TODAY! Assembly Select Committee on Justice Reinvestment Hearing Live!

Humonetarianism and cost-centered criminal justice policies in action: In half an hour, the Assembly Select Committee on Justice Reinvestment will hold a hearing, which you can watch live by clicking here at 10am.

A few words of background: This committee was mentioned a week ago at the hearings about solitary confinement, and it will be examining Gov. Brown’s bill to invest $315 billion of my money and yours in private prisons to alleviate overcrowding. Anyone paying taxes in California should pay close attention to these proceedings.

Bail: Freedom, Capitalized

This video, produced by the ACLU and Beyond Bars, was posted in a story that appeared this week on The Nation, titled, Should It Cost Less to Get Out of Jail If You’re Rich?  It is an introduction to the bail bonds industry, its budgetary backing, and the way it affects people of different economic backgrounds.

Bail research is fascinating. In the late 1980s, Michele Sviridoff found out that judges gave a “discount” to defendants making bail in cash. G.P. Monks found that the police was ineffective in assuring that people showed up for trial. But research from 2011 shows the extent to which the bond industry has been privatized. Mary Phillips, doing research in New York, finds that bail bondsmen’s share of the industry has significantly grown, and that their actions magnify the alredy-existing socioeconomic gaps.  Brian Johnson and Ruth Stevens find that states place very few regulations on the bonds industry and on licensing to become a bail bondsman. According to this Justice Policy Institute report, the bail industry is not cheaper than the alternatives, and it is incredibly prone to overcharging and corruption. It is also backed by powerful profiteers. Shadd Maruna and colleagues even predict that people will be able to leave prison on parole after posting “post-conviction bail.“

Conversations about prison privatization often ignore bail bonds, which are one of the first stops on the criminal justice train. It is worthwhile to take a look at costs, incentives, and class disparities even in these early stages of the criminal process.

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Props to Amir Paz-Fuchs for The Nation link.

Researching the California Criminal Justice Realignment

I am in Seattle, WA, for the West Coast Law and Society Retreat, where we just finished a panel examining various perspectives on the criminal justice realignment. The panel featured several folks doing work on criminal justice reform from various perspectives: W. David Ball from Santa Clara University, Mona Lynch from UC Irvine, Jonathan Simon from UC Berkeley, and Katherine Beckett from University of Washington. We all talked about the research that is being done, the research that should be done, how the research community can be relevant and influential in making healthy decisions about corrections in California, and the impediments and challenges that lie ahead.

David Ball spoke about the importance of communicating with decisionmakers in the field. His fieldwork (with Bob Weisberg) involves prosecutorial decisionmaking after realignment. They interview prosecutors about the existence, or lack thereof, of consistent prosecutorial guidelines. In presenting prosecutors with a series of hypotheticals, which they ask prosecutors to rate on a seriousness scale, they expose the discretionary nature of realignment prosecution: The choice what to charge a person with could impact whether s/he will be regarded as a “non-non-non” and therefore housed in a jail. They have also uncovered the subtle interactions between prosecutors and the police, primarily areas of non-enforcement and non-prosecution.

Mona Lynch mentioned that the two types of realignment research done most frequently are policy evaluation, which is the only thing that can be funded (and has been done by several organizations, notably CJCJ and the ACLU of Northern CA), and legal research that focuses on Eighth Amendment arguments. The challenges ahead lie in the “hydra risk” of bad conditions in many jails in lieu of a few prisons. She suggested two socio-legal avenues for research: returning to, and revisiting, the classic courtroom ethnographies in a way that would uncover the framing and understanding of offenders (think David Sudnow’s Normal Crimes – first deciding what a person deserves based on a typology and then putting it together via the existing sentencing enhancements), and a study of the experience of jail incarceration (jails have been understudied; one great counterexample is Sharon Dolovich’s study of the Los Angeles County Jail.) This research may entail access issues we should overcome.

Jonathan Simon reminded us that realignment cannot be framed as an improvement on the system, but rather as a cover-up for a human rights crime that we will some day grow to regret: “torture on the installment plan.”He also encouraged us to challenge the assumption that rehabilitation and risk reduction programs need to be in place to combat the threat to public safety, problematizing the correlation CDCR draws between public safety and incarceration (with the drug war in the throes of death, are we reaffirming our commitment to locking up violent offenders for disproportionately long periods of time?).

