"Operation Boo" Strikes Again

The CDCR proudly presents: this year's Operation Boo.



For some thoughts on why we insist on enforcement against parolees to protect us against crime that HAS NEVER HAPPENED BEFORE, see our similar post from last year.

CJC Town Hall Meeting

Yesterday, October 28th, the CJC held a town hall meeting at 134A Golden Gate Ave. in an effort is to facilitate communications with the community and get some feedback. Unfortunately only about 10 to 11 people showed up including Tomiquia Moss, CJC head coordinator, and Judge Albers, everyone else was an interested party (members of the community court – not to be confused with the CJC, former CJC clients there to give a presentation, myself and one other Hastings student).

Presented at the meeting was an array of statistics about the past 6 months of the CJC. I will try to find out if the stats are posted online, but I will lay out some of the more interesting ones. Since its inception, the CJC has engaged over 400 clients in treatment services, 500 hours of community service have been served, 60% of the caseload is felony cases, there is an average of 24 in-custody defendants per day and 57 out of custody defendants per day. The attendance rate of felony drug offenders is 86% while the attendance rate of low-level misdemeanors remains at 22% (if you have been following the CJC you will remember that the first few weeks were slow because so few defendants showed up, as it turns out that is still the case for low level offenders). There are currently 250 active clients in the CJC, 98% of whom are compliant with treatment.

The most interesting aspect of the discussion revolved around the completion of the holding cells at the CJC. As stated above the court is averaging 24 in-custody clients per day, however the holding cell only has a capacity of 9. The court is now involved in trying to figure out how to continue to work with the same number of in-custody defendants because, according to Judge Albers, these clients are often the ones who benefit most from the services that the CJC has to offer. There is a suggestion that the sheriff may be able to bus the defendants back and forth, but this raises serious cost issues. Judge Albers states that this is “A problem that I am happy to have.”

The topic of this town hall meeting was how to break down barriers to employment in which two former clients of the CJC shared their experiences with fighting addiction and the lure of making quick money by selling drugs while trying to find employment with a criminal record. Ms. Moss then asked for any input from the audience, which did bear some good suggestions including mentorship programs between current and former CJC clients.

Regardless of what you think of the CJC, statistics show that it is growing quickly and may soon need another Judge. Apparently 575 Polk has two courtrooms, one of which has not been used in a long time, and the CJC coordinators are talking about adding another judge to help Albers with his growing caseload. It should be interesting to see how the in-custody matters will work when the holding cell is finally opened within the next few weeks.

Why is California Eliminating Rehabilitation?

Yesterday Prof. Aviram posted analysis of the newest Plata/Coleman panel court order. She points out, "The panel wants to hear more about the use of rehabilitation and reentry in the community as a population reduction measure that might actually improve public safety."

So I thought I'd post this cover story from 10/17 last Friday's LA Times. The piece highlights poignant personal stories of incarcerated, and formerly incarcerated, female addicts. It also provides a damning quote from a recent Schwarzenegger insider: "Kathy Jett, formerly Schwarzenegger's top aide for prisoner rehabilitation, said gangs may attempt to fill the void created by the absence of programs."

For purposes of this blog, though, the article also provides some worrisome statistics.

• Rehab services lose $250 million a year, more than 40% of what they now get and a quarter of the $1 billion total sliced from the prison system.
• "At the same time, the state is eliminating 45% of the seats in its substance-abuse programs for parolees."
• The featured rehab provider previously helped 756 women, and will now reach only 175.

These changes seemed almost calculated to increase addiction and recidivism. One might speculate that even the Governor is knowingly passing on the problem of prison overcrowding to the next administration rather than addressing any of its root causes.

Plata/Coleman Panel: We Were Not Fooled

Here is the order's text, placed on a free hosting service for your convenience. The bottom-line message from the panel: We were not fooled by all the chatter and alternative proposals going on. We read the newspapers. Deliver a plan that complies with our requirements within 21 days.

The panel starts by expressing extreme displeasure with the state's non-compliance:

Rather than reducing the population of the CDCR’s adult institutions to 137.5% of their combined design capacity within two years, it provides for a reduction of the population of those institutions to 166% of their combined design capacity in that period. Additionally, defendants’ plan fails to set forth effective dates for the various actions proposed and fails to provide estimates of the reduction in population they expect to achieve after six, twelve, eighteen, and twenty-four months; instead, it provides estimates of the fiscal year in which actions may take effect and estimated population reductions for each fiscal year through 2014/15. In light of these inadequacies, defendants’ September 18, 2009 Population Reduction Plan is REJECTED.

The panel then responds to the petition for contempt:

Plaintiffs’ response urges this court to initiate contempt proceedings against defendants on the basis of their failure to comply with our August 4, 2009 order. Action on this request is STAYED pending further proceedings detailed below.

The order requires defendants to submit a compliant plan, including explanations of their calculations and projections of reduction. It also addresses a few additional interesting matters:

1) On Sep. 17, CDCR issued a press release regarding rehabilitative program cuts, some of which were mentioned in their plan as essential for the reduction. The panel is referring to this press release, issued only one day before the submission of the reduction plan. What is up with that? asks the panel. Please let us know how this impacts any reduction measures you propose that rely on rehabilitation programs.

