On Looking for Closure from the Criminal Justice System

A day after that horrible 2016 election I was mourning not only what was to become a national nightmare, but also the failure of California’s Prop 62, which would have abolished the death penalty. I was on the radio talking about it and someone asked me what I would say to the victims’ families. I replied, “first of all, all the sympathy and empathy in the world. And second, if you have lost someone you love, surely you wouldn’t want to revisit this suffering–with a real risk that the person is innocent–on anyone else’s family.”

Some people took offense to that, and I got some hate mail, including a fairly alarming death threat. But I still do feel that the notion that not everyone who has lost a loved one to homicide looks for closure in the form of the death penalty or other severe sentence bears repeating.

I’m writing about this as the verdict has come out in a case involving the murder of my colleague and friend Dan Markel. Sigfredo Garcia was found guilty; there’s a hung jury in Katherine Magbanua’s case; and the people many of us think are the real culprits, the Adelsons, have so far completely escaped the clutches of the criminal justice system.

Susan Bandes has a a few papers about the notion of “closure”, as something that the criminal justice system is supposed to deliver and as something people assume they’ll get out of a conviction and a sentence. Her findings dovetail with what I found when working on the Kavanaugh piece and on the Progressive Punitivism piece: the idea that expressing anger through the criminal justice system will bring some form of cathartic relief is unsupported by behavioral science. In working on Yesterday’s Monsters, one of the things that most filled me with sorrow was how victims who are singlemindedly invested in punitive outcomes against those who killed their loved ones (and the Tate family literally wrote the book on this–it’s called Restless Souls) find so little solace in doing so.

I don’t think that nonretributive, nonpunitive victims are more “saintly” than punitive ones. All emotions, including rancor AND forgiveness, are part of the human experience (as we recently found out, if anything, people find it hard to accept that forgiveness is human, and insist on shining some critical light on it).

Dan, who studied retributive justice (here, here, and here), would have found it interesting that what I most wanted from the criminal justice system was an affirmation of the narrative of What Happened. I’m not at all invested in the Adelsons being  arrested, tried, convicted, and incarcerated, let alone executed–that they have to live with themselves strikes me as the worst possible punishment. Not because I’m some sort of saintly, forgiving creature–I simply found out something about myself and what I want from the criminal justice system. And even if we, Dan’s family and friends, ever get it, it won’t bring our friend back.

Perhaps one of the things that most saddens me in America’s punitive victim rights movement is how it offers you the One and Only Way to be an appropriate victim, without allowing you to sit with your own fresh emotions and feelings–grief? anger? frustration? loss?–and process them with yourself, between you and your soul, without a giant machine of a social narrative to run you over. There’s not nearly enough quiet, be it in the right-wing halls of the anti-superpredator chorus or in the left-wing halls of #metoo, for you to sit with yourself and be whoever you are with your own feelings.

Much love and support to Dan’s family and friends today. What is remembered, lives.

The Central Park Jogger and the Reification of Victims’ Perspectives

Those of you familiar with the Central Park Five case should be under no doubt that, despite Trump’s insistence on propagating a strange narrative of the case, the five teenagers railroaded into confessing and sentenced to years in prison have been completely exonerated and compensated, with a single perpetrator’s confession backed up by solid DNA evidence.

You may also recall that the victim, Trisha Meili, who was violently assaulted and left for dead, has no memory of the attack. But she apparently does not see this as a barrier to opining about guilt and innocence.

In my forthcoming book Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole (forthcoming Feb. 2020 from UC Press) I discuss the serious problems that happen when we reify the perspectives of people at the heart of trauma regarding things they are not qualified to comment on, such as the sincerity of parole hopefuls, their participation in rehabilitative programming, and even their physical health. And here we have a person who cannot recall the attack pushing for a political outcome, claiming the authority to do so because of her victimization.

Trisha Meili suffered horribly at the hands of someone terrifyingly violent and deserves every sympathy and compassion for that horrible ordeal, as well as respect and admiration for regaining her health. But she has no authority or special knowledge to chime in about events she does not recall or to use her authority as a “moral memory” of the crime to push for processes that completely contradict forensic evidence.

