More Humonetarianism on a National Level: What About Us?

(image courtesy NYT.com)

This New York Times piece from a couple of weeks ago highlights another aspect of humonetarianism: To cut costs, states close prisons down or switch to community programs. Here’s the “local interest” bit:

In California, where Gov. Arnold Schwarzenegger, a Republican, has called for $400 million to be cut from the state’s corrections budget, officials are seeking to remove low-level drug offenders from the parole supervision system and to provide them treatment options instead.

Like other states making such changes, California is led by a governor who long opposed such shifts in prison policies. But Mr. Schwarzenegger, as well as other leaders and lawmakers who are far more conservative, has come around to a view held by advocates of sentencing and prison reform that longer sentences do little to reduce recidivism among certain nonviolent criminals.

“In California we are out of room and we’re out of money,” said the state’s corrections secretary, Matthew Cate. “It may be time to take some of these steps that we should have taken long ago.”

But we are by no means the thriftiest state. Other states have been examining prisons to see whether they are efficient, and are closing them down. And other states are also reforming their sentencing laws, particularly minimum sentences for drug offenders. Many concede that the big waste of money is parole and are cutting down on supervision.

A few thoughts on some of the trends in the piece:

  • By closing down prisons and transporting people to other prisons, we may be saving costs, but we’re perpetuating the setup of prisons as far away gulags. A visit from one’s family becomes more unlikely if everyone is shipped to a facility far away.
  • The cuts, as Jennifer Steinhauer points out, go both ways. While treatment options are perceived to be cost-saving mechanisms, they need to defend their own funding. In emergency times, when short-term thinking is prevalent, lengthy project evaluation, examining declines in recidivism, may not be possible.
  • This is something I’ve already said regarding the Plata/Coleman decision: I am deeply concerned that mass release of prisoners with no job skills and little support by way of reentry programs is a self-defeating step, which, without overhauling other systems, will lead to their return to prison. This sort of thing will only work if parole is retooled as an instrument of rehabilitation and hope.

Humonetarianism in Action: Fiscal Arguments in Support of Regulating Marijuana

It’s Deja Vu All Over Again.

The long discussion on regulating marijuana is back, as the Chronicle reports today. Except this time, true to the spirit of Humonetarianism, much of the discussion focuses on finances and costs.

Experts say an unprecedented confluence of factors might finally be driving a change on a topic once seen as politically too hot to handle.

Among them: the recession-fueled need for more public revenue, increased calls to redirect scarce law enforcement, court and prison resources, and a growing desire to declaw powerful and violent Mexican drug cartels. Also in the mix is a public opinion shift driven by a generation of Baby Boomers, combined with some new high-profile calls for legislation – including some well-known conservative voices joining with liberals.

Leading conservatives like former Secretary of State George Shultz and the late economist Milton Friedman years ago called for legalization and a change in the strategy in the war on drugs. This year mainstream pundits like Fox News’ Glenn Beck and CNN’s Jack Cafferty have publicly questioned the billions spent each year fighting the endless war against drugs and to suggest it now makes more financial and social sense to tax and regulate marijuana.

This is not a new discussion, of course. As some readers probably know, marijuana prohibition has not been with us forever. Scholars who have researched the history of drug criminalization, such as Troy Duster, trace it back to clashes between economic interests, as well as to demonization and oppression of minorities. In fact, the first U.S. law to criminalize drugs – the Harrison Narcotics Act of 1914 – focused on regulating taxation and licensing for drug purveyors and on protecting the medical profession, rather than on blanket prohibitions. Duster argues that it is no coincidence that substances used by middle-class whites, such as barbiturates, were left out of the criminalization frenzy, while marijuana (linked to Mexicans), heroin (linked to Blacks), and opiates (linked to the Chinese) became outlawed.

So, there’s nothing given, or immutable, about our prohibition of drugs. Well, is it a good idea? That is a very complex question, since we could think of quite a variety of legalizing/regulating regimes to implement. In their wonderful book Drug War Heresies, Rob MacCoun and Peter Reuter examine a series of drug policies from all over the world and show that each system has advantages and drawbacks. They also highlight the political and economic hurdles to implementing sensible drug policies. Another interesting resource is this cool and well-articulated economic analysis by Andrew Clark from DELTA, who argues that any cost/benefit based analysis of regulating the drug market has to take into account the importance we ascribe to externalities, such as crime and ill health. Jeffrey Miron from Boston University argues that decriminalization will have little impact on marijuana use, and believes that decriminalization might affect other legal provisions, such as eliminating or relaxing the reliance on drug testing to determine parole violations.

