For the first time in nearly 40 years, states see a decline in prison population, as reported by this new Pew report. The decline in California, though not the most impressive percentagewise (that honor falls to Rhode Island, per Jesse’s post), is the largest in total numbers: we have shedded 4,257 prisoners in 2009. Compared to the total numbers we are dealing with, this is a modest beginning, but maybe the financial crisis will have a “humonetarian” impact after all. The report ascribes the reduction in California to a combination of the financial crisis and the development of intermediate sanctions for parole violators.
The number of federal prisoners, however, has increased.
Incidentally, check out the impressive 6.7% reduction in the Michigan inmate population. Ironically, Michigan’s ability to do more about overcrowding than we do is what allows them to try and enter contracts to house our prisoners out of state. If we were able to do, in-state, what Michigan has done, we would have no need for Michigan’s services.
Californians are trying to tax and regulate marijuana, through such measures as the Tax Cannabis 2010 ballot initiative and Assm. Tom Ammiano’s AB 2254. Meanwhile, legislators in the Rhode Island House of Representatives have also introduced a bill to legalize marijuana; text here: http://www.rilin.state.ri.us/BillText/BillText10/HouseText10/H7838.htm. H7838 would regulate marijuana wholesalers, retailers, and home-cultivators, and set a tax of $50/ounce like CA AB2254. Looks like there’s a race on to see who can begin reaping tax revenues, first: at least 6 states (California, Rhode Island, Colorado, Washington, Oregon, Nevada) will consider taxing and regulating marijuana by the end of 2012. H7838 specifically invokes corrections/enforcement savings as a reason for regulating marijuana: “There were more than 847,000 arrests for marijuana offenses in the US in 2008, which is more than Rhode Island’s entire adult population.”
The commonlytoldstory of American penology usually starts in the late sixties, highlighting a newly increased “tough-on-crime” ideology, and leading not only to determinate sentencing in the 1970s and 1980s, but also to the extremely punitive measures of the 1990s. Among those, we often mention the Three Strikes Law as the epitome of punitive legislation. While some, like Roger Matthews, argue that this increased punitiveness is largely a myth propagated by progressive realist accounts, it’s difficult to argue against the realities of increased imprisonment rates.
Elsewhere, we suggested that the Three Strikes Law’s impact on incarceration is a bit more subtle and complex than might seem, and it probably operates more as plea bargaining leverage than as a direct cause of overcrowding. Much of its evil comes from the absurd examples of injustice it propagates, as well as from its contribution to the aged and infirm prison population. At the time of its enactment, it was one of four alternative proposals, and the most draconian of the four.
Not many people know, however, that the concept of Three Strikes is not an invention of the 1990s. A couple of weeks ago, at the San Francisco Film Noir festival, I had a chance to see the dark and entertaining 1953 film Pickup on South Street, set in New York City. One bit of the dialogue caught my ear: the pickpocket, played by Richard Widmark, expresses concern about being caught shoplifting for the fourth time because he already has “three strikes” and will be sent away for life.
This issue plagued me for a couple of weeks, and so I spent a bit of my day researching. The law the Widmark character refers to is Baumes Law, enacted in New York City in 1926. Like the California 1994 version, the New York 1926 version was a habitual offender act imposing a life sentence for repeated felonies. And like our Three Strikes Law, the Baumes Law brought with it a set of injustices and absurdities, including the story of repeat shoplifter Ruth St. Clair (interestingly, Pickup on South Street also deals with shoplifting “strikes”). While the law was enacted to appease public punitivism, interesting developments followed. As Khalil Muhammad points out in this cool piece, “[b]y 1932, shortly after the Baumes Law passed, a ground swell of public and judicial outrage mounted against the law, resulting in it being ‘liberalized’ from a mandatory life to a minimum-15-years-to-life provision.”
What does all this mean? First, it appears that there is nothing new under the sun. Some novel legislative ideas have already been pursued before, and we can learn from their implications and discontents. Second, perhaps punitivism, like legislative ideas, is cyclical. The public’s taste for punitivism may decrease in time. And third, that sound and logical public opinion can turn back the wheels of the punitive machine.
