Assemblyman Ammiano Arrives in Pelican Bay

Image courtesy www.examiner.com.

Assemblyman Tom Ammiano, whose efforts to reform the criminal justice system are well known to frequent readers of this blog, is paying a visit to Pelican Bay. The Examiner reports:

After more than two months delay, Assemblyman Tom Ammiano (D-SF), Chair of the Assembly Committee on Public Safety, arrives today at one of California’s Maximum Security correctional facilities to see for himself the progress the State’s prison system is making to address concerns of judges and reform advocates for the care of incarcerated Californians.

Earlier this year Ammiano likened California’s 33 prisons to “Gladiator Academies,” where Californians incarcerated for homelessness, victimless crimes like drug possession and those with mental illness must choose between “being victimized or victimizing others.”

. . . 

Perhaps surprisingly, Ammiano’s visit is welcomed by CDCR. “When I heard about his plans my first thought was, ‘What took him so long,’” CDCR spokeswoman Terry Thornton told California Progress Report. “I wish more legislators would visit our prison system.” 

Thornton admits the prison system has made mistakes, many of which were thrust upon it as the legislature cut from its budget money earmarked for re-entry programs like education, vocation-training, drug rehabilitation and counseling and mental health services – cuts that have led to California’s notoriously high recidivism rate. 

“Look, if you’re going to cut social services, education and healthcare for senior citizens – even my own salary was cut, as were the salaries of most state employees, and that really hurt, believe me – why wouldn’t the CDCR experience cuts to [programs geared toward the successful return of parolees to society], asked Thornton. “But things have turned around, funding has been restored, and our recidivism rate is down.”

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Props to Caitlin Henry for the link.

New Homelessness Decriminalization Bill

AB 5, a new Assembly bill by Tom Ammiano, aims at decriminalizing homelessness. Titled The Homeless Person’s Bill of Rights and Fairness Act, the bill aims at providing legal representation against quality of life offenses, access to social services, and the right to rest in public spaces and in their cars around the clock.

The California Progress Report sees this bill as a prison reform bill as much as a civil rights issue.

When stripped of the rhetoric, it seems that Ammiano is trying to override municipal sit/lie ordinances, whose impact on the homeless population has been heavily protested against both in cities in which they passed (like San Francisco) and where they failed (like Berkeley in the last election.)

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Props to Eric Chase for the link.

Elections 2012: Government is Local

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

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

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

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

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

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

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

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

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

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

BREAKING NEWS: Prop 34 Leading in Polls

The Chron reports:

A ballot measure to repeal California’s death penalty and replace it with life in prison without parole has gained support in the last week and leads by 45 to 38 percent among likely voters in the final Field Poll before Tuesday’s election. 

The poll, conducted Oct. 25-30, was the first to show a lead for Proposition 34, which had trailed 42 to 45 percent in the last survey in mid-September. Polling also found that a majority agreed with one of Prop. 34’s major premises – that the death penalty is more expensive than life without parole – and a plurality said innocent people are executed “too often.” 

Some other recent statewide polls have reported Prop. 34 trailing by as much as seven percentage points. But Field Poll director Mark DiCamillo said his organization’s new survey was more up-to-date and found that the measure’s margin of support had widened by six percentage points in a single week. 

Next week, vote with the majority of Americans for justice that works. Yes on 34. No on 35. Yes on 36.

CCC Endorsements 2012: YES on 34. NO on 35. YES on 36.

