Sunday, October 26, 2008

Funding the Community Justice Center? SF Prop L

(image taken from a great report on

Today's Chronicle reports on the controversy regarding the sources of funding for San Francisco's Community Justice Center, scheduled to open its doors on February 2009.

The article presents the following analysis of the CJC proposition:

Proposition L

What it is: The measure would guarantee funding for the Community Justice Center, a special court to prosecute misdemeanors and nonviolent felonies in the area bounded by Gough, Bush, Kearny, Third and Harrison streets. It would also grant the mayor and Superior Court power to determine which crimes are handled there and expand its jurisdiction.

Arguments in favor of it: Nobody is served by the current system, which cycles perpetrators of low-level crimes in and out of jail without addressing their underlying problems, such as drug and alcohol addictions and homelessness. The court would sentence them to social services and community service to pay back the neighborhoods.

Who supports it: Mayor Gavin Newsom, District Attorney Kamala Harris, the Chamber of Commerce.

Arguments against it: The court would criminalize behavior that comes with being poor like illegal camping and aggressive panhandling. Also, the Board of Supervisors already funded the court, so what's the point of the ballot measure?

Who opposes it: The majority of the Board of Supervisors, advocates for homeless people.

Some inaccuracies in the report should be mentioned: while it would appear that the court is especially aimed at "quality of lifers", its jurisdiction is, in fact, more geographic than anything else. The court's jurisdiction extends over several blocks of the Tenderloin and SOMA. According to Commissioner Albers, who spoke recently at a town hall meeting about the CJC, the only offenses excluded from its jurisdiction would be violent felonies.

The other big issue is whether the court would lead to criminalization of poverty. Proponents argue that city residents will be entitled to the social services pre-conviction, and sometimes even pre-charging; this might ease the concerns on the part of community advocates. However, it does raise the more general issue of "widening the web".

The concept was first introduced by Stanley Cohen, in his masterful 1985 book Visions of Social Control. Analyzing, among other issues, the movement toward decarceration (we could all use some of that!), he suggests that the addition of non-incarceration, welfare-oriented sentencing alternatives carries the risk of dragging into the government's net people who would otherwise be left out of supervision. Cohen sees this aspect of the alternatives in a grim light, but your mileage may vary.

In any case, it is an open question whether, by voting for or against Prop L, you would be sealing the court's fate. As reported by the Chron, the court does count on grants, and other sources, for a large part of its operation over the first year.

Happy voting, and stay tuned for a final election post, on SF's Prop K.

Saturday, October 25, 2008

California Prison Disaster

California's correctional crisis is increasingly gaining national attention. In an editorial today entitled, "The California Prison Disaster," the New York Times notes that California "has the largest prison population, the highest recidivism rate, and a prison budget raging out of control."

What is to be done? The Times argues that "the solution for California is to shrink its vastly overcrowded prison system," by moving "away from mandatory sentencing laws" and by reforming what is "perhaps the most counterproductive and ill-conceived parole system in the United States."

The Times isn't optimistic the state can turn itself around. "State lawmakers . . . have failed to make perfectly reasonable sentencing modifications and other changes the prisons desparately need. Unless they muster some courage soon, Californians will find themselves swamped by prison costs and unable to afford just about anything else."

We couldn't have said it any better.

Monday, October 20, 2008

Focus on Proposition 9: Introducing Victims' Perspectives to Corrections

In 1964, Herbert Packer published his classic piece (later to become the centerpiece of his 1968 book), Two Models of the Criminal Process. The piece, inspired by the Warren Court changes to criminal procedure, presented two hypothetical models of criminal justice administration: the Crime Control model, whose main purpose is efficiency, and the Due Process model, which aims at reducing mistakes. In a crime control model, the process is shaped to weed out, at the earliest stages, cases in which guilt is dubious; the best way to do this is in the police investigation stage, which is not hindered by legal technicalities, and which is ideally designed for investigative truth-finding. After the problematic cases are removed from the system, we can assume a statistical, non-normative, "presumption of guilt" about the other cases, which can later be handled via plea bargaining. By contrast, a due process model is willing to sacrifice efficiency for the purpose of avoiding any chance of convicting the innocent. It therefore includes various guarantees for defendants' rights, including the normative "presumption of innocence", and indicates a preference for adversarial trials as truth-finding mechanisms over biased and overzealous police investigations. Existing legal systems, Packer suggested, could be placed along the spectrum; the Warren Court's enterprise could be explained as a shift along that continuum from crime control to due process.

Packer's analysis became a classic in the field, but was immediately the source of much criticism. Some argued that crime control and due process were not both hypothetical, normative models; while due process was a normative prescription, much empirical research conducted in the 1960s and 1970s showed that the realities of crime control subverted constitutional provisions. Others pointed out the absence of an important factor: the victim.