2) The panel wants to hear more about the use of rehabilitation and reentry in the community as a population reduction measure that might actually improve public safety.

And most importantly, in my opinion, (3): The panel is well aware of Governor Schwarzenegger's reduction plan, which, as avid followers of this issue may recall, was submitted to legislators, approved in the CA Senate, and then gutted in the CA Assembly. How does that plan match up to the one the state submitted? Would it really lead to a population reduction? Secretary Cate's involvement in the plan was widely reported in the press, says the panel. We read the papers. If this plan has promise, tell us how you'll try to fold it into compliance with our order.

I like the panel's reasoning quite a bit. It's a well-informed, no-nonsense order, which is keenly aware of the political and legislative realities that occurred since the original August 4 order was issued. Number (3) above is a masterpiece of political maneuvering. First, recognizing that the original Schwarzenegger plan had some promise before it was gutted by the Assembly, and that it was supported by Cate, the panel gives CDCR an honorable path of retreat. If, indeed, this plan is folded into the new submission ordered by the panel, it will be a plan that the state has already stood publicly behind. Second, it is a brilliant hint on which direction to go, subverting the failed legislative process: Governor Schwarzenegger gets exactly what he wanted, except he gets it through compliance with judicial authorities rather than through the Senate and Assembly. And third, with the state backing the new plan, the order is more secure against appellate review from the Supreme Court.

Now we wait for 21 days, and we'll report further.

BREAKING NEWS: Plata/Coleman Panel Displeased with State Plan

The Sac Bee reports:

Three federal judges on Wednesday rejected the prison reduction reduction plan submitted to them by the state and gave the Schwarzenegger administration three more weeks to produce a plan that complies with their wishes.

If the court doesn't get one by Nov. 12, the judges said they will order attorneys who represent sick inmates to submit a plan by the end of November, and the judges would order that plan be implemented.

More coverage from KPCC, including an interesting interview with Don Spector, is here.

The inmates have filed for contempt. The court's show of displeasure is less drastic (we predicted slim chances for an actual contempt ruling), but nevertheless, it puts the state in an uncomfortable position. I tend to agree with Jonathan Simon that justifying the new plan as one that keeps public safety in mind is preposterous given the order's language. I also find the court's position strengthened by the lack of stay from the Supreme Court (whatever that might mean on the merits). Stay tuned.

Exporting Defunct Sentencing Policies to Other Countries

One of the things comparative law scholars are interested in is the way in which legal policies are adopted in different places in the world. There are nuances and differences that stem from the cultural background. For example, my colleague Jim Nolan has studied the differences between drug courts in the U.S. and their counterparts in Europe and Canada, finding that reforms have yielded somewhat different reforms. He does conclude, however, that the end result is perhaps closer to the American version than these other countries intend.

There seems to be even less restraint when some countries adopt U.S. sentencing policies, despite what we know about their failure and financial implications.

We could take quite a number of countries as an example, but I'm choosing Israel, mostly for reasons of convenience and familiarity with its legal system. Israel has had, since the late 1940s, a penal code based on a less extreme version of indeterminate sentencing: Every offense has a maximum penalty and a few (such as sex crimes and assault on a police officer) have minimum sentences as well. The parole board is allowed to release inmates only after they have completed two-thirds of their prison sentence, so the overall effect of releases is far less extreme than the equivalent in pre-determinate-sentencing California.

The Israeli system has constantly been in a process of Americanization. U.S. legal initiatives arrive in Israel, usually with a 15-to-20-year delay since their implementation there, and adopted without much systematic, evidence-based reflection as to their success.

A few recent examples include a large-scale plan to shift to determinate punishment. Granted, the new system will not consist of legislator-generated "triads", but it will include a sentencing commission, whose membership is yet to be established, which will decide on "median punishments" for all offenses. These will be the starting point for departures, and the law lists a series of aggravating and mitigating circumstances. The former list is much longer than the latter. In addition, Israeli legislators are hard at work expediting their discussion of several punitive suggestions, including harsher punishment in a long series of crimes (with hardly any evidence of a statistical rise in crime rates), and particularly, of a version of the Three Strikes Law, which, in the Israeli case, will include a 12-year imprisonment sentence for the third felony. The law is somewhat less intense than the Three Strikes Law, but its effects on the prison population will be notable.

As of April 2008, Israel had 305 inmates per 100,000 citizens (the U.S. equivalent at the time was 751). I am not sure whether this rate includes Palestinian detainees and have not been able to find out. There are reports that Israel is already seeing a dramatic rise (close to 40 percent) in the number of inmates since the late 1990s. There has been prison litigation with regard to prisoner rights and conditions. In addition, any of these sentencing initiatives does not only have an effect on judicial discretion, ratcheting up sentences, but also on conviction rates. The Israeli system, just like the American one, is adversarial and works primarily through a very high percentage of plea bargains, leading to a 99.8 percent conviction rate. Each of these new litigation pieces serves as leverage for bargaining. What is going on, then? Are Israelis blind to the American crisis? Don't they know this doesn't work?

