hello and welcome to kqed newsroom. coming up on our program, how implicit bias affects even judges. we'll talk with an immigration judge about its impact in the courtroom. and we'll have a roundup of key state contests from the u.s. senate race to competing measures on the death penalty. but first, this november, voters will weigh in on a sentencing reform measure backed by governor jerry brown. the measure would create additional opportunities for certain non-violent offenders to be released from prison sooner. under prop 57. some prisoners would come up for parole consideration earlier than their original sentence allowed, and they could also earn credits for taking part in rehabilitation programs. maurice a la go takes a closer

look. >> reporter: on a sunny fall morning, curtis roberts is tending his garden. >> i just really get to see the amazing creation that god provided for us. >> reporter: roberts hopes this election season, california voters will provide him some relief. roberts has been in prison for 22 years. >> the first time i'm eligible for parole is the year 2044. >> reporter: his crime? robbing $40 from a liquor store and burglarizing his in laws vacation cabin. >> i did the crime that they accused me of. >> reporter: roberts pleaded guilty just months after voters approved the three strikes law, which requires a 25 year to life sentence for anyone convicted of a third felony. three strikes was enacted after richard allen davis, a man who bounced in and out of prison for years, kidnapped and killed 12-year-old polly klass. it was aimed at locking up dangerous, violent felons for

good. but it also resulted in decades long sentences for drug addicts such as robert, with previous burglary and robbery convictions, he was sentenced to 50 years to life. >> that's why i wanted to commit suicide. i mean it's 50 years. the hardest days for me in here, when a guy that has committed a murder, and he goes home doing less time than me. i've never shot a gun, never put my hands on anybody physically. i've caused harm. i've hurt people, not 50 years' worth. >> reporter: governor jerry brown is now pushing a ballot measure that could change roberts' life. proposition 57 aims to release some inmates before their full term, thereby reducing the prison population and removing the system from federal control. >> the supreme court says prison conditions are terrible. it's overcrowded. people are committing suicide. they have unconstitutional medical care. now we're putting a cap and you

got to take out thousands of people from the prison. we want to do that in a rational way. >> reporter: in a way, it's full circle for brown. in 1976, governor brown signed california's determ nat sentencing law. it ends the state's practice of handing down broad ranging sentences such as five years to life. >> i'm going to sign a major reform, scrapping the indeterminate sentence so that we'll provide a certain, clear punishment for crimes. >> reporter: brown says he had hoped the new fixed prison terms would address the arbitrary nature of sentencing and parole releases. but instead, brown says, fixed terms gave inmates little incentive to change, and sentences got longer and longer as lawmakers and voters passed a slew of tough-on-crime laws. >> the legislature goes hog wild. i'd say criminal legislation on steroids for 30 years. >> reporter: many of those laws are what's called enhancements,

allowing prosecutors to add time to base sentences for such things as repeat offending or gang involvement. proposition 57 would let certain non-violent offenders be considered for parole before serving the time tacked on by enhancements. but sacramento district attorney ann marie shubert says d.a.s rely on enhancements to help keep dangerous career criminals behind bars. she says voters may be surprised to learn what the legal system deems violent or not. >> when i go out to the community and i say how many people in this room think domestic violence is a violent crime, they all raise their hand. how many people think assault with a deadly weapon is a violent crime? they all raise their hand. but those are all non-violent under the penal code. >> this is my face split open from the pistol. >> crystal has come a long way in the last several years. she's a mother of a 1-year-old, sober, and hopes to become a sonogram technician. just four years ago, she was living on the streets, using drugs, and in an extremely

abusive relationship with a man named james coker. >> he's hit with me baseball bats, burned my face with lighters and torches, put cigarettes out in my mouth. >> reporter: crystal says she lived in fear of coker for a year, until one night it became clear. she had to get away. >> he had taken me to the river, sliced my wrist open, and hit me with a hammer in the back seat, cut my face open, and told me he was going to throw me in the river and kill me. and i just couldn't do it no more. >> reporter: a few months later, the district attorney charged coker with attacking crystal. crystal says testifying against him was the hardest thing she'd ever done. >> he can instill fear in me with his eyes, just looking at me. i'm sitting there, trying not to look at him. i couldn't eat for a whole week before i did that. i was just sick. >> reporter: d.a. shubert says enhancements push the coker's sentence to 25 years. she fears if proposition 57