This is what happens when we decide that trauma itself is an admission ticket to the discourse. And lest we forget, the right has not cornered the market on this reification of victims.

Nail Polish, or Why Left Realism Fights Rape Culture Better than Radical Demagogy

An interesting invention is making the rounds on social media website: four college students have invented nail polish that would allow its wearer, by inserting their finger into their drink, to detect whether a roofie–frequently used by rapists to overpower their victims–has been mixed into it. The company is called Undercover Colors.

This is a very practical, simple cautionary tool, and may help to spare many women, and some men, too, a traumatic and horrible experience. But the new invention has found some detractors, who in the name of radical feminism criticize the inventors as facilitating rape culture by placing the preventive responsibility onto the shoulders of the victims (see here and here.)

I’m sorry, I have to call bullshit when I see it. And this presumably feminist critique of prevention is grade-A bullshit.

It should probably go without saying that, like any decent human being on the planet, I am committed to ending rape culture, and that I believe that the fault for rape lies squarely on the shoulders of the rapist, which is why I really liked this campaign. Happily, evaluative research has found it to be effective in teaching men to be more respectful toward their partners.

But I get very, very upset when the people who purport to be fighting rape culture seem to be okay with not fighting rape itself, and especially with the radical demagogy that equates sensible self-protection with embracing rape culture.

Of course it is not the victim’s responsibility to prevent crime. It is, of course, anyone’s right to go anywhere they wish, wearing whatever they wish, without inviting physical or sexual assault. Nonetheless, we know that crime happens when there is opportunity, and many rapists are opportunists. And each of us takes preventive measures daily, to the extent that they are compatible with our lives and appreciation of freedom. We lock our house doors, we don’t leave valuables in the car, we don’t escalate arguments with angry drivers. And sometimes we make the choice not to engage in excessive self-protection, when we feel it infringes upon our lives too much, such as, for example, going out anywhere we wish, at any time of the day, wearing whatever we like. Doing so, of course, does not make us blameworthy if something bad happens to us. But taking measures that don’t infringe upon that feeling of freedom has the potential of minimizing our odds of victimization, and doing that shouldn’t make us blameworthy, either, for inventing such measures, using them, or recommending them to others.

The rhetoric against rape culture also pulls the rug under sensible and empowering acts like taking a self-defense class, even though we know that fighting back significantly reduces the odds of rape completion. Why, in the name of self righteousness and feminist idealism, would I deny myself, my family members and my friends the odds of survival and victory? How is this empowering? How is this preventing rape?

Moreover, as my friend and colleague Edi Kinney mentioned in a Facebook conversation about this:

[T]aking the opportunity to recenter discussions about rape culture to blame rapists is something activists have to do, but to me, we need to take advantage of allyship in its diverse forms and applaud practical efforts to engage in efforts to address sexual violence. What we’ve been doing hasn’t worked. I think we should be emphasizing the fact that the men who developed the product were inspired to do because so many of their own friends had been drugged & sexually assaulted and they wanted to do something to empower their friends and other women w/ tools to identify risks. They apparently had scientific/lab/other expertise that they could deploy to that end, and were motivated to do so out of an effort to give women tools to help them protect themselves. IMHO, their allyship intentions — AND the fact that bros who see social media accounts of this now might think twice re. engaging in predatory behavior at parties, bars, etc. — trump the potential to reinforce ‘blame the victim’ rape culture. Rapists are opportunists, and I’d reckon there’s a slippery slope between date rape and predatory behavior, and any tools to identify folks who engage in such behavior seems like a good start (and at least it’s raising awareness?)

I think we have enough room for short-term and long-term strategies in the war against rape culture. In the long term, our commitment should be to eradicate it off the face of the earth. But in setting our sites on that and firing up our keyboards with feminist rhetoric, let’s not forget that this thing we’re fighting is not just an ideology. IT’S REAL AND IT’S VICTIMIZING WOMEN RIGHT NOW. And our first and foremost commitment to potential victims is to prevent their victimization as effectively and practically as possible, without stigmatizing them for it. Let’s not lose sight of real rape when talking about the culture that produces it.

