Obama backing off strict crime policy

[Re-posted from POLITICO because: can you imagine replacing “Obama” with “Schwarzenegger” in this article? Nope, me neither, but it feels good to think about it…]

Obama backing off strict crime policy
by Josh Gerstein

http://www.politico.com/news/stories/0910/42004.html

For years, it was one of the GOP’s most potent political epithets — labeling a Democrat “soft on crime.”

But the Obama White House has taken the first steps in decades to move away from a strict lock-‘em-up mentality on crime — easing sentences for crack cocaine possession, launching a top-to-bottom review of sentencing policies and even sounding open to reviewing guidelines that call for lengthy prison terms for people convicted of child pornography offenses.

The moves — still tentative, to be sure — suggest that President Barack Obama’s aides are betting that the issue has lost some of its punch with voters more worried about terrorism and recession. In one measure of the new political climate surrounding the issue, the Obama administration actually felt free to boast that the new crack-sentencing bill would go easier on some drug criminals.

“The Fair Sentencing Act marks the first time in 40 years that Congress has reduced a mandatory minimum sentence,” said White House drug czar Gil Kerlikowske, who billed the new legislation as “monumental.”

Obama’s signing of long-debated legislation last month to reduce the disparity between prison sentences for crack and powdered cocaine is being hailed by some advocates as a watershed moment in the nation’s approach to criminal justice.

And even with a tough election looming, the Democratic Congress is showing a willingness to consider moving away from incarceration and toward rehabilitation and out-of-prison punishments that might have been attacked in the 1990s as the coddling of criminals.

At the urging of a conservative Democrat, Sen. Jim Webb of Virginia , the House passed a bill in July to create a federal commission to study criminal sentences. The measure cleared the Senate Judiciary Committee earlier in the year with little resistance from Republicans.

“I think the political landscape around the issue is shifting and I think that will provide room for the administration to address some of these issues,” said Jennifer Bellamy of the American Civil Liberties Union.

Advocates point to several reasons for the shift toward a less-draconian approach to crime and for its retreat as a hot-button political issue. Crime rates are at some of the lowest levels in a generation. Stories of offenders who got decades behind bars for playing minor roles in drug operations have generated some sympathy in the public. Huge budget woes facing states and the federal government are raising doubts about policies that are causing prison populations and costs to go up.

In addition, Republicans who once accused Democrats of being soft on crime now accuse them of being soft on terrorists. As a result, tinkering with the way run-of-the-mill criminals are treated doesn’t seem to be the political third rail it once was.

Mary Price of Families Against Mandatory Minimums noted that the crack-disparity bill passed in Congress with remarkably little consternation. “I think other concerns have crowded out some of the hysteria around crime,” Price said.

“Republicans could have said, ‘If this passes, we’ll make this an issue in the midterms.’ Nobody said that,” Price observed. “This was not an issue for Republicans.”

While most of the Obama administration’s moves toward rolling back some of the harshest aspects of the war on crime have been tentative, some have been surprising. For instance, a little-noticed letter issued by the Justice Department in June urged a federal commission to review the sentencing guidelines for child pornography offenses — a review that many advocates say would almost certainly result in lowering the recommended sentences in such cases.

“They’re saying, essentially, that they want to level sentences in the middle, but necessarily, leveling in the middle is almost demanding that they bring the guidelines down,” said Doug Berman, a law professor at Ohio State University. “They’ve chosen language … saying we’re open to doing something that is not entirely tough.”

In another sign of the new climate, Attorney General Eric Holder announced a review of criminal sentencing policies soon after he came into office.

“Too much time has passed, too many people have been treated in a disparate manner and too many of our citizens have come to have doubts about our criminal justice system,” Holder said in June 2009. “We must be honest with each other and have the courage to ask difficult questions of ourselves and our system. We must break out of the old and tired partisan stances that have stood in the way of needed progress and reform. We have a moment in time that must be seized.”

The internal review endorsed lowering some crack sentences, something Obama had already promised to do, and publicly offered some vague suggestions on changes to mandatory minimums. Holder also issued a memo giving local federal prosecutors a bit more autonomy in charging decisions.

Another result of that review was a June letter that called for a new look at child porn sentences.

“The time is ripe for evaluating the current guidelines and considering whether reforms are warranted,” Jonathan Wroblewski, director of the Justice Department’s Office of Policy and Legislation, wrote to former judge and FBI director Bill Sessions, who heads the U.S. Sentencing Commission. “Consideration ought to be given to updating many aspects of the child pornography sentencing guidelines to better calibrate the severity and culpability of defendants’ criminal conduct with the applicable guideline sentencing ranges.”

