This Election, Say No to Old-Skool Crime Panic: Part 1

Last Monday’s presidential debate was interesting for a variety of reasons. To me, a particularly interesting point was the reemergence of old-skool crime risk narratives. As I explain in Cheap on Crime, the recession years were characterized by a rethinking of our ideas about crime, crime prevention, and crime control, and by a bipartisan understanding that, regardless of one’s stance on the morality of mass incarceration, it is simply not economically sustainable to punish so many people so harshly and for such long periods. This means that, in the last few years, we were exposed to new and surprising declarations from long-time conservatives arguing for more civil rights protections, a truce in the war on drugs, and sentencing reform. This is not just about money, though; new advances in neuroscience and developmental psychology have led to a rediscovery of childhood, which in turn has led to several developments in legislation and in caselaw reforming juvenile justice.

And yet, it seems like some things never change. One such thing was Donald Trump’s argument last Monday that murder rates are up. Anyone who lived through the Nixon campaign must have felt, as Yogi Berra would say, déjà vu all over again. The logic behind this old-skool crime panic argument is: crime rates are rising; the only way to stop them is by cracking down on street offenders; the best way to do it is aggressive policing in the streets. The problem is that none of these things is fairly presented or even true.

First, as my colleague John Pfaff explains in The Nation, it is statistically misleading to focus on a rise in one type of crime in the course of one year:

Despite the increases cited in yesterday’s FBI report—the rise in murders in 2015 was the largest in both absolute and percentage terms since crime started dropping in the early 1990s—the United States remains an historically safe place to live. The murder rate in 2015 is still lower than it was in 2009, and before 2009 the last time the murder rate was as low as it was last year was in 1964. Overall, 2015 had the third-lowest violent crime rate since at least 1970, and probably even before that, since our older crime stats likely understate crime much more than they do today.
Yes, crime went up in 2015. But crime remained at near historic lows in 2015, too. Both of these statements can be, and are true. Despite the rise in violent crime, we remain safer today than we have been in decades.

What happened in 2015 happened in the course of one year, against an opposite trend, and one year cannot be regarded a trend:

Because we have so much less violent crime today than in 1990, any given increase will be a bigger percent jump today than 25 years ago. If we have 100 units of something, five more is just 5 percent, but that same five-unit increase is a 10 percent jump from 50. So while the number of murders rose by 11 percent in 2015, compared to 9 percent in 1990, the total increase in murders in 2015 was about 400 less than in 1990. The percent change looks worse because we are doing so much better.

Second, there are no grounds to fear sensible nonpunitive measures. Remember the vast number of articles in California newspapers quoting cops claiming that criminals have been running rampant in the streets since the early releases of Prop. 47? The proposition passed in November 2014. It is now October 2016 and the numbers are in: there is no correlation, on a county-by-county analysis, between releases under Prop. 47 and crime rates. None. Long prison sentences, serious felony charges, and refraining from paroling people do not make us safer. At all.

Third, cracking down on suspected street offenders via aggressive stop and frisk policies is never a good idea. The odds of actually catching contraband on someone during a brief stop and patdown are very low. In New York City, where the NCLU conducted a multi-year inquiry, they found that nine out of ten people who were stopped and frisked were found to be totally innocent. The benefits of finding contraband on a small percentage of the citizenry are far outweighed by the costs of humiliation, degradation, and the loss of trust between police departments and the communities they serve. Even more importantly, as Jill Leovy’s book Ghettoside demonstrates and as David Simon repeatedly explains in his public appearances, the problem is not just overenforcement: it’s overenforcement of showy, aggressive police power that comes directly at the expenses of enforcement that requires brainy, creative police work. The time and manpower spent on stop and frisk is time not spent solving murders and robberies, which are presumably the serious crimes that Trump wants us to be afraid of.

This election, Californians have an opportunity to say no to old-skool crime panic by voting on sensible criminal justice reforms that will save us money and help us treat our neighbors and fellow residents more humanely. Vote Yes on 57 to eliminate prosecutorial monopoly on trying juveniles as adults and to give nonviolent adult offenders a chance on parole. Vote Yes on 62 to eliminate the costly and failed death penalty. Vote Yes on 64 to save money on marijuana prohibition and to bring in much-needed tax revenue. Vote No on 66 to refuse a costly and dangerous death penalty “tweak” that will provide (and pay) undertrained attorneys and risk wrongful executions. Say no to unfounded crime panics. We’ve been there before and we know it doesn’t help. And say yes to sensible reforms.


 

November 2016 Ballot: Yes on 64

My colleagues and I at UC Hastings made a series of nonpartisan, informational videos on the California propositions on the November 2016 ballot. Here’s a video made by my colleague Marsha Cohen, an expert on food and drug law, about Prop. 64, the legalization of marijuana:

On this blog I make endorsements as well, and my recommendation would be to vote Yes on 64.