Can US build prisons in Mexico? The answer to this question depends, of course, on Mexico’s consent. The interdependence between the countries, particularly with respect to labor (read all about it in Eric Schlosser’s Reefer Madness), often makes us forget the Mexico is a sovereign nation. Mexico might, however, agree to such an arrangement, either for profit, or in order to ensure that its citizens are properly treated. Given what we know about corrections in Mexico, the latter would not be a concern. The former raises serious questions about the potential savings for the U.S. from such a solution.
In addition, much as some California secession advocates would like to believe it, California is not a sovereign nation, which presents additional difficulties.
Even if these difficulties were to be overcome, there would still be serious jurisdictional problems involving various legal issues about the new prisons. Which legal system would govern inmates’ rights in Mexico? International law, in itself, provides very little in the way of inmate rights, though some of its minimal provisions may be applicable in a system that employs torture. We are left with two more realistic possibilities: Mexican law or U.S law.
Can California subject its inmates to Mexican law? For inmates who are not Mexican citizens, it is highly questionable whether Mexican law can be imposed on them against their will. Granted, tourists in Mexico are subject to local law, but being involuntarily housed in a foreign country is not an equivalent solution. If the inmates are Mexican citizens, this is easier to resolve, particularly if the intent is to use the new prisons to house people who have been in the U.S. in violation of immigration law. However, not all undocumented immigrants are Mexican, and the current mix-ups at CDCR about people’s status do not bode well for a classification system that would clearly resolve sticky issues of jurisdiction.
What about applying U.S. law? This situation would be, of course, preferable from the inmates’ perspective, because that would allow them to raise constitutional claim and rely on 8th Amendment jurisprudence. The ability to apply U.S. law to prisons in Mexico is not without problems, but is not unheard of. After all, foreign embassies apply the laws of their home countries, and some institutions have been analogized to embassies for jurisdictional purposes. In a fascinating paper, titled Rights Beyond Borders, my colleague Chimène Keitner discusses the complicated and tricky issues involved in applying the U.S. Constitution to defend detainees against torture (say, in the Guantanamo context). There are important differences between the two situations, of course. Moreover, assuming that prison building will be done with private contractors, issues of conflict of laws arise with regard to possible tort litigation.
In the very least, it is safe to say that there are plenty of issues and problems that would need to be resolved before we resort to building prisons on foreign soil. On the ethical side, it would probably be preferable to remember our responsibility to contain and resolve a problem created within our borders.
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Many thanks to my colleagues Chimène Keitner and Naomi Roht-Arriaza for helping me think this through.
Today I got my copies of the newest issue of the Hastings Race and Poverty Law Journal, devoted to the California correctional Crisis. The issue features several articles and notes regarding different aspects of the crisis, as well as a series of shorter informational pieces highlighting issues such as sentencing, alternative adjudication, parole, risk and release, reentry, and, of course, the medical crisis. The issue builds on the conference we held in March 2009.
My own piece, Humonetarianism: The New Correctional Discourse of Scarcity, builds on insights developed during my writing for this blog, for the San Francisco Bay Guardian, and for the Daily Journal. I welcome comments and thoughts on it.
The United States may soon see its prison population drop for the first time in almost four decades, a milestone in a nation that locks up more people than any other. The inmate population has risen steadily since the early 1970s as states adopted get-tough policies that sent more people to prison and kept them there longer. But tight budgets now have states rethinking these policies and the costs that come with them.
“It’s a reversal of a trend that’s been going on for more than a generation,” said David Greenberg, a sociology professor at New York University. “In some ways, it’s overdue.”
The U.S. prison population dropped steadily during most of the 1960s, but it has risen every year since 1972, according to the Bureau of Justice Statistics.
About 739,000 prisoners were admitted to state and federal facilities last year, about 3,500 more than were released, according to new figures from the bureau. The 0.8 percent growth in the prison population is the smallest annual increase this decade and significantly less than the 6.5 percent average annual growth of the 1990s.
Happy Holidays to our readers, and a Happy New Year.
Mona Lynch’s new book Sunbelt Justice will hit very close to home for Californian readers. The book tells the story of the Arizonian correctional system, starting with the early twentieth century and ending with Janet Napolitano’s time as governor. It is a fascinating account, which those of us interested in California corrections will read like a good political thriller.
