Thursday, July 24, 2014

A Bit of Good News: Inmate Reductions Do Not Increase Crime

Yesterday's Chron reported on a new Sentencing Project report, examining crime rates in California, New York, and New Jersey. Here are the bits about CA:

From 2006 to 2012, the new report said, California reduced its prison population by 23 percent, from nearly 174,000 to 134,000, while the nationwide inmate count dropped by just 1 percent.

The decline accelerated in October 2011 under a state law implementing Gov. Jerry Brown's "realignment" program, which sentenced lower-level nonviolent felons to county jail instead of state prison and increased the number of convicts who spent part of their sentences on probation.

The state says it will also comply with court orders stepping up parole of elderly, disabled and low-risk prisoners. A 2012 ballot measure sparing some nonviolent felons from life terms under California's three-strikes law is further reducing the imprisonment rate.

During the same six-year period, the report said, the rate of violent crime - murder, forcible rape, robbery and assault - fell 21 percent in California, compared with 19 percent nationwide.

. . . 

Despite the improvements, the study said, California's violent crime rate remains above the national average. The state's property crime rate is slightly below the national average, although the rate of decline from 2006 to 2012 was 13 percent in the state and 15 percent nationwide, the study said.

Another finding was that auto thefts in California have increased since realignment took effect in 2011, bringing the rates for that crime back up to 2009 levels. Overall, however, the study said the prisons-to-jails program does not appear to have increased serious crime in the state.

The original report can be found here.

There Is No Right Way to Kill People

Yesterday, the web was ablaze with gruesome news. The execution of Joseph Rudolph Wood took much longer than expected and has created a huge controversy about lethal injection. CBS reports:

Arizona Attorney General Tom Horne's office said Joseph Rudolph Wood was pronounced dead at 3:49 p.m., one hour and 57 minutes after the execution started.

Wood's lawyers had filed an emergency appeal with the U.S. Supreme Court while the execution was underway, demanding that it be stopped. The appeal said Wood was "gasping and snorting for more than an hour."

Word that Justice Anthony Kennedy denied the appeal came about a half hour after Wood's death.

Wood, 55, gasped more than 600 times before he died.

You can go and read more about the execution, but I can already tell you what you'll find: the defense attorney and abolition advocates arguing that the execution was botched, cruel, and horrific; the family and district attorney reminding everyone of the death of the victims; this or that doctor saying that, actually, he wasn't suffering, just "snoring" - interpretations of pain, interpretations of suffering, moral equations, this, that.

But the bottom line--as argued by Austin Sarat as well as by Forbes Magazine's David Kroll, is this: There is no right way to kill people. For all the effort we've made to make the procedure "appear swift and medical" as Kroll said, it still serves no purpose beyond killing people.

Death is suffering. The idea that we can surgically separate death--which is, according to the Supreme Court, constitutional, fine and dandy--from suffering, which is a violation of the 8th Amendment, is ludicrous. There have been botched hangings, electrocutions, gas chamber killings, lethal injections--every year, 3 percent of executions are botched. That everything is sterile and medical, and people were white robes and not executioners' capes and hoods, means it's more difficult to see the difference, but in a way it reveals a deeper truth: that the idea that there's a "clean" execution, done "right", is absurd.

In 1980, Justice Blackmun wrote this in a slightly different context:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored...to develop...rules that would lend more than the mere appearance of fairness to the death penalty endeavor...Rather than continue to coddle the court's delusion that the desired level of fairness has been achieved...I feel...obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.

He was so wise. If he could only see the futile tinkering. This chemical, that chemical, one shot, three shots. There is no right way to kill people. Of course many of these people committed horrendous crimes and merciless killings of innocent victims. But do we really want to license the state to achieve symmetry in that department?

If, like me, you're sick of tinkering with the machinery of death, sign my petition to the CA Attorney General not to appeal the recent decision that declared capital punishment in CA unconstitutional. We need 50 more signatures to make it to 500 before tomorrow. Let's make it happen.

Monday, July 21, 2014

Ms. Harris, Do Not Appeal Judge Carney's Decision!

Usually I'm fairly lukewarm about online petitions. They are often targeted at the wrong person, asking them to do something that they should do free of public influence.

Not so with this one.

I started a petition addressing the CA Attorney General, Kamala Harris, and Governor Brown, asking Ms. Harris not to appeal Judge Carney's decision from a few days ago, which found the death penalty unconstitutional because of the delays involved in its application.

You can find the petition here.

I am asking YOU, gentle reader, to sign the petition, and to share it far and wide with your friends. Ms. Harris is an elected public official, and her decisions regarding charging and appealing should take into account the will and priorities of her constituents. Those constituents are you.

