Saturday, January 30, 2010
"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
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.
Thursday, January 28, 2010
Tuesday, January 26, 2010
More interesting items today on the Legislative Analyst's office website: This time, LAO examines the Governor's proposed constitutional amendment to limit correctional expenditure to 7 percent of General Fund support and to set a minimum of 10 percent for California public universities.
Monday, January 25, 2010
The Legislative Analyst's Office (LAO) has just released its report assessing the Governor's population reduction plan. The full text of the report can be found here. Here's the gist of the report.
The report recommends that the legislature consider four issues when assessing proposals: budget savings, actual reduction in population, public safety, and imposition on local jails and counties. Based on these criteria, LAO finds that the governor's plan achieves some savings, but is overstated, partly because of the delays in state employee layoffs.
As to the population reduction, LAO estimates it at 24,000, which is considerably less than the Plata/Coleman requirements, but which "would put the state closer to meeting that poten‐ tial target. Moreover, it could reduce the need for the prison construction projects authorized in Chapter 7, Statutes of 2007 (AB 900, Solorio) to help alleviate the state’s prison overcrowding problem."
LAO sees no compromise in public safety stemming from the proposals; short-term offenders would still be incarcerated, albeit in cheaper facilities, and prisons can accommodate the more dangerous offenders. It expresses, however, concern about depleting local resources by overcrowding jails. Also, in points out some possible unintended consequences: the proposal could be misconstrued to suggest that offenders with prior records must be convicted for a felony if committing one of the offenses in the proposal.
LAO recommends adopting the proposal, albeit with several modifications: Allowing counties to rely on alternatives to incarceration; revise the language; and consider adding reliance on GPS for elderly and infirm prisoners.
While I'm sorry for this family's loss, this argument widely misses its target, even leading aside overarching concerns balancing free will and personal responsibility versus paternalism. As if criminal penalties, the loss of the right to liberty itself, would not deter someone who would be deterred by monetary penalties. Further, under civil asset forfeiture laws, someone already convicted of selling or manufacturing drugs is already potentially liable for basically everything they own. To return to personal responsibility, is our next step start suing alcohol producers for alcohol poisoning or drunk driving fatalities?
Sunday, January 24, 2010
In November of 1996 California voters passed Proposition 215 (“the CUA”) which provided official legal protection for the medical use of marijuana in California.The CUA decriminalized the cultivation, possession and use of marijuana by “seriously ill” patients with a doctor’s recommendation and also allows the cultivation and possession by a patient’s caregiver. Its stated purpose was to ensure that “seriously ill Californians had the right to obtain and use marijuana for medical purposes” when appropriate and recommended by a doctor, and to ensure that patients, their caregivers, and doctors “are not subject to criminal prosecution or sanction”. While the CUA was a landmark step, it is an unclear, principal driven statute, which caused a list of difficulties: one was that it established no way for medical marijuana patients to verify their legal status—patients were arrested because police officers were not required to trust that patient’s recommendations were valid.
Victims-rights advocates counter that the state made a mistake in offering any religious meals. Prisoners lost those rights when they committed a crime, said Harriet Salarno, president of Crime Victims United of California.
"It would be cruel if we denied them food ... but we're not denying them nourishment," she said. "This country is made up of all kinds of religions. Where is it going to end?"
Friday, January 22, 2010
As this morning's Chron reports, Meg Whitman is currently the leading candidate in the GOP gubernatorial race. A few weeks ago we provided some information on Jerry Brown's correctional policies. Today, we'll take a look at Whitman's profile on correctional issues. Her website offers the following promises to California voters:
As Governor, I will:
Strongly oppose any state or federal efforts that lead to early release of prisoners
Build new prisons to address overcrowding and seek to extend existing authority to incarcerate prisoners outside of California
Demand that the federal government accept fiscal responsibility for incarcerating the 19,000 prisoners who illegally entered the U.S.
