PrawfsBlawg

The Meaning of Life

Carol Williams reporting in the LATimes does a superb job of describing California's Lewis Carroll like parole system for those sentenced to life in prison for murder, with the possibility of parole; a topic which has given the California Supreme Court cause for psycho-therapy and now looms over the 9th Circuit (Hayward v. Marshall, 527 F.3d 797, granting rehearing en banc over the earlier panel opinion granting habeas corpus to lifer Hayward, 512 F.3d 536).  The issue, however, makes a great way to teach core issues in substantive criminal law including the distinctions between rehabilitation, deterrence, incapacitation, and retribution, and the elements of the law of murder and manslaughter.  Unlike the typical casebook murder case, these parole based cases involve core examples of murder.  Moreoever, the posture of these cases is particularly good for teaching as they raise the question of whether given the facts of the crime, criminal record,  and record of prison discipline and rehabilitation, some evidence exists that the petitioner convicted of murder poses an "unreasonable risk" to public safety.  This contrasts with the much more limited facts available to the typical appellate murder case.  The problem is that between the due process issues,  and the statutory construction issues, and the two levels of administrative decision making (parole board, and governor), with trials courts added in, plus ATEDPA if its federal court, it is kind of hard to teach.  Thus you might consider just using William's article and the facts of Hayward (more beneath the fold) for your discussion.

Hayward killed a man at the legal boundaries between murder and manslaughter (he confronted the man he believed had insulted/assaulted and possibly raped his girlfriend, and stabbed him to death during the resulting fight) and was convicted of 2nd degree murder.  The law under which he was sentenced made him eligible for parole after 15 years.  Indeed, the language of the law is that the board "shall" set a date (atlthough it might be years in the future) for release unless they find the subject "unsuitable" for parole.  Hayward became the model prisoner, pursuing therapy, education, and becoming a positive influence on those around him.  Now 67, he has job offers and a clear plan of where to live if he should be released (quite different for many).  While in an earlier era his parole would have been routine, by the 1990s parole boards in California became increasingly sensitive to victim advocates and focused on the details of the crime rather than the prison profile.  Governors assuming an old statutory mandate  (reinforced constitutionally in 1988) began to review every parole decision, reversing almost all of the very few granted by the parole board.  Since 2003 this log jam has produced an increasing number of legal challenges through the arduous process of habeas corpus petitions to the superior court where the prison sits, and eventually to the California Supreme Court, and on to the federal courts (where dreaded ATEDPA issues rear their heads).

In 2002, at his 10th parole hearing, the board granted Hayward a parole date.  Since then Hayward has been repeatedly turned down by California governors.  Although the law only requires "some evidence" of unreasonable risk, the 9th circuit panel opinion makes a strong case that the governor's rationale lacks any.  The panel found that the trial courts must consider whether "some evidence" exists of unreasonable dangerousness, not just whether some evidence exists to support the reasons the governor cites for believing the subject to pose and unreasonable risk.  The en banc decision (and possible Supreme Court decision to follow) could result in a system in which the governor would have virtually unquestionable authority to keep convicted murderers in prison until death.  Fear of this kind of outcome has led the European Court of Human Rights to find that life sentences with parole must permit an official completely insulated from politics, like a court, to determine parole release dates.

Death Be Not Proud

In the aftermath of Ohio's latest execution (read Ian Urbina's reporting in the NYTimes; this one was the first to be done with a single shot of a powerful narcotic ), I was cheered to read my colleague (and teacher) Frank Zimring's column in yesterday's National Law Journal, noting the decision by the American Law Institute earlier this fall, to withdraw it's much cited standards for capital sentencing.  Zimring, who longed championed the cause of repealing these provisions, points to an irony that should haunt all of us who purport to advise governments on matters of law and human rights.  The standards, captured in Section 210.6 of the Model Penal Code, were a compromise produced by reporters very much opposed to the death penalty, but drafted by the late Herbert Wechsler (who as Zimring notes, was no friend of capital punishment)  because the code was intended as a comprehensive document for state criminal law reform, and most states continued to have the death penalty.  Yet when the states began to reconstruct capital statutes in the aftermath of Furman v. Georgia (1972), many readily adopted the MPC provision, with its apparent structures to control discretion, making this least cherished artifact of the great drafter, one of the most widely adopted "reforms" in the MPC. 

