Saturday, February 27, 2010

SB xxx 18: Prison Credits - Information from Prison Law Office

The Prison Law Office has graciously posted to its website a letter of information to inmates, updated as of Feb. 1, which summarizes the changes to prison credits. While the letter is not, of course, a substitute to consulting one's attorney, it is a good resource to consult in order to understand the new rules. The main highlights are as follows:
  1. Inmates in jails and prisons will now receive more credit for every day served. The details are in the letter. There are exceptions to these new rules, which are based, among other things, on the type of offense.
  2. The new law applies to everyone sentenced after Jan 25, but there is still a dispute over its application to folks sentenced earlier (see our discussion of retroactivity earlier this month).
  3. There have been no changes to the Three Strikes Law.
  4. The Plata/Coleman panel's order has not yet gone into effect.
The retroactivity question is more than a technicality, given the volume of people to which the bill would apply. We'll stay tuned.

Wednesday, February 24, 2010

Reminder: CCC Talk Tomorrow

Tomorrow, between 6pm and 8pm, I'll be giving a talk about the California Correctional Crisis at Reed Smith, LLP, in downtown San Francisco. The talk is free and open to the public, but requires RSVPing.

It'll be fun to meet alumni and blog readers. See you tomorrow!

Tuesday, February 23, 2010

SHU at Pelican Bay

Our daily correspondence sometimes includes letters from inmates, informing us of the situation within walls. Recently, several letters have arrived from Pelican Bay Prison, from inmates incarcerated at the prison's Security Housing Unit (SHU). A form of supermax incarceration, SHU consists of 22-23 hours of solitary confinement a day.
SHU has been designed for escape risks, violent or threatening inmates, and "members of disruptive groups", such as gangs. There are some challenges involved in appropriately classifying inmates into SHU or general population. Classification is a crucial issue, because research on solitary confinement consistently shows that SHU-like conditions adversely and severely impact inmates' mental health (here's a 1993 piece by Craig Haney on this and a 2009 New Yorker article reviewing research and including interviews).
The concept of solitary confinement is not new. Our visit notes from Eastern State Penitentiary in PA might be useful. However, the purpose has changed. While the original ideology behind solitary confinement was to provoke repentance, rebirth, and rehabilitation, current supermax isolation conditions are aimed at incapacitation and safety.
Here is Laura Sullivan's 2006 NPR story about SHU and the solitary conditions. The institution currently exceeds its design capacity by approximately 1,200 inmates.

Monday, February 22, 2010

Juvenile Institution in Chino Closed

One way of working toward solving the overcrowding problem is to allocate space efficiently. Reallocation of prisoners across the system based on needs is one way to do so without building new prisons. Today, in an effort to find more room for adult inmates, CDCR closed the systems' largest juvenile prison in Chino. The Examiner reports:

The state Department of Corrections and Rehabilitation announced Monday that it officially closed the Heman G. Stark Youth Correctional Facility in Chino, a 50-year-old San Bernardino facility east of Los Angeles.

Authorities say they don't need the space for 400 minors, who were transferred to other facilities. Changes in state law have cut the number of youths in state custody as more go to county centers.

Instead, the Chino lockup will be retrofitted with an electric fence and other safeguards to house 1,200 adults - for much less than the $500 million it would cost to build an adult prison.

Those of you who have been following the juvenile facility situation know that Stark has been unfavorably reviewed by Books Not Bars, which found it to fail in every possible category. In that respect, the hope is that juveniles will find themselves in better environments. But another mystery concerns the decline in juveniles in custody that even made this arrangement possible.

image courtesy CDCR.

Why is the population at juvenile facilities declining? A 1995 report from the Legal Analyst's office predicted an increase in juvenile arrests and showed that CA was well above average in juvenile arrests and prosecutions. A later report from 2000 showed a decline in arrests, which it attributed to "the improved economy (and thus more job opportunities for young people), the decline in the use of certain drugs, and the relatively peaceful gang situation in urban areas." I don't know which of these are true today--#1 certainly is not--and am also not sure whether some of the continued decline we're seeing may be attributed to more juveniles tried as adults and held in adult facilities. The main idea, however, seems to be to divert juveniles to county facilities, so they can be closer to home, which makes a lot of sense.