Support the “Three Strikes and You’re Out Law”
Enforce the death penalty and other key public safety measures
Work with local law enforcement to develop effective crime prevention and rehabilitation programs that don’t jeopardize public safety
Oppose an unelected and unaccountable sentencing commission
These are irresponsible, empirically unfounded, morally reprehensible and fiscally unsound policies. I hope Ms. Whitman will reflect further on her plans to reduce government spending, and realize that corrections constitute a large portion of such expenditures.
Contextually, it begins with Judge Gorsalitz's drug court in Kalamazoo, MI. The writer's title, "America's new touchy-feely war on drugs," and tone suggest amusement or even contempt for the drug-court approach, but then the litany of drug war harms and legalization benefits belies a different understanding.
The piece favors Judge Aim's Project Hope in Hawaii, which saves money by making drug treatment voluntary not mandatory, and uses penalties of short jail stays instead of reinstating full sentences. Of course, here in the City&County of SF we have Judge Albers's Community Justice Center -- for its drug court context see Prof. Aviram's post here.
Wednesday, January 20, 2010
Tuesday, January 19, 2010
The Court ruled that it had no jurisdiction, at this point, to review a lower federal court’s order that would require the state of California to release upwards of 40,000 inmates from its state prisons to ease overcrowding that the lower court blamed for inadequate medical care in the 33 prisons. The Court noted, in a brief order, that a new order has been issued in the case, “but that order is not the subject” of the present challenge. It also took note of the fact that the latest lower court order has been blocked pending “review by this Court” — an indication that the Court expects the state to file a fresh new appeal to challenge the order now in effect, issued earlier this month. Lawyers for state officials have said they would promptly file a new appeal. (The cases are Schwarzenegger v. Plata, 09-416, and California Republican Legislators v. Plata, 09-553).
What this means, in a nutshell, is that the new order issued by the court in October, prompted by the state's noncompliance with the original August 4 order, is now in effect. Since the Supreme Court has been asked, by the state, to review the previous order, it has no jurisdiction now that the previous order has been vacated.
Is this merely a technical issue, which will be sorted out once the state submits an appeal regarding the new order (have no doubt that they will), or does this mean that the Court is signaling its unwillingness to deal with the issue altogether? That's anyone's guess. I may be reading too much into this, but it seems to me that SCOTUS is not excited about the prospect of digging into the California issue. In any case, at least for now, population reduction is to go on as scheduled.
Sunday, January 17, 2010
As you might imagine, we get a lot of emails from blog readers. Much of our recent correspondence involves family members of lifers--many of them third-strikers--who are anxious to know how the Plata/Coleman release order, or the Governor's plan to reduce prison population, might affect their relatives in prison. The answer, of course, is anyone's guess; but from the discussions before the court, it would appear that the releases would mostly apply to short-term non-violent drug offenders. Our sympathies, as a society, are often placed first with inmates from this category, rather than with those incarcerated for longer periods, especially for violent sentences. This is why John Irwin's last book, Lifers, makes for such an interesting read.
Friday, January 15, 2010
We'll have to wait and see whether the Governator's case is denied or relisted. There have been further developments in the lower court, and the appellant just filed a second supplemental brief yesterday, so possibly they took it off the calendar to give the opposing party a chance to respond.
We will follow up and keep you posted.
My own piece, Humonetarianism: The New Correctional Discourse of Scarcity, builds on insights developed during my writing for this blog, for the San Francisco Bay Guardian, and for the Daily Journal. I welcome comments and thoughts on it.
Thursday, January 14, 2010
Props to Rory Little for informing me of this.
Monday, January 11, 2010
Friday, January 8, 2010
The proposal identifies three main cost drivers. The first, which comes as no surprise to those following Gov. Schwarzenegger's relationship with the CCPOA, is correctional officer salaries, which the proposal states to be "33 percent higher than the average salary for comparable positions in other jurisdictions". This does not bode well for CCPOA, and their already shaky relationship with the Governor might become shakier.
