Update from the Penal State: Court keeps the pressure on

As reported by Denny Walsh in yesterday's SACBEE, the special three judge federal court in the Plata-Coleman prison overcrowding mega case rejected the state's arguments that an inmate cut of less than half of what the court had asked for was good enough given legislative resistance and public safety concerns.

The claim of public safety is particularly outrageous given how much of the courts massive August 4th ruling was devoted to examining public safety and how population reduction could be done without prejudice to it. The court significantly cut down the number in order to allow an extra measure of reassurance.

When I find the new ruling I'll post it here. Here is the plaintiff's motion for contempt filed a couple of weeks ago.

California Inmates Seek Contempt Order Against Governor Schwarzenegger

California's epic prison mess is heading back into court with the inmate plaintiff's asking the three judge panel to enforce their historic August 4th call for a reduction of some 40,000 inmates over two years with a contempt order against Governor Schwarzenegger. As Denny Walsh reports in the Sac Bee:

Saying the Schwarzenegger administration is thumbing its nose at three federal judges with a flawed plan to ease overpopulation of prisons, inmates' attorneys Thursday asked the judges to find the governor in contempt.

Rather than complying with the three-judge panel's Aug. 4 order, a defiant Gov. Arnold Schwarzenegger and Corrections Secretary Matt Cate "essentially have told the court that they will reduce the state prison population as the state sees fit, to a level the state deems appropriate, and in a time frame the state has set for itself," the attorneys wrote.

The Governor whose low approval ratings and general fatigue at governing may have already peaked with his less than cordial greeting at a San Francisco Democratic Party event (the Guv was invited to "kiss my Gay ass" by Tom Amiano, read Carla Maranucci's reporting in the SF Chron), may rightly feel that he has tried to comply since his own plan was amended by the Democratic controlled legislature which backed off many of the cuts and the promise of a sentencing commission. But if Arnold wants to go out as an action hero he can still lead. As governor he can stop denying parole to scores of California lifers who have served decades and demonstrated substantial rehabilitation. He can order, as Ronald Reagan did, parole units to stop returning parolees to prison for minor violations of parole. With these steps alone he could bring the system into compliance before leaving office.

If, as seems increasingly likely, this whole case ends up in the Supreme Court sooner than later, look for several interesting legal flash points:

1. The three judge court in Plata and Coleman has suggested that the Prison Litigation Reform Act of 1995 (signed into law by Bill Clinton 13 years ago this month) need not be a barrier to court based structural reform of prison systems including prisoner release. The three judge panel, in my view, has put together an awesome record that will be hard for the Supreme Court to override, but look for Justice Alito in particular to focus on the federalism, public safety, and democratic accountability concerns embedded in the strong anti judicial intervention language of PLRA

2. I just taught the Supreme Court's 2005 Samson v. California case in which the power under California law to search all parolees without any suspicion by all peace officers (both parole and police) was upheld against a 4th Amendment challenge. The very complex case, which throws a lot of 4th Amendment doctrine into doubt, turns heavily on a bizarre (and in my view grossly incorrect) understanding of the same California parole revocation mess that will be at the center of a Plata Coleman decision. I will post more on this theme, but main point is that the Supreme Court in Samson took California's high revocation rate to prove that parolees were so dangerous they needed to be exempted from 4th Amendment protections (even the watered down special needs version of them). How will that square with the current view of the State of California, that parolees are so safe that most of them can be put on a form of "parole lite" in which revocation is not a possibility, supervision does not happen, and parole is reduced to the single fact of being exempt from search and seizure protections?

cross posted at prawfsblawg

Workplace Violence? Making Sense of Annie Le's Murder

Am I the only one that was bothered by the effort of the New Haven Police Chief to make sure we didn't think the murder of Annie Le had anything to do with either New Haven or Yale? In their coverage in the New York Times Javier Hernandez and Serge Kovaleski write:

Chief James Lewis of the New Haven police would not speak about a possible motive, but said, “It is important to note that this is not about urban crime, university crime, domestic crime, but an issue of workplace violence, which is becoming a growing concern around the country.”

In a statement,Richard C. Levin, the Yale president, said the supervisor “reports that nothing in the history of his employment at the university gave an indication that his involvement in such a crime might be possible.

