Friday, April 24, 2015

Cellmate Compatibility: Why Not?

California state prisoners are killed at a rate that doubles the national average. A sensible proposition has been made--and rejected: The Merced Sun-Star reports:

The department will not reinstate a policy dropped 15 years ago that required potential sensitive needs cellmates to fill out a compatibility form before they are housed together, Ralph Diaz, acting deputy director for adult institutions, told a Senate budget subcommittee.

Sex offenders, former gang members and other vulnerable inmates are placed in special sensitive needs housing for their protection.

However, the inspector general and an analysis by The Associated Press published in February found that a disproportionate number of homicide victims were sensitive needs inmates.

The compatibility forms help officials assess whether inmates can live peacefully together. They are required for inmates housed together in other segregated living units, and Sen. Loni Hancock said they should be required for sensitive needs inmates as well.

"We do look for inmates who we feel should not be celling with others," Diaz testified. However, he said using the forms for sensitive needs and general population inmates would be too cumbersome and the department's current process can appropriately address housing concerns.

There are two ways of viewing this debate. One is through the usual old-skool impasse between carceral discourse and rights discourse. The other, however, is cost-oriented. CDCR is refusing to reinstate this policy because it believes that it would needlessly complicate its operations; Senator Hancock thinks that the costs in lives and healthcare offset these considerations.

This debate is an example of a situation in which a prison is not really sui generis. In any other setting, in which people are thrown together--especially in total institutions--it's best if they spend time in close quarters with people with whom they can get along. This is not merely a matter of finding the roomie's company enjoyable; it's about preventing exploitation, abuse, and conflict.

Saturday, April 18, 2015

Death Penalty Debate in an Abolitionist State

With Dzhokhar Tsarnaev convicted of all 30 counts (among them four dead and 260 wounded victims), the federal trial of the Boston Marathon bomber has now entered the sentencing phase. This phase is estimated to take four weeks. It has been fascinating to follow the debate about the death penalty, which, while legal because of the federal setting, is taking place in Massachusetts, an abolitionist state.

After Gregg v. Georgia enabled states to recreate their death penalty statutes, Massachusetts reinstated the death penalty for first-degree murders. However, in Comm. v. Colon-Cruz, this statute was ruled unconstitutional, because it discriminated between defendants who pled guilty and defendants who went trial (this, by the way, is interesting; after all, the prosecution regularly offers to take the death penalty of the table in retentionist states for a guilty plea). A few governors, including Mitt Romney, tried to reinstate the death penalty with no success; in a 2004 report to then-governor Romney, a commission recommended that "any death penalty statute that may be considered in Massachusetts would be as narrow, and as foolproof, as possible."

As is often the case in abolitionist states (and countries) public opinion lagged behind the legal change. Death Penalty Info cites a Boston Globe story from April 2003, according to which a poll conducted at the time found that 53% respondents supported capital punishment against 41% opposed to the practice. This was a significant decline from a 1996 poll, which found 65% in favor of the death penalty and only 26% opposed. But a recent poll, asking, "If convicted, should Tsarnaev get life in prison or the death penalty?" produced 57% supporting life without parole and only 33% supporting the death penalty. 

Interestingly, the editorials calling to spare Tsarnaev all raise an important argument that is typically absent from California capital cases: the need to relegate Tsarnaev to the shadows, rather than make him a martyr whose case will make the news every time an execution date is set. Ironically, it is in this "obvious case" that, specifically because of the hate motive, there is hesitation in creating the media and litigation hoopla that would accompany a capital sentence. Yesterday, the New York Times reported that the parents of Tsarnaev's youngest victim, 8-year-old Martin Richard, have asked the prosecution not to ask for the death penalty for a similar reason:

“As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours,” they wrote. “The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family.”

This argument is particularly interesting for us in retentionist California. In a place like Massachusetts, in which the death penalty is unusual and only on the table because of the federal setting, an argument about the risk of martyrdom makes a lot of sense. Where death sentences are commonplace, however, it's less likely to succeed. Ironically, while this argument can help mass murderers with hate motives, it has less potential for single-victim murderers and less publicized cases. Moreover, it does not characterize the debate in retentionist states.

In 1971, a California jury sentenced Charles Manson, Patricia Krenwinkel, Leslie van Houten and Susan Atkins to death for the murders of seven victims. Because of the death penalty (temporary) abolition in 1972, their sentences were commuted to life, which meant, in those days, that they all came before the parole board as soon as 1978. Susan Atkins died in 2009. Patricia Krenwinkel, the subject of a new short documentary, is the longest-serving female inmate in California. Prosecutor Vincent Bugliosi's memoir of the trial written with Curt Gentry, Helter Skelter, makes no mention of any martyrdom considerations or, really, any reservation he had in asking for the death penalty.

