Are Californians Punitive?

A key assumption underlying the discourse of correctional policies has been that the ever-increasing sentences, changes in trial structure, and criminalization, represent the will of the public. This is a particularly strong argument in the case of California, since a substantial amount of our correctional reforms occur through voter initiatives. It’s probably time to ask ourselves whether the assumption that Californians are punitive, and desire these reforms, is true.

On its face, the assumption seems to be supported by some anecdotal evidence. In the last elections, Californians passed Proposition 9, which, in addition to strengthening the victim’s position in the criminal process, worsens the inmate’s position in parole hearings (by increasing pre-parole imprisonment periods and diminishing the scope of the right to counsel); while these particular provisions have not been incorporated yet into law, through Judge Karlton’s intervention, they were still elected as “the will of the people”. They also rejected Proposition 5, which promised drug treatment and various diversion options for non-violent drug offenders. Anecdotal evidence also seems to support an assumption of punitiveness; it is enough to glance at the comments at to be confronted with anger about crime, which translates itself into demands for more punitiveness. But is this really true? How does one systematically measure punitiveness? And, more importantly, how do we differentiate between public punitiveness and the initiative of lobbyists, interest groups, and politicians?

The first thing to ask ourselves is whether this is, indeed, a particularly punitive period in our history. While many influential thinkers, such as David Garland, Stanley Cohen, and Jonathan Simon, characterize our times as being increasingly punitive, others disagree. As Roger Matthews reminds us, there also have been examples to the contrary. Think, in the California context, of the recent developments regarding the possibility of decriminalizing marijuana, or on the considerations of incarceration options.

The next step is trying to figure out whether people are particularly punitive, and if so, which factors predict punitiveness. We don’t know much about the punitiveness of Californians in particular, but research conducted elsewhere in the States and in the world suggests that public punitiveness is an empirically complex issue.

Shadd Maruna and Anna King, who conducted a survey on the British public, found that factors such as concerns about the economy and the state of ‘the youth today’ account for a substantial proportion of the effect of actual crime concerns on punitiveness. On the other hand, crime-related factors, such as victimization experiences or anxieties about crime did not appear to predict punitiveness. Similar trends, connecting punitiveness with strong emotions or sentiments, were found by Devon Johnson, who used U.S. national survey data. Her work shows that anger about crime is a significant predictor of punitive attitudes, after controlling for other factors such as racial prejudice, fear of crime, causal attributions for criminal behavior, and political ideology. Similarly, in a national survey study, Sherwood Zimmerman, David van Alstyne and Christopher Dunn found considerably punitive trends; they then compared the hypothetical outcomes to a recent conviction cohort from New York State, and found that, had the public’s will been faithfully applied to actual convictions, the additional correctional costs would have been very high.

Emotion-driven opinions about punishment are, of course, particularly strong regarding issues like the death penalty. Mona Lynch’s study of pro-death penalty discourse on the internet finds that the death penalty is framed as a symbol of justice, a triumph of sorts of the good (the innocent victim) and the evil (the capital murderer). This essentialist perspective eliminates all consideration of costs, let along empathy for the offender.

Some studies, however, have found less punitive outcomes, particularly by tweaking the methodology of punitiveness surveys. Douglas Thomson and Anthony Ragona have critiqued standard punitiveness surveys, arguing that these generally do not ask respondents to consider contingencies such as offense circumstances, behavioral content of various sentences, or fiscal cost differentials. This means that the public will necessarily appear to be more punitive than judges, because they are not faced with the full spectrum of judicial considerations, nor are they offered information about the relative fiscal costs of current and alternative sentencing practices. Thomson and Ragona, who conducted an Illinois survey incorporating issues of costs found that, on several dimensions, the public turned out to be less vengeful than typically portrayed in public opinion poll and media accounts, notably in its openness to community sentences. I find this information particularly interesting, because it suggests, in the spirit of humonetarianism, that a discourse of scarcity has the potential to decrease public punitiveness. It is useful, in this context, to remember the rejection of Proposition 6, which suggested extremely punitive measures against juveniles and gang members; Prop 6 was mostly attacked for its high financial costs.

Neville Blampied and Elizabeth Kahan, who conducted a survey study in New Zealand, found creativity and openness to alternative punishments among community members asked about responses to juvenile noncompliance. The outcomes here may have been less punitive because of the case study, but they may also reflect cultural differences between the U.S. and New Zealand, which has been very open to juvenile justice reforms, and uses family group conferences almost to the exclusion of juvenile courts.

The last important question is whether public punitiveness – if, indeed, it exists – is the reason for punitive policies. As Katherine Beckett argues in her beautiful book Making Crime Pay: Law and Order in Contemporary American Politics, these policies do not originate with the public. She carefully timelines punitive initiatives, demonstrating how public opinion is being swayed by politicians and the media. In states like California, where much public policy is made directly by the public, it is important to examine who stands behind punitive initiatives and how these campaigns are being run.

