Assemblyman Ammiano Arrives in Pelican Bay

Image courtesy www.examiner.com.

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

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

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

. . . 

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

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

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

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Props to Caitlin Henry for the link.

More on Felon Enfranchisement: Voter Turnout in Israeli Prisons Surges

Today’s short commentary comes from Israel, where exit poll results are out. Big political questions aside, there has been an interesting change in voter turnout in ballots located in prisons. As some readers might know, Israel fully enfranchises both current and former inmates; even Yigal Amir, who is serving a life sentence for murdering Prime Minister Rabin in 1995, has the right to vote. But traditionally, voter turnout among inmates has been fairly low. Haaretz newspaper reports:

נתונים מעניינים מבתי הסוהר, שם נסגרו הקלפיות ב-20:00. בסך הכול, הצביעו 7,435 אסירים, שהם 70.6% מבעלי זכות ההצבעה. זו עלייה דרמטית בהשוואה לבחירות 2009, אז הצביעו רק 21%, זאת בשל שינוי בחוק שהוביל שב”ס לזיהוי האסירים בכרטיס אסיר ללא צורך בתעודות זהות, שלרוב לא היו ברשותם. עד כה נאלצו האסירים לשלם מכספם כדי להנפיק תעודות חדשות ולכן ויתרו בדרך כלל על ההשתתפות. מלבדם הצביעו גם 1,295 אנשי סגל. לא נרשמו אירועים חריגים לאורך היום.


Interesting data from prisons, where ballot boxes closed at 8pm. Overall, 7,435 inmates voted, who constitute 70.6% of all inmates eligible to vote. This is a dramatic increase compared to the 2009 elections, in which only 21% [of inmates] voted, due to a change in law that led the Prison Authority to identify inmates based on their inmate card without need for an Israeli I.D., which they often did not have. Until now, inmates had to pay out of pocket to obtain new I.D. cards and therefore usually forewent their right [to vote]. In addition [to the inmates], 1,295 correctional staff voted. No unusual events were recorded during the day. [My translation – H.A.]

This is interesting, albeit anecdotal, data for several reasons. First, it refutes the notion that voter turnout among the inmate population is universally low, or the assumption that it would be low if they were given the vote in countries in which they are disenfranchised. Second, and more interestingly, it effectively refutes the tendency to ascribe low turnout to voter apathy. Rather, it indicates that the expense involved in documentation and bureaucracy – even when there is no real voter fraud concerns, or if they are bogus – is the real deterrent from voting. This has implications beyond the inmate population, as to voter I.D. laws in the US in general, criticized – rather colorfully – by Sarah Silverman before the 2012 U.S. election.

The concern about low voter turnout is real, and the corollary – as the Israeli inmate case tells us – is that facilitating the right to vote for people for whom obtaining the appropriate card is an expense or a hassle enriches the electorate in people who are engaged and interested in impacting life in their communities.

And who knows? Maybe recidivism rates in Israel are lower because people are never divorced from the fate of their countries and never cease to be enfranchised citizens.

Redball Crimes and Criminalization: Why Gun Control Makes Sense

The last few days have seen abundant web commentary for and against President Obama’s gun control legislation plan, as well as some localized efforts in that direction. Critiques based on the Second Amendment as a constitutional right are not as interesting to me as the ones that argue this is unnecessary regulation based on moral panic.

We’ve talked before about moral panic in the context of shootings. Legitimate horror and shock aside at such events, they are not as common as they might seem; as a cause of death, shootings generate much less death than illnesses (some of them preventable and treatable.) So is gun control an exaggerated, moral-panic-triggered response to Newtown? Should we hesitate more before introducing such legislation?

There’s an important difference between gun control and criminalization, and it goes to the proportionality of state reaction. While CNN seems to have serious doubts as to whether this legislation will pass congress, the content of the legislation itself does not feel too onerous or dramatic. No one goes to prison for years for victimless crimes, which is often the end product of moral crusades. People can still have guns and shoot them to their heart’s content, as long as they don’t use assault rifles and/or high-capacity magazines. Mental health access is improved, as is school security. In short, this is more of a situational crime prevention measure, which is exactly what we advocated here, rather than an initiative that demonizes a group of people. In short, nothing truly earth shattering. The panic that these fairly sensible and mild reforms is generating among the NRA and their allies is a sobering reminder of how partisan politics closes one’s ears to reason.

New Homelessness Decriminalization Bill

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

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

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

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Props to Eric Chase for the link.

On Sandy Hook, Moral Panic, and Legitimate Fear

Map of shooting incidents courtesy Mother Jones;
interactive version on the website.

Much of the commentary on Sandy Hook has highlighted the rise in the number of public shooting incidents in the course of the last few years. Some of the aggregate data on the shootings can be found on Mother Jones or on the Citizens Crime Commission of New York City website. Does the fact that there seem to have been many recent incidents of mass murders and spree killings of this sort mean that we have a phenomenon we need to worry about in a systematic way? We are, of course, saddened, heartbroken, angry–but should we also be afraid?

