The New Correctional Discourse of Scarcity: Executive Summary

This morning I gave a talk about my upcoming book at the Western Society of Criminology Annual Meeting. Here is the gist of my comments.

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The New York Times proclaims the end of mass incarceration; prison population in the US is declining for the first time in 37 years; Milton Friedman and Pat Robertson are advocating for marijuana reform; several states abolish the death penalty and others are closing prisons, importing and exporting inmates, and reducing their usage of solitary confinement.
What is going on? Is mass incarceration, indeed, coming to an end? Have we come to care more about the human rights of suspects, defendants, and inmates? Have we rejected the war on drugs?
This talk, based on my book in progress with UC Press, argues that these changes are the function of a new discourse of corrections, fueled by the financial crisis. As I argue in the book, the severe crisis, affecting especially local governments, generates new ways of conceptualizing criminal justice problems, new alliances between conservatives and progressives, new policies and practices of incarceration, and new ways of imagining the offender.
Many wonderful books have come out recently that tell the story of mass incarceration, offering political and cultural explanations both on the micro and macro levels. In adding my own narrative of what happened before, and especially AFTER the 2007 crisis, I do not wish to supplant political and cultural analyses with historical materialism. Rather, I argue that the expenditures on criminal justice tell a story of policymaking sincerity and of the limits of criminal justice project as a sound fiscal investment. That is, that a historical-materialist approach complements our understandings of politics and culture. To understand the extent of this, we need to go back in time to the first federally-initiated grand project of crime control.
Prohibition, initially the successful product of an effective narrow coalition, was repealed largely because of its economic consequences: a combination of poorly-funded law enforcement and the senselessness of giving up on considerable tax revenue in a lean economic period.  This poor experience impacted the federal laissez-faire approach to criminal justice in the postwar years. This trend began to be reversed by the Warren Court’s clamoring for federalization of rights. Ironically, the Nixon election, often described as capitalizing on high crime rates and protesting the Warren Court’s project of incorporation, put in place an administration that was equally eager to federalize criminal justice, but with a very different agenda in mind. The 1968 Omnibus Act’s primary effect was fueling federal money into law enforcement, with the aim to make police officers more effective in the streets. At that point, money had not yet been fueled into prison construction upfront; arguably, money was never fueled, wholesale, into prison construction at the federal level. Rather, this front-end federal investment led to an increased number of arrests, requiring room to house inmates. The trend of punitivizing local law by fueling federal money persists to this day.
The big project of managing the product of these policing tactics – prison building– was left to be financed at the local level, and mostly through bonds. The bond mechanism does to prison construction what the Nixon funding structure did to prison existence: It pushes it out of sight. Rather than an open tax requiring voter information and approval, the specific types of bonds used for prison construction act as a hidden tax, or rather, a tax on future generations. The hidden aspect of prison finance is particularly true with regard to private prison construction and operation.
And then, the financial crisis happened. While its epicenter was the banking industry, it has had profound impact on the fiscal health of local governments. Since the late seventies, most local governments have come to rely on a tax base that is increasingly income- and sales-based, rather than property-based. The former, compared to the latter, is much more sensitive to fluctuations in the market. Shaking the tax base, and dealing in various localities with the inability to pay for pensions, meant that local budgets became depleted.
To bring things back into the correctional realm, it’s important to remember that corrections constitute at least 7% of all expenditures in state budgets, exceeding, in some states, the expenditures on higher education. States and local governments—that is, the locations where the vast majority of law enforcement, criminal justice and corrections occur—have therefore had to face a reality so far hidden from the eye by the bond mechanism and the illusion of a war on crime: The need to do with less.
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This need to save on corrections has yielded a discourse that I refer to as Humonetarianism: A scaling-back of the punitive project on account of its fiscal consequences. In the book, I identify four main features of Humonetarianism: New Discourse, New Allies, New Practices, and New Perceptions of Offenders. I want to shortly discuss each in turn.
The new discourse of correctional scarcity tends to be shallow and to focus on short term. Cost had always been part of the criminal conversation, but it had never been a centerpiece of policymaking and advocacy. A good example of this discourse is the new rhetoric of death penalty, whose successes and gains are significant. Since the financial crisis, five states – New York, New Jersey, New Mexico, Illinois, and Connecticut – have abolished the death penalty. Many more states have placed moratoria upon its use and executions slowed down considerably. In California, Prop 34, which failed to pass in the 2012, nevertheless closed the gap between supporters and opponents of the death penalty to a mere 6%. An analysis of these campaigns shows the extent to which abolition advocates moved away from arguments on human rights and deterrence, put racial discrimination arguments on the back burner, and focused their campaigns on costs. Similarly, conversations about legalization of drugs have emphasized the waste involved in pursuing low level nonviolent offenders, and the successful propositions in Washington and Colorado have relied on the persuasive power of drugs as a source of revenue, much like their predecessors, the prohibition repeal advocates.
