Fire My Wife!

Dear Governor Schwarzenegger,

As you and your colleagues in Sacramento set about trying to address California's mammoth budget deficit, there is one state institution that deserves to head up the list for elimination. It is our decrepit and dysfunctional death penalty. With over six hundred prisoners under sentence of death, California is spending hundreds of millions of dollars each year to litigate their cases in court. The beneficiaries of this spending include my family, since my wife is an attorney who represents death row inmates.

By commuting the sentences of all California death row inmates to life in prison, you would immediately and without help from those "girly men" in the legislature, eliminate or greatly reduce the expensive litigation in these cases and close whole offices like my wife's which exist only to represent those on death row. Those prisoners could be moved to high security prisons all over the state and San Quentin could be prepared for sale and or remodeling as a smaller re-entry facility.

Yes I am opposed to the death penalty, but that is not the point. Even the most vigorous death penalty supporter can find nothing to love in our pathetic death penalty. We have spent billions to execute about a dozen inmates over 35 years. Taking 20 to 25 years to execute someone eliminates any deterrent value, and sense of closure for the victims, and life in prison provides completely adequate incapacitation. In other words, we are spending billions just to say we have a death penalty, when we actually don't.

Before you cut funding from our kids' public schools, before you take county money needed to pay for cops and probation officers (read about the latest prospects in the SFChron) let's axe this useless institution.

Sincerely,



Jonathan Simon

Reality TV

A friend from southern California wrote the other day to share a nightmare that I have come to believe lives at the heart of the whole "governing through crime," "culture of control" regime. No, thankfully neither she, nor anyone in her family were killed or injured in a violent crime. (Sadly that happened to friend of ours who was killed in a robbery near an Oakland ATM in the late '80s or early 90s). That happens to many, but even in America it is not widespread enough (and is too concentrated among the poor) to found a political regime. The nightmare we can all imagine, if we haven't actually lived it, is a potentially violent "criminal" penetrating or attempting to penetrate the sacred precincts of our home. It is that nightmare that keeps us seeking to live as far as possible from the city center where we imagine such criminals live, and which leads us to squander billions to mass incarcerate as many of them as possible.

In this case, Pam's 11 year old son Ellis and a friend were enjoying a swim in his grandparents home (around the corner from their Studio City house), when an LAPD chase of two reported shooters in a BMW terminated in a pretty spectacular automobile accident just outside. In a remarkable helicopter live video and voice over from WABC7.com, the final minutes of the chase and the aftermath have now been made available to millions.

After striking several parked cards on the suburban residential street and rolling or nearly rolling over, the BMW came to a halt. The driver and passenger can be seen leaping from the car and running toward the backyard of one of the houses. One of the runners stops (apparently ready to surrender to police who are only seconds behind), but the other jumped over what looks like a wooden fence or gate into the yard where Ellis Nicely and his pal were swimming. At this point the anchors who have been reporting the chase and the foot run as if it were a major golf tournament (referring to the exit from the car as a "foot bail-out") begin to talk in extremely anxious terms of the threat to the kids who can be easily made out in the pool as the helicopter stays over the fleeing felon who appeared to move as rapidly as possibly through their yard and over the next fence (according to Ellis, advising the boys to "chill-out" as he streaked by).

In addition to enjoying this truly enthralling piece of reality TV (I don' see how Hollywood writers can survive if the LAPD can keep delivering product like this) consider the incredibly potent doses of imaginary and real danger took place here.

To millions watching, the whole gospel of governing through crime was laid down. "You can never be truly secure from demonically animated violent criminals who are trying constantly to penetrate your home and do unspeakable things to your most precious assets. Thank G-d the police (and TV news) are on the spot."

To a few others (hopefully including the handful of readers of this blog) a parallel world opens up. There, the LAPD, based on reports of a possible shooting initiate a high speed car chase through a residential neighborhood that could easily have killed people. Just imagine if Ellis had been getting ready to mount his bike on the street outside the home. Meanwhile the runner, while clearly someone willing to engage in extremely risky behavior to self and others, appears to have zero interest in penetrating the homes of suburban people to mess with their kids. (Indeed, he appeared reasonably to be seeking some place unoccupied by anyone else to hide in).

Can We Afford the Death Penalty?

