Tuesday, July 19, 2016

Play Review: The Box by Sarah Shourd

It's hard to say that watching The Box, Sarah Shourd's new play, was a pleasurable pastime. But it was an important play, incisively written, beautifully acted, and impressively produced, that could not leave the audience indifferent.

The Box is a play about solitary confinement. In a cleverly constructed set of six cells, approximately the size of a real SHU cell, sit six prisoners. Some are there for a brief disciplinary interlude; some have been there for years. Shourd's characters are fictional, but their biographies are reminders of real people in solitary, such as the Angola Three and Todd Ashker.

With the views, video projections, and convincing soundtrack of noises, we are transported to a world of cruelty and deprivation. We meet different people, who approach the reality of their situation in different ways. We see them in conflict; we see them in solidarity; we see them at their noblest and basest. Shourd, who has spent years fighting solitary confinement ever since her release from Iranian prison, based the play not only on authentic dialogue, but also on genuine proceedings in solitary (the play takes the trouble of taking us through the routine of getting people out for visitation, including the wait time of the visitor.)

The play is also a reminder of the importance of solidarity and interracial unification. It includes a brief and stylized version of the two Pelican Bay hunger strikes, complete with the court order to force feed the inmates that ended the second one. I highly recommend this unforgettable experience to anyone, especially those who have not yet become embroiled in the struggle to end solitary confinement in California.

The Box plays at Z Space until the end of the month. For tickets, click here.

On the Ballot: CA Propositions on Criminal Justice, November 2016

It's pretty early to start talking about these, n'est ces pas? But it's not too early to start thinking about the November election as an opportunity for positive change. Here is a roster of the statewide propositions addressing criminal justice issues, with some initial thoughts. We will take each in turn in the coming weeks.

YES on 57: Civil and Criminal Trials

This is the Jerry Brown proposition, which essentially does two things: takes the authority to file charges against juveniles out of the hands of prosecutors and places it back in the hands of judges (this bit is a no-brainer. OF COURSE it's a good idea) and offers incarcerated folks the opportunity to earn more good credits on their path to release, resuscitating some version of parole for non-lifers. As to the latter part, the devil's in the details, but even at its worst, it won't make people's sentences worse than they are now. There's nothing to lose by saying yes, and moreover, any day someone with a proven rehabilitation record spends outside, working, paying taxes, and quietly living his/her life, is not a day you pay taxes to house him/her.

YES on 62: Death Penalty Repeal

We came close in 2012, and this is our chance to finally join the industrialized Western world and get rid of a punishment that does not serve us well. If you're philosophically inclined, ask yourself what you think about state-sanctioned killings. If you dislike miscarriages of justice, ask yourself how comfortable you are with executing innocent people. If you feel the system is racially biased, here's one classic setting where that is abundantly clear. And if none of these things matter to you, perhaps, like me, you think that $150 million a year is a pretty extreme expenditure for keeping 750 old and sick folks in a dilapidated facility, paying for their endless appeals and habeas, and letting them, for the most part, die of natural causes. Remember: you are not voting about the philosophical appeal of a theoretical death penalty, but rather about the ridiculously expensive, ineffectual, and non-deterrent process we have now in place. Let's say goodbye to this archaic festival of waste and punitivism once and for all.

YES on 64: Marijuana

This legalization proposition is a considerable improvement over its 2010 predecessor. That one was imperfect, and as you recall, I recommended a "yes" despite of its imperfections, because whatever we do, we can't go on doing what we're doing now. Arrests, trials, and convictions, have not impacted the marijuana market at all. Taxation and regulation might--if we do a clever job at setting price points and the appropriate sales tax. Two things have changed since 2010 that make this one a stronger pitch for you: the feds have fairly consistently stayed out of the business of states that legalized recreational marijuana, and we have the experience of five states who legalized and the sky didn't fall down. There are some complicated implications that this proposition might have on marijuana use rates, and we will discuss them in the weeks to come--as well as the reasons why this is of no particular concern in California.

