Criminal justice reform stays perpetually under the Media radar, but not CivCon’s. We have debated juvenile justice, the death penalty, mass incarceration, marijuana legalization, and other topics. This stuff can get complicated and it is not my area, so I usually like to tackle it one issue area at a time.
But, Linda had an interesting idea: Go back to first principles. What should our criminal justice system be trying to do? Is the goal punishment, vengeance, public safety, rehabilitation, or something else? Who sets those goals and how do we know which purposes are the priority?
The Trump Administration sure acts like it knows. And you’ll applaud if your idea of reform is to reverse Obama-era reforms that made the system a little less punitive. As promised, law and order is back. Attorney General Jeff Sessions has expanded use of mandatory minimum sentences and local police departments’ asset forfeiture powers. He probably will refuse to enforce the many consent decrees that the Obama DOJ negotiated city-by-city to clean up systematic police mismanagement and abuses. There’s more, and more coming. See the links.
Liberal reforms still have momentum, however, because a fragile but bipartisan consensus has emerged at the state/local levels that the current mass incarceration-producing system needs a big rethink. It is unsustainable financially, politically, and morally. It probably has passed the point of net marginal benefit (to society, individuals) and it is no longer necessary as crime rates have dropped.
So, despite events in Washington, D.C., Linda’s question fits the times. Specifically, Linda asks whether the true purpose of America’s criminal justice system is:
- Retribution, or
To those goals I might add:
4. Incapacitation (warehousing so they can’t commit more crimes),
6. Restoration (reconciling with their victims and communities).
We also can debate more controversial notions about The System’s real intentions, such as whether it is a deliberate system of racial control and/or increasingly just a big stream of cash to be privatized for a profit motive. I have other theories that I will raise. This is a big topic. But, how can we judge the need for criminal justice reform without knowing what the current system is trying to do?
DISCUSSION QUESTIONS –
- In whose eyes? Who sets the purposes of justice? Legislatures/courts? Bureaucrats? The police? Experts? The public (which public)?
- Motives/Incentives: What motivates each of the above actors? Different interests/preferences or different biases?
- The System – Purposes: Which ones matter overall the most and how do you know this?
- The precautionary principle or the inertia of decision accretion. Important concepts!
- Others: Racism, fear, profit, etc.
- JUSTICE? What does that mean?
4. The System – Evolution: How have purposes evolved since 1980? Why?
5. Future: Which way will reform go? How can your preferred direction be realized?
OPTIONAL BACKGROUND READING –
- The 5 goals of the criminal justice system. Defines terms.
- Americans are divided on what the main goals should be.
- Who is locked up in the USA and why: Explainer and pie chart. Recommended.
Trump’s Reforms –
- Trump is reversing Obama’s criminal justice reforms. Some conservatives say it’s a good thing, others are horrified. Recommended.
- National Criminal justice Commission: 20 senators propose creating one.
- Can bipartisan criminal justice reform survive in the Trump era?
Stuff you may not know –
- Bail reform is badly needed. Recommended. California may do it.
- Bad news for liberal reformers: Mass incarceration is driven by violent crime, not drug convictions.
NEXT WEEK: Is Africa’s future a bright one?
Linda, who’s a criminal defense attorney in private practice, suggested this topic. Since 1995, the number of U.S. prison inmates over age 55 has roughly quadrupled. They now comprise one-sixth of the entire U.S. prison population.
Why so many aging prisoners? One cause is the sheer size of violent crime wave that roiled the United States from the late 1960s to the early 1990s. Another is that the country is aging in general, including those that commit serious crimes. But most notoriously to blame are all of those harsh sentencing laws passed by state legislatures and Congress in response to the crime wave and the War on
Some People That Use Certain Drugs. Civilized Conversation has discussed both mandatory minimum sentences and racism in sentencing on separate occasions.
Having so many aging prisoners is a problem for a lot of reasons. As one of the links below says, older prisoners “require special attention in prison, as they often suffer from chronic diseases, including diabetes, heart failure, cognitive impairment, and liver disease, as well as age related disabilities. They are also more vulnerable to victimization in prison.” Just providing their health care costs a fortune. Many prisons have expensive geriatric wards. Nearly 80% of all deaths in prison are older (55+) prisoners.