Justice’s call for a review came as defense attorneys have been gaining traction with arguments that the guidelines and mandatory minimums set by Congress call for excessively long sentences. Some lawyers contend that defendants who briefly exchange child porn photos or video online can actually get longer sentences than those who seek to molest children.

The Justice Department has disputed those arguments in court, but federal judges have increasingly given sentences below the guidelines. An assistant federal public defender from Missouri , Troy Stabenow, said he thinks the department’s decision is basically a tactical move to stem the slide towards lower sentences.

“It’s just the logical thing they needed to do,” said Stabenow. He said the notion that any politician would wade into the subject on his own volition boggles the mind.

“I would think no sane politician who values being reelected would want to engage in this area,” Stabenow said. “I don’t think there’s any criminal group that yields a more visceral response than the child pornography group.”

A Justice Department spokeswoman stressed that the June letter didn’t endorse higher or lower sentences for child pornography.

“We asked the sentencing commission to comprehensively review and report on the state of federal sentencing and to explore whether systemic reforms are needed,” Justice spokeswoman Laura Sweeney said. “We also asked the commission to review the guidelines for child exploitation and fraud offenses, but did not recommend necessarily higher or lower penalties for either child exploitation [or] fraud offenses.”

One prominent advocate for long sentences in child pornography cases, Ernie Allen of the National Center for Missing and Exploited Children, said he welcomes a review of the guidelines and why judges are often giving lower sentences. However, he said he would oppose any overall reduction in the guidelines and does not think that’s what Justice officials want.

“If that is the implication, clearly, we would differ with that,” Allen said. “These are crime scene photos that re-victimize the child in the photo over and over again, [but] I think both of us recognize that the crime guidelines are dated.”

Despite the tentative moves in the direction of lessening some sentences, there remain numerous signs that Obama and his aides recognize that the issue could still be politically damaging.

When Obama signed the crack disparity bill, only still photographers were allowed in and the president issued no formal statement. The Justice Department’s sentencing review group has indicated it has no plan to issue a formal report that could become a political football. And, 18 months into his presidency, Obama has yet to issue a single commutation or even a pardon to an elderly ex-con seeking to clear his record.

Some advocates note that the crack sentencing bill was not particularly ambitious: it reduced the crack/powder disparity from 100-to-1 to 18-to-1. And it wasn’t retroactive, so some who were sentenced under mandatory minimum laws may not benefit.

Asked whether Obama might grant requests to commute the sentences of those who would have gotten less punishment if they committed their crimes today, an administration official said the crack-disparity bill “reflected Congress’s judgment that the law should not be retroactive, [and] the president believes that the Fair Sentencing Act will go a long way toward ensuring that our sentencing laws are tough, consistent and fair.”

The official also downplayed the notion that Obama might offer some kind of blanket clemency for earlier crack-cocaine offenders, saying that “as a general matter, the president agrees with the Department of Justice’s long-held view that commutation is an extraordinary remedy that should only be granted in extraordinary circumstances.”

But activists are watching Obama on the issue. “Retroactivity will be the next battle,” Price said. “It would be cruelly ironic for us to take lessons learned from those who are currently serving, change the law for people going forward and then say, ‘OK, the accident of the calendar you are condemned to serve much longer than people who, because of your experience, are getting out sooner.’”

In the heat of the presidential campaign, Obama sent mixed signals on crime. In the primary, he differed with Hillary Clinton by endorsing shortened sentences for some crack offenders already in jail. As the general election neared, he tacked to the right of the Supreme Court by criticizing the court’s 5-4 decision barring the use of the death penalty for child rapists who don’t kill their victims.

Berman said he thinks Obama and his aides can’t fully break with President Bill Clinton’s approach of trying to look as tough or even tougher than Republicans on crime.

“Obama wants to do something, I think, big on criminal justice and I think he’s absolutely afraid to,” Berman said. “Democrats are right to continue to fear tough-on-crime demagoguery. The lessons of Clinton continues to resonate. … This really is, inevitably, low-priority, high-risk kind of stuff.”

Obama also faces one factor Clinton did not: race. While 58 percent of federal inmates arewhite, Berman said some Americans are sure to have the perception that an African-American president is aiding criminals of his own race.

“Whether consciously or subconsciously, everyone understands that the first black president has to tread particularly cautiously in this area,” Berman said.

