On Populism in Criminal Justice Policy, and the Death Penalty Moratorium

Gavin Newsom’s recent announcement of a death penalty moratorium drew critique from supporters of capital punishment who argued that Newsom employed his executive power in a way that flies in the face of what the people of California want (which is, by a small majority, the death penalty to stay.) In the last week I’ve had to debate this issue on TV and on the radio with a few commentators, some more erudite than others, and even though the pace of public appearances was rather frantic, I made a mental note that I need to take the counterargument more seriously and think about populism more deeply.

Thankfully, life provided a really interesting opportunity to do so: I’m just returning home from a beautiful day in New York City, which I spent as Author-in-Residence at St. John School of Law‘s Journal of Civil Rights and Economic Development. I spent the day discussing various implications of a piece I wrote for the journal, which was loosely based on this blog post.The schedule for the day was beautifully student-centered and my gracious hosts made sure that their students got the most out of an informal conversation about writing in the morning, a great lunch conversation, and a more formal presentation with Q&A in the afternoon. 
We talked about lots of things: the perniciousness of social media mobbing, whether rage was exhaustive or generative, whether reputations soiled by formal or informal social control can be redeemed (and at what cost), whether there’s any hope for bipartisan civil discourse—in short, the things that ail and worry us all. Among the students’ excellent comments was a polite-but-passionate disagreement a student had with my position on Judge Persky’s recall. As regular blog readers know, I think the recall was a vile example of the scorched earth mentality that drives a lot of lefty activism nowadays and a terrible message for judges to be harsh. The student who disagreed with me saw it quite differently. He saw it as an important message to the judge (and other judges) that he should respect the will of the people.
After the talk, the student came over and we continued our conversation. It turned out that the student was a community organizer who was appalled by the New York State legislature’s imperviousness to impassioned public calls to change the statute of limitations in a way that would allow prosecuting prominent Catholic Church priests involved in the massive sexual abuse scandal. He expressed regret that New York had so little referendum-based legislation, because he suspected that, had the statute-of-limitations issue come up on referendum, about 80% of state voters would support eliminating barriers for prosecution. 
As the student was explaining his position, I realized something important. My hosts and I live in states that are very different, respectively, in terms of their political culture. New York is governed largely through professional, elitist bureaucracy, whereas California is governed through political and emotional populism. As Vanessa Barker argues in The Politics of Imprisonment, these divergent political cultures have shaped two very different criminal justice systems, with California’s characterized by much more punitive excess in terms of legislation and policy. Of course, the criminal process in New York is not clean of problems—the NYPD scandals and the conditions at Rikers are but two notable examples—but the sheer size of the California apparatus and its patchwork of aggressive sentencing laws reflect the punitive animus stoked in a public that votes for criminal justice policies via referendum. Because of these different cultures, our respective natural tendencies are to see the blemishes in our own environment and perceive the other system in a more favorable light. In other words, while I’m used to seeing the serious problems, excesses, and miscarriages of justice that come from a money-flooded direct democracy rife with oversimplification and disinformation, the student who came to speak to me was used to seeing the legislative elite turn a cold shoulder to the values and expectations of their constituents. 
Reasonable people can disagree, I think, on how much direct democracy is appropriate for a particular political culture. But it’s important to make this call on the basis of facts. Does the public tend to be punitive? And how punitive, and in what contexts? There is rich literature on this, which I reviewed extensively in Chapter 7 of Cheap on Crime. The gist of it is that, while the public holds complicated views on punishment and rehabilitation, it is possible (and easy) to craft questions and provide information in a way that yields punitive outcomes. For example, surveys reveal that people are significantly less likely to support lengthy incarceration when they are provided with real data about how much it costs. The problem is that, in a partisan—indeed, polarized—legislative atmosphere, there’s very little guarantee that the public will actually get credible, dependable facts; instead, supporters and opponents of a particular bill will provide a lot of noise and spin, leaving people with good will, but with little background in public policy and economics, to make their own decisions. 
One example is the idea that someone might support the death penalty in good faith because they believe that capital punishment is good for victims and that victims want it. But we know that different people process tragedy in different ways, and that not everyone sees the death penalty as conducive to their healing from a devastating loss. I can say that, in my visits to the violence prevention coalitions in Santa Rosa and in Sacramento, I heard victims’ family members espouse exactly the opposite—and those are, typically, poor people of color, whose voices do not usually ring very loud in the policymaking arena. Is it elitist, or undemocratic, to consider the possibility that the public has been systematically misinformed about what victims want, and therefore lacks valuable and relevant knowledge?
Similarly, consider this horrifying piece of news I read this morning. The violence, the sheer amount of defense required for mere survival, the blood and bodily secretions at all places… a friend posted today on Facebook that if the public knew just a little of what happens in these institutions, we would not have them. It’s not malice–it’s ignorance. Is it elitist, or undemocratic, to suggest that people who call for lengthy incarceration terms have never been inside a prison, have no idea what it looks and feels like, and cannot imagine themselves or their loved ones go through it?

Theoretically, a good compromise between my position and that of the student might be a referendum system that also delivers nonpartisan information about the bills (particularly the budget) and limits expenditure and propaganda to a minimum. How that is to be achieved in a country in love with an absolute First Amendment is a difficult question. What leads me to despair is the fact that, in general, we’re experiencing a fairly shaky hold on the truth in the last few years, intensifying the already existing problem of voter ignorance and campaign misinformation that plagues referendum systems.

It’s pretty distressing to end up with this position, which seems to dovetail with Tom Lehrer’s introduction to one of his songs, where he says that “the reason folk songs are so atrocious is that they were written by the people.” An old friend who grew up in Saudi Arabia told me of going to public executions at the ripe age of 9 and seeing the crowds cheer. Sometimes we need to be dragged, kicking and screaming, away from a site of an atrocity by a responsible adult. I think what Newsom is trying to do is be that adult for us. 

Oh, and let’s talk more about this on April 9 at 7:30pm at Manny’s. Here’s the link to the event–I hope to see many of you there.

