Prison Law Blog

Sara Mayeux

Posts Tagged ‘tough-on-crime politics

A Life Sentence for 1.2 Grams of Crack?

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In his book Cruel Justice: Three Strikes and the Politics of Crime in America’s Golden State, Joe Domanick tells the story of Tommy Lee Fryman:

In 1998, Fryman was arrested in San Jose for being under the influence of cocaine. Tommy Lee was strip-searched when the cops found 1.2 grams of crack cocaine “hidden between his buttocks.” He pleaded guilty to possession of cocaine base, and because of nine prior felony convictions “alleged as strikes,” was given a three strikes sentence of twenty-five-to-life.

Here’s the kicker: If Tommy Lee Fryman had been arrested just a few years later, he would not have served a day in prison. In November 2000 California voters passed Prop. 36, which mandates treatment, not hard time, for simple-possession drug charges. At that time, California was incarcerating 36,000 men and women a year for simple possession — the highest number in the nation both in absolute and per capita terms. Of that number, about 580 people, like Fryman, had been sentenced to 25-to-life sentences for simple drug possession under the 1994 Three Strikes Law. (The close proximity in time of Three Strikes and Prop. 36 is, itself, a fairly good metric of the incoherence of California criminal justice policy.)

Fryman’s federal habeas case was argued at the Ninth Circuit this week by two students from Stanford Law School’s Three Strikes Project. Fryman’s argument is, first, that the sentence is cruel and unusual under the Eighth Amendment, and second, that the sentence violates the Equal Protection Clause, given that voters approved Prop. 36 while Fryman’s state appeals were still pending (and thus, i.e., that Fryman is being treated differently before the law than similarly situated offenders). You can listen to the oral argument at this link (the case name is Fryman v. Duncan).

Although I don’t normally cover sentencing law, this case and others like it help to explain today’s prison conditions. There is a generation or more of Californians — those who were of crime-committing-age between 1980 and 2000 — who racked up criminal records and prison stints on the basis of draconian drug sentencing practices that California voters have since rejected. A lot of those men and women are still in the system or still being hurt by the system, whether because prison ruined their life, or because they got into further trouble once labeled a criminal, or because they got out of prison and finding few resources to help them went back to using drugs, or whatever reason. Or because like Fryman, they are literally still in prison because they were caught up both in the drug war and the Three Strikes Law. And the same story could be told about New York and the Rockefeller drug laws, and many other states, and certainly about the federal system. Sentencing reform for the future is an important first step, but the roots of mass incarceration can’t be pulled out so neatly — ultimately some form of retrospective justice will also be needed, I think. Imagine what additional challenges your life might have included if you’d been sent to prison 10 or 20 years ago, and now consider that for millions of Americans, that happened.

L.A. Arts Group Dramatizes California Prison Crowding Litigation

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The judges who wrote the 184-page court order in Coleman/Plata may have hoped they were writing history, but it turns out they were contributing to art, too! The Los Angeles Poverty Department, an arts and activism collective made up largely of homeless people, recently completed an innovative project combining public education, performance art, film, and theatre:

Project events started with a panel discussion about the effects of California’s parole reform on parolees. As we build the performance, State of Incarceration, we performed it in Skid Row, in parolee re-entry programs in the San Fernando Valley and LA and in 5 performance events at the BOX gallery that took place within a wall-to-wall prison bunk-bed installation. In the BOX’s basement we showed images charting the expansion of the prison population and new prison construction in California over the past 3 decades and the 21 year and counting history of the lawsuit challenging the quality of the health services in the state’s over-crowded prisons.

We invited our audience to read one page of the 184-page lawsuit. We’ll continue doing this until all pages are filmed. The resulting 5+ hour film will be part of the project.

The finished performance piece opened in late January at Highways Performance Space in Santa Monica. Unfortunately I didn’t find out about it in time to alert readers — it closed Feb. 5 — but here’s one reviewer’s summary of the experience:

In some shows, one may feel like one is in prison; in this one, that intent is deliberately visceral: Metal bunk beds line the walls and center of the theater and audience members are crammed into the room, often sharing bunk beds with the actors playing the inmates. The directors interspersed disturbing silences between a series of monologues and starkly delivered poems that illustrate the despair and hopelessness of prison life. In one such silence, convicts recline on their beds, and the guards patrol every inch of the room. During this sequence, the charged quiet belies the undercurrents of seething rage, and the piece approaches the claustrophobia, sorrow, and anger of being in prison.