Economist: Rough Justice

We Americans look especially ridiculous from across the pond. California even gets a special international shout-out for just how expensive our prison system is…
The Economist, “Crime and Punishment in America: Rough Justice”
http://www.economist.com/node/16640389

America locks up too many people, some for acts that should not even be criminal

IN 2000 four Americans were charged with importing lobster tails in plastic bags rather than cardboard boxes, in violation of a Honduran regulation that Honduras no longer enforces. They had fallen foul of the Lacey Act, which bars Americans from breaking foreign rules when hunting or fishing. The original intent was to prevent Americans from, say, poaching elephants in Kenya. But it has been interpreted to mean that they must abide by every footling wildlife regulation on Earth. The lobstermen had no idea they were breaking the law. Yet three of them got eight years apiece. Two are still in jail.

America is different from the rest of the world in lots of ways, many of them good. One of the bad ones is its willingness to lock up its citizens (see our briefing). One American adult in 100 festers behind bars (with the rate rising to one in nine for young black men). Its imprisoned population, at 2.3m, exceeds that of 15 of its states. No other rich country is nearly as punitive as the Land of the Free. The rate of incarceration is a fifth of America’s level in Britain, a ninth in Germany and a twelfth in Japan.

Tougher than thou

Some parts of America have long taken a tough, frontier attitude to justice. That tendency sharpened around four decades ago as rising crime became an emotive political issue and voters took to backing politicians who promised to stamp on it. This created a ratchet effect: lawmakers who wish to sound tough must propose laws tougher than the ones that the last chap who wanted to sound tough proposed. When the crime rate falls, tough sentences are hailed as the cause, even when demography or other factors may matter more; when the rate rises tough sentences are demanded to solve the problem. As a result, America’s incarceration rate has quadrupled since 1970.

Similar things have happened elsewhere. The incarceration rate in Britain has more than doubled, and that in Japan increased by half, over the period. But the trend has been sharper in America than in most of the rich world, and the disparity has grown. It is explained neither by a difference in criminality (the English are slightly more criminal than Americans, though less murderous), nor by the success of the policy: America’s violent-crime rate is higher than it was 40 years ago.

Conservatives and liberals will always feud about the right level of punishment. Most Americans think that dangerous criminals, which statistically usually means young men, should go to prison for long periods of time, especially for violent offences. Even by that standard, the extreme toughness of American laws, especially the ever broader classes of “criminals” affected by them, seems increasingly counterproductive.

Many states have mandatory minimum sentences, which remove judges’ discretion to show mercy, even when the circumstances of a case cry out for it. “Three strikes” laws, which were at first used to put away persistently violent criminals for life, have in several states been applied to lesser offenders. The war on drugs has led to harsh sentences not just for dealing illegal drugs, but also for selling prescription drugs illegally. Peddling a handful can lead to a 15-year sentence.

Muddle plays a large role. America imprisons people for technical violations of immigration laws, environmental standards and arcane business rules. So many federal rules carry criminal penalties that experts struggle to count them. Many are incomprehensible. Few are ever repealed, though the Supreme Court recently pared back a law against depriving the public of “the intangible right of honest services”, which prosecutors loved because they could use it against almost anyone. Still, they have plenty of other weapons. By counting each e-mail sent by a white-collar wrongdoer as a separate case of wire fraud, prosecutors can threaten him with a gargantuan sentence unless he confesses, or informs on his boss. The potential for injustice is obvious.

As a result American prisons are now packed not only with thugs and rapists but also with petty thieves, small-time drug dealers and criminals who, though scary when they were young and strong, are now too grey and arthritic to pose a threat. Some 200,000 inmates are over 50—roughly as many as there were prisoners of all ages in 1970. Prison is an excellent way to keep dangerous criminals off the streets, but the more people you lock up, the less dangerous each extra prisoner is likely to be. And since prison is expensive—$50,000 per inmate per year in California—the cost of imprisoning criminals often far exceeds the benefits, in terms of crimes averted.


Less punishment, less crime

It does not have to be this way. In the Netherlands, where the use of non-custodial sentences has grown, the prison population and the crime rate have both been falling (see article). Britain’s new government is proposing to replace jail for lesser offenders with community work. Some parts of America are bucking the national trend. New York cut its incarceration rate by 15% between 1997 and 2007, while reducing violent crime by 40%. This is welcome, but deeper reforms are required.

America needs fewer and clearer laws, so that citizens do not need a law degree to stay out of jail. Acts that can be regulated should not be criminalised. Prosecutors’ powers should be clipped: most white-collar suspects are not Al Capone, and should not be treated as if they were. Mandatory minimum sentencing laws should be repealed, or replaced with guidelines. The most dangerous criminals must be locked up, but states could try harder to reintegrate the softer cases into society, by encouraging them to study or work and by ending the pointlessly vindictive gesture of not letting them vote.

