The most important of these for CCC readers is the passage of Prop 47 with 58.5% voter support. The proposition will downgrade several nonviolent, nonserious offenses to misdemeanors, and will allow people currently serving felony time for these misdemeanors to petition for resentencing.
A few things that bear mentioning: First, many of the people whose offenses are affected by Prop 47 are already doing time in jails, as a function of Realignment, and some of them might even be doing a split sentence, which means they’re not in confinement at all. As such, they are also already under the authority of local probation offices and not of the statewide parole apparatus. It would be interesting to know, therefore, how much resentencing would really need to happen. My suspicion is that the effects of Prop 47 will be mostly felt in the counties that did Realignment wrong–building more jails and not using split sentencing–rather than in counties that embraced the reform. The late awakening of the Los Angeles D.A. preceded this proposition only by a few months.
Second: if that’s the case, and if Realignment already did most of this, what practical impact might this have? Well, for starters, think of all the offenders doing time who could not vote in 2014 because they were classified as felons–even though they were physically doing time in jail. Reclassified now as misdemeanants, these folks will be allowed to vote in 2016. This is excellent news that affect many thousands of Californians. Also, there are several Third Strikers whose third offense would now qualify as a misdemeanor, not a felony, and would therefore not trigger the law at all. Those folks are applying for resentencing anyway, as a result of Prop 36 and thanks to the efforts of the Stanford Three Strikes clinic, but I think their chances of prevailing may have improved.
And third: The passage of Prop 47 doesn’t mean that people have become more humane or care more about offenders. The proposition was a classic humonetarian move, appealing to people’s financial prudence, and it was supported by folks of all political stripes, including Newt Gingrich. I only regret that the proofs for Cheap on Crime are already set, otherwise I could add a few hefty paragraphs about this campaign. It’s right out of the Cheap on Crime playbook.
Other than that: Prop 46 did not pass; it was a mixed bag of arguably good things and litigation-hungry things, and I’m not quite sure whether to celebrate or mourn its defeat.
And finally:
Dear Governor Brown, I congratulate you for earning a second term. As California limits governors to two terms, this is your opportunity to take the prison crisis seriously without worrying about reelection statistics. This is an opportunity to reform felon voting laws, to abolish the death penalty (which I know you think is ridiculous and expensive) and to make good things happen for formerly incarcerated people in their communities. This is an opportunity to outlaw Pay to Stay and to abolish long-term solitary confinement in California. Please, take this opportunity and let’s make history. Don’t let a serious financial crisis go to waste.
After a bit of a hiatus, CCC is coming back with some election endorsements for Californians. In this endorsement list, I point out only issues that are particular to crime, law enforcement, and corrections; of course, your vote may be influenced by other matters as well.
State Measures
Yes on 47
Prop 47 would reduce sentencing. According to Ballotpedia, which faithfully summarizes the proposition’s text, if it were to pass, it would:
Mandate misdemeanors instead of felonies for “non-serious, nonviolent crimes,” unless the defendant has prior convictions for murder, rape, certain sex offenses or certain gun crimes. A list of crimes that would be affected by the penalty reduction are listed below.
Permit re-sentencing for anyone currently serving a prison sentence for any of the offenses that the initiative reduces to misdemeanors. About 10,000 inmates would be eligible for resentencing, according to Lenore Anderson of Californians for Safety and Justice.
Require a “thorough review” of criminal history and risk assessment of any individuals before re-sentencing to ensure that they do not pose a risk to the public.
Create a Safe Neighborhoods and Schools Fund. The fund would receive appropriations based on savings accrued by the state during the fiscal year, as compared to the previous fiscal year, due to the initiative’s implementation. Estimates range from $150 million to $250 million per year.
Distribute funds from the Safe Neighborhoods and Schools Fund as follows: 25 percent to the Department of Education, 10 percent to the Victim Compensation and Government Claims Board and 65 percent to the Board of State and Community Correction.
Right now, there is about 60% support for Prop 47. As the Chronicle observes, it seems to be stirring little controversy, and for good reason: it makes sense. You’ll note that this is a classic humonetarian proposal–let’s not throw low-risk people in prison who shouldn’t really be there in the first place, and we’ll save millions doing so. The money is going to a fund that invests in education, victim compensation, and various therapeutic projects. The arguments against it can be easily dispensed with: it won’t “release dangerous people”, because it takes risk into account. It is supported, in grand Cheap on Crime fashion, by people from the left and the right alike, and by victims of crime, who would rather see energy spent on violent offenders. By all means, go ahead and vote YES on 47.