Substantively, the section's weaknesses, diagnosed by Zimring and others as anchored in the overbroad categories included in the aggravating factors, overwhelmed any good it might have done in limiting the power of either prosecutors or jurors.  In the subsequent decades, the states have frequently cluttered the relatively lean list of MPC factors, with dozens of populist provisions designed to "honor" certain categories of victims.  The ALI's decision may be little celebrated in the media, nor noted by voters, but it is one step toward stripping the death penalty of the pretense it retains of legality.  The eventual abolition of capital punishment in this country, will come, I suspect, not when Americans are convinced it is morally wrong, or empirically unsound, but when they can no longer recognize it as law.  That day is perhaps not soon, but closer.

Pre Crime: Why are we so confident that we can prevent acts of terrible violence?

As politicians and officials in Washington (state) and Arkansas battle over who should have stopped Maurice Clemmons before he apparently shot to death four Washington state police officers outside a strip mall coffee shop near Tacoma last weekend before being shot dead by Seattle police, we can observe a very enduring if not endearing American obsession-- our conviction that we might have stopped the tragedy (read William Yardley's summary of the blame game in the NYTimes).  Clemmons, sent to prison with a hundred year plus term for violent crimes as a teenager, received clemency and parole from then Arkansas governor Mike Huckabee (who made no secret of his religious belief in the possibility of redemption and change).  Both Washington State and Arkansas officials appear to have missed opportunities (in retrospect) to turn up the control pressure on Clemmons.  More should be learned over the next news cycle or two.  

As an overall trait, this American confidence that better technique and method could stop violence is largely admirable, small "d" democratic, and great for the criminal law and policy reform business (which includes fairly or not, academics).  Overall it may make us prone to waves of generally temporary civil liberties destruction in the name of personal security (as we have seen).  My objection, however, is limited to two points.

First, our obsession with the "recidivist".  Once we have sent someone to prison it seems maddening to Americans that we cannot guarantee they will remain tame forever after.  This leads us to keep too many people in prison, for too long (something that this and other recent crimes will only stroke); blind to the fact that the odds of any particular ex-prisoner committing a violent crime are scarcely, if at all, measurably different from other non ex-prisoners with similar demographic circumstances.  Ironically, the one trait that really may help us track future violence--evidence of major mental illness combined with acts of violence--seems to be largely ignored by our criminal justice system (which accords it little measure of mercy or forewarning).

Second, Americans eschew as "welfare" those things that could most efficiently relieve the most predictable violence (such as substantial economic assistance to victims of domestic violence to escape their threatening partners or efforts to embed high-risk teenagers in cuddly but secure extended school programming).

Architecture of Justice: Ideology in Stone?

I'm almost recovered from the physical consequences of a quick Thanksgiving weekend trip to Lincolnshire, England, where I attended a conference on the Architecture of Justice organized by Professor Nicholas Temple of Lincoln University, School of Architecture, and and Professor Renee Tobe of the University of East London, School of Architecture and the Visual Arts.  Having dinner in the priory of Lincoln Cathedral (a stunning medieval construction, the third largest in the UK) and standing in the positively panoptic chapel of the 19th century Victorian prison that still stands in the middle of a fortress and castle (itself begun by the Conqueror, two years afte the Battle of Hastings) would have made the jetlag worth it.  However the intellectual rewards of breaking outside my usual discourse silos were even greater.  I have attended conferences or given talks in the UK many times over the past few years without once breaking out of the silos of criminology and law (I still learn a great deal being outside the US).  With some four keynotes and some eighteen parallel sessions, there was more than I can hope to summarize in several posts.  One theme that was emerged again and again was the relationship between built structures of justice, especially courts, and the spatial relationships of cruelty and oppression that at times the architecture of justice seems intended to "cover up," and at other times to "exorcise."

One very clearly ideological exercise from the 19th century was documented in the photos presented by Jonathan Charley, of the University of Strathclyde, in his brilliant  historical and archtectural tour of the sites of oppression and justice, "Violent Stone: The City of Dialectical Justice."   Cities like Birmingham in England, and Brussels in Belgium in the 19th century, constructed grandiouse edificies of justice to house their central trial courts, right at the moment they were enjoying the most rapid enrichment from their highly specific exploitation of the slave trade and King Leopold's own version of slavery/genocide in the Congo respectively. 