We should keep in mind, though, two important things pertaining to the California situation: First, California has already effectively decriminalized small amounts of marijuana, although, as Rob MacCoun brilliantly proves in a new piece, not many people know that. And second, there is a permit system for medical marijuana operating according to CA laws (albeit in defiance of Federal laws).*

One of the things I like about the resurfacing of the marijuana regulation debate is that, probably for the first time, public discourse is attentive to the big picture. As became clear at the CCC conference, a major problem in addressing correctional policy is the disconnect between lawmaking and correctional implementation; lawmakers do not feel the harms and costs that are later born by those subjected to the correctional apparatus, and as humonetarians argue, by those picking up the tab. It’s nice that the prison overcrowding issue has made it to the forefront of the marijuana debate.

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*This it fascinating, complicated, messy, and merits discussion far beyond this framework.

What Works? A Search for Evidence-Based Corrections

In 1974, the world of corrections was quite different from the grim realities we have been discussing here over the last few months. The sentencing system was indeterminate, and the release date of inmates was mostly in the hands of the parole board. Those who grew up with the determinate system adopted in the late 1970s and early 1980s may recall the depiction of this system in The Shawshank Redemption.

Since sentencing was seen as an individualized, offender-based enterprise (as opposed to the administration of guilt, which was based on  completion of the elements of the offense), the main criterion for release was “rehabilitation”, that is, establishing that the inmate had been reformed and was no longer a threat to public safety. Prisons had a variety of rehabilitative programs, though many of these, as depicted in the movie, were farcical fronts for the economic enterprise. The move to a system relying on determinate sentences, giving prosecutors and legislators more power than judges and parole boards, was the outcome of a new discourse, which (among other things) discredited the rehabilitative value of prison programs.

This discourse was impacted in a major day by Robert Martinson’s meta-study What Works? Questions and Answers About Prison Reform, which was published on The Public Interest. In the study, Martinson examined the recidivism rates of 600 prison programs, as examined by other studies, and came to the conclusion that there is —

very little reason to hope that we have in fact found a sure way for reducing recidivism through rehabilitation. This is not to say that we did not find instances of success or partial success; it is only to say that these instances have been isolated, producing no clear pattern to indicate the efficacy of any particular method of treatment. 

Martinson’s results, later confirmed by a review by a National Academy of Science panel, were devastating to the rehabilitative enterprise, and lent scientific credibility to the critique against indeterminate sentencing. While later studies have criticized some of Martinson’s methodology, Martinson provided an invaluable service to us all. As David Farabee argues, there was a broader lesson in all this, which is not different in essence from the important words Harold Atkins said in our opening panel: it is not enough to come up with a rehabilitative program. We have to know that it works.
Newer works in the last few years have come to more optimistic conclusions about rehabilitative programs in prison. Check out, for example, Rick Sarre’s excellent conference paper, pointing to newer meta-studies that found more programs that ‘work’. However, we have to keep in mind, as Doris MacKenzie reminds us, that these programs differ greatly from each other in terms of their underlying philosophies (boot camps are different from drug courts!), and some of them are more suitable than others for certain types of crimes or groups of offenders.  
If Jim Webb’s efforts to create a criminal justice commission, or the important work done in places like the Center for Evidence-Based Corrections, come to fruition, one important question it will have to answer is, how do we measure what works? What indexes of success might we have beyond recidivism measures? And, are we to stick to one penological philosophy, or are we willing to accept that different things “work” for different people? what do you think?

The National Correctional Crisis Goes Mainstream

Senator Webb is a man on a mission.

As the national criminal justice commission bill starts its journey, Webb has a piece out in this morning’s Parade Magazine, which many of you may have received with your Sunday papers. The bottom line – which is nothing new to our loyal readers, but may raise the public profile of the problem – is as follows:
With so many of our citizens in prison compared with the rest of the world, there are only two possibilities: Either we are home to the most evil people on earth or we are doing something different–and vastly counterproductive. Obviously, the answer is the latter. 

National Criminal Justice Commission Bill

(image courtesy webb.senate.gov)

The State’s correctional crisis is but one disappointing piece in a national mosaic of alarmingly growing incarceration rates. A recent more-or-less bipartisan attempt to solve this problem on the national level is Senator Webb’s new National Criminal Justice Commission Bill, reported on TPM.

What does this consist of? Here’s the full text of the bill. The initial remarks on the bill reiterate all the somber things we already know: booming incarceration rates, public punitiveness, the overrepresentation of minorities, number of parolees, high recidivism rates, high prevalence of gang activity, problems of addiction, and inmate mistreatment.

