Thoughts and News on Criminal Justice and Correctional Policy in California
Sunday, August 29, 2010
Risk Management: Psychological Evaluation of Parolees
The first one is related to psychological evaluation of parolees. Part and parcel of the release of any California inmate is a psychological risk assessment. However, no such risk assessments were required for federal or out-of-state parolees who then served their parole in California. Jaycee Lee Dugard's kidnapping by Philip Garrido, who served time in Nevada before being a California parolee, was the inspiration for this bill, whose full text is here.
This bill would require the Department of Corrections and Rehabilitation to assess every person on parole transferred from any other state or by the federal government to this state who has been, or is hereafter convicted in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would require the person to register as a sex offender, as specified. The bill would specify that this assessment shall occur no later than 60 days after a determination by the Department of Justice that the person is required to register as a sex offender, as specified. The bill would revise the definition of “eligible person” for the purpose in the paragraph above to include all persons required to register as sex offenders pursuant to the Sex Offender Registration Act.
I wonder if this legislation (which, in itself, is fairly sensible, depending on the reliability of the risk assessment tool) would have really prevented Dugard's kidnapping. The answer to that lies not only in conditions for release, but also with the indicia of dangerousness and rehabilitation that parole agents later look for. Would a man with a steady job, a house, and a seemingly functional family drawn any attention? Would his deep pathologies have revealed themselves through the risk assessment tool? These are very hard questions to answer.
In other (not unrelated) news, Cathleen Gagliani, a Democrat assemblywoman from Stockton, has approached Gov. Schwarzenegger to help prevent the release of Loren Herzog, convicted for multiple murders. More on why this is somewhat of an outlier case from the Sac Bee:
In a letter to Schwarzenegger this week, Galgiani asks the Republican governor to "intervene and request a clinical review and risk assessment of Loren Herzog's mental status" in an attempt to keep him incarcerated as a sexually violent predator.
Under state law, a judge can order a sexually violent predator incarcerated for an additional two-year period, with review once that stint ends, if the person is found by two psychiatrists or psychologists to have a mental disorder that makes reoffending likely.
Galgiani wants Schwarzenegger to target Herzog for such a mental evaluation before his release, saying in her letter that "I believe that Loren Herzog will be found to likely reoffend."
One potential obstacle for Galgiani is that the law permitting continued incarceration of sexually violent predators, beyond their parole date, targets those who have been convicted of sex offenses against two or more victims.
Though Herzog pleaded to voluntary manslaughter, Galgiani said in her letter that he was "believed to have been a participant in two rapes" and that "two women testified against Shermantine and Herzog for alleged rapes they never pressed charges for."
This raises another big issue, namely, that of the extent to which we rely on convictions as a record of the "truth". As many of our readers probably know, the vast majority of criminal cases end in plea bargains, in which defendants plead to more lenient charges than those originally pressed in return for a predictable sentence. It is problematic to rely on these records as a genuine expression of what the defendant is believed to have done, but it is also very problematic to assume the opposite, given the prosecutorial incentives to overcharge for the purpose of bargaining. So, when assessing Herzog's dangerousness, do we take into account only the offenses he was convicted of, or also those for which there was evidence but not charges?
Saturday, August 28, 2010
Folsom State Riot: 5 Inmates Shot
Prison guards shot into a crowd to stop 200 rioting inmates at California's Folsom State Prison, wounding five, authorities said Saturday. Another two inmates were injured by other prisoners during Friday's riot, which began at about 7 p.m. in the main exercise yard and ended after 30 minutes. Prison spokesman Lt. Anthony Gentile said officers fired after other efforts to break up the riot failed.
"We tried to control the situation with chemical agents dispersed over the crowd," Gentile said Saturday. "We fired several rounds of rubber bullets and that didn't stop them from fighting."
None of the inmates suffered life-threatening injuries, and none of the 45 to 50 officers who responded were hurt.
The piece provides no background for the riot; the Sac Bee reports that the cause is still under investigation.
Thursday, August 26, 2010
Daedalus Issue on Mass Incarceration
LWOP Reconsideration Bill Rejected
props to Janet Gray for alerting me to this.
Wednesday, August 25, 2010
Reentry: Felons Cannot be Categorically Excluded as Caregivers
An Alameda County judge blocked Gov. Arnold Schwarzenegger on Tuesday from excluding convicted felons and shoplifters from providing in-home care in a program that serves 430,000 low-income elderly and disabled Californians.
Superior Court Judge David Hunter had ruled in February that Schwarzenegger's action was illegal because state law bars workers from the program for 10 years only if they have been convicted of child abuse, elder abuse or defrauding Medi-Cal or any patient.
