Extradition, Extreme Punishment, and American Exceptionalism

While at the American Society of Criminology conference, I had the good luck to run into a colleague I really like and admire–Dirk Van Zyl Smit from the University of Nottingham. Dirk shared with me two recent decisions of the European Court of Human Rights (ECHR), in cases that he worked on (the ECHR allows professors to submit written briefs as “intervenors”, akin to what we do with amicus briefs here in the US), which illuminate the strange contortions that European countries go through in an effort to determine just how much they are willing to passively cooperate with USian punitive barbarism.

A little bit of background: Article 3 of the European Convention on Human Rights states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” In 1985, Protocol 6 to the Convention, which abolished the death penalty for all members, entered into effect. In accordance with the Protocol and with Article 3, all European Council members have abolished the death penalty (Belarus is not and has never been a member; Russia was recently expelled.) Moreover, the Council of Europe fights the death penalty within and outside its borders in numerous ways, including the well-documented refusal of its members to provide the U.S. with chemicals used in American execution protocols. One important aspect of this abolition-beyond-borders policy is a European Court of Human Rights case from decades ago, Soering v. United Kingdom (1989), which forbids extradition of people to the U.S. if they might face the death penalty there (virtually all European countries have extradition treaties with the US, as you can see in the above map.) Dirk tells me that the practice in these cases is to ask the U.S. to provide a guarantee that the death penalty will not be sought against the extradited person.

But what about life without parole, another form of USian extreme punishment? In Vinter and Others (2013) the ECHR found that “irreducible” life sentences were inhumane; this was applied in Trabelsi v. Belgium (2014) to the extradition setting. But later, in Harkins v. Home Secretary (2014), England’s High Court of Justice narrowly interpreted Trabelsi as applying only to life sentences that were grossly disproportionate or completely lacking in any mitigation mechanisms (such as commutation or parole.) Harkins and other cases (Wellington and Haffiz) treated Trabelsi as somewhat of an extreme aberration.

The Council of Europe’s hesitation to wage a war against LWOP makes more sense when you consider the LWOP situation in the European countries themselves, who also seem to interpret Trabelsi rather narrowly. Only Croatia, Bosnia and Herzgovina, and Portugal have abolished all forms of indefinite imprisonment. So did Spain, in 1928, but it brought the penalty back in 2015. By contrast, many countries have legally prescribed LWOP sentences: England and Wales, the Netherlands, Moldova, Bulgaria, Italy, Hungary, Malta, Cyprus, Albania, Ukraine, Serbia, and the Republic of Ireland. In some of these countries, evidentiary findings of dangerousness can prevent life prisoners to be released. In Austria and in Ukraine, the only way out of life imprisonment is presidential clemency or a finding that the person will not commit further crimes. As a consequence of Trabelsi, the Netherlands has recently allowed resentencing of life prisoners who have served at least 25 years. Even in LWOP-retentionist European countries, courts retain judicial discretion to decide whether a sentence of life should include parole or not.

One of the two recent cases before the ECHR involved Ismail Sanchez-Sanchez, who was arrested in the UK for his role in a conspiracy to ship more than 2600 kgs of Mexican marijuana to Atlanta, GA. At his extradition hearing, Sanchez-Sanchez argued that there was “a real risk that he would be sentenced to life imprisonment without parole.” The British judge, following the logic of Harkins, tried to assess the likelihood that Sanchez-Sanchez would receive LWOP at his federal trial. For the drug conspiracy alone, Sanchez-Sanchez was unlikely to receive a life sentence on any count, and it was even less likely that he would be serving his sentences consecutively. The fact that one of his co-conspirators died of a fentanyl overdose made it more likely that they prosecution would request a life sentence; such a sentence, however, would not be “irreducible”, as Sanchez Sanchez could appeal, apply for executive clemency, and/or request compassionate release.

The ECHR looked at the case through the lens of both Trabelsi and the British cases, and also received some information from the U.S. federal government that addressed both the prevalence of LWOP in the federal system and the particulars of Sanchez-Sanchez’s case. As to the latter, the U.S. Attorney specified that the prosecution recommended a life sentence for each of Sanchez-Sanchez’s conspirators, but they pled guilty and so avoided that sentence. The ECHR highlights the distinction between acknowledging that LWOP is inhumane as an institution within member countries and applying it to extradition to the US:

Within the domestic context, the applicant’s legal position, having already been convicted and sentenced, is known. Moreover, the domestic system of review of the sentence is likewise known, both to the domestic authorities and the Court. In the extradition context, on the other hand, in a case such as the present where the applicant has not yet been convicted, a complex risk assessment is called for, a tentative prognosis that will inevitably be characterised by a very different level of uncertainty when compared to the domestic context. This calls – as a matter of principle, but also out of practical concerns – for caution in applying the principles flowing from Vinter and Others, which were intended to apply within the domestic context, to their fullest extent in the extradition context. . .  Therefore, while the principles set out in Vinter and Others must be applied in domestic cases, an adapted approach is called for in the extradition context.

The first step in this “adapted approach”, according to the ECHR, is an inquiry into the “real risk” that the particular person facing extradition will receive LWOP after extradition. If so, we move on to the second step – an inquiry whether “there exists in the requesting state a mechanism of sentence review which allows the competent authorities there to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.” Because of the uncertainty surrounding Sanchez-Sanchez’s odds of LWOP, as well as the sentences of his co-conspirators, the ECHR concludes that “the applicant cannot be said to have adduced evidence capable of showing that his extradition to the US would expose him to a real risk of treatment reaching the Article 3 threshold”, which renders the second step of the analysis unnecessary.

In the second case, Beverly Ann McCallum, suspected of involvement in the brutal murder of her husband in Michigan, was apprehended in Italy (the murder was a cold case from 2004, solved only in 2015.) During her years of absence from the U.S., her daughter and a friend were charged with first degree murder (the friend pled to second-degree murder; the daughter pled not guilty, was tried, and received LWOP.) The Italian court found that the extradition could go forward given the sentence mitigation options under Michigan law, and McCallum appealed. While awaiting the decision (under home arrest due to ill health), McCallum received a diplomatic note from the Eaton County district attorney, promising that if extradited she would only face second-degree murder charges (no conspiracy charges, only disinterment and mutilation of a dead body), taking LWOP off the table and resulting in a maximum sentence of life with parole. Under Michigan law, lifers are eligible for parole after 15 years, and may also petition the governor for clemency. The Italian authorities, animated by this communique, extradited McCallum to the United States.

Before the ECHR, McCallum argued that the diplomatic note contained insufficient assurances that the Eaton County DA would not revert to the serious charges (note: they did keep their promise despite the brutality of McCallum’s involvement in the murder – H.A.) The ECHR disagreed: Diplomatic notes, they wrote–

are a standard means for the requesting State to provide any assurances which the requested State considers necessary for its consent to extradition. … [T]he Court also recognised that, in international relations, Diplomatic Notes carry a presumption of good faith and that, in extradition cases, it was appropriate that that presumption be applied to a requesting State which has a long history of respect for democracy, human rights and the rule of law, and which has longstanding extradition arrangements with Contracting States. … [I]t seems to the Court that if, following her extradition, the original charges against the applicant were to be revived, that would not be compatible with the duty of good faith performance of treaty obligations.

The ECHR also proceeded to dismiss McCallum’s argument that her eventual release on parole depended on the unchecked discretion of the Governor of Michigan in granting clemency and was therefore “irreducible.” The Court again disagreed, highlighting the fact that the clemency power was procedural, rather than legislated, and had nothing to do with parole, which in Michigan is the sole purview of the parole board:

[T]he Court is not persuaded that the applicant’s understanding of the Michigan system is correct. It observes that. . . a prisoner’s release on parole is at the discretion of the parole board. While the Governor of Michigan indeed enjoys a broad power of executive clemency, he or she is not involved in the parole procedure. Nor do the relevant legal provisions empower the Governor to overrule the grant of parole to a prisoner. As indicated above, appeal against the grant of parole lies to the competent circuit court.

