Order Without Oppression: No Police Visibility at Women’s March

San Francisco’s City Hall was lit in pink yesterday as we, more than a hundred thousand residents, rose up to protest and march against the Trump Administration and to support civil rights. It was a powerful and encouraging experience.

San Francisco was not the only city in which huge crowds came together to protest what we fear might roll the course of progress decades back, and crowd scientists estimate that the numbers of protesters far exceeded the number of attendees at the inauguration itself.

Much has already been written, and will be written, about the positive energy of the march. I particularly appreciated the sentiment of unification: rather than carving injured identities and engaging in infighting, the left came together to support civil rights, equality, diversity, feminism, queer rights–all the things that have made our great city what it is. It gave me hope not only for a national movement to take our country back from reactionary fascists, but also for my own city, engaged in bitter conflict between old-timers and newcomers. For a few hours, we were all together, marching and chanting for what we believe in: that love and tolerance are what make a country great.

But as a criminologist, the most notable experience from yesterday’s march was the absence of visible law enforcement. More than 100,000 people got together, cramming some of the busiest streets in the city, and not one arrest took place. Not one expression of animosity by police. No visual police messaging to communicate that violations were expected.

I have written about protests and riots before, in the context of the protest gathering against Johannes Mehserle’s verdict. I very vividly remember arriving in downtown Oakland that day and being surrounded by helicopters, police vehicles, cops in riot gear. The messaging there was clear: people were expected to be violent and difficult and the officers were ready for them. The messaging at this march was the opposite. Even though the gathering had racial justice themes, and many of the walkers were people of color, the sense that the masses should be curbed and subdued was just not there. The only visible evidence of peacekeeping we saw were a few volunteers in colorful vests, but they were not vocal or dominant. The crowd controlled itself, and it did so beautifully and peacefully.

Apparently, this experience was not unique to San Francisco. No arrests in D.C., Los Angeles and other places. A handful of arrests in localized incidents the day before.

Cynics might say that the racial composition of the marchers and protesters might have something to do with police response. I think there’s a bigger truth behind that: events that promise to be peaceful, in which families march together with unifying messages, are perceived by law enforcement as being less threatening. This is not to say there aren’t legitimate law enforcement concerns at such events, starting with the obvious–making sure people are marching safely and not interfering with traffic–and continuing with the fear that someone will take advantage of the opportunity to kill and wound the crowd with explosives. I would not have resented calm and respectful police officers had they been there to engage in safety and protection, and I have no doubt that there *were* such officers, and that SFPD braced itself for a big undertaking. Somehow, to the extent that they were there, they were unseen and unfelt, and that was a very powerful experience.

Trumpland: Worse Than Nixon

The Trump Administration has published its 100-day plan. Read carefully: it includes mass deportations, as well as a Nixonian plan for federal funding of the police. The cycle continues.

The similarities are striking (especially the noxious racial undertones of both punitive turns,) but this is not merely a re-run of the late sixties: Trumpland is much worse than the early days of Nixonland in several ways.

First, when Nixon ran a campaign of aggressive criminal justice, there was at least partial justification for the public’s support of him. He had data in hand showing that crime rates were rising. Whether or not the public felt it on an everyday basis or it was governmental manipulation, it wasn’t complete distortion. It’s true, as Steven Raphael tells us, that the rise in crime may not have been as dramatic as we think, because crime rates seem to have been considerably underreported until the 1970s because of incomplete FBI data collection (not all counties were included.) But this means that, even if crime wasn’t rising that dramatically, there was plenty more of it than there is now.

By contrast, we are now experiencing the lowest crime rates in forty years (and, if the inacuracies from the 1970s are big, even in longer.) Trump’s capitalizing on a one-year rise in murder rates is simple deception. And, again by contrast to Nixon, there isn’t even a horrible redball crime in the form of the Manson murders to sway public opinion to the cause of oppressive crime control. The basis for this return to Nixonian policies is based on pure fabrication.

Second, when Nixon’s policies started fueling arrests and convictions, we didn’t already have so many people in prison. The arc of growth was enormous, but it grew from a much lower place. Even with recession-era reductions, prison population has only started to decline. An increase in prosecutions and incarcerations means enhancing an already grotesquely bloated criminal justice apparatus.

Third, after years of Nixonian growth, states already know all the tricks of prison construction: rather than taxing voters (who might like prisons, but don’t like paying for them) they’ll use lease-revenue bonds to house people.

And fourth, privatization is already well fused into the wheels of the penal machine. By that I don’t mean private prisons – I mean mostly the pervasive privatization of the insides of public prisons. In a hypercapitalist America, headed by the epitome of hypercapitalism, this industry is already well-positioned to take advantage of a further increase in incarceration.

I don’t think all of this is happening because the economy is better, but that certainly isn’t helping. Don’t get me wrong: of course I’m happy that the economy has improved. But one of the effects of this will be that a neo-Nixonian influx of money into policing and sentencing is going to create the same cycle I talked about in Cheap on Crime: we can afford to, so let’s arrest and charge lots of people, and let the states worry about how to pay for incarcerating them.