This comparison, among others, makes me think that death penalty abolition does not only change support and opposition rates: it also changes the nature of the debate. We tend to forget that, because we don't usually hold capital punishment polls in abolitionist states. By contrast, the debate in retentionist states has reached an impasse that makes it extremely shallow. Either we focus on "tinkering to the machinery of death" or we try to abolish it for cost reasons. Places that are not confronted with the daily realities of an in-state death row allow their residents not only freedom from the moral discomforts that come with its application, but also the freedom to infuse their opinions on the subject with philosophical considerations. Abolition, therefore, makes us morally richer not only directly, but also in intangible ways.

Tuesday, April 7, 2015

Homicide on Video: What Is It Going to Take?

Here is the unedited footage of the shooting of Walter Scott in South Carolina, three days ago.



I have now watched the clip three times--almost as many times as I watched the footage of Oscar Grant's killing, and of Eric Garner's killing, and of countless others. I am having a hard time seeing it as anything but murder, with a bloodcurdling effort to cover the murderer's tracks after the fact. Then again, when I had watched the video of Oscar Grant's killing, and of Eric Garner's killing, and of countless others, those were also hard to interpret as anything but murder, and each of those times ended in what I can only describe as absolute legal impotence, and each of those times I've looked at my screen, incredulous, thinking, "what more could you possibly want/expect to see before you called this what it is?"

I am trying to imagine how this footage can be interpreted in a different way--what sort of teary-eyed testimony the cop might give in his own defense--and how a rational jury could possibly interpret this footage as anything but murder. I am trying to get into the head of the cop's defense attorney, to think how he can possibly describe this footage in a different way. I can't even imagine such a scenario. But you know what? I had the exact same thoughts when I saw Eric Garner's killing, and we all know how *that* turned out. It seems like the evidence is getting better and better, but the results are not, and we are fast losing hope that there is such a thing as "perfect" video footage of murder.

Ask yourself, gentle reader: all those other times you saw unspeakable horror on video, did you not say to yourself, as I did, this time it's the ultimate evidence? This time the evildoer won't get away? What makes us think that this one, this last one, will be different? That this time someone has finally managed to catch indefensible evil on tape? That this one won't be a hung jury or some involuntary manslaughter or somesuch? And if this one isn't, what more could "they" possibly need to see what we see? What, if not this--if not Eric Garner--if not Tamir Rice--if not any number of videos we've seen--is going to be incontrovertible evidence of murder? Will there ever be incontrovertible evidence? What, for Heaven's sake, is it going to take?

My heart is with the many sad and angry people in South Carolina who are trying to make sense of it, some of whom may have just realized that Ferguson is not a place, it is a state of consciousness. Yes, black lives matter. They should matter. But until all lives matter equally, none of us should feel calm, or safe, or contented.

The screaming, struggling civilian was a dark man with a face white as flour from fear. His eyes were pulsating in hectic desperation, flapping like bat’s wings, as the many tall policemen seized him by the arms and legs and lifted him up. His books were spilled on the ground. “Help!” he shrieked shrilly in a voice strangling in its own emotion, as the policemen carried him to the open doors in the rear of the ambulance and threw him inside. “Police! Help! Police!” The doors were shut and bolted, and the ambulance raced away. There was a humorless irony in the ludicrous panic of the man screaming for help to the police while policemen were all around him. Yossarian smiled wryly at the futile and ridiculous cry for aid, then saw with a start that the words were ambiguous, realized with alarm that they were not, perhaps, intended as a call for police but as a heroic warning from the grave by a doomed friend to everyone who was not a policeman with a club and a gun and a mob of other policemen with clubs and guns to back him up. “Help! Police!” the man had cried, and he could have been shouting of danger. 

--Joseph Heller, Catch-22

Friday, March 27, 2015

President Obama Interviews David Simon

A truly epic meeting has happened at the White House: President Obama interviewed David Simon, creator of the masterpiece series The Wire.

Yes, you read right, and you can see the entire interview below.



This interview is incredible on several levels. First, it is a strong testament to the power of a cultural piece in shaping discourse around big policy issues. If any television series is worthy of this honor, surely it is The Wire, which, through its depiction of the drug trade in Baltimore, has expanded America's perspective of the criminal justice system to the schools, the political system, and the media.