Katherine Beckett provided a much-needed comparative context. She reminded us that other states are also punting their responsibilities to the county level. Also, many states have wobbler legislation, nonprosecutorial policies that yield county variation, and parole/probation reforms (as in Kansas), as well as drug law reform (New York State is an example). Her current project, reviewing prison admission data from 29 states, indicates that many states have seen a reduction in prison admission through these reforms, but these gains are offset by admissions for violence, public order, and property offenses, which are surprising given that arrest rates are falling. Beckett and other panelists highlighted the problem of entrenching the notion of “dangerous offenders”, whose mass incarceration is being
kosherized via the decarceration of the presumably less-dangerous drug offenders.

We had a very lively discussion with audience members:

Are there opportunities for graduate students who want to do empirical qualitative analysis of the realignment? We should know what other people are studying, and maybe throw in some questions in questionnaires (the Federal Sentencing Reporter issue on realignment is a great example.)

What are the interactions with, and effect on, immigration law? Has realignment changed charging practices with offenses that may or may not trigger deportation?

How do institutional pressures – courtroom workgroups, profiteers, unions, the market – play a role? Nobody wants their organization to shrink, and therefore prosecutors have a vested interest in keeping mass incarceration at its current level.

What role does impact litigation and critical resistance play in the process of realignment? We should keep in mind that a third of the jails already have population cap orders.

With regard to policy evaluation studies, those are difficult to do, because realignment is not the only thing that has changed. Some panelists suggested longitudinal studies (following up on cohorts of offenders) and comparative between counties. But there is also a concern about how to frame the dependent variable: What would it mean for realignment to “work”? And from whose perspective? What do we want or expect from our criminal justice policy? And, how to measure recidivism?

One suggestion made on the panel was to look at home detention and GPS as a possible alternative for mass incarceration. While the prison is unique as an institution producing what we now know as a human rights disaster, replacing it by home detention would also have adverse and alienating effects.

We also discussed the problematic aspect of thinking that mass incarceration is “normal”, and that we won’t be able to really think outside the box given the stake so many institutions and organizations have in the existence of mass incarceration.

Finally, a workshop on realignment is being planned for October 2014, and we hope to be there and be able to say more about how realignment works.

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I’d very much like to invite the panelists and audience to send over links to research on realignment, so we can have a repository of resources here at the CCC blog.

On Gov. Brown’s Desk

Gov. Brown signing a bill. Photo
courtesy the Examiner.

The legislative session has ended, and many criminal justice bills are on Governor Brown’s desk, awaiting his signature or veto. Here are some of the important decision already made, or about to be made, at the gubernatorial office.

There is a whole lot of gun control bills. This legislative session, no doubt influenced by the Sandy Hook tragedy, included many bills to prohibit certain types of ammunition, outlaw the sale of fixing kits to create assault rifles, ban open carry, and require certification and licensing. The NRA has issued a call to its members to oppose all of these bills.

There’s also AB 105, proposed by Gov. Brown himself, and signed a few days ago, which will spend $315 million of your money and mine on contracting with private jails. This is part of Brown’s campaign to circumvent the Supreme Court order to reduce population; as BeyondChron pointed out time and again,  Brown’s stubbornness on prisons and general punitive old-school approach to incarceration is difficult to reconcile with his otherwise progressive positions.

Happily, not all news are bad. Brown has signed SB 260, which will give juveniles incarcerated for lengthy periods of time a right to appear before the Board of Parole Hearings to demonstrate their suitability for release after serving at least 15 years of their sentence. This bill may affect the fate of as many as 5,000 California inmates.

Still awaiting gubernatorial approval is SB 649, which would convert all simple drug possession offenses in California into wobblers, allowing for their prosecution as misdemeanors. Ironically, approving SB 649 may work well in conjunction with AB 105, in terms of the monetary savings and inmate diversion that will result from it.

Also sent to the governor’s approval is AB 218, otherwise known as Ban the Box, which prohibits asking job applicants about their criminal records until it is established that they meet the minimum qualifications for the job.