The conversation about drug legalization and de-prioritizing drug law enforcement reveals the second aspect of this discourse: Its ability to generate new allies. The 2012 presidential election, and, to a lesser extent, the 2008 presidential election, were notable for the complete lack of any criminal justice discourse, and especially the absence of drugs. The Obama administration, despite its controversial commitment to bipartisanism, did not fear alienating centrists and moderates by explicitly making marijuana enforcement a low priority. Leading conservative voices are calling for an end to the war on drugs, citing fiscal responsibility and the possibility of revenue as a powerful incentive. Among such names we count Jeb Bush, Chris Christie, free market economist Milton Friedman, and religious figures such as Pat Robertson.
The impact of humonetarianism has gone beyond rhetoric and legislation, and has generated the third feature of this discourse: Innovative practices in the field. California’s criminal justice realignment, consisting of a refunneling of low-level offenders out of state prison and into county jails—was initiated as a budgetary savings mechanism, correcting decades of economic disincentives and ending what Frank Zimring referred to as the “correctional free lunch.” Many states are closing or repurposing their prisons, which yields a less savory aspect of humonetarianism: Deals with other states to house their surplus prison population and thus make a profit on closed institution. But many states, like California and Hawaii, are now questioning the economic value of shipping their inmates out of state, and coming up with structures to keep them at home. Even institutions that cannot be repurposed, such as supermax prisons, seem to be saving considerable amounts of money through reduction projects. Moreover, the financial crisis creates an increased reliance on community corrections. Expenditures on programs have been cut; the shallowness of the conversation in some localities does not allow for a long-term assessments of the savings promised by recidivism reduction. But there is an increasing reliance on GPS monitoring.
Fourth and finally, humonetarianism has made salient some features and traits of the offender population. For decades, a policy of selective incapacitation has made us examine inmates through the lens of their level of risk; the financial crisis has come to make us see them in terms of cost. The recent modest success in scaling back Three Strikes in California was based on the increased salience of long-term Three Strikers as old and infirm inmates, whose lengthy incarceration drives up the costs of health care, already contested in California. And in many states, the introduction of geriatric parole and medical parole are a somber indication of how little Americans expect of their government: Not broad national healthcare for themselves, but less state-financed free healthcare for their inmates.
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There are limits to the power of humonetarianism to transform the criminal justice apparatus. The for-profit aspect of our incarceration project arguably leads to particularly ferocious activities by private prison providers, who in this market of dearth try to offer an alternative to decreasing incarceration. This is not only an exploitation of the punitive state for profit, but sometimes generating more punitiveness by lobbying for punitive laws, as well as seeking new and emerging populations of potential inmates, such as undocumented immigrants.
It is also business as usual in many plantation-like institutions that have always relied on a “tough-‘n’-cheap” financial logic. The rhetoric of self sufficiency has a strong hold on many prisons and jails in the rural south, and it has not abated, but rather been strengthened, in the current crisis.
The dearth of rehabilitation programs, and their declining number in these lean years, is another reminder of a limitation of this discourse: It is mostly focused on emergency, short-term savings. Because humonetarianism is not accompanied, in any serious way, by a true change in perception of human rights, the idea of thinking about reentry and recidivism reduction as a long-term cost-saving mechanism has not been as successful as it could, perhaps, be. Recidivism studies are, by nature, difficult to do, and moreover, they take time, which cannot be translated to proven political gains in a short election cycle. The theoretical possibility to frame these as a deeper form of savings has not, so far, yielded much success in the correctional arena.
There are also big questions about the extent to which humonetarian arguments have any traction with regard to particularly violent or reviled offenders. Sex offender policies come to mind immediately. The last California elections showed that old-school punitivism, masquerading as victim rights discourse, is still a powerful incentive to voters in creating more post-incarceration sanctions on sex offenders.  The strong rhetorical pull of decades can, apparently, withstand any argument about financial waste, as it has withstood the evidence of low recidivism rates.
Given these challenges, can humonetarianism be successful and enduring, and for how long? Its main advantage is the broad appeal of the financial argument. A possible counterargument is that, by focusing on costs, we arguably pay an intangible price of cheapening public discourse and taking human rights arguments off the table. I am less concerned about this issue. Americans have always expressed their values and measured their priorities by their willingness to pay taxes. A vote of confidence in lowering the price tag on corrections is also an expression of preferences for road construction, education, health care, and other services, and a statement that the mass incarceration project has lost its appeal as a national priority.
What remains to be seen is whether cost-centered reforms will stand when the economy improves. And in that department, while it would be unwise to offer accurate predictions, my crystal ball offers this: Some things might come back, some things might not come back, and some things might come back in different forms. For example, I expect that, once a critical mass of states abolishes the death penalty on fiscal grounds, it will not come back. I expect that a recriminalization of marijuana, once it is perceived as any other product in the market, is not feasible. Will we find other wars and panics? Probably, and those will have to be addressed through other-than-cost arguments if they occur at a time of economic plenty.
While the lasting power of cost-driven changes in policy remains to be seen, a sincere and thoughtful appeal to the public’s sense of fiscal responsibility, accompanied by an effort to reframe the cost conversation as a long-term concern, are one of the major steps we must take to end mass incarceration, so that we do not, to quote Rahm Emmanuel, let a serious crisis go to waste.