Second, this dialogue is truly wonderful to experience. As I write in Chapter 5 of Cheap on Crime, the Obama campaign was the first presidential campaign since Nixon's that did not feature crime control and punitivism as a central feature. I read this as a testament to the power of recession-era politics to reshape the political conversation. And the followup during the presidency has also been remarkable: no matter what you think about Obama's foreign or economic policy, it is his presidency that fostered the bipartisan initiative to deescalate federal punishment, as well as the Holder and Cole memos to refrain from intervention in marijuana enforcement in legal states. What this remarkable interview reveals are the complex motivations behind this change. In Cheap on Crime I argue that the recession created conditions under which politicians of all stripes can foster non punitive reforms without suffering electoral and public consequences; but even if that's what brings people to the table, it is only partly what fuels these changes. This interview is a combination of financial issues (particularly when Obama and Simon discuss the difficulty of young men with felonies to engage in the job market) and broader issues of dignity, like the ones Jonathan Simon covers in Mass Incarceration on Trial. To Obama, perhaps unsurprisingly, what is salient in this picture is boys growing up with absent fathers, or with fathers in prison, and he particularly mentions the fourth season of The Wire, which addresses the schools.

Third, which is poignant, is what Obama says toward the end of the interview: that perhaps the time has come to address the structural issues that lead to overincarceration in the first place. Is he referring to poverty? racism? social stratification? The time to address these differences through deep economic change is sorely overdue, but with a Republican congress any effort to make America more egalitarian and less stratified generates cries of "communism!" panic that echo the 1950s. I have no doubt that Obama and Holder have deeply understood and internalized the lessons of The Wire, but I can also see why translating these lessons to practical political gains in a complicated field of political struggle is a big challenge.

I applaud Obama and Simon for this remarkable conversation.

Thursday, March 26, 2015

Blue Ribbon Committee Report on Marijuana Legalization

The Blue Ribbon Committee Report on legalization is out, and it raises a lot of interesting issues. It's a short and interesting read. It doesn't dwell much on the failed effort to pass Prop 19, and it looks at the initial experiences of the four states (and DC) who legalized marijuana as possible guidelines.

Among the topics discussed in the report are questions of enforcement with regard to minors and travel; concerns about workplace and environmental safety; level, type, and usage of taxation; structuring the business end of things; issues concerning the distinction between medical and recreational marijuana; and the need for statewide uniformity.

A few things worth noting:

1. The report hardly discusses tobacco and alcohol regulation as comparisons, and the references to tobacco are limited to the issue of advertising.

2. Very little attention is paid to the political configuration that makes statewide policymaking in California particularly weak - namely, polarization and neopopulism.

3. Not enough attention is paid to what we already know from economic studies of legalization and taxation: there is already some useful information coming in from CO and WA, and there will be more from other states (I will post some links in a future discussion.)

4. The distinction between marijuana and other drugs, and the retrenchment of the latter category, is worth discussing, even if there are good arguments to justify it.


I will be speaking about the report on KQED this afternoon.

Monday, March 2, 2015

Solitary Confinement Video by Molly Crabapple

Residence Requirements for Sex Offenders Struck Down

This morning, in re William Taylor et al., the California Supreme Court struck down the provisions of Jessica's Law that restricted registered sex offenders from residing within 2000 feet of a school or park.

The bottom line is as follows:

[W]e agree that section 3003.5(b)‟s residency restrictions are unconstitutional as applied across the board to petitioners and similarly situated registered sex offenders on parole in San Diego County. Blanket enforcement of the residency restrictions against these parolees has severely restricted their ability to find housing in compliance with the statute, greatly increased the incidence of homelessness
among them, and hindered their access to medical treatment, drug and alcohol dependency services, psychological counseling and other rehabilitative social services available to all parolees, while further hampering the efforts of parole authorities and law enforcement officials to monitor, supervise, and rehabilitate them in the interests of public safety. It thus has infringed their liberty and privacy interests, however limited, while bearing no rational relationship to advancing the state‟s legitimate goal of protecting children from sexual predators, and has violated their basic constitutional right to be free of unreasonable, arbitrary, and oppressive official action.

Nonetheless, as the lower courts made clear, CDCR retains the statutory authority, under provisions in the Penal Code separate from those found in section 3003.5(b), to impose special restrictions on registered sex offenders in the form of discretionary parole conditions, including residency restrictions that may be more or less restrictive than those found in section 3003.5(b), as long as they are based on, and supported by, the particularized circumstances of each individual parolee.

While the Orange County Register believes that it is unclear whether the ruling has effect outside San Diego County, it seems that a legal provision that is unconstitutional in one area of California is just as unconstitutional in another. Of particular interest is the impact of San Francisco, which, because of the layout of schools and parks in it, is essentially inhabitable to sex offenders under Jessica's Law. This meant a large proportion of homeless and transient sex offenders, which, as one of them said to ABC news, "are actually walking time bombs out here because we are suffering from sleep deprivation".