Saturday, September 01, 2012
On the Ballot in CA: Prop 34 - Death Penalty "Replacement"
Hello, Everyone - it's good to be back this month at PrawfsBlawg. For folks who don't know me, I teach and do research at UC Hastings in San Francisco. I study the criminal justice system and, in recent years, have been focusing on the correctional crisis in California. I'm currently working on a book with UC Press about the impact of the financial crisis on the American correctional landscape, and in particular on a scarcity-centered correctional discourse that I call "humonetarianism" (here's a webpage with a downloadable version of my first paper on this.) I also blog about everything corrections in CA at the California Correctional Crisis Blog, where I'll share this month's posts as well. Some of the themes of this month's posts will discuss ideas from the book, and I look forward to your comments.
As a first post, I want to introduce a voter initiative on the November ballot - Prop 34, also known as the SAFE California Act - and talk a little bit about incremental change and "marketing techniques" for soft-on-crime propositions.Regardless of a politician's party affiliation, presenting oneself as soft on crime is akin to political death (interestingly, Kamala Harris, who as San Francisco DA was opposed to the death penalty, called her book Smart on Crime). Bringing up propositions for leniency using human rights discourse is an unacceptable thing to do in American politics. But, as I discuss in the book, the last few lean years have had a silver lining: Scaling back punitive policies becomes more acceptable if done in the guise of financial prudence. So, in recent years we see some developments that are swinging back the punitive pendulum that has been moving in one direction for forty years. We're seeing more talk of drug legalization and decriminalization; we're hearing more talk of priorities in prosecutorial offices; and we're discussing categories of offenders based on their cost, such geriatric parole of the old and the infirm.
One manifestation of these developments is a recent trend of death penalty abolition or, in the least, moratoria. Over the last year alone, five states have abolished the death penalty, citing its costs as a main factor, and bringing the number of no-death-penalty states to 17. After a legislative effort to do the same in CA failed, a public movement consisting of a coalition between activists, new non-punitive victim groups and law enforcement supporters managed to obtain the necessary 750,000 signatures to place the proposal on the ballot as a voter initiative.
I can't engage in prophecies as to the outcome in November, but Prop 34 has been fairly successful so far in winning endorsements from newspapers, public organizations, former supporters of the death penalty, and important public figures in law enforcement. And I think the reason they have managed to appeal to so many different constituents has a lot to do with their remarketing of the death penalty as costly and unaffordable. Their printed and online materials refrain from using the word "abolition" but rather use the term "replacement" (funny enough, many friends of mine have not jumped on the wagon because they are uncomfortable with the movement's extolment of life without parole and do not believe in incremental reform.) Their activists and volunteers are advised to stay away from denouncing the death penalty as barbaric and inhumane, but rather to argue for its expense and inefficiency. Watch how this video, ofr example, emphasizes the issue of cost. The cost factor may also partially explain the recent decline in public support for the death penalty in CA.
This sort of newspeak isn't really new. Nonpunitive propositions are often marketed as "smart" (which they often are!). What's new here is the emphasis on money.
Elsewhere, I talked about the changing discourses in anti-death-penalty activism. The intellectual, Enlightenment-era conversation about its merits and pitfalls, which was so powerful and influential in Europe despite being a top-down intellectual experience rather than a public conversation, didn't really happen seriously in the United States. Our first serious conversation about this happened in the 1970s, with the period of moratorium between Fuhrman and Gregg. And then, much of the conversation revolved around deterrence. Then, with the emergence of DNA testing and innocence projects, the conversation turned to wrongful convictions and the irreversibility of mistakes (see more about the exoneration process in Brandon Garrett's new book.) And now, the discourse focuses on cost and savings.
And there's one more thing to consider: In most countries, as Frank Zimring and David Johnson eloquently showed, once the death penalty goes away, it doesn't come back. But American exceptionalism, as David Garland points out, cannot be discounted. And, in the United States, the death penalty did return after four years of constitutional moratorium. Assuming Prop 34 passes (and, being a huge believer in incremental reform, I very much hope it does), would we bring back the death penalty when the economy improves?
Posted by Hadar Aviram on September 1, 2012 at 12:05 PM | Permalink
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How much of the focus on cost is the result of the financial crisis, and how much of the focus on cost is the result of an unprecedented drop in crime rates in the last 20 years? Crime rates are way down compared to the rates of 30 or 40 years ago, so voters aren't as worried about crime today as they were then. Being less worried about crime, they are more open to being less punitive. And being more open to being less punitive, they are more open to other aspects of the problem such as cost, errors, and the like. In effect, the other issues get a better hearing today because they have the luxury of being considered in light of lower crime rates. Or so I would think; I'd be interested in your take on how much crime rates matter.
Posted by: Orin Kerr | Sep 1, 2012 6:02:21 PM
Orin, I don't think the recent openness to nonpunitive propositions is a product of declining crime rates. Crime rates have been declining steadily since the 1980s and that did not change policy. Moreover, some of the more punitive propositions approved in CA, such as Three Strikes, were approved as a response to "redball crimes" in times of declining crime rates. Moreover, as Katherine Beckett shows in Making Crime Pay, the punitive wave was not clearly a response to rising crime rates; it was a response to top-down governmental hype. Moreover, none of the discourse accompanying these new initiatives actually cites the decline in crime rates.
It's a great question. Keep them coming; they'll make the book better.
