Decarcerating America Read online

  Third, the California legislature allocated special funds to support reentry of prisoners released under Proposition 36.22 In addition, Proposition 47 provided for state parole supervision of inmates released under its resentencing procedure, rather than oversight by underfunded and understaffed county probation officers.23 These services undoubtedly helped, but it is unclear how many prisoners availed themselves of these reentry support services. Because the services offered to those released under Proposition 36 were largely voluntary, it is difficult to measure the effect of the intervention for those who self-selected to receive services.24

  Figure 3.4: Recidivism Rates of Different Categories of California Prisoners

  Fourth, some research suggests that the Proposition 36 release process itself may contribute to improved outcomes. The theory is that lack of recidivism, or desistance from crime, involves a cognitive transformation in an offender’s identity from prisoner to law-abiding citizen—and, further, that a ceremonial event marking the transition can help facilitate a lasting new identity.25 Every prisoner released under Proposition 36 won the approval of the court that originally sentenced him or her to life behind bars—approval in the form of an order finding that the prisoner is no longer a threat to public safety.26 In addition, the law itself was passed with the overwhelming support of California voters, which may further add to a public acknowledgment that inmates released under its auspices are no longer threats to public safety.

  It is undeniable that something significant is at work here. Individually, none of the most obvious explanations and hypotheses for the low recidivism rates among prisoners released under reforms enacted in California can adequately explain the phenomenon. Multiple factors are clearly at play—some of which, undoubtedly, are yet to be identified. This chapter will be a success if it inspires others to further unpack the data and develop a more comprehensive explanation, which would be valuable to prison reduction policies and reentry programs throughout the country.

  Other states should also look closely at their sentencing rules, especially those imposing long sentences for nonviolent recidivists. Where we once assumed that so-called career criminals were hopeless recidivists, which the Supreme Court in Ewing reasoned justified life sentences even for petty crimes, the success of reforms in California should undermine those assumptions.

  It may be easy to see California’s prison downsizing experience as sui generis and perhaps unhelpful. After all, most other states don’t have the initiative process—and even those that do don’t have such active ballot measure politics. It is also unlikely that the Supreme Court will intervene in other state prison systems as it did in Plata. And Plata itself is fairly limited to specifics of California’s prison crowding and sentencing policy dynamic, so the case has little precedential value for other jurisdictions.

  That said, the success of multiple sentencing-reduction ballot measures in California does reflect popular support for these reforms that is broader and stronger than most people expected. Prior to the three-strikes reform campaign in 2012, prominent pollsters doubted that the public had interest in reducing prison sentences.27 In fact, the public seems much more supportive of criminal justice reform proposals than elected officials are. California is certainly a solidly Democratic state, but its voters led the country with harsh sentencing policies in the 1990s, and California’s recent experience should give lawmakers and policy officials in other states pause before they assume that their constituents remain solidly tough-on-crime.

  Indeed, the politics should follow the data. The data from California show that a state can dramatically reduce its prison population and maintain a decreasing crime rate over the same period of time. As discussed above, California reduced its prison population by more than 20 percent between 2010 and 2015. Over that same period, statewide crime rates went down.28 In addition, the prisoners released early under California’s prison reform measures—even the supposedly hopeless recidivists sentenced under three-strikes laws—have a recidivism rate lower than the average inmate released from state custody.29

  California’s data are consistent with the experience on the federal level. Between 2008 and 2011, more than fifteen thousand federal inmates received sentence reductions under retroactive application of sentencing guidelines for crack cocaine offenses. Follow-up studies by the U.S. Sentencing Commission showed that the guideline reforms had no negative impact on public safety. In fact, prisoners released early had a slightly lower recidivism rate than similar inmates who did not benefit from the guideline reforms.30

  Perhaps the most important common element among the reforms discussed in this chapter is that their implementation intimately involved the court system. Most obviously, Plata and the ensuing realignment legislation were brought about by years of litigation and federal court oversight. Propositions 36 and 47 were passed by popular vote, but both measures required that eligible prisoners return to court in order to be resentenced and released. Under both reforms, a judge had discretion to refuse resentencing if the prisoner posed a continuing unreasonable danger to public safety.31 Federal crack guideline reforms include a similar public safety screen, providing that judges review cases prior to ordering sentence reductions and directing them to deny resentencing applications if necessary to protect the public from further crimes.32

