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tag:blogger.com,1999:blog-81070376094557795572016-10-10T08:58:08.155-07:00California Correctional CrisisThoughts and News on Criminal Justice and Correctional Policy in CaliforniaHadar Aviramhttp://email@example.com:blogger.com,1999:blog-8107037609455779557.post-85239952279642691262016-10-03T09:36:00.000-07:002016-10-03T09:36:07.410-07:00This Election, Say No to Old-Skool Crime Panic: Part 1Last Monday's presidential debate was interesting for a variety of reasons. To me, a particularly interesting point was the reemergence of old-skool crime risk narratives. As I explain in Cheap on Crime, the recession years were characterized by a rethinking of our ideas about crime, crime prevention, and crime control, and by a bipartisan understanding that, regardless of one's stance on the morality of mass incarceration, it is simply not economically sustainable to punish so many people so harshly and for such long periods. This means that, in the last few years, we were exposed to new and surprising declarations from long-time conservatives arguing for more civil rights protections, a truce in the war on drugs, and sentencing reform. This is not just about money, though; new advances in neuroscience and developmental psychology have led to a rediscovery of childhood, which in turn has led to several developments in legislation and in caselaw reforming juvenile justice.

And yet, it seems like some things never change. One such thing was Donald Trump's argument last Monday that murder rates are up. Anyone who lived through the Nixon campaign must have felt, as Yogi Berra would say, déjà vu all over again. The logic behind this old-skool crime panic argument is: crime rates are rising; the only way to stop them is by cracking down on street offenders; the best way to do it is aggressive policing in the streets. The problem is that none of these things is fairly presented or even true.

First, as my colleague John Pfaff explains in The Nation, it is statistically misleading to focus on a rise in one type of crime in the course of one year:

Despite the increases cited in yesterday's FBI report—the rise in murders in 2015 was the largest in both absolute and percentage terms since crime started dropping in the early 1990s—the United States remains an historically safe place to live. The murder rate in 2015 is still lower than it was in 2009, and before 2009 the last time the murder rate was as low as it was last year was in 1964. Overall, 2015 had the third-lowest violent crime rate since at least 1970, and probably even before that, since our older crime stats likely understate crime much more than they do today.
Yes, crime went up in 2015. But crime remained at near historic lows in 2015, too. Both of these statements can be, and are true. Despite the rise in violent crime, we remain safer today than we have been in decades.
What happened in 2015 happened in the course of one year, against an opposite trend, and one year cannot be regarded a trend:

Because we have so much less violent crime today than in 1990, any given increase will be a bigger percent jump today than 25 years ago. If we have 100 units of something, five more is just 5 percent, but that same five-unit increase is a 10 percent jump from 50. So while the number of murders rose by 11 percent in 2015, compared to 9 percent in 1990, the total increase in murders in 2015 was about 400 less than in 1990. The percent change looks worse because we are doing so much better.
Second, there are no grounds to fear sensible nonpunitive measures. Remember the vast number of articles in California newspapers quoting cops claiming that criminals have been running rampant in the streets since the early releases of Prop. 47? The proposition passed in November 2014. It is now October 2016 and the numbers are in: there is no correlation, on a county-by-county analysis, between releases under Prop. 47 and crime rates. None. Long prison sentences, serious felony charges, and refraining from paroling people do not make us safer. At all.

Third, cracking down on suspected street offenders via aggressive stop and frisk policies is never a good idea. The odds of actually catching contraband on someone during a brief stop and patdown are very low. In New York City, where the NCLU conducted a multi-year inquiry, they found that nine out of ten people who were stopped and frisked were found to be totally innocent. The benefits of finding contraband on a small percentage of the citizenry are far outweighed by the costs of humiliation, degradation, and the loss of trust between police departments and the communities they serve. Even more importantly, as Jill Leovy's book Ghettoside demonstrates and as David Simon repeatedly explains in his public appearances, the problem is not just overenforcement: it's overenforcement of showy, aggressive police power that comes directly at the expenses of enforcement that requires brainy, creative police work. The time and manpower spent on stop and frisk is time not spent solving murders and robberies, which are presumably the serious crimes that Trump wants us to be afraid of.

This election, Californians have an opportunity to say no to old-skool crime panic by voting on sensible criminal justice reforms that will save us money and help us treat our neighbors and fellow residents more humanely. Vote Yes on 57 to eliminate prosecutorial monopoly on trying juveniles as adults and to give nonviolent adult offenders a chance on parole. Vote Yes on 62 to eliminate the costly and failed death penalty. Vote Yes on 64 to save money on marijuana prohibition and to bring in much-needed tax revenue. Vote No on 66 to refuse a costly and dangerous death penalty "tweak" that will provide (and pay) undertrained attorneys and risk wrongful executions. Say no to unfounded crime panics. We've been there before and we know it doesn't help. And say yes to sensible reforms.

 Hadar Aviramhttp://email@example.com:blogger.com,1999:blog-8107037609455779557.post-29155357939653624762016-09-09T08:32:00.001-07:002016-09-09T08:32:23.832-07:00November 2016 Ballot: Yes on 64My colleagues and I at UC Hastings made a series of nonpartisan, informational videos on the California propositions on the November 2016 ballot. Here's a video made by my colleague Marsha Cohen, an expert on food and drug law, about Prop. 64, the legalization of marijuana:

On this blog I make endorsements as well, and my recommendation would be to vote Yes on 64.

In 2010, there was a legalization proposition on the ballot which I supported, Prop 19, and it failed by a fairly narrow margin. I supported that one even though I found it problematic and vague: Prop 19 legalized personal use and limited cultivation of marijuana, but left the business end unregulated and up to the counties. As a result, it was unclear how much we would gain in tax revenue.

Prop 64 offers a much clearer legalization regime. Flowing from the recommendations of the Blue Ribbon Commission and relying on the experience of Colorado, Washington, Oregon, Alaska, and DC, it has set realistic price points and tax rates on sales, thoroughly regulated cultivation, possession, and sales, and provided safeguards for sales to minors.

Let's talk about the money first. The Legislative Analyst's Office anticipates gains of many hundreds of millions of dollars, up to a billion, in tax revenue. These gains are based on assumptions about patterns of use and commerce that we see in other countries and states. For substances, there is typically a group of hard-core users (See Philip Cook's analysis of alcohol: 60% of American's either don't drink at all or drink very, very little, and only 10% of Americans constitute the vast majority of drinking in the market, with an average of ten drinks a day.) Those folks will use (and pay for it) no matter what, and making sure that they buy (and pay taxes) lawfully is pretty essential. Which is why setting the price point and the taxes properly is important. It seems that this is a key consideration in the states that already have recreational marijuana: you don't want to tax too much, because that'll keep the market alive. But even though those states are considering lowering the tax, they still got revenue that far exceeded expectations, and the hope is that the same will happen here. Prop 64 sets excise tax at 15% for retail and 2.75-9.25 percent for cultivation. Sales tax for nonmedical will hover around 8%.

The proposition sets up a licensing program. Selling without a license will be an offense. Selling to minors would be an offense. Setting up shop near a school will be an offense. And, driving under the influence would be an offense.

The most convincing argument against the measure is a recent Washington state study showing a rise in THC-positive drivers involved in accidents. Here's the full study. But that someone is THC-positive does not mean that marijuana was a factor in the accident. THC is detectable in the blood up to three weeks from the time of use, and a positive finding does not mean that the person was under the influence of marijuana when the accident happened. The study took into account differences in levels of THC, but those are imprecise. Also, keep in mind that drivers were not tested for THC presence before the legalization of marijuana in Washington, so we don't have great comparative data (who knows how many people were THC-positive before legalization?) Moreover, the findings on THC alone are dwarfed by the findings on alcohol, or on alcohol and THC combined (in which case the causality issue is murkier.) The National Institute on Drug Abuse website claims that marijuana impairs driving ability, but cites a National Highway Traffic Safety Administration study that found that carefully controlled studies relying on measurements find no appreciable difference in driving. NORML, who is far from an unbiased group but who does cite unbiased research, cites far less convincing evidence of impairment under marijuana than under alcohol.

As for arguments for legalization, the existing prohibition regime has been far from successful in curbing drug use and has led to huge monetary and personal costs for people charged, convicted and incarcerated for growing and selling. We wouldn't be the pioneers of a different path, but it's a thoughtful effort and definitely worth a try. I'm going with a Yes on 64.

Hadar Aviramhttp://firstname.lastname@example.com:blogger.com,1999:blog-8107037609455779557.post-30953012619852871852016-09-09T07:42:00.002-07:002016-09-09T07:42:50.909-07:00November 2016 Ballot: Yes on 62 and No on 66In anticipation of the November ballot, my colleagues and I at UC Hastings made a series of nonpartisan informational videos explaining the 2016 propositions. Here's the video I made on Prop 62:

On this blog I also make endorsements. It's an unequivocal YES, YES, YES on 62.

It's not a particularly well-kept secret that I vehemently oppose the death penalty for all the obvious reasons: it's inhumane, there's no good evidence that it deters murderers, there are grave concerns about the fairness of its application, and with social psychologists estimating that 5% of all convictions are wrongful, there is also the grave risk of mistake. Add to that the important factor I discuss in Cheap on Crime--the expenditure involved in capital punishment--and repeal should be an obvious choice.

But I'd like to address this post not to the folks who are convinced, for moral reasons, that repeal is the right choice. I'd like to talk to decent, reasonable people who are on the fence about the death penalty, because they feel that some people--serial murderers, people who kill and assault little children, etc.--should have an especially harsh sentence reserved for them. Even if you are such a person, you should vote yes on 62. Here's why.

In November we'll be voting not about the philosophical merits of the death penalty, but on whether to keep it as it is practiced here in California. Here are some facts, not opinions: we currently have 751 people on death row. Since the reinstatement of the death penalty in 1978 we executed a grand total of 13 people. Meanwhile, 90 people died of natural causes. They spend decades on death row, during which they are held in expensive conditions in a dilapidated facility, and they also litigate. Their confinement, and especially their litigation, is costing us $150 million a year, which would be saved if all these people were to be transferred tomorrow to general population. And most of these death row inmates are not the "worst of the worst" for whom you'd like to reserve the death penalty.

I get that you think that in principle there should be something special for really heinous crimes. But we don't live in a principle. We live in California. And in California, this is expensive and it doesn't work.

"So the death penalty is broken," you say. "Why not fix it? Why not make it cost-effective, and then I can continue to support it?"

There is a proposition on the ballot that argues just that--Prop 66. Its proponents, mostly county district attorneys, argue that adding lawyers and shortening procedures would save money and allow California to retain the death penalty. Here's the informational video I made of Prop 66:

The two reforms proposed by 66 are unrealistic, expensive, and very risky. They would not solve the problem. I strongly oppose it and urge you to vote No on 66.

Currently, each death row inmate receives two attorneys at the state's expense to litigate his/her case. "Quelle luxe!" I hear you say. Well, not so much. The Habeas Corpus Resource Center has a whooping grand total of 34 attorneys, who get assigned the hundreds of cases on death row. According to the Legislative Analyst's Office, as of September 2015, 57 individuals were awaiting appointment of counsel in direct appeals and 358 individuals were awaiting appointment of counsel in habeas corpus proceedings. Those are hundreds of people whose lives depend on a determination of their legal claims, who have to wait an average of 16 years to get an attorney. That's why it takes so long to execute people in California.

Hiring and training more attorneys to take on capital cases would cost tens of millions of dollars a year--on top of the $150 million we're already paying by having capital punishment. While I'd love for there to be more jobs for my students, this is an unnecessary expenditure we can ill-afford.

What's worse, Prop 66 supporters propose to shorten the times for appellate and habeas proceedings. But there's a reason why these procedures take time. It's because they have the potential of diminishing the risk of horrible mistakes. When someone does life without parole and is found to be innocent, their life has been detailed, but amends can be made. When an innocent person has been executed, there are no amends. The risk of a mistake is graver than we can tolerate: remember, a conservative estimate puts wrongful convictions at 5% of all convictions.