Justice Policy Institute Bashes Budget

Today the Justice Policy Institute issued a press release criticizing President Obama's budget proposal. The new budget would increase funding for law enforcement and prisons, and reduce funding for alternative justice programs. JPI has released a full fact sheet, here. The text of their release follows:

Group Criticizes Obama Administration's Budget Plan to Increase Policing and Prisons

Justice advocates disturbed by proposed $29 billion for ineffective and unfair policies

Washington, D.C. - The Justice Policy Institute released a factsheet today challenging the Obama administration's proposed Fiscal Year 2011 Department of Justice budget. The Administration is asking for $29.2 billion, which includes more funding for law enforcement and prisons, and reductions in spending on juvenile justice programs that have been proven to be effective at getting youth back on track for positive life outcomes. A hearing for the proposed budget was scheduled before the Congressional Budget Committee, Subcommittee on Commerce, Justice, and Science on February 11, but was delayed and is in the process of being rescheduled.

"The Administration's rationale for dumping more money into COPS (the federal Community Oriented Policing Services program) is that we need more police while the economy improves in order to prevent crime," stated Tracy Velázquez, executive director of JPI. "That doesn't pass the smell test. Crime rates have been falling for the last few years and we've already put a billion stimulus dollars into more policing last year. If the Administration wants to buy jobs that will improve public safety, they should put that $600 million into struggling communities, schools, treatment, and social services."

Velázquez also noted that the proposed budget will likely result in increased incarceration costs for states, with only marginal public safety benefits. This is at a time when financially-strapped states are trying to downsize prisons through such mechanisms as greater use of community supervision and more diversion programs. While Velázquez praised funding for the Second Chance Act, which helps formerly-incarcerated people with their transition back to the community, she added, "More money should be focused on programs that help to keep people out of the criminal and juvenile justice systems in the first place." These alternatives include community-based prevention and early intervention programs for youth, education and employment training, and substance abuse and mental health treatment services.

Some of the key findings in the newly-released fact sheet include:

* Byrne Justice Assistance Grants: JPI found that while the $500+ million proposed for this program can be used for prevention and education, in reality most money goes to law enforcement. Research has shown that increased law enforcement results in the least-effective solution-higher drug imprisonment rates-while this money could be more effectively spent on community drug treatment.
* Community Oriented Policing Services (COPS) Funding: The Administration is requesting $600 million in hiring and retention grants for police officers, purportedly anticipating a rise in crime as the economy recovers. Such increased policing is likely to have a concentrated impact on communities of color, who are already disproportionately impacted by the criminal justice system. JPI suggests this money would be better spent on creating jobs, housing, and treatment programs for increased public safety.
* Juvenile Justice Programs: Funding for essential juvenile justice programs has been declining for years, and the Administration is proposing a $133 million decrease this year. Evidence shows that youth who spend time incarcerated have decreased educational and employment opportunities. Currently, there are more than 90,000 youth imprisoned in the United States. Investments in prevention programs, by contrast, are associated with improved public safety and better life outcomes for youth. "At a time when the Administration can't seem to find the time to hire someone to run the Office of Juvenile Justice and Delinquency Prevention," stated Velázquez, "this lack of commitment to funding core programs that protect and help youth is discomfiting."
* Drug Courts: JPI commends the federal government's interest in pursuing treatment as an option for people with substance abuse problems as an alternative to incarceration. However, drug courts, and the criminal justice system generally, can't and shouldn't be used as a substitute for community-based treatment services through the public health system, where it is most effective and appropriate.
* Adam Walsh Act: Having failed to bully states with threats of funding cuts if they fail to comply with the Adam Walsh Act, the federal government is adding a "carrot" to the "stick": $20 million to help states implement the Sex Offender Registration and Notification Act (SORNA). A number of reports have found little correlation between the use of sex offender registries and keeping children safe. In addition, broad compliance with SORNA will increase the number of people who cannot meet their basic needs (housing, employment), which is a major risk factor for recidivism. Especially hard-hit are youth on registries that may be barred from pro-social activities that can have a positive impact on improving their lives and on public safety.
* Increased Funding for Prisons: Increased funding for prison beds will likely lead to higher prison populations and expenses without significantly improving public safety. In fact, most states are reducing prison populations due to the current economic crisis and are seeking more effective solutions.