Thank You for Your Courage, Governor Newsom

Governor Newsom’s announcement of a death penalty moratorium is a breath of fresh air after decades of stagnation. Since the reinstatement of the death penalty in California, 13 inmates have been executed, while close to a hundred died of natural causes. Hundreds spend decades waiting for legal representation in interminable appeals whose focus has gradually shifted from big questions of humanity, discrimination, and innocence, to technicalities and chemicals. The death penalty—not in fantasy, but as actually administered in California—is racially discriminatory, risks tragic miscarriages of justice, and offers no comfort or closure to many victim’s families, as it is essentially an expensive version of life without parole in a dilapidated facility, to the tune of $150 million of taxpayer money annually.
Twice in the last decade did abolitionists attempt to marshal the voters’ common sense to retire the death penalty, and twice they came close, but failed. Public support for capital punishment is at its lowest level since the 1960s; almost half of California voters oppose it, and of those who support it in theory, few are aware of its many flaws, potential for mistakes, and ridiculous price tag. European countries that abolished the death penalty did so when it was still supported by most of their voters; sometimes the government and the legal system needs to take a moral stance when the public is not yet ready to do so.
Our political leaders, who could have dragged California’s extreme punishment into the 21st century, did not deliver. Former Governor Jerry Brown, personally opposed to the death penalty, did not use his last term in office—the perfect opportunity for a courageous, progressive move—to do the right thing. Neither did former Attorney General Kamala Harris, also personally opposed to the death penalty, who appealed a federal judge’s decision that the death penalty in California was unconstitutional due to the delays in its application. While upholding the decision would not have dismantled the death penalty, it would have created a political opportunity for doing so, and could have finally ended the political impasse that rendered California a national leader in so many ecological and social areas and a national embarrassment in its criminal justice system.
Californians should applaud Governor Newsom for doing what he can within the limit of his time in office to move the most draconian piece in the California correctional puzzle to its rightful place—the past. It is thanks to this visionary step that we will be able to shift the obscene expenditure on capital punishment toward what truly benefits Californians—not symbolic, fear-driven clinging to a misguided idea of a functional death row, but education, health care, green industry, and infrastructure. Finally, the sun shines on the darkest corner of California’s correctional landscape.

Before Leaving Office, Jerry Brown Should Commute All Death Sentences

In a few days, Jerry Brown will end his tenure as Governor of California and cede the gubernatorial seat to Gavin Newsom. Newspapers are already summarizing his career, including a record number of pardons and commutations. Indeed, the Brown administration stands out from previous gubernatorial administrations in the extent to which it intervened in release processes, including, as I write in my forthcoming book Yesterday’s Monsters, considerably more parole grants than Brown’s predecessors.

So one has to wonder: Since Brown is a staunch opponent of the death penalty, why won’t he get rid of it de facto by commuting all death row sentences?

Mass commutations of death row are not new. In 1972, as a consequence of the California Supreme Court’s decision in People v. Anderson, the sentences of all 174 inmates on death row were commuted to life with parole. Among those whose sentences were commuted, as I explain here (and in Yesterday’s Monsters) were Charles Manson and his followers, as well as Sirhan Sirhan. The decision infuriated many in California and led to a backlash legislative workaround (Proposition 17) whose constitutionality was hotly debated in California courts for years.

The difference between then and now was that, in 1972, California law did not include a life without parole option. Moreover, the actual sentences served for homicide offenses were much shorter than they are now. The dramatic gap between the death penalty and a parole hearing after seven years–it was not outlandish at all for a person convicted of murder to be released after ten or fifteen years–infuriated the public.

True, a gubernatorial move here would differ from the post-Anderson situation in that there hasn’t been a court decision forcing the governor into action. But the gap in people’s fates (and the implications to public safety, to the extent that this is even a consideration for aging, sick inmates) would be much smaller than in 1972.

Brown and Kamala Harris, in her prior office as Attorney General, had a chance to bring death penalty abolition a step closer after Jones v. Chappell and chose not to do so, even though all it would require would be doing nothing. But now, doing something is not only possible (free of technicalities) but imperative. Before leaving office, Brown can join a critical mass of abolitionist states by getting rid of death row de facto. He would be handing the Newsom administration a correctional apparatus that is $150 million a year cheaper to administer.

There are still a few days left to do the right thing.

The First Step Act: Humonetarianism Alive and Well

When my phone buzzed with a new notification, I felt a bit queasy reading that a new crime bill passed in the Senate was regarded “a victory to Trump.” But upon reading the bill, I realized this was the First Step Act, a watered-down bipartisan federal crime reform bill from the people who brought you the Obama-era federal reforms. The New York Times reports:

The First Step Act would expand job training and other programming aimed at reducing recidivism rates among federal prisoners. It also expands early-release programs and modifies sentencing laws, including mandatory minimum sentences for nonviolent drug offenders, to more equitably punish drug offenders.

But the legislation falls short of benchmarks set by a more expansive overhaul proposed in Congress during Barack Obama’s presidency and of the kinds of changes sought by some liberal and conservative activists targeting mass incarceration.

A look at the bill text provides some more insight. 
The main idea behind the bill is a buzzword we’ve heard a lot in the last few years: evidence-based recidivism reduction. The idea is to develop programs (and provide grants) for risk and needs assessments of federal prisoners, which would predict the recidivism risk of every inmate and then match him or her with evidence-based programs that address that particular person’s needs. These could include visits, institutional transfers, more opportunities to use the commissary service or even email, and other incentive. The most notable of these, perhaps, is time credits attached to the programs, which can be credited toward early release. The usual exceptions apply: As with the Obama-era reforms, these privileges and options will be available to low-level, nonviolent inmates, and not to “non-eligible” inmates, which committed violence offenses.
In short, this is a clear sequel to the trends I pointed out in Cheap on Crime. Effectiveness and efficiency are explicit criteria for the programs; the bill passes with bipartisan support; and the bill applies to the usual clientele of humonetarian reform, i.e., nonviolent, low-level inmates. 
The background to the First Step Act is indicative of the price we have to pay for bipartisan reform. Kamala Harris referred to this as a “compromise of a compromise,” which reminded me of the kind of discussion we had whenever I presented Cheap on Crime to a new audience. How much do we compromise or give up in order to get something? In the Trump Era, this means that bills of this kind are going to carry far less impact than their Obama-era predecessors, who were themselves products of compromise.

