Reversing the Punitive Pendulum?

A while ago we discussed the question whether Californians were punitive, and offered a slew of sources that suggested that, when people are aware of the costs involved in the correctional monster, their level of punitivism decreases considerably.

Pew Center on the States’ new report offers encouraging news to anyone who, like me, believes that the financial crisis has changed the landscape of American corrections in fundamental ways.

Some key findings:

  1. American voters believe too many people are in prison and the nation spends too much on imprisonment.
  2. Voters overwhelmingly support a variety of policy changes that shift non-violent offenders from prison to more effective, less expensive alternatives.
  3. Support for sentencing and corrections reforms (including reduced prison terms) is strong across political parties, regions, age, gender, and racial/ethnic groups. 

These is no coincidence. I maintain that the financial crisis, and the growing public attention to fiscal prudence, is impacting public opinion like never before. Brown v. Plata and an increased media focus on prison expenditures increased the visibility of prisons, who had been invisible to the public eye prior to the crisis. The discourse is changing; policies are changing; and now, public opinion is changing, too.

Happy New Year from the CCC Blog

And what a year it will be!

The Criminal Justice Realignment will figure prominently in our posts this year, with a special focus on the recent news regarding cuts that may endanger many juvenile programs. The most serious concern stemming from the cuts is that juveniles will be tried as adults. Some thoughts on the proper direction to take from Selena Teji and Emily Luhrs are posted here.

We’re also excited about the prospect of SAFE California’s initiative to end the death penalty in California in 2012, as well as a possible amendment of the Three Strikes Law to include only violent felonies.

Thank you, as always, for your readership, and stay with us by reading, commenting, and emailing.

New Execution Procedures Deemed Unconstitutional

Those who have been following up on death penalty practices in California recall that, after a six-year hiatus, CDCR instated new proceedings. Now, a Marin County judge has found the new proceedings unconstitutional, which might mean a longer delay.

The L.A. Times Blog reports:

A judge on Friday threw out California’s new lethal-injection protocols, which have been six years in the making, because corrections officials failed to consider a one-drug execution method now in practice in other death penalty states.


The action by Marin County Superior Court Judge Faye D’Opal sends the state back to square one in redrafting procedures for lethal-injection executions. The death penalty has been on hold for six years in California after a federal court ruling deemed the previously used three-drug method unconstitutional because it might inflict pain amounting to cruel and unusual punishment.


D’Opal said in her 22-page ruling that the state’s failure to consider replacing the former execution practice with a single-injection method violated state law and ignored the courts’ and public criticism of the previous protocols.

Readers who are fed up with the new moves to tinker with the machinery of death, and who find themselves exasperated with the prospect of a CDCR appeal of Judge D’Opal’s ruling, might find the SAFE voter initiative to abolish the death penalty in 2012 an attractive option. It would certainly put an end to the quibble over technicalities.

If you are on the fence about this, perhaps the humonetarian argument from the L.A. Times story will convince you:

A three-year study published earlier this year by a federal judge and a Loyola Law School professor reported that taxpayers have spent $4 billion to carry out 13 executions since capital punishment was reinstated in 1978, and that it costs at least $184 million a year to maintain death row and the capital defense system.

Book Review: Thinking, Fast and Slow

Daniel Kahneman‘s new and fantastic book Thinking, Fast and Slow is a fascinating journey into an intellectual career spanning more than forty years. Kahneman, who won the Nobel prize for his work on rationality with Amos Tversky, presents a lifetime of research and findings into human rationality and its fallacies in a coherent, intriguing and convincing way. It is a book I would wholeheartedly recommend to anyone regardless of the context of criminal justice. Kahneman and Tversky’s ideas on rationality, however, have special bearing on issues of criminal justice policy, and the book might therefore be particularly interesting to this blog’s readership.

