In CA, there have been over 500,000 arrests for marijuana offenses in the past ten years. But now that marijuana is legal, what is CA going to do with all these folks? The answer might surprise you — CA is going to do the right thing. CA is offering the opportunity to have criminal records cleared or reduced for marijuana offenses ranging from serious felonies like distribution, to small infractions like simple possession. At least 4,500 folks have already submitted petitions to have their sentences re-evaluated, but prosecutors reserve the right to challenge such requests by looking at criminal history or threats to public safety.
Many Californians probably don’t know this mechanism for a clean slate exists. It’s on us to spread the word.
Nothing short of abolition will correct the over-representation of people of color in the criminal justice system. The racial disparities that exist in the criminal justice system are not simply unfortunate or unavoidable consequences, but rather intentional State-sanctioned disappearances. The accepted way of challenging discrimination is to rely on the Courts to protect the minority from the tyranny of the majority, but as we’ll look at shortly, Courts are not impartial observers, but rather function as stewards of the White Supremacist State we live in. Any hope for meaningful change will have to come from outside the current box we exist in.
The watermark case of racial discrimination in the criminal justice system is McClesky v. Kemp (1987). The NAACP Legal Defense Fund presented extensive statistical evidence of racial disparities in Georgia’s death penalty system. They found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims, 32% of the cases involving white defendants and white victims, 15% of the cases involving black defendants and black victims, and 19% of the cases involving white defendants and black victims. While noting that racial disparities certainly existed, the Supreme Court decided that statistics alone did not prove a discriminatory purpose and characterized the racial disparities as an ‘inevitable part of the criminal justice system’. Further, the Supreme Court expressed concern that if they ‘accepted the claim that racial bias has impermissibly tainted the captial sentence decision, we could be soon faced with similar claims as to other types of penalty which throws into serious question the principles that underlie our entire criminal justice system.’
First off, racial disparity undoubtedly exists in sentencing. Denying this is akin to denying global warming, another trend that is backed by obvious evidence but is still denied by many.
Next up, let’s dig into the principles that underlie our entire criminal justice system as the Supreme Court beckons. This line of thinking is a fear of too much justice. Any critical observer of United States history understands the law evolved as a means for the elite to preserve their hierarchy. From slavery, to convict leasing during Jim Crow, to mass incarceration today, this continuum of State-sanctioned efforts to fundamentally dismantle communities of color is painfully transparent. The first organized police force funded by the State during the colonial era was the slave patrol. It’s
difficult impossible not to draw parallels between the first police force that rounded up slaves attempting to escape, and police officers today that continue to kill unarmed black men without consequence.
When the Supreme Court ponders the principles that underlie our criminal justice system, how could the answer possibly be anything other than White Supremacy? This answer may frighten the White liberal who believes it’s the conservative movement who’ve built the prison industrial complex, but actually White apathy & cowardice is not restricted to voting Red on election day. Procedural justice pacifies us by giving the appearance of substantive justice, but the presence of Due Process laws doesn’t necessarily produce just outcomes. Despite the specific origins of legal protections like the Fourteenth Amendment, the Supreme Court has taken a passive view of their own ability to address the suffering emanating from twenty-first century manifestations of racial discrimination. As the Courts become less available as a legal resource for challenging State-sanctioned White Supremacy, and at times even endorse such discriminatory intentions, communities are left with few options in search of justice. Abolition doesn’t sound radical in this context, it sounds like the moral choice.
What should we expect in the realm of prison reform in the new year? Perhaps this premise is better presented as what can we demand in 2018. There are critically important petitions being circulated, which will hopefully be present on the upcoming November ballot. The Governor race will play a significant role, but it’s not yet clear what policy direction we’re headed for. (Vote for John Chiang, folks).
We know that there won’t be any executions in CA in 2018, but the largest condemned population in the Western Hemisphere won’t be shrinking anytime soon. Nationwide, the story is different.
This blogger will be shifting from a student to community organizer role in 2018, while also attempting to secure a civil servant position with the state at the intersection of education & incarceration. With one foot in the grass roots local organization world, and the other in the bureaucratic policy world, 2018 will be a year to be a catalyst for the change that is desperately needed.
It’s utterly disgusting that this beautiful state is a global leader in human caging. CA is on a reformist trajectory, but the pace is slow & easily thrown off course. Abolition remains the moral choice. We must invest in people, not police & prisons. The passion for freedom must be stronger than their walls.
Previously, we covered Prop 57 and saw its great potential for tangible criminal justice & prison reform. But after passing by a solid margin on the November ’16 ballot, we’re still waiting for the implementation. CDCR recently released a regulations & recommendations memo that is a serious departure from the policies voters approved. Most notably; incarcerated folks are not allowed to apply all earned credits retroactively, third strikers convicted of non-violent felonies are not allowed to participate in the early parole process, and youth offenders are not eligible to use earned credits for early release. This is an incredibly blatant disregard for the will of the community.
CDCR posted a series of responses to frequent comments they received during the open comment period, but the answers are well, um, underwhelming.
