The California Supreme Court on Monday struck down a 50 year sentence for a juvenile as cruel and unusual punishment. In a 4-3 ruling, the state high court said such a sentence for minors was “functionally equivalent” to life without parole. “A young person who knows he or she has no chance to leave prison for 50 years ‘has little incentive to become a responsible individual,'” wrote Justice Goodwin Liu, citing the 2010 U.S. Supreme Court Graham decision that restricted life terms with no chance of parole for minors to cases involving murder.
The California court ruled in favor of Leonel Contreras and William Rodriguez, who were 16 when they attacked two teenage girls in San Diego County in 2011. Rodriguez was sentenced to 50 years to life and Contreras to 58 years to life.
Thomas Edsall in a NYT op-ed lays out the several current theories about the failure of democratic governments to deal with the problem of economic inequality. There is the Piketty theory that traditional parties of the left no longer represent the working and lower middle classes, and that constituencies that feel unrepresented by this new partisan configuration will be drawn to populism:
“In a recent Power Point presentation, “Brahmin Left vs Merchant Right,” Piketty documents how the domination of the Democratic Party here (and of socialist parties in France) by voters without college or university degrees came to an end over the period from 1948 to 2017. Both parties are now led by highly educated voters whose interests are markedly different from those in the working class. The result, Piketty argues, is a political system that pits two top-down coalitions against each other.”
Edsall also cites Adam Bonica, a political scientist at Stanford, who argued that “inequality should be at least partially self-correcting in a democracy” as “increased inequality leads the median voter to demand more redistribution.” It has not worked that way because:
“First, growing bipartisan acceptance of the tenets of free market capitalism. Second, immigration and low turnout among the poor resulting in an increasingly affluent median voter. Third, “rising real income and wealth has made a larger fraction of the population less attracted to turning to government for social insurance.” Fourth, the rich escalated their use of money to influence policy through campaign contributions, lobbying and other mechanisms. And finally, the political process has been distorted by polarization and gerrymandering in ways that “reduce the accountability of elected officials to the majority.”
Other analysts (Edsall quotes Daron Acemoglu, an economist at M.I.T.) emphasize the role of racial hostility, the adverse effects of globalization on white manufacturing workers, and the decline in social mobility as more explanatory than Piketty’s economic analysis. And there is a constituency (Dean Baker, co-founder of the Center for Economic and Policy Research) who argue that correcting inequality requires adoption of a much broader policy agenda than Piketty’s recommended redistributive “tax and transfer” strategy. Baker calls for radical reform of exchange rates, of monetary policy, of intellectual property rights and of the financial sector as well as reform of the institutional protection of doctors, dentists, and lawyers and of corporate governance rules.
Read the article!
California State Senators Scott Wiener (D-San Francisco) and Henry Stern (D-Canoga Park) have proposed a bill to expand the use of conservatorships to deal with the issue of mental illness and homelessness. The bill would allow local governments to conserve individuals “who suffer from chronic homelessness, accompanied by debilitating mental illness, severe drug addiction, repeated psychiatric commitments, or excessively frequent use of emergency medical services.”
There are currently two kinds of conservatorships in California: Lanterman-Petrie-Short (LPS) conservatorships for individuals who are “gravely disabled” and thus unable to care for themselves, and probate conservatorships for individuals unable to care for themselves due to physical health issues, cognitive impairment, or elder abuse. The legislation, if successful, would create a third category specifically targeted at the at-risk homeless population. According to the authors:
“California faces an unprecedented housing affordability crisis, accompanied by significant untreated mental illness and drug addiction. These conditions, coupled with the limitations of our state and local social services, have left some counties searching for more tools to provide help and support to those Californians in the most need. In San Francisco, many of the successful programs and services have still fallen short of providing meaningful rehabilitation to a small population of residents with severe mental illness and drug addiction who are deteriorating on the city’s streets. Los Angeles faces similar challenges. The Los Angeles County Board of Supervisors is currently evaluating the efficacy and reach of their conservatorship system pursuant to a motion coauthored by Supervisors Mark Ridley-Thomas and Kathryn Barger.
Many of these people routinely use social and emergency services and find themselves in law enforcement custody, effectively converting a health issue into a criminal issue. By allowing greater flexibility to conserve these extremely disabled individuals – who are unable to make decisions for themselves – we can keep people out of the criminal justice system and focus on their health and well-being.”
Interesting article in the Boston Globe about DA’s running unopposed in local races: eight of the state’s 11 prosecutors faced no one in their most recent elections, and most will run unopposed this year as well. Per the Globe, “Suffolk DA Dan Conley hasn’t had an opponent since he first ran in 2002. Ditto DA Jonathan Blodgett, in Salem. There hasn’t been a contested DA race in the Berkshire, Bristol, or Middle districts since 2006.”