Ask yourself:

  • What can California do for YOU with $150 million in annual savings?
  • How much more retribution, deterrence, justice, and fairness are YOU getting from a dysfunctional death row?
  • If you are for the death penalty, how do you feel about the rarity of its administration?
  • If you oppose the death penalty, how do you feel about joining hundreds of signees that stand behind an argument that seems to make headway where human rights arguments have failed?
  • How comfortable are YOU with the prospect of the state making mistakes in death penalty application? Would YOU be okay with the elimination of the post-conviction quality control mechanisms we have in place?
  • Finally, are YOU comfortable with the criminal justice energy spent in this state--in time, dollars, public activity--on 724 people, when our correctional system encompasses 170,000 people statewide and locally in whose rehabilitation we could invest?
This is YOUR money, YOUR business, YOUR government. Please ask your government to usher us into the 20th century (not to mention the 21st) and leave Judge Carney's just, fair, and prudent decision alone.

All you have to do is click a bit online and email a few friends, or share on Facebook.
All our Attorney General needs to do is--nothing.

Let's do this.


Wednesday, July 16, 2014

BREAKING NEWS!!! Federal judge declares California death penalty unconstitutional

Astounding news: half an hour ago, US district court judge Cor­mac J. Car­ney issued a decision in Jones vs. Chappell declaring the death penalty in California unconstitutional.

The full text of the decision can be found here.

Judge Carney's decision rests primarily on administrative grounds, namely, on the delay and uncertainty on California's death row. Judge Carney points out that, since the reinstatement of the death penalty in California in 1978, only 13 people have been executed. Meanwhile, scores of inmates have died of suicide or natural causes, and 748 inmates are still on death row, litigating their case in pursuit of post-conviction remedies. These delays, writes Judge Carney, short-change the meaning of the death penalty and break its promise to the victims' families, the citizens and tax payers of California, and the inmates themselves, who spend years, and frequently decades, in a state of uncertainty. Under these circumstances, California's death penalty is no more than life without parole, with or without an execution at the end.

A cynical perspective on the decision would be that all the state needs to do is to streamline the death penalty and execute death row inmates faster. Indeed, that is what the California District Attorney's Association has advocated recently. However, Judge Carney spends a considerable amount of time discussing the existing appeals and habeas corpus proceedings, and finds them constitutionally adequate. He comes to the conclusion that the only solution to California's death penalty's unconstitutionality is to abolish capital punishment in California altogether.

The big question is what happens next. Presumably, the warden is represented by the California Attorney General. However, Kamala Harris is personally opposed to the death penalty, and never sought it while she was the San Francisco County District Attorney. If the state does not appeal this decision, it has huge consequences not only in California, but nation wide. California's death row is the largest in the nation. State-wide abolition, judicial or legislative, creates a critical mass of abolitionist states and might mean the end of capital punishment in America. But even if the state appeals to the Ninth Circuit, the decision is a prime example of the anti-punitive thinking that has become the mark of recession-era politics. Note that the decision does not go into death row conditions, humane execution methods, or any other dignity-based argument. Even though money is not explicitly mentioned, this is classic humonetarionism. Judge Carney is not arguing that the death penalty is inhumane; he is arguing that it is badly managed. As I point out in Cheap on Crime, these types of arguments have become far more persuasive in policy making and frequently succeed where classic human rights reasoning failed. It is of enormous importance that this logic has permeated not only the policy making arena, but judicial reasoning as well.

More updates in the next few days.

Sunday, July 6, 2014

Film Review: Short Term 12


The wonderful 2013 film Short Term 12 tells the story of a care facility for juveniles in the San Francisco Bay Area, in which twenty-something year old Grace, her partner Mason, and a few other dedicated young staff members take care of kids from difficult backgrounds and abusive homes. Tough and capable, Grace hides a difficult personal history not much different than that of the kids she cares for, and arguably understands them better than the professional therapists she works with. The discovery that she is pregnant, and some bad news regarding her father, undo her just as a new teenager comes to the home, stirring rage and frustration.

While the story discusses institutionalization and incarceration very, very gently, and focuses on the feelings and relationships of the participants, it is a good reminder that crime is real and has real victims. Changing young people's paths and fates takes a lot of courage and love, and the line between infantilizing someone and believing him or her is very thin.

I was incredibly moved, and that was before I heard about the lovely and important art project inspired by the movie:

 

This highly recommended movie streams live on Netflix.