An applicant who alleges that their extradition would expose them to a risk of a sentence that would constitute inhuman or degrading punishment bears the burden of proving the reality of that risk. In light of all of the above-mentioned factors, the Court considers that the applicant has not discharged that burden. Contrary to her claim, it appears that there is no real risk of the applicant receiving an irreducible life sentence, i.e., life imprisonment without eligibility for parole, in the event of conviction of the charges now pending against her in Michigan.

I find two important takeaways here. The first is that the ECHR draws a real line between the death penalty–now widely outside of the acceptable margin of reasonable state behavior for Council of Europe members–and LWOP which, unless absolutely mandatory, remains within the realm of the reasonable. The second is that, among the members of the “extreme punishment trifecta”, life with parole–even with everything we know about the slim odds of obtaining parole–is not in the same league as LWOP, and assurances that the sentence will be the former fully satisfy the requirements of Article 3. What this teaches me is that American exceptionalism seems to have been relegated only to the world of the death penalty, and that Europe isn’t that far ahead of us in fully recognizing the possibility of LWOP as barbaric.

How to Talk to Our Kids About Prison

Today we took our five-year-old son to visit Alcatraz. We had been talking about prisons for a while, and I’ve been telling him some of what we have been doing on COVID-19 in prisons, and we had the opportunity to make a family trip of it with a young relative who is visiting.

In the days before our trip I thought to myself – what a good dilemma to have, whether and how to expose my kid to the realities of incarceration. Many, many children nationwide (almost 200,000 in California alone) have no choice but to know all about the prison or jail experience, because a parent, a sibling, or another loved one is behind bars. I still remember the haunting opening scene from Brett Story’s film The Prison in Twelve Landscapes, in which we see mothers and young kids aboard a bus that drives all night to a remote prison. Megan Comfort’s book Doing Time Together tells the stories of the families, and Kay Levine and Volkan Topalli examine criminal trials attended by the defendants’ children as intergenerational punishment.

With my own fortunate son I’ve used two wonderful books, which do not sugarcoat the prison experience, but mediate it in age-appropriate ways. Matt de la Peña and Christian Robinson’s Milo Imagines the World tells the story of a young boy and his older sister as they ride the New York City Subway on their way to visit their incarcerated mother. It’s a very moving and empathetic book, offering empathy and connection. We have also read Emma Bland Smith and John Ely’s The Gardener of Alcatraz, which recounts the true story of Elliot Michener, who was incarcerated on The Rock in the 1950s. We also plan to read Mariame Kaba’s Missing Daddy and watch the special Sesame Street episode about children of incarcerated parents.

While we walked around the prison, we talked about the realities of living there. We compared the size of the cells to the rooms in our house, and talked about what it would be like to live in a room with no toys and very little furniture. When we got to the visitation block, we talked about kids who get to see their parents only through a glass; and when we got to the glum exercise yard, we talked about how much we value time outside in the natural world. My son walked away from the experience feeling that prison was not a good place to be, and that it was important to be kind to everyone and offer them hope, even if they’ve done bad things in the past.

Trump Search Warrant Unsealed. Where’s the Affidavit?

Well, it’s happened: A search of Trump’s Mar-a-Lago residence yielded numerous items, all of which are listed in the search warrant, which you can read here in all its glory.

If you still can’t make heads nor tails of this, it’s because all we have seen so far is the warrant, which lists the place to be searched and items to be sealed, and not the affidavit, in which law enforcement officers detail their probable cause for the judge. As explained here, for reasons involving the ongoing investigation, it is unlikely that we’ll actually see the affidavit before formal charges are brought, so speculation abounds. Nevertheless, there are some things we can learn from the warrant. Here’s the description of the items sought:

a. Any physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes;

b. Information, including communications in any form, regarding the retrieval, storage, or transmission of national defense information or classified material;

c. Any government and/or Presidential Records created between January 20, 2017, and January 20, 2021; or

d. Any evidence of the knowing alteration, destruction, or concealment of any government and/or Presidential Records, or of any documents with classification markings.

Contrast this with the three crimes listed in the warrant and you get a fuller picture of the suspicions against Trump. Here’s an excerpt from this New York Times story, which describes these federal laws:

The first law, Section 793 of Title 18 of the U.S. Code, is better known as the Espionage Act. It criminalizes the unauthorized retention or disclosure of information related to national defense that could be used to harm the United States or aid a foreign adversary. Each offense can carry a penalty of up to 10 years in prison.

Despite its name, the Espionage Act is not limited to instances of spying for a foreign power and is written in a way that broadly covers mishandling of security-related secrets. The government has frequently used it to prosecute officials who have leaked information to the news media for the purpose of whistle-blowing or otherwise informing the public, for example.

Importantly, Congress enacted the Espionage Act in 1917, during World War I — decades before President Harry S. Truman issued an executive order that created the modern classification system, under which documents can be deemed confidential, secret or top secret. The president is the ultimate arbiter of whether any of those classifications applies — or should be lifted.

As a result, while these classifications — especially top secret ones — can be good indicators that a document probably meets the standard of being “national defense information” covered by the Espionage Act, charges under that law can be brought against someone who hoarded national security secrets even if they were not deemed classified.

The list of items that the warrant authorized the F.B.I. to seize captured this nuance. It said agents could take “documents with classification markings,” along with anything else in the boxes or containers where they found such files, but also any information “regarding the retrieval, storage or transmission of national defense information or classified material.”

The government has not said what specific documents investigators thought Mr. Trump had kept at Mar-a-Lago, nor what they found there. The inventory of items was vague, including multiple mentions of “miscellaneous top-secret documents,” for example.

But the invocation of “the retrieval, storage or transmission” of secret information in the warrant offered a potential clue to at least one category of the files the F.B.I. may have been looking for. One possible interpretation of that phrase is that it hinted at encrypted communications, hacking or surveillance abilities.

The other two laws invoked in the warrant do not have to do with national security.

The second, Section 1519, is an obstruction law that is part of the Sarbanes-Oxley Act, a broad set of reforms enacted by Congress in 2002 after financial scandals at firms like Enron, Arthur Andersen and WorldCom.

Section 1519 sets a penalty of up to 20 years in prison per offense for the act of destroying or concealing documents or records “with the intent to impede, obstruct or influence the investigation or proper administration of any matter” within the jurisdiction of federal departments or agencies.

The warrant does not specify whether that obstruction effort is a reference to the government’s attempts to retrieve all the publicly owned documents that should be given to the National Archives and Records Administration, or something separate.

The third law that investigators cite in the warrant, Section 2071, criminalizes the theft or destruction of government documents. It makes it a crime, punishable in part by up to three years in prison per offense, for anyone with custody of any record or document from federal court or public office to willfully and unlawfully conceal, remove, mutilate, falsify or destroy it.

Given that the ongoing investigation is still shrouded in mystery, assuming that there isn’t some glaring horror, this is beginning to look like Al Capone’s prosecution for tax evasion.

My Chesa Recall Punditry: The View from Bayview-Hunter’s Point

Last night provided me a unique vantage point on the Boudin recall effort: I was an inspector at a polling station in Bayview-Hunter’s Point, which is a neighborhood with a long history of neglect and criminalization. It is also unique in its demographics: 33.7% African American in a city that is just under 6% African American as a whole. There were approximately 650 registered voters in our precinct. 18 voted by mail and 17 voted in person, for a grand total of 35 voters. That’s 5% of the electorate. Things were somewhat better, but not by much, elsewhere in the city. By stark contrast to the 2020 Presidential election, pre-election mail-in voting in this local election–the third in 2022!–was very low. Our Federal Election Deputy (FED), who came to visit us throughout the day, reported that the polls were quiet and dormant throughout the whole day, pretty much everywhere.

