Confronting California's prison crisis

Today was a big day for criminal justice reform in CA. It’s hard to overstate how significant this victory is. 25 folks on death row had exhausted their appeals and were subject to imminent lethal injection. Instead, these two dozen folks will sit on a suspended death row with 700+ other folks. While CA will retain the status as the largest death row in the Western hemisphere, it will no longer be active for at least the next four years.

Legal challenges are surely soon to follow. Newsom’s decision sits at the intersection of the will of the people vs. the executive authority of the constitution. CA voters denied a proposition to abolish the death penalty in 2012 and 2016, while approving a measure to expedite the death penalty in 2016. An initiative is making its way through the CA legislature to land on the 2020 ballot to abolish the death penalty again, but it’s too early to make educated guesses about the odds of approval. With this in mind, today’s decision to suspend the death penalty is only a partial victory. True abolition will have to come at the ballot box.

Capital punishment is the ultimate form of justice the state enacts. CA clings to this notion as a progressive beacon, but this title couldn’t be less appropriate when applied to the criminal justice system. Depending how the ’20 ballot initiative and various lawsuits play out, today could be the beginning of the end for the death penalty in CA.

This article is fire. There is an analogy to the role of prosecutors and moldy bread that provides an excellent jumping off point:

“You have three options when presented with a piece of moldy bread. First, you can eat the bread. Perhaps you think that mold is not that harmful to eat. Second, you can cut around the mold spores, trying to eat just the nonmoldy parts. This is an imprecise process, so sometimes you will eat mold that didn’t get removed. And maybe, in your hunger, you’ll be tempted by bits on the edge with just a little mold — you are hungry, after all. Third, you can refuse to eat any of the bread because, to you, a piece of moldy bread is just not salvageable.”

Eating the moldy bread is akin to maintaining the oppressive status quo of the criminal justice system, Supporting progressive DA’s is akin to cutting around the moldy spots but consuming the remaining bread, and refusing the bread entirely presents the article’s thesis.

While there is always space for a multiplicity of perspectives in a movement, we should stop eating moldy bread. DA’s can only be so progressive when the job requires putting people in cages. Bad apples come from rotten orchards, and the justice system is rotting from top to bottom. (Note: Don’t say the justice system is broken, it’s not. It’s functioning EXACTLY as it was designed to).

Simply put, prosecutors have too much power & discretion. The most powerful actor in a system shouldn’t be the one with the least amount of oversight. Prosecutors decide who to charge, with what, and for how long, however they please. They are playing with people’s lives like its house money. Legislative changes need to reel in this unfettered authority. The power dynamics of plea agreements so incredibly disadvantage defendants, so this seems like a good place to start exploring reform efforts given ~95% of cases end in plea deals. The role of prosecutors would also benefit from being depoliticized. Prosecutors need to be impartial instruments of justice, not politically affiliated actors. Prosecutors would be less beholden to sensationalized demands if they were truly neutral. The adversarial nature of the courtroom could use reconfiguring too. When it’s the People of California VS Joe Smith, there are winners and losers, but the People of California WITH Joe Smith creates an immediacy to the citizenry that recognizes people commit harm, but shouldn’t be further isolated and prone to more harm as a result.

Prosecutors can be progressive all they want, but when you are the most powerful actor in an oppressive system, you aren’t immune from spreading that oppression you seek to dismantle. Confronting and demanding a new system is the real hope for reform.

While the FIRST STEP Act is certainly a welcomed piece of legislation aimed at reforming the criminal justice system, there are a plethora of issues that dampen optimism for real reform. First, the positives. The Bill would make retroactive the Fair Sentencing Act of 2010, which reduced the disparity between crack and powder cocaine sentences at the federal level. According to the Marshall Project, this could affect nearly 2,600 people. The Bill would also walk away from hardline sentencing guidelines like Mandatory minimums, the Three Strikes Law, and importantly, would restore a good deal of judicial discretion to allow Federal judges to avoid imposing these long sentences. The Bill also increases good time credits, and applies these changes retroactively. Similarly, earned time credits by participating in educational and rehabilitative programs would be increased too.