Also notable, SB 569, if signed by the Governor, will require the police to videotape all police interrogations of juveniles accused of murder. Why only juveniles? Why only murder? Presumably, you have to start somewhere, and the risks of procuring false confessions are greater with juvenile suspects. Even this partial requirement has police officers bristling, though I can see benefits to the police in the sense that proper interrogations can no longer be grounds for lawsuits or public upheaval.

If any of the bills to be signed is close to your heart, and you’d like to tell the governor, please do so!

Mailing address:
Governor Jerry Brown
c/o State Capitol, Suite 1173
Sacramento, CA 95814

Phone: (916) 445-2841
Fax: (916) 558-3160

Email here.

Governor’s Prison Plan Announced

Gov. Brown’s website unveils the main features of his prison plan, AB 105, which:

  • Authorizes up to $315 million in immediate in-state and out-of-state capacity.
  • Lays the foundation for longer-term changes to the criminal justice system, in collaboration with the Legislature and stakeholders.
  • Strengthens existing local efforts (SB 678) to manage offenders by increasing the amount of funding that county probation departments receive if they can serve felony probationers locally and keep them from coming to prison.
  • Requires that if the court modifies the order in a way that reduces the cost of compliance, the first $75 million in savings will go to reducing recidivism.

The full text of the bill is here. Hear the Governor explain the plan here. More commentary on the plan in a later post.

This Is the Way to Go: Senate Dems Propose Expenditures on Health, Rehab

As a response to Governor Brown’s idiotic $315 mil privatization plan from yesterday, Senate president Steinberg and 16 other Democrat senators “proposed a plan that would spend $200 million more for each of the first two years on rehab and mental health programs to reduce the prison population by the 9,600 inmates ordered by federal judges.”

The L.A. Times reports:

“The governor’s proposal is a plan with no promise and no hope,” Steinberg said. “As the population of California grows, it’s only a short matter of time until new prison cells overflow and the court demands mass releases again. For every 10 prisoners finishing their sentences, nearly seven of them will commit another crime after release and end up back behind bars.”

Steinberg has support among Senate Democrats for a broader approach. Sen. Mark Leno (D-San Francisco) said that the plan put forward by the governor is inadequate and that he will not support it. It requires $315 million this year and $400 million in future years, said Leno, chairman of the Senate Budget Committee.

“That is a huge sum of money to be spent on a nonsolution,” Leno said. “I could not support a solution to the court mandate that is based only on greater capacity. And that’s all I see in this proposal, greater capacity.”

Leno said any plan should include greater effort to reduce the recidivism rate, including a revision of the sentencing structure. “If we have learned anything over the past 30 years of criminal justice policy leading to this crisis, it’s that we cannot incarcerate our way out of it,” Leno said. “It doesn’t appear that the proposal deals with the core problems that we have, which are clearly in our sentencing structure and our lack of investment in preventing recidivism.”

A huge sum of money spent on a nonsolution, indeed. I gave an interview to the Daily Journal today (link tomorrow), in which I was asked whether this new proposal from senators is a game changer. I replied there was nothing new here; all criminal justice experts who cared to offer an opinion have repeatedly been saying that building more cells and privatizing more does nothing to ameliorate the prison crisis, and in fact guarantees that we’ll have a more serious crisis for years to come. All Steinberg proposal does is suggest spending the money where it matters – in helping people not come back to prison.

Jerry, What on Earth Are You Thinking?

Photo courtesy Rich Pedroncelli for
the San Francisco Chronicle.

The new gubernatorial plan to solve the prison crisis Jerry Brown says we don’t have has just been announced: Spending $315 million on private prisons.

No, I am not making this up. The Chron reports:

Gov. Jerry Brown on Tuesday responded to a federal court order to significantly reduce California’s prison population by proposing a $315 million plan to send thousands of inmates to private prisons and vacant county jail cells, hoping to avoid what he said would be a mass release of dangerous felons.

The cost could reach $700 million over two years, with much of the money likely to come from a $1.1 billion reserve fund in the state budget.

During a news conference at the Capitol, Brown bristled at the court’s suggestion that the state could continue its early release of certain inmates to meet the federal judges’ population cap. He noted that California has already reduced the prison population by some 46,000 inmates to comply with the court’s orders and said only the most dangerous convicts remain in state prison.

The judges have ordered the state to release an additional 9,600 inmates by the end of the year.