Recently, the Obama Administration and some state governments – including California’s – have tried to devise programs to speed compassionate release for the least dangerous elderly prisoners whose further imprisonment makes little sense. This has proven harder than you might think, both administratively and politically. I imagine that the Trump Administration will end all federal efforts and that bipartisan criminal justice reform of any kind is dead. But, who knows?
Below are some rather duh-level discussion questions and a few straightforward readings on the elderly prisoner problem and on mass incarceration. On Monday I will skip my usual opening presentation, except to briefly summarize the issue for any new members that might not have read the background materials.
Linda, with her many years of experience as a defense attorney, will then have the floor.
DISCUSSION QUESTIONS –
- How big is this problem and what makes it a problem?
- What caused it? Whose “fault” is it? Was anybody thinking of this eventuality 30 or 20 or 10 years ago?
- Solutions: What’s being tried, including by the USG and in California?
How are those going? If not well, why, and what else should be done?
- Mass incarceration: Is the elderly prisoner problem another one of the consequences of America’s disastrous mass incarceration experiment? Or, is it a sad but inevitable consequence of our vast but in-the-past crime wave?
- CJ reform: Is there any hope for federal criminal justice reform now that Trump is president and the GOP controls USG?
SUGGESTED BACKGROUND READING –
- What caused our 20th century violent crime wave and why did it end? Recommended.
- [Late update] The huge affect lead poisoning from gasoline and paint played in the 1960s-1990 wave. Not a joke nor sloppy pop-science.
- Our huge aging prisoner crisis. Recommended best summary, but sorry for the annoying multiple automatic audio plays.
- The human costs are high everywhere. WashPost.
- But, and recommended: Releasing aging violent offenders is controversial even in California.
- Optional, very detailed studies:
- Our mass incarceration problem more broadly:
NEXT WEEK: White male privilege – How real? How important?
I don’t have time this week to do separate posts on any of this year’s gazillion ballot propositions. So, I’ll just link to a few good articles I come across that give info/perspectives you might not get otherwise.
First up, two that oppose Proposition 64, the legalize marijuana initiative. I strongly urge you to read the first one if you are considering voting for 64.
On November 8, Californians may abolish the state’s death penalty. Proposition 62 would ban capital punishment outright, including retroactively by converting all 746 prisoners on death row to life in prison without the possibility of parole. If Prop. 62 passes, we would become the 21th state to ban capital punishment outright. Four other states have governor-issued moratoria on executions.
But, it’s not a done deal in CA. I have not checked how 62 is polling yet. But, a similar proposition failed in 2012, although by just a 52-48 margin. Also, death penalty proponents thought of a clever tactic this time around. They qualified a rival proposition, Prop. 66, to address the worst procedural problems in our state’s death penalty process. By increasing the number of defense lawyers eligible to represent death row inmates and reducing the number of permissible appeals to help speed up the decades-long (and thus arguably cruel and unusual) process, Prop. 66’s backers hope to split the queasy-about-it-all vote and stop repeal.
How big a deal would death penalty abolition be in California? Yeah, it’s the Left Coast. But, some serious people are starting to argue that the USA is near a tipping point on the death penalty. The number of U.S. executions has been declining for years (only 28 in 2015). Botched ones keep making big news. The 2016 national Democratic Party platform called for outright abolition for the first time. Nebraska just became the first red state in modern times to end the death penalty. One major recent poll showed nationwide public support for the death penalty has fallen below 50% for the first time.
On the other hand, 51% does not magically change policy (okay, except on the ballot in CA). I’ve read that the Supreme Court has never had more than two justices willing to declare that capital punishment inherently violates the 8th Amendment’s cruel and unusual standard. Absent such a ruling, abolition will remain a state-by-state issue, guaranteeing the death penalty’s survival for a long, long time, at least in deep red states.
So, what will happen? Here are some questions we might want to get into on Monday evening, plus some background readings that focus on the chances of abolition. (We did a meeting on whether capital punishment should be abolished in 2014.)
DISCUSSION QUESTIONS –
- Props: Discuss merits of Propositions 62 and 66.
- Arguments: Why do people support death penalty (e.g., vengeance, deterrence, religious belief, inertia)? Why oppose it (morality/religious, cruel/unusual, racial disparity, cost…)? Is there a difference between the reasons people cite and their real reasons? What would it take to change people’s minds? Your mind?
- Public & politicians: Why has public opinion changed? Will it keep moving against the death penalty? What might it take to reverse or accelerate that trend? What incentives do lawmakers have to take risks versus avoid this issue?