Why does this matter? Take a look at a map published in today’s Chron of the neighborhoods that voted against Boudin:

At first glance, the story appears to be that neighborhoods associated with Asian-American populations tended to support the recall more fervently. This is unsurprising, and only talked about in hushed tones even though I think it is a big part of the story. In the last few weeks I saw concerted, fervent activism in support of the recall from very similar crowds to the ones who drove the SFUSD recall from a few months ago: it’s not all about out-of-town Republican millionaires conning unsuspecting masses into false consciousness. These are pretty much the same parents who resented the performative woketalk from the Board about school renaming and lottery admissions to Lowell. I suspect that some residual energy poured over from the previous recall (which I think was 100% justified) to this one (which I think was not.) The superficial narrative might be that a permissive and forgiving attitude toward prosecuting some people (read: presumably, young African American men) incentivizes crime and victimization (read: toward, presumably, Asian American victims) in the same way that lowering standards and talking about reparations and abolitionism (read: a narrative that supports, presumably, a monolithic African American interest) harms the pursuit of hard work and excellence in education (read: the purview, presumably, of Asian American students and parents.)

This story, which suggests the fomenting of racial animus between these two groups, building on the racial conflict undertones of the previous recall, is not completely preposterous. Most of the people who came to vote in person yesterday at our precinct were African American, and from their conversations, I gathered they all came motivated to vote against the recall. But this assumes that we can understand and generalize trends from a pretty minuscule percentage of San Franciscans. It’s not that the people who live in my beautiful city don’t care about criminal justice administration. NextDoor and other social media outlets are full of people chewing each other’s heads off about whether this or that wave of smash-and-grab, retail theft, or other incident is Chesa’s fault. But how many people care enough about this to put work into reading a hefty booklet and considering their positions on a three-page ballot, in which Prop H was the very last voting issue on the back side of the third page, for the third time in a row in the same year?

Over the years, I’ve returned again and again to Vanessa Barker’s excellent book The Politics of Imprisonment. Barker conducts a three-way comparison of penal politics in three states: California, Washington, and New York, finding that California’s political culture more easily lends itself to punitive experiments because of its polarization and populism. I write about this culture in Yesterday’s Monsters, when I show how politicized and emotion-driven the issue of parole is. In this kind of political environment, where money and strong interests can push something into the ballot as well as foment a well-oiled promotion machine (complete with all the tricks and deceptions we’ve come to expect from the initiative process), it is not difficult to swing the pendulum back and forth, from big reforms to big cancellations, from experiments in jurisdictional shifts to draconian policies masquerading as victim’s rights policies, and everything in between.

Ultimately, I think that what we saw here was just an exercise in manipulating this big machine and effectuating huge change through a relatively small number of voters. Direct democracy can be, and is, too direct when it imposes this burden thrice a year on already exhausted, grieving, anguished, and ticked off people with an empathy deficit from three years of awfulness that followed four years of a different kind of awfulness. In sum, whether or not the small minority who bothered to show up at the polls has false or true consciousness matters much less, sadly, than the forces exploiting the initiative process far beyond the Bay Area.

Would it have made a difference if the entire Bayview-Hunter’s Point electorate showed up en masse and voted against this recall? Of course it would. But after everything we’ve all been through–the impoverished folks in the neglected parts of town disproportionately suffering–we just didn’t have it in us to make yesterday a proud, sparkling moment for people-powered government, and even though it’s not our fault, we will all have to live with the consequences. Increased incarceration and the return of cash bail will not deter violent crime (but people’s attention will wander, and those who supported the recall will stop paying attention). Crime might go up (despite the recall, the supporters will say, or because of the recall, the opponents will say) or it might go down (because of the recall, supporters will say, or despite it, opponents will say) and we will continue to delude ourselves that dumbing down complicated policy decisions, deceiving people with oversimplified campaigns, and seasoning everything with some piquant interracial conflict, is how democracy should work.

The truth is that crime rates are like the weather. They rise and fall for a variety of reasons, only a few of which we can measure, and most of which have nothing to do with who is in charge. They have very little to do with big punishment trends (though, in localized situations, they do depend on effective police work in solving crime, which is a damn difficult thing to do when the community doesn’t trust the police enough to help.) It takes a real sea change in policy to effectuate changes in criminality patterns. But our megalomanic assumption that we can control crime rates through tinkering with policies will persist, and we will keep tinkering, until no one has any energy left to vote.

I offered a few more thoughts on KCRW here.

Justice Delayed is Justice Denied on the Appellate Level: Eisenberg vs. the Third District Court of Appeal

Not being on Twitter, while glorious, has its drawbacks; I would not have found out about this story if not for my colleague Paul Belonick, who came upon it through this thread. The story, in essence, is this:

The Sixth Amendment guarantees anyone the right to a speedy trial. What’s unique about this right, as the Supreme Court explained in Barker v. Wingo, is that it is often (though by no means always) in the interest of the defendant to delay matters in court: witnesses could forget and disappear, evidence could be mislaid, etc. But if someone is in pretrial detention, the clock ticks while the person’s ability to plan their defense is hampered. At the same time, speedy trial saves time and makes courts more efficient, and in that respect, it is as much a “right” of the government and the public coffers as it is of the defendant. For this reason, when someone brings a speedy trial motion, the court tallies the delays that are the government’s fault versus those that lie at the door of the defendant. There are official limitations on the time that can pass before a case is brought to trial at both the federal and state levels.

But speedy trial problems can happen at the appellate level, too–especially true for defendants languishing in prison while their appeals are pending. In 2021, well-known appellate attorney Jon Eisenberg decided on an unusual course of action: he sued the Third District Court of Appeal for the delays, framing them as the Court’s failure to comply with ministerial duties. In his petition for a mandamus writ, Eisenberg wrote:

***

Since 2018, the court has denied calendar preference for at least 278 criminal appeals, with cases languishing from 12 to 99 months after being fully briefed. In some cases, the defendants had already served part or all of a reversed prison term or sentence enhancement—an egregious failure of the appellate process. Systemic inordinate delay in adjudicating criminal appeals is unconstitutional—a denial of due process. Where a right of appeal is afforded, the adjudicatory process must be timely. Currently, the Court of Appeal for the Third Appellate District has yet to calendar at least 66 criminal appeals that have been fully briefed for 12 to 41 months. Expeditious action by this Court is essential to protect dozens of inmates who are threatened with irreparable injury—or the worsening of irreparable injury already suffered—from denial of their constitutional right to timely appellate review. This systemic denial of statutory and constitutional rights is a stain on the integrity of California’s appellate process. This Court should not condone it by inaction.

I. CODE OF CIVIL PROCEDURE SECTION 44 GIVES CALENDAR PREFERENCE TO CRIMINAL APPEALS. Code of Civil Procedure section 44 prescribes two forms of priority in calendaring appeals—among civil appeals, and between civil and criminal appeals. First, the statute requires “preference in hearing in the courts of appeal” for probate, contested election and certain defamation cases. Second, prioritized civil appeals must be placed on the calendar “next after cases in which the people of the state are parties.” These provisions have the effect of mandating calendar preference for all criminal appeals. “Adult criminal appeals receive priority because they are cases ‘in which the people of the state are parties.’” Thus, once a criminal appeal is fully briefed, it must be placed on the next available oral argument calendar—which in most Courts of Appeal usually means three or four months later.

