Author: W. David Ball

W. David Ball is an Associate Professor at Santa Clara School of Law. He writes and teaches primarily in the fields of criminal law and criminal procedure, with a special focus on sentencing and corrections. He also serves as the Co-Chair of the Corrections Committee of the American Bar Association.

Think and Act Locally When It Comes to Criminal Justice

I’m glad to see this coverage in the New York Times today acknowledging that the federal government isn’t the main event when it comes to mass incarceration, an idea to which I have long subscribed. I’ve actually been planning a longer post about this, focusing on the ways in which criminal legal scholarship is disproportionately focused on the federal system, but much of my time has been taken up with a class that focuses on the extremely local drivers of criminal justice: county-level actors.

I’ve already blogged about this class before, but as my students have really started to crank out their research, I wanted to revisit it. The class focuses on bail and pretrial release in Santa Clara County, CA, a county of over a million people that houses San Jose and most of Silicon Valley. We chose this focus for a number of reasons. Santa Clara University, where I teach, is a Jesuit School, and part of our mission is to seek social justice. Bail and pretrial release decisions disproportionately affect the poor in our own community, so that was an easy sell. We also had the opportunity to contribute our research to a county-wide Bail and Pretrial Release Working Group that is seeking to address the issue. Finally, on both an intellectual and policy level, bail is intensely local in California. Bail schedules are set by a county panel of judges, there is discretion built into the system at the officer level and the jail level, and jail capacities and practices vary from county to county. It’s almost impossible to get an accurate picture of bail in California without looking intensely at the local level, because there is no single statewide system. There are also important systemic knock-on effects—how failure to make bail embeds criminality, for example—that are best examined by looking at a single county system and its agencies and practices in depth.

More than that, though, there is often a wide gap between law on the books and law on the ground, as Mona Lynch has observed (among others). My students just spent a week watching court, and many of them were struck by how widely practices varied from courtroom to courtroom, how almost all of the procedures fell short of what was supposed to happen, and, in some cases, they wondered whether what they observed was even legal. This is an area of the law—and a population—that gets very little attention, partly because it’s local, partly because it concerns non-capital crimes, partly because there are just so many cases stuffing the channel. These are crucial parts of the procedure for the accused that don’t touch on any of the topics typically taught in law school. In most law schools, you read Stack v. Boyle and U.S. v. Salerno at most; that’s all you get for bail. Continue reading “Think and Act Locally When It Comes to Criminal Justice”

Aftershocks of the Housing Crisis

I didn’t expect to find a paper in the American Bankruptcy Law Review that has such a strong social justice element—though, admittedly, this is not a publication I read regularly. But this paper—Randomly Distributed Trial Court Justice—written by my colleague Gary Neustadter, chronicles the legal aftershocks of the housing crisis and demonstrates both that there is still money to be made from the poorest of those affected by the mortgage crisis and that how they fare in our court system seems entirely random.

Gary’s paper meticulously tracks what happened to a set of mortgages bought on the secondary market that were then subject to suit in bankruptcy court. The loans were bought by Heritage Pacific Financial, LLC, and the complaint Heritage made hundreds of time was the same: that the borrowers had fraudulently misstated their incomes, and, as such, that the borrowers could not discharge their mortgage obligations in bankruptcy court.

All of these suits should have failed. Under California law, Heritage bought only the mortgages, not the underlying fraud claim. Because the legal claims Heritage made were exactly the same for each case, they should have prevailed zero times. But they didn’t. We should be concerned about two things: that the wrong result was ever reached in spite of the law’s clarity, and that the results varied among identical cases. This was a natural experiment that shows that even the results from a court case—the gold standard, not a second-best substitute like arbitration—can change based on the judge, who is represented by counsel and who isn’t, and the like. Some of the results are predictable and depressing, but others were surprising: defendants who represented themselves, for example, obtained “no payment” settlements at a slightly higher rate than those with counsel (36 percent to 31 percent).

