tasked with finding $400 million in cost savings, unveiled proposals Friday to save money by reducing the number of parolees by 30,000 and the state’s prison inmate population by 8,000 by next summer.
A key assumption underlying the discourse of correctional policies has been that the ever-increasing sentences, changes in trial structure, and criminalization, represent the will of the public. This is a particularly strong argument in the case of California, since a substantial amount of our correctional reforms occur through voter initiatives. It’s probably time to ask ourselves whether the assumption that Californians are punitive, and desire these reforms, is true.
On its face, the assumption seems to be supported by some anecdotal evidence. In the last elections, Californians passed Proposition 9, which, in addition to strengthening the victim’s position in the criminal process, worsens the inmate’s position in parole hearings (by increasing pre-parole imprisonment periods and diminishing the scope of the right to counsel); while these particular provisions have not been incorporated yet into law, through Judge Karlton’s intervention, they were still elected as “the will of the people”. They also rejected Proposition 5, which promised drug treatment and various diversion options for non-violent drug offenders. Anecdotal evidence also seems to support an assumption of punitiveness; it is enough to glance at the comments at SFGate.com to be confronted with anger about crime, which translates itself into demands for more punitiveness. But is this really true? How does one systematically measure punitiveness? And, more importantly, how do we differentiate between public punitiveness and the initiative of lobbyists, interest groups, and politicians?
The first thing to ask ourselves is whether this is, indeed, a particularly punitive period in our history. While many influential thinkers, such as David Garland, Stanley Cohen, and Jonathan Simon, characterize our times as being increasingly punitive, others disagree. As Roger Matthews reminds us, there also have been examples to the contrary. Think, in the California context, of the recent developments regarding the possibility of decriminalizing marijuana, or on the considerations of incarceration options.
The next step is trying to figure out whether people are particularly punitive, and if so, which factors predict punitiveness. We don’t know much about the punitiveness of Californians in particular, but research conducted elsewhere in the States and in the world suggests that public punitiveness is an empirically complex issue.
Shadd Maruna and Anna King, who conducted a survey on the British public, found that factors such as concerns about the economy and the state of ‘the youth today’ account for a substantial proportion of the effect of actual crime concerns on punitiveness. On the other hand, crime-related factors, such as victimization experiences or anxieties about crime did not appear to predict punitiveness. Similar trends, connecting punitiveness with strong emotions or sentiments, were found by Devon Johnson, who used U.S. national survey data. Her work shows that anger about crime is a significant predictor of punitive attitudes, after controlling for other factors such as racial prejudice, fear of crime, causal attributions for criminal behavior, and political ideology. Similarly, in a national survey study, Sherwood Zimmerman, David van Alstyne and Christopher Dunn found considerably punitive trends; they then compared the hypothetical outcomes to a recent conviction cohort from New York State, and found that, had the public’s will been faithfully applied to actual convictions, the additional correctional costs would have been very high.
Emotion-driven opinions about punishment are, of course, particularly strong regarding issues like the death penalty. Mona Lynch’s study of pro-death penalty discourse on the internet finds that the death penalty is framed as a symbol of justice, a triumph of sorts of the good (the innocent victim) and the evil (the capital murderer). This essentialist perspective eliminates all consideration of costs, let along empathy for the offender.
Some studies, however, have found less punitive outcomes, particularly by tweaking the methodology of punitiveness surveys. Douglas Thomson and Anthony Ragona have critiqued standard punitiveness surveys, arguing that these generally do not ask respondents to consider contingenciessuch as offense circumstances, behavioral content of varioussentences, or fiscal cost differentials. This means that the public will necessarily appear to be more punitive than judges, because they are not faced with the full spectrum of judicial considerations, nor are they offered information about the relativefiscal costs of current and alternative sentencing practices.Thomson and Ragona, who conducted an Illinois survey incorporating issues of costs found that, on several dimensions,the public turned out to be less vengeful than typically portrayed in publicopinion poll and media accounts, notably in its openness to community sentences. I find this information particularly interesting, because it suggests, in the spirit of humonetarianism, that a discourse of scarcity has the potential to decrease public punitiveness. It is useful, in this context, to remember the rejection of Proposition 6, which suggested extremely punitive measures against juveniles and gang members; Prop 6 was mostly attacked for its high financial costs.