In two weeks, California voters will be offered the opportunity to vote on three criminal justice initiatives: Prop 34, which would replace the death penalty with life without parole; Prop 35, which would increase penalties for sex trafficking, make evidentiary changes, and further burden registration requirements for sex offenders; and Prop 36, which proposes a small but significant revision to the Three Strikes Law. There has been much talk about each of these individual propositions. In this short piece, I examine them together and show how they represent two different strands of thinking about criminal justice: New ideas of parsimony and effectiveness through Props 34 and 36, and old-school punitivism packaged as victims’ rights, via Prop 35.
Proposition 34 has received the most media attention of the three, and with good reason. What is interesting about it is not only the historical opportunity to do away with the death penalty, but also the new justifications and realpolitikbacking up the campaign. Voters are encouraged to look beyond their ideological and philosophical opinions about the death penalty, and instead consider the way the death penalty is actually applied in California. The data, and the Legislative Analyst’s Office fiscal report, paint a disturbing picture. Since renewing executions in the 1970s, the state has executed merely 13 inmates. During that same time, 84 death row inmates died of natural causes. The paucity of executions stems from extensive (and expensive) litigation on behalf of the inmates, which is financed by the state, and is increasingly focused on chemical availability and injection techniques. The result is that the death penalty, in reality, has become no more than life without parole, under special conditions (housing 725 inmates in single, rather than double, cells, with extensive security measures), accompanied by decades of incessant litigation and health care expenses, with or without an execution at the end, the elimination of which will save the state a hundred million dollars in the first year alone according to the Legislative Analyst’s office analysis. Under these circumstances, philosophical differences about the state’s right to kill, the meaning of retribution, and the importance of closure for victims, become irrelevant. Some might think that the right thing would be to fix the death penalty, rather than eliminate it, but no proposition along the former lines is realistically forthcoming, and therefore many former (and current) supporters of the death penalty, including victims’ rights advocates, law enforcement officials, and original proponents of the California death penalty statute, have joined the Yes on 34 campaign.
Prop 36, which would reform the Three Strikes Law, is similar to Prop 34 in that it transcends ideological differences in penal politics to offer a practical, parsimonious fix, albeit a modest one in this case. Currently, the Three Strikes Law inflicts a double sentence on habitual offenders who commit a second violent or serious felony, and a twenty-five-years-to-life sentence upon commission of a third felony, even if the third felony is not violent or serious. The law also allows strikes to be imposed simultaneously, implying that the rationale behind its punitive regime is not deterrence, but rather incapacitation. Currently, California prisons house approximately 32,000 second strikes and 9,000 third strikers; an estimated half of the latter population is serving a twenty-five-years-to-life sentence for a third strike that was neither serious non violent. Beyond the consistently unfavorable media coverage of the injustices propagated on this population (including harsh sentences for thefts of items that cost less than ten dollars), Prop 36 raises serious fiscal issues. While third strikers are a small population, they serve lengthy sentences, which make them by definition expensive inmates. The state spends approximately 50,000 dollars per inmate per annum, and much of this amount is due to health care costs, which apply mostly to old and infirm inmates. The proposed reform to the law is fairly minor: Second strikers’ sentences will remain the same, as will the ability to obtain simultaneous strikes. The only reform would be eliminating the harsh sentence for non-serious, non-violent third strikes, making those a double sentence rather than twenty-five years to life.  Current non-violent third strikers would become eligible for resentencing. The Legislative Analyst’s office estimates annual savings that might exceed 100 million dollars.
As opposed to Props 34 and 36, Prop 35 is a classic example of old-school punitive thinking masquerading as a victims’ rights proposition. Marketed as supportive of sex trafficking victims to give it moral weight, the actual text does little, if anything, to help victims. Moreover, the proposition is a mixed bag of the sort of punitive propositions Californians have experienced (and voted on) for years: An increase in the already-considerable sentences of human traffickers, changes to the mens rea requirement for trafficking minors, nebulous criminalization of sex work, and a host of bizarre and unenforceable additions to the already-pervasive sex offender registration scheme (sex offenders would presumably have to report their email addresses and usernames, which cannot possibly be monitored or enforced in any way.) Beyond lip service to the idea of training police to respond well to victims, the proposition would not really improve the situation of victims of trafficking in any predictable way, and its backers and endorsers are counting on the morality hype to confuse voters into doing what seems morally right and vote yes. It would be a costly mistake, along the lines of the 2009 Marsy’s Law and countless other propositions of the same ilk.
The contrast between Props 34 and 36 on one hand and Prop 35 on the other is more than a juxtaposition of nonpunitive and punitive measures. It is a juxtaposition of a new way of thinking about criminal justice in an era of scarcity. Our paucity of resources requires a careful assessment of what actually works in criminal justice reforms, rather than bombastic expenditures on symbolic punitivism that do little to prevent crime or empower victims. It is not crude or crass to discuss money in this context. Our willingness to spend resources on the criminal justice resources is the clearest statement of our priorities as a society. Voting yes on 34 and 36 is sending a loud and clear message that the money spent on executions and unnecessarily lengthy incarcerations is better spent on education, health care, road maintenance, and—yes—improving police investigation.
This election offers you the opportunity to do away with old partisan thinking and reject the tried-and-untrue method of extreme punishment and ratcheted sentencing. Reverse the punitive pendulum and opt for justice that works, not punitive proclamations that promise and do not deliver. Vote yes on 34, no on 35, and yes on 36. 