passes, he could be released early, and that would break a promise society made to crystal. >> now, that victim who has had the courage and fortitude to come into a courtroom and testify, say on a domestic violence case, poof, that's all gone. >> that's a complete red herring, and it's very disingenuous of these highly politicized prosecutors to make that claim. >> reporter: the governor says even with proposition 57, a prisoner's crime and behavior will be considered before release is granted. in san quentin's newsroom, inmates say another key part of proposition 57 is the talk of the prison. it would allow them to knock time off their sentence if they participate in prison programs. >> people have hope. people knowing that possibly they could receive credits. you're starting to see more people enroll in programs. >> reporter: that hope is what the governor is banking on. >> when parole is a viable possibility, the behavior of

inmates change. the violence in the prison goes down, and inmates really shape up because they would like to return to freedom. >> reporter: but shubert says she fears good time credits will end up going to violent criminals who haven't really been rehabilitated. she says already dangerous people are getting out of prison. >> and some of them, it's like jaw-dropping. are you kidding me? this person, okay, he took a computer class. that does not qualify for his 20 years of domestic violence history. that is not rehab in my books. >> reporter: crystal says coker, who had been in and out of prison for years, clearly didn't get the help he needed when he was behind bars. >> no kind of treatment was ever put before him or, you know, expected of him. how did it just keep happening until it came to me? >> reporter: governor brown agrees the state needs to keep improving its rehabilitation programs, and says lowering the prison population will free up money for those programs. >> education, junior college programs, drug treatment.

>> reporter: brown says proposition 57 takes into account the capacity of people to change over the course of years or decades. >> on the day of sentencing, that is not all perfect. it's not omniscient. and over time, five, ten, 15, 20 years, why not have a group of wise people saying, you know what, i think this inmate's ready to go? >> reporter: brown says he trusts the professionals to make those decisions. >> i want the parole board to look in the eyes of that parolee, listen where appropriate to victims or the district attorney, and make an informed judgment. >> reporter: but shubert says already deputy commissioners are making parole decisions without ever meeting with the inmate, victim, or prosecutors. >> there's nothing in the governor initiative that says it's the parole board. it's not a hearing. it's a letter. we get to write a letter. that's it. >> that's something that i'm working on, am concerned about, and i'll try to get the best,

safest, most humanly effective process possible. >> reporter: crystal says she was dumb struck by the possibility that coker could get out of prison before serving his full 25-year sentence. >> i feel like there's no victims' rights in that and that it just sets you all the way back from where you started. the fear, the anxiety, the way of thinking, everything. it's not fair. and now i have a little baby to think about. >> i love you. >> reporter: as for curtis roberts, he's preparing to plant a new garden in the spring. >> these seeds, you can replant them next year. >> reporter: he hopes he won't have to wait another 28 years for his first chance at freedom. >> i'm 54 years old. so that means i'll be 82. so that means really i'll never get out. at 82 years old, what am i going to get out to or for? i believe better of society. i believe better of you.

that you wouldn't let this happen. >> joining me now to talk about this further is california politics and government reporter for kqed marissa lagos. nice to have you here. >> great to be here. >> let's talk about this some more, take a closer look. how does proposition 57 define non-violent crimes, and who can get out early? >> well, the measure relies on the state definition in the penal code, which was placed in there by a ballot measure about 16 years ago. this basically includes the big ones, murder, assault, robbery. but there's a lot of sort of different ways. rape is in there but rape of an unconscious person is not technically considered violent. >> someone accused of that could actually get out early. >> potentially. actually the credits portion of this which we talked about in relation to the third striker in this piece, we don't know who that's going to impact because those portions are really going to be fleshed out through regulations. i think the governor wrote this pretty vague on purpose.

