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.

Good News from the Manhattan Institute: Police Kill Fewer Black People than Violent Criminals

You heard it here first: Heather Mac Donald’s most recent study from the Manhattan Institute reveals the good (and groundbreaking) news that police kill fewer black people than violent criminals. Mac Donald, as you might recall, was a proponent of the theory that murders were on the rise because of the “Ferguson effect”-that dissatisfaction with the police explained a rise in killings, a claim that wasn’t credible at the time and which has been debunked here. You might be sensing a theme-that statistical analysis isn’t Mac Donald’s strong suit-but this hasn’t deterred her from the important work of continuing to tell people that police violence against black people is no big deal.

Where to start? How about the title: most people are killed by violent criminals because violent criminals are, by definition in the Uniform Crime Reports, those who do violent things.  Police aren’t included in these figures because “The [UCR] program classifies justifiable homicides”-including those by police officers-”separately.” Now you know: most people who are intentionally killed are intentionally killed by murderers. (Note to the HR Department at the Manhattan Institute: if you are looking for another groundbreaking study, I can tell you right now that most people are raped by rapists, not by police, and would be happy to write that up for a fee.)

She states, “It is other black civilians, not the police, who overwhelmingly perpetrate violence in poor, minority communities.”  True.  Most people are not killed by police because most people are not police (only about 618,000 patrol officers in a country of more than 300 million).  Most people are also not killed by dentists, or Duke graduates, or people named Carl, either, because most people aren’t dentists, Duke graduates, or named Carl.  That proves nothing about their moral turpitude or their relative homicidal tendencies. You always bet the field. If, alternatively, there were more homicides from police than non-police (last year that would have meant 13, 472 homicides plus one), then that would mean every year about one in 50 beat officers would kill someone. (These are, in deference to MacDonald, figures based on the killing of all people, not just black people.)

Continue reading “Good News from the Manhattan Institute: Police Kill Fewer Black People than Violent Criminals”

Are you ready for some head trauma?

As we enter the final stop of the NFL playoffs before the Super Bowl, a reminder from our friends at Dept8 of what the NFL shield really stands for: CTE (Chronic Traumatic Encephalopathy).

nfl_cte

(For those of you with poor eyesight like me, the text reads “This degenerative condition is copyrighted by the NFL for the private use of our audience.  Any other result of sustained brain trauma, or any pictures, descriptions, and accounts of symptomatic concussions as well as asymptomatic subconcussive hits to the head without the NFL’s consent is expressly prohibited.”  Thanks, once again, to the First Amendment, which protects satire like this.)

For more on the issue, see this report about high school football deaths (a more scholarly treatment of both high school and college football deaths here), see how far we’ve come since 1905 (but also see this Deadspin article re-investigating the deaths of 1905), and consider whether we should do without helmets entirely.

Bryan Stevenson and a call to action

This past Thursday I had the great privilege of seeing Bryan Stevenson speak (and the even greater privilege of hosting him for a Q&A at the law school). Stevenson is a MacArthur “genius” grant recipient, NYU Law School professor, co-founder and ED of the Equal Justice Initiative (get one of their calendars now), and the author of the 2014 book Just Mercy. He is also one of the best public speakers I’ve ever seen. (You can check out his 20 minute TED talk for a brief example, but he spoke at Santa Clara for an hour without notes, and I will try to link to that if and when it becomes available)  [UPDATE: Here is the video.] Sometimes proximity to greatness takes the wind out of my sails and I spend time afterwards wondering why it is that I’ve wasted my life. But with Stevenson, I left energized. Perhaps it was his humility, or something about his demeanor, or the fact that he is someone who really focuses on other people. Perhaps it’s because I agree with him that criminal justice reform is civil rights work.

Or maybe it’s because he focuses not so much on the past, but on the present. We still have many challenges. Felon disenfranchisement laws threaten to roll back much of the progress of the Voting Rights Act. But even our relationship to the past needs work. EJI issued a report last year documenting nearly 4000 lynchings in 12 Southern states between the Civil War and WWII. Stevenson wants local memorials to those lynchings. As he put it, no one today should be able to walk past a location where someone was lynched without knowing about it. Stevenson even suggested that law enforcement come to the opening of such memorials and issue an apology and a promise: an apology that their predecessors who wore the uniform were unable or unwilling to stop the violence, and a promise that they themselves will never let it happen again. This is more than just a distant, bloodless reminder of what happened—an apology and a promise would tie the conditions of the present and policy for the future to the events of the past. It’s inspired me and some colleagues to begin looking into California’s extra-/non-judicial violence. (As a starting point for others who are interested, I’d suggest Clare McKanna’s excellent Race and Homicide in Nineteenth-Century California).