Two principles underlie the Arizonian correctional philosophy: an ethos of self-sufficiency, which led to a lack of sympathy toward offenders, and a dislike for large governments, accompanied by sentiments of frugality. The early days of Arizona corrections were shaped by these ideas. Unencumbered by a yet-nonexistent central command and headed by strong personalities, prisons and juvenile institutions were run on the cheap, relying on a combination of inmate work and tough discipline for their daily operations.
Things briefly changed during the late 1960s with the formation of the Department of Corrections, which was headed, in its initial years, by outsiders. Its first Director, Allen Cook, was a veteran of the California correctional apparatus, and brought with him the large bureaucracies and rehabilitative ideals that characterized California corrections at the time. Initially welcomed, Cook ended up overstaying his welcome. The series of outsiders that succeeded him – most notably McDougall, who brought with him a system of good credits and community corrections reminiscent of Machonochie and, more recently, Murton – were unsupported, and eventually ousted, by the state politics.
The reign of Director Sam Lewis and his successors can best be seen as a reinstatement of a “new-old regime”. Lynch does an excellent job presenting this era’s complexities. On one hand, it is very much in line with (or ahead of) developments that were occurring elsewhere in the nation: the disillusionment with the rehabilitative idea and the emergence of law-and-order politics. On the other hand, in the Arizonian context, it is a variation on the original old theme of harsh discipline and no rehabilitation, a nostalgic return to the roots, albeit with the complication of exponential growth in prison population and a much larger bureaucratical apparatus.
Particular emphasis is given to this transformative period between the late 1970s and mid-1990s; Lynch provides a multilayered account of state politics, federal prison litigation, and their detrimental impact on prison conditions.
It is illuminating to compare Lynch’s insightful and informative account with the parallel Californian history. Arizona was not nearly as committed as California to the rehabilitative ideal, and its early correctional style was much more “Texan” than Californian. The model of inmate farm labor, accompanied by harsh discipline, reminded me very much of the incredible footage in Susanne Mason’s Writ Writer. In that respect, the backlash of the 1980s felt much more like a “homecoming” to toughness and frugality. However, many features are familiar. The political shift to the New Right and the increasing centrality of crime control to political campaigns are very familiar. So are the various legislative acts and voter initiatives of the mid-1990s, which in Arizona, as in California, failed to take into account the disastrous financial effect of county-level increasing sentences on state-level corrections. Even victim initiatives, which are downplayed in Lynch’s account, are in the background, as in California.
The questions I’m left with have to do with the level at which history is made. Arizonian correctional history was shaped by strong personalities, who played, to varying levels of success, on a changing political arena. Is it possible to swing back the punitive pendulum, citing costs? That is what Director McDougall attempted to do in the early 1980s, with only limited and temporary success. This Arizonian lesson does not bode well for an era in California in which the only effective argument against punitiveness is related to taxpayers’ wallets. The other ominous lesson is that of the Supreme Court’s limited support for federal intervention in Arizona prisons, providing only weak support to Judge Muecke’s constant supervision and review of the state’s prison population and conditions. The Roberts court may exhibit a similar level of inhospitability toward the federal intervention in California. Under such conditions, forceful and innovative personalities can prevail only for a limited time, and the fate of the system is ultimately shaped by broader socio-political developments. Perhaps we are now in a better place, and state citizenry recognizes the unsustainability of our correctional monster. In the meantime, Lynch’s excellent book offers an opportunity for grim reflection.
As the chronology of California correctional policies shows, many of the punitive measures in sentencing, corrections, and risk management, emerged from voter initiatives. Whether or not the public is punitive, or is being pushed in that direction by politicians and the media, and what can be done to change public opinion, are complex and delicate questions that we discussed in a previous post. Today, I’d like to turn to the findings of some recent work, pointing to the fact that some potential voters and jurors, namely, white males, are more punitive than others.
In a recent piece, Michael Costelloe, Ted Chiricos and Marc Gertz measure public punitivism as a factor of various worldviews, among them what they call “economic insecurity.” As it turns out, people tend to be more punitive, and their belief in rehabilitation and second chances declines, when they feel that their own economic situation will worsen over time. This effect is particularly salient among white males; Costelloe et al attribute this connection to a sentiment that welfare policies, and giving people a break, rewards the underserving and comes at one’s own expense, a sentiment which they find overrepresented among white males.
