Nov. 2020 Ballot Endorsement: No on 20

Many Californians don’t know that our state Constitution requires that any voter initiative have a single subject: “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” You wouldn’t know this from looking at our convoluted, confusing, oft-misleading propositions because, as my colleague Mike Gilbert explains here, the rule is very difficult to enforce.

Prop. 20 is an example of a voter initiative that quite possibly violates the single subject rule. It bundles together four different issues under the general “tough on crime” umbrella. While I find at least two of them deeply objectionable on the merits and have serious problems with the remaining two, what really irks me is the marketing: law-and-order supporting folks are being lobbied to vote for things which are, frankly, untethered from reality, simply because they are ideologically bundled with other stuff that belongs on that side of the political map. My message to everyone, from ardent law-and-order people to rabid abolitionists: Vote no on this stupid package.

The first item in the package is the introduction of two new theft crimes. Background: In 2014, California voters approved prop. 47, which changed the designation of several theft-related offenses from felonies to misdemeanors. This is how we’ve been able to achieve the Plata-mandated prison reduction with no increases in crime rates. Prop. 20 proponents would have you think this is a bad thing, and to remedy our apparent shortage of theft crimes, you’d now have two new wobblers: “serial theft” and “organized retail theft.” “Serial theft” would be shoplifting or petty theft for someone with two prior theft convictions (because apparently we’re hurting for habitual offender enhancements, too.) “Organized retail theft” would be shoplifting or petty theft in concert with other people two or more times within six months. Both of those crimes will be punishable either as felonies or as misdemeanors. Theft, and various theft-like offenses, are still crimes in California, as they’ve always been, and the $250 limit placed by Prop. 20 is way lower than inflation would allow for (just to give you an idea, in 2014 we raised the minimum amount for grand theft to $950.)

The second issue is another effort to fix something that isn’t broken–Prop. 57, which California voters approved in 2016. Under Prop. 57, people convicted of nonviolent offenses with “enhancements”—special provisions that add years to their basic sentences, for example, because of prior convictions—come up before the parole board at the end of their basic sentence, and the parole board may recommend their release after considering their criminal history and behavior in prison. Proposition 20 would change the designation of some offenses from “nonviolent” to “violent”, to make some people ineligible to come up before the parole board, and would create a waiting period of two years before people denied parole under prop. 57 can come up before the Board again. It would also add restrictions to parole board considerations. I’m going to humbly suggest that parole in California is something I actually know a little bit about and tell you that this is absolute nonsense. Getting out on parole in CA is extremely difficult, parole hearings are Kafkaesque, and the last thing we need is pile more difficulties in the path of people who pose low reoffending risk. To appeal to people for whom the word “victim” is a talisman for righteousness, they threw in the need to consult with victims, but guess what: victims are ALREADY NOTIFIED of Prop. 57 hearings, and if they want to get involved, they get registered with the state. This proposition would drag into the punitive rhetoric net even victims who are not registered with the state. For what purpose, if these folks themselves are not interested in participating?

The third part of Prop. 20 would expand our DNA collection practices. Currently, California collects a DNA sample from people arrested or charged with felonies. If Prop 20 passes, DNA samples will be collected from people who are under arrest for certain misdemeanors. Many people have qualms about expanding DNA databases, on account of the mistakes that can happen. I suspect that, in the aftermath of the successful DNA-based prosecution and conviction of the Golden State Killer, this is not going to be super persuasive; I also submit to you that DNA databases have the potential to clear and exonerate, not only to convict, and I would therefore be willing to entertain pros and cons of this part of Prop. 20 if it came to us on its own, without the other issues. As it is, it’s not worth the price and expense of reversing two highly beneficial initiatives that reduced incarceration without risk to public safety, so I’m still firmly on the “no” side.

Finally, Prop. 20 also involves various changes to community supervision of people released from prison or jail. Currently, people released from jail, or from prison for nonviolent or nonserious crimes, are supervised in their counties. If Prop. 20 passes, probation officers will be required to ask a judge to change the terms of supervision if the person under supervision violates them for a third time. In addition, the proposition requires state parole and county probation departments to exchange more information about the people they supervise. In community supervision matters, it’s all about the details, and these are technical issues that are unsuitable for resolution via a yes/no political referendum.

The complicated structure of Prop. 20 makes it difficult to estimate the expense involved in its implementation. Because the proposition overall would lead to more and longer incarceration—more severe crimes, less opportunity for parole—there would be cost increases associated with it. The only silver lining here, and this tells you something, is that a sane court will find that the two first aspects are unconstitutional and strike them down, which will mitigate the expense of incarceration (but require litigation.) In other words, if it ain’t broke, don’t fix it. Vote No on 20.

The Prefrontal Cortex Strikes Again: Bill to Raise Age for Trying Juveniles as Adults to 20

The Sac Bee reports:

A California lawmaker argues that 18- and 19-year-olds aren’t mature enough to do prison time if they break the law, and so she has submitted a bill that would treat them like juveniles.

“When teenagers make serious mistakes and commit crimes, state prison is not the answer,” said bill sponsor Sen. Nancy Skinner, D-Berkeley. “Processing teenagers through the juvenile justice system will help ensure they receive the appropriate education, counseling, treatment, and rehabilitation services necessary to achieve real public safety outcomes.”

Skinner’s proposal is the last in a series of legislative and judicial changes reflecting what I referred to, in Yesterday’s Monsters, as the “rediscovery of childhood.” Since the early 2000s, our understanding of childhood and its implications as to accountability has undergone a dramatic scientific, legal, and social transformation. Recall the miscarriage of justice depicted in Ken Burns’ documentary The Central Park Five, in which five teenagers were accused, and wrongly convicted, of assaulting Trisha Meili in New York’s Central Park in 1985 and leaving her for dead. 

Current audiences bristle at the tough prosecutorial interrogation of children, but the newspaper headlines of the day (as well as rabid ads and media appearances by a younger Donald Trump) depict the youngsters as a “wolf pack” of “superpredators.” This case was no outlier: prompted by the media frenzy over the crack epidemic,  young criminal offenders, particularly African Americans, were regularly dehumanized, their age denoting danger rather than mitigation or rehabilitative potential.

However, the early 2000s, new brain imaging technologies enabled neuroscientists discover that the prefrontal cortex, which is responsible for the ability to delay gratification, exercise emotional regulation, and resist pressure, continuously grows well into our mid-twenties,  which explains impatience and rash decisions by teenagers and adolescents.

These developments first permeated the legal field in Roper v. Simmons,  where the Supreme Court struck down the death penalty for minors as unconstitutional. The court found that juveniles to be immature and irresponsible, more vulnerable to peer pressure, and possessing a “more transitory, less fixed” character. These differences “render suspect any conclusion that a juvenile falls among the worst offenders”, and therefore, from a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” 

The decision in Roper energized petitioners serving lengthy sentences for crimes committed when they were minors, and other landmark decisions followed. In Graham v. Florida,  the Supreme Court struck down life without parole for non-homicide offenses committed by juveniles, citing similar rationales, and explaining that the aims of punishment do not support such a harsh sentence for crimes other than homicide. Subsequently, in Miller v. Alabama,  the Court invalidated, for juvenile offenders, sentencing schemes under which certain murder convictions yielded mandatory life without parole sentences, finding that such schemes “preclude a sentencer from taking account of an offender’s . . . chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. . .  And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.”