"While I hesitate to grade the Administration," concluded Velázquez, "we certainly were optimistic that it would use the research that groups like JPI have done over the years in developing its justice budget. We hope the Administration will more seriously engage the reform community in the budget process in the future so that budgets and policies will be prioritized to one day allow the United States - land of the free-to leave behind the shameful moniker of being the world's largest jailor."

To read JPI's factsheet: The Obama Administration's 2011 Budget: More Policing, Prisons, and Punitive Policies, CLICK HERE <> or visit this URL:

The Justice Policy Institute (JPI) is a Washington, D.C.-based research and policy organization that promotes fair and rational justice policies. For more information, please visit

Sunday, February 21, 2010

All's Well that Ends Well

The Sacramento Bee reports:

Yolo County prosecutors are dropping their bid for a life sentence for a man who put cheese down his pants at a Woodland market.

A new psychological evaluation convinced prosecutors that Robert Preston Ferguson's most recent convictions for petty theft did not warrant a life sentence under the state's three-strikes law, said Jonathan Raven, Yolo County's assistant chief deputy district attorney.

Raven said the district attorney's office had recently received a psychological report, requested by the public defender's office, that "shed some light on Ferguson."

"The district attorney's office is no longer looking at this as a life case," Raven said.

I think this one pretty much speaks for itself.

Props to Noam Finger for the link.

Saturday, February 20, 2010

"Five Faiths" Prison Chaplain Policy: Developments

A while ago, we reported about Patrick McCollum's legal stuggle for recognition by CDCR as a paid Chaplain for the Wiccan inmate community. The Pagan blog The Wild Hunt, which is closely following the proceedings, offers a rather useful summary of the developments in the case, including some links to documents. One notable new development is this amicus brief by the right-wing Christian organization Wallbuilders, which argues that the Founders' original intent would not have included Paganism or Witchcraft as a religion in its own right, and therefore, McCollum cannot be awarded standing for representing Pagan taxpayers. This seems to be a rather dated argument, especially in light of developments such as the Department of Veteran Affairs agreement (after a legal struggle) to allow the pentagram, a Wiccan symbol, as a marker on soldiers' graves. Constitutional law enthusiasts might be interested in following this case when it gets to the 9th Circuit.

Early Releases Law Under Attack

A few days ago we reported on an unusual narrow coalition between inmate advocates and victim advocates about the cuts to inmate rehabilitation programs. This weekend demonstrates the fragility of that consensus.

Per the Chron, Crime Victims United of California is suing Gov. Schwarzenegger, arguing that the statute, which includes parole reform and good credits for early releases, is unconstitutional:

The suit contends that the state Constitution prohibits the early release of prisoners because of crowding, that crime victims have a right to weigh in before an inmate is released and that the state is legally bound to provide adequate prisons. It also challenges a key portion of the law, the so-called day for day provision that awards nonviolent inmates a six-month credit reduction for every six months served. Previously, inmates who behaved themselves served as little as two-thirds of their sentence; now, nonviolent convicts can serve as little as half their sentence.

Read more:
Nina Salarno's interview for ABC News tries to explain the apparent contradiction:

"We believe in good time credit if it's earned and earned means participating in true rehabilitation, not just sitting there and getting it, as they call it, for breathing."

CVUC devoted some thought to forum shopping. Placer County, according to Wikipedia, is a stronghold for Republicans. Lest you think this is accidental, this is not merely a pro-victim move. CCPOA provides financial backing for Crime Victims United; according to some sources, 95% of the group's funding comes from CCPOA. The CCPOA website keeps close watch over victim issues in general and CVUC in particular.

Another attempt at challenging the new law occurred when Assemblyman Alberto Torrico joined a lawsuit filed by the Sacramento County Deputy Sheriffs' Association, attempting to interpret the new law as applying only to state prisons rather than to jails. The attempt failed; Judge Loren McMaster, though expressing dismay with the new law, applied it to inmates in both prisons and jails. A similar effort to block releases in Orange County also failed.