i think he feels that we have become too prescribed in our approach to criminal justice, that it doesn't give enough wiggle room to judges, to parole boards, to prison officials. so he really wanted this to -- he said he would have liked to apply it to violent felons but he didn't think that was politically feasible. >> isn't there some push back from critics who say it doesn't make sense to leave it up to the governor? does it make sense to leave it up to regulators to define later on down the line, after the law has passed, about which categories of criminals qualify and don't qualify? why don't we just get that written into the language? a lot of das oppose this measure? >> i think you're right. if you're looking 59 an individual case like crystal's case, it's heart-wrenching and i think there's a sense those people shouldn't be out of prison. at the same point, what the governor and fro poenents are saying is the research shows what we're doing isn't working and people do change. i think this does undercut prosecutorial power and discretion in pushing plea deals, which is about how 90% of

cases are adjudicated, and in really sort of having that power, it's really shifting it back to judges and the parole board, and they don't like that. >> because they were able to use before the threat of a stiffer sentence as part of a plea deal. >> that's right. so right now if you go in and are facing 20 years and the d.a. offers you five or ten, you'll probably take that. under this, you're saying i'll get 20 but maybe i could get out in five. >> so two years ago, california voters passed proposition 47 to reduce penalties for some drug and property crimes as a way to trim the prison population. why did that not help curtis roberts, the inmate in your story? >> because his last felonies are considering violent. robbery. problem 36, another reform that dealt with third strikers, same thing. the governor would have liked to go further. a lot of people say there aren't a lot of non-violent felons left in state prison, although that's a debatable thing. i think this is another sort of step in a long road towards

reform that the governor has been pushing. >> while it's certainly polling well, 60% of the public supports it. we'll see how it urn turns out. thank you so much. >> thank you for having me. proposition 57 came up in the only debate between loretta sanchez and kamala harris for california's open senate seat. >> i am against proposition 57. my opponent wrote the summary of it that we are reading as voters, and she said that it was about non-violent felons getting out of jail. that's not true. >> harris did not take a stand on prop 57, but she said this instead. >> we need to make a difference in our minds and in policy between violent and serious crime and non-violent and low-level offenses. and as it relates to violent and serious crime, there's no question. seriousness and severe consequence and accountability and lock them up. >> joining me now to discuss the

senate race and other key measures on the ballot is scott schaffer, kqed's senior editor for california politics and government. thanks for being here. >> happy to be here. >> we'll get to the senate race in just a moment. first the big breaking news this afternoon in the presidential race. "the washington post" released a video from 2005 where donald trump is boasting to billy bush of access hollywood, and he's speaking in very lewd terms about kissing, groping, and even trying to have sex with women. let's watch a brief clip. >> i'm going to use some tick tacks in case i start kissing her. it's a magnet. when you're a star, they let you do it. you can do anything. >> whatever you want. >> this video was released just two days before the town hall debate on sunday between the presidential candidates. what impact do you think this will have on the election? >> well, i think it's going to affect things in several ways. first of all, that clip we just saw is the pg part of the tape. i mean there are things on there

far worse in terms of the language used. for one thing, it puts a ceiling over donald trump. he's been stuck at around 40%. he's trying to get more women, especially suburban white women to support him. i really think after this, it's going to be even increasingly difficult. that's going to hurt him in states like pennsylvania. i think he may start to see some republican senate candidates around the country fleeing him, and i think you might see someone like colin powell come out and endorse hillary clinton. >> you can bet this will come up on sunday at the debate. let's return to the senate race between loretta sanchez and kamala harris. besides proposition 57, how are they differentiating themselves? they're both democrats. >> they are, and they're both women of color and both generally liberal. however, sanchez has positioned herself to the right as more fiscally conservative. she's played up her credentials on security and been on defense-related committees. she's, as you said, been a little tougher on crime. for her part, kamala harris is

saying, look, i'm in the sense the democratic nominee. governor brown, lieutenant governor newsome, president obama, she's got all those people locked down on her side. dianne feinstein, barbara boxer. she's trying to say, look, if you want a democrat in the senate, i'm the candidate. >> of course sanchez has come out and said well she's the establishment candidate. do you really want that? she's trying to use that against her. >> exactly. she's trying to be the outsider. it's an outsider kind of a year, a change year. on the other hand, you know, kamala harris has really pointed to a lack of real accomplishments in congress and perhaps her attendance record at some of the committees that she's supposed to be at. i'm not sure that's going to play so well for her this time around. and kamala harris is just much more polished than sanchez. sanchez is very authentic and very human in a lot of ways, but i think some people look at that and see somebody who is maybe not the best person for the u.s.

