Support SB9 – the Fair Sentencing of Youth Act

(image courtesy the Fair Sentencing of Youth website)

CCC has been asked, and readily agreed, to endorse SB9, the Fair Sentencing of Youth Act. The bill, introduced by Senator Leland Yee, battles the evil of LWOP sentences for juveniles by making them subject to judicial review:

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 a prisoner’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 age at 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 recall and 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 statements in the defendant’s petition are true, as specified. The bill would apply retroactively, as specified.
Some FAQs provided by us:
What is this about?
Fancy name aside, this bill would allow the court to consider a petition for “recall and resentencing” by a person on LWOP who was a juvenile when he or she committed the crime. The court would look at the person’s arguments first, then, when appropriate, hold a hearing.
Why does this make sense?
The Supreme Court has acknowledged that juveniles differ from adults in how they cognitively perceive their actions and the repercussions of those actions. This was the reason why, in Roper v. Simmons (2005), the Supreme Court abolished the death penalty for juveniles. There is something profoundly cruel and unfair about locking up a young person for the rest of their life, which could be a very, very long time, without offering him or her any glimmer of hope, given the differences in how juveniles and adults process information.
Doesn’t this violate the Supreme Court’s position that LWOP for juveniles is constitutional?
The Supreme Court has not, so far, had an opportunity to decide that juveniles cannot be sentenced to LWOP. Therefore, at this point, we do not know what the Supreme Court would decide if confronted with the constitutionality question of LWOP for all juveniles. It is important to note that under Graham v. Florida (2010), it is not permitted to sentence juvenile offenders to LWOP for nonhomicide crimes. And, whatever the federal position on this may be, it is merely a bottom threshold; states can always guarantee more rights than the constitution allows. In fact, six jurisdictions do not allow LWOP for juveniles at all. Should SB9 pass, CA sentencing structure would be more reasonable and humane, but still more severe than in those six jurisdictions, because it would leave LWOP to judicial discretion.
So, are all juveniles on LWOP going to go free? Wouldn’t this hurt public safety?
Of course not. First, the final decision on resentencing is up to the judge, who will consider the circumstances and person in question. Second, someone who is resentenced could still end up spending a substantial period in prison. And third, the risk to public safety greatly depends upon the particular person. As a general statement, criminality dramatically decreases with age; we know that most criminals “grow out of it” as they mature. The lengthy incarceration until their death, therefore, burdens California’s correctional budget with no demonstrable detrimental effect on public safety.
What does it mean that the bill applies retroactively? Is that fair?
In this case, retroactive application is the fairest policy possible. It would allow the courts to reevaluate the sentences of California inmates who are currently on LWOP. It would have been very unfair to allow this option only to future juveniles sentenced by the system, because there is no material difference between their situation and that of present inmates.
CCC is happy to answer more questions. Please, feel free to add your own questions in the comment section, so that we are all better informed.

The Community Justice Center and Recidivism Studies

(image by Lea Suzuki, courtesy the Chronicle)

Our point of departure is a new article by the Chron’s Will Kane, which has great news for the Community Justice Center fans. The court continues to operate, closely supervise the progress of its defendants, and assign them to helpful mental health, vocational, and addiction-related programs.

Two years after a bitter fight over its creation, more than 3,200 people have come before the court, which is now lauded by its early critics. Unlike jail, supporters say, the program gives San Francisco’s underserved residents the support they need to clean up and avoid trouble.

“Those are things we can do faster than most and do more effectively than most,” said Commissioner Everett Hewlett Jr., who has overseen the court since January.

Each day, Hewlett hears from as many as 75 people such as Hicks who have agreed to enter the center’s program. Seventy percent of program participants have abused drugs or alcohol, and 36 percent are homeless. An additional 38 percent live in residential hotels.

Two questions remain unanswered in the article. The first is whether the Public Defender’s Office, once a staunch antagonist of the CJC (and of problem-solving courts in general), has come around (I hope it has). The other one, which will occupy us today, is whether any research team is following the defendants after their involvement with the court ends, so that recidivism can be measured.

A few words about recidivism studies: Merely following the defendants and calculating their recidivism rates is not enough. Whenever presented with recidivism rates, unless the rates are zero, the question is, “compared to what?”. Different offenses and offenders have different recidivism rates, and if a program is measured for its success, it has to be compared to the alternative — in this case, an ordinary criminal process.