Now, the negatives. The FIRST STEP Act only affects the federal prison system, which houses ~181,000 people, which is a tiny fraction of the 2.1 million people in US jails and prisons. Further, the Bill would approve an algorithm to determine who is eligible for the earned time credits, which on its surface may not seem problematic, but is actually quite flawed. More often than not, these algorithms perpetuate racial disparities that are already rooted in many criminal justice policies that have contributed to the overrepresentation of communities of color.

All together, this Bill could be seen as demonstrating a misunderstanding of the scope and landscape of mass incarceration. Hailing something that, at best, would reduce the total prison population by 1% and claiming to have reformed the criminal justice system is misguided and damaging. This Bill doesn’t undo mass incarceration, as real reform must happen in state legislatures. To be fair, if passed, the Bill would help thousands of lives, but would not be a true success if nothing comes after. If the FIRST STEP Act is the only step, this is fake reform.  

*This excerpt is part of a forthcoming report on felony disenfranchisement titled ‘Democracy Needs Everyone’ by Initiate Justice*

While there is certainly no shortage of unconscionable features of the criminal justice system, felony disenfranchisement stands out as particularly draconian. In California, felony disenfranchisement laws were written into the state constitution in 1849, but its historical origins may date back to Antiquity. The practice of disenfranchising citizens for felony convictions is widely legitimized across the United States, and actively functions at historically unprecedented rates in a modern constitutional democracy. The number of people who have been stripped of their right to vote has risen dramatically as a result of mass incarceration. In 1976, 1.7 million Americans were disenfranchised due to a felony conviction. This number rose to 3.34 million in 1996, 5.85 million in 2010, and 6.1 million in 2016. The rationale for disenfranchisement often rests on unarticulated ideological grounds, but has significantly diluted the minority vote over time and has caused incalculable harm. It is fair to speculate that if the trend of hyper incarceration hadn’t grown in a racially disproportionate manner, such that the criminal laws were applied more generally to members of the political majority (white middle class, or suburban voters), this exclusionary practice would have been abolished by now.

The Ancient Greek civilization relied on an early practice of felony disenfranchisement that involved heavy handed themes of isolation and deprivation that are still very much alive in the contemporary practice. Punishment in Athens revolved around the penalty of atimia, a form of disenfranchisement that allowed the democracy to identify and ostracize citizens who violated the collective honor of society. Those sentenced to atimia were unable to attend Assembly meetings, serve as jurors, or have grievances addressed by the courts, which often resulted in de facto civic death. The link between honor and citizenship was central to the existence of Greek society, and the exclusion from these political spheres contributed to social, physical, legal, and economically vulnerability that pushed offenders to the fringes of society. The creation of a new caste of non-citizens who were barred from participating in basic democratic activities as a result of a conviction became a common practice that would be replicated throughout history.

Although felony disenfranchisement was present from the time that the first colonists arrived in America, it was not until after the American Revolution that disenfranchisement laws were formalized and written into state constitutions. Virginia became the first state to pass a law prohibiting ex-felons from voting, but many soon followed. During the Antebellum period, some two dozen states had statutes barring felons from voting or included felon disenfranchisement provisions in their state constitutions. At the time of the Civil War, over seventy percent of the states had adopted felony disenfranchisement laws. A wave of broader felony disenfranchisement laws was implemented in the 1860s and 1870s, following the passage of the 15th amendment, which expanded the right to vote to formerly enslaved Black men. The re-enslavement of Black Americans after the Civil War in the form of convict leasing also greatly increased racially discriminatory laws aimed at controlling this population of new voters, and is inextricably linked to the history of felony disenfranchisment in the United States.

The spectrum of felony disenfranchisement laws across the United States ranges from two states with no voting restrictions at all, to seven states that disenfranchise citizens for life. In California, individuals in prison and on parole are barred from voting.  While this has generated widespread outrage, it actually represents an evolution from the original language of the California Constitution that permanently disenfranchised all Californians with a criminal record before 1974.