My colleague Elisabeth Semel (Director of Berkeley Law's death penalty clinic) raises some troubling questions about California's dysfunctional death penalty on the oped page of the SacBee. Lis highlights the perversity of watching California spends millions to maintain a system that whatever its theoretical benefits has contributed so little to our security or prosperity (death penalty supporters should note that execution has "resolved" only about a dozen cases since the penalty was restored by constitutional amendment in 1978 at an overall cost in the billions), while it gets ready to gut its already anemic education, law enforcement (as opposed to corrections), and social service budget.

Californians are all too familiar with the fact that while we rank 47th in the nation in per-pupil public school spending on a cost-adjusted basis, we are first in what we pay for prisons and on the administration of the death penalty. California is housing so many people on death row that it plans to build a new facility. The price of construction is $400 million and, over 20 years, taxpayers will pay $1 billion in operating costs.

Lis also reminds us of some distinguishing features of our golden state government in its executioner mode. Take for example the lethal injection protocol. Litigation over the method used to chemically kill people in California has been going on for some years even after a Supreme Court decision acknowledging the real possibility of excruciatingly painful torture to prisoners if this execution methodology is flawed. Lis' clinic has been directly involved in that litigation (something that gives those of us on the Berkeley Law faculty something to be very proud of) but the point she raises in the oped is the role of secrecy in government's approach.

It took more than three years of litigation, which the state lost repeatedly, before the attorney general's office conceded that the execution protocol must be open to public scrutiny.

Indeed, throughout the legal challenges to California's method of lethal injection, the governor, the attorney general and the Corrections Department unswervingly opposed any disclosures.

Just as with our federal government and the "war on terror," our state government finds the "war on crime" (of which capital punishment is the symbolic equivalent of nuclear weapons) an irrepressible temptation to dictatorial rule in the name of protecting the people against their darkest fears.

As Lis well appreciates, it is these temptations and fears we can no longer afford

The Budget Crisis and Mass Imprisonment in California

Governor Arnold Schwarzenegger told a news conference yesterday that in order to help close California's mammoth budget gap (15 billion if the ballot initiatives pass on Tuesday, 21 billion if they fail) he is considering commuting the sentences of thousands of undocumented prisoners and turning them over to the federal government for deportation. He would also send thousands of other "low risk" prisoners to county jails (read Matthew Yi, John Wildermuth, and Wyatt Buchanan reporting in the SFChron). A day earlier the Governor included San Quentin prison on a list of properties that the state might sell to raise cash (read Michael Rothfeld's reporting in the LATimes).

These suggestions may be intended mainly to help pass the ballot initiatives. If that is the Governator's game, it is a sad and cynical recourse to the voters' well known tendency in this state to be stampeded into bad governance by crime fear. A recourse that will reinforce our commitment to mass imprisonment.

If these suggestions are serious, they offer a mixed bag, some of which could really help us move away from mass imprisonment (and liberate more budget space for infrastructure and education among other priorities). A quick set of responses

*Deport undocumented prisoners?
It depends of course on why we put them in prison to begin with. If we are talking about a violent criminal with a track record of assaults on intimates or strangers, we might want to consider that there is a real chance they will return to California sooner then later. If we are talking about a drug or property crime, a period of incarceration followed by deportation (which is itself a serious punishment) is quite possibly plenty of sanction.

*Send low risk prisoners to county jail?
This is a winner. Jails offer a very promising way to deliver punishment without doing as much damage to an inmates' ties to the community and at considerably lower cost. Some counties will need help expanding or remodeling county jails, but many have been rebuilt as a result of seismic threats and court cases over the last couple of decades. Most criminologists used to assume that prisons were better than jails because they offered more rehabilitation, greater comfort for long stays, and were controlled by a more professionalized state work force. But the transformation of California's state prisons into a vast human warehousing system has undermined all of these assumptions. Especially if we can wean ourselves from using long sentences, short stays in clean, safe, and well managed county jails might be an excellent way to hit the reset button in the lives of Californian's whose criminal behavior has become a threat to their family or neighbors, especially if followed up by strong county probation services.

*Sell San Quentin?
The old prison should long ago have been replaced but there is a real loss to closing it. SQ is one of the only prisons in the state proximate to a great city and surrounded by numerous educational, mental health, and drug treatment services, as well as thousands of volunteers willing to come into the prison and provide all of the above. That is why it is the only prison in the state that arguably has a rehabilitative culture. If SQ is closed the state should commit itself to building two or three small prisons in the Bay Area and LA to make up for the loss of this proximity.

Crime Scouts?