Prop 9 Comes to Life, But Perhaps Not Entirely

In the wake of the elections, the CDCR is in the process of implementing Prop 9, which we paid some attention to here and

Prop 9 has a new webpage, detailing some of its provisions.

One of the interesting bits reported by the CDCR is as follows:

Proposition 9 also changed timelines and procedures for parole revocation hearings. However, on December 5, Judge Lawrence K. Karlton with the U.S. District Court, Eastern District of California, ordered those portions not be implemented in response to a motion filed by plaintiffs in the Valdivia v. Schwarzenegger class action lawsuit, which had previously challenged the constitutionality of parole revocation proceedings. A hearing on the motion is scheduled for March 9, 2009.

In an earlier post, I raised the question whether Prop 9 violated the single-subject rule, by addressing both victim participation and parole timelines. This argument, as a doctrinal argument, doesn’t carry a lot of weight; as Mike Gilbert explains in a phenomenal new piece, the tests used by judges to examine single-subject rule issues are skewed against striking down propositions. However, it seems that the bit that doesn’t fit, the punitive bit that relates, if at all, to a narrow and punitive aspect of victims’ interests, is the one that is at question. I suggest we stay tuned.

Focus on Proposition 9: Introducing Victims’ Perspectives to Corrections

In 1964, Herbert Packer published his classic piece (later to become the centerpiece of his 1968 book), Two Models of the Criminal Process. The piece, inspired by the Warren Court changes to criminal procedure, presented two hypothetical models of criminal justice administration: the Crime Control model, whose main purpose is efficiency, and the Due Process model, which aims at reducing mistakes. In a crime control model, the process is shaped to weed out, at the earliest stages, cases in which guilt is dubious; the best way to do this is in the police investigation stage, which is not hindered by legal technicalities, and which is ideally designed for investigative truth-finding. After the problematic cases are removed from the system, we can assume a statistical, non-normative, “presumption of guilt” about the other cases, which can later be handled via plea bargaining. By contrast, a due process model is willing to sacrifice efficiency for the purpose of avoiding any chance of convicting the innocent. It therefore includes various guarantees for defendants’ rights, including the normative “presumption of innocence”, and indicates a preference for adversarial trials as truth-finding mechanisms over biased and overzealous police investigations. Existing legal systems, Packer suggested, could be placed along the spectrum; the Warren Court’s enterprise could be explained as a shift along that continuum from crime control to due process.

Packer’s analysis became a classic in the field, but was immediately the source of much criticism. Some argued that crime control and due process were not both hypothetical, normative models; while due process was a normative prescription, much empirical research conducted in the 1960s and 1970s showed that the realities of crime control subverted constitutional provisions. Others pointed out the absence of an important factor: the victim.

Soon after the publication of Packer’s work, John Griffiths argued that the typology does not offer the opportunity for less adversarial, more conciliatory models, which might help victim and offender, with the help of the community, bridge their differences. A different type of victim-inclusive model was provided by Douglas Evan Beloof, who argues that a model sensitive to victims requires adding that third perspective. In his 1997 article, he argues that victims’ rights are not adequately served by automatically aligning them with crime control and “war on crime” models. While sometimes victims seek more punitiveness and safety, in other settings their interests could align with the defendants (for example, if the victim and the defendant have reconciled and the government pursues the case), or could be adverse to both defendants and government (for example, if the latter parties have reached a plea agreement and the victim would like a trial).

Kent Roach offers a richer analysis, including two different victim-inclusive models: a punitive perspective, which he likens to a rollercoaster, and a non-punitive, restorative-justice-oriented model. The first model is driven by victims and their advocates, who are heard at any step of the process, and who invariably oppose any leniency. The second model is driven by a community seeking to address, and redress, wrongs that have been done, and advocates reparation and reconciliation. For more insights on victims’ role in the criminal process, see Leslie Sebba’s article.

Which of these models is the one advocated by Prop 9? It seems that Prop 9 has aligned itself with the punitive version of the victim-inclusive model. By voting “yes” on Prop 9, one has not only to agree that victims could, and should, be active participants in the criminal process; one also has to agree that victims’ interests require putting more limitations on parole, including representation in parole hearings. This assumes that victims’ interests will always side with the government against the defendant, which seems to be a less nuanced approach to the diverse realm of victim experiences, but which aligns with various similar legislation initiatives, such as those requiring registration and notification of sex offenders. It should be pointed out, though, that Prop 9, or “Marsy’s Law”, is not limited to sex offenders.

Prop 9 proposes a constitutional amendment to our Bill of Victims’ Rights, which would include the following rights:
o punishment and deterrence of the offender
o finality of the legal process
o public safety and protection from the defendant (bail and parole)
o fairness and respect
o confidentiality about details regarding the victims’ personal lives
o notice of trial developments and conference with prosecution
o hearing at any proceedings

Among other things, the victim would be entitled to see the presentence report and to receive the scheduled release date of the offender. Prop 9 also prioritizes monetary restitution to victims.

