Cynthia Mendoza’s first pregnancy, in the free world, was a time of enveloping love and anticipation. But in 2006, six months into her second pregnancy, Mendoza was arrested and jailed pre-trial in a Lynwood facility overseen by the Los Angeles County Sheriff’s Department. Once there, she was sent to solitary confinement, where every good thing she remembered about pregnancy became a horror. “I had nobody to talk to, I had nobody to comfort me,” she told me. Cut off from human contact and the warmth of the sun, Mendoza’s mental health quickly deteriorated. Her access to proper nutrition was so poor that her hair started falling out.

Mendoza gave birth shackled to a hospital bed, and she only got to spend three days with her newborn son. On the third day, jail officials handed him off to her father. Then, already suffering from postpartum depression, she was sent back to solitary confinement. “It felt like I was just stuck in this black cloud, and I could not see a foot in front of me,” she said. She would remain there for nearly three more years—all while she was still innocent in the eyes of the law. 

Some 16 years later, in 2022, a broad coalition of organizers in California introduced an ambitious bill to limit the use of solitary confinement in the state’s prisons, jails, and detention centers—and outlaw it entirely for pregnant people, as well as a few other categories of vulnerable individuals. They called it the Mandela Act after the South African leader, who was held in solitary confinement for at least six of the 27 years he spent jailed. “Solitary confinement, if done a certain way, drift[s] into the area of torture—and these are correctional facilities, not torture camps,” California Assembly Member Chris Holden, the bill’s sponsor, told me. 

Mendoza watched the bill’s progress with excitement. If it passed, she thought, no one else would have to go through what she did. No other children would have to grow up, like her son had, grappling with the realization that the time they spent in their mother’s womb had been, for her, a time of total deprivation and isolation. 

In 2022, the Mandela Act was passed by the state legislature, but California Governor Gavin Newsom vetoed it. In 2023, organizers negotiated with the governor’s office to try to come up with a compromise of the Mandela Act that he would consider signing into law. Then, this year, a different organization picked up the Mandela Act’s provision banning solitary for pregnant people and included it in a separate bill focused on improving nutritional standards for pregnant and postpartum women in custody.  

While the Mandela Act stayed stuck this year, this new, narrower bill was adopted by lawmakers in August and signed into law by Newsom in September. But by then, it had grown so unrecognizable to its original community sponsor that they withdrew their endorsement.

The initial bill would have banned solitary confinement for anyone who is pregnant in a California jail, detention facility, or state prison. The version that became law no longer applies to local jails and detention centers, meaning that someone like Mendoza wouldn’t be covered. 

And instead of outright banning solitary confinement, it capped the number of days it can be used. But the result is that the new law expressly allows prison officials to put pregnant women in isolation for up to five days at a time in certain cases. Advocates are alarmed that, for the first time, the legislation has codified in California law that it is permissible to use solitary confinement against pregnant women.

The divergent fate of the two bills is a tidy illustration of what can happen to grassroots efforts to change criminal legal policy in the face of two powerful forces: the California prison system, which enjoys great influence over the state’s elected leaders and tends to resist efforts to impose limits on its authority; and Newsom, whose efforts to style himself as a national leader on prison reform have often involved letting that system guide how and when it wants to change. 

Keramet Reiter, a law professor at UC Irvine who wrote a book on the rise of solitary confinement in California, was frank in her assessment of the new law. “This is an abomination,” she told me. “There are categories of people who unequivocally never, ever should be in solitary confinement, and one of them is pregnant women.”

The debate over solitary confinement in California has been a multi-decade battle between the California Department of Corrections and Rehabilitation (CDCR) on one side, and the prisoners it puts in solitary confinement on the other, alongside survivors of the practice and their family members and supporters. In 2013, a historic prisoner hunger strike organized by four men in solitary confinement at Pelican Bay led to a lawsuit and eventual settlement, Ashker v. Governor of California, that was meant to lead to significant changes, including an end to the practice of indefinite isolation, which left people languishing in solitary for years on end with little recourse.

But in 2022, when Holden introduced the Mandela Act, he told me that the bill was partially a response to CDCR’s failure to abide by the reforms laid out in Ashker. “CDCR, you have been told by the courts to change how this solitary confinement process works and how it’s being utilized—and to no avail. So we write a bill to say, ‘Okay, we’re just asking you to do what the courts ask you to do,’” he said.

In California, 10 percent of all state employees work in corrections, and their union, CCPOA, has a great deal of lobbying power in Sacramento. The association regularly flexes its muscle via political donations, but its spending on Newsom has been especially notable: the union sunk $1 million into TV ads promoting his gubernatorial run in 2018, and they have more recently spent $1.75 million opposing the recall effort and $1 million on Proposition 1, Newsom’s marquee mental health treatment plan. The latter two expenditures alone represent nearly a third of all CCPOA’s political donations since 2001, according to a recent Cal Matters analysis. 

Newsom has championed some aspects of prison reform during his nearly six years as governor, moving to shut down some facilities and placing a moratorium on the state’s use of the death penalty. But he has also overseen raises and perks for prison guards that even California’s office of legislative analysis found unwarranted. And after the same office determined that five more prisons could be shut down, Newsom declined to implement further closures. (The governor’s office did not respond to a request for comment for this story).

Solitary confinement has remained a cornerstone of prison officials’ strategy for managing incarcerated populations, as they insist that they need to be able to continue to separate people from the general population for safety reasons. And Newsom has repeatedly erred on the side of trusting CDCR’s discretion and allowing the agency leeway to shape its own policy on this issue. (The CCPOA officially opposes the Mandela Act.)

Reiter, however, contends that it’s not an all-or-nothing decision. “Certainly people get in situations in prison where they need to be removed from the rest of the population, but there are ways to do that without restricting their access to natural light, to human contact, to time out of their cell,” she told me. To Reiter, Newsom’s willingness to let CDCR guide its reforms casts doubt on his stated commitment to changing the state’s carceral system. “It raises real questions to me when a governor who claims to be so invested in reform defers again and again in these ways,” she said.

In 2022, after the Mandela Act made it to the governor’s desk, Newsom returned it unsigned. In his veto message, the governor called the bill “overly broad.” He granted that solitary confinement in California was “ripe for reform,” but chose to put the prison system in charge of overseeing that reform, directing CDCR to implement changes to its solitary confinement policies. 
The department waited nearly a full year to do so, until the Mandela Act was once again being debated and nearing the final deadline for Newsom to sign or veto bills. Then, it proposed its own policy changes that would reduce the number of offenses that land someone in solitary and raise the number of hours of mandatory out-of-cell time to 20 per week, meaning that someone in solitary confinement could still be held in their cell for more than 21 hours per day.

