Is mass incarceration a necessary ingredient for crime prevention?

CA has evolved to become very good at state sanctioned disappearances. Communities across the state have been swallowed whole as the tentacles of the criminal justice system reach far further than just the individual incarcerated bodies. But the current response to crime treats it as a cancerous disease that must be rooted out, as opposed to a symptom of a larger condition of human suffering. By retraining our minds to see crime through a different lens we can transcend traditional understandings of crime prevention not as a tool of social control, but as a tool for comprehending the crucial factor that leads to criminality: autonomy, or lack thereof. Ultimately, identifying mass incarceration’s hermeneutic location is key to forging social change.

A quick glance at CA crime trends demonstrates that over the last 20 years crime has dropped to the pre-mass incarceration levels of the 1960’s. The normative assumption that crime is going down because prison admissions are increasing makes sense on a static and superficial level, but since crime is low in CA society it begs the question as to why prison admissions are still growing? After 40 unrelenting years, CA has grown comfortable relying on incarceration as a catch all mechanism for correcting societal ill’s. Whether one thinks law enforcement agencies should be in the trenches interacting with a wide array of issues ranging from poverty, addiction, and/or mental health is a different conversation, but highlights where CA has placed its resources. Incarceration as a blunt instrument is akin to trench warfare in World War II. No progress is achieved, but the body counts rise at chilling rates. History teaches us that CA trusts its mass incarceration process.

The ‘smart on crime’ discourse betrays original thought, but illuminates a plethora of alternative approaches to crime prevention besides mass incarceration. As Attorney General, Kamala Harris targeted truancy as a problematic indicator of future problems and sought to aggressively reverse the trends she was observing. Students who don’t go to school consistently are at danger of falling behind, and those who fall behind are more likely to drop out (nationwide 82% of prisoners are high school dropouts). Instead of greasing up the prison pipeline, Harris sought to disrupt the flow in a tangible way. This is good policy, folks. Restorative justice also offers an exciting avenue of reform that focuses on healing the relationships destroyed by crime. Unlike the criminal justice system, restorative justice emphasizes the agency of victims in directly participating in the resolution process. Beyond that, this model recognizes that individuals are not inherently violent, but may have simply engaged in violence at a particular time. Humans make mistakes, but deserve a shot at life after life.

While these policy positions are certainly a step in the reformist direction, the elephant in the room remains the social forces that drive individuals to crime. Beyond seeing mass incarceration as the alive-and-well legacy of slavery, there are confounding economic issues that contribute to creating a disposable sub-class of citizens primed for entrance to the criminal justice system. Surpluses from capital, labor, land, and state capacity have driven the prison expansion movement in CA. The economy is unforgiving for those who don’t have skills, and CA does an exceptionally poor job of preparing its most important assets — Californians — for a life of upward mobility. The last thing you want is for people to feel like they don’t have anything, because people who have nothing will do anything to get something. Inserting autonomy into communities that are black holes is difficult, but increasing access to basic features of the middle class — education, healthcare, food and housing security — is the foundation that must be laid. A minuscule percentage of CA prisoners are incorrigible psychopaths, the vast majority can be lumped into those who didn’t have access to the benefits of a middle class existence. In the words of John Stuart Mill, “He who chooses his own plan for himself employs all his faculties.” It seems safe to assume that Californians would rather live in a welfare state than a police state.

Complacency in this moment of mass incarceration is the tyranny of the majority. As long as we see incarcerated Californians as the ‘others’ in society, we won’t be able to tackle mass incarceration as the problem of human suffering that it is. One doesn’t need to be directly touched by injustice to fight against it. Until the privileged are more outraged than the oppressed there will be no justice in CA.

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The shadowy domain of sentence enhancements

CA leads the nation in adult and juvenile life sentences. Most observers might assume life sentences derive from murder charges, but the majority of these sentences involve enhancements — certain factors that automatically trigger longer criminal sentences. Judicial discretion is removed from the equation of enhancements, so even if a judge favored leniency, they have no authority to act on such inclinations. There is an empirical gap in assuming harsh enhancements deter crime and evidence that supports such a theory. Ultimately, enhancements come down to fear & preservation of public safety, two seemingly innocent positions, but ones that combined with several other factors to produce hyper incarceration in CA.

The notorious Three Strikes sentencing law is certainly the most well-known enhancement, but its been altered and scaled back since Prop 36 in 2012. Gang membership, gun possession, and prior drug charges are among the most common enhancements applied in CA courtrooms. In most cases, these enhancements are served consecutively, not concurrently.

