In a debate on KQED's California Report about Proposition 34, LA DA Steve Cooley told a statewide listening audience that only "cop killers, baby killers, and serial killers" get sent to death row from LA County. Really? That sounds false to me. There are well over 700 people on death row and a clear minority of them meet that description, in fact, very few are. From LA? In 2009, LA County produced more death sentences then the state of Texas, were there really that many baby killers, cop killers, and serial killers convicted in that year? I'm in the middle of my teaching week (yes this really is like a job) and don't have time to run this down, but some one reading this, student, reporter, active citizen, nail this down because I don't think its fit for a District Attorney to lie on an important issue of public policy on the radio to the citizens of this state.
Why does Steve Cooley really want the death penalty? In part, I would guess, because the death penalty is a large weapon in plea bargaining that can force many murder defendants with a credible issue, to plead guilty to a non-capital murder and disappear for life (perhaps for a crime they did not commit). In Governing through Crime I offered a more political view. Prosecutors became vengeance-seekers-in-chief during the era of mass incarceration and used that stature to get elected statewide. The death penalty debate fuels the vengeance end of the crime policy debate (distorting the entire criminal justice system) but providing great fuel for prosecutors to rise to power. Steve Cooley lost narrowly for AG in 2010 to the current incumbent, a very quiet opponent of the death penalty. One suspects he would rather be talking about the death penalty in next statewide election too. Proposition 34 would end that death debate and move Californians on the the serious work of reframing our overheated underperforming penal system.
Thursday, October 11, 2012
Monday, October 1, 2012
No Governor Brown, Thank God we Have Federal Courts
The most amazing quote in Marisa Lagos' front page story on realignment in this morning's SF Chron (read the story here) comes from Governor Brown:
The statement is so wrong on every level that it must be deconstructed and addressed point by point, but this is college, so first a pop quiz
The court was forced to set a population cap because the state continued to pack minor offenders and parole violators into prisons where a prisoner a week was dying of unmet medical needs. In their zeal to sell us our own fear, California's politicians presided over a system of industrial scale torture in which inmates suffering severe mental illness were left untreated in the horrifying conditions of overcrowding and insecurity, and in which prisoners suffering manifest symptoms of heart attacks, and cancerous invasions of their organs without treatment or even sympathy for their suffering.
As Justice Kennedy wrote in Brown v. Plata, the case that will carry Governor Brown's name into history along with governors like George Wallace and Ross Barnett:
"It's on schedule, and it's in practice in all 58 counties, which are quite diverse," Brown said in a phone interview last week. "I think all in all, we made a solid transition, and thank God for the fact we had the realignment plan - or we would have been forced by judges to let felons out of prison or to build new cells, which we can ill afford.Now I'm generally inclined to give Governor Brown time to redress the prison crisis. When he left office in 1983 the prison population had already begun its disastrous rise, but it was still modest and was driven mostly by county level prosecutors and judges (although his Determinate Sentence Law, adopted for other reasons, had effectively cut off the state's ability to reduce prison population on the other end). To my knowledge he was not a supporter of the many laws passed since, including Thee Strikes, that helped supersize California's prison population beyond any rational or humane limits. Although he appealed the Plata case to the Supreme Court as California's Attorney General, that is the usual routine for AGs and it takes an exceptional act of courage to do something different. But the contempt for the courts in Governor Brown's statement at a time when only because of the courts are we beginning to remedy a human rights disaster that has blighted our state for over a decade is appalling, beneath him, must be called out.
The statement is so wrong on every level that it must be deconstructed and addressed point by point, but this is college, so first a pop quiz
- Question. When did every governor start sounding like Ross Barnett of Mississippi?
- Answer. When the war on crime made it patriotic to trash courts for defending the human rights of people in prison.
"thank God for the fact that we had the realignment plan"At least now we know where it came from and when we can expect it to be revealed (at the end of time?). In fact, most of the ideas in the plan come from (or are mysteriously similar to) the proposals presented to the three-judge court in Plata which had been developed for the court by the state's best criminologists, people generally ignored by the state's political leadership.
"or we would have been forced by judges to let felons out of prison or to build new cells"The court ordered not a single prisoner to be released. They gave the state two years to reduce its population crisis from a steady state of over 200% of capacity to 137% of capacity and then outlined numerous ways the state could do that. As the court documented many of these prison sentences were actually reducing public safety.