U.S. House
House Representative: Jackie Speier
Speier is one of my favorite politicians. Her work to prevent sexual assault in the military and on university campuses is admirable, as is her sensible approach to databases that would enable tracking down gun ownership. I should say, however, that if you’re a Republican on other maters, you could do far worse than Robin Chew, who would work to reverse climate change and who believes in sensible regulatory reform.
California Supreme Court
Of the three Justices up for retention, I want to mention and support Goodwin Liu, with whom I’ve had a chance to exchange views on criminal justice matters, and who is a sensible and careful interpreter of the CA constitution.
State Executives
Governor: No Endorsement
The race is between incumbent Jerry Brown and libertarian Republican Neel Kashkari. Kashkari has no platform at all on public safety, criminal justice, or corrections, which is truly astonishing given the amount of time the Brown administration spent on these matters, and his focus on “jobs and education” doesn’t seem to include the close connections between these topics and corrections. Obviously, we can’t recommend him. On the other hand, Jerry Brown has maintained that the correctional problem in California has been solved, has fought the Plata order tooth and nail to the point of almost contempt of court, and has practically extorted federal judges into giving him two more years for depopulation under threat of heavy privatizing. Between a bad track record on corrections and no interest in the topic at all, I think it’s a toss-up.
California Attorney General: Kamala Harris, with Reservations
Having recently heard, with a heavy heart, about Harris’ intent to appeal Jones v. Chappell for reasons that don’t make any sense to me, and watched, with concern, her battle against truancy stigmatize kids and parents along the way, this one is not a no-brainer for me. The correlation between truancy and crime does not necessarily imply causation, and the cause of both–poverty and social neglect–is the one that should be addressed. This campaign is failing to excite voters, but I think it’s for the opposite reasons to those the Gold campaign assumes. We’re disappointed because we want Harris to be smarter on crime, not because we want Gold to be tough on crime. Gold supports legalization of recreational marijuana, but he is inexperienced and does not have thought-out policies on all the issues we are addressing. For what it’s worth, he urged Harris to appeal Jones v. Chappell, so death penalty issues are a toss-up. There doesn’t seem to be much of a platform for rehabilitation, though Harris can cite her collaboration with the Public Defender’s office on Operation Clean Slate.
California Secretary of State: No Endorsement
With Leland Yee, who despite his alleged involvement in corrupted dealings was a big champion for juvenile delinquents in the State Assembly, out of the race, we’re left with a choice between Alex Padilla and Pete Peterson. No one has asked them the important question–do they interpret the CA constitution as Debra Bowen did, to exclude Realigned felons doing time in jails as ineligible to vote? While both candidates speak about the need to improve civics education, Padilla seems to be more interested in actually reaching out to people to expand the vote, but Peterson has some good suggestions for increasing the vote via early voting and other options of convenience.
State Legislature: Notable Issues
Tom Ammiano is not running for reelection, and we thank him for his consistently incredible, sensible, and humane service to folks without voices and voting rights, including the thousands of people on solitary confinement. Neither in Nancy Skinner, who was an important voice for eliminating long-term solitary confinement. In District 17 (San Francisco) you’ll have to pick between David Chiu and David Campos. People I respect support each of these candidates for good reasons. I’m leaning toward an endorsement of Campos, because of his important anti-gang work, but am open to hearing more.
***
If all you remember from this post is to vote YES on 47, I’ve done my job.
A new report by Californians for Safety and Justice and the Local Safety Solutions Project announces good news: pretty much all California counties are committed to enrolling their criminal justice populations in health care, and 70% of counties are actively doing so.
Where does the funding for this welcome activity come from?
This is excellent news. As we know, many formerly incarcerated people don’t necessarily have the resources or know-how to deal with the intricacies of Obamacare and are walking out of jail systems whose health care services are sometimes truly deficient. This guarantees that, as people return to life on the outside, they’ll be covered and protected.
As we speak, the California Assembly is voting on SB 1010, which, if passed, will eliminate the sentencing disparities between powder and crack cocaine in California. The rest of the agenda is here and you’ll be able to watch this historical vote live here.