Miller did not explicitly state that it would apply retroactively, to the many inmates already serving lengthy sentences under sentencing schemes that violated Miller. One such inmate was Henry Montgomery, convicted of the murder of a police officer when he was sixteen years old; at the time Miller was decided he was already in his late fifties, still serving time in Louisiana’s notorious Angola prison. Montgomery appealed his sentence,  arguing that Miller should apply retroactively.  Under constitutional doctrine, as established in Griffith v. Kentucky and in Teague v. Lane,  defendants whose cases are final face an uphill battle in reopening their cases in light of Supreme Court landmark decisions. They must convince the court of one of the following three arguments: first, that the landmark decision does not announce a “new rule,” but merely interprets prior precedent; second, that the “new rule” is substantive, rather than procedural, in nature; or third, that the “new rule” is a “watershed rule of criminal procedure,” of such seminal importance that justice requires it to be retroactively applicable.

In Montgomery, the Supreme Court was convinced of the second argument. It found that the Miller rule, according to which mandatory life without parole schemes could not apply to juveniles, was a substantive rule—a rule that “rendered life without parole an unconstitutional penalty for a class of defendants because of their status”, and therefore should apply retroactively. The Court was less decisive about the appropriate remedy, and Justice Kennedy opined that parole hearings might be a suitable forum for raising the age argument. 

 Before the Supreme Court announced its decision in Miller, a large California campaign waged by criminal justice nonprofits and human rights organizations yielded SB 9,  which required holding a judicial resentencing hearing for all juveniles serving life without parole. Subsequently, California lawmakers also adopted SB 260,  which expanded the access to resentencing hearings to juveniles serving other extreme sentences, short of life without parole. SB 260 was later amended by SB 261, further expanding the resentencing hearings to those who were under 23 years of age when committing the crime. This amendment better reflects neuroscience developments, according to which the prefrontal cortext continues to develop well into one’s early twenties. In this respect and others, California is ahead of the rest of the nation in acknowledging the contribution of youth to crime.  A subsequent bill signed into law in 2017, SB 394, set the date for the first opportunity for a hearing by a minor at 24 years of incarceration.   All of these developments, particularly in CA, explain the logic behind Skinner’s proposal.

 As an aside, because Yesterday’s Monsters is about parole hearings, I’ll say that these developments did, eventually, find their way into the parole hearing room with the parole grant recommendation for Leslie van Houten in 2016, in which the Board anchored its decision in the new understanding of youth:

Your choices that you made in your life at an early age based on the belief system that the family was over when there was a dissolution led you to a lifestyle of drugs, running away, unplanned pregnancy, the abortion, anti-establishment philosophy of the times. You exhibited these hallmarks of youth at the time of the crime as compared to adults, lack of maturity, underdeveloped sense of responsibility, leading a reckless, impulsive lifestyle. So that was 261. That was what the Supreme Court has ruled on, and that is on point with the case factors we see before the Panel here today, so the great weight played a role. Your age played a role.  


 It remains to be seen whether attention to youth significantly reforms the parole process. Recently, Beth Schwartzapfel observed that parole boards find ways to thwart the Court’s decision in Montgomery, arguing that long-term inmates who committed their crimes at a young age have not yet developed “insight.” The outcome is “a wave of lawsuits from those who claim parole officials are undermining their new constitutional obligations.” 

This is especially true in California, where political considerations might lead the Governor to reverse release recommendations, thus retaining political good will and protecting the gubernatorial office from public backlash. Notably, Governor Brown reversed the Board’s recommendation and denied Van Houten’s parole.

Nevertheless, it is telling that the Board—albeit more politically insulated than the Governor—felt comfortable recommending the release of a high-profile inmate on the basis of age, a fact widely known from the time the crime was committed but only recently considered. This development bodes well for other inmates, and specifically for members of the Manson “family,” whose young age was a deciding factor in their involvement with Manson in the first place. 

On Populism in Criminal Justice Policy, and the Death Penalty Moratorium

Gavin Newsom’s recent announcement of a death penalty moratorium drew critique from supporters of capital punishment who argued that Newsom employed his executive power in a way that flies in the face of what the people of California want (which is, by a small majority, the death penalty to stay.) In the last week I’ve had to debate this issue on TV and on the radio with a few commentators, some more erudite than others, and even though the pace of public appearances was rather frantic, I made a mental note that I need to take the counterargument more seriously and think about populism more deeply.

Thankfully, life provided a really interesting opportunity to do so: I’m just returning home from a beautiful day in New York City, which I spent as Author-in-Residence at St. John School of Law‘s Journal of Civil Rights and Economic Development. I spent the day discussing various implications of a piece I wrote for the journal, which was loosely based on this blog post.The schedule for the day was beautifully student-centered and my gracious hosts made sure that their students got the most out of an informal conversation about writing in the morning, a great lunch conversation, and a more formal presentation with Q&A in the afternoon. 
We talked about lots of things: the perniciousness of social media mobbing, whether rage was exhaustive or generative, whether reputations soiled by formal or informal social control can be redeemed (and at what cost), whether there’s any hope for bipartisan civil discourse—in short, the things that ail and worry us all. Among the students’ excellent comments was a polite-but-passionate disagreement a student had with my position on Judge Persky’s recall. As regular blog readers know, I think the recall was a vile example of the scorched earth mentality that drives a lot of lefty activism nowadays and a terrible message for judges to be harsh. The student who disagreed with me saw it quite differently. He saw it as an important message to the judge (and other judges) that he should respect the will of the people.
After the talk, the student came over and we continued our conversation. It turned out that the student was a community organizer who was appalled by the New York State legislature’s imperviousness to impassioned public calls to change the statute of limitations in a way that would allow prosecuting prominent Catholic Church priests involved in the massive sexual abuse scandal. He expressed regret that New York had so little referendum-based legislation, because he suspected that, had the statute-of-limitations issue come up on referendum, about 80% of state voters would support eliminating barriers for prosecution. 
As the student was explaining his position, I realized something important. My hosts and I live in states that are very different, respectively, in terms of their political culture. New York is governed largely through professional, elitist bureaucracy, whereas California is governed through political and emotional populism. As Vanessa Barker argues in The Politics of Imprisonment, these divergent political cultures have shaped two very different criminal justice systems, with California’s characterized by much more punitive excess in terms of legislation and policy. Of course, the criminal process in New York is not clean of problems—the NYPD scandals and the conditions at Rikers are but two notable examples—but the sheer size of the California apparatus and its patchwork of aggressive sentencing laws reflect the punitive animus stoked in a public that votes for criminal justice policies via referendum. Because of these different cultures, our respective natural tendencies are to see the blemishes in our own environment and perceive the other system in a more favorable light. In other words, while I’m used to seeing the serious problems, excesses, and miscarriages of justice that come from a money-flooded direct democracy rife with oversimplification and disinformation, the student who came to speak to me was used to seeing the legislative elite turn a cold shoulder to the values and expectations of their constituents. 
Reasonable people can disagree, I think, on how much direct democracy is appropriate for a particular political culture. But it’s important to make this call on the basis of facts. Does the public tend to be punitive? And how punitive, and in what contexts? There is rich literature on this, which I reviewed extensively in Chapter 7 of Cheap on Crime. The gist of it is that, while the public holds complicated views on punishment and rehabilitation, it is possible (and easy) to craft questions and provide information in a way that yields punitive outcomes. For example, surveys reveal that people are significantly less likely to support lengthy incarceration when they are provided with real data about how much it costs. The problem is that, in a partisan—indeed, polarized—legislative atmosphere, there’s very little guarantee that the public will actually get credible, dependable facts; instead, supporters and opponents of a particular bill will provide a lot of noise and spin, leaving people with good will, but with little background in public policy and economics, to make their own decisions. 
One example is the idea that someone might support the death penalty in good faith because they believe that capital punishment is good for victims and that victims want it. But we know that different people process tragedy in different ways, and that not everyone sees the death penalty as conducive to their healing from a devastating loss. I can say that, in my visits to the violence prevention coalitions in Santa Rosa and in Sacramento, I heard victims’ family members espouse exactly the opposite—and those are, typically, poor people of color, whose voices do not usually ring very loud in the policymaking arena. Is it elitist, or undemocratic, to consider the possibility that the public has been systematically misinformed about what victims want, and therefore lacks valuable and relevant knowledge?
Similarly, consider this horrifying piece of news I read this morning. The violence, the sheer amount of defense required for mere survival, the blood and bodily secretions at all places… a friend posted today on Facebook that if the public knew just a little of what happens in these institutions, we would not have them. It’s not malice–it’s ignorance. Is it elitist, or undemocratic, to suggest that people who call for lengthy incarceration terms have never been inside a prison, have no idea what it looks and feels like, and cannot imagine themselves or their loved ones go through it?