In 2010, there was a legalization proposition on the ballot which I supported, Prop 19, and it failed by a fairly narrow margin. I supported that one even though I found it problematic and vague: Prop 19 legalized personal use and limited cultivation of marijuana, but left the business end unregulated and up to the counties. As a result, it was unclear how much we would gain in tax revenue.

Prop 64 offers a much clearer legalization regime. Flowing from the recommendations of the Blue Ribbon Commission and relying on the experience of Colorado, Washington, Oregon, Alaska, and DC, it has set realistic price points and tax rates on sales, thoroughly regulated cultivation, possession, and sales, and provided safeguards for sales to minors.

Let’s talk about the money first. The Legislative Analyst’s Office anticipates gains of many hundreds of millions of dollars, up to a billion, in tax revenue. These gains are based on assumptions about patterns of use and commerce that we see in other countries and states. For substances, there is typically a group of hard-core users (See Philip Cook’s analysis of alcohol: 60% of American’s either don’t drink at all or drink very, very little, and only 10% of Americans constitute the vast majority of drinking in the market, with an average of ten drinks a day.) Those folks will use (and pay for it) no matter what, and making sure that they buy (and pay taxes) lawfully is pretty essential. Which is why setting the price point and the taxes properly is important. It seems that this is a key consideration in the states that already have recreational marijuana: you don’t want to tax too much, because that’ll keep the market alive. But even though those states are considering lowering the tax, they still got revenue that far exceeded expectations, and the hope is that the same will happen here. Prop 64 sets excise tax at 15% for retail and 2.75-9.25 percent for cultivation. Sales tax for nonmedical will hover around 8%.

The proposition sets up a licensing program. Selling without a license will be an offense. Selling to minors would be an offense. Setting up shop near a school will be an offense. And, driving under the influence would be an offense.

The most convincing argument against the measure is a recent Washington state study showing a rise in THC-positive drivers involved in accidents. Here’s the full study. But that someone is THC-positive does not mean that marijuana was a factor in the accident. THC is detectable in the blood up to three weeks from the time of use, and a positive finding does not mean that the person was under the influence of marijuana when the accident happened. The study took into account differences in levels of THC, but those are imprecise. Also, keep in mind that drivers were not tested for THC presence before the legalization of marijuana in Washington, so we don’t have great comparative data (who knows how many people were THC-positive before legalization?) Moreover, the findings on THC alone are dwarfed by the findings on alcohol, or on alcohol and THC combined (in which case the causality issue is murkier.) The National Institute on Drug Abuse website claims that marijuana impairs driving ability, but cites a National Highway Traffic Safety Administration study that found that carefully controlled studies relying on measurements find no appreciable difference in driving. NORML, who is far from an unbiased group but who does cite unbiased research, cites far less convincing evidence of impairment under marijuana than under alcohol.

As for arguments for legalization, the existing prohibition regime has been far from successful in curbing drug use and has led to huge monetary and personal costs for people charged, convicted and incarcerated for growing and selling. We wouldn’t be the pioneers of a different path, but it’s a thoughtful effort and definitely worth a try. I’m going with a Yes on 64.

November 2016 Ballot: Yes on 62 and No on 66

In anticipation of the November ballot, my colleagues and I at UC Hastings made a series of nonpartisan informational videos explaining the 2016 propositions. Here’s the video I made on Prop 62:

On this blog I also make endorsements. It’s an unequivocal YES, YES, YES on 62.

It’s not a particularly well-kept secret that I vehemently oppose the death penalty for all the obvious reasons: it’s inhumane, there’s no good evidence that it deters murderers, there are grave concerns about the fairness of its application, and with social psychologists estimating that 5% of all convictions are wrongful, there is also the grave risk of mistake. Add to that the important factor I discuss in Cheap on Crime–the expenditure involved in capital punishment–and repeal should be an obvious choice.

But I’d like to address this post not to the folks who are convinced, for moral reasons, that repeal is the right choice. I’d like to talk to decent, reasonable people who are on the fence about the death penalty, because they feel that some people–serial murderers, people who kill and assault little children, etc.–should have an especially harsh sentence reserved for them. Even if you are such a person, you should vote yes on 62. Here’s why.

In November we’ll be voting not about the philosophical merits of the death penalty, but on whether to keep it as it is practiced here in California. Here are some facts, not opinions: we currently have 751 people on death row. Since the reinstatement of the death penalty in 1978 we executed a grand total of 13 people. Meanwhile, 90 people died of natural causes. They spend decades on death row, during which they are held in expensive conditions in a dilapidated facility, and they also litigate. Their confinement, and especially their litigation, is costing us $150 million a year, which would be saved if all these people were to be transferred tomorrow to general population. And most of these death row inmates are not the “worst of the worst” for whom you’d like to reserve the death penalty.

