What Will California’s Election Results Mean for Prison Reform?

Jerry Brown, once the youngest governor in California’s history, will now take office as its oldest. For AG, the Golden State will have Steve Cooley, who’s called for reforming California’s three strikes law (sort of) while overseeing a DA’s office that sent more felons to death row than all of Texas last year. What might all of this mean for prison reform? Rather than speculate myself, I’d actually be curious to hear from readers in comments or via e-mail. UPDATE: When I wrote this post last night the Los Angeles Times had called the AG race for Cooley, but now it looks like Kamala Harris may win by a hair. Stay tuned!

In the meantime, I thought readers might be interested or at least amused in some reminiscences of the (first) Jerry Brown administration. These are from a 1988 oral history given by John Nejedly, former state senator and an architect of California’s determinate sentencing regime, which Brown signed into law (PDF link):

There were a lot of things about him, but if you could show something that was socially wrong, had a fundamental social inconsistency, you could get his attention. He was pretty close to the Jesuits, so I got some people in the Jesuit hierarchy to talk to him about it [prisons], because I went with them over to the same prison on Thursday nights, when we would go over there, and they called him, told him what the problems were. It was a minister, you know, that put that resolution of the Attica thing into place, and he called him …

Not for nothing did they call him Governor Moonbeam:

But it was a much more fluid, flexible, unmanaged system with Brown than it was with Reagan. You could pretty well predict Reagan. But Brown. *** Especially when he got into that screwy presidential campaign; that was bonkers. He was all over the place and he had a good looking dolly going over to Africa with him and he flips from that scene and he goes to New Hampshire and screws that one up. and Illinois. God, it was bananas.

But I liked the guy! If I met him today, I’d invite him to go on a hike. He’s the kind of a person you’d go on a hike with.

Sac Bee Editorial Board: California candidates are “timid on task of prison reform”

The Sacramento Bee editorial board gets it right:

Few accused California Govs. Ronald Reagan or George Deukmejian of being “soft on crime.” But in today’s political climate, who knows? During Reagan’s tenure, the number of prisoners per 100,000 Californians was 121; during Deukmejian’s tenure, it was 230.

Last year, it was 436. Not surprisingly, keeping a much greater proportion of the state’s population behind bars has severely strained the state budget. The state faces an increasingly aged prison population, as lawmakers have created longer and longer sentences and reduced the ability of prisoners to shave off time for good behavior.

This state has a prison population problem and is under a federal court order to reduce it. The next governor and attorney general will inherit that task.

But you won’t hear the candidates making proposals for reversing prison population trends. Driven by fear of the “soft on crime” label, caution is the order of the day.

For what it’s worth, I voiced some opinions about Meg Whitman’s excuse for a criminal justice platform here at the blog, and in a Bee op-ed, earlier this year. Jerry Brown is not ideal either, but I at least feel confident that he understands the issues. After all, he’s the one who presided over the switch to determinate sentencing in the late ’70s that, in some ways, is what got California’s prison spiral going. One thing I can say for certain — having spent much of last spring reading legislative archives from the (first?) Jerry Brown years for a research project — is that I am the only history graduate student I know who’s ever had the option to vote for the subject of her most recent research paper.

Will Future Generations Condemn Us for Our Prison System?

Kwame Anthony Appiah. Photo: Princeton University, Office of Communications, Denise Applewhite (2005)

Slavery, book-burning, waterboarding. In this Washington Post op-ed, which has been been making the rounds of the blogosphere, Princeton philosopher Kwame Anthony Appiah asks what from today’s society will go the way of these once widely accepted, now universally discredited institutions and practices. OK, so one might quibble with Appiah’s examples since waterboarding has turned out not to be so universally discredited after all. And while the antebellum American plantation variant of slavery may be a thing of the past, other forms of slavery persist around the world.

Nevertheless: it’s worth noting that in contemplating what institutions might earn our grandchildren’s opprobrium, Appiah lists the prison system first among them:

Roughly 1 percent of adults in this country are incarcerated. We have 4 percent of the world’s population but 25 percent of its prisoners. No other nation has as large a proportion of its population in prison; even China’s rate is less than half of ours. What’s more, the majority of our prisoners are non-violent offenders, many of them detained on drug charges. (Whether a country that was truly free would criminalize recreational drug use is a related question worth pondering.)

And the full extent of the punishment prisoners face isn’t detailed in any judge’s sentence. More than 100,000 inmates suffer sexual abuse, including rape, each year; some contract HIV as a result. Our country holds at least 25,000 prisoners in isolation in so-called supermax facilities, under conditions that many psychologists say amount to torture.