However, while more than 80% of Massachusetts voters think there is a need for reform in the criminal justice system, according to a poll released by the ACLU – 88% think that people are treated differently based on who they know, 84% think that people are treated differently based on their race, and less than half (48%) think the state’s criminal justice system is working – voters showed limited knowledge of the power and budgets of District Attorneys, and few realized that DAs are accountable only to voters, with little in the way of checks-and-balances in between elections. Half of the registered voters believed individual District Attorneys have only a minor or insignificant impact on the functioning of the criminal justice system—and almost four-in-ten (38%) did not know that District Attorneys are elected and accountable only to voters.
As part of the polling, voters were then given some information about actual impacts that District Attorneys can have on individual lives and in communities – as the Globe put it, “They choose how hard to go after somebody and when to go easy. They decide the charges that are brought against those accused of crimes and what punishments to request of a judge. Many times, there’s no judge or jury involved at all: Nationally, over 90 percent of felony cases are dispatched via plea deals.” After this information was presented, 81 percent of voters said they were more likely to pay attention to their local District Attorney race in 2018.
Please read this excellent article from the New Yorker about the Underground Scholars Initiative at Cal Berkeley, a group formed by formerly incarcerated undergraduates at Cal to provide mentoring, support, and advocacy – and eventually, create a prison-to-school pipeline. About the experience:
“When Czifra first got to Berkeley, he went looking for his people, by which he meant ones who had grown up poor, but they were hard to find. He told an adviser he wanted to work with the incarcerated, particularly children—he believed that imprisoning a child for any kind of crime was counterproductive and wrong. The adviser suggested that he volunteer, but the sign-up form mentioned background checks, and he never went back.
He found big classes hard to take. For a long time after he left prison, he’d had a raw, aggressive energy about him that scared people. He still had to remind himself when he entered a new situation that nobody was going to attack him; he didn’t have to be constantly on his guard. When he walked into a crowded classroom, he felt a rush of paranoia: he felt that everyone was looking at him, and that if they knew what he’d done and where he’d been he would not be welcome. And, in fact, he was not always welcome. He went to see a professor early on to ask why he was getting B’s. “The professor made some kind of comment like he knew I was a gang banger who was trying to change my life,” he says. “He was, like, I got your number—not in an accusatory way, but not in a warm, Kumbaya way, either. He said, If you get an A-plus, I’ll write you a letter of recommendation, if you get an A, you’re grad-student material, and if you get A-minus or below, forget it.”
The LA Times reports on an apparent surge in arrests of homeless individuals in Los Angeles in the past two years, despite official efforts to reduce quality-of-life citations — restricting sleeping on the sidewalk, living in a car or low-level drug possession, for example — from misdemeanors, which can draw jail time, to infractions.
Officers made 14,000 arrests of homeless people in the city in 2016, a 31% increase over 2011, the Times analysis found. The rise came as LAPD arrests overall went down 15%. Two-thirds of those arrested were black or Latino, and the top five charges were for nonviolent or minor offenses. In 2011, 1 in 10 arrests citywide were of homeless people; in 2016, it was 1 in 6.
The problem of “quality of life” law enforcement is compounded by the financial penalties attached to infractions. California has enacted fees and assessments that make the state’s ticket penalties among the stiffest in the country, according to a study in May by the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area.
The base fine in L.A. for sleeping or lying on the sidewalk, for example, is $35, but fees take the total to $238. If that initial amount goes unpaid, an additional $300 “civil assessment” and other levies can be added, more than doubling the financial stakes.
Taking the lead in application of California’s Proposition 64, which legalizes, among other things, the possession and purchase of up to an ounce of marijuana and allows individuals to grow up to six plants for personal use, San Francisco’s DA George Gascon has ordered the review, recall, dismissal, and sealing of more than 3,000 marijuana-realted misdemeanors that were sentenced prior to Proposition 64’s passage. The law anticipated that individuals could petition the court to have their own records cleared, but the process is complicated and in SF only 23 petitions were filed in the first year. The preemptive action by the DA is, at this point, unique in California.
“So instead of waiting for the community to take action, we’re taking action for the community,” Gascón said.
The move will clear people’s records of crimes that can be barriers to employment and housing.