Judge Karlton Declares Prop 9 Unconstitutional

I am thrilled to report another important legal development: Judge Karlton of the Northern District has declared Prop 9, otherwise known as Marsy’s Law or the Victim Bill of Rights, unconstitutional. He has also struck down Prop 89, adopted in 1988.

This is very good news for the CCC blog, as we fiercely advocated against Prop 9 and were truly dismayed at its passage. We pointed out how pointless it was to advance the rights of victims by denying parole to offenders, showcased research proving that the proposition did nothing to actually increase victim rights, and followed up litigation against the law from its inception through oral arguments and the partial dismantlement of some provisions of the law.

We said it in 2009 and we’ll say it again: Propositions that purport to advance victim causes and avenge the cruelties done to them through committing more cruelties do not address the needs of all victims and certainly not of the victim population as a whole. The best thing we can do for victims is to make sure they cease being victims as quickly as possible by empowering them and putting in place social structures that offer chances for rehabilitation and transformation for perpetrators. Any wholesale effort to curtail the ability to offer people a window of hope at the end of a long sentence does no favors to victims, and is unnecessarily cruel and wasteful.

Are Crime Victims Punitive?

Research on punitiveness consistently teaches us that, surprisingly, being a crime victim does not make one more punitive. Incidents like today’s death of notorious serial killer Richard Ramirez of natural causes on San Quentin’s Death Row raises the issue of what victims expect from the criminal justice system, and what provides them closure and relief.

It is timely, therefore, to read Californians for Safety and Justice’s recent report on crime victims in California. Here, for your convenience, are the key findings:

The findings are not unrelated to each other. It is unsurprising that violent crime disproportionately victimizes low income people and people of color. And it is also unsurprising that this is the same population that is affected by mass incarceration. Their views on the value of incarceration are pessimistic, and they are unsurprisingly more likely to hope for justice that works.

The victim advocacy groups that popped up in the mid-1990 to steer California law in a punitive direction represented, for the most part, white, middle-class people who lost family members to violent crime. This group of victims did not experience the devastation that mass incarceration wreaks on low-income communities and communities of color, and they do not speak for the majority of crime victims in the state.

Each victim responds to a violent crime experience in a unique and personal way. For some, lengthy incarceration terms and the death penalty are a relief and a method of closure. For others, they are a waste of money that does not make their personal tragedy a catalyst for world improvement. Before speaking for them, let’s keep in mind what they say when they are allowed to speak with their own voices.

UPDATE: The Chron has picked up the story.

Restorative Justice in Murder Cases

Conor McBride and Ann Grosmaire in 2010.
Courtesy the Grosmaire family and the New York Times.

In 2001, still in practice as a reservist for the Israeli Military Defense Counsel’s office, I represented an inmate who was serving a life sentence for murder. Four years earlier, he had shot another soldier to death over a dispute about using the public phone. My client wanted help with a petition to the President of Israel. Under Israeli law, all life sentences are not truly for life; it is the President’s prerogative (a relic from colonial days, when the British Governor held the equivalent position) to determine how many years “life” would be.

As we put together the documentation for the petition, we also discussed my client’s desire to meet the victim’s family and express his remorse for what he had done. He wanted to ask for their apology. I was doubtful that we would succeed, but made some phone calls to the Ministry of Justice. At the time, restorative justice was a nascent field in Israel, and the people I talked to were reluctant to take on this project. They had not tried restorative justice in serious offenses such as murder, and in light of the victim’s family’s position during the trial (they were, understandably, very upset and very hostile toward my client) did not believe that the family would want to hear from my client, let alone be in the same room with him.

I left the country shortly after handling the case, but often wondered over the years what happened to my client. We recently got in touch again and I was glad to hear that he was doing well in prison, working and studying, and making plans for his release.