Neville Blampied and Elizabeth Kahan, who conducted a survey study in New Zealand, found creativity and openness to alternative punishments among community members asked about responses to juvenile noncompliance. The outcomes here may have been less punitive because of the case study, but they may also reflect cultural differences between the U.S. and New Zealand, which has been very open to juvenile justice reforms, and uses family group conferences almost to the exclusion of juvenile courts. The last important question is whether public punitiveness – if, indeed, it exists – is the reason for punitive policies. As Katherine Beckett argues in her beautiful book Making Crime Pay: Law and Order in Contemporary American Politics, these policies do not originate with the public. She carefully timelines punitive initiatives, demonstrating how public opinion is being swayed by politicians and the media. In states like California, where much public policy is made directly by the public, it is important to examine who stands behind punitive initiatives and how these campaigns are being run.
This New York Times piece from a couple of weeks ago highlights another aspect of humonetarianism: To cut costs, states close prisons down or switch to community programs. Here’s the “local interest” bit:
In California, where Gov. Arnold Schwarzenegger, a Republican, has called for $400 million to be cut from the state’s corrections budget, officials are seeking to remove low-level drug offenders from the parole supervision system and to provide them treatment options instead.
Like other states making such changes, California is led by a governor who long opposed such shifts in prison policies. But Mr. Schwarzenegger, as well as other leaders and lawmakers who are far more conservative, has come around to a view held by advocates of sentencing and prison reform that longer sentences do little to reduce recidivism among certain nonviolent criminals.
“In California we are out of room and we’re out of money,” said the state’s corrections secretary, Matthew Cate. “It may be time to take some of these steps that we should have taken long ago.”
But we are by no means the thriftiest state. Other states have been examining prisons to see whether they are efficient, and are closing them down. And other states are also reforming their sentencing laws, particularly minimum sentences for drug offenders. Many concede that the big waste of money is parole and are cutting down on supervision.
A few thoughts on some of the trends in the piece:
By closing down prisons and transporting people to other prisons, we may be saving costs, but we’re perpetuating the setup of prisons as far away gulags. A visit from one’s family becomes more unlikely if everyone is shipped to a facility far away.
The cuts, as Jennifer Steinhauer points out, go both ways. While treatment options are perceived to be cost-saving mechanisms, they need to defend their own funding. In emergency times, when short-term thinking is prevalent, lengthy project evaluation, examining declines in recidivism, may not be possible.
This is something I’ve already said regarding the Plata/Coleman decision: I am deeply concerned that mass release of prisoners with no job skills and little support by way of reentry programs is a self-defeating step, which, without overhauling other systems, will lead to their return to prison. This sort of thing will only work if parole is retooled as an instrument of rehabilitation and hope.
(image courtesy Stichting Institute for Medical Marijuana in the Netherlands, at medicalmarijuana.org)
The reemergence of the marijuana legalization debate, which we covered earlier this week, has been invigorated by San Francisco Supervisor Ross Mirkarimi’s legislative proposal, under which the City’s Department of Public Health would distribute pot through city clinics. The argument, as so many other criminal justice related arguments these days, has shades of humonetarianism:
“We’re spending much more money keeping marijuana underground, trying to hide a fact that is occurring all around us,” Mirkarimi said. “Now is the time to take responsibility for something we’ve deflected to others and to test our ability to take responsibility.”
What is the legal stauts of medical marijuana in California? This informational webpage from the Department of Public Health explains is quite plainly. One can obtain marijuana from a licensed dispensary using a medical marijuana ID card. The card can be obtained at San Francisco General Hospital (incidentally, where UCSF scientists working with HIV patients found them unharmed by medical marijuana use). It costs $103, and requires some medical paperwork, or “an original letter from a medical provider stating that you have a serious medical condition where the use of medical marijuana is appropriate”.
(image courtesy Contra Costa Health Services)
Forging the card is a criminal offense, but some anecdotal evidence I collected this week suggests there’s no incentive to forge; getting medical recommendations is very easy, and several physicians in the Bay Area make their living exclusively from such recommendations. The relationship between the physicians and the dispensaries are much less straightforward. Patients who come to obtain a recommendation are not told the locations of the dispensaries. Not that it is a big secret that requires being “in the know”: the cannabis club directory is online.
However, matters are complicated by the fact that federal authorities do not recognize SB 420, which created the dispensaries. Therefore, despite its legal (albeit quiet) status in California, and oversight by the city, the feds still can (and do) raid dispensaries occasionally. The question is, therefore, whether dispensing the drug through the municipality would discourage the feds from paying attention to the market.
The long discussion on regulating marijuana is back, as the Chronicle reports today. Except this time, true to the spirit of Humonetarianism, much of the discussion focuses on finances and costs.
