NYT on Compassionate Relief puts CA in perspective

The New York Times has a story today on compassionate release for inmates who are physically or cognitively unable to present a threat to society. This paragraph stands out:

"In California, where federal judges ordered the state to cut the prison population by 40,000, three people were granted compassionate release last year. In Alabama, where prisons are at double their capacity, four sick inmates were let out on compassionate release in the 2009 fiscal year; 35 other prisoners in Alabama died while their applications were being reviewed. Since New York adopted medical parole in 1992, at the height of the AIDS crisis, 364 people have been released."

The situation may be egregious in New York, and proportionately worst in Alabama, but by sheer quantity California's prison crisis is most dire. What values are we pursuing, what metrics are we optimizing, by paying for incapacitated inmates to die in prison rather than at home?

Kristof on Humanity

In case you missed Nicholas Kristof's column in the 1/27/10 New York Times, it's right here. Kristof relates statistics and instances of violence in prisons, especially sexual violence, especially in juvenile prisons, especially by prison guards. "I’ve never written about the horrors that unfold in American prisons — especially juvenile correctional facilities — on a far larger scale than at Guantánamo."

Of course, it is a premise of this blog that our prisons are in a financial crisis. But as Kristof indirectly recognizes, sometimes the economic angle lets me temporarily forget the human angle. Rights that we can often take for granted in this country, including physical safety, are daily struggles frequently lost in our prisons. The real human costs of our failing correctional institutions are sickeningly deplorable, and prison reform will always be about more than money.

Book Review: Dreams from the Monster Factory by Sunny Schwartz with David Boodell

The constant conversations about budget, prison expenditures, and cutting programs, raise the question of cost-benefit from prison programming. Which rehabilitation enterprises are worth investing in for the long run? Which programs actually reduce recidivism to a point that makes them cost-effective for the prison system? Dreams from the Monster Factory provides some thought-provoking information about programs offered at a San Francisco jail by the Sheriff's Department and rekindles hope in rehabilitation and re-entry programming.

The book reads as a half-personal, half-professional memoir of Sunny Schwartz, a 27-year veteran of the Sheriff's Department, who joined the jail staff in the 1980s as part of an initiative to ad programming to the jail daily routine. Her program was rather ambitious and, in some ways, counterintuitive. Rather than creating voluntary programs, she created an ambitious study curriculum, with mandatory attendance and a dense schedule. With the collaboration of (most) of the deputies, she managed to create a series of special programs targeting women, general education and substance abuse. The most impressive part of the book, however, is Schwartz's description of RSVP (Resolve to Stop the Violence Project), a special program involving a dorm of violent men whose reeducation away from violence instincts is based on the Manalive program. The unique aspect of RSVP is the collaboration between a variety of community advocates whom we are used to thinking of as being at odds with each other: victim organizations, religious organizations, community groups, and counseling services. The role of victims in the program is described in a particularly appreciative, sensitive way, and generates hope that some victim organizations may see beyond punitiveness to healthier paths for activism. Despite the program's success, Schwartz does not flinch from describing the less glorious moments of this difficult and often frustrating work.

Not all readers will appreciate the book's unique mix of professional and personal information. Schwartz delves into descriptions of events in her own personal life, including some difficult descriptions of her family and relationships. The strength of these narratives, to me, lay in creating the sense that the inmates were not "different" in any sort of substantial, deterministic way, and that all of us, who have been through life's trials and tribulations can empathize with their challenges and frustrations. Schwartz does not come off as a "fixed", "enlightened" prison reformer with all the answers in her pocket, but as a flawed individual who looked inward to find the strength to light a beacon of change, beckoning to the flicker of light in the soul of most of the program's participants. This will make a good read for those interested in an insight into prison life and in thinking about the potential of programs for generating change.

Exporting Inmates to Mexico?

The latest Governor's proposal to save on corrrections by building correctional facilities in Mexico to house undocumented immigrant inmates has raised eyebrows around the state and yielded various responses, ranging from support to downright mockery. Since I'm not an expert in international law, I consulted some colleagues about the legal implications of putting the proposal into practice.