It seems odd that a country that rejoices in limiting the power of the state should give so many draconian powers to its government, yet for the past 40 years American lawmakers have generally regarded selling to voters the idea of locking up fewer people as political suicide. An era of budgetary constraint, however, is as good a time as any to try. Sooner or later American voters will realise that their incarceration policies are unjust and inefficient; politicians who point that out to them now may, in the end, get some credit.

What has Arnold Done for Corrections?

Jennifer Steinhauer’s recent piece in the New York Times sees Arnold Schwarzenegger’s gubernatorial tenure as a compromise in the spirit of independence and bipartisanism, which eventually ended up pleasing no one. Among other aspects of his tenure, Steinhauer mentions that “The most interesting — though least sexy —of Mr. Schwarzenegger’s political and policy machinations has been in prison reform.” She goes on to provide the following analysis:

When he was first elected, the governor vowed to fix the state’s prison system, which was overcrowded and expensive to run, and saddled with a health system so poor it was put under federal receivership. The governor promised to void the contracts of the powerful correction officers’ union, reduce costs and emphasize rehabilitation programs. After battling with public employee unions for his first two years in office, he accomplished little.

But toward the end of his term, over fierce opposition by the guards’ union and the threat of a veto override by Republicans and Democrats, he pushed through a large prison building plan and two changes that reduced overcrowding: moving juveniles out of prison into local facilities and pulling some nonviolent offenders out of the churn of the parole system.

“For the left, he was able to keep juveniles and nonviolent offenders out of prisons,” said Joan Petersilia, a law professor at Stanford who chaired several panels on prisons, “and what went to the right was he never wavered on three strikes or releasing sex offenders or violent offenders.”

My sense is that analyzing correctional policy in right/left terms is inaccurate and unhelpful. While the topic is undoubtedly a political one, and we do often see a party split in state votes on correctional policy, the concern about public safety, the fear of crime, and the punitive recourse, tend to transcend party lines. As many of my colleagues often say: No politician, on the right OR on the left, wants to be seen as “soft on crime.”

In this light, i think a better analysis of Schwarzenegger’s dealings with the correctional apparatus should have included his interesting response to the Plata/Coleman panel population reduction order. On one hand, the Governor immediately sprang to action defending CDCR and its machinations. The State has vigorously opposed the order just as it opposed the initiatives of the Receiver, continuously attempting to thwart his efforts and remove him from office. On the other hand, in the heels of the Plata/Coleman decision, Schwarzenegger himself proposed a population reduction plan that was less ambitious but pursued some similar reduction mechanisms: Good work credits, a reduction in parole, and increased use of GPS monitoring.

A Macchiavellistic analysis of this move could be that, given the existence of a gubernatorial reduction plan, the Supreme Court (which is now hearing Plata/Coleman on the merits) might be accepting the state’s appeal, noting that the state makes efforts to decarcerate on its own, without need of federal interference. But I tend to think the answer is simpler: Schwarzenegger hopped on the decarceration wagon not because of shrewd political considerations or a commitment to bipartisanship, but because there is no other choice. The budget slice allotted to corrections was simply too big to be sustainable. Public opinion slowly drifted away from punitivism once it became clear that our correctional policies directly impacted our wallets. The center could not–and still cannot–hold, and Schwarzenegger understood that as a practical, not a political, matter. His out-of-the-box ideas, such as housing inmates in Mexico, were an attempt to resolve a pressing problem that stood–and stand–in the way of balancing our state’s checkbook.

The correctional crisis was not Schwarzenegger’s doing, and his awakening came way too late in his gubernatorial career. Our options for this office are not exciting; we’ve looked at both Jerry Brown and Meg Whitman‘s respective correctional policies. I leave it to you, gentle reader, to decide which is the lesser evil.

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Props to Simon Grivet for the NYT link.

Why Riots? Ingredients for Moral Panic

Many of our readers are probably already abreast of the events in Oakland last night. The Oakland Tribune live blog offered full coverage. The bottom line is that what was a peaceful demonstration in the evening (when I was there, at around 7:30-8:00pm) turned, after sundown, into a looting scene that led to 83 arrests. This, of course, is saddening. Protest over the outcome of Mehserle’s trial should never have turned into an ugly display of property crime. It is important to mention that, in the earlier hours, I heard multiple calls from speakers and community organizers to maintain the peace; that the many hundreds of people who gathered at 14th and Broadway were engaged in a peaceful protest; that displays of verbal violence and incitement were often, according to reports, countered by people from the community discouraging them; and that we have no information on whether the looters arrested were locals or out-of-towners that took advantage of the events to commit ugly and serious property crime. In any case, stealing sneakers from an athletic store is hardly a useful way to make a political statement.