The court was forced to set a population cap because the state continued to pack minor offenders and parole violators into prisons where a prisoner a week was dying of unmet medical needs. In their zeal to sell us our own fear, California's politicians presided over a system of industrial scale torture in which inmates suffering severe mental illness were left untreated in the horrifying conditions of overcrowding and insecurity, and in which prisoners suffering manifest symptoms of heart attacks, and cancerous invasions of their organs without treatment or even sympathy for their suffering.
let felons out of prisonFelon is a euphemism for denying the humanity of a human being. In a state which has lost touch with the humanity of its prisoners on a such a vast scale it is appalling for the chief executive still responsible for returning our prisons to some semblance of constitutional order to use that euphemism. Prisons are not containment zones for zombies. They are legal institutions for the punishment and rehabilitation of human beings. Our state has proven itself incapable of operating such legal places. Our leaders should be holding the officials responsible accountable, not swaggering and criticizing our courts.
As Justice Kennedy wrote in Brown v. Plata, the case that will carry Governor Brown's name into history along with governors like George Wallace and Ross Barnett:
A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.I say, thank God for the "concept of human dignity," and thank our federal courts for enforcing it in this sorry state.
Tuesday, September 25, 2012
You Should Know: Why Death Row Inmates Oppose LWOP
Reporting on the font page of today's SFChron Bob Egelko finally says what many of us who visit San Quentin prison have known for months, most of California's death row inmates oppose Proposition 34; the voter initiative on this November's ballot that would abolish capital punishment and replace it with Life With Out Parole (LWOP) even retroactively. (read the story here). Yes that's right, prisoners who face a lethal injection unless a court overturns their death sentence or conviction are opposed to a law that would immediately accomplish what many of them have been litigating to achieve for years, the removal of their death sentence.
That is so counter-intuitive to what most people believe about capital punishment that its worth repeating. People on death row, not just folks in an abstract all night dorm room discussion about whether death or LWOP is worst, but folks actually condemned to die, prefer to continue with their death sentence.
The story correctly emphasizes the importance of lawyers in explaining this seeming paradox. Everybody convicted of a serious felony like murder receives a court appointed lawyer to prepare an appeal, generally to the state courts and to the US Supreme Court. But even when those appeals fail, and the vast majority do, death row prisoners get a court appointed lawyer to continue a second line of appeals known as habeas corpus, in both state and eventually federal courts. These appeals are very valuable for two reasons. First, they allow the court to consider many aspects of the underlying case against the defendant, like the police investigation and the prosecution's conduct, that are generally not reviewed on direct appeal. Second, as the Chron story points out:
Voters who support the death penalty should think carefully this November before they vote "NO." If you defeat Proposition 34, you will be continuing to give people convicted of capital murder exactly what they most desperately want - a lawyer that will help them get out of prison.
Less explicitly discussed but quite clear from the above, is how punishing a true LWOP sentence is. The prospect of never being released from prison ever, with not even a low odds hope for an appeal or a parole board decision in your favor, is terribly terribly punishing. In California it is compounded by the fact that prison conditions are extremely poor due to overcrowding and in recent years according to the Supreme Court, the prospect of torture through abysmal or non-existent medical treatment (see Brown v. Plata). Death row inmates in California have a cell to themselves, receive more attentive supervision and visits from their lawyers, not to mention a measure of international celebrity and the scores of pen pals that brings. All of that disappears when your death sentence is vacated (as all of them would be should Prop 34 pass), and you get dumped into the long dark tunnel known as LWOP. In short, just as Cesare Beccaria argued more two hundred years ago in his On Crimes and Punishment, true life is worst than death as a punishment, and thus as a deterrent.
We could make it even more so by actually paroling murderers who have received a non-LWOP life sentence, as the law itself requires, but which California' politicized process has stymied for years. If we began to parole most prisoners convicted of 2nd degree murder after 15 years, and those convicted of 1st degree murder after 25 (as the law requires), those persons sentenced to LWOP would see the reality of the grim fate they have been assigned to.
I personally oppose LWOP as "cruel and unusual punishment." I will vote for Proposition 34 because it will at least take us to a more honest place where we acknowledge what we are actually doing in California. After that we can begin to have a more realistic conversation about what punishment can achieve and how long that takes. We should reform our state courts so that they are not a rubber stamp of sometimes deeply flawed convictions, and we should reform parole so that prisoners who atone and seek to reform themselves in prison face a realistic chance of going home. Sadly only one of those things is on the ballot this November.
That is so counter-intuitive to what most people believe about capital punishment that its worth repeating. People on death row, not just folks in an abstract all night dorm room discussion about whether death or LWOP is worst, but folks actually condemned to die, prefer to continue with their death sentence.