Experts say an unprecedented confluence of factors might finally be driving a change on a topic once seen as politically too hot to handle.
Among them: the recession-fueled need for more public revenue, increased calls to redirect scarce law enforcement, court and prison resources, and a growing desire to declaw powerful and violent Mexican drug cartels. Also in the mix is a public opinion shift driven by a generation of Baby Boomers, combined with some new high-profile calls for legislation – including some well-known conservative voices joining with liberals.
Leading conservatives like former Secretary of State George Shultz and the late economist Milton Friedman years ago called for legalization and a change in the strategy in the war on drugs. This year mainstream pundits like Fox News’ Glenn Beck and CNN’s Jack Cafferty have publicly questioned the billions spent each year fighting the endless war against drugs and to suggest it now makes more financial and social sense to tax and regulate marijuana.
This is not a new discussion, of course. As some readers probably know, marijuana prohibition has not been with us forever. Scholars who have researched the history of drug criminalization, such as Troy Duster, trace it back to clashes between economic interests, as well as to demonization and oppression of minorities. In fact, the first U.S. law to criminalize drugs – the Harrison Narcotics Act of 1914 – focused on regulating taxation and licensing for drug purveyors and on protecting the medical profession, rather than on blanket prohibitions. Duster argues that it is no coincidence that substances used by middle-class whites, such as barbiturates, were left out of the criminalization frenzy, while marijuana (linked to Mexicans), heroin (linked to Blacks), and opiates (linked to the Chinese) became outlawed.
So, there’s nothing given, or immutable, about our prohibition of drugs. Well, is it a good idea? That is a very complex question, since we could think of quite a variety of legalizing/regulating regimes to implement. In their wonderful book Drug War Heresies, Rob MacCoun and Peter Reuter examine a series of drug policies from all over the world and show that each system has advantages and drawbacks. They also highlight the political and economic hurdles to implementing sensible drug policies. Another interesting resource is this cool and well-articulated economic analysis by Andrew Clark from DELTA, who argues that any cost/benefit based analysis of regulating the drug market has to take into account the importance we ascribe to externalities, such as crime and ill health. Jeffrey Miron from Boston University argues that decriminalization will have little impact on marijuana use, and believes that decriminalization might affect other legal provisions, such as eliminating or relaxing the reliance on drug testing to determine parole violations.
One of the things I like about the resurfacing of the marijuana regulation debate is that, probably for the first time, public discourse is attentive to the big picture. As became clear at the CCC conference, a major problem in addressing correctional policy is the disconnect between lawmaking and correctional implementation; lawmakers do not feel the harms and costs that are later born by those subjected to the correctional apparatus, and as humonetarians argue, by those picking up the tab. It’s nice that the prison overcrowding issue has made it to the forefront of the marijuana debate.
———————— *This it fascinating, complicated, messy, and merits discussion far beyond this framework.
I’ve started working on a broader piece about this. Here’s the abstract:
What do a community court, an expansion to Death Row, and an extension of incarceration periods prior to parole have in common? All three have recently fallen out of favor with California correctional policymakers, not for substantive reasons, but for lack of resources. This paper analyzes the impact of the financial crisis on correctional policies in California, identifying an emerging discourse I call “humonetarianism”. Humonetarianism is characterized by a value-free, superficial, cost-centered approach to correctional initiatives and institutions, which are assessed by their contribution to the state’s deficit rather than on their actual or even perceived merits.
The paper opens by tracing the history of humonetarian discourse and its interaction with the punitive, public-safety-centered discourse of corrections since the 1980s, and the actuarial warehousing policies of the 1990s. The history of sentencing and parole policies in the state shows how humonetarianism emerged when punitive policies, pushed to their logical conclusion, became untenable. The paper continues by providing several examples of humonetarianism: the 2008 correctional propositions (5, 6, and 9), the San Francisco Community Justice Center, the expansion to San Quentin’s Death Row, the decrease in parole supervision over foreign-born inmates, and the recent Plata/Coleman tentative decision. It then generalizes, from these examples, the main features of humonetarianism: cost-driven discourse, political bipartisanship, and a sense of emergency. While this discourse may appear, at first blush, to be less punitive than policies from previous decades, the paper argues that it is extremely harmful in the long run, due to its superficiality, cynical usage by interest groups, and shortsightedness.
I’ll be happy to get your feedback on the idea, here, or by email to aviramh at uchastings dot edu.
That is the budget cut for CDCR. Today, CDCR Secretary Matthew Cate announced his plan to cope with the significant reduction in corrections budget. As reported on this morning’s Chron, Cate,