Whether or not one stands with E. P. Thompson, to recognize the dialectical potential for the law to ultimately temper the exploitation of the powerful, it is hard not to recognize the bald  effort at legitimation involved in buildings like the Palais de Justice. 

On the otherhand, what about the recent efforts to build new courthouses that represent the aspiration to transparency of contemporary English courts with sweeping atriums of glass like the brand new Manchester Civil Justice Centre (whose principal architect, Stephen Quinlan, presented a plenary address)?  Or perhaps, most intriguingly of all, the new Constitutional Court in Johannesburg, South Africa, built directly across from a fortress prison where victims of Apartheid were incarcerated and sometimes executed on a hill at the margins of the city?

Hope v. Fear

Could there be any better index of the relative strength of hope and fear in a polity than spending on universities and prisons?  For the American "states", who have no armies, universities and prisons are the most concentrated and material manifestations of state sovereignty itself (other than the cluster of buildings that stand in their capitals, usually ignored by the public).  In California fear had an early lead as San Quentin prison opened in 1851, just two years after statehood, and well ahead of the University of California which was chartered in 1868. 

Both grew slowly over the next century, with a new prison at Folsom opened in 1880, and a southern branch of the University of California opened in Los Angeles in 1914.  The second half of the 20th century saw a surge of hope after World War II that reached its peak in 1960 with California's famed "master plan."  The University of California, projected to expand to nine campuses, would become the research arm of a comprehensive public university and college system guaranteeing nearly free four year higher education to the vast majority of the state's high school graduates.  The spending unleashed by this hope was just cresting as I reached the gleaming Berkeley campus as a freshman in 1977.  At that point, the state spent more than 17 percent of its discretionary fund on higher education, and 3 percent on prisons and parole.  Fear was already building a head of steam with the crime wave of the 1960s and 1970s.  Over the next three decades the state built more than 20 new prisons and a total of 3 four-year universities.  The fact that California is, in good times, extraordinarily wealthy, made it possible to sustain a lot of fear and hope.  But the recent financial crisis has made that impossible.  California must now choose fear or hope for the future.  Today prison leads spending on higher education with pressure on both.  Tamar Lewin's front page article in today's NYTimes chronicles the recent travails of the University of California as fear shows its staying power and hope wilts.

Unfortunately, the recent days of protest at Berkeley and Los Angeles (the regents are meeting in the latter) have failed to focus on this choice and instead lashed out at the University's own administration for making the cuts and tuition increases necessary to survive.  (for my critique of the strikers)

Haunted by Recidivists: Double Homicide in Berkeley Linked to Oakland Parolee

Virtually everyone who studies prison agrees that states currently incarcerate too many people, too indiscriminately, and generally for too long.  California is the poster child for this problem, with huge budget deficits and federal court orders to both reduce its prison population and improve the quality of medical care in its prisons.  But just when the fiscal and legal problems of the state seem to open the policy window for a discussion of reforming the system, a series of crimes come to public attention that remind everyone of the chief boogeyman that has haunted American justice at least since the end of the 19th century, the violent criminal who keeps coming out of prison and committing more crimes.

Over the summer there was the arrest of sex offender Philip Garrido, who had kept kidnap victim Jaycee Dugard for 19 years in his Antioch home despite being on parole and registered as a sex offender (read Maura Dolan's coverage of the case in the LATimes).  Last month a Cleveland man with record of rape convictions was found in his home along with the corpses of some ten victims (WKYC.Com's coverage).  Now comes Curtis Martin III (38), charged in Alameda County Superior Court yesterday with two counts of murder and special circumstances (making him eligible for the death penalty) for the murder of a 23 year old woman and her 17 month old son, Martin went to prison back in the 1990s for killing the three year old son of his girlfriend  (read Henry Lee's coverage in the SFChron).  To the casual reader all of these stories suggest men who received remarkably light sentences for past serious crimes (Martin served six years on an eleven year sentence for manslaughter; Garrido did less than ten on a federal kidnapping conviction), and who emerged from prison ready and willing to commit similar or worst crimes.  If a lot of offenders are like Garrido and Martin, mass incarceration might seem a very sensible strategy indeed.  The result may well be renewed calls for longer sentences, despite the obvious prison crisis we are having.

