How much time for Madoff?

The New York Times reports that Bernard Madoff has been sentenced to 150 years. This is the sentence that the US government had sought, and apparently the harshest sentence possible (read Jack Healy's reporting). As insurance actuaries will remind us, the 71 year old financier will likely cheat that sentence by upwards of 130 years (although not through parole. What are we to make of this, apparently largely symbolic sentence?

First, Madoff's case reminds us that the line we often draw between "violent crime" and all other forms of crime, including felony property offenses, is deeply problematic. Property, especially life savings, cannot be easily separated from physical and emotional harm, certainly not in a society that relegates the poor to misery as easily as ours. Madoff's highly deliberated and planned crimes will exact a toll on many of his victims that will take the form of illness, depression, and possibly shortened lives. When we assume that violence is ontologically different, we also create all kinds of preferences based on class and race (who has opportunities to steal without violence).

But if Madoff deserves to be punished as severely as some of our most serious violent criminals, we should also note that we tend to punish violent crime very severely in America, compared to most of our peers and to our own history. In much of Europe, ten years in prison custody for an ordinary homicide is very much the norm, with 25 or more years reserved for mass murderers and war criminals. In the US, many prisoners convicted of ordinary homicides serve 30 or more years because of risk averse parole boards.

Given that we cannot sustain our current level of social investment in incarceration, and that we cannot reduce it adequately without reviewing our long sentences for violent crime, I would favor moving our punishment for the most serious violent offenders back into line with European ranges. On that scale, Madoff deserves to serve somewhat less than a mass murderer, and somewhat more than an ordinary murderer, which brings me to 17-22 years. Still likely to be life in prison for Madoff, but some incentive for him to behave in prison.

Prison Hospital Compromise Falls Apart

According to Bob Egelko's reporting in this morning's SF Chron, Governor Schwarzenegger has disavowed a deal negotiated between Clark Kelso, the received named by Judge Thelton Henderson to oversee the creation of constitutionally adequate medical care in California's super overcrowded prisons, and Mathew Cate, the Director of the feckless Department of Corrections and Rehabilitation. Under the compromise, Kelso and the court would reduce the 10 year 4 to 8 billion dollar hospital construction plan, to a 4 year 1 to 2 billion dollar plan while moving forward to restoring state control over prison medical care.

This compromise made sense. No one really wants to see California spend 8 billion building prison hospitals while ignoring the health deficits of millions of poor and working class Californians. The hope would be that four years from now, the state would be on track to a reduced prison population that would no longer require the additional 2 to 6 billion in new investment.

With the Governor disavowing the plan in favor of his new found budget cutting zeal, it will be up to the federal courts to decide how much to spend and when. In the meantime, we need the competitors for the 2010 California gubernatorial race to address how they would solve this problem.

The core of a more promising approach is to follow Massachusetts and make California the health provider for all poor Californians. This population would include nearly 100 percent of prison inmates but being in prison would no longer be a requirement for having a right to health care. In this system the state could build new hospitals for the use of all Californians and use prison (and parole) as an opportunity to drive down the state's health care costs by making prisoners healthier. You already cannot smoke, drink or take drugs while you are in prison. Introducing healthy diets and regular exercise could be the new form of "tough on crime" in California!

Don't fix California's Death Penalty, Replace It! But with what?

Jon Streeter, Bill Hing,Diane Bellas, make the case for why California's broken death penalty should be replaced rather than repaired, in an op-ed in today's San Francisco Chron. Streeter, Hing, and Bellas, a leading criminal defense lawyer, law professor, and public defender respectively, served on the California Commission on the Fair Administration of Justice, make mince meat of Senator Tom Harmon's recent oped calling for an end to lengthy appeals in order to fix the death penalty.

As the senator states, "the death penalty system in California is broken and unworkable." We found that it now takes an average of 25 years for death penalty cases to move through the mandatory court review process. However, the reason these appeals take so long is not because of "legal maneuverings." The primary cause of these delays is the lack of attorneys willing to take these cases and the lack of court staff to review them. A person sentenced to death today in California will wait eight to 10 years before an attorney will be appointed to represent him in a legal challenge to his conviction. Without an attorney, there are no legal maneuverings at all....