No on 35

Over the course of the last few weeks, I’ve been asked, in professional and personal settings, to comment on Prop 35, billed as Stop Human Trafficking. I have given this a lot of thought, read the text as well as the Legislative Analyst’s Office take on the proposition, and have come to the conclusion that the right thing to do is to vote NO on 35. This is a punitive, unenforceable measure that masquerades as a victims’ rights proposition, which will do nothing beyond ratcheting up sentences, overenforce laws that already adequately cover the social problem they address, and criminalize behaviors that should not be criminalized.

Let me preface this analysis by saying: Voting NO on 35 does not mean you support human trafficking. It does not mean that the suffering of trafficking victims is not important to you. It does not make you a bad person and it does not make you side with the bad guys. The power of this proposition is by lumping a variety of punitive measures under a headline that carries a huge moral weight. Don’t fall for it.

Here’s what Proposition 35 does:

(1) It greatly enhances the already considerable prison sentences for human trafficking, which would be a very poor deterrent in a world of organized crime. Deterrence in this business is much more likely to be affected by certainty of apprehension. A much better policy would be to improve the quality of police investigations. Granted, the proposition includes provisions for police training on handling complaints, but until this is approached as high-level organized crime, there is little you can do by making the sentences more severe. And, you’re adding more old, sick people to the folks in state institutions whose dysfunctional health care we already finance.

(2) Not a whole lot for victims. The proposition purports to set a fund for victims of trafficking, but the funding source for this is the fines that would supposedly be collected from the people we can’t apprehend. Compare this to Prop 34, which sets up a fund to improve clearance rates for unsolved crime, but there the money comes from the savings that the proposition itself provides. Prop 35 is a money spender, not a money saver. I’m not optimistic about how this would improve victims’ condition at all.

(3) Creates some changes to evidentiary law. This one is really a toss-up. It strikes me that, if you’re prosecuting someone for trafficking in minors, there’s something fundamentally unfair about denying the defendant the defense of being unaware of the minor’s age (granted, you could impose a duty of inquiry.) But even if you think this makes sense – it would actually make the doctrine similar to the one behind statutory rape in various states – you can’t separate this from the bundle of other effects the bill will have, and you are not offered an opportunity to vote separately on this.

(4) Perhaps the worst effect of this: Bizarre, unenforceable additions to the already-cumbersome sex offender registration laws. This has precious little to do with human trafficking or victim protection and does nothing to make us safer, because if this passes, sex offenders will have to report their emails and usernames to authorities. Really? And how are we going to enforce that?

One last comment: Over the last couple of weeks, friends who advocate for sex workers’ unions have told me that virtually all sex worker rights organizations are very strongly opposed to Prop 35. My opposition to the proposition is not based on the same grounds. To be honest, I am undecided about wholesale legalization and regulation of prostitution. As opposed to various other so-called victimless crimes, such as the marijuana market, this industry operates under unique rules. Unionized, co-op sex workers are the tip of the iceberg, and I am much more concerned about the welfare of teenage boys and girls manipulated and coerced into this industry. Criminalizing sex work itself, as such, doesn’t strike me as a particularly great idea, but I think that any debate about pimping should be resolved against pimps. So, with apologies to the sex-positive activist grounds, I’m going to keep my objection to Prop 35 purely on the grounds of excessive, useless punitivism.

Prop 36 and the Gift of Fear

Current polls show Proposition 36, the initiative to amend the Three Strikes Law to require that the third strike be not just any felony but a serious or violent felony, leading by a significant majority. In a previous post, we provided an analysis of the proposition, concluding that it was a step in the right direction, though we would have liked to see more reforms (including some hope for second strikes and a consideration of the simultaneous strike problem.) Today I’m thinking about the minority of Californians who still oppose Prop 36 and pondering the sources of said opposition.

As my colleague and friend Josh Page argues in The Toughest Beat, the original Three Strikes Law was heavily promoted by the CCPOA–California’s prison guard union–and victim organizations puppeteered by the union. Spearheading the law were families of victims of heinous crimes perpetrated by habitual offenders on parole. The original idea behind the law was not to deter potential criminals from committing crime; if we allow simultaneous strikes to be counted in the same trial, we’re pretty much dismissing the deterrent effect. Rather, the idea was to incapacitate; namely, to identify risky individuals and put them behind bars for life.

A Legal Analyst’s Office analysis conducted in 2004 stated that only a third of the then-Three-Striker population had committed their third strike offense against a person. The remainder two thirds had committed a nonviolent third strike–a drug or a property offense. Moreover, less than half of the Three Strikers had committed an offense that could be considered serious or violent. However, as the report stated, while the third offenses were often not serious or violent (and sometimes, according to distressing news reports, rather petty), third strikers do have more serious criminal histories than other state inmates.

