Today! Panel on the Pelican Bay Hunger Strike

This afternoon we will hold a panel at UC Hastings, organized by numerous student associations, on the Pelican Bay hunger strike, which resumes today. The panel is free and open to the public.

Where: UC Hastings, 198 McAllister Street, San Francisco, CA – at the LBM lounge in the ground floor

When: Monday, 3:30pm-5:30pm


  • Marilyn McMahon (Prison Focus)
  • Keramet Reiter from UC Berkeley, whose dissertation examined the emergence of the superman
  • Marie Levin, family member of SHU inmate
  • Dorsey Nunn (Legal Services for Prisoners with Children, All of Us or None)

Caitlin Henry will moderate and I’ll make opening remarks. We hope to see you there. If you’re a blog reader, come by and say hi.

Troy Davis and the Civilizing Process

What could possibly be left to say on the aftermath of Troy Davis’ execution? Words on the evil of the death penalty? On innocence and guilt and doubt? On the inability of the law enforcement mechanism to accept the possibility of mistake? Just in case you missed some of the commentary, here were my favorite picks:

Yesterday, my  criminology students and I discussed Norbert EliasThe Civilizing Process. Written in 1939, the book was forgotten for several years as Elias’ career was derailed by the second World War. A Jewish European scholar, Elias worked in exile and relative obscurity until he arrived in England, where he resumed an important place in the sociological universe. Still woefully undeacknowledged among the pantheon of sociological giants, Elias’ work deserves much praise and recognition.

In The Civilizing Process, Elias argues that the 18th century was a “watershed” time that saw a profound top-down change in European society: From a society of knights to one of courtiers. This change, the reaction to the formation of the modern centralized state, was accompanied by a profound change in etiquette and social sensibilities, including the development of various subtleties in interpersonal interaction, table manners, bodily functions, and the like. Among other things, says Elias, our bloodthirstiness and daily exposure to violence have decreased. While life in the middle ages included a daily unmitigated experience of violence and a relishing of violence, we came later to see it as distasteful.

Much of Elias’ theory has been confirmed by later studies. Indeed, the rate of violent crime, especially homicide, has been repeatedly proven to have declined in the last few centuries. One explanation for the decline of violence is that the centralized state came to resume the functions of violence usage as proxy for citizens, and those, in turn, became more sublimated, more docile, and more amenable to its power and thus less violent on their own initiative (the increased regulation and decrease in the use of duels is a case in point.)

But the state changed its practices, too. Following Elias, excellent Dutch historian Pieter Spierenburg’s The Spectacle of Suffering points out the change in how executions were carried out in Europe. The “watershed” years, and the years to follow, saw fewer and fewer executions, and a marked toning-down of the pomp and circumstance that surrounded them. According to Spierenburg, the society of courtiers increasingly lost its taste for public corporal rituals and moved away from them.

So, what do we have now? Perhaps the ultimate sublimation: An execution that is nothing more than a sad coda to years of quiet confinement and increasingly technical litigation. Conducted away from the public eye, its only witnesses are those closest to the case–the offender’s family and the victim’s family–arguably the parties who retain some of that pre-civilizing, raw connection to the act and the social connection. The story is mitigated by its sanitized media coverage. As Austin Sarat argues in When the State Kills, the coverage removes our visceral connection to the violence we delegated to the state; and as Frank Zimring argues in The Contradictions of American Capital Punishment, it masks its origins in lynching and public relishing of violence.

The true strength of the protest in Troy Davis’ case was in breaking this boundary of sublimation and sanitation. Millions of people around the world were moved by Davis as a symbol of human suffering. They did not fail to recognize this act for what it is, even when carried out away from the public eye and using advanced chemicals, needles and machines. They saw the racial overtones and origins of the practice and the way they played out in this particular case; and they did not shy away from expressing their utmost distaste with it and the deep ways in which it offended their sense of justice. Distressing as this was–an unsatisfying coda to the tragic death of Mark McPhail, who deserved a better police force and a better inquiry as to his slaying–the public reaction, a vehement expression of our distaste for the modern “machinery of death” and ability to see it for what it is, was an important moment in American history, whose ramifications may bear fruit in the ballot box and in the courtroom.