Other main provisions of Prop 9 address parole hearings, presumably under the assumption that the victims’ natural interest is in hindering them. Some of these proposed changes are summarized below:

Parole hearings
o the victim, as well as the inmate, is entitled to stenographic record of all proceedings
o the parole hearing date should be established so that suitability for parole can be established
o after denial of parole, the next hearings should be scheduled only after consultation with the victim
o a big change: parole denial postpones the next hearing by longer periods of time (ranging from 3 to 15 years for lifers). Only one request to expedite will be considered every three years. This seriously limits inmates’ access to parole hearings.
o parole hearings become de novo hearings; they do not rely on findings in previous parole hearings. However, inmates do not have a right to interrogate the victims during the hearing.

Victim notification and attendance
o the victim would be notified of a parole hearing 90 days in advance, and has to notify back about his or her intention to attend 30 days in advance.
o the victim can attend with limited number of family and representatives (including victim advocates!) all of whom can provide testimony at the hearing.

Parole revocation hearings:
o inmates would only be entitled to counsel in parole revocation hearings if they are indigent and some special circumstances apply.

By linking “War on Crime” considerations with victim rights, does Prop 9 violate the single-subject rule? Your opinion is as good as mine. It is clear, however, that if it doesn’t, it certainly chooses one particular type of victim model over others.

On the Ballot: Propositions 5, 6, and 9

On Nov. 4, Californians will not only get to decide between Obama and McCain, but also to weigh in about their priorities and values regarding law enforcement and corrections. There are three relevant propositions on the ballot, and voters will need to realize that, to a great extent, supporting each of these comes at the others’ expense. Moreover, it is important to pay attention to the fact that each of the propositions espouses a different ideology about criminal propensity and crime control.

Prop. 5: Nonviolent Drug Offenses; Sentencing, Parole and Rehabilitation

Proponents of NORA (Nonviolent Offender Rehabilitation Act) argue that current drug laws do not allocate resources to treating the problem from the source, which is addiction. According to the proposition, the idea is to preserve resources by reserving punitive measures for violent offenders, and focusing on treating non-violent offenders through the diversionary methods set in Prop. 36. This would be accomplished through a reorganization of entities, adding special divisions at CDCR that would address substance abuse, vocation and education. For the purposes of NORA, a “non-violent drug offender” is someone convicted of “unlawful personal use, possession for personal use, or transportation for personal use, or being under the influence of any controlled substance”; the prop excludes “possession for sale, transportation for sale, production, or manufacturing of any controlled substance”.

The options for deferred entry of judgment and for supervision are ehnanced. The proposition is very much in the spirit of therapeutic justice.

Prop. 6: Police and Law Enforcement Funding; Criminal Penalties and Laws

By contrast, this proposition, also called the Safe Neighborhoods Act and the Runner Initiative, is very much in the spirit of Packer’s Crime Control model. The idea is to increase funding for more traditional law enforcement activities. The proposition identifies a few key criminal phenomena and focuses on aggressive prosecution toward them. One such focus is gang activity; under Prop 6, any youth 14 years or older convicted of a “gang-related” felony would be tried as an adult. Other “focus areas” include violence and methamphetamine trafficking.

The proposition would also criminalize tampering with monitoring devices such as electric cuffs, and would require anyone receiving public housing subsidies to undergo annual criminal background checks.

The official text also provides for strengthening police intelligence and “mapping” high risk areas.

Prop. 9: Criminal Justice System; Victims’ Rights; Parole
Prop 9 advocates a third type of justice model, namely, one focusing on victims’ rights in various ways. It includes a CA constitutional amendment as well as regular legislation. Some aspects of Prop 9 include a requirement to pay restitution to victims and a prioritization of these requirements. It also expands victims’ legal rights and their impact not only throughout the adjudication process, but also in parole hearings.

The official text ttt bemoans the faulty implementation of the Victims’ Bill of Rights in 1982, and suggests to improve matters by assuring that victims are informed of developments in the case, including pre-sentence reports, plea bargains, and sentence details. Victims would be notified of bail hearings and would have the right to be heard before a bail decision is made.

In addition, Prop 9 also creates additional limitations on parole, and adds years before parole can be obtained in certain cases.


This is going to be a tough choice. As David Garland argues in The Culture of Control, our criminological “history of the present” is such that several models of criminal justice coexist, along with their contradictory premises. When pitted one against the other, as in the 2008 ballot, the conflict is not only one of ideologies but one of resources. Shifting more resources toward enforcement would come at the expense of rehabilitation and vice versa. Moreover, hiring personnel with a defined agenda, which would be a necessity under each of these propositions, would impact the spirit of criminal justice in general. So, the choice is not merely between priorities, but between paradigms.