Theoretically, a good compromise between my position and that of the student might be a referendum system that also delivers nonpartisan information about the bills (particularly the budget) and limits expenditure and propaganda to a minimum. How that is to be achieved in a country in love with an absolute First Amendment is a difficult question. What leads me to despair is the fact that, in general, we’re experiencing a fairly shaky hold on the truth in the last few years, intensifying the already existing problem of voter ignorance and campaign misinformation that plagues referendum systems.

It’s pretty distressing to end up with this position, which seems to dovetail with Tom Lehrer’s introduction to one of his songs, where he says that “the reason folk songs are so atrocious is that they were written by the people.” An old friend who grew up in Saudi Arabia told me of going to public executions at the ripe age of 9 and seeing the crowds cheer. Sometimes we need to be dragged, kicking and screaming, away from a site of an atrocity by a responsible adult. I think what Newsom is trying to do is be that adult for us. 

Oh, and let’s talk more about this on April 9 at 7:30pm at Manny’s. Here’s the link to the event–I hope to see many of you there.

Moratorium!!! What Does It Mean?

California’s death chamber: closed. Source:
Office of the Governor.

Today’s stunning, forward-thinking announcement from Governor Newsom requires some careful parsing out. I am on my way to KQED, where I will discuss this with Scott Shafer and Marisa Lagos at 11am. If you can’t listen to the broadcast, here are some initial thoughts about the implication of this announcement and where I think we should go from here.

Moratorium: What It Is

Bob Egelko from the Chronicle reports:

Gov. Gavin Newsom is suspending the death penalty in California, calling it discriminatory and immoral, and is granting reprieves to the 737 condemned inmates on the nation’s largest Death Row.
“I do not believe that a civilized society can claim to be a leader in the world as long as its government continues to sanction the premeditated and discriminatory execution of its people,” Newsom said in a statement accompanying an executive order, to be issued Wednesday, declaring a moratorium on capital punishment in the state. “The death penalty is inconsistent with our bedrock values and strikes at the very heart of what it means to be a Californian.”
He plans to order an immediate shutdown of the death chamber at San Quentin State Prison, where the last execution was carried out in 2006. Newsom is also withdrawing California’s recently revised procedures for executions by lethal injection, ending — at least for now — the struggle by prison officials for more than a decade to devise procedures that would pass muster in federal court by minimizing the risk of a botched and painful execution.

The elements of Newsom’s orders are therefore: (1) a reprieve for every death row inmate; (2) shutdown of the execution chamber (3) a withdrawal of the continuous effort to revise death protocols, which we discussed on this blog numerous times. So, no more “tinkering with the machinery of death,” for at least a while.

Moratorium: What It Isn’t

Newsom is not commuting anyone’s death sentence. Even though executions will not happen, all death row inmates are still sentenced to death and housed on Death Row. He is also not pardoning anyone. This is far from the last step on the road to death penalty abolition. Shutting down the chamber and the protocol revision process, however, will set back executions even if Newsom’s predecessor misguidedly brings the death penalty back.

Why Didn’t Newsom Commute All Death Sentences?

Not all death sentences are eligible for commutation, and if Newsom were to commute all of them, he would be facing ferocious litigation. Shortly before the end of his gubernatorial career, Jerry Brown offered some commutations, which were reversed by the California Supreme Court, citing “abuse of power.” Some capital convictions, under California law, are not eligible for commutation, importantly in cases of prior felony convictions, which is the case for about half the inmates on death row. The last word on commutations lies with the court, not with the Governor, and if the Newsom administration wants to offer commutations, it will have to offer them on a case-by-case basis.

Why now?

It’s anyone’s guess, so here are some of my speculations. First, even in these cynical times, when the federal government is full of self-interested people for whom values and the good of the country do not rank particularly high on the priority list, there still are folks who do things on the state and local level because they think they are the right thing to do. Newsom is a long-time opponent of the death penalty and what he has done is in line with his personal values (in fact, conservative commentators have already attacked him for putting his values first–as if it is a bad thing.) Other reasons for the timing might involve the Kevin Cooper case, in which Newsom, joining the growing chorus of people with serious doubts about the conviction, recently ordered more DNA testing. Also, keep in mind that this is not a departure from Newsom’s previous gubernatorial acts in the criminal justice area. A classic example is his plan to move juvenile justice out of CDCR’s control into health and human services. He seems to be hell-bent on dragging the California correctional apparatus, kicking and screaming, into the 21st century, and turn us from a national embarrassment to a national leader in criminal justice.

Can Pro-Death-Penalty Activists Stop This?

They can try, and likely will. There’s nothing they can do about the 737 reprieves–those are squarely within the Governor’s ambit–but they could argue that the shutdown of the chamber and withdrawal of the regulations slouches toward an encroachment on a legislative process. It is quite likely that, in the next couple of days, they will seek (and perhaps receive) an injunction against that part of the Governor’s order, and that will drag on in the courts for a while. Meanwhile, though, no one gets executed, and that’s the material thing, and moreover, as of 12:45pm today, the death chamber has already been physically dismantled.

What Happens to Existing Death Penalty Litigation?

Because none of the sentencing has changed, everything in the capital litigation machine remains in place; in fact, just this morning I spoke to a friend who specializes on capital postconviction litigation and he was on his way to court for a death penalty case. So all of that stuff–quibbling over injections and historical miscarriages of justice–continues as scheduled, except perhaps with some less urgency.

Can Prosecutors Seek the Death Penalty in Cases Pending Today?

