Many of our readers are probably already abreast of the events in Oakland last night. The Oakland Tribune live blog offered full coverage. The bottom line is that what was a peaceful demonstration in the evening (when I was there, at around 7:30-8:00pm) turned, after sundown, into a looting scene that led to 83 arrests. This, of course, is saddening. Protest over the outcome of Mehserle’s trial should never have turned into an ugly display of property crime. It is important to mention that, in the earlier hours, I heard multiple calls from speakers and community organizers to maintain the peace; that the many hundreds of people who gathered at 14th and Broadway were engaged in a peaceful protest; that displays of verbal violence and incitement were often, according to reports, countered by people from the community discouraging them; and that we have no information on whether the looters arrested were locals or out-of-towners that took advantage of the events to commit ugly and serious property crime. In any case, stealing sneakers from an athletic store is hardly a useful way to make a political statement.
What we can, however, examine, is why riots happen in the first place. While older literature from the 1960s analyzed riots and community action in itself, newer studies of riots by criminologists and sociologists portray a very complex picture of how such events develop. It is important to see, as Michael Keith argues, race riots within the larger context of race relations, and to acknowledge the fact that a great part of the problem is not the riot itself but the moral panic generated by the riots. I would not go as far as to say that the riots would not happen if not for the projected police response. But seeing thousands of officers, helicopters, and various devices in Oakland yesterday did seem to communicate an expectation that something very foul was about to occur. This sort of overpreparedness communicates to citizens the expectation of violence and crime. In this interesting paper by Clifford Stott and Stephen Reicher, they interview police officers, showing how tense situations can escalate through the communication between police and protesters at the event.
And then, of course, there’s this. The irony, I believe, would be lost on the ABC7 anchorperson.
Another related issue pertains to the safety of Mehserle himself, should he be sentenced to prison time (which he very well might, unless the judge stays the gun enhancement). Regardless of geographical location, I can’t imagine this will be an easy stint in prison. Does any of our readers know how CDCR guarantees the safety of unpopular inmates?
I’m back from the Law and Society Association annual meeting in Chicago. The conference itself was fascinating and fun, and offered, among other things, a panel on special criminal court proceedings. The papers examined various aspects of this issue: the promise of a new problem-solving court model, the delicate power dynamics between courts and women who are victims of domestic violence seeking restriction orders, the criteria used by caseworkers to assess who is “sick enough” to neatly fit in a mental health court program, and the thoughts and actions of parents to juvenile delinquents while their children are in the system. Another fun experience, the panel about David Simon’s The Wire, featured David Simon himself on Skype and was absolutely fascinating. Simon’s take on his own creation consists of two main strands: rampant capitalism and the loss of mutual responsibility and care, and a process he calls “shit to gold”, by which failing strategies are not corrected, but rather misrepresented to give the illusion of progress. As he was talking, I had sobering thoughts about how this principle manifested itself in mass incarceration.
I wanted to expand a bit, however, about a strand of conversation we had in the context of a book panel about Mona Lynch’s Sunbelt Justice, which we reviewed here a while ago. Since the book involves the penal history of Arizona, discussion inevitably turned to the recent developments there, including SB1070, the anti-immigrant measure that received so much coverage and critique in California among other places. The interesting thing about the California critique is that we are struggling with similar issues ourselves, and our readers will remember that Governor Schwarzenegger’s plan for decrowding prisons devoted special attention to undocumented immigrant inmates, and some of his ideas on the matter boarded on the grotesque. San Francisco’s experimentation with sanctuary status for juvenile offenders who are undocumented immigrants is yet another signal of our obsession with this particular group. So, it is rather sanctimonious of Californians to perceive the Arizonian law as unique or peculiar in any way. We are just as busy as our neighboring state in addressing illegal immigration through the lens of crime. As Jonathan Simon deftly observed on our panel, “Arizona is California’s id.”
But one of the things we briefly touched upon was the connection between the two labels: Immigrant and criminal. We floated the idea that the universal “bogeyman”, the common enemy whom we fear and bond against in Durkheimian fashion, might have shifted from The Drug-Selling Gang Banger to The Undocumented Immigrant. As we were talking about this, I thought that there is a better way of understanding what happened in Arizona and might happen in California: We have a composite public villain now, the Immigrant-Criminal. Now, xenophobia is not new, of course, but this is a newer version of it. We toyed with some of the characteristics of this villain.
Immigrants are the source of all evil. As per some of the political speeches we hear these days from Steve Poizner and others, “illegals” are the source of our problems. They are to be blamed for the faltering economy, our sense of security, and everything else.