We’re looking at some dark times ahead. On many fronts.

Wear a White Rose

When my students arrived to class today, they were greeted with dozens of white roses–one at every seat. We talked about the election.

Our Muslim students talked about their family’s fear. Our African-American students talked about feeling like other Americans see them as less than human. Our immigrant students talked about how they had thought of America as a beacon of hope and diversity, only to wake up to a horrible reality. Our students who are parents talked about the difficulty of explaining what happened to children and giving them hope to go on.

I talked about how months of my work on Prop. 62 – time, talent, energy, verve, money–yielded negative returns: the failure of Prop. 62 combined with the horrifying and worrisome Prop. 66.

We talked about how difficult it is to get up in the morning and gear up for the work we so desperately need in these times.

I shared two things that have been personally helpful to me. One comes from my Buddhist practice, in which one traditional form of meditation involves “touching the Earth for our adversaries.” Our adversaries and enemies, formidable as they might be, reprehensible as their actions are, abhorrent as their values are, provide us with an important service: they remind us of our strength, our preferences, our values, and our actions. The opportunity to resist gives us an opportunity to examine and solidify our own intentions about what’s right in the world. It is a reminder of things greater than the self, of the impermanence of everything, and of how the mind (of an individual or of a society) has a limitless capacity for love and hate, generosity and greed, valor and fear. Our adversaries remind us to make mindful choices about our own values and strengthen our resolve.

The other one comes from growing up under the shadow of the Holocaust, in a country where upset and frustration and anxiety over the rise of fascism and bigotry comes in a healthy dose every four years since Yitzhak Rabin’s murder. What I learned from living in Israel, and from my grandma who fled Frankfurt in the 1930s, is that in times of great crisis and fear lies an immense opportunity to protect and help the persecuted and the downtrodden. It is in times like this that the social advantage, skills, and character of people like Oskar Schindler or Raoul Wallenberg can make a real difference in people’s lives. My students are uniquely positioned–due to their education and skills–to help and protect others, some from their own communities and some from other communities that may face perils and threats in the next few years. This means that everyone’s marginal utility in the world will grow manifold. Whether it’s working a public service job, picking cases, or donating a portion of a comfortable income to the cause of justice and civil rights, they–and you–have the power to make intentional decisions that can have a dramatic impact on your families, friends, neighbors, and fellow humans.

To keep a ritual and symbolic reminder of how much we can do to help, protect, and champion the people and values we care about, I am going to be wearing a white rose on my lapel from now on. The White Rose Society (die Weiße Rose) was a non-violent, intellectual resistance group in Nazi Germany led by a group of students and a professor at the University of Munich. The group conducted an anonymous leaflet and graffiti campaign which called for active opposition against the Nazi regime. Their activities started in Munich in June 1942, and ended with the arrest of the core group by the Gestapo in February 1943. They, as well as other members and supporters of the group who carried on distributing the pamphlets, faced unjust trials by the Nazi People’s Court (Volksgerichtshof), and many were sentenced to death or imprisonment.

The group wrote, printed and initially distributed their pamphlets in the greater Munich region. Later on, secret carriers brought copies to other cities, mostly in the southern parts of Germany. In total, the White Rose authored six leaflets, which were multiplied and spread, in a total of about 15,000 copies. They branded the Nazi regime’s crimes and oppression, and called for resistance. In their second leaflet, they openly denounced the persecution and mass murder of the Jews. By the time of their arrest, members of the White Rose were just about to establish contacts with other German resistance groups like the Kreisau Circle or the Schulze-Boysen/Harnack group of the Red Orchestra. Today, the White Rose is well-known within Germany and worldwide.

I’ve been giving away white rose lapel pins all day long, and am happy to send you one, reader, if you email me with your address. Wear it as a symbol of hope and commitment to compassion and action even in dark times.

Grieve as you need, and then roll up your sleeves and let’s get to work.

Are You Against the Death Penalty? Good. Then Vote Against the Death Penalty.

It’s no big surprise that the Prop 62 campaign, which calls for the death penalty repeal, is working hard to build a coalition across political lines. Because of that, the campaign rhetoric understandably aims at reassuring undecided voters that, even with abolition, they will remain safe; and its two main arguments, the obscene costs ($150 million a year) and the risks of wrongful convictions, are arguments that should appeal to all of us, regardless of our political convictions. But lately I’ve been hearing from some folks on the very left edge of the political map–progressives and radicals–who are thinking of voting no on 62 for various progressive reasons. If you are one of these people, this blog post is addressed to you.

First of all, friend who cares about progressive causes and criminal justice reform: I hear you. I hear that you are frustrated because you need the system to change at a faster pace and that some provisions in these propositions aren’t exactly what you’d hope for, and that you are concerned that if we pass these it’ll stall further steps. I hear that the democratic process is not moving things far enough and soon enough for you. I hear that you are giving this a lot of thought and are genuinely concerned about aspects of the proposed reform. I believe you that your dilemma is real. I understand that you are trying to do what you think is best for people in vulnerable situations.

I hope you can hear me when I say that, when you tell me you might be voting to keep the death penalty in place, it really, really frightens me.

