Monday, February 8, 2010
CCC talk on Feb. 25: Invitation
On Thu Feb 25, I'll be giving a talk (and hopefully have a conversation with the audience) about the California correctional crisis. The details are here. The talk is at (and courtesy of) Reed Smith, at 6pm, and attendance requires RSVP-ing through the UC Hastings alumni center. I'll be delighted to see old and new friends in the audience and hopefully meet blog readers.
Anticipated Jail Releases
The legislation passed last year, which, as you might recall, was a much leaner version than Gov. Schwarzenegger's original proposal, is leading to a few early releases from jail. AppealDemocract.com reports:
The legislation calling for the early releases, passed by the Legislature last year, gave some prisoners enhanced credit for good behavior or work-time while behind bars. It barred eligibility for some kinds of prisoners, such as violent or sex offenders.
As a result, most of the early-release prisoners are serving sentences for crimes such as drug possession and vehicle theft, Parker said.
"There are certain criminals we see again and again and again," Parker said. "This will mean we'll see them again and again and again, just on a faster cycle."
Previously, inmates could have up to a third of their sentences waived if they behaved well or did work while in jail. Those prisoners can now cut their sentences in half.
Gordon Hinkle, press secretary for the state Department of Corrections, said the law and another component of it affecting paroles will in the long run actually help public safety.
It's worthwhile reading the short piece in its entirety. It may be a microcosm of the implications of, and reactions to, a future larger inmate release.
As a result, most of the early-release prisoners are serving sentences for crimes such as drug possession and vehicle theft, Parker said.
"There are certain criminals we see again and again and again," Parker said. "This will mean we'll see them again and again and again, just on a faster cycle."
Previously, inmates could have up to a third of their sentences waived if they behaved well or did work while in jail. Those prisoners can now cut their sentences in half.
Gordon Hinkle, press secretary for the state Department of Corrections, said the law and another component of it affecting paroles will in the long run actually help public safety.
It's worthwhile reading the short piece in its entirety. It may be a microcosm of the implications of, and reactions to, a future larger inmate release.
Thursday, February 4, 2010
UC Berkeley Course Podcasts: Jonathan Simon's Punishment, Culture, and Society
My friend and colleague Jonathan Simon has focused his undergraduate course at UC Berkeley, Punishment, Culture, and Society, on the California correctional crisis. His lectures are being recorded and podcasts are available here. I'm sure they'll be of interest to many of our readers.
Tuesday, February 2, 2010
Residency Restrictions on Sex Offenders Apply to Parolees
More than a year ago we reported on legal challenges to the residency restrictions in Jessica's Law. The proposition, which passed in 2006, included the following section:
This measure bars any person required to register as a sex offender from living within 2,000 feet (about two fifths of a mile) of any school or park. A violation of this provision would be a misdemeanor offense, as well as a parole violation for parolees. The longer current law restriction of one-half mile (2,640 feet) for specified high-risk sex offenders on parole would remain in effect. In addition, the measure authorizes local governments to further expand these residency restrictions.
Yesterday, the Chron reports, the California Supreme Court decided in re E.J. The 5-2 majority decision was that these restrictions apply to current parolees who were imprisoned even before the measure passed. This decision rejects the parolees' argument that the provision is retroactive "because it attaches new legal consequences to their convictions of registrable sex offenses suffered prior to the passage of Proposition 83." Here is the full decision, authored by Justice Baxter.
The court relies on People v. Grant, where the retroactivity of a similar provision was discussed. In Grant, the following retroactivity test was adopted:
In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party‟s liability for, an event, transaction, or conduct that was completed before the law‟s effective date. . . Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute‟s effective date. . . A law is not retroactive merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.
Applying the "last act or event" test to Jessica's Law's residence restrictions, the court finds:
Section 3003.5(b) places restrictions on where a paroled sex offender subject to lifetime registration pursuant to section 290 may reside while on parole. For purposes of retroactivity analysis, the pivotal “last act or event” . . . that must occur before the mandatory residency restrictions come into play is the registered sex offender‟s securing of a residence upon his release from custody on parole. If that “last act or event” occurred subsequent to the effective date of section 3003.5(b), a conclusion that it was a violation of the registrant‟s parole does not constitute a “retroactive” application of the statute.
But how do we deal with the fact that people, at the time of their conviction, did not know that one of the consequences would be a severe limitation on their housing conditions after release?
By parity of reasoning, the provisions of Jessica‟s Law here under scrutiny — section 3003.5(b)'s statutory residency restrictions — are not implicated until a convicted and registered sex offender is released from custody and must take up residency in the community to which he has been paroled. Applying the mandatory residency restrictions to these four petitioners, who were released from prison on parole after the effective date of Jessica‟s Law, and who thus had ample notice of the necessity of securing housing in compliance with the restrictions at the time they moved into noncompliant housing, is simply not a retroactive application of the new law. . . Contrary to petitioners‟ argument, the fact that they were all convicted of sex offenses giving rise to their status as lifetime registrants pursuant to section 290 well prior to the passage of Jessica‟s Law does not, in itself, establish that the new parole residency restrictions are now being applied retroactively to them.