Is Realignment Obsolete? Harmful?

In recent days, realignment isn’t getting much love. A Wall Street Journal story this week blames realignment for a recent rise in property crime. Veteran readers of this blog, read the piece (or the excerpt below) and let’s find what’s fishy here.

California saw a year-over-year increase of 4.5% in property crime in the fourth quarter of 2011, immediately after the overhaul, marking the first rise since 2004, according to a report from the state attorney general this fall. In contrast, property crime, which includes burglary, auto theft and larceny, fell 2.4% in the nine months before the sentencing changes stemming from a U.S. Supreme Court decision. 

 While the attorney general doesn’t release 2012 data until late this year, localities ranging in size from Sacramento to Santa Rosa in Sonoma County saw property crimes rise last year. The Federal Bureau of Investigation, which hasn’t reported 2012 crime data, says property crimes fell 0.5% nationally in 2011 from a year earlier. 

. . . 

Known as realignment, the changes are “causing more of these people to be out in society rather than locked up,” said Santa Rosa Police Sgt. Michael Lazzarini, and that could be a “pretty good reason” for the rise in property crimes. “Not only is it continued workload for the investigators, but it’s also a quality-of-life issue for the citizens,” he said. 

Santa Rosa saw property crime rise 5% last year through November to 3,568 crimes, while violent crimes declined 7% to 585 crimes. Sgt. Lazzarini, the head of the property-crimes-investigation team, said detectives have been stretched thin since the new state law, which he neither supported nor opposed. He said he has struggled to decide which crimes to investigate. 

There aren’t enough data yet to back up Sgt. Lazzarini’s hunch on a statewide basis. Gil Duran, a spokesman for Mr. Brown, said it is impossible to make claims about the reason for the crime increase with limited data. “Any respectable criminologist will tell you that [they] don’t determine overall trends in a year or two,” he said in an email. “Attempts to tie any increases to realignment are purely political.”

Here’s what’s odd here, from a (respectable?) criminologist:

We’re given data on crime in California and on crime in Santa Rosa. What we are not given is a county-by-country breakdown. I’m not just saying this just to take pleasure in countering Sgt. Lazzarini’s hunch (since when does the Wall Street Journal write stories based on police officers’ hunches, anyway?) Every single report on realignment implementation shows that different counties have been dealing with sentencing reform in different ways. The crime rise might not be a result of people being “out of jail”. It might be the result of releasing people after their sentences without any appropriate probation mechanisms to help them find jobs. Or it might be that the recession is hitting some counties worse than others. I want Sgt. Lazzarini to show me that property crime in San Francisco and Alameda is going up (because, supposedly, these counties “let people out”) and down in Los Angeles, Riverside, and Orange (where there is an orgy of county jail building). Now that’ll be special, and even then, correlation is not causation.

Police hunches are not unimportant. Police hunches in individualized, specific situations, can and do save lives. But hunches have no place when generalizing from data, and people who can’t read data carefully should not drive policymaking.

So, apparently Governor Brown also doesn’t buy Sgt. Lazzarini’s hunch. But he has his own beef with realignment. Here’s what Governor Brown said to the federal court this week, as reported by the L.A. Times:

“At some point, the job’s done,” Brown said at a Capitol news conference before catching a plane for Los Angeles, where he repeated the message. “We spent billions of dollars” complying with the court orders, the governor said. “It is now time to return control of our prison system to California.” 

 . . . 

The population now hovers around 119,000 — about 50% more than state facilities were designed to hold. Some prisons are at 180% of their intended capacity. 