The story correctly emphasizes the importance of lawyers in explaining this seeming paradox. Everybody convicted of a serious felony like murder receives a court appointed lawyer to prepare an appeal, generally to the state courts and to the US Supreme Court. But even when those appeals fail, and the vast majority do, death row prisoners get a court appointed lawyer to continue a second line of appeals known as habeas corpus, in both state and eventually federal courts. These appeals are very valuable for two reasons. First, they allow the court to consider many aspects of the underlying case against the defendant, like the police investigation and the prosecution's conduct, that are generally not reviewed on direct appeal. Second, as the Chron story points out:
For condemned prisoners, it often represents their best chance to stave off execution by presenting their claims to federal judges, who are appointed for life, rather than elected state judges. A ruling that leads to their acquittal, or even a finding of innocence, is also more likely in habeas corpus than in the earlier direct appeal.Many prisoners hold out the hope that their conviction will be overturned and they will be able to go home. Ending their right to court appointed lawyer on habeas would close that door forever to most if not all of them (a handful might find lawyers to voluntarily continue their appeal).
Voters who support the death penalty should think carefully this November before they vote "NO." If you defeat Proposition 34, you will be continuing to give people convicted of capital murder exactly what they most desperately want - a lawyer that will help them get out of prison.
Less explicitly discussed but quite clear from the above, is how punishing a true LWOP sentence is. The prospect of never being released from prison ever, with not even a low odds hope for an appeal or a parole board decision in your favor, is terribly terribly punishing. In California it is compounded by the fact that prison conditions are extremely poor due to overcrowding and in recent years according to the Supreme Court, the prospect of torture through abysmal or non-existent medical treatment (see Brown v. Plata). Death row inmates in California have a cell to themselves, receive more attentive supervision and visits from their lawyers, not to mention a measure of international celebrity and the scores of pen pals that brings. All of that disappears when your death sentence is vacated (as all of them would be should Prop 34 pass), and you get dumped into the long dark tunnel known as LWOP. In short, just as Cesare Beccaria argued more two hundred years ago in his On Crimes and Punishment, true life is worst than death as a punishment, and thus as a deterrent.
We could make it even more so by actually paroling murderers who have received a non-LWOP life sentence, as the law itself requires, but which California' politicized process has stymied for years. If we began to parole most prisoners convicted of 2nd degree murder after 15 years, and those convicted of 1st degree murder after 25 (as the law requires), those persons sentenced to LWOP would see the reality of the grim fate they have been assigned to.
I personally oppose LWOP as "cruel and unusual punishment." I will vote for Proposition 34 because it will at least take us to a more honest place where we acknowledge what we are actually doing in California. After that we can begin to have a more realistic conversation about what punishment can achieve and how long that takes. We should reform our state courts so that they are not a rubber stamp of sometimes deeply flawed convictions, and we should reform parole so that prisoners who atone and seek to reform themselves in prison face a realistic chance of going home. Sadly only one of those things is on the ballot this November.
Saturday, September 1, 2012
State of Confinement: California's Carceral Habit
Scott Simon's amazing interview with George Takai this morning brought tears to my eyes and made me think once again about why this hauntingly beautiful state with its sunny optimism and reputation for creativity and innovation has so often embraced mass incarceration in various forms. Takai, best known to the world as Hikaru Sulu, the fictional pilot of the star-ship Enterprise in the television show Star Trek and the several feature films that followed, was confined along with his family in several concentration camps setup by the United States to intern Japanese-Americans in 1942 (read his wikipedia article here). Talking with Simon, the host of NPR's Saturday Weekend Edition show about the new musical about the Japanese internment Allegiance, Takai related that when he and his family finally left Tule Lake, their second camp, to return to Los Angeles, housing was so expensive they had to live on skid-row near downtown LA. His little sister wanted to go home, home to incarceration. That Takai's family came back to LA and set themselves back to the life of being ambitious hard working Californians (Takai studied at Berkeley (Architecture) and UCLA (Acting)) is amazing and inspiring, and a reminder that children scarred by contemporary mass incarceration can be tomorrow's George Takai's, but why is this state so prone to locking people up?
It is true that the internment of Japanese Americans was a national crime whose stain lies on our whole nation, California had a far deeper responsibility, with all the major champions and the deepest sources of racist populist support for internment based here. While it only lasted a few years, the internment involved over 100,000 people (read the wikipedia article here).
California also was a heavy user of mental hospitals from the late 19th century through the 1950s to warehouse large numbers of people with mental illnesses or disabilities (or sometimes just deviant characters) largely without treatment and with little legal recourse to get out. Most other states had similar institutions, but California did so at a much higher rate, and was far more aggressive in pushing sterilizations along with hospitalization and imprisonment.
Joan Didion reflects on California's habits of confinement in her powerful memoir of the state, Where I Was From (listen to an interesting interview with Didion on the book here), and points to a number of traits that seem to combine in California's political culture to favor regular paroxysms of fear and racially infused demands for exclusion. Prominent among them is the fact that so many of the state's middle class citizens have a vision of themselves as independent entrepreneurs who have belonged to the state for ever, when in fact they are a generation or two away from migrating into California from somewhere else and the state as a whole has depended for generations on massive federal spending projects the last of which was the Reagan era military technology boom.