This weekend I received more confirmation for this finding, albeit in a different context. Mona Lynch and Craig Haney’s recent study, presented at the Conference for Empirical Legal Studies, used mock juries of 4 to 7 jurors, who were shown a video of a death penalty trial and asked to deliberate the case. The study was masterfully done, providing the jurors with two identical versions of the video – except for the races of the offender and the victim. The clothing and acting of the different witnesses was exactly the same; the only thing manipulated was race. As Lynch and Haney found, white male jurors were significantly more likely to sentence the black defendant to death. These findings had ripple effects. White males were overrepresented as elected forepersons, and they exhibited the power to sway the other jurors in a punitive direction. As the following chart depicts, juries with a higher concentration of white male jurors tend to differentiate more between white and black defendants when deliberating and deciding on the death penalty.
What is going on? Lynch and Haney explain the findings by arguing that white male jurors tend to exhibit less empathy toward black defendants. This echoes the argument by Costelloe et al, according to which economic anxiety and lack of empathy are related.
What are we to do, though? Exclude white males from voting on initiatives and serving on juries? Of course, not all white males lack empathy and are punitive. But the next time the propositions come around, or the next time we serve on a jury, we should ask ourselves how our demographics, experiences, and biases, impact our opinions about crime.
Kamala Harris’ new book, Smart on Crime: A Career Prosecutor’s Plan to Make Us Safer, written with Joan O’C Hamilton, is a refreshing book on prosecutorial practices, and on the need to disengage law enforcement from practices of severe sentencing and mass incarceration.
In the book, Harris, who is the San Francisco District Attorney, and running for Attorney General, speaks up about her prosecutorial philosophy, but also discusses more broadly America’s criminal justice priorities.
The book opens with an examination of several “myths about crime”. Harris seeks to situate the crime debate outside the partisan lines, pointing out that there is an alternative transceding the “tough/soft on crime” dichotomy. She also debunks the idea that there are no alternatives to current correctional techniques by examining a series of innovative reentry programs. The novelty of this account lies in the fact that these programs are sponsored by law enforcement – prosecution offices and sheriff’s offices.
While Harris treats crime and victimization very seriously, she emphasizes the fact that violent and sensational crime constitutes a small percentage of the entire crime picture. The universe of nonviolent offenders, who are not as much of a danger to society, will not be properly handled using lengthy prison sentences, which contribute to recidivism.
Harris suggests an expansion of the traditional prosecutor’s role, arguing for including reentry projects and community involvment in the scope of prosecutorial responsibility. One issue in particular that she highlights is the need to address school truancy. As Harris explains in the book, she sees truancy as a major predictor of a criminal career, and therefore believes that addressing education, and making sure children are not truants, will go a long way toward preventing crime in the long run. The District Attorney’s office’s efforts in this regard have already yielded a decline in truancy rates in San Francisco. Nevertheless, the question is whether criminalizing the truants’ parents is a truly effective measure in reducing crime. In adopting this measure, Harris may have fallen into the same trap she warns us about in the book – focusing on criminalization rather than on problem solving.
The book is meant for popular readership, and much of the rhetoric (including examples of violent, dangerous offenders whom Harris has helped remove from the streets) will soothe readers who are concerned about violent crime and victimization. These sections do not read as a fake attempt to placate the masses so that a “soft on crime” agenda will remain unnoticed. As a prosecutor, Harris comes off as committed to law enforcement and genuine in her belief that some offenders need to be removed from society for a long time. It is precisely this genuine perspective that lends credibility to her “smart on crime” argument, which comes from a concern for public safety in the broader sense rather than from pity. This decidedly not-soft-on-crime stance is enhanced by Harris’ humonetarian arguments for her “smart on crime” solution, which is advocated as a means to save money as well as achieve more public safety.
Prison scholars and inmate rights’ activists who read the book may be concerned that Harris does not go far enough. I do not see this as a shortcoming in the book. Harris is a prosecutor and she writes from a prosecutor’s perspective. Even under a more benign, less punitive correctional regime, law enforcement officials and prison activists will not see eye to eye. The important thing is that this book opens the door for open minded prosecutors to transcend the government/offender divide, and more importantly, the right/left divide, and to agree on general solutions, the most promising of which is a focus on reentry programs such as San Francisco’s Back on Track program. This program, which uses deferred entry of judgment as a “test period”, under the D.A.’s office supervision, combined with vocational skills, jobs, and other support, is advocated as a method to reduce recidivism rates.