In the last few days, we’ve made a huge effort to circulate a petition to Governor Brown and Attorney General Harris, asking them not to appeal District Court Judge Carney’s decision that the death penalty in California is unconstitutional. We’ve just hit 500 signatures, and I’ve sent the petition to the Governor and the AG. Thank you for your support, signing, and sharing!
What happens next?
Our elected officials decide whether they want to pursue an appeal to the Ninth Circuit.
What if California appeals the decision?
Then, we’ll have to take our chances with the Ninth Circuit. The hope is that we’ll draw a favorable panel, who will affirm Judge Carney’s decision. It’s possible, albeit not very probable. Regardless of the result, a further appeal to the Supreme Court is unlikely to yield a good result for abolitionists.
The best of all worlds would be a decision from the Ninth Circuit affirming the death penalty’s unconstitutionality, and THEN a commitment from the Attorney General that she would not appeal the decision. If that is the case, the decision will apply to all of CA, and would basically mean that the death penalty has been abolished. But for that to happen we have to be lucky twice: the Ninth Circuit has to go our way and the AG has to decide not to appeal that decision. That’s quite a gamble.
What if our elected officials hear our plea and do not appeal the decision?
In that case, we’re left with a great, favorable decision, but by a District Court, which means it doesn’t create immediate effect in all of California. But we also gain an important political advantage: we have a great decision, that became final, AND the political gravitas of the AG’s support for the result. That, then, allows us to consider political pressure on the Governor’s office to commute current capital sentences, which do not conform to constitutional standards, as well as a valuable weapon against various proposals to “fix” the death penalty.
What are the odds that there will be an appeal?
Hard to tell. As you may recall, last time the State did not defend its laws in federal court was in the context of Prop 8, and the initiators of the proposition were ruled by the Supreme Court not to have standing. What this means is that if the AG does not want to defend CA’s death penalty, no one else can do so in her stead.
There is, however, a difference: Prop 8 was a voter initiative, and so the AG could more easily disengage from it by not appealing. Even though the AG is, personally, an opponent of the death penalty, she may think that solid administrative principles require seeing this thing to its end. And maybe she, too, is hoping that if she appeals the decision, the Ninth Circuit will rise to the occasion and decide the case for abolition.
In other words, your guess is as good as mine.
What can we do now?
Keep talking about this with friends of all political persuasions. Talk about the botched execution in Arizona; talk about the immense toll that incarcerating these folks and tending to their litigation effort is taking on the CA budget (to the tune of $150 million annually.) Talk about how we can see abolition in our lifetime, if we run with this ruling and make the most of this opportunity to drag our penal system to the 21st century.
“You know those ducks in that lagoon right near Central Park South? That little lake? By any chance, do you happen to know where they go, the ducks, when it gets all frozen over? Do you happen to know, by any chance?”
–Holden Caulfield, in J.D. Salinger, Catcher in the Rye
When I teach 1L criminal law, my preference is to focus not on the sensational cases of serious crime, but on the everyday workings of the system: drugs, property, and various quality of life offenses. As it turns out, teaching the principle of legality, vagueness, and other important basic tenets of criminal legislation becomes apropos and important when using the example of anti-homelessness legislation of various stripes. Many criminal law casebooks include Chicago’s ban on loitering and Chicago v. Morales. I like creating a timeline of legislation, showing how cities have consistently tried (and sometimes failed) to find ways to target the poor and get them off the streets. Sit/Lie ordinances are a classic example, as is the latest bout of litigation about this, which involved ordinances that prohibit one from sleeping or living in his or her vehicle.
In Desertrain v. City of Los Angeles, decided a few days ago, the Ninth Circuit tackled a municipal ordinance prohibiting the use of a vehicle “as living quarters either overnight, day-by-day, or otherwise.” The ordinance itself is not new, but it became a convenient enforcement vehicle (pun intended) after an angry “town hall on homelessness” in 2010. As a result of the aggressive enforcement efforts, several folks down on their luck (read: petitioners) tried to craft their behavior to comply with the ordinance as best they understood it: one of them, thinking the ordinance probably applies only to public streets, slept in his car in a church parking lot. Another, in an effort to comply, slept in the street, but kept some items, such as his sleeping bag. Another petitioner, left without work after a head injury, slept in her RV parked in her church. And another one was cited despite not sleeping in his van, just because he stored many items in it.