I get that you think that in principle there should be something special for really heinous crimes. But we don’t live in a principle. We live in California. And in California, this is expensive and it doesn’t work.

“So the death penalty is broken,” you say. “Why not fix it? Why not make it cost-effective, and then I can continue to support it?”

There is a proposition on the ballot that argues just that–Prop 66. Its proponents, mostly county district attorneys, argue that adding lawyers and shortening procedures would save money and allow California to retain the death penalty. Here’s the informational video I made of Prop 66:

The two reforms proposed by 66 are unrealistic, expensive, and very risky. They would not solve the problem. I strongly oppose it and urge you to vote No on 66. 

Currently, each death row inmate receives two attorneys at the state’s expense to litigate his/her case. “Quelle luxe!” I hear you say. Well, not so much. The Habeas Corpus Resource Center has a whooping grand total of 34 attorneys, who get assigned the hundreds of cases on death row. According to the Legislative Analyst’s Office, as of September 2015, 57 individuals were awaiting appointment of counsel in direct appeals and 358 individuals were awaiting appointment of counsel in habeas corpus proceedings. Those are hundreds of people whose lives depend on a determination of their legal claims, who have to wait an average of 16 years to get an attorney. That’s why it takes so long to execute people in California.

Hiring and training more attorneys to take on capital cases would cost tens of millions of dollars a year–on top of the $150 million we’re already paying by having capital punishment. While I’d love for there to be more jobs for my students, this is an unnecessary expenditure we can ill-afford.

What’s worse, Prop 66 supporters propose to shorten the times for appellate and habeas proceedings. But there’s a reason why these procedures take time. It’s because they have the potential of diminishing the risk of horrible mistakes. When someone does life without parole and is found to be innocent, their life has been detailed, but amends can be made. When an innocent person has been executed, there are no amends. The risk of a mistake is graver than we can tolerate: remember, a conservative estimate puts wrongful convictions at 5% of all convictions.

There is no fix here that saves money and prevents injustice. And even if you think you’re willing to compromise, ask yourself–how much is it really worth to you to keep 751 people on death row? Is it really conscionable to pay $150 million annually to keep this going?

Yes on 62. No on 66.

November 2016 Ballot: No on 60

My colleagues and I at UC Hastings have prepared a series of informational and neutral videos to educate voters about the CA ballot. Here’s a video I made about Prop 60:

Before educating myself about the proposition, my inclination was to vote yes, and I’m sure many voters feel the same way. What could possibly be wrong with condoms? Aren’t they wonderful things that prevent pregnancies and sexually-transmitted diseases? Shouldn’t we communicate a message to the public that it’s cool and sexy to use them, by requiring that they be used in adult films?

Then, I talked to my awesome student Stephan Ferris, who wanted to write a research paper on this. We discussed the advantages and drawbacks of this regime for the better part of last spring, and Stephan’s resulting excellent paper on Prop 60 is coming out on the Hastings Women’s Law Journal (I’ll add the link once it’s published.) My student convinced me that the right move on this one is a NO on 60, and here’s why.

My natural inclination, as well as that of other well-meaning do-gooders, is to assume that porn actors are defenseless, vulnerable folks with no bargaining power, for whom condoms are the last frontier in the fight against HIV. Neither of these claims is true, and there’s actually a regional issue here that is important.

The ecology of porn in California is such that, for the most part, straight porn is produced in Los Angeles and gay porn in San Francisco. What works for the industry on a regional basis in Los Angeles would not necessarily apply statewide. In the world of gay porn, the working assumption in the industry is that anyone involved is HIV positive, and therefore the performers have an incentive to protect themselves. The state-of-the-art standard for protection against HIV is the use of PrEP. This medication, which in San Francisco is covered by citywide insurance, protects HIV-negative people from getting infected and lowers the detectability of the virus in HIV-positive people to the point that the risk of infection is extremely low. While health care advocacy giant AIDS Healthcare Foundation (AHF) is fighting for this measure, other AIDS-prevention groups claim that the proposition is upholding antiquated health standards that don’t work for the industry. My student, who interviewed industry performers for his article, found that the industry effectively self-regulates the risks away, and putting people who have financial stake in adult film in a position that exposes them to lawsuits (particularly moralistic ones) creates a bad incentive. Adult entertainment companies concerned about the prospect of litigation will simply move somewhere else in the country–Nevada, perhaps?–and California will lose tens of millions of dollars in tax money

In case you think this is a positive because “we don’t want them here”, I’d like to remind you that porn watching knows no borders. Porn is viewed almost exclusively online regardless of where it is produced and filmed. You’ll still be able to see plenty of unprotected sex, much of it done by amateurs filming themselves; what you won’t get is the tax revenue. This proposition smells like unwarranted moral panic. I’m going with no on this one.