I am frightened because I’ve been thinking, writing, and speaking about criminal justice reform for twenty years, five as a practitioner and sixteen as an academic, and the one thing I learned is this: in criminal justice, the perfect is the enemy of the good. And I am really afraid that in our quest to attain a perfect criminal justice system we might opt out of a crucial step on the way to where we want to be.

Please allow me to address your concerns one by one.

“If we get rid of the death penalty, aren’t we entrenching life without parole? I think life without parole is horrible, and we are affirming it as the upper range of punishment.”

You feel that life without parole is a hopeless, soul-destroying punishment, which offers a person no prospect of ever seeing life outside prison. And you feel this is especially cruel for very young people (a big chunk of our prison population) who become incarcerated in their twenties and are looking at a very long stretch behind bars.

You know what? I agree with you. Life without parole is, indeed, an extreme form of punishment. Like you, I am committed to a struggle to bring a possibility of hope–an exit possibility–to any prison sentence.

Unfortunately, we can’t start our fight against life without parole until we win our fight against the death penalty, which is within reach. This is, unfortunately, how political reform works: incrementally, with bipartisan support, and with a big base of consensus.

I wish there were a critical mass of Californians of all political persuasions convinced that our criminal justice system needs to be immediately reformed. Not just at the edges, not just for nonviolent inmates, not just for juveniles, but for everyone. But that is not the world we live in. The political reality is that, in order to make change, incremental steps have to be taken. Remember same-sex marriage? That didn’t happen overnight. There were revolutionaries calling for marriage back in the seventies, when it was unthinkable. Then, the movement had to regroup, advocate for lesser protections (domestic partnerships, workplace protection). Yes, domestic partnership was less than marriage in important ways. But this is why public opinion changed, between the mid-1990s and the early 2010s. Incremental change is what led to the triumph of that movement. 

For an even more relevant example, see what is happening with juvenile justice. Life without parole for juveniles is horrible, right? And look at how close we are to eradicating it–because in 2005, in Roper v. Simmons (2005) the Supreme Court abolished the death penalty for juveniles. It was the first step in a long series of reforms. In Graham v. Florida (2010) the Supreme Court felt comfortable relying on the same arguments to abolish life without parole for nonhomicide crimes. In Miller v. Alabama (2012) the Supreme Court relied on that logic to abolish mandatory life without parole for all juveniles, and then felt comfortable making that ruling retroactive in Montgomery v. Louisiana (2016). We are now within striking distance of abolishing life without parole for juveniles. None of this would have been possible without Roper v. Simmons.

This is even truer for legislative/public campaigns than for judicial change. To make reform happen, we need wide public consensus–not just an agreement among progressives. We need our conservative and moderate friends to live with the new situation for a while, realize that the sky doesn’t fall if punishment is less extreme, and accustom themselves to the idea of further reform. A classic example is marijuana legalization. Recreational marijuana would not be on the ballot–within reach and polling great so far–if Californians of all persuasions didn’t have a chance to live with medical marijuana for years and realize that it was not the end of the world. Do you think we would have been here, at this point in time, if progressive voters had declined to vote for medical marijuana, claiming that limiting legalization to medical patients wasn’t good enough? Similarly, conservatives and centrists grew accustomed to same sex marriages because they lived with domestic partnerships. They will be willing to consider a reform of life without parole if and when they see that the death penalty was abolished and it didn’t lead to a rise in crime rates, a decline in public safety, or any other negative consequences. You and I already know that giving reformed, aging folks a chance at parole is also not a safety risk. But not everyone knows that, and we need our friends across the political map to agree with us. We can’t make change otherwise.

I’ve been studying criminal justice reforms for the last sixteen years. I have not seen a single criminal justice reform that sprang perfectly from nothing. Every change we’ve seen since 2008–and we’ve seen plenty, believe me–was the product of incremental, bipartisan reform. This will be no exception. We can’t get from A to Z skipping steps along the way. I know you’re ready for Z. So am I. But the people whose hearts and minds we have to change so that Z happens–and we can’t make it happen without them–need us to go through all the steps so that we can have a coalition. What we want won’t happen otherwise.

“We are not really executing people in California anyway, and the delays are lengthy, so our death penalty really is just life without parole, with or without an execution at the end. So what would abolition actually achieve?”


Our peculiar situation in California is that we have about 750 folks in limbo. We could execute them, but through litigation efforts and mobilization we’re trying to stall their executions. Being on death row, friend, is not the same as being in general populations. Folks on death row are also in solitary confinement, do not work, and do not have access to the social and educational opportunities available in general populations. Our death row is notoriously dilapidated.

Also, can you imagine living with the uncertainty of whether you’ll be executed by the state some day? Ernest Dwayne Jones couldn’t. And in Jones v. Chappell (2014), a conservative District Court judge from Orange County agreed with him. Based on sound research on the effects of uncertainty, and the horrible thing it is to live with the prospect of being killed by your fellow men, the judge found the death penalty unconstitutional. We didn’t win that fight, even though we tried very hard: the Attorney General decided to appeal, and the Ninth Circuit reversed for technical reasons. But the reasoning behind Jones is sound: it is very different to be a death row inmate than a lifer.