This propensity to fear and loathe those we perceived coming into "our" state and to demand that a lot of them be locked up preventively is one that has achieved its most powerful and malignant form in contemporary mass incarceration. By using crime, often regardless of how minor, as our "reason" for confining large numbers of mostly brown and black Californians, our great confinement seems superficially more just then the Internment of the Japanese or the hospitalization and coerced sterilization of people with mental illnesses and disabilities, but not if you look much closer. Most important, this propensity to confine seems to have little to do with the specific locus of fear nor the technical-professional apparatus that is ostensibly in control of it, whether it is medical, military, or juridical. Courts should thus refuse to give much if any deference to California's confinement decisions (unfortunately they generally do).
It is true that the internment of Japanese Americans was a national crime whose stain lies on our whole nation, California had a far deeper responsibility, with all the major champions and the deepest sources of racist populist support for internment based here. While it only lasted a few years, the internment involved over 100,000 people (read the wikipedia article here).
California also was a heavy user of mental hospitals from the late 19th century through the 1950s to warehouse large numbers of people with mental illnesses or disabilities (or sometimes just deviant characters) largely without treatment and with little legal recourse to get out. Most other states had similar institutions, but California did so at a much higher rate, and was far more aggressive in pushing sterilizations along with hospitalization and imprisonment.
Joan Didion reflects on California's habits of confinement in her powerful memoir of the state, Where I Was From (listen to an interesting interview with Didion on the book here), and points to a number of traits that seem to combine in California's political culture to favor regular paroxysms of fear and racially infused demands for exclusion. Prominent among them is the fact that so many of the state's middle class citizens have a vision of themselves as independent entrepreneurs who have belonged to the state for ever, when in fact they are a generation or two away from migrating into California from somewhere else and the state as a whole has depended for generations on massive federal spending projects the last of which was the Reagan era military technology boom.
This propensity to fear and loathe those we perceived coming into "our" state and to demand that a lot of them be locked up preventively is one that has achieved its most powerful and malignant form in contemporary mass incarceration. By using crime, often regardless of how minor, as our "reason" for confining large numbers of mostly brown and black Californians, our great confinement seems superficially more just then the Internment of the Japanese or the hospitalization and coerced sterilization of people with mental illnesses and disabilities, but not if you look much closer. Most important, this propensity to confine seems to have little to do with the specific locus of fear nor the technical-professional apparatus that is ostensibly in control of it, whether it is medical, military, or juridical. Courts should thus refuse to give much if any deference to California's confinement decisions (unfortunately they generally do).
Tuesday, August 21, 2012
Correctional Madness: Realigment on the Right Track in LA
The California Report and The Center for Investigative Reporting posted another excellent report on Realignment this morning (broadcast on many NPR stations and available online after a delay here) this one focused on the vital issue of how counties, who get both resources and discretion over post-prison supervision for many California prisoners, are working with former-prisoners who live with mental illness. This is crucial. As the Supreme Court highlighted in Brown v. Plata, California's overcrowded reception center prisons were machines of madness, taking parolees already suffering from lack of adequate treatment in the community, and typically thrown back in prison in response to their deteriorating behavior. Once in prison, an inadequate mental health care system, paralyzed by near 300% capacity population at many reception center, led these prisoners to deteriorate further, in time to be released on parole again in even worst shape.
LA County, which has been struggling with the criminalization of mental illness since the 1970s, appears from the report to be taking a very strong approach with an emphasis on wrap around services, housing (because many of parolees with mental illness end up on the street), and a clear intent to avoid unnecessary incarcerations in response to minor violations. Much of the program is being operated by an NGO specializing in delivering services to people with mental illness, rather than a law enforcement agency focused on punishment and control, and deeply hostile to the idea of mental illness after decades of official anti-medicine in California. Paradoxically this approach seems to actually produce valuable intelligence about real crime and the ability to distinguish between truly emerging threats and simple set backs or relapses (say on drug use), just the kind of intelligence that contemporary corrections and law enforcement has largely lost the capacity to produce over the past 40 years.
This was highlighted in the episode by an interview with an LAPD officer assigned to a special re-entry unit. While one might hope that such a unit would benefit from the kind of individualized thinking emerging from the NGO side of the re-entry enterprise, it was not apparent from the interview. Instead, the officer suggested that many parolees might be hiding out in mental hospitals to avoid arrest for serious crimes. This suggests a basic lack of awareness of mental health hospitalization opportunities in California (it is quite hard even for people with florid symptoms to get hospitalized) as well as a skepticism about the reality of mental illness that unfortunately is pervasive in law enforcement.