What we can, however, examine, is why riots happen in the first place. While older literature from the 1960s analyzed riots and community action in itself, newer studies of riots by criminologists and sociologists portray a very complex picture of how such events develop. It is important to see, as Michael Keith argues, race riots within the larger context of race relations, and to acknowledge the fact that a great part of the problem is not the riot itself but the moral panic generated by the riots. I would not go as far as to say that the riots would not happen if not for the projected police response. But seeing thousands of officers, helicopters, and various devices in Oakland yesterday did seem to communicate an expectation that something very foul was about to occur. This sort of overpreparedness communicates to citizens the expectation of violence and crime. In this interesting paper by Clifford Stott and Stephen Reicher, they interview police officers, showing how tense situations can escalate through the communication between police and protesters at the event.

And then, of course, there’s this. The irony, I believe, would be lost on the ABC7 anchorperson.

Another related issue pertains to the safety of Mehserle himself, should he be sentenced to prison time (which he very well might, unless the judge stays the gun enhancement). Regardless of geographical location, I can’t imagine this will be an easy stint in prison. Does any of our readers know how CDCR guarantees the safety of unpopular inmates?

Death Penalty Activism: Narrow Coalitions

I’ve been thinking about the terrific meeting of the World Coalition Against the Death Penalty last Saturday. One of the most remarkable thing about the meeting was the presence of unexpected and very welcome allies: Families of victims and law enforcement agents. It was an amazing thing to see people who we are used to think of as punitive reject the zeitgeist on behalf of really considering, in depth, the meaning of supporting or objecting the death penalty. These two groups are so valuable and important that they made me think about framing questions and goals, and the challenges involved in doing so.

In his opening remarks, Senator Mark Leno mentioned that the death penalty was not a necessary factor in ensuring public safety. After all, he said, we can lock up violent criminals for life without possibility of parole. I wonder if this position is substantive or strategic. After these remarks, it was interesting to see that, beyond the wall-to-wall objection to the death penalty, there was no consensus on other, broader perspectives on crime and punishment. Some of the activists (including yours truly) felt rather uncomfortable with this narrow definition of what is wrong with the correctional system. The answer to crime lies, perhaps, not in simply substituting the death penalty with a wholesale system of LWOP. However, framing the struggle for human rights as an issue pertaining to ALL corrections, not just the death penalty, might mean the loss of victims and their family, as well as of law enforcement entities. It’s really a tough one.

Changing Discourses in Anti-Death Penalty Advocacy

Several people at the World Coalition Against the Death Penalty meeting asked me to post my plenary panel remarks online; I hope you find them interesting.

——————————————

Good morning everyone,

This gathering is a historical event, an attempt to place this country, whose pride and shame so often lie in its exceptionalism and uniqueness, in a global context, as part of a global movement. I looked at the program and it promises to be a fascinating day of examining world trends and exploring the ways in which the United States, an industrialized democracy whose execution statistics dwarf those of many developing nations, might fit into a paradigm of nation-wide abolition. Before we embark upon this important journey, though, I thought I would offer a few comments that might touch on this U.S. exceptionalism. More accurately, I would like to discuss the strategies and arguments that death penalty abolitionists, academics and activists, have used over the last decades, and situate them in the unique context of U.S. bipartisan politics, the legal profession, and the centrality of race in U.S. criminal justice policy.

Anti-death penalty discourse around the world often appeals to notions of humanitarianism, human rights, and morality. This family of arguments, which dates back centuries to rationales offered by Cesare Beccaria in his 17th century book Delle Crimen y Delle Penne, has always been part of the abolitionist agenda in the United States. However, over the years, American discourse has also included three non-humanitarian arguments, which have taken a place of prominence in public discourse here about the death penalty. I would like to present the three of them and talk about the unique U.S. conditions that produced them as part of the discourse. The three arguments are:

1) The lack of deterrent effect of executions;
2) the rate of wrongful convictions among those sentenced to death;
3) and the cost of administering the death penalty.

I presented the arguments in a rough chronological fashion. If you look today at activist websites about the death penalty, you are likely to find all three of these arguments represented, but each of them occupied center stage in public discourse for a while, later giving way to a new non-humanitarian argument.