Brown, however, said sending them to available cells in privately run prisons within California and in other states, as well as to empty jail cells, is the best way to meet the court’s mandate without endangering public safety.

“Public safety is the priority, and we’ll take care of it,” the governor said. “The money is there.”

Governor Brown, what on Earth were you thinking when you concocted this wasteful, ridiculous, idiotic plan? What do you mean, “the money is there”? California is in a state of fiscal disaster, and suddenly we have $315 million to invest in private prisons? And where was all this mysterious money when federal courts asked you why we pack people up like sardines and let them languish in their own feces without appropriate health care? Moreover, how will this lucrative investment manifest itself? Will Correctional Corporation of America and Geo build prisons on Californian soil? Or will we send more inmates than the 9,000 we currently have out of state to Arizona and Tennessee? How are you squaring this off with your traditional allies at the CCPOA? Are you going to put state guards in private prisons to make sure their interests are served, as well? After all the effort we put into realignment–and after countless experts have made reasonable suggestions to keep jail population law by not locking up people who should not be locked up in the first place–this is what it’s coming to? After expert witnesses agreed that decrowding prisons is not a danger to public safety, where does your information to the contrary come from? Can you find a decent, respectable criminal justice scholar in the entire state of California that thinks this is necessary? Are you trying to divert our attention from the fact that this is Day 51 of a hunger strike against the horrific conditions under which you hold inmates in solitary confinement? What the hell is going on?

The Inmate as Customer: “Pay-To-Stay” and the Commodification of Punishment

This morning Huffington’s Post reports about the Fremont Jail:

The Fremont Police Department is now offering its inmates a “pay to stay” option. For a one-time fee of $45 plus $155 a night, prisoners serving short sentences on lesser charges can stay in a smaller facility while avoiding county jails.

“It’s still a jail; there’s no special treatment,” Lt. Mark Devine, a Fremont police official who oversees the program, told Chris De Benedetti of the Argus. “They get the same cot, blanket and food as anybody in the county jail, except that our jail is smaller, quieter and away from the county jail population.”

This arrangement differs somewhat from the previously covered arrangement at the Riverside Jail: payment is not for basic incarceration, but for upgraded, improved services. The concerns raised by the ACLU are that the prison experience is likely to be tiered across race and class lines. But I think this is part of a larger humonetarian trend: The commodification of the prison experience and seeing the inmate as customer. Not the customer’s-always-right from the early days of the service industry, but the customer-as-mass-consumer of the conglomerate era. It’s no wonder inmates review prisons on Yelp.

Moving Away from the CCA! For Financial Reasons

The state of Kentucky is opting out of private incarceration. For the first time in 30 years, no Kentucky inmates will do time in private facilities. The reason? Savings. The Courier-Journal reports:

J. Michael Brown, the state Justice and Public Safety secretary, said in a news release Tuesday that the move will save the state about $2 million a year. And he credited a 2011 law and other steps taken by the General Assembly and the Beshear administration that reformed sentencing and increased drug treatment opportunities.

“This has created, for the first time in a generation, an opportunity to manage our inmate population with existing DOC (Department of Corrections) facilities, county jails and local halfway houses,” Brown said in a news release.

The state inmate population is dipping — from 22,102 inmates last November to 20,591 today, according to Jennifer Brislin, spokeswoman for the cabinet.

It is, apparently, possible to opt out of private incarceration, and it is sometimes more cost-effective.