Can US build prisons in Mexico? The answer to this question depends, of course, on Mexico's consent. The interdependence between the countries, particularly with respect to labor (read all about it in Eric Schlosser's Reefer Madness), often makes us forget the Mexico is a sovereign nation. Mexico might, however, agree to such an arrangement, either for profit, or in order to ensure that its citizens are properly treated. Given what we know about corrections in Mexico, the latter would not be a concern. The former raises serious questions about the potential savings for the U.S. from such a solution.

In addition, much as some California secession advocates would like to believe it, California is not a sovereign nation, which presents additional difficulties.

Even if these difficulties were to be overcome, there would still be serious jurisdictional problems involving various legal issues about the new prisons. Which legal system would govern inmates' rights in Mexico? International law, in itself, provides very little in the way of inmate rights, though some of its minimal provisions may be applicable in a system that employs torture. We are left with two more realistic possibilities: Mexican law or U.S law.

Can California subject its inmates to Mexican law? For inmates who are not Mexican citizens, it is highly questionable whether Mexican law can be imposed on them against their will. Granted, tourists in Mexico are subject to local law, but being involuntarily housed in a foreign country is not an equivalent solution. If the inmates are Mexican citizens, this is easier to resolve, particularly if the intent is to use the new prisons to house people who have been in the U.S. in violation of immigration law. However, not all undocumented immigrants are Mexican, and the current mix-ups at CDCR about people's status do not bode well for a classification system that would clearly resolve sticky issues of jurisdiction.

What about applying U.S. law? This situation would be, of course, preferable from the inmates' perspective, because that would allow them to raise constitutional claim and rely on 8th Amendment jurisprudence. The ability to apply U.S. law to prisons in Mexico is not without problems, but is not unheard of. After all, foreign embassies apply the laws of their home countries, and some institutions have been analogized to embassies for jurisdictional purposes. In a fascinating paper, titled Rights Beyond Borders, my colleague Chimène Keitner discusses the complicated and tricky issues involved in applying the U.S. Constitution to defend detainees against torture (say, in the Guantanamo context). There are important differences between the two situations, of course. Moreover, assuming that prison building will be done with private contractors, issues of conflict of laws arise with regard to possible tort litigation.

In the very least, it is safe to say that there are plenty of issues and problems that would need to be resolved before we resort to building prisons on foreign soil. On the ethical side, it would probably be preferable to remember our responsibility to contain and resolve a problem created within our borders.

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Many thanks to my colleagues Chimène Keitner and Naomi Roht-Arriaza for helping me think this through.

LAO: Prisons v. Universities Expenditure Measure Unwise, Unflexible

(graph courtesy http://www.lao.ca.gov)

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.

The report is far from enthusiastic about the proposal. While LAO supports efficiency and savings (see yesterday's post on their recommendation to add GPS monitoring as a prison alternative), the report recommends against adopting the Governor's proposal. As specified in the report, the measure ignores the impact of student fees on university revenue, highlights two budget items rather than examining the whole picture (thus constraining General Fund usage for a large percentage of the budget), and leaves open the question of using the increased university funding for public benefit. As to corrections, the LAO report reminds us of the principle that Frank Zimring refers to as the "correctional free lunch": correctional expenditures are not managed solely on the state level, but actually dictated on the county level, where sentencing takes place. Moreover, as LAO points out, a constitutional amendment is unnecessary: a simple budgetary decision would suffice.

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props to Eric Chase for sending this my way.

LAO assesses Governor's Population Reduction Plan

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.

As a reminder, this refers to the Governor's initiative, which later became SBX3 18, under which the CA inmate population would be reduced by approximately 18,500 inmates in 2009-2010, and an additional 25,000 in 2010-2011. The legislative analyst reminds us, however, that "the actual reduction in the inmate population from the above policy changes is now estimated to be significantly less than initially planned—about 1,600 inmates in 2009‐10 and 11,800 inmates in 2010‐11. This is primarily due to delays and changes in the implementation of the new policies." The report also mentions that the state's plan for the Plata/Coleman panel included two additional measures which were not included in the governor's plan: adjusting the dollar threshold for grand theft and placing some elderly and infirm inmates under GPS monitoring as an incarceration alternative.

