Elections 2016: Does It Matter Who’s President?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“It became a nonstarter,” he said. 

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

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

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

Obama’s Post-Punitivism

President Obama’s speech yesterday at the NAACP was a dream come true for American prison reformers, who have waited for decades to hear a U.S. president retreat from the punitive proclamations we have gotten so used to hearing.

I highly recommend listening to the speech in its entirety, but wanted to point out a few highlights:

1. In the spirit of the events of the last few months, Obama links the NAACP’s activism in the area of criminal justice reform and poverty to their historical standing up to lynching and voting restrictions.

2. “For the first time”, said the President, “the crime rate and incarceration rate both went down at the same time.” This is the first time a U.S. president is acknowledging low crime rates.

3. “Crime is like an epidemic; the best time to stop it is before it starts. . . if we make investments early in our children we will reduce the need to incarcerate those kids.” Obama references investing in early childhood and in summer jobs, mentioning that these will “save the taxpayers money, if we are consistent about it.” These statements are reminiscent of President Ford’s statements on crime (for more on this, see Cheap on Crime.)

4. Obama states an unwavering commitment to enfranchising felons: “If folks have served their time, and they’ve re-entered society, they should be able to vote.”

5. As befitting the setting for the speech, Obama spends a great deal of time “un-othering” crime, by speaking about how “other people’s kids” should be treated like “our kids”, speaking directly about the urgent need to restore trust between the police and the communities it serves.

6. Obama discusses sentencing reform and urges a sentencing reform bill that should be “passed through Congress this year”, which will restore judicial discretion and invest in diversion programs, which “can save taxpayers thousands of dollars per defendants each year.”

(read more about the speech on Slate.)

Some of this is right out of the Cheap on Crime playbook: diversion, nonpunitivism, and rehabilitation are cheaper, make sense in the face of declining crime rates, and should therefore be a bipartisan concent. But there is also a concept of dignity as a communitarian value that is being advanced here. Echoing sentiments that remind me of his days as a community organizer, Obama expect solidarity from his constituents, and he expects them to feel responsible for even the weaker links in the American social chain. Toward the end of his second term, Obama wants to galvanize his supporters to fix some of the things that are wrong in the criminal justice system.

It bears to mention that Obama’s criminal justice mandate extends only to the federal system, which houses a small minority of the inmates in the United States. But even so, changes to the federal sentencing laws may become an important influence on state legislation and, perhaps, also on federal judicial review of state practices. It is also worth mentioning that most presidential candidates for the 2016 elections–from Bernie Sanders to Ted Cruz–are not opposed to the ideas that Obama articulates in this speech; notably, Bill Clinton expressed enthusiasm and relief for his wife’s platform of reversing the punitive excesses of his own presidency. In short, being panicky and punitive is passé, and being fiscally conscious and community-oriented is “in”.

How much of this will translate to real-life policies remains to be seen, but it is encouraging to think that Obama still has a year and a half left to wrangle Congressional Republicans on criminal justice. And he’s dealing with less opposition from the Right than he would have in, say, 2006.

President Obama Interviews David Simon

A truly epic meeting has happened at the White House: President Obama interviewed David Simon, creator of the masterpiece series The Wire.

Yes, you read right, and you can see the entire interview below.

This interview is incredible on several levels. First, it is a strong testament to the power of a cultural piece in shaping discourse around big policy issues. If any television series is worthy of this honor, surely it is The Wire, which, through its depiction of the drug trade in Baltimore, has expanded America’s perspective of the criminal justice system to the schools, the political system, and the media.

Second, this dialogue is truly wonderful to experience. As I write in Chapter 5 of Cheap on Crime, the Obama campaign was the first presidential campaign since Nixon’s that did not feature crime control and punitivism as a central feature. I read this as a testament to the power of recession-era politics to reshape the political conversation. And the followup during the presidency has also been remarkable: no matter what you think about Obama’s foreign or economic policy, it is his presidency that fostered the bipartisan initiative to deescalate federal punishment, as well as the Holder and Cole memos to refrain from intervention in marijuana enforcement in legal states. What this remarkable interview reveals are the complex motivations behind this change. In Cheap on Crime I argue that the recession created conditions under which politicians of all stripes can foster non punitive reforms without suffering electoral and public consequences; but even if that’s what brings people to the table, it is only partly what fuels these changes. This interview is a combination of financial issues (particularly when Obama and Simon discuss the difficulty of young men with felonies to engage in the job market) and broader issues of dignity, like the ones Jonathan Simon covers in Mass Incarceration on Trial. To Obama, perhaps unsurprisingly, what is salient in this picture is boys growing up with absent fathers, or with fathers in prison, and he particularly mentions the fourth season of The Wire, which addresses the schools.