senate. >> real quickly, first statewide election where there are two democrats. no other candidates, right? they're just duking it out among themselves. what impact is that having on voters? >> a lot of republicans say they're not going to vote for either one of them. of course there's no green party. there's no peace and freedom party. if you're not a democrat, you're not interested in this. so i think you're going to maybe start to see people looking again at this top two primary system because it does leave a lot of voters feeling left out. >> let's talk about the death penalty as well. two competing ballot measures on this. prop 62 would abolish it. prop 66 would speed up executions. how do voters see these measures? >> they're conflicted really. we've seen over the past several decades declining support for the death penalty, and you see that in support for prop 62. 48% yes. so people looking at that more favorably than prop 66, which is confusing to people. it's a complicated measure. how are you going to speed it up? does that increase the chances of executing an innocent person? so i think it seems unlikely that 66 is going to pass.

the question is will there be enough support to actually abolish the death penalty, or will people say you know what, i don't like the status quo, but let's just leave it the way it is. >> what happens if they both pass, get a majority of votes? >> whichever one has more votes would prevail. i think it's more likely they both fail actually. >> prop 56, now, this is the tobacco tax, would add a $2 tax to a pack of cigarettes, raising it to $2.87. how does california's cigarette tax compare to other states? >> we're on the low side. it's 87 cents right now. the average nationally is $1.65. i think we're maybe 37th among the states in the tobacco tax, so this would make it $2.87 if it passes. last time we passed it in california, an increase, was 1999. so it's been a while. >> very lopsided spending on this measure, right? the tobacco industry has raised more than $56 million to fight this. that's more than three times the amount raised by supporters. how effective is the industry's

campaign with all that money behind it? >> well, we'll see. they still have a lot of money left. i looked at the last report. they still had $28 million in the bank that they're going to be spending between now and the election. you know, in the polls, the tax is popular. it's at about 60% support. but we saw last time this was on the ballot, it came down to like 40,000 votes. it lost by about a half of a percentage point. so what they're doing now is they're running ads implying that this is going to take money away from schools, which is misleading, but that's what they're saying. and that message might play with some voters. >> okay. in 20 seconds, can you tell us are there any outstanding measures aside from the high profile ones we should know about? >> take a closer look at prop 53. it's too complicated to go into but it has a big impact on the kinds of big projects that we do, say after an earthquake, getting money to pay for those things. it's really targeted at high-speed rail and the delta tunnels, the supporters of 53 are trying to kill it. take a close look at it because it's worth learning about. >> thank you. also we should say we have a

handy resource here. it's kqed's election guide, which you can find at elections.kqed.org. thanks so much for being here. >> always happy to do it. some recent police involved shootings to this week's vice presidential debate, the term implicit bias has been getting a lot of attention. police departments in california and elsewhere are getting training on how to recognize their own hidden stereotypes and attitudes. the question of bias extends beyond the police beat as the department of justice has found. in july it announced a new program to train judges and prosecutors to recognize implicit bias and develop strategies to combat them in the courtroom. joining me now is dan na lee marx, president of the national association of immigration judges. judge, thank you for being here. >> thank you for the invitation. >> we do want to point out very clearly that you are speaking here in your capacity as president of naij. how does implicit bias among judges play out in the courtroom? >> we're confronted with having

to face our own assumptions about people every day we walk into court. and particularly in the immigration courts where so many of the cases are based on people telling us their stories rather than having some kind of document or newspaper article that helps them show what happened. we have to decide whether they are being credible or not, whether we believe what's happened. so it's very important to check your own bias as you do that. >> so how do these subconscious stereotypes then affect the immigrants who appear in your courts and other immigration judges' courts? >> that's the interesting thing about implicit bias. it is by its nature subconscious and something that people aren't aware of. so judges, as soon as they go into the courtroom, have to constantly remind themselves that they may be making assumptions based on their personal experiences and to counteract that, we have to educate ourselves about what is culturally appropriate for the