To fully understand the novelty Kahneman’s (and Tversky’s) Nobel-winning ideas, it is important to keep in mind that they were generated against the backdrop of very traditional ideas of human rationality in economics. Classic economic theory assumes a human subject who is fully rational, fully knowledgeable, and operates within a framework of cost-benefit analysis. Kahneman and Tversky, students of human behavior rather than of economics, devoted their careers to questioning and refining this model of human cognition to accommodate flaws and fallacies in rationality, revolutionizing the field of economics and enriching it with empirical insights about the actual and irrational workings of human behavior patterns. Which is how a psychologist ended up receiving a Nobel prize for economics.

Kahneman introduces his ideas to the public through a fresh perspective that serves as the leitmotif of the book. Our thinking, he argues, is characterized by two modes, or systems, if you will. System 1 is responsible for the quick-and-dirty judgments and conjectures that allow us to instantaneously make sense of the world. When more effort is needed, System 2 snaps into action, and engages in the complex thinking required to solve problems or think outside our cognitive box. The problem is that System 2 is lazy. It does not come into play unless it absolutely must, and it takes an effort to engage. So, our default mode is to slack and allow System 1 to do our work for us. The result is that we generate our opinions about the world in ways that rely on shortcuts, assumptions, stereotypes, overly causal interpretation, and anchors, that are flawed and lead us to making a myriad of mistakes.

Kahneman proceeds by mapping for us, chapter by chapter, a series of these fallacies. Among the heuristics and biases he mentions are the halo effect (forming an opinion of something based on one or two qualities and extrapolating), What-You-See-Is-All-There-Is (WYSIATI – relying on whatever information is available, no matter how flimsy and unreliable), anchoring (linking our assessments to whatever number is thrown out, no matter how improbable), substituting difficult questions for easy ones, ignoring base lines, ignoring regression to the mean, and creating overly causal narratives for things that could be accounted for through pure chance. He then walks us through the impact these fallacies have on professional decision making, and finally through his more recent work on happiness.

The book is fascinating for anyone who is interested in understanding human behavior, but I found its implications for criminal justice policy particularly startling. The insights on flawed rationality can explain not only public punitivism and voter initiatives, but also the flawed behavior of professionals: judges, prosecutors, and defense attorneys. Here are some of the many examples of possible applications.

A recent Supreme Court decision grappled with the question how to prevent injustices stemming from the prosecution’s failure to comply with the Brady requirement to disclose to the defense “any exculpatory evidence”. The assumption made by the Court is that monetary compensations to exonerees who were wrongfully accused without an opportunity to receive evidence in their favor are only effective when prosecutors acted out of malice. In a paper I presented at a Constitutional Law conference in Chicago, following Kahneman, Tversky, and a solid body of behavioral research, I suggest that many Brady violations may not be attributable to anyone’s fault, but rather to confirmation bias: Prosecutors and defense attorneys simply read evidence differently, and prosecutors, given their professional environment and their pro-government bias and socialization, are less likely to view evidence with an eye toward its exonerative potential. I’m in the process of devising a study to examine the existence and extent of confirmation bias in prosecutorial and defense perception of evidence, as well as its causes.

Another big area where heuristics and biases are important is sentencing. Kahneman’s book is full of examples of flawed decision making due to chance issues. Notably, he cites a series of studies comparing judicial decision making to those of computer algorithms, finding that the computer makes less mistakes. But he also shows how judges making parole decisions tended to be more generous in terms of release immediately after eating, when their ability to access System 2, and their cognitive ease, were at their prime. This is, of course, greatly disturbing, and a factor to keep in mind when thinking of the strong judicial opposition to sentencing guidelines and any form of diminished discretion. Contrary to the bon ton in today’s analysis of the correctional crisis, it may well be that sentencing guidelines and the diminishing discretion of judges were not a fatal decision reached by overzealous punitive right-wingers and misguided left-wingers, but rather a good decision, whose adverse effects are not due to the decrease in judicial discretion, but due to the increase in prosecutorial discretion.