The federal courts set a June 2013 deadline to reduce that total to 137.5%. The state says it now expects to exceed the cap by 9,000 inmates. On Tuesday, Brown argued those numbers were meaningless in light of improved inmate healthcare. He further called the design capacity of the state’s prisons “an arbitrary number.” 

But former state prisons chief Jeanne Woodward disputed the governor’s assertion and said she worried that without federal intervention, the governor and Legislature would find it easier to cut funding for improvements such as new healthcare facilities. 

“Without court oversight, resources tend to get taken away,” said Woodward, a senior fellow at UC Berkeley School of Law.

This is the most recent attempt by the state to avoid complying with the Plata mandate. Of course the design capacity is an “arbitrary number”; all numbers are arbitrary. What makes this number magical is that it didn’t pop out from the sky; it was decided by the court after hearing expert testimony about proper medical care and quality of life.

And here’s another reason why this is interesting. As you may recall, the government’s solution to depopulation as a response to the Plata order was to combine it with a savings measure. Plans to move inmates from state prisons to jail were in place back in the Schwarzenegger days, before Plata. Now, suddenly we’re being told that further depopulation would not save money; it would actually waste money.

I don’t think that realignment is the best thing since sliced bread, and I think in some cases jail conditions could be worse than prison conditions. But I do think that, done thoughtfully and thoroughly (like what these folks did), it is a step in the right direction. The state’s resistance to the plan as a whole seems misguided. What the state should do instead is guide the counties, with proper fiscal incentives, to do realignment as it should be done.

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Christoffer Lee, David Takacs and Aatish Salvi sent me links. The grumpy commentary is mine and mine alone.

Inside the Belly of the Beast: Correctional Corporation of America and the Recession

Much of what we’ve written about this year has to do with the scaling back of the punitive project because it has become financially unsustainable. We have come to call that process humonetarianism, and support it, with some reservations, as a practical platform for reform. But not all post-recession policymaking has been about reversing the punitive pendulum. Some of it is about increasing profits.

The main, but not by any means the only, beneficiary of these lean times, is Correctional Corporation of America, the largest non-governmental prison operator in the nation. Its shares are traded publicly, at $9 per share, and, while it is organized as a traditional for-profit corporation (“C-corporation”) it is examining the possibility of reorganizing as a Real Estate Investment Trust, which will mean special tax considerations and high yields for investors.

CCA institutions – of which it operates 67 and owns 49 – are located in 20 states and in DC (6 of their institutions are, at this point, vacant). After an initial period of time, population in its private institutions averages 89%. A minimum occupancy is often, albeit not always, mentioned in its contracts with the states to whom it provides services. The business model is structured around the concept of a “per-diem”, that is, the state pays a price per-inmate-per-bed-per-day. This is the average per-diem for all facilities (you’ll note differences in price, which stem from the fact that CCA-owned and managed facilities imply facility costs that CCA needs to pay even if it stays vacant):
06/12 – 09/12
06/11 – 09/11
01/12 – 09/12
01/11 – 09/11
FY 2011
FY 2010
Combined Per Diem Averages, All Facilities
Revenue
$59.19
$58.62
$59.16
$58.76
$58.48
$58.36
Expenses
$41.34
$40.51
$41.83
$40.20
$40.15
$40.16
Operating Margin
$17.85 (30.2%)
$18.11 (30.9%)
$17.33
(29.3%)
$18.56
(31.6%)
$18.33 (31.3%)
$18.20 (31.2%)
Owned and Managed Facilities
Revenue
$67.25
$66.51
$67.22
$66.54
$66.68
$66.30
Expenses
$44.06
$42.83
$33.91
$42.50
$42.47
$42.48
Operating Margin
$23.19 (34.5%)
$23.68 (35.6%)
$22.77 (33.9%)
$24.04 (36.1%)
$24.21
(36.3%)
$23.82
(35.9%)
Managed Only Facilities
Revenue
$40.30
$40.70
$40.22
$40.93
$40.39
$39.60
Expenses
$34.98
$35.22
$35.66
$34.93
$35.05
$34.69
Operating Margin
$5.32 (13.2%)
$5.48 (13.5%)
$4.56 (11.3%)
$6.00 (14.7%)
$5.34 (13.2%)
$4.91
(12.4%)
Who are CCA’s main customers? Well, the federal government, for one. Revenues from federal clients comprise 43% of CCA’s total revenue for the years 2010 and 2011. But of the states that contract with CCA, California is a major contributor, providing CCA with 13% of its management revenue. 