The public is less likely to notice several features of all of these cases.  First, the seemingly lenient sentences that all three men received reflect sentencing laws from decades ago and in Martin's case, apparent proof problems that led to a manslaughter rather than murder charge.  Two of the three were on parole supervision but undeterred from continuing to commit crimes.  Finally, in all three cases, the suspects were detected by good police work (sometimes after repeated failures by other police agencies). 

The last thing we need is a spate of longer sentences targetted generically at whole categories of offenders.  Mass incarceration creates the conditions under which willful offenders like all three of these recent cases can operate with impunity, their violent crimes largely hidden amidst the blizzard of minor violations that dominate parole supervision.  It also creates conditions under which young women like Zoelina Williams (23), whose body was found in Aquatic Park here in Berkeley (where my kids often play) get involved with older losers like Curtis Martin (see the forthcoming article by my collegues, Stephen Raphael and Rucker Howard on the effects of incarceration on AIDS infection rates). 

The silver lining in all these cases is what they reveal about the effectiveness of good police work.  In the Garrido case, a UC Berkeley police officer, maintaining public observance of a widely used public forum (Sather Gate), noticed the aberrant appearance and behavior of Garrido's daughters (with his kidnap victim).  Curtis Martin was caught because an officer of the Berkeley police department ran into him on foot patrol in Acquatic Park, and noted down his name and license plate, facts that led to his arrest less than eight hours after the body was discovered.  As my colleague Justin McCrary has shown, public spending on prisons has outstripped police by an overwhelming amount since the 1970s (400 percent increase of prisons, more like 20 percent for police).

Help Wanted: Clearing the Troubled Assets of the Penal State

I had to miss a criminal law careers panel at Berkeley Law today due to the ongoing influenza epidemic known as my home.  The panel had the intriguing title "Careers in Criminal Law: Beyond Defense & Prosecution."  I wanted to share a rough outline of what I would have said.  The prison crisis in states like California, and the ongoing over-investment of social resources toward mass incarceration in America that they show case, is one of the reasons it is so important to as what lies beyond the traditional careers in criminal law defense and prosecution.  For while the large urban public defender and district attorneys offices have been a mainstay of employment for graduates of American law schools since the war on crime began in the late '60s, the long war may be winding down(at least in growth terms).  But this does not necessarily mean the need for fewer lawyers, but perhaps different kinds of lawyering.  For while defenders as much as prosecutors have made their bread by helping to manage the processing of citizens into prisoners, the present/future offers lots of opportunities for those lawyers who can figure out how to reverse the process.

The present fiscal and legal crises around prison populations is making it easier then ever to monetize gains from reducing the enormous "legacy" costs that now afflict the state from their commitments to warehousing large categories of criminal offenders, with little built in capacity to assess risk and reduce the overincarceration of the undangerous.  Because a great many of these arise not simply from criminal opportunities but from the operation of an extended system of governing through crime that runs well beyond the criminal law system into areas as diverse as mental health law, education law, and employment law, lawyers have real advantages in this emerging market (especially if they have, or can partner with people who have criminological skills, therapuetic skills, empirical skills, etc. 

I'm not saying these jobs are waiting  in a binder in the career center.  Mostly they will have to be invented, one law graduate at a time, perhaps with some help from foundations and law schools.  Here are a few general areas where there is lots of action:

Justice Reinvestment: Once you track how much money the state is spending incarcerating the troubled population of certain extremely disadvantaged neighborhoods (and in every state there are a few such neighborhoods that account for a grotesque portion of the whole carceral population) you can calculate how much the state is spending to incarcerate their way to public safety and order in those neighborhoods.  Sociologists have come to recognize and document that these areas are almost invariably denuded of non-criminal sources of social order making, and have few resources to address the predictable demand for mental health, drug treatment, job training, and housing assistance in that neighborhood.  Finding ways to frontload the investment in such non-criminal social control, while capturing the gains from reductions in incarceration costs that will follow successful implementation is the key.  The heavy role of medical costs in driving carceral expenditures may be very important here, especially if Congress manages to create a wider entitlement to health care for Americans in poverty.