Another important implication of al this risk prediction and algorithms. Kahneman’s experiments strongly support favoring the quantitative tools used by various correctional systems, including CDCR, over the sort of clinical risk assessments popular in the early 20th century. The concern we have with giving machines the power to assess individuals’ risk based on stereotypes may be exaggerated, Kahneman’s work suggests. Humans may make more serious mistakes, and reliance on past predictors of recidivism or parole violations are more reliable than intuitive impressions of trust and sympathy.

An area I find particularly compelling is the study of public punitivism, and prospect theory could have a field day with what we know of this. A decent argument can be made that much of what passes for public decision making in the field of voter initiatives is System 1 work. First, the public’s reliance on “redball crimes” – shocking instances of horrifying, sensationalized crimes, that receive a lot of media attention – is a prime example of WYSIATI. Rather than engaging with statistics that expose the entire picture of crime reality, we rely on what is salient and reported, rather than with what we know to be truer. Moreover, much of the punitive legislation against sex offenders might be an example of substituting difficult questions with easy ones. Rather than thinking what sort of punishment sex offenders deserve, or how many resources to invest in punishing them, or which measures would reduce recidivism, voters may be thinking on how much they dislike sex offenders. A System 1 mechanism of “translating scales” converts the extent of dislike and revulsion to a measure of punishment, and punitive voter initiatives are born and passed as law.

There could be many more examples of possible applications, and I’m happy to entertain some of these in the comments. i just want to add a  final note on the delights of Kahneman’s book: What distinguishes this book from other popular behavioral science books, such as Dan Ariely’s Predictably Irrational, or Malcolm Gladwell’s Blink, is not only its quality–Kahneman respects his readers, does not oversimplify, and happily shares the depth of his intellectual process, which places this book in a class of its own–but the moving, nostalgic tribute it makes to the working partnership and decades-long friendship between him and Tversky. As many friends who have collaborated on research projects know, the relationship between collaborators is unique and special; the curiosity and give-and-take of the work creates a strong bond. The book is a love letter to Tversky and to the two researchers’ community of students and colleagues. One can almost walk side by side with Tversky and Kahneman, listening in on their conversations and debates, witnessing the generation of ideas sparked by their easy, friendly conversations, and feeling the parental warmth of their respect and enthusiasm for the success of their intellectual children and grandchildren: professors, postdocs, and graduate students. It is a pleasure to enjoy this additional dimension on the book, made more poignant by the heartbreak over Tversky’s untimely death at 59 in 1996, six years before the Nobel prize win. And it is a reminder of how important it is to appreciate one’s scientific community, or scientific family, and its contributions to one’s intellectual and emotional life.

—————-
Many thanks to Haim Aviram for our discussions about this post and to Robert Rubin for the recommendation.

Policing a Legalized World: Marijuana Growing, Searches, and Probable Cause

One of the things people often forget in debates about legalizing marijuana is that any effort at regulating a field creates interesting ambiguities. Our example-de-jour comes from the city of Arcata, where a lawsuit has been filed against the police for searching a house in which medical marijuana was grown. Here are the facts from the newspaper:

The claim — based on injuries allegedly suffered by Sage and her late husband, Charles Sage, 67 — alleges that Arcata Police officers unlawfully searched the Sages’ Zehndner Avenue home early in the morning of May 27, when Sage opened her door to an officer disguised as a utility meter reader only to have about a dozen officers enter her home with guns drawn. No marijuana was found on the premises.


While officials declined to comment specifically on Sage’s claim, they said law enforcement acts in a good faith attempt to target individuals who are in flagrant violation of Proposition 215 and Arcata’s medical marijuana ordinance. However, they noted that most violators do so under the auspices of medical marijuana and that the foggy state of California’s laws make enforcement a tricky endeavor.

Here’s the problem: Arcata’s medical marijuana growth is regulated by a land use ordinance “which allows for grows of up to 50 square feet and utilizing no more than 1,200 watts per residence.” That is, while you need a CA card to be a medical marijuana user, you don’t need one to be a grower. There is no approved list of growers anywhere, and Sage and her husband grew marijuana for Charles Sage’s prostate cancer and other ailments.