Wednesday, June 25, 2014

The Supreme Court: No Cell-Phone Search Without Warrant

Screenshot 2014-06-25 09.02.43
This morning, the Supreme Court ruled in Riley v. CA and U.S. v. Wurie, 9:0, that searching a cellular phone requires a warrant
Chief Justice Robert's Op. Ct. analyzed phone searches in the context of the Search Incident to Arrest exception to the warrant requirement, comparing a phone search to a search inside a pack of cigarettes in Robinson. Robinson, you'll recall, extended the Chimel doctrine to all containers within the "grabbing area" of the suspect. But given the newness of the technology, which the framers (duh) could not anticipate, the court thankfully is unable to find "guidance from the founding era" and turns to reason and pragmatics. 

The state presented essentially two rationales for warrantless searches of cellphones: harm to the officer and destruction of evidence. The opinion summarily dismisses the former: contrary to the cigarette pack in Robinson, there could be no argument of a physical weapon hidden in the phone (the police knew what they were looking for: data), and if there were any concerns of alerting someone to the presence of officers using the phone, those could be addressed via other exceptions to the warrant requirement, such as exigent circumstances, in specific cases. As to the second rationale, with the phone itself physically in the hands of the police, the main concerns regarding destruction would involve encrypting and remote wiping, none of which seems to the Court to be an empirically-supported practical concern (maybe it will be, from now on?). Also, the practicalities of securing the scene, bringing the suspect into custody, etc., mean that the police won't turn its attention to the phone right away anyway, and therefore the warrant requirement is not onerous or time-consuming for the investigation as a whole.

The decision then explains its particular sensitivity to the issue of phones because of the heightened privacy interests involved. Cellphones differ from physical objects in their immense storage capacity, which means that one carries on one's person intimate, sensitive data from various sources: locations, conversations, history of internet searches, purchases, dating and romantic life. These merit particular scrutiny on the part of the Court and limitations on police power.

The court also rejects other analogies made by the state: to cars, to pen registers, to pre-digital phones. The rationales for the rejection are all about preferring a bright-line rule and concerns abou spillover of information that was not available before the era of smartphones.

(Justice Alito, concurring in judgment, disagrees that danger to the officer and risk of evidence destructions were the rationales behind Chimel, points to some anomalies created by the decision, but does not see a workable alternative.) 

Three notable things:

(1) The decision is refreshing in its willingness to engage with technology and fully comprehend its implications. It is not driven by technophobia (like, say, Kyllo), but by the experience of people who use phones daily.

(2) Not unrelated: Like Jones, this is one more decision that protects the lifestyles and technologies of the middle class. As opposed to, say, searches of homes with no curtilage, or stops and frisks in the street, both of which fall under the "poverty exception", the privacy intrusions in Jones and Riley are both such that the Justices might be able to imagine themselves subjected to them.

(3) Note that in the era of smartphones, police officers have phones, too. And they can use them to call a courthouse and get a warrant. So, this decision might not stave off privacy intrusions for very long. The extent to which the cellphone warrant requirement is not merely a formality depends on the extent to which judges will exercise discretion in issuing warrants, which we know, empirically, to be fairly limited.

What do you think about the decision?

Sunday, June 22, 2014

When is an Anti-Homelessness Ordinance Vague?

"You know those ducks in that lagoon right near Central Park South? That little lake? By any chance, do you happen to know where they go, the ducks, when it gets all frozen over? Do you happen to know, by any chance?"
--Holden Caulfield, in J.D. Salinger, Catcher in the Rye

Screenshot 2014-06-22 06.49.30

When I teach 1L criminal law, my preference is to focus not on the sensational cases of serious crime, but on the everyday workings of the system: drugs, property, and various quality of life offenses. As it turns out, teaching the principle of legality, vagueness, and other important basic tenets of criminal legislation becomes apropos and important when using the example of anti-homelessness legislation of various stripes. Many criminal law casebooks include Chicago's ban on loitering and Chicago v. Morales. I like creating a timeline of legislation, showing how cities have consistently tried (and sometimes failed) to find ways to target the poor and get them off the streets. Sit/Lie ordinances are a classic example, as is the latest bout of litigation about this, which involved ordinances that prohibit one from sleeping or living in his or her vehicle.

In Desertrain v. City of Los Angeles, decided a few days ago, the Ninth Circuit tackled a municipal ordinance prohibiting the use of a vehicle “as living quarters either overnight, day-by-day, or otherwise.” The ordinance itself is not new, but it became a convenient enforcement vehicle (pun intended) after an angry "town hall on homelessness" in 2010. As a result of the aggressive enforcement efforts, several folks down on their luck (read: petitioners) tried to craft their behavior to comply with the ordinance as best they understood it: one of them, thinking the ordinance probably applies only to public streets, slept in his car in a church parking lot. Another, in an effort to comply, slept in the street, but kept some items, such as his sleeping bag. Another petitioner, left without work after a head injury, slept in her RV parked in her church. And another one was cited despite not sleeping in his van, just because he stored many items in it.