The answer to that question depends on how one defines “phenomenon” and how one decides what to worry about. Since there is no official measurement for “worrisomeness that merits criminalization/heightened enforcement”, the extent to which we take steps to criminalize, police, and curtail rights depends on how severe we assess the threat to be. And that is, generally speaking, a question that involves politicians, the media, and the public.

One criminological concept that pops up in these discussions quite often is moral panic. A term coined by Stanley Cohen in his classic book about the Mods and the Rockers, it is “a condition, episode, person or group of persons [who] become defined as a threat to societal values and interests.” Cohen emphasized that the panic is amplified by media reports and often culminates in a call to do something on the matter. Goode and Ben Yehuda identify consensus, a heightened level of concern, and hostility, as important factors in a moral panic.

Unmentioned in the definition, but implied in the literature, is the assumption that the panic is exaggerated. That is, that there is no real cause for concern, or at least not to the extent that justifies criminalization or curtailment of personal rights.

In 1999, Ronald Burns and Charles Crawford published an article on Crime, Law and Social Change about school shootings as a moral panic. The article shows the interaction between politicians, media reports, and public outcry, in the aftermath of Columbine. As they analyze the political and media attention to school shootings, they offer the following to show that the concern was disproportionate:

Were these massive societal responses to what were indeed heinous, threat- ening offenses against schoolteachers and students justified? A closer look at statistics regarding juvenile crime and more specifically school violence suggests that what occurred was arguably an overreaction to the situation. For example, consider the following sample of recent findings regarding juvenile crime in the context of the aforementioned societal responses: 

  • There has been no increase in the number of children under age 13 arrested for homicides in the U.S. In 1965, 25 children under age 13 were arrested for homicides and in 1996 it was 16, a 36 percent decline (Donahue, Vincent and Schiraldi, 1998). 
  • Overall, fewer than 3 percent of the killings in America in 1996 involved someone under age 18 killing someone else under age 18 (FBI, 1997). 
  • FBI data suggest that national youth violence arrests went down both in number and in share of total youth arrests between 1992 and 1996 (“Violent youth . . .,” 1998). 
  • Three of four young murder victims – 90% of them under age 12 and 70% of them agged 12–17 – are killed by adults, not by juveniles (Males, 1998). 

While one cannot discount the substantial increases in juvenile crime during the late 1980s, recent reports suggest that the problem is diminishing. Bernard (1999) suggests that although there exists conflicting trends, the most consist- ent interpretation is that juvenile crime, with the exception of homicide, has declined by about one-third over the last twenty years. In their chapter titled: “Juvenile Superpredators: The Myths of Killer Kids, Dangerous schools and a Youth Crime Wave,” Kappeler, Blumberg and Potter (2000) elaborate upon these and similar findings. There has been a similar, and probably more pro- nounced decrease in the amount of school violence. Consider the following: 

  • There were 55 school shooting deaths in the 1992–1993 school year; 51 in 93–94; 20 in 1994–995; 35 in 1995–96, 25 in 1996–97; and 40 in 1997–98 (Lester, 1998). There are more than 50 million students and more than 80,000 schools across the country (Sanchez, 1998). 
  • A child’s chances of being struck by lightning are greater than the million- to-one odds of being killed in school. The number of children killed by gun violence in schools is about half the number of Americans killed annually by lightning (Byrne, 1998). 
  • According to PRIDE, the number of students bringing guns to school dropped from 6 percent in 1993–94 to 3.8 percent in 1997–98 (“1 million . . .,” 1998). 
  • In Los Angeles, 15,000 people have been murdered during the 1990s. Five occurred at school. Of 1,500 murders in Orange County during the 1990s, none took place at school. Institutions in these areas serve 2 million students, including 700,000 teenagers (Males, 1998). 
  • The United States has approximately 338 million children between the ages of ten and seventeen who attend roughly 20,000 secondary schools. In 1994, there were no school shootings in which more than a single person was killed; in 1997, there were four; and in 1998 there were two (Glassman, 1998).

Available data from sources such as the Centers for Disease Control, National School Safety Center, National Center for Education Statistics, U.S. Depart- ment of Education, and The Sourcebook of Criminal Justice Statistics support the suggestion that the recent school shootings were idiosyncratic events and not part of any recognizable trend. Ironically, the shootings may have received such intense coverage because of the infrequency of these occurrences rather than their frequency (Donohue, Schiraldi and Ziedenberg, 1998).

Similar arguments can be made today. While there has been an uptick in the number of these murderous incidents, crime, and violent crime in particular, is on the decline nationwide. And while the prospect of falling victim, or losing a loved one, to a mass shooting is terrifying and horrible, the odds of this occurrence are still very, very low.

Does that mean that the concern is unjusfied? Disproportionate? I don’t think so. I think that fear of crime is an entirely real and reasonable response to such an incident. We respond strongly to experiences and events not just on account of their frequency, but also on account of their magnitude and meaning. So, yes. We are sad, and heartbroken, and angry, and have every right to be sad, and heartbroken, and angry.