- When asked why the Department won’t allow folks to earn all credits retroactively, they reply “CDCR has not amended the regulations to allow inmates to earn Good Conduct Credit, Milestone Completion Credit or Rehabilitative Achievement Credit retroactively. Notably, both Educational Merit Credit and Extraordinary Conduct Credit may be earned retroactively”. Good news first. Allowing educational credits & extraordinary credits to be applied retroactively is consistent with the language of Prop 57 and is a common sense approach given all that we know about the positive impact education has on recidivism rates. Now, for the bad news. Since CDCR wasn’t uniformly collecting data on who was completing milestone credits or rehabilitative achievement credit in the past, it would create a disparate impact to only apply the credits for those who’s documentation is available. Further, many incarcerated individuals didn’t know such programs would be relevant to an early release mechanism in the future and may have chosen work assignments instead. The result is that all will be forced to re-take such classes to earn the credits, but CDCR hasn’t signaled that they will increase their capacity to offer such programs.
- When prompted to allow non-violent third strikers to participate in the early non-violent parole process, they reply “Criminal sentencing is the exclusive role of the Courts and CDCR will defer to the process set forth in Proposition 36 and will not unilaterally ‘re-sentence’ a Third Striker to a lesser term so that he or she can participate. Including Third Strikers was also determined to be inconsistent with
public safety.” Few things to note here. It’s true that Prop 36 was passed to deal directly with the proliferation of third strikers, but it seems as if CDCR is seeing the two initiatives as mutually exclusive. But that does not have to be the case! Another equally valid (but perhaps naively optimistic) interpretation could be, say, ‘It seems like voters really want to end mass incarceration & want to reduce the population of third strikers in CA prisons. Let’s use the tools they’ve given us to do just that in an efficient manner!’ Alas, this piece-meal approach of seeing two overlapping initiatives as fundamentally incompatible does not inspire confidence in the implementation capabilities of CDCR. Notice also the use of ‘public safety’ in the memo. The past forty years of criminal justice policies, and really all of humanity, serve as a testament that anything & everything under the sun is justifiable under this standard of protecting community welfare. Behind this veil of public safety society has institutionalized other-ing as an acceptable tactic for crime prevention. This remains a serious obstacle to meaningful prison reform
- When nudged to explain why juvenile offenders can’t apply credits to advance parole hearings, the answers are similarly designed to punt responsibility to other tentacles of the criminal justice system. “CDCR has not amended the regulations to allow credits to apply to the timing of a youth offender hearing before the Board of Parole Hearings … CDCR has maintained the Legislative intent behind the youth offender law.” The disconnected nature of the criminal justice system lends itself to creating the present conundrum. Californians are telling CDCR to do one thing, but the legislature has existing laws that directly conflict with these reformist goals. With conflicting puppeteers attempting to pull their strings, CDCR does the one thing they’ve mastered: complacency in the face of injustice.
The ethos of Prop 57 involves a greater investment in the rehabilitation of incarcerated folks. These recommendations however sound like preparing to take half a step forward, but not before deliberately taking another dozen steps backwards. This recent reformist era (circa 2012) starting with Prop 36, Prop 47 in 2014, and now Prop 57 illustrates the gap between the will of the people and the will of the agency in charge of the largest human caging regime in the world. Make no mistake about it, CDCR is a sociopolitical regime built on racial capitalism & this dynamic isn’t going to be dismantled over night. If fully implemented as the voters approved, Prop 57 could shrink the monster down to a manageable size. But the implementation recommendations passed down by CDCR won’t fundamentally alter the carceral landscape. The struggle continues.
Incarcerated men & women in CA have a long history as supplemental fire fighters. Starting in the 1940’s, these folks were recruited to replace the men who went abroad to participate in World War II. More than 3,900 men & women, including juvenile offenders, voluntarily serve on the force today for one dollar an hour. (‘Volunteer’ is an awkward term in this context, but we’ll get into that later). Collectively, they make up roughly 1/3rd of CA’s wildfire-fighting personnel. These folks work an average of 10 million hours each year responding to fires & are spread out at 43 conservation camps.
Incarcerated fire fighters are forced to perform the most dangerous tasks associated with fire-fighting. Often, they operate as the first line of defense against spreading fires, and are tasked with digging trenches or clearing spaces from combustible material to stop or redirect advancing flames. So far this year, two of these folks have died in the line of duty.
CDCR claimed that only low-level non-violent incarcerated folks were eligible to participate in these programs. But after Realignment, none of those types of individuals were left in prisons. The result is a firefighting force made up by 40% of folks with violent charges. (Note: ‘violent offenders’ is a wildly imprecise term).
Let’s return to the conversation about ‘volunteer’ fire fighters. Few things in a prison environment could be said to be truly volunteer, and volunteer in this context implicates themes of coercion, abuse, & exploitation. Many may join these fire camps to escape the banality of prison ecosystems. Folks at fire camps are not confined behind fences, it’s perhaps a more welcoming environment for family visits, they receive better pay than average prison jobs, & they can accelerate their time off by earning credits for early release. But they still receive very little in returning for risking their lives, & for doing work that is incredibly valuable to CA. During the fire season they frequently work 24 hour shifts for less than a tenth of their civilian counterparts. They also save CA over $100 million each year — money that otherwise would be spent on civilian firefighters.
The number of incarcerated firefighters in CA has fallen 13% since 2008. Now seems like a good time to mention that these highly trained folks who risk their lives for one dollar an hour are barred from being professional firefighters once released from prison because of felony convictions. It should also be noted that future natural disasters like forest fires in CA are unavoidable & inevitable.