But let’s assume for a minute that these two experiences are comparable (after all, we always compare them to each other.) If you really can’t see that the death penalty is worse than life without parole, how about a tie breaker? We don’t like to talk much about savings in the progressive left–it’s an argument that some of us think is designed to appeal to centrists. But we’re talking about a lot of money here: $150 million a year, to be precise. If you really have no preference between the death penalty and life without parole, does this obscene waste of money not tip the scale in the repeal direction for you? Think about all the things you care about: education, health care, roads. Is it really a progressive move to keep something happening, in which you see no virtue, and spend this much on it when we could spend it on the things you care for?

Finally, I know you’d like to see the death penalty go away not only in California, but also in other places. You know where people on death row do get executed? In Texas, for example. Unfortunately, change in Texas is not going to spring to life, fully formed, out of nowhere. We have the biggest death row in the country and have been the vanguard of criminal justice innovation, for better and for worse. Determinate sentencing? Us. Enhancements? Us. The most punitive version of Three Strikes? Yup, we started that one, too. But we can use this power we have, as a huge and influential state, to make changes in other places as well. We adopted Realignment; we reformed Three Strikes; we passed Prop. 47. These things have a ripple effect in other states. We have to make the first step here. The death penalty doesn’t take the same shape in all states, but it is abhorrent in all of them. Reform in Texas begins here, with you.

“If we abolish the death penalty, aren’t we depriving people of valuable and free legal representation? Only death row inmates get two free lawyers paid for by the state, and that increases their odds of exoneration.”


It’s true: The California Constitution awards death row inmates two free attorneys to represent them in their appellate and habeas proceedings. But what does this mean in practice? We have hundreds of inmates on death row who are unrepresented and unable to benefit in any way from this constitutional provision.

As of August 2016, 46 inmates are awaiting appointment of both an appellate attorney and a habeas corpus attorney. 310 inmates have been appointed an appellate attorney, but are still awaiting appointment of a habeas corpus attorney. This is almost half of all death row inmates, and there are only 34 attorneys employed by the Habeas Corpus Resource Center. You could do what tough-on-crimes conservatives might do and vote yes on 66, but to actually close the huge representation gap we’d have to train and appoint 402 defense attorneys just for the cases now pending. This is a huge expense, and it would come with the added price tag of speedy proceedings that run the risk of executing innocent people. And that is something neither of us wants (I really hope you’re voting no on 66. It’s a horrible and draconian proposition.) So, if we’re staying with the existing situation, what guarantees of exoneration do we really have?

Ask Shujaa Graham, who spent 16 years in San Quentin for a crime he did not commit. Yes, he was exonerated at the end, but what a huge risk he ran while he was still there! Beyond the horrible conditions, the cruelty, the loneliness, the boredom–an innocent person on death row lives every hour or every day of his life with the fear that the miscarriage of justice that happened to him will be irreversible. For that matter, ask any of the 150 exonerees whether they’d trade what happened to them with a guarantee that they won’t be in a situation where the horrible wrong done to them can never be rectified.

“Hey, wasn’t there some survey of death row inmates four years ago where they said they preferred to keep the attorneys they have? Why would we oppose something that the inmates themselves support?”


Four years ago, indeed, the Chronicle published a survey with death row inmates who said something like this. But the Chronicle did not disclose the methodology of the survey, nor did it share the questions they were asked. How does one even conduct a valid survey on death row? And how do we know whether the people who asked the questions weren’t only those who are represented–and not the hundreds of people who wait, on average, 16 years to even get an attorney so they can begin the proceedings?

Of course we care what death row inmates think. And former death row inmates who have been exonerated have been aggressively campaigning against the death penalty and on behalf of Prop 62. Have you heard a single exoneree publicly praising his good luck in being sentenced to death? Maybe there’s a reason for that and we should listen to them.

You know who else is worth listening to? Lifers. I teach lifers in San Quentin and what I hear from them is uniform, wall-to-wall support of death penalty repeal. They think that the death penalty is a massive waste of resources. And, while they yearn for the day we fight against life without parole, they are relieved to be in general population, studying, working, and interacting with others, rather than on death row. Most importantly: they know that we are spending a lot of effort on a policy that affects only 750 people instead of focusing on the thousands of lifers out there. And they know that we can’t get to other penal reforms before we make this one happen. You want us to get to the business of reforming LWOP? Great, me too! Let’s repeal the death penalty so we can get there sooner – there are no shortcuts that don’t pass through death penalty repeal.

“Prop. 62 is mandating that the folks we commute to life without parole work and give money to victims. That’s forced labor and I don’t support that.”


I know how the concept of work in prison makes you feel. It’s a grim reminder of how, when we abolished slavery, we threw in a little exception: forced labor is allowed in prisons. It is something that we have come to abhor, because it means that our prison regime perpetuates, in a new guise, abhorrent forms of coercion and racial domination.

But abolishing labor in prisons is not on the ballot. Abolishing the death penalty is.

