Humonetarianism in Action: Fiscal Arguments in Support of Regulating Marijuana

It’s Deja Vu All Over Again.

The long discussion on regulating marijuana is back, as the Chronicle reports today. Except this time, true to the spirit of Humonetarianism, much of the discussion focuses on finances and costs.

Experts say an unprecedented confluence of factors might finally be driving a change on a topic once seen as politically too hot to handle.

Among them: the recession-fueled need for more public revenue, increased calls to redirect scarce law enforcement, court and prison resources, and a growing desire to declaw powerful and violent Mexican drug cartels. Also in the mix is a public opinion shift driven by a generation of Baby Boomers, combined with some new high-profile calls for legislation – including some well-known conservative voices joining with liberals.

Leading conservatives like former Secretary of State George Shultz and the late economist Milton Friedman years ago called for legalization and a change in the strategy in the war on drugs. This year mainstream pundits like Fox News’ Glenn Beck and CNN’s Jack Cafferty have publicly questioned the billions spent each year fighting the endless war against drugs and to suggest it now makes more financial and social sense to tax and regulate marijuana.

This is not a new discussion, of course. As some readers probably know, marijuana prohibition has not been with us forever. Scholars who have researched the history of drug criminalization, such as Troy Duster, trace it back to clashes between economic interests, as well as to demonization and oppression of minorities. In fact, the first U.S. law to criminalize drugs – the Harrison Narcotics Act of 1914 – focused on regulating taxation and licensing for drug purveyors and on protecting the medical profession, rather than on blanket prohibitions. Duster argues that it is no coincidence that substances used by middle-class whites, such as barbiturates, were left out of the criminalization frenzy, while marijuana (linked to Mexicans), heroin (linked to Blacks), and opiates (linked to the Chinese) became outlawed.

So, there’s nothing given, or immutable, about our prohibition of drugs. Well, is it a good idea? That is a very complex question, since we could think of quite a variety of legalizing/regulating regimes to implement. In their wonderful book Drug War Heresies, Rob MacCoun and Peter Reuter examine a series of drug policies from all over the world and show that each system has advantages and drawbacks. They also highlight the political and economic hurdles to implementing sensible drug policies. Another interesting resource is this cool and well-articulated economic analysis by Andrew Clark from DELTA, who argues that any cost/benefit based analysis of regulating the drug market has to take into account the importance we ascribe to externalities, such as crime and ill health. Jeffrey Miron from Boston University argues that decriminalization will have little impact on marijuana use, and believes that decriminalization might affect other legal provisions, such as eliminating or relaxing the reliance on drug testing to determine parole violations.

We should keep in mind, though, two important things pertaining to the California situation: First, California has already effectively decriminalized small amounts of marijuana, although, as Rob MacCoun brilliantly proves in a new piece, not many people know that. And second, there is a permit system for medical marijuana operating according to CA laws (albeit in defiance of Federal laws).*

One of the things I like about the resurfacing of the marijuana regulation debate is that, probably for the first time, public discourse is attentive to the big picture. As became clear at the CCC conference, a major problem in addressing correctional policy is the disconnect between lawmaking and correctional implementation; lawmakers do not feel the harms and costs that are later born by those subjected to the correctional apparatus, and as humonetarians argue, by those picking up the tab. It’s nice that the prison overcrowding issue has made it to the forefront of the marijuana debate.

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*This it fascinating, complicated, messy, and merits discussion far beyond this framework.

Karlton v. Prop 9: 1:0


More news on several controversial portions of Prop 9, which we discussed here in the past. As our gentle readers may recall, Prop 9 put into legislation more victim involvement in the criminal justice system, including parole hearings. While some of this was not news – and in several counties, at least, was common practice before the passage of Prop 9 – this is the aspect that was prominently displayed on the supporters’ website. However, Prop 9 also included punitive provisions: lengthening parole procedures as well as limiting the right to counsel in parole revocation hearings for indigent defendants.

Yesterday, Judge Karlton invalidated the portions of Prop 9 that infringe on parolees’ rights, particularly the restrictions on the right to counsel, due to a contradiction with a permanent injunction, reached as a consent decree, in 1994 following litigation regarding parolees’ rights. The Sac Bee reports:

In the parolees’ 1994 lawsuit, Karlton found the state’s existing procedures were in violation of the 14th Amendment’s due process guarantee. His resulting permanent injunction was ratified by the state and is legally construed as a consent decree.

“To the extent that Proposition 9 conflicts with the permanent injunction, the former may not be enforced,” Karlton said in Thursday’s 34-page published opinion, which cited the supremacy clause of the U.S. Constitution.

