Tuesday, October 21, 2014

Proposition 47: A Simple Step Toward Reducing Mass Incarceration

California Proposition 47, on the ballot for voter consideration this November, would change the legal classification of many "nonserious and nonviolent property and drug crimes"  from felonies to misdemeanors (read the details on ballotpedia.org here).  This simple change has important consequences.  A crime classified as a felony may be punished with a sentence in state prison, while a crime that is classified as a misdemeanor may be punished only with probation or a sentence of one year or less in a county jail.  If voters approve Proposition 47, Californians convicted of crimes that pose little or no risk of violence like forging a check or receiving stolen property if the amount involved is worth less than $950 dollars (the existing dollar amount was set in the 1970s), or simple possession of drugs, would no longer end up in state prisons.  Moreover, the law would allow prisoners currently under felony sentence for one of these crimes to be re-sentenced "unless court finds unreasonable public safety risk," a change that could result in as many as 10,000 fewer prisoners in our dangerously overcrowded and degrading state prisons.

The debate on Proposition 47 has mostly turned on how dangerous these crimes and the people who commit them are.  Proponents, supported by most criminological research, argue that prison is a costly (approximately 62K a year for the average prisoner in California) and unnecessary way to address these non-violent crimes.  Probation and if necessary some jail time have at least as good a chance of curbing future criminal behavior (our prisons have had a very high rate of recidivism and make no effort at rehabilitation) and with lower costs fewer prisoners means more money that Proposition 47 would channel into law enforcement, drug treatment, and victim compensation.  Opponents, most of the state's District Attorneys, claim that the law would weaken their ability to send truly dangerous people who have been convicted of a relatively minor crime to state prison and use the threat of state prison to compel less dangerous people to accept drug treatment as part of felony probation (probation is also an option for many of these non-violent, non-serious felonies, at least for first offenders).

But the real issue is not crime (which remains at historically low levels throughout California); it is mass imprisonment.  Beginning in the late 1970s and early 1980s, California embraced prison as the answer to what was then a historically high level of crime in the state and began to swell its prison population from around 20,000 prisoners in 1975 to nearly 180,000 in 2006.  (This was a national trend but California took a typically extreme approach, read more about the causes in chapter 2 of Mass Incarceration on Trial).  This explosion in prisoners was a product of two different changes in sentencing.  First (and the part that Proposition 47 addresses) prosecutors began using their discretion to seek state prison time for crimes that could be charged as misdemeanors and had been historically. This meant tens of thousands of people with relatively short prison sentences flooded our prisons and clogged (along with tens of thousands of technical parole violators) the reception centers where prisoners are supposed to be classified and assigned longer term housing but which instead became packed irregular wards with overcrowding approaching 300 percent of design capacity. Second, law makers (aided by the Determinate Sentence Law of 1976 which gave the legislature power to set prison sentences) lengthened the sentences of most felony crimes, especially violent crimes.  This meant that tens of thousands of prisoners who in the past would have left prison as they aged out of serious criminal behavior (generally by 40), remained in prison into and in many cases beyond middle age, when chronic illness begins to generate increasing suffering and costs.

The inability to manage these mounting problems of overcrowding and health care led to the remarkable 2011 decision of the Supreme Court in Brown v. Plata to uphold a massive population reduction.  The State responded with the realignment package in November 2011 that sent most people convicted of non-serious, non-sexual, non-violent felonies to county jail or probation rather than prison.  Proposition 47 expands realignment by taking the least serious of these offenses out of the felony category altogether.  That is important because even under realignment, courts can sentence people to years of incarceration (only in county jail rather than state prison); classifying these low level crimes as misdemeanors assures that they have a better chance of receiving probation and caps any jail sentence at 1 year.   Moreover, felony convictions on your record make it much more likely that you will go to state prison for your next offense.  Eliminating minor offenses that do not warrant the felony label makes that kind of criminal record enhancement inherently fairer and more objective.  It is also important because the label felon continues to have important negative consequences that last years or even decades for employment, housing, and social benefits.  Conviction of a felony makes it much harder for people to rebound from crime and punishment to become productive citizens.

Another important group of prisoners that Proposition 47 might help are those who are serving an enhanced "second strike" sentence under the original 3-Strikes law (which had the effect of adding 10 years to the sentence for any felony if the person was convicted of a violent or serious felony previously) but who were not aided by the last 3-Strikes reform (which applied to 3-strikers).  This could involve relief for thousands of existing prisoners facing years more imprisonment; helping the state meet its Brown v. Plata obligations with little risk to public safety.

Beyond helping to directly reduce the number of people actually in prison or exposed to it for minor crimes, the most important feature of a significant victory for Proposition 47 is the signal it sends that the toxic crime politics of the 1980s and 1990s is truly behind us.  In those decades a media frenzy about violent crime produced ballot initiatives that pushed crime policy significantly toward the extreme, leaving politicians scrambling to catch up with matching legislation.  If Proposition 47 wins it will be the second election cycle in a row in which voters have signaled they want more reform than Sacramento can deliver.  Voters are correct.  Today's leading politicians in both parties are talking about reform, but their vision is so cautious that we are unlikely to escape mass incarceration through legislated reform alone.