Immigrants are criminals per se, and illegal immigration is a mala per se. This is what criminal law professors refer to as “status offenses”: one is an offender not because of what one does, but because of what one is. Moreover, undocumented immigration is perceived not as a documentation problem, but one of moral failing: Public discourse draws a difference between people who arrive to the United States from Mexico legally to participate in, say, the highly exploitative market of strawberry picking, to those who do the same thing illegally. The latter are making a morally depraved choice. This construct completely misunderstands the reasons why U.S-Mexico relationship and economic interdependence not only encourages illegal immigration, but generates it. If you want to know more about it, I strongly recommend the last chapter of Eric Schlosser’s Reefer Madness.
On top of that, immigrants are more likely to commit crime. The correlation between illegal immigration and crime is not a new thing, as we know. After 9/11, visa requirements tightened, under the assumption that threats to U.S. security come from these undocumented immigrants, leading to many difficulties entering the country. Recall, by the way, that most of the perpetrators of the 9/11 atrocity were in the States on legitimate visas.
The technologies for battling crime are reapplied to battle illegal immigration. Note how the new proposal shifts the usage of searches and profiling from street crime to immigration, including an allocation of police resources for this matter. This is not a new slice of the police expenditure pie; it is a legitimate use of crime-fighting resources. Moreover, as we said elsewhere, the public gets to have a say when not enough money is allocated to the new crusade.
Immigrants are expensive villains; ousting them is cheap. Governing many of our technologies vis-a-vis the immigrants is the anti-humonetarian misperception that they eat up public resources, and that criminalizing them is a wise move, wallet-wise. It is supposedly cheaper to arrest them in the streets than to provide them with social services; it is supposedly cheaper to house them in federal deportation camps than in state institutions. This is a false savings measure, which might or might not displace the costs of illegal immigration, rather than diminishing them. I don’t know whether that would be the case, savings-wise, but neither do those proposing these measures for savings-related reasons.
Underlying all these features is a deep and basic misunderstanding of the problem: Whether or not American society, and particularly the economies of Sunbelt states like California and Arizona, is endangered by undocumented immigrants, it needs them, and its political and economic realities has created them, for better or for worse. As with our complicity in the picture of crime, we cannot ignore our complicity in the creation of illegal immigration.
A couple of months ago we reported on the introduction of AB1900, a bill aimed at the protection of pregnant inmates. The bill passed yesterday, 70:0. It is an important step toward the protection of pregnant inmates’ welfare and well-being.
Marisa Lagos’s story this morning on the Chron discusses the impact of old and infirm inmates on prison budget. The piece references a report by State Auditor Elaine Howle (which you can access here in full). Her key findings are as follows:
43,500 inmates currently sentenced under the three strikes law (striker inmates) make up 25 percent of the total inmate population. Further, with regards to striker inmates:
On average, they receive sentences that are nine years longer—resulting in approximately $19.2 billion in additional costs.
More than half are currently imprisoned for convictions that are not classified as strikes.
Many were convicted of committing multiple serious or violent offenses on the same day, while some committed one or more of these offenses as a juvenile.
Health Care Services has not fully estimated potential savings from its proposed cost containment strategies. Further, a significant portion of the cost of housing inmates is for providing health care, which includes contracted specialty health care.
Roughly 41,000 of the 58,700 inmates that incurred specialty health care costs averaged just more than $1,000 per inmate and cost $42 million in total. The remaining 17,700 inmates incurred costs of more than $427 million in the same year.
Specialty health care costs averaged $42,000 per inmate for those inmates that incurred more than $5,000 for such costs and were age 60 and older.
The specialty health care costs associated with inmates that died during the last quarter of the fiscal year were significantly greater than any specific age group—ranging from $150 for one inmate to more than $1 million for another.
Nearly 32 percent of overtime costs in fiscal year 2007–08, or $136 million, were related to medical guarding and transportation for health care.
Custody staff’s growing leave balances—due in part to vacancies, errors in Corrections’ staffing formula, and exacerbated by the State’s furlough program—represent a future liability to the State of at least $546 million and could be more than $1 billion.
We discussed this issue before. While Strikers and infirm prisoners are not the majority of prison population, their impact on the budget is enormous.
The other big SCOTUS decision to come out today is United States v. Comstock. It is a federal case, but it has important implications for state law and for federal-state relationships.
The law in question is 18 U. S. C. §4248, which authorizes a federal district court to order the civil commitment of an offender beyond his or her release date from prison, if the government proves that he or she:
(1) has previously “engaged or attempted to engage in sexually violent conduct or child molestation,”
(2) currently “suffers from a serious mental illness, abnormality, or disorder,”
and (3) “as a result of” that mental illness, abnormality, or disorder is “sexually dangerous to others,” in that “he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”
What happens next is an interesting exercise in jurisdictional battle. The AG is supposed to convince a state to take over treatment for the offender, and only if this is unsuccessful, the feds will commit the offender to a federal facility.
