BREAKING NEWS: Bill Allowing Charging Simple Possession as Misdemeanor Clears Assembly Floor

SB 649 (Leno) will allow prosecuting simple possession of certain controlled substances, including, among others, opiates, opium, opium derivatives, mescaline, peyote, tetrahydrocannabinols (marijuana), and cocaine base, as “wobblers”, that is, either as felonies or as misdemeanors. SB 649 has just cleared the assembly floor, 41-30, and it’s on the way to Gov. Brown via a Senate approval of the amendments.

This is very good news to those who would like to see the end of the war on drugs, and who think that nonviolent drug offenders are being punished too harshly.

UPDATE (Sep. 10, 2013): The bill has now passed the Senate floor as amended and is on its way to the Governor for signatures.

Riverside Jail Sends Inmates to Fire Camps

Image courtesy

This Wednesday, Riverside County Jail became the first county institution to send inmates to California’s fire camps, in which state prisoners help put out fires. Richard de Atley of P.E. bloggers reports:

The 20 inmates were sent Wednesday, June 5 to the CDCR’s Sierra Conservation Camp training facility, in Jamestown. CDCR has agreed to place the trained county inmates in Riverside County fire camps, whenever possible.

. . .

County Supervisors in April approved a Sheriff’s Department proposal to supply county inmates to the fire camp program. More inmates will be sent every two weeks until the program reaches capacity of 200 Riverside County inmates at any time during the next five years.

Riverside County’s five jails have been at capacity shortly after realignment began. More than 10,000 inmates have been released early due to realignment, jail officials have said.

. . .

Riverside County will pay $46.19 daily per inmate. The funds were set aside from realignment money controlled by the Community Corrections Partnership, a joint local agency that includes the probation, sheriff, mental health department and district attorney and public defender’s offices.

Riverside County’s fire camps are located in Norco and Hemet. The county also maintains the Oak Glen camp, located in northern Riverside County inside the San Bernardino National Forest in the San Gorgonio Mountain Range, according to the Riverside County Fire Department’s web site.

In addition to helping fight wildfires, inmate camp members do public road maintenance and community service work.

For readers unfamiliar with California’s fire camps, I highly recommend Philip Goodman’s work (exhibit A, exhibit B). Not only do the fire camps alleviate prison overcrowding, they provide a much-needed public service. As an interesting aside, the strict racial divisions within the institutions blur when inmates work side by side on life-saving work.

Obtaining a job as a fireman after release from prison, however, may be tricky, as the fire departments run thorough background checks.

Props to Caitlin Henry for the blog link.

Restorative Justice in Murder Cases

Conor McBride and Ann Grosmaire in 2010.
Courtesy the Grosmaire family and the New York Times.

In 2001, still in practice as a reservist for the Israeli Military Defense Counsel’s office, I represented an inmate who was serving a life sentence for murder. Four years earlier, he had shot another soldier to death over a dispute about using the public phone. My client wanted help with a petition to the President of Israel. Under Israeli law, all life sentences are not truly for life; it is the President’s prerogative (a relic from colonial days, when the British Governor held the equivalent position) to determine how many years “life” would be.

As we put together the documentation for the petition, we also discussed my client’s desire to meet the victim’s family and express his remorse for what he had done. He wanted to ask for their apology. I was doubtful that we would succeed, but made some phone calls to the Ministry of Justice. At the time, restorative justice was a nascent field in Israel, and the people I talked to were reluctant to take on this project. They had not tried restorative justice in serious offenses such as murder, and in light of the victim’s family’s position during the trial (they were, understandably, very upset and very hostile toward my client) did not believe that the family would want to hear from my client, let alone be in the same room with him.

I left the country shortly after handling the case, but often wondered over the years what happened to my client. We recently got in touch again and I was glad to hear that he was doing well in prison, working and studying, and making plans for his release.