So far polls suggest Proposition 47 could win handily, even in an election cycle expected to be weak for younger more liberal voters.  Prosecutors and victim organizations tightly aligned with law enforcement are kicking up their opposition.   The opposition argument comes down to two points, trust and fear.  Prosecutors say "trust me" with the discretion to use felony power even on minor crimes and I'll find the truly dangerous criminals before they commit a bigger offense.  That was the argument for Three-Strikes (the classic example of toxic crime politics at its worst) and voters are rejecting it now.  Instead opponents are increasingly relying on a second tactic, fear, bringing up demonized examples of offenders who might "benefit" from the changes.  Two key examples are people caught in possession of rape drugs and people caught in possession of stolen weapons.  Assuming the street values of the drugs and the guns were below $950, the possessors could no longer be charged with felonies.  Big deal.  First of all police and prosecutors have many options in charging.  If someone is possessing rape drugs with the intent of raping someone, that is the crime of attempted rape.  If someone is in possession of stolen weapons, they may also be guilty of a burglary in which they stole the weapons. Prosecutors will say that it is difficult to convict people of serious crimes, and much easier to use possession offenses to go after the bad guys.  But that is exactly the thinking that got us into mass incarceration and what we have to use the initiative system to escape.  Besides, Proposition 47 leaves plenty of of "protection" in place.  The reduction to misdemeanor status does not apply to people previously convicted of murder, rape, or certain sexual and gun crimes (many of the same folks the prosecutors are demonizing).  Moreover, misdemeanor conviction allows for probation or a sentence of up to a year in a county jail, methods address criminal behavior at least as effectively as imprisonment.

Approving Proposition 47 is a simple and effective way for voters to take another step in leading California away from the moral precipice of mass incarceration.  We cannot trust Jerry Brown or the legislature to remove the taint of barbarism that hangs over a prison system that the Supreme Court declared "uncivilized."  Brown gave us the law enforcement friendly Determinate Sentencing Law in 1976 which helped speed mass incarceration in California, and he has now aligned himself with protecting the status quo in our prisons.  While his re-election is inevitable, voters cannot wait another four years for leadership on restoring dignity and human rights to California's legal system.  We will need to do more.  With half of California's prisoners now serving death, life without parole, life with parole, or multi decade determinate sentences our prisons are rapidly becoming even more degrading and expensive as they concentrate on aging prisoners with little hope.  Incarcerating the vast majority of these older, sicker prisoners makes no penal sense and will continue to limit the availability of tax revenues to solve the state's pressing environmental and educational needs.  To change that we will need an initiative to roll back sentences on violent crime.  Yes, you read me right, we need shorter sentences for violent crimes.  The vast majority of people convicted of an offense against the person (what California's penal code calls violent crimes) are no more likely to commit such an act in the future than those who have not been convicted but come from the same social circumstances and situation.  Most violence is situational, ignited by complex combinations of conflicts, propensities and accelerants like drugs and alcohol.  For the few that have a long term propensity to violence, proper risk assessment and the use of some indeterminacy in our sentencing laws for violent crime could allow for selective incapacitation.  There are far better ways to spend money on reducing violence than incarcerating aging prisoners who once did something violent.  But for now few even in the anti-mass incarceration community are ready to take on that fight.  Please join me.

Thursday, September 18, 2014

Carceral Geographies: Mapping the escape routes from mass incarceration

Today and tomorrow (September 8-19) at UC Berkeley we will be launching a new undergraduate “course thread”  titled “Carceral Geographies”. Our launch will begin with a keynote address by the great Ruth “Ruthie”Wilson Gimore, scholar/activist extraordinaire who has given us the definitive study of California’s descent into mass incarceration, Golden Gulags: Prisons,Surplus, Crisis, and Opposition in Globalizing California (UC Press 2007).  Gilmore’s address, (which I’ll be tweeting) titled “The Present and Future of California Prisons” will take place today, September 18th, 5:00pm to 7:00pm, Dwinelle Hall, Room 370, on the UC Berkeley campus (all are welcome).

Course threads are intended to encourage Berkeley students to integrate their knowledge of particularly important contemporary themes across the disciplines they study.  They do not replace majors (like Sociology, Physics, or German) or create a “minor” (which are generally also disciplinary), instead a course thread is a way for students to deepen their knowledge of a subject whose pervasive influence on human life spills-over the boundaries of existing disciplines and professions.  The “thread” connects existing courses (and we hope their faculty and Graduate Student Instructors).  Students who complete three courses in a thread, and participate in a course threads symposium (offered each semester), will have the course thread noted on their official university transcript.

