California Humonetarianism Hits the NYT

The developments and reforms in California corrections have drawn attention nationwide. Yesterday’s New York Times included this story, which summarizes the recent developments in terms of prison releases and parole reform. The piece includes some data on the new releases, as well as reports of the backlash which we covered here several weeks ago, and some interviews with Mark Leno, Joan Petersilia, and others. The whole thing is an interesting read, but here’s what grabbed me in particular:

Eric Susie, 24, recently had his parole terms readjusted under the new law. Mr. Susie had served 13 months in prison for possessing an M-80 firecracker wrapped with razors near a school (he argued, unsuccessfully, that it belonged to a friend).

Now, more than a year out of prison, he no longer reports to a parole officer or submits to monthly drug tests and can travel more freely, including out of state to visit family in Las Vegas.

“I feel like I am finally free,” Mr. Susie said. “I feel like I don’t have that monkey on my back, like being a prisoner. I feel like I am a human being and can get my life together.”

Even the guards’ union, which so heavily promoted and supported the tough sentencing of the past that fueled the prison building and expansion boom, now says it supports the idea of alternatives to prison and did not publicly object to the new law.

The overcrowding, union officials now say, poses a physical threat to its members, and the union has sided with plaintiffs battling in federal court to force even greater reductions of 40,000 inmates over the next two years.

———-
Merci a mon ami en Maisons-Alfort, Simon Grivet, pour le liaison.

On Conspiracy Theories and the Prison Industrial Complex

Business Insider is not one of the usual places where I go for news, but I got there this morning via the Prison Law Blog. The newssite suggests that hedge funders like Bill Ackman might be displeased with the recently dropping prison rates. The reason? Counting on growing imprisonment rates, Ackman has invested heavily in Corrections Corporations of America. Here is his presentation on the company. One of the slides bears the title, “Tenants Unlikely to Default”.

Bill Ackman’s Presentation on Corrections Corp of America (CXW) @ the Value Investing Congress

Much has been written about the business aspect of prisons, and especially on privatization. The broader context is discussed in Nils Christie’s Crime Control as Industry, which defines the prison system as a mechanism of “depersonalized pain delivery”. A more personal-political statement, highlighting racial differences as well as the economic angle, can be found in Angela Davis’ The Prison Industrial Complex. For our purposes, this is an important discussion to have when policymakers are contemplating contracts with CCA for out-of-state institutions as overcrowding relief. The question is whether it is accurate to see Bill Ackman’s cost-benefit calculation as proof of an intentional conspiracy to keep the prison industry alive and well. And if so, who’s in on the conspiracy?

My sense is that a more subtle and nuanced description will do better. While CDCR employment depends on prisons, not all CDCR employees cynically hope for overcrowded prisons. If anything, CCPOA decry prison overcrowding, if only because it makes the correctional staff’s job more difficult. Yes, there are those who make profit off the size of our correctional apparatus. But it’s important to distinguish actors with financial interests from actors within large bureaucracies who operate out of inertia, and some of whom probably rejoice in the news of population decline.

———————
cross-posted on PrawfsBlawg.

2.5% Decline in CA Prison Population

For the first time in nearly 40 years, states see a decline in prison population, as reported by this new Pew report. The decline in California, though not the most impressive percentagewise (that honor falls to Rhode Island, per Jesse’s post), is the largest in total numbers: we have shedded 4,257 prisoners in 2009. Compared to the total numbers we are dealing with, this is a modest beginning, but maybe the financial crisis will have a “humonetarian” impact after all. The report ascribes the reduction in California to a combination of the financial crisis and the development of intermediate sanctions for parole violators.

The number of federal prisoners, however, has increased.

Incidentally, check out the impressive 6.7% reduction in the Michigan inmate population. Ironically, Michigan’s ability to do more about overcrowding than we do is what allows them to try and enter contracts to house our prisoners out of state. If we were able to do, in-state, what Michigan has done, we would have no need for Michigan’s services.