Gang membership is liberally enforced, but for reasons that may amount to nothing more than racial profiling. In 2000, Prop 21 (one of the harshest criminal justice voter initiatives), built on a 1980’s gang crime bill by designating a plethora of additional charges manifesting from gang activity. Prop 21 increased extra prison terms for gang-related crimes to two, three, or four years, but if serious or violent crimes were at play, the new extra prison terms would be five and ten years. For example, if a gang member were to be found guilty of theft, they would be sentenced for the theft plus an enhancement of 2-4 years for being gang affiliated. Simple gang association was also criminalized and subject to enhancements. Participating in a crime with a gang member means that one could be found guilty for a certain offense & an enhancement would be added to the base sentence if gang ties are suspected. It’s not difficult to understand how sentences began growing in duration under this sentencing framework. To correctly identify these gang members for enhancements, databases were established that require convicted gang members to register with local & state law enforcement agencies. But the markers of gang membership commonly boil down to race, clothing, and neighborhood. To state the obvious, young men of color bore the brunt of this tactic. A 2015 law review article exposed the rampant injustices proliferating from gang enhancements. Prosecutors devise methods to build gang enhancements (*ahem* racial profiling *ahem*) in a legal culture in which prosecutorial success is measured by the lengths of prison sentences they obtain. Even for those who are in gangs, there is little reason to believe enhancements deter gang membership. The root cause of gang membership may be said to be protection, or for a sense of belonging, two factors that are not remedied by enhancements.

Under CA gun laws, a sentence for a felony can be enhanced if a gun was possessed or used by an offender or an accomplice during commission of the crime. In such a case, the sentence for the underlying felony can be made longer — in some cases, much longer. The additional time racked up from gun enhancements (from one year to life) depends on:

  • the type of firearm or weapon involved,
  • whether one or another person involved with the crime used the gun,
  • whether one used the gun or simply had it with it on their persons,
  • the underlying felony offense, and
  • criminal history.

In cases in which one or more gun enhancement is relevant, the enhancement that carries the longer potential prison term of imprisonment is applied. When a gun is used in a serious felony the ’10-20-life use a gun and you’re done’ rule is triggered.

  • 10 years in prison for “using” a gun,
  • 20 years for firing a gun, or
  • 25 years to life for killing or seriously injuring another person with a gun.

The enhancement is in addition and consecutive to the sentence for the underlying felony conviction.

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Drug enhancements delve into a more complex humanitarian issue — the criminalization of addiction. Under current CA penal law, a person convicted for sale or possession of a small amount of drugs can face a sentence of three to five years incarceration, plus an additional three years in jail for each prior conviction for similar drug offenses. The CA legislature is currently working to eliminate this particular drug enhancement, but the treatment of drug addiction remains a problematic strain on the criminal justice system.

Absent from this discussion of enhancements has been the prevalence of mandatory minimums in CA penal sentencing laws. When one considers the conglomeration of sentencing mandates, the force of mass incarceration becomes painfully transparent. But with this transparency comes simple avenues for reform. Eliminating enhancements is low-hanging fruit in the realm of prison reform, but would reap immediate benefits. Certain enhancements, like those for repeat sex-offenders need not be addressed, but gang enhancements are an obvious target for reform. Perhaps looking to the global community would help inspire meaningful corrective legislation.

 

Update on CA’s Bail reform efforts

As detailed in an earlier post, CA’s criminal bail system is so insidiously unfair that it’s better to be guilty and rich than innocent and poor. A person’s ability to get out of jail depends on the size of their bank account. In many ways, the current bail system mirrors the structural inequalities in society — the well off enjoy privileges in an elevated social class divorced from life in the middle and lower classes. The good news is that a robust reform movement is underway and quickly gaining steam.

Replacing wealth based decisions on pre-trial detention to an individual impact on public safety assessment tool is the gist of the bill making its way through the CA legislature. The commercial bail industry in CA, valued annually at roughly $2 billion, has already spent $170,000 on lobbying efforts to oppose changes to CA’s bail system.

Nationwide, the majority of people unable to meet money bail fall within the poorest third of society. Criminalizing poverty has extensive historical roots, but modernizing the pretrial system offers the possibility to address one of the major humanitarian injustices permeating CA’s criminal justice system. In CA, 63% of people caged in jails are legally innocent and awaiting trial. Governor Brown’s compliance to a Supreme Court population cap mandate shifted facility overcrowding from prisons to jails, but if the legislature can pass the Bail reform bill it will greatly alleviate jail overcrowding.

Communities are healthier and safer when they are whole.

 

The history of immigrant detention & deportation in CA

Immigration control & crime and punishment are inexorably woven into the social fabric of CA history. By the 1890’s, the Native populations had been decimated by way of cultural genocide, Mexican dispossession of CA was complete, and Anglo-American settler occupation was in full bloom. Infused by Manifest Destiny, these settlers believed the bounties and resources of CA belonged exclusively to them and their families. The post Gold Rush era set in motion an explosive xenophobic movement that targeted Chinese extinction and forever altered the carceral landscape of CA. Through the lens of immigration we can better understand the foundation of incarceration as a tool for social control in CA society in ways that look shockingly familiar to the features we observe today.