This is why yesterday’s New York Times story about restorative justice moved me very deeply. It is a story from Florida about a restorative justice meeting between the family of Ann Grosmaire, who was murdered by her boyfriend, and Conor McBride, the man who took her life after a long argument. The article is worth reading in full, because it vividly tells the story from the perspectives of the different parties that took part in the process: Ann’s parents, Conor’s parents, Sujatha Baliga, the facilitator and a former public defender from Oakland, and the prosecutor, Jack Campbell. The pain of the victim’s family is indescribable; the depths of their forgiveness – granted for themselves as well as for him – incredible. I can’t recommend it enough.

One of the major challenges on the road to accepting restorative justice as a legitimate and important step in the criminal justice is the victim’s contribution to the outcome. After all, two murderers can end up receiving very different sentences, depending on their victim’s family’s feelings on the subject. Is that fair? Perhaps not from the traditional criminal justice stance. But it is easier to accept such an outcome if one thinks of a murder as something that happens in a certain context, a certain relationship between the murderer and the victim and the people in their lives. As such, the murder “belongs” not only to its perpetrator, but also to those who suffer the ramifications. Nils Christie’s classic article Conflicts as Property advocates returning the conflict to the victim and minimizing the role of “conflict thieves” – lawyers, judges, system actors – in its resolution.

This is why it was important, in the Prop 34 campaign, to remind all of us that not all victims are punitive and not all of them believe in the death penalty. This nuanced L.A. Times story shows that different victims responded differently to the prospect of applying the death penalty. Respect for victims means not treating all of them, cookie-cutter style, automatically as staunch supporters of the prosecution, but rather giving them the space to say what they want from the process and how they choose to engage with what happened to them.

—————-
Props to Sal Giambona and David Takacs for alerting me to the article.

On Sandy Hook, Moral Panic, and Legitimate Fear

Map of shooting incidents courtesy Mother Jones;
interactive version on the website.

Much of the commentary on Sandy Hook has highlighted the rise in the number of public shooting incidents in the course of the last few years. Some of the aggregate data on the shootings can be found on Mother Jones or on the Citizens Crime Commission of New York City website. Does the fact that there seem to have been many recent incidents of mass murders and spree killings of this sort mean that we have a phenomenon we need to worry about in a systematic way? We are, of course, saddened, heartbroken, angry–but should we also be afraid?

The answer to that question depends on how one defines “phenomenon” and how one decides what to worry about. Since there is no official measurement for “worrisomeness that merits criminalization/heightened enforcement”, the extent to which we take steps to criminalize, police, and curtail rights depends on how severe we assess the threat to be. And that is, generally speaking, a question that involves politicians, the media, and the public.

One criminological concept that pops up in these discussions quite often is moral panic. A term coined by Stanley Cohen in his classic book about the Mods and the Rockers, it is “a condition, episode, person or group of persons [who] become defined as a threat to societal values and interests.” Cohen emphasized that the panic is amplified by media reports and often culminates in a call to do something on the matter. Goode and Ben Yehuda identify consensus, a heightened level of concern, and hostility, as important factors in a moral panic.

Unmentioned in the definition, but implied in the literature, is the assumption that the panic is exaggerated. That is, that there is no real cause for concern, or at least not to the extent that justifies criminalization or curtailment of personal rights.

In 1999, Ronald Burns and Charles Crawford published an article on Crime, Law and Social Change about school shootings as a moral panic. The article shows the interaction between politicians, media reports, and public outcry, in the aftermath of Columbine. As they analyze the political and media attention to school shootings, they offer the following to show that the concern was disproportionate:

Were these massive societal responses to what were indeed heinous, threat- ening offenses against schoolteachers and students justified? A closer look at statistics regarding juvenile crime and more specifically school violence suggests that what occurred was arguably an overreaction to the situation. For example, consider the following sample of recent findings regarding juvenile crime in the context of the aforementioned societal responses: 

  • There has been no increase in the number of children under age 13 arrested for homicides in the U.S. In 1965, 25 children under age 13 were arrested for homicides and in 1996 it was 16, a 36 percent decline (Donahue, Vincent and Schiraldi, 1998). 
  • Overall, fewer than 3 percent of the killings in America in 1996 involved someone under age 18 killing someone else under age 18 (FBI, 1997). 
  • FBI data suggest that national youth violence arrests went down both in number and in share of total youth arrests between 1992 and 1996 (“Violent youth . . .,” 1998). 
  • Three of four young murder victims – 90% of them under age 12 and 70% of them agged 12–17 – are killed by adults, not by juveniles (Males, 1998). 