  This is a new role for many judges. Today, trial court judges are mostly empowered to impose sentences immediately upon conviction, which provides an excellent vantage point to assign retribution. However, it is far from ideal for evaluating benefit to public safety or an inmate’s recidivism risk. Parole boards have historically played this role, but, whether hampered by legislation, regulations, or politics, they have proven an inadequate check on the wave of mass incarceration. States would be wise to vest more authority in judges to evaluate sentences at the back end. As with California Propositions 36 and 47 and federal crack guideline procedures, courts can hear evidence from both sides and help reach an impartial and just result. Judges have also proven effective at accurately gauging recidivism risk, based on the data from California and the U.S. Sentencing Commission.

  California’s prison downsizing experience should inspire reformers and policy makers across the country to reexamine assumptions about criminal justice. Tough-on-crime politics no longer holds the sway it once did. Law enforcement through long prison terms and incapacitation does not enhance public safety. And government institutions, particularly courts, can and should play a larger role in encouraging and evaluating prisoner rehabilitation and facilitating positive transitions from custody to communities.

  Notes

  1. See U.S. Bureau of Justice Statistics, “Total Correctional Population,” available at ojp.usdoj.gov; Cal. Dept. of Corrections and Rehabilitation, “Monthly Population Reports,” available at cdcr.ca.gov; Joan Petersilia and Francis Cullen, Liberal but Not Stupid: Meeting the Promise of Downsizing Prisons, 2 Stan. J. Crim. L. & Pol. at 18 (2015).

  2. Brown v. Plata, 131 S.Ct. 1910 (2011).

  3. For purposes of full disclosure, please note that I was intimately involved with the enactment of Propositions 36 and 47, including co-authoring both ballot measures and helping direct both campaigns in conjunction with and on behalf of the NAACP Legal Defense and Educational Fund and Californians for Safety and Justice, among others.

  4. Text available at safetyandrehabilitation.com.

  5. Cal. Dept. of Justice, “Crime in California (2015),” available at oag.ca.gov.

  6. This chapter relies on the definition of recidivism used by California state officials—i.e., state prisoners convicted of new crimes and returned to state prison. See generally Cal. Department of Corrections and Rehabilitation, “2014 Outcome Evaluation Report,” (July 2015); see also Stanford Law School Three Strikes Project, “Proposition 36 Progress Report: Over 1,500 Inmates Released with Record Low Recidivism Rates” (2014); Stanford Law School Three Strikes Project, “Proposition 47 Progress Report: Year One Implementation” (2015).
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br />   7. See Erik Eckholm, “Out of Prison, and Staying Out, After 3rd Strike in California,” New York Times, Feb. 26, 2015.

  8. For an excellent analysis and history of California’s prison crowding litigation, see Jonathan Simon, Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America, The New Press (2013).

  9. See Cal. Dept. of Corrections, “Monthly Report of Population” (Jan. 2017), available at www.cdcr.ca.gov.

  10. For a more detailed account of the Three Strikes campaign, see David Mills and Michael Romano, The Passage and Implementation of the Three Strikes Reform Act of 2012 (Proposition 36), 25 Fed. Sent. Rpr. 4 (Apr. 2013).

  11. See, e.g., Matt Taibbi, “Cruel and Unusual Punishment: The Shame of Three Strikes Laws,” Rolling Stone, March 27, 2013.

  12. See Steinberg, Mills, Romano, “When Did Prisons Become Acceptable Mental Health Care Facilities?,” Stanford Law School (2014).

  13. Just prior to the election, the state legislature declined to pass a similar measure, and only three elected officials endorsed the ballot measure campaign. See Tracey Kaplan, “Proposition 36: Voters Overwhelmingly Ease Three Strikes Law,” San Jose Mercury News, Nov. 6, 2012.

  14. See, e.g., New York Times, “California’s Prison Experiment,” Nov. 13, 2015.

  15. See Stanford Law School Justice Advocacy Project, “Proposition 47 Progress Report: Year One Implementation” (Oct. 2015).