The ideal time to have started a project like this would have been when the court was operating under a pilot model, because then many defendants committing comparable offenses were being sent to the Hall of Justice. Of course, the best setting for such a thing would be random allocation of defendants to the CJC and the Hall of Justice, but I hardly need to explain why that would be extremely problematic from an ethics perspective; while random allocation creates a natural experiment that is good for science, it is ethically questionable to condition people’s fate upon their random allocation to this proceeding or the other (which is not to say that there aren’t research teams doing it out there). But even if such random allocation is impossible or undesirable, you still want to match the experiment group, CJC clients, to a control group of criminally-processed people. As Mark Mitchell and Janina Jolley explain so well in their book Research Design Explained, matched pairs technique requires rigorous adherence to detail, because each member of the experiment group needs to be matched to a member of the control group in terms of all the important variables. In our case, the fact that people voluntarily decide whether to go to the CJC or to trial is a problem. The matching should take into account not only information about the offense (severity, circumstances, type) and the offender (demographics, criminal history) but also the proceeding. Are people who opt for the Hall of Justice for a jury trial different in an important way to people who opt for the CJC? They probably are, in important ways. This is a very difficult thing to do, and the critique is often that matching is not perfect because this variable or another was not taken into account. The statistical test for matched pairs comparison assumes that the pairing was effective and rigorously done. There are some ways to control for this, but they are not perfect.

Nevertheless, following up on the recidivism rates of CJC graduates will provide helpful information, because it will at least allow some comparisons to the general recidivism rates, or to similar studies done in comparable cities. If such a study is currently being done that the CCC blog does not know about, I invite the CJC personnel or the research team to tell us about their design and progress.

SF Chronicle: CA New Budget Includes Early Releases and Jurisdictional Changes

Today’s Chron reports on the passage of a new California budget, which features deep cuts and aims at reducing the state’s deficit to $14 billion. In the humonetarian tradition, correctional costs make up a big chunk of the article:

Both the Assembly and Senate had contentious debates over a major element of the budget plan – the proposal to move thousands of state prisoners to local jails, which Republicans warned would result in a public safety nightmare.

Assemblyman Jim Nielsen, R-Gerber (Tehama County) a former state parole board member, said counties will be overwhelmed, and thousands of criminals will go free.

“The inmates in state prison will be cheering,” he said. “This is not about the budget, this is about an egregious injustice to the people of California.”

But Assemblyman Charles Calderon, D-Whittier (Los Angeles County), noted the state’s dismal 70 percent recidivism rate and said the bill will actually make California’s streets safer.

“These people are being released from prison … and they haven’t been rehabilitated, because our prisons are overcrowded, and there’s no money to rehabilitate them,” he said. “This realignment will not cause prisoners to go free – they will serve their time, in a new prison called jail.”

The full budget can be found here, and we will provide information about the correctional provisions in a post in the near future.

Numbers of Parolees at Large: An Exercise in Data Presentation

(image courtesy CDCR website)

The CDCR website features a story about the Division of Adult Parole Operations’ success in bringing about a decline in the numbers of parole absconders in California since the formation of the new Parole Apprehension Team. That, in itself, could be good news (provided that these people should’ve been under parole supervision in the first place). We’ll set aside for the moment the heftier discussion of the growing resemblance between parole operations and policing, and the erosion of the concept of parole as an instrument of hope (read Mona Lynch‘s terrific ethnography of parole agents for more insight on this mentality). We’ll also set aside the question whether reporting a decline in absolute numbers makes sense in an era of supposed parole reform, a regime that ostensibly should focus on high risk parolees and thus produce less parolees in the first place. And we’ll even set aside the question of how many of these apprehended absconders were the high risk, violent, dangerous parolees that the public should really be concerned about (hint: the answer is “not many”, as many of the absconders are GPS noncompliant sex offenders, whose recidivism rates are among the lowest). Instead, I challenge my readers to take a look at this graph from the story and come up with at least three different faulty things in the data presentation.

Out-of-State Incarceration and Recidivism

With more Californians sent out of state to be incarcerated in privatized institutions, one of the key questions is whether such institutions work better or worse in the long run. We recently wrote about the corruption and harm involved in privatized institutions, but what happens after people are released?

A new report for the Hawai’i Attorney General’s office (dear colleague David Johnson is the PI for the report) examines how Hawai’ian parolees incarcerated on the mainland do by comparison to those kept on the island. The many problems about this arrangement notwithstanding, the issue of recidivism is an important one.
Johnson and his colleagues find no statistically significant difference in the recidivism rates of Hawai’i-incarcerated and mainland-incarcerated parolees. While the study is not perfect, and the two inmate populations differ substantially in their criminal profiles, it is a reminder to question the wisdom of sending inmates away. While cost is a consideration, it is only one of many considerations. The report relies on the concept of humonetarianism to explain that “lean justice” does not always equal “lenient justice” and is not without its discontents. As the report states,

States and their leaders have a responsibility to care not only about crime control and the costs of incarceration but also about the present welfare and future well- being of criminal offenders and the communities from which they come. The vast majority of offenders will come home one day, and they will be our neighbors.