Not Your Typical Kavanaugh Opinion Piece

To a surrounded enemy, you must leave a way of escape.
                                                                                 –Sun Tzu, The Art of War

Last Friday I spoke at a school-wide forum about the Kavanaugh hearings. Since then, several people have come to thank me for voicing a perspective that is fairly uncommon in the progressive milieu. It is one of the pathologies of the partisan culture we now live in that one must subscribe to positions that often lack nuance and sometimes contradict factual and empirical evidence. The people who spoke to me asked me if I would be willing to share my perspective more widely, so here goes.

I’ll open by saying the obvious: I believe Dr. Ford. Not so much because of any indicia of reliability in her demeanor, but because, for the life of me, I can’t see why anyone would put themselves and their family through this particular variation of hell by lying. The incentives all line up toward the opposite direction. I think a mistaken identity is very unlikely here–even though eyewitness identification is a common source of wrongful convictions in sex crimes, that applies to stranger assaults, not to assaults by people familiar to the victim. It is also not unlikely that my sympathy for Dr. Ford also stems from the fact that she and I share the same milieu: she lives, works, dresses, and talks like me. She uses words like “hippocampus” and “sequelae.” By contrast, the prospect of an aggressively conservative turn in the Supreme Court frightens me because of the risks it poses to basic civil rights and to American democracy, given the corrupted and unprincipled stance of the Trump administration.

A widely publicized letter signed by law faculty was circulated, in which many people I like and respect challenged Kavanaugh on account of his demeanor, which they perceived to suggest lack of judicial temperament. I did not sign this letter for two reasons.

First, I have years of experience defending people in criminal courts against charges of sexual assault. During my time as a military defender, one of my responsibilities was to represent people in the special military court. What was so “special” about the special court was that its jurisdiction extended to high-ranked officers (colonel and up). These are, of course, career officers; the lower ranks in the Israeli army are occupied by young people aged 18-21 in mandatory service. This puts 40-something-year-old men in regular contact with 18-year-old women, in the context of a hierarchical institution that adds rank and military power to age and seniority. The outcome is that a considerable chunk of my legal practice was devoted to defending career officers against charges of sexual harassment and sexual assault.

My experience with these cases taught me a lot of things. One lesson was that most bad behavior is largely situational (as the Stanford Prison Experiment taught us, and as Ashley Rubin recently reminded us.) Another was that two people could be telling you widely divergent versions of an incident and both would be telling the truth, which is shaped through subjective experiences and feelings to a surprising degree. It also taught me that the best strategy for sex crime defense is to agree with the complainant’s version as much as possible. We called this “narrowing the scope of dispute.” The less contradictions there are between the prosecution’s version and the defendant’s version, the less there is to impeach the defendant with.

That Kavanaugh chose as his line of defense absolute denial was against any sort of sensible advice I ever gave a client in these circumstances. It is a sad testament to the partisan culture we live in that people were predisposed to believe him even though his strategy would have been disastrous in court. In addition, Kavanaugh’s religious background, and his base of supporters, would have been receptive to a cultural trope that is very common both in Catholicism and in Evangelical Christianity–talking up bad behavior in the past to emphasize change. Had he admitted to being wild and drinking in his adolescence, this milieu would have embraced his rehabilitation as a moral and religious victory. A similar strategy certainly underlined similar confessions from both George W. Bush and Barack Obama about their drug use. Again, that Kavanaugh did not recur to these sympathy-garnering tactics and still prevailed is an indication that the real mechanism behind this confirmation is partisan animosity, rather than factfinding.

But why did he do that? Here’s where I differ from my friends who signed the judicial temperament letter. I have spent a lot of time in the company of people who were (falsely OR truthfully) accused of sexual misconduct. I have spent time with their wives. I have heard them react to the complainant’s versions. I have seen them contemplate the real possibility that their personal and professional lives will fall apart. And each and every one of them–the guilty and the innocent–reacted in exactly the same way: yelling, tearing up, clenching fists, demonizing their accusers. It is not a peculiar reaction indicating a personal pathology. It is how humans universally react when they face an existential threat.

Now, every progressive outlet I know wrote the same op-ed, published the same meme, and made the same tired argument: Privileged white man, just a job interview, yada yada yada, what is he whining about? These arguments and memes completely miss the point. Everyone–yes, everyone, even you–deals with the emotional bind of the entitlement effect. Everyone tends to attribute the benefits and perks of their social position, no matter how high or low, to their own merit, and their deprivations to the failings of others. Everyone subjectively believes that they worked hard to earned what they have and react poorly to the prospect of losing that. That there is entitlement, privilege, and hubris at work here is obvious. This man’s problems seem perhaps, to you, as not very big problems compared to those of the poor and disenfranchised. But they are his problems. And, to him, the threat is palpable. His personal integrity has been besmirched, his personal life in tatters in front of the whole world, his family publicly humiliated and pitied by millions. This is the sort of thing that makes anyone react in that way–even people who exhibit calm tempers and evenhanded decisionmaking when dealing with other people’s problems. His behavior is not an indication of some sort of unique individual failing. It is the behavior of a person who is threatened and suffering.

My second reason for not signing the letter has to do with a personal decision I have made for the sake of upholding my own values: I do not mob people online for any reason, no matter who they are or how vile their failing is. I do not call for anyone’s firing, incarceration, or public shaming. When I join a political struggle–of which there are many–I join it toward something, not against something. I have found that online mobbing, which is rife on both sides of the political divide, carries with it plenty of mobilized rage (a hot commodity these days) and a detectable dose of schadenfreude. My personal experience marinating in these qualities is that they debase and depress me. I want to be part of positive change, not negative bashing.