Urban crime? Last time I checked New Haven counted as a city (maybe not a major city). Does this just mean that the accused, Raymond Clark, happens to be white? He was after all otherwise a local. University crime? I'm not sure what that is meant to include except perhaps political violence like the 1969 bombing of a research lab in Wisconsin, or more recent violence by animal rights militants. Domestic crime? Ok, there is no hint that Annie Le had any kind of relationship with Raymond Clark. But where does the Chief get off hinting darkly that there is a growing problem of "workplace" crime?

It is true that people spend a lot of time at work, so its not surprising that they are sometimes victims of crime there. That is particularly true of domestic violence. When partners separate, work may be the easiest place for the abusive partner to arrange a confrontation. Many workplaces, like retail stores, are targets for robberies. Here is where you can find a copy of the federal government's last published report on workplace violence. Published in 2001 and reviewing data from 1993 through 1999, the report shows violence in the workplace going down along with violence generally in America in those years. In 1999 there were a little over 600 workplace homicides out of more than 15 thousand nationwide. Perhaps there is a new trend emerging in more recent data that the Chief is aware of. Otherwise it is irresponsible to suggest that workplaces are a place that would benefit from even more fear of crime than Americans generally already feel.

As for the university, like many employers they have already invested in crime background checks, and apparently closed circuit video taping around its animal labs (probably to combat animal rights activists). College or university teachers already enjoy the lowest level of occupational violence of any studied group (as of 2001) at only 2 incidents per 1,000 teachers.

I'm no expert on criminal motivation. She was a petite and beautiful young woman. He was a physically powerful and apparently heterosexual young man. We may never know more than that. Let us accept grief at a promising life brutally ended, and some gratitude at the prospect of legal justice thanks to what appears to have been an effective investigation (although some questions about crime scene management have emerged). Let us not seek to invest even more of our life-world with the apparatus of crime control in the pursuit of a level of perfect security that does not exist.

Wishing all of you a happy new year (on the Jewish calendar, 5770)

[cross posted at Prawfsblawg]

My Daughter Does Walk to School

My twelve-year-old daughter will walked to school this morning, she has been since a year ago when she began at Martin Luther King Middle School about a mile from our home in north Berkeley. As Jan Hoffman reported in yesterday’s Sunday Styles section of the NYT, this kind of routine traverse to and from school, a fixture of my childhood (ironically I was living in Hyde Park on the South Side of Chicago where in the late 1960s street crime was hardly a fantasy), has become an endangered species in early 21st century America, a victim of a handful of childhood predators among us, and a vast and largely state supported fear of victimization. While according to Hoffman fewer than 115 child abductions by strangers occurs in a year on average, many Americans will see that many “Amber Alert” highway signs blinking a message about a child kidnapping in progress.
Those parents that seek to allow their children what one author and parent, Lenore Skenazi has appropriately called “Free Range" childhood, (the alternative the “gated childhood” we no impose on kids of all classes in the name of their security. Despite the fact that my daughter walks through an upper-middle class neighborhood where there are hardly ever drive by shootings or outdoor drug selling, the fact that a stranger might pull up and force her into a car (more or less what happened to Jaycee Dugard in South Lake Tahoe 19 years ago) haunts me and probably every parent. My wife and I have decided to embrace “free range childhood” for our kids because we have concluded that on balance the physical and mental gains from enjoying autonomy and that quintessential form of freedom known as walking around one’s neighborhood outweigh that terrifying if vanishingly small risk of a kidnapping.

The focus on gated childhood is important as we reflect on the costs of over-securitizing American society. While my book Governing through Crime devotes only a chapter to the family, and only a small part of that to the issue of overprotecting one’s children, it is in many respects where the war on crime really begins and ends. Protecting ones’ children, rather than conscious or unconscious racism, is the primary consideration that leads parents to choose non-walkable and non-diverse gated communities to live in, sterile segregated schools, and harsh penal policies that promise to (regardless of how marginally) improve that protection. Until we stop imprisoning our children behind walls of our own fear, there is little chance we will stop imprisoning so many of our fellow citizens. That is one political battle that will have to be fought one household at a time.