The bill proposes the creation of a National Criminal Justice Commission, who will provide evidence-based information on a non-exclusive list of issues, including comparative incarceration rates, prison administration around the US, prison costs, gang activity, drug policies, the treatment of the mentally ill, and the historical role of the military in preventing crime (?). The commission will make recommendations for reform in a report, which will be submitted 18 months from the date of the commission’s appointment. The report will be available to the public. The 11-member commission will be bipartisan and will include members appointed by Republican and Democrat lawmakers and governors, with expertise in criminal justice and corrections.

While, in general, more information and less moral panics are something to strive for, several questions can be raised:

  • How much will this evidence-based information contribute to criminal justice policies? Conducting our affairs based on empirical evidence has not been our strongest suit.
  • Crime is, for the most part, a local phenomenon; does it make sense to address it at the national level?
  • Don’t we already know much of this information, to no avail?
  • Will this be torn to pieces on the floor due to costs?

Stay tuned.
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Props to Adam Maldonado for sending this my way.

Humonetarianism: The New Correctional Discourse of Scarcity


Diligent followers of recent correctional policies may have noticed a recurring leitmotif in our discussions of various different initiatives and solutions to the crisis. I refer, of course, to money. Recent examples we’ve discussed on this blog were the Death Row moratoria; the demise of Prop 6, mainly due to costs; the San Quentin Death Row expansion; the cuts to the overall budget; the battles regarding the Community Justice Center; and, of course, this recent quibble about Prop 9’s counsel provisions. It seems like, in the last few months, the only arguments for or against any given correctional policy are all about the money.

I’ve started working on a broader piece about this. Here’s the abstract:

What do a community court, an expansion to Death Row, and an extension of incarceration periods prior to parole have in common? All three have recently fallen out of favor with California correctional policymakers, not for substantive reasons, but for lack of resources. This paper analyzes the impact of the financial crisis on correctional policies in California, identifying an emerging discourse I call “humonetarianism”. Humonetarianism is characterized by a value-free, superficial, cost-centered approach to correctional initiatives and institutions, which are assessed by their contribution to the state’s deficit rather than on their actual or even perceived merits.
The paper opens by tracing the history of humonetarian discourse and its interaction with the punitive, public-safety-centered discourse of corrections since the 1980s, and the actuarial warehousing policies of the 1990s. The history of sentencing and parole policies in the state shows how humonetarianism emerged when punitive policies, pushed to their logical conclusion, became untenable. The paper continues by providing several examples of humonetarianism: the 2008 correctional propositions (5, 6, and 9), the San Francisco Community Justice Center, the expansion to San Quentin’s Death Row, the decrease in parole supervision over foreign-born inmates, and the recent Plata/Coleman tentative decision. It then generalizes, from these examples, the main features of humonetarianism: cost-driven discourse, political bipartisanship, and a sense of emergency. While this discourse may appear, at first blush, to be less punitive than policies from previous decades, the paper argues that it is extremely harmful in the long run, due to its superficiality, cynical usage by interest groups, and shortsightedness.

I’ll be happy to get your feedback on the idea, here, or by email to aviramh at uchastings dot edu.

More Big Picture Information

“It’s extremely bad. So you have more people coming in with more problems and more calamities to add to the frustration of the people that are there. Some of these people have no respect or compassion. So when they come here, they take their aggression on the next man, which is right next to you, again because the bunks are so close to you. And then in turn, turmoil, fights, arguments constantly. The noise level is beyond measure, on a constant level. It’s very very hard.”

–Raymond, inmate sleeping in gym

Those who attended the conference and would like more background – and those who didn’t and would like to know more about the broader picture – will benefit from Prisons in Crisis, a radio documentary produced by JoAnn Mar. The entire documentary can be downloaded and listened to; and for those of you who prefer reading, the transcript is available from the same location.

Defining the Problem

The conference launched yesterday to a great start. Our first panel, Defining the Problem, featured five thoughtful perspectives on the broad picture of the California problem.

Craig Haney, who opened the panel, had some disturbing realities to share with us. He had brought with him – and shared with us on the big screen – pictures from his visits to prison, each of which was really worth a thousand words. Inmates sleeping in cafeterias and gyms; medical examinations conducted in little cages; group therapy in cages inside a bathroom; triple bunks; and unbelievable density. The numbers were quite alarming. While the prisons become more and more overcrowded, crime rates have gone down; as Haney explained, most experts agreed that the rising imprisonment rates did not account for the crime decline. Also, the gap between prison population and prison capacity keeps growing. Haney did a terrific job of tying the California situation to the broader U.S. correctional disease, while highlighting the particulars that made CA a unique situation; particularly, the truly disappointing percentages of people exposed to rehabilitation programs and receiving medical care. And, as per one of the slides in his presentation, we got yet another sobering look at the expanding gaps between non-minorities and minorities in terms of their exposure to the correctional system.