The progressive variety of the call to mob, trash, annihilate the objectionable person, which I have come to call progressive punitivism, is especially pernicious. For people who overall fight for rehabilitation, for improved prison conditions, for a lessened reliance on confinement and stigma, it is surprising how quickly these lofty ideals are thrown by the wayside the minute they apply to a person they don’t like. This is why I refused to get on the bandwagon of diminished protections against prosecutions of police officers, vocally objected to the dangerous  and counterproductive recall campaign against Judge Persky, and spoke up against Oakland Mayor’s Libby Schaaf call to lower the burden of proof in trials of people she dislikes. Constitutional protections and a rehabilitative stance are really not worth much if they only exist for the people we like. Changing regimes and preferences might mean that the next target for harshness and stigma might be you or me–as we have daily proof on the federal level–and removing them for one is removing them for all.

Progressive punitivism is not worse than conservative punitivism, but it stings more, because it comes from people who understand the system enough to know better. It also strengthens other pathologies of the progressive left, such as the exclusive and vitriolic ideological purity, which demonizes and ostracizes any potential ally who is not 100% on board with every word you say, and the regrettable tendency to sometimes ignore facts because they are not politically expedient.

An adjacent problem is the fact that, as Jonathan Simon argues in Governing Through Crime, the quintessential American citizen is no longer the yeoman farmer or the small business owner: it’s the potential victim. By rewarding (or compensating) victimization, real or potential, with social capital, we have created a situation in which people are essentially forced to deprioritize their personal healing and marinate in their own victimhood as a condition of being heard. It’s true on the right, and has shaped some truly atrocious sentencing policies, and it’s true on the left, and has shaped some of the more egregious instances in which the overall commendable #metoo campaign became a victim of its own success. My law professor Ruth Gavison used to say that the first and foremost thing we owe victims is that they stop being victims as soon as possible. American public discourse propagates exactly the opposite.

The overwhelming conservative response to the Kavanaugh confirmation, and the energized Republican base as we go into the midterms that may decide the face of our democracy, is proof that the antagonism and demonization of individual wrongdoers is a failing strategy. Whaling on Kavanaugh or Brock Turner (righteous as it might feel) does not, sadly, bring us even a bit closer to eradicating sexual violence. Sexual domination, patriarchal hierarchies, and entitlement based on gender, class, and race, are systemic. People who exploit these to hurt other people do it largely in the context of situational factors that are bigger than their own pathologies. Calling out these pathologies by stigmatizing individual perpetrators and demanding their head on a stick does not lead to deep social reckoning, because it is not an environment that invites any sort of restorative conversation. Demonize people in public and what you’ll get is what you got  from Kavanaugh: counteraccusations, yelling, crying, clenched fists. When people’s liberty, employment, prestige, and family are at stake, and when they feel attacked, they are very unlikely to feel reflective, and they will not feel safe to offer an apology. More to the point, whatever apology they offer, because of its circumstances, is not something you or I would find genuine (as an aside, one hopes against hope that this experience will have offered Kavanaugh a window of empathy into the lives of criminal defendants and suspects, but I’m not holding my breath. He is likely to remember this as an effrontery, not a teaching moment, to the detriment of us all.)

The answer to hurt and violence is not propagating more hurt and violence. The answer lies, I think, in early education. Children are open to the idea that other children–regardless of their gender, color, or wealth–are human beings that can be their friends. Aiming at a diverse group of friends for your young child and prioritizing social experiences that place them in the company of people who live different lives of their own is essential. Teaching children gratitude for what they have can counter the bitterness that can accompany the entitlement effect. Teaching happiness, resilience, and compassion are antidotes to the zero-sum thinking that accompanies the excesses that come with entitlement. If the current administration does not prioritize this kind of administration, let’s go to the polls in November and vote for people who will. And let’s start the revolution inside our own homes, by instilling a sense of community and mutual responsibility in our children.

Hatred is never appeased by hatred in this world.
By non-hatred alone is hatred appeased.
This is a law eternal.
                                                                      –The Buddha

Safe Injections Disappointment: A Call for SF Hamsterdam

The proposal was well thought and empirically backed: According to the principles of harm reduction, the best perspective we have on saving lives that could be claimed by drugs and alcohol, a safe injection site in San Francisco would be a good idea (so would legalizing opioids, but we live in this world, not in a better one.)

Then, Governor Brown, in an incomprehensible statement, vetoed a California bill that would enable San Francisco to pursue a four-year pilot with a safe injection site.

Before we move on to thinking how San Francisco could get around this veto–and I believe it could–let’s pause for a moment. Why would Brown veto the proposal? Surely not to curry favor with conservative and moderate California voters–he is not running for reelection. Surely not to curry favor with the Trump administration (we’ve done our very best, and justifiably so, in the opposite direction.) Surely not to support thoughtful, evidence-based reform, which this proposal surely is. What is going on? Honestly, I don’t know, and feel free to chime in with comments.

San Francisco mayor London Breed has declared that she plans to move forward, and so are other cities. But how can San Francisco move forward?

The key to a possible safe injection site lies in the fragmentation of policing and prosecution. As I explained elsewhere, policing in America is conducted on the municipal level. Prosecution is conducted on the county level. San Francisco is one of those rare locations where city and county overlap.

To the extent that the San Francisco District Attorney’s office and SFPD are on the same page, there is nothing to prevent San Francisco from establishing enforcement priorities that deemphasize opioid enforcement within a particular area of the city (a-la Hamsterdam from The Wire.)

What Would SF Hamsterdam Entail?

That depends. Hamsterdam could feature merely a lesser-enforcement area, where law enforcement commit to getting involved only if there’s violence (agreements like that have been worked out in other contexts, such as Operation Ceasefire.) We would need to carefully thing about protecting the status of employees and volunteers from the helping professions who might offer treatment, 12-step programs, and clean needles at the site, and how to best protect them, and if there’s a way to protect them as well, Hamsterdam could feature treatment options as well.

But Won’t the Feds Sweep In and Arrest Everyone?

That also depends–this time on how high we are on Jeff Sessions’ shit list. Arguably, fairly high–this vile administration has not shied away from attempting to penalize us for our sanctuary city policy–but having a concentrated DEA presence at a municipality might require more energy than the DOJ is willing to spend on a few folks addicted to opioids, with the possible lack of enthusiasm on the part of federal district judges (I’m not sure this is true–Mona Lynch’s work has shown judges with a great appetite for draconian sentencing of drug offenders with microscopic quantities, but her book does not cover Northern California.)