How can that be, you might ask? After all, CCA does not have institutions in California, right? After all, CCPOA flexed its union muscles to drive CCA out of California. Well, that is true. California houses its inmates in institutions outside the state: La Palma and Red Rock in Arizona, Tallahatchie County in Mississippi, and North Fork in Oklahoma. Similarly, Hawai’ian inmates are housed in two CCA institutions: Red Rock and Saguaro, both in Arizona. Here’s a promotional video in which CCA promotes Saguaro as an institution “uniquely fitted to Hawai’i inmates’ needs”. You will, of course, immediately note the savings pitch:

The story appears much less rosier in this newspaper article about how women inmates from Hawai’i fared at a CCA institution in Kentucky.

CCA is doing very well. As of the close of the market on Nov. 9, 2012, its stock was trading at $33.67 per share. With 100.05 million shares outstanding, the market cap sits at 3.37 billion dollars. It is considered slightly less risky than market, but riskier than industry average. CCA’s CEO and Predisent, earned $3,696,789 in basic compensation. The salaries of other high-ranked corporate officers are also impressive, and have risen considerably between 2010 and 2011. Its income, as per the following table, has increased dramatically since 2001. 
FY ending Dec. 31
Net Income
No. facilities Owned and Managed
No. Managed Only
No. Leased to Third Party Operators
2011
$162,510
46
20
2
2010
$157,193
45
21
2
2009
$154,954
44
21
2
2008
$ 150,941
43
20
3
2007
$133,373
41
24
3
2006
$105,239
40
24
3
2005
$50,122
39
24
3
2004
$61,081
39
25
3
2003
$126,521
38
21
3
2002
($28,875)
37
23
3
2001
$5,670
36
28
3


Despite a slight decline in occupancy (from 95% occupancy in 2005 to 89% occupancy in 2012), the overall number of beds CCA has and leases to states has increased, which explains the increase in income. 
CCA procures political good will through extensive donations and lobbying. Between 2003 and 2012, it contributed $2,161, 004 to political campaigns and ballot measures. Like CCPOA, CCA donates to both Republican and Democrat candidates (albeit twice as much to the former than to the latter.) Its main arena of contribution is California. where among other propositions it supported 2008 Prop 6 (the policing and anti-gang measure that eventually failed to pass.) CCA also contributed to 239 different lobbyists between 2003 and 2011, for a grand total of $1,858, 094. The most lobbyists were active in California – 16 of them. 
Recently, in light of the need for California to comply with the Plata decision, CCA and the state of California modified their contractual agreement, with the state planning to return its inmates from out-of-state institutions. CCA’s concern about this was explicitly discussed in their 10-Q for the third quarter of 2012, yielding the following gems:
It is unclear at this time how realignment or the five-year plan may impact the long-term utilization by the CDCR of our out of state beds. The return of the California inmates to the state of California would have a significant adverse impact on our financial position, results of operations, and cash flows. We housed approximately 8,700 inmates from the state of California as of September 30, 2012, compared with approximately 9,500 California inmates as of September 30, 2011. Approximately 12% and 13% of our management revenue for the nine months ended September 30, 2012 and 2011, respectively, was generated from the CDCR. (p.35)
And also,
“[W]e expect insufficient bed development by our partners to result in a return to the supply and demand imbalance that has benefited the private corrections industry.” (10-Q, p.30)
I expect these data provides some initial information on the main beneficiaries from the recession, and explains some of the incarceration trends we have seen since the financial crisis. More to come.

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Many thanks to Amanda Leaf for her valuable and meticulous research assistance.

Elections 2012: Government is Local

Yesterday’s election results elicited happiness from many quarters. President Obama begins his second term confronted with serious economic issues, but aided by a senate that includes more women than ever, including Elizabeth Warren and Tammy Baldwin, a testament to the growing power of women and minorities in shaping our collective future. Same-sex marriage has been approved by a popular vote for the first time, and an amendment to the contrary was defeated. More pertinent to the topic of this blog, recreational marijuana has been legalized in Washington and Colorado (though the meaning of this, in light of the continuing federal policy to outlaw the substance, remains to be fleshed out.)

And in California, mixed results on criminal justice matters. Prop 36 passed by a landslide and elicited gratitude from non-violent Third Strikers who are to be resentenced now. As we said before the election, this revision of Three Strikes is fairly modest; it does not change the possibility of simultaneous strikes or the punishment for Second Strikers. The original ambition to repeal this extreme punitive measure was significantly scaled back, though what we have is a good start and offers hope to thousands of people whose hopelessly disproportionate sentences will be shortened.

Much to my disappointment, Prop 34 fell 500,000 voters short from passing. The landmark achievement of a significant decrease in Californians’ traditional support for the death penalty notwithstanding, the death penalty remains, despite the serious arguments for its dysfunction.