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.

Sue Dealers For Selling You Drugs?!

This is more civil justice, but so startling and intriguing I had to say something. According to the The Gadsen Times of Alabama, a state representative there has just introduced a bill that would provide a cause of action "for someone who has lost a loved one due to a drug overdose" against the dealer when "the person who sold the drug has been convicted of distribution, manufacturing an illegal drug, or other similar charge." The proponents, parents who lost a child to an opiate drug overdose, cite deterrence as their policy motivation.

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?

GPS Monitoring: Now Expanded to Include Gang Members

Yesterday's edition of the Chron reported that the state plans to monitor 1,000 recently paroled gang members using GPS devices. The Chron website does not include this lengthy and interesting article, but the printed edition reports that, rather than complementing early releases, this is merely a parole monitoring aid.

One of the challenges of using GPS is the fact that the information the monitors provide, in itself, is worthless without interpretation. Other issues have been the lack of studies regarding the impact of GPS monitoring on recidivism rates. The ACLU supports monitoring as an alternative to incarceration, but not as an additional requirement. The article also mentions the inability to detect serious sex offenders, such as Phillip Garrido, through GPS monitoring.

Reliance on GPS monitoring has been an important part of the Governor's proposition to cut costs, and have been used on sex offenders, as well as to enforce restraining orders in domestic violence cases.

California Supreme Court Decides the Kelley Case

On January 10, the California Supreme Court ruled on People v. Kelley that legislature’s limitations on medical marijuana possession and cultivation are unconstitutional, except for as to their defensive purposes.

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.

Due to various problems with the CUA, Senate passed The Medical Marijuana Program Act (“the MMPA”) effective since January 1, 2004, which supplemented the CUA without supplanting it. Among other things, the MMPA set base guidelines for maximum medical marijuana possession. As base limits, they established the minimum quantities a county can set as possession limits; a county was free to set limits exceeding these. Illustrative are Humboldt County’s guidelines, which include an outdoor growth provision that one may not have more than 99 plants which must be contained in less than 100 square feet.

In Oral Argument for People v. Kelley, the Attorney General’s office conceded that the limits set by the MMPA are unconstitutional to limit a medical marijuana patient’s possession of marijuana as guaranteed under the CUA, and as to burdens placed on a patient’s legal defense as provided by the CUA. The Attorney General’s office asserted that instead that the limits should be upheld as guidelines for law enforcement to establish in an arrest situation that marijuana possessed by a patient is truly for medical purpose. The Supreme Court’s decision on People v. Kelley is in line with the Attorney General’s concession.

My understanding is that the court decided that the specific provision of the MMPA (section 11362.77) regarding possession limits could remain, but that it could only be used for defensive purposes by patients, because the limitations would otherwise contravene the intent behind the CUA. Basically, a patient or caregiver can use the fact that they possessed marijuana in accordance with the limits to prevent arrest or to show that their possession was “reasonably related to the patient’s current medical needs,” which is all that is required under the CUA (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549). However, patients or caregiver need not be within the limits to assert that their possession was reasonably for medical purposes.

For the source of most of my information on the Kelley case, as well as excepts of the case, a more informed explanation, and links to the decision itself and other pertinent information, go to The National Organization for the Reform of Marijuana Laws blog and read California Supreme Court: State’s Marijuana Possession Limits Are A Floor, Not A Ceiling and Watch-On-The-Web: Important Medical Marijuana Case Before California Supreme Court .

More on Religion in Prisons: Five Faiths, Four Meals?

Recently, we discussed prison and religion in the context of Patrick McCollum's suit to acknowledge the need for a paid Wiccan chaplain in CDCR institutions. The brand new Prison Law blog led us to a piece on the Fresno Bee, which reports that CDCR plans to add a Halal food option to its already existing Kosher meat and vegetarian fare.