Props to my Theoretical Criminology students, whose commentary yesterday prompted much of this post. 

BREAKING NEWS: No Reprieve for Troy Davis

The Supreme Court rejected Troy Davis’ last minute appeal for a delay. The New York Times reports:

The United States Supreme Court rejected a last-ditch request to step in late Wednesday to stay the Georgia execution of Troy Davis, who was convicted of gunning down a Savannah police officer 22 years ago, after Mr. Davis filed an eleventh-hour plea Wednesday with the high court.
His execution, by lethal injection, had been set to begin at 7 p.m., but Georgia prison officials waited for the court’s decision late into the evening. It took the court more than four hours to issue its one-sentence order.

This is a dark day for truth, justice, mercy, and the appellate process. Thank you to everyone who signed petitions, emailed, shared information about the case on social networks, and offered help through Amnesty, the NAACP, and other organizations. May this be the last time a probably innocent person is put to death.

Prison Hunger Strike Panel at UC Hastings

The Hastings Race and Poverty Law Journal, with Hastings Prisoner Outreach, La Raza Law Students Association, Black Law Students Association, Hastings National Lawyers Guild, Hastings Students for Sensible Drug Policy and Hastings Criminal Law Society are organizing a panel on the upcoming Pelican Bay hunger strike.

When: Monday, September 26, 3:30-5:30pm
Where: UC Hastings, the LBM Lounge, 198 McAllister Street, San Francisco, CA (ground floor)

Speakers will include attorneys that have been working with the Solidarity Coalition to support the strikers, family members, and formerly incarcerated people. Yours truly will give opening remarks.

The event is free and open to the public.

BREAKING NEWS: Last Minute Appeal in Troy Davis Case

In a last minute appeal that many did not think possible under post-conviction remedy law, Troy Davis has just filed an appeal with the Supreme Court.

Lyle Denniston from SCOTUSBlog comments:

Six months after the Supreme Court previously refused all attempts to stop the execution of Georgia inmate Troy Anthony Davis, his lawyers on Wednesday filed a new plea seeking to head off the state schedule to put him to death Wednesday evening. . . [i]n urging the Justices not to delay execution any further, the state Wednesday evening said that Davis’s lawyers had waited too long to challenge an execution that had been scheduled 15 days ago.

The brief (read it in full here) asks for a delay so that a writ of certiorary can be filed that will point out “substantial constitutional errors.” It argues that “newly available evidence reveals that false, misleading and materially inaccurate information was presented at his capital trial in 1989, rendering the convictions and death sentence fundamentally unreliable.”

The state’s reply (read it in full here) is that Davis’ appeal “presents no new evidence or argument.”

Props to Billy Minshall for alerting me to this development.

CCC’S 3rd Birthday

This week, the CCC Blog celebrates its third birthday. Inaugurated in Fall 2008 anticipating our 2009 California Correctional Crisis Conference, we started covering the then-in-progress litigation in Plata v. Schwarzenegger, which this year became Brown v. Plata. We provided a full analysis of the Supreme Court decision here and here.

This year was a momentous occasion in California corrections. The state is struggling to comply with the Plata decision and is behind schedule. It has also been a momentous year in terms of humonetarianism (the practice of leniency and moderation in corrections initiated by budgetary cuts). Humonetarian discourse is characterized by a bipartisan focus on costs and financial prudence as a reason to promote criminal justice reform. To battle overcrowding as well as comply with Plata, the state is actively pursuing realignment, shifting inmates from state prisons to county jails, thus ending what Frank Zimring refers to as the “correctional free lunch” (county sentencing, state budget). Different counties are adjusting to the change in different ways, and realignment has important implications for juvenile offenders and for female inmates. Oh, and we followed several legislation initiatives: Prop 19, “control, regulate and tax marijuana”, which failed at the ballot, and the San Francisco sit/lie ordinance, which passed. We’ve just started covering this year’s crop, complete with a death penalty abolition proposition, a proposition to amend Three Strikes, and SB9.