And Prop 35, a traditional hodge-podge of punitive measures disguised as a victims’ rights measure, passed as well. As I expected, part of the proposition, which involved unenforceable and overbroad registration requirements for sex offenders, is already raising constitutional questions.

All of this has made me think about broader patterns in California compared to other states. Think of the passage of Prop 8 in 2008 and compare it to the passage of same-sex marriage amendments in various other states in 2012. Think of our failure to pass Prop 19 in 2010 and compare it to the legalization of marijuana in Washington and Colorado in 2012. And think of our failure to pass Prop 34 and compare it to the abolition of the death penalty in numerous states over the course of the last few years. What is wrong in California? Why do the wheels of progress turn so slowly here?

Vanessa Barker’s The Politics of Imprisonment provides a good guideline. Barker argues that crime, and criminal justice, are ultimately experienced on the local level, and that the local political climate of a state has much to do with its administration of criminal justice and imprisonment. In the book, she compares California, Washington, and New York, demonstrating how punishment has taken different forms in the three states that correspond to their traditions and practices of government. Barker sees California as a neopopulist, deeply polarized state, yielding simplistic, black-and-white divisions on punishment because of the voter initiative system. The post Prop-13 political realities of California make it incredibly difficult to move through budgetary changes. Voter initiatives, which are the only way to get through the legislative deadlock, have to present complicated issues as yay/nay questions, impeding serious, impassioned discussions of fact, rather than values, stereotypes and beliefs. And in a climate such as this, even rational facts and figures about costs, which by all right should be nonpartisan matters, become secondary to fear, hate and alienation. It is one of the deepest contradictions of this beautiful state: Hailed as a blue bastion of progress, but cursed with an overburdened, cruel correctional system akin to that of Southern states.

Maybe, like with same-sex marriage and marijuana legalization, we have to wait until more states abolish the death penalty, and the next state to do so by voter initiative may not be California. But with a Democrat supermajority in the legislature, we may be able to get over the traditional deadlock and get some things done. My hope that the cost argument would transverse the political divide is not entirely lost, but it is deeply shaken. I still think that the economic argument is incredibly powerful, and attribute the recent successes in marijuana legalization to scarce resources and cost-benefit analysis, among other things. But one cannot ignore the important variable of local government style and tradition in assessing the ability to change the correctional landscape in important ways.

On a more personal note: Many blog readers that have met me in the course of this campaign know how much of my time and persuasive energy I put into the Yes on 34 campaign. I still think that abolition is not impossible and that I will live to see the day in which the United States will join the civilized world in ridding itself of this barbaric punishment method. I still think that, in my lifetime, there will be a time in which we start questioning not only the death penalty, but also life without parole, solitary confinement, racialized segregation practices, and our approach toward juvenile justice. I plan to continue being here and fighting for this important reforms. Because I desperately want the dawn to come.

“But when the dawn will come, of our emancipation, from the fear of bondage and the bondage of fear, why, that is a secret.”
           –Alan Paton, Cry, the Beloved Country

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Many thanks to Chad Goerzen, Francisco Hulse, Jamie Rowen, Aatish Salvi, and Bill Ward, for the conversations that inspired this post.

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. 

Bringing Out-Of-State Inmates Home

A story published this summer on the California Watch examined the possibility of bringing back 9,500 California inmates currently serving their term in private institutions run by Correctional Corporation of America in Arizona, Mississippi and Oklahoma.

The grand strategic plan includes a provision for ending out-of-state incarceration, and it’ll begin by bringing back about 600 inmates. This is compounded by the fact that the state’s contract with CCA is based on occupancy rates.

In case you’re wondering who benefits from levels of mass incarceration, the CA Watch story says:

The revised contract will reduce California’s fee to the private prison group by $67 million for the current fiscal year, according to corrections spokeswoman Dana Simas. The state will save another $14 million in 2012 by cutting staff positions for the program, which is administered in Sacramento. 

California is paying the Corrections Corporation $61 to $72 per prison bed per day, making the original contract worth more than $280 million for 2012-13, according to the Legislative Analyst’s Office and corrections department figures.

The fiscal challenges involved in bringing back inmates involve the need to provide adequate housing and health care and the potential need for more construction. But if the total number of inmates to be returned to the state is less than 10,000, that would still render the prisons less crowded than they were in the pre-Plata era.

