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When California denies a murderer parole, should it need a reason?

The title of this post is the title of a noteworthy article in today’s LA Times on the question of whether, and on what basis, life prisoners in California should be released on parole.

The issue is this – in cases involving inmates who are indisputably eligible for release on parole, may the state of California (in particular, the Governor) refuse to grant release on the basis of the seriousness of the original crime, without making a specific finding that the inmate poses a current threat to public safety?

In 2008, the state Supreme Court decided in In re Lawrence that under state law the Governor must be able to demonstrate a current threat to public safety in order to deny parole to an eligible inmate. The US Court of Appeals for the Ninth Circuit is currently considering whether a denial of parole without a finding of current threat to public safety violates the US Constitution.

The LA Times piece is notable first for its calling attention to this important issue and second for its presentation of the many differing viewpoints on the purpose of life sentences.

Harriet Salarno, who has been calling attention to the needs of California crime victims for decades, says life sentences should serve as a deterrent: “For the sake of public safety — that’s what we have life sentences for … That should be a deterrent to crime: that you won’t ever get out if you get a life sentence.”

Bill Schmidt, an attorney who represents life-sentenced inmates, argues that in cases where the legislature has already determined that an inmate should be eligible for release on parole, the Governor lacks the authority to refuse release: “Where does the law give the subjective authority for the governor or the board to say, ‘No, your crime was so horrendous that we’re not ever going to let you out’?”.

Laurie Serafino, a professor at Pepperdine, points to the always vexing question of how the criminal justice system can best balance the need to hold offenders accountable with the need to help offenders reintegrate successfully into society: “It goes back to the question of whether we want sentences to be punitive and how to weigh rehabilitation versus punishment.”

The issue of how California treats its life inmates is a pressing one both because of its moral implications and because of the very real need for the state to reduce its unconstitutionally overcrowded prisons. The LA Times should be commended for calling attention to it.

SB 714 Scheduled for Discussion in Senate Judiciary Committee

The U.S. Senate Judiciary is scheduled to discuss Senate Bill 714 – Senator Jim Webb’s “National Criminal Justice Commission Act” – this Thursday, Dec 3 at 10 a.m. EST.

The Committee has scheduled hearings for the bill before, most recently last month, when Sen. Charles Grassley (R-IA) proposed a rider that would have banned the commission from conducting any activities that “involve, support, or otherwise discuss the decriminalization of any offense under the Controlled Substances Act or the legalization of any controlled substance listed under the Controlled Substances Act.” Since NORML still supports the bill it seems safe to assume that the Grassley amendment failed.

This bill has gone through a number of changes, but its essence remains. It would create a National Criminal Justice Commission whose purpose would be to “undertake a comprehensive review of the criminal justice system, make findings related to current Federal, State, local, and tribal criminal justice policies and practices, and make reform recommendations for the President, Congress, State, local, and tribal governments to deter criminal activity, and improve public safety, cost-effectiveness, and fairness in the implementation of the Nation’s criminal justice system.” In doing so, it is required to make findings it deems appropriate, including, among others:

- the increase in the United States incarceration rate compared to historical standards of incarceration in the United States and the reasons for this increase;
- the costs and benefits of prevention and diversion programs;
- an examination of the impact of legislative, policing, prosecutorial and judicial policies and practices upon the corrections population; and
- an examination of the role of race and ethnicity at key stages of the criminal justice process to determine the prevalence and impact of racial disparities.

There are legitimate criticisms of this bill, including most notably the breadth of the commission’s mandate. But overall, the bill is a good idea whose time has come.

Misprision in California?

California lawmakers are considering ways to expand the current criminal reporting law to include a requirement that anyone who witnesses a violent crime being committed upon someone younger than 16, or possibly 18, report the crime to the authorities. Current law only covers children up to 14, which angers some Richmond, California, residents who think the young people who failed to report an alleged rape and robbery being committed upon a 15-year-old girl should be punished.

The crime of failing to report a known felony existed at common law, and exists today in some jurisdictions, as misprision of a felony, and is usually a misdemeaor. The principle supporting a general societal obligation to report crime began to develop in the 13th century, and, as far as we know, the crime was first defined in 1557 by Sir William Staundford, who said:

“Misprision: this is properly when anyone learns or knows, that another has committed treason or felony, and he does not choose to denounce him to the King, or to his council, or to any magistrate, but conceals his offence.”