Third, which is poignant, is what Obama says toward the end of the interview: that perhaps the time has come to address the structural issues that lead to overincarceration in the first place. Is he referring to poverty? racism? social stratification? The time to address these differences through deep economic change is sorely overdue, but with a Republican congress any effort to make America more egalitarian and less stratified generates cries of “communism!” panic that echo the 1950s. I have no doubt that Obama and Holder have deeply understood and internalized the lessons of The Wire, but I can also see why translating these lessons to practical political gains in a complicated field of political struggle is a big challenge.

I applaud Obama and Simon for this remarkable conversation.

2014 Election Postmortem: YES on 47!

With enough information to comfortably call appointments and shots, and with some distressing news for Democrats in the Senate, I’d like to focus on the important news on the local scene.

The most important of these for CCC readers is the passage of Prop 47 with 58.5% voter support. The proposition will downgrade several nonviolent, nonserious offenses to misdemeanors, and will allow people currently serving felony time for these misdemeanors to petition for resentencing.

A few things that bear mentioning: First, many of the people whose offenses are affected by Prop 47 are already doing time in jails, as a function of Realignment, and some of them might even be doing a split sentence, which means they’re not in confinement at all. As such, they are also already under the authority of local probation offices and not of the statewide parole apparatus. It would be interesting to know, therefore, how much resentencing would really need to happen. My suspicion is that the effects of Prop 47 will be mostly felt in the counties that did Realignment wrong–building more jails and not using split sentencing–rather than in counties that embraced the reform. The late awakening of the Los Angeles D.A. preceded this proposition only by a few months.

Second: if that’s the case, and if Realignment already did most of this, what practical impact might this have? Well, for starters, think of all the offenders doing time who could not vote in 2014 because they were classified as felons–even though they were physically doing time in jail. Reclassified now as misdemeanants, these folks will be allowed to vote in 2016. This is excellent news that affect many thousands of Californians. Also, there are several Third Strikers whose third offense would now qualify as a misdemeanor, not a felony, and would therefore not trigger the law at all. Those folks are applying for resentencing anyway, as a result of Prop 36 and thanks to the efforts of the Stanford Three Strikes clinic, but I think their chances of prevailing may have improved.

And third: The passage of Prop 47 doesn’t mean that people have become more humane or care more about offenders. The proposition was a classic humonetarian move, appealing to people’s financial prudence, and it was supported by folks of all political stripes, including Newt Gingrich. I only regret that the proofs for Cheap on Crime are already set, otherwise I could add a few hefty paragraphs about this campaign. It’s right out of the Cheap on Crime playbook.

Other than that: Prop 46 did not pass; it was a mixed bag of arguably good things and litigation-hungry things, and I’m not quite sure whether to celebrate or mourn its defeat.

And finally:

Dear Governor Brown, I congratulate you for earning a second term. As California limits governors to two terms, this is your opportunity to take the prison crisis seriously without worrying about reelection statistics. This is an opportunity to reform felon voting laws, to abolish the death penalty (which I know you think is ridiculous and expensive) and to make good things happen for formerly incarcerated people in their communities. This is an opportunity to outlaw Pay to Stay and to abolish long-term solitary confinement in California. Please, take this opportunity and let’s make history. Don’t let a serious financial crisis go to waste.

CCC Endorsements for the November Elections: Yes on 47 and Other Matters

After a bit of a hiatus, CCC is coming back with some election endorsements for Californians. In this endorsement list, I point out only issues that are particular to crime, law enforcement, and corrections; of course, your vote may be influenced by other matters as well.