At the same time, Newsom’s office was seeking to winnow the Mandela Act into a data collection bill that outlawed solitary only for pregnant women. The Mandela coalition refused these changes, considering them an unacceptable compromise that would allow Newsom to tout a seemingly progressive reform while failing to address the structural problems with prison isolation. Instead, they opted to pause on the legislation in order to keep negotiating with the governor the following year. They already had all the votes they needed in the state Assembly to get it back on Newsom’s desk: “We were simply parked right outside the governor’s door,” coalition member Hamid Yazdan Panah, co-executive director at Immigrant Defense Advocates, told me. 

But come 2024, Newsom wouldn’t engage. The coalition tried to negotiate, but they didn’t get far. In late July, a staffer from the governor’s office emailed the coalition to let them know the door was closed, referencing the recent CDCR changes as justification. “Given CDCR’s relatively recent update to their regulations on the use of [solitary] the [Governor’s office] isn’t comfortable making further changes to [solitary] policy this year,” he wrote.

Meanwhile, organizers with the gender justice organization Essie Justice Center, based in LA and Oakland, were trying to advance separate legislation that would improve the treatment of pregnant people in custody. As initially conceived, Assembly Bill 2527 included a blanket ban on solitary confinement for pregnant women in jails, detention facilities, and prisons across the state. 

Assembly Member Rebecca Bauer-Kahan, the bill’s legislative sponsor, had also supported the Mandela Act, but she told Politico that she wanted to ensure these sorts of protections regardless of whether Mandela made it through. But the bill’s focus on pregnant people happened to resemble the narrowed version of the Mandela Act that Newsom’s office pushed in 2023. “Internally within Sacramento or in the capital, I think this bill was pitted against the California Mandela Act,” Essie policy associate Ellie Virrueta Ortiz told me. Virrueta Ortiz believes that legislators and the governor’s office “wanted this to be the smaller, narrower, much more palatable version.”

This summer, as they worked on drafting the bill, Bauer-Kahan’s office called together policy representatives from Essie as well as CDCR. The prison officials were pushing for an exception to the blanket ban: If the move was for their own protection, pregnant women could still be housed in solitary confinement for up to 10 days at a time. 

When I reached out to CDCR asking why they would advocate for this sort of exception, the department’s press secretary responded: “By moving the person from their housing (often a dormitory environment) to a more protective area, CDCR is allowed a window to determine a safe housing alternative. The bill also includes provisions for CDCR works to ensure the pregnant person is allowed to remain enrolled in their programs.”

Essie’s representatives pushed back. The group’s executive director, Gina Clayton-Johnson, told me that their group wasn’t opposed to amending the legislation, but the exception that CDCR was asking for was a bridge too far. 

“No amount of solitary confinement of a person while they’re pregnant is ever fine,” she said.

Soon after, Bauer-Kahan’s staff informed Essie that they had accepted a version of CDCR’s request: The bill was being amended to allow up to two days of restrictive housing at a time for pregnant people. A subsequent draft of the bill raised the time limit from two to five days. Bauer-Kahan’s office didn’t respond to my request for comment.

When Essie’s members saw the new draft that had been submitted to the Senate Appropriations Committee, they learned that it no longer applied to pregnant women held in jail or immigration detention facilities. 

For Essie, this news was a gut punch. “It was something that really, truly was last minute and was unexpected,” Virrueta Ortiz told me. “We know that the real problem is in the jails.” 

Vanessa Ramos, a community organizer with Disability Rights California and a survivor of solitary herself, didn’t mince her words: “The California legislature is viciously and violently co-opting bills from the community, encouraging folks to take obnoxious amendments that not only water down the bill, they create a false narrative that the California legislature is working with CDCR and county jails, to improve conditions—and they’re not,” she told me. 

When organizers with Essie reached out to the coalition supporting the Mandela Act to ask their advice, a member offered language that would enshrine the sort of provisions Reiter outlined: safe isolation that still allowed out of cell time and proper medical care. Bauer-Kahan’s office didn’t accept these amendments.

Finally, Essie made the difficult decision to withdraw their support for the bill. “So many human rights groups had really called us and said, ‘This is not something that we want to see in the state,’ and we really had to listen to that,” Clayton-Johnson said. Over 80 organizations sent a letter to Bauer-Kahan and Newsom expressing their opposition. They urged the governor to veto the bill. A day of action that was originally intended to galvanize supporters of the Mandela Act but became a protest against AB 2527 instead, where Mendoza spoke about her experience in solitary. “It was the most degrading, inhumane thing that I’ve ever gone through,” she told the crowd, her voice shaking. 

But it was too late. The bill breezed through both chambers. “No one paid attention to it, because everyone thought it was the same bill as before,” Yazdan Panah said. On Sept. 27, Newsom signed it into law, leaving the coalition outraged that California had explicitly enshrined into its statutes the use of solitary confinement for pregnant women.

This development “follows a decades-long pattern of nominal reform in this state where the prison system in particular gets just one millimeter ahead of the bare minimum with their policies,” Reiter said. “It feels like reforms that are calculated to avoid actual reforms.”

For now, the fate of the Mandela Act is uncertain, but organizers vow to continue the fight. Ramos credited the veterans of the fight to end solitary confinement in California for refusing to give in to efforts to water down the bill. “The Mandela Act could have very easily been passed, but the receiving end would have been some fucked up bill,” she said. “The Mandela Act has not passed because of the integrity of the people that are leading these efforts.”

“I don’t see the movement slowing down,” Reiter said. She outlined a number of positive changes that have occurred since the days of the 2013 hunger strike: vastly more public attention on the harms of solitary, policy changes that have ended indeterminate confinement. “But are we still overusing solitary confinement? Is the ultimate winner still the Department of Corrections, who’s shown again and again that they’ll set the policies and the terms and that they control the elected politicians?” she said. “So we have a long way to go.”

Holden, the Mandela Act’s sponsor, is termed out of the state legislature this year. I asked him for his reflections on the bill’s future after three unsuccessful legislative sessions and whether he believes that CDCR can reform solitary confinement by itself. 

“If there’s a system that’s working for some, they don’t think that it really needs to be modified to any great extent, then they’re not going to necessarily have the motivation to see that extended change happen,” Holden said. He also noted that CDCR still has never fully complied with the Ashker settlement requiring extensive changes to the state’s use of solitary confinement—and, as of this January, the settlement is now closed. “I think that CDCR is now able to operate in a lane of making the changes that they see appropriate to make, unless directed by the legislature to do something different,” he said. “And that time has not yet come.”