Wednesday, February 17, 2010

Is the Jail Early Release Statute Retroactive?

A few days ago we reported on the early releases from California local jails. It seems that the trickle of releases triggered a question of retroactivity; to what extent are early releases available for people who had served significant parts of their sentence before the statute came into effect?

Attorney General Jerry Brown says no. As the Chron reports, different counties have applied different standards for deciding on early releases:

Some counties, including Contra Costa, adopted that interpretation and started releasing inmates who had served at least half their sentence by Jan. 25.

Others, including San Francisco, applied the new credits only to the time an inmate served after Jan. 25. Santa Clara County extended the new credits only to those who were actually sentenced after Jan. 25.

Brown, the state's top law enforcement officer and a prospective candidate for governor, said Tuesday he had concluded the new credits are not retroactive and apply only to time an inmate spends in custody after Jan. 25.

Does this make sense? That's a good question. Usually, legal provisions apply only prospectively. In this particular case, however, the new statute's purpose could be completely thwarted by a prospective application. This is essentially a humonetarian law, rather than one aimed at actually changing penal policy in California. This is a good reminder that the future of our correctional apparatus lies not only in making the right laws, but also in applying them with their goal in mind.

Critique of Rehabilitative Program Cuts

Yesterday's Chron reported the expected cuts to rehabilitative programs in California prisons.

The cuts mean that 17,000 fewer inmates will be able to enroll in academic and vocational programs and 3,500 fewer inmates will be able to enroll in substance abuse programs. At San Quentin State Prison alone, 13 of the 19 programs currently offered are slated for elimination, according to teachers there, including all but two of the six vocational programs, an anger management course and a high school program.

California has a 70 percent recidivism rate - the highest in the nation. That number will increase with these changes, said San Francisco District Attorney Kamala Harris, a Democratic candidate for attorney general.

"We know that when you go to prison and come out with no changed circumstances, you are prime to reoffend," she said. "The first and principal priority should be prevention."

The cutbacks are the result of the state's budget crisis and the $60 billion deficit lawmakers tackled last year. As part of two budget plans approved in 2009, prison officials were forced to reduce spending by $1.2 billion this year. The state also made deep cuts to education, health and human services, and many other public programs. Still, California now faces a new $20 billion deficit through June 2011 and further cuts to state programs are anticipated.

This morning's Chron features a serious critique of these cuts from unexpected sources: Harriet Salarno, president of Crime Victims United of California (and driving force behind Prop 9), and Assemblyman Ted Lieu, who is a prosecutor and member of the Assembly Judiciary Committee.

This is shortsighted because, while the time a criminal spends in prison is for punishment, it can also be used for rehabilitation and change. This time is wasted unless it's used to teach an inmate to read, earn a high school diploma, acquire life skills, complete anger management courses, learn a trade or otherwise provide them with alternatives to a life of crime. Instead of increasing rehabilitation programs - or at least maintaining current levels - the department is cutting $250 million of a $600 million rehabilitation program. It's also laying off 600 to 900 educational and vocational prison instructors. These reductions fail both inmates and the public.

If an inmate spends five years in a state prison, is released without rehabilitation, re-offends, and then is sent back to prison, what have we gained? The department's approach is unwise and dangerous. Unreformed inmates are very likely to re-offend, which means more crimes will be committed, more victims created, more lives torn apart. Where is the reform?

Salarno and Lieu's angle is, of course, the expected danger to society, and they do not fail to mention the risk of the expected releases. But the interesting thing is that punitiveness and rehabilitation are not contradictory. Several studies in punitivism have found Americans to have a "punitivism complex", which consists of supporting, simultaneously, punitive initiatives and extensive rehabilitation programs, particularly for juvenile offenders. In the turmoil around early releases, we may have found something we can all agree on.