The answer is, I don't know; however, part of the explanation lies in the triangle of politicians-media-public, which has been analyzed by many scholars as a petri dish for moral panics and harsher sentencing (see for example this terrific piece by Burns and Crawford on the panic surrounding school shootings). The Israeli media is rife with critique of judicial leniency. In some important ways, they are not wrong. Human sentencing and decisionmaking has a quality of mercy that computers and set tables do not have. In 1986, the late Yael Hassin published the findings of a study that compared release rates between the parole board (consisting of a judge and members in therapeutic professions) and computer-generated statistical prevention. The computer predicted more recidivism and was more often right. Maybe this intangible quality of mercy has effects that spill beyond recidivism prediction to sentencing. And maybe that's not necessarily a bad thing; we will never know how many "false negatives" the computer from Hassin's experiment kept within walls, and would not have reoffended had they been released.

Another part of the puzzle may lie in the different nature of Israeli politics. As opposed to the situation in the U.S., criminal justice discourse in Israel (a multi-party system placing the Israeli-Palestinian conflict at the top of its priorities, leaving room for little else) it does not map neatly onto other political issues that generate bipartisan debate in the U.S. So, when such initiatives are brought up, there is little in the way of organized political response against them.

This analysis might, of course, be different for different countries, each of which examines its penal policy through its particular political and cultural lens. The big question that remains is why the decisions to adopt American policies do not take into account the abounding evidence as to their failure and, in these trying financial times, of their fiscal implications.

------
This post is based on an idea on which I wrote a short piece in Hebrew with Yosef Zohar. Props to Yosef for coming up with the idea and thinking about it with me.

Letters from Sanctuary City: More on the Federal-State Divide

Regular readers may recall our invitation to stay tuned for the San Francisco Board of Supervisors' decision regarding the city's "Sanctuary City" policy. The bill, initiated by Supervisor David Campos, consists of an amendment to the San Francisco Administrative Code, chapter 12H. The amended section now reads:


SEC. 12H.1. CITY AND COUNTY OF REFUGE.
It is hereby affirmed that the City and County of San Francisco is a City and County of Refuge.


SEC. 12H.2. USE OF CITY FUNDS PROHIBITED.
No department, agency, commission, officer or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of federal immigration law or to gather or disseminate information regarding the immigration status of individuals in the City and County of San Francisco unless such assistance is required by federal or State statute, regulation or court decision. The prohibition set forth in this Chapter shall include, but shall not be limited to:

(a) Assisting or cooperating, in one's official capacity, with any Immigration and Naturalization Service (INS) investigation, detention, or arrest procedures, public or clandestine, relating to alleged violations of the civil provisions of the federal immigration law.

(b) Assisting or cooperating, in one's official capacity, with any investigation, surveillance or gathering of information conducted by foreign governments, except for cooperation related to an alleged violation of City and County, State or federal criminal laws.

(c) Requesting information about, or disseminating information regarding, the immigration status of any individual, or conditioning the provision of services or benefits by the City and County of San Francisco upon immigration status, except as required by federal or State statute or regulation, City and County public assistance criteria, or court decision.

(d) Including on any application, questionnaire or interview form used in relation to benefits, services or opportunities provided by the City and County of San Francisco any question regarding immigration status other than those required by federal or State statute, regulation or court decision. Any such questions existing or being used by the City and County at the time this Chapter is adopted shall be deleted within sixty days of the adoption of this Chapter.

The Board of Supervisors meeting agenda illuminates the intent behind the amendment:

Ordinance amending the San Francisco Administrative Code by amending Sections 12H.2, 12H.2-1, and 12H.3 to allow City law enforcement officers and employees to report information regarding the immigration status of a juvenile to any state or federal agency when the juvenile has been adjudicated to be a ward of the court on the ground of felony conduct, the court makes a finding of probable cause after the District Attorney directly files felony criminal charges against the minor, or the juvenile court determines that the minor is unfit to be tried in juvenile court and the superior court makes a finding of probable cause; and to update references to the federal agency responsible for enforcing federal immigration laws.

While this is an interesting development in itself (and in relation to how the entire issue of undocumented immigrants has played in the context of overburdening the criminal justice and correctional system), it becomes particularly interesting when contrasting it with the recent news re marijuana legalization: Why, only yesterday, in a different context, we saw the federal criminal justice apparatus prepared to step away from state affairs, unless state agents were violating their own laws.

The question is, will the feds be as forgiving of undocumented immigrant delinquents as they might be of medical marijuana. Seemingly, in both situations a local entity is creating policy, through legislation, which violates federal rules. However, one indication that these are two very different matters, criminalization-wise, is Mayor Newsom's stance on the subject. The mayor's spokesman, Nathan Ballard, is quoted in the Chron as saying that "the Campos bill isn't worth the paper it's written on -- it's unenforceable and he knows that".