Cynthia Mendoza’s son is 18 now, but the conditions of his birth linger. “It definitely has affected him,” she told me. He has a hard time talking about it, she said, but lately, “we have been working on his feelings and what he went through, having to be born in jail, and then having to visit his mom in prison.”
It remains a tough subject for Mendoza as well, but she told me that she will continue to speak out about her experience despite the difficulty of revisiting the worst moments of her life. “I will never lose hope that my story can help change the narrative for other women,” she said.

The post On Solitary Confinement, California Officials Side With the Prison System—Again appeared first on Bolts.

By international human rights standards, Jack Morris was tortured by the state of California for almost four decades. 

Morris mostly lived in solitary confinement from the time he went to prison in 1978, the year “Grease” was released, until he got out in 2017—alone 23 hours a day inside a cell the size of a parking space, shut off not just from the outside world, but also from the bonds and makeshift society that develop behind prison walls. He was only allowed phone calls whenever a close family member died. Over time, his sensory perception changed and small sounds made him jump. He stopped caring to watch TV, and eventually shifted from desperately craving human contact to withdrawing into himself and no longer wanting to speak with others. 

“It’s a slow, torturous event that slowly deteriorates you, both physically and mentally, emotionally and spiritually, until you no longer exist,” Morris told Bolts.

In 2013, while still imprisoned, Morris took part in a historic hunger strike protesting the pervasive use of solitary confinement inside the California prison system. “We all understood that if there wasn’t something done, we would all simply die inside those cells,” he said. Pelican Bay State Prison, the supermax facility where Morris spent much of his incarceration, had around 1,100 solitary cells in its “Secure Housing Unit,” or SHU, at the time of the hunger strike, with more than 500 people confined there for over a decade. People accused of belonging to a gang could be held in solitary indefinitely. The 2013 strike, organized by four prominent gang leaders who had been isolated for decades inside the SHU, saw some 30,000 prisoners from around California participate on its first day. Some managed to stretch the protest out for sixty days and ultimately helped push the state to agree to new limits on the use of solitary confinement, like more out-of-cell time and programming. 

Morris still remembers the morning the 2013 hunger strike began. It was early, and he was still lying in bed when a friend yelled through the bars and told him to look at the TV. 

“I look at the ticker tape at the bottom, and right there it said on national news, ‘30,000 California prisoners on hunger strike,’ and it was—it was amazing,” Morris told Bolts. It was their third hunger strike in recent years, but this one felt different, he said, with more coordination between prisoners and allies on the outside. With the whole country watching, change finally felt possible. “We were fortunate to have litigation taking place and family members yelling at the top of their lungs on the street corner and we finally got legislators to listen when the news broadcasted that 30,000 prisoners were not gonna eat no more,” Morris said. 

Last year, the California legislature took action to restrict the use of solitary confinement in the state by passing the Mandela Act, legislation that would curtail solitary beyond 15 consecutive days and no more than 45 days in a 180-day period. The bill seeks to codify the United Nations’ Nelson Mandela Rules, adopted last decade to define solitary confinement beyond 15 consecutive days as torture, so named in honor of the South African leader who spent 18 years languishing in isolation while imprisoned.

But California Governor Gavin Newsom vetoed the Mandela Act last September, arguing in his veto statement that the new restrictions “could risk the safety of both the staff and incarcerated population within these facilities.” Newsom, who acknowledged “the deep need to reform California’s use of segregated confinement,” said that he would also direct the state’s prison system, the California Department of Corrections and Rehabilitation (CDCR), to “develop regulations that would restrict the use of segregated confinement except in limited situations.” 

That still hasn’t happened. CDCR told Bolts that the department merely plans to file a draft of new solitary regulations with the state by the end of 2023.

With no movement since lawmakers passed the solitary reforms last year, advocates for ending the practice—including Morris and other survivors of prolonged solitary confinement—are once again urging Newsom to support the Mandela reforms, which have been filed again for this legislative session under Assembly Bill 280.

Pasadena Assemblymember Chris Holden, who sponsored both bills, said he wants to bring California in line with international standards on imprisonment. His bill, like last year’s version, aims to end prolonged solitary in state prisons as well as local jails, which are run by county sheriffs, and immigrant detention centers, which are often run by private companies. 

Holden told Bolts that he has been discussing the bill’s language with Newsom’s office and that the legislation could still change depending on what the governor supports. As written, the bill would ban the use of solitary entirely for young and very old prisoners, people who meet the state’s criteria for physical or mental disability, and those who are pregnant or recently postpartum. But Holden said that he was willing to budge on some of these categorical exclusions after Newsom’s office communicated that the governor would still not support them. 

While Holden said he’s open to “reasonable” proposals from Newsom or CDCR to tweak the bill, he vowed to persist in making significant changes to solitary confinement as it is presently used. “The current system, as we speak, it meets the definition of torture,” Holden told Bolts. 

Experts who have studied the decade-long movement to end solitary in California prisons say it’s unrealistic to expect CDCR, which resisted full implementation of policy changes wrought by the 2013 hunger strike, to reform the practice on its own. “Day to day, when you look at solitary confinement use, the state is still putting big numbers of people in solitary confinement for long periods of time, under new names, in new places,” said Keramet Reiter, a law professor at the University of California, Irvine who wrote a book about long-term isolation at Pelican Bay. “In practice, these institutions are just incredibly resistant to reform.” 

As solitary confinement grew more controversial in recent years, California prison officials have labeled prolonged isolation “administrative segregation” or a host of other terms that have helped conceal the reality and scope of the practice. The Mandela Act seeks to cut through this obfuscation by clearly defining it: isolation without programming for more than 17 hours a day. 

“What’s really interesting and almost comical if it wasn’t so horrific is the way that [authorities] and law enforcement play this like cat-and-mouse game about solitary confinement and pretend like solitary confinement doesn’t exist because they call it all these different names,” said Hamid Yazdan Panah, an attorney and the advocacy director at Immigrant Defense Advocates, which has been pushing for the Mandela reforms. 

In the years leading up to the 2013 hunger strike, nearly 12,000 people were held in solitary at any given time across the California prison system. Immediately after the strike forced some changes, prisoners at Pelican Bay filed a class action lawsuit trying to end the practice of indefinite isolation for alleged gang members, who were named as such via a shadowy process called “validation” that could take as proof a person’s tattoos, clothing, or someone else’s confidential testimony. While the prison system technically re-evaluated such prisoners every six years, the plaintiffs said that there were only three ways out of isolation—snitch, parole, or die —and one of those routes, becoming an informant for CDCR, could carry fatal consequences.

That lawsuit ended in a settlement with the state prison system, which promised to end the practice of indefinite isolation and release almost all of the people in prolonged solitary confinement back into the general population. But today, though there are many fewer people in prolonged isolation than before, advocates point out that solitary confinement is still widely used in California. As of the end of April 2023, CDCR reports that 3,446 people are in some form of isolation, and that’s not counting the many people in jail or immigration detention who also find themselves in solitary. 