NO on 66: Death Penalty Reform

This is the District Attorneys' Association's horrible response to 62, which consists of something similar to what happened in Florida a few years ago. The idea is that the death penalty is, indeed, broken, but that it can be reformed, and by taking away important constitutional protections, and "streamlining" (read: removing) options for post-conviction relief we can "cure" the delays in its administration and save a bit. This is only a good option if you are indifferent to the risk of executing innocent people or don't care much for state misconduct, which is sure to result from it--it might be cheaper, but also considerably more cruel and stupid. If you feel that the death penalty is too costly or cumbersome, let's get rid of it altogether, rather than serve a barbaric version of it with a side order of miscarriage of justice. NO NO NO.

Thursday, May 26, 2016

Long Sentences for Juveniles: Does Parole Fix Everything?

Today, the California Supreme Court decided People v. Franklin in a way that probably had both the defendant and the state feeling unsatisfied.

The story is tragic in the same way that too many stories are: Tyris Lamar Franklin, 16 years old, was in conflict with other teenage boys, whom they referred to as the Crescent Park Gang. Shortly before the crime, the Crescents fired multiple shots into the apartment where Tyris lived with his grandmother and brothers, and attacked Tyris' 13-year-old brother. In retaliation, Tyris shot and killed Gene, a boy who was associated with the Crescents but who had nothing to do with the attack on the little brother.

Under California law at the time, the judge had no choice: he had to sentence Tyris to 25-to-life for the murder and to a consecutive 25-to-life for the weapon enhancement. The math is easy: Tyris would come up for parole for the first time after 50 years, at the age of 66. But the judge felt very uncomfortable with this decision. His explanation of the sentence echoes not only his grief and frustration with the unnecessariness of the crime AND the punishment, but also his thinking, which was influenced by the new Supreme Court line of cases, starting with Roper v. Simmons and continuing with Graham v. Florida. These cases relied on new findings in neuroscience and developmental psychology, which suggest that juvenile brains continue developing well into their mid-20s, and that until their prefrontal cortex is fully developed, they are less capable of thinking about consequences, factoring in long-term considerations, and resisting peer pressure. Reflecting this "rediscovery of childhood" perspective, the judge said:

The sentence is the sentence that‘s prescribed by law, not one that the Court chooses. And I will impose it in this case, but first I just want to say a couple of words to both families. I see a lot of pain in this courtroom all the time. And so often it‘s because of senseless things that happen. And if there‘s a senseless case, this is a senseless case. We‘ve got two young men‘s lives destroyed. . . . We‘ve lost two young men. And for what? It‘s so senseless. I would have loved to have seen these two young men grow up to be people, to be the people they‘re supposed to be, both of them. And neither of them is going to have that opportunity. It‘s because of unspeakably stupid choices that you made, Mr. Franklin. And I just hope that something can come out of this that‘s productive. I‘m impressed with Gene[‘s] . . . family‘s dignity going through this. Their empathy for Mr. Franklin‘s family and even Mr. Franklin. And I‘m impressed with Mr. Franklin‘s family‘s understanding and empathy for [Gene]‘s family. And if we can take something from this, I would love for it to be, get the guns out of Richmond, get the violence out of Richmond, and don‘t have these young black men going after each other because we see it so much in this courthouse. And what ends up happening is we have some young men going to prison for the best years of their lives at the least, and other young men who don‘t get to grow up. And how crazy is this? How crazy. So if both families can do anything to try to make some sense and find some good out of this, work together to try to get the guns out of Richmond, get the guns out of the pockets of these young men who haven‘t got the frontal lobes yet to figure out how to deal with their issues.

Shortly after Tyris Franklin was sentenced to 25 + 25, the Supreme Court decided Miller v. Alabama. Under Miller, mandatory life-without-parole schemes for juveniles are unconstitutional. Even before the Supreme Court's subsequent decision in Montgomery v. Louisiana, which applied Miller retroactively, California was already searching for ways to fix these problems. One such way was through SB 260, later codified as Penal Code 3051, which provides a special "youth offender hearing" before the parole board. For someone serving a sentence like Tyris Franklin's, that would mean a parole hearing after 25 years, in lieu of the 50 that the law provided before the amendment. Moreover, under the new law, the board is encouraged to take the person's age when the offense was committed into account in a serious way. For evidence that the parole board takes the "rediscovery of childhood" perspective seriously, see their recent decision recommending Leslie Van Houten's release.