Let’s first discuss what this decision did NOT deal with. The original standard of proof by the government for civil commitment was “clear and convincing evidence”; the federal district court has decided that standard was not enough and required proof beyond a reasonable doubt. This ruling was not changed by subsequent litigation, so presumably the standard of proof now is beyond a reasonable doubt. If any federal court experts think otherwise, feel free to comment.
SCOTUS, instead, only discussed the other argument, which is that Congress has exceeded its authority under the Necessary and Proper Clause (Art. I, §8, cl. 18). In other words, as Justice Breyer says in his Opinion of the Court, it examined “whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” Breyer answers this question in the affirmative, for five reasons:
1. Congress has broad authority to legislate in many arenas not specifically mentioned in the clasue, and in this case, there is a connection between the end (protecting the public) and the means (civil commitment); 2. Congress has long been involved in the issue of mental health care for federal prisoners and civil commitment; 3. There are sound reasons for the law: protecting the public where the states fail to do so. 4. The law does not violate state sovereignty, but rather requires accommodation of state interests; the state may or may not choose to take the federal inmate under its medical wing (moreover, as Justice Kennedy adds in his concurrence in judgment, it does not intervene with the state’s ability to decide on civil commitment of its OWN inmates). 5. The law is not excessive; it applies to only a small fraction of federal prisoners who are already in federal custody.
Interestingly, both Justice Alito (who concurred in judgment) and Justices Thomas and Scalia (who dissented) expressed classic concerns about federal standards being applicable to the states and infringing upon their sovereignty. As opposed to the conservative view during the Warren Court days, in which federal standards were pro-defendant, in this case, the dissenters find it difficult to agree to a federal standard that actually generates more punitiveness.
It remains to be seen how much the feds will make use of this new power, and how much the states will acquiesce to the request to host federal inmates in state facilities at the state’s expense.
The Constitution prohibits the imposition of a life with- out parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.
The petitioner, Graham, was convicted of armed robbery, which he committed at the age of seventeen after a history of previous crime, and for which he was sentenced to life in prison, which under Florida law does not allow for parole. The Supreme Court decided that such a sentence constitutes “cruel and unusual punishment” under the Eighth Amendment.
The opinion of the court was written by Justice Kennedy. It is crafted around the notion of proportionality, mentioning that the court has been bitterly divided on some “close cases”, such as sentencing under Three Strikes. In this case, however, the proportionality argument is a bit different:
The present case involves an issue the Court has not considered previously: a categorical challenge to a term-of- years sentence. The approach in cases such as Harmelin and Ewing is suited for considering a gross proportionality challenge to a particular defendant’s sentence, but here a sentencing practice itself is in question. This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes. As a result, a threshold comparison between the severity of the penalty and the gravity of the crime does not advance the analysis. Here, in addressing the ques- tion presented, the appropriate analysis is the one used in cases that involved the categorical approach, specifically Atkins, Roper, and Kennedy.
Following these precedents, Justice Kennedy proceeds by seeking “objective indicia of national consensus.” Seeing that different states have different legislative schemes for juveniles charged with crimes other than murder (for our purposes: California allows LWOP for juveniles charged with offenses other than murder), he notes that “[a]ctual sentencing practices are an important part of the Court’s inquiry into consensus.” And, as the court finds, “an examination of actual sentencing practices in jurisdictions where the sentence in question is permitted by statute discloses a consensus against its use. Although these statutory schemes contain no explicit prohibition on sentences of life without parole for juvenile nonhomicide offenders, those sentences are most infrequent. According to a recent study, nationwide there are only 109 juvenile offenders serving sentences of life with- out parole for nonhomicide offenses.” (more on that here). Kennedy finds the state’s arguments against the study “unpersuasive”. The rarity of such sentences, he says, is particularly striking when compared to the base rate of such offenses.
Kennedy also makes an interesting comment about the “adultification” of juvenile proceedings:
Many States have chosen to move away from juvenile court systems and to allow juveniles to be transferred to, or charged directly in, adult court under certain circumstances. Once in adult court, a juvenile offender may receive the same sentence as would be given to an adult offender, including a life without parole sentence. But the fact that transfer and direct charging laws make life without parole possible for some juvenile nonhomicide offenders does not justify a judgment that many States intended to subject such offenders to life without parole sentences.