Yes, they can, and there are already murmurs around the web by prosecutors that they are required to do the bidding of their constituents (remind me again why we elect prosecutors and politicize our justice system?). But it would be, perhaps, more difficult for a San Bernardino, L.A., Orange, or Riverside county D.A. to justify seeking capital punishment, which is costly litigation (partly because it triggers an automatic appeal)

Should We Try to Abolish through an Initiative Again?

My two cents: Not anytime soon. Here’s why: When several European countries abolished the death penalty when local public opinion still favored it (check out the current struggle in Belarus, which embarrassingly is the only other Western country, beside the United States, with a death penalty). This seems to be one of those things–like, ahem, slavery, antimiscegenation, and homophobic laws about legal recognition of relationships–where top-down decisions tend to precede changes in public opinion and the public falls in line later. Keep in mind that support for the death penalty is at its lowest point since the 1960s and declining; in a recent piece, Daniel LaChance assesses the death penalty in the 21st century and concludes that it is in its last throes.

And remember, Newsom is a sharp and accurate predictor of the arc of progress, as he did with the marriage equality debacle, but he sometimes predicts things too soon for the public. Recall that he was on the right side of the same-sex marriage debate back in 2004, when thousands of our friends and neighbors stood in line in front of San Francisco City Hall to get married. What followed was years of arduous litigation, including a legal change AND a constitutional amendment that were supported by a small majority of Californians (just like the death penalty.) Newsom’s patience in leading struggles like this, it seems, pays off, and even though some criticized it as a political risky move, Kamala Harris’ recent trials and tribulations show that taking the opposite tack (doing politically expedient things that support the death penalty and selling out values for technicalities) also does not exactly pay off. If one has to choose between the fallout from being a careful political tactician and being a leader with values, Newsom has consistently chosen the latter.

Which is why I think we need to let the fallout from this play out for a while without getting public opinion mixed into all this (we know that, in 1865, the Civil War defeat didn’t exactly shift all Southerners toward support of slavery abolition.) Let’s see where the litigation over the order goes. Let’s keep track of homicide rates in the state for a few years, and when we see–as research consistently shows–that the moratorium has not eroded deterrence and that the death penalty has no proven deterrent power, it will be easier to get rid of it. Also, the passage of time plays out into another important aspect of this: the Eighth Amendment interpretation incorporates “evolving standards of decency”, so let’s allow them to evolve and see what the courts do. Which brings us to our last two points:

Nationwide Implications for the Death Penalty?

Eighth Amendment litigation is often shaped by the passage of time. What seemed kind and usual at one time might not seem like that today, and notwithstanding Foucaultian scholars and postmodernists of all stripes, in general the courts’ tendency has been to assume that we are moving forward, not in circles. California becoming a de-facto abolitionist state is a huge boost to the national struggle for abolition. We have the biggest death row in the country and have been very influential in the arena of extreme punishment. This is a big contribution to the critical mass of states that have moved to the abolitionist side–nineteen so far, and with California it’ll be twenty–and this bodes very well for a national abolition, though the current Supreme Court might be a more difficult venue to pursue this than how it was in its pre-Gorsuch and Kavanaugh makeup.

What About LWOP and LWP–the Other Two Components of the Extreme Punishment Trifecta?

Newsom’s decision does not affect the tens of thousands of people serving lengthy life sentences in California–with and without parole. Moreover, keeping death row inmates on death row means that they continue to litigate extensively at the state’s expense, and none of that investment and attention goes into the other two components of what I call, in my forthcoming book Yesterday’s Monsters, the “extreme punishment trifecta.” If anything, taking the mystery out of whether people are getting executed highlights the lack of difference between death row and life sentences and makes the arguments that life sentences are “the other death penalty” starker.

This only means that what happened today is good news. As readers of this blog know, I’ve always been upset with the progressive tendency to assume that reform is the enemy of revolution and that Dismantlement of the Prison Industrial Complex Must Happen Today Or Not At All. Which is why I wrote, back in 2016, this op-ed, titled “Are you against the death penalty? Good. Then vote against the death penalty.” The point that life sentences are cruel and horrible is not lost on me; quite the opposite, I’ve written a book that argues that attacking LWOP is not enough and that LWP is just as draconian given the vicissitudes of the CA parole system. But what we must remember is that reform always happens incrementally. I recently got to talk about this with Marc Mauer, coauthor of The Meaning of Life. Mauer says we must focus on life sentence abolition in all states that have already abolished the death penalty, and I think he’s right. Newsom’s courageous stance means that we can get to that business in California soon, and I, for one, am delighted that we finally get to fight more fights for what’s right.

Thank You for Your Courage, Governor Newsom

Governor Newsom’s announcement of a death penalty moratorium is a breath of fresh air after decades of stagnation. Since the reinstatement of the death penalty in California, 13 inmates have been executed, while close to a hundred died of natural causes. Hundreds spend decades waiting for legal representation in interminable appeals whose focus has gradually shifted from big questions of humanity, discrimination, and innocence, to technicalities and chemicals. The death penalty—not in fantasy, but as actually administered in California—is racially discriminatory, risks tragic miscarriages of justice, and offers no comfort or closure to many victim’s families, as it is essentially an expensive version of life without parole in a dilapidated facility, to the tune of $150 million of taxpayer money annually.
Twice in the last decade did abolitionists attempt to marshal the voters’ common sense to retire the death penalty, and twice they came close, but failed. Public support for capital punishment is at its lowest level since the 1960s; almost half of California voters oppose it, and of those who support it in theory, few are aware of its many flaws, potential for mistakes, and ridiculous price tag. European countries that abolished the death penalty did so when it was still supported by most of their voters; sometimes the government and the legal system needs to take a moral stance when the public is not yet ready to do so.
Our political leaders, who could have dragged California’s extreme punishment into the 21st century, did not deliver. Former Governor Jerry Brown, personally opposed to the death penalty, did not use his last term in office—the perfect opportunity for a courageous, progressive move—to do the right thing. Neither did former Attorney General Kamala Harris, also personally opposed to the death penalty, who appealed a federal judge’s decision that the death penalty in California was unconstitutional due to the delays in its application. While upholding the decision would not have dismantled the death penalty, it would have created a political opportunity for doing so, and could have finally ended the political impasse that rendered California a national leader in so many ecological and social areas and a national embarrassment in its criminal justice system.
Californians should applaud Governor Newsom for doing what he can within the limit of his time in office to move the most draconian piece in the California correctional puzzle to its rightful place—the past. It is thanks to this visionary step that we will be able to shift the obscene expenditure on capital punishment toward what truly benefits Californians—not symbolic, fear-driven clinging to a misguided idea of a functional death row, but education, health care, green industry, and infrastructure. Finally, the sun shines on the darkest corner of California’s correctional landscape.

Barr v. Sessions: A Return to Cheap on Crime?

A short while ago I posted about the bipartisan enactment of the First Step Act, a bipartisan compromise bill offering evidence-based rehabilitation programming and early releases for nonviolent drug offenders. Harkening back to the pre-Trump era of cooperation, the animus behind this law is pragmatic, but I does have some important humanitarian provisions, such as the categorical prohibition of shackling pregnant women or women who have just given birth.