November 2016 Ballot: Yes on 57

My colleagues and I at UC Hastings made a series of neutral, informational videos about the propositions on the November ballot. Here’s the one about Prop 57:

For readers of this blog, I’m also making endorsements. It should be a resounding YES on 57, and here’s why.

The first part of Prop. 57 is a no-brainer: who do you trust more with the decision to prosecute juveniles in adult court–a judge after a fitness hearing or a prosecutor? We’ve trusted prosecutors since we adopted Prop. 21 in 2000. We’re talking about thousands of cases here, but even one case of a young person unnecessarily doing time in an environment full of older people should be avoided. What we know about juveniles in adult institutions (which is not a lot, because it’s difficult to study) is disconcerting: suicide rates and vulnerability to abuse, assaults, and victimization. Moreover, when this decision is left to prosecutors, there are big differences between the different counties. Juvenile offenders should not be political pawns.

The second part requires a bit more unpacking, but also turns out to be a no-brainer. A typical felony sentence in California consists of the basic sentence for the offense plus a series of “enhancements” added in bills and voter initiatives over the years. Our determinate sentencing allow for people’s release from state prison after they complete most of their entire sentence, including the enhancements–which can sometimes double or even triple the original sentence. Most folks don’t come up for a parole hearing: California holds parole hearings only for lifers.

If Prop. 57 passes, some version of parole hearing will be returned to the system and applied to non-lifers as well. The idea is to award nonviolent felons doing time in prison (not a big population since Realignment and Prop 47) a parole hearing after their base sentence is completed. The proposition requires that CDCR adopt regulations about rehabilitation programming and the worth of doing programs in “good credit” days that count toward early release. So, while its target population isn’t big and some of the details on how exactly these parole hearings will be held are still obscure, a few things are clear: This will not result in more incarceration, and it will award release to people whose records show them to be rehabilitated. At worst, it’ll be an ineffectual proposition (albeit not a harmful one). But if implemented correctly, it could liberate some folks from the Byzantine maze of enhancements that leads to truly ridiculous sentences.

Some voters might be wondering whether Prop. 57 violates the single subject rule. The best two readings I can recommend on this are Michael Gilbert’s 2006 paper and his excellent 2011 followup. Using an ingenious research design, Gilbert finds that our natural tendency is not to enforce this rule when proposition are more or less on the same topic. His analysis with Robert Cooter also suggests that there’s positive value in “bundling” similar issues in one proposition.

The “bundling” of juvenile and parole here is relatively benign. Remember Marsy’s Law in 2009? The one where you thought you voted to support victims and you actually voted to extend the period between parole hearings? This one’s not like that. These two issues make the system more deliberative and personalized, things of which we could use more, and if well implemented can save lives (and dollars.) So, vote yes on 57.

California June Elections: CCC Criminal Justice Endorsements

It’s that time again! Elections are afoot and CCC is here with criminal justice endorsements. Our thoughts about the candidates and proposals are limited to their criminal justice and corrections policies, and you obviously may have other considerations in mind. These summaries are here to be useful and informative to the extent that criminal justice concerns drive your vote.

Candidates for Office

President of the United States

Democratic Party: No Endorsement, slight preference for Bernie Sanders

Both Clinton and Sanders have spoken fairly little on criminal justice reform, and when they had it was mostly regarding the issues of stop-and-frisk and police-community relations in the context of Black Lives Matter. Predictably, they both toe the line here: police reform is necessary, racial discrimination is deplorable, and stop-and-frisk are ineffective. Who would actually impact criminal justice matters while in office is a different matter: police-community engagement happens overwhelmingly on the local level, and therefore any declarations on that front would have little impact on people on the ground. The Clinton campaign has done an admirable job apologizing for the 1994 Crime Bill, though its impact on increased punitiveness has been fairly small (again, given its federal scope: most criminal justice policy happens at the state and local level.) Sanders speaks of shutting down the private prison industry, but again, that’s a misleading perspective aimed at pandering to progressives–public prisons these days are public only by name, private prisons incarcerate a very small percentage of U.S. prisoners, and the parade of horribles in prison conditions does not suggest that private prisons are significantly worse than their public counterparts. The slight preference for Sanders comes from the fact that he opposes the death penalty (Clinton supports it), though the extent to which the U.S. President can bring about abolition is questionable. No matter how happy you might be with these folks on other matters, we will be pining for the Obama-Holder initiatives and for the bipartisan reform spirit they encouraged for several years to come.