State Measures

Yes on 47

Prop 47 would reduce sentencing. According to Ballotpedia, which faithfully summarizes the proposition’s text, if it were to pass, it would:

  • Mandate misdemeanors instead of felonies for “non-serious, nonviolent crimes,” unless the defendant has prior convictions for murder, rape, certain sex offenses or certain gun crimes. A list of crimes that would be affected by the penalty reduction are listed below.
  • Permit re-sentencing for anyone currently serving a prison sentence for any of the offenses that the initiative reduces to misdemeanors. About 10,000 inmates would be eligible for resentencing, according to Lenore Anderson of Californians for Safety and Justice.
  • Require a “thorough review” of criminal history and risk assessment of any individuals before re-sentencing to ensure that they do not pose a risk to the public.
  • Create a Safe Neighborhoods and Schools Fund. The fund would receive appropriations based on savings accrued by the state during the fiscal year, as compared to the previous fiscal year, due to the initiative’s implementation. Estimates range from $150 million to $250 million per year.
  • Distribute funds from the Safe Neighborhoods and Schools Fund as follows: 25 percent to the Department of Education, 10 percent to the Victim Compensation and Government Claims Board and 65 percent to the Board of State and Community Correction.

Right now, there is about 60% support for Prop 47. As the Chronicle observes, it seems to be stirring little controversy, and for good reason: it makes sense. You’ll note that this is a classic humonetarian proposal–let’s not throw low-risk people in prison who shouldn’t really be there in the first place, and we’ll save millions doing so. The money is going to a fund that invests in education, victim compensation, and various therapeutic projects. The arguments against it can be easily dispensed with: it won’t “release dangerous people”, because it takes risk into account. It is supported, in grand Cheap on Crime fashion, by people from the left and the right alike, and by victims of crime, who would rather see energy spent on violent offenders. By all means, go ahead and vote YES on 47.

U.S. House

House Representative: Jackie Speier

Speier is one of my favorite politicians. Her work to prevent sexual assault in the military and on university campuses is admirable, as is her sensible approach to databases that would enable tracking down gun ownership. I should say, however, that if you’re a Republican on other maters, you could do far worse than Robin Chew, who would work to reverse climate change and who believes in sensible regulatory reform.

California Supreme Court

Of the three Justices up for retention, I want to mention and support Goodwin Liu, with whom I’ve had a chance to exchange views on criminal justice matters, and who is a sensible and careful interpreter of the CA constitution.

State Executives

Governor: No Endorsement

The race is between incumbent Jerry Brown and libertarian Republican Neel Kashkari. Kashkari has no platform at all on public safety, criminal justice, or corrections, which is truly astonishing given the amount of time the Brown administration spent on these matters, and his focus on “jobs and education” doesn’t seem to include the close connections between these topics and corrections. Obviously, we can’t recommend him. On the other hand, Jerry Brown has maintained that the correctional problem in California has been solved, has fought the Plata order tooth and nail to the point of almost contempt of court, and has practically extorted federal judges into giving him two more years for depopulation under threat of heavy privatizing. Between a bad track record on corrections and no interest in the topic at all, I think it’s a toss-up.

Lieutenant Governor: Gavin Newsom 

Yes, I know. Newsom is responsible for sit/lie in San Francisco. But do we really want Ron Nehring in the lieutenant governor’s chair? He wants to repeal Realignment and build more prisons. It’s a very antiquated and uninformed conservative position, one that most reasonable conservatives have already rejected. This one is a no-brainer.

California Attorney General: Kamala Harris, with Reservations

Having recently heard, with a heavy heart, about Harris’ intent to appeal Jones v. Chappell for reasons that don’t make any sense to me, and watched, with concern, her battle against truancy stigmatize kids and parents along the way, this one is not a no-brainer for me. The correlation between truancy and crime does not necessarily imply causation, and the cause of both–poverty and social neglect–is the one that should be addressed. This campaign is failing to excite voters, but I think it’s for the opposite reasons to those the Gold campaign assumes. We’re disappointed because we want Harris to be smarter on crime, not because we want Gold to be tough on crime. Gold supports legalization of recreational marijuana, but he is inexperienced and does not have thought-out policies on all the issues we are addressing. For what it’s worth, he urged Harris to appeal Jones v. Chappell, so death penalty issues are a toss-up. There doesn’t seem to be much of a platform for rehabilitation, though Harris can cite her collaboration with the Public Defender’s office on Operation Clean Slate.