What’s important to keep in mind, though, is that our status vis-á-vis the feds is the same whether or not there’s a state law kosherizing the safe injection site. Possession of narcotics is a federal offense whether or not sanctioned by the state, and we obviously do not have the kind of understanding we used to have with the Obama administration about proper federal priorities in this regard. Even had Brown signed the bill into law, Sessions and the DEA would be able to sweep in, arrest people, and charge them federally with drug laws. Nor do I think the lack of a state law is likely to make them hungrier for these kinds of prosecutions–I think they abhor our state and our city with comparable ferocity (this, by the way, makes Brown’s veto even more puzzling.)

Can Jerry Punish Us for Going Through With It?

Theoretically, yes. There is no realistic scenario in which state law enforcement descends upon San Francisco and arrest safe injection patients; for one thing, they would have to be prosecuted in San Francisco absent a change of venue motion. There is, however, the possibility of monetary sanctions or withholding of state funds. But it’s hard to see Brown committed to punish San Francisco for going through with this. He has bigger battles to wage in the month he has left in office.

Should We Try Again After November?

DEFINITELY. I think Gavin Newsom will be open to this idea. He has been consistently pro-legalization in the marijuana context and might sign this into law. He is also advocating for an openly anti-Trump position at the gubernatorial mansion, and sticking a thumb in the eye of Trump by approving this plan statewide might play into his symbolic resistance to the feds.

Bottom line: Activists, do not despair. There is plenty we can do to win both this battle and the overall war against the war on drugs.

CCC Voting Endorsements in Upcoming San Francisco Election

San Franciscans go to the ballot boxes on June 5. Here are the CCC blog endorsements for this election:

SAN FRANCISCO MAYOR
We utilize a 1-2-3 ranked choice vote. My #1 choice is, without any reservations, Mark Leno. I’ve known Mark as an assemblyperson and a senator fr a very long time, especially through his activities at the Public Safety Committee. He has a pragmatic and compassionate approach toward crime control and vast experience in handling a variety of issues, and what’s more, he knows how to create coalitions – a very important skill in our city. His politics, and those of Jane Kim, align, but I think he brings to the role experience and cohesion that make him the superior candidate.

#1 Mark Leno
#2 Jane Kim

STATE PROPOSITIONS
Prop 68: $4B Bond for Parks, Drought Protection, Climate Adaption – Yes
Prop 69: Require Diesel Tax to Be Spent on Transportation-Related Items – Yes
Prop 70: Give Republicans & Corporate Democrats Power on Cap’n’Trade Funds – No
Prop 71: Delay Effective Date of Ballot Measures Until All Ballots Are Counted – Yes
Prop 72: Rainwater Capture Systems Won’t Trigger Property Tax Assessments – Yes

REGIONAL MEASURES
Regional Measure 3: Raise Bridge Tolls $3 Over 7 Years to Fund Transportation Projects – Yes

LOCAL PROPOSITIONS
Prop A: Authorize Public Utilities Commission to Issue Clean Energy Bonds – Yes (of course.)
Prop B: Commissioners with conflicts of interest must quit these jobs before becoming political candidates for Board of Supervisors – Yes (this is just sensible, clean politics)
Prop C: Commercial rent tax for child care and early education for all – Yes. Sensible proposition and laudable goal.
Prop D: Commercial rent tax for housing – No. This sounds like a good idea, but the proposition itself is not very sound and would support very little housing.
Prop E: Upholding the ban on flavored tobacco products – Yes. You’ve probably seen the ads around town stating that “prohibition doesn’t work.” They are, of course, funded by Newport, the biggest maker of menthol cigarettes. This is a facet of prohibition that exists even in regulatory schemes: these flavored products tend to appeal particularly to teens, which is a segment of the population that needs special protection from tobacco and its harms. Even in Prop. 64, which legalized marijuana, we retained prohibitions and crimes for selling to minors. For more on the tobacco companies’ stubborn fight against warning the public of their deadly products, read Siddhartha Mukherjee’s excellent book The Emperor of All Maladies.
Prop F: This is crucial: It offers a right to counsel for tenants facing eviction. Sometimes this is a fate worse than what the criminal justice system could dish at you, and civil Gideon rights make a lot of sense. Yes.
Prop G: Parcel tax to offer a raise for teachers. Yes.
Prop H: The San Francisco Police Officer’s Association (POA) is strongly pushing this measure, which would give them control over tasing policies, essentially allowing them to establish regulations that will allow San Francisco police to use a taser on someone who is unarmed and poses no immediate physical threat, or on someone who disobeys the police due to mental illness. Vote No. Tasers are extremely dangerous and unhealthy, which is why our Chief of Police, our District Attorney, and our Public Defender oppose the measure.
Prop I: A proposition requiring that San Francisco not steal sports teams from other cities. Do what you want, who cares.

STATE OFFICES
Governor: Gavin Newsom. I will not apologize for this. Newsom is a solid choice with lots of experience in politics, and given that California will be opposing Trump in and out of court, experience and backbone is more important than political purity.
Lieutenant Governor: Gayle McLaughlin
Secretary of State: Alex Padilla
Controller: Betty Yee
Treasurer: Fiona Ma
Attorney General: Dave Jones
Insurance Commissioner: Ricardo Lara
Board of Equalization, District 2: Malia Cohen

FEDERAL OFFICES
U.S. Senator: Kevin de León, who is taking a brave, strong position against the Trump Administration and its Nazi bans and policies. (I’ve heard valid points in support of Diane Feinstein, and I think that would also be a reasonable choice here: experience is arguably very important in the situation in which we find ourselves.)
Congress, District 12: Nancy Pelosi
Congress, District 14: Jackie Speier

STATE LEGISLATURE
State Assembly, Districts 17: No Endorsement
State Assembly, Districts 19: Phil Ting

JUDGES

Good arguments on both sides of this one. I was initially inclined to support the defense attorneys running for judge:

Superior Court Judge, Seat 4: Phoenix Streets
Superior Court Judge, Seat 7: Maria Evangelista
Superior Court Judge, Seat 9: Kwixuan Maloof
Superior Court Judge, Seat 11: Niki Solis

It’s important to mix things up on the bench, and judges with public defender backgrounds are woefully rare. We need people on the bench who come from the opposite end to dilute the prosecutorial groupthink that prevails there.