Republican Party: No Endorsement

Trump is a massive nightmare from the criminal justice perspective. His xenophobic, inhumane positions on immigration alone should indicate the extent to which immigrants will be criminalized and detained with him in office. But the others are not much better. With Rick Perry and Jeb Bush out of the race–the only two signatories to Right on Crime, and the only two with solid records of prison closures–we are left with rabid old-skool punitive demagogues. Ted Cruz, who in 2010 seemed a sane voice for criminal justice reform and even co-sponsored legislation to mitigate the effects of the war on drugs, has since then changed his tune and is vocally critiquing President Obama for early releases and mandatory minimum relaxation. Jim Gilmore is a strong supporter of the death penalty, using florid and polarizing rhetoric in describing its appropriateness, and has declined to stay executions under truly horrid circumstances. John Kasich would have been a difficult choice on other policy matters, but in criminal justice he has a solid record of reforms in Ohio, reforming drug programs, closing down prisons, etc. There is still a lot of work to do in Ohio: overcrowding, pay-to-stay jails, and other scourges. But Kasich would have been the far lesser evil in this far-from-ideal roster. As things stand, there’s no winning on criminal justice matters with the Republican roster.

United States Senator: Kamala Harris, with some reservations

Kamala Harris is a smart, solid and thoughtful public servant and politician. Her book Smart on Crime shows an ability to think outside the box and her career as San Francisco D.A. was marked by a willingness to work with the Public Defender’s Office to introduce initiatives such as Clean Slate. As California Attorney General, Harris’ decision to appeal Jones v. Chappell was surprising and hurtful, especially given her personal opposition to the death penalty. Her enthusiasm for truancy courts also raises some questions about whether we are criminalizing people for a phenomenon mostly linked to poverty. But even a cursory glance at the other candidates’ statements clearly show her leaving every single one of them far behind in terms of experience, resourcefulness, and, to be honest, sheer literacy. She is our best choice.

United States Representative: Jackie Speier

Speier is running unopposed, but I would pick her out of a hundred candidates. Her unwavering commitment to human rights and her work to expose and eradicate sexual assault in the military are admirable and important, and she has represented us very well. No reservations whatsoever.

Member of the State Assembly, District 19: Phil Ting

Ting hasn’t done a whole lot in the field of criminal justice, but he is responsible for an excellent and well-balanced gun control bill, which introduces the possibility of a “gun violence restraining order” for folks found by courts to be a danger to themselves and others. It’s a sensible balance between Second Amendment rights and the protection of lives. I’ve tried, in vain, to find Taylor’s positions on criminal justice matters. Ting is the incumbent, and seems to be widely endorsed on other grounds, so I doubt Taylor’s odds are that great anyway.

Member of the County Central Committee / Assembly District 19: Angela Alioto

Several good people in that roster, including firefighter and community organizer Keith Baraka, but Alioto has vast experience in San Francisco politics and is a compassionate advocate for the homeless–one of the few people that stood up to Care Not Cash. But you can make other good choices here.

Judge of the Superior Court, Office no. 7: Victor Hwang

All three candidates are qualified and thoughtful: Paul Henderson is an experienced prosecutor, Sigrid Irias is a civil litigator, and Hwang is a civil rights attorney. My preference for Hwang is mostly due to the fact that people with defense/civil rights backgrounds are underrepresented in the judiciary and some balance would be a good thing. Numerous endorsers agree.

State and Local Measures

Only one of these is directly related to criminal justice and that is–

Measure D: Yes, with reservations

Under Measure D, every incident within San Francisco involving a SFPD officer firing a gun that results in death or physical injury would be referred to the Office of Citizen Complaints. In general, more oversight is not a bad idea; sunlight is the best disinfectant, and police-community incidents in San Francisco, including the death of Alex Nieto, the racist and homophobic texting scandal, and others, suggest that there’s plenty of work to be done here. However, the measure comes with a $5 million price tag, and would add 6 investigators to an office that is already understaffed with 17 investigators. Some think that the measure is not enough, and the Office doesn’t have a reputation for thoroughness where police conduct is concerned. 

Elections 2016: Does It Matter Who’s President?

As in every election cycle, CCC will be releasing endorsements once the propositions are on the ballot. We will also release an official endorsement for president for the Republican and Democratic primaries before June 3. But let’s stay focused on what actually matters: from the criminal justice perspective–from policing to incarceration and beyond–while it somewhat matters who the President of the United States will be, what happens in California matters a lot more.

As I argued in Cheap on Crime, 2008 was the first year in more than three decades in which criminal justice was not a fundamental part of the conversation. Obama and McCain, and in 2012 Obama and Romney, discussed the economy, immigration, and foreign policy (albeit to a lesser extent), but did not much address mass incarceration. With the advent of the financial crisis, and the state and local frantic scramble for funds, the political scene was a fertile Petri dish for bipartisan collaborations.