Solitary Confinement: Not Just Bradley Manning

This morning, the CNN website features a piece by psychiatrist Terry Kupers from the Wright Institute regarding Wikileaks suspect Bradley Manning’s imprisonment conditions. Terry, author of Prison Madness (reviewed here by Psychiatric Services), argues that keeping Manning in solitary confinement is cruel and counterproductive to the goal of preserving Manning’s safety and sanity.

I haven’t read Prison Madness, but this excellent 2009 New Yorker article by Atul Gawande is helpful in explaining why solitary confinement is one of the cruelest forms of imprisonment. My two cents: Manning’s headline case should not be seen as exceptional. It should draw our attention to the fact that non-Wikileaking inmates are, as a matter of routine, held in solitary confinement — even if, as our pal Sara from the Prison Law Blog remarks, CDCR insist on calling it something else. In addition to the maddening conditions, I frequently receive letters from inmates complaining about the strict control over reading materials at SHU units.
When reading about the imprisonment conditions of some particular inmate or other whose issue has made the news, I find it useful to think how many unnamed, invisible folk are subjected to the same, or worse, incarceration regimes. I encourage my readers to do the same.

For-Profit Institutions: Absolute Power Corrupts Absolutely

The debate over privatized correctional institutions is, for the most part, a non-debate. Institutions owned, funded, and directed by such entities as the Corrections Corporation of America are a fact of life, and Californian inmates hare subjected to privatized out-of-state institutions as well as to privatized operations within state prisons. The jury is still out on whether private institutions produce higher or lower recidivism rates (this Florida study suggests no significant differences between private and public institutions; here’s a good lit review from the study of previous projects in the same vein). But beyond the issue of long term gains, privatized institutions provide problematic opportunities for profit making that end up in corruption. And corruption comes in many forms.

What sparked this post was a recent piece on the California Bar Journal about a Pennsylvania judge who has just been convicted by a federal jury of —
taking millions of dollars in kickbacks from the owner of for-profit juvenile detention facilities. Mark Ciavarella was convicted on 12 of 39 counts, including racketeering, racketeering conspiracy, mail fraud, money laundering conspiracy, conspiracy to defraud the U.S. and filing false tax returns. The jury also found that he must forfeit the $997,600 “finder’s fee” he received from the developers of private juvenile detention centers. Another former judge charged in the case, Michael T. Conahan, pleaded guilty to a single racketeering charge last year and is awaiting sentence.
The author, Janice Brickley, informs us of the California Commission on Judicial Performance; lawyers can submit complaints about judges, and in situations such as the Pennsylvania travesty, they should. But much as it is shocking to see a judicial officer whose neutrality is the cornerstone of justice sell off to correctional profiteers, let’s keep in mind that judges are human beings. And the absolute power provided to people – whether it’s over prison management or people’s lives – corrupts absolutely.
We’ve recently seen examples of other kinds of travesty that seems to be the by-product of privatized industries: The sexual assault of Hawai’ian inmates in a private facility in Kentucky, and the distressing complicity of Correctional Corporations of America in bringing about the racist, xenophobic, and arguably unconstitutional, SB1070 in Arizona. Why would judges be better than corporate profiteers or their employees? Why are we so surprised when they transgress, whereas we shrug at CCA’s cynical manipulation of state correctional policies to fill its institutions with inmates? I don’t know. But these sorts of incidents should provide food for thought to those who would expand the privatized empire as a measure to fight overcrowding.
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Props to dear colleague Lois Schwartz for the link.

Impact of Juvenile Facilities Closure on Adult Criminal Court Filings

Governor Brown’s plan to shut down all DJJ facilities has been scratched, due to budgetary difficulties. Nonetheless, it is important to pay attention to two recent reports by the Center on Juvenile and Criminal Justice on juvenile justice realignment.
The first report assesses the potential impact of DJJ institutional closures on adult charges. This, you may recall, was a cause for concern in some quarters. Nonetheless, the report finds that, while “California counties drastically vary in arrest and incarceration policies. . . even radical variations in reliance on State incarceration have no effect on juvenile crime rates or trends.” Here are the main findings:
In 2009, 24 counties employed locally self-reliant juvenile justice practices. Those counties were Alpine, Amador, Calaveras, Colusa, Del Norte, Inyo, Los Angeles, Mariposa, Mendocino, Mono, Nevada, Placer, Plumas, San Diego, San Francisco, San Joaquin, San Luis Obispo, Santa Clara, Sierra, Solano, Sonoma, Stanislaus, Trinity, and Tulare.