There is no fix here that saves money and prevents injustice. And even if you think you're willing to compromise, ask yourself--how much is it really worth to you to keep 751 people on death row? Is it really conscionable to pay $150 million annually to keep this going?

Yes on 62. No on 66.

Hadar Aviramhttp://email@example.com:blogger.com,1999:blog-8107037609455779557.post-13881483745185291162016-09-09T07:17:00.002-07:002016-09-09T13:06:14.515-07:00November 2016 Ballot: No on 60My colleagues and I at UC Hastings have prepared a series of informational and neutral videos to educate voters about the CA ballot. Here's a video I made about Prop 60:

Before educating myself about the proposition, my inclination was to vote yes, and I'm sure many voters feel the same way. What could possibly be wrong with condoms? Aren't they wonderful things that prevent pregnancies and sexually-transmitted diseases? Shouldn't we communicate a message to the public that it's cool and sexy to use them, by requiring that they be used in adult films?

Then, I talked to my awesome student Stephan Ferris, who wanted to write a research paper on this. We discussed the advantages and drawbacks of this regime for the better part of last spring, and Stephan's resulting excellent paper on Prop 60 is coming out on the Hastings Women's Law Journal (I'll add the link once it's published.) My student convinced me that the right move on this one is a NO on 60, and here's why.

My natural inclination, as well as that of other well-meaning do-gooders, is to assume that porn actors are defenseless, vulnerable folks with no bargaining power, for whom condoms are the last frontier in the fight against HIV. Neither of these claims is true, and there's actually a regional issue here that is important.

The ecology of porn in California is such that, for the most part, straight porn is produced in Los Angeles and gay porn in San Francisco. What works for the industry on a regional basis in Los Angeles would not necessarily apply statewide. In the world of gay porn, the working assumption in the industry is that anyone involved is HIV positive, and therefore the performers have an incentive to protect themselves. The state-of-the-art standard for protection against HIV is the use of PrEP. This medication, which in San Francisco is covered by citywide insurance, protects HIV-negative people from getting infected and lowers the detectability of the virus in HIV-positive people to the point that the risk of infection is extremely low. While health care advocacy giant AIDS Healthcare Foundation (AHF) is fighting for this measure, other AIDS-prevention groups claim that the proposition is upholding antiquated health standards that don't work for the industry. My student, who interviewed industry performers for his article, found that the industry effectively self-regulates the risks away, and putting people who have financial stake in adult film in a position that exposes them to lawsuits (particularly moralistic ones) creates a bad incentive. Adult entertainment companies concerned about the prospect of litigation will simply move somewhere else in the country--Nevada, perhaps?--and California will lose tens of millions of dollars in tax money

In case you think this is a positive because "we don't want them here", I'd like to remind you that porn watching knows no borders. Porn is viewed almost exclusively online regardless of where it is produced and filmed. You'll still be able to see plenty of unprotected sex, much of it done by amateurs filming themselves; what you won't get is the tax revenue. This proposition smells like unwarranted moral panic. I'm going with no on this one.

Hadar Aviramhttp://firstname.lastname@example.com:blogger.com,1999:blog-8107037609455779557.post-34507431984860604782016-09-09T07:01:00.000-07:002016-09-09T07:01:01.414-07:00November 2016 Ballot: Yes on 57My colleagues and I at UC Hastings made a series of neutral, informational videos about the propositions on the November ballot. Here's the one about Prop 57:

For readers of this blog, I'm also making endorsements. It should be a resounding YES on 57, and here's why.

The first part of Prop. 57 is a no-brainer: who do you trust more with the decision to prosecute juveniles in adult court--a judge after a fitness hearing or a prosecutor? We've trusted prosecutors since we adopted Prop. 21 in 2000. We're talking about thousands of cases here, but even one case of a young person unnecessarily doing time in an environment full of older people should be avoided. What we know about juveniles in adult institutions (which is not a lot, because it's difficult to study) is disconcerting: suicide rates and vulnerability to abuse, assaults, and victimization. Moreover, when this decision is left to prosecutors, there are big differences between the different counties. Juvenile offenders should not be political pawns.

The second part requires a bit more unpacking, but also turns out to be a no-brainer. A typical felony sentence in California consists of the basic sentence for the offense plus a series of "enhancements" added in bills and voter initiatives over the years. Our determinate sentencing allow for people's release from state prison after they complete most of their entire sentence, including the enhancements--which can sometimes double or even triple the original sentence. Most folks don't come up for a parole hearing: California holds parole hearings only for lifers.

If Prop. 57 passes, some version of parole hearing will be returned to the system and applied to non-lifers as well. The idea is to award nonviolent felons doing time in prison (not a big population since Realignment and Prop 47) a parole hearing after their base sentence is completed. The proposition requires that CDCR adopt regulations about rehabilitation programming and the worth of doing programs in "good credit" days that count toward early release. So, while its target population isn't big and some of the details on how exactly these parole hearings will be held are still obscure, a few things are clear: This will not result in more incarceration, and it will award release to people whose records show them to be rehabilitated. At worst, it'll be an ineffectual proposition (albeit not a harmful one). But if implemented correctly, it could liberate some folks from the Byzantine maze of enhancements that leads to truly ridiculous sentences.

Some voters might be wondering whether Prop. 57 violates the single subject rule. The best two readings I can recommend on this are Michael Gilbert's 2006 paper and his excellent 2011 followup. Using an ingenious research design, Gilbert finds that our natural tendency is not to enforce this rule when proposition are more or less on the same topic. His analysis with Robert Cooter also suggests that there's positive value in "bundling" similar issues in one proposition.

The "bundling" of juvenile and parole here is relatively benign. Remember Marsy's Law in 2009? The one where you thought you voted to support victims and you actually voted to extend the period between parole hearings? This one's not like that. These two issues make the system more deliberative and personalized, things of which we could use more, and if well implemented can save lives (and dollars.) So, vote yes on 57.Hadar Aviramhttp://firstname.lastname@example.com:blogger.com,1999:blog-8107037609455779557.post-10995957105079567262016-07-19T11:20:00.001-07:002016-07-19T11:20:23.325-07:00Play Review: The Box by Sarah Shourd

It's hard to say that watching The Box, Sarah Shourd's new play, was a pleasurable pastime. But it was an important play, incisively written, beautifully acted, and impressively produced, that could not leave the audience indifferent.

The Box is a play about solitary confinement. In a cleverly constructed set of six cells, approximately the size of a real SHU cell, sit six prisoners. Some are there for a brief disciplinary interlude; some have been there for years. Shourd's characters are fictional, but their biographies are reminders of real people in solitary, such as the Angola Three and Todd Ashker.

With the views, video projections, and convincing soundtrack of noises, we are transported to a world of cruelty and deprivation. We meet different people, who approach the reality of their situation in different ways. We see them in conflict; we see them in solidarity; we see them at their noblest and basest. Shourd, who has spent years fighting solitary confinement ever since her release from Iranian prison, based the play not only on authentic dialogue, but also on genuine proceedings in solitary (the play takes the trouble of taking us through the routine of getting people out for visitation, including the wait time of the visitor.)

The play is also a reminder of the importance of solidarity and interracial unification. It includes a brief and stylized version of the two Pelican Bay hunger strikes, complete with the court order to force feed the inmates that ended the second one. I highly recommend this unforgettable experience to anyone, especially those who have not yet become embroiled in the struggle to end solitary confinement in California.

The Box plays at Z Space until the end of the month. For tickets, click here.Hadar Aviramhttp://firstname.lastname@example.com:blogger.com,1999:blog-8107037609455779557.post-3765692867060555692016-07-19T11:02:00.003-07:002016-07-19T11:07:48.072-07:00On the Ballot: CA Propositions on Criminal Justice, November 2016It's pretty early to start talking about these, n'est ces pas? But it's not too early to start thinking about the November election as an opportunity for positive change. Here is a roster of the statewide propositions addressing criminal justice issues, with some initial thoughts. We will take each in turn in the coming weeks.

YES on 57: Civil and Criminal Trials

This is the Jerry Brown proposition, which essentially does two things: takes the authority to file charges against juveniles out of the hands of prosecutors and places it back in the hands of judges (this bit is a no-brainer. OF COURSE it's a good idea) and offers incarcerated folks the opportunity to earn more good credits on their path to release, resuscitating some version of parole for non-lifers. As to the latter part, the devil's in the details, but even at its worst, it won't make people's sentences worse than they are now. There's nothing to lose by saying yes, and moreover, any day someone with a proven rehabilitation record spends outside, working, paying taxes, and quietly living his/her life, is not a day you pay taxes to house him/her.

YES on 62: Death Penalty Repeal

We came close in 2012, and this is our chance to finally join the industrialized Western world and get rid of a punishment that does not serve us well. If you're philosophically inclined, ask yourself what you think about state-sanctioned killings. If you dislike miscarriages of justice, ask yourself how comfortable you are with executing innocent people. If you feel the system is racially biased, here's one classic setting where that is abundantly clear. And if none of these things matter to you, perhaps, like me, you think that $150 million a year is a pretty extreme expenditure for keeping 750 old and sick folks in a dilapidated facility, paying for their endless appeals and habeas, and letting them, for the most part, die of natural causes. Remember: you are not voting about the philosophical appeal of a theoretical death penalty, but rather about the ridiculously expensive, ineffectual, and non-deterrent process we have now in place. Let's say goodbye to this archaic festival of waste and punitivism once and for all.

YES on 64: Marijuana

This legalization proposition is a considerable improvement over its 2010 predecessor. That one was imperfect, and as you recall, I recommended a "yes" despite of its imperfections, because whatever we do, we can't go on doing what we're doing now. Arrests, trials, and convictions, have not impacted the marijuana market at all. Taxation and regulation might--if we do a clever job at setting price points and the appropriate sales tax. Two things have changed since 2010 that make this one a stronger pitch for you: the feds have fairly consistently stayed out of the business of states that legalized recreational marijuana, and we have the experience of five states who legalized and the sky didn't fall down. There are some complicated implications that this proposition might have on marijuana use rates, and we will discuss them in the weeks to come--as well as the reasons why this is of no particular concern in California.

NO on 66: Death Penalty Reform

This is the District Attorneys' Association's horrible response to 62, which consists of something similar to what happened in Florida a few years ago. The idea is that the death penalty is, indeed, broken, but that it can be reformed, and by taking away important constitutional protections, and "streamlining" (read: removing) options for post-conviction relief we can "cure" the delays in its administration and save a bit. This is only a good option if you are indifferent to the risk of executing innocent people or don't care much for state misconduct, which is sure to result from it--it might be cheaper, but also considerably more cruel and stupid. If you feel that the death penalty is too costly or cumbersome, let's get rid of it altogether, rather than serve a barbaric version of it with a side order of miscarriage of justice. NO NO NO.Hadar Aviramhttp://email@example.com:blogger.com,1999:blog-8107037609455779557.post-19270238009885827652016-05-26T14:06:00.000-07:002016-05-26T14:06:15.785-07:00Long Sentences for Juveniles: Does Parole Fix Everything?Today, the California Supreme Court decided People v. Franklin in a way that probably had both the defendant and the state feeling unsatisfied.

The story is tragic in the same way that too many stories are: Tyris Lamar Franklin, 16 years old, was in conflict with other teenage boys, whom they referred to as the Crescent Park Gang. Shortly before the crime, the Crescents fired multiple shots into the apartment where Tyris lived with his grandmother and brothers, and attacked Tyris' 13-year-old brother. In retaliation, Tyris shot and killed Gene, a boy who was associated with the Crescents but who had nothing to do with the attack on the little brother.