Incarceration belongs among those topics.  After several decades of rising imprisonment rates (and the aggressive policing, prosecution, and jailing that is required to produce that), Americans live in an environment that is unmistakably carceral. While its most violent aspects are highly concentrated in communities of color and poverty, the carceral imperatives has touched virtually all communities.  Whether you live in a high crime neighborhood with many abandoned buildings, open air drug markets, and regular police actions, a “gated community” in the suburbs, or a newly gentrifying neighborhood on the periphery of a revitalizing downtown, the forms of life, ways of building and dwelling, ways of exercising power, are marked by America’s experiment with mass incarceration which has placed 1 percent of American men in prison (10 percent of African American men), more than 3 percent of the American population in some form of correctional custody, and by some estimates, as many as 1 in 3 Americans have their names in searchable police and court records. 
This calls for a perspective on incarceration that goes beyond the prison to study the institutions of criminal justice, the form and structure of the urban (and increasingly rural) environment, the history of America’s obsession with confining and or excluding threatening “others” (indigenous peoples, immigrants, the psychiatrically disabled among others), the biology of chronic illnesses that are deepened by prolonged exposure to incarceration.  We think “carceral geographies”, although framed initially by geographers (itself a very broad “discipline”), fits the scope of this problem.
 Students will explore a range of foundational questions including: How do we understand the historical and juridical relationship between carcerality and conceptions of human being? How do the domains of carcerality move across a range of global sites and scales? How does this relationship inform concepts of time, place, culture, policy, etc.? How have artists, scholars, and activists, including those who have experienced incarceration, produced representations of, knowledge about, and challenges to carceral life?
This moment is right to raise these questions also because of the historic and contemporary importance of Berkeley and the Bay Area as a hub for students, faculty, and activists engaged in contesting mass incarceration.  The growing body of formerly incarcerated students and (soon) faculty at Berkeley and other leading institutions are at the core of this intellectual in-gathering and the opportunity it offers to understand and overcome this dire period in our common American history.  Just as California has been the Mississippi of mass incarceration (see chapter 2 of Mass Incarceration on Trial), California's premier public university should be the leading national center of research, resistance, and restorative justice work.

The kind of synthetic thinking that a course thread invites is particularly critical at this moment when signs of change are everywhere and yet evidence of mass incarceration shape shifting and hardening into the American landscape is undeniable.  Compared with the mid 1990s, when a broad consensus on expanding extreme punishments (life imprisonment, the death penalty) for felons that were perceived as threatening every corner of America, including its supposedly safe suburbs (remember Polly Klass), the climate of political discussion has changed dramatically. Decriminalizing or even legalizing soft drugs like cannabis, and ending routine incarceration for even dealers in hard drugs has become politically acceptable, while a wide range of political leaders call for strategies to reduce our reliance on incarceration for public safety (read Barry Krisberg's contemporaneous article here, may require library id).  For three years, from 2009 to 2013, the nation’s prison population actually dropped in absolute numbers as releases crept over admissions. At the same time, powerful narratives of the imperative to incarcerate “violent”, “sexual”, and “serious” crime remain fully active despite a dramatic drop in violent crime since the 1990s.  These terms, are inextricably embedded in racial meanings that are likely both historical and cognitive in operation, which means a carceral geography refocused on repressing crimes of these types will produce the same kinds of degrading policing, prosecution and imprisonment that we have now (only slightly smaller in scale).  We do not even have confidence that the latter point will be true.  In 2013, according to the federal government’s latest statistics (the prison population ticked up by a fraction (thanks to immigration based population growth our incarceration rate, prison population compared to overall national population, continued to tilt down).   The struggle to overcome mass incarceration and its pervasive effects on the US population and landscape will take a generation or more, and it will require large numbers of active citizens with a commitment to see the job done.  Those citizens will need not a broad toolkit of analytical frames and historical insights to address not just mass incarceration as it exists today but in the myriad of forms it is likely to take as the current crisis of legitimacy either deepens or stabilizes (its is already shape shifting before our very eyes). 

This years marks the 50th anniversary of the year Civil Rights as a social movement triumphed in its half century long quest to outlaw “Jim Crow” segregation with the passage of the Civil Rights Act of 1964, today the major platform for equal rights in employment, education, housing and commerce.  Segregation quickly lost its defenders, and its public narratives.  What remained however were pervasive patterns of residential and employment segregation that has tended to reproduce itself.  Today we live with far higher levels of segregation than activists would have settled for in 1964.  I’m not counting on being there, but I invite readers to hold this moment accountable in 2034, or 2064, did we end mass incarceration or did it simply shift its shape, reframe its narratives, and morph into a new carceral normal?