While one cannot discount the substantial increases in juvenile crime during the late 1980s, recent reports suggest that the problem is diminishing. Bernard (1999) suggests that although there exists conflicting trends, the most consist- ent interpretation is that juvenile crime, with the exception of homicide, has declined by about one-third over the last twenty years. In their chapter titled: “Juvenile Superpredators: The Myths of Killer Kids, Dangerous schools and a Youth Crime Wave,” Kappeler, Blumberg and Potter (2000) elaborate upon these and similar findings. There has been a similar, and probably more pro- nounced decrease in the amount of school violence. Consider the following: 

  • There were 55 school shooting deaths in the 1992–1993 school year; 51 in 93–94; 20 in 1994–995; 35 in 1995–96, 25 in 1996–97; and 40 in 1997–98 (Lester, 1998). There are more than 50 million students and more than 80,000 schools across the country (Sanchez, 1998). 
  • A child’s chances of being struck by lightning are greater than the million- to-one odds of being killed in school. The number of children killed by gun violence in schools is about half the number of Americans killed annually by lightning (Byrne, 1998). 
  • According to PRIDE, the number of students bringing guns to school dropped from 6 percent in 1993–94 to 3.8 percent in 1997–98 (“1 million . . .,” 1998). 
  • In Los Angeles, 15,000 people have been murdered during the 1990s. Five occurred at school. Of 1,500 murders in Orange County during the 1990s, none took place at school. Institutions in these areas serve 2 million students, including 700,000 teenagers (Males, 1998). 
  • The United States has approximately 338 million children between the ages of ten and seventeen who attend roughly 20,000 secondary schools. In 1994, there were no school shootings in which more than a single person was killed; in 1997, there were four; and in 1998 there were two (Glassman, 1998).

Available data from sources such as the Centers for Disease Control, National School Safety Center, National Center for Education Statistics, U.S. Depart- ment of Education, and The Sourcebook of Criminal Justice Statistics support the suggestion that the recent school shootings were idiosyncratic events and not part of any recognizable trend. Ironically, the shootings may have received such intense coverage because of the infrequency of these occurrences rather than their frequency (Donohue, Schiraldi and Ziedenberg, 1998).

Similar arguments can be made today. While there has been an uptick in the number of these murderous incidents, crime, and violent crime in particular, is on the decline nationwide. And while the prospect of falling victim, or losing a loved one, to a mass shooting is terrifying and horrible, the odds of this occurrence are still very, very low.

Does that mean that the concern is unjusfied? Disproportionate? I don’t think so. I think that fear of crime is an entirely real and reasonable response to such an incident. We respond strongly to experiences and events not just on account of their frequency, but also on account of their magnitude and meaning. So, yes. We are sad, and heartbroken, and angry, and have every right to be sad, and heartbroken, and angry.

The next question to tackle, after we dry our tears and sit at the policymaking desk, is how do we want the odds of another horrific occurrence to shape and affect the architecture and organizational culture of our schools. Do we want more metal detectors? More armed guards? More search points at the entrance to schools? How would that affect the learning experience, intellectual growth, and social interactions of the nation’s children? All of those balances will have to be done delicately and carefully, because, by contrast to a horrifying mass murder scene, their effects will be subtle and intangible. And we should keep in mind, that it is okay to be sad, and heartbroken, and angry, and at the same time, wise and thoughtful in our policymaking reactions.

On Sandy Hook and Violence Prediction

Photo courtesy ibtimes.co.uk.