The proposal points to parole-related costs as the third source. These are expenditures incurred by changes in parolee population, as well as "payments to local jurisdictions that temporarily house inmates on behalf of the state"; in other words, the collateral damage from solutions to overcrowding.
- A rather small decrease in inmate and parolee population;
- A decrease in expenditures on juvenile programs, stemming from the closure of several institutions, accompanied by a very small decrease in population;
- An increase to the Receiver's budget, devoted to hiring nursing personnel and establishing a proper system of medical records;
- Parole reform.
The proposal repeats some of the previous measures recommended by the governor for reducing the prison population, such as using GPS monitoring as an alternative to incarceration, enhancing the usage of good time credits, shifting some inmates to serve sentences in local facilities, more intermediate sanctions for parole violators, and less expenditures by the Receivership on medical care. The proposal also calls for reimbursement from the feds for housing undocumented immigrants in state prisons.
Housing for just one person on death row costs $90,000 more per year than housing in the general prison population (itself a hefty $50,000 a year). That means we are now paying an extra $63 million a year for death row housing. If the governor acted right now to convert all death sentences to permanent imprisonment, he could cut that much from the corrections’ budget today. Plus, we wouldn’t have to spend $400 million to build a new, expanded death row. And we would save millions more in legal fees.
Thursday, January 7, 2010
Wednesday, January 6, 2010
To realize cost savings in corrections, the amendment expands the authority of the California Department of Corrections and rehabilitation (CDCR) to lower costs by contracting with entities outside state government for prison operations and services. In line with the Governor’s commitment to public safety,the measure prohibits releasing prisoners early as a means of reducing costs.
Tuesday, January 5, 2010
The institute’s recent decision to abandon the field was a compromise. Some members had asked the institute to take a stand against the death penalty as such. That effort failed. Instead, the institute voted in October to disavow the structure it had created “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”
That last sentence contains some pretty dense lawyer talk, but it can be untangled. What the institute was saying is that the capital justice system in the United States is irretrievably broken.
A study commissioned by the institute said that decades of experience had proved that the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections.
Roger S. Clark, who teaches at the Rutgers School of Law in Camden, N.J., and was one of the leaders of the movement to have the institute condemn the death penalty outright, said he was satisfied with the compromise. “Capital punishment is going to be around for a while,” Professor Clark said. “What this does is pull the plug on the whole intellectual underpinnings for it.”
Props to Michele Armstrong and Charles Cameron for the link.
Monday, January 4, 2010
18-year old Adam Smith went out drinking late one night with a friend. After some heavy drinking, they take some cocaine Smith's friend brought along. Intoxicated and high on drugs, they decided to throw fruit at cars from a walkway on an overpass. One orange seriously dented the front hood of a police officer's vehicle as the officer was finishing her shift for the night. The two friends began laughing, but realized it was now time to run. When the police officer caught up to them, Smith's friend immediately gave himself up but Smith defiantly resisted and tried to punch the police officer, striking her left shoulder and forcing the police officer to use her police taser.
On the advice of his public defender, Smith entered a guilty plea before Judge Foltz, known for her cautious leniency towards defendants who admit their crimes and save the taxpayers the expense of a long trial. At sentencing, Smith insisted that his crimes that night were childish indiscretions. He told Judge Foltz that a few days before the evening in question, he found out his father was cheating on his mother and that they would be getting a divorce. Depressed and in need of "self medication" he went out and tried drugs for the first time, and made a series of poor decisions because his friend thought cocaine would make him feel better.
Smith maintained that he was simply rebelling against the situation when he went out and did not know how to handle himself. His acts were the unfortunate byproduct of not being in his right state of mind. He promised it would never happen again. Smith's parents testified on his behalf, and lamented that really, this incident was all their fault. Judge Foltz was reluctant to take Smith at his word, but she sympathized with his argument that it was a youthful indiscretion and found no evidence that Smith was a "bad apple." To avoid letting him get off "scott free" for what are serious offenses but also to not unnecessarily institutionalize an otherwise good kid and ruin his prospects of college, she told Smith that she would suspend imposition of his sentence and place him on probation for a period of three years if he made restitution for any damage. Only days before his three year probation was to be over, Smith robbed an elderly woman at gunpoint at an ATM.