The California Supreme Court found today that the "youth offender parole hearings" provided by Penal Code 3051 preempted Franklin's argument that his sentence violated Miller, because he is already eligible for the "fix" via an earlier parole date. Nonetheless, the Court remanded the case to determine whether Franklin was able to fully present evidence as to his level of maturity, which won't make a difference for the sentence but will make a difference twentysomething years from now on parole. It's a bit of a "neither here nor there" decision. The state representatives would say: if the sentence is fine, and if there's evidence in the judicial explanation that the judge was aware of youth issues, why not take that into account? And Franklin would say: if the judge clearly was unhappy with the mandatory sentence, and the mandatory sentence was unconstitutional, why not give the judge a chance to fix this at resentencing, rather than waiting twenty-five years?

Part of the discomfort with relying on the parole "fix" in this case relates to the proximity between Miller and Franklin. Even though, legally, it doesn't matter whether the case we're remedying with a parole hearing happened one day or fifty years before Miller, it somehow feels different. When the Supreme Court decided Montgomery, Henry Montgomery was in his late 60s, having served fifty years behind bars for a crime committed when he was a teenager. A parole hearing to release him could be held immediately. Here, by contrast, the result is that with the "fix", which was just held to preempt the constitutional channel, Franklin has to wait more than twenty years to argue something that we know the judge felt very strongly about as recently as 2011.

Whether or not you think the result in Franklin was constitutionally permissible, the deeper questions about the parole "fix" emerge. We're very good at ratcheting up sentences and we've done a masterful job at forgetting that children were children. And now that we've remembered the difference between youth and adults, it's taking us a very long time to fix things using very small steps, which put a dent in ultra-severe sentences, but are still very far from undoing their destructive effects.

Monday, May 23, 2016

Foster v. Chatman and the Limits of the Sayable

This morning, the Supreme Court decided Foster v. Chatman, a case involving race considerations in jury selection proceedings in Georgia.

There are two types of challenges that the prosecution and the defense may use to disqualify prospective jurors from the panel: for cause challenges, in case there's evidence that the prospective juror is biased and might not be able to decide the case fairly, and a limited number of peremptory challenges, which either side can use for no express reason at all. There is one limitation on the use of peremptories: under a 1986 Supreme Court decision, Batson v. Kentucky, race is not an appropriate reason for a peremptory challenge (J.E.B. v. Alabama extended this decision to gender.)

In cases in which a party suspects that the other party is disqualifying jurors due to their race or gender, that party needs to prove a prima facie case that there is a systematic pattern of disqualification. If successful, the ball moves to the other party's court, and they have to provide a race-neutral (or gender-neutral) reason for the disqualification. The reason need not be a good one; after all, if there were a good reason they could have used a for-cause challenge. It just needs to be unrelated to race or gender. Then, the court has to decide whether the challenges were race or gender based.

Foster, an African-American man, was charged with the sexual assault and murder of a 79-year-old white woman. The prosecution, which under Georgia law has ten peremptory challenges, used nine of them, and four of those were used to strike all four black prospective jurors. Foster immediately lodged a Batson challenge, which the court rejected. And here is where things get dicey.

At the time of trial, the prosecutors provided various race-neutral reasons for their use of peremptory challenges, relying partly on their perception that some of the black jurors were hesitant about the death penalty (which was on the table, given the severity of Foster's crime.) However, on appeal Foster was able to produce the papers on which the prosecutors scribbled notes for themselves. You can see a section of one of those at the top of these post. The prosecutors marked black jurors with a "b" next to their name. In one occasion, a prosecutor scribbled, "no black church" next to a juror's name. The author of those "b" letters and other comments could not be ascertained, but it had to be someone in the prosecutor's office.