Narrow Coalitions? CCPOA’s Blueprint for Prison Reform

The CCPOA website features, these days, their statement on prison reform. Prison activists might find, to their possible surprise, that there are some issues on which a narrow coalition can be formed. Granted, CCPOA supports building more prisons under AB900, but they are also staunch supporters of a sentencing commission, strongly support parole reform, and bemoan the lack of rehabilitation programs in prison. The document makes for an interesting read.

The Role of Cost in Anti-Death-Penalty Rhetoric

Elsewhere, we discussed the recent moratoria on executions, as well as ALI’s retraction of support for the death penalty and its abolition in New Mexico. These trends are undoubtedly linked to the financial crisis. Today’s question–and maybe our readers have some thoughts on this–is whether anti-death-penalty activists are making the most of the scarcity-related genre of arguments against the death penalty. There seems to be some evidence that they are.

Broadly speaking, we can classify anti-death-penalty arguments into three groups:

  1. Value concerns: this is a broad family of arguments, which include not only the broad issue of the appropriateness of the state’s killing of its own citizens, but also doubts about its deterrent effect, as well as concerns about the inequities associated with the death penalty (such as the overrepresentation of minorities);
  2. Innocence concerns: featuring cases of wrongful convictions and executions, the death penalty’s irreversibility plays an important part.
  3. Cost concerns.
There’s hardly any doubt that cost-related concerns figure prominently in the discourse nowadays. Mike Farrell’s post this weekend on The Huffington Post places particular emphasis on the cost argument. The Death Penalty Information Center also seems to highlight this argument in their publications. What I don’t know, and would very much like to find out, is whether this is a new phenomenon, generated by the financial crisis, or whether previous installments of the death penalty debate also featured cost-related arguments. My (unproven) hypothesis is that there would be evidence of all three arguments throughout the debate, but that the focus of the debate has shifted from value concerns (which were always discussed) to innocence concerns (whose importance probably increased with the introduction of DNA testing) to cost concerns. I guess the way to figure this out is to go back to activist literature from before the 1970s and spend some time “counting” reasons in articles. Your thoughts on this, as well as on the effectiveness of cost-related arguments in this debate, are welcome.

Leaniency: The Criminal Process in Times of Scarcity

As regular readers probably know, I have been thinking a lot about the many ways in which the financial crisis has shaped changes in the criminal process. Most of my energy was devoted, recently, to thinking about its impact on the correctional apparatus; in my article Humonetarianism: The New Correctional Discourse of Scarcity (which I started shaping on this very blog!) I argued that the crisis provided a rare opportunity to revisit a forty-year-old punitiveness wave; it gave politicians permission to adopt non-punitive policies with less concerns about appearing “soft on crime”. The most striking example of this is the passage of the (admittedly watered-down version of) Governor Schwarzenegger’s early release plan, based on comprehensive parole reform and good credits.

This does not mean, of course, that the considerations behind our correctional policy have really become less punitive in any deep or meaningful way. Our discourse has not fundamentally changed; moreover, the solutions we have approved are far from being systematic. California still does not have a sentencing commission. Various serious concerns about prison overcrowding, such as the overrepresentation of minorities, have not been properly addressed. Not much consideration, if any, has been given to the aims of punishment with regard to old and infirm inmates (beyond the issue of cost of their medical expenses). Nevertheless, as studies in punitivism repeatedly show, the public tends to be much less punitive in surveys and experiments when presented with the costs of punishment.