We also occasionally looked beyond the California border. This year we examined out-of-state incarceration in Hawai’i, CCA’s complicity in the passage of deplorable SB1070 in Arizona, some other fresh Arizona horrors,  and we tried to stop the upcoming execution of probably-innocent Troy Davis in Georgia.

Some of the biggest news are occurring this summer. The inmates at Pelican Bay started a hunger strike in July, protesting their dubious profiling as gang members and cruel isolation confinement conditions. They will renew their hunger strike as of September 26 and need your support. Vigils are planned for Thursdays at 5-7pm, in the following locations:

– Sep. 29th: 14th & Broadway, OAK
– Oct. 6th: UN Plaza, SF
– Oct 13th: 24th&Mission, SF
– Oct. 20th: Fruitvale, OAK

Also, Prison Focus will be holding a special event about the strike at UC Hastings, which we will advertise separately.

Finally, we covered a much-hoped-for release of three innocent men, rogue meth-dealing motorcyclist professors, and the distressing news that statistical analysis suggests that the victim participation law did not increase victim participation.

The CCC blog thanks you for your continued support and readership. Please continue reading us, writing to us, following us on Facebook and Twitter, and keeping abreast of the impact of the financial crisis on the American and Californian correctional landscape. What we are is up to you!

Are Gang Members Special? From the California Supreme Court to Pelican Bay

This month the California Supreme Court, presiding at UC Hastings, heard oral arguments in People v. Vang, an assault case involving gang expert testimony. Under California sentencing laws, a gang sentencing enhancement requires the jury to decide whether the defendant committed the offense to benefit the gang. Evidence to this effect is often presented through the testimony of gang experts, usually police officers, who testify as to the norms and practices of gangs in general and the gang in question, to show whether a given defendant’s behavior falls in line with gang-related behavior. In Vang, the prosecutor asked the cop/expert two detailed hypothetical questions based on the facts of the assault according to the evidence, then asking the expert whether an assault under such facts would be gang related. By doing so, argued the defense, the prosecutor thinly disguised questions regarding the actual defendants’ behavior as hypothetical scenarios, effectively substituting the testifying cop/expert’s logic and common sense for the jury’s. The government, on the other hand, argued that it would be difficult to define permissible questions that are abstract enough to require the jury to make a “logical leap” and independently assess the perpetrator’s mens rea, while only being provided with guidelines from the cop/expert about the impact of gang membership on the development of such mens rea.

Setting aside the important criminal justice question of the merits and pitfalls of treating police officers as supposedly impartial ethnographers and gang experts—this practice is, by now, modus operandi in California courts—I would like to suggest that there is an even more fundamental issue at the root of Vang: The assumption that gang members are fundamentally different from other people; that their behavior is governed by special rules inaccessible through common personal experience; and, therefore, special knowledge is required to make sense of them and interpret their lifestyle to the ordinary jury member. This assumption did not originate with modern gangs; it is approximately 150 years old.

In 1865, a doctor named Cesare Lombroso wrote the first medical criminology book, titled L’Uomo Delinquente (“The Criminal Man”). Lombroso’s premise, a novelty at the time, was that criminals were innately different from law-abiding citizens, and predisposed to commit crime by virtue of being “atavistic”, that is, “stuck” in a less-developed evolutionary phase. Lombroso gleaned this predisposition from a series of medical findings involving the measurements of inmates’ skulls (based on the then-popular science of phrenology), their bodily and facial features, tattoos, handwriting, and laughter patterns. Pages upon pages of the book included photographs showing the common features of criminals and distinguishing these “special” features from those of ordinary people.