Parolees and Recidivism: The low lying fruit here, at least in states like California, are parolees whose path back to prison is generally a greased slide, and for whom the social value of incarceraiton is almost certainly a bad deal all around.  The excellent settlement of the Valdivia case here in California (now under attack again) provides one clear example.  By giving every parolee under revocation a lawyer (rather than undertaking costly screening) and organizing the calendaring for efficiency, the Valdivia consent decree created a market where lawyers can make a living reducing the flow of parolees back to prison, helping the state reduce its population and almost certainly saving money.  We need more creative uses of litigation to create more effective lawyer roles in the parole process.  The time is ripe for something similar for lifers in prison who are costing the state money as they age and, and in many cases, posing next zero risk to public safety.    

Schools to Jail: Research by sociologist Bruce Western and his collaborators documents that youg minority males who do not finish high school experience witheringly high rates of imprisonment by the time they are 30 (close to 2/3rds).  Can lawyers find ways to keep minority males in school?  Since school discipline and aggressive policing, as well as gang activity itself, are all factors driving such kids out of school, lawyers would seem to have lots of ways of intervening (getting paid, not so obvious).

Mental Health: Huge numbers of people move in and out of jail and prison because we have foreswarn the traditional practices of confining the untreated mentally ill, but have failed to generate effective community alternatives.  Finding some way to reinvent our civil governance of the mentally ill will need lots of lawyering (lots of doctoring too no doubt). 

Reinventing public defender and district attorney offices: Prosecutors have huge opportunities to rationalize social costs by being more selective in deciding who qualifies for a sentence in the "big house" as opposed to lower cost alternatives like fines, probation, and jail.  In exercising more judgment, they need defenders who can make a case pre-trial for their client's "good" risk profile and "promising" non-prison plan, as much as they might focus on weaknesses in the evidence or police conduct.  Innovators in traditional defender and prosecutor offices can also play a key role in addressing all the issues above.

Is the death penalty a specific incentive to murder? The strange case of Billy Joe Johnson

Billy Joe Johnson got his express wish yesterday, an Orange County jury sentenced him to death (reported in the AP on SFChron website).  The twist is this, Johnson is already serving a forty year to life sentence in California's harsh Pelican Bay prison.  Johnson, a loyal member of a white supremacist prison gang, who sports twin lighting bolt tattoos on his neck (in a fashion once associated with the SS) has been candid that the murder was one of several ordered from prison for the specific purpose of earning Johnson a transfer to San Quentin's death row.

Is Johnson's story credible?  Prosecutors played in court taped statements of Johnson in which, clearly aware that he is being wire tapped, seems to speak directly to his future jurors (from R. Scott Moxeley's reporting in the Orange County News) :

“He ain’t done yet. He’s gonna kill again—oh, man!”

Why?

“I’m a motherfucking, bona-fide, certified, fucking nut fucking case, and if they don’t like it, they can fuck off,” said Johnson, who speaks with a lisp. “You know what I mean? Put that on the fucking front page, you know what I mean? Nut case. Fucking don’t care.”

In a final attempt to bolster his monster image, Johnson told jurors that he is determined to kill members of United Society of Aryan Skinheads, a rival gang.

“I’m on a mission,” he said, winking at the prosecutor.

Does trading life sentence in one of the state's "secured housing units", i.e., supermax prisons, for a cell on San Quentin's death row make sense?  Frighteningly, yes.  Execution is unlikely for at least 20 years (Johnson is already 46 and has spent much of his life in prison).  Death row prisoners get much more lawyer attention and may have better physical conditions.  San Quentin is a prison with far more educational and cultural resources than most California prisons (although death row inmates have little direct access to either).

Perhaps the better question is whether Orange County prosecutors and death qualified jurors are so high on vengeance fumes that they are being manipulated by hardened felon in a gambit that will cost the state millions in court costs over the life of the course of appeals, without gaining one wit of security.