Keeping track of humonetarianism made me more aware of the impact of cost and scarcity on other stages of the criminal process. And, indeed, there is some evidence of crisis-mode budgeting which is changing the nature of the criminal process. This is not real leniency or a turn away from severity, but it often manifests itself in the way of decriminalization, changes in prosecutorial policies, etc, among other phenomena. Which is why I call it “leaniency”. One glaring example is the fact that, perhaps for the first time, there is a real chance that California voters might legalize marijuana. As I recently found out from Quintin Mecke, who is Assemblyman Tom Ammiano‘s Communications Director (who spoke recently at Hastings), they’ve been seeing increased support of their marijuana legalization/regulation proposal in polls whenever they link it with taxation and increased revenue for the state from marijuana sales.
Other aspects of leaniency have to do with the decreased budgets of the police, prosecution, and defense. All these agencies have to adopt lean, smart policies about work if they are to survive. Beyond the hiring crisis in D.A. and P.D. offices, there is evidence that prosecutorial policies have changed to allow less cases into the criminal process; in some counties, some offenses are not being charged. Public Defenders focus their efforts on cheaper case management, avoiding involvement in mechanisms such as problem solving courts, which tend to suck up resources and time. Has there been an increase in plea bargains? I have no idea, but I would not be surprised if there has. In what other ways is a cheap criminal process different? Is it merely an updated version of Herbert Packer‘s crime control model, or is something else going on? Your comments appreciated.

Is the Jail Early Release Statute Retroactive?

A few days ago we reported on the early releases from California local jails. It seems that the trickle of releases triggered a question of retroactivity; to what extent are early releases available for people who had served significant parts of their sentence before the statute came into effect?

Attorney General Jerry Brown says no. As the Chron reports, different counties have applied different standards for deciding on early releases:

Some counties, including Contra Costa, adopted that interpretation and started releasing inmates who had served at least half their sentence by Jan. 25.

Others, including San Francisco, applied the new credits only to the time an inmate served after Jan. 25. Santa Clara County extended the new credits only to those who were actually sentenced after Jan. 25.

Brown, the state’s top law enforcement officer and a prospective candidate for governor, said Tuesday he had concluded the new credits are not retroactive and apply only to time an inmate spends in custody after Jan. 25.

Does this make sense? That’s a good question. Usually, legal provisions apply only prospectively. In this particular case, however, the new statute’s purpose could be completely thwarted by a prospective application. This is essentially a humonetarian law, rather than one aimed at actually changing penal policy in California. This is a good reminder that the future of our correctional apparatus lies not only in making the right laws, but also in applying them with their goal in mind.

More on Jail Releases from Jeanne Woodford

A few days ago we reported on the impending jail releases and their effects. Jeanne Woodford’s op-ed in the Contra Costa Times offers some ideas on how to thoughtfully reduce population and how to spend the Federal and AB 900 money:

First, California is expected to receive upward of $35 million in federal funds through the Edward Byrne Justice Assistance Grant (JAG) Program in 2010. Federal JAG grants, which do not require state or county matching funds, are approved for law enforcement, prosecution and court programs, community corrections, and drug treatment, among others.


Sacramento should direct these funds to counties to assist counties’ handling of probationers and parolees.

This is not unheard of. Last year the Legislative directed $100 million in federal stimulus JAG funds toward crime-reduction programs, including $45 million to county alcohol and drug services (to provide treatment instead of incarceration to low-level drug offenders), $45 million for intensive probation services (to increase the number of felony probationers completing probation successfully) and $10 million for a new Re-Entry Courts initiative (to reduce parolee recidivism).
Secondly, counties should be able to access funding from the prison expansion legislation passed in 2007, AB 900. That bill included resources for rehabilitation services and a limited amount of funding for counties. Rather than being spent to expand state prison beds several years in the future, more of these resources should be directed to counties now to fund community corrections and, where needed, jail space.
I think the key to use the funds thoughtfully is to find out which “crime-reduction programs” have proven rates of success. It’s time for a new “What Works”. After reading Dreams from the Monster Factory, I thought whether anyone had collected good data, including a control group, regarding the success of the RSVP program. Assessing the efficacy of such programs should be top priority. One of the challenges is that recidivism data is rather difficult to access in California and rap sheets tend to be somewhat inaccurate. In addition, due to the multiple types of parole violations, it’s hard to know whether to treat them as failures of rehabilitation or not. But good methodological answers to these questions can and should be found. These are no trifle sums of money, and they need to be well spent.

NYT on Compassionate Relief puts CA in perspective

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?