Our love affair with deterrence arguments came in the heels of the 1976 Supreme Court decision in Gregg v. Georgia, which reinstated the death penalty after a four-year moratorium. This is well known, of course, to many people interested in the death penalty. What is somewhat less known is the role that an empirical study by Isaac Ehrlich, published shortly before the decision in Gregg, played in bringing this development about. Ehrlich used econometric calculations to show that each execution prevented eight murders. His study was extensively cited by the Supreme Court as an argument for the death penalty. Ehrlich’s study was not an outlier and its timing was not a coincidence. Its seeds were sown in the late 1960s, when the rise in crime rates, and fear of crime, were central features of the Nixon campaign. During this era, crime control and law enforcement became a regular feature of the U.S. political game, and particularly of the right/left divide. This played out in important ways during the 1970s, when a meta-research conducted by Robert Martinson found that rehabilitative programs in prison did not reduce recidivism. The general disillusionment with rehabilitation—until then a feature, at least in terms of rhetoric, of the U.S. sentencing and correctional system – pushed policymakers back to the traditional paradigm of aims of punishment, seeking retribution and deterrence. This was aided by the rise of punitive, fear-driven discourse, particularly in connection with the nascent war on drugs of the 1980s. Under such conditions, it was unavoidable that anti-death penalty discourse would address this issue. Critique of Ehrlich’s model emerged almost immediately. His methodology was heavily criticized. And several permutations of the deterrence arguments persist to this day. Last year I went to the Empirical Legal Studies conference, and, indeed, two teams of researchers were still battling minute econometrical details, trying to prove or discredit the deterrent effect of the death penalty. The methodological aspects of the debate would be lost on the general public, and the political motivation behind the argument was rather obscured; ironically, the better people got at producing models that predicted or disproved deterrent effects of the death penalty, the less interesting their work got in terms of its public appeal. In other words, the debate about deterrent effect has lost some of its steam and has been relegated to the realm of specialized, sophisticated scholars.

A new argument, however, emerged on the horizon. In the late 1980s and early 1990s, anti-death penalty discourse was fuelled by arguments pertaining to mistakes in convictionsk, made particularly tragic in the context of the death penalty because of its irreversibility. Several developments made the wrongful conviction and exoneration argument possible and important at the time. First, proving innocence seemed to be a dream finally attained through the introduction of DNA as an inexpensive, realistic option for the broad population of criminal defendants. It is important to point out that, despite the mystique of DNA, most exonerations of wrongfully convicted inmates did not occur through DNA testing, but rather through discrediting eyewitness identification. The early and mid-1990s were good years for the field of criminal psychology, yielding “white paper” about the unreliability of lineups and eyewitness identification, as well as a discredit of testimony by hypnosis. The success of U.S. television programs based on criminal forensics and science, particularly the CSI franchise that started showing in 2000, reflect the great hope awarded in the public imagination to science and the body as a means for uncovering the truth. The potential of scientific techniques in correcting wrongful convictions was harnessed by another important development: The emergence of clinical education in law schools, and particularly the emergence of innocence projects, in which students pursued, pro bono, wrongful conviction claims on behalf of inmates. The first Innocence Project was founded in 1992 in Cardozo School of Law under the leadership of Barry Scheck and Peter Neufeld, and offered, perhaps for the first time, the promise of scientific arguments to support abolition. There is one more important factor to keep in mind as we consider the emergence of exoneration and wrongful conviction arguments as anti-death penalty discourse: the growing public acknowledgment of the part played by race in the criminal justice system in general and on death row in particular. As our attention to wrongful convictions grew, we became more aware of the particular ways in which racial minorities in the U.S. were particularly vulnerable to intrusive police techniques, identification mishaps, racist jury panels, and vindictive judges, particularly in certain regions of the country. Not only were most people on death row members of racial minority groups, the stories of exonerees revealed how their racial identity impacted the prognosis of their criminal cases.

The exoneration argument was, however, not without its flaws and weaknesses. First, contrary to the grand promise of science and its appeal to the public (now known in the U.S. as the CSI Effect), DNA methods lost some of their iron-clad hold in court, if not on the general public. Wrongful conviction scholars find it increasingly difficult to gauge the exact number of wrongfully convicted people in prison in general, and on death row in particular. Do we count cases in which multiple eye-witnesses have recanted? Do we count cases in which police interrogation was abusive and coercive, even if we do not know whether it yielded the truth? While the public perhaps continued to perceive science and forensics as good ways to weed out the innocent, a growing discourse of fear and punitivism took hold. This seemingly contradictory trends are easy to explain when one considers that punitiveness gains legitimacy if it is guaranteed that those suffering from it are the guilty. Add to this the enlistment of the nascent victim advocacy movements to support the agenda of punitive politics (which I know many brave people in this audience, who have been victimized by crime, actively resist) and you’ll get a perfect punitive storm, pushing various reforms such as the Three Strikes Law. While the death penalty is unique, it should be seen in the context of this discourse of fear. Under such conditions, politicians of all stripes were concerned, and still are, about not appearing “soft on crime”, and in many regions of the U.S., opposing the death penalty is unthinkable for symbolic reasons as well as for reasons of realpolitik.