  16. Indeed, access to in-prison reentry preparation programming has been measured as the single best intervention to recidivism reduction in California. See Cal. Department of Corrections and Rehabilitation, “2014 Outcome Evaluation Report” (July 2015), at 42.

  17. Ewing v. California, 538 U.S. 11, 24 (2003).

  18. Cal. Department of Corrections and Rehabilitation, “2014 Outcome Evaluation Report” (July 2015), at 11.

  19. Dan Morain, “Three-Strikes Changes Appear to Be Working,” Sacramento Bee, April 13, 2014 (quoting San Bernardino district attorney Mike Ramos).

  20. Stanford Law School Justice Advocacy Project, “Proposition 47 Progress Report: Year One Implementation” (Oct. 2015).

  21. See Cal. Penal Code §§ 1170.126 (Proposition 36); 1170.18 (Proposition 48).

  22. See Stanford Law School Three Strikes Project, “Proposition 36 Progress Report: Over 1,500 Prisoners Released, Historically Low Recidivism Rate” (April 2014); Eckholm, New York Times, Feb. 26, 2015.

  23. See Cal. Penal Code § 1170.18(d).

  24. See also Petersilia and Cullen, 2 Stan. J. Crim. L. & Pol. at 22 (“We also must recognize that the number of proven programs, especially for a reentry programs, is in short supply”).

  25. See, e.g., Giordano, Cernkovich, & Rudolph, “Gender, Crime, and Desistance: Toward a Theory of Cognitive Transformation,” American Journal of Sociology, 107(4), 990–1064 (2002); Paternoster & Bushway, “Desistance and the ‘Feared Self’: Toward an Identity Theory of Criminal Desistance,” The Journal of Criminal Law and Criminology, 1103–56 (2009); Maruna, Immarigeon, & LeBel, “Ex-Offender Reintegration: Theory and Practice,” After Crime and Punishment: Pathways to Offender Reintegration, 3-2 (2004).

  26. See Cal. Penal Code § 1170.126.

  27. See Mills and Romano, The Passage and Implementation of the Three Strikes Reform Act of 2012 (Proposition 36), 25 Fed. Sent. Rpr. 4.

  28. Cal. Dept. of Corrections and Rehabilitation, “Office of Research Population Reports,” http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Population_Reports.html; Cal. Dept. of Justice, “Crime Data,” https://oag.ca.gov/crime.

  29. Stanford Law School Three Strikes Project and NAACP Legal Defense and Education Fund, “Proposition 36 Progress Report: Over 1,500 Prisoners Released; Historically Low Recidivism Rate,” April 2014.

  30. U.S.S.C. Retroactivity Data Reports for Amendments 706, 750, and 782; U.S.S.C. Recidivism 2007 Crack Cocaine Amendment Report.

  31. See Cal. Penal Code §§ 1170.126 (Proposition 36) and 1170.18 (Proposition 47).

  32. See 18 U.S.C. § 3582(c)(2) (providing that courts must consider factors provided in § 3553(a), including danger to public safety, prior to reducing a prisoner’s sentence).

  4

  The Role of Judges

  JUDGE ROBERT SWEET AND JAMES THOMPSON

  Judges are at the center of the criminal justice system and should be leaders in acting to reduce, and eventually eliminate, mass incarceration in our country. The judge does not define the acts that constitute crime, nor the punishment to be meted out for those acts—legislators do that. It is the judge, however, who must assure the public, the prosecution, and the defense that the process is fair and true to all legislative and constitutional constraints. It is the judge who must face the defendant and determine the sentence. It is the judge who will determine whether or not the defendant will lose his or her liberty and, if so, for how long. Even within the necessary limits to his or her role, the judge can and should act to minimize the blight of mass incarceration in America. The appropriate judicial goals in this effort are transparency with respect to the charging process, flexibility and transparency in the sentencing process, continued opposition to mandatory minimum sentences, development of diversion alternatives to trial, enhanced reentry programs, and the development of a common law of sentencing. As a central actor in criminal justice, a judge can, to a significant degree, become an agent for change.