Misprison was distinguished at common law from a number of related crimes, such as being an accessory after the fact and obstructing justice, both of which required that the offending party take some affirmative steps in concert with the crime (aiding/abetting and actively interfering, respectively). Misprision also requires some act, but that need only relate to concealment (controversy over whether misprision actually requires an affirmative act of concealment or whether mere silence is enough continues today). The gist at common law was that in order to avoid being guilty of misprision, if a citizen saw a felony being committed he was required to “raise a hue and cry” and report the felony to authorities. Some states still prohibit misprision, as does the federal government (see 18 U.S.C. § 4). California, evidently, does not, except in cases where the alleged victim is 14 years old or younger.

There are some concerns associated with misprision that California lawmakers should be aware of in going down this road. First, misprision laws are arguably in tension with the Fifth Amendment when a person obligated under a misprision statute to report a known felony is himself implicated in the felony. One should never be required to report a felony to the authorities when the report would lead to his or her own criminal prosecution and possible punishment; this would be in direct conflict with the constitutional protection against self-incrimination. Second, misprision statutes have occasionally be applied to people who have concealed information about the commission of felonies committed against them. Any law mandating the reporting of felonies should spare people who do not wish to report the crimes of which they themselves are victims. Third, if California is to enact a general misprision statute, it might consider limiting the reach of the law to mandate the reporting of violent felonies, not all felonies. Today’s criminal codes contain thousands more felonies than existed at common law – it is not in the public interest to punish everyone who fails to report any felony.

In interpreting the federal misprision law, the Supreme Court admonished in 1980 that “gross indifference to the duty to report known criminal behavior remains a badge of irresponsible citizenship.” Roberts v. U.S., 445 U.S. 552 (1980). The question for Californians now is how the Richmond case will affect their sense of what this means for them.

Richmond and the purposes of punishment

In a recent blog posting on The Bay Area, Gerry Shih notes that the US Supreme Court’s decisions in Graham and Sullivan may bear on the outcome of a Richmond, California, case involving the brutal rape of a 15-year-old high school student.

The Richmond case presents a useful opportunity to think about the nature of punishment and the importance of imposing criminal sentences that are consistent with the principles of fairness and justice that underlie our system. Punishment should not be an exercise in arbitrariness – the punishments our system imposes should be based on thoughtful reflection and rational analysis.

Traditionally, there are two main justifications for imposing punishment upon criminal wrongdoers: desert (or retribution) and utility. The idea behind desert is that wrongdoers deserve to be held morally accountable for their actions and that punishment should be proportional to the wrongdoing. In imposing a punishment based solely on desert, one need not be concerned with whether the punishment is designed to accomplish any other utilitarian objectives – the punishment is being imposed simply because it is deserved.

The idea behind the utilitarian purposes of punishment is that punishment is justified only if it accomplishes some other objective, such as crime control. Deterrence, incapacitation, and rehabilitation are all said to be valid utilitarian bases for punishment. In imposing a punishment based solely on utilitarian concerns, one need not be concerned with whether the punishment is otherwise morally justified – the only criterion is that the punishment accomplish the end being sought.

Of the six defendants, five face life in prison if they are convicted of the charges and enhancements. Whether this punishment is justified depends entirely on your view of the purposes of punishment. If you believe that punishments have to be morally justifiable, then the relevant question is whether these defendants deserve to be imprisoned for the rest of their lives for what they are accused of doing. If you believe that punishments should serve other objectives, then the relevant question is whether imposition of a life sentence will in fact serve any of those objectives, such as deterrence, rehabilitation or crime control. It’s not an either/or proposition – punishments can be based on both normative and utilitarian values. The key point, however, is that punishments should be principled, which means that when you impose a sentence on someone you should know why you’re doing it.

It is way too early in the Richmond case to tell whether any of these defendants will be convicted, and if so, what the evidence will reveal. Thus, it’s too early to undertake a reasoned analysis of what kind of punishment might ultimately be justified. But it’s never too early to start asking the relevant questions.

Considering CA’s Voter Initiative System

The Chief Justice of the California Supreme Court has written an Op Ed critical of California’s system of using voter initiatives to amend the state constitution.

“A matter of great concern to people in and out of government is the increasing use of the ballot initiative process to bring about constitutional and statutory changes, especially in the structure and powers of government. Although two dozen states permit government by voter initiative, nowhere else is the practice as extreme as in California,” says Chief Justice Ronald George. “These frequent amendments have rendered our state government dysfunctional.”