Yet another reason (in addition to intolerance and homophobia) to resist my nine year old son's repeated requests to be a Cub Scout, a younger division of the (Boy Scouts of America) appeared in Jennifer Steinhauer's story in this morning's NYTimes on "Scouts Train to Fight Terrorists." Once a cub scout myself I am not unsympathetic (also his sister is a girl scout so its an equity thing). Back in the 1970s I thought of the Explorers (the older youth division of the BSA) as ultra impressive backpackers, climbers, outdoors men, but it turns out they also provided a pathway for some youth into the military, policing or firefighting. Apparently decades of "war on crime" has helped reorient the vision and the values of the explorer program even more toward violent confrontation with "stranger danger" of various real and imagined sorts.

The Explorers program, a coeducational affiliate of the Boy Scouts of America that began 60 years ago, is training thousands of young people in skills used to confront terrorism, illegal immigration and escalating border violence — an intense ratcheting up of one of the group’s longtime missions to prepare youths for more traditional jobs as police officers and firefighters.

Second Chance

It is almost as rare as the proverbial "man bites dog" but apparently less headline worthy. A California legislator has introduced a bill to reduce the severity of punishment for convicted criminals, in this case those convicted of murder when they were juveniles and sentenced to life without parole. State Sen. Leland Yee has introduced legislation that would make these prisoners eligible for parole after 25 years (read SFChron coverage from the AP).

Senator Yee is to be applauded for opening the door to parole for those who kill while they are very young. The Senator holds a doctorate in Child Psychology believes that the possibility of rehabilitation should be left open (after 25 years in prison). It must be the first step of many to reduce the barriers to releasing life sentenced prisoners in California. Even twenty five years may be too long for those who killed as minors and those who kill as adults must be considered for release after a prison sentence substantial enough to reflect the gravity of the crime and with a prison record indicating real efforts to reform themselves and address the underlying sources of their violent behavior.

In much of the rest of the world, certainly those sectors Americans would consider living in, ten years is about the norm for murder. The fact that 25 to life for those who kill as minors is controversial tells you a lot about how out of whack our penal sensibilities are. Predictably Senator Yee's bill is being opposed by the District Attorney's Association whose relationship to California's imprisonment binge is roughly equivalent between McDonald's and the American waste line.

Murder in California

Lazily browsing the web in search of California homicide statistics I came across a 1973 article, no by-line, in Time Magazine, with this intriguing title, Murder in California. The article covers a horrifying murder in a small town near Sacramento in which nine victims were killed, including an entire family, all found in the family's home. The men arrested were wanted to a similar crime spree in Arizona were described as a drifter and repeat offender who had done a brief stint in a mental hospital.

The year, 1973, was when the nation's practice of capital punishment hung in the balance. The Supreme Court had declared existing US death penalty laws unconstitutional in Furman v. Georgia (1972). Lawyers seeking abolition had argued that capital punishment was increasingly out of line with contemporary American values. Indeed executions and even death sentences had trickled to a halt by the late 1960s. But an ominous surge of homicides was beginning to turn the tide in favor of capital punishment in America and California was ground zero for that shift. Already in 1966, with homicides just beginning to move up, Ronald Reagan defeated two term governor Pat Brown, at least in part on Brown's opposition to capital punishment.

By the early 1970s the homicide rate in California was surging well ahead of the national rate. As the Time writer noted:

The killings were only the latest in a grisly series of six mass murders that have taken the lives of 64 people in California during the past four years. The day after Gretzler and Steelman were arrested, Edmund Emil Kemper III, who stands 6 ft. 9 in. and weighs 280 Ibs., was sentenced to life imprisonment for his most recent murders. When he was 15, Kemper killed his grandparents but later was released from a California state mental hospital, whereupon he began murdering a series of student hitchhikers. He ended by killing his mother Kemper decapitated seven of his eight victims, including his mother.

Last week California was also the scene of a bizarre single murder. Oakland's highly regarded school superintendent, Marcus A. Foster, 50, was ambushed in a parking lot and killed by a hail of fire that included bullets loaded with cyanide. Cut down with him was Robert Blackburn, his deputy, who was expected to live.

Responsibility for executing Foster's "death warrant" was claimed by the "Symbionese Liberation Army," a group unknown to the FBI or experts on local radical groups. In a letter to the San Francisco Chronicle, the organization objected to "fascist" policies supported by Foster, the first black to have headed the public schools in a major California city, that schools were giving police information about Oakland students—a claim that authorities denied.

That year the California homicide rate reached 9 per 100,000 inhabitants, double where it stood in 1966.