So, what was the police doing there? Well, the basis for the search warrant was marijuana smell emanating from the house. But hey – in order to obtain a search warrant, there has to be probable cause that an offense is being committed. In a post-prop-215 world, growing marijuana in itself is not an offense; growing it in violation of the ordinance is. The smell alone does not furnish probable cause that an offense is being committed.

But what is the police to do? Is home search the only way to ascertain whether there is compliance with the ordinance? If the smell of marijuana does not imply illegal activity, then something more is needed. The police could stake the house and see if there is an unusually high volume of people coming and going; conduct undercover investigations; or do something of the sort. Interestingly, in Kyllo v. United States (2000), the Supreme Court banned the usage of thermal images to scan a house for heat activity (including marijuana growth lamps). The reasoning was that it’s an invasion of one’s home. Ironically, in a post-215 world, Sage’s privacy would be less intruded upon through the usage of a thermal imager, that could tell the police whether she’s growing the allowed amount, than through a full search of the house with guns drawn. This is an interesting example of the many enforcement dilemmas the police would have to cope with had Proposition 19, which allowed home growth for personal use, passed. And it is a reminder that legalizing drugs for personal use requires careful attention to detail.

Today at Hastings: San Francisco District Attorney Debate

UC Hastings will be holding a free, open to the public event today, which might help some of our readers make up their minds regarding their voting choices on Nov. 8. We’ll be hosting four of the five candidates for San Francisco District Attorney: Sharmin Bock, Bill Fazio, David Onek and Vu Trinh. The event will be moderated by my colleague Rory Little, and live streamed through the event listing.

Start: 10/26/2011 from 3:30 PM to 5:00 PM
Location: 200 McAllister, Alumni Reception Center

See you there!

Prison Hunger Strikers’ Numbers Increase

(reposted from https://prisonerhungerstrikesolidarity.wordpress.com)

12,000 Prisoners Resume Hunger Strike in California

Outrageous Retaliation by Prison Officials

by Larry Everest and Bay Area Revolution Writers Group

A very just, very significant and courageous battle is rapidly spreading in California’s state prisons—and beyond. On September 26, prisoners at Pelican Bay State Prison in the Security Housing Unit (SHU) resumed their hunger strike—in the face of vicious lies and attacks and retaliation by the California Department of Corrections and Rehabilitation (CDCR) and other state officials, including Governor Jerry Brown. They had been on a hunger strike from July 1-July 20, demanding an end to the horrifically inhuman conditions they face. On September 29, the CDCR admitted that 4,252 inmates in eight state prisons had missed nine consecutive meals since Monday, September 26, and that state prisons at Calipatria, Centinela, Ironwood, Pelican Bay, San Quentin, and Salinas Valley, as well as the California Substance Abuse Treatment Facility and state prison at Corcoran, had all reported inmates on hunger strike. (The CDCR won’t count a prisoner as being on hunger strike until he or she has refused nine straight meals.)

These officials figures, it turns out, underestimated the number of prisoner hunger strikers. On October 1, Prisoner Hunger Strike Solidarity’s website reported, “Numbers released by the federal receiver’s office show that on September 28, nearly 12,000 prisoners were on hunger strike, including California prisoners who are housed in out-of-state prisons in Arizona, Mississippi, and Oklahoma.” (The website adds, “Representatives of the hunger strikers have previously stated that this will be a rolling strike, allowing prisoners to come off strike to regain strength. Because of this, numbers will likely fluctuate throughout the duration of the strike.”)