In-home patients, who have access to their caregivers' criminal records, can otherwise employ anyone they want, the judge said.
Schwarzenegger, acting by executive order, is seeking to bar from the program anyone ever convicted of a felony or certain misdemeanors, which include shoplifting. After appealing Hunter's ruling in May, the governor had planned to implement his restrictions later this week.
The state's appeal automatically suspended Hunter's decision but allowed the judge to reinstate it if he concluded that the new limits on caregivers would cause irreparable harm. Hunter made that finding Tuesday, saying both caregivers and their patients would suffer if the governor's rules took effect during his appeal.
I find this report fascinating, because it is a reminder of the mistakes we make when we engage in the "othering" of crime. To people in need of caregiving, convicted felons are not necessarily the "other". They are their parents, siblings and close friends. Attention to these relationships--which surely are not uncommon given the large percentage of Californians who have been convicted and spent time behind bars--is important.
Chelsea's Law Approved by Senate, Almost on Governor's Desk
AB 1844, also known as the Chelsea King Child Predator Prevention Act of 2010, has been approved by the Senate and, after some changes at the Assembly, will be submitted for the governor's signature.
As was the case with previous sex offender legislation, AB 1844 was prompted by the tragic rape and murder of Chelsea King by John Gardner, a convicted sex offender. The new law:
- Increases the sentence for assault with intent to commit a sexual act from 2/4/6 years to 5/7/9 years if victim is a minor.
- Imposes a $100,000 fine on human trafficking when victim is a minor, in addition to the existing 4/6/8 prison sentence.
- Increases the sentence for rape from 3/6/8 years to 9/11/13 years (for victims younger than 14) or to 7/9/11 years (for victims 14 or older). Sentences are even higher for offenses committed by multiple assailants (10/12/14 and 7/9/11 respectively)
- Is applicable in addition to the existing charge of aggravated sexual assault.
- Increases the sentence for lewd or lascivious act upon minors under 14, as well as upon dependent persons, from 3/6/8 to 5/8/10.
- Expands upon Prop 83's mandate to commit offenders to years to life for certain sex offenses against minors to allow life without parole in such circumstances, and adds infliction of bodily harm to the list of circumstances entailing LWOP. It also creates combinations of circumstances yielding LWOP.
- Increases the sentence for offenses committed with great bodily injury from 15-to-life to 25-to-life for victims under 14.
- Adds to Jessica's Law's requirements the prohibition from entering "any park where children regularly gather" withour parole officer's permission.
- Extends the parole period for sex offenders released after a life sentence to 10 years, and creates lifetime parole for habitual sex offenders, persons convicted of kidnapping a child under 14 with the intent to commit a specified sexual offense, and persons convicted of other specified sex crimes, including, among others,aggravated sexual assault of a child. For some offenses, a 20-year parole period is mandated.
- Relaxes the minimal prison requirement for people convicted of petty theft and other offenses (2 priors) -- except for sex offenders (1 prior).
- Requires the use of STATIC-99 as the state's risk assessment tool for adult male sex offenders as a static tool, and requires supplementing it with a dynamic tool.
- Replaces the current requirement to place sex offense convicts in local treatment plan with a requirement of specific conditions, such as participation in an approved sex offender management program.
- Requires an independent assessment of mental health needs in addition to that of the Department of Mental Health.
- Is effective immediately.
The new law's language makes it difficult for me to find the "few cases" in which, according to the Chronicle, "the number of restrictions placed on parolees" would be reduced. Overall, this is one more step in the direction pursued before in Megan's Law and Jessica's Law.
Most Prisoners Come from Few Neighborhoods
My favorite quotes:
“Mass incarceration in the United States has a deep local concentration in relatively few disadvantaged communities,” Sampson asserted.
Chicago crime data for 1990 to 1995 show that a large majority of prison and jail populations came from two poor, black sections of the city, Sampson and Loeffler found. During that time, overall rates of crime and violence declined in Chicago while incarceration rates rose in those two areas.
Monday, August 23, 2010
Does Felon Disenfranchisement Amount to Discrimination?
As many readers probably know, many U.S. state laws prohibit current inmates, and to differing degrees formerly incarcerated people, from voting. Accepting this as a given situation ignores other countries, in which felons (and, of course, former felons) can and do vote, and can under certain circumtances run for office. The disenfranchisement of felons has actual impact on election results: In a 2001 article, Jeff Manza conducted a fascinating quantitative quasi-experiment, proving that, had felons been allowed to vote, several U.S. senate elections, and at least one presidential election, would have come out differently.