II. SYSTEMIC DELAY IN THE CRIMINAL APPELLATE PROCESS IS UNCONSTITUTIONAL. Although there is no federal constitutional right of appeal, “if a State has created appellate courts as ‘an integral part of the … system for finally adjudicating the guilt or innocence of a defendant,’ [citation], the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the [U.S.] Constitution.” This means a state’s criminal appellate process must be timely. “[F]ederal courts have held that undue delay in processing an appeal may rise to the level of a violation of due process.”  “[A]n appeal that is inordinately delayed is … a ‘meaningless ritual.’”

The Tenth Circuit has enunciated a general rule that delay in adjudicating a noncapital criminal appeal for more than two years after filing of the notice of appeal—including more than 11 months from the completion of briefing to the filing of the opinion—“gives rise to a presumption that the state appellate process is ineffective.” This “rebuttable presumption of prejudice” is applied where “such delays are chronic and systemic and have resulted in the wholesale denial of the right to a reasonably timely appeal.” “Delays of such magnitude produce an unacceptable threat to the integrity of the appellate process.” The most obvious and egregious prejudice from inordinate delay in a criminal appeal occurs when the defendant has already served part or all of a reversed prison term or sentence enhancement—which has happened more than a few times in the Third District. In such instances, the right of appeal is wholly subverted. Prejudice can also occur when delay impairs the defendant’s right to a retrial or resentencing after reversal—for example, due to faded memories or lost evidence. And harm can occur even if a long-delayed appeal eventually proves to be unsuccessful—in the form of emotional damage from the “increased anxiety, mistrust, hopelessness, fear, and depression” that “results from the very thwarting of the hope that liberty will be restored through a right that the State has guaranteed—the appellate process.” The rule should be no different under article I, section 7 of the California Constitution. “[T]he proper and efficient administration of the penal laws of the state, due regard being had to established procedure, demands a speedy resolution of all appeals taken in criminal cases.”

III. THE THIRD DISTRICT IS SYSTEMICALLY DENYING STATUTORY CALENDAR PREFERENCE FOR MANY CRIMINAL APPEALS.

A. Hundreds of Criminal Appeals Have Been Denied

Calendar Preference, With Dozens Yet to be Calendared. Justice Raye was appointed to the Third District in 1991 and became its Administrative Presiding Justice in 2010. His predecessor as Administrative Presiding Justice retired in September 2010. That same month, the Third District commenced a decade-long practice of failing to accord calendar preference to many criminal appeals.1 From September 2010 to March 2012, Justice Raye authored four decisions in criminal appeals with lapses of 17 to 25 months from fully briefed to submission for decision. Thereafter, the number of substantially delayed. Third District criminal appeals steadily rose, 1 Previously, such delay was rare. Petitioner has found only two Third District criminal appeals that were prejudicially delayed during the two years preceding Justice Raye’s appointment as Administrative Presiding Justice. (People v. Petit [18 months from fully briefed to submission for decision; adding 112 days conduct credit after sentence completed]; People v. Garcia [14 months from fully briefed to submission for decision; striking 8-month sentence enhancement after sentence completed].) 19 with longer delays. In 2012–2013, Justice Raye authored 17 decisions in criminal appeals with lapses of 13 to 36 months from fully briefed to submission for decision. By 2018, in cases authored by Justice Raye and other Third District justices, the court was failing to accord calendar preference to dozens of criminal appeals annually, some with extraordinary delays. From 2018 to the present, at least 212 criminal appeals had lapses of 12 to 99 months from fully briefed to submission for decision. Each was calendared months or years after the calendaring of civil appeals that were fully briefed long after those criminal appeals were fully briefed.

Other Third District criminal appeals, however, have been accorded calendar preference. As of this writing, at least 66 fully briefed Third District criminal appeals have yet to be calendared, with lapses of 12 to 41 months from fully briefed to submission for decision. (Eisenberg 2 Petitioner determined the numbers of delayed criminal appeals recounted in this petition by manually reviewing online docket entries for some 20,000 Third District filings. Given the limitations of that methodology, the true numbers are likely higher. The Third District’s internal records can complete the picture. Meanwhile, the Third District continues to calendar civil appeals that have been fully briefed for as few as four to eight months. 

B. Calendar Preference Failures Have Prejudiced Many Defendants.

Each of the 278 delayed criminal appeals referenced in this petition exceeds the Harris threshold for the rebuttable presumption of prejudice from unconstitutional delay—more than two years from notice of appeal to filing of opinion, including more than 11 months after completion of briefing. In some of those cases, actual prejudice is demonstrated by the fact that the defendant had already served part or all of a reversed prison term or sentence enhancement by the time of adjudication. For example: This despite the fact that, according to the Third District’s clerk/executive officer, “‘tentative opinions have already been prepared’” in many of those cases.

The Third District has also failed to accord calendar preference to some probate appeals, as Code of Civil Procedure section 44 also requires. [docket entries for four probate appeals with 17 to 21 months from case fully briefed to submission for decision].)

• In People v. Kalac [16 months from fully briefed to submission for decision], the Third District struck a one-year sentence enhancement only after it had been served. The People had conceded the point from the outset.

• In People v. Speegle [53 months from fully briefed to dismissal of appeal], the Third District dismissed as moot the defendant’s appeal from an order denying his transfer out of Napa State Hospital for outpatient treatment—because he had completed his seven-year commitment pending the appeal. 

• In People v. Weathers [41 months from fully briefed to submission for decision], the Third District struck a partially served 10-year sentence enhancement. Again, the People had conceded the point. Weathers is especially noteworthy because, by contrast, in an almost simultaneously filed appeal presenting the same conceded issue, a different Third District panel ruled just 81 days after the concession, thus giving that defendant the benefit of the court’s decision.

• In People v. Wrobel [52 months from fully briefed to submission for decision], the Third District reversed a 44-month prison sentence and remanded for misdemeanor sentencing only after the defendant had completed the sentence.

• In People v. Johnson [24 months from fully briefed to submission for decision], the Third District struck an already served five-year sentence enhancement.

• In People v. Kent [78 months from fully briefed to submission for decision], the Third District struck an already served eight-month sentence enhancement.

The extraordinary delay in these cases, resulting in defendants having served part or all of a wrongly imposed sentence, is an egregious failure of the appellate process.

C. These Systemic Failures Were Presaged.

These systemic failures of calendar preference for Third District criminal appeals may lack bad intent, but they have effectively operated to implement a proposal the Legislature 23 rejected four decades ago—that in criminal cases there should be no absolute right of appeal at all, much less calendar preference. In 1979, this Court held that the Court of Appeal may not summarily affirm a criminal conviction without full briefing and the right to oral argument, as guaranteed by statute and the California Constitution. In 1981, Justice Raye, at the time Senior Assistant Attorney General for Legislative Affairs, urged the Legislature to supersede Brigham, testifying in support of a bill the Attorney General’s office was sponsoring—Senate Bill No. 1197—which would have eliminated appeals as a matter of right in criminal cases and made criminal appellate review conditioned on the trial judge’s discretionary issuance of a “certificate of appeal.” The bill failed. Immediately before Justice Raye’s testimony, Court of Appeal Justice Winslow Christian testified in opposition to summary affirmance of criminal convictions and urged the Legislature not to alter the statutory calendar preference for criminal appeals, stating: “[T]hat’s a priority that I think is sound. It should not be changed.” Justice Raye then testified:

• “[W]e think there should be some limitation on the right to appeal in consideration of the fact that over 90 percent of criminal appeals result in affirmance and a substantial number of that 90 percent could be characterized as frivolous appeals.”

• Under proposed Senate Bill No. 1197, “[a]ppeal would be only by a certificate of appeal granted by a trial court… Another proposal that we’re considering is vesting discretion not with the trial court but with the court of appeal to decide whether an appeal, on its face, presents substantial issues that warrant consideration by a panel [of] the court of appeal … and the court of appeal would have discretion to refuse to entertain an appeal.”