Tuesday, August 26, 2014

Ferguson and Human Dignity

Michael Brown was buried yesterday (August 25, 2014) in St. Louis, near his hometown of Ferguson, Missouri. As the world knows by now, two weeks ago the eighteen-year-old recent high-school graduate was shot six times and killed by Ferguson Police Officer Darren Wilson. Michael Brown was unarmed, and the reasons for Officer Wilson’s actions have yet to be publicly explained. In a recent post, Professor Alessandro De Giorgi of San Jose State University (and editorial board member of Social Justice) puts those still unclear facts into the very clear context of what he aptly describes as the “complex penal machinery that has gradually colonized the US public space—from schools to university campuses, from urban centers to gated communities, from shopping malls to public transportation systems.” As De Giorgi argues, deaths like Michael Brown’s are routine in the age of mass incarceration. The protests in Ferguson this month have helped a great deal to broaden public knowledge and media recognition of how that “penal machinery” looks and feels to minority citizens in America. But as De Giorgi would insist, the future will look a lot like the present unless the larger structure upholding a war on segregated minority neighborhoods is brought to an end.

Short of outright defeat by the enemy (always unlikely in asymmetrical conflicts), wars end when the moral legitimacy that underwrites the mass complicity required in any modern bureaucratic society collapses. Images of human suffering and human fragility play a big a role in creating such moments of delegitimation. For my generation, the news photograph of a young Vietnamese girl running naked down a road to escape burning napalm behind her seared our consciences and will remain with us until our death. The photograph taken by AP photographer Nick Ut outside Trang Bang, Vietnam, in June 1972 (read about the photograph of the “napalm girl” here) embodied the war’s illogic and cruelty for a growing majority unwilling to consent in its prosecution. Napalming little girls to prevent even something as feared as communism from emerging in South Vietnam came to seem intolerable to all kinds of Americans who were not in any way radical. Although we do not always name them as such, moments when the organized violence of war is delegitimized are moments when human dignity emerges and becomes a counterbalance to the trust in authorities and the bureaucratic layers that separate the organized violence of war from its alleged beneficiaries. It is in these moments that people start demanding change.

Perhaps the most searing images out of Ferguson are the many captured by cell phone cameras and videos that show the uncovered body of Michael Brown, already dead, lying with his terrible wounds exposed for more than four hours on a hot summer day (read the NYTimes article on the treatment of the body here). In the aftermath of Michael Brown's funeral, it is fitting to recall how fundamental the treatment of dead bodies is to the humanity of those bodies and the decency of the society controlling them. Funerals, which are routine even for those who place little faith in religion, are a great expense in money and emotions, and seem to serve no practical goal. Searching for utilitarian rationales, we can see their function as allowing psychological or emotional healing. And this is because of something more fundamental: the human dignity that inheres even in a body from which life has departed. This human dignity, which outlasts life, demands respect for the body. The failure of the Ferguson Police Department and their colleagues to accord Michael Brown’s body that respect communicated in the most explicit way their failure to see his humanity. Nor was this a context that allowed degrading behavior to be overlooked by the vast majority. Whatever happened moments earlier, Michael Brown was no cop-killer; he was a victim with six bullet wounds in him, some of them terrible. Like the horrific photographs of lynchings, the exposure of the abused and killed body is as shocking as the death itself. The failure of those police officers to cover Michael and his wounds was an affront to both his human dignity and to the fundamental decency of our society.

Mass incarceration and the penal machinery that operates in segregated neighborhoods all over America has long enjoyed a low visibility that has allowed its fundamental inhumanity and basic lack of decency to be ignored by key institutions necessary to American democracy—journalists, courts, and ultimately popular expression of non-consent. In my recent book, Mass Incarceration on Trial: A Remarkable Court Decision and the Future of American Prisons, I discuss the role that images of suffering and chaos in California prisons played in compelling the Supreme Court to uphold a radical order to reduce prison population. Like the images of Ferguson, those photographs of suffering prisoner bodies only do the work of delegitimation when viewers can acknowledge the humanity of those depicted. They work against the odds of enormous cultural prejudgment that authorizes violence against “dangerous” others, especially young male black and brown bodies or anyone convicted of a felony.

The control bureaucracies, which find themselves on the defensive at such moments, have powerful discursive resources to dehumanize those whose suffering might otherwise end our complicity. Violent crime, especially when it can be linked to minorities, has been a crucial locus of mobilizing popular consent to the wars on crime and drugs since the 1970s. Images of looting and claims of violence in New Orleans during the aftermath of Hurricane Katrina in September 2005 shut down a cycle of growing sympathy for people trapped in New Orleans and outrage at the Bush Administration’s clear indifference to their fate. That has not happened this time. Neither the images of looting and violence nor the video showing Michael Brown stealing cigars and shoving a store clerk has stalled the cycle of sympathy and outrage that continues to resonate from Ferguson.

Human dignity arose on the streets of Ferguson, hovering over Michael Brown’s body, growing ever larger as that body was degraded in the hot sun. Not his soul or his ghost, but the specter of the humanity he shared with all of us. May Michael Brown rest in peace. May Michael Brown’s proper funeral in St. Louis bring comfort to his family and friends. May the specter of human dignity walk the streets of Ferguson for a long time, forcing all of us to decide whether we wish to belong to a decent society.

