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


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

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

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

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

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

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

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

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

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

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

Focus on Proposition 5: The Nonviolent Offender Rehabilitation Act


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

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

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

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

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

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

Placement is established upon clinical evaluation and is quite flexible.

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

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

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

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

Recidivism Reduction in Mental Health Courts?


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

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

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

Problem Solving Courts


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

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

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

Another valuable resource

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

Particularly notable is its 2007 Report, “Solving California’s Correction’s Problems: Time is Running Out.” http://www.lhc.ca.gov/lhcdir/report185.html

Among the Report’s key recommendations:

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

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

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

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

Another must read!

The Importance of Re-Entry


My student Billy Minshall has just directed my attention to a short piece by Jeff Adachi, the public defender for San Francisco, on today’s Examiner. Adachi is referring to a special event on re-entry today. Among other things, he writes:

Every year, more than 137,000 parolees are released in California, including 2,400 who return to San Francisco. Of these, only 21 percent are expected to successfully complete parole. Most, like Jesse, have low levels of education, reside in poor neighborhoods and lack basic marketable job skills. With the advent of online criminal background checks, many are eliminated before they are even considered for employment.

Employers are understandably reluctant to hire offenders. Some jobs — such as transport, teaching, and child or patient care — automatically bar offenders. Employers may also fear legal liability if an offender commits a crime while employed. In a recent survey of employers, less than 40 percent said that they would consider hiring an offender.

So, what can be done to help a formerly incarcerated man or woman who wants to work and avoid the revolving prison doors?

The answer is stunningly simple: convince employers to hire offenders.

Not an easy task, but one that can be facilitated through Supervisor Mirkarimi’s plan to insure employers prepared to participate. Given the rates of incarceration, this should really be a top priority.

On the same topic, Jennifer Gonnerman’s new book Life on the Outside documents the re-entry challenges faced by Elaine Bartlett upon her release from prison. The book’s website is a good resources for those of us seeking to connect the broad re-entry issue with a particular human face and story.

Education at San Quentin


Today I came across a Chronicle piece from 2002 about Jeanne Woodford, the previous warden at San Quentin, and her commitment to GED programs and prison education in particular. The CDCR page on San Quentin suggests that the current warden, Robert Ayers, has kept the educational programs in place.

In the article, Woodford points out that many of these programs can be carried out without additional expenses to taxpayers. I wonder if that is still feasible given the increase in prison population.

On the Ballot: Propositions 5, 6, and 9


On Nov. 4, Californians will not only get to decide between Obama and McCain, but also to weigh in about their priorities and values regarding law enforcement and corrections. There are three relevant propositions on the ballot, and voters will need to realize that, to a great extent, supporting each of these comes at the others’ expense. Moreover, it is important to pay attention to the fact that each of the propositions espouses a different ideology about criminal propensity and crime control.

Prop. 5: Nonviolent Drug Offenses; Sentencing, Parole and Rehabilitation

Proponents of NORA (Nonviolent Offender Rehabilitation Act) argue that current drug laws do not allocate resources to treating the problem from the source, which is addiction. According to the proposition, the idea is to preserve resources by reserving punitive measures for violent offenders, and focusing on treating non-violent offenders through the diversionary methods set in Prop. 36. This would be accomplished through a reorganization of entities, adding special divisions at CDCR that would address substance abuse, vocation and education. For the purposes of NORA, a “non-violent drug offender” is someone convicted of “unlawful personal use, possession for personal use, or transportation for personal use, or being under the influence of any controlled substance”; the prop excludes “possession for sale, transportation for sale, production, or manufacturing of any controlled substance”.

The options for deferred entry of judgment and for supervision are ehnanced. The proposition is very much in the spirit of therapeutic justice.

Prop. 6: Police and Law Enforcement Funding; Criminal Penalties and Laws

By contrast, this proposition, also called the Safe Neighborhoods Act and the Runner Initiative, is very much in the spirit of Packer’s Crime Control model. The idea is to increase funding for more traditional law enforcement activities. The proposition identifies a few key criminal phenomena and focuses on aggressive prosecution toward them. One such focus is gang activity; under Prop 6, any youth 14 years or older convicted of a “gang-related” felony would be tried as an adult. Other “focus areas” include violence and methamphetamine trafficking.

The proposition would also criminalize tampering with monitoring devices such as electric cuffs, and would require anyone receiving public housing subsidies to undergo annual criminal background checks.

The official text also provides for strengthening police intelligence and “mapping” high risk areas.

Prop. 9: Criminal Justice System; Victims’ Rights; Parole
Prop 9 advocates a third type of justice model, namely, one focusing on victims’ rights in various ways. It includes a CA constitutional amendment as well as regular legislation. Some aspects of Prop 9 include a requirement to pay restitution to victims and a prioritization of these requirements. It also expands victims’ legal rights and their impact not only throughout the adjudication process, but also in parole hearings.

The official text ttt bemoans the faulty implementation of the Victims’ Bill of Rights in 1982, and suggests to improve matters by assuring that victims are informed of developments in the case, including pre-sentence reports, plea bargains, and sentence details. Victims would be notified of bail hearings and would have the right to be heard before a bail decision is made.

In addition, Prop 9 also creates additional limitations on parole, and adds years before parole can be obtained in certain cases.

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This is going to be a tough choice. As David Garland argues in The Culture of Control, our criminological “history of the present” is such that several models of criminal justice coexist, along with their contradictory premises. When pitted one against the other, as in the 2008 ballot, the conflict is not only one of ideologies but one of resources. Shifting more resources toward enforcement would come at the expense of rehabilitation and vice versa. Moreover, hiring personnel with a defined agenda, which would be a necessity under each of these propositions, would impact the spirit of criminal justice in general. So, the choice is not merely between priorities, but between paradigms.

A Comparative Look at Prison Overcrowding


A few months ago, the NY Times published updated statistics as to the number of prisoners per 100,000 people around the world.

The United States has, for instance, 2.3 million criminals behind bars, more than any other nation, according to data maintained by the International Center for Prison Studies at King’s College London.

China, which is four times more populous than the United States, is a distant second, with 1.6 million people in prison. (That number excludes hundreds of thousands of people held in administrative detention, most of them in China’s extrajudicial system of re-education through labor, which often singles out political activists who have not committed crimes.)

San Marino, with a population of about 30,000, is at the end of the long list of 218 countries compiled by the center. It has a single prisoner.

The United States comes in first, too, on a more meaningful list from the prison studies center, the one ranked in order of the incarceration rates. It has 751 people in prison or jail for every 100,000 in population. (If you count only adults, one in 100 Americans is locked up.)

The only other major industrialized nation that even comes close is Russia, with 627 prisoners for every 100,000 people. The others have much lower rates. England’s rate is 151; Germany’s is 88; and Japan’s is 63.

The median among all nations is about 125, roughly a sixth of the American rate.

The piece also provides a breakdown by state, which seems to locate California somewhere in the middle between Maine (273 per 100,000) and Louisiana (1,138). I am assuming these numbers include prisons and jails.

The intriguing graphs are the ones depicting the decline in crime rates, happening simultaneously with the increase in incarceration rates. It is also interesting to note that, while most inmates in state prisons are incarcerated for violent offenses, most federal inmates are incarcerated for drug offenses. The article does not provide data on incarceration rates due to parole violations.