It’s this kind of linkage that’s exciting to me as an academic. One of the symptoms of post-tenure depression syndrome for me was feeling like there were plenty of good ideas out there already—that what I needed to do was not to write, but to do. (Frankly, it’s also the reason why I find it difficult to blog—that and a case of imposter syndrome so crippling that I actually think I’m not an imposter, I’m just really that bad.) It’s why I’m spending this semester teaching a class on bail with the goal of actually trying to move policy (much more on that later—though I’m often too busy meeting and teaching on it to reflect on it here). There, our answers and suggestions involve a “law on the ground” versus “law on the books” analysis of what’s actually going on in local counties, the kinds of research that involves much more minutiae and much less theorizing (see Mona Lynch’s excellent treatment of it here). But this, too, is a theme of Stevenson’s, what he calls proximity. We need to go where there is suffering, that we learn things from it that we can’t from a distance, and that, ultimately, it is more healing and instructive for the person doing the visiting than the person being visited.

So, with that in mind, it’s my hope for this MLK Day that some of you reading this find a place in which you can be “proximate” in a human and personal way to some kind of injustice and suffering, no matter what kind it is, no matter where it is. I can’t begin to say what will come of it, or what the solutions might be. But I think that if we are to really honor the legacy of our civil rights heroes, we have to do, not just remember.

A Tale of Two Cities? Marijuana, Municipal Difference, and Externalities

For the past several years I’ve been writing about criminal justice externalities at the local level, pulling on the loose thread of the correctional free lunch—the observation that local officials make the decisions that send people to prison but the state pays for prison out of general revenues.  The phrase was coined by Gordon Hawkins and Frank Zimring in the Scale of Imprisonment; Hadar Aviram provides a great introduction to the theory here (the very introduction, in fact, that piqued my interest).  From 2000-2009, counties in California used prison at very different rates, but only 3 percent of the variance can be explained by differences in rates of violent crime.  An ongoing question is how to internalize these externalities—I’ve proposed breaking up the state and unifying the pieces of criminal justice at the county level (Leon Neyfakh’s summary of my argument in Slate is here).   My reasons for picking the county level are, inter alia, that DA’s (and judges) are elected at the county level, jails are county institutions, and the Sixth Amendment says juries should come from the county and district of the crime (though I’ve also made the point that crime does not confine itself to county boundaries).

Two recent articles from Colorado underscore the idea that there are also important municipal/intra-county dimensions to criminal justice externalities.  In Colorado, several large cities/towns have banned recreational marijuana sales (most notably Colorado Springs).  This then means that little towns just outside the city limits can make money from sales (including, notably, from state sales tax rebates).  In one instance, a marijuana-selling town also contracts law enforcement out to the county sheriff-meaning that all costs are externalized (assuming crime goes hand in hand with marijuana sales, where the evidence is mixed) but all the benefits are internalized.  This strikes me as ripe for a race to the bottom where every jurisdiction ends up authorizing sales because it will end up paying for the costs anyway without reaping any of the benefits.

At the same time, there is also evidence from Colorado about action within the municipal level.  Denver is, apparently, siting marijuana businesses in rich white neighbor-oh, I mean poor neighborhoods of color (sorry, just wanted to break up the predictability a bit).  So there, the costs are apportioned intra-city but the benefits (in the form of sales tax rebates) accrue at the city level.  It’s the opposite internality/externality problem.

I don’t know that I have a one-size-fits-all prescription about the optimum state/county relationship in criminal justice.  (I’m still waiting for the criminal justice equivalent of a theory of optimum currency areas.)  In case you want to read more from me, you can check out my answer about about why we have state prisons—and how they used to be a revenue center, not a cost center-or about how the question about the proper relationship between county and state criminal justice in California (so important after realignment) has actually been with us since statehood.  If  you want to read someone else, a great place to start is  Lisa Miller’s excellent work the Perils of Federalism.  In general, though, I think discussions of criminal law in the legal academy tend to focus too much on the federal system and not enough on the state and local—even though there are so many fascinating issues to be explored there.