Justice Moreno wrote the dissent (to which Justice Kennard concurred). He responds by invoking the plain language of Prop 83. And he adds:
the majority opinion‟s characterization of what constitutes the pivotal date for purposes of retroactivity analysis in this case is simply wrong. These petitioners did not become subject to the residency restriction when they were released from custody on parole for nonsexual offenses; they were subject to the residency restriction by virtue of their status as registered sex offenders and they acquired that status upon their convictions for their sex offenses. . . Indeed, the current registration law in effect requires eligible offenders to register even before they are released from prison. (§ 290.016.) Clearly, the registration requirement is imposed upon conviction of the registrable offense as are all ancillary restrictions that flow from that requirement including the residency restriction. Therefore, for purposes of the retroactivity analysis here, the pivotal date is the date of conviction for the registrable offense.
The decision in re E.J. affects all parolees who were imprisoned for sex offenses before Jessica's Law came into effect and released after its enactment. I wonder about the size of this population. Also, either by coincidence or not, I found two emails in my inbox this morning from convicted parolees who detailed the difficult conditions of their parole, highlighting the issue of residence restrictions.
This measure bars any person required to register as a sex offender from living within 2,000 feet (about two fifths of a mile) of any school or park. A violation of this provision would be a misdemeanor offense, as well as a parole violation for parolees. The longer current law restriction of one-half mile (2,640 feet) for specified high-risk sex offenders on parole would remain in effect. In addition, the measure authorizes local governments to further expand these residency restrictions.
Yesterday, the Chron reports, the California Supreme Court decided in re E.J. The 5-2 majority decision was that these restrictions apply to current parolees who were imprisoned even before the measure passed. This decision rejects the parolees' argument that the provision is retroactive "because it attaches new legal consequences to their convictions of registrable sex offenses suffered prior to the passage of Proposition 83." Here is the full decision, authored by Justice Baxter.
The court relies on People v. Grant, where the retroactivity of a similar provision was discussed. In Grant, the following retroactivity test was adopted:
In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party‟s liability for, an event, transaction, or conduct that was completed before the law‟s effective date. . . Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute‟s effective date. . . A law is not retroactive merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.
Applying the "last act or event" test to Jessica's Law's residence restrictions, the court finds:
Section 3003.5(b) places restrictions on where a paroled sex offender subject to lifetime registration pursuant to section 290 may reside while on parole. For purposes of retroactivity analysis, the pivotal “last act or event” . . . that must occur before the mandatory residency restrictions come into play is the registered sex offender‟s securing of a residence upon his release from custody on parole. If that “last act or event” occurred subsequent to the effective date of section 3003.5(b), a conclusion that it was a violation of the registrant‟s parole does not constitute a “retroactive” application of the statute.
But how do we deal with the fact that people, at the time of their conviction, did not know that one of the consequences would be a severe limitation on their housing conditions after release?
By parity of reasoning, the provisions of Jessica‟s Law here under scrutiny — section 3003.5(b)'s statutory residency restrictions — are not implicated until a convicted and registered sex offender is released from custody and must take up residency in the community to which he has been paroled. Applying the mandatory residency restrictions to these four petitioners, who were released from prison on parole after the effective date of Jessica‟s Law, and who thus had ample notice of the necessity of securing housing in compliance with the restrictions at the time they moved into noncompliant housing, is simply not a retroactive application of the new law. . . Contrary to petitioners‟ argument, the fact that they were all convicted of sex offenses giving rise to their status as lifetime registrants pursuant to section 290 well prior to the passage of Jessica‟s Law does not, in itself, establish that the new parole residency restrictions are now being applied retroactively to them.
Justice Moreno wrote the dissent (to which Justice Kennard concurred). He responds by invoking the plain language of Prop 83. And he adds:
the majority opinion‟s characterization of what constitutes the pivotal date for purposes of retroactivity analysis in this case is simply wrong. These petitioners did not become subject to the residency restriction when they were released from custody on parole for nonsexual offenses; they were subject to the residency restriction by virtue of their status as registered sex offenders and they acquired that status upon their convictions for their sex offenses. . . Indeed, the current registration law in effect requires eligible offenders to register even before they are released from prison. (§ 290.016.) Clearly, the registration requirement is imposed upon conviction of the registrable offense as are all ancillary restrictions that flow from that requirement including the residency restriction. Therefore, for purposes of the retroactivity analysis here, the pivotal date is the date of conviction for the registrable offense.
The decision in re E.J. affects all parolees who were imprisoned for sex offenses before Jessica's Law came into effect and released after its enactment. I wonder about the size of this population. Also, either by coincidence or not, I found two emails in my inbox this morning from convicted parolees who detailed the difficult conditions of their parole, highlighting the issue of residence restrictions.