California Secretary of State: No Endorsement

With Leland Yee, who despite his alleged involvement in corrupted dealings was a big champion for juvenile delinquents in the State Assembly, out of the race, we’re left with a choice between Alex Padilla and Pete Peterson. No one has asked them the important question–do they interpret the CA constitution as Debra Bowen did, to exclude Realigned felons doing time in jails as ineligible to vote? While both candidates speak about the need to improve civics education, Padilla seems to be more interested in actually reaching out to people to expand the vote, but Peterson has some good suggestions for increasing the vote via early voting and other options of convenience.

State Legislature: Notable Issues

Tom Ammiano is not running for reelection, and we thank him for his consistently incredible, sensible, and humane service to folks without voices and voting rights, including the thousands of people on solitary confinement. Neither in Nancy Skinner, who was an important voice for eliminating long-term solitary confinement. In District 17 (San Francisco) you’ll have to pick between David Chiu and David Campos. People I respect support each of these candidates for good reasons. I’m leaning toward an endorsement of Campos, because of his important anti-gang work, but am open to hearing more.

***

If all you remember from this post is to vote YES on 47, I’ve done my job.

From Reproductive Crimes to the Prison Industrial Complex

This coming October, the Hastings Women’s Law Journal will hold a special symposium on family and reproduction in prison, which is incredibly timely. Several important stories from the last few years have raised serious concerns about the correctional authorities’ responsibility for women’s health, pregnancy, and birth in prison.

First, as you may recall, there were efforts to restrict the notorious and common practice of having incarcerated women give birth while shackled. It’s fairly obvious why this is an extremely barbaric practice, and this ACLU report adds some important details.

Then, we heard with shock about a sterilization of female prisoners in California, with very questionable consent. This eventually yielded SB1135, which prohibits the practice.

And just a couple of days ago, this was in the news. Nicole Guerrero, a pregnant inmate in Texas’ custody, was placed in a solitary cell, repeatedly begging for help as her water broke and she was in labor, her cries for care ignored by the guards. Guerrero’s baby died, and the chronology that led to this horrific tragedy includes a nurse who works for a private healthcare contractor. Guerrero is pursuing a §1983 lawsuit against the prison.

There’s hardly anything I can say about this truly horrible incident and the cruelty that led to it that won’t trivialize it, and the basic facts behind it do not seem to be in dispute. My only additional thought about this has to do with the fact that Guerrero’s tragedy occurred in a public setting–a Texas state prison–but one of the people whose behavior was questionable worked for a private healthcare provider. I think we need to problematize the distinction often made by progressive commentators between state institutions and private providers’ institutions. At this point, and in the context of a neoliberal, hypercapitalist economy, it makes a lot less difference who runs the correctional facility overall than these commentaries would suggest. Many functions within state prisons–utilities, phones, cantine services, food, transportation, health care–are partially or completely privatized, as was health care in the institution in which Guerrero was held. Moreover, state actors are behaving like private actors in the market, and many of the corruption scandals and human rights crimes we saw in the last few years–such as Alabama’s Sheriff Bartlett’s profiteering off his wards’ starvation and former Philadelphia Judge Mark Ciavarella essentially selling juveniles to a private contractor for kickbacks–involved public actors. Private prison companies have not cornered the market on cruelty, stinginess, and indifference to human suffering. And wherever a wicked contract is signed, one party tends to be a public actor.

The only answer to this that I can think of is regulation that carefully examines which actors play which roles in exploiting human suffering for profit. Only recently, AB 1876 prohibited the common practice by which sheriffs received kickbacks from phone providers to give them the contract for prison phone services. There are probably ways for sheriffs to bypass this, and we will have to stay fairly attentive to those, but the bottom line is that the lines between the public and the private are so blurred in this economy that maligning “private prisons” misses the point. All actors in these dramas of human cruelty and profiteering–the state included–are acting in a laissez-faire, capitalist market, responding to market pressures, and trying to get ahead; all actors are vulnerable to the sort of indifferent, dehumanizing mentality that seems to have produced the tragedy that happened to Guerrero; and all actors, private and public alike, should be carefully watched and monitored by those who do not want to see more cruelty.
————
Cross-posted on Prawfs Blawg.