The officers enforcing the law were not given much instruction. In a memo from 2008 cited in the decision, officers were instructed that “report must describe in detail observations . . . that establish one of the following — (i) overnight occupancy for more than one night or (ii) day-by-day occupancy of three or more days.” In another memo, from 2010, officers were told to “adhere to the ‘Four C’s’ philosophy: Commander’s Intent, Constitutional Policing, Community Perspective, and Compassion,” with no further details.
The Ninth circuit found the ordinance unconstitutionally vague, because its articulation left people in serious doubt as to what behavior constitutes “living” in a vehicle. “Is it impermissible to eat food in a vehicle? Is it illegal to keep a sleeping bag? Canned food? Books? What about speaking on a cell phone? Or staying in the car to get out of the rain?” But, of course, as the court knows, middle-class folks talking on their cellphone in the car would not be targeted; the court explicitly says that the law lends itself to arbitrary enforcement and criminalization of the poor.
There are some pretty interesting things going on here. First, what is the relationship between vagueness and the potential for arbitrary enforcement? Yes, miscellaneous so-called quality of life offenses tend to be enforced disproportionately (exclusively!) against the poor. But don’t we disproportionally target the poor in enforcing drug offenses, prostitution offenses, property offenses, and even some types of violent offenses? It seems that anti-homelessness bills in all their iterations seem unique to the court, and I think it might be because they are all rather clumsy ways to get around the challenges of prohibiting status rather than criminal behavior. Loitering, sitting on a sidewalk, and sleeping in your car are all things you do when you have nowhere else to go. There seems to be some sort of status/behavior continuum, by which being addicted to drugs is a status one can’t help, but being drunk in public is a legitimate offense (even if you have nowhere else to go. Homeless? Don’t drink.) Living in your car is vague, but sitting or lying on the sidewalk between certain hours is behavior you can presumably control and therefore a legitimate target of law enforcement. While we can dispute some of these distinctions (I know I do), you could at least make a half-decent argument that there’s a free will element, flimsy as it is, that needs to be there to distinguish between a legitimate behavior prohibition and illegitimate prohibition of status.
But there’s something else that seems to be going on, and that’s a balance of NIMBYism and individual rights. The Ninth Circuit’s Judge Kozinsky, who thought that sit-lie ordinances were fine and peachy, describes the motivation of the City of Seattle right at the beginning of his decision: “Seeing the wisdom of preserving the sidewalk as an area for walking along the side of the road,” he says, “the City of Seattle passed an ordinance generally prohibiting people from sitting or lying on public sidewalks in certain commercial areas between seven in the morning and nine in the evening.” Ostensibly, this is about legislative accuracy – hours defined, places clearly defined, all of which makes the behavior presumably easy to avoid. But the undercurrent is also that a city is right to clear its sidewalks for some of its residents by prohibiting others from blocking the way by sitting on them.
Which begs the question, how are people sleeping in their car a problem? True, the Los Angeles city ordinance, as it is, is vague. But what if the ordinance, in lieu of prohibiting “using a vehicle as living quarters”, prohibited “spending the night, between midnight and 5am, inside one’s functioning vehicle, no matter where it is parked, for three consecutive days”? That’s not all that vague, is it? And yet, we all have a nagging feeling that, despite the clearer articulation of prohibited behavior, some people are going to get arrested and some aren’t.
The real question beneath the surface is, why does it matter to the city whether someone down on his or her luck sleeps in their car? Presumably, if someone sleeps in her car, she doesn’t get cold and sick; she’s not drunk in the street; and she’s not otherwise causing mischief or taxing our already scant welfare dollars. The response has got to be some sort of NIMBYist aesthetic distaste, which Judge Kozinsky’s decision in Roulette glosses over but never addresses directly. What the architects of this ordinance would really want is for the homeless population to disappear. But because these are real people, they’re not going to just vanish like Holden Caulfield’s ducks in Central Park. They still have to sleep and eat, and they’re going to have to find ways to do it, and going one by one to eliminate these modes of survival, vague or not, arbitrary or not, is cruel and inhumane.
As a brief coda, this case didn’t raise any Fourth Amendment issues, but it has always fascinated me how the Fourth Amendment makes both homes and cars into special places with special rules, in opposite ways: homes receive extra protection and cars receive explicitly less protection. Presumably, the consitution protects “people, not places”, but what with the return to tresspass theory in Jones, It seems to me that the economic downturn calls for a more sensitive conceptualization of the car and its role in people’s lives. What with the scholarly attention to the American cult of homeownership (see here, here, here, and here) we forget that we also have a fairly robust car culture, which impacts urban planning and even globalization. The centrality of the car to one’s lifestyle is as American as apple pie. Maybe the downturn has created an important permutation in the cultural role of vehicles, meriting them more constitutional protection than would be justified by a narrow conception of them as vehicles.