Some progressive voters bristle at the campaign’s emphasis on making lifers work to compensate victim families. You can be forgiven for mistakenly thinking that the proposition “creates forced labor.” But that is, simply, not factually true. Section 2700 of the Penal Code, which requires that inmates work, has existed for a very long time, and already applies to everyone on life without parole. Prop 62 doesn’t hasn’t invented anything new and does not change that section; it would merely apply to a few hundred more lifers–for the simple reason that they would now be lifers, not death row inmates.

The only modification that Prop. 62 would make is increasing to the maximum restitution withholding from wages (not family donations), from the 50% (which is already in effect) to 60%. Is objecting to an increase in victim restitution from wages really a progressive cause you feel proud to fight for? Considering the enormous change we can effect here, this is a fairly small matter to stand in the way.

Even if you are uncomfortable with this small increase in restitution, I want to remind you that it is not enough for confirmed progressives to vote Yes on 62. We have to have a majority of Californian voters, and that includes conservatives and centrists. It also includes families of victims that are campaigning against the death penalty. And one of the things that is a convincing argument for them–and not unreasonably so–is that the proposition addresses concerns about victims. Compromising on this point is part and parcel of getting things done in the political reality in which we live. And this is the world in which we have to vote.

“I’m against the initiative process. This, and other propositions, are a flawed feature of California lawmaking. I vote “no” in principle on all propositions.”


Friend, I hear you. Every election season it’s the same thing: money, deceptive ads, easily manipulated voters, a polarized state. Yes, this is a bad way to make a lot of decisions. For example, this is a bad way to create nuanced criminal justice reform.

But I want to ask you to really think about what’s at stake here. The legislature is not going to repeal the death penalty on its own. We know; we tried. Our governor (who is personally against the death penalty) is not going to unilaterally commute everyone’s sentences to life without parole. We know; we tried. Our courts cannot get rid of the death penalty. We know; we tried, and we came close, and we failed because of habeas technicalities.

The only one who can get rid of the death penalty in California is YOU.

And compared to other propositions, this one is actually fairly well suited to an initiative process: as opposed to, say, medical or recreational marijuana regimes, parole regimes, registration requirements, etc., death penalty repeal is a fairly simple question, which has a straightforward yes-or-no answer: repeal or retain. This is one of the least objectionable uses of the referendum method.

You have to decide: when you look back at this election, which of your values will you be more proud that you upheld: your concerns about direct democracy, or your opposition to the death penalty?

In Summary


Sometimes, with good intentions, we overthink things, and that leads us astray. Listen to your heart and your common sense. Are you against the death penalty? Good. So am I. For the reasons the campaign highlights, but also for all the traditional, good reasons to be against the death penalty: because it is barbaric, inhumane, risky, racially discriminatory, and obscenely expensive.

Are you against the death penalty? Then vote against the death penalty. 

Vote Yes on 62.

This Election, Say No to Old-Skool Crime Panic: Part 1

Last Monday’s presidential debate was interesting for a variety of reasons. To me, a particularly interesting point was the reemergence of old-skool crime risk narratives. As I explain in Cheap on Crime, the recession years were characterized by a rethinking of our ideas about crime, crime prevention, and crime control, and by a bipartisan understanding that, regardless of one’s stance on the morality of mass incarceration, it is simply not economically sustainable to punish so many people so harshly and for such long periods. This means that, in the last few years, we were exposed to new and surprising declarations from long-time conservatives arguing for more civil rights protections, a truce in the war on drugs, and sentencing reform. This is not just about money, though; new advances in neuroscience and developmental psychology have led to a rediscovery of childhood, which in turn has led to several developments in legislation and in caselaw reforming juvenile justice.

And yet, it seems like some things never change. One such thing was Donald Trump’s argument last Monday that murder rates are up. Anyone who lived through the Nixon campaign must have felt, as Yogi Berra would say, déjà vu all over again. The logic behind this old-skool crime panic argument is: crime rates are rising; the only way to stop them is by cracking down on street offenders; the best way to do it is aggressive policing in the streets. The problem is that none of these things is fairly presented or even true.

First, as my colleague John Pfaff explains in The Nation, it is statistically misleading to focus on a rise in one type of crime in the course of one year:

Despite the increases cited in yesterday’s FBI report—the rise in murders in 2015 was the largest in both absolute and percentage terms since crime started dropping in the early 1990s—the United States remains an historically safe place to live. The murder rate in 2015 is still lower than it was in 2009, and before 2009 the last time the murder rate was as low as it was last year was in 1964. Overall, 2015 had the third-lowest violent crime rate since at least 1970, and probably even before that, since our older crime stats likely understate crime much more than they do today.
Yes, crime went up in 2015. But crime remained at near historic lows in 2015, too. Both of these statements can be, and are true. Despite the rise in violent crime, we remain safer today than we have been in decades.

What happened in 2015 happened in the course of one year, against an opposite trend, and one year cannot be regarded a trend:

Because we have so much less violent crime today than in 1990, any given increase will be a bigger percent jump today than 25 years ago. If we have 100 units of something, five more is just 5 percent, but that same five-unit increase is a 10 percent jump from 50. So while the number of murders rose by 11 percent in 2015, compared to 9 percent in 1990, the total increase in murders in 2015 was about 400 less than in 1990. The percent change looks worse because we are doing so much better.