Death Penalty in Limbo

On June 7th, Richard Ramirez, otherwise known as the Night Stalker, became the 85th inmate to die of natural causes while on San Quentin’s Death Row. Many Californians still remember his string of heinous crimes committed in Southern California and beyond in the 1980s. A disturbed teen turned serial killer, Ramirez brutally murdered and abused many innocent people, mutilating the bodies, and expressing no remorse for his horrific deeds. If there ever were anyone deserving of the death penalty, it would be Ramirez.
Like his 84 predecessors, Ramirez maximized the usage of his appellate rights. He was still litigating well into the late 2000s, and his numerous appeals were exhausted only a short while before a DNA match linked him to yet one more brutal murder from the 1980s.
Regardless of one’s ideological stance on capital punishment, Ramirez’s death is a sad illustration of the extent to which the death penalty in California is stuck in limbo and broken beyond repair. The litigation efforts in recent years have not focused on the grand questions of the morality of state-sanctioned executions, racial discrimination and deterrence. Instead, courts have, for years, “tinkered with the machinery of death”, and litigation has focused on increasingly technical minutiae of execution protocols, such as the availability and effect of different chemicals used in executions.
The latest installment in death penalty litigation is a case in point. Earlier this week, the 1st District Court of Appeals affirmed a Marin court decision that effectively put the death penalty in California on hold again. The reason: The California Department of Corrections and Rehabilitation (CDCR) did not satisfy the administrative requirements to properly notify the public of various aspects of its recently amended three-drug protocol. The Supreme Court’s ruling in Baze v. Rees (2008) established that three-drug executions did not violate the Eighth Amendment, but CDCR’s protocols preceded the decision and therefore could not rely on it. In the decision, Justice Anthony Kline wrote that the information CDCR provided to the public exhibited numerous inaccuracies and did not include proper discussion of alternatives to the three-drug method or of the protocol’s costs.
While the public certainly needs to be informed of how its tax dollars are spent in the correctional arena, one cannot read the decision without thinking whether our conversation about the death penalty shouldn’t be deeper and more substantive. Searching for a humane method for putting people to death is, by definition, a fairly futile effort, and incessant discussions of this nature, which have become, by necessity, the bread and butter of death penalty litigation, are missing the bigger picture. Capital punishment lawyers and judges may have no choice but to pore over these technical details, but we, as a society of voters and policy makers, owe ourselves and our fellow Californians a better conversation.
Proponents of the death penalty may bemoan the days in which the condemned were summarily executed in the town square without appeals, habeas proceedings, or quibbling over drug protocols. But those days are over, and given the current political climate in the state, they will probably not return; a recent effort by the California District Attorneys’ Association to push for simplified capital litigation with less post-conviction relief has failed. What we know about the incidence of wrongful convictions is a frightening warning sign to anyone who might want to turn time backwards and streamline the execution process. Experts estimate that up to 5 percent of all convictions may be wrongful, and the prospect of an irreversible punishment should be disturbing to anyone who cares about justice, regardless of political affiliation.
Since the lengthy and expensive appellate process is here to stay, it is time for Californians to ask themselves the same good questions that the people of New Mexico, Illinois, Connecticut, Maryland, New York and New Jersey have asked themselves since the onset of the financial crisis: Are the benefits of the death penalty, in terms of retribution and deterrence, worth the hassle and expense?
One such good question might be how the families of Ramirez’s numerous victims feel in the wake of his natural death. For some, an execution might have brought closure and relief; others perhaps would consider the thirty-year wait to no avail an excruciating ordeal and a waste of state resources. A recent study of California violent crime victims, conducted by Californians for Safety and Justice, confirms the solid research according to which crime victims are not more punitive than non-victims. The study, albeit limited by response rates, found low-income people and people of color to be disproportionately represented in the victim group. Victims surveyed in the study tended to view incarceration as futile and to prefer investment in rehabilitation and drug programs. It well may be that some victims are underserved by waiting for a cathartic event that may or may never happen, and that the interminable wait (necessitated by the concern over wrongful convictions) does some families more harm than good.
Another such good question would be whether our legitimate desire for retribution–especially justified in cases like Ramirez’s–is making us confuse fact with fantasy. Perhaps the death penalty as some would want it to be would provide proper retribution; the death penalty as administered in California today does not.
And finally, the question of effective deterrence via capital punishment, which was at the forefront of the conversation in the mid-1970s, has been relegated to the provenance of small handful of economists still studying it. The American Law Institute withdrew its support of the death penalty in 2010, finding no strong evidence for deterrence, and a 2012 report from the National Research council concluded 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.” Unfortunately, violent crime will probably never completely disappear, and people like Ramirez will again perpetuate unspeakable crimes. Whether they do so despite, or because, of capital punishment or its absence is, and will always, remain unclear.
Our hearts weep for the many victims of Ramirez’s cruelty, and that of other perpetrators of vicious crimes. Let us punish these people properly, soundly, and economically, by sentencing them to life without parole, and give up on the hollow hopes of a death penalty that is anything but.