Criminalization and Jurisdiction: Thoughts on the Federal-State Divide

Yesterday's news about the policy to refrain from federal raids on medical marijuana dispensaries raise an interesting issue. One of the criteria, which according to the Department of Justice memo should be taken into account, is whether state dispensaries are violating state law. The implication, theoretically, is that prosecutors that examine dispensaries on a case-by-case basis will have to pay attention to CA procedures and potentially raid CA dispensaries when these violate CA law.

This tidbit has a few interesting implications. First, if the message is, as the memo implies, that prosecutors need to use limited resources wisely, it is unclear whether encouraging the feds to spend time and money inquiring on the (dubious and unclear) status of CA dispensary regulation is an effective use of those resources. The status of dispensaries varies from county to county and from city to city. Are the feds really expected to keep up with this?

Second, is this a message to state prosecutors to "shape up" and enforce state laws in lieu of the feds? If so, it doesn't seem to be a very effective one.

Third, this memo seems to be in contrast of the Supreme Court's decision in Virginia v. Moore (2008). There, the Supreme Court decided that a search incident to arrest conducted in Virginia was valid, despite the fact that the offense in question (speeding) did not allow for an arrest under Virginia law. In a 9-0 decision, the court said that constitutional review was not concerned, at all, with the prohibitions in state law, only with the question whether there was probable cause for the arrest. So, do we only care about state law when it works against the defendant?



And finally, what are the practical implications of the memo's austere tone? Is it just to assure prosecutors that the Obama administration has no plans to legalize marijuana? Perhaps the concerns about future enforcement are unwarranted, and federal prosecutors will just get the general message, which is to back off from dispensary raids.


Click here to hear what my fabulous colleague Rory Little had to say about this this morning on KQED.

Obama and Holder: Feds to Stop Raids on Medical Marijuana Dispensaries!

Federal news that have direct bearing on Californians: The Department of Justice has sent a memo to prosecutors in the fourteen states that allow for medical marijuana dispensation, instructing them to refrain from prosecuting. Here is the original memo, which instructs prosecutors to assess marijuana cases on a case-by-case basis, and to prosecute only when there are sales to minors, firearms, violence, ties to organized crime, excessive amounts of marijuana or sales of other drugs.

The NYT reports:

The politics swirling around marijuana cross ideological lines. For instance, in effectively deferring to the states on some issues involving marijuana, the Obama administration is taking what could be seen as a states’ rights stance, more commonly associated with conservatives. That was a theme that echoed on many conservative and libertarian Internet sites in the wake of Monday’s announcement.

Words From Within Walls

In the course of working on the blog, my correspodence has become more varied than it used to be. Among other things, I get, and treasure, mail from inmates, former inmates, and their families. Sometimes, inmates provide me with accounts of, and perspectives on, their life in prison, and I wanted to share a few of those with readers.

Justin Paperny blogs about his incarceration experience, and has also written a book, titled Lessons from Prison. Paperny has recently been released from a federal prison camp, where he was sent for his part in a Ponzi scheme. In the book, he tells of the misguided decisions that led him to prison in the first place, but also of his transformation within walls. In the blog, and in the book, Paperny describes a daily prison routine that is very different, and in many ways calmer, than that of an inmate at an overcrowded state prison. An undercrowded institution, the federal prison camp allowed inmates to pursue some of their interests; in Paperny's case, what proved particularly effective and redemptory was his exacting exercise and fitness routine, which put him in a better place to examine his life choices. The book really drives home the issue of personal responsibility, which sometimes gets lost amidst social and environmental concerns, and is particularly important in the context of white collar crime.

A completely different (and no less interesting) resource is a blog by Reginald Wheeler, who has spent more than 25 years in prison for a robbery. As appears to be the case from the first post on the blog, Wheeler's fate was decided by sentence enhancements on a robbery, and his blog is incredibly reflective on the long prison years that followed.

Among other things, he writes:

But I'm not writing this to get sympathy. Sympathy is not what the young people need to be feeling.

They need to be feeling and understanding fear, confusion, shame and determination.

They should feel the fear of doing something foolish, which lands them nowhere.

They should understand the confusion about how something could happen and how they would survive if they made the same choices I made.

And they should try to understand the shame that I feel -- the same of knowing that I let so many people down.

Now I know that I'm better than that.Finally they must learn determination in a way I didn't learn it -- the determination wish I had known: the determination not to throw my future in the toilet like that.

As I simply size up my milestone, I can only acknowledge that I had to deal with the pain of this hurtful milestone because I didn't respect, appreciate or fulfill life's normal milestones -- births, graduations, weddings, etc.

It's a simple lesson that I've had to learn: If you don't respect and embrace life's good offerings, you will struggle through and feel the pain of life's bad offerings.

These two very different experiences have made me think of something we don't usually discuss on the blog. Our focus is mostly on the social, political, and economic concerns that surround the prison experience; by speaking about the problem in broad terms, we do not mean to argue that choices, and personal responsibility, are not available. We simply draw attention to the many ways in which the common understanding of choice and personal responsibility does not apply to the prison experience. That is not to say that the choice is inexistant, and that any of us should not feel the obligation to be the best person we can be -- even under the most exacting and limiting circumstances.