The department is seeking the change in the face of pressure from several Muslim inmates who have filed lawsuits alleging discrimination. Inmate attorneys have seized on the department's decision in 2006 to offer special kosher meals to Jewish inmates.

"They've said Jewish prisoners have a right to practice their religion in a certain way, but Muslim prisoners don't have that same right," said Nathaniel Garrett, the court-appointed attorney for Menefield, who filed a civil rights complaint in federal court in 2008.

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?"

This may seem like a relatively minor issue, but it has a rich history, that has to do with the struggle of Muslim inmates to obtain rights and their incredible contribution to inmate litigation in California. Some of the important religious struggles in prison have had to do with concerns over safety and riots, whose roots are in the radicalized Black Muslim population of the 1970s. The relationship between prison administration and the Muslim inmate population has been a concern for the Federal Bureau of Prisons for quite some time, and some are concerned that the post-9/11 world has led to "Islamophobia" in correctional institutions.

While reading materials and worship gatherings have the potential to incite rebellion, food is a significantly less controversial matter. The issue is the importance of religion vis-a-vis the expense involved. In this particular case, before even engaging in that balance, it is a case of religious discrimination, plain and simple. Since the prison already offers Kosher and vegetarian meals, it would appear that the argument raised by Ms. Salarno has clay feet (and that's before even looking at the argument for morality or on its merits). The question that CDCR does not need to currently face would be the detail with which they should comply with minute differences in religious requirements for different sects (for example, there are several different levels of Jewish Kosher certification; there is glatt certification to consider, ethnic differences, etc).

Meg Whitman's Correctional Policy

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.

Drug Court Humonetarianism

Reuters has a fascinating article here on drug courts, empathy, and the monetization of humanitarianism. The author discusses shifting economic priorities in the war on drugs.

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.

Two Parties Claim Victory? SCOTUS Decision Discussed on NPR

The California Report discusses today the reactions to the SCOTUS decision. Incredibly, the Governor's office interprets the dismissal of the appeal as a victory. Hear more in this small snippet, featuring, among others, Michael Bien and yours truly.

BREAKING NEWS: SCOTUS Dismisses Appeal in Plata/Coleman

This morning, the Supreme Court refused to grant cert in the Plata/Coleman case. SCOTUSblog reports:

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.

Book Review: Lifers by John Irwin

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.

The world of criminology has recently lost an insightful and passionate thinker and reformer, with Irwin's passing ten days ago. Irwin's perspective on the correctional system was informed by his experiences as a juvenile delinquent, which led him to car thefts, burglaries, and finally an armed robbery, for which he served five years out of a five-to-life term. As he observes in Lifers, under today's sentencing regime he would probably have served a much longer term. While in prison, he started accumulating academic credits, pursuing a college degree. After his release, he continued his education, eventually earning a Ph.D. in sociology and becoming a pioneering voice in a field that later came to be known as "convict criminology". This perspective on crime and punishment comes from academics who are, themselves, former convicts, and has much in common with the critical criminology that emerged in the 1970s.

One of the major strengths of convict criminology is the ability to communicate on a more personal way with inmates and their experiences. While, as James Bennett shows in his fascinating book, oral histories of delinquents and convicts have been an important component of criminological research for decades, these methods are not without their problems, particularly with regard to interviews with inmates (as Mary Bosworth explains in this fabulous piece). Researchers like Irwin have a remarkable ability to connect with the experiences and inner lives of their interviewees, and Lifers is a wonderful example.

The book is built around in-depth interviews with seventeen San Quentin inmates sentenced to life, a substantial number of whom are still in prison awaiting their parole dates. Irwin presents their personal stories in their own words, starting with their family background, providing an honest, unflinching description of their crimes (homicides for the most part), and telling of their time in prison and the transformations they have undergone during this lengthy period of confinement and reflection. The narrative is occasionally paused by Irwin, who draws general insights from the commonalities between the individual stories, but is careful to retain the individuality and uniqueness of the narrators. The reader comes to care about these people and follow their personal journeys with sympathy and interest.