The strike has also reportedly spread to at least one county jail. The Inland Valley Daily Bulletin reported that 50 prisoners in the West Valley Detention Center in Rancho Cucamonga, east of Los Angeles, are refusing to eat in support of the hunger strike in the prisons. (September 27, 2011)

More than 6,500 prisoners joined the three-week hunger strike in July. Prisoners at Pelican Bay suspended the strike on July 20 after prison officials promised they would meet some of the prisoners’ demands and address the main issues prisoners were raising. Then in September, prisoners wrote a statement saying these promises had not been kept: “We remain in SHU indefinitely, deprived of our basic human rights—based on illegal policies and practices, that amount to torture; torture of us, as well as our family members and loved ones on the outside. CDCR remains in denial, and continues to propagate the lies re: ‘worst-of-the-worst’ 3000 gang generals, etc.—in order to dehumanize/demonize us, so as to maintain the status quo… CDCR’s intent is to break us down, and coerce us into becoming state informants! A violation of international treaty law, period! This is not acceptable!” (Go to revcom.us/s/pelicanbay-hungerstrike-en.html for extensive coverage of the July hunger strike.)

These prisoners are now putting their lives on the line again, demanding to be treated as human beings—demanding that the CDCR end the barbaric, inhumane conditions of imprisonment throughout California prisons, particularly in the “Security Housing Units” or SHUs. There, thousands of prisoners are locked in solitary confinement in windowless cells, 7.6 feet by 11.6 feet, for 22 hours or more a day for years, denied human contact. There are 1,111 inmates confined to the SHU at Pelican Bay alone, where the average length of confinement is 6.8 years. More than 500 prisoners have been in the Pelican Bay SHU for more than 10 years; 78 have been in the SHU for more than 20 years!

The prisoners’ demands include an end to group punishment, abolishing the CDCR’s gang status and “debriefing” policies, ending long-term solitary confinement, providing adequate food and expanding constructive programming and privileges. (See “Prisoners at Pelican Bay SHU Announce Hunger Strike, Revolution #237, June 26, 2011, for the prisoners’ five demands.)

Vicious Retaliation Against Hunger Strikers

Prison officials were deeply shaken by the breadth and strength of the July 1-20 hunger strike. This courageous action brought to light the horrific conditions of solitary confinement—amounting to torture—and there was broad support for the prisoners’ just demands.

After prisoners announced the strike would be resumed, prison authorities issued two memos to 165,000 prisoners—warning them against going on strike, claiming they were making changes. Disciplinary warnings were issued to thousands of hunger strikers. Supporters of the strikers report that a number of prisoners lost their jobs as punishment for supporting the strike in July, that some received punitive disciplinary write-ups, and some prisoner negotiators were being singled out and threatened with transfers and subjected to cell searches.

A September 29 press release from the CDCR said it “will not condone organized inmate disturbances” and warned: “Participation in mass hunger strikes and other disturbances will result in CDCR taking the following action: Participation in a mass disturbance is a violation of state law, and any participating inmates will receive disciplinary action in accordance with the California Code of Regulations; and Inmates identified as leading the disturbance will be subject to removal from the general population and be placed in an Administrative Segregation Unit.”

Matthew Cate, Secretary of CDCR, interviewed by Berkeley’s KPFA radio on September 27, threatened prisoners: “If they still want to be on a hunger strike then there will be some consequences to that, because you can’t shut down prison operations with no consequences.” Cate repeatedly described the hunger strike as a “mass disturbance” and compared it to a riot. Attempting to justify why the media are not allowed access to the prisoners on strike—who are risking their lives to demand an end to inhumane conditions—Cates said it was “the same reason that we don’t allow media to have access to Charles Manson.”