I wish that prisons could be, for many more people, institutions of growth, understanding and reflection; I wish that conditions were such that personal responsibility could be assumed and learned, and that better conditions were provided that would allow a broader array of choices for exiting inmates. The system we currently have does not provide these options for a large number of inmates. Overcrowding is not only physically constrictive; it is also soul-deafening. Reflection, remorse, and resolutions to do things better should be part of the prison experience; but they are one side of a coin, whose other side requires providing our prison population the tools to engage in these important processes.

Stay tuned in the next few days for a book review of Sunny Schwarz's Dreams from the Monster Factory, which recounts her experience creating restorative justice programs with the San Francisco Sheriff's Department, which is an interesting attempt to reconcile between the socio/institutional deprivation and the attainment of personal responsibility.

Guard-to-Inmate-Ratios: The View from CCPOA

In the new issue of Peacekeeper, Mike Jimenez, President of CCPOA, discusses prison guard pay cuts and furloughs on the CCPOA website.

As individuals we have a role in the effects of our zeal for our work place. We also have a role in the determination of our own morale. In accepting these responsibilities, we need and respect leaders who have the courage to tell us when things are tough, that we will have to sacrifice and that these difficulties may last for awhile. Leadership requires in these instances that the boss be consistent in the application of cost-cutting measures. It requires that there be a sense of purpose toward a common goal and that the goal be attainable.

We have yet to see these qualities in this administration-so, as the old CDCR saying goes: Expect the beatings to continue until morale improves.

The CCPOA is very critical of the furlough policy, and cites to this Senate report, suggesting that furloughs will not yield real savings for the state. As the report argues, in "round-the-clock" institutions, workers aren't really taking furloughs, and when they are, labor costs are simply pushed to future years. Other articles on the website raise concern regarding violent incidents due to understaffing.

However, the piece I found most interesting was this critique of overcrowding by Kevin Raymond. A correctional sergeant, Raymond discusses overcrowding from the guards' perspective, arguing that safety considerations have made the situation untenable. He discusses the National Institute of Corrections' "direct supervision" principles, which stand in contrast to the classic "warehouse 'em" rationale, but actually do not contradict prison safety. Rather, they promote it.

The principles dictate that staff must know the inmate population and what is transpiring on their turf. You'll note that under these principles the prison belongs to the staff not the inmates–a novel idea.

However, before the principles of direct supervision can effectively be put into play, a few very important things must transpire. Management, supervisors, and line staff all must be willing to admit that what we are doing now is a huge failure. California's recidivism rate makes this abundantly clear. And all must be willing to embrace the change in the mindset. More important, there has to be a reduction in the inmate population without a commensurate reduction in staffing levels.

Raymond moves on to discuss the modeling of juvenile institutions after the successful Missouri model, and the failure to achieve similar results because of overcrowding. He is even more pessimistic about the adult institutions: "The adult side of the house has been reducing actual inmate programs for years, settling on a few time-honored favorites, such as substance abuse training."

The bottom line is quite simple–prison overcrowding is a killer to any real inmate rehabilitation. As well, the current conditions in CDCR's institutions provide for inmates to do nothing more than scheme and plot their illegal activities and disruptions. It is time for both a change in conditions and a change in attitudes. And the principles of direct supervision are critical tools in a corrections toolbox that, unfortunately, currently sits unopened.

The question is, therefore, whether CCPOA will relegate its efforts to the fight against pay cuts and furloughs, or whether it will expand horizons to fight the other side of the guard-to-inmate ratio.

More on Out-of-State Incarceration

California currently houses over 8,000 prisoners in privately-operated, out-of-state facilities. Contracting with private prison companies raises concerns about providing economic incentives for incarceration. I first read of American Police Force here on this blog, last week.

The Talking Points Memo Muckraker has been following this story all along. In particular, check out their excellent post from Monday, telling a fuller version of convicted felon and "'low-level card shark" Michael Hilton bringing American Police Force into impoverished Hardin, MT.

Compare and Contrast: Empty Beds in NYC

Robert Gangi's New York Times Op-Ed yesterday provides an interesting contrast to California's overcrowding. In New York, prison population has declined from 71,600 in 1999 to about 59,300 today, accompanied by a decline in crime rates. Gangi, who is Executive Director of the Correctional Association of New York, believes that further improvements are necessary:

For starters, state lawmakers could repeal the Rockefeller mandatory sentencing provisions that remain on the books. They could also increase the number of participants on work release. In 1994, more than 27,000 people were in this time-tested program that helps them manage the transition back to their communities. Today, about 2,500 are enrolled.

In addition, the state could reduce the number of people — last year, more than 9,000 — who are returned to prison for technical parole violations like missing a meeting with an officer or breaking curfew. Most experts agree that for about half of these people it would be safer and smarter to enroll them in re-entry programs or provide more supervision. Also, more prisoners with good institutional records could be given parole. And eligibility for so-called merit time, which reduces prison terms for inmates who complete educational and other programs, could be expanded to people convicted of violent offenses many years ago.