• “We think this Committee should consider a procedure whereby our office on behalf of the people can move for [summary affirmance] of appeals filed with the court of appeal. We attempted to do this under existing law about three years ago and regrettably the Supreme Court ruled the procedure … improper as not being authorized and in fact being at odds with court rules and with statute … The case name is People v. Brigham.”

A month before this legislative hearing, Justice Raye wrote to members of the Senate opposing an ultimately successful bill to increase the number of Court of Appeal justices statewide. Justice Raye argued that “the more appropriate remedy is to curtail the filing of the frivolous appeal” and “[t]he Courts of Appeal must also become selective in the cases they hear.” During Justice Raye’s tenure as Administrative Presiding Justice, the Third District has only selectively complied with Code of Civil Procedure section 44, thus effectively undermining Brigham by withholding meaningful appellate review in many criminal appeals—sometimes with serious consequences.

IV. MANDATE LIES TO COMPEL STATUTORY COMPLIANCE.

This Court has original jurisdiction to adjudicate this petition. Under such jurisdiction, mandate lies to compel public entities and officers to perform ministerial duties. A ministerial duty may be created “either by statute or by constitutional compulsion.” “A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a 26 given state of facts exists.’” The statutory duty of appellate courts to accord calendar preference to every criminal appeal is plainly ministerial. The “act” they are “required to perform in a prescribed manner” is to put fully briefed criminal appeals on the next available calendar. The “given state of facts” (ibid.) is a criminal appeal having become fully briefed. Code of Civil Procedure section 44 affords no discretion “concerning such act’s propriety or impropriety.” The gravity of the Third District’s mismanagement of its criminal docket amply justifies exercise of this Court’s original jurisdiction to compel compliance with Code of Civil Procedure section 44. Expeditious restoration of statutorily mandated calendar preference for all Third District criminal appeals is essential to protect dozens of inmates currently facing irreparable injury—or the worsening of irreparable injury already suffered— from denial of their constitutional right to timely appellate review. 

***

The California Supreme Court formally denied Eisenberg’s petition, but wrote: 

***

We recommend that within 180 days of this order, the Judicial Council complete an investigation of alleged delays in the Third District Court of Appeal’s disposition of criminal appeals and, if appropriate, propose measures that the Judicial Council and the Court of Appeal should employ to address any problems that are identified.

***

As a consequence of the investigation, three appellate judges resigned (see herehere, and here.)

June 2022 Election: Blog Endorsements

Back when hadaraviram.com was California Correctional Crisis, I used to offer election endorsements for your consideration, focusing on the criminal justice propositions. This election has offered a grim opportunity to contemplate the probable victory of two seasoned and experienced politicians, whose management of the COVID-19 crisis in prisons has reflected an astounding moral eclipse.

A while ago, I posted an endorsement against Gov. Gavin Newsom’s recall. We were all experiencing collective distress over his reluctance to do anything useful to save lives behind bars from COVID. My reasoning was this: the rest of the ballot was a list of egomaniacal clowns with no political experience, many of whom could not even spell their statements. And, as I said there:

I’m not an idiot, and I do understand the concept of the lesser evil. If you are so warped in single-issue agitation that you can’t see the qualitative differences between Newsom–an experienced and capable politician–and the rest of the lot, you need better glasses.

I wrote that post in August. in November, we found out that Newsom, the champion of science-forward, vaccine-forward policies in schools and everywhere else, thinks that unvaccinated guards are a-ok, and goes as far as to support them in their (devastatingly) successful appeal against a vaccine mandate. It was one of the ugliest examples of justice delayed becoming justice denied, can easily be attributed to the fact that the prison guards contributed $1.75 million to his anti-recall campaign, and has disillusioned me. I’ve come a long way from cheering for the then-Mayor of San Francisco who spoke at my 2005 PhD ceremony, and I’m feeling so full of bitterness and bile over the unnecessary loss of life that, this time around, I offer no endorsement for the gubernatorial position. Vote for whoever you want; Newsom will likely win.

The other person to resent is Attorney General Rob Bonta, who is the darling of all the progressive voting guides. Bonta and his employees are the architects of the prison system’s defense against the COVID lawsuits, both regarding San Quentin and more generally in federal court. Their bad-faith in court appearances and representations, ugly games, and shocking lack of regard for human life has soured me on Bonta to the point that I make no endorsement, even though on paper he is the better candidate of the lot and will likely win. I explain my position in detail here. The short version is this: Bonta thinks that he works for us only when he legislates or creates policy, and that when his office litigates, he is the Tom Hagen of the prison guards. That’s an unacceptable perspective for a public servant.

I try not to be a one-issue voter, but having experienced the COVID-19 prison catastrophe up close it is very difficult to justify voting for Newsom and Bonta. Follow your conscience/calculus.

By contrast to these two, one public official shines as a person of profound understanding and conscientious behavior, and that is Phil Ting. I endorsed Phil’s assembly campaign in 2018 and am happy and proud to endorse him again; his conduct during the COVID-19 crisis was nothing short of exemplary. As Chair of the Assembly Budget Committee, Ting presided over a hearing in which, finally, Kathleen Allison was being asked hard questions about her policies and the way CDCR was handling itself. He has also been very sensitive to issues of parole and one of the only politicians with enough guts and public responsibility to realize that long-term aging prisoners are the best release prospects from both a medical and a public safety standpoint. Vote for him again.

There are two criminal justice issues on the ballot. One of them is the ridiculous Prop D, likely thrown into the ballot to add a prong to the Chesa Boudin recall effort by creating the (false!) impression that the D.A.’s office is not responsive to victims’ needs. There is a long tradition in CA of deceiving the voters to believe that there is a need for a victims’ bill of rights and services, when one has existed since 1982 (I explain all this in Chapter 3 of Yesterday’s Monsters.) Just like Marsy’s Law and other deceptive initiative tricks, this is money allocated to no good cause, creating duplicative services that already exist. The Chron is far too gentle on this. Don’t be swindled – vote NO on D.

Finally, speaking of swindling, you already know my position on the Boudin recall effort. There’s a well-oiled, well-funded machine here trying to roll back important reforms, and exploiting people’s exasperation at the misery and turmoil in town, which are NOT Boudin’s fault by a longshot. Don’t be deceived! Vote NO on H.

Impending Closure of Death Row

A couple of days ago I spoke on KCRW about the announced closure of death row at San Quentin. Here’s the story as it appeared on the KCRW website, followed by some additional thoughts from me:

***

Governor Gavin Newsom announced this week a plan to shut down the notorious death row at San Quentin State Prison. The plan would move the prison’s most condemned inmates to other maximum security prisons over the next two years, in an effort to create what Newsom calls a “positive and healing environment” at the Northern California prison. 

San Quentin has the largest death row population in the nation — nearly 700 total. And while California hasn’t executed anyone in more than 15 years, Newsom also signed an executive order imposing a moratorium on executions in 2019. 

The facility was originally a ship, and in the mid 19th century, prisoners themselves built the prison, explains UC Hastings law professor Hadar Aviram. “It’s a dilapidated facility, there are no solid doors, there are bars on the doors, ventilation is terrible. So it’s a facility that was built for 19th century standards. And just because of inertia, we are still incarcerating people in the same condition.”

She points out that the facility is located in a geographically beautiful area surrounded by expensive real estate. “In many ways, [it’s] a waste to have a prison there where people don’t enjoy the seaview and are incarcerated in terrible conditions.”

However, she notes that people currently aren’t being executed due to the moratorium, and since 1978, the state executed only 13 people, and more than 100 died of natural causes during that time. 

“Just during this moratorium that Governor Newsom introduced, more people died on death row from COVID during the horrific outbreak at Quentin than we executed since 1978. So I’m sure that is giving some pause about the utility of the exercise of keeping people there,” Aviram says. 