Posted by: Hadar Aviram | Sep 1, 2012 6:45:42 PM
Thanks for the response. If you don't mind, let me push you a bit more on this.
If you go back and watch a State of the Union address from the 1980s or 1990s, there is a good chance that the President -- Republican or Democrat -- will at some point talk about the need to address crime. The issue had great resonance back then, as there was a genuine sense that crime was out of control and that the government needed to be more aggressive in response. The question is, why was that a major political issue?
To dismiss it as "hype" is problematic, I think. All too often, hype is just a name for a concern that the speaker personally doesn't share. And politicians can hype in any era: Whether they focus on the issue depends on whether they think it has resonance among the public, so the question is why the issue would have resonance in some eras but not in others. Given how strongly people feel about crime rates when crime is high -- or when it is perceived to have recently been high, and thus may be high again in the near future -- I'm not sure the issue can be so easily taken out of the equation.
As for the discourse, public discourse generally doesn't focus on what people aren't worried about: It focuses on what people *are* worried about. My argument is that people are worried about X today because they're not worried about Y. So I'm not sure what the current discourse shows. My amateurish 2 cents, anyway.
Posted by: Orin Kerr | Sep 1, 2012 7:41:47 PM
Oh, and I should have been clearer in my comment above that I would think concern over crime naturally lags actual crime rates. Crime levels create a cultural response to crime that is cumulative over the years, in part because personal experience with crime are localized while crime rates are national. If I'm right about this, it would make sense for attitudes to take a decade or two to change. My amateurish 2 cents, as before.
Posted by: Orin Kerr | Sep 1, 2012 7:48:33 PM
Agreed re hype. But see, that's exactly the thing: When Nixon capitalized on rising crime rates during his election, (1) it worked, and (2) was a fairly new development (the rise in crime rates can be dated back into the 1960s.) Nowadays, the decline in crime rates is (1) 30 years old, and (2) not publicized at all. I don't think people in the street know that crime rates are declining.
If a decline in crime rates was considered a publicly persuasive argument, someone would've used it in a campaign. In all the campaigns I'm following on the book, I never saw a single argument trying to convince folks to vote for something because crime rates are dropping.
Posted by: Hadar Aviram | Sep 1, 2012 8:04:39 PM
I'm not actually seeing where Orin and Hadar disagree. Orin seems to be saying that declining crime rates--with a bit of a lag--have made voters more receptive to arguments about reducing punitive measures. Hadar seems to be saying that a focus on cost in particular, rather than other arguments such as humanitarianism, is an argument that seems to work in this environment. I don't see a contradiction. Can we stipulate that both are necessary conditions for what we are seeing? That is, if crime rates were sky high, then cost wouldn't work? And, conversely, if the argument were phrased in terms of humanitarianism toward convicted criminals, it doesn't seem to work even in an environment where crime has dropped?
Posted by: TJ | Sep 1, 2012 8:27:18 PM
But when Nixon made crime an issue in 1968, there were public riots in the streets in many of the major cities in the wake of MLK's assassination. It's easy to run in favor of public order when there are riots in the streets, and cities are (literally) burning.
As for political campaigns, I am not arguing that the decline in crime rates is a publicly persuasive argument. Politicians are in sales, and there is a big gap between what motivates a salesman and the pitch used to sell the product. Rather, I am suggesting that the decline in crime rates may have created an environment in which there is more room to discuss issues related to criminal justice other than being more punitive. To many voters, their personal safety is a higher priority than the cost of their criminal justice system; they care about cost only when they feel safe.
Posted by: Orin Kerr | Sep 1, 2012 8:29:10 PM
TJ, I happily accept your stipulations -- that sounds right to me.
Posted by: Orin Kerr | Sep 1, 2012 8:39:11 PM
Those are good points. I think that crime rates only go one way - they draw attention when they go up, but no one pays attention when they go down.
Posted by: Hadar Aviram | Sep 1, 2012 8:42:06 PM
Hadar, that's my sense, at least. Terrorism is that way, too. When there is a major attack, it's a major issue. But when there hasn't been a major attack in a long time and people are focused on other things, it just quietly falls off the radar screen. (I suppose the same can be said about a lot of perceptions of public problems, but crime and terrorism are easier than most to understand in that way.)
Posted by: Orin Kerr | Sep 1, 2012 8:49:54 PM
"I think that crime rates only go one way - they draw attention when they go up, but no one pays attention when they go down."
I wonder about this. Perhaps it's so as far as what politicians say in speeches and the like (We don't hear, "let's cut money on the police since crime is way down" and the like), and maybe it's even right on the news, but I think it's clearly wrong for people in their normal lives, even if there's a big lag between rates and reaction. When I visited NY City in the late 90's, people were still often worried about walking in central park early in the early morning or late at night, and lots of people were pretty scared about living at, say, 168th street or above. When I lived there from 2007-09, walking in the park at night wasn't thought to be particularly dangerous at all, and while Washington Heights wasn't thought of as a wonderful neighborhood, no one thought you were crazy or risking your life to live there. So, it seemed to me that perception of crime had changed quite a bit over time, even if it lagged the actual drop in crime, and even if it happened so slowly that many people didn't realize that their own views had changed quite a bit. To see that people's views have changed, we need to not just ask them, but see what they do, I'd say.
Posted by: Matt | Sep 1, 2012 10:20:11 PM
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