Irwin's conclusion, which he explicitly repeats throughout the book, is clear: the men he interviewed are very different from the men who had been sentenced to life in prison so many years ago. This transformation undermines any argument for lengthy sentences; the brash young people who had committed these crimes have been, for a long time, thoughtful, remorseful, transformed individuals. Yet, some interviewees' parole has been repeatedly denied for retributive reasons (see this, for example).

The book makes a good read for folks who know little about the criminal justice system. It humanizes the inmates for people who may not have had a lot of contact with incarcerated people. It also provides a good historical primer of the process that led California governors to ratchet up our sentencing structure, emphasizing in particular the increase in actual time served for lifers. The informative background provides some illuminating tables of comparison between California penal code provisions in different points in time, as well as some broad information about the extent to which different governors (Pete Wilson, Gray Davis, and Arnold Schwarzenegger) have been willing (or unwilling) to pardon lifers. It also makes for a short and engaging read, suitable for the general audience at least as much as for professionals in the correctional field.

Plata/Coleman Missing from List of Certs

What happened today at the Supreme Court? It's a bit shrouded in mystery. SCOTUS Blog reports on the five cases in which cert was granted. Plata/Coleman is missing from the list.

The folks at Crime and Consequences opine:

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.

Hastings Race and Poverty Law Journal Special Issue on CCC is out

(click on pictures to enlarge)

Today I got my copies of the newest issue of the Hastings Race and Poverty Law Journal, devoted to the California correctional Crisis. The issue features several articles and notes regarding different aspects of the crisis, as well as a series of shorter informational pieces highlighting issues such as sentencing, alternative adjudication, parole, risk and release, reentry, and, of course, the medical crisis. The issue builds on the conference we held in March 2009.

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.

Tomorrow at SCOTUS: Plata/Coleman!

Breaking news: Plata/Coleman v. Schwarzenegger is scheduled for tomorrow's Supreme Court conference. Here are some materials, and here is a link to our analysis of the three-judge panel decision that is being appealed.

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Props to Rory Little for informing me of this.

Valdivia v. Schwarzenegger: Today at the 9th Circuit

The 9th Circuit heard today oral arguments in Valdivia v. Schwarzenegger. I went to hear Geoffrey Holtz and Ernest Galvan argue for the petitioners; they presented arguments in two matters relating to parole revocation hearings.

The first issue, which is less interesting for our purposes, has to do with the admissibility of hearsay evidence in parole revocation hearings, in light of new caselaw regarding confrontation rights (I'll probably inflict that on my Criminal Procedure students this semester. Have a good semester, folks!). The second issue, on which I'll expand, has to do with Judge Karlton's decision to set aside parts of the state statute enacted as part of Prop 9 due to the content a federal consent decree.

Background: the federal consent decree in Valdivia was finally reached after a decade of litigation, aimed at clearing up the procedures for parole revocation and crafting them so they would comply with minimal constitutional due process requirements. The decree mandated appointing state counsel for all parolees in danger of revocation, and required proceedings for proper notification and discovery to the defense; created procedures to speed up hearings so people would not be held in unnecessarily before their status was determined; and ordered to simplify forms and documents so that the parolees could understand them. A special master was appointed to work with plaintiffs and defendants to ensure compliance with the decree, and gradual progress was made.

Prop 9 (which the State Attorney repeatedly referred to during the hearing as Marsy's Law) threw this situation into chaos. While some of its provisions did apply, as advertised, to victims' rights, other provisions made changes to parole revocation procedures, most importantly by denying counsel to a large portion of parolees.