The Supreme Court decision analyzes carefully the race-neutral reasons the prosecutor provides, and shows that these were pretextual. Chief Justice Roberts' method of analysis is to compare the black jurors to white counterparts on the panel who had similar circumstances and, yet, were not disqualified. In the Opinion of the Court, he therefore finds these reasons pretextual, "reek[ing] of afterthought", or in short: a mere coverup for the real reasons for the disqualification: race, the reason expressly prohibited in Batson.

From a doctrinal perspective, the decision in Foster is the correct one. I have no doubt in my mind that they got the facts completely right. There is a clear contradiction between the reasons the prosecutors proffered for the disqualifications and the reasons that their paperwork clearly suggests. Their complicated race-neutral explanations easily fall apart when comparing jurors to each other. The court's thorough analysis is a great example for why we need federal review of state practices: federal courts are removed from the judicial and legal climate on the states, and this is especially important in the context of racially controversial proceedings.

It's also a decision that supports solid values, and one that heralds back to the reason the death penalty was temporarily abolished in Furman v. Georgia in 1972: jury selection and trial processes designed to disfavor African American defendants.

And yet, I'm left feeling very uneasy about the lessons prosecutors might learn from Foster. There's no reason to pretend, or be facetious, about consistent social science findings, which confirm again and again that people's demographics--including their race and gender--correlate significantly with their criminal justice perspectives. In experimental settings, when confronted with incidents of police brutality, race is a significant predictor of whether prospective jurors support the police or the suspect.  In mock jury experiments, white male jurors significantly and disproportionately sentence black defendants to death, and influence other jurors to do the same. According to Gallup data, men support the death penalty significantly more than women. With race, the differences are even more stark: whites support the death penalty 75 to 24, whereas blacks oppose it 49 to 44. I could cite dozens, if not hundreds, of studies coming to the same conclusions.

This shouldn't come as a big shocker to anyone. The reason race is influential in forming criminal justice opinions is the racialized nature of criminal justice itself, its history as a system of racial domination, and its massively disparate impact based on race. Some might not like Paul Butler's prescription to fellow African-American jurors to nullify in every case involving race, but at least he's honest about the fact that many folks see our system of incarceration as the battlefront in race war--and with substantial justification.

So what is really going on? Prosecutors, defense attorneys, and judges, all know what social science clearly tells them: that racial identity, and racialized life experiences, are one important and influential way in which people form opinions about the world. They will not excise this piece of information from their memory. What they have learned this morning from the Supreme Court is that they need to find better ways to hide what they know. Indeed, post-Foster, we probably won't see better race-neutral explanations; we just won't see racial notations on papers, and whatever texts the prosecutors might send each other under the table will be deleted before discovery proceedings find what's there. Maybe the prosecution will recur to various real or perceived proxies for race (neighborhood, income, family structure), and maybe, as is increasingly the case, professional trial consulting firms and software will come up with some corporatespeak or sciencespeak that will appear to be racially neutral. Because that's what we do every time a word becomes offensive and unsayable: we put it through the laundromat and it comes out worded differently, within the realm of the sayable, and the discrimination creeps underground.

This is even more depressing considering that the legal system itself has a massively ambivalent approach to the social science truth that demographics impact opinions. Under Taylor v. Louisiana, when the legal process excludes a distinctive social group (again, the clearest cases are race and gender), we don't like this, and the court says that we lose a "distinctive flavor" or a special perspective. In that context, we're perfectly comfortable admitting that a person's experiences--including her race and gender--might impact the way she sees a criminal justice issue. But when the day comes to pick the actual jury, when lawyers draw the exact same conclusion, and use it in a partisan fashion, we get upset and would like them to do a better job pretending that they're not doing that. The difference is that blocking groups of people from the venire and disqualifying individuals, whom you can presumably question to detect bias, are two different types of enterprise. And yet, how much can you possibly learn about a stranger's inner life and worldview in open court?