Big Developments on the Federal Sentencing Front

The last few months in Federal sentencing have been rather monumental, at least in rhetorical terms. In 2010, as readers may recall, Congress enacted the Fair Sentencing Act, famous particularly for the diminished crack/powder cocaine sentence disparity. And just recently, the Department of Justice announces a clemency initiative that could have far-reaching consequences.

Last December, President Obama took steps toward addressing this situation by granting commutations to eight men and women who had each served more than 15 years in prison for crack cocaine offenses. For two of these individuals, it was the first conviction they’d ever received – yet, due to mandatory guidelines that were considered severe at the time, and are out of date today – they and four others had received life sentences. Since that time, the President has indicated that he wants to be able to consider additional, similar applications for commutation of sentence, to restore a degree of fairness and proportionality for deserving individuals. The Justice Department is committed to responding to the President’s directive by finding additional candidates who are similarly situated to those granted clemency last year, and recommending qualified applicants for reduced sentences.

We are launching this clemency initiative in order to quickly and effectively identify appropriate candidates, candidates who have a clean prison record, do not present a threat to public safety, and were sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate. While those sentenced prior to the Fair Sentencing Act may be the most obvious candidates, this initiative is not limited to crack offenders. Rather, the initiative is open to candidates who meet six criteria: they must be (1) inmates who are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today; (2) are non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; (3) have served at least 10 years of their sentence; (4) do not have a significant criminal history; (5) have demonstrated good conduct in prison; and (6) have no history of violence prior to or during their current term of imprisonment.

Check out this reaction from the Brennan Center:

“With this initiative, the president is making better use of his clemency powers to reduce our exploding prison population,” added Inimai Chettiar, director of the Brennan Center’s Justice Program. “This is an excellent use of executive power by the president. Additional opportunities to use clemency to reduce mass incarceration exist. Specifically, in addition to these important steps forward, the Justice Department should work to identify and seek out the estimated 5,000 Americans who languish in federal prison because they were sentenced before the 2010 Fair Sentencing Act reduced the unjust sentencing disparity between crack and powder cocaine crimes. It should then solicit, review, and expedite clemency applications from these prisoners, instead of waiting for them to identify themselves.”

We can’t help but agree, and add another comment about the difference between executive clemency and other ways of ending the war on drugs: Providing a legal solution that would be retroactive would be incredibly tricky. Many of the cases of people who might receive clemency under this new order are already final, in the sense that all direct appeals of them have been exhausted (or not pursued.) Reopening cases that are final can only occur under very, very rare circumstances. It is exactly in these sort of situations that clemency is a better solution than a necessity for the legal apparatus to admit its defeat and lose legitimacy.

Gubernatorial Budget 2014-2015

The Governor’s proposed budget for 2014-2015 is out and its full text is here. Public safety is addressed on pages 65-88 and the correctional budget is addressed on pages 89-93.

The budget proposes total funding of $9.8 billion ($9.5 billion General Fund and $320 million other funds), which is 9% of the state budget – only slightly less than our expenditures on higher education.

The report reviews the history of realignment and the Plata litigation, mentioning the state prison system’s commitment to reentry as per the Blueprint titled The Future of California Corrections (here is the Blueprint, for your convenience.) The report emphasizes CDCR’s commitment to expanding the rehabilitation menu to reach 70% of all inmates.

The report goes, at length, into the changes brought about with realignment, including the following useful classification of the prison population:

Still, the state prison population is higher than projected in 2013 – about 135,000 inmates vs. the 129,000 projected. The parolee population is expected to increase in 2013-2014 and decrease in 2014-2015, as a result of realignment and the transference of post-sentence supervisees to the counties. There are also more juvenile wards than projected, as a result of an increase in first admissions and in parole violations.

