Mimesis Law
10 December 2017

California Prison Reform: The Devil Is Always In The Details

January 30, 2017 (Fault Lines) — One of the few bright spots from the last election was the passage of a ballot initiative that relaxed parole restrictions in the California penal system. The ballot initiative allowed for earlier release of “non-violent” felons, in an attempt to reduce the size of the prison population and avoid another court case. This requires figuring out who exactly is a “non-violent” felon.

A “violent felony” is any of the 23 crimes listed in Section 667.5c of the California Penal Code. For some people, that list isn’t long enough:

State Sen. Patricia Bates (R-Laguna Niguel), who filed a bill to reclassify more than 20 offenses as violent felonies, said there must be a public discussion about the criminal charges she is proposing to add to the list, such as inflicting injury on a child or assaulting an officer with a deadly weapon.

“There are many of them that really need a second thought,” she said. “If you put yourself in the position of a victim in any one of those crimes, you will say, ‘That was violent because that affected me physically and emotionally.’”

The Los Angeles Times did a great job of Analysis by Anecdote, relating the story of cosmetics heir Andrew Luster:

Ventura County prosecutors said [Luster] drugged three women and videotaped the assaults, and a jury convicted him of 86 counts of poisoning, sexual battery and rape of an unconscious or intoxicated person. But with none of his offenses listed among the 23 crimes that California considers “violent” felonies in its penal code, does the state consider him a violent felon?

Let’s check the tape. Item number 3 on the list of violent felonies is

(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.

The relevant parts of Sections 261[1] reads:

(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

(2) Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.

(6) Where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.

But Luster was convicted under paragraph 3 of the same section, which prohibits intercourse

(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets any one of the following conditions:

(A) Was unconscious or asleep. [.]

So Luster might potentially benefit from the new law. But back up…there’s a deeper problem here. As of last week, California’s prison population was 129,092. And yet, the Los Angeles Times decided that the most important thing about the new law is how it would affect exactly one of them, Andrew Luster.

What about the 129,091 that aren’t? To be fair, the Times article (and this one) do a pretty good job of covering some of the other reforms, such as “good time” credits for good behavior and “milestone” credits for completing training courses, counseling and the like. But leading with the anecdote about Luster, it focuses the issue on the most lurid details instead of the big picture.

This leads to sloppy thinking, like that of Senator Barnes, and consequently affects the quality of public discourse. According to his Wikipedia page, Luster isn’t eligible for parole until 2028. It’s much more important to figure out exactly which and how many inmates will be released, under what criteria, and building an infrastructure to ensure that they won’t reoffend. But that stuff is boring, and requires nuanced thinking about how to strike the balance between the attempted rehabilitation of prisoners and keeping the community safe. The effects of the reforms on an individual defendant (or individual victim) is far less important than the effect on California as a whole.

As with any complicated issue, the devil is always in the details. We shouldn’t focus on the irrelevant ones.

[1] Section 262 is the spousal rape statute, and doesn’t apply to Luster.

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