The Supreme Court is currently considering the Gill v. Whitford, the Wisconsin gerrymandering case about whether Republicans gave themselves a guaranteed GOP majority when they redrew the state’s legislative districts in 2011. A key aspect of the plaintiff’s argument is a new way to test for partisan gerrymandering — the efficiency gap. The Washington Post explains how it works:
In this imaginary state, there are 20 green voters and 30 purple voters. Even though there are more purple voters, a district plan can be drawn that stacks the odds for green lawmakers to control the state.
The partisan plan makes three cracked districts, putting four purplevoters with six green voters and making it difficult for purple candidates to win. Boundaries in a cracked district are drawn in a way that intentionally dilute the vote.
Nine purple voters are packed into the two remaining districts with one green voter, where purple candidates will easily win.
To measure the efficiency gap for this plan, researchers would first count how many votes are wasted by each party. Wasted votes are those cast that do not contribute to victory.
Green candidates can win with a six-vote majority in the cracked districts, so four purple votes in each district are wasted. One green vote is wasted in the packed districts. Three purple votes are also wasted, since the purple candidate has more than the six vote-majority they need to win.
Vote cast above the simple majority needed to win
Vote cast in a district this party didn’t win
The difference between the wasted votes on each side is divided by the total number of votes to get the efficiency gap:
2-18/100 = 16% efficiency gap benefiting the green party.
The efficiency gap measurement was created by Nicholas Stephanopoulos, a University of Chicago law professor who is representing the plaintiffs in the Wisconsin case, and Eric McGhee, political scientist at the nonpartisan Public Policy Institute of California.
Lara Bazelon in Slate this month describes the unique role of the prosecutor in the criminal justice system – “is not that [they] shall win a case, but that justice shall be done.” (Berger v. United States) She then calls out those prosecutors who don’t accept that role, who are “innocence deniers”:
“These prosecutors do not “do justice” as the Supreme Court defines it. Instead, they delay justice and in some cases actively work against it. When a prisoner is exonerated by a lower court, these prosecutors double and triple down, filing appeal after appeal. Or they indict and prosecute the exoneree all over again, sometimes under a wildly different theory at the expense of time and resources that should be used to pursue the crime’s actual perpetrator. They may also threaten endless legal challenges to wring “no contest” pleas from innocent prisoners in exchange for time-served sentences. The prisoners, desperate to be free, accept these Faustian bargains, which brand them convicts for life and allow prosecutors to proclaim their guilt and the state to deny them compensation. Some prosecutors are so committed to adhering to the original mistake that they fail to prosecute the actual perpetrators, even when there is evidence to convict them.”
In addition to listing a number of prominent examples of this phenomenon, Bazelon goes on to point out a little-discussed problem with innocence denying: the real criminals go unpunished, posing a threat to public safety. According to the Innocence Project, 353 people have been exonerated by DNA evidence since 1989. The group has identified 152 actual perpetrators in those cases who went on to commit “150 additional violent crimes,” including rape and murder.
In an article by that title in “The Crime Report,” Matthew Mangino examines the issue of the Double Jeopardy Clause in the case of José Ines Garcia Zarate, who was acquitted in a California court of Kate Steinle’s murder but convicted of being a felon in possession of a firearm. Garcia Zarate has now been indicted on two federal charges similar to those he was convicted of in state court. The state conviction and new federal charges raise the issue of violating the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution.
As Mangino points out, this issue is virtually identical to Gamble v. United States, a case that the Supreme Court is currently considering for certiorari. Gamble was pulled over in 2015 by an Alabama police officer for a broken taillight. During the stop, the officer discovered both a gun and marijuana paraphernalia in Gamble’s car. Gamble, who had been convicted of second-degree felony robbery seven years earlier, was barred from owning a firearm. He was prosecuted for illegal possession of a firearm and served one year in state prison. Subsequently, the federal government also charged Gamble with illegal possession of a firearm for the same incident. Gamble asked the U.S. District Court to dismiss his federal indictment for violating double jeopardy.
The Federal District Court ruled against Gamble under the “dual-sovereignty” exception to the Double Jeopardy Clause, an exception created by the Supreme Court which permits a second prosecution for the same offense by a different “sovereign,” permitted the federal case to proceed. The rule dates back many decades, to a time when there was little federal criminal jurisprudence and so little overlap between federal and state crimes. Gamble and many Amici, including some conservative voices such as the Cato Institute along with traditional criminal justice advocates like the ACLU, are now asking the Supreme Court to reconsider the rule in light of the expansion of federal criminal statutes – “a stunning expansion of federal criminal jurisdiction into a field traditionally policed by state and local laws,” according to Justice Thomas in 1992.
Justice Hugo Black argued in a 1959 dissent, “If double punishment is what is feared, it hurts no less for two ‘Sovereigns’ to inflict it than for one.”