As good as the realignment approach in LA with regard to former prisoners with mental illnesses sounds, it begs another question. Why are we letting so many people with mental illness drift into our criminal justice system as our primary way of getting them needed treatment?
LA County, which has been struggling with the criminalization of mental illness since the 1970s, appears from the report to be taking a very strong approach with an emphasis on wrap around services, housing (because many of parolees with mental illness end up on the street), and a clear intent to avoid unnecessary incarcerations in response to minor violations. Much of the program is being operated by an NGO specializing in delivering services to people with mental illness, rather than a law enforcement agency focused on punishment and control, and deeply hostile to the idea of mental illness after decades of official anti-medicine in California. Paradoxically this approach seems to actually produce valuable intelligence about real crime and the ability to distinguish between truly emerging threats and simple set backs or relapses (say on drug use), just the kind of intelligence that contemporary corrections and law enforcement has largely lost the capacity to produce over the past 40 years.
This was highlighted in the episode by an interview with an LAPD officer assigned to a special re-entry unit. While one might hope that such a unit would benefit from the kind of individualized thinking emerging from the NGO side of the re-entry enterprise, it was not apparent from the interview. Instead, the officer suggested that many parolees might be hiding out in mental hospitals to avoid arrest for serious crimes. This suggests a basic lack of awareness of mental health hospitalization opportunities in California (it is quite hard even for people with florid symptoms to get hospitalized) as well as a skepticism about the reality of mental illness that unfortunately is pervasive in law enforcement.
As good as the realignment approach in LA with regard to former prisoners with mental illnesses sounds, it begs another question. Why are we letting so many people with mental illness drift into our criminal justice system as our primary way of getting them needed treatment?
Friday, August 17, 2012
How Long is Long Enough?
It is hard to say whether they are the worst crimes. They are the crimes that horrify the most. A baby-sitter, for no apparent reason, strangles the 15-month old child she has been hired to protect. A professional thief shoots a young police officer in his face, while the victim is on his knees in a farm field pleading for his life. The baby-sitter is only 19, and has lived in abusive foster and adoptive families all her life, but her past troubles do not excuse an unprovoked murder of a helpless person she has been left in trust with. The thief wrongly believed that under the state's "Baby Lindbergh" law he faced the death penalty already for kidnapping the officer (who had interrupted escape from a crime quite by accident), but that understandable failure of deterrence to operate perfectly hardly excuses the crime. Both offenders deserve serious punishment, the most serious available. Assuming the death penalty is off the table, how long should they serve in prison?
The baby-sitter, Betty Smithey, just recently received parole from the state of Arizona, earning the title of the longest serving to be released alive from prison, having been imprisoned for 49 years for the crime she committed in 1963 (read about her parole in the LATimes here). The thief, Gregory Powell, died last week after serving the same length of time, coincidentally also for a crime committed in 1963 (read his obituary in the NYTimes here). Powell's crime became the subject of a famous book and movie (Joseph Wambaugh's The Onion Field), a fact which along with the fierce opposition of the LAPD may have accounted for the fact that he never did receive parole (although his crime partner did in 1983).
No doubt many would say that, at least as compared to the death penalty, or being murdered, fifty years in prison is not unacceptable. I find myself in total disagreement. These sentences are too long, way too long. Am I just incapable of imagining the victims perspective? Do I just intuitively sympathize with the living soul in prison while my imagination departs unjustly from the departed? Perhaps (at least that's my brother's theory), but I have two thoughts to share, one as a penologist (a student of prisons), the other as a criminal law teacher.
What purposes are served by such long sentences? At Betty Smithey's final parole hearing one of the Board members was quoted as saying: "I really see no value in keeping you in prison any longer. I really see no value in keeping strings on you any longer.." But at Gregory Powell's final parole denial (some years ago), or when the state of California denied him even compassionate release so he could die outside a prison, what value would they have cited?
No doubt the Chief of the LAPD would say deterrence in Powell's case. Every potential cop-killer ought to know that if they kill a cop they are going to die in prison, either by lethal injection or old age. Really? That's been pretty much the case for years but I would place my money on Kevlar and better training for having reduced officer deaths over the years. If deterrence works at all in the mental illness, or drug, or fear addled brains of an armed individual coming into shooting range of a police officer (and Powell seems to be one of the few criminals in history who knew about a special law aimed at a particular crime, too bad he remembered it wrong) there is zero evidence that anywhere near fifty years is required to maximize deterrence. There is shockingly little empirical evidence on what lengths of time in prison are necessary to achieve deterrence, but from what we know about the equivalent (but opposite) cognitive function, from research on how much people will pay to protect themselves against large but remote risks, it appears most of us respond far more to likely but relatively minor risks and ignore catastrophic but unlikely ones. My own intuition is that whatever deterrent value there is in a threat to be sent to prison probably maxes out at a credible threat to be locked up for some years, probably less than ten.