Cross Posted from Social Justice

Tuesday, July 29, 2014

Inhumanity: The Real Problem with Mass Incarceration

We may disagree on who belong and who does not belong in prison, or on how long prison sentences should be, or what goals those sentences should be meted out to accomplish those goals, but one thing we should not, must not disagree on, is that those prisons should be humane.  What is humane?  Humane means, treating a person consistently with their status as a human being.  In other words, recognizing their humanity.  As I argue in my new book, Mass Incarceration on Trial: A RemarkableCourt Decision and the Future of Prisons in America, the real problem with the prisons of mass incarceration in America is precisely that they are inhumane and incapable of respecting human dignity.  This core reality of mass imprisonment came to light in an agonizing slow series of cases that began in the early 1990s with two law suits challenging  California’s treatment of prisoners with psychiatric disabilities resulting in sweeping orders to reform both California’s notorious Pelican Bay supermax prison, and to reform mental health care and suicide in prisons throughout the state.  It continued in 1999 with a lawsuit arguing that the same indifference to the suffering of prisoners gripped by disease was true for physical illnesses and injuries as well.  Finally, in 2011, the Supreme Court upheld the largest prison population reduction suit in history, Brown v. Plata 131 S.Ct. 1910 (2011), in order to allow adequate medical and mental health care to be finally established.

The Brown decision, although broad in its demand that prisons respect human dignity, focused in deep detail on California’s degrading prisons and chronic-hyper overcrowding.  The question remains, is California an outlier? Is the problem mass incarceration or badly managed mass incarceration?  Recent media coverage from around the country, possibly sparked by the Brown v. Plata case, is bringing to light remarkably similar problems around the country.  The plight of prisoners with significant psychiatric disabilities is a ubiquitous feature of this national problem.  The very presence of such prisoners is a clear sign that the legal system (not just prisons) do not treat people convicted of felonies as individuals with particular circumstances and features that condition both their crimes and the kind of prison time they are likely to do, rather they are imprisoned indiscriminately on whole categories of people (that’s the mass in mass incarceration).  Their treatment in prison is a sign of something else, a prison order based on war model where prisoners are an enemy force to be contained or if necessary crushed.

In a powerful example of such documentation Erica Goode in the NYTimes tells the story of Charles Toll, a 33 year old man suffering from diabetes and serious psychiatric disabilities, who died of asphyxiation after a “cell extraction” from a supermax cell in a Tennessee state prison (read the article here, one of a series titled “Locked In” intended to document prison conditions nationally).  Toll had sprayed correctional officers with an unknown liquid (prisoners in supermax cells have been known to “gas” correctional officers with a mixture of urine and feces) and correctional officers had decided to perform a “cell extraction.”
Outside the door of his solitary confinement cell at Riverbend Maximum Security Institution here, five corrections officers in riot gear lined up, tensely awaiting the order to go in. When it came, they rushed into the small enclosure, pushing Mr. Toll to the floor and pinning him down with an electrified shield while they handcuffed him and shackled his legs.

Such operations are not the exception.  They are routines.

In some institutions, extraction is viewed as a last resort. Training emphasizes the need to defuse the situation in other ways if possible, and extractions are tightly supervised. Special care is taken when mentally ill inmates are involved.
But in many facilities, training is minimal, supervision is lax and forcible removals are conducted reflexively, with little or no attempt at alternate solutions. Corrections officers who are so inclined can easily turn the process into a vehicle for beatings or other prisoner abuse.

More importantly it is deeply embedded in the logic of mass imprisonment.  The very same issues and behaviors were the subject of Madrid v. Gomez 889 F. Supp. 1146 (1995) in which a federal judge found such indiscriminate and violent cell extractions and keeping prisoners with serious mental illnesses in supermax conditions both cruel and unusual punishment in violation of the 8th Amendment.  Despite the fact that courts in other parts of the country have agreed with Madrid, it is clear that state prisons continue to ignore the constitution.  Why?

The story of Charles Toll highlights a number of features of mass incarceration that are endemic to it and which tend to reproduce themselves across the country.