The bottom line: this decision, while correct and certainly better than the opposite, is a mere band-aid on a problem that is intractable. I cannot see, in the current climate or in any future version of it, a time in which people's racial identity will not be inexorably linked to their criminal justice opinions. Teaching prosecutors to do a better job hiding these considerations from view does not make them less racially motivated; they'll keep their opinions, which happen to be aligned with scientific findings, and become so good at covering their tracks that post-Foster defendants will have a difficult time uncovering them. Holding our nose doesn't make something smell better; it just helps better disguise the smell. If the current presidential campaign teaches us anything, it's that hiding our ugly racism problem under the rug, in the realm of the unsayable, has done little to improve racial equality in the United States. What we're seeing now, when Trump makes the unsayable sayable, is merely the ugly truths that were there all along.

Friday, May 20, 2016

The Ninth Circuit: The Feds are Responsible for the Health of Inmates in Privately-Managed Prison

Petitioner Richard Nuwintore with his attorneys,
Ian Wallach and Jason Feldman, after their Ninth Circuit victory
Today the Ninth Circuit decided Edison and Nuwintore v. U.S.--two cases involving the government's responsibility for the valley fever epidemic at Taft, a federal prison located in Kern County. Taft is owned by the U.S. government but operated by the GEO Group, the second largest private prison company in the country.

Gregory Edison and Richard Nuwintore were sent to Taft without warning about the dangers of valley fever. The disease, also known as coccidiodomycosis, has a severe variation that disproportionally manifests in African American patients. Both Edison and Nuwintore fell ill; Nuwintore, who has been released, is now treated under Obamacare, and Edison is being released soon and will also receive care under Obamacare. The condition is chronic and can make people too sick to work.

Is the United States responsible for their illness? The federal government tried to argue that, under the independent contractor exception to the Federal Tort Claims Act, it cannot be held responsible for the actions of a private contractor. Today, the Ninth Circuit found that, due to the government's special responsibility for the plaintiffs (as their jailer), the exception does not apply and the government is liable. I had the great pleasure to correspond with Ian Wallach of Feldman and Wallach, who told me a bit more about the case:

Walk me through the ownership/operation structure of Taft. I understand that Taft is the only federal facility which is owned by the Government and operated by a private contractor. Why is this arrangement so rare?

Taft is presently owned by the USA, who contracted with Management and Training Corporation back in 2007 to operate the facility.  I don’t know why the arrangement is so rare.  It did create some novel issues with the application of the independent contractor exception.  Colleagues have wondered if it is because of the valley fever issue.  It may sound like a conspiracy theory, but there are some legitimate concerns.  The USA recognized the cocci (another word for valley fever, short for coccidiodomycosis) problem potentially in 1999, and knew some would get ill, and perhaps die.  And the USA has less liability if someone else is operating the facility, even though the USA sends people there.  And the facility is, for unknown reasons, primarily a pre-deportation facility.  That means that people facing low terms, or people about to be deported, are held there.  If they get sick, and are deported, there is not much practical legal recourse available.  Worse than that — there isn’t much access to medical care.  This is why we know of only one fatality from valley fever at Taft, but there may be many more.

Given Taft's unique status as government-owned and privately operated, would the government's responsibility in this case extend to private prisons in which the facility is both owned and operated by private contractors? How much government involvement should create responsibility and prevail over the independent contractor exception?

Sure.  As to the failure to warn claim.  And the negligent implementation of policy claim — if the USA developed and implemented policy.  And if the USA reserved control over any aspect of the facility — as it did here with structural changes.

The test, as adopted by the Court, is “is there an independent basis for liability?”

If yes, then the claim should stand. As to your second questions, people have brought challenges, in other contexts, to the independent contractor exception, asserting that the USA asserted so much control that it didn’t really delegate the duties at issue.  I have some charts with summaries of cases on this issue I prepared for use in the oral argument (which can be seen here).  I should clean them up before circulating them, and today has been busy, but let me know if I should send them along.  The standard was too high for us to meet, so we didn’t make that argument on appeal (we did below).  And we had some independent bases for liability, which we felt was the right way to go.