In the aftermath of the dreadful Sandy Hook tragedy, much of my Facebook wall is the arena of political debates about gun control and about national mental health care. But what of the human factor? Can we predict such horrific violence?

A recent story in the New York Daily News provides a profile of mass murderer Adam Lanza as described by former classmates and neighbors. He’s described as having either Asperger’s syndrome or some other disorder, and there are abundant details about his parents’ amicable divorce and generous alimony arrangement. What is interesting to me is that many of the commentators on the piece express lack of surprise at the identity of the murderer.

 . . . 

 A “longtime” family friend said Lanza had a condition “where he couldn’t feel pain.” “A few years ago when he was on the baseball team, everyone had to be careful that he didn’t fall because he could get hurt and not feel it,” said the friend. “Adam had a lot of mental problems.” 

 . . . 

 Lanza walked the halls of his middle school carrying a black briefcase while most students lugged their belongings in backpacks. “That stuck out,” said Tim Lalli, 20, who graduated with Lanza in 2010. “It was different.” Lalli said Lanza wasn’t a total outcast, but he didn’t speak much. “Everyone just assumed he was a smart kid and that’s why he didn’t like talking to people all the time,” he said. “He hung out with the smart crowd.” 

 . . . 

 One family friend described Adam Lanza as a gamer who “rarely spoke.” “He was weird,” said the friend, who asked to remain anonymous. “He was quiet.” 

 . . . 

 Do these remind you of anything? In the aftermath of the Columbine shooting, the media and the public were quick to blame and label Goth youth who wore trench coats to school. Dave Cullen’s 2009 book Columbine debunked these stories. The killers’ personal journals reveal that Eric Harris was a sophisticated psychopath, while Dylan Klebold was deeply depressed and captivated by Eric. But it was much easier to look for external signs of not fitting in than for the killers’ personal psyche.

And so, after every senseless tragedy that claims the lives of innocent people, we are subjected to these generalizations. The price we pay is much more intangible and less noticed. And that is the stigmatization of entire populations of youth who may not fit in at school, who carry a briefcase in lieu of a backpack, whose hobbies involve gaming. Fortunately, the vast majority of these people will never kill. And this is true for the many harmless, kind, nonviolent people many readers probably know who have Asperger’s or other personality disorders.

So how can we tell who might do this? The answer may be more situational than anything, really. As Gavin de Becker reminds us in The Gift of Fear, watching a situation attentively and paying attention to our feelings is important, and it is equally important not to let fear paralyze us so much that we stop paying attention in the situations in which it is there as a friend, to warn and alert us. If we now fear and loathe all our fellow human beings who behave eccentrically and suffer from mental illness, we will lose our valuable, precious instinct for predicting a violent situation near us. Because we will start stereotyping and hating, and we’ll stop watching and paying attention.

And after all that is said and done, the only thing left to do is cry for the many lives that were lost, for the potential squandered, for friendships and toys and notebooks and story time, for fish fingers and peas and coloring books, for a love of learning and a love of teaching. And maybe to remind ourselves that these incidents are horrific, but uncommon. And that love wins over fear. Most of the time.

CCC Endorsements 2012: YES on 34. NO on 35. YES on 36.