This is why yesterday’s New York Times story about restorative justice moved me very deeply. It is a story from Florida about a restorative justice meeting between the family of Ann Grosmaire, who was murdered by her boyfriend, and Conor McBride, the man who took her life after a long argument. The article is worth reading in full, because it vividly tells the story from the perspectives of the different parties that took part in the process: Ann’s parents, Conor’s parents, Sujatha Baliga, the facilitator and a former public defender from Oakland, and the prosecutor, Jack Campbell. The pain of the victim’s family is indescribable; the depths of their forgiveness – granted for themselves as well as for him – incredible. I can’t recommend it enough.

One of the major challenges on the road to accepting restorative justice as a legitimate and important step in the criminal justice is the victim’s contribution to the outcome. After all, two murderers can end up receiving very different sentences, depending on their victim’s family’s feelings on the subject. Is that fair? Perhaps not from the traditional criminal justice stance. But it is easier to accept such an outcome if one thinks of a murder as something that happens in a certain context, a certain relationship between the murderer and the victim and the people in their lives. As such, the murder “belongs” not only to its perpetrator, but also to those who suffer the ramifications. Nils Christie’s classic article Conflicts as Property advocates returning the conflict to the victim and minimizing the role of “conflict thieves” – lawyers, judges, system actors – in its resolution.

This is why it was important, in the Prop 34 campaign, to remind all of us that not all victims are punitive and not all of them believe in the death penalty. This nuanced L.A. Times story shows that different victims responded differently to the prospect of applying the death penalty. Respect for victims means not treating all of them, cookie-cutter style, automatically as staunch supporters of the prosecution, but rather giving them the space to say what they want from the process and how they choose to engage with what happened to them.

Props to Sal Giambona and David Takacs for alerting me to the article.

“Smart on Crime”: Retreating from Punitive Discourse Citing Financial Prudence

 In the decades prior to the financial crisis, as Jonathan Simon writes in Governing Through Crime, no politician, regardless of party affiliation, could afford to sound “soft on crime.” Propositions running counter to the received wisdom that more punitive is better had to be marketed assmarter, more efficient, or safer law enforcement – and, of course, these drowned in a sea of punitive propositions. But one of the key features of humonetarian discourse – the correctional discourse in the wake of the financial crisis – has been a partial liberation for politicians from the tough/soft on crime dichotomy. The usual tricks for dressing nonpunitive propositions as, well, not nonpunitive, still apply, but now there’s justification to do so: Punitiveness is not financially sustainable. 

Our friends at Sentencing Law and Policy posted a link to an “astute recent Washington Post piece” reviewing the GOP’s platform on crime after the RNC convention. The piece compares GOP criminal justice policies and ideals to those of yesteryear. The bottom line: Republicans are softer on crime. Here are a few snippets:
Policy experts agree that the omission [of the War on Drugs from the GOP platform] is significant. “This is less a ‘tough on crime’ document than you would have expected. And leaving out the War on Drugs [is] quite astounding,” says Mark Kleiman, a crime policy expert and professor at UCLA. “It’s a bit more of a libertarian attitude,” says Marc Levin, who runs a conservative criminal justice reform project called “Right on Crime” that’s attracted the support of Newt Gingrich and Grover Norquist.

What’s more, the 2012 platform includes new provisions that emphasize the importance of rehabilitation and re-entry programs to help ex-prisoners integrate back into society—using language that Kleiman describes as “a lot less ‘lock ‘em up and throw away the key.’” “While getting criminals off the street is essential, more attention must be paid to the process of restoring those individuals to the community,” the platform says. “Prisons should do more than punish; they should attempt to rehabilitate and institute proven prisoner reentry systems to reduce recidivism and future victimization.” The document also criticizes the “overcriminalization of behavior,” though it doesn’t elaborate on the point much further.

Both Kleiman and Levin believe it’s partly the outgrowth of a prison-reform push on the part of GOP governors whose state budgets have been saddled with high incarceration expenses. In recent months, Pennsylvania Gov. Tom Corbett, Ohio Gov. John Kasich, and Gov. Chris Christie have embraced crime reform legislation to support the kind of rehabilitation programs that the GOP platform now advocates, with some also reducing jail time for non-violent offenders. Conservative reformers like Levin are heartened by the changes. “We’ve gone a long way in four years,” he says, crediting the growing interest in more cost-effective ways to tackle crime.