Incapacitation is the major rationale behind California's uber long prison sentences. But from everything we know about criminal careers, Smithey and Powell could have been released years earlier than the ages at which they paroled (69), or died (79). Most criminal careers flat line after 40 (one hopes that is less true of other kinds of careers). Neither Smithey or Powell were disciplinary problems during the last decades of their imprisonment.
Many readers will cite retribution, the punishment offenders deserve for the crimes they have committed. Research suggests that retribution corresponds to the moral intuitions of many people about crime and punishment, and that people mostly agree on which crimes deserve more serious punishment than others; but there is no agreement or objective moral basis for determining how long is long enough. Once you abandon the metaphoric relationship between the life taken in a murder, and the life of the offender, which is the appeal of the death penalty and whole life terms, there is no particular reason to choose any term of years (although I think ten has some metaphoric value because of the strong role of decades in our own narratives about life). Nothing like that metaphoric relationship exists for other crimes like robbery, rape, or kidnapping.
This is where penological thought kicks in. My own exposure to long serving prisoners over the years convinces me of two things. First, people change. The men I meet when I speak to classes at San Quentin, describe the men they were when they arrived at prison as profoundly different and I believe them and can see with my own eyes who they are now. Second, it takes time to change but for most people it does not take more then ten years. This makes the decades stacked on after ten or twenty years devoid of any meaningful value. To the prisoner facing them, stretching into the future toward death, this is "cruel and unusual." To the rest of us who will likely pay many times the average per year costs for incarcerating them during their old age (when medical costs cause the overall cost of imprisonment to skyrocket), this is a useless excess.
My own view is that the only reason to hold someone more than ten year is either specific information to believe that they are likely to remain a threat when released (like continued involvement in criminal gangs while in prison) or the need to mark the public condemnation of the crime (as in the case of multiple or mass killings), and even then another decade and a half ought to mark our true maximum (twenty-five years). My views, of course are extreme. Consider that legislation just passed after years of efforts by San Francisco's wonderful Assembly Member Leland Yee, designed to comply with the Supreme Court's mandate in 2010 that some juveniles sentenced to Life Without Parole (LWOP) be resentenced, would establish twenty-five years as the minimum before a prisoner sentenced for such a crime could be released (read about it in the Sacto Bee here). Assembly member Yee's measure barely passed by one vote and it is not clear that Governor Brown will sign it. I hope he does.
The baby-sitter, Betty Smithey, just recently received parole from the state of Arizona, earning the title of the longest serving to be released alive from prison, having been imprisoned for 49 years for the crime she committed in 1963 (read about her parole in the LATimes here). The thief, Gregory Powell, died last week after serving the same length of time, coincidentally also for a crime committed in 1963 (read his obituary in the NYTimes here). Powell's crime became the subject of a famous book and movie (Joseph Wambaugh's The Onion Field), a fact which along with the fierce opposition of the LAPD may have accounted for the fact that he never did receive parole (although his crime partner did in 1983).
No doubt many would say that, at least as compared to the death penalty, or being murdered, fifty years in prison is not unacceptable. I find myself in total disagreement. These sentences are too long, way too long. Am I just incapable of imagining the victims perspective? Do I just intuitively sympathize with the living soul in prison while my imagination departs unjustly from the departed? Perhaps (at least that's my brother's theory), but I have two thoughts to share, one as a penologist (a student of prisons), the other as a criminal law teacher.
What purposes are served by such long sentences? At Betty Smithey's final parole hearing one of the Board members was quoted as saying: "I really see no value in keeping you in prison any longer. I really see no value in keeping strings on you any longer.." But at Gregory Powell's final parole denial (some years ago), or when the state of California denied him even compassionate release so he could die outside a prison, what value would they have cited?
No doubt the Chief of the LAPD would say deterrence in Powell's case. Every potential cop-killer ought to know that if they kill a cop they are going to die in prison, either by lethal injection or old age. Really? That's been pretty much the case for years but I would place my money on Kevlar and better training for having reduced officer deaths over the years. If deterrence works at all in the mental illness, or drug, or fear addled brains of an armed individual coming into shooting range of a police officer (and Powell seems to be one of the few criminals in history who knew about a special law aimed at a particular crime, too bad he remembered it wrong) there is zero evidence that anywhere near fifty years is required to maximize deterrence. There is shockingly little empirical evidence on what lengths of time in prison are necessary to achieve deterrence, but from what we know about the equivalent (but opposite) cognitive function, from research on how much people will pay to protect themselves against large but remote risks, it appears most of us respond far more to likely but relatively minor risks and ignore catastrophic but unlikely ones. My own intuition is that whatever deterrent value there is in a threat to be sent to prison probably maxes out at a credible threat to be locked up for some years, probably less than ten.