While opponents of the Mandela Act argue that solitary is a necessary tool to protect prisoners and guards from violent individuals, advocates for ending it say isolation is imposed on an array of vulnerable people behind bars. Eric Harris, director of public policy at Disability Rights California, one of the organizations leading the fight for the Mandela Act, says isolation is often a default response to people seen as different or disruptive, including people with mental illness, physical disabilities, and gender-nonconforming people. 

“When you look at folks who are often mistreated in these settings, or misunderstood in these settings, most of them have some form of disability, whether it’s been diagnosed or not,” Harris told Bolts.

It’s not uncommon for prison guards to wield solitary confinement as retaliation against people who agitate for their rights on the inside. “A lot of the folks that I’ve seen that were put in solitary were jailhouse lawyers to silence them,” Mike Saavedra, who was held in long-term isolation for over a decade, told Bolts. “They’d threaten you once you file a 602 [complaint about prison conditions] or any type of lawsuit to throw you in the hole.” Once there, he said, “they can control your litigation because now you have minimal access to the law library…you’re only allowed a small number of books.” 

Saavedra, who is now the co-director of legal support at the Los Angeles-based abolitionist organization Dignity and Power Now, says he was put in isolation after he was elected to an advisory council tasked with communicating fellow prisoners’ concerns to prison leadership. “Those that got that position were typically then labeled as shot callers and sent to solitary,” he said. Undeterred, Saavedra kept filing lawsuits disputing the conditions of his confinement, as well as the validation process that kept him there.

As hard as it is to track isolation practices in CDCR, it’s even more challenging in California’s jails, which are overseen by the state’s 58 county sheriffs rather than one state department, and have no shared guidelines or metrics for the use of solitary confinement. Sacramento and Alameda counties are both under federal consent decrees owing in part to their use of solitary confinement for people in jail with mental health conditions, with the practice emerging as a focal point in last year’s election for Alameda sheriff. 

The Mandela Act would make California the first state to restrict solitary confinement inside immigration detention, where it is also frequently used, and bring the practice into compliance with international standards. “They just put people back there for any reason,” said Salesh “Sal” Prasad, who was turned over to ICE for deportation after being released from CDCR custody, despite having lived in the U.S. since he was six years old. Prasad spent around four of the 15 months he was in immigration detention in solitary confinement, including a time when guards put him there “for his own protection” after his mother got COVID-19 and passed away suddenly. He never got to see her. 

In solitary, Prasad found himself overwhelmed by grief, and unable to suppress a fountain of traumatic memories from his childhood. “The negative thoughts start coming in and it takes over your mind,” he told Bolts. 

Isolation can also be used to quell protests inside immigration detention. Last summer, guards responded to a labor strike by Prasad and other immigrants detained at two facilities in California’s Central Valley by throwing some of them in solitary. And both Prasad and Yazdan Panah say that isolation is often employed to encourage people to give up fighting their immigration cases. “We see that time and time again—people are placed in really inhumane conditions, in part because they want to build pressure to get people to self-deport and to continue to sort of keep the conveyor belt going,” Yazdan Panah told Bolts. 

Last session, Yazdan Panah said, opponents of the Mandela Act were able to sow doubt about the bill by advancing the narrative that the only two options for incarcerated people are solitary confinement or the general population. “The hypothetical that they love to give is that according to our bill, someone can kill their cellmate and the facility can put that person in solitary confinement for 15 days, and then after that, they would have to go back to the general population to ‘kill again,’” he said. In fact, Yazdan Panah said, someone who engaged in violence toward others could still be housed individually; the bill merely stipulates that the prison must increase the person’s amount of meaningful human contact and out-of-cell activities. 

The bill was also hampered by high-cost estimates and the charge from detractors that it would require massive new construction across CDCR. “It’s sort of an interesting and diabolical argument because no one in California wants to expand or build new prison space,” said Yazdan Panah, whose organization has countered that the bill would only require an expansion in programming, and would save the state money in the long term.  

Advocates for reform say that continuing to lean on solitary confinement only perpetuates the harms from which it claims to shield people. Reiter noted that the emotional and psychological damage that isolation engenders, especially the way it has been used in juvenile facilities, contributes to a more dangerous and volatile environment for people in prison. Harris told Bolts that no one makes it out of solitary unscarred. “Every single person that we’ve been working with who’s a solitary survivor, has said that they have some form of mental health disability, whether it’s PTSD, whether it’s anxiety, depression,” he said.

Though Prasad has been out of ICE detention for nearly six months and recently won his asylum case, he’s often brought back to those long months in isolation—the cold, the walls closing in, the smell of human beings living confined in such small spaces. “It weighs on you,” he said. “Those are four months that I can’t get back.” Prasad called his months in solitary confinement “dead time.” 

As the 10th anniversary of the 2013 hunger strike approaches this summer, Newsom’s veto of the Mandela Act last year looms over discussions for how to curb solitary confinement. Advocates maintain the veto doesn’t necessarily mean Newsom won’t budge on the issue this time around, stressing increased attention on curtailing solitary both in Sacramento and around the country. 

“We have over 20 states working on legislation or litigation around the use of solitary confinement, in some states even holding bipartisan support,” said Dolores Canales, the co-founder of California Families Against Solitary Confinement, who is herself a survivor of solitary confinement. Canales’ son was also in the Pelican Bay SHU during the 2013 hunger strikes. 

Newsom’s office didn’t answer questions about how he’s approaching the Mandela reforms this year or whether his position has changed since last year, with a representative for the governor telling Bolts that his veto message “speaks for itself.” CDCR told Bolts that the department “anticipate[s] filing draft regulations with the Office of Administrative Law by the end of the year,” but did not respond to a follow-up question asking for more detail on the content of the regulations. 

To Yazdan Panah, these promises were cold comfort. “The issue of solitary confinement has been front and center in California now for more than a decade,” he said. “CDCR has been unable—or unwilling is maybe a better term—to comply with the terms of the Ashker settlement that they themselves agreed to in 2015.” And the governor, he said, had “completely punted on the issue of jails and private detention facilities.”

Even if the Mandela Act becomes law, enforcing it will present considerable challenges. In 2021, New York’s HALT Solitary Confinement Act outlawed solitary confinement for more than 15 consecutive days, and otherwise greatly limited the practice, but today, over a year after it took effect, the law is far from fully implemented. The same year, voters in Pittsburgh overwhelmingly approved a ballot referendum to ban solitary in the county jail, which has been accused of continuing the practice in violation of the new law. 