Soon after the publication of Packer's work, John Griffiths argued that the typology does not offer the opportunity for less adversarial, more conciliatory models, which might help victim and offender, with the help of the community, bridge their differences. A different type of victim-inclusive model was provided by Douglas Evan Beloof, who argues that a model sensitive to victims requires adding that third perspective. In his 1997 article, he argues that victims' rights are not adequately served by automatically aligning them with crime control and "war on crime" models. While sometimes victims seek more punitiveness and safety, in other settings their interests could align with the defendants (for example, if the victim and the defendant have reconciled and the government pursues the case), or could be adverse to both defendants and government (for example, if the latter parties have reached a plea agreement and the victim would like a trial).

Kent Roach offers a richer analysis, including two different victim-inclusive models: a punitive perspective, which he likens to a rollercoaster, and a non-punitive, restorative-justice-oriented model. The first model is driven by victims and their advocates, who are heard at any step of the process, and who invariably oppose any leniency. The second model is driven by a community seeking to address, and redress, wrongs that have been done, and advocates reparation and reconciliation. For more insights on victims' role in the criminal process, see Leslie Sebba's article.

Which of these models is the one advocated by Prop 9? It seems that Prop 9 has aligned itself with the punitive version of the victim-inclusive model. By voting "yes" on Prop 9, one has not only to agree that victims could, and should, be active participants in the criminal process; one also has to agree that victims' interests require putting more limitations on parole, including representation in parole hearings. This assumes that victims' interests will always side with the government against the defendant, which seems to be a less nuanced approach to the diverse realm of victim experiences, but which aligns with various similar legislation initiatives, such as those requiring registration and notification of sex offenders. It should be pointed out, though, that Prop 9, or "Marsy's Law", is not limited to sex offenders.

Prop 9 proposes a constitutional amendment to our Bill of Victims' Rights, which would include the following rights:
o punishment and deterrence of the offender
o finality of the legal process
o public safety and protection from the defendant (bail and parole)
o fairness and respect
o confidentiality about details regarding the victims' personal lives
o notice of trial developments and conference with prosecution
o hearing at any proceedings

Among other things, the victim would be entitled to see the presentence report and to receive the scheduled release date of the offender. Prop 9 also prioritizes monetary restitution to victims.

Other main provisions of Prop 9 address parole hearings, presumably under the assumption that the victims' natural interest is in hindering them. Some of these proposed changes are summarized below:

Parole hearings
o the victim, as well as the inmate, is entitled to stenographic record of all proceedings
o the parole hearing date should be established so that suitability for parole can be established
o after denial of parole, the next hearings should be scheduled only after consultation with the victim
o a big change: parole denial postpones the next hearing by longer periods of time (ranging from 3 to 15 years for lifers). Only one request to expedite will be considered every three years. This seriously limits inmates' access to parole hearings.
o parole hearings become de novo hearings; they do not rely on findings in previous parole hearings. However, inmates do not have a right to interrogate the victims during the hearing.

Victim notification and attendance
o the victim would be notified of a parole hearing 90 days in advance, and has to notify back about his or her intention to attend 30 days in advance.
o the victim can attend with limited number of family and representatives (including victim advocates!) all of whom can provide testimony at the hearing.

Parole revocation hearings:
o inmates would only be entitled to counsel in parole revocation hearings if they are indigent and some special circumstances apply.

By linking "War on Crime" considerations with victim rights, does Prop 9 violate the single-subject rule? Your opinion is as good as mine. It is clear, however, that if it doesn't, it certainly chooses one particular type of victim model over others.

Friday, October 17, 2008

CA Prison Guards Drop their Recall Campaign

This morning's Chronicle reported that the CA Correctional Peace Officers Association, representing prison guards in CA, is dropping its recall campaign against Governor Schwarzenegger.

The CCPOA has been extremely critical of Schwarzenegger in the past, but now they have other matters on their hands, such as fighting Prop 5.

Wednesday, October 15, 2008

Focus on Proposition 6: How To Deal With Gangs and Other Matters

Proposition 6, or the Safe Neighborhood Act, proposes a variety of changes to the CA criminal justice policy. The main idea behind it is addressing street crime from a "war on crime" perspective.

One of the most important things to keep in mind when considering Prop 6 is its financial implications. Currently, CA is allocating $600,000 to law enforcement, and this proposition will raise this amount by $350,000 (a 50% increase). One source provides the breakdown of these additional funds by topic. The question, therefore, is twofold: whether, as voters, you agree with the philosophy that has driven the proposition, and, if so, whether you are comfortable with its costs.