Second, there are no grounds to fear sensible nonpunitive measures. Remember the vast number of articles in California newspapers quoting cops claiming that criminals have been running rampant in the streets since the early releases of Prop. 47? The proposition passed in November 2014. It is now October 2016 and the numbers are in: there is no correlation, on a county-by-county analysis, between releases under Prop. 47 and crime rates. None. Long prison sentences, serious felony charges, and refraining from paroling people do not make us safer. At all.

Third, cracking down on suspected street offenders via aggressive stop and frisk policies is never a good idea. The odds of actually catching contraband on someone during a brief stop and patdown are very low. In New York City, where the NCLU conducted a multi-year inquiry, they found that nine out of ten people who were stopped and frisked were found to be totally innocent. The benefits of finding contraband on a small percentage of the citizenry are far outweighed by the costs of humiliation, degradation, and the loss of trust between police departments and the communities they serve. Even more importantly, as Jill Leovy’s book Ghettoside demonstrates and as David Simon repeatedly explains in his public appearances, the problem is not just overenforcement: it’s overenforcement of showy, aggressive police power that comes directly at the expenses of enforcement that requires brainy, creative police work. The time and manpower spent on stop and frisk is time not spent solving murders and robberies, which are presumably the serious crimes that Trump wants us to be afraid of.

This election, Californians have an opportunity to say no to old-skool crime panic by voting on sensible criminal justice reforms that will save us money and help us treat our neighbors and fellow residents more humanely. Vote Yes on 57 to eliminate prosecutorial monopoly on trying juveniles as adults and to give nonviolent adult offenders a chance on parole. Vote Yes on 62 to eliminate the costly and failed death penalty. Vote Yes on 64 to save money on marijuana prohibition and to bring in much-needed tax revenue. Vote No on 66 to refuse a costly and dangerous death penalty “tweak” that will provide (and pay) undertrained attorneys and risk wrongful executions. Say no to unfounded crime panics. We’ve been there before and we know it doesn’t help. And say yes to sensible reforms.


 

November 2016 Ballot: Yes on 64

My colleagues and I at UC Hastings made a series of nonpartisan, informational videos on the California propositions on the November 2016 ballot. Here’s a video made by my colleague Marsha Cohen, an expert on food and drug law, about Prop. 64, the legalization of marijuana:

On this blog I make endorsements as well, and my recommendation would be to vote Yes on 64.

In 2010, there was a legalization proposition on the ballot which I supported, Prop 19, and it failed by a fairly narrow margin. I supported that one even though I found it problematic and vague: Prop 19 legalized personal use and limited cultivation of marijuana, but left the business end unregulated and up to the counties. As a result, it was unclear how much we would gain in tax revenue.

Prop 64 offers a much clearer legalization regime. Flowing from the recommendations of the Blue Ribbon Commission and relying on the experience of Colorado, Washington, Oregon, Alaska, and DC, it has set realistic price points and tax rates on sales, thoroughly regulated cultivation, possession, and sales, and provided safeguards for sales to minors.

Let’s talk about the money first. The Legislative Analyst’s Office anticipates gains of many hundreds of millions of dollars, up to a billion, in tax revenue. These gains are based on assumptions about patterns of use and commerce that we see in other countries and states. For substances, there is typically a group of hard-core users (See Philip Cook’s analysis of alcohol: 60% of American’s either don’t drink at all or drink very, very little, and only 10% of Americans constitute the vast majority of drinking in the market, with an average of ten drinks a day.) Those folks will use (and pay for it) no matter what, and making sure that they buy (and pay taxes) lawfully is pretty essential. Which is why setting the price point and the taxes properly is important. It seems that this is a key consideration in the states that already have recreational marijuana: you don’t want to tax too much, because that’ll keep the market alive. But even though those states are considering lowering the tax, they still got revenue that far exceeded expectations, and the hope is that the same will happen here. Prop 64 sets excise tax at 15% for retail and 2.75-9.25 percent for cultivation. Sales tax for nonmedical will hover around 8%.

The proposition sets up a licensing program. Selling without a license will be an offense. Selling to minors would be an offense. Setting up shop near a school will be an offense. And, driving under the influence would be an offense.

The most convincing argument against the measure is a recent Washington state study showing a rise in THC-positive drivers involved in accidents. Here’s the full study. But that someone is THC-positive does not mean that marijuana was a factor in the accident. THC is detectable in the blood up to three weeks from the time of use, and a positive finding does not mean that the person was under the influence of marijuana when the accident happened. The study took into account differences in levels of THC, but those are imprecise. Also, keep in mind that drivers were not tested for THC presence before the legalization of marijuana in Washington, so we don’t have great comparative data (who knows how many people were THC-positive before legalization?) Moreover, the findings on THC alone are dwarfed by the findings on alcohol, or on alcohol and THC combined (in which case the causality issue is murkier.) The National Institute on Drug Abuse website claims that marijuana impairs driving ability, but cites a National Highway Traffic Safety Administration study that found that carefully controlled studies relying on measurements find no appreciable difference in driving. NORML, who is far from an unbiased group but who does cite unbiased research, cites far less convincing evidence of impairment under marijuana than under alcohol.