Incapacitation is the major rationale behind California's uber long prison sentences. But from everything we know about criminal careers, Smithey and Powell could have been released years earlier than the ages at which they paroled (69), or died (79). Most criminal careers flat line after 40 (one hopes that is less true of other kinds of careers). Neither Smithey or Powell were disciplinary problems during the last decades of their imprisonment.
Many readers will cite retribution, the punishment offenders deserve for the crimes they have committed. Research suggests that retribution corresponds to the moral intuitions of many people about crime and punishment, and that people mostly agree on which crimes deserve more serious punishment than others; but there is no agreement or objective moral basis for determining how long is long enough. Once you abandon the metaphoric relationship between the life taken in a murder, and the life of the offender, which is the appeal of the death penalty and whole life terms, there is no particular reason to choose any term of years (although I think ten has some metaphoric value because of the strong role of decades in our own narratives about life). Nothing like that metaphoric relationship exists for other crimes like robbery, rape, or kidnapping.
This is where penological thought kicks in. My own exposure to long serving prisoners over the years convinces me of two things. First, people change. The men I meet when I speak to classes at San Quentin, describe the men they were when they arrived at prison as profoundly different and I believe them and can see with my own eyes who they are now. Second, it takes time to change but for most people it does not take more then ten years. This makes the decades stacked on after ten or twenty years devoid of any meaningful value. To the prisoner facing them, stretching into the future toward death, this is "cruel and unusual." To the rest of us who will likely pay many times the average per year costs for incarcerating them during their old age (when medical costs cause the overall cost of imprisonment to skyrocket), this is a useless excess.
My own view is that the only reason to hold someone more than ten year is either specific information to believe that they are likely to remain a threat when released (like continued involvement in criminal gangs while in prison) or the need to mark the public condemnation of the crime (as in the case of multiple or mass killings), and even then another decade and a half ought to mark our true maximum (twenty-five years). My views, of course are extreme. Consider that legislation just passed after years of efforts by San Francisco's wonderful Assembly Member Leland Yee, designed to comply with the Supreme Court's mandate in 2010 that some juveniles sentenced to Life Without Parole (LWOP) be resentenced, would establish twenty-five years as the minimum before a prisoner sentenced for such a crime could be released (read about it in the Sacto Bee here). Assembly member Yee's measure barely passed by one vote and it is not clear that Governor Brown will sign it. I hope he does.
Monday, August 6, 2012
Realignment Time: The prison crisis comes home
Norimitsu Onishi takes a sobering look at California's emerging "realigment" policy in this morning's NYTimes (read it here). The state's major response to the humanitarian disaster in its state prisons and the Supreme Court confirmed order to reduce the prison population by approximately 40,000 prisoners, has been to channel many people convicted of less serious felonies or found to have violated their parole from state prison to counties who have the legal authority to incarcerate them in jail or to impose alternative sanctions. Along with this mandate came a stream of state revenue allocated to counties in proportion to their prisoner burden and open ended in terms of what it can be spent on.
Onishi's reporting suggests that counties are breaking in one of two ways in their dominant response; either expanding jails in anticipation of having to permanently incarcerate a far larger population than in the past, or investing in re-entry programs to help released state prisoners avoid future crime and arrests, and enhanced programming to make probation more successful as an alternative to incarceration for felony offenses. The divide is largely between coastal urban counties which are focusing on re-entry and alternatives, and rural counties, especially in the state's sprawling central valley, which is investing in reopening jail space.
The stakes are high, many county jails are already under court order for over crowding which means that incoming prisoners must be balanced with early release for current inmates in jails (although low hanging fruit through better pre-trial release procedures is an obvious partial solution). Others are not under order but are already approaching unconstitutional conditions which are likely to occur with added inmates. Moreover, even new jails are likely create severe human rights problems if used for prolonged incarceration. The great lesson of California's correctional health care crisis is the toxic relationship between incarceration and chronic illnesses (including importantly mental illness). If counties try to reproduce mass incarceration policies at the local level, the results could be even worst (especially in rural counties which are already suffering from high levels of chronic illness and poor medical service).