This challenge, of not appearing “soft on crime” while rejecting punitivism in general and the death penalty in particular, may have been addressed by the third non-humanitarian anti-death penalty discourse: The issue of cost and expense. With the recent financial crisis, the expenses associated with punitive sentencing regimes and mass incarceration have revealed to the public what was previously an invisible, underground “city” of corrections. The public is much more aware of incarceration conditions in general and conditions on death row in particular. Proposals to expand the San Quentin death row made headlines in California newspapers. And media discussions have led to a rising profile of the typically lengthy death row litigation. It should be mentioned, ironically, that as the costs of lengthy appeals and habeas corpus writs become a subject of public concern, the actual legal opportunities for post-conviction remedies grow narrow. Habeas corpus litigation in the U.S. has been gradually curbed, and overworked courts are more reluctant every day to hear death row appeals. Nevertheless, the argument seems to be that the death penalty, as it is administered today in the U.S., is no more than life imprisonment under difficult, expensive conditions, and accompanied by incessant litigation. This is a premise that budget-conscious politicians, whether conservative or progressive, can get behind with less risk to their public image.

Why do U.S activists use these arguments? Primarily, because they work. They are uniquely tailored to the realities of a bipartisan political system, in which, for various historical reasons, the death penalty has come to be a political issue. This is often difficult to understand for those unfamiliar with the U.S. context. After all, in Western democracies that abolished the death penalty the political divide is no longer an issue. And of course, once the death penalty has been abolished it is much more difficult to reinstate than it is to keep in place where it still exists. In non-democratic countries that still have the death penalty, the need to persuade the government to abolish it is irrelevant. The unique position of the U.S. as a punitive democracy is what necessitates this family of utilitarian arguments. If the human rights argument has been disabled due to fear and rhetoric, the public is spoken to through the lowest common ground: its wallet.

The proof is in the pudding. Recently, New Mexico abolished the death penalty, prominently citing issues of costs. Numerous U.S. states have placed moratoria on executions for the same reasons. Support for abolition, as well as for other nonpunitive measures such as drug legalization, skyrockets when they are presented as revenue-enhancing measures. California periodicals are peppered with editorial pieces by conservative politicians arguing that the costs of lengthy litigation and safe confinement are too much to spend if executions continue being administered at the current rate, thus supporting a cheaper solution: life without parole. The cost argument, therefore, holds the promise of persuasion.

The costs of using the cost argument, however, are a little less tangible. Everytime an argument against the death penalty is based solely on issues of cost, non-deterrence, and possible mistake, anti-death penalty activists accept their adversary’s rules of engagement and play their game on their terms. And while cost arguments are not fake or misleading – the costs are true – there is something misleading about presenting them at the forefront of what used to be, and should always be, a concern for our fellow human beings, be they offenders, victims, or correctional personnel. As a movement, we need to make a decision whether, and to what extent, we are willing to play this game to obtain the desired outcome, and what is the combination of strategy and ideological conviction that we can live with best. Thank you.

Justice Policy Institute release

FOR IMMEDIATE RELEASE:
May 24, 2010

CONTACT: Adam Ratliff, aratliff@justicepolicy.org, (202) 558-7974 x306

Crime report shows crime fell in 2009 as prison growth rates decreased

Drop in crime comes as states seek ways to reduce prison populations and improve savings for state budgets

WASHINGTON, D.C.-Reported violent crime in the United States fell by 5.5 percent and property crime by 4.9 percent in 2009, according to an analysis released today by the Justice Policy Institute (JPI). The analysis, which was based on the FBI’s Preliminary Annual Uniform Crime Report, released earlier today, also found that this drop in crime coincided with decreasing use of prisons from previous years. This corresponds with a national trend of states seeking ways to curtail corrections spending in light of the economic downturn. JPI applauded the news, saying it highlights that states can save money, promote alternatives to incarceration and still maintain public safety.

“Increased incarceration does not increase public safety,” said Tracy Velázquez, executive director of the Justice Policy Institute. “The FBI’s report shows that we can improve public safety and put fewer people in prisons, which means savings for taxpayers in addition to stronger communities. Investments in jobs, education and treatment are areas where states should focus their dollars, as all of these will help reduce crime more effectively and fairly than building more prisons.”

According to the analysis, the 2009 drop in crime came at a time when the prison growth rates fell from previous years. While the number of people in prison is still growing, it is at a slower rate than the last few decades.

“Contrary to the conventional wisdom that locking people up makes communities safer, the data is clearly showing that crime is going down as fewer people are being put in prison,” Velázquez added. “Rather than spending more money unnecessarily on policing and incarceration, we recommend that states increase their investments in people and communities, rather than prisons, as a better way of ensuring that public safety continues to improve.”