In two weeks, California voters will be offered the opportunity to vote on three criminal justice initiatives: Prop 34, which would replace the death penalty with life without parole; Prop 35, which would increase penalties for sex trafficking, make evidentiary changes, and further burden registration requirements for sex offenders; and Prop 36, which proposes a small but significant revision to the Three Strikes Law. There has been much talk about each of these individual propositions. In this short piece, I examine them together and show how they represent two different strands of thinking about criminal justice: New ideas of parsimony and effectiveness through Props 34 and 36, and old-school punitivism packaged as victims’ rights, via Prop 35.
Proposition 34 has received the most media attention of the three, and with good reason. What is interesting about it is not only the historical opportunity to do away with the death penalty, but also the new justifications and realpolitikbacking up the campaign. Voters are encouraged to look beyond their ideological and philosophical opinions about the death penalty, and instead consider the way the death penalty is actually applied in California. The data, and the Legislative Analyst’s Office fiscal report, paint a disturbing picture. Since renewing executions in the 1970s, the state has executed merely 13 inmates. During that same time, 84 death row inmates died of natural causes. The paucity of executions stems from extensive (and expensive) litigation on behalf of the inmates, which is financed by the state, and is increasingly focused on chemical availability and injection techniques. The result is that the death penalty, in reality, has become no more than life without parole, under special conditions (housing 725 inmates in single, rather than double, cells, with extensive security measures), accompanied by decades of incessant litigation and health care expenses, with or without an execution at the end, the elimination of which will save the state a hundred million dollars in the first year alone according to the Legislative Analyst’s office analysis. Under these circumstances, philosophical differences about the state’s right to kill, the meaning of retribution, and the importance of closure for victims, become irrelevant. Some might think that the right thing would be to fix the death penalty, rather than eliminate it, but no proposition along the former lines is realistically forthcoming, and therefore many former (and current) supporters of the death penalty, including victims’ rights advocates, law enforcement officials, and original proponents of the California death penalty statute, have joined the Yes on 34 campaign.
Prop 36, which would reform the Three Strikes Law, is similar to Prop 34 in that it transcends ideological differences in penal politics to offer a practical, parsimonious fix, albeit a modest one in this case. Currently, the Three Strikes Law inflicts a double sentence on habitual offenders who commit a second violent or serious felony, and a twenty-five-years-to-life sentence upon commission of a third felony, even if the third felony is not violent or serious. The law also allows strikes to be imposed simultaneously, implying that the rationale behind its punitive regime is not deterrence, but rather incapacitation. Currently, California prisons house approximately 32,000 second strikes and 9,000 third strikers; an estimated half of the latter population is serving a twenty-five-years-to-life sentence for a third strike that was neither serious non violent. Beyond the consistently unfavorable media coverage of the injustices propagated on this population (including harsh sentences for thefts of items that cost less than ten dollars), Prop 36 raises serious fiscal issues. While third strikers are a small population, they serve lengthy sentences, which make them by definition expensive inmates. The state spends approximately 50,000 dollars per inmate per annum, and much of this amount is due to health care costs, which apply mostly to old and infirm inmates. The proposed reform to the law is fairly minor: Second strikers’ sentences will remain the same, as will the ability to obtain simultaneous strikes. The only reform would be eliminating the harsh sentence for non-serious, non-violent third strikes, making those a double sentence rather than twenty-five years to life.  Current non-violent third strikers would become eligible for resentencing. The Legislative Analyst’s office estimates annual savings that might exceed 100 million dollars.
As opposed to Props 34 and 36, Prop 35 is a classic example of old-school punitive thinking masquerading as a victims’ rights proposition. Marketed as supportive of sex trafficking victims to give it moral weight, the actual text does little, if anything, to help victims. Moreover, the proposition is a mixed bag of the sort of punitive propositions Californians have experienced (and voted on) for years: An increase in the already-considerable sentences of human traffickers, changes to the mens rea requirement for trafficking minors, nebulous criminalization of sex work, and a host of bizarre and unenforceable additions to the already-pervasive sex offender registration scheme (sex offenders would presumably have to report their email addresses and usernames, which cannot possibly be monitored or enforced in any way.) Beyond lip service to the idea of training police to respond well to victims, the proposition would not really improve the situation of victims of trafficking in any predictable way, and its backers and endorsers are counting on the morality hype to confuse voters into doing what seems morally right and vote yes. It would be a costly mistake, along the lines of the 2009 Marsy’s Law and countless other propositions of the same ilk.
The contrast between Props 34 and 36 on one hand and Prop 35 on the other is more than a juxtaposition of nonpunitive and punitive measures. It is a juxtaposition of a new way of thinking about criminal justice in an era of scarcity. Our paucity of resources requires a careful assessment of what actually works in criminal justice reforms, rather than bombastic expenditures on symbolic punitivism that do little to prevent crime or empower victims. It is not crude or crass to discuss money in this context. Our willingness to spend resources on the criminal justice resources is the clearest statement of our priorities as a society. Voting yes on 34 and 36 is sending a loud and clear message that the money spent on executions and unnecessarily lengthy incarcerations is better spent on education, health care, road maintenance, and—yes—improving police investigation.
This election offers you the opportunity to do away with old partisan thinking and reject the tried-and-untrue method of extreme punishment and ratcheted sentencing. Reverse the punitive pendulum and opt for justice that works, not punitive proclamations that promise and do not deliver. Vote yes on 34, no on 35, and yes on 36. 