This is not a coincidence. A coalition of conservative politicians, including recent signatory Jeb Bush, identifies as “right on crime“. The emphasis is on being fiscally prudent, which this post, again analyzing the RNC and the resulting platform, calls “reapplying basic conservative principles” to criminal justice. Yes, there are some punitive ideals advocated by the GOP – most notably with reference to gang conspiracies – but being comfortable 
Who else feels comfortable being less belligerent on drugs? Well, Pat Robertson, for one. But if you want to get more serious, that the father of classic market economics (and inspiration of the Reagan Administration)Milton Friedman would find marijuana prosecutions a waste of resources is perhaps not surprising, but the timing of this review, and the focus on revenue, means that these times call for new approaches among conservative politicians.
I’ve focused on conservative politicians so far, but the same analysis applies to progressive ones. In 2007, when Simon wrote Governing Through Crime, progressive politicians could not afford to be “soft on crime.” That hasn’t changed. What has changed is that progressive politicians, like conservative ones, apply to financial prudence as reasoning. One interesting example is the marketing of Prop 19 (“regulate, control and tax marijuana”), which failed at the ballot, as a revenue-enhancing proposition. I spoke to folks at Tom Ammiano’s office; going into the election, support for the proposition significantly rose when they marketed the proposal as revenue enhancing. There is some indication that the proposition’s failure was due to its vague tenets (leaving the mechanisms of sales up to the individual counties) rather than due to the basic idea.
To sum up: I don’t thin politicians have become ideologically soft on crime. But the crisis is giving them a license to be cheap on crime, in a way that appears more genuine and does not damage their credibility.
Cross-posted to PrawfsBlawg.

Ajami, Part Two: Romanticizing Alternative Dispute Resolution and Its Discontents

One of the most hotly debated issues in criminal justice involves the many suggestions to reform what many perceive to be a deeply dysfunctional courtroom process. In suggesting alternatives, commentators have pointed out some of the difficulties with the existing process: A focus on stigmatizing and shaming the perpetrator, ignoring the role and interests of the victim and the community, viewing the issue through the prism of the specific event without reference to the holistic context, and ignoring the importance of restoration and reintegration. These critiques have formed the basis for a variety of alternative processes which, while different from each other, are similar in their efforts to remedy these ills. As examples, we have community courts, drug and mental health courts, victim-offender mediation, family group conferences, restorative circles, and the like.

Ordinarily I would not lump these different suggestions together, but it is important to point out that these models share an interesting feature: A nostalgic, escapist reliance on the way dispute resolution is done in distant, exotic locations, or in forgotten times. Today’s implementation may be less idealized and fanciful–problem-solving courts have certainly been around for a while, long enough to forget those roots–but these inventions harken back to writings by criminologists in Australia and Scandinavia, who compared our Western Industrialized model of justice to those in other times and places. Nils Christie’s Crime Control as Drama, and Conflicts as Property, both urged to humanize the criminal justice process, giving the example of a community dispute resolution process in Kenya. John Braithwaite and Philip Pettit’s Not Just Deserts has been tied to the pioneering Family Group conference practices in New Zealand. In Israel, judges sometimes award importance to the fact that a long-standing family feud between Bedouin clans had been resolved by a sulcha method. A paper by Ron Shapira even urges courts to pay more attention to sulcha as a mitigating factor in punishment, as a way of validating multiculturalism and providing legitimacy to these ancient processes of forgiveness and reconciliation.