Under California law at the time, the judge had no choice: he had to sentence Tyris to 25-to-life for the murder and to a consecutive 25-to-life for the weapon enhancement. The math is easy: Tyris would come up for parole for the first time after 50 years, at the age of 66. But the judge felt very uncomfortable with this decision. His explanation of the sentence echoes not only his grief and frustration with the unnecessariness of the crime AND the punishment, but also his thinking, which was influenced by the new Supreme Court line of cases, starting with Roper v. Simmons and continuing with Graham v. Florida. These cases relied on new findings in neuroscience and developmental psychology, which suggest that juvenile brains continue developing well into their mid-20s, and that until their prefrontal cortex is fully developed, they are less capable of thinking about consequences, factoring in long-term considerations, and resisting peer pressure. Reflecting this "rediscovery of childhood" perspective, the judge said:

The sentence is the sentence that's prescribed by law, not one that the Court chooses. And I will impose it in this case, but first I just want to say a couple of words to both families. I see a lot of pain in this courtroom all the time. And so often it's because of senseless things that happen. And if there's a senseless case, this is a senseless case. We've got two young men's lives destroyed. . . . We've lost two young men. And for what? It's so senseless. I would have loved to have seen these two young men grow up to be people, to be the people they're supposed to be, both of them. And neither of them is going to have that opportunity. It's because of unspeakably stupid choices that you made, Mr. Franklin. And I just hope that something can come out of this that's productive. I'm impressed with Gene['s] . . . family's dignity going through this. Their empathy for Mr. Franklin's family and even Mr. Franklin. And I'm impressed with Mr. Franklin's family's understanding and empathy for [Gene]'s family. And if we can take something from this, I would love for it to be, get the guns out of Richmond, get the violence out of Richmond, and don't have these young black men going after each other because we see it so much in this courthouse. And what ends up happening is we have some young men going to prison for the best years of their lives at the least, and other young men who don't get to grow up. And how crazy is this? How crazy. So if both families can do anything to try to make some sense and find some good out of this, work together to try to get the guns out of Richmond, get the guns out of the pockets of these young men who haven't got the frontal lobes yet to figure out how to deal with their issues.

Shortly after Tyris Franklin was sentenced to 25 + 25, the Supreme Court decided Miller v. Alabama. Under Miller, mandatory life-without-parole schemes for juveniles are unconstitutional. Even before the Supreme Court's subsequent decision in Montgomery v. Louisiana, which applied Miller retroactively, California was already searching for ways to fix these problems. One such way was through SB 260, later codified as Penal Code 3051, which provides a special "youth offender hearing" before the parole board. For someone serving a sentence like Tyris Franklin's, that would mean a parole hearing after 25 years, in lieu of the 50 that the law provided before the amendment. Moreover, under the new law, the board is encouraged to take the person's age when the offense was committed into account in a serious way. For evidence that the parole board takes the "rediscovery of childhood" perspective seriously, see their recent decision recommending Leslie Van Houten's release.

The California Supreme Court found today that the "youth offender parole hearings" provided by Penal Code 3051 preempted Franklin's argument that his sentence violated Miller, because he is already eligible for the "fix" via an earlier parole date. Nonetheless, the Court remanded the case to determine whether Franklin was able to fully present evidence as to his level of maturity, which won't make a difference for the sentence but will make a difference twentysomething years from now on parole. It's a bit of a "neither here nor there" decision. The state representatives would say: if the sentence is fine, and if there's evidence in the judicial explanation that the judge was aware of youth issues, why not take that into account? And Franklin would say: if the judge clearly was unhappy with the mandatory sentence, and the mandatory sentence was unconstitutional, why not give the judge a chance to fix this at resentencing, rather than waiting twenty-five years?

Part of the discomfort with relying on the parole "fix" in this case relates to the proximity between Miller and Franklin. Even though, legally, it doesn't matter whether the case we're remedying with a parole hearing happened one day or fifty years before Miller, it somehow feels different. When the Supreme Court decided Montgomery, Henry Montgomery was in his late 60s, having served fifty years behind bars for a crime committed when he was a teenager. A parole hearing to release him could be held immediately. Here, by contrast, the result is that with the "fix", which was just held to preempt the constitutional channel, Franklin has to wait more than twenty years to argue something that we know the judge felt very strongly about as recently as 2011.

Whether or not you think the result in Franklin was constitutionally permissible, the deeper questions about the parole "fix" emerge. We're very good at ratcheting up sentences and we've done a masterful job at forgetting that children were children. And now that we've remembered the difference between youth and adults, it's taking us a very long time to fix things using very small steps, which put a dent in ultra-severe sentences, but are still very far from undoing their destructive effects.Hadar Aviramhttp://email@example.com:blogger.com,1999:blog-8107037609455779557.post-80888866099035931992016-05-23T13:13:00.002-07:002016-05-23T13:33:42.864-07:00Foster v. Chatman and the Limits of the Sayable

This morning, the Supreme Court decided Foster v. Chatman, a case involving race considerations in jury selection proceedings in Georgia.

There are two types of challenges that the prosecution and the defense may use to disqualify prospective jurors from the panel: for cause challenges, in case there's evidence that the prospective juror is biased and might not be able to decide the case fairly, and a limited number of peremptory challenges, which either side can use for no express reason at all. There is one limitation on the use of peremptories: under a 1986 Supreme Court decision, Batson v. Kentucky, race is not an appropriate reason for a peremptory challenge (J.E.B. v. Alabama extended this decision to gender.)

In cases in which a party suspects that the other party is disqualifying jurors due to their race or gender, that party needs to prove a prima facie case that there is a systematic pattern of disqualification. If successful, the ball moves to the other party's court, and they have to provide a race-neutral (or gender-neutral) reason for the disqualification. The reason need not be a good one; after all, if there were a good reason they could have used a for-cause challenge. It just needs to be unrelated to race or gender. Then, the court has to decide whether the challenges were race or gender based.

Foster, an African-American man, was charged with the sexual assault and murder of a 79-year-old white woman. The prosecution, which under Georgia law has ten peremptory challenges, used nine of them, and four of those were used to strike all four black prospective jurors. Foster immediately lodged a Batson challenge, which the court rejected. And here is where things get dicey.

At the time of trial, the prosecutors provided various race-neutral reasons for their use of peremptory challenges, relying partly on their perception that some of the black jurors were hesitant about the death penalty (which was on the table, given the severity of Foster's crime.) However, on appeal Foster was able to produce the papers on which the prosecutors scribbled notes for themselves. You can see a section of one of those at the top of these post. The prosecutors marked black jurors with a "b" next to their name. In one occasion, a prosecutor scribbled, "no black church" next to a juror's name. The author of those "b" letters and other comments could not be ascertained, but it had to be someone in the prosecutor's office.

The Supreme Court decision analyzes carefully the race-neutral reasons the prosecutor provides, and shows that these were pretextual. Chief Justice Roberts' method of analysis is to compare the black jurors to white counterparts on the panel who had similar circumstances and, yet, were not disqualified. In the Opinion of the Court, he therefore finds these reasons pretextual, "reek[ing] of afterthought", or in short: a mere coverup for the real reasons for the disqualification: race, the reason expressly prohibited in Batson.

From a doctrinal perspective, the decision in Foster is the correct one. I have no doubt in my mind that they got the facts completely right. There is a clear contradiction between the reasons the prosecutors proffered for the disqualifications and the reasons that their paperwork clearly suggests. Their complicated race-neutral explanations easily fall apart when comparing jurors to each other. The court's thorough analysis is a great example for why we need federal review of state practices: federal courts are removed from the judicial and legal climate on the states, and this is especially important in the context of racially controversial proceedings.

It's also a decision that supports solid values, and one that heralds back to the reason the death penalty was temporarily abolished in Furman v. Georgia in 1972: jury selection and trial processes designed to disfavor African American defendants.

And yet, I'm left feeling very uneasy about the lessons prosecutors might learn from Foster. There's no reason to pretend, or be facetious, about consistent social science findings, which confirm again and again that people's demographics--including their race and gender--correlate significantly with their criminal justice perspectives. In experimental settings, when confronted with incidents of police brutality, race is a significant predictor of whether prospective jurors support the police or the suspect. In mock jury experiments, white male jurors significantly and disproportionately sentence black defendants to death, and influence other jurors to do the same. According to Gallup data, men support the death penalty significantly more than women. With race, the differences are even more stark: whites support the death penalty 75 to 24, whereas blacks oppose it 49 to 44. I could cite dozens, if not hundreds, of studies coming to the same conclusions.

This shouldn't come as a big shocker to anyone. The reason race is influential in forming criminal justice opinions is the racialized nature of criminal justice itself, its history as a system of racial domination, and its massively disparate impact based on race. Some might not like Paul Butler's prescription to fellow African-American jurors to nullify in every case involving race, but at least he's honest about the fact that many folks see our system of incarceration as the battlefront in race war--and with substantial justification.

So what is really going on? Prosecutors, defense attorneys, and judges, all know what social science clearly tells them: that racial identity, and racialized life experiences, are one important and influential way in which people form opinions about the world. They will not excise this piece of information from their memory. What they have learned this morning from the Supreme Court is that they need to find better ways to hide what they know. Indeed, post-Foster, we probably won't see better race-neutral explanations; we just won't see racial notations on papers, and whatever texts the prosecutors might send each other under the table will be deleted before discovery proceedings find what's there. Maybe the prosecution will recur to various real or perceived proxies for race (neighborhood, income, family structure), and maybe, as is increasingly the case, professional trial consulting firms and software will come up with some corporatespeak or sciencespeak that will appear to be racially neutral. Because that's what we do every time a word becomes offensive and unsayable: we put it through the laundromat and it comes out worded differently, within the realm of the sayable, and the discrimination creeps underground.

This is even more depressing considering that the legal system itself has a massively ambivalent approach to the social science truth that demographics impact opinions. Under Taylor v. Louisiana, when the legal process excludes a distinctive social group (again, the clearest cases are race and gender), we don't like this, and the court says that we lose a "distinctive flavor" or a special perspective. In that context, we're perfectly comfortable admitting that a person's experiences--including her race and gender--might impact the way she sees a criminal justice issue. But when the day comes to pick the actual jury, when lawyers draw the exact same conclusion, and use it in a partisan fashion, we get upset and would like them to do a better job pretending that they're not doing that. The difference is that blocking groups of people from the venire and disqualifying individuals, whom you can presumably question to detect bias, are two different types of enterprise. And yet, how much can you possibly learn about a stranger's inner life and worldview in open court?

The bottom line: this decision, while correct and certainly better than the opposite, is a mere band-aid on a problem that is intractable. I cannot see, in the current climate or in any future version of it, a time in which people's racial identity will not be inexorably linked to their criminal justice opinions. Teaching prosecutors to do a better job hiding these considerations from view does not make them less racially motivated; they'll keep their opinions, which happen to be aligned with scientific findings, and become so good at covering their tracks that post-Foster defendants will have a difficult time uncovering them. Holding our nose doesn't make something smell better; it just helps better disguise the smell. If the current presidential campaign teaches us anything, it's that hiding our ugly racism problem under the rug, in the realm of the unsayable, has done little to improve racial equality in the United States. What we're seeing now, when Trump makes the unsayable sayable, is merely the ugly truths that were there all along.Hadar Aviramhttp://firstname.lastname@example.com:blogger.com,1999:blog-8107037609455779557.post-51971600357907559422016-05-20T16:11:00.000-07:002016-05-20T16:23:31.590-07:00The Ninth Circuit: The Feds are Responsible for the Health of Inmates in Privately-Managed Prison

Petitioner Richard Nuwintore with his attorneys,
Ian Wallach and Jason Feldman, after their Ninth Circuit victory

Today the Ninth Circuit decided Edison and Nuwintore v. U.S.--two cases involving the government's responsibility for the valley fever epidemic at Taft, a federal prison located in Kern County. Taft is owned by the U.S. government but operated by the GEO Group, the second largest private prison company in the country.