Of course, the irony is that the modern penitentiary was invented as a humane alternative to corporal and capital punishment.

Families, Survivors Commemorate Anniversary of Attica Uprising

photo credit: Bronayur at the English language Wikipedia

Nearly forty years after the Attica prison riot, survivors and families of those who died are gathering at the prison in upstate New York today for their annual memorial service. In total, 43 people were killed at Attica — 11 corrections officers and 32 inmates — with 39 of those deaths on Sept. 13, 1971, when state authorities stormed the prison. As the Village Voice noted in introducing a package of first-person remembrances on the occasion of the uprising’s 30th anniversary, there followed a 27-year legal battle at the end of which New York State distributed $8 million in compensation among 502 injured prisoners and relatives.

Voting Rights Act Turns 45; Will Felon Disenfranchisement Prove Its Midlife Crisis?

A couple weeks ago, Linda Greenhouse of the New York Times noted a few lawsuits coming through the pipeline that threaten to challenge felon disenfranchisement laws under the Voting Rights Act. It’s a timely topic, since the Voting Rights Act turns 45 this year. As noted by ACSblog, as many as one-third of black men in Alabama and Florida are permanently disenfranchised by criminal convictions. While this is primarily a legal blog, I also study history; and whether or not felon disenfranchisement is found to violate the Voting Rights Act, it certainly has an ugly past. (See the Brennan Center’s report, Jim Crow in New York.) As I’ve noted before (the below reproduces an excerpt from this earlier post):

Felon disenfranchisement laws were typically first passed in the late nineteenth century specifically with the intention of disenfranchising black voters. As Pippa Holloway has demonstrated, in many states this was done in tandem with legislation to expand the definition of “felony” to include petty theft, making it easier to use felony prosecutions as a tool of disenfranchisement. Not coincidentally, in the late nineteenth century, felony conviction rates of black men would rise markedly in the months leading up to elections. A South Carolina Republican complained after the 1884 elections (quoted by Holloway, p. 950):

“Negroes are frequently arraigned before petty magistrates on the most trivial charges of larceny, and a conviction in these petty courts is sufficient to disfranchise them forever. This conviction is readily obtained, and the whole proceedings clearly indicate, in many cases, that the prosecution is merely a pretext to deprive the negro of his vote.”

Happy Bastille Day!

Place de la Bastille. Photo by Brother Magneto (click image for Flickr original)

On this day 221 years ago, revolutionaries stormed a prison and, as they say in History 101, the modern world began. Of course, so did a Reign of Terror which “produced a far larger number of political prisoners than were ever confined in the Bastille or anywhere else in prerevolutionary France. Generally, however, their imprisonment did not endure long: they were either killed or freed” (Aryeh Neier, “Confining Dissent,” The Oxford History of the Prison, p. 353).

Traditionally, the French president would grant a mass pardon every July 14, but President Sarkozy has discontinued the practice. In that respect, he is not dissimilar from his American counterpart. Although historically most U.S. presidents have used their executive clemency powers within 100 days of their inauguration, Obama recently reached his 536th day in office without granting a single pardon or commutation — surpassing John Adams and catapulting into third place on the list of presidents who have waited the longest. Nos. 1 and 2 are George W. Bush and Bill Clinton. Bookmark Pardon Power, an excellent blog on all things executive clemency run by Professor P.S. Ruckman, and you’ll be sure to find out if and when Obama decides to exercise his constitutionally granted powers of mercy.

Mass Incarceration: Breaking Down the Data by State

via Prison Culture, http://www.usprisonculture.com/

I don’t think it can be hammered home enough how anomalous America’s incarceration rate has become in the world, and in history. Russia is the only other “superpower” that incarcerates its citizens at a rate comparable to ours. There is no Western European country, no Asian power, no large Latin American country in the Top Ten — on this metric, at least, America truly is exceptional. The chart also reflects the end result of fairly recent developments; the U.S. did not historically have an unusually high incarceration rate. (For that chart, click here or see this Christian Science Monitor piece).

However, I also think it’s important to keep in mind that incarceration rates vary quite a bit by state. The states with the highest incarceration rates overall are in the Deep South, while states in the Midwest and Northeast have lower incarceration rates overall but tend to have more dramatic racial disparities than the Southern states. California’s rate of incarceration is average for the U.S., but, given its population, that makes for the nation’s largest prison system in absolute terms. All these differences are the results of different regional historical trajectories, and may require different policy responses. The Sentencing Project has an indispensable interactive tool on its website where you can easily compare incarceration data by state.

