters won and wrote a thoughtful blog post about it.

A New York Times opinion piece is citing a National Research Council report, which once again tackles the issue of deterrence. The abstract provides in part:

This new report from the Committee on Law and Justice concludes that research to date on the effect of capital punishment on homicide rates is not useful in determining whether the death penalty increases, decreases, or has no effect on these rates. The key question is whether capital punishment is less or more effective as a deterrent than alternative punishments, such as a life sentence without the possibility of parole. Yet none of the research that has been done accounted for the possible effect of noncapital punishments on homicide rates. The report recommends new avenues of research that may provide broader insight into any deterrent effects from both capital and noncapital punishments.

This is an interesting addition to the discussion. It seemed to me that the deterrence argument became stale somewhere in the 1980s and remained of interest to a small number of researchers, whose ideological interest in the substance was secondary to their econometric methods. But this NRC report may be the last nail in the deterrence argument coffin.

It also speaks directly to the way SAFE California has been framing its campaign. The website is very careful, you’ll notice, to avoid the words “abolition” and “end”; it does not make humanitarian arguments; rather, it speaks of “replacing” the death penalty with life without parole. I realize this is a political necessity, as not all people on board with the abolition agenda are bleeding-heart rehabilitation enthusiasts (SAFE California has victims and law enforcers on board.) But what I want to point out is that this is not merely a conversation about what needs to go away, but also about what will come in its place. It’s impossible to have a conversation about the death penalty that is not comparative.

Many years after we do the right thing, we will need to have the conversation that European industrialized countries had a long time ago, about the merits of life without parole. By then, coalitions and priorities might shift. But, as Aragorn would say, while that day will inevitably come, it is not this day.

BREAKING NEWS: Bill to Replace Death Penalty with LWOP Qualifies for Ballot

SAFE California’s bill to replace the death penalty with life without parole has officially qualified for the 2012 Ballot, having easily surpassed the number of signatures required.

CCC will throw a fundraising house party for SAFE California in late May. Watch this space for details.

UPDATE: We are organizing a benefit concert for SAFE California on Sat, May 26. Click here for details and ticket reservations!

Connecticut Becomes 17th State to Abolish the Death Penalty

The Los Angeles Times reports that the vote was 86-62. And here’s Governor Malloy’s “I’m not soft on crime” reaction to the vote:

Malloy praised the vote, which came at 10:57 p.m., saying it would let the state “throw away the key” and put away the worst criminals for life. “For decades we have not had a workable death penalty,” Malloy said in a statement. “Going forward, we will have a system that allows us to put these people away for life, in living conditions none of us would want to experience.”

As in California, the safety net for abolition coalitions is life without parole. SAFE California, whose proposition advocates life without parole, relies on a coalition with victims and law enforcement officials who would not be on board with a movement to abolish life without parole as well.

Original Death Penalty Supporters Now Fight for Abolition

Several people sent me this recent New York Times story, which is the perfect example of the kind of cost-centered discourse that has come to dominate American corrections. First, here’s the gist of the story.

The year was 1978, and the California ballot bristled with initiatives for everything from banning gay teachers to cracking down on indoor smoking. Both lost. But one, Proposition 7, sailed through: expanding the state’s death penalty law to make it among the toughest and most far-reaching in the country.


The campaign was run by Ron Briggs, today a farmer and Republican member of the El Dorado County Board of Supervisors. It was championed by his father, John V. Briggs, a state senator. And it was written by Donald J. Heller, a former prosecutor in the New York district attorney’s office who had moved to Sacramento.


Thirty-four years later, another initiative is going on the California ballot, this time to repeal the death penalty and replace it with mandatory life without parole. And two of its biggest advocates are Ron Briggs and Mr. Heller, who are trying to reverse what they have come to view as one of the biggest mistakes of their lives.

This story has all the ingredients of humonetarianism: Cost-focused concerns, bipartisanism, and change of heart under the banner of fiscal prudence.

“But it’s not working,” [Briggs] said. “My dad always says, admit the obvious. We started with 300 on death row when we did Prop 7, and we now have over 720 — and it’s cost us $4 billion. I tell my Republican friends, ‘Close your eyes for a moment. If there was a state program that was costing $185 million a year and only gave the money to lawyers and criminals, what would you do with it?’ ”

Supporters of the death penalty are also willing to concede that the cost argument is the only one that would carry weight in the death penalty debate:

Kent Scheidegger, the legal director for the Criminal Justice Legal Foundation, which supports the death penalty, said cost “is probably the only argument that has any chance. The people have heard all the other arguments for years, and it has never gotten any traction.”

_______________
Props to David Takacs, Colin Wood, and Morris Ratner, for the link.

Death Penalty Abolition Bill – to Ballot

SAFE California, a voter initiative to abolish the death penalty and replace it with life without parole, has succeeded in collecting the necessary 750,000 signatures to place the initiative on the ballot. So, come November 2012, California voters will have the opportunity to join Alaska, Hawaii, Illinois, Iowa, Maine, Michigan, Minnesota, New Jersey, New Mexico, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin and the District of Columbia.