So why didn’t anyone discover that the claims were baseless until Gary looked at them? The reasons, in Gary’s view, are systemic. A defendant who wanted to make a substantive challenge to Heritage’s claim would have had to pay her lawyer to investigate the legal and factual basis behind it. Heritage, on the other hand, just had to write one complaint and simply substitute names, addresses, and amounts. Heritage was the repeat player, with economies of scale. Perhaps individuals just wanted a lawyer to make the problem go away. Given the risk that a defendant might pay for research that fails to uncover any good defense, leaving her stuck with the cost of damages and the additional legal fees, it might be rational at the individual level to simply roll over and settle.

More ironies abound. For those defendants that did fight Heritage, there was a colorable claim that Heritage’s argument was so without merit that it could be held liable for the defendants’ attorney’s fees. This was, in fact, the ruling in three cases. No one was able to collect, however. After collecting from other defendants, Heritage closed up shop and declared bankruptcy.

The paper is long and, at times, fairly technical. The story it tells, though, is incredibly important. It’s not enough for the law to be on your side—you have to have the resources to hire a good lawyer to find the argument to make it. I’m not sure that’s such a happy story about our legal system, but I sure am glad someone took the considerable amount of time and energy to tell it.

Bail and Public Safety

I want to take this occasion to announce that my students and I are researching bail and pretrial release as part of a criminal law and policy class, working in partnership with some local policymakers, and that we will be posting our research and policy prescriptions on the class blog. I have just published a post that suggests that the commercial bail policy question has, thusfar, been focused unduly on the rates at which defendants fail to appear in court under various release conditions (own-recognizance release (OR), commercial bail bonds, cash deposit bonds, etc.). I propose, instead, that at least part of the analysis focus on the public safety implications of various forms of release, measured by re-arrest rates. Data from Santa Clara County that we have obtained shows that defendants released on bail bonds are rearrested at roughly ten times the rate as those released on OR or supervised OR. Read the full analysis on the blog—and, while you’re at it, check out some of my students’ projects!

No, Michael Hayden-The Case for Drones is Much More Complicated Than That

I don’t really know where to start with Michael Hayden’s piece in the New York Times defending drone strikes. Perhaps with the report last fall from the Intercept that shows that the very data we use to characterize the results of drone strikes is cooked “by categorizing unidentified people killed in a strike as enemies, even if they were not the intended targets.” Drone strikes are automatically effective if you assume they are effective, and you can do that by the casual us versus them analysis that says “If you live in one of these areas, or are walking near particular people, you’re probably a terrorist.” The only (ironic) way in which this might be true is that, if you didn’t hate the United States before indiscriminate drone killings, you’re much more likely to afterwards, when someone you know was killed. Not that the targets are necessarily well-chosen, either. One analyst has described these methods as “completely bullshit.”

But what I want to point out is the argument Hayden makes about the efficacy of drone strikes. He says definitively that, despite the errors (which he acknowledges the existence but not the magnitude of), the program is worth it because it has prevented terror attacks. I’m not sure how we know this definitively. It’s always good to invoke a mushroom cloud when we’re talking about killing people in other countries (see the Iraq war), but these are always questions of probability, not certainty. I get that that’s inherent in intelligence work, but I think it’s probably overstating it to say that we necessarily got X benefit for Y deaths.

The bigger problem, as I see it, is the narrow way in which Hayden’s analysis views the costs and alternatives. Drones might be justified if they are the best option we have, but drone use shouldn’t be compared to doing nothing, but compared to doing something else.  Whether it’s worth it “to America” has to include the long-term damage it is doing to our reputation around the world.  But I’d like to think we should also consider the lives and psychological well-being of innocent people who are being randomly killed.

I guess Hayden’s fundamental cost-benefit analysis is this: extra-judicial killings are “worth it” only because he sees innocent lives as worthless. Perhaps they are to Michael Hayden—after all, these are mostly Muslims living in foreign lands. I don’t see it that way, nor do I see this as being representative of the values of the United States.

Prison Fun Facts

What place (in space and time) does this describe?

Plaintiffs also complain that numerous problems allegedly exist in the units in which they are housed including: (1) the toilets in the solitary confinement units do not function for long periods of time; and that feces, urine, food, and other debris covers the floors and walls, (2) the units are infested with vermin, (3) some prisoners do not have working light bulbs in their cells, while others are subjected to “bright artificial light around the clock,” and (4) the noise in the units “is often deafening”.