“The good that the act is doing is keeping the conversation going and the spotlight shining on them,” said Reiter. “In practice, it’s a sweeping reform that will be hard to implement and track.” 

Enforcing the law in immigration detention, which is technically overseen by the California attorney general but generally operates farther outside the purview of the state, would be particularly challenging. And, as it has done again and again, CDCR could always find new ways to skirt the definitions imposed by the Mandela Act if it passes. But activists for ending solitary take the long view, saying the Mandela Act is a critical next step in their much longer fight against a tortuous and intractable practice. 
“When we first got involved, I remember families used to tell us, ‘Oh, my loved one’s never gonna get out’ or ‘My loved one says nothing’s going to change,’” recalled Canales. “And I thought to myself, it has to change. And as long as we keep thinking that it’s not, that’s how it will be.”

The post Survivors of Solitary Confinement Face the California Governor’s Veto Pen appeared first on Bolts.

At first glance, a Dutch safe consumption site looks like any other clinic. Patients walk into a sterile medical environment and are taken to a cubicle with a sink to wash their hands. From there, they approach a metal table, where they take illegal drugs, under supervision from trained medical professionals.

Each of the more than two dozen safe consumption sites across the Netherlands provide a hygienic, judgment-free space where drug users, typically five at a time, can bring their drugs and consume them without having to worry about legal repercussions while under the care of medical staff who help minimize risk. 

“Suddenly, people that are normally out on the street who are completely alone and isolated find a place where they actually have a connection,” says Roberto Pérez Gayo, a policy officer with Correlation European Harm Reduction Network, and coordinator at International Network of Drug Consumption Rooms. His research into dozens of safe injection sites has found that, besides protecting people’s lives who may otherwise overdoses, these spaces can also at their best provide other services that meet clients’ various needs in tandem: addiction, the need for housing, medical care and mental health challenges.

Safe consumption sites have helped the Netherlands reduce overdose deaths since a peak in the 1980s, and the nation has since become a global leader in the movement for safe consumption. But as overdose deaths spike more than 5,000 miles away in California, Governor Gavin Newsom just this August killed legislation that would have allowed cities to set up similar safe consumption sites. 

Newsom vetoed Senate Bill 57, which would have created a pilot program allowing Los Angeles, Oakland, and San Francisco to open safe, supervised spaces for people to use drugs without violating state law. After his predecessor vetoed a similar measure, Newsom told voters during his 2018 campaign that he would be “very, very open” to safe consumption sites if elected. But in a letter explaining his own veto this year, he claimed that opening the sites “could induce a world of unintended consequences,” such as “worsening drug consumption issues.”

However, study after study has found the opposite; that offering people a safe place to use drugs can significantly improve public health. Indeed, there has never been a reported overdose death in any official safe consumption site in the world. Advocates for harm reduction in the Netherlands say the country’s experience shows the importance of working collaboratively with policymakers, law enforcement, city leaders and most importantly, local residents to create places where potentially harmful drugs can be used safely. 

Machteld “Mac” Busz is Executive Director of Mainline, a quarterly magazine and advocacy organization that was founded in 1990 on the principle of harm reduction, encouraging the safer use of drugs instead of abstinence, and advocating for the treatment of addiction through a public health approach instead of incarceration. 

“We know that [safe consumption is] going to prevent all sorts of infectious diseases. It improves people’s quality of life, and it reduces overdose death,” said Busz.

While the Dutch have famously tolerated cannabis use and in the 1970s decriminalized use of many hard drugs, few services existed for those seeking to consume drugs safely at the height of the crisis in the mid 80s. An estimated 25,000 people used regularly, sometimes in public, and often shared needles, which littered parks and city streets. HIV spread to as many as a quarter of the country’s intravenous drug users; overdoses were a top health concern and drug-fueled street crime was rampant. 

On display in the hallway leading to Mainline’s offices is one portion of a multipart photo exhibit “House of HIV” exploring the HIV epidemic through the lens of the communities affected by it, created on the 40th anniversary of the first reported case of HIV in the Netherlands. 

House of HIV chronicles how activists mobilized to distribute clean needles and methadone, educating users about high-risk behavior. One black and white photo shows an activist giving a police officer a copy of Mainline, part of a years-long campaign to convince officials to abandon the criminalization of addiction for a harm reduction approach. Law enforcement officials went on to become important advocates of harm reduction and safe consumption sites, Busz says. 

After a decade of advocacy from organizers and lawmakers, the Netherlands authorized safe consumption sites in 1996. By 2019 there were 37 operating across 25 cities, the highest concentration in the world. 

While selling drugs like heroin remains illegal today, drug users in the Netherlands are met with resources, not incarceration. The sites offer access to clean needles and alternatives to heroin, such as methadone, as well as educational materials about harm reduction, social services, housing and healthcare. Proponents say this approach is responsible in part for the Netherlands having a tenth of the overdose rate that exists in the U.S., as well as a far lower crime rate.

“People resort to crime out of necessity,” says Busz. “If people instead can access a substitution program where at least they don’t have to chase after their drugs and money anymore, that leads to a significant reduction in crime,” she says, noting studies that have shown these alternatives to incarceration are also far more cost-effective. 

But it’s a mistake to think simply opening safe consumption sites can solve the opioid epidemic, says Gayo. The Dutch experience has found that these sites are most effective when paired with comprehensive social services, such as housing where consumption is allowed, and mental health support. 

Some sites operate within existing housing or medical facilities that serve areas struggling with addiction. Others serve marginalized populations, such as migrants or those experiencing housing insecurity, by offering a place to foster community. Once inside, users find a space that resembles a living room with couches and tables where they can consume drugs, rest, or listen to music with others. Staffers stand by in case of emergencies and build relationships with clients.

This communal environment helps officials connect clients with medical, mental health and drug treatment as well as educational and employment opportunities.

“Each of these facilities has to be contextualized within particular communities,” says Gayo. “Drug consumption rooms work, but in order to work, we need to have a bigger conversation about how to tackle the social inequality that produces negative health outcomes in marginalized and underserved individuals and communities.” 

The number of safe consumption rooms in the Netherlands has fallen as intravenous drug use decreases, with the population that continues to use these drugs aging. Experts attribute this to both the success of the educational efforts of the harm reduction movement, and shifting drug consumption habits among younger generations.

Overdose has been the leading cause of accidental death in the United States since 2017, a trend largely driven by the increased use of fentanyl, a synthetic opioid that is lethal even in small amounts. In California, 10,416 people died of an overdose in 2021, nearly double the 2018 death toll. And by April 2021, the national overdose death rate had climbed nearly 30 percent from the previous year, according to the CDC. 