Because San Quentin is so old, inmates there suffered from coronavirus more than those at modern and well-ventilated facilities like the state prison at Corcoran, she says. Plus, it houses lots of people who are aging and infirm, who were thus already immuno-compromised and vulnerable to the virus.  

Emotional and political reasons may be driving votes

California voters approved a ballot measure in 2016 to speed up executions, and the measure included a provision allowing death row inmates to be relocated to other prisons where they could work and pay restitution to their victims.

Aviram says over the years, there have been several attempts to abolish the death penalty through voter initiaties, but they always lost by small majorities. 

Through inquiries, polls, and conversations with people, she says she realizes: “People are voting for the death penalty largely for emotional, sentimental, political reasons. They are more in love with a fantasy of having a sentence that’s reserved for the worst of the worst, and can deter people.” 

She describes death row in California as “basically a more expensive version of life without parole that costs us $150 million a year.”

She adds, “It’s probably a good idea to think of the death penalty as undergoing the same process as some of the people who have been sentenced to death, which is rather than an execution, the death penalty is going to die a slow natural death itself, just from disuse and from this gradual dismantling.” 

However, some district attorneys continue asking for the death penalty in capital cases, though the state doesn’t execute people anymore, as they hope the governor might revive the policy, Aviram points out. However, she says, “I think that because of the national trends … it is extremely unlikely that it’s going to come back.”

Newsom’s reimagining of prisons and what’s missing

When the governor says a “positive and healing environment,” Aviram says this means a life where inmates find meaning and usefulness (do some jobs). 

But this doesn’t completely eliminate the death penalty, she says. “Because there is still one very big and expensive piece of the death penalty that is still with us — and that’s death penalty litigation.”

“We have this facility where people are sentenced to death and are still litigating themselves post-conviction, and that litigation is actually the lion’s share of the expense. So it’s only really going to go away if and when all of those sentences are commuted, and these people are no longer litigating their death sentences at the state’s expense. So that is the missing piece.”

***

Some more thoughts: First, it’s been interesting to follow the fanciful, but often idle, talk about the real estate potential of Quentin. Readers who have been to Quentin know how beautiful the village is and how glorious the waterfront vistas are. There are plans to close four prisons, but no definite plans for Quentin. Any prospects of selling that land are to be viewed with ambivalence. On one hand, what a waste to have a prison so close to the water, without windows to enjoy the view – a place that combines suffering with beauty. On the other hand, it would be a terrible loss for the folks housed at Quentin, dilapidated and dangerous as it is, to be strewn about prisons in remote locations in the state, far away from the progressive energy of volunteers and rehabilitative programming richness of the Bay Area that people so desperately need for making parole. In my wildest fantasies, we close Quentin down, transform it into a resort/retreat for nonviolent communication and community healing, rebuild with huge ceiling-to-floor glass walls overlooking the ocean and gorgeous walking trails, and offer all the men well-paying jobs running the resort.

About the money: I predicted much of this demise, based on national trends, in Cheap on Crime, and still think that the deep decline of the death penalty is in no small part due to the financial crisis of 2008. The fact that we still spend a sizable pile of money on death row, despite the moratorium, is not surprising, and shows that the disingenuous efforts to save money via Prop 66 didn’t fulfill their purported purpose. In 2016, when giving talks about this, I used to draw the triangle of home improvement; write in its three corners: good, fast, and cheap; and tell people, “you can have two.” We can’t compromise on having a “good” death penalty (one in which there are no constitutional violations and factual mistakes), and so, it cannot be fast or cheap. The big savings will only roll in when we get rid of the litigation piece.

There’s no better proof that the death penalty is on its last leg than the fact that Joseph Diangelo, the Golden State Killer, was sentenced to life without parole. If not the most notorious and heinous criminal in the history of California, then who? And the logic in Diangelo’s case applies to everyone else–why the death penalty? So they can continue litigating at the state’s expense and die a natural death? Whose interests does this serve?

About the actual job of relocating death row people to other prisons/general population: this is going to be a complicated and delicate job, and my fear is that it will be entrusted to folks who are not tuned in to the complexities. They would be moving people who have been effectively “at home” in solitary confinement in unique conditions, many of them for several decades, into facilities with much younger people and a very different energy. There could be animosities and alliances that are difficult to predict and go beyond crude racial/gang affiliations. This is true, generally speaking, for every prison transfer (long time readers remember the fears and concerns surrounding CDCR’s plan to comply with the landmark decision in Von Staich through transfers to other facilities); in the case of the death penalty, there are other factors, not the least of which is the unique combination of notoriety and frailness of the people to be transferred.

There’s also the question whether dismantling death row, what with its symbolic hold over the Californian imagination, slows down the dismantling of the death penalty itself. Without the physical reminder of the remnants of this archaic punishment, and with the growing resemblance of the death penalty to the two other members of the “extreme punishment trifecta” (life with and without parole), does the effort to abolish the death penalty lose its steam? The uphill battle for activists will be to spin this development to argue that the death penalty has been defanged beyond its utility; now that we’re left with only its negative aspects (to the extent that some people think it has advantages) it’s time to stop hemorrhaging state funds for incessant litigation.

***

Today I’m at the Annual Meeting of the Western Society of Criminology, speaking about FESTER. My panel starts at 8:15am island time in the Waianae room – come say hi!

The Hidden Side of the Prison Labor Economy on Marketplace

This morning I spoke with David Brancaccio of Marketplace Morning Report about the perversions and frustrations of the job market for formerly and currently incarcerated workers. The broadcast version is above – here’s the longer version from Marketplace:

This interview is part of our series Econ Extra Credit with David Brancaccio: Documentary Studiesa conversation about the economics lessons we can learn from documentary films. We’re watching and discussing a new documentary each month. To watch along with us, sign up for our newsletter.


There’s a striking scene in Brett Story’s documentary “The Prison in 12 Landscapes” that captures the complicated and exploitative aspect of rehabilitative prison labor programs: An incarcerated firefighter, explaining how they’re not allowed to talk to others on the job, adds that — because of their criminal record — they have a slim chance of becoming a firefighter upon leaving prison.

It’s an experience that’s common not just for prison firefighters, but for people who work making telemarketing calls, care for elderly or infirm people in prison, and more, according to UC Hastings law professor Hadar Aviram.

“There are many limitations on people working in these occupations, and because of that, the public is unaware of the fact that many of the people that they interact with every day are working as incarcerated people,” Aviram said in an interview with “Marketplace Morning Report” host David Brancaccio. 

While there are laws in place to protect formerly incarcerated people from hiring discrimination, Aviram noted that many barriers to employment remain, including the scarcity of rehabilitative work programs and their stringent terms and conditions.

“The programs themselves are very selective, it’s difficult to get into them, not all of them are evidence-based,” Aviram said, “so oftentimes they will train people to do jobs that they can’t actually get on the outside.”

Below is an edited transcript of Brancaccio’s conversation with Aviram on the other jobs prisoners commonly do, the challenges facing formerly incarcerated people who are trying to find work and what Aviram thinks can be done to increase their chances of finding meaningful jobs that take advantage of skills learned while in prison.

David Brancaccio: In this film, we see a California wildfire at first. It turns out that one of those working on the fireline, to keep it from spreading, is a person in prison, in a special prison work program. Would a program like that be common or fairly rare?

Hadar Aviram: Here in California, it’s extremely common. And among the people who saved probably thousands of lives in the last summer, when we had the wildfires, were many, many incarcerated people working as firefighters.

“The range of occupations that people have in prison”

David Brancaccio: It’s interesting, right? Because often people don’t know that, in fact, there’s a ban on people who are incarcerated speaking with members of the public while out there fighting the fire.