Who Killed Kennedy? Memories of a Unique Class and Teacher

Scott Shane's story in last Saturday's NYTimes on the CIA's continuing resistance to disclosing its files on its relationship with anti-Castro Cuban militant groups, including some who clashed with Lee Harvey Oswald on the streets of New Orleans in the summer before the assassination, brought to mind my happy days in Miami and a remarkable class at UM Law taught be my friend, the late John Hart Ely.  Ely, who became a giant of constitutional scholarship, was as a young man was summoned by Chief Justice Warren (for whom he was about to clerk) to serve as staff for the Warren Commission.  Ely spent years defending the Commission's results by the late 1990s he had come to the conclusion that history had shown the Commission's sources to be deeply and deliberately truncated.  He doubted that any of the more sweeping conspiracy theories were credible, but he had come to conclude that someone, Castro perhaps, or a mob boss, had indeed played a role in setting Oswald in motion.  To satisfy himself, if not history, John organized a seminar on the topic of who killed JFK? at the University of Miami Law School in or around 2000. Along with a handful of curious students and very distinguished lawyer and friend of John's (whose name is eluding me this morning), I took the class.

The University of Miami, where I served on the faculty for 11 years and John for almost as long before his untimely death in 2003, was the chief location of the CIA's largest field station in the 1960s and 1970s, code named JMWave. It was easy walking amidst the tropical garden like grounds of the campus on hot humid nights to imagine all sorts of plots.  John rejected the theory that the CIA itself had killed Kennedy (let alone a vast military industrial conspiracy along the lines of Oliver Stone's JFK).  Because Kennedy had clearly tried to kill Castro, John found it plausible that Castro might have decided to turn tables.  John may have been influenced in this perspective by his wife, Gisela Cardonne Ely, a Cuban American jurist in Miami of great intellectual force.

My own views, ran along the lines of the conspiracy sketched by novelist Don Dellilo in Libra, a plot among a small group of anti-Castro militants and their low level CIA handlers.  These folks, like Castro, had personal reasons for revenge against the handsome young President.  They had seen scores of their brothers and colleagues lost during the failed Bay of Pigs invasion which many blamed on Kennedy's decision to withhold American air support, and which the President himself accepted blame for.  Unlike Castro or the mob, they were a loose and informal network of actors who presented no major target for backlash. 

It is very unlikely, in my view, that the top leadership of the CIA would have agreed to this conspiracy.  Indeed, they would have lacked all the emotional heat about the matter that murder requires, and probably highly identified with the dashing young President who shared their belief in a James Bond like war against Communism.  However, and this brings us back to Shane's story, it is  plausible that the CIA's top management would have conspired to cover up their relationship with the individual or individuals who belonged to the conspiracy and their failure to terminate this treasonous plot, (a motivation that could be shared even by their current leaders).  I did get John to agree to that plausibility, but he did not find it convincing.  

Does Kennedy's assassination deserve a place in law school curriculum's?  Perhaps not as a regular offering, but courses that use legal skills and materials to investigate pivotal moments of history might indeed have an important intellectual and even pedagogic role to play. 

School crime prevention strategies show the difference between governing crime and governing through crime

Two excellent recent features in the NYTimes show case the subtle but important difference between what I call "governing crime," serious efforts to address real crime risks within one's actual domain, and "governing through crime," what amount to, at best, reactive responses to fear of crime that have little actual purchase on the actual risks within one's domain.  Last week Susan Saulny reported on the innovative new strategy being deployed by new Chicago public school's chief Ron Huberman (himself a former cop as well as transit official). Violence is a real threat in at least some Chicago schools, with three deaths this year and over 500 shootings in the past several.  In response, Huberman is reversing the usual focus on excluionary and punitive responses to those at risk of violent behavior, and instead focusing on the 10,000 students most at risk of being victims of violence (they turn out to be largely the same people anyway), targetting them with programming to keep them in school and less exposed to violence.  In Sunday's Times, Ian Urbina reported on the bizarre and sensless "zero tolerance" regime that has flourished in schools across the country in response to Columbine and other spectacular but episodic incidents of school violence.

California Inmates Seek Contempt Order Against Governor Schwarzenegger

California's epic prison mess is heading back into court with the inmate plaintiff's asking the three judge panel to enforce their historic August 4th call for a reduction of some 40,000 inmates over two years with a contempt order against Governor Schwarzenegger.  As Denny Walsh reports in the Sac Bee:

Saying the Schwarzenegger administration is thumbing its nose at three federal judges with a flawed plan to ease overpopulation of prisons, inmates' attorneys Thursday asked the judges to find the governor in contempt.