Some of the major and substantive proposed changes include changing evidence rules to allow hearsay, i.e. a victim's testimony at the police station, in cases in which the victim is later unavailable to testify. "Unavailability" is broadly defined to include situations in which the victim refuses to testify due to trauma. This idea is not as innovative as it might seem in the American context; other countries have broad exceptions to the hearsay rule, brought about in the conservative 1980s as a response to concerns about organized crime and victim intimidation. It seems that this rationale is also behind the proposed new offense, penalizing any activity of preventing or dissuading victims from testifying and complaining to the police, as well as acts of retaliation against victims.

Prop 6 includes several other new offenses; all of these acts seem to be punishable under current criminal laws, and I expect their proposed criminalization is more of a proclamation than a practical change. These include tampering with one's electronic monitor; driving or taking away other person’s vehicle (year in jail or fine); and graffiti (year in jail or fine). A point of interest about this last one: if juveniles are unable to pay fines for graffiti, their parents may be responsible.

Which is where we come to one of the main focal points of Prop 6: the issue of gangs. the US in general, and CA in particular, has struggled with gang-related polices for many years now. The philosophy behind much of what we have done so far regarding gangs assumes that gang membership is conducive to crime, and that one way to fight gang-related crime is to fight the gangs themselves, before any crime has been committed.

One such early attempt to control gang-related behaviors involved using criminal law to prohibit gang members from congregating. In Chicago v. Morales, the criminal prohibition for gang members to "loiter in public places" was held to violate the Due Process clause due to its vagueness and the broad discretion it leaves to law enforcement officers. But the newer generation of gang-related policies seems to be much more targeted. My student Adam Maldonado, who has done some research on civil gang injunctions in Los Angeles and in San Francisco, found that they prohibit specific gangs from congregating in specific, carefully-defined areas. These areas include, in San Francisco, the Mission, Hunter's Point, and Western Addition, including a 3-by-4 block not far from Hastings. He has also found that, before an injunction is applied, the gang needs to be thoroughly researched by law enforcement agencies, so there is "clear and convincing evidence" that it constitutes a "public nuisance" (People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1256).

How does Prop 6 impact gang-related policy? To start, it adds provisions that make a gang into a legal entity. A gang can be sued, and Prop 6 adds mechanisms by which its members can be served with papers on behalf of the gang, which simplify the process of injunction and potentially other processes of legal dealings with gangs as such. It also includes a list of 33 offenses, ranging from serious violence offenses to much less serious property offenses, which, when committed by a minor in a gang context, would enable CA to try the minor as an adult. Also, the punishment for a long list of felonies is doubled if these are committed in the context of a gang.

Prop 6 also requires more research into gangs, including a registry; failure by a previously convicted gang member to register might be a felony or a misdemeanor, depending on the content of the original conviction.

Other miscellaneous changes included in Prop 6:
o allocating $10,000,000 for conducting background checks on public housing recipients
o excluding the possibility of bail for illegal aliens charged with violence or gang-related crimes (of particular interest in light of San Francisco's recent "sanctuary city" expose);
o banning O.R. release for violent offenders without a hearing, and placing limitations on OR for violent offenses in the context of guns, parole violations, and others;
o tightening notification to parole authorities of any parolee behavior, ranging from offenses to technicalities (contrast with Prop 5, which advocates a softening of parole revocation based on technical violations);
o allocating funds for reentry programs; however, by contrast to Prop 5, the emphasis is on monitoring and supervision (through GPS devices, etc).

Stay tuned for the last post in the series, discussing some aspects of Prop 9.

Thursday, October 9, 2008

Focus on Proposition 5: The Nonviolent Offender Rehabilitation Act

In a previous post, I briefly presented the three criminal-justice-related propositions on the California ballot. In this post, and two more posts to follow, I'll expand about each of these, starting today with Proposition 5.

NORA, or the Nonviolent Offender Rehabilitation Act, builds on the ruins of Prop 36, which was passed in 2000. Prop 36 promised drug abuse treatments for offenders charged with simple possession. Since 2000, the plan received praise as well as critique. Some point to a reduction in recidivism, and others highlight that less than half of the offenders complete treatment. Recently, Prop 36 lost close to half its allocated budget through gubernatorial fund cuts (and here's what the critics think about the cuts).

NORA aims to propose a modified version of Prop 36, and it might affect drug offenders in a variety of ways. It emphasizes rehabilitation as an answer to the prison overcrowding crisis, and provides mechanisms that exist in a variety of countries, such as drug treatment which is not accompanied by an official conviction. In this post, I'd like to highlight some aspects of Prop 5, some of which have not been emphasized on other web discussions.

As mentioned in an earlier post, "nonviolent drug offenses", for the purposes of Prop 5, include simple possession of drugs or paraphernalia, as well as being under the influence. Any such scenario that includes trafficking purposes is excluded from this definition.

The drug treatment programs offered by Prop 5 follow a principle of "harm reduction", and would be personalized to fit the particular offender and his or her circumstances. They could include science-based instruction, outpatient services, residential treatment, medication, mental health, and aftercare.