William Barr’s confirmation hearings yielded many interesting insights into his future as Attorney General. For me, one interesting moment was when Chuck Grassley (!!!) pressed Barr on his tough-on-crime record. The Brennan Center reports:

“Will you commit to fully implementing the FIRST STEP Act?” asked Sen. Chuck Grassley, a key champion of the law. 

“Yes, senator,” Barr responded. Barr said that when he was last attorney general in the early 1990s, the violent crime rate was high and prison sentences were short. The system had broken down, he said. Barr argued that the growth of the prison population helped bring crime down since then, something the Brennan Center strongly disputes. But he acknowledged that times have changed. 

“I have no problem with the approach of reforming the prison structure and I will faithfully implement the law.”

This excerpt is a real gem. First, note that the question comes from Grassley, not usually who you’d think of as a champion for the oppressed. Second, note that Barr does not just say he’ll uphold the law, but actually goes into the merits of the law and essentially makes the argument that times have changed.

As the Brennan Center reports elsewhere, Barr is no bleeding heart prison reformer himself. The exchange between him and Grassley is an exchange between two Republicans, which confirms that much of the spirit of Cheap and Crime is alive and well.

This makes Sessions’ tenure as Attorney General even more interesting as an outlier. When touring with Cheap on Crime, I met Vikrant Reddy, an interesting and sharp-minded thinker about criminal justice reform on the right side of the political map. When we met, Reddy was working for Right on Crime, a conservative think tank about which I wrote extensively in the book. Right on Crime was making the argument that economic sustainability and small government principles required trimming the criminal justice apparatus, calling a truce on the war on drugs, and considering programs for reducing imprisonment. He has since then changed affiliations and now works for the Koch institute as a Senior Fellow. When we met, I asked Reddy what he thought about the diversity of opinion about criminal justice within the Republican Party. He said something that I found very interesting.

There was a generational gap, Reddy explained, between “old-skool” Republicans, who came of age politically during the era of high crime rates between the 1960s and 1980s, and the newer generation of conservative politicians, who were representing constituencies that experienced much safer streets and communities. The latter group was much more open to political compromise, if only for the sake of financial prudence.

Sessions is definitely a card-carrying member of the former group of politicians. In his confirmation hearings, he referred to marijuana smokers as “bad people”, an approach woefully out of touch not only with empirical research but with public opinion across the political spectrum. In an era of reasonable Republicans invested in reform, the Trump administration had to look long and hard for the only war-on-drugs dinosaur left in the Republican Party, and in Sessions, they found this rare and dying breed, to the detriment of us all: Sessions proceeded immediately to instruct federal prosecutors  to adopt a “zero tolerance” policy, which the prosecutors themselves called him to recant.  He revoked the Obama-era moratorium on the use of private prisons and took part in various other nefarious criminal justice initiatives that could not be justified by humanism or by efficiency.

What is interesting about Barr is that he is not a younger politician. His record on criminal justice from the early days is appalling. And nonetheless, he has been able to look around him, notice that the world has changed, and assure Grassley that criminal justice reformers will find him cooperative and willing to listen to reason. I find a glimmer of hope in this. Old punitive dogs can, and do, learn new tricks sometimes.

—–
Thanks to Jodi Short for our conversation about this.

The First Step Act: Humonetarianism Alive and Well

When my phone buzzed with a new notification, I felt a bit queasy reading that a new crime bill passed in the Senate was regarded “a victory to Trump.” But upon reading the bill, I realized this was the First Step Act, a watered-down bipartisan federal crime reform bill from the people who brought you the Obama-era federal reforms. The New York Times reports:

The First Step Act would expand job training and other programming aimed at reducing recidivism rates among federal prisoners. It also expands early-release programs and modifies sentencing laws, including mandatory minimum sentences for nonviolent drug offenders, to more equitably punish drug offenders.

But the legislation falls short of benchmarks set by a more expansive overhaul proposed in Congress during Barack Obama’s presidency and of the kinds of changes sought by some liberal and conservative activists targeting mass incarceration.

A look at the bill text provides some more insight. 
The main idea behind the bill is a buzzword we’ve heard a lot in the last few years: evidence-based recidivism reduction. The idea is to develop programs (and provide grants) for risk and needs assessments of federal prisoners, which would predict the recidivism risk of every inmate and then match him or her with evidence-based programs that address that particular person’s needs. These could include visits, institutional transfers, more opportunities to use the commissary service or even email, and other incentive. The most notable of these, perhaps, is time credits attached to the programs, which can be credited toward early release. The usual exceptions apply: As with the Obama-era reforms, these privileges and options will be available to low-level, nonviolent inmates, and not to “non-eligible” inmates, which committed violence offenses.
In short, this is a clear sequel to the trends I pointed out in Cheap on Crime. Effectiveness and efficiency are explicit criteria for the programs; the bill passes with bipartisan support; and the bill applies to the usual clientele of humonetarian reform, i.e., nonviolent, low-level inmates. 
The background to the First Step Act is indicative of the price we have to pay for bipartisan reform. Kamala Harris referred to this as a “compromise of a compromise,” which reminded me of the kind of discussion we had whenever I presented Cheap on Crime to a new audience. How much do we compromise or give up in order to get something? In the Trump Era, this means that bills of this kind are going to carry far less impact than their Obama-era predecessors, who were themselves products of compromise.

Parkland Shooting: A Month’s Retrospective

It’s been a month since the horrific shooting at Parkland, and today students nationwide are walking out in memory of the victims and in protest of state and federal inaction on gun control. In preparation for a special report on KTVU this afternoon, I’m reviewing what we know about the efficacy of various methods to prevent school shootings, followed by a critical assessment of the Florida, federal, and (for good measure) California gun legislation.

As of 2014, roughly 371 million firearms were owned by U.S. civilians and domestic law enforcement. Estimates on household guns are that 36%-49% of American households have guns, or 23%-36% of adults. Sixty percent of gun owners are motivated by the need to protect themselves and their households against crime.

Roughly 16,459 murders were committed in the United States during 2016. Of these, about 11,961 or 73% were committed with firearms. According to President Obama’s commissioned report on research into gun violence causes:

“Defensive use of guns by crime victims is a common occurrence, although the exact number remains disputed….”
“Almost all national survey estimates indicate that defensive gun uses by victims are at least as common as offensive uses by criminals, with estimates of annual uses ranging from about 500,000 to more than 3 million….”
“[S]ome scholars point to a radically lower estimate of only 108,000 annual defensive uses based on the National Crime Victimization Survey,” but this “estimate of 108,000 is difficult to interpret because respondents were not asked specifically about defensive gun use.”

“Studies that directly assessed the effect of actual defensive uses of guns (i.e., incidents in which a gun was ‘used’ by the crime victim in the sense of attacking or threatening an offender) have found consistently lower injury rates among gun-using crime victims compared with victims who used other self-protective strategies….” (source)

There is a sort-of-controversy among gun scholars about the effectiveness of gun ownership on crime control. By sort-of, I mean that John Lott (author of the classic More Guns, Less Crime) claims that gun ownership has a deterrent effect. Pretty much everyone else disputes these claims and finds Lott’s methodology problematic. Specifically, a recent study by Stanford’s John Donohue III found the exact opposite. You’ll find the full paper here, and here’s the abstract:

The 2005 report of the National Research Council (NRC) on Firearms and Violence recognized that violent crime was higher in the post-passage period (relative to national crime patterns) for states adopting right-to-carry (RTC) concealed handgun laws, but because of model dependence the panel was unable to identify the true causal effect of these laws from the then-existing panel data evidence. This study uses 14 additional years of state panel data (through 2014) capturing an additional eleven RTC adoptions and new statistical techniques to see if more convincing and robust conclusions can emerge. 