The budget report explicitly refers to the legal battle waged around the 137.5% capacity cap mandated by the federal court, and assumes that the deadline for meeting the cap will be extended by two years. Remember the $315 million that Governor Brown appropriated at the very last minute of the last legislative session? If there is an extension, the budget will allocate the first $75 million of the money to recidivism reduction (state reentry, substance abuse treatment, services for the mentally ill, and a special reentry facility) and the rest to the general fund. However, should the population cap deadline not be delayed, the money will be invested in private prisons “to avoid the early release of inmates.” You can see where this is going; the money is essentially there to more-or-less extort the Three Judge Panel and circumvent its perceived intention. The message is – play nice and give us two more years, in which case we’ll invest in rehabilitation, or you’ll get private prisons galore.

More interesting stuff: A projected expansion of medical and elderly parole. The age cutoff for the latter is 60, which means 5.4 percent of male inmates and 4.4 percent of female inmates (as of June 30.) If they pushed the age cutoff back to 55, which makes criminological and gerontological sense (people age faster in prison, and people leave crime behind at an earlier age), you’d be releasing 11.2 percent of men and 10.4 percent of women. So – a step in the right direction, but plenty of room for improvement.

The report also mentions two other savings mechanisms: nonviolent third-striker releases per Prop 36 and juvenile parole per SB260. While the report doesn’t explicitly take credit for them, it is a bit surprising to read such positive reports of these from an entity that fought the spirit of these initiatives for years.

A considerable amount of the money will be spent on improving health scores in state prisons so they can be wrangled away from the Receiver. Much of the money is allocated to fund litigation, to fight the Receiver and class-action suits in court; the rest of it on improvements to pharmacies, facilities, and staff training. The report mentions the impact of Obamacare on health care for county inmates as opposed to state inmates.

Lastly, there are some notable comments on realignment in the counties. There’s a proposal to make split sentences the default, but it still leaves a considerable amount of discretion to county judges, and would still create big disparities between county. Also, the report notes that keeping long-term inmates in county jails is not a great idea, but does not volunteer to take them back into state institutions en masse (as Manuel Perez has just suggested) because of the need to comply with the Plata/Coleman caps. The state is willing to take in offenders who are serving 10 years or more – that’s about 300 years annually – but that, of course, raises the question why people receive 10 years in prison for non-non-non offenses in the first place.

Criminal Justice Bills Signed Into Law by Gov. Brown, 2013 Season

Image courtesy NBC San Diego.

A month ago we provided a brief overview of the criminal justice bills on Gov. Brown’s desk. With the end of the legislative session, we have some important updates on some of these bills. This is the first of two posts, reporting on bills signed into law; the second post reviews vetoed bills.

We’ve all heard the news about the passage of AB 4, otherwise known as the TRUST Act. Federal law authorizes federal immigration officers to advise state and local law enforcement agents that a given person under custody has to be held for deportation. Under the new bill, CA law enforcement officials are not allowed to detain someone based on an ICE hold after the person is eligible for release from custody, unless certain conditions apply, such as a conviction for specified crimes.

Regular readers may recall our failed attempt to restore voting rights to non-serious, non-sexual, non-violent offenders in jail or on community supervision. AB 149 requires each county probation department to maintain a link to the Secretary of State’s voting rights guide, explaining clearly people’s rights to vote, which is particularly important in the case of probationers, who are eligible to vote in California and may not know that.

And we all remember the happy announcement that AB 218, otherwise known as Ban the Box, passed and was signed into law. The bill prohibits state or local agencies from asking an applicant to disclose information regarding a criminal conviction until the agency has determined the applicant meets the minimum qualifications for the position. From the reentry perspective, it is a laudable initiative that gives formerly incarcerated people a fair shot at being considered for a position on their merits and qualifications. Fewer people are aware of SB 530, which prohibit employers from asking about convictions that have been judicially dismissed or ordered sealed, except in special circumstances.

There were a multitude of gun bills on the Governor’s desk, and the end result on those was fairly mixed. The higher-profile bills were vetoed, such as SB 374, which would have banned semi-automatic rifles with detachable magazines and require registration of even low-capacity rifles, and SB 567, which would have defined some rifles and shotguns as assault weapons. However, AB 231, which makes it a misdemeanor to store loaded weapons where children might have access to them, passed, and so did bills creating prohibitions for businesses from applying for assault weapons permits and two bills restricting firearms for mentally ill patients.