Meanwhile, the U.S. also has the highest incarceration rate in the world; 1 in 5 people behind bars are charged with drug offenses, or nearly 400,000 people, a disproportionate number of whom are Black and Latino.

The failure of mass incarceration to dissuade drug use, the growing rate of overdose deaths, and the ample evidence that safe injection sites can decrease these deaths has created a growing demand in the U.S. for a different model.

For years, an underground network of safe injection sites have operated across the country, staffed by trained personnel who risk legal repercussions. A 2020 study published in the New England Journal of Medicine reviewed data from one such unsanctioned site—whose location was kept secret by researchers—and found it averted dozens of overdoses over five years without a single fatality.

Last year, the U.S. opened its first two authorized safe injection sites in New York City. Facing a spike of overdoses during the pandemic and after years of planning, the city forged ahead with the plan without authorization from state authorities who said it required further study. They have reported averting 300 overdoses since opening last November. 

Critics of safe consumption sites, however, frequently invoke images of neighborhoods flooded with drug users from across an entire region who disrupt local communities. 

“Fueling the drug epidemic with drug dens and needle supplies is like pouring gasoline on a forest fire. It merely worsens the problem,” California Senate Republican Leader Scott Wilk wrote in opposition to the measure without citing any evidence to back these claims.

San Francisco is still considering moving forward with opening safe consumption sites regardless of Newsom’s veto. They would be run through local non-profit organizations in a model similar to New York’s. 

“We will keep working with our community partners to find a way forward” tweeted Mayor London Breed, who has spoken about her sister’s death from an overdose and who supports injection sites. She said she was “disappointed” by Newsom’s veto. The bill was introduced by state Senator Scott Wiener, who represents San Francisco and called the veto ”tragic.”

In the Netherlands, safe consumption activists figured out how to win over critics and helped make safe injection sites accepted as a social norm. Their placement must comply with local and regional regulations, is based on where there is need, and “is negotiated with communities,” says Gayo. “Some communities feel more comfortable having a facility close to the neighborhood, and others don’t.” To avoid overcrowding and disrupting local communities, the more than two dozen sites are distributed across the country. 

To succeed, leaders of the safe consumption sites must work in constant collaboration with their neighbors as well as authorities, who must be responsive to their needs, says Eberhard Schatz, a longtime researcher and harm reduction advocate. 

The AMOC safe consumption site in Amsterdam consults with a neighborhood commission whose members include representatives of local neighborhoods, community centers, law enforcement and the coordinator of the consumption site.

Close coordination between these stakeholders can help decrease crime and public nuisance complaints, says Gayo.

The sites maintain a close collaborative relationship with law enforcement and local hospitals and clinics, who help connect users with the facilities and can respond in case of emergencies. “The facilities have a direct line with [first responders],“ says Gayo. 

Advocates in the Netherlands offer words of support for the U.S. harm reduction movement. “These are people that are taking matters in their own hands when you have a government that doesn’t care about you and just lets you die,” said Busz, who notes the parallels between the Netherlands three decades ago and the U.S. today. 

“Here the first drug consumption rooms and needle exchange programs were all led by drug users themselves in the beginning,” taking on considerable personal risk, said Busz. Government-supported drug injection sites were the result of activists proving to opponents that they can save lives without increasing crime. 

Busz says the state support is critical to acquire the necessary funding for success. “With all everything that we know now and evidence base that it is there… they should be backed by the state from the start.”

The post In the Netherlands, Safe Drug Consumption Sites Are Saving Lives. The U.S. Is Resisting. appeared first on Bolts.

In February 2020, when California Assemblymember Sydney Kamlager introduced the CRISES Act (Assembly Bill 2054), to fund community-based emergency response programs, it didn’t make much of a splash. “It was a quiet bill,” Kamlager told The Appeal: Political Report.

Then, George Floyd was killed by police in Minneapolis after a 911 call. As protests against police brutality unfurled across the country, similar programs were debated and passed from New York to Los Angeles. The Community Response Initiative to Strengthen Emergency Systems  Act suddenly seemed like an idea whose time had come, and California’s legislators took note. “At the end of the day, there were 21 co-authors, and almost 150 listed groups of supporters,” said Kamlager. “Everyone was excited about being able to say that California was moving forward in this space.”

Law enforcement unions registered no official opposition to the CRISES Act, and it passed the legislature easily. But at the end of September, Governor Gavin Newsom returned CRISES without his signature. “I was gobsmacked,” Kamlager recalled. “It is a bill that is incredibly in line with and in touch with the moment.”

The CRISES veto is a testament to the challenges of translating political will into policy, and the particular vexations of trying to enact criminal justice reform in a state where progressive bonafides mask regressive sentencing and policing laws and an unrivalled mass incarceration system. “What you’re seeing in the governor’s seemingly arbitrary decision to veto [the CRISES Act] is a very cautious nose to the wind of this still very potent tough-on-crime voter bloc,” said Jonathan Simon, law professor at University of California, Berkeley and an expert on criminal justice reform.

Kamlager reintroduced the CRISES Act as AB 118 for the 2021 legislative session. What happens this time around will depend on how activists, community groups, and reform-minded lawmakers navigate a changing legislature, embattled but still powerful law enforcement unions, and a governor whose record on criminal justice reform has been one of deep ambivalence.  

And it will give Californians another opportunity to confront the debate around whether alternatives to incarceration should originate within police departments—a compromise that seems to be acceptable to law enforcement itself, but one that activist groups have firmly resisted, maintaining that policing needs to be transformed rather than merely tweaked. 

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Kamlager crafted the CRISES Act in partnership with Cat Brooks, co-founder of the Oakland-based Anti Police-Terror Project. The bill would establish a grant program for community groups to create emergency response teams that would respond to a wide range of calls instead of the police. These calls might involve intimate partner violence or a mental health crisis. They might come from someone leery of calling the police because of their immigration status, or terrified that they’ll be the one sent to jail. Or they might come from any Black or Latinxperson who knows that when the police are called, someone can end up dead.  “All of those groups still have the right to be able to call someone and ask for help when there’s an emergency, without the assumption that they’re criminals, and without the threat of an arrest,” Kamlager said.

The Anti Police-Terror Project weighed in on the language and scope of the bill throughout. To Brooks, it was crucial that CRISES fund existing community organizations. “That’s the thing about this conversation around alternatives to law enforcement, with the people that are kind of grasping their pearls—you can release the pearls, because we’ve been doing this,” she told the Political Report. “Just with no budget, with no resources, and we’ve been doing it quietly.”

One such example is Mental Health First, a pilot program that the Anti Police-Terror Project established in Oakland and Sacramento. “Our phones ring, and that lets me know that people who would otherwise not have an agency to call have someplace to call,” Brooks said. “A lot of Black and brown folks aren’t going to call 911, no matter how bad the crisis.” 