“Smart on Crime”: Retreating from Punitive Discourse Citing Financial Prudence

 In the decades prior to the financial crisis, as Jonathan Simon writes in Governing Through Crime, no politician, regardless of party affiliation, could afford to sound “soft on crime.” Propositions running counter to the received wisdom that more punitive is better had to be marketed assmarter, more efficient, or safer law enforcement – and, of course, these drowned in a sea of punitive propositions. But one of the key features of humonetarian discourse – the correctional discourse in the wake of the financial crisis – has been a partial liberation for politicians from the tough/soft on crime dichotomy. The usual tricks for dressing nonpunitive propositions as, well, not nonpunitive, still apply, but now there’s justification to do so: Punitiveness is not financially sustainable. 

Our friends at Sentencing Law and Policy posted a link to an “astute recent Washington Post piece” reviewing the GOP’s platform on crime after the RNC convention. The piece compares GOP criminal justice policies and ideals to those of yesteryear. The bottom line: Republicans are softer on crime. Here are a few snippets:
Policy experts agree that the omission [of the War on Drugs from the GOP platform] is significant. “This is less a ‘tough on crime’ document than you would have expected. And leaving out the War on Drugs [is] quite astounding,” says Mark Kleiman, a crime policy expert and professor at UCLA. “It’s a bit more of a libertarian attitude,” says Marc Levin, who runs a conservative criminal justice reform project called “Right on Crime” that’s attracted the support of Newt Gingrich and Grover Norquist.

What’s more, the 2012 platform includes new provisions that emphasize the importance of rehabilitation and re-entry programs to help ex-prisoners integrate back into society—using language that Kleiman describes as “a lot less ‘lock ‘em up and throw away the key.’” “While getting criminals off the street is essential, more attention must be paid to the process of restoring those individuals to the community,” the platform says. “Prisons should do more than punish; they should attempt to rehabilitate and institute proven prisoner reentry systems to reduce recidivism and future victimization.” The document also criticizes the “overcriminalization of behavior,” though it doesn’t elaborate on the point much further.

Both Kleiman and Levin believe it’s partly the outgrowth of a prison-reform push on the part of GOP governors whose state budgets have been saddled with high incarceration expenses. In recent months, Pennsylvania Gov. Tom Corbett, Ohio Gov. John Kasich, and Gov. Chris Christie have embraced crime reform legislation to support the kind of rehabilitation programs that the GOP platform now advocates, with some also reducing jail time for non-violent offenders. Conservative reformers like Levin are heartened by the changes. “We’ve gone a long way in four years,” he says, crediting the growing interest in more cost-effective ways to tackle crime.

This is not a coincidence. A coalition of conservative politicians, including recent signatory Jeb Bush, identifies as “right on crime“. The emphasis is on being fiscally prudent, which this post, again analyzing the RNC and the resulting platform, calls “reapplying basic conservative principles” to criminal justice. Yes, there are some punitive ideals advocated by the GOP – most notably with reference to gang conspiracies – but being comfortable 
Who else feels comfortable being less belligerent on drugs? Well, Pat Robertson, for one. But if you want to get more serious, that the father of classic market economics (and inspiration of the Reagan Administration)Milton Friedman would find marijuana prosecutions a waste of resources is perhaps not surprising, but the timing of this review, and the focus on revenue, means that these times call for new approaches among conservative politicians.
I’ve focused on conservative politicians so far, but the same analysis applies to progressive ones. In 2007, when Simon wrote Governing Through Crime, progressive politicians could not afford to be “soft on crime.” That hasn’t changed. What has changed is that progressive politicians, like conservative ones, apply to financial prudence as reasoning. One interesting example is the marketing of Prop 19 (“regulate, control and tax marijuana”), which failed at the ballot, as a revenue-enhancing proposition. I spoke to folks at Tom Ammiano’s office; going into the election, support for the proposition significantly rose when they marketed the proposal as revenue enhancing. There is some indication that the proposition’s failure was due to its vague tenets (leaving the mechanisms of sales up to the individual counties) rather than due to the basic idea.
To sum up: I don’t thin politicians have become ideologically soft on crime. But the crisis is giving them a license to be cheap on crime, in a way that appears more genuine and does not damage their credibility.
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Cross-posted to PrawfsBlawg.

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

This month, my posts here will be cross-posted at PrawfsBlawg. 
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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?

Musical Chairs: Two Visions of Realignment

Credit Michael Czerwonka for WSJ.

A story from early July in the Wall Street Journal looks at the shifts and shuffles in county jails following the realignment. It’s a helpful ground-level story on who differently counties have dealt with this. Here’s a pretty lengthy excerpt:

California’s 58 counties have varied widely in how they manage the inmate shift, known as realignment. Residents in some areas, such as San Francisco, generally have embraced seeking alternatives to incarceration. But as Kern and other counties only begin to experiment with new methods, local residents have protested that people are being let out of jail too early. 