Indeed, the Obama administration did a lot of important things–some merely symbolic, some practical–to reverse the mass incarceration trend. They reduced the crack/powder cocaine disparity, scaled back mandatory minimums, proclaimed a federal intention to stay away from marijuana-legalizing states, made changes to solitary confinement in the federal system, created the conditions for the DEA to consider descheduling marijuana, and it is rumored that some death row pardons might be in the works. Obama’s personal decency, deep humanity and presidential demeanor contributed to the perception of this administration as more committed to fairness and moderation: among other things, he visited a federal prison in Oklahoma and spoke there of reform, and recently he had lunch with a group of nonviolent drug offenders whose sentences he commuted.

This is wonderful stuff, and the Obama administration should be lauded for all this. Sadly, none of the candidates on offer for 2016, with no exception, match his eloquence, dignity, integrity, and good sense. And indeed, even though the federal system is small in scope, it does have some impact on criminal justice reform.

According to the Bureau of Justice Statistics data, in 2014 there were 1,561,525 federal and state prisoners in the United States. 1,350,958 (86.5%) of them were held in state prisons and 210,567 (13.5%) in federal prisons. The 1% decline in prison population between 2013 and 2014 is attributable in part to the federal system, which saw a decline of 2.5%, compared to the 0.7% in the states. So, yes–some change can be made at the federal level, but its impact on the overall system is fairly limited.

An example that has recently been in the news is the confrontation between Bill Clinton, campaigning for his wife, and the Black Lives Matters activists. As John Pfaff argues in the New York Times, the 1994 Crime Bill–lauded by Clinton for its effects on public safety and excoriated by the activists for its effects on incarceration–did neither of these things. Pfaff writes:

We know the act didn’t cause mass incarceration: Prison populations started rising around 1974, and by 1994 they had roughly tripled, from 300,000 to over one million. It’s almost surely the case that America was the world’s largest jailer well before the act was passed. So if the act didn’t cause mass incarceration, the question becomes: Did it help continue to drive it? The answer, by and large, is no.

For one thing, most of the act’s provisions applied only to federal crimes. The tough new anti-gang laws, the expanded death-penalty provisions, the three-strikes laws: All applied only to those tried in federal court. And those, over all, are fairly minor players, with the federal prison system holding about only 13 percent of all prisoners. The other 87 percent of inmates are in state systems — and none of the act’s new criminal laws affected what happened in state systems.

But, the Act’s role in reducing crime was also marginal at best:

The most obvious thing to consider is that rates of violent crimes and property crime began to decline in 1992, three years before the law’s various provisions started going into effect. There’s no real perceptible change in the rate of that decline after the act. If you want to claim that the law did much to stop crime, this alone is a pretty significant problem. It’s not the only one, either.

For one thing, if the law had very little impact on prison populations (despite all the claims to the contrary), then it can’t take credit for however much crime was reduced by rising incarceration. And while the act authorized almost $10 billion over six years to hire up to 100,000 additional police officers — a provision that could have reduced crime — the data suggest any impact was fairly slight. (Once again, $10 billion seems like a lot, but local governments spent over $250 billion on policing during the six years the program was in effect.) All told, the policing program seems to have pushed crime rates down by perhaps an additional 1 percent. And a government review of the included assault-weapons ban found that its effect was minimal, if only because people shifted to non-assault weapons with large-capacity magazines.

There are important things that a conscientious federal administration can affect. It can make it easier for inmates to review their cases through habeas corpus, thus perhaps correcting some of the horrific miscarriages of justice in cases of exnoerees. It can make it easier to litigate prison conditions in federal courts. It can make important symbolic gains in the fight against the death penalty and the war on drugs.

But the bottom line is that, if you want to see criminal justice reform with substantial consequences, you are better off focusing on the state and local arena. Among the propositions battling for your attention are Justice That Works, a death penalty repeal measure; Gov. Brown’s initiative to abolish direct filing of juvenile cases in adult courts and to bring back some early releases; and an initiative to legalize marijuana in California. This is a remarkable year that could generate massive improvements where they matter, so don’t let the Drumpf circus throw off your focus.

BREAKING NEWS: Brown’s Proposed Sentencing Reform Pulls Us Back to the Future

Just two days after the Supreme Court’s encouraging decision in Montgomery v. Louisiana and President Obama’s announcement of a solitary confinement overhaul in the federal system, comes this astounding piece of news from Governor Brown:

Forty years after signing strict, fixed-term sentencing standards into law – and more than a decade after panning them as an “abysmal failure” – Gov. Jerry Brown on Wednesday proposed a ballot measure to make it easier for nonviolent offenders to gain parole.
In a rebuke of criminal enhancements that can dramatically extend prison terms, the measure would let felons convicted of nonviolent offenses seek parole after serving only their base sentences. It would also restructure what Brown called a “crazy quilt” of credits for good behavior, benefiting prisoners who demonstrate evidence of rehabilitation. 

