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.

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.

Fresno County Jail Frees Parole Violators
Fresno & Valley News
No room in Fresno Co. Jail for parole violators
Posted: 11/26/2011 10:29 PM

In another sign that Fresno County is struggling to manage more criminals, the sheriff has ordered that state parole violators no longer will be held at the county jail.

The parolees, who were once sent to state prison if they got into trouble, are now sent to local jails instead – part of the state’s recent realignment of the penal system. But in Fresno County, where the jail already is crowded, the Sheriff’s Office has determined there’s no room for the former convicts.

State parole officials, acknowledging counties are being asked to do more under the realignment, say they’ll try to find other ways to deal with problem parolees.

Orders to not lock them up began Thanksgiving Day. While the jail has long been releasing inmates early because of the lack of space, the directive to turn away parolees only reinforces concerns that criminals aren’t serving the time they should.

“They’re out in the community and they’re violating their parole, and when there’s no consequence for violating, that’s going to be a public safety issue,” said Kelly Keenan, chief assistant district attorney for Fresno County.

Debtors’ Prisons in California?


Americans are in more debt than ever before, and the banks are going to new extremes to squeeze us for every last penny: If you can’t pay up, they’ll try to get you locked up.

The Wall Street Journal has been investigating the disturbing resurgence of debtors’ prisons throughout America — here’s one especially infuriating example of what the banks are up to: AIG got a $122.8 billion bailout from taxpayers — that’s $4,000 per American. Jeffrey Stearns happened to owe AIG $4,000 on a loan for his pickup truck. How’d the mega-corporation handle his debt? Did they forgive him because of the public’s recent largess? No way: They had him arrested in front of his family.

Will you urge California’s lawmakers to shut down the debtors’ prisons? Just click here to automatically email your state legislators.

Here’s more on Stearns:

After being handcuffed in front of his four children, Mr. Stearns, 29 years old, spent two nights in jail, where he said he was strip-searched and sprayed for lice. “I didn’t even know I was being sued….It’s the scariest thing that ever happened to me.”

The Wall Street Journal’s data reveals that across the country, banks are having tens of thousands of Americans arrested over their debts. What happened to Stearns could happen to almost anybody.

Some state legislators are moving to outlaw the practice. Will you urge your lawmakers to join them?

WSJ: DoJ ends safe surrender program +more

Great Wall Street Journal article this week about the economic crisis and fiscal austerity coming home to roost in federal law enforcement and sentencing/corrections policy. Full article here. My favorite part is the bullet points:

“—Increasing the amount of time deducted from prison terms for good behavior, which would immediately qualify some 4,000 federal convicts for release, and another 4,000 over the next 10 years.

—Eliminating the Federal Bureau of Investigation’s National Gang Intelligence Center, for a savings of $8 million in the next budget year.

—Sharing less of the proceeds from property confiscated from criminals with state and local authorities, and eliminating other funding to local police departments for some operations. The change would reduce spending by $120 million, according to the White House.”

And I found this paragraph the most intriguing: “The U.S. Marshals Service has quietly shelved the Fugitive Safe Surrender Program, which has cleared the books on thousands of low-level criminal cases in the past six years. Under the program, law enforcement officials set up temporary shop in a church or a public setting, urging fugitives to turn themselves in to resolve old warrants and often drawing hundreds in a single day.”

Kentucky reforming drug sentences (?!)

So apparently the state of Kentucky is debating legislation to reduce prison sentences and increase diversion for drug convictions. Today’s Lexington Herald-Leader has a detailed, well-written, very informative article about the bill, which was presented Tuesday by members of a special drug-specific sentencing committee called the Task Force on the Penal Code and Controlled Substances Act. Please read the whole thing here, but my favorite passage is:

“The bill would establish a penalty of “presumptive probation” for some lesser offenses, such as drug possession, requiring judges to sentence defendants to probation rather than prison unless the judges can state a compelling reason to do otherwise. It also would require addiction treatment for those convicted of drug possession.

Marijuana possession would drop from a Class A misdemeanor, with a penalty of up to a year in jail, to a Class B misdemeanor, with a maximum jail term of 45 days, if the judge ordered incarceration at all.”

Children on the Outside

This week, Justice Strategies rolled out their excellent new report, “Children on the Outside: Voicing the Pain and Human Costs of Parental Incarceration,” by Patricia Allard and Judith Greene. Read it here.

We knew that the USA’s enormous prison population has high monetary costs and even higher human costs, but this paper documents the particular costs of separating families. Parental incarceration triples the odds that children will engage in violence or drug abuse, and doubles their odds of developing serious mental health issues. There are more children of incarcerated parents than there are total incarcerated persons; nearly 25% of the 1.7 million children with incarcerated parents are under age four, and over 33% will become adults while their parents are locked up.

LA Times favors parole for youth LWOPs

Today’s LA Times carries this piece:,0,2931752.story subtitled, “Sara Kruzan’s case shows why juveniles should not sentenced to life without parole.”