Answer after the break.

Continue reading “Prison Fun Facts”

The California Marijuana Legalization Initiative Won’t Create the Next Big Tobacco

Today the UCSF Center for Tobacco Control Research and Education released a report entitled A Public Health Analysis of Two Proposed Marijuana Legalization Initiatives for the 2016 California Ballot: Creating the New Tobacco Industry. Coming just a day after the California Medical Association endorsed the Adult Use of Marijuana Act, the new report is much more critical of the AUMA, suggesting many similarities between marijuana and tobacco. I am a fan of the Tobacco Research Center’s work, and I agree with them that marijuana is not harmless, but I disagree with them that this will create the next Big Tobacco just because the ballot initiative doesn’t contain all the policies they would like to see.  I don’t think the ballot initiative process is the place to nail down particular policies. I think rulemaking is going to be an ongoing process, and we shouldn’t get locked in now—especially since we don’t know enough about the future regulated market.

A couple of caveats at the outset. First, I was a member of the Blue Ribbon Commission on Marijuana Policy, serving as Chair of the Public Safety Working Group, and, as such, I was involved in the development of many of the recommended policies that were subsequently adopted by the AUMA. I attended a meeting with the authors of the report, and I disagreed with them then that we had to replicate everything from tobacco regulation (though, I will reiterate, I think some of the lessons are valuable). I think I’m clear-eyed about the limitations of the Commission (and my own knowledge), but take this with however many grains of salt you deem necessary. [UPDATE: In case it’s not clear, I’m speaking on my own behalf, not on behalf of any organization with which I have been or am currently affiliated.]  Second, I’m not a public health expert, just a criminal law professor, so I can’t do anything like a deep dive into the public health studies. (That said, I will say, as an observer, that the studies seem to me to be far more equivocal than what we now know about tobacco.)

My main objections to the Tobacco Center’s report can be divided into two categories: whether the post-legalized marijuana industry is on the way to becoming Big Tobacco, and whether the ballot initiative process is the place to nail down policies. Continue reading “The California Marijuana Legalization Initiative Won’t Create the Next Big Tobacco”

Donald Trump: Lucha Libre

I woke up this morning with an idea for a blog post: an analysis of Donald Trump using the spectacle of wrestling as a backdrop, sort of an update of the paranoid style in American politics. Donald Trump would be the good guy, or face, who comes to save the day from Mexican, Muslim, and other “heels,” bodyslamming them into oblivion to roars of approval. I’m not a wrestling expert—I have never found its fake drama particularly compelling—but I do have two favorite takes on the subject: Richard Price’s Moth story about watching wrestling with his grandmother, and the ingenious Andy Kaufman/Jerry Lawler mocku-drama I’m From Hollywood (here is a brief rundown from CNN, but, really, watch the movie).

Sadly for me, but happily for you, I discovered that that Chauncey DeVega has already written the definitive Donald Trump pro wrestling essay better than I could have, though he has a slightly different take. Go read it, but here’s an excerpt:

…the storylines in American professional wrestling revolve around the tension between a hero (a “babyface,” in industry parlance, or “face” for short) and a villain (known primarily as the “heel”). In its most basic presentation, the babyface is a likable and honest character who wants to win the approval of the fans. … The heel, meanwhile, is the opposite of the face — a duplicitous, unethical, often cowardly figure, who will cheat to win and who actively antagonizes the fans and his peers….

The role of a champion — especially one who is a villain such as Donald Trump — is to ultimately to lose to a challenger, thus anointing them as the new figure for the fans to support (or alternatively to hate).

DeVega goes on to say that Trump is going off script by refusing to throw the final match. The heel is now triumphant, not the face. There is no vindication of the hero.  The essay is brilliant. Perhaps the only problem I have with it is that, by comparing the Donald to professional wrestling, it imbues him with a seriousness and authenticity he doesn’t deserve.