  The principal responsibility for the high level of incarceration afflicting our society belongs to drug laws and their enforcement. The statistics establish that responsibility. The Bureau of Prisons estimates that approximately half of all federal prisoners are incarcerated for drug offenses—more than the number incarcerated for all violent crimes, extortion and fraud, weapons and explosives offenses, sex crimes, immigration violations, and participation in organized crime combined. The available data indicate that this percentage results from the harsher sentences imposed on drug offenders relative to those convicted of other crimes. While drug offenders make up about half of the federal prison population, they make up only 32 percent of those convicted in federal court—a function of their longer sentences—even though these rates are down from 35 percent in 2004 and 41 percent in 1996. The problem is less pronounced but remains significant in many state prisons, despite sharp drops in the proportion convicted of drug offenses.1

  For some, ourselves included, the criminalizing of some mind-altering substances was a national policy blunder from the outset, transforming the addictions from a health problem to a crime, forgetting the lessons of Prohibition and its enforcement. The drug war has not significantly altered drug use, but it has created a billion-dollar untaxed and illicit industry, and has sapped public resources dramatically. As of fiscal year 2016, the White House’s National Drug Control Budget estimates that the federal government spends $27.6 billion on anti-drug efforts, but the full annual cost of the drug war is a multiple of that amount, once state expenditures and related costs such as law enforcement and correctional personnel are included—the Drug Policy Alliance puts the annual cost of the drug war at over $51 billion.

  But we are in a period of change. The fact that twenty-nine states now permit some form of medical marijuana marks the recognition of the drug’s therapeutic value, and the current trend toward legalization of marijuana (in eight states) is a sign that the laboratory of state legislation is beginning to revise what has been the all-too-accepted wisdom of criminalization of mind-altering substances.

  The Charging Process

  Under our system, transported from England in the early days of what was to become the United States, the executive is responsible for enforcing the law. This system places one of the key determinants of the ultimate sentence in the hands of prosecutors, who have the discretion to determine what offense to charge. The check on this power comes in the form of the grand jury, which reviews the potential charges for probable cause and is the tool by which the charging document, the indictment, is forged. The
re is no judicial involvement in determining who is charged for what or the applicable sentencing regimen. However, once the indictment is filed and the action is under way, the judge is responsible for seeing that all the constitutional and legislative requirements are met.

  While indictments are standardized and rarely challenged, the process from charging to trial is carefully monitored. In 97 percent of cases, that process produces pleas of guilty from defendants—a sign that some vital processes of justice are missing. This result has obvious benefits for the courts in terms of time, money, and certitude. The factors producing this result in any given case are many, but foremost among them are the strength of the government’s case, the use of informants and cooperating witnesses, and the plea bargaining process.2

  The ability of the government prosecutor to offer a plea bargain is a powerful incentive for a defendant to plead guilty, and it is not uncommon for those facing the heaviest charges, sometimes because of leadership roles and participation in drug sales, to provide evidence against their former coconspirators. In other instances the government may have the option of augmenting the charges by adding a “prior felony information,” a document alerting the court to a defendant’s earlier conviction on another charge, the filing of which substantially increases the penalties the bargaining defendant faces. This process deserves closer judicial scrutiny.

  The Honorable Jed S. Rakoff recently wrote an article in the New York Review of Books entitled “Why Innocent People Plead Guilty.” In it, Judge Rakoff described the way prosecutors can use the federal sentencing regime, with its mandatory minimum provisions, “to bludgeon defendants into effectively coerced plea bargains.” Particularly with defendants whose prior convictions empower prosecutors to file (or not file) a prior felony information, or in drug cases, where prosecutors may choose the nature and quantities of the narcotics a defendant is charged with trafficking, defendants are often faced with a choice between accepting a plea bargain acknowledging a relatively small amount of drugs or going to trial on charges involving a large amount, which may carry a mandatory minimum sentence of a decade or more. This intense pressure, combined with the frequent gap in resources and knowledge between federal prosecutors, who have the assistance of the law enforcement officials who investigated the case, and the time- and cash-strapped defense lawyers who represent those charged with drug offenses, can lead defendants to accept guilt even when they may have had meritorious arguments against conviction. Judge Rakoff characterizes such a system as one where “it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.”