Aviram: Yes, there are many limitations on people working in these occupations and, because of that, the public is unaware of the fact that many of the people that they interact with every day are working as incarcerated people. A lot of the customer service on the phone, a lot of the furniture, things that are being manufactured — sweatshirts for dozens of Ivy League universities are made in a prison in Kansas, where people are getting paid 50 cents a day. It’s really astounding, the range of occupations that people have in prison. And I think that firefighting is an especially interesting example, because they are saving lives and they are working shoulder to shoulder with professional, non-incarcerated firefighters. The big irony, of course, is that then they get out and, at least until recently, they couldn’t get a job as firefighters, despite being trained, because they have a criminal record.

When formerly incarcerated people are unable to get jobs

Brancaccio: I mean, that’s the thing. There’s, of course, a move that we’ve spent some time covering on this program to ban employers from, for the first initial part of a job application, asking if you have a criminal record, but employers have a way finding out anyway, or it comes up during the background check.

Hadar Aviram

Aviram: Absolutely. I was one of the big pushers for this kind of, we call it “ban the box” initiatives, to screen people without knowing their criminal record. But, it turns out, colleagues of mine at the Urban Institute did a study and they found out that rather than employers discriminating on the basis of criminal records, they have started discriminating on the basis of race as a proxy for criminal records. So, for example, they’ll get job applications, and they don’t know which of the people have a criminal record, but they will interview the person called “Brad” rather than the person called “Jamal,” under the assumption that they are using this as a proxy for the criminal record that they don’t have an access to. It’s very frustrating, because you’re trying to create equal opportunities for everybody, but these things have such a protean quality that they pop up no matter what kind of protections you introduce in the workplace.

“Oftentimes prisons turn to these work programs because they think they’re going to be rehabilitative or whatever. But for the most part it’s economic considerations of the prison itself.”

Hadar Aviram, UC Hastings law professor

Brancaccio: What do you do about that? I mean, you know, there’s an ongoing national discussion, at some level, about what we’re addressing here. But, in part, when people have worked alongside people that they find out have criminal records, and they see firsthand that they’re like the rest of us, sometimes that can help break down these stereotypes?

Aviram: Absolutely. And this is a truth that has been found in studies all over. I mean, people have done studies, for example, of members of fundamentalist churches that, you know, will be railing against single mothers and gay people, but then they have a gay uncle or a niece who’s a single mom and they love them to bits, and that softens, a little bit, this approach.

And the same thing holds for people with criminal records. I just saw a study done at a college where there was a strong correlation between students who personally knew fellow students who were formerly incarcerated and their opinions about: Would they befriend somebody with a criminal record? Would they be willing to date somebody who had been in prison? So, truly, personal acquaintances and education and exposure is the most important thing that we can do to break down these barriers.

Brancaccio: Back to this notion of labor done by people in prison: When the phone rings at our house, it could be someone who is incarcerated at the other end of the line?

Aviram: Yes, absolutely. This is just one of many, many, many occupations that people engage in in prisons. Phone solicitation, customer service, a lot of manufacturing of everyday items that you wouldn’t even have an idea come from prison. And, of course, a lot of the work inside prisons. I don’t know that a lot of people know this: We have a high population of people who are aging and infirm in prison. And oftentimes the people taking care of them are trained caregivers who are incarcerated themselves. So a lot of the things that we think the state is providing, it’s actually people from inside the prison who are incarcerated themselves who are doing it.

Is prison labor, by definition, exploitative?

Brancaccio: What’s your sense, having studied this — I mean, is it, by definition, prison labor, exploitative? I mean, no one’s paid market rates for that labor.

Aviram: This is a complicated question, because there’s the world that we would want to live in, in which everybody gets minimum wage and in which you are actually trained for the reality of the marketplace. And there’s the realities of the world we’re in, in which prison labor, to different extents, is exploitative, and we therefore try to sort of improve people’s lot within the conditions that they’re in.

We have to keep in mind the fact that, to some extent, prison labor is training people for conditions in the market on the outside. But the problem is that oftentimes prisons turn to these work programs because they think they’re going to be rehabilitative or whatever. But for the most part it’s economic considerations of the prison itself. The programs themselves are very selective, it’s difficult to get into them, not all of them are evidence-based, so oftentimes they will train people to do jobs that they can’t actually get on the outside. Up until recently, the firefighting was one such example, but there are many other examples. The programs that do have occupations where people can work on the outside, like marine technology or carpentry, are highly selective; very, very few people can get in. Overall, a more realistic prospect for people coming out is to become independent contractors and work for themselves.

The kind of work formerly incarcerated people end up doing

Brancaccio: That’s what people end up doing? Working for themselves?

Aviram: Exactly. For example, you’ll find people that are putting together landscaping companies, house work companies. And there are some examples that are really amazing, of nonprofits that people have put on the outside, where they’re working in the marketplace and just doing amazing things. Right next to Hastings, which is where I teach, is a neighborhood called the Tenderloin in San Francisco, which, during the pandemic, became pretty much an open-air drug market — lots of homeless people, lots of misery, mental health, substance abuse, oftentimes people overdosing. And the mayor was upset by this, and a couple of times they sent the police to clean up the neighborhood with everything that stems from that. That was extremely difficult, because there were no solutions for people other than just sort of cleaning up the aesthetics.

And then a nonprofit stepped in called Urban Alchemy. They operate public restrooms, which is incredibly important in these kinds of neighborhoods. They operated safe sleeping sites during COVID. They calmed down violence, they actually revived people with Naloxone who had overdosed multiple times every week. They did amazing things. And what enables them to do this work more effectively and more peacefully than the police, and almost without any show of force, is the fact that they are former lifers, that the people who work at Urban Alchemy acquired these peacemaking and mentoring skills that they use every day on the job in decades in prison. They were elders and mentors on the yard when they were inside, and they retain this kind of calm mentorship role on the outside. And they have done such an amazing job that the change in energy in the neighborhood is palpable.

Brancaccio: Those are special skills that are in demand. It’s a shame that some employers don’t fully recognize this.

Aviram: Exactly. There are many ways in which we look at a criminal record or a previous prison stay as a liability. This is of course difficult, because at any given moment, 1% of the entire population of the United States is incarcerated. So we have a lot of people who actually have acquired skills and strengths where they were that we can use in the marketplace. I’m not just thinking about occupations that are entry-level jobs, I’m thinking even about entry into, say, the California bar, as lawyers. Think about what somebody brings in, coming in with an insider perspective on a criminal justice system, reassuring their clients about what’s going to happen to them, you know, being able to present a realistic perspective. There are so many strengths that you acquire.

One of the most successful programs we have in California is called marine technologies, it’s people who work underwater fixing ships and underwater structures. And this is partly a skill where it’s a great advantage to be used to being in a very overcrowded environment. This is difficult for a lot of people. But people, unfortunately, who spent time in our grossly overcrowded prisons have acquired this skill. This is a market strength that is being undervalued and stigmatized for no good reason.

Brancaccio: I was reading about that marine program. Recidivism, going back to the ways of crime, is near zero for people who’ve gone through that program.

Aviram: Those are good jobs. If you get a job like that, there is no reason for you to commit crime, because you have gainful employment. We have to think more evidence-based about these kinds of programs and strengths in the market and prepare people for that.

Brancaccio: Those programs often can be expensive within the prison. Sometimes when budgets are tight, as you’ve written, that’s the program that gets cut.

Aviram: Exactly. It’s one of the downsides. And this is something that I wrote in my first book “Cheap on Crime,” that we, overall, saw the prison population shrink since 2009. This was a result of the the recession of 2008. But one of the side effects of that that was more sinister was that there were drastic cuts to rehabilitative programming. And that created a big difference, a big gap, between prisons that are set in urban centers, where there’s lots of volunteers and do-gooders that step in and create these programs. Here, for example, in San Quentin [State Prison], we have Silicon Valley entrepreneurs volunteering to teach people the internet, which is very difficult when you don’t have internet behind bars. So we have all of this programming because of the volunteers, because they’re stepping in to fill in the gaps that the state cannot fill. But there are many, many prisons in the United States that are located in these remote, rural locations, very, very difficult to get there, and very difficult to get quality programming that actually prepares people to get good jobs once they get released.