Saturday, January 30, 2010
NYT on Compassionate Relief puts CA in perspective
The New York Times has a story today on compassionate release for inmates who are physically or cognitively unable to present a threat to society. This paragraph stands out:
"In California, where federal judges ordered the state to cut the prison population by 40,000, three people were granted compassionate release last year. In Alabama, where prisons are at double their capacity, four sick inmates were let out on compassionate release in the 2009 fiscal year; 35 other prisoners in Alabama died while their applications were being reviewed. Since New York adopted medical parole in 1992, at the height of the AIDS crisis, 364 people have been released."
The situation may be egregious in New York, and proportionately worst in Alabama, but by sheer quantity California's prison crisis is most dire. What values are we pursuing, what metrics are we optimizing, by paying for incapacitated inmates to die in prison rather than at home?
"In California, where federal judges ordered the state to cut the prison population by 40,000, three people were granted compassionate release last year. In Alabama, where prisons are at double their capacity, four sick inmates were let out on compassionate release in the 2009 fiscal year; 35 other prisoners in Alabama died while their applications were being reviewed. Since New York adopted medical parole in 1992, at the height of the AIDS crisis, 364 people have been released."
The situation may be egregious in New York, and proportionately worst in Alabama, but by sheer quantity California's prison crisis is most dire. What values are we pursuing, what metrics are we optimizing, by paying for incapacitated inmates to die in prison rather than at home?
Friday, January 29, 2010
Kristof on Humanity
In case you missed Nicholas Kristof's column in the 1/27/10 New York Times, it's right here. Kristof relates statistics and instances of violence in prisons, especially sexual violence, especially in juvenile prisons, especially by prison guards. "I’ve never written about the horrors that unfold in American prisons — especially juvenile correctional facilities — on a far larger scale than at Guantánamo."
Of course, it is a premise of this blog that our prisons are in a financial crisis. But as Kristof indirectly recognizes, sometimes the economic angle lets me temporarily forget the human angle. Rights that we can often take for granted in this country, including physical safety, are daily struggles frequently lost in our prisons. The real human costs of our failing correctional institutions are sickeningly deplorable, and prison reform will always be about more than money.
Of course, it is a premise of this blog that our prisons are in a financial crisis. But as Kristof indirectly recognizes, sometimes the economic angle lets me temporarily forget the human angle. Rights that we can often take for granted in this country, including physical safety, are daily struggles frequently lost in our prisons. The real human costs of our failing correctional institutions are sickeningly deplorable, and prison reform will always be about more than money.
Book Review: Dreams from the Monster Factory by Sunny Schwartz with David Boodell
The constant conversations about budget, prison expenditures, and cutting programs, raise the question of cost-benefit from prison programming. Which rehabilitation enterprises are worth investing in for the long run? Which programs actually reduce recidivism to a point that makes them cost-effective for the prison system? Dreams from the Monster Factory provides some thought-provoking information about programs offered at a San Francisco jail by the Sheriff's Department and rekindles hope in rehabilitation and re-entry programming. The book reads as a half-personal, half-professional memoir of Sunny Schwartz, a 27-year veteran of the Sheriff's Department, who joined the jail staff in the 1980s as part of an initiative to ad programming to the jail daily routine. Her program was rather ambitious and, in some ways, counterintuitive. Rather than creating voluntary programs, she created an ambitious study curriculum, with mandatory attendance and a dense schedule. With the collaboration of (most) of the deputies, she managed to create a series of special programs targeting women, general education and substance abuse. The most impressive part of the book, however, is Schwartz's description of RSVP (Resolve to Stop the Violence Project), a special program involving a dorm of violent men whose reeducation away from violence instincts is based on the Manalive program. The unique aspect of RSVP is the collaboration between a variety of community advocates whom we are used to thinking of as being at odds with each other: victim organizations, religious organizations, community groups, and counseling services. The role of victims in the program is described in a particularly appreciative, sensitive way, and generates hope that some victim organizations may see beyond punitiveness to healthier paths for activism. Despite the program's success, Schwartz does not flinch from describing the less glorious moments of this difficult and often frustrating work.
Not all readers will appreciate the book's unique mix of professional and personal information. Schwartz delves into descriptions of events in her own personal life, including some difficult descriptions of her family and relationships. The strength of these narratives, to me, lay in creating the sense that the inmates were not "different" in any sort of substantial, deterministic way, and that all of us, who have been through life's trials and tribulations can empathize with their challenges and frustrations. Schwartz does not come off as a "fixed", "enlightened" prison reformer with all the answers in her pocket, but as a flawed individual who looked inward to find the strength to light a beacon of change, beckoning to the flicker of light in the soul of most of the program's participants. This will make a good read for those interested in an insight into prison life and in thinking about the potential of programs for generating change.
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