The California Bar Has Apparently Already Stopped Asking About Mental Health on the Moral Character Application-They Just Haven’t Spread the Word

(This post has been updated-scroll to the bottom).

After writing my prior post, I’ve been engaged in fruitful discussions both in comments and via email about the issue of law student mental health.  In one of these conversations, someone suggested going to the Bazelon Center website, telling me that they have a campaign about getting rid of mental health questions on moral character applications.  When I clicked through, I saw the following statement (without attribution) that “In California, the State Bar has removed its question asking about mental health diagnosis and treatment.”  For the past year or so, I’ve been talking to law professors, lawyers, disability rights/mental health advocates, law school administrators, and health care professionals throughout the state, and either people never knew there was a mental health question or knew about it, were upset by it, and didn’t know that it had been removed.  So it was news to me, and my reactions, in order, were:

  1. Yay!  (For reasons noted here.)
  2. Whoops!
  3. Why on earth is this information so hard to find/not more widely known?

The reason I care about this issue is to remove a barrier to law students in crisis getting help.  A recent national survey found that “at many law schools, students believe that seeking help for alcohol/drug issues or mental health problems will result in negative consequences for bar admission.”  Around half of students say they don’t want to talk to appropriate parties-including deans of students-for fear that it will hurt their chances to be admitted to the bar.  I want this information readily accessible, given that such a large number of students say they’ll avoid talking to me or other administrators.

But this information isn’t, I think, accessible enough to the average student (though it probably should have been to me). Continue reading “The California Bar Has Apparently Already Stopped Asking About Mental Health on the Moral Character Application-They Just Haven’t Spread the Word”

Mental Health and the California Bar

CORRECTION (1/5/16): I was wrong. California has stopped asking about mental health on the moral character application.

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Last year I learned some astonishing statistics that roused me into action, courtesy of a brilliant and courageous series of posts by Brian Clarke (part one, two, and three).  When entering law school, students are no more depressed than the general population (about 8%), but by the end of their first year about one in three is depressed.  Around 40 percent get depressed by the end of law school.  Lawyers are almost 4 times more likely to get depressed and 6 times more likely to kill themselves than the average member of the adult population.  My action thusfar has been local (at Santa Clara).  This post, though, is about something bigger.

The California bar has a policy that, I think, impedes efforts to promote mental health, and it’s my New Year’s Resolution to fix it.  For the non-lawyers out there, passing the bar requires both a written examination and an evaluation of the candidate’s moral character (sometimes also called moral fitness).  Basically, you want smart people (the test) who also won’t lie or cheat (moral character).  I’m all in favor of assessing moral risks, insofar as it’s possible, but, unfortunately, California also asks prospective applicants a question that isn’t closely related to moral fitness.  Question 10.2 (pdf-go to page ten) reads, ”Have you been diagnosed or treated for a medically recognized mental illness, disease or disorder that would currently interfere with your ability to practice law?”  Although questions like this one aren’t unique to California, I’m focusing on it because I’m a member of the California bar and teach in California.

For the remainder of this post I’m going to point out what I think are some problems with this policy: it seems to require disclosure of mental illnesses that are being treated, it discourages law students from getting help, and it might even violate the ADA.  In a subsequent post I’ll lay out my strategy for changing the policy.  In both instances, though, I’d welcome suggestions from readers about where I’ve left things out, gotten things wrong, or missed making my points as forcefully as possible.

Continue reading “Mental Health and the California Bar”

Scalia and “Lesser” Schools

Scalia and Fisher II

Last week I, like others, was taken aback by Justice Scalia’s comments during oral argument in the UT affirmative action case (Fisher II, comments on pp.67-68).  To me it sounded like an endorsement of separate but equal, and I made a tweet to that effect.  But since then, I’ve had an actual constructive interchange with a conservative friend on Facebook that has inspired me to write more-if only to prove that there is such a thing as a constructive political discussion on Facebook.  I will stand by my tweet (that’s a sentence I never thought I would ever write sincerely) and want to address my thoughts to five points.