He then moves on to adopt the reasoning in Roper v. Simmons, where the Supreme Court declared the death penalty for juveniles cruel and unusual. The findings cited in Roper with regard to juvenile cognitive developments are seen as still valid and material for deciding about LWOP as well. The “death is different” argument made by the state did not carry the day.
Finally, Justice Kennedy goes over the aims of punishment, concluding that none of them are served by this exceedingly harsh punishment for juveniles. He rejects a case-by-case solution (such as requiring jurisdictions to take the offender’s age into account), explaining that the uniqueness of juvenile proceedings calls for a categorical rule.
Justice Stevens, soon to retire, wrote a beautiful concurrence, including the following:
Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commit- ment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete[.]
Chief Justice Roberts concurred with the judgment in Graham’s case, arguing that in some other cases, which involve more heinous crimes, LWOP might be appropriate. Predictably, Justices Thomas and Alito dissent.
The battle for reforming sentencing and rolling back punitivism is far from over. Moreover, this ruling will affect a very small number of juveniles. However, where life without parole is concerned, every potential person who will now have a light at the end of the tunnel is a boon. It is a good day for all of us who care about humane punishment.
On Monday, in response to The Bee series, the state Department of Corrections and Rehabilitation announced a full-scale investigation of the alleged abuses, reversing its previous position. The department will look at claims detailed by The Bee, the apparent cover-up of those claims, and revelations in our series that corrections department experts who urged an investigation apparently were muzzled for years and may have been retaliated against.
On Tuesday, Governor Arnold Schwarzenegger announced his support for a full probe of the issues raised by The Bee. California Senate leaders vowed to conduct their own investigation, to oversee the corrections department effort, and to ensure that the results are reported to the public.
This morning’s Sac Bee features the second part of the investigative report on conditions in CDCR’s behavior modification units. This time, much of the article focuses on the substance abuse units at Corcoran State Prison and at Calipatria. With cuts to the actual rehabilitative programs in these institutions, behavior modification consists mostly of deprivation and isolation, and inmates prefer the hole to the special unit.
The behavior units were sold to lawmakers as a way to reduce recidivism. But the corrections department researchers who evaluated High Desert pointed out that with an emphasis on punishment, such units likely would lead to more crime in the community and more convicts returning to prison.
“This program is not going to help us – our behavior – because they keep us in the cell all day,” said Robert Lane, housed in the Calipatria behavior unit for the past year. “They don’t give us no recreation, they don’t give us no day room. We don’t get no phone calls. We can’t talk to our family. So we building up more and more anger.”
Today’s Sac Bee includes the first in a series of two investigative pieces by Charles Piller on behavior modification in the High Desert facility in Susanville (featured in the documentary Prison Town, USA).
A Bee investigation into the behavior units, including signed affidavits, conversations and correspondence with 18 inmates, has uncovered evidence of racism and cruelty at the High Desert facility. Inmates described hours-long strip-searches in a snow-covered exercise yard. They said correctional officers tried to provoke attacks between inmates, spread human excrement on cell doors and roughed up those who peacefully resisted mistreatment.
Many of their claims were backed by legal and administrative filings, and signed affidavits, which together depicted an environment of brutality, corruption and fear.
Behavior units at other prisons were marked by extreme isolation and deprivation – long periods in a cell without education, social contact, TV or radio, according to inmate complaints and recent visits by The Bee. An inmate of the Salinas Valley State Prison behavior unit won a lawsuit last year to get regular access to the prison yard after five months without exercise, sunlight or fresh air.
State prison officials have known about many of these claims since at least July 2008, when Department of Corrections and Rehabilitation social scientists sent to High Desert to assess the program reported allegations of abuse – including denial of medical care, racial slurs, gratuitous violence and destruction of protest appeals.
Starting next month, the San Francisco County Jail must begin participating in an automated reporting system set up by the U.S. Department of Homeland Security. The program, Secure Communities, automatically links the fingerprint databases of state justice departments with a database used by the U.S. Immigration and Customs Enforcement Agency, known as ICE.
As part of San Francisco’s 1989 sanctuary city policy, officials only report felony suspects whose legal status can’t be readily confirmed upon booking to federal officials. The new program would end that discretionary practice because all digital fingerprints will automatically be forwarded to the state Department of Justice and on to federal immigration authorities for review.
“Essentially, this guts San Francisco’s sanctuary ordinance in terms of criminal justice,” San Francisco Sheriff Michael Hennessey told The Chronicle on Wednesday.
This change in practices, however, still keeps California well behind Arizona, in which confirmation of immigration status can be made not by database comparison after official booking, but based on simple profiling by police in the street.