- Courts: Will SCOTUS ever ban the death penalty outright? On what basis? Or, will it keep slowly restricting its use (minors, intellectually-disabled, murders only, etc.)?
- Alternatives: Can the “machinery of death” (Justice Blackman’s phrase) ever be reformed enough to eliminate its inequities? Regardless, would either side ever be satisfied?
SUGGESTED BACKGROUND READING –
- Prop. 62 and 66: Good summary here. In bullet format with links to op-eds here. Recommended.
- Poll: Support is at a 40-year low, but still a plurality. Men still support it and Republicans strongly support it.
- Nine reasons why support is declining. Or, four reasons. Both.
- Wrong. Public opinion is changing glacially, so capital punishment will be around for a long time.
- How Hillary’s election could speed abolition. Recommended
- Pros/Cons: A (meh) basic discussion of pro/con arguments on capital punishment, if you want it.
Next Week (Oct 24): The other 15 ballot propositions, or maybe we’ll just read War and Peace instead.
Two of our next three topics relate to the American criminal justice system, and both are Linda’s ideas. On June 6, we’ll do policing reform. Monday we will cover a very, very important topic that gets much less attention: Our juvenile justice system.
We jail/detain a lot of juveniles in this country. On any given day in America, there are more than 80,000 youths in detention and correctional facilities, including 20,000 in juvenile detention centers, 54,000 in youth prisons, and almost 6,000 in adult prisons and jails. These system’s problems are legion and discussions of them rife with sad phrases like “juvenile solitary confinement” which 24 states permit, and “school-to-prison pipelines.” Individual outcomes can be heart-breaking, including here in Southern California. You also could throw in other systems that treat children and their problems, like foster care and the mental health system, if you want to look at the problem in all its facets.
Yet, quietly over the last 15 years, reformers all over the country have recognized the gross inadequacies of juvenile criminal justice systems and have worked hard to improve them. I know very little about this, but the articles below will give you a sense of what has been accomplished and how much farther we have to go to make youthful offences an embarrassing adult memory rather than the first step towards a ruined life that ruins others’ lives, too.
I will red these articles and a few more and on Monday I will start us off by describing some of the juvenile system’s worst problems and biggest obstacles to reform. Then we can talk about solutions, etc. I will highlight developments in California.
SUGGESTED BACKGROUND READING –
- A very short history (up to 2008) of juvenile justice in USA.
- 2015 good overview: Trying to fix our broken juvenile justice system. Recommended
- Major goals of reform advocates. Notice how many areas advocates say we need to address – including some well outside what we traditionally think of as the criminal justice system.
- Closing big, often-abusive youth detention centers is key, as is ending solitary confinement for youths and – especially – making sure kids in facilities still get an education.
- The “school to prison pipeline” doesn’t mean what you probably think it means.
- California’s reforms: Recommended
Next Week: What is a “just war?”
This week we have an interesting topic from Linda, our defense attorney. I know little about the issue of wrongful criminal convictions. Like everybody else, I read about them on occasion. But, only the really egregious ones make the national news, like the recent case of a man freed after serving 34 years for a rape/murder he did not commit.
Fortunately for us (and for at least a few of the falsely imprisoned), a number of organizations are dedicated to exonerating such people, notably The Innocence Project and Wrongfulconvictions.org. Their heartbreaking cases, or even a quick Googling of the topic, suggests the scale of this problem could be larger than most people imagine. It’s not just murders and rapes and pre-DNA convictions. Wrongful convictions may be fairly common for lesser crimes, like assaults or burglaries. These miscarriages of justice have many causes, including:
- Bad evidence: Shaky eyewitnesses, false confessions, and bad forensic science;
- Police and prosecutorial misconduct: Some accidental, good-faith mistakes; some deliberate and malicious;
- Incompetent defenses: Bad defense attorneys and underfunded and overworked public defender systems.
And those are just before the wrongful convictions. After a person goes down for a crime, the obstacles to getting his/her case reexamined are enormous. The burden of proof essentially transfers onto the convicted and it’s a large burden (I think). As I’ll discuss in my brief opening, one reason it’s so hard is that being innocent is no excuse. I’m serious. Generally under the law, a convicted criminal cannot be exonerated unless he/she can demonstrate (from prison, often!) that the process under which they were condemned violated their due process rights. If they got a “fair” trial but a wrong outcome, too bad. Plus, 95% of criminals plead guilty in a plea bargain. So, there is no trial at all to question, just the actions of the police and prosecutors, who, as we’ve all seen with recent killings of unarmed citizens, almost always get the benefit of any doubt..