Tuesday, February 16, 2010

Policy Implications of Marijuana Legalization

When California taxes and regulates marijuana, how will other state policies be affected? JOIN US 12p-1p Monday 2/22/10 at UC-Hastings Room A (198 McAllister St.) for a panel discussion featuring:
Prof. Hadar Aviram, UC-Hastings College of the Law
Prof. Alex Kreit, Thomas Jefferson School of Law
Quintin Mecke, Communications Director, AB390 sponsor Assm. Tom Ammiano

Friday, February 12, 2010

The Granddaddy of Three Strikes Laws: Baumes Law

The commonly told story of American penology usually starts in the late sixties, highlighting a newly increased "tough-on-crime" ideology, and leading not only to determinate sentencing in the 1970s and 1980s, but also to the extremely punitive measures of the 1990s. Among those, we often mention the Three Strikes Law as the epitome of punitive legislation. While some, like Roger Matthews, argue that this increased punitiveness is largely a myth propagated by progressive realist accounts, it's difficult to argue against the realities of increased imprisonment rates.

Elsewhere, we suggested that the Three Strikes Law's impact on incarceration is a bit more subtle and complex than might seem, and it probably operates more as plea bargaining leverage than as a direct cause of overcrowding. Much of its evil comes from the absurd examples of injustice it propagates, as well as from its contribution to the aged and infirm prison population. At the time of its enactment, it was one of four alternative proposals, and the most draconian of the four.

Not many people know, however, that the concept of Three Strikes is not an invention of the 1990s. A couple of weeks ago, at the San Francisco Film Noir festival, I had a chance to see the dark and entertaining 1953 film Pickup on South Street, set in New York City. One bit of the dialogue caught my ear: the pickpocket, played by Richard Widmark, expresses concern about being caught shoplifting for the fourth time because he already has "three strikes" and will be sent away for life.

This issue plagued me for a couple of weeks, and so I spent a bit of my day researching. The law the Widmark character refers to is Baumes Law, enacted in New York City in 1926. Like the California 1994 version, the New York 1926 version was a habitual offender act imposing a life sentence for repeated felonies. And like our Three Strikes Law, the Baumes Law brought with it a set of injustices and absurdities, including the story of repeat shoplifter Ruth St. Clair (interestingly, Pickup on South Street also deals with shoplifting "strikes"). While the law was enacted to appease public punitivism, interesting developments followed. As Khalil Muhammad points out in this cool piece, "[b]y 1932, shortly after the Baumes Law passed, a ground swell of public and judicial outrage mounted against the law, resulting in it being 'liberalized' from a mandatory life to a minimum-15-years-to-life provision."

What does all this mean? First, it appears that there is nothing new under the sun. Some novel legislative ideas have already been pursued before, and we can learn from their implications and discontents. Second, perhaps punitivism, like legislative ideas, is cyclical. The public's taste for punitivism may decrease in time. And third, that sound and logical public opinion can turn back the wheels of the punitive machine.

Have an excellent long weekend.

Community Justice Center: Interview with Judge Albers

In case our readers might not have seen this, the Center for Court Innovation website features an interview with Judge Albers, who offers his perspective about the Community Justice Center and the politics surrounding it.

SBX3 18: Parole Reform

A recent CDCR press release reports that the implementation of SBX3 18, the compromised, watered-down version of Governor Schwarzenegger's proposal for population reduction, is well under way. As you may recall, the original plan was approved by the Senate but gutted by the Assembly. For your reference, here is the full text of the bill. The press release focuses on implementing changes in parole, focusing on the following reforms:

Reforms required by SBX3 18
  • Two-tier parole system, with less parole supervision on parolees deemed as low risks.
  • Drug and mental health reentry courts for parole violators.
  • Usage of the PVDMI risk-assessment instrument (the pilot precedes the bill). Here' s some history about the instrument's origins. Apparently, it was developed for CDCR and tested by Susan Turner and other researchers at UC Irvine. Replicating work done in Washington State, it is an actuarial tool examining recidivism, and its predictive qualities are based on recidivism information in 103,000 cases from 2002/2003. The database predicts reoffending based on information about arrests, case disposition, demographics, and other risk factors.
In addition, the press release specifies caseload reduction for parole officers, by hiring new officers and changing some job definitions. It also explicitly states the intention to supervise parolees focusing "on a parolees successful transition into the community rather than how many times they are revoked."