Of Taxpayers, Tea Partiers, and Lock-em-up Politics

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Dana Walters comments on poll findings that prisons are California taxpayers’ least favorite government expense (in other words, I’m not the only one!):

When PPIC asked voters which major areas should be hit with cuts, just 24% named K-12 education, 35% said higher education, 37% suggested health and welfare programs and 70% singled out prisons. The results were similar when voters were asked what they were willing to underwrite with higher taxes.

Interestingly, the disdain for prison spending was virtually identical among all subcategories of voters — Democrats and Republicans, liberal San Franciscans and conservative Central Valley residents, rich, poor and middle-class.

From one perspective, it’s heartening that voters are willing to countenance a smaller prison system. And it fits with a broader trend in American life: the apparent decline of tough-on-crime politics. Yesterday, I heard Mark Earley give a talk at Stanford. He spoke about having gleefully participated in the tough-on-crime wave of legislation in the 1980s and ’90s as a Virginia state legislator, not really viewing prisoners “as human beings.” Only later did he have a Road-to-Damascus moment, or series of moments, through his work with Prison Fellowship, which brings Christian ministries into prisons around the country.

One of Earley’s points was that we may have reached a tipping point on mass incarceration: tough-on-crime rhetoric simply doesn’t work so well when you get to a point where 1 in 100 adults is in prison. Read the rest of this entry »

Written by sara

February 9, 2011 at 12:22 pm

Is 16 Years in Prison for Attempted Theft of 3 Disposable Cameras: a) Humane? b) Just? c) A Good Use of State Resources? Discuss.

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From time to time I receive emails from Stanford Law School announcing the victories of its various student legal clinics. Normally, I don’t pay much attention since I get so many listserv-type emails. Every once in a while one jumps out at me. For instance, yesterday I received such an email with the following subject line:

Client Freed after serving 16 years for Trying to Steal Three Disposable Cameras

The client, who had initially been sentenced to 25-to-life in 1995, was represented by Stanford’s Three Strikes Project, which you can read more about here.

Fun with the California Budget

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The Los Angeles Times has a fun (frightening?) interactive tool where you can try your hand at eliminating California’s deficit, limiting yourself to options actually on the table in Sacramento (if I understand the tool correctly). Here’s my stab at balancing the budget — note: these aren’t necessarily my considered policy preferences, but just my first stab playing around with the tool with a special eye toward prisons, the fastest-growing component of California’s spending commitments.

Three things I like about the tool:

  • It comes with a Q&A that punctures various right-wing canards about California’s budget woes. California’s not bleeding money on discretionary services for illegal immigrants, its taxes aren’t the highest in the nation, and depending on what program you’re looking at, California isn’t actually that generous with welfare spending: “For some benefits, California’s payouts are among the lowest in the nation. For others, the state is more generous.”
  • The tool graphically illustrates how hard it would be to make the necessary cuts if you have any level of commitment to public education and welfare programs — and if you know what kinds of cuts/fee hikes California’s K-12 schools, community colleges, and universities have already endured.
  • Finally, the tool shows just how much of California’s budget is currently being sucked up by its counterproductive sentencing policies. The option on the table is to reduce the prison population by 40,000 inmates, but that still leaves over 100,000 inmates behind bars and the state’s bloated prison system basically intact.

When playing around with the tool, the easiest choice for me — although it’s probably a lot harder for people who work in Sacramento — was to “release” 40,000 prisoners. This wouldn’t be that radical of a step: California’s already under a federal court order to do so, and there are viable plans out there for gradually reducing the prison population without sacrificing public safety — mainly by fixing California’s absurdly broken and wasteful parole system, which resembles that of no other state in the nation. Read the rest of this entry »

Written by sara

February 5, 2011 at 8:06 am

James Forman on the Limitations of the Jim Crow Analogy

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In the current issue of the Boston Review, Georgetown Law professor James Forman has some interesting thoughts on two of last year’s most significant books on mass incarceration — Robert Perkinson’s Texas Tough and Michelle Alexander’s The New Jim Crow. Here’s Forman on the limitations of Alexander’s account:

This account of the origins of mass incarceration reinforces the Jim Crow analogy by tracing a direct line from a profound social ill (mass imprisonment) to a well-known enemy (racist voters and politicians who pander to them). But the account is incomplete. Something else was going on in the United States in the 1960s and early 1970s: violent crime shot up dramatically just before the beginning of the prison boom. Homicide rates doubled between 1965 and 1975, and robbery rates tripled.