Our preferred panel data regression specification (the “DAWmodel”) and the Brennan Center (BC) model, as well as other statistical models by Lott and Mustard (LM) and Moody and Marvell (MM) that had previously been offered as evidence of crime-reducing RTC laws, now only generate statistically significant estimates showing RTC laws increase overall violent crime and/or murder when run on the most complete data. A LASSO analysis finds that RTC laws are always associated with increased violent crime. To the extent the large increases in gun thefts induced by RTC laws generate crime increases in non-RTC states, the panel data estimates of the increase in violent crime will be understated. 

We then use the synthetic control approach of Alberto Abadie and Javier Gardeazabal (2003) to generate state-specific estimates of the impact of RTC laws on crime. Our major finding is that under all four specifications (DAW, BC, LM, and MM), RTC laws are associated with higher aggregate violent crime rates, and the size of the deleterious effects that are associated with the passage of RTC laws climbs over time. Ten years after the adoption of RTC laws, violent crime is estimated to be 13-15 percent higher than it would have been without the RTC law. Unlike the panel data setting, these results are not sensitive to the covariates included as predictors. The magnitude of the estimated increase in violent crime from RTC laws is substantial in that, using a consensus estimate for the elasticity of crime with respect to incarceration of .15, the average RTC state would have to double its prison population to counteract the RTC-induced increase in violent crime.

In other words: more right-to-carry is correlated with more violent crime. Now, keep in mind that correlation does not equal causation, and there are cultural differences between states that can’t be captured even by the most careful model, but this team has also found longitudinal correlations, which bolsters the causal claim. This study is currently being presented as evidence in a lawsuit brought by the NRA against the state of California, which bans assault rifles. The lawsuit, which was filed at the Superior Court in Fresno, claims that the burdens on the path to purchasing an assault rifle infringe upon people’s privacy and Second Amendment rights. California requires background checks for all firearms transactions, including those conducted between private individuals; these transactions do not require background checks according to federal legislation.

California is at the more controlling end of the gun legislation spectrum. In general, states fall into one of two categories: “shall-issue” states, where concealed carry permits are issued to all qualified applicants, and “may-issue” states, where applicants must often present a reason for carrying a firearm to an issuing authority, who then decides based on his or her discretion whether the applicant will receive a permit. The latter category is quite diverse, and includes states, such as Connecticut, which effectively act as shall-issue states, and states such as New Jersey, which effectively act as no-issue states.

As of July 2016, 42 states had “shall issue” laws, including Florida. Eight states had “may issue” regimes: California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and New York.

Florida became a shall-issue state on October 1, 1987. To carry a gun in Florida, one needs to be 21 years of age or older, have clean criminal/mental health records, and complete a firearms safety/training course. As of June 30, 2016, Florida had issued 3,173,630 permits and had 1,598,213 active licensees, constituting roughly 11% of the state’s population 21 years of age or older. The revocation rate is minuscule: From the outset of the Florida right-to-carry law through June 30, 2016, Florida has revoked 10,909 or 0.3% of all issued permits. The vast majority of revocations were for crimes committed after licensure.

Following the Parkland massacre, the Florida legislature adopted a new gun statute, titled the Marjory Stoneman Douglas High School Public Safety Act. The new law authorizes the awarding of grants through the Crime Stoppers Trust Fund for student crime watch programs; establishes the Office of Safe Schools within the Department of Education; provides that each sheriff may establish a Coach Aaron Feis Guardian Program and appoint certain volunteer school employees as school guardians (who can carry firearms); prohibits people who have been adjudicated mentally defective or been committed to a mental institution from owning or possessing a firearm until certain relief is obtained (there is no correlation between mental illness and school shootings😉 prohibits a person younger than a certain age from purchasing a firearm; prohibit specified acts relating to the sale and possession of bump-fire stocks; and creates the  Marjory Stoneman Douglas High School Public Safety Commission within the Department of Law Enforcement. These funds and grants are to be funded to the tune of $400 million in appropriations. 

Essentially, what this boils down to is some restrictions on gun licensure based on mental health and age, and permission for some school employees to carry guns in schools. The latter aspect of the law is the most controversial, as several recent anecdotes show considerable potential for accidents and problems. If anything, *less* guns in school, rather than *more*, would be a better idea. The genesis of this “school guardian” idea lies in the notion that guns in the hands of good guys can protect against bad guys. But this premise is rather questionable, and might apply differently to different victims and different situations. A meta-research conducted in 2004 shows that the availability of guns increases, rather than decreases, the risk of homicide, and this was confirmed in a RAND study from 2018.

On the federal level, no big surprises: after some talk about increasing background checks and raising the age for gun licensure, Trump seems to have caved to the NRA and abandoned gun control initiatives.

I would be remiss in ending this review without inviting you to watch KTVU today at 4pm for the conversation about this, and also expressing my admiration of the Parkland high school students who are actively pursuing change. My heart breaks at the fact that we are failing our children, and at the fact that they are battling a particularly obtuse federal and state governmental cadre with particularly obtuse and uninformed views about gun control.

Who Is a “Violent Offender?” Amending Prop. 57 and Other Populist Adventures

In the last couple of years, several people–John Pfaff, Christopher Seeds, yours truly–have commented on an important feature of criminal justice reform: it consistently makes a distinction between “violent” and “nonviolent” inmates, ignoring the former and offering the latter early releases, parole, and enlightened sentencing changes. In this vein, Prop. 57, which passed by a great majority this November, offered an escape valve from excessive incarceration to people sentenced for nonviolent crimes (approximately 25,000 inmates in state prisons.)

But what constitutes a “violent crime” is under debate, and some CA lawmakers are under the impression that we have excluded some offenses from this category. They propose amending Prop. 57 to include dozens of offenses, which they perceive as “violent.”

This is a terrible, wasteful, and pointless proposal, and here’s why.

First, a person’s offense of arrest (or even offense of conviction) is no proxy as to the risk they might pose to the public. As Susan Turner and Julie Gerlinger found out, there is no significant correlation between the violence involved in an offense and the recidivism of the offender. This distinction we make is largely for optics and public palatability, and it doesn’t really address risk.

Second, if anything, the category we need to rethink is that of violent criminals, whose aggressive prosecution is the engine behind mass incarceration according to John Pfaff’s Locked In. As long as we continue to retrench our views about violent offender and perceive them as an indistinguishable mass, our correctional crisis will not be resolved.

Third, Prop. 57 does not offer automatic release. It offers the opportunity to appear before a parole board. Presumably the lawmakers proposing the change want us to be safe, right? Well, if the parole board is unconvinced that the person is safe to release, they can simply decline to release them.

Fourth, it’s important to understand what “early releases” mean. Over the years, CA sentencing laws have become a patchwork of draconian enhancements and additions. All Prop. 57 does is offer the person an opportunity to show rehabilitation BEFORE all the draconian additions kick in.