The Constitution defines itself as the “supreme law of the land, and its judiciary supreme in construing what the law is,” the judge declared.

“The state’s action is not given special deference by virtue of having occurred through the initiative process,” he added.

Interestingly, the debate about Prop 9 has, yet again, been framed in terms of money. The Chron cites some of the arguments:

“Especially now, we cannot afford to be spending tens of millions of dollars on unnecessary privileges for convicted felons,” said Nina Salarno Ashford, representing Crime Victims United of California. She urged the state to appeal the ruling “to defend the will of California voters, and the pocketbooks of California taxpayers.”

Indeed. Because, what would get us talking about victim rights and due process for parolees, if not our pocketbooks?

Sentencing Reform in California

One thing that became crystal clear on the Thursday opening panel was the lack of coordination between the different steps of the correctional process, starting with sentencing; but the deep problems, and the immense challenges in fixing them, were fully introduced only on Friday morning on the sentencing panel.

The panel was opened by Judge Tricia Bigelow, Associate Justice at the 2nd District Court of Appeal, who teaches sentencing to judges, and who used the words “labyrinth” and “byzantine” when describing the CA sentencing scheme (citing a colleague who compared our sentencing laws to bureaucratic memoranda and toy assembly instructions!). Since 1977, Judge Bigelow explained, the basic structure for single-count felony sentencing consists of choosing a “base term”, and then adding conduct and status enhancements. The penal code provides “triads” for each particular crime (for example: 2, 3, or 5 years); after Cunningham v. CA, a temporary legislative fix allows the judges to select one term out of the triad based on a set of factors from a non-exclusive list. After adding enhancements – additional prison time due to the nature of the crime (injury, gun, excessive taking in a theft) or to the circumstances of the criminal (previous convictions) – the judge can review a variety of statutory reasons for mitigation or aggravation. This is a fact-specifc process, which is difficult to systematize. The judge must also state reasons for selecting the base term out of the triad.

The picture becomes murkier, though, because CA law is a patchwork of sentencing initiatives that create special sentencing schemes for special cases. Not only do we have a “ghetto” of indeterminate sentencing for lifers, but we also have three strike laws, which, incidentally, create changes in sentencing for two-strikers as well (double the punishment); special sentencing schemes for sex offenders, gun offenders, gang offenders, and others. Judge Bigelow amused/horrified/bewildered us with some of the example cases she gives to judges when she teaches sentencing; it is truly a difficult maze and, as she reports, none of them got one of the examples right. She mentioned the need for a unified system that produces predictable results.

How must we proceed in producing a unified system? Kara Dansky, Executive Director of the Stanford Criminal Justice Center, strongly advocated for a sentencing commission. She started by highlighting two themes in CA sentencing: the unique rigidity and complexity of our sentencing system, and the shift in discretion from the hands of judges and correctional officials to legislators and prosecutors. What we have now is remarkably different from what the original enactors of the Determinate Sentencing Scheme had in mind in 1976; the triads, which were supposed to simplify matters and provide certainty, ended up being part of a patchwork, and are surrounded by hundreds of enhancements. Every single time a sentencing commission has been proposed – and there have been 11 bills so far – it has died, been vetoed, or stalled. There is now a new bill for a sentencing commission before the Assembly, based on Tentative Draft #1 (which, despite its tentative name, is the last word from the people who brought you the Model Penal Code).

A sentencing commission would have several purposes. It would be expected to develop sentencing guidelines (with an eye toward creating uniformity while still allowing judges room to individualize the sentence); collaborate with judges (who should be more involved than they are now); provide information and generate knowledge from the entire system (there is no single nonpartisan forum for policy, nor is there any communication between the different silos maintaining datasets on CA sentences); explain the logic behind sentencing policy (a duty from which our lawmakers are exempt); and ensure that all of this happens on a permanent and ongoing basis.

Dansky also tackled several of the arguments against sentencing commissions, arguing that they were based on misconceptions of the institution and the logic behind it. Two worth mentioning were the concern that commissions would be undemocratic, when, in fact, they would be a transparent governmental agency, and the concern that voter initiatives would render them useless, which may be the case for some, but not all, sentencing situations.

It was a pleasant surprise to find out that not only judges and policymakers had concerns with sentencing; Michael Jimenez, President of CCPOA, showed us that correctional officers and guards have vested interest in what happens to their inmates before they arrive in prison. In fact, Jimenez argued, the sentencing scheme is so bad that he could not imagine anything worse. The CCPOA has been pushing for a sentencing commission as well, but very disheartened with the political process around it. It all revolves, said Jimenez, around money; there is no political fix for the sentencing problem as long as our policy calculations are influenced by short term, year-to-year tactics.