The officers enforcing the law were not given much instruction. In a memo from 2008 cited in the decision, officers were instructed that  “report must describe in detail observations . . . that establish one of the following — (i) overnight occupancy for more than one night or (ii) day-by-day occupancy of three or more days." In another memo, from 2010, officers were told to “adhere to the ‘Four C’s’ philosophy: Commander’s Intent, Constitutional Policing, Community Perspective, and Compassion,” with no further details.

The Ninth circuit found the ordinance unconstitutionally vague, because its articulation left people in serious doubt as to what behavior constitutes "living" in a vehicle. "Is it impermissible to eat food in a vehicle? Is it illegal to keep a sleeping bag? Canned food? Books? What about speaking on a cell phone? Or staying in the car to get out of the rain?" But, of course, as the court knows, middle-class folks talking on their cellphone in the car would not be targeted; the court explicitly says that the law lends itself to arbitrary enforcement and criminalization of the poor.

There are some pretty interesting things going on here. First, what is the relationship between vagueness and the potential for arbitrary enforcement? Yes, miscellaneous so-called quality of life offenses tend to be enforced disproportionately (exclusively!) against the poor. But don't we disproportionally target the poor in enforcing drug offenses, prostitution offenses, property offenses, and even some types of violent offenses? It seems that anti-homelessness bills in all their iterations seem unique to the court, and I think it might be because they are all rather clumsy ways to get around the challenges of prohibiting status rather than criminal behavior. Loitering, sitting on a sidewalk, and sleeping in your car are all things you do when you have nowhere else to go. There seems to be some sort of status/behavior continuum, by which being addicted to drugs is a status one can't help, but being drunk in public is a legitimate offense (even if you have nowhere else to go. Homeless? Don't drink.) Living in your car is vague, but sitting or lying on the sidewalk between certain hours is behavior you can presumably control and therefore a legitimate target of law enforcement. While we can dispute some of these distinctions (I know I do), you could at least make a half-decent argument that there's a free will element, flimsy as it is, that needs to be there to distinguish between a legitimate behavior prohibition and illegitimate prohibition of status.

But there's something else that seems to be going on, and that's a balance of NIMBYism and individual rights. The Ninth Circuit's Judge Kozinsky, who thought that sit-lie ordinances were fine and peachy, describes the motivation of the City of Seattle right at the beginning of his decision: "Seeing the wisdom of preserving the sidewalk as an area for walking along the side of the road," he says, "the City of Seattle passed an ordinance generally prohibiting people from sitting or lying on public sidewalks in certain commercial areas between seven in the morning and nine in the evening." Ostensibly, this is about legislative accuracy - hours defined, places clearly defined, all of which makes the behavior presumably easy to avoid. But the undercurrent is also that a city is right to clear its sidewalks for some of its residents by prohibiting others from blocking the way by sitting on them.
Which begs the question, how are people sleeping in their car a problem? True, the Los Angeles city ordinance, as it is, is vague. But what if the ordinance,  in lieu of prohibiting "using a vehicle as living quarters", prohibited "spending the night, between midnight and 5am, inside one's functioning vehicle, no matter where it is parked, for three consecutive days"? That's not all that vague, is it? And yet, we all have a nagging feeling that, despite the clearer articulation of prohibited behavior, some people are going to get arrested and some aren't.

The real question beneath the surface is, why does it matter to the city whether someone down on his or her luck sleeps in their car? Presumably, if someone sleeps in her car, she doesn't get cold and sick; she's not drunk in the street; and she's not otherwise causing mischief or taxing our already scant welfare dollars. The response has got to be some sort of NIMBYist aesthetic distaste, which Judge Kozinsky's decision in Roulette glosses over but never addresses directly. What the architects of this ordinance would really want is for the homeless population to disappear. But because these are real people, they're not going to just vanish like Holden Caulfield's ducks in Central Park. They still have to sleep and eat, and they're going to have to find ways to do it, and going one by one to eliminate these modes of survival, vague or not, arbitrary or not, is cruel and inhumane.

As a brief coda, this case didn't raise any Fourth Amendment issues, but it has always fascinated me how the Fourth Amendment makes both homes and cars into special places with special rules, in opposite ways: homes receive extra protection and cars receive explicitly less protection. Presumably, the consitution protects "people, not places", but what with the return to tresspass theory in Jones, It seems to me that the economic downturn calls for a more sensitive conceptualization of the car and its role in people's lives. What with the scholarly attention to the American cult of homeownership (see hereherehere, and here) we forget that we also have a fairly robust car culture, which impacts urban planning and even globalization. The centrality of the car to one's lifestyle is as American as apple pie. Maybe the downturn has created an important permutation in the cultural role of vehicles, meriting them more constitutional protection than would be justified by a narrow conception of them as vehicles.