Should we be concerned about a potential incentive for the federal government to distance itself from inmates and shift any potential liabilities on the shoulders of private contractors?

Absolutely.  And that may be what happened here.  Plus privatization of prisons is messy.  I understand that there is a private prison in Ohio that successfully petitioned to control parole hearings (and even here, parol boards can consider reports by an inmate’s prison in determining parole).  And these corporations have a financial incentive for parole to be denied.  That’s flesh-peddling.

This case involved a federal privatized facility, but as we know, state facilities, which are public, are often public only by name, and much of the health care in California state prisons is privatized. Does today's decision shed any light on questions of liability in this context?

Only to the extent that if you can identify a breach of a separate and distinct duty, and get around any immunity, then your claim should proceed. Today’s case was about federal governmental immunity. This would not apply to private actors (although their attorneys have litigated that it does).

And California has separate immunities.  Which are awful.  In the class action we have, Jackson v. Brown, where 800 inmates need life-long care, and where 40 inmates died, all as a result of infections at Avenal and Pleasant Valley state prisons, the District Court dismissed the case arguing that qualified immunity protected everyone from 8th Amendment claims, because even if the conduct was “cruel and unusual”, there was no “clearly identified right” at issue.  We think it was the right to be housed in a safe facility, but the court claimed it was the right to be in a facility without an excessive amount of valley fever spores, determine by societal standards.  That is on appeal.

There is a great case from the Cal. Supreme Court — Giraldo v. Cal. Dep’t of Corrs. & Rehab., 85 Cal. Rptr. 3d 371 (2008), which we relied on and the 9th Circuit expanded upon in today’s decision, that spoke of the Jailer’s duty to inmates, and set forth a special relationship.  It’s a great read and a positive expression of the law.

As the sad facts in this case remind us, individuals of certain ethnicities are more prone to certain medical conditions; this is true for valley fever, and also for other diseases and chronic conditions. Would this create an incentive for private prison contractors to refuse inmates of certain ethnicities, because their healthcare would be more complicated or costly? And should we resist such bargaining with regulation?

I am not aware of any vehicle where this could occur.  A bidding process is set up to operate a facility, and the bidders know who will be housed there and what is apparently needed, and can request to transfer people away, but no one has to listen to that request.  In three other valley fever cases we have, the contractor argued that they had no say in who they accepted, and the injury was the delegation.  These cases (People v. HammondSutton, and Aluya) were also dismissed on summary judgment — because the court bought it.  This is on appeal too (and you are beginning to see how Eastern District court respond to claims by inmates about valley fever.  Add that there are no attorney’s fees provisions, and these are exhausting mid-level tort cases, so few lawyers fight them.  Which is why these dangerous practices continue, as there is very little accountability).  Regulation is a great idea — but in the interim, I’ll keep suing.

Finally, a big part of today's decision involved the government's duty to warn inmates about the medical dangers involved in serving their prison term at Taft. But if inmates have no choice on where they are incarcerated, what lends this duty legal value?

The failure to warn deprived these individuals of four avenues of redress.  Had they been warned, they could have done the following:

  • Seek an administrative remedy to be housed elsewhere, before ever arriving at Taft.
  • Seek an administrative remedy the day they arrive, seeking transfer.  Most people are infected within the first few months of arrival, but if they are lucky, they could be transferred out before getting infected.
  • Change their lifestyle while there. This is largely a camp facility with tons of leisure time.  Which, if warned, would be better spent inside. 
  • And they can choose not to take certain jobs (like those that involve digging or gardening or any contact with soil).  They can wear N95 filtration masks if they wish.  

And these changes may greatly decrease their exposure.

The Ninth Circuit decision sheds an interesting light on the malleability of the public-private divide in the context of prison privatization. Congratulations to the plaintiffs and their attorneys, and wishes of good health to everyone impacted by the epidemic.

Friday, May 13, 2016

California June Elections: CCC Criminal Justice Endorsements

It's that time again! Elections are afoot and CCC is here with criminal justice endorsements. Our thoughts about the candidates and proposals are limited to their criminal justice and corrections policies, and you obviously may have other considerations in mind. These summaries are here to be useful and informative to the extent that criminal justice concerns drive your vote.