First, that the language we use to discuss the position matters.  It is the way Scalia talked about the issue that justifies my characterization of it, whether or not one believes in mismatch theory generally.  Second, that there is, in fact, a problem with race in education in this country in general and with lawyers in particular.  We might disagree on the means to redress it, but we should all be dissatisfied with the scale and scope of the problem.  Third, that there’s more than one way to build an admitted class.  So much of the discussion seems to focus on the “fact” that better standardized tests make a better candidate, when much of admissions is moving towards other criteria, including non-cognitive criteria.  Fourth, that really addressing diversity doesn’t just end with admissions.  If we only change the way we admit students but not the way in which we support and address their needs, then we’re not good teachers.  And finally, I think the practice of law in particular has important social networking effects, effects that translate into real opportunity. Continue reading “Scalia and “Lesser” Schools”

Beyond the Binary in California Prisons

UPDATE (10/14/15 9:30 a.m.):  Well, that was fast.  California backed off the plan today.  We’re back to “nothing but incapacitation for violent offenders”.  At least we had a 24-hour window of conversation….

UPDATE 2 (10/15/15 11:09 a.m.).  This just gets weirder and weirder.  Turns out the policy changed years ago: California officials admit 40% of inmate firefighters are violent offenders.

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California’s inmate fire crews are a crucial part of the state’s firefighting infrastructure, an infrastructure that has been taxed this year and which will likely be taxed in future years as climate change makes weather extremes (such as our current drought) the rule rather than the exception.  A recent news story highlights the dilemma the state is in: with the realignment of low-level offenders away from state prison, the state has, essentially, run out of low-hanging fruit.  There aren’t enough nonviolent offenders to serve as inmate firefighters, and the state badly needs them, so the state is considering putting offenders convicted of violent offenses into inmate firefighting crews.

It’s surprising to see the state consider this move, but it blows my mind to see that Harriet Salarno of Crime Victims United was asked for her opinion on it and didn’t oppose it.  (For more on her organization and how its history is entwined with the California Correctional Peace Officers’ Association, you can either read Josh Page’s book or this article.)  Salarno says the state has no choice.

“This is very, very dangerous, but when you have a forest fire, what can you do?” she said Monday. “You need manpower to fight the fires, so we’re now putting dangerous criminals out there.”

In addition to pointing out the newsworthiness of her statement, I want to explore how this unlikeliest of sources might teach us some lessons about how to change the political calculus about the hardest cases-violent offenders. Continue reading “Beyond the Binary in California Prisons”

4 Reasons Drug Arrests Matter-And 2 Reasons Why They Don’t

A few weeks ago the FBI released its estimate of 2014 arrests and it appears that we are still, as a country, addicted to drug arrests-particularly marijuana arrests. More than 1.5 million people were arrested for drug offenses in 2014. I’ll start with one of my reasons why this doesn’t matter. Count me among those who know that drug sentencing is not the only reason our prisons and jails are full-let all drug offenders out and we’d still have one of the highest incarceration rates in the world, which means we have some tough work to do if we really want to reduce mass incarceration-but that doesn’t mean that drug arrests are irrelevant. Here are four reasons why drug arrests themselves are worth spotlighting, with an initial caveat-drug arrests encompass a wide variety of activity. Simple possession of a limited amount of pot could account for a drug arrest; so could trying to sell meth to a kid. For this analysis, then, I’ll focus on the single biggest contributor to drug arrests: marijuana possession arrests, which account for almost forty percent of all drug arrests.

Reason 1: Racial disparities. Marijuana possession arrests are wildly disproportionate on the basis of race, as any reader of Michelle Alexander knows. If you assume that white drug usage rates are roughly the same as those of people of color (and you can do your own math here), there’s no making sense of the fact that drug arrest rates affect communities of color at such a high rate. One way to equalize this, of course, would be to arrest more white people. I think if we did, we’d start to see the political calculus changing on drug arrests (so watch out, those of you who attend Phish concerts). But at the very least this poses some legitimacy problems for law enforcement, and, as Tom Tyler reminds us, legitimacy is the key to community cooperation, and community cooperation is the key to solving crimes.

Continue reading “4 Reasons Drug Arrests Matter-And 2 Reasons Why They Don’t”