Taken together, these actions could cut the state’s prison rolls by 5,000 to 10,000 more, enabling the governor and the legislature to close at least four prisons the size of Attica, which holds 2,100 inmates, or a greater number of smaller facilities.

The Rockefeller Drug Laws, which the Correctional Association protests, were enacted in 1973 and included harsh minimum sentences for drug offenses, including non-violent possession. After decades of this problematic regime, a current 2009 reform is rolling back some of its effects, including cancellation of minimum sentencing, an expansion of therapeutic options, and, interestingly, allowing retroactive resentencing of drug offenders. This unusual step stems from the 2005 conversion of certain drug offenses from class "B" offenses, which in NY require indeterminate sentences, to lower class offenses. Offenders sentenced before this change will be able to petition the judge and be resentenced, a possibility that will affect 1,500 current inmates.

These are bold steps, and one can only guess what we would be able to accomplish were our processes and priorities similar to the ones of the New York legislature.

-----------------------------
Props to Jessie Daniels for drawing my attention to this.

CDCR Report: Parole Violations

The CDCR report, which we previously discussed here, provides some information about the rate of parole violations and their role in overcrowding.

On December 31, 2008, there were 123,597 felons and civil narcotic addicts on parole in California, a 2.6 percent decrease from 2007. During 2008, 142,954 offenders were admitted to an institution as a new admission or a parole violator and 139,535 offenders were paroled, discharged or otherwise released from custody.

The report also provides some data on parolees who were returned to prison, which would allow us to discuss recidivism, to some extent.

If I am interpreting the data correctly, the following two graphs show the percentage of inmates with a previous parole history out of all prison population (if I'm mistaken, please correct me). If that is the case, it would appear that a bit over 10% of all male prison population and around 12% of the female prison population are in prison for violating their parole terms. The report in itself does not provide us with any information about the type of parole violation that led these parolees to prison, and one would hope that parole reform is shifting toward a focus on serious violations, rather than "technical" violations of terms.

The other bit that merits some attention, however, is the blue line, which, if I understand correctly, depicts the number of entering inmates arrested for new crimes who also happen to be parolees. These numbers say less about the scope of parole enforcement and more about its job providing hope, rehabilitation, and a new future for people leaving prison. Even if we are not rearresting people for parole violations at the rate we thought we were, we're still not doing a great job creating opportunities and incentives that pull people away from new crime.

Regulation of Medical Marijuana Dispensaries Coming to CA?

Today the New York Times has a good story on state regulation of medical marijuana dispensaries. This debate has a renewed impact on California this week, as Los Angeles County District Attorney Steve Cooley told reporters yesterday he will resume targeting medical cannabis dispensaries for prosecution. Explicit state regulation of medical cannabis dispensaries would save California's criminal justice system the costs of arresting, prosecuting, and incarcerating people who fall into the cracks opened by the vagueness of this state law.

When California passed the original state medical marijuana law in 1996, no specific regulations were included for state regulation or licensure of medical marijuana sales, supply, or distribution. Since then, three digits' worth of Californians have been prosecuted over this ambiguity (partial list here). 13 states now have medical marijuana laws (comparative guide here). In 2009 New Mexico became the first state to have its Department of Health license and regulate a non-profit medical marijuana distributor, a delivery service. This June, Rhode Island became the first state to legislate that its Department of Health will license and regulate a non-profit retail Compassion Center.

Before coming to Hastings this fall, I worked for several years as the executive director of the Rhode Island Patient Advocacy Coalition, RI's medical marijuana community. Besides educating professionals, organizing patients, and forming a coalition, we lobbied for the 2006, 2007, and 2009 state laws authorizing and amending the Medical Marijuana Program. Throughout our successful efforts to regulate statewide distribution of this therapeutically beneficial substance, we faced the obstacle of the argument that we would make RI "like California, like the Wild West." Now that New Mexico and especially Rhode Island have established regulatory models, California should model medical marijuana dispensary rules on other states' effective programs.

Why Overcrowding?

The CDCR Annual Report, which we began discussing here, provides some important information on the composition of the CA prison population, which might help decipher some of the mystery behind overcrowding.

In an interesting piece published last year, John Pfaff argues that prison population growth is not so much a factor of lengthy sentences (through such legislation as Three Strikes) but more of an increase of inmates serving short sentences. He also cautions against assuming that most of the population increase is a product of parole violations. His study, however, did not include California. The numbers provided by CDCR do not provide a conclusive explanation of what is going on, but they do allow some thought about the source of overcrowding.

Here, for example, is a snapshot of the breakdown of new admissions to CA prisons.

As we can see, a large percentage of new admissions, albeit not the majority of them, is due to parole violations. When focusing only on people admitted to prison for new offenses, the following picture emerges:

Serious, violent offenses, constitute a non-negligible, but by no means dominant, percentage of all admissions. When considering admissions for new offenses, violent offenders are about 33% of all incarcerations. However, when considering that new offenses provide only 25% of all inmates, it would appear that offenders incarcerated for violent offenses are only about 8% of all inmates.