These findings may play an important part in the upcoming discussion at the Supreme Court. SCOTUS will review a First Circuit case, Simmons v. Galvin, in which Massachusetts inmates argued against a 2000 legislative amendment disenfranchising felons. The argument is rather creative, and it goes as follows:
(1) ... the Commonwealth's disenfranchisement provisions violated the Voting Rights Act (“VRA”) § 2, 42 U.S.C. § 1973, because the percentage of imprisoned felons who are Hispanic or African-American is higher than the percentages of those groups in the population of the state; and (2) that the provisions violated the Ex Post Facto Clause, U.S. Const. art. I, § 10, as to those inmates who were not disqualified from voting before the these provisions took effect. As to their claim under the VRA, the plaintiffs make no allegation of any intentional discrimination or of any history by Massachusetts of intentional discrimination against minority voters. All they have claimed is that past practices in the Massachusetts criminal justice system produced inmate populations which, in combination with the disqualification of inmates imprisoned for felonies, have resulted in disproportionate disqualification of minorities from voting. Theirs is a claim of disparate impact.
The 1st Circuit found that the Voting Rights Act was not violated; that is, that it never intended to prevent states from disenfranchising felons. Citing a 1967 case:
[I]t can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws, the executives who enforce these, the prosecutors who must try them for further violations, or the judges who are to consider their cases.
That said, there is still room to argue that the disenfranchisement of felons, combined with the de facto overrepresentation of minorities, amounts to racial discrimination, which goes against the voting rights act. This is an interesting argument, and I expect it will not be an easy one to raise in the Supreme Court; our approach toward discrimination tends to rely a lot (too much) on questions of intent. In any case, it will be a discussion worth following.
Prison Affliction: A Reporting Series on Prison Health Care in CA
- While the overall number of deaths of inmates decreased, the number of inmates whose deaths might have been prevented with better care actually increased.
- Independent reviews of medical facilities conducted by California's inspector general for prisons reveal that California's prisons routinely violate medical policies and protocols, leading to delays and denials of treatment for inmates.
- California officials' repeated refusal to fund the receiver's turnaround plan has delayed construction of sanitary medical facilities, computerization of health records and hiring independent executives to oversee medical care at prisons.
- The lack of infrastructure improvements and systemic change contributes to lapses in care for inmates that range from dangerous to deadly.
The presentation comes accompanied by a slideshow, but the images represent the situation a few years ago.
props to my colleague Gail Silverstein for the link.
Norwegian Prisons Revealed
Sunday, August 22, 2010
Marijuana and Federalism: California a Test Case
Washington State Representative Roger Goodman, E.D. of the VCL, moderated the first of two panels, "Marijuana Legalization: A Clash of Federal Power and States' Rights." His excellent panelists explored the contours of the state-federal conflict, and its implications for potential legal challenges to Prop 19. First, Professor Robert Hirshon, who was president of the ABA during 9/11, spoke. Bob said that his "uber-blue-blood" law firm back in Maine had recently asked the Maine State Bar Association for guidance on the professional responsibility considerations of representing medical marijuana dispensaries (Maine has recently become the first American state to issue licenses to retail marijuana stores). The Maine Board of Overseers of the Bar responded with Advisory Opinion 199, advising that because marijuana is federally illegal, representing dispensaries could be a breach of the professional responsibility rules against knowingly assisting a crime.
Next Allen Hopper of the ACLU Drug Law Reform Project affirmed that representing dispensaries could arguably conflict with federal law and thus the PR code. However, he carved out an exception for attorneys who believe they are acting legally and in good faith. His best point came from his personal experience in representing WAMM, the Wo/Men's Alliance for Medical Marijuana, in County of Santa Cruz v. Gonzalez. In that case, earlier this year, a medical marijuana collective and the county regulating it reached a settlement in which the federal government agreed to drop its prosecution.
Finally Professor Alex Kreit of the Thomas Jefferson School of Law in San Diego composed the meat of the panel by summarizing the law review articles he has published on this topic. Alex bifurcated analysis of Prop 19's two sections, one of which legalizes personal possession and cultivation of marijuana, and the other of which allows counties and municipalities to regulate and license marijuana sales. He referred to Section 903 of the federal Controlled Substances Act, which says that the CSA will only preempt state law in the event of a "positive conflict" between state law and the CSA (which prohibits marijuana etc.). Alex analogized that there is no "positive conflict" between prohibiting marijuana and allowing marijuana, since a non-user can comply with both laws -- this is, at worst, a passive conflict -- whereas a "positive conflict" would result from a state law requiring mandatory marijuana consumption (preventing anyone from being able to follow both state and federal law simultaneously). He supposed that federal prosecutors would likely go after locally-licensed marijuana retailers, but would probably lose. Alex also pointed out that the federal government simply lacks the resources to enforce this federal law, rendering the point largely moot. He mentioned his shortly forthcoming article in the Chapman Law Review on this topic, "Beyond the Prohibition Debate: Thoughts on Federal Drug Laws in an Age of State Reforms."