As for arguments for legalization, the existing prohibition regime has been far from successful in curbing drug use and has led to huge monetary and personal costs for people charged, convicted and incarcerated for growing and selling. We wouldn’t be the pioneers of a different path, but it’s a thoughtful effort and definitely worth a try. I’m going with a Yes on 64.

November 2016 Ballot: Yes on 62 and No on 66

In anticipation of the November ballot, my colleagues and I at UC Hastings made a series of nonpartisan informational videos explaining the 2016 propositions. Here’s the video I made on Prop 62:

On this blog I also make endorsements. It’s an unequivocal YES, YES, YES on 62.

It’s not a particularly well-kept secret that I vehemently oppose the death penalty for all the obvious reasons: it’s inhumane, there’s no good evidence that it deters murderers, there are grave concerns about the fairness of its application, and with social psychologists estimating that 5% of all convictions are wrongful, there is also the grave risk of mistake. Add to that the important factor I discuss in Cheap on Crime–the expenditure involved in capital punishment–and repeal should be an obvious choice.

But I’d like to address this post not to the folks who are convinced, for moral reasons, that repeal is the right choice. I’d like to talk to decent, reasonable people who are on the fence about the death penalty, because they feel that some people–serial murderers, people who kill and assault little children, etc.–should have an especially harsh sentence reserved for them. Even if you are such a person, you should vote yes on 62. Here’s why.

In November we’ll be voting not about the philosophical merits of the death penalty, but on whether to keep it as it is practiced here in California. Here are some facts, not opinions: we currently have 751 people on death row. Since the reinstatement of the death penalty in 1978 we executed a grand total of 13 people. Meanwhile, 90 people died of natural causes. They spend decades on death row, during which they are held in expensive conditions in a dilapidated facility, and they also litigate. Their confinement, and especially their litigation, is costing us $150 million a year, which would be saved if all these people were to be transferred tomorrow to general population. And most of these death row inmates are not the “worst of the worst” for whom you’d like to reserve the death penalty.

I get that you think that in principle there should be something special for really heinous crimes. But we don’t live in a principle. We live in California. And in California, this is expensive and it doesn’t work.

“So the death penalty is broken,” you say. “Why not fix it? Why not make it cost-effective, and then I can continue to support it?”

There is a proposition on the ballot that argues just that–Prop 66. Its proponents, mostly county district attorneys, argue that adding lawyers and shortening procedures would save money and allow California to retain the death penalty. Here’s the informational video I made of Prop 66:

The two reforms proposed by 66 are unrealistic, expensive, and very risky. They would not solve the problem. I strongly oppose it and urge you to vote No on 66. 

Currently, each death row inmate receives two attorneys at the state’s expense to litigate his/her case. “Quelle luxe!” I hear you say. Well, not so much. The Habeas Corpus Resource Center has a whooping grand total of 34 attorneys, who get assigned the hundreds of cases on death row. According to the Legislative Analyst’s Office, as of September 2015, 57 individuals were awaiting appointment of counsel in direct appeals and 358 individuals were awaiting appointment of counsel in habeas corpus proceedings. Those are hundreds of people whose lives depend on a determination of their legal claims, who have to wait an average of 16 years to get an attorney. That’s why it takes so long to execute people in California.

Hiring and training more attorneys to take on capital cases would cost tens of millions of dollars a year–on top of the $150 million we’re already paying by having capital punishment. While I’d love for there to be more jobs for my students, this is an unnecessary expenditure we can ill-afford.

What’s worse, Prop 66 supporters propose to shorten the times for appellate and habeas proceedings. But there’s a reason why these procedures take time. It’s because they have the potential of diminishing the risk of horrible mistakes. When someone does life without parole and is found to be innocent, their life has been detailed, but amends can be made. When an innocent person has been executed, there are no amends. The risk of a mistake is graver than we can tolerate: remember, a conservative estimate puts wrongful convictions at 5% of all convictions.

There is no fix here that saves money and prevents injustice. And even if you think you’re willing to compromise, ask yourself–how much is it really worth to you to keep 751 people on death row? Is it really conscionable to pay $150 million annually to keep this going?

Yes on 62. No on 66.

November 2016 Ballot: No on 60

My colleagues and I at UC Hastings have prepared a series of informational and neutral videos to educate voters about the CA ballot. Here’s a video I made about Prop 60:

Before educating myself about the proposition, my inclination was to vote yes, and I’m sure many voters feel the same way. What could possibly be wrong with condoms? Aren’t they wonderful things that prevent pregnancies and sexually-transmitted diseases? Shouldn’t we communicate a message to the public that it’s cool and sexy to use them, by requiring that they be used in adult films?

Then, I talked to my awesome student Stephan Ferris, who wanted to write a research paper on this. We discussed the advantages and drawbacks of this regime for the better part of last spring, and Stephan’s resulting excellent paper on Prop 60 is coming out on the Hastings Women’s Law Journal (I’ll add the link once it’s published.) My student convinced me that the right move on this one is a NO on 60, and here’s why.