The politics of sentencing reform were furtherly driven home by State Senator Mark Leno, who shared with us the sobering realities of sentencing politics. California, said Leno, now spends 11 percent of its budget on corrections – that is, more than it spends on higher education, and obtains abysmal results. We have twice the national recidivism rate and half the national parole completion rate. 70% of the inmates come out of prison functionally illiterate; 70% face serious alcohol and drug problems; 60% will be homeless and unemployable. We are the only state that has both determinate sentencing and parole – three years of it, irrespective of the crime – and no intermediate sanctions. As prison population ages, the costs per prisoner rise; they double for inmates over 50, and triple for inmates over 60.

Leno told us of several attempts to amend CA laws and how they were fought – unfairly and inaccurately – by aggressive lobbyists using fear tactics. An attempt to amend the three strikes law a few years ago, to require that the third strike be a violent offense, seemed to make sense to voters – until the governor had a wealthy sponsor flood the media with statements on the potential to release dangerous rapists and murderers, information left out of the brochure because of its inaccurate, misleading nature. Another attempt to reform the system by allowing people to exit parole after 12 months – which would have saved 70 million dollars, which would then be directed into rehabilitation programs in prison – was killed by a floor alert saying that the bill would release thousands of rapists and murderers. Immediately after the bill was killed, Leno got the following message from the lobbyists: “we apologize for the inaccuracies in our floor alert”.

Leno highlighted that the fear tactics were not a republican problem. Neither republican nor democrat lawmakers want to appear soft on crime at any cost. Under the circumstances, and given the fear of elected officials, a sentencing commission is necessary.

Civics and Corrections: A Reminder


As we get ready to watch the momentous transfer of power on Capitol Hill tomorrow, I thought we’d ponder for a moment about the rationale behind excluding prisoners, and in some cases ex-felons, from the right to vote.

Four years ago, released prisoners on parole, and probationers, were surprised to find out that they had a right to vote in California. Activists have been working on raising awareness of the right to vote among those who have been, for a while, excluded from the civic process. In other states, such as Florida, in some cases voting rights can only be restored after a hearing.

In their excellent book Locked Out: Felon Disenfranchisement and American Democracy, Jeff Manza and Christopher Uggen uncover some of the reasons why the American system does not award voting rights to its prisoners. Disturbingly, they draw links between felon disenfranchisement and racism, which go beyond a mere coincidence. Even more interestingly, they marshall empirical data, meticulously collected and analyzed, to prove that, had felons been allowed to vote, two presidential elections (1960 and 2000), and several Senatorial elections, would have been reversed.

Some change has already occurred after the publication of the book, as some states loosened restrictions on voting rights. And, as some readers may know, many countries around the world see no problem in allowing prisoners (current and released) to participate in voting.

This weekend, Parade Magazine published a letter from President-Elect Obama to his daughters and to every child in the country. Obviously, our children, whose future we hold so dear and care so much about, did not vote in the last elections. The Presidential stewardship, as Obama so movingly said in his acceptance speech, transcends those who voted for him; it extends to those who voted for other candidates, and hopefully will also extend to other groups who did not have the privilege to vote at all. As many of us hope for change in many ways, we can hope that our future paths and endeavors also direct us to re-entry, restoration and reintegration after punishment.

Prop 9 Comes to Life, But Perhaps Not Entirely


In the wake of the elections, the CDCR is in the process of implementing Prop 9, which we paid some attention to here and http://californiacorrectionscrisis.blogspot.com/2008/11/othering-of-crime-call-for-empathy-in.html.

Prop 9 has a new webpage, detailing some of its provisions.

One of the interesting bits reported by the CDCR is as follows:

Proposition 9 also changed timelines and procedures for parole revocation hearings. However, on December 5, Judge Lawrence K. Karlton with the U.S. District Court, Eastern District of California, ordered those portions not be implemented in response to a motion filed by plaintiffs in the Valdivia v. Schwarzenegger class action lawsuit, which had previously challenged the constitutionality of parole revocation proceedings. A hearing on the motion is scheduled for March 9, 2009.

In an earlier post, I raised the question whether Prop 9 violated the single-subject rule, by addressing both victim participation and parole timelines. This argument, as a doctrinal argument, doesn’t carry a lot of weight; as Mike Gilbert explains in a phenomenal new piece, the tests used by judges to examine single-subject rule issues are skewed against striking down propositions. However, it seems that the bit that doesn’t fit, the punitive bit that relates, if at all, to a narrow and punitive aspect of victims’ interests, is the one that is at question. I suggest we stay tuned.