On July 29 the CDCR released a revision to its Medical Services Program Policy and Procedures regarding a mass organized hunger strike—including criteria for when the force-feeding of inmates will take place. This could mean the CDCR plans to force-feed prisoners to break the hunger strike. The American Civil Liberties Union has written that “force-feeding contravenes U.S. domestic and international law and is universally considered to be a form of cruel, inhuman and degrading treatment.” (Press Release: ACLU Calls For End To Inhumane Force-Feeding Of Guantánamo Prisoners, January 9, 2009)

In July, the CDCR repeatedly lied, saying the strike was organized by gangs. Governor Jerry Brown, who never said anything about the hunger strike in July, has now publicly attacked hunger strikers and given full backing to the CDCR’s policies and attacks on the prisoners, saying, “We have individuals who are dedicated to their gang membership who order people to be killed, who order crimes to be committed on the outside… My recommendation is to deal effectively with gangs in prisons.” (California Prison Officials Warn Inmates On Hunger Strike,” CBS San Francisco News, September 30, 2011)

Family members of prisoners participating in the hunger strike are having their visits cancelled. And the Prisoner Hunger Strike Coalition reports that Carol Strickman and Marilyn McMahon, both attorneys who have served on the hunger strike mediation team and have coordinated legal visits for prisoners in the SHU, have both been banned from prisoner visits by the CDCR. This is a further effort to isolate the prisoners and prevent the truth of their situation from being known outside prison walls. (“CDCR Bans Lawyers: TAKE ACTION NOW!” Prisoner Hunger Strike Solidarity, September 30, 2011)

Think about what the draconian actions of the CDCR reveal: Who is defending crimes against humanity? Who is lying and justifying criminal violence against human beings? What does all this show about the utter illegitimacy of the prison system—and brutal nature of mass incarceration in the USA? For prisoners subjected to the most isolating conditions, sitting in their cells and refusing to eat is labeled a “mass disturbance.” Their demands simply to be treated as human beings are met with lies and threats of even more violence against them. This is completely outrageous and intolerable!

Carol Strickman put it like this: “We’re saying they are torturing the prisoners and we want them to stop the torture. The prisoners are so concerned about it that they are going to stop eating. If the response is to increase the torture, then they are just proving who they are and what their values are. This is a human rights issue and they are proving that they don’t see the prisoners as human.”

There is an urgent need for those on the outside to expose and oppose all these attacks on the hunger strikers and their supporters.

Strickman also told Revolution that there are other ramifications if prison officials declare the hunger strike a “mass disturbance”: “They could do lockdowns. That would prevent family visits. That means everybody in the prison can’t have visits. That would be another example of group punishment, and abolishing group punishment is one of the prisoners’ demands. So what they would be doing in response to the prisoners’ demands is to crank up group punishment—the behavior that is being protested. It means people can’t go to the law library, people can’t get medical visits, can’t do classes and programming. In women’s facilities they can’t go do their laundry. You can’t go to canteen. There are a lot of things that flow from a lockdown. That is a serious threat.”

SB9 Defeated in Assembly

Short by five votes, the measure to allow juveniles serving life without parole to have their sentences reviewed by a judge after fifteen years failed in the Assembly. The Huffington Post reports (complete with links):

[T]the United States is the only country that sends people under 18 to prison for life with no parole. “No other country sentences kids to die in prison,” said Yee’s chief of staff, Adam Keigwin. In California, juvenile offenders are ineligible for a death penalty sentence, but they can be sentenced to life with no parole, guaranteeing that they will die in prison. SB9 aimed to change that by offering a chance to appeal if a defendant served a minimum of 25 years and showed remorse and serious change.

The arguments against the bill were victim-centered. For various reasons we explained in an earlier post, this is political rhetoric more than realistic concern. What a disappointment, albeit not as great as the disappointment over the demise of the death penalty abolition bill. Overall, a disappointing week for Californian criminal justice.

SB9, Review of Juvenile LWOP: A Few Misperceptions Corrected

Our posts about SB9 yielded several reader comments, some of which I had to refrain from publishing because of their incendiary tone. I thought it might be worthwhile to tackle some of the misapprehensions regarding SB9. While I think SB9 is a great idea and endorse it wholeheartedly, I am not officially affiliated, politically or financially, with Senator Yee or anyone else involved. Therefore, consider this an academic’s opinion, rather than political propaganda.

This proposal sets dangerous people loose in the streets.