Candidates for Office

President of the United States

Democratic Party: No Endorsement, slight preference for Bernie Sanders

Both Clinton and Sanders have spoken fairly little on criminal justice reform, and when they had it was mostly regarding the issues of stop-and-frisk and police-community relations in the context of Black Lives Matter. Predictably, they both toe the line here: police reform is necessary, racial discrimination is deplorable, and stop-and-frisk are ineffective. Who would actually impact criminal justice matters while in office is a different matter: police-community engagement happens overwhelmingly on the local level, and therefore any declarations on that front would have little impact on people on the ground. The Clinton campaign has done an admirable job apologizing for the 1994 Crime Bill, though its impact on increased punitiveness has been fairly small (again, given its federal scope: most criminal justice policy happens at the state and local level.) Sanders speaks of shutting down the private prison industry, but again, that's a misleading perspective aimed at pandering to progressives--public prisons these days are public only by name, private prisons incarcerate a very small percentage of U.S. prisoners, and the parade of horribles in prison conditions does not suggest that private prisons are significantly worse than their public counterparts. The slight preference for Sanders comes from the fact that he opposes the death penalty (Clinton supports it), though the extent to which the U.S. President can bring about abolition is questionable. No matter how happy you might be with these folks on other matters, we will be pining for the Obama-Holder initiatives and for the bipartisan reform spirit they encouraged for several years to come.

Republican Party: No Endorsement

Trump is a massive nightmare from the criminal justice perspective. His xenophobic, inhumane positions on immigration alone should indicate the extent to which immigrants will be criminalized and detained with him in office. But the others are not much better. With Rick Perry and Jeb Bush out of the race--the only two signatories to Right on Crime, and the only two with solid records of prison closures--we are left with rabid old-skool punitive demagogues. Ted Cruz, who in 2010 seemed a sane voice for criminal justice reform and even co-sponsored legislation to mitigate the effects of the war on drugs, has since then changed his tune and is vocally critiquing President Obama for early releases and mandatory minimum relaxation. Jim Gilmore is a strong supporter of the death penalty, using florid and polarizing rhetoric in describing its appropriateness, and has declined to stay executions under truly horrid circumstances. John Kasich would have been a difficult choice on other policy matters, but in criminal justice he has a solid record of reforms in Ohio, reforming drug programs, closing down prisons, etc. There is still a lot of work to do in Ohio: overcrowding, pay-to-stay jails, and other scourges. But Kasich would have been the far lesser evil in this far-from-ideal roster. As things stand, there's no winning on criminal justice matters with the Republican roster.

United States Senator: Kamala Harris, with some reservations

Kamala Harris is a smart, solid and thoughtful public servant and politician. Her book Smart on Crime shows an ability to think outside the box and her career as San Francisco D.A. was marked by a willingness to work with the Public Defender's Office to introduce initiatives such as Clean Slate. As California Attorney General, Harris' decision to appeal Jones v. Chappell was surprising and hurtful, especially given her personal opposition to the death penalty. Her enthusiasm for truancy courts also raises some questions about whether we are criminalizing people for a phenomenon mostly linked to poverty. But even a cursory glance at the other candidates' statements clearly show her leaving every single one of them far behind in terms of experience, resourcefulness, and, to be honest, sheer literacy. She is our best choice.

United States Representative: Jackie Speier

Speier is running unopposed, but I would pick her out of a hundred candidates. Her unwavering commitment to human rights and her work to expose and eradicate sexual assault in the military are admirable and important, and she has represented us very well. No reservations whatsoever.

Member of the State Assembly, District 19: Phil Ting

Ting hasn't done a whole lot in the field of criminal justice, but he is responsible for an excellent and well-balanced gun control bill, which introduces the possibility of a "gun violence restraining order" for folks found by courts to be a danger to themselves and others. It's a sensible balance between Second Amendment rights and the protection of lives. I've tried, in vain, to find Taylor's positions on criminal justice matters. Ting is the incumbent, and seems to be widely endorsed on other grounds, so I doubt Taylor's odds are that great anyway.