The elephant in the room, during the oral arguments, was the actual constitutionality of the new provisions enacted in Prop 9, and whether they really fell beneath the minimal due process owed to parolees; in fact, if I'm not mistaken, it appeared that the state conceded that some of these provisions might raise constitutional issues. Instead, the discussion focused on the legal question of whether Judge Karlton's decision to set aside the Prop 9 provisions was correct. As the parolees' representatives argued, this was a classic supremacy clause situation; a federal consent decree trumps state law. The state, according to Mr. Holtz, was under a burden to prove that circumstances have changed to an extent that required modifying the consent decree. All the state did, argued Mr. Holtz, was point to the existence of a new state law; they did not seize the opportunity to actually argue that this new state law has implications that require modifying a federal decree. Under the circumstances, introducing a chaotic element into a recently-modified process, which serves to funnel 10,000 cases a month through the correctional system (yes, you read it correctly) was an irresponsible thing to do, and the state had to provide a viable alternative if it wanted to change the elements of the decree.

Much of the back-and-forth between the judges and the parties had to do with the extent to which Prop 9 turned back the clock to the unconstitutional proceedings prior to the consent decree. The answer to this question seems to be, according to both parties, somewhat complicated. Some Prop 9 provisions are, indeed, a return to the pre-decree times, while others are actually better for parolees than the consent decree guaranteed (such as provisions for a preliminary hearing). The state attorney, Ms. Johnson, argued therefore that a flat-out dismissal of this provisions was problematic. Mr. Holtz pointed out, in reply, that the state should have done a better job at providing an alternative process, which complied with Prop 9, and satisfied the constitutional requirements (there would naturally be some debate about the features of such a process, but at least it would be more than merely informing Judge Karlton of the existence of the new statute and expecting him to bend the federal decree to accommodate this development).

Judge Smith seemed interested in examining the possibility of remanding the case for examination at the District Court. Mr. Holtz pointed out that such a remedy was possible, but unnecessary; the state could return to Judge Karlton at any time with a proposal for a Prop 9-compatible revocation hearing process.

We'll report on the outcome of this case as it comes out.

2010-2011 Governor's Budget Analysis: Corrections and Rehabilitation

The recent 2010-2011 budget proposal from the Governor's office makes some meaningful changes to the correctional budget, which merit some discussion. The proposal aims at reducing the General Fund expenditures on corrections by $1.19 billion, or 12.7 percent.

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 second source of costs is identified as "court-driven": Court orders, primarily those associated with medical treatment for inmates, are said to have increased the expenditure per inmate. As an example, "California’s average annual medical inmate cost is approximately $11,000 per inmate, as compared to approximately $5,757 for New York, which has similar inmate demographics."

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.

The proposal identifies several changes in the correctional budget:

• 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.


The full proposal can be accessed here.

ACLU Post on Death Penalty Costs

Tying in some loose ends from the ALI retreat from supporting the death penalty and from the Governor's "State of the State" address, the ACLU blog posts today about the potential of cutting correctional costs by abolishing the death penalty.

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.

Valdivia v. Schwarzenegger: 9th Circuit Hearing This Monday

This Monday, at 11am, in Courtroom 3, the United States Court of Appeals for the 9th Circuit will hear oral arguments in Valdivia v. Schwarzenegger, regarding the applicability of certain provisions approved by voters last November as part of Prop 9.

Fair disclosure: I'm somewhat involved in this case (as are several of my colleagues in CA universities) as a party to an amicus brief on behalf of the plaintiffs. Therefore, what follows is (as always) my own analysis, rather than any neutral introduction to the case.

The story behind Valdivia is this: after lengthy litigation between parolees and the state regarding parolees' rights in parole revocation hearings, federal courts issued a consent decree, according to which the state consented to reform its procedures so as to grant parolees the right to a fair hearing, requiring probable cause, a speedy hearing within 35 days, the right to representation, and a larger array of intermediate sanctions.

Prop 9, adopted in 2008 under a title of victim rights, included some provisions that violate this consent decree. As you may recall, the proposition limited the cases in which legal counsel would be awarded to the indigent, as well as allowed for participation of more parties and relaxed evidentiary requirements for parole violations. Judge Karlton refused to implement these changes, arguing that they violate the prior consent decree, which was consistent with constitutional requirements. As a result, the victim-rights part was severed from the parole hearing limitations part, and Prop 9 came to life only partially.