Jeanne Woodford marshaled her extensive experience in prison management to identify three main sources for California’s misery: sentencing policies, uniform policies, and overcrowding. She traced the history of determinate sentencing since the late seventies, pointing to the many deficiencies of our penal code. She also pointed out the lack of coordination between jurisdictions regarding implementation of correctional policies, highlighting the following amazing fact (which I didn’t know): a person could be – and many people are – on probation in several different counties simultaneously, in which case one spends one’s post-incarceration time shuttling between counties several weeks for drug testing and following often contradictory courses of action. Without fact-based policies, and without clear objectives for incarceration beyond “punishment”, wardens and staff cannot be assessed by desirable measures such as decline in recidivism rates or program completion, but rather by how many prisoners escape; not a promising recipe for healthy corrections. Finally, Woodford discussed the fact that overcrowding is not only a problem in itself; it is a complicated factor which exacerbates everything else that happens in the system.

Harold Atkins from Centerforce was cheered by the audience after providing us with a valuable personal account of the problem from the perspective of one who had gone through it and who now reaches out and educates others. Having gone into prison for the first time as a young adult, he told us of being shocked not only by the lack of personal space, but also by the lack of safety. He also highlighted not only on prison conditions but also on the success of programs; the good fortune to be picked up for a program does not fall into the lap of many, and the programs’ reach is very minimal. The programs themselves, Atkins reminded, should not be implemented without thought; we must test them repeatedly to see what works and make them as widely available as possible. Another thing to consider are his wise words regarding the norms and codes that lead young people into prison; growing up in a difficult neighborhood, at the time of his incarceration he had already been well-schooled in the rules by which prison environment functions. Much of the educational work we have ahead of us needs to happen on the outside.

Frank Zimring followed by delivering a passionate “grumpy sermon” from the podium, in which he shared four important insights. First, the California problem is not an acute one; it is a chronic one. Prison population has been steadily growing for a long time, since the 1980s. Second, and importantly, the problem can be traced to the catastrophic error Zimring labeled the “correctional free lunch”. As Zimring pointed out – and as most amazed audience members had not known before – the “division of labor” between county and state is not conducive to anything helpful. The county decides on the sentence, while the state (who, in the era of determinate sentencing has no control over the length of stay) picks up the cost. Therefore, sentencing does not take into account the broader correctional costs. If this was not shocking enough, the third and fourth insights have to do with the deeper causes for these horrors: they were not part of a broad conspiracy, but rather a combination of complete oversight on the part of the politicians who established determinate sentencing and the logical conclusion of direct democracy in california: citizens do not mind paying to let people rot, but they very much mind paying to make their life nicer. One important answer advocated by Zimring was to establish, as soon as possible, a coherent Penal code, which is not full of “pick and choose” voter-approved policies and special laws, and which is updated to reflect the real severity of crimes.

After these, CDCR Secretary Matthew Cate had his work cut out for him, and his reply reflected the kind of concern and thoughtfulness that one expects from someone in charge of a system in serious crisis. The overcrowding challenge, he argued, made everything in prison more difficult, and required serious prioritizing of services. He shared the big dilemmas faced by CDCR in light of the gubernatorial 400,000,000 budget cut. Cutting all programs was not an option, and curring staff was also problematic; one possible answer to the cuts was engage in parole reform. In tems of parole reform, said Cate, we need to pay attention to who we place on parole, and rather than using a general parole policy, reserve parole for serious offenders through identification of crime types (unsurprisingly, sex offenders came up) or more efficient crime indexing. We also need to consider the introduction of credits for achievement in programs on the inside as categories for release. Cate also advocated building more prison cells, particularly for the Level 4 population, as part of the plan to alleviate overcrowding and treat inmates humanely. One thing he had come to learn, said Cate, was that with the given resources – that is, reliance on state employees – capacity would never catch up with population, and community assistance was hugely important.

The audience asked some difficult questions, many of which were addressed to Secretary Cate. One such question involved the elderly and frail prisoners, and whether release policies were not better for this group than creating special wards for them. The other problem raised was that, while prisoners are generally assessed for their medical, mental, dental, and vocational needs, it is very difficult (and, as Atkins’ experience shows, rare) to actually match a prisoner with a befitting program. Another important issue, directed at Zimring, involved an attempt to gauge an “acceptable” number of prisons, which turns out to be a very difficult number to produce.