Given the recent discussion in Valdivia, I'm unclear on whether these improvements would apply retroactively to people who are already on parole. My sense is that they would. After all, it doesn't make much sense to keep low risk parolees under close supervision when the idea is to eliminate costs. Plus, supposedly parolees (as well as the system as a whole) would be benefiting from these changes.

Wednesday, February 10, 2010

Sure enough, not just CA

Check out this ambitious program: PRIOR, Policy Research Institute for the Region, at Princeton will host "Reforming the Corrections Environment: We Can't Keep Paying these Costs--Can We?" on 3/5/10.
Michael Jacobson for Vera Institute of Justice... Marc Mauer for The Sentencing Project... Secretary James Beard for the PA Dept of Corrections... anyway I wish I could go!

Stephen Fry Mocks the American Imprisonment Boon

Props to my colleague Aaron Fichtelberg for the link.

More on Jail Releases from Jeanne Woodford

A few days ago we reported on the impending jail releases and their effects. Jeanne Woodford's op-ed in the Contra Costa Times offers some ideas on how to thoughtfully reduce population and how to spend the Federal and AB 900 money:

First, California is expected to receive upward of $35 million in federal funds through the Edward Byrne Justice Assistance Grant (JAG) Program in 2010. Federal JAG grants, which do not require state or county matching funds, are approved for law enforcement, prosecution and court programs, community corrections, and drug treatment, among others.

Sacramento should direct these funds to counties to assist counties' handling of probationers and parolees.

This is not unheard of. Last year the Legislative directed $100 million in federal stimulus JAG funds toward crime-reduction programs, including $45 million to county alcohol and drug services (to provide treatment instead of incarceration to low-level drug offenders), $45 million for intensive probation services (to increase the number of felony probationers completing probation successfully) and $10 million for a new Re-Entry Courts initiative (to reduce parolee recidivism).

Secondly, counties should be able to access funding from the prison expansion legislation passed in 2007, AB 900. That bill included resources for rehabilitation services and a limited amount of funding for counties. Rather than being spent to expand state prison beds several years in the future, more of these resources should be directed to counties now to fund community corrections and, where needed, jail space.

I think the key to use the funds thoughtfully is to find out which "crime-reduction programs" have proven rates of success. It's time for a new "What Works". After reading Dreams from the Monster Factory, I thought whether anyone had collected good data, including a control group, regarding the success of the RSVP program. Assessing the efficacy of such programs should be top priority. One of the challenges is that recidivism data is rather difficult to access in California and rap sheets tend to be somewhat inaccurate. In addition, due to the multiple types of parole violations, it's hard to know whether to treat them as failures of rehabilitation or not. But good methodological answers to these questions can and should be found. These are no trifle sums of money, and they need to be well spent.

Monday, February 8, 2010

CCC talk on Feb. 25: Invitation

On Thu Feb 25, I'll be giving a talk (and hopefully have a conversation with the audience) about the California correctional crisis. The details are here. The talk is at (and courtesy of) Reed Smith, at 6pm, and attendance requires RSVP-ing through the UC Hastings alumni center. I'll be delighted to see old and new friends in the audience and hopefully meet blog readers.

Anticipated Jail Releases

The legislation passed last year, which, as you might recall, was a much leaner version than Gov. Schwarzenegger's original proposal, is leading to a few early releases from jail. reports:

The legislation calling for the early releases, passed by the Legislature last year, gave some prisoners enhanced credit for good behavior or work-time while behind bars. It barred eligibility for some kinds of prisoners, such as violent or sex offenders.

As a result, most of the early-release prisoners are serving sentences for crimes such as drug possession and vehicle theft, Parker said.

"There are certain criminals we see again and again and again," Parker said. "This will mean we'll see them again and again and again, just on a faster cycle."

Previously, inmates could have up to a third of their sentences waived if they behaved well or did work while in jail. Those prisoners can now cut their sentences in half.

Gordon Hinkle, press secretary for the state Department of Corrections, said the law and another component of it affecting paroles will in the long run actually help public safety.

It's worthwhile reading the short piece in its entirety. It may be a microcosm of the implications of, and reactions to, a future larger inmate release.