No on 35

Over the course of the last few weeks, I’ve been asked, in professional and personal settings, to comment on Prop 35, billed as Stop Human Trafficking. I have given this a lot of thought, read the text as well as the Legislative Analyst’s Office take on the proposition, and have come to the conclusion that the right thing to do is to vote NO on 35. This is a punitive, unenforceable measure that masquerades as a victims’ rights proposition, which will do nothing beyond ratcheting up sentences, overenforce laws that already adequately cover the social problem they address, and criminalize behaviors that should not be criminalized.

Let me preface this analysis by saying: Voting NO on 35 does not mean you support human trafficking. It does not mean that the suffering of trafficking victims is not important to you. It does not make you a bad person and it does not make you side with the bad guys. The power of this proposition is by lumping a variety of punitive measures under a headline that carries a huge moral weight. Don’t fall for it.

Here’s what Proposition 35 does:

(1) It greatly enhances the already considerable prison sentences for human trafficking, which would be a very poor deterrent in a world of organized crime. Deterrence in this business is much more likely to be affected by certainty of apprehension. A much better policy would be to improve the quality of police investigations. Granted, the proposition includes provisions for police training on handling complaints, but until this is approached as high-level organized crime, there is little you can do by making the sentences more severe. And, you’re adding more old, sick people to the folks in state institutions whose dysfunctional health care we already finance.

(2) Not a whole lot for victims. The proposition purports to set a fund for victims of trafficking, but the funding source for this is the fines that would supposedly be collected from the people we can’t apprehend. Compare this to Prop 34, which sets up a fund to improve clearance rates for unsolved crime, but there the money comes from the savings that the proposition itself provides. Prop 35 is a money spender, not a money saver. I’m not optimistic about how this would improve victims’ condition at all.

(3) Creates some changes to evidentiary law. This one is really a toss-up. It strikes me that, if you’re prosecuting someone for trafficking in minors, there’s something fundamentally unfair about denying the defendant the defense of being unaware of the minor’s age (granted, you could impose a duty of inquiry.) But even if you think this makes sense – it would actually make the doctrine similar to the one behind statutory rape in various states – you can’t separate this from the bundle of other effects the bill will have, and you are not offered an opportunity to vote separately on this.

(4) Perhaps the worst effect of this: Bizarre, unenforceable additions to the already-cumbersome sex offender registration laws. This has precious little to do with human trafficking or victim protection and does nothing to make us safer, because if this passes, sex offenders will have to report their emails and usernames to authorities. Really? And how are we going to enforce that?

One last comment: Over the last couple of weeks, friends who advocate for sex workers’ unions have told me that virtually all sex worker rights organizations are very strongly opposed to Prop 35. My opposition to the proposition is not based on the same grounds. To be honest, I am undecided about wholesale legalization and regulation of prostitution. As opposed to various other so-called victimless crimes, such as the marijuana market, this industry operates under unique rules. Unionized, co-op sex workers are the tip of the iceberg, and I am much more concerned about the welfare of teenage boys and girls manipulated and coerced into this industry. Criminalizing sex work itself, as such, doesn’t strike me as a particularly great idea, but I think that any debate about pimping should be resolved against pimps. So, with apologies to the sex-positive activist grounds, I’m going to keep my objection to Prop 35 purely on the grounds of excessive, useless punitivism.