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March 8, 2007

Federalism follies in an age of dysfunctional politics

As I have noted before here and here, the pros and cons of federalism look quite different through the lens of criminal justice.  And this fascinating news report from California spotlights reasons why dysfunctional state politics may lead some state actors to urge federal intervention and control: 

Gov. Arnold Schwarzenegger said Tuesday he welcomes the threat of a federal judge imposing a prison population cap because the strong prospect of court-ordered inmate releases might be the only way to trigger action by an ideologically polarized Legislature.

"I like the idea of a federal judge threatening us, because this is the only way that in our Capitol there will be action created," Schwarzenegger said in a brief interview after touring a prison in the heart of the Southern California media market. "Because for 10 years now, before I came in, they've been fighting about the same problem. They haven't built anything in a decade, but we've seen this increase in inmates. So something is going to happen because of the judge telling us that he's going to take action if we don't."

Schwarzenegger's comments came as he dedicates a week to selling a $10.9 billion prison construction and sentencing overhaul to both the Legislature and the public.  His trip Tuesday to the California Rehabilitation Center in Norco attracted a bevy of media and followed a tough-on-crime press conference he held Monday with Los Angeles County Sheriff Lee Baca and Republican presidential candidate Rudy Giuliani....

The governor also wants to create a sentencing commission that Republicans think would be the state's first step toward letting criminals out of prison before their terms are up.  The governor said in the interview that his corrections fix should hold plenty of appeal for Republicans, mainly billions of dollars to expand prison, jail and juvenile detention space that would accommodate tens of thousands of offenders of all ages at the state and local levels.  As for the Democrats, Schwarzenegger said he envisions a deal that would open the door for changes they want to see in parole and sentencing. "All of that can be worked out as long as we understand all that is on the table," Schwarzenegger said. "Especially knowing that a federal judge is breathing on our neck and that they're going to release a certain amount of inmates." ...

U.S. District Court Judges Lawrence Karlton in Sacramento and Thelton Henderson in San Francisco have both scheduled June hearings as first steps toward imposing inmate population caps. Both judges have suggested they are ready to act in absence of any action by the state to do something about its hugely overcrowded prisons, where some 172,000 inmates in California's 33 prisons and attendant camps and community facilities are now living in space designed for half that many.

March 8, 2007 at 07:20 AM | Permalink


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Funny, the feds do little or nothing to control illegal immigration, which gives rise to higher crime rates and more criminals, which forces California to incarcerate more people (all things being equal) and then federal judges tell California it has overcrowded prisons.

If California is forced to release prisoners by these judges, any crimes committed by said prisoners is the moral responsibility of the federal judges forcing them to do so. And were I a politician, I would, in no uncertain terms, lay the blame there.

Posted by: federalist | Mar 8, 2007 7:50:43 AM

"If California is forced to release prisoners by these judges, any crimes committed by said prisoners is the moral responsibility of the federal judges forcing them to do so."
Not so. If releasing prisoners is the only remedy to unconstitutionally cruel prison conditions, the politicians failing to design other methods of complying with the constitution that don't endanger the public are to blaim. Judges who increase the risk of someone possibly dangerous offending by demanding immediate compliance with the constitution by ordering the release of prisoners are no more to blaim than judges who insure compliance with the constitution by ordering the release, upon completion of a prison sentence, of a violent criminal whom statistics say is likely to reoffend.

Posted by: Jacob Berlove | Mar 8, 2007 12:17:09 PM

Jacob, that, of course, presumes that the Constitution requires release, which it does not. And it presumes the good faith of these judges, which is not a given.

There are lots of district judges in the country who wouldn't do what these judges are proposing to do. The people therefore have a right to question this and to place blame where, in my view, it belongs.

Posted by: federalist | Mar 8, 2007 1:27:01 PM

federalist: Before you make the all-so-popular claim that the "feds" are not doing much on the illegal immigration front, I suggest you do some cursory research. Look to the number and length of federal sentences being imposed for illegal re-entry cases. Just the latest data from the USSC show that “immigration” offenses account for nearly 25% of all federal sentences, with 97.4% of those defendants being sent to prison, with an average term of almost 2 years. See http://www.ussc.gov/sc_cases/Quarter_Report_1Qrt_07.pdf, Tables 18, 20; Figure J. And from experience, I can tell you some illegal reentry defendants get sentenced to 8 or 10 years as a result of previous convictions for minor ($10) marijuana deals.

Also, what is the source to support your claimed correlation between illegal immigrants and higher crime rates? You assume illegal immigrants will automatically commit crimes when they get to the U.S. Please, before you make such remarks, you need to work off the xenophobia your previous post smacks of.

Posted by: DEJ | Mar 8, 2007 1:43:30 PM

DEJ, there is little doubt that illegal aliens, as a group, are more likely to commit crimes than many segments of society. That's not xenophobia, that's a fact. And it's not an assumption that all illegals will commit crimes--it's just noting that their presence increases crime (and the crime rate)--crime that the State of California has to deal with. Heather Macdonald has written a ton on this, by the way.