So, let’s look at this from a prism of risk. Does a serious or violent criminal history consisting of two prior offenses predict that more violent might be perpetrated in the future, even if the person’s third offense is actually not a violent one? The answer to that question is fairly complicated. Some criminal offenses are better predictors of risk than others.

I’ve recently read Gavin de Becker’s The Gift of Fear. De Becker is a private consultant, specializing in violence prediction. The book examines various scenarios of violence–death threats, stalking, abuse, violence wrought by fired employees, stranger violence–and strongly advocates that readers pay close attention to their own intuition in situations that feel instinctually wrong or dangerous. De Becker’s point is that, in any given situation, there are many clues that might help a potential victim predict a violent eruption. Some of these clues may be difficult to verbalize, as the potential victim might only notice them briefly, but our intuition works faster than our logic; therefore, the gut feeling in itself, without the verbal articulation of the grounds for danger, is important.

De Becker’s message is well taken in the context of individuals and immediate violence. He is combating many years of socialization that implore us, especially women, to be “nice” and kind to strangers even when we feel something is awry, and the good will that might lead us to discount our instincts as stereotypes which must not be heeded. Being wise, rather than nice, could save our lives, which I think is an important message.

But it would be a big mistake to confound de Becker’s message with a message to vote no on 36 because our instinct tells us that people with two prior violent offenses are dangerous, and here’s why. First, there’s a big difference between predicting imminent violence at the interpersonal, immediate level, and predicting it at the policymaking level as an uncertainty that might occur sometime in the future. For the latter task, one has the luxury of employing statistical predictions that a layperson cannot access in a given situation. Also, assessing a particular situation based on its context is an entirely different task than trying to predict violence without any reference to time, place, and circumstances. The factors that come into play in the latter situation will necessarily be generalized and based on many years of statistical prediction – which is why most parole boards have come to rely on statistical software, rather than on individualized clinical predictions.

Second, it’s important to keep in mind that risk prevention in general only goes one way. Sure, if we lock up all convicts with a criminal history indefinitely we might end up safer; we eliminate the risk of false positives; our pity or compassion would be neutralized and we’d make no predictive mistakes. But what about all the people whom we may be locking up needlessly? And what about first-time offenders, for whom we have no such predictors?

And third, violence prevention is only one factor in designing penal policy. The third strikers we incarcerate for twenty-five years to life have already been punished for their two prior offenses. Retribution and proportionality are also important from a justice standpoint, as is the prospect of hope for release.

Which is why I wholeheartedly recommend The Gift of Fear – and voting YES on 36 – and do not see these messages as contradictory at all.

Death Row Inmates Oppose Prop 34… But You Should Support It

This morning’s fascinating story on the Chron brings us unexpected commentary about Prop 34: The voices of death row inmates themselves. And, as Bob Egelko tells us, they oppose the proposition.

Counterintuitive? Not really. Here goes:

It’s not that they want to die, attorney Robert Bryan said. They just want to hang on to the possibility of proving that they’re innocent, or at least that they were wrongly convicted. That would require state funding for lawyers and investigators – funding that Proposition 34 would eliminate for many Death Row inmates after the first round of appeals. 

Bryan has represented several condemned prisoners in California as well as Mumia Abu-Jamal, the radical activist and commentator whose death sentence for the murder of a Philadelphia policeman was recently reduced to life in prison. The attorney said California inmates have told him they’d prefer the current law, with its prospect of lethal injection, to one that would reduce their appellate rights. 

“Many of them say, ‘I’d rather gamble and have the death penalty dangling there but be able to fight to right a wrong,’ ” Bryan said. 

 . . . 

Attorney Natasha Minsker, the Yes on 34 campaign manager, said the initiative would place now-condemned inmates “in the same position as every prisoner convicted of a serious felony in California,” with the same right to go to court. 

They would no longer automatically get state-funded lawyers for habeas corpus claims, Minsker said. The main purpose of those lawyers now is “to save a person’s life” from a wrongful execution, but that task would disappear if Prop. 34 passed, she said. 

No one has polled Death Row inmates on Prop. 34. But an organization called the Campaign to End the Death Penalty sent letters to 220 condemned prisoners in California and received about 50 replies, all but three of them against the ballot measure, said Lily Mae Hughes, the group’s director. 

A few thoughts on this:

1. If anything, death row inmates’ opposition to the proposition strengthens the position of those who support it for reasons of financial prudence. What the inmates want is the hope of receiving quality litigation, which is exactly the expensive good that proposition backers, particularly those of the libertarian persuasion, seek to eliminate.