Gregory Edison and Richard Nuwintore were sent to Taft without warning about the dangers of valley fever. The disease, also known as coccidiodomycosis, has a severe variation that disproportionally manifests in African American patients. Both Edison and Nuwintore fell ill; Nuwintore, who has been released, is now treated under Obamacare, and Edison is being released soon and will also receive care under Obamacare. The condition is chronic and can make people too sick to work.

Is the United States responsible for their illness? The federal government tried to argue that, under the independent contractor exception to the Federal Tort Claims Act, it cannot be held responsible for the actions of a private contractor. Today, the Ninth Circuit found that, due to the government's special responsibility for the plaintiffs (as their jailer), the exception does not apply and the government is liable. I had the great pleasure to correspond with Ian Wallach of Feldman and Wallach, who told me a bit more about the case:

Walk me through the ownership/operation structure of Taft. I understand that Taft is the only federal facility which is owned by the Government and operated by a private contractor. Why is this arrangement so rare?

Taft is presently owned by the USA, who contracted with Management and Training Corporation back in 2007 to operate the facility. I don't know why the arrangement is so rare. It did create some novel issues with the application of the independent contractor exception. Colleagues have wondered if it is because of the valley fever issue. It may sound like a conspiracy theory, but there are some legitimate concerns. The USA recognized the cocci (another word for valley fever, short for coccidiodomycosis) problem potentially in 1999, and knew some would get ill, and perhaps die. And the USA has less liability if someone else is operating the facility, even though the USA sends people there. And the facility is, for unknown reasons, primarily a pre-deportation facility. That means that people facing low terms, or people about to be deported, are held there. If they get sick, and are deported, there is not much practical legal recourse available. Worse than that — there isn't much access to medical care. This is why we know of only one fatality from valley fever at Taft, but there may be many more.

Given Taft's unique status as government-owned and privately operated, would the government's responsibility in this case extend to private prisons in which the facility is both owned and operated by private contractors? How much government involvement should create responsibility and prevail over the independent contractor exception?

Sure. As to the failure to warn claim. And the negligent implementation of policy claim — if the USA developed and implemented policy. And if the USA reserved control over any aspect of the facility — as it did here with structural changes.

The test, as adopted by the Court, is "is there an independent basis for liability?"

If yes, then the claim should stand. As to your second questions, people have brought challenges, in other contexts, to the independent contractor exception, asserting that the USA asserted so much control that it didn't really delegate the duties at issue. I have some charts with summaries of cases on this issue I prepared for use in the oral argument (which can be seen here). I should clean them up before circulating them, and today has been busy, but let me know if I should send them along. The standard was too high for us to meet, so we didn't make that argument on appeal (we did below). And we had some independent bases for liability, which we felt was the right way to go.

Should we be concerned about a potential incentive for the federal government to distance itself from inmates and shift any potential liabilities on the shoulders of private contractors?

Absolutely. And that may be what happened here. Plus privatization of prisons is messy. I understand that there is a private prison in Ohio that successfully petitioned to control parole hearings (and even here, parol boards can consider reports by an inmate's prison in determining parole). And these corporations have a financial incentive for parole to be denied. That's flesh-peddling.

This case involved a federal privatized facility, but as we know, state facilities, which are public, are often public only by name, and much of the health care in California state prisons is privatized. Does today's decision shed any light on questions of liability in this context?

Only to the extent that if you can identify a breach of a separate and distinct duty, and get around any immunity, then your claim should proceed. Today's case was about federal governmental immunity. This would not apply to private actors (although their attorneys have litigated that it does).

And California has separate immunities. Which are awful. In the class action we have, Jackson v. Brown, where 800 inmates need life-long care, and where 40 inmates died, all as a result of infections at Avenal and Pleasant Valley state prisons, the District Court dismissed the case arguing that qualified immunity protected everyone from 8th Amendment claims, because even if the conduct was "cruel and unusual", there was no "clearly identified right" at issue. We think it was the right to be housed in a safe facility, but the court claimed it was the right to be in a facility without an excessive amount of valley fever spores, determine by societal standards. That is on appeal.

There is a great case from the Cal. Supreme Court — Giraldo v. Cal. Dep't of Corrs. & Rehab., 85 Cal. Rptr. 3d 371 (2008), which we relied on and the 9th Circuit expanded upon in today's decision, that spoke of the Jailer's duty to inmates, and set forth a special relationship. It's a great read and a positive expression of the law.

As the sad facts in this case remind us, individuals of certain ethnicities are more prone to certain medical conditions; this is true for valley fever, and also for other diseases and chronic conditions. Would this create an incentive for private prison contractors to refuse inmates of certain ethnicities, because their healthcare would be more complicated or costly? And should we resist such bargaining with regulation?

I am not aware of any vehicle where this could occur. A bidding process is set up to operate a facility, and the bidders know who will be housed there and what is apparently needed, and can request to transfer people away, but no one has to listen to that request. In three other valley fever cases we have, the contractor argued that they had no say in who they accepted, and the injury was the delegation. These cases (People v. Hammond, Sutton, and Aluya) were also dismissed on summary judgment — because the court bought it. This is on appeal too (and you are beginning to see how Eastern District court respond to claims by inmates about valley fever. Add that there are no attorney's fees provisions, and these are exhausting mid-level tort cases, so few lawyers fight them. Which is why these dangerous practices continue, as there is very little accountability). Regulation is a great idea — but in the interim, I'll keep suing.

Finally, a big part of today's decision involved the government's duty to warn inmates about the medical dangers involved in serving their prison term at Taft. But if inmates have no choice on where they are incarcerated, what lends this duty legal value?

The failure to warn deprived these individuals of four avenues of redress. Had they been warned, they could have done the following:

Seek an administrative remedy to be housed elsewhere, before ever arriving at Taft.

Seek an administrative remedy the day they arrive, seeking transfer. Most people are infected within the first few months of arrival, but if they are lucky, they could be transferred out before getting infected.

Change their lifestyle while there. This is largely a camp facility with tons of leisure time. Which, if warned, would be better spent inside.

And they can choose not to take certain jobs (like those that involve digging or gardening or any contact with soil). They can wear N95 filtration masks if they wish.

And these changes may greatly decrease their exposure.

The Ninth Circuit decision sheds an interesting light on the malleability of the public-private divide in the context of prison privatization. Congratulations to the plaintiffs and their attorneys, and wishes of good health to everyone impacted by the epidemic.Hadar Aviramhttp://firstname.lastname@example.com:blogger.com,1999:blog-8107037609455779557.post-44285843546360598452016-05-13T11:09:00.000-07:002016-05-13T11:10:00.058-07:00California June Elections: CCC Criminal Justice EndorsementsIt's that time again! Elections are afoot and CCC is here with criminal justice endorsements. Our thoughts about the candidates and proposals are limited to their criminal justice and corrections policies, and you obviously may have other considerations in mind. These summaries are here to be useful and informative to the extent that criminal justice concerns drive your vote.

Candidates for Office

President of the United States

Democratic Party: No Endorsement, slight preference for Bernie Sanders
Both Clinton and Sanders have spoken fairly little on criminal justice reform, and when they had it was mostly regarding the issues of stop-and-frisk and police-community relations in the context of Black Lives Matter. Predictably, they both toe the line here: police reform is necessary, racial discrimination is deplorable, and stop-and-frisk are ineffective. Who would actually impact criminal justice matters while in office is a different matter: police-community engagement happens overwhelmingly on the local level, and therefore any declarations on that front would have little impact on people on the ground. The Clinton campaign has done an admirable job apologizing for the 1994 Crime Bill, though its impact on increased punitiveness has been fairly small (again, given its federal scope: most criminal justice policy happens at the state and local level.) Sanders speaks of shutting down the private prison industry, but again, that's a misleading perspective aimed at pandering to progressives--public prisons these days are public only by name, private prisons incarcerate a very small percentage of U.S. prisoners, and the parade of horribles in prison conditions does not suggest that private prisons are significantly worse than their public counterparts. The slight preference for Sanders comes from the fact that he opposes the death penalty (Clinton supports it), though the extent to which the U.S. President can bring about abolition is questionable. No matter how happy you might be with these folks on other matters, we will be pining for the Obama-Holder initiatives and for the bipartisan reform spirit they encouraged for several years to come.

Republican Party: No Endorsement
Trump is a massive nightmare from the criminal justice perspective. His xenophobic, inhumane positions on immigration alone should indicate the extent to which immigrants will be criminalized and detained with him in office. But the others are not much better. With Rick Perry and Jeb Bush out of the race--the only two signatories to Right on Crime, and the only two with solid records of prison closures--we are left with rabid old-skool punitive demagogues. Ted Cruz, who in 2010 seemed a sane voice for criminal justice reform and even co-sponsored legislation to mitigate the effects of the war on drugs, has since then changed his tune and is vocally critiquing President Obama for early releases and mandatory minimum relaxation. Jim Gilmore is a strong supporter of the death penalty, using florid and polarizing rhetoric in describing its appropriateness, and has declined to stay executions under truly horrid circumstances. John Kasich would have been a difficult choice on other policy matters, but in criminal justice he has a solid record of reforms in Ohio, reforming drug programs, closing down prisons, etc. There is still a lot of work to do in Ohio: overcrowding, pay-to-stay jails, and other scourges. But Kasich would have been the far lesser evil in this far-from-ideal roster. As things stand, there's no winning on criminal justice matters with the Republican roster.

United States Senator: Kamala Harris, with some reservations

Kamala Harris is a smart, solid and thoughtful public servant and politician. Her book Smart on Crime shows an ability to think outside the box and her career as San Francisco D.A. was marked by a willingness to work with the Public Defender's Office to introduce initiatives such as Clean Slate. As California Attorney General, Harris' decision to appeal Jones v. Chappell was surprising and hurtful, especially given her personal opposition to the death penalty. Her enthusiasm for truancy courts also raises some questions about whether we are criminalizing people for a phenomenon mostly linked to poverty. But even a cursory glance at the other candidates' statements clearly show her leaving every single one of them far behind in terms of experience, resourcefulness, and, to be honest, sheer literacy. She is our best choice.

United States Representative: Jackie Speier

Speier is running unopposed, but I would pick her out of a hundred candidates. Her unwavering commitment to human rights and her work to expose and eradicate sexual assault in the military are admirable and important, and she has represented us very well. No reservations whatsoever.

Member of the State Assembly, District 19: Phil Ting

Ting hasn't done a whole lot in the field of criminal justice, but he is responsible for an excellent and well-balanced gun control bill, which introduces the possibility of a "gun violence restraining order" for folks found by courts to be a danger to themselves and others. It's a sensible balance between Second Amendment rights and the protection of lives. I've tried, in vain, to find Taylor's positions on criminal justice matters. Ting is the incumbent, and seems to be widely endorsed on other grounds, so I doubt Taylor's odds are that great anyway.

Member of the County Central Committee / Assembly District 19: Angela Alioto

Several good people in that roster, including firefighter and community organizer Keith Baraka, but Alioto has vast experience in San Francisco politics and is a compassionate advocate for the homeless--one of the few people that stood up to Care Not Cash. But you can make other good choices here.

Judge of the Superior Court, Office no. 7: Victor Hwang

All three candidates are qualified and thoughtful: Paul Henderson is an experienced prosecutor, Sigrid Irias is a civil litigator, and Hwang is a civil rights attorney. My preference for Hwang is mostly due to the fact that people with defense/civil rights backgrounds are underrepresented in the judiciary and some balance would be a good thing. Numerous endorsers agree.

State and Local Measures

Only one of these is directly related to criminal justice and that is--

Measure D: Yes, with reservations

Under Measure D, every incident within San Francisco involving a SFPD officer firing a gun that results in death or physical injury would be referred to the Office of Citizen Complaints. In general, more oversight is not a bad idea; sunlight is the best disinfectant, and police-community incidents in San Francisco, including the death of Alex Nieto, the racist and homophobic texting scandal, and others, suggest that there's plenty of work to be done here. However, the measure comes with a $5 million price tag, and would add 6 investigators to an office that is already understaffed with 17 investigators. Some think that the measure is not enough, and the Office doesn't have a reputation for thoroughness where police conduct is concerned.