At Mental Health First, volunteers staff phone lines from sundown to sunup over the weekend prepared to respond to a wide range of calls, including mental health crises and domestic violence situations. They use de-escalation techniques and try to come up with “exit plans,” whether it’s helping callers get in touch with a friend or family member or even calling a ride-hailing service. During the COVID-19 pandemic, the program has been restricted to phone support, but once the vaccine becomes readily available, Brooks is hoping to have teams back out on the street. Though she acknowledges that it’s too early to speak about impact, especially given the disruption of the pandemic, she’s been heartened to receive calls from people across the country interested in creating programs like Mental Health First in their own communities.

“The volunteers that have shown up for MH First have been an amazing demonstration of what people want to do for their communities,” Brooks said. “Programs like MH First show people that there are alternatives—which is really our job as organizers. We can’t just say ‘don’t call the police.’ Our job is to create small replicable programs for issues that don’t require badges and guns.” Her hope is that CRISES could multiply “participant-led” programs like Mental Health First across the state.

Dennis Cuevas-Romero is a legislative advocate for the ACLU, which co-sponsored the bill alongside the Anti Police-Terror Project and a number of other activist groups. CRISES posed no direct budgetary threat to law enforcement, which Cuevas-Romero suspected may have had something to do with police unions’ lack of opposition to the bill. Still, he saw it as quietly radical in its premise: that a world with less policing is possible. “It’s clear that folks in California and across the nation want a reimagining of what is considered public safety,” he said. “The time has come. And the co-sponsors think that the CRISES Act is a first step in doing that.”

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As the CRISES Act moved through the legislature, Newsom’s administration had one central demand: that the bill’s proposed grant program be housed under the Board of State and Community Corrections rather than the Office of Emergency Services. According to Kamlager, the administration’s position was that the emergency services office had been overwhelmed by responding to COVID-19 and the state’s worsening wildfire problem. (Newsom’s office did not respond to repeated requests for comment.) 

The Board of State and Community Corrections is an independent agency that oversees and provides guidance to California’s courts, prisons, and jails.  It has 13 members, most of whom are required to be sheriffs, chief probation officers, judges, police chiefs, and Department of Corrections officials; only two seats exist for community service providers or advocates.

In other words, Newsom essentially wanted a program designed to limit the reach of law enforcement to be placed under the purview of law enforcement. To the creators of CRISES, that idea was a nonstarter. “Having this kind of bill housed in that department is really antithetical to the intent behind the bill,” Kamlager told The Political Report. 

“We don’t deal with policy that reaffirms or reinforces the relevance of policing as it exists today,” Brooks said. “The only type of reform that we engage in chips away at policing as we know it.”

Brooks and Kamlager were aware of what might happen if they didn’t agree to Newsom’s proposal. But for both women, the choice was clear. “We said hell no,” Brooks recounted. “Absolutely not.”

Brooks is on guard for reforms that ultimately serve to bolster the institution of policing. In September, she wrote a commentary that criticized law enforcement unions’ attempts to co-opt activist language like “reimagining public safety” in order to argue for investment in de-escalation programs for police. 

In the months following the uprising, police have indeed made a number of attempts to respond to protesters’ demands by instituting mental health units among their own ranks. To Brooks, such developments are pernicious because they divert public attention from genuinely transformative changes to the system. “A brief look at the impact of police unions on our communities clearly demonstrate[s] that they are the last entity that should be leading the path to reform,” she wrote in the San Francisco Examiner. 

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The dispute over management of the CRISES Act’s grant program was emblematic of larger rifts between Newsom’s administration and the community groups on the frontlines of the movement to transform policing and incarceration in California.

Last summer, as the uprising for racial justice continued, Newsom spoke out. “We have a unique and special responsibility here in California to meet this historic moment head-on,” the governor said. “We will not sit back passively as a state.” But in the months since, he has charted a far less decisive course toward criminal justice reform than that speech suggested.

The lobbyists, lawmakers, advocates, and experts who spoke to the Political Report for this article described a governor who is reform-minded and speaks the language of systemic change, but has often been unwilling to take bold action in order to combat mass incarceration and over-policing. “Governor Newsom says a lot of great things, but we haven’t seen it reflected in his policy decisions,” Cuevas-Romero said.

Though Newsom did sign several criminal justice reform bills into law in the fall, the CRISES Act was far from the only casualty of the past legislative session. The governor also spurned bills that would have collected information about past officer misconduct and reduced the high costs of commissary items in jails and prisons.

As governor, Newsom possesses powers that go considerably beyond the decision to sign or veto bills that come across his desk; he can make a difference in whether a bill ever gets that far in the first place. Cuevas-Romero said that last year, the “biggest bill” concerning police was a measure that would have allowed a state agency to decertify cops who are fired for misconduct. “That bill didn’t even get a vote. If the governor and his administration wanted something, they could have engaged and put pressure, and that just didn’t happen,” he said. Without any signals of support from the administration, tenacious lobbying from law enforcement unions was enough to sink the bill, and several other reform measures expired in much the same manner.

In the eyes of Simon, the Berkeley law professor, Newsom’s desire to appear progressive has arguably outweighed his appetite to champion and enact legislation that reflects those values. Simon especially sees this contradiction reflected in Newsom’s treatment of capital punishment. The governor has called for the death penalty’s abolition, and he has imposed a statewide moratorium on executions, but advocates have long been urging California governors, including Newsom, to use their powers to commute the sentences of Californians on death row.

Simon also said that Newsom has failed to meaningfully reduce prison populations during the COVID-19 pandemic—a concrete reform that would have saved lives but could have been politically risky. He has also used his executive powers to stop dozens of people convicted of serious crimes from obtaining parole, against the recommendations of parole boards. 

The CRISES veto follows this pattern. “The politics of crime in California remains a potent force,” Simon told the Political Report. “Getting this kind of really promising bill through the California legislature wouldn’t have been obvious at all a few years ago, but the [tough-on-crime] coalition that was anchored by DAs and sheriffs and law enforcement, that really altered the state’s political leadership for decades, has not gone away completely.” And Newsom, Simon said, is “really, really worried about it.”

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Newsom’s hesitance and unpredictability on criminal justice reform have created an atmosphere that advocates described as “frustrating,” “confusing,” and “mystifying.” But it hasn’t deterred them from engaging in the legislative battles they choose to fight.

“We can’t lose hope because we didn’t have a bunch of faith in the system to begin with,” Brooks told the Political Report. “We know that the bills we engage with are the more radical ones. They require more organizing and they have less opportunity of passing.” 