Court of Appeal Strikes Down Voter-Approved Restrictions on Released Sex Offenders

(image from Megan’s Law website)

As many readers may know, many states have implemented laws that meticulously regulate the lives of released sex offenders after imprisonment. These restrictions often include a requirement to register on a sex offender database, which can be searched online, and a requirement to notify the community about a paroled sex offender who has moved in. In addition, some states impose residence restrictions on sex offenders.

In 2006, CA voters approved Prop 83 (“Jessica’s Law”), which included a series of such restrictions. Yesterday, the 4th District Court of Appeal found the residence restrictions to be unconstitutional. Per Prop 83, sex offenders were prohibited from living within 2,000 feet of a school or a park; the court, according to the Chronicle, has ruled that Prop 83 is “banishment by another name”.

This ruling is quite interesting, because, as the good folks blogging on the Criminal Appeal blog astutely observe, CA district courts have interpreted other pieces of sex offender related legislation in deference to, and consideration of, the perceived voters’ wishes. For example, the court has interpreted a discrepancy between laws regarding the two-year-commitment of sexually violent predators in favor of the voters’ perceived wishes. It seems, though, that the residency requirements in particular were more controversial and more “ripe for constitutional attack”, as per the other team of good folks blogging on CrimProf Blog.

To get a sense of the extent of the limitations, I recommend you click on the Family Watchdog link, which will provide you with a map of registered sex offenders in your area, as well as information on each and every one of the registered sex offenders. As you’ll see in the maps, which include school locations, residence restrictions might rule out many areas for living, including much of San Francisco.

The Chronicle reports that the 4th District Court ruling will not change the situation for new offenders, but will only impact limitations imposed on people whose crimes were committed prior to Prop 83’s passage.

A couple of other interesting things regarding sex offender registration, which probably would merit posts of their own: The UC Irvine Center for Evidence-Based Corrections’ report on the implementation of GPS tracking of sex offenders, and a fascinating study by J.J. Prescott and Jonah E. Rockoff, which finds that notification and registration laws might have a much different effect on reoffending than lawmakers intended.

CJC Update: The Aftermath of Prop L’s Failure

(image: http://www.daylife.com)

One of the less reported developments following the elections was the failure of Prop L, which aimed to provide more financial support to the Community Justice Center. As reported this morning, Opponents of the new court, led by Supervisor Chris Daly, are gathering some momentum, encouraged by Prop L’s failure. Others, however, point to the broad consensus behind a court that aims to solve social problems in the Tenderloin, and to the flaws in the opponents’ position. The CJC is still scheduled to open in February; stay tuned.

The “Othering” of Crime: A Call for Empathy in Corrections Policies


In his 2001 book The Culture of Control, David Garland tries to make sense of the many contradictions in current criminal justice policy. As part of his “history of the present”, he argues that we seem to have somewhat of a split personality, believing simultaneously in two narratives: the “criminologies of the self” and the “criminologies of the other”. On one hand, we buy into a narrative that tells us that crime is a phenomenon that affects “others” – the underclass, minorities, drug fiends – and on the other hand, we are very involved in situational crime prevention and avoidance, crafting preventive strategies based on the premise that criminals are “just like us”, that is, rational, free agents, who need to be correctly incentivized in order for deterrence to work.

I have been reflecting on Garland’s analysis for a long time, and today it spoke volumes to me, when I tried to make sense of some of the great contradictions of the latest election results; on one hand, a presidential choice that promises a dramatic paradigm change, and on the other hand, the passage of Prop 8, the passage of Prop 9, and the rejection of Prop 5. What really drove things home for me was not just Garland’s terminology, but also reading these powerful words on this very blog this morning:

I was always under the impression that prison was something that happened to other people. Bad people, that did bad things; not people like me. When members of our social milieu had problems with the law, it was almost always of the sort that could be dealt with via payments and, when someone did on occasion end up in jail, it was only spoken of by adults in hushed tones and treated as some sort of mistake or aberration. All the way through my early twenties, even once I should have known better, prison just seemed like somebody else’s problem.

This is exactly what we have done in passing Prop 9 and, by doing so, keeping the “others” in prisons for longer, and making it more difficult for them, representation-wise, to leave. And this is exactly what we have done in defeating Prop 5 and, by doing so, extinguishing the flame of hope and possibility, in the form of drug treatment, for “others”. We would not have done so had we not been trained to think of criminals, drug dealers, drug fiends, corner loiterers, as “others”. We would not have done so had we had some empathy. We would not have done so had we felt that we are all in this mess together.