[Cross posted at Prawfsblawg]

Prison Reform Lite: With Fiscal and Constitutional Alarms Ringing, Cal Legislature Hits the Snooze Button

Staggering to the end of what Assembly Speaker Karen Bass called "a painful year for all of us", the California legislature passed and sent on to Governor Schwarzenegger a prison bill that will help the state save about a billion dollars (in a 26 billion deficit situation), about 200 million short of the governors announced goal (read Michael Rothfeld and Shane Goldmacher's reporting in the LATimes; and Kevin Yamamura, Steve Wiegand and Jim Sanders' reporting in the SacBee). The other number, besides the budget, is the 40,000 inmate reduction over two years called for by the three judge federal court in the Plata/Coleman case. The plan is expected to reduce the prison population by about 17,000 during the year, as opposed to the 27,000 projected by the Governor's plan. While the "reforms" enacted are certainly sensible, and while the numbers may yet add up to something that will satisfy the federal court, the portions of the plan that opponents were able to defeat highlights the difference between short term adjustments and sustainable reform. As Senator Gloria Romero put it: "What's not in the bill is a resolution and solution to this prison crisis." The items dropped from the Governors more ambitious plan (which was enacted by the state senate) also reveals the black hole of public trust at the center of the constellation of political forces we call "mass incarceration."

According to the Governor's spokeswoman: "the centerpiece of this legislation is the parole reform that protects public safety, avoids early release and saves the state nearly $1 billion." The plans major proposal, and where most of the savings come, is the parole reform measure that will essentially create a new parole status for inmates deemed lower risk. Prisoners released onto this parole-lite would continue to be subject to special parole conditions (including a waiver of 4th Amendment rights) but would not receive active supervision by a parole agent and most importantly, would not be eligible for administrative return to custody for violating those conditions (they could still be sent to prison for a new term based on a new court conviction).

The plan is not a bad one, although I question whether a parole status whose only purpose is to permit police to ignore the Fourth Amendment should survive a constitutional challenge. California is practically alone in placing every single one of its vast number of prisoners on parole at the end of their most determinate sentences. Public safety probably will be improved if parole supervision is focused on a more select group of high risk parolees (like Philip Garrido), and prison conditions will improve if some of the 70,000 plus parolees a year sent back to prison are kept in the community instead. However, depending on how the classification process works, I would expect relentless pressure on the bureaucracy to classify prisoners as high enough risk to qualify for active parole. Especially after the inevitable media frenzy that will happen once a "low risk" parolee rapes or murders someone, the ratio of low to high risk parolees on which all the savings depend will shift in favor of more surveillance for more people.

The two elments of the Governor's plan that were defeated are revealing about the kinds of mistrust that anchor political resistance to reform. First, the Governor would have saved another 200 million by moving some 6,300 most elderly or very sick inmates to hospices, hospitals, and in some cases to home arrest in what was euphemistically being called "alternative custody" to avoid the dreaded accusation of "early release." The idea of "early release" is, of course, a highly arbitrary one in California, since the length of our prison sentences have no relationship to any principled basis of penology. But even one wants to call it early release, the fact that Californians (or more precisely their representatives in Sacramento) are terrified by the idea that some 65 year old life long meth addict dying of emphysema may be housed in a hospice outside of prison walls is sad and pathetic.

Far more crucial is the fear of expert knowledge represented by the defeat of a sentencing commission. The commission would have been stacked with law enforcement represenatives appointed by the Governor and the legislature anyway, but even so the chance that a systematic overhaul of our penal choices would have been authorized was considered far too dangerous by organized law enforcement (most I assume the Correctional Officers union) and prosecutors who benefit from being able to draw on a vast an incoherent jumble of excessive punishment.