Only a few links this week – Some broad overviews of the problem, plus a little bit on causes and ways to improve the system. My big question on this topic is the last one, below: What does this problem say about our legal system as a whole? Are wrongful convictions just the tragic but infrequent and inevitable “false positives” generated by a gigantic criminal justice system in a very high-crime country? Or, are they yet another manifestation of a rotten criminal justice system, intrinsically connected to mass incarceration, police abuse, etc.?
Hey, not every problem has to be connected to much bigger and long-festering systemic problems. But, where there is the former, there is usually the latter.
Discussion Questions –
- Frequency. What do we know about the problem of wrongful criminal conviction? How many are we sure have happened versus estimate? Is the problem a large or small part of American justice?
- Who/When: Who gets wrongfully convicted – Which types of crimes and/or defendants and/or victims and/or locales?
- Causes. Why does this happen? Is it individual errors or systemic problems?
- Solutions. What remedies have been suggested? Which ones have been implemented and by whom? Why/Why not? Results?
- Disease or symptom? What does this problem say about our criminal justice system? Tip of the iceberg of injustice? Small, isolated problem?
SUGGESTED BACKGROUND READING –
- Overview short. Recommended
- Overview, longer and better. Recommended.
- More on the 6 major causes of wrongful convictions, from the Innocence Project. Another study found 10 causes.
- One big cause, IMO = Prosecutors have too much power! Recommended. More on this from both sides’ POV.
Next Week: Is the U.S. financial sector finally tamed?
We last discussed the death penalty in February 2010 (plus for a death penalty-related ballot proposition in 2012). Some things have changed since then. Several more states have halted executions temporarily or abolished them altogether. Public opinion in the United States still favors the death penalty, but the majority is slowing declining. Conservatives have come on board on some criminal justice reforms, like mandatory minimum reductions. And, a recent string of botched executions has thrown the mechanics of the death penalty into stark relief. So, we may be on a slow road to abolition. Alternatively, we could be near a tipping point, like we recently were on gay marriage equality. Or, we could stay the way we are now, where death sentences remain a state issue and a few states do most of it.
Most Americans and most of this group are firmly in one camp or the other on the death penalty. So, I have an idea for a way to discuss “is it time to abolish” it in a way that does more than just rehash the pros and cons of the issue (although we can do that, too). How about discussing why it is that most Americans
support support or oppose the death penalty and what it might take to change their minds? Even if you support the death penalty, it might be illuminating to think of this issue in the larger context of how public opinion in the United States gets moved over time. After all, public opinion on some hot button social issues stays remarkably stable over the decades, as we recently discussed regarding abortion. But, in others, like gay marriage, it’s changed rapidly. Why does this happen and what might make it happen on the death penalty – whether you think that’s a good idea or not?
I’m as tired of lecturing each week as you probably are of hearing me. (Okay, probably not.) Either way, I’ll open Monday’s meeting by just spieling out a few statistics on the death penalty’s application in the United States and summarizing recent developments that may (or may not) have the potential to move public opinion. Then, I’ll see if anybody wants to bite on the “what would it take to tip public opinion” angle.
DISCUSSION QUESTIONS –
- What’s new in the politics of the death penalty in the United States?
- Has public opinion moved on the issue in recent years? Why?
- Why do people support the death penalty (e.g., vengeance, deterrence, religious belief, inertia)? Why do people oppose it (morality/religious, cruel/unusual, racial disparity, cost…)? Is there a difference between the reasons people cite and their real reasons?
- What arguments or evidence would it take to change people’s minds? What kinds of arguments sway Americans on issues of crime, or morality, or anything else?
- What arguments/evidence would make YOU change your mind?
- The latest: Why did it take Arizona two hours recently to execute a man?
- Death penalty trends/facts: Both recommended
- Pros and cons:
- Very basic pros/cons.
- More pros: Article refuting the “innocence” issue death penalty opponents make.
- More cons: Amnesty International USA facts sheets on death penalty issues: Racial bias, arbitrariness, executing the mentally ill, etc.
- Tipping point? Read both.
- Public opinion: Do you think these explain the “why?”
- International law and the death penalty. (ABA article)
Next Week: How Valid Are Criticisms of Obama From the Left?