  • Prisons incarcerate lots of people with serious psychiatric disabilities.  These disabilities are probably largely responsible for their crimes but prison regimes do not treat these problems, but rather deny and ignore them.
  • Prisons rely on supermax units (where prisoners are isolated from all programming and other prisoners and let out of their cell only one hour or two a week for showers or exercises), not just for “worst of the worst,” but as a routine tool to “manage” recalcitrant prisoners.
  • Prisons generate and exacerbate, chronic illnesses, physical ones like diabetes, and mental ones like schizophrenia, depression, or bi-polar disorder. That did not make much of a difference in the past when prison sentences mainly went to young and relatively fit men, and were for the most part short.  Today, when prisoners are older and in worst physical shape, and prison sentences last far longer, prisons are becoming engines of disease.  For the individual this can mean a lifetime of deeper illness and suffering (what I call “torture on the installment plan”).  For the government, which after the Affordable Care Act has become responsible for financing the health care of the poor in America which includes most of the incarcerated and formerly incarcerated, this an explosive source of cost inflation.
  • Prison officers do not view themselves as involved in rehabilitation (despite the label correctional officer), or even protection of prisoners, but instead in a tense containment of an enemy mass that can degenerate into lawless war at any time.  The only form of recognition that is routinely given to prisoners as individuals tends to be directed at humiliation.  This is not a result of hiring sadistic, but a predictable result of operating prisons.  Research since the famous “Stanford Prison Experiment” has shown that custody regimes predictably turn “guards” and “inmates” into enemy armies highly motivated to hurt and humiliate each other unless systematic steps are taken to counter act that tendency.
These features frequently lead to torture-like conditions when combined with the chronic illnesses (both mental and physical) they give rise to, and make it impossible for prisons to respect the human dignity of prisoners or of the correctional officers.  They lead to the conclusion that mass incarceration itself, that is policies which indiscriminately send people prison based on crime or criminal record with out individual consideration, is unconstitutional.  Human dignity, according to the Supreme Court majority in Brown v. Plata, “animates the Eighth Amendment.”  It is clear that the kinds of conditions described in this and many stories violate the constitution, but it will take innumerable lawsuits and decades of litigation to enforce that individually.  Instead we badly need a national commitment to restoring humanity to our prisons.  At a minimum that will require reducing the chronic overcrowding that exists in more states than not, by dismantling the web of state laws that indiscriminately send people to prison and which extend prison sentences beyond all rational penal purposes despite the grave risk of prolonged incarceration on mental and physical health.

 

Thursday, July 17, 2014

Life in Prison with the Remote Possibility of Death: The Death Penalty and California's Broken Punishment Paradigm

Judge Carney's 39 page opinion finding California's death penalty is already setting off a wave of debate in the media. We will see yet whether it catches any political fire in this dry but so far politically placid season in California.  There is much to recommend in the opinion (read it here courtesy of the LA Times).  At its core is an unassailable principle of contemporary 8th Amendment law, that a sanction as severe as death cannot be administered arbitrarily.  The constitutional basis of the contemporary death penalty is that the statutes "narrow" the realm of death eligible crimes so that a rational basis existed for distinguishing those convicted of murder and sentenced to death and those convicted of a similar murder and given life.  Judge Carney reviewed California's system that has handed out around 900 death sentences, but only executed 13 people, and concluded that the system was unconstitutionally arbitrary because no rational basis exists distinguishing those actually executed from many not, and likely never, executed.  His conclusion, summarized in our title quote, is that a death sentence in California is actually a sentence to "Life in Prison with the remote possibility of death." That is not what the Supreme Court decisively upheld as constitutional back in the 1970s (see Gregg v Georgia 428 U.S. 153, 188 (1976))

The Judge also turned to an analysis of the purposes of punishment that is increasingly central to 8th Amendment analysis of both death and long prison sentence cases.  Clear Supreme Court doctrine makes clear that only two (deterrence and retribution) of the four classical purposes of punishment (those plus rehabilitation and incapacitation) can justify the death penalty.  Why?  In a nutshell, long prison sentences can deliver as much rehabilitation and incapacitation as death, so if such a severe sanction can be justified on penal grounds it must be on deterrence (scare potential offenders) and retribution (satisfy community/victim outrage at a particularly heinous murder).  Here few will argue with Judge Carney's bottom line argument that whatever deterrent or retributive value executions might have in a system (Texas? Virginia?) that delivered them more efficiently and effectively (of course those systems may violate other constitutional rights in order to achieve high execution rates, probably do), California, where delay between sentence and execution (if it ever occurs) is around 25 years, cannot deter or deliver retributive justice.

Proponents of the death penalty are and will argue that the delay argument is flawed because the system can be fixed to speed up executions.  This is the crux of Judge Carney's analysis.

California’s death penalty system is so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death. Of the more than 900 individuals that have been sentenced to death since 1978, only 13 have been executed. For every one inmate executed by California, seven have died on Death Row, most from natural causes. The review process takes an average of 25 years, and the delay is only getting longer. Indeed, no inmate has been executed since 2006, and there is no evidence to suggest that executions will resume in the reasonably near future. Even when executions do resume, the current population of Death Row is so enormous that, realistically, California will still be unable to execute the substantial majority of Death Row inmates. In fact, just to carry out the sentences of the 748 inmates currently on Death Row, the State would have to conduct more than one execution a week for the next 14 years. Such an outcome is obviously impossible for many reasons, not the least of which is that as a result of extraordinary delay in California’s system, only 17 inmates currently on Death Row have even completed the post-conviction review process and are awaiting their execution. See Appendix A. For all practical purposes then, a sentence of death in California is a sentence of life imprisonment with the remote possibility of death—a sentence no rational legislature or jury could ever impose.
Those who insist that California could have a "normal" death penalty (whatever that means) quickly enough has to address Judge Carney's assessment of the overall system (which includes the paralyzed legislative politics around capital punishment) and its incapacity.  More importantly, those prisoners who have already served more than twenty-five years have an excellent argument that whatever might be true in the future, to execute them now after being degraded or even tortured by decades of uncertainty violates the Eighth Amendment.