How do we fix all of these problems? With money. Our commission considered myriad measures to reform the state's death penalty system and recommended several. If all of the reforms we recommended were implemented, the state would reduce the risk of wrongful conviction while still being able to process death penalty cases more quickly.

We currently pay $137 million each year for the state's dysfunctional death penalty. Implementing our recommendations would cost an additional $95 million, for a total price tag of $230 million each year. Because it would take many years to increase the pace of review of death penalty cases, we would still need to build a new facility to house the people now on Death Row, at a cost of $400 million.

The attorneys propose replacing the death penalty with "the sentence of permanent imprisonment: life with absolutely no possibility of parole." Here I would dissent slightly. While we are asking Californians to take a realistic look at how we punish the most serious crimes let us level with them completely and acknowledge that permanent imprisonment with no hope of parole is not necessary to assure public safety, makes the process of incarceration itself nightmarish for both inmates and staff, and is considered a human rights violation in the rest of the civilized world. A sentence of life imprisonment, with parole only after 25 years, the sentence for first degree murder in California, is plenty of punishment. We already keep most of our non-capital murderers in prison for well over 30 years, and we need to reduce those excessive sentences. There is a long history of making bad murder law in order to limit the death penalty, let's not do it again.

We need a whole new scale. Make 25 to life the new sentence for first degree murder with special circumstances. Move regular first degree murder back to 20 years to life (keep in mind prior to 1980, most 1st degree murderer's were released within 10 years), and move second degree murder to a determinate sentence of 10 to 20 years.

Governing through Vice

Before that, the Basij, including female units, had been used primarily as a kind of vice squad, looking for drug addicts, prostitutes and mostly women but also men wearing immodest dress.

Neil MacFarquhar, reporting in yesterday's NYTimes notes that the Basij, the often motorcycle driving "volunteer" militia that have been the shock troops of the Iranian government's violent suppression of Tehran's protests, have their origin in the vast policing of "vice" that goes on in Iranian society. Tactically, this means the government's elite Revolutionary Guard (where most of its recent leaders have come from) is given tremendous capacity to act at the micro-level of society through this extensive network of informants and government agents.

That combination means that the military has rather intimate knowledge of the populations of cities and neighborhoods across Iran. “They organize in every office, every university, every mosque,” said Fatimah Haghighatjoo, a former reformist member of the Iranian Parliament who is now a visiting scholar at the University of Massachusetts in Boston.

It also suggests that the actual legitimacy of Iran's regime, like ours, relies heavily on the identification (and construction) of a vast sea of evil and deviance within civil society whose elimination becomes a raison d'etre for an expansionist state. In both cases, drugs fill a major role in populating that army of deviants against which state repression can be marketed to the people as a form of freedom.

We Don't Deserve, and Can't Afford, Another Election Governed by Fear

In the midst of our worst fiscal crisis in a generation or two, Californians are about to be confronted with another high cost television waged gubernatorial campaign. With two billionaires lined up on the Republican side, and well connected Democratic competitors, the spending, even in the midst of a Depression, will be unprecedented.

Both the terms and the present competitors for the job render unlikely any chance that an honest debate about restoring the effectiveness of California government will take place. However we must and can avoid a campaign dominated by hot button fear issues that have proven effective in good times and bad to lead Californian's to make serious mistakes at the ballot box (Juvenile Crime, 3-Strikes, Jessica's Law, etc). We cannot afford to wake up the morning after the next election, having chosen the candidate most capable of demonizing some insignificant but visually compelling threat to public safety.

This is not an issue of left versus right (as Gray Davis should be enough to remind us), but instead the alliance between almost all the mainstream politicians, the media, and key crime fear constituents (prosecutors, organized crime victims, CCPOA) that matters most in determining whether we end up with another 1994 (when in the midst of a dismal economic decline, the election between Pete Wilson and Kathleen Brown was dominated by phantoms of crime). Keep your eye on the media's ability to keep these hot button issues in the headlines (read Jaxon Van Deberken's latest effort to keep one of the newest hottest hybrids out there, the illegal immigrant, combined with potentially violent juvenile criminal, going in today's SFChron). Perhaps we need to call out this kind of reaction formation early, before it can shape the entire bandwidth of the debate.