But folks who are familiar with the sitting judges remind me that just because something makes political sense in general does not mean it is relevant on the particular. The way to diversify the judiciary is to elect defense attorneys in the first place, not to replace folks that might not necessarily be the ones that need replacing. So, consider your options.

Which brings me to another judicial issue. This is hugely important.

I’d like to add a word here on the Santa Clara ballot. As many readers probably know, there’s a huge effort there to recall Judge Persky because of the much publicized Brock Turner sentence. This is a cynical effort to exploit #metoo sentiments and our distaste for Turner to unseat a fair and balanced judge who has followed probation recommendations and who does not discriminate against defendants of color (we know; we checked his record.) Scaring judges with public mobbing yields only one result: harsher sentences, and the first people in line to suffer are defendants of color that look nothing like Brock Turner. This is pointless virtue signaling and identity politics on steroids, designed to appeal to well-meaning but misinformed voters, and while it purports to be about feminism and equality, its outcome will be the exact opposite. Vote on the facts, not on hype and mob hysteria. VOTE NO ON THE RECALL. SUPPORT JUDGE PERSKY.

SCHOOL OFFICES
State Superintendent of Public Instruction: Tony Thurmond

Parkland Shooting: A Month’s Retrospective

It’s been a month since the horrific shooting at Parkland, and today students nationwide are walking out in memory of the victims and in protest of state and federal inaction on gun control. In preparation for a special report on KTVU this afternoon, I’m reviewing what we know about the efficacy of various methods to prevent school shootings, followed by a critical assessment of the Florida, federal, and (for good measure) California gun legislation.

As of 2014, roughly 371 million firearms were owned by U.S. civilians and domestic law enforcement. Estimates on household guns are that 36%-49% of American households have guns, or 23%-36% of adults. Sixty percent of gun owners are motivated by the need to protect themselves and their households against crime.

Roughly 16,459 murders were committed in the United States during 2016. Of these, about 11,961 or 73% were committed with firearms. According to President Obama’s commissioned report on research into gun violence causes:

“Defensive use of guns by crime victims is a common occurrence, although the exact number remains disputed….”
“Almost all national survey estimates indicate that defensive gun uses by victims are at least as common as offensive uses by criminals, with estimates of annual uses ranging from about 500,000 to more than 3 million….”
“[S]ome scholars point to a radically lower estimate of only 108,000 annual defensive uses based on the National Crime Victimization Survey,” but this “estimate of 108,000 is difficult to interpret because respondents were not asked specifically about defensive gun use.”

“Studies that directly assessed the effect of actual defensive uses of guns (i.e., incidents in which a gun was ‘used’ by the crime victim in the sense of attacking or threatening an offender) have found consistently lower injury rates among gun-using crime victims compared with victims who used other self-protective strategies….” (source)

There is a sort-of-controversy among gun scholars about the effectiveness of gun ownership on crime control. By sort-of, I mean that John Lott (author of the classic More Guns, Less Crime) claims that gun ownership has a deterrent effect. Pretty much everyone else disputes these claims and finds Lott’s methodology problematic. Specifically, a recent study by Stanford’s John Donohue III found the exact opposite. You’ll find the full paper here, and here’s the abstract:

The 2005 report of the National Research Council (NRC) on Firearms and Violence recognized that violent crime was higher in the post-passage period (relative to national crime patterns) for states adopting right-to-carry (RTC) concealed handgun laws, but because of model dependence the panel was unable to identify the true causal effect of these laws from the then-existing panel data evidence. This study uses 14 additional years of state panel data (through 2014) capturing an additional eleven RTC adoptions and new statistical techniques to see if more convincing and robust conclusions can emerge. 

Our preferred panel data regression specification (the “DAWmodel”) and the Brennan Center (BC) model, as well as other statistical models by Lott and Mustard (LM) and Moody and Marvell (MM) that had previously been offered as evidence of crime-reducing RTC laws, now only generate statistically significant estimates showing RTC laws increase overall violent crime and/or murder when run on the most complete data. A LASSO analysis finds that RTC laws are always associated with increased violent crime. To the extent the large increases in gun thefts induced by RTC laws generate crime increases in non-RTC states, the panel data estimates of the increase in violent crime will be understated. 

We then use the synthetic control approach of Alberto Abadie and Javier Gardeazabal (2003) to generate state-specific estimates of the impact of RTC laws on crime. Our major finding is that under all four specifications (DAW, BC, LM, and MM), RTC laws are associated with higher aggregate violent crime rates, and the size of the deleterious effects that are associated with the passage of RTC laws climbs over time. Ten years after the adoption of RTC laws, violent crime is estimated to be 13-15 percent higher than it would have been without the RTC law. Unlike the panel data setting, these results are not sensitive to the covariates included as predictors. The magnitude of the estimated increase in violent crime from RTC laws is substantial in that, using a consensus estimate for the elasticity of crime with respect to incarceration of .15, the average RTC state would have to double its prison population to counteract the RTC-induced increase in violent crime.

In other words: more right-to-carry is correlated with more violent crime. Now, keep in mind that correlation does not equal causation, and there are cultural differences between states that can’t be captured even by the most careful model, but this team has also found longitudinal correlations, which bolsters the causal claim. This study is currently being presented as evidence in a lawsuit brought by the NRA against the state of California, which bans assault rifles. The lawsuit, which was filed at the Superior Court in Fresno, claims that the burdens on the path to purchasing an assault rifle infringe upon people’s privacy and Second Amendment rights. California requires background checks for all firearms transactions, including those conducted between private individuals; these transactions do not require background checks according to federal legislation.