Second, your stats don't disprove my point at all. California has to deal with illegal alien criminals. Thereotically, the presence of any illegal alien in this country is a failure of the federal government. Thus, California is put in the position where it must let criminals go (by order of a federal judge) or spend a lot more money because the federal government has not prevented the presence of illegal aliens, which are increasing the amount of criminals which California has to lock up. Additionally, your stats don't tell of how many alien criminals are here either. (By the way, the sentence for a violent criminal who re-enters ought to be, at a minimum, LWOP.)

And DEJ, if you think that illegal aliens don't contribute to the crime problem in California--tell you what, why don't you buy a place where there are large concentrations of illegal aliens and their children. Let me know how that goes . . . . The point, of course, is that there is no way in hell that you would do that. But you'll call me xenophobic. Cute.

Posted by: federalist | Mar 8, 2007 2:28:39 PM

Once again, federalist touts the neocon, Federalist Society party line. It's so transparent it would be laughable if so many didn't fall for it. The argument implies these federal judges should jump down to the boarder and join on the Minutemen, except for one thing, and that is this little thing called the Separation of Powers.

The state passed over 1000 new laws, stiffening sentences for some felonies or making new felonies. California is as responsible as those they imprison. The state made its bed, now it has to lay in it, and it had plenty of warning. If you want to play, you have to pay.

The call for so many more prisons is also laughable. The U.S. leads the world in incarceration, and to say it is because we have more crime is also laughable. The reason we have more crime is because we have more dumb laws that make criminals. A study done in Texas found that the average college student owed the state on average about 2 1/2 years in prison. College is hardly where we would normally look to find hardened criminals. In Cruel Justice: Three Strikes and the Politics of Crime in America's Golden State, Joe Domanick mentions a Republican strategy meeting, where someone asked, "Who here hasn't committed a felony"? They all laughed in agreement. When everyone is a criminal, no one is.

These wackos are far more dangerous to the foundations of our great county than the majority of Mexican Nationals are, illegal immigrants or not.

Posted by: George | Mar 8, 2007 3:20:38 PM

federalist: It always amuses me to read your unsubstantiated claims, especially when they prove you don't know what you're talking about.

First, your claim that "there is little doubt that illegal aliens, as a group, are more likely to commit crimes than many segments of society." Just because you repeat the point and say there is little doubt about something, does not make it more accurate.

Second, my stats were merely meant to rebut your baseless allegation that the "feds" were doing little or nothing about immigration. Certainly, when 25% of DOJ's sentences are for immigration offenses, that's doing something.

Third, and THIS I truly love pointing out to you, is the fact that I do live in a very diverse neighborhood where there are in fact large concentrations of illegal aliens. I live in a townhouse a few blocks from apartments and shared row houses where illegals reside. I talk to them (if the know English), I ride the bus with them, they help me shove snow, they walk their dogs past my house, I go to their restaurant 3 blocks from my house, and I have even given them rides (b/c they can't get a license). And guess what, gaasp, they didn't carjack me. In fact, they've never committed a crime against me and the neighborhood isn't falling apart like you would want to believe. I'll tell you how it's going: it's going great!

Also, some years back, I lived in SO CA for a summer between school years, again, I did live in a neighborhood with a large concentration of illegal immigrants. I went to the same restaurants/bars as them and at my request they tried to teach me Spanish. And, gasp again, no crime was comitted against me. That summer went pretty well too. (I know, I must have just been meeting all the good illegals.)

So, when you say "of course" there's no way in Hell I'd do that, you'd be wrong. And you prove that the more you say "of course" (as you often do), the more you show that you do not know what you're talking about. Now would I go move to an intercity area that has a high crime rate? No, but I'm sure illegals reside there just like they reside in my neighborhood. The crime rates of those areas would be high, with or without illegal immigrants.

Do I think being an illegal alien is right? No. But is it because I think they have a propensity to commit crime? No.

Finally, I never called you xenophobic. I don’t know you, so I wouldn't make such an allegation. I only said your post sounded xenophobic. Someone sounds a little defensive.

Posted by: DEJ | Mar 8, 2007 8:21:43 PM

With 12 million illegals in this country, I think it perfectly defensible to say that the feds are doing little or nothing.

Second, that most illegal aliens are decent folks does not mean that, in the aggregate, their presence here does not adversely impact the crime rate or the amount of people California needs to incarcerate. That does not make a post xenophobic, any more than pointing out racial differences in criminal behavior makes a post racist. Things are what they are.

Third, I'm glad that you have lived in a nice place with a large concentration of illegal aliens. However, there are large swaths of areas in SoCal populated predominantly by illegal aliens and their offspring which, I can assure you, would not be safe for you, or, by the way, people like Cheryl Green.

The bottom line is that the feds have not been successful in an area which is their responsibility. And that has had an impact on California's prison system, and federal courts are threatening California with forced reductions in its prison population. There is something ironic about that. And something bad about it as well.

Posted by: federalist | Mar 9, 2007 8:21:02 AM

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