As the California indigenous populations declined, Chinese immigrants rapidly became the largest nonwhite population in CA. Chinese immigration was immediately perceived as a threat to the fantasy of Manifest Destiny by Western settlers. Anglo-American settlers asserted political dominance over CA society by passing anti-Chinese legislative acts that consolidated Anglo-American power. During the Gold Rush, the Foreign Miners Tax charged non-citizens a hefty fee to mine. CA also denied Chinese immigrants the right to vote and banned them from testifying against whites or sitting on juries. Settler law allowed whites to assault, kidnap, or even murdered Chinese immigrants without legal consequence. This reign of terror culminated in the 1871 Chinese massacre in Los Angeles in which 500 whites mobbed Chinese neighborhoods, setting fire to homes & businesses, before torturing and lynching 17-20 Chinese immigrants. This event was the largest ever mass lynching in American history.

massacre

Despite oppressive conditions in which Chinese immigrants faced wanton theft and violence at the hands of whites, they continued to arrive each year by the thousands. In response, the Geary Act of 1892 transformed Western hopes of expelling Chinese immigrants into a formal legislative proposal that aimed to ‘absolutely prohibit the coming of Chinese persons into the United States’. The Geary Act required all Chinese laborers to apply for a certificate of residence, but they could only secure this certificate on the testimony of a credible white witness who could confirm they arrived prior to 1882. Any Chinese immigrant who failed to comply with the Geary Act was subject to imprisonment at hard labor for a year and/or immediate deportation. This new law marked a sweeping expansion of immigration control and married immigration to crime and punishment in a historically unprecedented and constitutionally dubious fashion.

In May of 1893 the Supreme Court held an emergency session to hear its very first deportation case under the Geary Act. Fong Yue Ting v. United States rested on the central issue of implementing a criminal punishment — deportation — without due process of the law. The Supreme Court unequivocally deferred to Congress’s plenary power over matters of immigrant expulsion and concluded no authority to intervene. Further, the Court decided that deportation was not a criminal sanction, which would trigger constitutional protections, but, rather, an administrative process not subject to due process protections. In other words, deportation was found not to be imprisonment in a legal sense. That’s insane, folks. Deportation is, by definition, punishment. It involves an arrest, deprival of liberty, removal from one’s family, home, and community, and being sent away to a distant land. This case still stands as good law today and has shaped the contours of immigration law for over a century.

Since 1896, federal authorities have conducted over 50 million deportations and forced removals from the United States. According to the Fong Yue Ting ruling, none of the millions of deportees were imprisoned as a punishment for crime. Immigrant detention has emerged as one of the most dynamic sectors of human caging. So many immigrants clog correctional facilities in CA that private corporations like Geo Group have contracts to hold detainees in facilities throughout CA.

CA is home to more undocumented immigrants than any other state. Some observers may wonder why so many immigrants, including children and families, are caged in jails and detention centers. Others may wonder why more cages aren’t being built. Few may understand that a settler law from 1892 built the structure of immigration control we live in today. Deportation no longer explicitly target Chinese immigrants, but the regime of immigration control is no less racialized. The criminal justice system, or in this case the domain of civil law, has long been used as a vehicle to perpetuate a caste based society in CA. This blogger happens to believe that no human beings are ‘illegal’.

 

Who deserves second chances?

It’s common to hear rhetoric about second chances in conversations about criminal justice and prison reform. But there’s a social distance between those who need second chances and those who don’t that complicates this calculus. The regular Joe’s in society who don’t break the law may feel a natural disapprobation for the criminal Joe’s who deviate from law abiding behavior. Further, there seems to be an additional hurdle to the discussion of second chances that manifests in the types of offenses that may qualify or disqualify an individual from a fresh start. CA & America would still be the global leaders in human caging even if we were to immediately release all the non-violent/drug offenders in our prisons. Any conversation about second chances therefore must begin with the more difficult position of reckoning with the destiny of violent offenders.

Former President Barack Obama proclaimed America a “Nation of second chances.” This is a pleasant thought, but digging deeper into this sentiment brings about some unsettling conclusions. The premise that America is built on second chances begs the questions of why is there such a widespread need for second chances in the first place? If there weren’t such drastic inequalities in society there wouldn’t be such an urgent need to build upon this rationale of second chances. If everyone were on the same playing field right off the bat instead of, say, a social system in which upward mobility and autonomy in life is dependent on one’s zip code, the landscape of second chances would look quite different.