The proposal addresses only two hundred inmates or so, and none of them is being set loose in the street quite yet. What the bill does is allow a judge to review again the case of juveniles sentenced to LWOP after they have already served at least a fifteen-year sentence. And even then, the judge will only have the ability to modify the sentence to twenty-five to life. Overall, it’s a fairly mild proposition.

Aren’t these people dangerous?


Well, some of them might be, and some of them might not. It will be up to the judge to review their history, when petitioned to do so, and to assess whether it is risky to make them eligible for parole. There will be discretion about this. What we know about the trajectory of criminal careers tends to suggest that, for many folks who committed crime in their teens, age tends to “mellow people out” and they become less dangerous as they age.


If it’s only a few hundred people, why is this such a big deal?

In the grand scheme of things, it’s not a big deal at all. A handful of inmates will be serving a very long prison term, rather than an even longer one. But the difference to the individual, in terms of offering a ray of hope, is immense.

Doesn’t that teach juveniles that it’s okay to murder?

Not at all. Twenty-five to life is a very long time for a young person. And that’s assuming that juveniles even think about the repercussions when committing crimes, many of which are expressive crimes rather than cold, calculated ones.

We’re not really saving a lot of money by letting these people out earlier than expected, are we?

That’s impossible to answer accurately without proper data. However, it stands to reason that the older our inmate population is, the more we’ll be spending on its health care, which is already approximately one third of our correctional budget. Letting someone out when he or she is in his or her fifties, rather than letting him or her die behind bars, might spare us some of the costlier inmates and allow us to focus resources on others who need urgent care.

They committed murder and deserve never to see the light of day again.

Well, that is a legitimate opinion, but what someone “deserves” depends on your definition of just desert. Spending twenty-five to life behind bars, subject to violence, overcrowding, and prisons devoid of rehabilitative programming is very far from being a walk in the park.

What about the victims’ families?
That is very much a matter of personal feeling. Many families of murder victims feel immense amounts of rage and sadness and translate those to a wish that the perpetrator of their tragedy rot behind bars. That is understandable. But it doesn’t mean that the state has to grant these wishes to the letter. Moreover, there are plenty of families of victims who do not derive satisfaction from revenge or retribution, and would much rather the money spent on incarceration be spent on more and better homicide investigation, to prevent future tragedies. There are many people who feel this way; the media exposes you to the vocal, angry ones, and they do not necessarily represent everyone.

If the legislators think LWOP sentences should be reviewed, why not abolish LWOP for juveniles altogether?

At this point, Supreme Court case law regards LWOP for juveniles as constitutional for murder (not for other offenses.) Maybe future cases will follow the rationale of Roper v. Simmons and extend the abolition of LWOP to murder as well. But this is an opportunity to do something, now.

For a matter pertaining to so few people, this is eating up plenty of public energy and discourse. Why are we dealing with this, rather than with death penalty abolition and fighting mass incarceration?

Because this is easier to achieve, and these folks need some attention, too. But there is a bill on the CA ballot to abolish the death penalty. There’s also a bill to reform the Three Strikes Law. And it’s about time.