Special Edition: Punishment Beyond Borders: California Corrections and Criminal Deportation

(image courtesy of Brian Concannon’s excellent Haiti Justice Blog)

I have just returned from a week in Jeremie, Haiti, with the Hastings to Haiti Partnership (HHP). The program is based on a collaboration between UC Hastings and the Ecole Superieure Catholique de Droit de Jeremie (ESCDROJ), a law school operating under difficult conditions and devoted to public interest. The two law schools hold a joint conference in Jeremie, in which students and faculty present topics of interest. This year, we had a chance to conduct a criminal case simulation, as well as meet with individual law students to discuss their research interests and help them out with comparative materials.

The experience was rather interesting given our California Corrections Conference coming up next week. As disturbing and problematic as our prison overcrowding issues are, the prison conditions in Haiti in general, and in Jeremie in particular, are so much worse. Our students, who visited the prison to interview inmates, as well as local activists, church figures, and professionals, tell of conditions so dire they can hardly be imagined, which seem to have worsened over the last few years. With the number of inmates per cell sometimes exceeding forty, the men have no room to sleep, and have to sleep standing up, like farm animals. This sometimes takes months, as the legal system is highly corrupted and it takes months before a given prisoner gets to see a judge for the first time. Sometimes, people are held in these dire circumstances with only very flimsy evidence against them. As we were told by the local assistant prosecutors, the Haitian civil law system is not conducive to plea bargaining, so even pleading guilty to alleviate or shorten this misery is not an option. There are good people, both in Haiti and abroad, who are working hard to change this situation, such as the Institute for Justice and Democracy in Haiti, but things at this point look very grim. While at Haiti, I gave a talk about the Stanford Prison Experiment, and some of the local students reflected on the lessons from the study as they apply to local prison conditions; if social situations create a prisoner’s master status and self image, there is no hope for rehabilitation for any of the Jérémie inmates.

One of the Haitian students I met is writing his memoir (a research project required for graduation, akin to a Master’s thesis) on the causes of crime in Haiti, and is focusing on the issue of criminal deportees from the United States. He points out that the deportees are treated horribly upon arrival, which is not conducive to rehabilitation. Michelle Karshan from Alternative Chance/Chans Alternatif, who advocates for Haitian criminal deportees, reports that they are often held in horrifying health conditions and do not receive food.

What does this have to do with our correctional system here in California? I have been thinking about two main issues. The first is the change in CDCR policies regarding criminal deportees who return to the US. As reported on the CDCR website:

In 2007, CDCR turned over approximately 12,000 paroled criminal aliens, who committed a crime in our state while here illegally, to the federal government for deportation upon completion of their state prison sentence. Of those 12,000, nearly 1,600 deported parolees illegally returned to California. California’s only recourse was to further clog our prisons by imposing short revocation terms – usually four to eight months – for a parole violation on these repeat offenders.

In the spirit of creative solutions for overcrowding, from now on, such returning deportees will not be under parole supervision in California. Instead, they will be turned over to the Federal government. This is not to say that law enforcement will not continue to track them down;

The motivation for the change in policy is, to a great extent, fiscal:

The policy is expected to reduce California’s average daily prison population by up to 1,000 inmates annually, resulting in up to $10 million savings per year from the state’s prison and parole budgets. CDCR expects to spend approximately $970.1 million in total in 2008-09 for the incarceration of undocumented persons. The state expects to receive $110.9 million in federal State Criminal Alien Assistance Program (SCAAP) funding for 2008-09.

My second reflection on the situation sprang from the proximity of our Haiti visit to the CCC conference. If inmates in developing countries are held under much worse conditions than our own, does this mean we should direct our efforts to help those people before working to improve conditions closer to home? Or is the case that, paraphrasing Rashi, “the poor people of your own town come first”?

I’ve already pondered these questions elsewhere, and Patrick O’Donnell’s excellent comment there directed me to some readings on global distributive justice. As Patric argues in his comment, quite convincingly, “[i]n fact, given the enormous global disparaties of welfare and well-being or respective points on ‘quality of life’ indices, there’s much that can be done to help out those in emerging polities and so-called developing countries even if the bulk of our efforts are focused on what’s close at hand.” In addition, I think that our hightened sensitivity to the fate of the weaker links in society will, in time, also increase our empathy to people in dire conditions across the globe.