In the judicial arena, several landmark cases have challenged felony disenfranchisement as patently unconstitutional, but none have been found to invalidate the practice. The watershed moment in jurisprudence regarding felony disenfranchisement revolves around the Richardson v. Ramirez (1974) decision. The case involved three Californian citizens who had been convicted of felonies, served their sentences and completed their terms of parole, but were subsequently denied the right to register to vote when they attempted to because of their felony convictions. A petition was filed in a California court challenging the exclusion on the basis that it violated the Equal Protection Clause of the 14th amendment. The California Supreme Court agreed, found the practice to be constitutionally impermissible, and stated that the penalty of disenfranchisement was ‘too blunt an instrument’ to protect the ballot box. However, this decision was promptly appealed to the United States Supreme Court, which contradicted the lower ruling and reversed course on the constitutionality of felony disenfranchisement. The majority used a strict textualist interpretation and decided felony disenfranchisement is permissible per the language of the 14th amendment that allows punishments like denying the right to vote for participation in crime. The legal reasoning is worth quoting at large:

 

“Pressed upon us by the respondents, are contentions that these notions are outmoded, and that the more modern view is that it is essential to the process of rehabilitating the ex-felon that he be returned to his role in society as a fully participating citizen when he has completed the serving of his term. We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them against those advanced in support of California’s present constitutional provisions. But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people of the State of California will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument.”

 

After the Richardson decision, California voters approved Prop. 10 in 1974 that allowed citizens with a criminal record who aren’t on parole or in prison the right to vote. But since felony disenfranchisement laws are still in and of themselves constitutional in the United States, Courts are not the proper forum for reform. Legal scholars suggest that Congress and state legislatures may be the more appropriate venues.

A 2016 study estimated that 222,557 Californians do not have the right to vote due to felony disenfranchisement. This is .74% of the California voting age population. However, the same study found that 3.41 percent of African Americans in California have been disenfranchised. Heroic grassroots efforts to eliminate felony disenfranchisement laws are gaining steam across the country. The movement is increasingly entering public consciousness, and rationales to support the continued practice remain unpersuasive. A recent poll found that 81.7% of voters believe right to vote should be restored at some point after felony conviction. Looking to the global community, the Supreme Court of Canada, the Constitutional Court of South Africa, the Supreme Court of Israel and the European Court of Human Rights have overturned voting restrictions for incarcerated people, invoking principles of rehabilitation and promotion of civic life over the past two decades.

In many ways, voting can be seen as the right to have rights. As such, it should be considered the most important social good, and should not be revoked without serious consideration instead of continuing as an unfortunate accident of history. Initiate Justice is committed to the long-term goal of restoring voting rights to all Californians.

We need to talk about the contours of prison abolition in the twenty-first century. As a social movement, abolition has taken on different forms in the universal arc of justice. Prison abolition is often misunderstood as burning down prisons and other revolutionary imagery, but it more so revolves around eliminating the need for prisons in society. That is a significant distinction, folks. To flesh out this idea, let’s turn to Angela Davis for a working definition:

When we call for prison abolition, we are not imagining the isolated dismantling of the facilities we call prisons and jails. That is not the project of abolition. The notion of a prison-industrial complex reflects the extent to which the prison is deeply structured by economic, social, and political conditions that themselves will also have to be dismantled. Capitalism continues to produce problems that neither it nor its prisons are prepared to solve. So prison abolition requires us to recognize the extent that our present social order – in which are embedded a complex array of social problems – will have to be radically transformed.

The rise of the prison industrial complex and its continuing grip on the lifelines of society is not a necessary development. Not only is it an indictment of an unfettered & racially motivated punitive impulse, but it also speaks to larger issues emanating from contemporary global capitalism. If this moment of hyper incarceration happened in the past, we would look to it in horror and disgust as a dark chapter in our history.

Folks who have nothing will do anything to get something. An abolitionist framework accepts this premise, points out the reasons why certain communities have no autonomy, and seeks to correct past injustices. It seeks to understand the connections between institutions that we usually think are disconnected. It realizes that education is a major linchpin of institutionalized racism. And, perhaps most importantly, an abolitionist framework grasps that persistent poverty in the heart of global capitalism leads to larger prison populations, which in turn reinforce conditions that reproduce intergenerational poverty.

Prison abolition is a project that reimagines institutions, ideas, and strategies, and seeks to create new institutions, ideas, and strategies that will render prisons obsolete. A world without prisons is conceivable.