My natural inclination, as well as that of other well-meaning do-gooders, is to assume that porn actors are defenseless, vulnerable folks with no bargaining power, for whom condoms are the last frontier in the fight against HIV. Neither of these claims is true, and there’s actually a regional issue here that is important.

The ecology of porn in California is such that, for the most part, straight porn is produced in Los Angeles and gay porn in San Francisco. What works for the industry on a regional basis in Los Angeles would not necessarily apply statewide. In the world of gay porn, the working assumption in the industry is that anyone involved is HIV positive, and therefore the performers have an incentive to protect themselves. The state-of-the-art standard for protection against HIV is the use of PrEP. This medication, which in San Francisco is covered by citywide insurance, protects HIV-negative people from getting infected and lowers the detectability of the virus in HIV-positive people to the point that the risk of infection is extremely low. While health care advocacy giant AIDS Healthcare Foundation (AHF) is fighting for this measure, other AIDS-prevention groups claim that the proposition is upholding antiquated health standards that don’t work for the industry. My student, who interviewed industry performers for his article, found that the industry effectively self-regulates the risks away, and putting people who have financial stake in adult film in a position that exposes them to lawsuits (particularly moralistic ones) creates a bad incentive. Adult entertainment companies concerned about the prospect of litigation will simply move somewhere else in the country–Nevada, perhaps?–and California will lose tens of millions of dollars in tax money

In case you think this is a positive because “we don’t want them here”, I’d like to remind you that porn watching knows no borders. Porn is viewed almost exclusively online regardless of where it is produced and filmed. You’ll still be able to see plenty of unprotected sex, much of it done by amateurs filming themselves; what you won’t get is the tax revenue. This proposition smells like unwarranted moral panic. I’m going with no on this one.

November 2016 Ballot: Yes on 57

My colleagues and I at UC Hastings made a series of neutral, informational videos about the propositions on the November ballot. Here’s the one about Prop 57:

For readers of this blog, I’m also making endorsements. It should be a resounding YES on 57, and here’s why.

The first part of Prop. 57 is a no-brainer: who do you trust more with the decision to prosecute juveniles in adult court–a judge after a fitness hearing or a prosecutor? We’ve trusted prosecutors since we adopted Prop. 21 in 2000. We’re talking about thousands of cases here, but even one case of a young person unnecessarily doing time in an environment full of older people should be avoided. What we know about juveniles in adult institutions (which is not a lot, because it’s difficult to study) is disconcerting: suicide rates and vulnerability to abuse, assaults, and victimization. Moreover, when this decision is left to prosecutors, there are big differences between the different counties. Juvenile offenders should not be political pawns.

The second part requires a bit more unpacking, but also turns out to be a no-brainer. A typical felony sentence in California consists of the basic sentence for the offense plus a series of “enhancements” added in bills and voter initiatives over the years. Our determinate sentencing allow for people’s release from state prison after they complete most of their entire sentence, including the enhancements–which can sometimes double or even triple the original sentence. Most folks don’t come up for a parole hearing: California holds parole hearings only for lifers.

If Prop. 57 passes, some version of parole hearing will be returned to the system and applied to non-lifers as well. The idea is to award nonviolent felons doing time in prison (not a big population since Realignment and Prop 47) a parole hearing after their base sentence is completed. The proposition requires that CDCR adopt regulations about rehabilitation programming and the worth of doing programs in “good credit” days that count toward early release. So, while its target population isn’t big and some of the details on how exactly these parole hearings will be held are still obscure, a few things are clear: This will not result in more incarceration, and it will award release to people whose records show them to be rehabilitated. At worst, it’ll be an ineffectual proposition (albeit not a harmful one). But if implemented correctly, it could liberate some folks from the Byzantine maze of enhancements that leads to truly ridiculous sentences.

Some voters might be wondering whether Prop. 57 violates the single subject rule. The best two readings I can recommend on this are Michael Gilbert’s 2006 paper and his excellent 2011 followup. Using an ingenious research design, Gilbert finds that our natural tendency is not to enforce this rule when proposition are more or less on the same topic. His analysis with Robert Cooter also suggests that there’s positive value in “bundling” similar issues in one proposition.

The “bundling” of juvenile and parole here is relatively benign. Remember Marsy’s Law in 2009? The one where you thought you voted to support victims and you actually voted to extend the period between parole hearings? This one’s not like that. These two issues make the system more deliberative and personalized, things of which we could use more, and if well implemented can save lives (and dollars.) So, vote yes on 57.

California June Elections: CCC Criminal Justice Endorsements

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

Candidates for Office

President of the United States

Democratic Party: No Endorsement, slight preference for Bernie Sanders

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

Republican Party: No Endorsement

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

United States Senator: Kamala Harris, with some reservations

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

United States Representative: Jackie Speier

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

Member of the State Assembly, District 19: Phil Ting

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

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

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

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

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

State and Local Measures

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

Measure D: Yes, with reservations

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