VCL President Eric Sterling moderated the second panel, "Marijuana Legalization on the Ground: Practical Considerations." First, Assm. Tom Ammiano discussed his marijuana legalization bill, which gained notoriety last year as AB 390 when it passed the Public Safety Committee. He mentioned that this legislation would pass in a "hallway vote," highlighting his fellow legislators "cowardice" on this issue. He also explained to the audience the concept of "contingency legislation." The legislature could pass a law or laws regulating marijuana sales this year, set to take effect only in the event that the voters approve Prop 19. Though the Supreme Court would be required to overturn legislation amending a voter-approved initiative, legislation that adds to an initiative and is within its spirit and intent is not only acceptable but good planning. In fact, Section 5 of Prop 19's text specifically allows for new laws creating a statewide regulatory system.
Drug Policy Alliance Staff Attorney Theshia Naidoo (disclaimer: was recently my boss) addressed the main substance of the panel by raising numerous practical considerations related to the passage of Prop 19. She provided an overview of the legal issues, especially on the civil side, likely to arise. She also mentioned the social justice implications of legalization, as DPA has just released a new report, "Targeting Blacks for Marijuana: Possession Arrests of African Americans in California, 2004-08," available here. African Americans are 7% of California's population but 33% of all felony marijuana arrests.
Americans for Safe Access Chief Counsel Joe Elford discussed Prop 19's effects on medical marijuana law. ASA neither supports nor opposes Prop 19, but is neutral. He used medical marijuana as a case study for potential legal challenges to Prop 19. Joe mentioned that the upcoming appellate ruling in Qualified Patients Association v. Anaheim could undermine retail sales (though the ruling, since released, did not). He focused on his "greatest loser," Ross v. RagingWire, in which the California Supreme Court ruled medical marijuana patients can be discriminated against for purposes of employment. Joe's main takeaway was that Prop 19 expressly does not change our medical marijuana laws, except that it would overturn RagingWire -- and would likely lower the price of medicine for patients.
Finally, Sheriff Tom Allman of Mendocino County explained his opposition to Prop 19. He said he supports medical marijuana, but opposes the way it has been implemented in California: by patchwork. He explained that medical marijuana has brought money, and money has brought greed, and greed has brought violence. He sees Prop 19 bringing more marijuana money into the public eye, and thus leading to more violence. His specific stated example for opposing medical marijuana implementation in Mendocino County was "stench," i.e., neighbors' complaints about odor from cultivation.
Wednesday, August 18, 2010
Judicial Discretion to Alter Sentences of Lifer Juveniles?
Existing law provides that the Secretary of the Department of Corrections and Rehabilitation or the Board of Parole Hearings or both may, for specified reasons, recommend to the court that aprisoner's sentence be recalled, and that a court may recall a prisoner's sentence.
This bill would authorize a prisoner who was under 18 years of ageat the time of committing an offense for which the prisoner was sentenced to life without parole to submit a petition for recall and resentencing to the sentencing court, and to the prosecuting agency, as specified. The bill would establish certain criteria, at least one of which shall be asserted in the petition, to be considered when a court decides whether to conduct a hearing on the petition for recalland resentencing and additional criteria to be considered by the court when deciding whether to grant the petition. The bill would require the court to hold a hearing if the court finds that the defendant's statement is true, as specified. The bill would apply retroactively, as specified.
The Chron adds some details:
Opponents, including the California District Attorneys Association and the Assembly Republican Caucus, flatly reject those contentions. They argue that the current system works and that only the "worst of the worst" are eligible for life without parole now.
Scott Thorpe, the association's CEO, noted that juveniles are considered for lifetime sentences if they are tried as adults.
"We're talking about the most serious types of crimes, and we're also talking about defendants who, because of a number of factors, have been determined to deserve at least eligibility for that punishment. We're talking about first-degree murderers," he said.
Supporters, however, say juveniles are different from adults and should be treated as such. They are more likely to be influenced by other people and don't have the same ability to grasp foresight and consequences, said Yee, a child psychologist. And, he said, their brains are still developing, giving them a larger capacity for rehabilitation than adults.
"We're letting prisoners out because of overcrowding - ought we not at least look at children and see if they are deserving to be let out?" Yee asked.