Now Smith went before Judge Holmes, known for his no-nonsense approach to criminal defendants. Because Judge Foltz suspended imposition of Smith's prior sentence, Judge Holmes gets to determine the sentence for all three crimes: the first two crimes (vandalism and assaulting a police officer), as well as the subsequent crime, armed robbery. Holmes throws the book at Smith, giving him the statutory maximum for all of the crimes, including a mandatory 10-year sentence enhancement for using a gun during his robbery, giving him a total of 25 years in jail. Smith now wished he hadn't gotten off "scott free" in front of Judge Foltz, and simply received a reduced sentence.
It's easy to see the downside to a defendant where a Judge suspends imposition of a sentence. A subsequent Judge will sentence the defendant knowing what crime the defendant went on to commit, and that inevitably colors a Judge's perception of the defendant's earlier offense. Judge Holmes looked at the mitigating circumstances of the original offenses differently from Judge Foltz, and rather than seeing them as youthful indiscretions, saw a young man committing crimes of escalating seriousness who did not take advantage of the break Judge Foltz gave him. Holmes likely felt that leniency would not do Smith any favors, who did not seem to learn from his mistake when he avoided prison time following Smith's first encounter with the justice system. Moreover, Judge Holmes was forced to make his decision about the subsequent crime while carefully examining the details of a prior crime necessary to formulate his sentence, making the Judge less sympathetic about any mitigating circumstances of the subsequent offense as well.
There's an obvious objection to this tool, which is that the subsequent crime cannot be considered as part of the sentencing of the original offense and vice-versa. Strictly speaking, they can't. But a Judge probably cannot escape what he or she knows about the defendant's subsequent and prior conduct, and thus whatever mental barriers which have been erected to compartmentalize the analysis are likely to be ineffective. A judge may simply be careful to not articulate her sentence for the earlier offense in terms of what happened in the subsequent crime.
From a Judge's perspective, suspending imposition of a crime is preferable to granting a lesser sentence. Such a tool allows a Judge to distinguish between a "career criminal" and a someone who committed a "youthful indiscretion" while preserving the system's ability to revisit the issue in light of subsequent conduct. It is likely that the tool allows a Judge to grant mercy more often by reducing the cost of leniency and allows a more accurate sentence in a subsequent proceeding because of superior information. Moreover, with the prospect of an even harsher sentence the second time around, it can serve as a greater deterrent to subsequent crime. Of course, this assumes the criminal mind rationally calculates his or her behavior based upon the length of sentence.
Nevertheless, suspending imposition of a sentence may satisfy both the DA-minded and PD-minded alike by keeping one-time offenders out of jail but increasing the sentence of repeat players. Many lawyers would appreciate the increase in discretion such a tool affords a judge, although others might fear the punitive aspects of its application. But on the whole, the ability to suspend imposition of a sentence increases the discretion of a Judge and therefore reduces the power of other institutional actors like prosecutors who might vigorously oppose leniency under any other circumstance.
We cannot be penny-wise and pound-foolish. The time to act is now. If implemented effectively, the bills not only have the ability to pay for themselves but can provide significant savings to taxpayers in future budget years. This is not fantasy or fiction; the proof can be seen in the active bipartisan success so evident in Newark right now.
My favorite citation is their use of the ACLU National Prison Project's new report "Michigan Breaks the Logjam: A New Model for Reducing Prison Populations." Michigan reduced its prison population by over 8% in about half a year, primarily through justice reinvestment. This leads me to think about how many more teachers, students, doctors, nurses, patients, etc. California could afford to subsidize, were we to reduce our state prison population by as much as 8%.