Operating within the existing social realities unlocks different quandaries to ponder. Life in the ghetto presents an exceptional amount of barriers that it could be said individuals in these communities never even had a first chance in life. This simple truth is magnified by the defining hallmark of this era of mass incarceration — minority over representation. Brown and black bodies fill CA prisons at astonishingly disproportionate rates. Mass incarceration (aka mass extermination) is the legacy of slavery, plain and simple. Any discussion of second chances that glosses over this point is miscalibrated.

Perhaps even more common than hearing about second chances is the idea that our criminal justice system is broken. It is not broken, it is functioning just as it was designed to. Rounding up young bodies from oppressed communities and relegating them to a life that positions them even further on the fringes of society has been the M.O. of the criminal justice system since inception in CA. The more radical these ideas sound serves as a litmus test for one’s understanding of the historical role prisons have played in CA society. While it’s no longer acceptable to explicitly use the criminal justice system as a vehicle to perpetuate a caste-based society, this enduring mission persists. The definitions have evolved (violent offenders being the new term of choice), but the same tactics are still recycled. Round up young bodies, brand them with the mark of the criminal justice system, and confine their life arches.

Distinguishing structural injustices from self-inflicted harms is the ultimate intersection of this notion of second chances. For those who succumb to the ensnaring nature of the ‘hood, should they be granted clemency after serving a considerable amount of their sentence as a recognition of the conditions that initially lead them to lawless behavior? Or, do those of us who’ve never needed a second chance urge our criminal justice system to continue to throw the book at these offenders to set an example? Sentencing guidelines aren’t conceptualized with the idea of second chances in mind, so if they are to be changed, second chances as a form of reparations must move to the forefront of reform-based conversations.

To further complicate this delicate balancing act, let’s consider the different types of offenders that may or may not deserve second chances. Perhaps more so than any other group of offenders, sexual offenders assault our moral sense of wrongdoing. But, rather shockingly, this group has repeatedly been demonstrated to have the lowest recidivism rate across the board. If we believe that those who are the least likely to re-offend deserve second chances the most, empirical data leads us to the conclusion that these type of offenders are most deserving of second chances. This position is difficult to defend, but offers a perplexing glimpse into the amorphous nature of second chances.

Integrating holistic approaches to better understand the factors that led individuals to break the law offers an intriguing potential to humanize the criminal justice system. To flesh this concept out, let’s consider a few different scenarios. Bobby has a history of petty shoplifting charges. Upon his most recent arrest, the judge adjudicates Bobby to a minor jail stint. On the surface, this standard story doesn’t seem to cause any issues for society. Bobby has repeatedly committed the same crime, received a proportional sentence, and now will hopefully have time to reflect on his mistakes in a correctional facility. But what if Bobby is stealing food from his local grocery store because his family is food insecure and his little sister is starving? Most observers would most likely follow Bobby’s actions, and wouldn’t have any moral issues with the thefts. Yes, stealing is against the law, but in the face of watching your little sister suffer from starvation, the theft pales in comparison. Or, consider the story of Willy. Willy sells bootleg copies of movies in his neighborhood, but he doesn’t know that copyright infringement is a crime. Ignorance of the law is not a successful legal argument in the courtroom, but should Willy still receive a criminal sentence for his non-violent actions?

The obvious challenge to this holistic approach to considering second chances is volume. There are simply far too many cases to break down each one to a human level and consider all the relevant factors at play. The dark horse in these conversations about second chances is the role prosecutors play. Prosecutors are elected officials who seldom run on a platform of leniency and compassion. Less than 10% of criminal cases go to trial, a full 90% conclude in the plea bargaining stage. There is virtually no publicly accessible information about prosecutorial behavior, but again the issue of volume plays a significant role in guiding their actions. If a prosecutor has a dozen different cases to get through on any given day, there is not enough time to sit down and get to know the suspect on a human level to understand their criminal behavior. When we consider the role racial tropes play in criminal proceedings, it’s fair to assume when a prosecutor sees another brown or black suspect, their biases (implicit or explicit) becoming a driving force.

We’ve yet to examine the current second chance climate that recently released inmates face. The post-release environment in CA is replete with over 40,000 legal discriminatory barriers. From voting restrictions, to housing discrimination, to withholding educational grants, life on the outside for convicted felons is nearly impossible to navigate. One mistake can alter the trajectory of someone’s life until the grave. The Kantian retributivist may be satisfied with this dynamic, but who among us hasn’t committed a crime at some point in our lives? Maybe it was something minor like jaywalking or rolling through a stop sign, or more substantial like property infractions or instances of physical violence. The only difference between us citizens on the outside and our fellow incarcerated Californians is that we didn’t get caught. Or, for those of us who enjoy certain privileges in life, the only difference is that we didn’t have to break the law to meet our basic needs in life — or, if we did break the law, we were immediately granted a second chance and not formally charged.

Second chances … well, what about first chances?