Judge Carney's opinion now joins the 3-Judge court opinion on California's mass incarceration system upheld by the Supreme Court in Brown v. Plata (2011) in condemning not the means of punishment but the political system in California whose highly politicized and inconsistent crime policies has produced forms of both capital punishment and imprisonment that violate the Eighth Amendment and offend human dignity.  California, the homeland of governing through crime for decades, needs not just realignment and a repeal of capital punishment, it needs a re-boot of a fundamentally broken justice paradigm (for further details of what might replace it see the last chapter of my new book Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America (New Press) out next month)

It is not clear this case will ever be reviewed by the Supreme Court (because the facts are so California specific it is unlikely to establish a precedent for other states), but the question whether even to appeal to the Ninth Circuit Court of Appeals provides Attorney General Kamala Harris, who has already distinguished herself as having a pro-active system view of California's justice problems, to make the case to Californian's that Judge Carney (appointed by President George W. Bush) is right and California's current law does not deserve a defense in the appeals court.  An opponent of capital punishment who has both pragmatic and principled reasons to be reluctant to impose her views on California voters who remain highly divided, she could invite the legislature and citizen initiative groups to propose new capital statutes and put them before the voters.  The backlash at converting existing death row inmates to life without parole will be brief, and easily answered by Judge Carney's findings that almost none of them faced an actual likelihood of execution (one suspects it will be further muted once word of massive unhappiness among the current occupants of death row at being transferred into California's degrading prison system will further allay political damage to the Attorney General from pro-death penalty voters).

Wednesday, April 30, 2014

A Botched Execution

To "botch" something is to carry out a task "badly or carelessly."  Oklahoma's botched execution Tuesday, April 29, 2014, demonstrated that word in its absolute in-glory.  (read the New York Times account here).  Badly?  Executions always cause at least psychological pain.  Even if everything goes perfectly, the physical pains involved in injecting the drugs may not be trivial either, especially when stripped of its normal healing association and replaced by the grimmest. Still, an execution can be carried out badly in countless ways when it causes additional anxiety, humiliation, and physical pain.  The execution of Clayton Lockett as witnessed by reporters was badly done in just this sense.  Prison officials said Lockett's vein "exploded."  Lockett was seen to writhe and shake uncontrollably, attempted to rise up from the gurney to which he had minutes earlier been completely strapped down, and cried out "man"; all after execution officials had announced him unconscious.  Officials apparently blamed the condition of Lockett's veins and further investigation is promised, but these events are extreme for executions in the modern era and fully profile the case that defense lawyers have been making for years that lethal injections in some cases can amount to torture.

But where Oklahoma Governor Mary Fallin and the State's legislators wrote the book on botched is on the "carelessly" branch of the term.  In their zeal to assure a supply of lethal chemicals to kill prisoners at a time when supplies have become scarce due to international revulsion at American capital punishment, Oklahoma politicians passed a law shielding the sources of the execution drugs and adamantly refused defense requests for information about their origins.  When the Oklahoma Court of Criminal Appeals (the state's highest court for criminal appeals) refused to stay the execution despite a lower court having found that Lockett's had right to information about the drugs,  the Oklahoma Supreme Court, which has no regular jurisdiction over criminal appeals, stepped in to issue a highly unusual stay in the interests of justice, only to retreat after the Governor and legislature furiously attacked the jurists, threatening to ignore their decision and impeach them as well.

Not content with having bullied the courts out of the way, and eager to show how trivial defense concerns about the execution drugs were,  Governor Fallin ordered a double execution, a rarity in the modern era and the first in Oklahoma since 1937.  Executions, even when they are not botched, exact a horrible toll on remaining prisoners (both those on death row and in the general population) and on prison staff.  A double execution is a heinous act of cruelty on the entire prison system which  was motivated by the unseemly rush to see executions carried out before courts could fully examine the defense arguments that these lethal chemicals might cause extreme pain to Clayton Lockett and other condemned prisoners.

Careless is not just bad, in a real sense, its evil.  You can do something badly for a lot of reasons (often conflicting interests or roles) but to do it carelessly is to do it without care.  When we say that carpenter was "careless" in building a stair case that collapsed, or a designer was careless in designing an automobile that crashed, what we really mean is that they did their task without caring about the humanity of those who would walk on the stairs or drive the car.  Governor Mary Fallin and Oklahoma officials rushed an execution without caring about the humanity of Clayton Lockett and Charles Warner.  In doing so they raised serious questions as to whether Oklahoma's death penalty inherently violates the Eighth Amendment which as been recently found to be animated by respect for human dignity.