Finally, do these legislatures forget the importance of financial accountability? People who spend unconscionably long times in prison become old before their time, and ill, and therefore expensive.

I really hope this horrible idea crawls back to where it came from. In the last couple of months we’ve come to think of California as an island of reason and progress amidst the national catastrophe. Looks like we have to stand watch at the state capitol as well.

Are You Against the Death Penalty? Good. Then Vote Against the Death Penalty.

It’s no big surprise that the Prop 62 campaign, which calls for the death penalty repeal, is working hard to build a coalition across political lines. Because of that, the campaign rhetoric understandably aims at reassuring undecided voters that, even with abolition, they will remain safe; and its two main arguments, the obscene costs ($150 million a year) and the risks of wrongful convictions, are arguments that should appeal to all of us, regardless of our political convictions. But lately I’ve been hearing from some folks on the very left edge of the political map–progressives and radicals–who are thinking of voting no on 62 for various progressive reasons. If you are one of these people, this blog post is addressed to you.

First of all, friend who cares about progressive causes and criminal justice reform: I hear you. I hear that you are frustrated because you need the system to change at a faster pace and that some provisions in these propositions aren’t exactly what you’d hope for, and that you are concerned that if we pass these it’ll stall further steps. I hear that the democratic process is not moving things far enough and soon enough for you. I hear that you are giving this a lot of thought and are genuinely concerned about aspects of the proposed reform. I believe you that your dilemma is real. I understand that you are trying to do what you think is best for people in vulnerable situations.

I hope you can hear me when I say that, when you tell me you might be voting to keep the death penalty in place, it really, really frightens me.

I am frightened because I’ve been thinking, writing, and speaking about criminal justice reform for twenty years, five as a practitioner and sixteen as an academic, and the one thing I learned is this: in criminal justice, the perfect is the enemy of the good. And I am really afraid that in our quest to attain a perfect criminal justice system we might opt out of a crucial step on the way to where we want to be.

Please allow me to address your concerns one by one.

“If we get rid of the death penalty, aren’t we entrenching life without parole? I think life without parole is horrible, and we are affirming it as the upper range of punishment.”

You feel that life without parole is a hopeless, soul-destroying punishment, which offers a person no prospect of ever seeing life outside prison. And you feel this is especially cruel for very young people (a big chunk of our prison population) who become incarcerated in their twenties and are looking at a very long stretch behind bars.

You know what? I agree with you. Life without parole is, indeed, an extreme form of punishment. Like you, I am committed to a struggle to bring a possibility of hope–an exit possibility–to any prison sentence.

Unfortunately, we can’t start our fight against life without parole until we win our fight against the death penalty, which is within reach. This is, unfortunately, how political reform works: incrementally, with bipartisan support, and with a big base of consensus.

I wish there were a critical mass of Californians of all political persuasions convinced that our criminal justice system needs to be immediately reformed. Not just at the edges, not just for nonviolent inmates, not just for juveniles, but for everyone. But that is not the world we live in. The political reality is that, in order to make change, incremental steps have to be taken. Remember same-sex marriage? That didn’t happen overnight. There were revolutionaries calling for marriage back in the seventies, when it was unthinkable. Then, the movement had to regroup, advocate for lesser protections (domestic partnerships, workplace protection). Yes, domestic partnership was less than marriage in important ways. But this is why public opinion changed, between the mid-1990s and the early 2010s. Incremental change is what led to the triumph of that movement. 

For an even more relevant example, see what is happening with juvenile justice. Life without parole for juveniles is horrible, right? And look at how close we are to eradicating it–because in 2005, in Roper v. Simmons (2005) the Supreme Court abolished the death penalty for juveniles. It was the first step in a long series of reforms. In Graham v. Florida (2010) the Supreme Court felt comfortable relying on the same arguments to abolish life without parole for nonhomicide crimes. In Miller v. Alabama (2012) the Supreme Court relied on that logic to abolish mandatory life without parole for all juveniles, and then felt comfortable making that ruling retroactive in Montgomery v. Louisiana (2016). We are now within striking distance of abolishing life without parole for juveniles. None of this would have been possible without Roper v. Simmons.

This is even truer for legislative/public campaigns than for judicial change. To make reform happen, we need wide public consensus–not just an agreement among progressives. We need our conservative and moderate friends to live with the new situation for a while, realize that the sky doesn’t fall if punishment is less extreme, and accustom themselves to the idea of further reform. A classic example is marijuana legalization. Recreational marijuana would not be on the ballot–within reach and polling great so far–if Californians of all persuasions didn’t have a chance to live with medical marijuana for years and realize that it was not the end of the world. Do you think we would have been here, at this point in time, if progressive voters had declined to vote for medical marijuana, claiming that limiting legalization to medical patients wasn’t good enough? Similarly, conservatives and centrists grew accustomed to same sex marriages because they lived with domestic partnerships. They will be willing to consider a reform of life without parole if and when they see that the death penalty was abolished and it didn’t lead to a rise in crime rates, a decline in public safety, or any other negative consequences. You and I already know that giving reformed, aging folks a chance at parole is also not a safety risk. But not everyone knows that, and we need our friends across the political map to agree with us. We can’t make change otherwise.

I’ve been studying criminal justice reforms for the last sixteen years. I have not seen a single criminal justice reform that sprang perfectly from nothing. Every change we’ve seen since 2008–and we’ve seen plenty, believe me–was the product of incremental, bipartisan reform. This will be no exception. We can’t get from A to Z skipping steps along the way. I know you’re ready for Z. So am I. But the people whose hearts and minds we have to change so that Z happens–and we can’t make it happen without them–need us to go through all the steps so that we can have a coalition. What we want won’t happen otherwise.

“We are not really executing people in California anyway, and the delays are lengthy, so our death penalty really is just life without parole, with or without an execution at the end. So what would abolition actually achieve?”


Our peculiar situation in California is that we have about 750 folks in limbo. We could execute them, but through litigation efforts and mobilization we’re trying to stall their executions. Being on death row, friend, is not the same as being in general populations. Folks on death row are also in solitary confinement, do not work, and do not have access to the social and educational opportunities available in general populations. Our death row is notoriously dilapidated.

Also, can you imagine living with the uncertainty of whether you’ll be executed by the state some day? Ernest Dwayne Jones couldn’t. And in Jones v. Chappell (2014), a conservative District Court judge from Orange County agreed with him. Based on sound research on the effects of uncertainty, and the horrible thing it is to live with the prospect of being killed by your fellow men, the judge found the death penalty unconstitutional. We didn’t win that fight, even though we tried very hard: the Attorney General decided to appeal, and the Ninth Circuit reversed for technical reasons. But the reasoning behind Jones is sound: it is very different to be a death row inmate than a lifer.

But let’s assume for a minute that these two experiences are comparable (after all, we always compare them to each other.) If you really can’t see that the death penalty is worse than life without parole, how about a tie breaker? We don’t like to talk much about savings in the progressive left–it’s an argument that some of us think is designed to appeal to centrists. But we’re talking about a lot of money here: $150 million a year, to be precise. If you really have no preference between the death penalty and life without parole, does this obscene waste of money not tip the scale in the repeal direction for you? Think about all the things you care about: education, health care, roads. Is it really a progressive move to keep something happening, in which you see no virtue, and spend this much on it when we could spend it on the things you care for?

