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.

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Props to Jessie Daniels for drawing my attention to this.