Rather than complying with the three-judge panel's Aug. 4 order, a defiant Gov. Arnold Schwarzenegger and Corrections Secretary Matt Cate "essentially have told the court that they will reduce the state prison population as the state sees fit, to a level the state deems appropriate, and in a time frame the state has set for itself," the attorneys wrote.

The Governor whose low approval ratings and general fatigue at governing may have already peaked with his less than cordial greeting at a San Francisco Democratic Party event (the Guv was invited to "kiss my Gay ass" by Tom Amiano, read Carla Maranucci's reporting in the SF Chron), may rightly feel that he has tried to comply since his own plan was amended by the Democratic controlled legislature which backed off many of the cuts and the promise of a sentencing commission.  But if Arnold wants to go out as an action hero he can still lead.  As governor he can stop denying parole to scores of California lifers who have served decades and demonstrated substantial rehabilitation.  He can order, as Ronald Reagan did, parole units to stop returning parolees to prison for minor violations of parole.  With these steps alone he could bring the system into compliance before leaving office.

If, as seems increasingly likely, this whole case ends up in the Supreme Court sooner than later, look for several interesting legal flash points:

1. The three judge court in Plata and Coleman has suggested that the Prison Litigation Reform Act of 1995 (signed into law by Bill Clinton 13 years ago this month) need not be a barrier to court based structural reform of prison systems including prisoner release.  The three judge panel, in my view, has put together an awesome record that will be hard for the Supreme Court to override, but look for Justice Alito in particular to focus on the federalism, public safety, and democratic accountability concerns embedded in the strong anti judicial intervention language of PLRA
2. I just taught the Supreme Court's 2005 Samson v. California case in which the power under California law to search all parolees without any suspicion by all peace officers (both parole and police) was upheld against a 4th Amendment challenge.  The very complex case, which throws a lot of 4th Amendment doctrine into doubt, turns heavily on a bizarre (and in my view grossly incorrect) understanding of the same California parole revocation mess that will be at the center of a Plata Coleman decision.  I will post more on this theme, but main point is that the Supreme Court in Samson took California's high revocation rate to prove that parolees were so dangerous they needed to be exempted from 4th Amendment protections (even the watered down special needs version of them).  How will that square with the current view of the State of California, that parolees are so safe that most of them can be put on a form of "parole lite"  in which revocation is not a possibility, supervision does not happen, and parole is reduced to the single fact of being exempt from search and seizure protections?

Chinatown Part III: The Two Victims

Look for the burgeoning international celebrity crime story of Roman Polanski’s arrest in Switzerland to turn into another global culture war about American mores with one spin emphasizing US Puritanism and punitiveness versus European civility and tolerance, and the other spin emphasizing US concern for victims and European decadence and aristocratic disdain for popular fears.  Enjoy what is certain  to be months of coverage with attention to a few ironies from the golden penal state.  Specifically:

(1)  Polanski is himself the chief victim of the most celebrated/transfixing crime in California (arguably US history); the 1969 murders of his wife, actress Sharon Tate, and his nearly born son (she was within weeks of delivery), and four others (three of them close personal friends), by cohorts of psycho-killer-guru Charles Manson.  I argued in a post earlier this summer that the Manson killings and subsequent trial, which transfixed the state and nation for weeks during that pivotal year, helped to reset California’s politics to the kind of “leave no prisoner behind” liberal/conservative consensus we have on tough punishment that has dominated the state ever since.  (I’m continuing to gather evidence that is so far generally supportive of that claim and hope to have a short paper up later this fall).  As a victim of a sexually tinged murder of his wife and child, Polanski is a “super-citizen” of the Republic of California (see, chapter 3 of Governing through Crime), viewed as an eternally recurring victim, suffering ever renewed damage by the memories of his savage loss as each Manson family prisoner comes up for a parole hearing, and accorded a growing set of specific rights in our constitution.  However, as a fugitive from a child sex abuse crime he is at least presumptively guilty of (having pled guilty and fled) he finds himself on the other side of that coin, accorded no element of human empathy by the state or its leaders, protected only by the increasingly shrinking set of federal constitutional rights accorded defendants and prisoners.  Polanski’s best defense is that the murder of Sharon Tate made him do it.  California voters recently enshrined victim rights in the Constitution in a voter initiative that compared the victim experience of parole hearings for murderers to being tortured.