Finally, I know you’d like to see the death penalty go away not only in California, but also in other places. You know where people on death row do get executed? In Texas, for example. Unfortunately, change in Texas is not going to spring to life, fully formed, out of nowhere. We have the biggest death row in the country and have been the vanguard of criminal justice innovation, for better and for worse. Determinate sentencing? Us. Enhancements? Us. The most punitive version of Three Strikes? Yup, we started that one, too. But we can use this power we have, as a huge and influential state, to make changes in other places as well. We adopted Realignment; we reformed Three Strikes; we passed Prop. 47. These things have a ripple effect in other states. We have to make the first step here. The death penalty doesn’t take the same shape in all states, but it is abhorrent in all of them. Reform in Texas begins here, with you.

“If we abolish the death penalty, aren’t we depriving people of valuable and free legal representation? Only death row inmates get two free lawyers paid for by the state, and that increases their odds of exoneration.”


It’s true: The California Constitution awards death row inmates two free attorneys to represent them in their appellate and habeas proceedings. But what does this mean in practice? We have hundreds of inmates on death row who are unrepresented and unable to benefit in any way from this constitutional provision.

As of August 2016, 46 inmates are awaiting appointment of both an appellate attorney and a habeas corpus attorney. 310 inmates have been appointed an appellate attorney, but are still awaiting appointment of a habeas corpus attorney. This is almost half of all death row inmates, and there are only 34 attorneys employed by the Habeas Corpus Resource Center. You could do what tough-on-crimes conservatives might do and vote yes on 66, but to actually close the huge representation gap we’d have to train and appoint 402 defense attorneys just for the cases now pending. This is a huge expense, and it would come with the added price tag of speedy proceedings that run the risk of executing innocent people. And that is something neither of us wants (I really hope you’re voting no on 66. It’s a horrible and draconian proposition.) So, if we’re staying with the existing situation, what guarantees of exoneration do we really have?

Ask Shujaa Graham, who spent 16 years in San Quentin for a crime he did not commit. Yes, he was exonerated at the end, but what a huge risk he ran while he was still there! Beyond the horrible conditions, the cruelty, the loneliness, the boredom–an innocent person on death row lives every hour or every day of his life with the fear that the miscarriage of justice that happened to him will be irreversible. For that matter, ask any of the 150 exonerees whether they’d trade what happened to them with a guarantee that they won’t be in a situation where the horrible wrong done to them can never be rectified.

“Hey, wasn’t there some survey of death row inmates four years ago where they said they preferred to keep the attorneys they have? Why would we oppose something that the inmates themselves support?”


Four years ago, indeed, the Chronicle published a survey with death row inmates who said something like this. But the Chronicle did not disclose the methodology of the survey, nor did it share the questions they were asked. How does one even conduct a valid survey on death row? And how do we know whether the people who asked the questions weren’t only those who are represented–and not the hundreds of people who wait, on average, 16 years to even get an attorney so they can begin the proceedings?

Of course we care what death row inmates think. And former death row inmates who have been exonerated have been aggressively campaigning against the death penalty and on behalf of Prop 62. Have you heard a single exoneree publicly praising his good luck in being sentenced to death? Maybe there’s a reason for that and we should listen to them.

You know who else is worth listening to? Lifers. I teach lifers in San Quentin and what I hear from them is uniform, wall-to-wall support of death penalty repeal. They think that the death penalty is a massive waste of resources. And, while they yearn for the day we fight against life without parole, they are relieved to be in general population, studying, working, and interacting with others, rather than on death row. Most importantly: they know that we are spending a lot of effort on a policy that affects only 750 people instead of focusing on the thousands of lifers out there. And they know that we can’t get to other penal reforms before we make this one happen. You want us to get to the business of reforming LWOP? Great, me too! Let’s repeal the death penalty so we can get there sooner – there are no shortcuts that don’t pass through death penalty repeal.

“Prop. 62 is mandating that the folks we commute to life without parole work and give money to victims. That’s forced labor and I don’t support that.”


I know how the concept of work in prison makes you feel. It’s a grim reminder of how, when we abolished slavery, we threw in a little exception: forced labor is allowed in prisons. It is something that we have come to abhor, because it means that our prison regime perpetuates, in a new guise, abhorrent forms of coercion and racial domination.

But abolishing labor in prisons is not on the ballot. Abolishing the death penalty is.

Some progressive voters bristle at the campaign’s emphasis on making lifers work to compensate victim families. You can be forgiven for mistakenly thinking that the proposition “creates forced labor.” But that is, simply, not factually true. Section 2700 of the Penal Code, which requires that inmates work, has existed for a very long time, and already applies to everyone on life without parole. Prop 62 doesn’t hasn’t invented anything new and does not change that section; it would merely apply to a few hundred more lifers–for the simple reason that they would now be lifers, not death row inmates.

The only modification that Prop. 62 would make is increasing to the maximum restitution withholding from wages (not family donations), from the 50% (which is already in effect) to 60%. Is objecting to an increase in victim restitution from wages really a progressive cause you feel proud to fight for? Considering the enormous change we can effect here, this is a fairly small matter to stand in the way.

Even if you are uncomfortable with this small increase in restitution, I want to remind you that it is not enough for confirmed progressives to vote Yes on 62. We have to have a majority of Californian voters, and that includes conservatives and centrists. It also includes families of victims that are campaigning against the death penalty. And one of the things that is a convincing argument for them–and not unreasonably so–is that the proposition addresses concerns about victims. Compromising on this point is part and parcel of getting things done in the political reality in which we live. And this is the world in which we have to vote.

“I’m against the initiative process. This, and other propositions, are a flawed feature of California lawmaking. I vote “no” in principle on all propositions.”


Friend, I hear you. Every election season it’s the same thing: money, deceptive ads, easily manipulated voters, a polarized state. Yes, this is a bad way to make a lot of decisions. For example, this is a bad way to create nuanced criminal justice reform.

But I want to ask you to really think about what’s at stake here. The legislature is not going to repeal the death penalty on its own. We know; we tried. Our governor (who is personally against the death penalty) is not going to unilaterally commute everyone’s sentences to life without parole. We know; we tried. Our courts cannot get rid of the death penalty. We know; we tried, and we came close, and we failed because of habeas technicalities.

The only one who can get rid of the death penalty in California is YOU.

And compared to other propositions, this one is actually fairly well suited to an initiative process: as opposed to, say, medical or recreational marijuana regimes, parole regimes, registration requirements, etc., death penalty repeal is a fairly simple question, which has a straightforward yes-or-no answer: repeal or retain. This is one of the least objectionable uses of the referendum method.

You have to decide: when you look back at this election, which of your values will you be more proud that you upheld: your concerns about direct democracy, or your opposition to the death penalty?

In Summary


Sometimes, with good intentions, we overthink things, and that leads us astray. Listen to your heart and your common sense. Are you against the death penalty? Good. So am I. For the reasons the campaign highlights, but also for all the traditional, good reasons to be against the death penalty: because it is barbaric, inhumane, risky, racially discriminatory, and obscenely expensive.

Are you against the death penalty? Then vote against the death penalty. 

Vote Yes on 62.