Hadar Aviramhttp://email@example.com:blogger.com,1999:blog-8107037609455779557.post-88020032496654215892016-04-14T17:18:00.004-07:002016-04-14T17:18:59.226-07:00BREAKING NEWS: Parole Board Recommends Leslie Van Houten's ReleaseIn her book The Long Prison Journey of Leslie Van Houten, Karlene Faith provides a contextual account of the 1969 Tate-LaBianca murders by members of the notorious Manson Family. Faith tutored and befriended the Manson girls in prison shortly after their sentences were commuted, and provides a sympathetic and complex account of cult life, brainwashing, and sexual exploitation that places the heinous murders in context.

Faith, and others, like John Waters, have long argued that van Houten should be paroled.

Today, the California parole board agreed with them. For the first time since 1978, and forty-seven years after the commission of the murders, the board has recommended her release. The Los Angeles Times reports:

In prior bids for parole, Van Houten's attorneys have characterized her as a model inmate who has obtained a college degree behind bars and has been active in self-help groups.

At a 2002 parole board hearing, Van Houten said she was "deeply ashamed" of what she had done, adding: "I take very seriously not just the murders, but what made me make myself available to someone like Manson."

This quote from Van Houten represents the operating principle in California parole hearings: inmates can only prevail if they take full personal accountability. The board does not listen to contextual issues, and bringing out the cult context did not do any favors for Van Houten in her second trial in 1979 or at her parole hearings. Nor has the parole board been persuaded by her clean disciplinary record, academic degree, and rehabilitative work in prison groups. This decision represents a dramatic departure, and one which other long-term inmates, such as Patricia Krenwinkel, are surely watching closely.

Now, all eyes are on the Governor's office in Sacramento, where Governor Brown will have four months to decide whether to uphold the parole board's decision. Brown's office departed from the police during his predecessors' tenure, by which no paroles were granted, and this contributed to the kind of optimism that Nancy Mullane describes in Life After Murder. But this optimism has not, so far, included members of the Manson family; most notably, Governor Brown has declined to parole 73-year-old Bruce Davis, whose clean prison record and advanced degrees led to a parole recommendation. Moreoever, Van Houten and the others face formidable opponents in the L.A. District Attorney's office, who doggedly pursued their continued incarceration for more than forty years. Indeed, as the Los Angeles Times reports,

Los Angeles County Dist. Atty. Jackie Lacey expressed disapproval after the decision was announced: "We disagree with the board's decision and will evaluate how we plan to proceed."

As some old-timer readers know, I'm currently working on a University of California Press book about the parole hearings of the Manson Family, and this development took me by surprise. I'll be watching the Governor's office closely for the next few months. It'll sure be interesting.Hadar Aviramhttp://email@example.com:blogger.com,1999:blog-8107037609455779557.post-44997610696928416932016-04-13T13:33:00.003-07:002016-04-13T13:33:29.272-07:00Elections 2016: Does It Matter Who's President?

As in every election cycle, CCC will be releasing endorsements once the propositions are on the ballot. We will also release an official endorsement for president for the Republican and Democratic primaries before June 3. But let's stay focused on what actually matters: from the criminal justice perspective--from policing to incarceration and beyond--while it somewhat matters who the President of the United States will be, what happens in California matters a lot more.

As I argued in Cheap on Crime, 2008 was the first year in more than three decades in which criminal justice was not a fundamental part of the conversation. Obama and McCain, and in 2012 Obama and Romney, discussed the economy, immigration, and foreign policy (albeit to a lesser extent), but did not much address mass incarceration. With the advent of the financial crisis, and the state and local frantic scramble for funds, the political scene was a fertile Petri dish for bipartisan collaborations.

Indeed, the Obama administration did a lot of important things--some merely symbolic, some practical--to reverse the mass incarceration trend. They reduced the crack/powder cocaine disparity, scaled back mandatory minimums, proclaimed a federal intention to stay away from marijuana-legalizing states, made changes to solitary confinement in the federal system, created the conditions for the DEA to consider descheduling marijuana, and it is rumored that some death row pardons might be in the works. Obama's personal decency, deep humanity and presidential demeanor contributed to the perception of this administration as more committed to fairness and moderation: among other things, he visited a federal prison in Oklahoma and spoke there of reform, and recently he had lunch with a group of nonviolent drug offenders whose sentences he commuted.

This is wonderful stuff, and the Obama administration should be lauded for all this. Sadly, none of the candidates on offer for 2016, with no exception, match his eloquence, dignity, integrity, and good sense. And indeed, even though the federal system is small in scope, it does have some impact on criminal justice reform.

According to the Bureau of Justice Statistics data, in 2014 there were 1,561,525 federal and state prisoners in the United States. 1,350,958 (86.5%) of them were held in state prisons and 210,567 (13.5%) in federal prisons. The 1% decline in prison population between 2013 and 2014 is attributable in part to the federal system, which saw a decline of 2.5%, compared to the 0.7% in the states. So, yes--some change can be made at the federal level, but its impact on the overall system is fairly limited.

An example that has recently been in the news is the confrontation between Bill Clinton, campaigning for his wife, and the Black Lives Matters activists. As John Pfaff argues in the New York Times, the 1994 Crime Bill--lauded by Clinton for its effects on public safety and excoriated by the activists for its effects on incarceration--did neither of these things. Pfaff writes:

We know the act didn't cause mass incarceration: Prison populations started rising around 1974, and by 1994 they had roughly tripled, from 300,000 to over one million. It's almost surely the case that America was the world's largest jailer well before the act was passed. So if the act didn't cause mass incarceration, the question becomes: Did it help continue to drive it? The answer, by and large, is no.

For one thing, most of the act's provisions applied only to federal crimes. The tough new anti-gang laws, the expanded death-penalty provisions, the three-strikes laws: All applied only to those tried in federal court. And those, over all, are fairly minor players, with the federal prison system holding about only 13 percent of all prisoners. The other 87 percent of inmates are in state systems — and none of the act's new criminal laws affected what happened in state systems.
But, the Act's role in reducing crime was also marginal at best:

The most obvious thing to consider is that rates of violent crimes and property crime began to decline in 1992, three years before the law's various provisions started going into effect. There's no real perceptible change in the rate of that decline after the act. If you want to claim that the law did much to stop crime, this alone is a pretty significant problem. It's not the only one, either.

For one thing, if the law had very little impact on prison populations (despite all the claims to the contrary), then it can't take credit for however much crime was reduced by rising incarceration. And while the act authorized almost $10 billion over six years to hire up to 100,000 additional police officers — a provision that could have reduced crime — the data suggest any impact was fairly slight. (Once again, $10 billion seems like a lot, but local governments spent over $250 billion on policing during the six years the program was in effect.) All told, the policing program seems to have pushed crime rates down by perhaps an additional 1 percent. And a government review of the included assault-weapons ban found that its effect was minimal, if only because people shifted to non-assault weapons with large-capacity magazines.
There are important things that a conscientious federal administration can affect. It can make it easier for inmates to review their cases through habeas corpus, thus perhaps correcting some of the horrific miscarriages of justice in cases of exnoerees. It can make it easier to litigate prison conditions in federal courts. It can make important symbolic gains in the fight against the death penalty and the war on drugs.

But the bottom line is that, if you want to see criminal justice reform with substantial consequences, you are better off focusing on the state and local arena. Among the propositions battling for your attention are Justice That Works, a death penalty repeal measure; Gov. Brown's initiative to abolish direct filing of juvenile cases in adult courts and to bring back some early releases; and an initiative to legalize marijuana in California. This is a remarkable year that could generate massive improvements where they matter, so don't let the Drumpf circus throw off your focus.

Hadar Aviramhttp://firstname.lastname@example.com:blogger.com,1999:blog-8107037609455779557.post-47685967242159789762016-04-13T12:26:00.000-07:002016-04-13T12:26:02.639-07:00Has Prop 47 Led to Increased Crime Rates? (Hint: No)Since the enactment of Proposition 47, which reclassified numerous California felonies as misdemeanors and led to a relief in jail population, cops near and far have been bemoaning a subsequent rise in crime rates. But that a police officer tells a journalist something doesn't mean that it is necessarily true, or that the correlation holds. Which raises the question: Have crime rates increased? If so, is the increase correlated with Prop 47? If it is, may we assume causality?

In general, whenever a question like this pops up, there are two places to check first: the Public Policy Institute of California (PPIC) and the Center for Juvenile and Criminal Justice (CJCJ). PPIC, notably, studied crime rates after Realignment, with Steven Raphael and Magnus Lofstrom concluding that the only category in which there was a subsequent correlated increase was, oddly, auto theft - by 14.8 percent. But other crime categories, including violent crime, were not affected by Realignment. With regard to Prop. 47, Lofstrom advises caution:

Upticks in violent and property crime rates during the first year of realignment caused similar concerns, Lofstrom said. With the exception of a boost in auto thefts, however, the spike was in line with increases in states that did not undergo realignment, and crime rates have since dropped again.

With a surge of releases under Proposition 47, "it's fair to say it puts an upward pressure on crime rates" for the types of low-level offenses those inmates committed, he added. But he said it's very difficult to attribute a particular change in law to a change in crime rates. Cities and counties vary in their staffing levels, law enforcement priorities and reentry services for released offenders.
There is, however, an early effort to figure out what is going on, and it is a new report by CJCJ. A mere observation of crime rates in January-June suggests a rise in several crime categories, though the numbers for other years appear too inconsistent to draw any pattern.

But the question is, if there is an increase, is it related to Prop. 47? The report reads:

If the reduction in local jail populations after Proposition 47 passed in November 2014 is responsible for the urban crime increase in early 2015, as some sources are arguing, then cities in counties with the largest reductions in jail populations in 2015 would show the biggest increases in crime. However, the data suggest this is not the case.

In fact, the cities in 11 counties with the largest decreases in both total jail populations and felony jail populations showed equivalent changes in violent crime, and smaller increases in property and total crime, than the cities in 10 counties with the smallest decreases in jail populations. In these 11 counties (total urban population 7.4 million) with larger jail population decreases (total average jail ADPs decreased 15 percent, average felony ADP dropped 18 percent), the overall crime rate increased by only 1 percent. In the 10 counties (urban population 5.3 million) with smaller jail population decreases (total average jail ADP decreased 7 percent, average felony ADPs dropped 11 percent), overall crime increased by 6 percent. Both sets of counties experienced violent crime increases of 9 percent, while the 11 large jail population decrease counties saw no increase in property crime. Significantly, the 10 smaller jail population decrease counties experienced a six percent increase in property crime. Los Angeles County (shown separately due to the unreliability of its 2014 crime statistics) had a lesser decrease in total jail ADP and an average decrease in felony jail ADP, while the city of Los Angeles saw more unfavorable crime trends than the state as a whole.
The report concludes that "[t]here are no obvious effects associated with Proposition 47 that would be expected if the reform had a significant and consistent impact on crime," and that "[i]t is too early to conclusively measure the effects of Proposition 47 on crime rates just one year after the law took effect." Indeed, early 2016 data from Davis and West Sacramento shows a decline in crime rates.

The real source of concern, then, has to do not with compromising public safety, but with the savings that were supposed to be cycled back into local communities for reentry purposes. One of my initial worries about Prop. 47 was that the funds, which were to be allocated by the Board of State and Community Corrections, would trail a year behind the early releases, effectively having people reenter into nothing. It seems that these concerns are warranted, and that supporters are petitioning Governor Brown to increase the fund allocation for reentry programs.

Hadar Aviramhttp://firstname.lastname@example.com:blogger.com,1999:blog-8107037609455779557.post-7431158606882359162016-01-27T20:15:00.001-08:002016-01-27T20:15:26.595-08:00More on Governor Brown's Sentencing InitiativeThis is a follow-up to my initial comments on the proposed initiative, titled The Public Safety and Rehabilitation Act of 2016,  I've had a chance to read the text, and also to peruse my rockstar colleague David Ball's terrific comments.