2. Wouldn’t the world be a better place if we worried about EVERYONE’s innocence, not just that of capital inmates? I imagine after Prop 34 passes we will have to retool habeas resources in a serious way to improve litigation on behalf of lifers. And the next frontier is life without parole.

3. My pal Billy Minshall and I exchanged thoughts on this, and he speculated that, had anyone polled recently freed slaves in 1863 about abolition, we might have been surprised at the outcome. It’s very difficult to imagine a more fair world when you’ve been making the most out of a horrifyingly unjust reality.

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Props to David Takacs and Billy Minshall for alerting me to this first thing in the morning. Cross-posted to PrawfsBlawg.

Newt Gingrich and Pat Nolan Publicly Endorse SB9

Wow! Talk about narrow coalitions! First we get Pat Robertson’s enthusiastic support of marijuana legalization, and now this: Newt Gingrich and Pat Nolan offering support for Senate Bill 9, which would allow for resentencing youth who have been sentenced to life imprisonment without parole. Their op-ed in the U-T San Diego explains:

You might expect that these LWOP sentences are limited to the “worst of the worst,” but that is not the case. A young teen can be a bit player in a crime, e.g., act as a lookout while his buddies go in to steal beer from a convenience store. None of them is armed, and there is no plan for violence. Then it all goes haywire. The clerk pulls a gun, and one of the kids tries to grab it away. In the struggle that ensues, the gun goes off and the clerk dies. 

Under California’s “felony murder” rule, every person involved in that crime, no matter how minor their role, is equally guilty of murder, even if they did not plan or expect a murder to occur. According to the fiction of our law, the lookout is as much to blame as the person who pulled the trigger. About 45 percent of the inmates serving LWOP for a teenage crime were not the person who caused the death. Yet they will die in prison of old age, with no chance for release. 

But should these youngsters die in prison for something they did when they were so young? Wouldn’t it be better to re-evaluate them after serving a long stretch in prison and consider whether they have matured and improved themselves? 

We are conservative Republicans, and we believe that some people are so dangerous that we must separate them from our communities. That is what prisons are for. But sometimes we overuse our institutions. California’s teen LWOP is an overuse of incarceration. It denies the reality that young people often change for the better. And it denies hope to those sentenced under it.

This op-ed joins a long stream of previous statements from conservative politicians who express a willingness to deviate from the traditionally tough-on-crime stance on the right. And notably, while there is a savings strand here, there is also text about compassion and humaneness. Good stuff.

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Cross-posted to PrawfsBlawg.

Should Inmates’ First Amendment Speech Allow for Media Interviews?

An interesting bill lies on Governor Brown’s desk, awaiting his signature: AB 1270 would allow, and set procedures for, media interviews with prisoners.

The bill, sponsored by Assemblymember Tom Ammiano, would dramatically change the parameters of free speech in prison.

Under the new bill, CDCR would be required to allow interviews with inmates on a pre-arranged and on a random basis, unless the warden determines that the interview “poses an immediate threat to public safety or the security of the institution.” The interview request should be presented within a reasonable time, and the interview itself requires the inmate’s consent, as well as a notification to the victim or his/her family ahead of time. The inmate is not to receive any form of remuneration for participating in the interview, and CDCR is not to change an inmate’s status or punish him or her for giving an interview.

Currently, media interviews in CDCR prisons with specific inmates are not allowed (visiting prison and speaking to inmates at random is allowed under certain conditions.). The Supreme Court’s decision in Pell v. Procunier (1974) upheld this regime, arguing that the existing provisions for media contact meant that there was no First Amendment violation.

Let’s think about a few potential applications of this. One of the concern folks might have is about sensational interviews providing wanton publicity for perpetrators of heinous crimes. Notifying the victim’s family is not, of course, procuring the victim’s family’s consent. And yes, it would mean more air time for tasteless, heinous and sensationalist media coverage. But how would that be different from the tasteless, heinous, sensational television we already watch?

Think about how much good it could do an innocent inmate if reporters would pick up the cause and pursue it, and how helpful it would be if, in addition to other footage, they could speak to the inmate him/herself. It’s enough to be reminded of the stunning impact that Paradise Lost, Paradise Lost 2: Revelations, and Paradise Lost 3: Purgatory have had on the West Memphis Three case (here’s a great interview with the filmmakers).

And think of how much more attention the Pelican Bay hunger strike would have received if the public got its news not just from CDCR officials, and some crumbs from what families got through letters. But under the new proposition, it’s likely that CDCR would still have the prerogative to decline the interviews based on institutional safety reasons.

If you support the bill, you can let the Governor know your position.

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cross-posted to PrawfsBlawg.