For that reason, the Anti-Police Terror Project’s strategy doesn’t start or stop with legislative cycles. Brooks told the Political Report that the group continued organizing around the CRISES Act between sessions. “There’s even more public support for these types of programs than there was a few months ago,” she noted. This time around, she hopes to run a stronger communications campaign and engage the public even more.

“We have to keep pushing,” Kamlager said. Though the assemblymember is open to re-evaluating the location of the grant program—as long as it isn’t housed under a law enforcement board—she is adamant that CRISES will be signed this time around.

“Communities know what’s going on in their world,” she said. “They know where the problems are and they know the solutions for those problems. And this will actually fund and grant opportunity for those communities to have a stake in how their own regulation and policing happens. Why not move towards that?”

This article has been updated to correct the description of a California bill proposed last year that would have enabled decertification of police who are fired for misconduct. This power would have rested with the state Commission on Peace Officer Standards and Training, not the state Department of Justice.

The post California Bill That Promotes Alternatives to Policing Is Back Despite Governor’s Veto appeared first on Bolts.

This is the latest in our series spotlighting state Supreme Courts.

With his first appointment to the state supreme court, announced Monday, California Governor Gavin Newsom has added yet another former prosecutor to the bench. Presented with an opportunity to break with a persistent convention of “tough on crime” politics, which has sidelined lawyers with experience defending people and distorted the country’s jurisprudence on criminal justice, Newsom reinforced it instead.

Martin Jenkins, a former prosecutor and retired judge who is now Newsom’s chief legal adviser, will fill the vacancy left by the retirement of Ming Chin, a former prosecutor himself. His appointment means there will again be three former prosecutors on a seven-justice court that hasn’t had a former public defender in 34 years. 

In other ways, appointing Jenkins is a historic milestone for diversity. Jenkins will be only the third Black man, and the first openly gay justice, to ever serve on the court. He also breaks the typical mold of judges who have an elite upbringing and Ivy League credentials, which will bring a broader perspective to the law. Jenkins grew up helping his father clean office buildings for extra money and then went to college nearby at Santa Clara University, followed by law school at the University of San Francisco. 

Here Newsom’s pick contrasts sharply with the way Trump has loaded the federal bench with white men who come pre-approved by rightwing interest groups. Not one of Trump’s 53 appointees to the federal courts of appeals is Black, and a third of them, according to an analysis by Lambda Legal, have a demonstrated “history of anti-LGBTQ bias.” 

But a lopsided share of Trump’s appointments have also gone to former prosecutors—a trend that predates the current president and that Newsom continued this week.

Across the country, state and federal courts are run mostly by judges who spent their legal careers representing the powerful and wealthy, either as prosecutors, who as a profession are the engine of systemic mass incarceration that disproportionately harms poor and Black communities, or as Big Law firm partners, representing massive corporations. Lawyers on the other side—the public defenders, civil rights advocates, and legal aid lawyers fighting for the rights of ordinary people—are largely absent from the bench. Their clients most depend on the courts to provide equal justice without regard to wealth, or status, or political clout, and yet their perspectives are generally missing from the institutional function on which that justice depends. 

It’s unsurprising, then, that courts often defer to law enforcement while eroding the rights of people charged with crimes and allowing racism in the criminal legal system to flourish. Thanks to the court-made doctrine of qualified immunity, for example, it’s nearly impossible to sue police, and it’s even harder to sue prosecutors. And dubious factual assumptions that favor police are baked into many of the constitutional rules that regulate police power, as a law review article by former police officer and law professor Seth Stoughton lays out. 

In California, the state supreme court rarely intervenes to curb racism in jury selection, a recent report from the Berkeley Law School death penalty clinic found, despite documented patterns of state prosecutors striking jurors for reasons that track closely with race, like living in a predominantly Black neighborhood or having been the victim of racial profiling. Just this year, the court upheld a death sentence from the late 1990s after prosecutors struck Black jurors who said they were not troubled by the O.J. Simpson verdict. Only Justice Goodwin Liu dissented.

Many politicians now profess to understand that our criminal legal system is a bloated and destructive policy failure—Newsom himself signed into law several important reforms last month, including one that restricts prosecutors’ power to strike Black jurors—but they are contributing to the structural problem as long as they let the job of prosecutor remain among the surest paths to the bench.  

Measured by race, ethnicity, gender, or sexual orientation, President Obama had the most diverse judicial nominees of any president in history. Yet among his appointments, prosecutors outnumbered public defenders by more than three to one. In June, when New Jersey Governor Phil Murphy appointed the first Black woman to sit on the state’s highest court, he chose a federal prosecutor. Now five of the New Jersey Supreme Court’s seven justices are former prosecutors, and not one is a public defender. 

It’s not that prosecutors are uniformly bad judges or that they all bring a tough-on-crime approach to the cases they decide. U.S. Supreme Court Justice Sonia Sotomayor is a former prosecutor, and she has been the most progressive member of the Supreme Court on criminal justice issues, by far, in decades. Jenkins may well follow her example. 

But institutional diversity matters as well. The professional experiences and personal backgrounds of judges inevitably influence how legal issues are resolved, especially on appellate courts, like state supreme courts, where judges deliberate and issue decisions together. Justice Thurgood Marshall was the last U.S. Supreme Court justice with real experience defending people charged with crimes. Before joining the Court, he spent decades defending Black people in race-based prosecutions and assailing the death penalty. After he retired in 1991, Justice Sandra Day O’Connor recalled that Marshall’s experience standing shoulder-to-shoulder with people who faced the enormous pressure of prosecution, who had been stopped and searched and beaten by police, had influenced the Court. “His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection,” O’Connor said. “At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences.”

Yet this sort of experience is now lost. The California Supreme Court hasn’t had a public defender since Chief Justice Rose Bird left in 1986. During her 10 years on the court, Bird voted to reverse every death sentence that she reviewed, a record that state Republicans and business interests used to label her as “soft on crime” in a well-funded campaign to oust her in a retention election. Bird lost. 

But the politics of crime and public safety are different today than they were in 1986. Public defenders and civil rights attorneys have won upset victories in prosecutor elections in recent years, beating back arguments that they are too sympathetic to people who are accused of breaking the law and redefining what the criminal legal system ought to look like. Yet even as voters put them in charge of law enforcement, they remain overlooked for judicial appointments.

With his first appointment to the state supreme court, Newsom could have extended this movement for criminal justice reform to judicial selection, sending a message that public defenders should be represented on the court, and that the stigma associated with criminal defense is not just unfounded but harmful. He may still have more opportunities.

The post Governor Newsom Adds Another Prosecutor to the California Supreme Court appeared first on Bolts.