Cross posted at Prawfsblawg

A Truly Radical Idea: Van Jones and the Greening of Criminal Justice

The midnight resignation of Obama environmental adviser Van Jones is being treated in the media and the blogosphere [read Fred Barbash and Harry Siegel's summary on Politico] as yet another turn in Washington's ideological gang war ("Washington's a tough place that way," noted Howard Dean in one of the more sympathetic comments). Fox's Glenn Beck is said to have scored the first "scalp" inside the Obama White House, and many progressives are describing Jone's demise as a "lynching" or a "swiftboating" and bemoaning the administration's unseemly haste to rush Jones out the door. Indeed, the controversey seems like a decent Hollywood send-up of Bill Clinton dumping Lani Guinier. Jones' past as an organzier with an avowedly revolutionary organization here in the ultra-Left Bay Area, STORM (Standing Together to Organize a Revolutionary Movement) was widely known at the time of his appointment to an advisory position requiriging no Senate confirmation (the alleged policy nub of the criticisms directed at Jones). It seems hard to believe that Jone's alleged primary sins of signing a 9/11 "truther" petition or calling Republicans "assh-les" in a speech last February before he took office (didn't the former Vice President use an expletive on the floor of the Senate without having to resign) could be more damning in the eyes of Fox News then being a Marxist revolutionary, but there you have it. The truth is that Jones' has promoted one of the most radical ideas to emerge from the Bay Area in some years; but his vision has more in common with Alice Waters than Che Guevera.

The Ella Baker Center, the civil rights organization Jones cofounded in 1996, was one of the first to take up the issue of mass incarceration as a primary focus for civil rights struggle. In innovative and successful organizing drives, like the movement to stop Oakland from building a giant new juvenile detention center at the height of California's "lock-em up" politics, Jones began to forge a vision linking environmentalism and criminal justice reform. What Jones saw was that the high carbon automobile dependent lifestyle of mostly white middle class people in the suburbs, was linked to high incarceration economically disinvested lifestyles of mostly people of color in the inner cities by a logic of fear. The alternative to both was a new green urban agenda, in which the inherent energy advantages of innercity locations could be leveraged by investment in new energy efficient infrastructures. The by-product (in addition to slower climate change) would be tens of thousands of new skilled jobs in the very innercity locations which had suffered the most crime and incarceration during decades of deindustrialization and middle class flight. If that infrastructure reinvestment cycle could be unleashed, a serious effort at breaking down the barriers to employment by the formerly incarcerated could be the single most important criminal justice fight of our time (and one that could unify law enforcement and justice system critics).

This is a truly radical idea, one that challenges not democracy and capitalism, but our expensive and cronyism riddled penal state. It is not the vast rightwing conspiracy, but the far more powerful centrist alliance of high incarceration/high carbon political and economic interests that will benefit from removing Van Jones.

[Cross posted on Prawfsblawg]

The Fear Lobby Puts the Brake on Prison Reform in Sacramento

California's Assembly today voted out a weakened version of the plan for reducing prison spending and population in California that the Senate approved earlier this month and which Governor Schwarzenegger has said he would sign. The differences are not large in terms of dollars (200 million short of the overall 1.2 billion cut promised in July), and parole reforms adopted by both houses may help the state meet the population cap described by the Federal courts. [Read the Sacbee coverage by Jim Sanders]. More worrisome is the success of the law enforcement lobby (correctional officers, prosecutors, some police and sheriffs) in terrifying Assembly Democrats (who have the votes to carry reform with no Republican help) against supporting a sentencing commission, or further effort to encourage alternatives to incarceration. No real reform in this state is possible unless we revisit the incoherent and fragmented sentencing system that has grown up since 1976. The current system, which was designed by no one, allows prosecutors freedom to spend the state's money on future imprisonment costs at will, while providing little or no power for the state to exercise judgment about who goes to prison for how long, and no incentives for counties to solve local problems at home.

The Federal courts are not our problem. They are only an alarm seeking to awaken us to our desperate need to revisit our public safety strategy. For over three decades we have acted as if prison = public safety, no matter who goes there, for how long, or to what end. As our fellow citizens in LA choke from the smoke of the spreading wildfire in the mountains, we must confront the emerging new threats that confront all Californians from the catastrophic combination of environmental risks and infrastructure failure (remember Katrina, 5 years ago this week!). Unless we unlock the resources locked in our golden fortresses, we simply cannot pay for the public safety we need. We have built prisons while ignoring police, sheriffs, first responders, probation officers, mental health workers, child welfare workers (who might well have discovered the stealthy kidnapper Philip Garrido if neighbors had called them rather than the police to complain of mistreated or neglected children). All of those resources can be moved around flexibly to deal with emerging threats of all kinds, criminal, environmental, or infrastructural (or all three). Prisons can do nothing to help protect us against these threats.

Again, the courts are an alarm clock ringing, and our political leaders, if given the chance, will hit the slumber button. Don't let them!