There are basically two parts to the reform. One of them, which I covered in my previous commentary, is the move away from determinate sentencing and toward parole hearings--and as I said in my previous post, this is only a good thing insofar as we believe that parole commissioners will make better decisions than prosecutors. Granted, any decision that takes into account the particular individual's situation is better than a rubber stamp based on severity of the offense, one's rap sheet, and these two factors alone, but I have come to see the way parole boards exercise unfettered discretion regarding lifers as something to worry about, and would like to see some supervision and standards (not to mention more training) for commissioners.

The other part is the abolition of direct filing and placing the decision whether to try a juvenile as an adult in the hands of the court, not the prosecutor. As Ball points out, the numbers are pretty small, but for the individual, how discretion is applied could matter a great deal.

I remain overall optimistic, even enthusiastic, about this--but only to the extent that we're not merely transferring the exercise of unfettered discretion from one actor to another without thinking about effective guidelines and supervision for its application.Hadar Aviramhttp://firstname.lastname@example.com:blogger.com,1999:blog-8107037609455779557.post-19733971880825565442016-01-27T18:29:00.002-08:002016-01-27T20:06:23.647-08:00BREAKING NEWS: Brown's Proposed Sentencing Reform Pulls Us Back to the Future
Just two days after the Supreme Court's encouraging decision in Montgomery v. Louisiana and President Obama's announcement of a solitary confinement overhaul in the federal system, comes this astounding piece of news from Governor Brown:

Forty years after signing strict, fixed-term sentencing standards into law – and more than a decade after panning them as an "abysmal failure" – Gov. Jerry Brown on Wednesday proposed a ballot measure to make it easier for nonviolent offenders to gain parole.
In a rebuke of criminal enhancements that can dramatically extend prison terms, the measure would let felons convicted of nonviolent offenses seek parole after serving only their base sentences. It would also restructure what Brown called a "crazy quilt" of credits for good behavior, benefiting prisoners who demonstrate evidence of rehabilitation.

The initiative language would also undo provisions of Proposition 21, the measure approved by voters in 2000 that allows prosecutors rather than judges to decide when teenagers are tried as adults. Brown will need valid signatures from 585,407 registered voters to qualify the measure for the November ballot.

Brown, announcing the measure in a conference call with reporters, said the "determinate sentencing" law he signed when he was governor before "had unintended consequences."
"Unintended consequences" is right. The original pioneering California move in the late 1970s to determinate sentencing was a bipartisan collaboration between conservatives, who were concerned that light sentences amounted to coddling offenders, and progressives, who were concerned about the arbitrariness of parole powers and about its disparate impact on poor people and minorities. The last forty years in California, if seven years' worth of posts on this blog haven't made it clear, have been a very, very bad idea.

"And one of the key unintended consequences was the removal of incentives for inmates to improve themselves," he said, "because they had a certain date and there was nothing in their control that would give them a reward for turning their lives around."
Though his measure would not change sentencing standards, Brown said "it does recognize the virtue of having a certain measure of indeterminacy in the prison system."
"The driver of individual incentive, recognizing that there are credits to be earned and there's parole to be attained, is quite a driver," he said.

The announcement of the initiative was the first specific sign of how Brown plans to involve himself in the November ballot measure campaigns. The fourth-term governor holds a campaign war chest of about $24 million.

Asked if he would finance the initiative, Brown said he will do "whatever it takes to get this done."

Brown will enjoy a relatively favorable electorate, with high turnout for a presidential election typically benefiting Democratic politicians and their causes.

California voters in recent years have demonstrated a willingness to move away from tough-on-crime policies. In 2014, voters approved Proposition 47, which reduced penalties for some drug and property crimes. Two years earlier, voters passed Proposition 36, revising "three strikes" to require that the third strike be a violent or serious felony.

The initiative is likely to face opposition from some conservatives. State Sen. Jim Nielsen, R-Gerber, said in a prepared statement that "weakening the criminal justice system will only increase the victimization of California citizens."

Brown said the ballot measure's proposal followed "intense conversation" with law enforcement groups, representatives of which joined him on his conference call.
Brown said he considered including violent offenders in the initiative but that it "met with, I would say, near-universal disinterest" from law enforcement.

"It became a nonstarter," he said.

Brown, who helped create the state's "determinate sentencing" system when he was governor before, has said for years that it should be revisited. In a speech to judges in Sacramento in November, Brown said he didn't foresee the dramatic impact determinate sentencing would have on the growth of California's prison population. The policy scaled back judicial discretion in prison sentences.
I haven't seen the full text yet [UPDATE: I just read it--here it is--and am posting a follow-up], and will of course comment in depth when I do, but I think some preliminary remarks are in order:

In many ways, the last forty years made us smarter than we were in 1977. We know that Martinson's somber prediction that "nothing works" in rehabilitation was not true, and that doing rehabilitation properly can reduce recidivism. And we also know that determinate sentencing, and that treating kids as adults, achieves little in the way of equality and streamlining and plenty in the way of packing prisons.

Another way in which we're smarter now is that we understand that discretion doesn't go away--it merely moves around. What we did in 1977 was shift it from the hands of judges and parole boars to the hands of prosecutors and legislatures--to the point that some commentators, like John Pfaff and the always fabulous Grits for Breakfast, attribute mass incarceration primarily to prosecutorial charging decisions gone amok.

But let's not throw the baby with the bathwater. One of the reasons California moved away from determinate sentencing in the first place was concern about unfettered discretion by judges and parole boards. Even now, when parole hearings are relegated to lifers, the board enjoys a lot of discretion and very little transparency. My research for my book in progress about the parole hearings of the Manson family members, Yesterday's Monsters, shows the very limited responsiveness of the parole board to the California Supreme Court's supervision, and if we want to get the good stuff (incentives to rehabilitate, shorter sentences) without the bad stuff (discrimination and arbitrariness) we need to design parole in a smarter way. With great power, Spiderman's uncle reminds us, comes great responsibility, and there are no guarantees that parole boards are much better than prosecutors in the discretion department.

Note the humonetarianism theme throughout the proposal. Just like in the initiative on juvenile justice, the language relies heavily on the issue of cost.

So, what happens to the California Penal Code if this passes? Do we rewrite felony sentencing to eliminate the "triad" and affix broad ranges to allow judges discretion? This is going to be a massive redrafting job, but quite an interesting one, and how successful it is depends on how controlled it might be by partisan politics.

Finally, the article talks about the possible broad support by California voters--the same ones that voted, by large majority, to make lots of punitive changes that we regret to this day. And it may well be that, beyond cost, one of the major reasons that the Republican lawmaker's it's-a-scary-world retort falls flat is that crime rates are low. Very low compared to what our predecessors in 1977 were facing. It may be the case that it's time to put aside the hubris and conclude that crime rates, like the weather, happen for a variety of causes, of which sentencing reform is only one, and that our decisionmaking process should not sway to and fro every time the pendulum swings.

Hadar Aviramhttp://email@example.com:blogger.com,1999:blog-8107037609455779557.post-89918067005881847352016-01-25T15:36:00.000-08:002016-01-25T15:36:28.393-08:00SCOTUS Offers Hope for Lifers Without Parole Sentenced When They Were JuvenilesIn 1963, Henry Montgomery killed a police officer. His murder conviction in Louisiana, for "guilty without capital punishment", carried a mandatory life without parole sentence. That is, under Louisiana law, Montgomery could not present mitigating evidence--he was automatically sentenced to life without parole. At the time the crime was committed, Montgomery was 17 years old. Today he is 70 years old, and he's been in prison ever since.

In 2009, decades after Montgomery's sentence, the Supreme Court decided Miller v. Alabama, which rendered mandatory life without parole statutes unconstitutional insofar as they apply to juveniles. The decision was one of several decisions, starting with Roper v. Simmons, which incorporated insights from developmental psychology into criminal justice. We now know that the brain continues developing well into our mid-twenties, and that impulse control, resistance to peer pressure, and the ability to consider long-term goals are not quite there yet for juveniles. So, sentencing them to a lengthy period of time, without option to reconsider, now seems unjust in light of what we know of their cognitive capabilities.

But what about people who were sentenced to automatic life without parole before Miller v. Alabama? Thousands of these folks, who were teenagers when they were sentenced, are now middle-aged or even elderly (certainly by prison standards.) Many of them have spent most of their life in jail. Should their sentences be reconsidered? In other words, does Miller apply retroactively? This morning, the Supreme Court ruled that it does--and that states who used to apply these schemes to juveniles should now award them remedial parole hearings to reconsider their possible release.

The technical question at the heart of Montgomery has to do with the retroactivity rules. Imagine a situation in which a criminal justice rule is changed in a way that could benefit defendants.

Under constitutional doctrine in a case called Teague v. Lane, defendant no. 1, whose case hasn't even started yet, will of course benefit from the new rule, which applies prospectively. Defendant no. 2's case is still alive--that is, it's undergoing an appellate process or the time to appeal hasn't run out yet--and because the case is not "final" yet, she will also benefit from the rule change. But Defendant no. 3, whose case has already become final--which is to say, she exhausted her direct appeals, or the time to appeal has run out--will not be able to benefit from the rule change. There are two exceptions to this doctrine: the new rule will apply retroactively if it is either a "substantive rule of Constitutional Law", which includes "rules forbidding criminal punishment of certain primary conduct," as well as "rules prohibiting a certain category of punishment for a class of defendants because of their status or offense" or a "watershed rule of criminal procedure", which is to say, a very momentous change (most rules are not that important; when SCOTUS thinks of such a rule, they think about things like the right to counsel and somesuch.)

According to the today's ruling, Teague v. Lane applies not only to federal defendants on habeas, but also to defendants like Montgomery, who have been using their state's collateral proceedings. Or, as Justice Kennedy stated for the majority,

The Court now holds that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. Teague's conclusion establishing the retroactivity of new substantive rules is best understood as resting upon constitutional premises. That constitutional command is, like all federal law, binding on state courts.
The rule in Miller is, according to the majority, a "substantive rule of Constitutional Law", as it doesn't merely address process--it addresses the question whether a certain category of punishment (in this case, mandatory life without parole) is applicable to a certain category of people (in this case, juveniles.) It stems from the string of cases that recognized that children are different from adults in their "diminished culpability and greater prospects for reform." These differences mean that imposing automatic LWOP on children "poses too great a risk of disproportionate punishment." While the decision has a procedural component--the need to hold a hearing before imposing LWOP on juveniles--it is, in essence, a substantive statements that juveniles should simply not be subject to that category of punishment. The Court is not concerned about the extent to which this hinders finality--in this case, the state really can no longer exercise its punitive power by sending juveniles to prison for the rest of their lives without discretion, and once there is a social agreement there, finality arguments really do not apply.

The Court also gives states that used to have mandatory LWOP schemes for juveniles a corrective path: they should award people who are currently serving time under these schemes for crimes committed when they were juveniles an appropriate opportunity to be heard and to provide evidence for their rehabilitation, in which their young age at the time they committed the crime (and all we know about the implications of age to development) shall be taken into account.

Justices Scalia, Alito, and Thomas dissented, on the grounds that the Court had no jurisdiction to decide the case and that its classification of the Miller rule as a substantive rule was overbroad beyond the original intent in Teague.Hadar Aviramhttp://email@example.com:blogger.com,1999:blog-8107037609455779557.post-91322522728228950402015-12-16T08:34:00.001-08:002015-12-16T08:34:46.729-08:00No New Jail in San Francisco... Now What?The long-standing debate about the construction of an alternative to San Francisco's Jail no. 4 at 850 Bryant ended yesterday with a victory for the jail opponents. The supervisors declined to allocate funding to the new building. The advocates who fought against the new jail tooth and nail took to social media to proclaim their victory.