In many ways – and this may be surprising for some – I have come to see the rejection of Prop 5 and the passage of Prop 9 as the product of the same sort of social disconnect that produced the passage of Prop 8. Granted, Prop 8 is mostly a product of religious zealotry, while Prop 9 is more a product of fear; but both religion and fear have acted in this election as convenient vehicles for lack of empathy, and of separation from others. Indeed, the shared philosophy seems to be that others’ plight does not affect “us”, except in a way that harms us; that the only way to appropriate some of our limited resources is at the expense of someone else; that if the “other” is granted a right, or a window of hope, I am consequently deprived of something meaningful. That regardless of fact and empirical evidence, if the “other” leaves one of California’s correctional facilities, I and the likes of me are put in danger. That if the “other” gets drug relief unaccompanied by a conviction and imprisonment, I and the likes of me lose resources. And, yes, that if the “other” gets married, my marriage becomes less stable, and my children are at peril.

My concern is that, in our worry and our fear about the dangers of the “other”, we have created an impermeable and false boundary between “us” and “them”, whoever we take “them” to be. And it speaks volumes about the sense of alienation and partisanship that many have felt for a long time.

In his presidential acceptance speech, Barack Obama said:

To those Americans whose support I have yet to earn — I may not have won your vote, but I hear your voices, I need your help, and I will be your president too.

Let us hope that this sort of empathy, which transcends political, economic and religious boundaries, will reflect itself in how we treat one another and in our willingness to hear each other’s voices in the years to come. Let us hope that we will not be deaf to the plight of addicts – even when they fall off the wagon once, and perhaps even twice – as well as to the no less real plight of victims; to the happiness and support of families of all kinds and sorts; to the converted, overcrowded gym at San Quentin as we sleep in our comfortable beds. Let us hope that we can open our eyes, ears, and hearts, to acknowledge that, really, there is no “other”. Can we?

Funding the Community Justice Center? SF Prop L


(image taken from a great report on SFmetblogs.com)

Today’s Chronicle reports on the controversy regarding the sources of funding for San Francisco’s Community Justice Center, scheduled to open its doors on February 2009.

The article presents the following analysis of the CJC proposition:

Proposition L

What it is: The measure would guarantee funding for the Community Justice Center, a special court to prosecute misdemeanors and nonviolent felonies in the area bounded by Gough, Bush, Kearny, Third and Harrison streets. It would also grant the mayor and Superior Court power to determine which crimes are handled there and expand its jurisdiction.

Arguments in favor of it: Nobody is served by the current system, which cycles perpetrators of low-level crimes in and out of jail without addressing their underlying problems, such as drug and alcohol addictions and homelessness. The court would sentence them to social services and community service to pay back the neighborhoods.

Who supports it: Mayor Gavin Newsom, District Attorney Kamala Harris, the Chamber of Commerce.

Arguments against it: The court would criminalize behavior that comes with being poor like illegal camping and aggressive panhandling. Also, the Board of Supervisors already funded the court, so what’s the point of the ballot measure?

Who opposes it: The majority of the Board of Supervisors, advocates for homeless people.

Some inaccuracies in the report should be mentioned: while it would appear that the court is especially aimed at “quality of lifers”, its jurisdiction is, in fact, more geographic than anything else. The court’s jurisdiction extends over several blocks of the Tenderloin and SOMA. According to Commissioner Albers, who spoke recently at a town hall meeting about the CJC, the only offenses excluded from its jurisdiction would be violent felonies.

The other big issue is whether the court would lead to criminalization of poverty. Proponents argue that city residents will be entitled to the social services pre-conviction, and sometimes even pre-charging; this might ease the concerns on the part of community advocates. However, it does raise the more general issue of “widening the web”.

The concept was first introduced by Stanley Cohen, in his masterful 1985 book Visions of Social Control. Analyzing, among other issues, the movement toward decarceration (we could all use some of that!), he suggests that the addition of non-incarceration, welfare-oriented sentencing alternatives carries the risk of dragging into the government’s net people who would otherwise be left out of supervision. Cohen sees this aspect of the alternatives in a grim light, but your mileage may vary.

In any case, it is an open question whether, by voting for or against Prop L, you would be sealing the court’s fate. As reported by the Chron, the court does count on grants, and other sources, for a large part of its operation over the first year.

Happy voting, and stay tuned for a final election post, on SF’s Prop K.