Not the Chauvin Trial Commentary You Expect

We’re already being inundated with commentary about Derek Chauvin’s conviction and I don’t feel the need to add to the onslaught with too much, so I’ll just say this: Yes, I think this is the correct legal outcome. But I worry very much about the extent to which we are trying to achieve social, racial, and economic equality through criminal verdicts. I worry when people direct their outrage at charge dismissals and acquittals, because having read Frank Zimring’s When Police Kill, I know that waiting for deliverance through the courts is much more of a disappointment than systematic hiring and training changes. And I also worry when people direct their joy (sometimes in questionable ways) at convicting verdicts as the be-all, end-all of achieving justice. Getting to real equality requires the kind of boring financial redistribution of wealth work that doesn’t make headlines or attractive tweets to the extent that a high-profile conviction does. And we have a long way to go.

Do Some Rich People Think Democracy is Beneath Them?

In case the horrific damage Trump and Trumpism have done to our democracy was not obvious from the horrendous crimes in plain view of the last few days (or the last four years, including human rights crimes masquerading as policies) today we have evidence on the local level of how deeply the notion that democracy can be purchased and toyed with has resonated with some Silicon Valley dolts. Not that these people needed Trump’s encouragement to think of San Francisco as window dressing for their lives, and of all of us as “local color” providing a picturesque setting for their VC deals. But today really takes the cake with an idiotic fundraiser, organized by this guy, who seems to think that his claim to virtue–being ridiculously and ostentatiously rich in a city where other members of the human race have to starve, defecate, and die in the streets–is a proper substitute for actual criminal justice expertise.

This initiative comes in the heels of a horrific tragedy–a fatal car accident that claimed the lives of two women. The man behind the wheel, Troy McAlister, was intoxicated and driving a car he had stolen from a date. Because Chesa Boudin ran on a progressive prosecutor platform, the focus is on prosecutorial missteps that led to McAlister being free: before this recent crime, he had been headed toward trial in late 2018 on two counts of second-degree robbery in connection with a 2015 holdup in a San Francisco store. Boudin’s office “referred these cases to parole because we believed there was a greater likelihood of him being held accountable and having the kind of intervention that would protect the public and break this cycle of recidivism.”

Since I know something about parole, I can explain that there are two ways in which people on parole end up back in prison: either they commit a new crime, for which they are prosecuted and tried (this can take months, if not years) or they commit a parole violation that lands them back in prison. Oftentimes, there’s an overlap. While some parole violations are technical and trivial, others amount to new crimes. It is not unreasonable to think that a parole violation route will be more efficient than a new prosecution, though things have somewhat changed in terms of the implications. Before the Schwarzenegger Administration’s parole reform, parole violators pretty much automatically ended back in prison, even for very minor violations–resulting in a prison population comprised of 50% of the people doing time not for new crimes, but for parole violations. The reform, aimed at alleviating the obscene 200% overcrowding in the system, aimed to give parole agents more discretion and a range of intermediary sanctions before throwing them back in the slammer, depending on discretion and on how severe the violation was and how risky the person was judged to be.

Like any situation involving risk prediction, when deciding whether to remand a person to CDCR or use an intermediary sanction, parole agents could be right or they could be making one of two types of mistakes. False negatives are situations when the person is assumed to not be much of a risk but then commits a new crime (such as McAlister). False positives are situations where a person is kept behind bars, mistakenly perceived as a release risk, when had they been released, they would not have committed a crime. Obviously, we only hear about false negatives, not false positives, because they appear to be penalty-free. But false positives also have a grave price. As of today, 133 people have died of COVID-19 behind bars. Most of those people were aging folks, who are largely assumed to have aged out of crime, and who would have posed no danger to the outside world had they been released (which would have saved their lives.) Their illnesses and death, in turn, resulted in infections, illnesses, and deaths in the communities surrounding the prison. It’s just that our society is not particularly inclined to value the harm and price paid by these people and their families as we value the lives on the outside. But any time we make a judgment call about risk, we might be making either mistake. And that means that some mistakes, which are horrible, and tragic, and senseless, and enraging, cannot be prevented. This is a horrible truth to live, but it doesn’t necessarily indicate that there’s something systemically wrong at the prosecutor’s office or at the parole agent’s office. It indicates that someone made a horrible mistake.

Moreover, our attention to particular instances of false negatives blur their overall context. Every fatal traffic accident that happens in San Francisco, of which there are dozens every year, leaves a deep wound of grief in its aftermath. Many of them are as preventable as this one. And the vast majority of them never make the news, because they don’t involve parolees, which is why we deal with them through initiatives such as Vision Zero, rather than through hatchet jobs against our elected officials.

So why are we making this horrific tragedy into a cause célèbre? Because there are political hatchets being forged, such as this “astroturf fundraiser” (as my friend Chris Johnson called it), about which there isn’t much to say that isn’t obvious. However, obscene wealth seems to make people impervious to the obvious, so here it is: It turns out that we have a magical and effective mechanism in the United States for holding prosecutors “accountable to the people.” It’s called voting. The people wanted a progressive prosecutor and, should they be displeased, they can elect someone else. Voting comes in pretty handy in procuring accountability, because it is available to people who have less money than Mr. Calacanis. The funny thing is that, throughout the last decades, because of aggressive fearmongering propaganda, voting regularly and reliably produced aggressive prosecutors who almost singlehandedly drove our mass incarceration crisis. Now, we’ve been through the 2008 financial crisis, and the Obama administration, and the horrors of Trump and a second recession, and the American public has apparently come to the conclusion that they are ill served by this sort of prosecutorial policy, and so they are choosing something else.

Mr. Calacanis knows this, of course. He and his ilk have been more than happy with this system as long as the hoi polloi reliably voted for the kind of prosecutors they like, but democracy doesn’t suit them quite to the same degree when the plebeians want social services, relief from cash bail, a wrongful convictions unit, and humane jails. So when he claims to speak for “the people,” he is not championing you and me–he’s championing his rich buddies, whose favorite pastime is to abuse and exploit California’s delicate democracy and treat it as a playground for their contemptible ideologies and ridiculous experimentation. This is not a particularly original move. Calacanis is merely following in the footsteps of several folks just like him, like the wealthy guy who gave us Marsy’s Law (which we have to blame for having so many old and sick people behind bars, denied parole in the face of COVID-19 for no logical reason) or the clown who wanted to split California into six states. It should also come as no surprise that these folks believe that investigative journalism, just like democracy, is something you simply buy with Silicon Valley money–even though we have excellent investigative journalists at the San Francisco Chronicle who are all over this story and are not for sale.

Look, I’m not an idiot. I know that politics-for-sale is festering throughout this great nation, and I cling to my youth in Israel, where that was not the case to this depraved degree, mostly for sentimental reasons. I know that the social democracy in the Old Country breathes no more, but its memory and ethos live on, and I have daily proof that even that faint memory works better than than the corrupt, unbridled capitalism of the U.S., in the form of people from my age cohort in Israel posting pictures of having received the vaccine I can only dream about. I remember being physically nauseated when I read the Mueller report, partly because it gave me a window into the lives of oligarchs who think nothing of buying caviar for $30,000. Mr. Calacanis and his buddies are obviously not as rich as their Russian counterparts (that must sting,) but they’re trying to play the same game. And it is universally loathsome, regardless of whether the perpetrators wear ostrich jackets or Patagonia fleece vests.