The argument on behalf of the plaintiffs is, basically, that upholding Prop 9 in its entirety violates the minimum constitutional requirements for due process, the standards of which were the cornerstone for the consent decree. In addition, upholding Prop 9 will mean a disastrous return to the state's abysmal parole proceedings, generating more "revolving door" situations and exacerbating our severe overcrowding problem. Since the parole system has proven immune to every effort at reform save for compliance with court orders, rolling back these reforms will have terrible consequences.

Here is our brief. To keep things fair, here is the opposing amicus brief, arguing, in a nutshell, for upholding what is now state law. You can read and form your own opinion.

State of (the) Prisons: Thoughts on State of the State Speech

Here are some initial thoughts about the Governor's speech, in no particular order:

It seems that, in general the Governor's heart is in the right place. It is, indeed, disturbing that our budget allocates more money to education than to corrections. However, the solution he advocates--contracting with private companies for out-of-state housing rather than releasing prisoners--is disappointing and may backfire in the budgetary sense.

It is telling that the press release emphasizes, in bold letters, that the new measure prohibits releasing prisoners as a way of cutting costs. The rhetoric is, of course, familiar. The press release plays on public concerns by invoking the image of prison doors opening and tens of thousands of dangerous criminals walking out. However, as we recall from the original Governor's proposal back in May, Schwarzenegger himself proposed several important measures, such as good work credits, alternatives to parole violation measures, and some legislative changes to allow prosecuting some current felonies as misdemeanors. Do these measures count as "inmate release"? No proposal ever intended to do what the Governor's rhetoric suggests - opening the doors and letting massive amounts of inmates walk out - but all proposals, from the Plata/Coleman panel order to the CDCR plan to the plan advocated by the Governor himself, adopted such measures to reduce prison population. Does this new measure preclude only mindless mass releases, or also sensible reform? Will we still see these healthy steps occurring, in addition to privatization and prisoner export?

The other important question is whether exporting our inmates to other states, and paying for their incarceration there, is really cost-effective. In a blog post yesterday, Jonathan Simon characterizes this fiscal measure as "reducing spending on prisoners, not . . . reducing prisoners." But does out-of-state incarceration really reduce expenditure per inmate in the long run? I have tried to find studies that compare recidivism rates between in-state and out-of-state inmates, and have not found anything. Perhaps this dearth of research stems from some methodological issues; as this study demonstrates, it is very difficult to measure the link between mode of incarceration and recidivism, because recidivism might be linked to factors that also led to differential incarceration modes. The out-of-state issue presents additional complications, as demonstrated by this Ohio study; it is difficult to measure recidivism across states, given the differences between different state criminal codes. Nevertheless, these methodological issues do not present insurmountable hurdles, and it would be an interesting exercise to conduct a study that examines whether out-of-state incarceration increases recidivism. In formulating an (empirically untested as of yet) hypothesis about this, it would stand to reason that when someone is incarcerated far away from family and friends, and has no support system, one stands on a less solid ground upon release and is therefore more likely to reoffend. If our readers have other opinions on the subject, we look forward to reading them in the comment section.

We know more, however, about recidivism rate comparisons between private- and public-prison-housed inmates. This Florida study, for example, found no significant differences between inmates housed in private and public facilities. As the authors say, any argument on behalf of privatization should be based solely on costs, not on rehabilitative potential. I would add that, given our concerns about sustainability in the long run, opting for a privatized system should also examine whether the volume of prisoners is likely to remain the same, which will necessitate continued reliance on out-of-state private institutions for our inmates for many years to come.

Another aspect of this issue is the broader national disparity between states who house their prisoners out-of-state and states who farm out their prisons and make business off of other states. In a previous post by Jesse, we briefly discussed this ACLU report, which praises Michigan for achieving a 8% prison population reduction by closing down eight prisons and relying heavily on reentry mechanisms. The irony is, of course, that while these commendable policies are helping Michigan get out of the political logjam and solve its own correctional crisis, Michigan is exploiting our inability to do the same by trying to rent out its prisons to us. I find this rather grim and thought provoking.

