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Friday, October 26, 2012

Viewpoint: Professor Hadar Aviram on Criminal Justice Propositions

Viewpoint: Props 34, 35 and 36: Old Patterns or New Solutions?

This article is reprinted with permission from the October 26, 2012 edition of The Recorder

by Hadar Aviram

On Nov. 6, California voters will be offered the opportunity to vote on three criminal justice initiatives: Prop 34, which would replace the death penalty with life without parole; Prop 35, which would increase penalties for sex trafficking, make evidentiary changes, and further burden registration requirements for sex offenders; and Prop 36, which proposes a small but significant revision to the Three Strikes law. 

Taken together, these propositions represent two different strands of thinking about criminal justice: new ideas of parsimony and effectiveness through Props 34 and 36, and old-school punitivism packaged as victims' rights, via Prop 35.

Proposition 34 has received the most media attention of the three, and with good reason. What is interesting about it is not only the historical opportunity to do away with the death penalty, but also the new justifications and realpolitik backing up the campaign. Voters are encouraged to look beyond their ideological and philosophical opinions about the death penalty, and instead consider the way the death penalty is actually applied in California.

The data, and the Legislative Analyst's Office fiscal report, paint a disturbing picture. Since renewing executions in the 1970s, the state has executed only 13 inmates. During that same time, 84 death row inmates died of natural causes. The paucity of executions stems from extensive (and expensive) litigation on behalf of the inmates, which is financed by the state, and is increasingly focused on chemical availability and injection techniques.

The result is that the death penalty, in reality, has become no more than life without parole, under special conditions (housing 725 inmates in single, rather than double, cells, with extensive security measures), accompanied by decades of incessant litigation and health care expenses — with or without an execution at the end — the elimination of which will save the state $100 million in the first year alone, according to the Legislative Analyst's Office analysis.

Under these circumstances, philosophical differences about the state's right to kill, the meaning of retribution, and the importance of closure for victims, become irrelevant. Some might think that the right thing would be to fix the death penalty, rather than eliminate it, but no proposition along the former lines is realistically forthcoming, and therefore many former (and current) supporters of the death penalty — victims' rights advocates, law enforcement officials and original proponents of the California death penalty statute — have joined the Yes on 34 campaign.

Prop 36, which would reform the Three Strikes law, is similar to Prop 34 in that it transcends ideological differences in penal politics to offer a practical, parsimonious fix, albeit a modest one in this case. Currently, the Three Strikes law inflicts a double sentence on habitual offenders who commit a second violent or serious felony, and a 25-years-to-life sentence upon commission of a third felony, even if the third felony is not violent or serious. The law also allows strikes to be imposed simultaneously, implying that the rationale behind its punitive regime is not deterrence, but rather incapacitation.

Currently, California prisons house approximately 32,000 second-strikers and 9,000 third-strikers; an estimated half of the latter population is serving a 25-years-to-life sentence for a third strike that was neither serious nor violent. Beyond the consistently unfavorable media coverage of the injustices propagated on this population (including harsh sentences for thefts of items that cost less than $10), Prop 36 raises serious fiscal issues.

While third-strikers are a small population, they serve lengthy sentences, which make them by definition expensive inmates. The state spends approximately $50,000 per inmate per annum, and much of this amount is due to health care costs, which apply mostly to old and infirm inmates. The proposed reform to the law is fairly minor: Second-strikers' sentences will remain the same, as will the ability to obtain simultaneous strikes. The only reform would be eliminating the harsh sentence for nonserious, nonviolent third strikes, making those a double sentence rather than 25-years-to-life. Current nonviolent third strikers would become eligible for resentencing. The Legislative Analyst's Office estimates annual savings that might exceed $100 million.

As opposed to Props 34 and 36, Prop 35 is a classic example of old-school punitive thinking masquerading as a victims' rights proposition. Marketed as supportive of sex trafficking victims to give it moral weight, the actual text does little, if anything, to help victims. Moreover, the proposition is a mixed bag of the sort of punitive propositions Californians have experienced (and voted on) for years: An increase in the already considerable sentences of human traffickers, changes to the mens rea requirement for trafficking minors, nebulous criminalization of sex work, and a host of bizarre and unenforceable additions to the already pervasive sex offender registration scheme (sex offenders would presumably have to report their email addresses and usernames, which cannot possibly be monitored or enforced in any way.)

Beyond lip service to the idea of training police to respond well to victims, the proposition would not really improve the situation of victims of trafficking in any predictable way, and its backers and endorsers are counting on the morality hype to confuse voters into doing what seems morally right and vote yes. It would be a costly mistake, along the lines of the 2009 Marsy's Law and countless other propositions of the same ilk.

The contrast between Props 34 and 36 on one hand and Prop 35 on the other is more than a juxtaposition of nonpunitive and punitive measures. It is a juxtaposition of a new way of thinking about criminal justice in an era of scarcity. Our paucity of resources requires a careful assessment of what actually works in criminal justice reforms, rather than bombastic expenditures on symbolic punitivism that do little to prevent crime or empower victims.

It is not crude or crass to discuss money in this context. Our willingness to spend resources on criminal justice resources is the clearest statement of our priorities as a society. Voting yes on Props 34 and 36 is sending a loud and clear message that the money spent on executions and unnecessarily lengthy incarcerations is better spent on education, health care, road maintenance and — yes — improving police investigation.

This election offers California voters the opportunity to do away with old partisan thinking and reject the tried-and-untrue method of extreme punishment and ratcheted sentencing. Reverse the punitive pendulum and opt for justice that works, not punitive proclamations that promise and do not deliver. Vote yes on Prop 34, no on Prop 35 and yes on Prop 36.

Professor Hadar Aviram is the Harry and Lillian Hastings Research Chair at UC-Hastings law school, where she teaches criminal law and procedure. Her new book in progress examines the impact of the financial crisis on the American correctional landscape. She also runs the California Correctional Crisis blog, californiacorrectionscrisis.blogspot.com.

The Recorder welcomes submissions to Viewpoint. Contact Vitaly Gashpar at vgashpar@alm.com.

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