The Justice Policy Institute (JPI) is a Washington, D.C.-based organization dedicated to reducing society’s use of incarceration and promoting just and effective social policies.

For a more in-depth analysis of crime trends, and information on effective public safety practices, please visit our website at www.justicepolicy.org.

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Sit/Lie Ordinance Will Be on Ballot

My moral standing is lying down.
—Nine Inch Nails, “The Only Time”

Today’s Chron reports Mayor Newsom’s intention to bypass the Board of Supervisors and take the Sit/Lie Ordinance to the voters on the 2010 ballot. We have discussed this ordinance here and there, but now that the decisionmaking has been shifted unto the voters, it is time to talk a little bit about the details.

If San Francisco voters are presented with a sit/lie ordinance in 2010, there are a few parameters that are worth considering:

Are there alternatives? If the San Francisco police can arrest or cite offenders for loitering, aggressive panhandling, assault, and drug offenses, what is the marginal benefit of this ordinance?

Time/space limitations? An ordinance of this sort is more likely to conform to constitutional standards if it doesn’t pursue and persecute people whenever and wherever they are. Similar pieces of legislation elsewhere have limited the criminal prohibition to certain hours in the day and certain areas of the city.

Warning? The law is significantly less draconian if it gives people the opportunity to move away. In some municipalities, a warning needs to be given in writing; in others, an oral warning will suffice.

Authorization to arrest? Does violating the law trigger the risk of arrest? If so, voters might be interested in weighing the interest of proportonality.

Sentencing? This goes to the question how comfortable we are with people doing time in jail–overcrowded as it is–for a municipal petty offense. It is rather likely that, in light of jail overcrowding, most of these cases will be dismissed anyway or dealt with through a fine system, in which case the efficacy and deterrence of the new law should be assessed. And if there is a fine, how much should it be, and how will its amount be tailored to the likely offenders?

Alternative shelter and related expenses? Sit/Lie Ordinances in other municipalities have been found unconstitutional by the 9th Circuit when the court found that the folks lying in the street had nowhere else to go. Providing enough shelter, so as to assure the new law’s constitutionality, may cause the city to incur additional preparation and expense.

And, finally–impact on budget? Beyond the issue of shelter, voters need to take into account the impact that citations, arrests, and sentencing will have on the city budget. The more severe the implications of ordinance violation are, the more expensive this measure will be. Even if massive case dismissals will thwart the effort (which may very well be the case), it will still eat up valuable prosecutorial time and money.

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Props to KCBS, with whom I talked about this topic this afternoon, for prompting the discussion, and to Adam Maldonado for some very useful information.

Portugal Decriminalized All Drugs; Drug Use Dropped


As of this week, it’s been one year since the Cato Institute published its land report “Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies,” authored by Glenn Greenwald. The report examines eight years of Portugal’s drug policy: decriminalization of possession of all substances.

Here in America, last week the Providence Journal (the news source of record for the state of Rhode Island) took a related stance. The editorial board called for, not decriminalization, but taxation and regulation of all substances. The editorial argues, “Even if legalization were to increase drug use, that risk is overshadowed by the benefits. Crime would drop in our streets as dealers lose their livelihood, and users don’t have to rob others to support their habit. Governments can regulate the drugs for purity and collect taxes on their sale.”

However, the Cato report found that Portugal’s total decriminalization actually led to declines both in drug usage rates and in HIV infection rates. People found in possession of drugs are sent to a panel of a psychologist, a social worker, and a legal adviser to consider treatment and rehabilitation options. For the short version, read the TIME Magazine summary. This usage decline suggests that the public safety and economic benefits of drug policy reform would not merely offset harms of any increase in drug use, but rather, represent independent public policy gains.

RI Leads Nation in Reducing Incarceration

Adding to our last post on the new Pew study, as a transplanted Rhode Islander I was thrilled to see Pew report that Rhode Island now leads the states in prison population reduction. As Bruce’s post reminds me, we never thought we’d see the day RI had fewer than 4,000 state prisoners. The RI General Assembly has recently eliminated mandatory minimum sentences for drug crimes, restoring judicial discretion. The Department of Corrections has increased sentence reductions for inmates’ good behavior.

Last night, the RI Senate Committee on Marijuana Prohibition released its final report, and concluded its business by releasing its final report and voting to recommend that the legislature decriminalize marijuana. This change would result in vast savings: in 2009 RI arrested 2,546 people for first-time marijuana possession. According to re-entry institute OpenDoors’s new report, in 2008 RI imprisoned 188 people and jailed 396–who spent a collective 2,366 days in jail.