California is at the more controlling end of the gun legislation spectrum. In general, states fall into one of two categories: “shall-issue” states, where concealed carry permits are issued to all qualified applicants, and “may-issue” states, where applicants must often present a reason for carrying a firearm to an issuing authority, who then decides based on his or her discretion whether the applicant will receive a permit. The latter category is quite diverse, and includes states, such as Connecticut, which effectively act as shall-issue states, and states such as New Jersey, which effectively act as no-issue states.

As of July 2016, 42 states had “shall issue” laws, including Florida. Eight states had “may issue” regimes: California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and New York.

Florida became a shall-issue state on October 1, 1987. To carry a gun in Florida, one needs to be 21 years of age or older, have clean criminal/mental health records, and complete a firearms safety/training course. As of June 30, 2016, Florida had issued 3,173,630 permits and had 1,598,213 active licensees, constituting roughly 11% of the state’s population 21 years of age or older. The revocation rate is minuscule: From the outset of the Florida right-to-carry law through June 30, 2016, Florida has revoked 10,909 or 0.3% of all issued permits. The vast majority of revocations were for crimes committed after licensure.

Following the Parkland massacre, the Florida legislature adopted a new gun statute, titled the Marjory Stoneman Douglas High School Public Safety Act. The new law authorizes the awarding of grants through the Crime Stoppers Trust Fund for student crime watch programs; establishes the Office of Safe Schools within the Department of Education; provides that each sheriff may establish a Coach Aaron Feis Guardian Program and appoint certain volunteer school employees as school guardians (who can carry firearms); prohibits people who have been adjudicated mentally defective or been committed to a mental institution from owning or possessing a firearm until certain relief is obtained (there is no correlation between mental illness and school shootings😉 prohibits a person younger than a certain age from purchasing a firearm; prohibit specified acts relating to the sale and possession of bump-fire stocks; and creates the  Marjory Stoneman Douglas High School Public Safety Commission within the Department of Law Enforcement. These funds and grants are to be funded to the tune of $400 million in appropriations. 

Essentially, what this boils down to is some restrictions on gun licensure based on mental health and age, and permission for some school employees to carry guns in schools. The latter aspect of the law is the most controversial, as several recent anecdotes show considerable potential for accidents and problems. If anything, *less* guns in school, rather than *more*, would be a better idea. The genesis of this “school guardian” idea lies in the notion that guns in the hands of good guys can protect against bad guys. But this premise is rather questionable, and might apply differently to different victims and different situations. A meta-research conducted in 2004 shows that the availability of guns increases, rather than decreases, the risk of homicide, and this was confirmed in a RAND study from 2018.

On the federal level, no big surprises: after some talk about increasing background checks and raising the age for gun licensure, Trump seems to have caved to the NRA and abandoned gun control initiatives.

I would be remiss in ending this review without inviting you to watch KTVU today at 4pm for the conversation about this, and also expressing my admiration of the Parkland high school students who are actively pursuing change. My heart breaks at the fact that we are failing our children, and at the fact that they are battling a particularly obtuse federal and state governmental cadre with particularly obtuse and uninformed views about gun control.

The Courage to Reach Out: Why Addressing Violent Criminals Is Better for All of Us

The classic approach toward violent crime that scares us has been to ratchet up sentencing. But draconian sentences do not function well as deterrents of crime. General deterrence is a function of three factors: the severity of the sentence, the certainty of getting caught, and the speed at which justice is administered. The Achilles’ heel of this trifecta is the certainty factor. It is often very difficult to get witnesses to come forward and testify against perpetrators of violent crime, and this is partly why a third of U.S. homicides remain unsolved. Often, the police and prosecution has some notion of the perpetrator’s identity, but not enough evidence to bring charges against him or her. Even the most aggressive prosecution or the most severe sentences won’t result in getting the person off the street, and certainly not of making us safer (though they will, and do, result in clogging our prisons.) And of course, the goal is not (or should not be) putting people behind bars for incarceration’s sake. We all benefit so much more if we prevent homicides from happening in the first place.

Which is why the City of Sacramento is ready to try something new. Following the example of the City of Richmond, Sacramento is investing in a new initiative, known as Advance Peace.

Advance Peace focuses specifically on gun violence, and on the evidence-backed premise that, typically, a small number of perpetrators are responsible for a considerable percentage of the gun violence in a city. This is true for both Richmond and Sacramento: in the latter, the police estimate that there are fifty easily identified people who commit most gun crimes in the city–even though there isn’t necessarily evidence against them that would stick in court. The program consists of personalized, early intervention with these particular individuals, providing them with mentoring and opportunity, and diverting them away from gun violence. In the program’s words:

Advance Peace interrupts gun violence in American urban neighborhoods by providing transformational opportunities to young men involved in lethal firearm offenses and placing them in a high-touch, personalized fellowship.

By working with and supporting a targeted group of individuals at the core of gun hostilities, Advance Peace bridges the gap between anti-violence programming and a hard-to-reach population at the center of violence in urban areas, thus breaking the cycle of gun hostilities and altering the trajectory of these men’s lives.

Advance Peace works with both public and community-based stakeholders to establish responsive community-driven strategies that achieve high-impact outcomes for those caught in the cycle of urban gun violence.

The Richmond program, which has been in place since 2010, has been a success. Between 2010 and 2016, homicides in Richmond fell 60% (77% according to NPR, but there’s been a little uptick in 2017). This is more than twice–and almost thrice–the decline that other cities have seen. In addition, out of the 84 fellows who started the program in 2010, 94% are alive, 83% have had no gun injuries or hospitalization, and 77% have not been suspected of any gun activity. This is remarkable given the program’s focus specifically on people who were active participants in the gun violence scene in the city.

Sacramento is hoping to see the same benefits, but the program is not without its detractors. As usual, the objection is not scientific but moral/political: the program involves stipends to the perpetrators, and “rewarding bad boys” is a controversial move when the money could be used to reward “good boys.”

Municipalities always operate in an environment of limited resources. Giving money to suspected gun criminals takes it away from education, infrastructure, and health care, which feels understandably unfair. But when allocating money, “what’s fair” should not be the only, or perhaps even the dominant consideration. Where would the money spent on this program make us safer?