Member of the County Central Committee / Assembly District 19: Angela Alioto

Several good people in that roster, including firefighter and community organizer Keith Baraka, but Alioto has vast experience in San Francisco politics and is a compassionate advocate for the homeless--one of the few people that stood up to Care Not Cash. But you can make other good choices here.

Judge of the Superior Court, Office no. 7: Victor Hwang


All three candidates are qualified and thoughtful: Paul Henderson is an experienced prosecutor, Sigrid Irias is a civil litigator, and Hwang is a civil rights attorney. My preference for Hwang is mostly due to the fact that people with defense/civil rights backgrounds are underrepresented in the judiciary and some balance would be a good thing. Numerous endorsers agree.

State and Local Measures

Only one of these is directly related to criminal justice and that is--

Measure D: Yes, with reservations

Under Measure D, every incident within San Francisco involving a SFPD officer firing a gun that results in death or physical injury would be referred to the Office of Citizen Complaints. In general, more oversight is not a bad idea; sunlight is the best disinfectant, and police-community incidents in San Francisco, including the death of Alex Nieto, the racist and homophobic texting scandal, and others, suggest that there's plenty of work to be done here. However, the measure comes with a $5 million price tag, and would add 6 investigators to an office that is already understaffed with 17 investigators. Some think that the measure is not enough, and the Office doesn't have a reputation for thoroughness where police conduct is concerned. 



Thursday, April 14, 2016

BREAKING NEWS: Parole Board Recommends Leslie Van Houten's Release

In her book The Long Prison Journey of Leslie Van Houten, Karlene Faith provides a contextual account of the 1969 Tate-LaBianca murders by members of the notorious Manson Family. Faith tutored and befriended the Manson girls in prison shortly after their sentences were commuted, and provides a sympathetic and complex account of cult life, brainwashing, and sexual exploitation that places the heinous murders in context.

Faith, and others, like John Waters, have long argued that van Houten should be paroled.

Today, the California parole board agreed with them. For the first time since 1978, and forty-seven years after the commission of the murders, the board has recommended her release. The Los Angeles Times reports:

In prior bids for parole, Van Houten's attorneys have characterized her as a model inmate who has obtained a college degree behind bars and has been active in self-help groups.
At a 2002 parole board hearing, Van Houten said she was “deeply ashamed” of what she had done, adding: "I take very seriously not just the murders, but what made me make myself available to someone like Manson."

This quote from Van Houten represents the operating principle in California parole hearings: inmates can only prevail if they take full personal accountability. The board does not listen to contextual issues, and bringing out the cult context did not do any favors for Van Houten in her second trial in 1979 or at her parole hearings. Nor has the parole board been persuaded by her clean disciplinary record, academic degree, and rehabilitative work in prison groups. This decision represents a dramatic departure, and one which other long-term inmates, such as Patricia Krenwinkel, are surely watching closely. 

Now, all eyes are on the Governor's office in Sacramento, where Governor Brown will have four months to decide whether to uphold the parole board's decision. Brown's office departed from the police during his predecessors' tenure, by which no paroles were granted, and this contributed to the kind of optimism that Nancy Mullane describes in Life After Murder. But this optimism has not, so far, included members of the Manson family; most notably, Governor Brown has declined to parole 73-year-old Bruce Davis, whose clean prison record and advanced degrees led to a parole recommendation. Moreoever, Van Houten and the others face formidable opponents in the L.A. District Attorney's office, who doggedly pursued their continued incarceration for more than forty years. Indeed, as the Los Angeles Times reports, 

Los Angeles County Dist. Atty. Jackie Lacey expressed disapproval after the decision was announced: "We disagree with the board's decision and will evaluate how we plan to proceed."

As some old-timer readers know, I'm currently working on a University of California Press book about the parole hearings of the Manson Family, and this development took me by surprise. I'll be watching the Governor's office closely for the next few months. It'll sure be interesting.