Unfortunately, the alternative--keeping the situation as it is--does not strike me as something to feel particularly victorious about. As I told the Chronicle the day before the vote, the outcome is dismal either way.

The anti-jail advocates are right in saying that we have been housing people that should not have been incarcerated in the first place, and that the high percentage of people with mental illness in the jail suggests that what we need is a mental institution, not a correctional one. They are also right in fearing the construction of a building with more capacity, because our collective experience with incarceration is that new beds tend to fill with new inmates.

I'm sympathetic to these arguments, but they are also somewhat short-sighted. An increase in incarceration is not the only evil under the sun. Unsound, unhealthy incarceration conditions are very problematic as well. Since the existing jail is seismically unsound and dilapidated, the result of the anti-jail victory is basically a temporary return to the status quo, which is dangerous and undesirable. And in the long run, if Jail no. 4 ceases to be operative and there's no alternative, the concern is that other jails will become overcrowded and unhealthy.

This is not the first adverse incentive of the move to close down prisons. When prison budgets are cut without an equivalent reduction in prison populations, what you get is less prisons and more overcrowding in existing, inadequate facilities.

So, what's to be done? The only way out of this maze of bad alternatives is to do the hard work of an empirical survey. Let's analyze the San Francisco jail population. How many people are there because of a sick money bail system who could otherwise be out on O.R.? How many people should be receiving medical treatment that they can better get in a medical facility? How many people are doing long, realignment-type time in an institution unsuited for a lengthy stay? A budget cut on its own does not lead to a cut in incarceration. It's time, indeed, to move to another system of rationing punishment: return on investment.

Fueling the mental health system and reforming the money bail system (hopefully by legislating the bail bonds industry out of existence) costs money. Possibly a lot of it. But it has to be properly budgeted and invested. Just saying "no" without providing, and budgeting for, a viable alternative, may be touted as a victory, but it leaves San Francisco jail inmates in the lurch.

Hadar Aviramhttp://email@example.com:blogger.com,1999:blog-8107037609455779557.post-7615862006989132632015-12-05T13:12:00.000-08:002015-12-05T13:12:13.791-08:00Reiter on Solitary ConfinementKeramet Reiter of UC Irvine has recently done a Q&A with the Berkeley Human Rights Center on solitary confinement, her topic of expertise and focus of her forthcoming book.

Will the recent court settlement in California lead to any significant change in regard to solitary confinement practices?
Two big challenges with isolation in particular are that it's been a very secretive process and there has been significant discretion over what circumstances and for how long people are sent to isolation….Now, under the recent settlement, you have to do something wrong instead of just being labeled a gang member and isolation terms are capped at five years. So that's an improvement. But you still don't have a right to a lawyer at the administrative hearing in which people decide whether you've done something wrong or not. The prison staff have a lot of control over what counts as a rule violation and who they charge with violations. Five years is a long time, and you're under really intense scrutiny when you're in isolation, and it's easy to break more rules because of that.

Read the whole thing here.

Hadar Aviramhttp://firstname.lastname@example.com:blogger.com,1999:blog-8107037609455779557.post-21933533923891476522015-11-28T21:44:00.002-08:002015-11-28T21:44:52.253-08:00Podcast Review: Serial

On the last episode of the acclaimed podcast Serial, Sarah Koenig speaks to a retired police detective and asks him whether any murder case would raise the difficult questions raised by the case she focuses on. The detective replies that most cases are straightforward and few would present so many difficulties.

But is that true? It's hard to tell. After all, in his book In Doubt, Dan Simon provides a conservative estimate of the percentage of wrongful convictions: about 4-5% of all convictions. Rabia Chaudry, a family friend of Adnan Syed, thinks that his conviction for the 1999 murder of his high-school girlfriend, Hae Min Lee, is one of those. She enlists Sarah Koenig and the team to investigate, and they spend hours upon hours reinterviewing witnesses, digging up forensic evidence, and recreating the crime.

Indeed, Serial, and the subsequent show by Syed supporters Undisclosed, have raised considerable public interest in Syed's case, which had only provoked some local interest at the time. And the latest news are that Syed has been granted a hearing to present new evidence. Which leaves me wondering the same thing that Koenig asked the detective: how many other cases, murder or otherwise, would merit a rehearing if they received the benefit of hours of careful, NPR-quality attention?

In his famous 1965 essay Normal Crimes, David Sudnow shows how defense attorneys manage to dispose of cases in negotiation with prosecutors. Their professional expertise allows them to fit each case to an existing prototype of cases, thus facilitating the attachment of a "price list" to each case. This means that the cases don't really receive individual attention, leaving the bulk of professional time and attention for the few "abnormal" cases that go to trial. Whenever we hear about a dramatic exoneration, what we envision is someone who had been aggressively litigating and protesting for years, and who had been railroaded by the police and prosecution.

The interesting thing about Serial is that it doesn't try to tell one of those stories. I wouldn't go as far as to call it a "normal crime", but the show drags into the limelight what would appear to be fairly run-of-the-mill in terms of criminal trials. It is not a defense-oriented, the-government-is-the-worst-criminal sort of narrative that we're used to hearing in cases of serious miscarriage of justice, such as the West Memphis Three and so many others. No one is particularly at their best, but no one seems to be at their absolute worst, either. Yes, there's some racism; there's some unexplained defense behavior (this is important, because habeas review is almost impossible without proof of ineffective assistance of counsel); but none of it rises to the level of shock we've been used to experience when reading Innocence Project stories.

To me, that's the strength of Serial: showing the banality of a situation in which the factual disposition remains unclear. And it does so through Koenig's persona, who remains agnostic about the facts. In a way, Koenig is a stand-in for a diligent juror; she repeatedly refers to procedural and technical details as "boring", and classifies the evidence into "bad for Adnan" and "good for Adnan". Her congenial, soft manner never pushes the witnesses to the point of big revelations (to the extent that those are even possible, fifteen years after the crime.) When she says, at the end of the series, that she feels like shaking up the witnesses "like an aggravated cop", you almost wish she had done that in the previous eleven episodes.

And yet, it is precisely this softness and indecisiveness that lends the show its charm and magic. I haven't yet listened to Undisclosed, and I'm hesitant to do so, because Koenig's agnosticism makes me feel more respected and active than an enraged partisan party trying to enlist me to Syed's defense. Which brings me to another thought: what Koenig is trying to accomplish resembles the role of the inquisitor judge in a civil law country: impartial, out there to find out What Happened. The adversarial system calls for partisanship under the assumption that the competition between the parties will yield the best evidence. But the resulting games of obfuscation result in anything but, and Koenig's interviews with the jurors reveal just how much they were manipulated by the parties throughout the trial--regardless of whether they reached the factually correct answer.

I don't know what will happen to Syed now that his case has been picked up. But I wish that many more seemingly simple, run-of-the-mill cases received this careful attention--if not from investigative journalists then from more active jurors and with less partisan manipulation.Hadar Aviramhttp://firstname.lastname@example.com:blogger.com,1999:blog-8107037609455779557.post-65854683358629442942015-11-22T21:29:00.000-08:002015-11-22T21:38:53.230-08:00Film Review: Ant-Man

I'm on my way back home from the American Society ofCriminology annual meeting in Washington, DC, where I learned lots of interesting things. Such as, for example, that prison closures seem to haveresulted in only a 20,000 net bed loss for states, and that while statesreduced capacity for low-level offenders, some of them increased it forhigh-level offenders. Or, that there is a theme park in Missouri in whichvisitors can ride through a flooded mine and shoot chain-gang inmates withlaser guns to prevent them from escaping a natural disaster.

Future posts will definitely feature some of these interesting things, but today I want to talk about the movie I saw on the flight to DC: Marvel Comics' Ant-Man. This is not an indie documentary for bleeding-heart progressives who can wax poetic about the prison industrial complex. It's a mainstream movie, featuring CGI animation, superpowers, gloom, doom, and beautiful people, and as such it is remarkable, because it represents what the filmmakers think the mainstream is open to seeing and accepting onscreen. And what it shows them is a skewed and flawed, and yet refreshing, slice of incarceration and reentry in the Bay Area.

Set in San Francisco, the film's hero, Scott Lang, starts his journey in prison—notably, not a generic, imagined institution, but an imagined version of the very real San Quentin. And it's a very different cinematic San Quentin than the one in which Oscar Grant spends an important scene in Fruitvale Station; one that resembles Justice Scalia's dark fantasies more than it resembles the actual prison we know. Scott's first scene in Ant-Man sees him engage in a violent fight with another inmate. The many spectators, as well as Scott's adversary, are large, black, muscular men. But then, the tension breaks, and it becomes obvious that Scott is on friendly terms with his adversary; we are told that this is some sort of rite of passage in honor of Scott's impending release. Smiling, Scott says to his fellow inmates, "you have strange rituals."

"You", not "us"; because early on it is fairly clear that Scott is a special sort of inmate, one for which filmgoers will feel sympathy: he is a conventionally good-looking white man, armed with graduate education (a master's degree in electric engineering), and his criminal history is that of a high-level hack for the morally allowable purpose of redistributing wealth. In short, Scott is a non-non-non if there ever was one, and we all root for him as he is released—be it because he terms out or because of Realignment.

But even with this relatively privileged starting point, Scott finds it difficult to cope outside. We see him shack up with friends, all of whom are formally incarcerated, and expressing hope of finding a suitable job soon. But his hopes are shattered: he manages to obtain an entry-level job at Baskin Robbins, where he is summarily fired by an unfeeling boss. Not for smart-mouthing a client (which he does, and which would be unthinkable to, say, an uneducated man of color competing for unskilled labor positions); for having a criminal history. Ban the Box, apparently, only gets one through the door; it doesn't keep him there. And this is a crisis for Scott, who has to provide for, and win back the right to visit, his young daughter. His ex-wife is engaged to a cop, and both of them think of Scott as the deadbeat dad he is. We, however, know better; we're rooting for Scott, and that's partly because we haven't been exposed to his ex-wife's travails through his trial and incarceration. But we also learn a lesson: when someone is saddled with a criminal record and a history of incarceration, all the whiteness and the education in the world won't help. It almost goes without saying that this message is deeply flawed. Race, class, and education make a big difference in reentry—as does another thing Scott has going for him, a supportive family. But it drives home the heavy penalty of incarceration and a criminal history with regard to someone with whom some middle-class moviegoers might identify.

It is this economic desperation, rather than a personality flaw, that leads Scott back into crime with his housemates—all of whom, except for him, are either men of color or immigrants with heavy accents. The film plays fast and loose with stereotypes, which is par for the course for sidekicks in a comic book. They are capable men, but they are capable in limited ways, and only as assistants to Scott, whose competence and ability are played up in the sophisticated heist they plan. The film occasionally takes pleasure in breaking these stereotypes; Luis's unfocused chatter and confused narratives include references to his visits to a museum and enjoyment of Mark Rothko oils. But even when doing so, the Bay Area scenes that fly before our eyes as Luis describes the potential heist place him squarely within the imagined East Bay working class colorful subculture of dive bars, bikers, chicks and shady contacts. Luis has the info and the contacts, but he is not the brain of the operation.

The scenes depicting the heist planning elevate Scott and his accomplices to the coveted status of garage startup techies, and it is this subtle analogy that portrays them at their most competent and heroic. This nod to Silicon Valley reminded me of The Last Mile and other programs encouraging the involvement of folks of low income and education in the tech world upon their release. The film makes it clear, though, that reentry is not kind to any of our heroes, and if they are to make their way in the world, they must do so themselves. And so, their entrepreneurship is modeled after the "innovate first, ask questions later" model of South Bay, and sold as admirable and competent.

As viewers of the film know, the heist goes awry, and a chain of events is set in motion that sets Scott up to becoming "ant man": a superhero capable of shrinking to the size of an ant. The adventure, villains, goals, and betrayals, are fairly predictable for the genre. What is less predictable, and surprisingly touching, is the ant metaphor, and how it connects to the incarceration and reentry theme from the movie.