But is the sulcha, or the reconciliation, or the conference, really all that? The sulcha scene in Ajami presents us with some serious doubts about its fairness and effectiveness. In the scene, a boy whose uncle was murdered by members of another clan seeks reconciliation with the enemy clan in an effort to save his family’s lives. The process is depicted with stark realism. The cold negotiations, the status differences, the judge’s monetary rewards for brokering peace, and the involvement of underworld characters in brokering the compromise, all suggest that romanticizing this as an exotic, peaceful process, superior to criminal justice, is naive and futile.

To wholeheartedly accept an indigenous practice and praise it without critique is as paternalizing as it is to reject it wholesale. An honestly curious and just judge would inquire as to the realities of this bargain and strive to understand any power or status differences that may have influenced the outcome. This is not to say that restorative justice processes, and holistic courtroom practices influenced by other times and places, are categorically bad. It is just a reminder not to embrace such processes without asking the same difficult questions we ask of our existing criminal process.

Jail expansion: Counties seek millions from state

Check out today’s SF Chronicle cover story, “Jail expansion: Counties seek millions from state,” and especially its ending:

Lenard Vare, director of Napa County’s Department of Corrections, said he agrees with advocates that incarceration isn’t the only answer. But the rural county also anticipates an increase of at least 70 inmates per year – and its jail is already over capacity.

“The old adage ‘If you build it, they will come’ is true, because law enforcement in general – police officers – come with the mind-set to fight crime, and arresting people is one of the ways to fight crime,” he said. “Unless we decide to simultaneously work on our overall criminal justice system … we are not going to make a difference. Locking someone up 50 times does not deter them from committing crimes, because it becomes a way of life.”