To answer this, we need to widen our perspective to understand a debate raging in the last few years about the causes of incarceration. The story we have told ourselves for decades–I’m guilty of this as well–places the blame for mass incarceration on the racialized war on drugs. According to this story, popularized by Michelle Alexander to the point that it’s difficult to argue with laypeople about it, Nixon and Reagan targeted people of color, incarcerating them for nonviolent offenses for unconscionably long periods of time, leading to the explosion of prison population and especially to its racial distribution.

But recently, John Pfaff has drawn our attention to the fact that the bulk of incarcerated people in America are doing time for violent crime. Adam Gopnik summarizes Pfaff’s argument as follows:

During the great wave of incarceration—generally thought to have begun around 1980, and cresting about three decades later—state prisons added something like a million inmates, with about “half that growth coming from locking up more people convicted of violence,” Pfaff calculates. Nonviolent drug offenses accounted for only around a fifth of the new incarcerations.

What’s more, many of the drug convictions were meant to be what Pfaff calls “pretextual attacks on violence.” Violent crimes that are associated with drug dealing are more difficult to prosecute than drug offenses themselves, which usually involve hard evidence rather than the testimony of witnesses. This argument sets off some suspicious-skeptical alarms, since it seems cousin to the idea that we might as well lock ’em up for drugs as for anything else, since, if we didn’t, “they” would be committing violent offenses anyway. “It is, of course, completely fair to debate the morality . . . of using drug charges to tackle underlying violence,” Pfaff observes, to his credit. He accepts that “blacks are systematically denied access to the more successful paths to economic stability,” and therefore “face systematically greater pressure to turn to other alternatives.” But he also makes a more complicated argument, following recent sociological research: it’s not that the prohibition of drugs attracts crime, which then produces violence; it’s that violence thrives among young men deprived of a faith in their own upward mobility, making drug dealing an attractive business. In plain English, young men without a way out of poverty turn to gangs, and gangs always turn to violence. Since efficient drug dealing is, by its illicit nature, likely to involve violence, those accustomed to violence are drawn to drug dealing. One sees the logic: Lucky Luciano and Al Capone weren’t ambitious street kids who chose bootlegging as a business, and were then compelled to become gangsters to pursue it, as in “Boardwalk Empire.” They were already cadet gangsters, who saw that their acquired skills lined up neatly with those demanded by bootlegging.

Pfaff’s conclusion from the data is that the responsibility for mass incarceration lies primarily with county prosecutors. The answer should, according to him, be a more parsimonious prosecutorial policy, avoiding overcharging even in violent offenses, which are, after all, not made of the same cloth. But what if instead of modifying prosecutorial policies after bad things happen we were to try and remedy the problem of lack of alternatives before the violence occurs?

This is exactly the rationale of programs like Advance Peace. By providing people who are at the very heart of violent behavior an opportunity to exit the violent world, we could provide more safety to more people, and at the same time target incarceration where it really matters.

To go down this path, we have to be courageous enough to understand that, ultimately, the city of Sacramento stands to benefit so much more from a reduction of violence–both in terms of preventing the violent incidents in the first place and in terms of reducing the costs of clogging the system with efforts to prosecute the targeted folks–than it would from the business-as-usual lock-’em-up policy. People who commit violent offenses are often caught for low-level drug offenses, and they will eventually leave prison more violent and less conducive to interventions than when they came in, and even if they are caught for homicide and placed in prison, we will all have to keep up the tab. If people do not commit crime to begin with, we all win. This may not be “fair”–to the extent that offering people opportunities that they’ve been deprived of their whole lives, pushing them to violence, is “unfair”–but it turns out to work better than the alternative.

I’m excited and happy to partner with the City of Sacramento to offer an expanded, data-rich version of this argument as a keynote speaker in their upcoming violence reduction summit. I hope to see many of you there.

Who Is a “Violent Offender?” Amending Prop. 57 and Other Populist Adventures

In the last couple of years, several people–John Pfaff, Christopher Seeds, yours truly–have commented on an important feature of criminal justice reform: it consistently makes a distinction between “violent” and “nonviolent” inmates, ignoring the former and offering the latter early releases, parole, and enlightened sentencing changes. In this vein, Prop. 57, which passed by a great majority this November, offered an escape valve from excessive incarceration to people sentenced for nonviolent crimes (approximately 25,000 inmates in state prisons.)

But what constitutes a “violent crime” is under debate, and some CA lawmakers are under the impression that we have excluded some offenses from this category. They propose amending Prop. 57 to include dozens of offenses, which they perceive as “violent.”

This is a terrible, wasteful, and pointless proposal, and here’s why.

First, a person’s offense of arrest (or even offense of conviction) is no proxy as to the risk they might pose to the public. As Susan Turner and Julie Gerlinger found out, there is no significant correlation between the violence involved in an offense and the recidivism of the offender. This distinction we make is largely for optics and public palatability, and it doesn’t really address risk.

Second, if anything, the category we need to rethink is that of violent criminals, whose aggressive prosecution is the engine behind mass incarceration according to John Pfaff’s Locked In. As long as we continue to retrench our views about violent offender and perceive them as an indistinguishable mass, our correctional crisis will not be resolved.

Third, Prop. 57 does not offer automatic release. It offers the opportunity to appear before a parole board. Presumably the lawmakers proposing the change want us to be safe, right? Well, if the parole board is unconvinced that the person is safe to release, they can simply decline to release them.

Fourth, it’s important to understand what “early releases” mean. Over the years, CA sentencing laws have become a patchwork of draconian enhancements and additions. All Prop. 57 does is offer the person an opportunity to show rehabilitation BEFORE all the draconian additions kick in.

Finally, do these legislatures forget the importance of financial accountability? People who spend unconscionably long times in prison become old before their time, and ill, and therefore expensive.

I really hope this horrible idea crawls back to where it came from. In the last couple of months we’ve come to think of California as an island of reason and progress amidst the national catastrophe. Looks like we have to stand watch at the state capitol as well.