One thing these differences by state are not the result of, at least not primarily, is crime rates. As I’ve noted before, incarceration rates are largely driven by policy choices, not crime rates or demographics. Wisconsin and Minnesota have similar demographics and crime rates but Wisconsin has a much larger prison population. A similar disparity exists between North Dakota and South Dakota (I suggest comparing them on the Sentencing Project tool). After the jump, I’ll provide a table of the highest and lowest incarceration rates by state and assess how these states would stack up in a global comparison.

Is the U.S. Law School Curriculum (Partly) to Blame for Mass Incarceration?

Let’s say you want to learn more about the recent history of mass incarceration in the United States, but you only have time for one book. Although there are many excellent candidates, one that I’d recommend is The Prison and the Gallows, by Marie Gottschalk (Cambridge UP, 2006). Gottschalk synthesizes a lot of scholarly literature to provide a one-volume chronicle of the explosive growth of the U.S. prison population in the past 30 years. She seeks to explain the uniquely American social and political forces that enabled this development, juxtaposing the U.S. against all the other Western nations which did not experience similar growth in the penal system. I found particularly useful Gottschalk’s chapter on why the rhetoric of “victims’ rights” gained such political force in the United States as a justification for passing harsher sentencing laws. Short answer: Our tradition of prosecutorial discretion, combined with federalism. (Longer but still oversimplified answer below.)

On top of those factors, Gottschalk argues, “Differences in the legal training, professional norms, and career paths of prosecutors, judges, and other judicial administrators are another reason why the U.S. criminal justice system has been more vulnerable to political winds whipped up by politicians and social movements” (98). I thought I’d highlight one passage in which Gottschalk compares German and American legal training:

A Historian’s Perspective on Criminal Justice Reform

The history of the growing divide in the Atlantic world of the last quarter century does not tell us how punishment always evolves, but it does suggest what forces are always at work. … Our traditions of authority—really, our traditions of opposition to authority—have given us a criminal justice system long on degradation and short on mercy. This may be the way we want it. If it is not, there is certainly nothing to stop us from trying to overcome the traditions that have brought us to this point—though it is hard to be confident that we can really transcend them. If mildness comes to America, it seems more likely to come from a different quarter entirely: from our Christian tradition. What Tocqueville and Beaumont observed a hundred and seventy years ago has the ring of truth once again: “In America, the movement that has shaped reform has been essentially religious,” and any progress of reform in the immediate future is likely to be Christian in tone. … For the moment, in any case, real change does not loom; and real change would mean change, not just in punishment practices but in much grander American cultural traditions. It would be foolish to think that such change is coming soon.

— Yale law professor James Q. Whitman, in Harsh Justice: Crimianl Punishment and the Widening Divide between America and Europe (Oxford UP, 2003), p. 207. (And here’s a review of Harsh Justice from longtime Berkeley professor Jerome Skolnick.)

Whitman published this less-than-optimistic coda seven years ago—what do you think? Is it still foolish to think that change might be coming for America’s criminal justice system?

Is the War on Crime Nearing Detente?

In The Nation this week, Sasha Abramsky asks: “Is This the End of the War on Crime?” Abramsky argues that the decline in violent crime in recent years, combined with the current fiscal crisis, has opened up ideological and political space for reform. Here are just a few of the many examples Abramsky recounts:

In Texas a $600 million prison-expansion plan was shelved in 2007 in favor of a $241 million plan expanding community-based drug and alcohol treatment services, after researchers convinced legislators that the latter would lower crime rates more than expanding the state’s penal infrastructure. …

In Kansas legislators approved a large investment in drug treatment programs and services for parolees designed to stop so many offenders from simply cycling back into prison after their release. The result was a drop in Kansas’s prison population significant enough to allow the state to close several facilities.

Michigan recently reformed its prisoner-release process to allow for shorter sentences … . The state closed eight prisons as a result and invested some of the $250 million savings expected to be generated over a five-year period in an expanded network of mental health and job training services, as well as drug treatment programs.

Since I can’t imagine any politician will ever announce that the war on crime is over — surrender not being an option and victory being difficult to define, if not imagine — I think the metaphor of detente may be a helpful way to frame the seeming thaw in the heated tough-on-crime rhetoric of decades past. And detente only goes so far; after decades of a war mindset, permanent disarmament is difficult to achieve, both practically and politically. Now that states have built such a massive carceral infrastructure, which many citizens have come to take for granted, how far can they really go in abandoning it? If the economic climate improves, or crime rates rise, will states simply remobilize? Notably, while state prison populations declined last year for the first time in decades, the federal prison population keeps rising. As Doug Berman points out, it’s not surprising that “that jurisdictions that generally have to balance their budgets saw a decline in incarceration in 2009, while the one jurisdiction that just prints money went in the other direction.”