The Times had previously written in favor of Sen. Yee’s narrowly-defeated SB 399 to change this policy statewide; today’s Times asks Governor Schwarzenegger to offer clemency, if only in this one extreme case.

My favorite quotes: “She has volunteered for dozens of rehabilitation programs and won awards for her participation and attitude. … The CYA felt that she should have been prosecuted as a juvenile rather than as an adult, which would have put her into a rehabilitation program from which she could have been freed by age 25 — seven years ago.”

Sentenced a minor to life behind bars with no chance of parole is a ghastly, inhumane, cruel practice.

Incarceration Length and Recidivism

This morning at CELS I heard a paper by David Abrams titled Building Criminal Capital vs Specific Deterrence: The Effect of Incarceration Length on Recidivism. Abrams sought to figure out what sort of relationships existed between incarceration and recidivism. These sort of studies often present serious challenges, because length of incarceration might reflect other factors about the defendants that might predict recidivism later on. However, Abrams built on an opportunity to control for that, since defendants were randomly assigned to public defenders of differing attorney ability. Attorney ability therefore allowed him to instrument for sentence length. The findings were that the relationship between sentence length and incarceration was not linear. For the lowest sentences, the relationship is negative; it becomes positive for an intermediate sentence length, and then negative for the longest sentences. The conclusions tie the findings with theories of criminal capital formation and with specific deterrence.

CDCR Recidivism Report

CDCR has just released its recidivism report, which is fairly detailed and merits some discussion. First, I think these reports are a good start and CDCR should be commended for tracking down the information and analyzing it. The Office of Research did an overall good job at highlighting some of the major issues and, while I’m sure more could be mined from the raw data, there is enough content to comment on.

Here are some points that come to mind, in no particular order:

The recidivism rates in general, while not surprising, are disheartening, and attest to the complete failure of our prison system in achieving deterrence, rehabilitation, or both. It is telling that the statistics haven’t changed significantly over time, despite increased punitive measures. Clearly, what we are doing under the title “corrections and rehabilitation” does not correct OR rehabilitate. The percentages are particularly distressing for people who have been incarcerated at least once before.

Some interesting demographics: The report tracks people up to three years after release. Almost 50% reoffend within first six months; at one year, the percentage rises to 75%. Women recidivate at much lower rates than men (it would help to have a breakdown of this by offense, because perhaps offense patterns matter here). Unsurprisingly, recidivism declines with age. Also, recidivism rates for first-time offenders are highest for Native Americans, African Americans, and White inmates. But these effects dissipate for re-releases.

The releases from prison are unevenly distributed across counties (a large percentage of released inmates goes to LA). However, most of the folks that end up in LA are first-time releases, which explains why the recidivism rate in LA is actually the lowest. Other counties, such as SF, Fresno, and San Joaquin, have the highest recidivism rates, but they receive re-releases (for whom the rates are higher in general) more than first-time releases.

The distribution of offenses is interesting. 20% of released inmates were in for serious/violent crimes, and this percentage holds for recidivism, so it would appear that people do not “graduate” to more serious crime (perhaps they just do more of the same). Also, there doesn’t seem to be a connection between seriousness of crime and recidivism (which might suggest that it’s the institutionalization that contributes to it). Also, the report doesn’t track a connection between the original offense and the re-offense, save for sex offenders. Notably, however, 47% of returnees to prison are brought back in because of parole violations.

Re sex offenders:

This category merits special attention because it’s the one most often targeted by punitive legislative energy. 6.5% of released people registered as sex offenders. The data suggests that sex offender registration slightly reduces recidivism. However: Only 5% of released sex offenders who recidivate are convicted of an actual sex offense. 8.6% commit an unrelated crime, and 86% are back on a parole violation. This speaks volumes about the pervasiveness of registration rules and limitations and about the low risk of sex offenders.

More than half of the released inmates are in for short sentences – but for recidivists the length of sentence grows (this is probably just the effect of previous offenses enhance sentencing or of repeated parole violations.) There is a rise in recidivism for people who serve 0 to 24 months. After that, the rates decline. Possible intervening variables are health and age.

Recidivism rates rise significantly for folks released after their second incarceration (although subsequent re-incarcerations don’t make much of a difference). The returnees are also more likely to be assigned a high “risk score”. These two findings are not unrelated; I imagine that, when using the CSRA tool for predicting recidivism, one predictor of “high risk” is repeated prison sentencing. This classification therefore probably feeds itself.

On a more general note, I hope that releasing the data also means that our judicial apparatus might rethink some of its policies and approaches. In Malcolm Feeley and Jonathan Simon’s 1992 piece The New Penology, they argue that our “actuarial” approach to justice is behind a transformation from external correctional goals (e.g. reducing recidivism) to internal goals (e.g. reduce riots and escapes). If someone is keeping track of recidivism data, let us hope that the data actually gets used.