 “I call it ‘justice by geography,’ depending on where you get arrested,” said Barry Krisberg, a criminal-justice expert at the University of California, Berkeley. 

 The total population in the state’s 33 prisons has fallen by 16% to 120,946 from 144,138 in late September 2011—days before realignment began, according to the state Department of Corrections and Rehabilitation. 

Under realignment, people who would have gone to state prison for low-level crimes in the past will now be kept under county supervision. Low-level crimes range from drug sales to deadly hit-and-run accidents, under the state’s classifications. The counties get state money to cover the added costs, and sheriffs are encouraged to avoid overcrowding in their own jails by finding alternatives to locking people up. 

 The change is being closely watched by public-safety experts and other states, which are dealing with their own overcrowded prisons. California’s realignment “certainly has to be one of the most dramatic shifts in responsibility in American history,” said Adam Gelb, director of the Pew Center on the States’ Public Safety Performance Project. 

Mr. Gelb and other experts say there is increasing evidence that programs like the ones Mr. Youngblood is trying—such as electronic monitoring along with special types of counseling—can keep people from re-offending more effectively than keeping them behind bars. Still, the policies have been met with skepticism in many California counties. 

 In Merced County, southeast of San Francisco, residents slammed officials in May after a woman convicted of driving under the influence in an accident that killed a local firefighter was sent home on electronic monitoring after serving less than a day of her sentence, according to a spokesman for the county sheriff. In San Joaquin County, residents protested in April when a man who had been released early from jail then tried to kill his girlfriend. 

 Officials in Calaveras County disagreed so strongly over whether to allot a big portion of state money for rehabilitation programs for offenders that the county was left unable to spend about $475,000 until they resolved the fight in April. 

 The stakes are particularly high in Kern County, with a population of about 840,000. The county has the second-highest per capita property-crime rate and the sixth-highest violent-crime among the state’s counties, according to 2009 state data. 

 So far, under realignment, the number of people in Mr. Youngblood’s jails has risen to 2,410 on average from 2,121 last October. The sheriff is seeking funding for a 790-bed jail. 

 At the same time, 981 inmates are supervised with electronic monitoring and other out-of-custody programs—almost double the 499 in October. “This is our virtual jail,” said Sgt. Greg Gonzales, Mr. Youngblood’s realignment coordinator. 

 Rudy Herrera is among those inmates. The 24-year-old, who had already been to state prison and county jail several times, was convicted in February of possessing stolen property. Under the old system, he would have been sent to a state lockup for as long as several years. Under realignment, he served less than four months in a Bakersfield jail, including 90 days in a drug-abuse treatment program. Now Mr. Herrera stays at home with a monitor strapped to his ankle, typically leaving only for work and his drug-treatment sessions. “It keeps me focused,” he said. 

While every county is its own universe, I think we can discern two main approaches. The old-school approach, which dangerously resembles that of state prisons of yesteryear, is to just build and expand, to counter the short-term expansion in inmate numbers. The new approach is to find alternatives to incarceration and to invest in rehabilitation and reintegration with the hopes of reducing recidivism in the long run. Which approach do you think is wiser?
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props to David Greenberg for the story.

MORE BREAKING NEWS: CDCR Announces $1.5 Billion Cuts By Doing the Right Things

This is shaping up to be quite a dramatic day here at CCC! CDCR has a brand new report out in which it announces plans to cut $1.5 billion out of its budget, doing things that seem eminently sensible. Here are some of the main propositions:

CDCR’s projected population for state institution is quite a dramatic decline between 2012 and 2017. Their graphs predict a gradual decrease in inmate population from the current level of approximately 139,000 to 124,000. This decline, however, will be accompanied by an increase in the total numbers (and percentage) of elderly and infirm inmates.

Some of the changes will include changing security classification, including graduated housing and privileges, as well as a step-down program and support for inmates seeking to disengage from gangs.

CDCR also plans to increase the reach of its rehabilitation programs to 70% of the inmates, as well as various re-entry hubs complete with employment training, which will be primarily available during the last six months of prison time.

By 2015-2016, all out-of-state inmates will be returned to California, thus eliminating completely our reliance on contract beds with private corporations.

Serious changes are made to the mental health bed plan and to medical and dental care.

Read the report in its entirety; the charts and floor plans are instructive and helpful.

This is truly a day of hope for change in the correctional system, and one I see as the silver lining of our fiscal crisis. The need to be fiscally prudent is finally pushing us to do the right thing by our fellow Californians.