The next question to tackle, after we dry our tears and sit at the policymaking desk, is how do we want the odds of another horrific occurrence to shape and affect the architecture and organizational culture of our schools. Do we want more metal detectors? More armed guards? More search points at the entrance to schools? How would that affect the learning experience, intellectual growth, and social interactions of the nation’s children? All of those balances will have to be done delicately and carefully, because, by contrast to a horrifying mass murder scene, their effects will be subtle and intangible. And we should keep in mind, that it is okay to be sad, and heartbroken, and angry, and at the same time, wise and thoughtful in our policymaking reactions.

Sandy Hook, Gun Control, and Situational Crime Prevention

Image courtesy clubrunwithus.com.

Among the information that has come to light in the last few days was the fact that the innocent children and adults who were slaughtered two days ago were shot with guns owned by Adam Lanza’s mother–and murder victim–Nancy. This is one more data point consistent with the bulk of peer reviewed research confirming that gun ownership, and keeping guns at home, significantly increases the odds of household members dying of accidents, suicide, and homicide.

The hoarse calls for Second Amendment freedoms, and the ludicrous suggestions that teachers keep guns in the classroom “for protection”, I set aside here. I find them tasteless, misinformed, and impossible to reasonably interact with. But I do want to express some surprise not at private citizens and internet commenters, but at situational crime prevention criminologists. For all the advice on how to make crime more difficult to commit, not a word about gun control?

I learned about situational crime prevention in the early 2000s from David Weisburd, one of the world’s foremost experts on it. After learning many lofty theories about the etiology of crime in grad school–free choice, medical pathology, difficult childhood, racism, patriarchy, deprivation, labeling, strain–there was something almost disappointing about delving into a theory that advocated keeping CDs locked behind the counter at the record store, displaying only one shoe of a pair  at the sports store to prevent theft from the shelves, and placing armrests on park benches to prevent homeless people from sleeping on them. Figuring out why people commit crime is a big enterprise, said David at the time; “crime” is a general name for a family of diverse and unrelated phenomena, and there is no shame in manipulating the non-offender factors to reduce its occurrence.

In grad school, and as a postdoc, I confess I looked down on this literature, but I’ve since become wiser and grateful for the time I got to spend with David and read this stuff. Having done some fieldwork on open drug markets, I’ve realized that even the most constrained situations–rife with social inequalities, municipal indifference, and racial injustices–offer offenders some measure of rational choice, however confined it might be. Even within the tough and distressing realities of the Tenderloin drug market, drug traffickers sell their merchandise not under the private SRO surveillance cameras, but away from there, near the municipal cameras they know don’t work. I don’t really buy Ron Clarke’s adherence to rational choice as the principal model explaining human behavior–I find its poverty disturbing–but denying agency and ascribing everything to social ills is equally disturbing and simplistic. To some extent–when done in concert with an effort to understand more deeply what is going on–manipulating the environment to make crime less appealing or more difficult to commit is not a bad idea. Displacement is a problem, of course, but that can be addressed, as David Kennedy reminds us, with tough enforcement at “hot spots”.

But for all the grants, contracts, and consulting that situational crime prevention experts do, their efforts are mostly addressed at quality of life crime and at property crime. Take a look at the advice offered on the Center for Problem-Oriented Policing website, for instance, and click on all the squares. It is geared toward vandalism and petty theft. I expected to see a word about gun control in their “control tools and weapons” tab. Instead, we are told to manufacture “smart guns” and to restrict spray-paint sales to juveniles.

Spray-paint sales?

I think what is happening here is that criminologists who have been dealing with municipalities and police departments don’t want to rock the boat. The minute they make recommendations that might require someone, God forbid, to appear to be pro-regulation or what Americans mistakenly refer to as “socialist”, police chiefs and politicians will stop listening. Sit-lie ordinances, or making benches uncomfortable, do not make politicians tremble. But take something on which there is basically a professional consensus – more easily obtained guns mean more deaths – and everyone is suddenly very quiet.

I want my friends who have given such excellent advice to retailers and housing project managers (I say this with appreciation and admiration, and without a shred of cynicism) to grow a backbone and tell the people who work with them that some government regulation might be necessary. If they are genuine in stating that situational crime prevention is wholly apolitical, and not merely an incarnation of criminological conservatism, isn’t this a good time to argue for gun control? I want my friends to do more than quality-of-life architecture. Research is on their side. All it takes is for one respected scholar in the prevention field, not a shrill-voiced lefty, to say words of reason and science. Who is it going to be?

Elections 2012: Government is Local

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

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

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

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

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

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

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

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

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

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

BREAKING NEWS: Prop 34 Leading in Polls

The Chron reports:

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

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

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

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

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

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

No on 35

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

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

Here’s what Proposition 35 does:

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

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

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

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

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