Elizabeth Calvin of Human Rights Watch and other supporters also argued that juveniles tend to receive harsher sentences than adults for the same crimes, because they are less likely to agree to plea deals, don't always understand their rights or refuse to accept responsibility if they were present for, but did not actually commit, a murder.
Senator Yee has been attentive to issue of juvenile justice. Another bill he authored aims at providing institutionalized juveniles with treatment for substance abuse.
Monday, August 16, 2010
Three-Striker Released by L.A. Judge: Textbook Injustice Remedied
A judge on Monday ordered the release of a man who spent 13 years behind bars for trying to steal food from a church, his third offense under California's three-strikes law.
The Stanford Law Project filed a writ of habeas corpus seeking freedom for Taylor, who was sentenced in 1997 to 25 years to life under California's three-strikes law. The district attorney did not oppose the group's move.
. . .
Taylor was arrested 13 years ago while trying to pry open a screen above the kitchen door at St. Joseph's Church in downtown Los Angeles.
He was convicted of third-strike burglary due to convictions of robbery twice in the 1980s, once for stealing a purse containing $10 and once for trying to rob a man on the street. He didn't use a weapon in either case, and no one was injured.
The Rev. Alan McCoy testified Taylor was often given food and allowed to sleep at the church. He told the court that Taylor was a peaceful man who made mistakes and was struggling with homelessness and crack addiction.
Judge Espinoza quoted from McCoy's testimony Monday and said the three-strikes sentencing policies of the 1990s "produced inconsistent and disproportionate results."
It was not uncommon for prosecutors to insist on sentences of 25-years-to-life at the time, he said, but "the fact that the law was so new produced unintended — at least unanticipated — consequences."
What Inmates Think About Early Releases
The facts today are now known by anyone who reads the newspaper; California’s Corrections Administration has always known them. Yet, it took a federal takeover to squeeze out an admission that “there are problems.” This from the same people who immediately after, refused to comply with demands to repair what is broken. All the while, both sides — the courts who have the authority to force the reform, and the state officials not wanting it to — appear to have forgotten the inmates who are continuing to die unnecessarily because of the inhumane conditions being wrangled over… Collateral damage.
End overcrowding? End warehousing and abusing incarcerated juveniles? Compel California to act on previous court orders issued through the years? The Administration has no fear of the courts, with good reason. No person calling the shots in this matter has yet to be charged (much less jailed) for being in contempt of a court mandate after refusing to comply. Until that changes, the children will not be “rehabilitated.” They will not be allowed an education (locked inside a 4’x4’ screened cage five hours a day), participate in therapy, or to partake in vocational training, watched over by an independent watchdog group assuring what is supposed to be happening. The 90% recidivism rate among juvenile offenders will not change. They are fodder to fill the state’s bloated adult prisons.
What programs could be brought to life to change this dismal, unending record of failure? In the long run, only a return to indeterminate sentencing, with built-in incentives (like early release) for prisoners to participate can work to reduce a cycle that no one seems able or willing to break. If prisoners knew that immersing themselves in programs that teach them to read, to address their addictions, to learn violence reduction strategies, to have access to vocational training that actually prepares a prisoner for meaningful employment, you would see a dramatic decline in the worst aspects of prison life, and a dramatic increase in legal and productive behavior when they hit the streets, as almost all will.
What to do right now about overcrowding? Admit parole is a fake! Under California’s sentencing guidelines, those today being paroled have, in reality, completed their sentence. The problem lies with the courts adding on years of parole, to be served after a sentence is completed. Implemented, perhaps, with the best of intentions, in truth, parole only serves a huge number of men and women employed by the state as Parole Officers at a cost of over a billion dollars annually. They in turn guarantee the CDCR its prisons remain overcrowded with “technical parole violators,” which then guarantees prison guards (whose annual salary ranges between $50,000 and $60,000) an opportunity to pad their checks with an additional $100,000+ of taxpayer’s money in overtime pay each year.
What should be obvious to anyone reading this: there is no need to release so much as one convict who has not yet completed his/her sentence. Instead, release those who have, and are presently among the 30,000 “technical” parole violators who, at any given time, languish in California’s overcrowded prisons for up to one year, trapped by a broken system which has recidivism rates of close to 70%, the highest in the United States.
Props to Jerry Jarvis for the link.
Friday, August 13, 2010
"Off The Hook": California Prison Play with Former Inmates!
I understand the play will focus, among other topics, on violence and race segregation in prison, which, incidentally, has been the focus of a recent Chron story highlighting the problems with racial classification and raising interesting questions about its inevitability.