...And then they botched the execution.

Austin Sarat shows in his just published (and incredibly timely) book Gruesome Spectacles: Botched Executions and America's Death Penalty (Stanford 2014) Oklahoma's botched execution may be textbook but it's not unique.  Botched executions are persistent theme in America's capital punishment history, largely fueled by our national combination of uncertain respect for human dignity, and misplaced technological optimism.

By the way, the intensity of Oklahoma's leaders in their pursuit of retributive justice should be put in context of their general lack of interest in governing.  The state ranks 44th in overall poverty, 43 in infant mortality, 47 for cancer mortality.

Thursday, March 20, 2014

Dying Inside: Lifers, the Dying, and California's Correctional Paradigm

Before the hospice program started by prison chaplain Lorie Adolff, dying prisoners in California's state prison in San Luis Obsipo (California Mens Colony) just expired alone in their cells, with prison nurses looking in periodically until their vital signs ceased.  Her project, Supportive Care Services, trains other prisoners, most of them lifers, to sit with and comfort dying prisoners.  The hospice, featured this morning on KQED's California Report (listen to it here), sounds deeply moving and likely a powerful healing experience for everyone involved.  I have had the privilege of being at the bedside of the dying myself (my father) and I have no doubt that that small space is one of freedom and transcendence even in the midst of prison.  It has been movingly described in the correctional setting before (see Ben Fleury Steiner, Dying Inside).

Any bit of humanity and kindness is worth encouraging, but I hope the prison hospice is an idea that spreads fast enough to put itself out of existence.  First, by underscoring the barbarity of California having a large stock of aging "lifers" fated to die in prison (perhaps alone at the prisons that do not have a Lorie Adolff on staff).  There is no penological justification for allowing people to linger in prison long enough to die of  old age after serving decades in many cases.  Prison is, for the moment, our society's way of expressing moral outrage against heinous crimes and protecting the community against people with a habit of using violence to get their way, and spending a piece of your life in a humane prison may be considered justly deserved punishment for crimes that deprive other people of their lives or physical or mental integrity.  But prison sentences must have limits to be rational and just and almost everyone agrees that  California's years of penal populism led legislators and prosecutors to produce sentences that having little relationship to either moral desert or risk.

Prison hospices might help eliminate themselves by driving home a different point.  Prisoners experience change.  Prisoners can change through the the kind of work described in the Supportive Care Services project in which they touch their own humanity.  Prisoners also change through the processes of aging and recognizing the profound gifts of family, community, and freedom.  Our current correctional was built on the premise that such change does not happen, but it happens constantly.  Its the paradigm itself that remains caught in a kind of time warp, like a 1980s mainframe where the calendar is permanently locked on September, 1971.

We now know that crimes are highly situational, contingent, dynamic events.  The best way to reduce crime, even violent crime, is to identify and interrupt the spatial/temporal patterns of human activity that presage and promote violence.  Prison does not do that (by and large, used precisely it might).  Our current mass incarceration policies were baked into our correctional commonsense back in the 1970s (remember when lapels were wide and Jerry Brown was Governor).   Back then most criminologists were throwing up their hands at any way to stop the escalating violent crime rate and some endorse increased prison sentences as the only hope.  Crime went down long after prison populations skyrocketed and even the most supportive criminologists credit incarceration with no more than a quarter of the national crime drop that occurred in the 1990s.  California's heavy investment in incapacitation has been particularly counter productive.  Indeed, having abandoned rehabilitation and reentry, California allowed the formation and stabilization of a racist gang system in prisons that helps prevent prisoners from desisting from criminal lives and life styles.  (Even the gangs have evolved as the recent peace calls and hunger strike suggest, and I currently rate the gangs and the correctional officer's union more ready for change than California's fear based correctional leadership).

Prison hospice can indeed be a model for prison projects that breed a sense of humanity in everyone involved, which both prisoners and prison officers need to prevent dehumanization and demonization from setting in.  But all prisoners need a realistic hope of life on the outside if prison is to be a truly humane and penitential place.  Dying on the inside may happen, when arrangements cannot be made quickly enough for compassionate release or when a prisoner prefers to remain among close prison friends, but dying on the inside should be a rare and unfortunate event.  Governor Brown, to his credit, has unblocked California's executive heavy parole process but it is still far too slow, too cautious, and a huge backlog remains.  Far too many prisoners remain caught by long determinate sentences that do not allow for parole.  Governor Brown, who faces no real challenge to a second term, should use his executive clemency powers to speedily move aging prisoners out of prisons, with those needing the most health care the first in line.  This would help the state cope with the Brown v. Plata medical and population orders and begin to create a climate of compassion and dignity in which the state might begin to revise its pointlessly punitive sentencing laws.