What about the Three Strikes Law? The numbers of second- and third-strikers seem to be rather low.

Note that, while these lengthier incarcerations account for only a very small percentage of all inmates, their advanced age and medical expenses might account for a large part of the CDCR budget.

Stay tuned for an analysis of the parole data.

KPBS Program on Prison Crisis

Yesterday, KPBS broadcasted a program on the prison crisis, interviewing Lt. Anthony Gentile at the Folsom State Prison about the dramatic changes in prison population and managements since the 1970s. Other people mentioned, quoted, and interviewed, include Jeanne Woodford, Lance Corcoran, former CDCR secretary Roderick Hickman (speaking about his relationship with CCPOA), other prison employees and inmates. The program provides an overview of the crisis from multiple perspectives.

----

Props to Jerry Jarvis for sending this my way.

CDCR's Annual Report Published

(click on images to enlarge)

CDCR has just published its annual report, which you can download in its entirety. Secretary Cate's optimistic introduction reads:

In the midst of significant challenges, the California Department of Corrections and Rehabilitation (CDCR) has quietly had a remarkable string of successes in the last year. While it is easy to focus on the negative, there have been many positive developments at our agency.
The report mentions some of these developments:

• Population reduction: 166,569 inmates in August 2009 (as opposed to the all-time high of 173,479 in October 2006); 111,308 parolees in August 2009 (as opposed to the all-time high of 128,108 in August 2007).
• Decrowding through out-of-state transfers: nearly 8,000 inmates - meeting the goal set in AB 900
• Decrease in number of "bad beds" from 19,618 (all-time high in August 2007) to 10,568 in August 2009 (lowest level since the 1990s)
• Some progress with the new evidence-based system for addressing parole violations
• Increase in participation in academic (50 to 62 percent) and vocational programs (42 percent to 55 percent) (data here is updated to December 2008 - why?)
• Continuous improvement with medical services (the Receiver, Clark Kelso, credited here as working collaboratively with Secretary Cate)
• Improvement with the "prisons go green" project
• Increasing reliance on GPS monitoring
• Reforms in juvenile correctional system
• Implementing risk and needs assessment in all 12 reception centers (including Chino?)

Some important budgetary numbers:

• The average annual cost per california inmate in 2008-09 was $48,536. Of this, aproximately $16,000 per inmate goes toward medical, mental health, and dental care.
• Between 1998 and 2009, CDCR’s budget grew from $3.5 billion to $10.3 billion. In the 2009-10 budget, CDCR received a $1.2 billion cut, which is expected to be achieved through significant cuts to headquarters, operational savings, “right-sizing” of DJJ, and population reductions.

We'll be devoting a few posts over the next few days to an analysis of the data provided in specific sections of the report. We hope you'll find them useful.

Today: "Sanctuary City" Discussion by S.F. Supes

Today, the Board of Supervisors is expected to discuss David Campos' proposal to refrain from contacting the feds in cases of juvenile offenders who are also undocumented immigrants, unless these offenders have committed felony. And it seems most Supervisors are on board.

The proposal is not new; a similar version of "sanctuary policy" existed under the radar in San Francisco until it was exposed by the Chron in September 2008. At the time, following the exposé, the Mayor reversed the policy, and services reported such offenders to the feds for deportation.

The new policy would not, exactly, be a legal violation. As Rick Hills explains in this illuminating blog post, Congress cannot require states to enforce federal immigration law, especially when it violates state law. Circuit court decisions to the contrary are quite problematic in their legal reasoning (supposedly, the rationale is, as Rick puts it, that the feds are not "commanding" anyone to do anything: federal law simply stopped non-federal officials from interfering with other people's decision voluntarily to cooperate with the feds).

This also brings up, yet again, the preoccupation with undocumented immigrants throughout the policy discussions of the crisis. The Supervisors' decision would be at odds with every correctional saving plan we've seen in the last few months, all of which rely on massive deportation protocols, sometimes haphazardly conducted. The fate of CDCR layoffs has been attributed by CCPOA officials to the inability to deport 19,000 inmates. Some institutions have built-in hearing programs prior to deportation. As explained by Matthew Cate in this CDCR video from March, discharging prospective deportees is a money-saving strategy (10 million dollars annually).



The San Francisco policy would provide a contrast to this trend.

Another Out-Of-State Jail Plan Collapses

For the last few years, the state of California has relied on out-of-state prisons to relieve overcrowding. According to a Prison Law Office report, as of December 2008, over 5,800 male California prisoners were housed in out-of-state facilities. The CDCR’s goal is to house a total of 8,000 prisoners in other states. There are currently five active out-of-state facilities, which are located in Arizona, Mississippi, Oklahoma and Tennessee.

Remember the failure of the attempt to reach an agreement about housing inmates in Michigan? Another attempt, to take over an empty Montana Jail with a 464-bed capacity, is not looking promising. A lawyer has quit and a company once listed as a subcontractor now denies involvement in the project. What is going on? AP writer Matthew Brown reports on the Chron:

Those moves followed revelations earlier in the week that Michael Hilton — the lead figure of the company, American Police Force — is a convicted felon with a history of fraud and failed business dealings in California.