The increase in crime helped to fuel demands for more punitive policies. In The Politics of Imprisonment, Vanessa Barker describes how black activists in Harlem fought for what would become the notorious Rockefeller drug laws. Harlem residents were outraged by rising crime rates in their neighborhoods and sought increased police presence and stiffer penalties. …

Those who call attention to the harm caused by our current criminal-justice policies must also be ruthlessly honest about the harm caused by crime. This, too, is a matter of racial justice: victims of crime—especially violent crime—are disproportionately poor, young, and black or brown. It is also a strategic imperative. Tough-on-crime advocates are not going to stop talking about violent offenders and the need to protect communities from them. If reformers shy away from the topic, their chances of building a broad movement for change will suffer.

The review is well worth reading in full. It’s worth keeping in mind, though, that the carceral state was already on its way to expansion even before homicide rates shot up in the late 1960s. It’s worth wondering whether black leaders responded to violence in their communities in the late 1960s and early 1970s by calling for more incarceration at least in part because that was a solution that the nation, dating back to the Johnson years, had already indicated that it would support; whereas more comprehensive social programs such as those envisioned by Johnson’s War on Poverty were already falling out of favor.

On Treating Violence as a Public-Health Emergency

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Although it’s unfortunately still not the dominant policy approach in the U.S., it’s also not that controversial to suggest that drugs should be handled as a public-health problem, not a criminal-justice problem. Jakada Imami of the Ella Baker Center argues that we should see homicide as a public-health problem, too:

If we add up all the deaths of all these young, predominantly men of color, and see what we’re looking at. I mean this country went to war over the attack on the World Trade Center and what will we be willing to do when you add up all these numbers of lives lost? Young men right here at home. The level of just trauma right now that people face when you’ve gone to more funerals than graduations. That’s just seen as normal, right? But when you think back to Columbine or the Virginia Tech shooting and you think about the level of resources and the care and support that those communities rightly received – you look at East Oakland or West Oakland or East L.A., you don’t see that level of support even though these communities go through that sort of trauma on a weekly basis. …

You can also triangulate, by looking back, figure out who is most likely to be the victim of a homicide or even kill somebody. Who’s likely? It actually turns out in most communities, that it’s not every single person. It’s also not every single black or brown person. It’s not every single person who lives in a particular neighborhood. It’s a very small subset, a very easily determined population who are most at risk of being killed, just like there are very specific and subset populations that are at risk of heart disease and are at risk of diabetes and any other public health crisis or issue. And so just as you would go about figuring out who most you need to treat first, who most you need to vaccinate first.

At Governing through Crime, Jonathan Simon has some not entirely unrelated thoughts on American responses to murder: Read the rest of this entry »

Georgia’s Governor: Breaking New Ground in Law-and-Order Demagoguery

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So, it used to be that politicians would pair “build more!” talk on prisons with “be very afraid” talk about “criminals.” That combination could be called the “lock ’em up” mode of “tough-on-crime” politics. The new governor of my home state has apparently hit on a new formula. From his inaugural speech:

Presently, one out of every 13 Georgia residents is under some form of correctional control. It cost about $3 million per day to operate our Department of Corrections. And yet, every day criminals continue to inflict violence on our citizens and an alarming number of perpetrators are juveniles.

College students should be concerned about their grades not whether they are going to be mugged on their way home from class. Visitors to our cities should be treated as welcomed guests and protected. Families should not live in fear of gang violence and drive-by shootings. But most of all, our dedicated law enforcement officers must not be targets for criminals. Anyone who harms one of them harms us all, for they embody the Constitutional mandate that government provide us with protection and security.

Breaking the culture of crime and violence is not a task for law enforcement officials alone. Parents must assume more responsibility for their children. Communities must marshal their collective wills; civic and religious organizations must use their influence to set the tone for expected behavior.

For violent and repeat offenders, we will make you pay for your crimes. For other offenders who want to change their lives, we will provide the opportunity to do so with Day Reporting Centers, Drug, DUI and Mental Health Courts and expanded probation and treatment options. As a State, we cannot afford to have so many of our citizens waste their lives because of addictions. It is draining our State Treasury and depleting our workforce.

So, I’m guess I’m glad Deal is using his mini-bully pulpit to point out that the War on Crime costs a lot of money and doesn’t necessarily deliver commensurate benefits. And in a backhanded way, his mini-sermon about “the culture of crime and violence” at least acknowledges that just passing laws and arresting people doesn’t magically make everyone stop doing things you don’t want them to do.