people that appear before us. >> do you find yourself struggling with your own biases when you're deciding these cases? >> absolutely. you can't help but have this kind of internal feeling about do i believe this person? why does something seem a bit off? and then you step back, and you realize, wow, this is somebody who comes from a culture that doesn't -- doesn't look authority figures in the eye because that would be disrespectful. if i then have been building my feelings about their trustworthiness based on whether or not they're looking me in the eye, i'm making a mistake. so i have to go back and think about what cultural background do they have? has this person been a victim of post-traumatic stress? psychiatrists and psychologists who study the effects of stress on the brain realize that in traumatic events, people don't actually lay down their -- the brain doesn't record and lay down the memories in an orderly fashion. that's part of the trauma that's going on. so when someone outside of the

stressful situation tries to tell you a story about what happened, it may not make sense in time. so, again, our american sense of orderliness and how you tell a story may make me at first blush thinks someone is not being truthful, and i have to check myself when i find i'm not believing somebody to go, wait a second. is there something here that unconsciously is influencing me? i have to bring it to the conscious level and decide whether it deserves to be a factor. >> and how successful do you think you're able to do that because you guys have a huge case load. you have -- you do have 227 immigration judges now, more than ever. but you also have a backlog of more than a half million cases, more than ever. >> it's extremely challenging, and i know that i and my colleagues do our very best to do what we can. but what is kind of ironic is that any study on implicit bias tells you that one way to counteract it is to take a step

back, to take more time, to discuss things with colleagues, to run hypotheticals in your mind. if this were someone from canada, would i handle this the same way as i'd handle it for someone from russia. if it were a man, would i handle a woman's case the same way? all of those kinds of factors mean that it takes more time, and that is something that is very difficult at the immigration courts right now because we are so overwhelmed. >> this summer, the justice department held a mandatory anti-bias training session for federal immigration judges. what were some of the key preventive techniques that they taught? >> one of the interesting ones was if you see someone from a culture that maybe you're not really comfortable with, can you pick one person who has been inspiring and that you have positive feelings about? can you focus on that instead of focusing on what may cause you

fear? >> so it's a visualization exercise? >> exactly. >> interesting. do you think that anti-bias training makes a difference, though, in the long run, or do you feel it could possibly run the risk of making some judges complacent to think, you know what, i went through the training. i'm no longer biased. >> no. i think it's extremely helpful because the trainings do remind you that every day is a new day, and it's not something you just do once and you're finished with. it's something that is going to operate below your level of consciousness, the fact that you try to be fair and are committed to that doesn't mean you don't have implicit biases and that you have to continue to try to combat them. and the training reminds you of that, so the training is extremely helpful. >> and implicit bias is now such a big part of the national conversation. researchers say that we all have subconscious biases. and it's not just about race. for example, if you have the assumption that a farmers market has better produce, that is a

form of implicit bias. so then what is the challenge, then? is it to eliminate the bias, or is it to interrupt those biases so that you can behave better? >> it's to recognize it so that you're giving it the appropriate weight and not giving it too much weight. like you said, a farmers market, we may have something in the story that the individual is telling us about what happened in their home country that may seem a little unusual. am i judging that because of my implicit bias that being born and raised in the united states, that's something that would never happen, and i have to catch myself and go, well, maybe it's not unusual at all. maybe that's perfectly appropriate in the cultural context that this person is describing. and it's me that's off, not the person who is telling the story. it's really having the tools to shine the light on it, to be able to weigh those varying, competing components fairly. >> very interesting. an enlightening conversation and

a frank one. thank you for being here. >> thank you so much for having me. that is it for us tonight. tune in next week as state senate candidate scott weiner and jane kim join us in the studio. thanks so much for watching. for all of kqed's news coverage, please go to kqed.org.

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