Ants are eusocial insects. They are indistinguishable from each other. The inventor who employs Scott refers to them by numbers, not by names. When Scott complains, the inventor explains, "they are just numbers; do you have any idea how many ants they are?" We treat ants, apparently, the way we treat people in total institutions; we see them as a population, not as individuals deserving of life, health, and happiness. But Scott, reduced to the size of an ant, sees them as individuals, and names one of them Anthony. He learns from the inventor's daughter how to control the ants with his mind by becoming part of the eusocial structure. Thus, the ants' impersonality and collective organization is their great advantage. When one is struck down, ten rise in its stead (in fact, Anthony is struck in one of the final raids; Scott regrets it, but hops over and rides another ant in its stead). And together, because of their commitment to the collective wellbeing of the community, they are invincible.

It is notable that the penultimate scene in the movie marshals some of the laughable stereotypes for the beginning to marshal the ant metaphor of community and apply it to the formerly incarcerated. Luis tells a convoluted story yet again; but the bottom line of the story is that an indirect contact wants Scott to join the Avengers: "We need a guy that shrinks". It is through this informal Bay Area network that an opportunity awaits our superhero. Because, like ants, the people who exit our prisons may look to policymakers, jailers, and employers all the same, and it might be easy to discount them—but when they look out for each other and act collectively, that is the source of their strength.

Hadar Aviramhttp://firstname.lastname@example.com:blogger.com,1999:blog-8107037609455779557.post-62774820927672497292015-11-04T06:47:00.001-08:002015-11-04T07:20:55.397-08:00Facts, Values, and Cameras: Police Use of Lethal ForceThe Oakland police is being sued for the killing of Demouria Hogg. The Huffington Post reports:

Oakland firefighters found an unresponsive man in the driver's seat of a BMW parked near a highway off-ramp one morning in June. They called the police department, saying a handgun was on the passenger's seat.

Police tried for an hour to rouse Demouria Hogg, 30, by using loudspeakers and firing beanbag rounds at the car. Hogg didn't budge, police said. Hogg finally stirred when police shattered a passenger-side window with a metal pipe. It would be the last movement of his life.

One officer used a Taser on Hogg while another fatally shot him.

It's unclear what happened when Hogg awoke. Police said "a confrontation occurred." An attorney representing the officer who fired the fatal shot said Hogg reached for the handgun.

This is an interesting case. What with the intense politicization of police use of force and partisan heated proclamations of value over fact, we tend to forget the standard in Tennessee v. Garner, and the fact that it's an objective one: force is justified when a reasonable officer would have probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. The fact that the suspect had a gun nearby (rather than, as in so many cases, an innocent item that officers claim appeared to be a gun) does not automatically exonerate the officers, but with the suspect dead, there's little to contradict their version that he reached for it. The strange part: the suspect was apparently sound asleep in the car for a long time before the police shot him.

But the fact that the officers, like all Oakland police officers, had lapel cameras that captured the event, makes things even more interesting. Note this bit:

"The video absolutely supports the officers," said attorney Stephen Betz, who represents the female cop who shot Hogg, whose name hasn't been released. "But if you're suspicious of the police, the video that I saw doesn't necessarily show what happened inside the car."

Betz has hit on an inconvenient truth for those who support openness, disclosures, and social media activism: Cameras do not show "the truth". Footage of cameras is often grainy and confusing, especially if people are running or moving quickly. Moreover, to a disturbing degree, cameras show what we want to see.

In 2007, the Supreme Court decided a case called Scott v. Harris. Harris sued police officers for a car chase that ended in an accident (the police basically ran Harris off the road and he became paraplegic.) The jury awarded Harris compensation, but the Supreme Court took it back, relying on camera footage. Justice Scalia wrote:

There is, however, an added wrinkle in this case: existence in the record of a videotape capturing the events in question. . . The videotape tells quite a different story [than Harris's version]. There we see respondent's vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit.6 We see it run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up. Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury. Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him.

But is it? Dan Kahan, Dave Hoffman, and Donald Braman decided to find out. They asked hundreds of respondents to view the following video and answer a series of questions:

Kahan et al. found considerable variation in the respondents' assessment of the danger Harris posed and on the appropriateness of police conduct here. More disturbingly, they found that these assessments strongly correlated with people's political values.[1]

I haven't seen the tape that depicts Hogg's killing, but I don't know that a tape alone can condemn or exonerate anyone. This is, perhaps, why the Oakland police is trying different strategies with the footage: a few months ago, they showed tapes to the media, then to the public. The plethora of responses they are getting proves Kahan et al.'s point: the camera is not an undisputed arbiter of the justification of police action, and what it shows can be interpreted in dramatically different ways. On the other hand, not releasing the footage gives rise to serious concerns that the police has something to hide; moreover, there are instances in which the police officer's version of the events clearly contradicts the footage, such as in the killing of Samuel DuBose.

So, what is the police to do? It seems like the camera technology's availability has preceded any law or policy on such matters. This coming Friday, the Hastings Race and Poverty Law Journal is hosting a one-day symposium on policing, in which we will have a panel on body cameras including the Oakland Chief of Police. I very much look forward to hearing from him, and from two public defenders who have confronted issues involving lapel cameras, about the proper policies to handle such incidents and the evidentiary value of the cameras--in a way that respects people's diverse values, but does not tout them over the important inquiry about the facts.

[1] by the way: almost every year I replicate this study with my Criminal Concentration students, except I add a question to the demographic part: I ask them whether they want to be prosecutors or defense attorneys. The answers are independent of people's political perspectives--most, albeit not all, my students are liberal, vote Democratic, and self-identify as progressive--and, unsurprisingly perhaps, people's assessment of the video, including of facts such as Harris's speed, wildly diverges based on their future career choice.Hadar Aviramhttp://email@example.com:blogger.com,1999:blog-8107037609455779557.post-41375550286661553472015-11-03T08:40:00.003-08:002015-11-03T08:40:50.705-08:00New Issue of Social Justice: Beyond Incarceration

The journal Social Justice has a new issue out, titled Beyond Mass Incarceration: Crisis and Critique in North American Penal Systems. The issue examines the latest developments in incarceration rhetoric and policy and promises to be a very engrossing read. Among the highlights are an article by Marie Gottschalk, who expresses pessimism about the two strands of prison reform--racial justice and bipartisan initiatives. There are also reviews of Jonathan Simon's Mass Incarceration on Trial and of Cheap on Crime. The issue sells for $13.45, which seems like a pretty worthwhile investment in such interesting content.Hadar Aviramhttp://email@example.com:blogger.com,1999:blog-8107037609455779557.post-60711944188669597952015-10-20T14:29:00.003-07:002015-10-20T14:31:14.903-07:00Film Review: The Black Panthers: Vanguard of the Revolution

The new documentary The Black Panthers: Vanguard of the Revolution opens with the renown story of the blind men touching an elephant, and the rest of the movie shows the party, like the proverbial elephant, to be as multifaceted and enigmatic as the people involved in it.

Narrated by many members of the Black Panther party, historians, police officers, FBI agents, and informants, the movie offers a kaleidoscope of perspectives on the history of the party since its inception, through Huey Newton's incarceration, Eldridge Cleaver's escape to Algeria, the infiltrations and struggles, the social programming, the collaboration with other social movements, the internal strife, and the last days. It is a mesmerizing, mature, and complex portrayal of a movement that embraced both revolution and reform; gender progress and traditional gender roles; inclusivity and exclusivity.

While the best part of all is the focus on individual narratives, the historical footage, mostly of Oakland in the 1960s, is stunning and extensive. The Panthers light up the screen with their distinctive appearance--the afros, the jackets, the berets, the weapons--and with their powerful display of black freedom and independence. The movie ingeniously moves from images of prominent Party members to interviews with the same members, many years later, in which they offer mature, reflective commentary about the explosive events. Many Panthers have remained on the public scene as activists; we recently covered Elaine Brown's reentry farm project. Their honesty in describing their experiences in the movement--being watched by the police, conflicted about the aims of the movement, and, for the women--pushed out by Huey Newton's later years, in which he was erratic and abusive--make the movie an unforgettable experience.

The film provoked me to think about two angles. The first is the prominence of the criminal process, and especially police-citizen interactions, with both the formation and the eventual destruction of the movement. One of the main points in the Black Panther platform was the fight against police brutality--and it is that very brutality that is evinced in police reactions to the party, starting with J. Edgar Hoover's institutional plan to "neutralize" the party and prevent a "messiah" from rising (via, as is convincingly argued, the assassination of Fred Hampton. Moreover, the intense and oppressive use of the criminal process against the Panthers, especially the "New York 21" trials, makes the point the Panthers themselves wished to make. In one of the trials covered in the documentary, Bobby Seale (later to unsuccessfully run for Mayor of Oakland) is gagged and bound at his own trial, making the comparison between the old and new Jim Crow painfully evident.

The second angle is the provision of much-needed historical context for the current Black Lives Matter protest movement. First, it is always useful to inform young joiners of the protest that the problems between police and communities of color are not new and run deep. And second, I think the current movement would do well to learn from the Panthers' willingness to reach a hand to other social movements and find common themes in different struggles for justice. It is possible to have a strong voice stemming from one's identity AND to involve allies and partners beyond merely asking them to "shut up" or "check their privilege". It is possible to highlight distinctive experiences AND appeal to a common ember of the human experience and to empathy. Sadly, the Panthers, like other social movements, were not immune to the left's destructive tendency to eat its own. While their internal struggles, such as the strife between Newton and Cleaver, were initially exploited by the FBI, toward the end, all the FBI needed was to watch from the sidelines as the movement destroyed itself.Hadar Aviramhttp://firstname.lastname@example.com:blogger.com,1999:blog-8107037609455779557.post-77804397346568411782015-10-04T20:51:00.002-07:002015-10-04T20:51:34.753-07:00Marijuana Legalization Proposition Filed Today!Today, The Coalition for Cannabis Policy Reform filed a proposition to legalize and tax marijuana in California. All the information on the propsition is on their website, Reform CA. The full text of the initiative is here.

The new law would make the following behaviors legal:

(a) To personally possess, process, share, or transport not more than one ounce of cannabis or cannabis products, solely for personal use, and not for sale.

(b) To consume cannabis or cannabis products that are obtained and possessed in compliance with this Act when such consumption occurs at a private residence or such other location as permitted under this Act. Nothing in this section shall alter current law regarding the rights of a property owner or landlord to regulate or prohibit smoking on their property.

(c) To cultivate homegrown cannabis in an area not to exceed one hundred (100) square feet; to possess the living and harvested plants and results of any lawfully harvested homegrown cannabis pursuant to this Article; and to transport homegrown cannabis between a lawful cultivation site and the cultivator's residence.

The new law also eliminates the penumbral legal implications of marijuana:

26012. (a) No person shall be prosecuted for child endangerment pursuant to Section 273(a) of the Penal Code, or any similar or successor statutes, for an action taken that is in compliance with the provisions of this Act, unless it is determined that there exists an immediate and actual threat to the health and welfare of a child.

(b) Notwithstanding any other provision of law, an action taken that is in compliance with the provisions of this Act, by itself, shall not be sufficient evidence of parental unfitness, or child abuse, or otherwise be used to restrict or abridge custodial or parental rights to minor children, and shall not be the basis of a criminal act nor the basis to diminish parental rights or remove a child from his or her home, unless it is determined that there exists an immediate and actual threat to the health and welfare of a child.

The law also sets up an office that will steer policy, manage interstate issues, and determine impairment standards, among other things, and a fund for the tax revenue (5% plants, 10% edibles). The money will go toward environmental restoration of damages resulting from cannabis industry.

Still defined as a criminal offense are supplying to a minor and involving people under 21 in cultivation enterprises; and there are still duties imposed on public employees to be sober during the performance of their duties.Hadar Aviramhttp://email@example.com