On the other side, the revitalization of rehabilitation as a legitimate penal objective (as opposed to California's extreme model of total incapacitation) is being pressed into early service by realignment and may find itself unfairly discredited and de-legitimized. The urban counties taking the biggest strides in experimenting with alternatives are also those most vulnerable to upward swings in violent crimes (homicides, aggravated assaults, armed robberies) that have historically altered not only the view people in that county, but in the whole state.
The best thing about re-alignment is that it will (and is) incentivizing a serious stake-holder conversation at the county level, one which sounds likely to be more purple than red or blue (to channel our President here). I have faith that this local conversation will be less toxic than the state level one we have had for forty years. However, we cannot afford to let the state actors off the hook just yet. Not only must the federal courts keep the focus (and the ultimate legal responsibility) on the state of California, citizens must both get involved at the county level and begin to demand accountability (as well as money) from the state. Counties and citizens alike have a stake in making sure that the policies which led to industrial scale torture through deliberate indifference to medical and mental health in California's prisons and to a deeply entrenched racist prison gang system which continues to menace communities throughout the state, are fully aired. Don't let state leaders get away with leaving the blame for both the ongoing crisis and the next crime wave on county sheriffs and re-entry workers.
How to stop them? I believe there are two steps necessary to prevent a recurrence of the present disaster. First, create a truth and reconciliation commission to study the causes and consequences of mass incarceration in California. Second, create a California Commission for the Prevention of Torture, or Inhuman and Degrading Treatment or Punishment, modeled after the Council of Europe's Committee for the Prevention of Torture, or Inhuman and Degrading Treatment or Punishment and the UN Committee against Torture with the power to enter and inspect any prison, jail, or re-entry facility (as well as any other state funded place of detention) in the state of California, at any time, day or night, without prior notice, and with authority to report to the Governor and the legislature on the proximity of current conditions to torture, or inhuman and degrading treatment.
Onishi's reporting suggests that counties are breaking in one of two ways in their dominant response; either expanding jails in anticipation of having to permanently incarcerate a far larger population than in the past, or investing in re-entry programs to help released state prisoners avoid future crime and arrests, and enhanced programming to make probation more successful as an alternative to incarceration for felony offenses. The divide is largely between coastal urban counties which are focusing on re-entry and alternatives, and rural counties, especially in the state's sprawling central valley, which is investing in reopening jail space.
The stakes are high, many county jails are already under court order for over crowding which means that incoming prisoners must be balanced with early release for current inmates in jails (although low hanging fruit through better pre-trial release procedures is an obvious partial solution). Others are not under order but are already approaching unconstitutional conditions which are likely to occur with added inmates. Moreover, even new jails are likely create severe human rights problems if used for prolonged incarceration. The great lesson of California's correctional health care crisis is the toxic relationship between incarceration and chronic illnesses (including importantly mental illness). If counties try to reproduce mass incarceration policies at the local level, the results could be even worst (especially in rural counties which are already suffering from high levels of chronic illness and poor medical service).
On the other side, the revitalization of rehabilitation as a legitimate penal objective (as opposed to California's extreme model of total incapacitation) is being pressed into early service by realignment and may find itself unfairly discredited and de-legitimized. The urban counties taking the biggest strides in experimenting with alternatives are also those most vulnerable to upward swings in violent crimes (homicides, aggravated assaults, armed robberies) that have historically altered not only the view people in that county, but in the whole state.
The best thing about re-alignment is that it will (and is) incentivizing a serious stake-holder conversation at the county level, one which sounds likely to be more purple than red or blue (to channel our President here). I have faith that this local conversation will be less toxic than the state level one we have had for forty years. However, we cannot afford to let the state actors off the hook just yet. Not only must the federal courts keep the focus (and the ultimate legal responsibility) on the state of California, citizens must both get involved at the county level and begin to demand accountability (as well as money) from the state. Counties and citizens alike have a stake in making sure that the policies which led to industrial scale torture through deliberate indifference to medical and mental health in California's prisons and to a deeply entrenched racist prison gang system which continues to menace communities throughout the state, are fully aired. Don't let state leaders get away with leaving the blame for both the ongoing crisis and the next crime wave on county sheriffs and re-entry workers.
How to stop them? I believe there are two steps necessary to prevent a recurrence of the present disaster. First, create a truth and reconciliation commission to study the causes and consequences of mass incarceration in California. Second, create a California Commission for the Prevention of Torture, or Inhuman and Degrading Treatment or Punishment, modeled after the Council of Europe's Committee for the Prevention of Torture, or Inhuman and Degrading Treatment or Punishment and the UN Committee against Torture with the power to enter and inspect any prison, jail, or re-entry facility (as well as any other state funded place of detention) in the state of California, at any time, day or night, without prior notice, and with authority to report to the Governor and the legislature on the proximity of current conditions to torture, or inhuman and degrading treatment.
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