Book Review: Josh Page, The Toughest Beat

California has often been proclaimed ungovernable, its politics described either as too dense to fathom or, in an oversimplified fashion, as a mess generated by unfettered direct democracy and shortsighted financial policies. But some astute political actors have accrued the knowledge and skills to navigate these complex political seas, and the California Correctional Peace Officers’ Association (CCPOA) is one of them.  Joshua Page’s new book The Toughest Beat  clearly and intelligently transcends theoretical abstractions and simplistic clichés to provide a sobering, thorough analysis of the CCPOA’s role in shaping California’s penal policies, and in doing so, provides an excellent primer to the entire landscape of California politics and decisionmaking.
The book begins with a detailed, fascinating history of the rise of the CCPOA from an “old boys’ club” providing social opportunities and camaraderie for its members to a powerful player in state legislation and policy. Using a myriad of sources, in the tradition of “old-school,” well-done ethnographies, the book cleverly tells this story oscillating between the macro world of the state and national contexts and the microcosm of specific personalities. Don Novey‘s role as the architect of the CCPOA’s lobbying and influence strategy is particularly highlighted. Emphasis is placed on the CCPOA’s bipartisan alliances with Democracts (with respect to union concerns) and Republicans (with respect to punitiveness concerns).
This account is followed by two somber chapters, which illuminate the role played by CCPOA in shaping penal policies. The first reveals the complex interdependency between the CCPOA and a few victim organizations, such as the Crime Victims United of California; the latter organizations, representing the interest of specific demographics and a particularly punitive and vengeful victim perspective, were effectively created, managed, and puppeteered by CCPOA. Rather than flinging radical accusations and conspiracy theories, Page’s careful analysis of this web of interdependency and coalitions is understated and backed with hard evidence, including a personnel and finances analysis and ethnographic data. The CCPOA’s wisdom in fostering such mutually beneficial coalitions with victim organizations, district attorneys, sheriffs, and wealthy private citizens, is grimly shown to prove itself in the following chapter, which analyzes, blow-by-blow, the passage of the Three Strikes Law, California’s pioneering piece of punitive legislation. While the story behind California’s return to determinate sentencing, and the subsequent story of its romance with an ultrapunitive sentencing regime, are a larger story than that of the CCPOA, the union played a pivotal role in selected phases, and was a dominant factor in swinging the punitive pendulum. This account is an indictment not only against CCPOA, but against a system in which the idea of direct democracy is marred by a reality of unregulated funding, misleading advertisements and abundant disinformation and ignorance.
But Page’s book cannot be reduced to a good guy/bad guy formula. His masterful account of the CCPOA’s epic fight against prison privatization shows the different strategies employed by CCPOA and the private prison corporations, and relies on a deep, intuitive understanding of how the state works to explain how, despite resorting to nefarious techniques such as building a prison on speculation, the private companies did not prevail.
The book reads like a fascinating political thriller. It does not resort to extremism or unfounded proclamations, is concisely written, and is refreshingly free of jargon. Page’s reliance on Pierre Bordieu’s field analysis as his theoretical framework is light-handed and nimble; the theory facilitates, rather than obscures, the book’s clear narrative. It is a book that professionals and laypeople alike would appreciate and enjoy.
I take issue with two minor aspects of Page’s analysis. Firstly, in presenting the punitive background for the rise of the CCPOA, Page paints the “era of rehabilitation” and indeterminate sentencing in nostalgic, overly rosy colors. While the rhetoric and logic of rehabilitation and positivism governed the penal field in California, studies of actual incarceration practice and conditions reveal a grim picture of cruelty, hard labor in the guise of correction at the time, not to mention the arbitrary sentencing practices which dramatically disfavored minority and poor inmates. Determinate sentencing led to a great many evils in California’s correctional system, but it was preceded by a great many evils in its prior regime, which many activists and legal professionals fought to eradicate for all the right reasons.
Second, Page portrays the CCPOA in two somewhat contradictory ways: As an astute political player, who will choose alliances according to what suits its members’ narrow interests, and as an ideologically-committed “law and order” player. I am curious as to which of these frameworks he finds to be a better descriptor. When presenting the CCPOA’s involvement in the creation of Three Strikes, Page refers to it as an “exception” to the “nonintervention rule” regarding sentencing matters, adopted by the union, but his analysis of the involvement and ideological choices made could also regard Three Strikes as a pivotal moment in CCPOA policy, in which it morphed into an ideological player. As Page grimly reminds us at the end of the book, despite CCPOA’s support of sentencing commissions and seemingly more reasonable positions, its powerful, debilitating shadow still looms large over any attempt to reform the correctional system, and its interests in hindering such reforms go beyond its union objectives.
Notwithstanding these minor critiques, The Toughest Beat is a terrific read, and I highly recommend it not only to readers interested in penal policies, but to anyone interested in the inner workings of the political system in the Golden State.