The initiative language would also undo provisions of Proposition 21, the measure approved by voters in 2000 that allows prosecutors rather than judges to decide when teenagers are tried as adults. Brown will need valid signatures from 585,407 registered voters to qualify the measure for the November ballot. 

Brown, announcing the measure in a conference call with reporters, said the “determinate sentencing” law he signed when he was governor before “had unintended consequences.” 

“Unintended consequences” is right. The original pioneering California move in the late 1970s to determinate sentencing was a bipartisan collaboration between conservatives, who were concerned that light sentences amounted to coddling offenders, and progressives, who were concerned about the arbitrariness of parole powers and about its disparate impact on poor people and minorities. The last forty years in California, if seven years’ worth of posts on this blog haven’t made it clear, have been a very, very bad idea.

“And one of the key unintended consequences was the removal of incentives for inmates to improve themselves,” he said, “because they had a certain date and there was nothing in their control that would give them a reward for turning their lives around.”
Though his measure would not change sentencing standards, Brown said “it does recognize the virtue of having a certain measure of indeterminacy in the prison system.”
“The driver of individual incentive, recognizing that there are credits to be earned and there’s parole to be attained, is quite a driver,” he said. 

The announcement of the initiative was the first specific sign of how Brown plans to involve himself in the November ballot measure campaigns. The fourth-term governor holds a campaign war chest of about $24 million.

Asked if he would finance the initiative, Brown said he will do “whatever it takes to get this done.” 

Brown will enjoy a relatively favorable electorate, with high turnout for a presidential election typically benefiting Democratic politicians and their causes. 

California voters in recent years have demonstrated a willingness to move away from tough-on-crime policies. In 2014, voters approved Proposition 47, which reduced penalties for some drug and property crimes. Two years earlier, voters passed Proposition 36, revising “three strikes” to require that the third strike be a violent or serious felony. 

The initiative is likely to face opposition from some conservatives. State Sen. Jim Nielsen, R-Gerber, said in a prepared statement that “weakening the criminal justice system will only increase the victimization of California citizens.” 

Brown said the ballot measure’s proposal followed “intense conversation” with law enforcement groups, representatives of which joined him on his conference call.
Brown said he considered including violent offenders in the initiative but that it “met with, I would say, near-universal disinterest” from law enforcement. 

“It became a nonstarter,” he said. 

Brown, who helped create the state’s “determinate sentencing” system when he was governor before, has said for years that it should be revisited. In a speech to judges in Sacramento in November, Brown said he didn’t foresee the dramatic impact determinate sentencing would have on the growth of California’s prison population. The policy scaled back judicial discretion in prison sentences.

I haven’t seen the full text yet [UPDATE: I just read it–here it is–and am posting a follow-up], and will of course comment in depth when I do, but I think some preliminary remarks are in order:

  1. In many ways, the last forty years made us smarter than we were in 1977. We know that Martinson’s somber prediction that “nothing works” in rehabilitation was not true, and that doing rehabilitation properly can reduce recidivism. And we also know that determinate sentencing, and that treating kids as adults, achieves little in the way of equality and streamlining and plenty in the way of packing prisons.
  2. Another way in which we’re smarter now is that we understand that discretion doesn’t go away–it merely moves around. What we did in 1977 was shift it from the hands of judges and parole boars to the hands of prosecutors and legislatures–to the point that some commentators, like John Pfaff and the always fabulous Grits for Breakfast, attribute mass incarceration primarily to prosecutorial charging decisions gone amok.
  3. But let’s not throw the baby with the bathwater. One of the reasons California moved away from determinate sentencing in the first place was concern about unfettered discretion by judges and parole boards. Even now, when parole hearings are relegated to lifers, the board enjoys a lot of discretion and very little transparency. My research for my book in progress about the parole hearings of the Manson family members, Yesterday’s Monsters, shows the very limited responsiveness of the parole board to the California Supreme Court’s supervision, and if we want to get the good stuff (incentives to rehabilitate, shorter sentences) without the bad stuff (discrimination and arbitrariness) we need to design parole in a smarter way. With great power, Spiderman’s uncle reminds us, comes great responsibility, and there are no guarantees that parole boards are much better than prosecutors in the discretion department.
  4. Note the humonetarianism theme throughout the proposal. Just like in the initiative on juvenile justice, the language relies heavily on the issue of cost.
  5. So, what happens to the California Penal Code if this passes? Do we rewrite felony sentencing to eliminate the “triad” and affix broad ranges to allow judges discretion? This is going to be a massive redrafting job, but quite an interesting one, and how successful it is depends on how  controlled it might be by partisan politics.
  6. Finally, the article talks about the possible broad support by California voters–the same ones that voted, by large majority, to make lots of punitive changes that we regret to this day. And it may well be that, beyond cost, one of the major reasons that the Republican lawmaker’s it’s-a-scary-world retort falls flat is that crime rates are low. Very low compared to what our predecessors in 1977 were facing. It may be the case that it’s time to put aside the hubris and conclude that crime rates, like the weather, happen for a variety of causes, of which sentencing reform is only one, and that our decisionmaking process should not sway to and fro every time the pendulum swings.