That said, this is not, by any measure, a model of how elected officials should introduce mass incarceration onto the policy agenda. Deal is still trafficking in the same cartoon of The Criminal that we’ve been hearing about from politicians for basically as long as I’ve been alive, he’s just refining it slightly to exclude “offenders who want to change their lives.” Read the rest of this entry »

Ninth Circuit: Sheriff Joe-Approved Cross-Sex Strip Searches Are Unconstitutional

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An Arizona pretrial detainee’s Fourth Amendment rights were violated when he was strip-searched by a female guard, the Ninth Circuit ruled last week in a sharply divided en banc decision. The case arose out of Sheriff Joe Arpaio’s notorious Maricopa County jail system. The San Francisco Chronicle‘s Bob Egelko sums up:

[Charles] Byrd was ordered to strip down to his shorts – colored pink, as required for all inmates by Joe Arpaio, the county’s hard-line sheriff – and was searched by a female cadet from a training academy. She said she had taken no more than 20 seconds, while Byrd estimated the time at a minute. No contraband was found.

“The right to be free from strip searches and degrading body inspections is … basic to the concept of privacy,” Judge Johnnie Rawlinson said in the majority opinion, quoting an earlier ruling.

No emergency existed, Rawlinson said, because male guards were present and could have conducted the search. She said the “humiliating event” was aggravated by the presence of onlookers, one of whom videotaped the search.

Dissenting Judge N. Randy Smith said the cadet had conducted the search professionally and, although it was “unsavory to our sensibilities,” the action met legal standards.

More reporting here from CNN; the full opinion can be downloaded here (PDF). For some background on Ninth Circuit case law on jailhouse strip searches generally, see my earlier post here.

Prison Higher Education Programs: An Unfunded Unmandate

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A letter in today’s New York Times, from Vivian Nixon of the College and Community Fellowship, relates the Georgia prison strike to a broader problem — the dearth of funding for prison higher education programs:

Georgia inmates contend that access to educational opportunities beyond the G.E.D. will better prepare them for re-entry and decrease crime and recidivism. They’re not the only ones who know this to be true.

Reports released by the United States Education Department, the Justice Department and state correction departments all recognize the myriad benefits of educating prisoners. Since 1994, incarcerated students have been barred from receiving Pell grants despite the fact that prisoners received less than 1 percent of all Pell grant dollars awarded and that postsecondary education has proved to be the most successful and cost-effective way to reduce recidivism and increase public safety.

It’s worth keeping in mind exactly what happened when President Clinton signed the Violent Crime Control and Law Enforcement Act, which authorized almost $10 billion of federal grants for state prison construction while in the same stroke cutting off the $200 million of annual Pell grants that had been going to prisoners because God forbid we allocate 3/5 of 1 percent of the annual outlays of a relatively modest federal program to prisons! In 1994, there were over 350 higher education programs in prisons around the country, with about 40,000 inmates enrolled. (Note that there were also only about a million prisoners, compared with about 2 million now.) Within a year of the act’s passage, as well as copycat acts at the state level, there were fewer than a dozen. Congress and President Clinton collaborated to all but eliminate higher education programs in American prisons. Few federal statutes have so thoroughly and immediately achieved their aim.

It’s also worth keeping in mind the inanity of the rhetoric that got this measure passed. Senator Pell himself supported the use of his namesake grants by prisoners. But Kay Bailey Hutchison claimed that “Pell Grants are a great scam: rob a store, go to jail, and get your degree.” Let’s take a moment to think this through. Even if it were true, in 1994, that a person contemplating enrolling in college would find committing a robbery an easier way to do that than simply filling out an application to college, wouldn’t that have been a pretty glaring indicator that something had gone terribly awry, not with prison policy, but with the education system? But of course, Hutchison wasn’t really trading in facts and logic but in the general demonization of “criminals” that drove so much policymaking in the early 1990s.

The irony, of course, or maybe this was just the point all along, is that Hutchison was right: Hundreds of thousands of would-be college students have been denied access to higher education because of money spent on prisoners, but not because prisoners have been sucking up all the college grants. In many states prisons now receive far more government funding than colleges and universities do — even though all that government funding mostly goes to keeping prisoners idle. As California struggles to keep not just its once-legendary state university system but also the state itself afloat, it’s worth noting, as UCLA professor Chan Noriega recently calculated, that “California could send every last prisoner to a UC campus, covering all expenses, and still save nearly $2.3 billion per year.” Read the rest of this entry »

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