In the years since 1865, we have come to reject Lombroso’s “science”, both in itself and as a measure for establishing criminality (not before making a lamentable detour into the territory of eugenics for several tragic decades). However, the idea that criminals were special, or somehow different from law-abiding citizens, persisted. Much of the criminology of the early 20th century consisted of ethnographies and observations of criminal groups under the assumption that lack of privilege, living in a given neighborhood, or having a certain subset of role models shapes a unique human being, predisposed to commit crime. This literature—much of which was, admittedly, incredibly helpful for understanding phenomena such as juvenile gangs—suggests that, while some human beings are within the realm of the knowable through common sense and life experience, others cannot be understood without the benefit of special expertise.

Today’s California gang members are the new Lombrosian criminals. To curb criminal gang activity, we have adopted special sentencing rules and uniquely oppressive correctional practices. This special treatment goes beyond the mere development of special investigation practices, evidentiary rules and penal technologies; it includes the development of a new body of knowledge that regards gang members as special, their lives and behavior beyond the reach of ordinary human common sense. But we have done more: By examining gang practices as special and unique, through the lens of clinical expertise, we have relegated gang members to the status of incorrigible specimens, who can only be studied, controlled, governed, and suppressed through special, dehumanizing technologies.

The perversity of this approach is evident these days, as the Pelican Bay inmates plan on renewing their hunger strike on September 26th. The hunger strike, which lasted for 21 days in July and received woefully little media coverage, aimed at changing the correctional policies involved in incarceration at the Security Housing Units (SHU) in Pelican Bay. When inmates are identified as gang members, they are subject to a penal regime that consists of complete isolation for 22 ½ hours a day in tiny cells, their only companion often the blearing sound of a television set. Their daily respite from years of solitary confinement is a 90-minute outing in a barren exercise pen surrounded by 15-foot-high concrete walls and a limited sky view. The entrance ticket into the SHU consists of being identified by prison authorities as a gang member, placing the burden of “debriefing”—disavowing and disproving gang membership—on the inmates themselves, most of whom never find their way out of the SHU. Despite consistent findings by social psychologists about the immense, irrevocable harms of subjecting human beings to a regime of isolation, and despite a federal judge’s comment in 1995 according to which such practices “hover on the edge of what is humanly tolerable”, courts have consistently found SHU incarceration practices constitutional.

To add insult to injury, during the July Pelican Bay hunger strike CDCR officials went on record discrediting the strike because it is “led by gang leaders.” This argument is the epitome of Lombrosian thinking. It implies that the public is to disregard the merit in the striking inmates’ claims against the dreadful conditions of their confinement merely because they are (suspected to be) gang members or led by gang authorities. Why would the arguments against solitary confinement and its devastating effects on the human psyche be any less valid just because the humans making them, and subject to them, happen to be (suspected of) belonging to gangs?

Indeed, gangs are unique organizations. So are corporations, hedge funds, motorcycle clubs, cults, schools, military units, and academic departments. Crime has occurred in each and every one of these contexts, and while criminal decisionmaking has required an explication of the social setting for the crime, it has not deprived us of the sense that juries are capable of understanding these microcosms of human experience. Nor has it implied that any of these settings rightfully denies its participants of human status. While belonging to a subculture has important implications as to a person’s behavior, social context, and range of choices, it does not deny the person’s humanity, relegate his or her behavior to a place beyond the realm of the logically accessible, or make him or her less worthy of basic necessities and rights. Gang members may be more difficult to explicate—and empathize with—than people whose lives more closely resemble that of the average jury member, but they are people, just like prosecutors, jurors, and prison officials. As such, their lives are not completely beyond the realm of reasoning, understanding, and empathy. As we follow up on the upcoming hunger strike, we would do well to educate ourselves on the merits of the inmates’ demands and remember that the measure of a society is the dignity with which it treats its weakest members.

Early Releases for Female Inmates

As reported on Forbes online (by the Associated Press):

More than 4,000 female inmates in California could qualify to serve the rest of their sentences at home, as state officials begin complying with a law designed to keep children from following their parents into a life of crime.