Eliminating Grand Jury in Police Violence Cases in CA? Good Intentions, Bad Idea

Senator Holly Mitchel, a well-intentioned and well-respected member of the California Senate, has proposed SB 227, which consists of the following:

Existing law requires a grand jury to inquire into willful or corrupt misconduct in office by a public officer in the county. Existing law also authorizes a member of a grand jury, if he or she knows or has reason to believe that a public offense has been committed, to declare it to his or her fellow jurors, who are then authorized by existing law to investigate it.

This bill would prohibit a grand jury from inquiring into an offense or misconduct that involves a shooting or use of excessive force by a peace officer, as specified, that led to the death of a person being detained or arrested by the peace officer. officer, unless the offense was declared to the grand jury by one of its members, as described above.

This idea is, of course, prompted by the recent failures to indict in the cases involving the deaths of Michael Brown and Eric Garner. It’s populistic, and I’m sure will have its fans, but it’s a bad idea for the following reasons:

1. It’s unnecessary. In CA, we haven’t had cases of failures to indict at the grand jury level specifically. This is simply not a problem in this state. If it ain’t broken, don’t fix it with hastily-made laws.

2. It’s cosmetic. Since the prosecutors control the grand jury anyway, eliminating it merely means that the prosecutors will decline to prosecute, rather than prosecuting and passing the buck, presumably, to the grand jury, which they also control.

3. It categorically treats one category of defendants differently than the rest in terms of their constitutional rights. One can think of other ways to handle sensitive inquiries into police violence–moving them from the county to the state, from the state to federal authorities–without taking away their constitutional rights. While there is no federal right to a grand jury, there is one in California. Grand juries are ineffectual, usually, as they simply do what the district attorney wants them to do, but they are, at least in theory, supposed to provide another inquisitorial mechanism and a control. If we want to eliminate them, let’s eliminate them across the board, not only for one category of offenders.

4. It is important to know all the facts. I’ve read numerous shrill, angry online voices arguing that it is racist to withhold judgment when one does not know all the facts. I find this alarming and massively disturbing. Police officers are people, too; they, too, deserve to benefit from doubt when they are criminal defendants; and no amount of screaming about what we are sure happened in a police-citizen encounter can overcome the simple fact that we were not physically there. An inquiry is designed to find out what the facts were. It is either effective, in which case we want to keep it, or ineffective, in which case we want to get rid of it, but it is outrageous to discard the facts when they don’t work for us politically.

Residence Requirements for Sex Offenders Struck Down

This morning, in re William Taylor et al., the California Supreme Court struck down the provisions of Jessica’s Law that restricted registered sex offenders from residing within 2000 feet of a school or park.

The bottom line is as follows:

[W]e agree that section 3003.5(b)‟s residency restrictions are unconstitutional as applied across the board to petitioners and similarly situated registered sex offenders on parole in San Diego County. Blanket enforcement of the residency restrictions against these parolees has severely restricted their ability to find housing in compliance with the statute, greatly increased the incidence of homelessness
among them, and hindered their access to medical treatment, drug and alcohol dependency services, psychological counseling and other rehabilitative social services available to all parolees, while further hampering the efforts of parole authorities and law enforcement officials to monitor, supervise, and rehabilitate them in the interests of public safety. It thus has infringed their liberty and privacy interests, however limited, while bearing no rational relationship to advancing the state‟s legitimate goal of protecting children from sexual predators, and has violated their basic constitutional right to be free of unreasonable, arbitrary, and oppressive official action.

Nonetheless, as the lower courts made clear, CDCR retains the statutory authority, under provisions in the Penal Code separate from those found in section 3003.5(b), to impose special restrictions on registered sex offenders in the form of discretionary parole conditions, including residency restrictions that may be more or less restrictive than those found in section 3003.5(b), as long as they are based on, and supported by, the particularized circumstances of each individual parolee.

While the Orange County Register believes that it is unclear whether the ruling has effect outside San Diego County, it seems that a legal provision that is unconstitutional in one area of California is just as unconstitutional in another. Of particular interest is the impact of San Francisco, which, because of the layout of schools and parks in it, is essentially inhabitable to sex offenders under Jessica’s Law. This meant a large proportion of homeless and transient sex offenders, which, as one of them said to ABC news, “are actually walking time bombs out here because we are suffering from sleep deprivation”.