Marin Interfaith Council Considers Death Row

Jeanne Woodford, former Undersecretary and Director of the California Department of Corrections and Rehabilitation (CDCR), Warden of San Quentin State Prison, and current Executive Director of Death Penalty Focus, spoke about capital punishment at Marin Interfaith Council‘s August clergy luncheon.
By way of background, Jeanne grew up on a ranch in western Sonoma County and went to school in West Marin. So she’s a local gal. Daughter of an Italian Catholic father, she “grew up believing you took care of each other.” In 1970, within two weeks of having been graduated from Sonoma State College, she began working at San Quentin. She loved the work; she felt she was doing something positive. She remained for 26 years.
Over the course of her tenure at San Quentin, she found that the prevailing philosophy and practice of imprisoning criminals became punitive rather than rehabilitative, in spite of addition, in 2005, of the words “and Rehabilitation” to the name of the institution: California Department of Corrections and Rehabilitation. She contends that changing prison policy to one of punishment for crimes led to more recidivism and more violence.
Inmates’ chances of turning their lives around depend in large part upon their remaining a part of their family and community outside of prison. Religious communities provide some of this support, and in the case of San Quentin, its location in Marin County brings about more religious support than is available at other prisons, particularly those in more remote locations.
Although she has personally opposed capital punishment all her life, and that as an authority she was taught not to judge, as Warden of San Quentin, which houses California’s Death Row, Ms. Woodford presided over four executions. This involved leading the prison staff through preparations and rehearsals for those executions. Among other things, she went to every single cellblock – those sentenced to death each has a cell to him or herself, adding to costs associated with capital punishment – on the day of the execution.
Ms. Woodford told of us an inmate named Massey, who, tired after years of “living” in the miserable place that is Death Row with his imminent execution looming, sought a speedier execution as a form of suicide.
Each death sentence requires two costly trials: one trial is to prove guilt or innocence; the other is to determine the penalty. Jurors who serve in cases where the death penalty is being sought must not oppose capital punishment. This limits and skews the pool of potential jurors.
Capital convictions entail further expense because they carry an automatic appeal. It is these appeals that cost the state thousands of dollars. In fact, capital cases cost twenty times more than non-capital cases to pursue and bring to conclusion.
In addition, there is the possibility of a wrongful conviction. One of those so sentenced, a man named Carillo, who was convicted by no fewer than 16 eyewitnesses, later was exonerated by DNA evidence in testing that was not available at the time of sentencing. However, DNA exists in only 20% of homicide cases. How many other innocent people may have been executed? Is there any justification for executing an innocent person, no matter how convincing the evidence? No.
Eventually Ms. Woodford came to believe she could do more to effect change from without the prison system than she could from within. She now works with Death Penalty Focus for the repeal of the capital punishment.
One of the several approaches DPF is taking, under her direction, is that of identifying law enforcement personnel who oppose the death penalty. This may be easier than it would seem at first consideration. DPF will soon release a list of more than 100 names.
Another project is getting 1,400 religious congregations to publicly support the goals of DPF, the abolition of capital punishment.[1]
DPF also seeks to raise awareness of victims to seek more than retributions. Further, funds not expended on perpetuating this irreversible punishment can be put to better use in solving the 46% of homicides that currently go unsolved. I suspect that victims’ families would find some sense of relief when their loved one’s murder is solved. Then trial and the pursuit of justice for the wrong can proceed.
In her work, Ms. Woodford never encountered a family member who advocated, and witnessed, the execution of the person who murdered their loved one who achieved any sense of relief, retribution, or restoration of balance. Killing the perpetrator, which I consider to be state-sanctioned homicide, does not bring back the dead loved one. In the words of the San Diego County District Attorney, the death penalty is “a hollow promise to victims.”
I would like to see some of the people involved in this effort, particularly those who survive the murder of a loved one, come into contact with the good folks at the Worldwide Forgiveness Alliance. I know that forgiveness can be difficult to achieve. I know it’s easy for me to advocate forgiveness when I do not have the experience of having lost a loved one to homicide. But there are others who have. I know that forgiveness is not for the benefit of the forgiven, although they may benefit. Rather, it unburdens the wronged party(ies) and liberates them to go on with their lives, still honoring the memory of those they’ve lost.
Then there is the matter of exonerees. Besides the case of Mr. Carillo mentioned above, Ms. Woodford told of another inmate, a woman named Gloria Killum, who was convicted as a result of false evidence and prosecutorial misconduct. Of the more than 200 men and women in California who were convicted of serious crimes, then subsequently found to have been wrongfully convicted, six had been sentenced to death. Such groups as the Innocence Project are finding innocent people every day. The recent release of the West Memphis Three is a prime example.
Further, many studies have shown, and experts agree, that the threat of capital punishment doesn’t deter people from committing murder and other violent crimes.
Worse still, the death penalty is inequitably applied: far more minorities are sentenced to death than are Euro-Americans. When the color of the convict determines the sentence, this is not blind justice. It is not justice at all.
The recent Alarcon study concluded that the death penalty costs California $184 million a year. It costs $100,000 more per inmate to house those sentenced to death than it does for non-capital inmates. There are presently 714 people, 15 of whom are women, living on Death Row. A psychiatric social worker has to visit each inmate every day, which increases the cost.
Funding of the DoCR accounts for 11% of the state’s General Fund; it used to be only 5%. By abolishing the death penalty, California could save a billion dollars in only five years. Think of the many ways that kind of money could be used. It could put more cops on the streets. It could be used to solve crimes. It could be used for education and after-school programs, giving at-risk youth knowledge and skills so they have a better chance at success in their lives. Accomplished, learned, self-assured people have more hope and less despair, and are less likely to be lured into lives of violence.
I would prefer that we as a society explore the notion of restorative justice. Although an exploration of the concept and application of restorative justice is beyond the scope of this entry, I encourage readers to consider it.
After Ms. Woodford’s talk, we engaged in conversation at our tables. One of the topics at my table was the matter of justice, fairness, and retribution. We discussed the differences, what each meant. I see crime as a rent in the fabric of society, one that needs to be mended. We need to rebalance “wrong” with “right,” to reweave the cloth into a whole again.
To be fair, MIC provided the opportunity for a member who supports the death penalty to rebut Ms. Woodford’s claims. The Rev. Rob Geiselmann, brave soul that he was in that company, spoke of freedom, of liberty being on a part with life. He contended that society needs to feel a sense of public justice.
Although last week a bill proposed by Sen. Loni Hancock (D-Oakland) to put the death penalty on the California ballot was defeated, we should not take this as a final defeat. We need to keep putting forth measures to abolish capital punishment in the State of California until they are approved. Then voters, the majority of whom polls show do not support the death penalty, can put this shameful and dishonorable practice in our past.
It is programs such as this put on by my local interfaith council that inform, enrich, and provoke us to think and rethink previously held opinions that make interfaith work so satisfying and worthwhile. I encourage other groups, whether they are interfaith organizations or any other kind, as well as individuals, to consider sponsoring such talks. I’m confident that Jeanne Woodford would make time for you in her busy schedule.
* * * * *
Aline O’Brien, aka Macha NightMare, is a Pagan presence in Marin Interfaith Council, where she serves on the Justice Advocacy Team.