He’s right of course, and he should know. As the Chief Justice of the state’s highest court, one of his primary responsibilities is to interpret state law, including statutes enacted by the legislature, initiatives adopted by the voters, and the constitution itself. Thus, he’s uniquely positioned to know whether our method of constitutional amendment makes sense as a mechanism of governance.

The Chief Justice does not mention in his Op Ed the many criminal justice policies that have been adopted via voter initiative in recent years, but these are certainly worthy of being added to the list of initiatives that make our state difficult to govern. Beginning with the Three Strikes Law in 1994 and continuing through Marsy’s Law in 2008, California’s voters have adopted a slew of initiatives that have contributed to the state’s bloated prison system, overcrowded jails, and heavy probation caseloads. It’s possible that these laws are keeping crime rates down (we don’t actually know – the newest and best social science research cannot tell us conclusively) but even if they are keeping crime rates down, these laws are not necessarily the safest or cheapest way to accomplish that objective.

The Chief Justice makes some very valid arguments about the dysfunctional nature of California’s constitutional amendment process. Voter initiatives do not make sense as a mechanism for amending the constitution. Of course, ending the practice of using initiatives to amend the constitution does mean throwing the whole system out – we could continue to use initiatives for other purposes, like declaring the intent of the voters to influence public policy in one direction or another. This is a perfectly healthy use of the voter initiative system in a democracy.

But, as the Chief Justice suggests, using voter initiatives to alter the foundation of our state’s system of governance causes enough problems that it’s time to seriously reconsider how we do business.

Accomplice Liability in Richmond Rape Case?

Some have expressed concern that those who allegedly stood by while a 15-year-old girl was raped, beaten, and robbed outside of Richmond High School in Richmond, California, may not be prosecuted because of a 1999 law that makes it a misdemeanor not to report a crime against a child 14 years old or younger. But this ignores the possibility that the bystanders may be criminally liable as accomplices.

Under California law, anyone involved in the commission of a felony or misdemeanor counts as a “principal” in the crime, regardless of whether they directly committed the act constituting the offense or aided and abetted in its commission. It appears certain that some number of individuals (it’s not yet clear how many) were directly involved in acts constituting serious offenses against this young woman. What is less clear is how many individuals, if any, may have aided and abetted the offenses, and, if so, exactly how. Not enough facts have emerged about exactly what went on that night to draw any firm conclusions about the criminal liability of any of the alleged bystanders (in part because we do not yet know who the bystanders were). There are allegations that some bystanders merely stood by while others laughed, took pictures using cell phones, and/or encouraged the others to commit the crimes in question. What constitutes “aiding and abetting” is likely to emerge as a key question in this case. It’s going to involve intensive fact investigation on the part of the police and difficult line drawing on the part of the prosecutors. If the case goes to trial, precisely what constitutes aiding and abetting, assuming such charges are brought, will ultimately be a question for the jury.

Errors in Judgment

The title of this post is the title of an article in today’s Slate about thousands of errors that have been found in Maryland’s criminal sentencing system – errors that resulted in some inmates serving more time in prison than their actual sentences warranted, and some serving less. The problem occurs when prosecutors make errors on sentencing worksheets, defense attorneys fail to catch the errors, and judges rely on the worksheets in imposing sentences. The Maryland State Commission on Criminal Sentencing Policy is responsible for designing the worksheets, compiling the data, and relying on the data in developing sentencing guidelines.

What’s interesting about this piece is that it highlights a fact that many criminal justice actors know, but few like to admit – the criminal justice system is extremely vulnerable to error.

In most areas of life, we would generally prefer to have things kept error-free. Things just seem to operate better when errors are kept to a minimum. But in the criminal justice arena, we insist on it. The idea that someone could be incarcerated for a longer period of time than they deserve offends our sense of fairness. The idea that someone could be incarcerated for a shorter period of time than they deserve offends our sense of justice. And the idea that our criminal justice officials (police officers, district attorneys, judges, or corrections officers) might ever, under any circumstances, make a decision that results in a crime being committed, seems utterly unacceptable. We want our public officials to guarantee us a crime-free society.

The problem is that our criminal justice system is not nearly as air-tight as we sometimes like to pretend it is. Criminal justice officials have a tremendous amount of discretion, and they have to make judgment calls. Even our best attempts to minimize discretion and the potential that a bad decision will have harmful consequences (including the move toward sentencing commissions, guidelines, and worksheets), leave us vulnerable to error.