The proposition offers three tracks of diversion and treatment, which are left to the court's discretion:
• Track I: treatment diversion with deferred entry of judgment (carrying no criminal conviction)
• Track II: treatment diversion after a conviction, as a probation requirement, including sealing of records after probation
• Track III: treatment diversion after a conviction for possession of controlled substances: other nonviolent offenses: judicial discretion (for people who failed Track II and continue to have a problem). I should point out that "second chances" are a crucial component of drug programs, because it is unrealistic to expect addicts not to "fall off the wagon".

Placement is established upon clinical evaluation and is quite flexible.

Prop 5 also addresses the meaning of drug treatments in prison. Successful completion of drug programs in prison would provide "good behavior" credits, equivalent to those earned through work, which add up and might lead to one's early release. Another important and often neglected aspect of Prop 5 is its emphasis on reentry. Under the proposed legislation, contact with the offender is established 90 days before release from prison, in an attempt to create a good support network, workwise and treatmentwise, upon release.

In addition to these, Prop 5 also includes provisions that make it more difficult to return offenders to prison due to technical parole violations. When the violation is a misdemeanor, non-incarceration options are prioritized.

Prop 5 would require a reorganization of the CDCR, adding a Secretary of Rehabilitation and Parole with increased resources devoted to parole, probation, and rehabilitative programs in prison. There are also a variety of fact-based assessment mechanisms, built to examine the success of Prop 5 programs, including academic evaluation studies and research conferences.

How much money will this cost? The answer to that question is uncertain, as expenses on programs may be offset by savings in prisons. The amount of savings would depend on the success of drug programs in reducing recidivism. What do you think?

Wednesday, October 8, 2008

Recidivism Reduction in Mental Health Courts?

Yesterday, we had the pleasure of hosting Dale McNiel from UCSF, who gave a talk about his work with Renée Binder evaluating the effects of the San Francisco Mental Health Court on recidivism. The court offers various programs and close supervision; the defendants' progress is monitored and, at some point, they graduate from the program. Participation in the mental health court is voluntary. Here's a pretty positive take on the program.

McNiel and Binder's study is a great example of an evaluation project on problem-solving courts. One of the problems in measuring the success of sentencing alternatives is that you really need to compare your program to the traditional sentencing and correctional methods. Due to the fact that the mental health court population is self selected (participation in the program is voluntary), the study and control groups are, obviously, not formed through random allocation. Therefore, various pretreatment variables, which might explain why some people might choose to attend mental health court, might also explain differences in recidivism rates. To partially offset this problem, McNiel and Binder use propensity weighting; they select the control group based on criteria that would make them resemble the population that does choose to go to mental health court, as much as possible.

McNiel and Binder's findings clearly indicate a reduction in recidivism for both violent and nonviolent offenses, which grows over time. They control for a variety of demographic and clinical variables. The nuances are important; the court seems to be better for people with certain disorders, and I'm not sure I fully understand its interaction with substance abuse and homelessness, which many people in the study group experience. Also, as they point out in their discussion, this is only one study of one court; recidivism rates may differ across mental health courts, and may be a function not only of the programs themselves, but of the sanctions imposed by the court. Fascinating stuff, and I hope the followup yields more generalizable results.

Monday, October 6, 2008

Problem Solving Courts

San Francisco's new Community Justice Center, and its existing Drug Court, follow a general model of problem-solving courts. The National Center for State Courts produces this toolkit for States seeking to implement this model; the nice thing about the toolkit is that it contains not only success stories, but also different perspectives on the enterprise from within the system.

Those interested in a broader theoretical introduction to problem solving courts and to therapeutic justice in general will enjoy Candace McCoy's The Politics of Problem-Solving: An Overview of the Origins and Development of Therapeutic Courts, 40 American Criminal Law Review (2003). Laurie O. Robinson's comment on the paper (published on the same volume) is equally interesting, and provides a more optimistic practitioner's perspective.

Are problem-solving courts a good answer to the correctional crisis? What do you think?

Wednesday, October 1, 2008

Another valuable resource

The Little Hoover Commission is an independent state oversight agency that has published a number of important studies on California Corrections.

Particularly notable is its 2007 Report, "Solving California's Correction's Problems: Time is Running Out."

Among the Report's key recommendations:

-- "The state must take back control of the prison medical
system, by developing a plan to work with an organization that can run the system for the State."

-- "The State must immediately take action to improve its management . . . and implement the recommendations made by this and other commissions, including expanding in-prison programs, improving prisoner reentry, and reallocating resources to communitybased alternatives."

-- "The State must re-invent parole, moving to a system of post-release supervision for certain prisoners to ensure public safety."

-- "The State should begin a comprehensive evaluation of its sentencing system by establishing an independent sentencing commission to develop guidelines for coherent and equitable sentencing guided by overarching criminal justice policy goals.

Another must read!