UCSQ

I visited San Quentin prison yesterday to deliver a lecture to a classroom full of prisoners who are mostly students in the remarkable prison university project that has provided college level course work through volunteers since most official links between prisons and universities were severed by the noxious Violent Crime Control and Law Enforcement Act of 1994 (which eliminated eligibility for prisoners to obtain Pell grants). As in my previous visits, the men subjected my arguments to a complete and skeptical review of the sort that I only rarely get from my Berkeley students (who after all have many more professors competing for their attention, not to mention the internet delivered in high speed wireless to their laptop). I walked away with many more ideas than I came in with.

One of them was this. Let us take advantage of California's massive budget crisis to establish links between prisons and universities all over this state. Universities are brimming with students looking for opportunities to combine public service and learning. Prisons are brimming with adults with the time and attention to devote to college level course work. Student staffed clinics could provide all kinds of services to prisoners preparing for their release back into the community. As fellow students in faculty taught college classes, prisoners could teach students about the realities of growing up in some of California's most disadvantaged neighborhoods and surviving in the State's toughest prisons.

Accommodating this kind of exchange will pose serious challenges to correctional officers and managers, but if college based programming proved attractive to a substantial part of the prisoner population, the gains in improved prison order and reentry success might be rich indeed. San Quentin has an ethos I have not felt at other California prisons, and which I believe comes from the relatively open links that bring volunteers, journalists, teachers and other community members behind the walls.

It will also stretch university resources mostly in the staff and faculty time while both are already taking pay cuts through "furloughs", while opening up vast pools of knowledge currently inaccessible to our students and faculties.

Too Much

Part of our problem in California is that we imprison way too many people who do not need to be in prison at all (virtually all drug offenders in my view). But part of our problem is that we imprison people who do need to be in prison for way too long. Case in point is Jared Adams, 26, of Oakland.

Jared needs to be in prison. He was convicted of a string of serious violent felonies committed in late December 2007, and early January 2008. Adams was convicted of firing three shots during an armed robbery of a service station, one of which paralyzed Christopher Rodgers (now 12) as he was taking a piano lesson in Oakland. Adams also tried to carjack an automobile on the streets of downtown Oakland by pointing his gun in the face of the driver (who turned out to be Senator Don Perata of Oakland).

Is Adams a danger to his community? You betcha as Sarah Palin might say. Does he need to be isolated from the community and lose his freedom? Oh Yeah. But for how long?

Yesterday Judge Larry Goodman of Alameda County Superior Court sentenced Adams to 70 years to life in prison, meaning Adams, now 26, will not be even eligible for parole until he is 86. According to Demian Bulwa's reporting in the SFChron (read it here), Judge Goodman took the occasion to forcefully express his frustration with violent crime in Oakland:

"In Mr. Adams' world, there are simply victims and predators, and when they see something they want, they take it," Goodman said in sentencing Adams in Alameda County Superior Court.

He called Adams a parasite in a city where residents are frustrated with violence. Then he read out all of Adams' convictions and their corresponding sentences, a process that took more than 15 minutes.

But is frustration and anger the best foundation for judgment? Consider this. Jared Adams is a scary guy right now, but what will he be like at 40? When was the last time you read about a 40 year old shooting up a service station, or carjacking an automobile in broad day light? It doesn't happen. Criminologists have known for decades that aging diminishes even the most potent criminal motivation.

So from 40 on, through his 50s, his 60s, his 70s, and his 80s, California tax payers will be paying some 50K a year plus inflation to house Mr. Adams, who will no longer pose virtually any risk to the community.

And how much do you think Mr. Adams will feel those decades going by as punishment? Assuming he hasn't become completely insane (which does happen), the experience of most long term prisoners suggests that after a decade or two, people adjust to prison life and no longer feel its deprivations.

So for forty of the next sixty years you, and I, and our kids, will be paying to house Jared Adams in a state prison, even though he will no longer pose a risk to us, and will no longer experience it as punishment.

Thanks Judge Goodman