Finally, in reading the Governor's proposal, I want to suggest that while the new measure might prohibit releasing prisons to release cost, it certainly does not prohibit doing so in order to comply with court orders. Assuming that the Supreme Court will not overturn the Plata/Coleman decision, there is still hope that at least some of the population reduction will be achieved by strategies that tackle not only population rates, but recidivism rates.

I look forward to hearing your thoughts on the Governor's plan.

Schwarzenegger Confronts Prisons in Speech

By now some of you may have caught Governor Schwarzenegger's State of the State speech today. The full speech can be accessed here. And, here is the Governor's proposal, titled "Reshaping our Priorities to Shift Funding from Prisons to Universities". Among other things, the proposal reads:

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.

ALI Abandons their Support of the Death Penalty

The American Law Institute has decided to give up their death penalty work. The New York Times reports:

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.”

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Props to Michele Armstrong and Charles Cameron for the link.

Two Bites at the Apple: The Power of Suspending Imposition of a Sentence

Dr. Aviram has graciously permitted me to post my thoughts on one aspect of the criminal justice system that I came across in the course of a recent externship. In one particular case before our court, a trial court judge suspended imposition of the defendant's sentence. Although it was not the subject of the defendant's appeal, I was fascinated by the process and felt it shed light on a Judge's role and the power of the criminal justice system. Here is how the process works in a hypothetical where I have changed the facts and names in the case:

Hypothetical

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.

Commentary
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.

The constitutionality of statutes which authorize judge's to suspend imposition of a sentence has already been affirmed. Moreover, it's not clear eliminating such a power would necessarily change the outcome. In Peterson v. Dunbar 355 F.2d 800 (1966), a court affirmed the statute granting the right to Judge's to suspend imposition of a sentence and noted: "If there be any merit in appellant's argument, the obvious alternative, still available to the judge, is to start at the top instead of at the bottom-- to impose the maximum sentence at the outset, suspend its execution and subsequently vacate it if probation is successful, or, should probation be revoked, reduce it to the extent, if any, then felt suitable."

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.

It's unclear whether suspending imposition of a sentence increases prison time on an aggregate basis or reduces it. If I were trying to generate a hypothesis on this point, I would start by determining how many repeat players are in the system. If the numbers of repeat players are extremely high, then suspending imposition of a sentence is likely to increase prison overcrowding on the whole. Additionally, I would look to what kinds of crimes Judge's typically apply this tool towards to see how much it reduces prison sentences. In my hypothetical the bulk of the defendant's prison sentence is still coming from the armed robbery and the mandatory sentence enhancement.

In any event, it's a fascinating tool and has important implications for sentencing, overcrowding, and judicial economy.

Penny-Wise and Pound-Foolish

The Mayor of Newark blogs about a reentry initiative in New Jersey, emphasizing that the initiative is bipartisan and builds on broad collaboration between different political actors.

Some are quick to point out that certain provisions of the state bills would cost money at a time of tremendous fiscal strain – adding millions to the state budget in the near term. Many of these people are using this understandable concern to reflexively oppose this legislation. However, the cost of doing nothing simply leaves the tremendous expense of arrest, adjudication and incarceration to fester and grow larger and more burdensome in coming years.

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.

Prisons and Budgets

Today's NYTimes editorial "Prisons and Budgets" at http://www.nytimes.com/2010/01/04/opinion/04mon3.html?ref=opinion lauds state legislatures for corrections policy changes with positive fiscal impact. The piece calls 3-Strikes "overly harsh" and calls the Florida law mandating serving certain percentages of sentences "dubious corrections policy and terrible fiscal policy."

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%.

Happy New Year from the CCC Blog

(art courtesy: Jacob Barrett for The Real Cost of Prisons)

Happy 2010 to all our readers! May this be the year in which we make sensible, fact-based, and humane decisions in criminalization, law enforcement, and corrections.

Best,

Hadar