California Governor Announces Significant Sentencing Ballot Initiative

Today Governor Jerry Brown introduced the Public Safety and Rehabilitation Act of 2016 (link to initiative text), a sentencing reform ballot initiative slated to appear on the November ballot. This is potentially huge news—if nothing else, it may signal that the political calculation on crime could be changing—but I have some caveats about how significant it could end up being. The PRSA expands the potential for parole release, expands good-time credits, and puts judges, not DA’s, in charge of deciding whether a given juvenile offender can be tried in adult court.

The most significant part of the PRSA, in my opinion, is the expanded role of parole. California never quite did away with indeterminate sentencing, as I have written about here, reserving X-years-to-life sentences for non-capital murder, three strikes offenses, and some sex offenses. This proposal is definitively not a return to the Indeterminate Sentencing Law of the early 1970’s, where sentences could be as vague as “one year to life.” Instead, it makes all those who have served their primary (determinate) sentence eligible for parole. [Update to clarify: this applies to those convicted of non-violent offenses only.]  The key here is how primary sentence is defined: it “exclude[es] the imposition of an enhancement, consecutive sentence, or alternative sentence.” As I wrote about here, (see this page for a link to the article and the data on sentencing), there are many people serving very long consecutive sentences (100 years plus). More importantly, the tail-wagging-the-dog enhancement structure of the California penal code means a lot of time actually served is from enhancements. I expect this to be the main source of pushback, since so much of plea bargaining is, in fact, charge bargaining, and so much of charge bargaining is about enhancements.

That said, I’m not sure that parole hearings themselves will generate parole release—it all depends on implementation. In California, parole shall “normally” be granted unless “consideration of the public safety requires a more lengthy period of incarceration for this individual.” The problem is that there is very little incentive for a parole board to release someone, and one very big reason—CYA—to avoid releasing someone, as I argued here. The PRSA changes nothing about the underlying incentives of release, nor does it make any substantive changes to the law governing parole release itself. To be fair, parole release rates in California have increased dramatically in recent years among those serving X-years-to-life sentences, so this could potentially have some impact on the California prison population.

Continue reading “California Governor Announces Significant Sentencing Ballot Initiative”

Obama Restricts Solitary Confinement in Federal Prisons

On Monday President Obama announced that federal prisons would no longer use solitary confinement for juveniles or for inmates serving time for low-level infractions.  The move is long overdue-like almost 200 years overdue.  Consider, for example, this assessment of the harms of  solitary confinement in Pennsylvania from de Tocqueville (yes, that one) and de Beaumont from their 1833 work “On the Penitentiary System in the United States, and Its Application in France.”

[A]bsolute solitude, if nothing interrupt it, is beyond the strength of man; it destroys the criminal without intermission and without pity; it does not reform, it kills.

There are an estimated 100,000 people in solitary confinement in the United States, though no one really knows for sure.  Part of the problem is that there is a lack of transparency about who is in solitary and what evidence gets them there-and, more worryingly, what procedures there are to get them out.  For example, Albert Woodfox, one of the Angola 3, has been in solitary for more than 40 years (a recent ruling that was to grant him release was overturned by the 5th Circuit).  For one particularly Kafkaesque example of misidentification leading to years of solitary confinement in California, check out Lira v. Cate (though, it should be noted, California has also revised its solitary confinement procedures).

The American Correctional Association has recently promulgated new draft standards for the use of solitary confinement (also known as restrictive housing, administrative segregation, and the like) and has been collecting feedback on the standards (full disclosure: I was involved both with an ABA response and a response from law professors).  I am hopeful that state prisons-which hold far and away more prisoners than the federal system-will follow the lead of both President Obama and the ACA and move away from this expensive and psychologically damaging practice.  For the cases that remain, I also hope that prisons provide more transparency about the number of people in solitary and the procedures used to confine them there.

Fantastic Resource on Police Use of Force

Following up on my earlier post (and taking this opportunity to clarify that I was being sarcastic when I described the Manhattan Institute’s report as “groundbreaking” or good news-since, as I hope was clear, I expect police to kill fewer people than violent criminals do), I have found (via boingboing.net) this excellent resource on police use of force.  The Police Use of Force Project reviews policy policies from the largest city police departments in the United States “to determine whether they include meaningful protections against police violence.”  The policies were obtained via FOIA requests, the data is/are published on the site, and they even have a model use of force policy.