[1] If I had a formal congregation of my own, I’d gladly sign such a statement. As it is, the Covenant of the Goddess, the religious organization of groups and individuals I represent in the interfaith arena, is too diverse to achieve unanimity on this issue.

Making Sentencing Reform a Priority

Sign this ACLU-California petition at

Save Money and Increase Public Safety

To Governor Brown, Senate President Steinberg and Assembly Speaker Perez:

As you work to solve the long-term budget deficit, please make sentencing reform a top priority. Sentencing reform will help balance the budget, balance our priorities, and balance the scales of justice.

Two simple sentencing reforms would save California taxpayers hundreds of millions of dollars annually:

  1. Make possession of small amounts of drugs a misdemeanor instead of a felony.
  2. Make low-level, non-violent property offenses misdemeanors instead of felonies.

These two reforms fit with your realignment plan by keeping state prison for violent and serious offenses. But they provide additional benefitslowering court costs, shortening sentences and saving both state and local dollars that can be used for public safety, drug treatment, social services and public schools and universities.

You have the power to bring back balance to the State of California.

A California Gambling Court?

Some of the problem-solving programs are fairly old and well established. An upcoming event in Los Angeles examines the possibility of creating a gambling court, built upon the existing therapeutic program Beit T’shuvah (some of whose residents come from jail, but is not an official sentencing possibility.) It promises to be an interesting evening.

I wonder what our readers think about the potential for a gambling court. If one accepts the rather established notion that gambling, like alcoholism and narcotics, is an addiction/disease, integrating such programs into the courts falls into the problem-solving pattern rather neatly by dealing with issues holistically. Looking forward to learning more about Beit T’shuvah, particularly about any research done on the impact of the program on recidivism rates and rehabilitation.

Bastardizing “Problem Solving”

Drug courts, heavily promoted as a novel way to holistically resolve issues concerning addiction, have generated a fair amount of data on their clients (findings on recidivism rates are still sorely lacking despite the acknowledged need to examine this angle). They have also generated a substantial amount of critique from defense attorneys. But yesterday’s This American Life broadcast shed light on something quite different: A drug court in Georgia that seems to operate under very different basic premises than the general problem-solving paradigm. Here’s the abstract of Part One:

Ira reports from Glynn County Georgia on Superior Court Judge Amanda Williams and how she runs the drug courts in Glynn, Camden and Wayne counties. We hear the story of Lindsey Dills, who forges two checks on her parents’ checking account when she’s 17, one for $40 and one for $60, and ends up in drug court for five and a half years, including 14 months behind bars, and then she serves another five years after that—six months of it in Arrendale State Prison, the other four and a half on probation. The average drug court program in the U.S. lasts 15 months. But one main way that Judge Williams’ drug court is different from most is how punitive it is. Such long jail sentences are contrary to the philosophy of drug court, as well as the guidelines of the National Association of Drug Court Professionals. For violating drug court rules, Lindsey not only does jail terms of 51 days, 90 days and 104 days, Judge Williams sends her on what she calls an “indefinite sentence,” where she did not specify when Lindsey would get out.
The full broadcast will be available here on Sunday.
Props to Susan Dennehy for the link.