AB 494 increases CDCR’s accountability for literacy programs for inmates. Current law requires CDCR to implement literacy programs that would bring inmates, upon parole, to a 9thgrade reading level. ABA 494 requires CDCR to implement literacy programs that allow inmates who already have that level of literacy to acquire a GED certificate or its equivalent, as well as offer college programs through voluntary education programs. It also lists priorities. AB 624 is also a source of similar good news for inmate advocates. The bill allows sheriffs and other county directors of corrections to increase the number of programs that provide inmates with good credits toward release. Along the same lines, AB 1019 requires that the Superintendent of Education set goals for technical education programs in prison.

In helping folks reintegrate into their communities, record-cleaning and expungement issues are incredibly important. Now that AB 651 has been signed into law, defendants who did jail time for felonies may apply for expungement (withdraw their plea of guilty) after one or two years following the completion of the sentence, if they have an otherwise clean record; this makes their situation vis-a-vis expungements similar to that of defendants on probation. Defendants who completed prefiling diversion programs may also petition to seal the arrest records, under newly enacted SB 513. There are special rules about expungement of juvenile records, and AB 1006 creates an obligation to notify juvenile defendants of their rights to petition for sealing and destruction of the records.

There are other bills specifically geared toward juvenile defendants. SB 569 requires recording all interrogations of juveniles accused of murder (why only juveniles? why only murder? I suppose someone thought an incremental approach would be best.) And, of course, there’s SB 260, which, as we pointed out in the past, extends SB 9 to allow resentencing petitions for juveniles sentences to lengthy periods of time.

And more good news on the health care front: AB 720 requires the board of supervisors in each county to designate an entity to assist certain jail inmates to apply for a health insurance affordability program, and will prohibit county jail inmates who are currently enrolled in the Medi-Cal from being terminated from the program due to their detention, unless required by federal law or they become otherwise ineligible.

While SB 649, intended to reclassify simple drug possession as a “wobbler” (in order to allow it to be prosecuted as a misdemeanor) was vetoed (and more on that on the next post), there are some developments. AB 721 redefines drug transportation as transportation for sale purposes, effectively decriminalizing transportation for personal use.

There are also some expansions to police authority and some new criminal offenses, but at least from my perspective they seem fairly reasonable–a far cry from the super-punitive voter initiatives of elections past. SB 255 prohibits “revenge porn”, that is, distributing someone’s nude photo to cause them distress. [EDITED TO ADD: Notably, the law does not cover “sexting” situations, that is, redistribution of photos the victim took him/herself.] SB 717 allows issuing a search warrant to authorized a blood draw from a pesron in a “reasonable, medically approved manner, for DUI suspects who refuse to comply with police request for a blood draw. There’s also SB 57, which prohibits registered sex offenders from tampering with their GPS devices, which I suppose is good news for folks who think these devices are good tools for recidivism prevention (I have doubts.)

SB 458 tempers the legal requirements for including people’s name in gang databases. Under the new law, a person, or his/her parent/guardian in case of a minor, now gets notified that there’s an intention to include him/her in the gang member registry, and the person may contest, with written materials, said designation. Local law enforcement has to prove verification of the designation, with written materials, within 60 days.

And finally, SB 618 extends the ability to receive compensation for wrongful conviction to felons serving jail time. Also, the bill extends the time to apply for compensation to two years, requiring the Attorney General to respond within 60 days, and also removes the burden on the exoneree or pardoned person to prove that they did not intentionally contribute to bringing about the arrest or conviction.

Some important themes emerge. First, note the emphasis on reentry and reintegration in the job market, which is a healthy recession-era policy to allow formerly incarcerated folks at least a fighting chance finding employment and rebuilding their lives. We’re also seeing particular care with regard to juvenile offenders, especially those charged with or convicted of serious offenses. There isn’t a lot of hyperpunitive legislation, and the few new offenses seem tempered and reasonable. The next post deals with the vetoed bills.

·