We must continue our efforts to minimize the potential for error in our criminal justice processes. Sentencing commissions and guidelines are excellent steps in this direction. But no matter what we do, we will never eliminate the potential for error entirely. We should probably start getting comfortable with that reality.

SCJC on KQED’s Forum with Michael Krasny

I was on Forum a week ago with Michael Risher of the ACLU and Michael Rumsford of the Criminal Justice Legal Foundation, discussing the ACLU’s challenge to California’s Prop 69.

Under Prop 69, as of January 1 of this year, police are required to obtain DNA samples for all individuals arrested for any felony in the state of California. The ACLU’s suit challenges the law on Fourth and Fourteenth Amendment grounds.

One of Mr. Rushford’s arguments is that the ACLU’s concerns are off-base because we are not far from a time when all Americans’ DNA will be stored in a national database. He has a point – hospitals now extract a DNA sample from all newborns for testing, and the information from those samples is maintained in a databank.

Mr. Rushford also argued that most Americans would be happy to submit their DNA to a national database because doing so would be good for medical research, as well as safety and security. I suggested that we could easily test Mr. Rushford’s theory – someone could propose a bill in Congress mandating that all Americans submit a DNA sample to be maintained indefinitely in a national DNA databank. How many Americans are prepared to hand over their DNA to the federal government?

Here’s a link to the archive: http://www.kqed.org/epArchive/R910130900.

California Report segment on Orange County’s DNA program

I spoke with Scott Shafer from KQED today about Orange County’s DNA program, in which suspects can have charges dismissed in exchange for submitting DNA samples. The benefits of the system are undeniable, but the implications make the policy ethically and legally questionable.

Here are details: http://www.californiareport.org/archive/R910080850/b

The California Report |  Thu, October 08, 2009 — 8:50 AM
Expanding DNA Databases Raise Questions

Yesterday, the ACLU filed a challenge to California’s Proposition 69, which requires DNA samples from anyone arrested on felony charges, even those who are not charged or convicted. Orange County prosecutors have gone a step further and are offering to drop charges for minor offenses if the accused gives up a DNA sample.

SCJC Celebrates 5 Years

I have the pleasure of announcing the five-year anniversary of the Stanford Criminal Justice Center this autumn. SCJC launched in October 2004, when SCJC founder Professor Robert Weisberg hosted a national symposium on the then-recent Supreme Court decision in Blakely v. Washington. The symposium was titled “The Future of American Sentencing: A National Roundtable on Blakely,” and came just days after the Supreme Court opened its 2004 term. The papers generated by the symposium were published in a special issue of the Stanford Law Review and were sent to every member of Congress and every member of the federal judiciary.

Since the 2004 launch, we’ve been busy. In the last five years, we have, among other things:

  • Hosted a conference on the status of gun ownership in America (we were not prescient enough to foresee the 2009 case McDonald v. City of Chicago).
  • Invited a panel of formerly incarcerated people sentenced to life in prison to discuss their experiences of life on the inside.
  • Hosted a town hall meeting in which advocates and policymakers presented their concerns about the work of the consultant group tasked with identifying remedies to California’s degraded juvenile justice system.
  • Held a conference on the subject of race and incarceration, bringing together experts in law, criminology, psychology and other disciplines to discuss this extremely trouble aspect of America’s sentencing and corrections system.
  • Had an academic symposium on the subject of the victim in criminal justice.
  • Hosted the 2008 annual meeting of the National Association of Sentencing Commissions.
  • Hosted a public meeting of the U.S. Sentencing Commission.
  • Partnered with the American Academy of Arts and Sciences Task Force on Mass Incarceration for a public event and working group meeting.
  • Conducted the 2007-2008 Stanford Executive Sessions on Sentencing and Corrections – an innovative form of policy working group, designed to bring together the key public, academic, and organizational leaders in the field of criminal justice policy in a spirit of cooperative movement toward reform of the sentencing and corrections systems, as well as the criminal justice system as a whole in California.

Perhaps our greatest accomplishment is something for which we can take very little credit – the appointment of Dr. Joan Petersilia to the Stanford Law faculty. We’re thrilled that Joan has joined us as a co-director of the Center.

SCJC looks forward to many more years of bridging gaps between academia and criminal justice policy, and to continuing to forge partnerships with other practitioners, policy makers, and academics committed to improving criminal justice policy in America.