(2)  If Polanski’s international supporters are surprised at California’s endurance on this issue they should not be.  California’s willingness to prosecute crimes to the fullest possible extent of the law was soberly marked last week with the death in prison of Susan Atkins, the “Manson girl” who stabbed Polanski’s wife and son to death whose death from brain cancer came after almost forty years in prison (read her LA Times obit).  Atkins, the longest serving woman in California history (but we’ve got a lot of history to make) was recently denied parole for the umpteenth time, being found a potential risk to Californians despite meeting the board in a hospital gurney (her leg was amputated as part of cancer treatment) with a prognosis of only months to live. 

(3)  Although I haven’t checked the sentencing range for the count of unlawful sex with a minor in 1977, it is almost certainly far lower than it would be today.  California’s new Determinate Sentence Law had just come into effect and the new fixed ranges (based on statistical norms for the indeterminate sentencing practice) were incredibly short by contemporary standards.  In the decade following Polanski’s flight, public concern about child sex abuse would mushroom into far ranging prosecutions of day care workers and others for lurid and implausible (and unlike Polanski’s reported assault, largely fabricated) crimes in which scores of people were sentenced to decades in prison (some of them now released and exonerated).

(4)  America’s penal state makes big city prosecutors potential political stars as crime fighting heroes, but also exposes them to the full fury of the vengeful public when their choices do not line up with the "maxi-max" principle (the maximum punishment for the maximum number of  people).  LA prosecutor Steve Cooley is notoriously “left” of the law enforcement consensus on issues like three strikes, drug treatment not incarceration, and the death penalty.  Precisely because of that he probably felt vulnerable to any accusation that he was being soft on a Hollywood criminal fugitive charged with sexually assaulting a minor, whose supporters continued to make law enforcement, and prosecutors specifically, the bad guys.

Foucault, Kristol, and the Arts of Government

He believed that government programs that were not paternalistic, but merely provided social insurance, would “engender larger loyalties,” which is “precisely what the art of government, properly understood, is all about.” David Brooks, Three Cheers for Irving.

I know relatively little about the late Irving Kristol's political thought, other than the intriguing fact that like the founder of the JSP program, Philip Selznick, he began political life as a participant in the Trotskyist (anti-Stalin but Marxist) wing of the labor movement and then moved to the right (Selznick remains well to the left of Kristol's last known political coordinates).  But this phrase from David Brooks' celebration in this morning's NYTimes, of the longstanding intellectual dean of the modern neo-conservative movement caught my eye .  Two quick thoughts. 

First, it echoes almost exactly Michel Foucault's little known late turn to what he thought of as "liberalism" but which we might think of as "neo-liberalism" or even just conservativism.  Having self identified as a Maoist for at least a few weeks in '68, and strongly supported Francois Mitterand's Socialist Party in the 1970s, Foucault in the last year's of his life criticized Mitterand's socialist government for lacking "an art of government" (quoted in Mike Gane and Terry Johnson, Foucault's New Domains (Sage 1993).  In his writings and interviews of these years, Foucault suggested that liberalism was the political philosophy most faithful to the problem of governing as an art.

Second, it made me wonder what the Kristol of the 1960s (before he had himself abandoned liberalism) might have said about our current health care debate.  Is Obamacare a version of "social insurance" that encourages "larger loyalties" in the wonderful phrase from Kristol quoted by Brooks?  Or, is it the kind of "paternalism" that cannot take root in America's highly conservative (read individualist) culture?  One thing is for sure.  The modern Republican Party that Kristol did so much to stock with intellectual protein has largely abandoned serious reflection on the arts of government and Obama has at least expressly embraced precisely this kind of reflection (whether his product is worthy of that promise is open to question).

Jonathan Simon Joins Prawfs

I'm thrilled to announce that Jonathan Simon, who's been a regular guest blogger with us in the past, and who has been with us this past summer, will be joining Prawfs for the balance of the academic year.  Welcome, Jonathan! 

For those of you wondering: Jonathan is Associate Dean for Jurisprudence and Social Policy, Boalt Hall, School of Law, UC Berkeley; Faculty Co-Director, Berkeley Center for Criminal Justice; and author of Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (OUP 2007).