Thursday, February 4, 2010

UC Berkeley Course Podcasts: Jonathan Simon's Punishment, Culture, and Society

My friend and colleague Jonathan Simon has focused his undergraduate course at UC Berkeley, Punishment, Culture, and Society, on the California correctional crisis. His lectures are being recorded and podcasts are available here. I'm sure they'll be of interest to many of our readers.

Tuesday, February 2, 2010

Residency Restrictions on Sex Offenders Apply to Parolees

More than a year ago we reported on legal challenges to the residency restrictions in Jessica's Law. The proposition, which passed in 2006, included the following section:

This measure bars any person required to register as a sex offender from living within 2,000 feet (about two fifths of a mile) of any school or park. A violation of this provision would be a misdemeanor offense, as well as a parole violation for parolees. The longer current law restriction of one-half mile (2,640 feet) for specified high-risk sex offenders on parole would remain in effect. In addition, the measure authorizes local governments to further expand these residency restrictions.

Yesterday, the Chron reports, the California Supreme Court decided in re E.J. The 5-2 majority decision was that these restrictions apply to current parolees who were imprisoned even before the measure passed. This decision rejects the parolees' argument that the provision is retroactive "because it attaches new legal consequences to their convictions of registrable sex offenses suffered prior to the passage of Proposition 83." Here is the full decision, authored by Justice Baxter.

The court relies on People v. Grant, where the retroactivity of a similar provision was discussed. In Grant, the following retroactivity test was adopted:

In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party‟s liability for, an event, transaction, or conduct that was completed before the law‟s effective date. . . Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute‟s effective date. . . A law is not retroactive merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.

Applying the "last act or event" test to Jessica's Law's residence restrictions, the court finds:

Section 3003.5(b) places restrictions on where a paroled sex offender subject to lifetime registration pursuant to section 290 may reside while on parole. For purposes of retroactivity analysis, the pivotal “last act or event” . . . that must occur before the mandatory residency restrictions come into play is the registered sex offender‟s securing of a residence upon his release from custody on parole. If that “last act or event” occurred subsequent to the effective date of section 3003.5(b), a conclusion that it was a violation of the registrant‟s parole does not constitute a “retroactive” application of the statute.

But how do we deal with the fact that people, at the time of their conviction, did not know that one of the consequences would be a severe limitation on their housing conditions after release?

By parity of reasoning, the provisions of Jessica‟s Law here under scrutiny — section 3003.5(b)'s statutory residency restrictions — are not implicated until a convicted and registered sex offender is released from custody and must take up residency in the community to which he has been paroled. Applying the mandatory residency restrictions to these four petitioners, who were released from prison on parole after the effective date of Jessica‟s Law, and who thus had ample notice of the necessity of securing housing in compliance with the restrictions at the time they moved into noncompliant housing, is simply not a retroactive application of the new law. . . Contrary to petitioners‟ argument, the fact that they were all convicted of sex offenses giving rise to their status as lifetime registrants pursuant to section 290 well prior to the passage of Jessica‟s Law does not, in itself, establish that the new parole residency restrictions are now being applied retroactively to them.

Justice Moreno wrote the dissent (to which Justice Kennard concurred). He responds by invoking the plain language of Prop 83. And he adds:

the majority opinion‟s characterization of what constitutes the pivotal date for purposes of retroactivity analysis in this case is simply wrong. These petitioners did not become subject to the residency restriction when they were released from custody on parole for nonsexual offenses; they were subject to the residency restriction by virtue of their status as registered sex offenders and they acquired that status upon their convictions for their sex offenses. . . Indeed, the current registration law in effect requires eligible offenders to register even before they are released from prison. (§ 290.016.) Clearly, the registration requirement is imposed upon conviction of the registrable offense as are all ancillary restrictions that flow from that requirement including the residency restriction. Therefore, for purposes of the retroactivity analysis here, the pivotal date is the date of conviction for the registrable offense.

The decision in re E.J. affects all parolees who were imprisoned for sex offenses before Jessica's Law came into effect and released after its enactment. I wonder about the size of this population. Also, either by coincidence or not, I found two emails in my inbox this morning from convicted parolees who detailed the difficult conditions of their parole, highlighting the issue of residence restrictions.