"We met with him and he asked us if we can support him," said Edward Angelino, chief executive of Allied Defense Systems, an Irvine, Calif.-based defense contractor. "We checked his background, we checked his company. He's not an adequate person to do business with."

Much has been written about the merits and pitfalls of prison privatization. Many scholars raise serious concerns about the impact of privatization on the treatment of prisoners. As Oliver Hart, et al, argue in this piece on the Quarterly Journal of Economics, the risks of privatization include the contractor's strong incentive to reduce costs, ignoring the adverse effect on non-contractable quality. Judith Greene cites several examples of violence and cruelty, not to mention standards falling beneath constitutional minimums, in privatized prisons. The Heritage Foundation holds a more positive view of prison privatization. As Travis Pratt shows in this piece in The Prison Journal, it is fairly difficult to reach conclusive findings based on the studies conducted so far to compare confinement standards in public and private prisons. It seems that the Montana deal has the added complication of being an out-of-state facility. I suggest watching this very closely over the next few weeks; as the overcrowding relief plan approved by the legislature has not even come close to what is necessary to alleviate the financial problem, and as litigation of the Plata/Coleman decision proceeds, more information of this sort may come to public attention.

NACDL Publishes Report on Drug Courts

(drug court graduation image courtesy SF Collaborative Justice blog)

It seems that Jeff Adachi's reservations about the Community Justice Center (as expressed here and here), which are not unrelated to the Public Defender's Office's dramatic budget cuts, are not an isolated phenomenon. Yesterday, the National Association of Criminal Defense Lawyers released its report on drug courts.

The NACDL's broader concerns address the basic model through which we address drug crime. The report advocates shifting our perception of drug addiction from a criminal justice problem to a public health issue, which implies decriminalization (in the spirit of these trying times, the budgetary implications of legalizing marijuana are mentioned). However, the report realistically acknowledges that wholesale decriminalization is unlikely in the near future, and therefore turns to discuss policies in drug courts, which have gained increasing support and momentum since the establishment of the first drug court in 1989.

Within that context, the review raises various concerns about disparities and violations of constitutional rights in the drug court processes. The report points out the jurisdictional variation in admission criteria. The concern is that non-systematic criteria are being used, or that systematic criteria, such as excluding violent offenders altogether, might lead to the exclusion of mentally health offenders. NACDL protests this practice, which they call "skimming", and which leads to a preference for the easy cases. They are particularly concerned with the underrepresentation of minorities and indigent defendants. There is particular concern with the fact that prosecutors act as gatekeepers in many jurisdictions (a practice forbidden here in CA, through Prop 36). As to concerns about accessibility, mechanisms should be put in place to ensure the availability of drug courts to minority and poor defendants, including transportation to and from the court, and avoiding deportation of immigrants who have successfully completed the program.

NACDL also takes issue with the way criminal processes are handled by the court. The court sabotages discovery proceedings and suppression motions. Any arguments against police behavior, egregious as they may be, lead defendants out of the courts and into the "real" court for litigation purposes. The report raises the classic defense attorney's concern: the privilege against self incrimination. Defendants, the report argues, should not have to plead guilty before accessing treatment; there is nothing lost by adopting a pre-plea, pre-adjudication model. The court must insist that the state have a triable case, and immunity should be granted to all information divulged in drug courts. Ex-parte communications should be diminished. Also, the judge supervising the treatment should not be the judge hearing the case after termination.

Another source of concern is the price paid by defendants who try the program and fail. The price of unsuccessfully attempting to treat oneself should not be vindictive sentencing.

One of the NACDL's main beefs with the administration of some drug courts is with what the report sees as a misperception of the defense attorney's role. Zealous defense, they argue, is often viewed as obstruction of the therapeutic goal and an inability to "think outside the box". This problematic approach stands no only in the way of zealous and creative advocacy, but also in the way of attorney-client privilege (particularly problematic when counsel has information on drug relapses). Two problematic practices are resorting to limited-retainer agreements, in which the lawyer handling the case in drug court is shut out from the other aspects of the case, and having "stand-in counsel" in these courts rather than one committed to the specific client. The Defense Bar must have a more active role in shaping drug courts.

The report argues against a misallocation of public resources. Drug courts are an expensive option, which should be reserved for high-risk defendants facing long jail terms. Low-risk defendants should be diverted to less costly options, such as "under the radar" programs and case dismissals.

NACDL make their recommendations in this video, as well. All administrative materials used for the report, as well as the hearing transcripts, are online.


The report is rather concise and methodical, and it represents, of course, the perspective of defense attorneys. One possible argument I would raise is with the selection of defendants for the court. While access to all regardless of class and race is a must, I think that the likelihood of success is a legitimate criterion for selection. In a therapeutic program, therapeutic, rather than criminal, concerns, should guide admission. However, we should ensure the therapeutic nature of the program. Not an easy thing when our approach to substance abuse is entangled with criminal law inflation and moral hysteria.

______________________
props to Lisa Faigman for sending the report my way.