The alternative custody program is for less serious offenders. Qualifying inmates must have less than two years left on their sentences, which would be completed while they are tracked by GPS-linked ankle bracelets and report to a parole officer.

. . .

About two-thirds of the 9,484 female inmates in California’s prison system are mothers whose children are currently with relatives or in foster care, though many of those women won’t qualify for alternative custody.

About 45 percent of the state’s female inmates potentially qualify for the program under the law former Gov. Arnold Schwarzenegger signed last year.

Those convicted of sexual offenses are not eligible. To win release, inmates also must compete for a limited number of rehabilitation programs offered by nonprofit and community organizations.

That will sharply reduce the number of women actually freed, said Dana Toyama, a spokeswoman for the California Department of Corrections and Rehabilitation. With no state money for the program, the community organizations are offering services to as many inmates as they can handle for free.

Case managers will determine if qualified inmates have family support, a suitable home and transportation, and are enrolled in drug rehabilitation, anger management or other programs, Toyama said.

“”It’s not like we’re just putting them out in the community and saying good luck,” she said.

The inmates can go to a home, a residential substance-abuse treatment program or a transitional-care facility. Those who complete rehabilitation programs can earn extra time off their sentences.

Women account for less than 6 percent of the nearly 161,000 adults in California prisons. Toyama said men could one day be included in the early release program as the department looks for ways to save money and seeks to comply with the federal court order to reduce its prison population.

The program could save the state $6 million in reduced prison costs next year. No inmates are likely to be released for at least 30 days because the department must first notify local law enforcement.

However, Toyama said the entire program could be short-lived because of a more sweeping law that takes effect Oct. 1.

Under Gov. Jerry Brown’s prison realignment plan, tens of thousands of lower-level criminals who otherwise would go to state prisons will instead be sentenced to county jails and rehabilitation programs if they are convicted after that date.

Six Days Till Troy Davis is Executed

Today, CNN features the excellent video above on Troy Davis’ case, including interviews with the victim’s family and with a juror from the original trial. It also provides a rich background on the racial overtones of the case. The plot is thicker and murkier than it appeared on the newspaper coverage, and this piece does a good job of exposing it.

Do something:

NAACP petition to the original prosecutor
NAACP petition to the Georgia Department of Parole
Legal Professionals petition
Religious Leaders petition

As a coda, I want to offer a thought experiment. Having read plenty about this case, I am fairly convinced that Davis is factually innocent. But if he were guilty – and he’s been in prison for the last two decades, scheduled for execution four times – does all that not count as punishment for homicide? The problem with our administration of the death penalty is that it is not merely execution; it’s life imprisonment under atrocious conditions with an execution thrown in at the end as a coup-de-grace for good measure. It is an unconscionable system.

So, fight for Troy if you believe, as I do, that he is innocent; and I do hope you come to that conclusion upon learning more about the case. But think on whether this system makes sense for guilty people, too.

Tomorrow: Open House and Petition for Troy Davis, My Office

An execution date has been set for Troy Davis: September 21 at 7:00pm EST.

Davis has repeatedly said he did not kill MacPhail, and seven out of nine witnesses who gave evidence at his trial in 1991 have recanted or changed their testimony.

No murder weapon was ever found, no DNA evidence or fingerprints tie him to the crime, and other witnesses have since said the murder was committed by another man — a state’s witness who testified against him.

The case has became internationally famous as the face of what critics call a corrupted justice system in the US deep south, with an innocent black man wrongly and hastily convicted of killing a white officer.

Tomorrow I will be holding an open house for Troy Davis at my UC Hastings office, Room #328, at 200 McAllister Street, San Francisco. I’ll be in 9:00am-12:00 noon and 1:00pm to 5:00pm. Step in and we can chat about the case. Sign petitions to the Georgia Parole Board and to the Governor of Georgia. Talk about wrongful convictions in general and what they mean for the struggle against the death penalty. Everyone is invited.