Yesterday, SB 1010 passed in the California Senate, and it is on its way to the Assembly. The purpose of the bill is to eliminate all disparity between the sentences for possession with intent to sell of crack and powder cocaine, by reducing the sentence for the former from 3, 4, or 5 years, to 2, 3, or 4 years. It also eliminates the differences in quantities (a 1:2 ratio in California) between the two drugs for a variety of manufacturing offenses and mandatory prison sentences.
For those unfamiliar with California sentencing, we do not have a sentencing commission. Our sentences are meted out by the legislature, and felony sentencing follows a “triad” of offenses. After Cunningham v. California (part of the Apprendi line of cases), the judge can pick any of the three sentences (but nothing above, below, or in between).
The passage of SB 1010 is a reminder of how much the zeitgeist has changed. Four District Attorneys–in Los Angeles, Santa Barbara, Santa Clara, and San Francisco–are supporting the proposition. In a few short years, the crack/cocaine disparity has lost favor fairly dramatically.
That the disparity is proxy for racial discrimination is now a commonly held perspective (see here and here), but it is not a wall-to-wall consensus. There are still commentators who believe that the addictive power per molecule justifies a disparity, and others who attribute the rise in urban crime in the 1990s to the crack epidemic. As many readers know, the Obama administration reduced the federal disparity from 100:1 to 18:1. With public climate about crack sentencing considerably altered since the 1990s, I think we can expect SB 1010 to pass in the Assembly in August and reach Governor Brown’s desk soon.
The last few months in Federal sentencing have been rather monumental, at least in rhetorical terms. In 2010, as readers may recall, Congress enacted the Fair Sentencing Act, famous particularly for the diminished crack/powder cocaine sentence disparity. And just recently, the Department of Justice announces a clemency initiative that could have far-reaching consequences.
Last December, President Obama took steps toward addressing this situation by granting commutations to eight men and women who had each served more than 15 years in prison for crack cocaine offenses. For two of these individuals, it was the first conviction they’d ever received – yet, due to mandatory guidelines that were considered severe at the time, and are out of date today – they and four others had received life sentences. Since that time, the President has indicated that he wants to be able to consider additional, similar applications for commutation of sentence, to restore a degree of fairness and proportionality for deserving individuals. The Justice Department is committed to responding to the President’s directive by finding additional candidates who are similarly situated to those granted clemency last year, and recommending qualified applicants for reduced sentences. We are launching this clemency initiative in order to quickly and effectively identify appropriate candidates, candidates who have a clean prison record, do not present a threat to public safety, and were sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate. While those sentenced prior to the Fair Sentencing Act may be the most obvious candidates, this initiative is not limited to crack offenders. Rather, the initiative is open to candidates who meet six criteria: they must be (1) inmates who are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today; (2) are non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; (3) have served at least 10 years of their sentence; (4) do not have a significant criminal history; (5) have demonstrated good conduct in prison; and (6) have no history of violence prior to or during their current term of imprisonment.
“With this initiative, the president is making better use of his clemency powers to reduce our exploding prison population,” added Inimai Chettiar, director of the Brennan Center’s Justice Program. “This is an excellent use of executive power by the president. Additional opportunities to use clemency to reduce mass incarceration exist. Specifically, in addition to these important steps forward, the Justice Department should work to identify and seek out the estimated 5,000 Americans who languish in federal prison because they were sentenced before the 2010 Fair Sentencing Act reduced the unjust sentencing disparity between crack and powder cocaine crimes. It should then solicit, review, and expedite clemency applications from these prisoners, instead of waiting for them to identify themselves.”
We can’t help but agree, and add another comment about the difference between executive clemency and other ways of ending the war on drugs: Providing a legal solution that would be retroactive would be incredibly tricky. Many of the cases of people who might receive clemency under this new order are already final, in the sense that all direct appeals of them have been exhausted (or not pursued.) Reopening cases that are final can only occur under very, very rare circumstances. It is exactly in these sort of situations that clemency is a better solution than a necessity for the legal apparatus to admit its defeat and lose legitimacy.