In 2009, 13 counties employed State-dependent juvenile justice practices that would significantly obstruct juvenile justice reform. Those counties were Alameda, Contra Costa, Fresno, Kern, Kings, Merced, Monterey, Orange, Sacramento, San Bernardino, San Mateo, Santa Barbara, and Ventura.

The thirteen State-dependent counties accounted for 37% of juvenile felony arrests but 61% of all direct adult criminal court filings and 46% of all DJF commitments, in 2009.

Kings County is the most State-dependent county, direct filing in adult criminal court 50 times more than Los Angeles, 39 times more than San Diego, and 36 times more than San Francisco in 2009.

Twelve California counties did not utilize the state system during 2009; either for a DJF commitment or an adult criminal court filing despite experiencing juvenile felony arrests during that year (Alpine, Amador, Calaveras, Colusa, Del Norte, Inyo, Mariposa, Mono, Nevada, Plumas, Sierra, and Trinity).

Despite having the highest juvenile felony arrest rate in the State, San Francisco County utilized direct adult criminal court filing one-eighth as much as the county with the lowest rate of juvenile felony arrests (El Dorado).
It would appear from the report that adult criminal court filings are a matter of organizational and prosecutorial culture, and the policies are not sensitive to the adult/juvenile divide. It is important to say that these findings make sense in the aggregate. I’m sure that, in single cases that raise true dilemmas, juvenile justice practices might be taken into account by individual prosecutors when making the call whether to charge someone as a juvenile or an adult. But the big picture does not seem to support a structural connection between the two.
The second report examined the capacity of county facilities to house juveniles. As the table shows, California counties currently have the space and infrastructure to house all juveniles who are now held in state prisons.
What does all this mean now that the governor has changed his plans? Perhaps it means that law enforcement officials making charging decisions can, and should, be more amenable to the possibility of charging juveniles with misdemeanors rather than felonies when possible. If the change does not occur as a grand top-down policy, it may have to occur as a bottom-up aggregate set of decisionmaking on the part of prosecutors.

Panel on Isolation Units

Almost once a week I receive mail from inmates or family members concerning the solitary confinement conditions at the SHU unit in Pelican Bay. We have previously blogged about the discontents of solitary confinement and behavioral modification here and here. Now, the Center for Constitutional Rights is organizing an upcoming panel about the conditions in isolation units.

Where: The Women’s Building, Audre Lorde Room, 3543 18th Street #8, San Francisco, CA
When: Tuesday, April 5, 6:30pm-8:00pm
Who:
  • Dr. Terry Kupers, M.D.
  • Alexis Agathocleous, Staff Attorney with the Center for Constitutional Rights
  • Zahra Baloo, Executive Director, Council on American-Islamic Relations (CAIR)-San Francisco Bay Area
  • Keramet Reiter, JD, PhD Candidate Berkeley Law

Regulating Medical Marijuana

Once, in a criminology course, I asked my students whether they thought there would be less criminalizing if we regulated prostitution. At first, they all thought that we would see many less people prosecuted for prostitution-related offenses: No more john schools, no more arrests of prostitutes. Then, we all thought about the need for health codes, zoning, contact with minors, labor and employment issues, and realized that people would still be prosecuted; they’d be prosecuted for technicalities. Max Weber would have a field day.

After the demise of Prop 19, the medical marijuana industry supposedly would continue its business as usual. However, it appears that things have changed. The rate of raids on dispensaries have increased, and, as reported by the Sac Bee, advocates call for state-wide regulation of the industry. The fact that a behavior is “legal” does not mean that it is “unregulated”, and does not avoid the interaction with law enforcement in situations of real or imagined violations.

Currently, under California law, dispensaries providing medical marijuana must operate as nonprofit “collectives” of registered medical marijuana patients who reimburse dispensaries for the costs of providing medicinal pot.

But medical cannabis in California has boomed into an industry generating an estimated $1.3 billion in transactions and paying hundreds of millions of dollars in salaries, rent and overhead costs.

Authorities, looking for illicit profiteering, last year raided scores of dispensaries in San Jose and Chico and prosecuted medical marijuana providers in San Diego County. The district attorney in Los Angeles, Steve Cooley, branded a local boom in medical marijuana outlets as “storefronts illegally pushing pot.”

Assemblyman Tom Ammiano, D-San Francisco, said he intends to introduce an “omnibus cannabis bill” to create a state oversight program to regulate medical marijuana dispensaries and all aspects of delivering marijuana to legal medicinal users.

Ammiano said the Legislature needs to clarify the rules due to the wildly divergent approaches towards dispensaries. They are embraced in some California cities and raided in others.

How much of the need for such regulation would go away if we legalized marijuana for everyone? Some of it would. The need to supervise dispensaries for medical needs of patients would disappear. However, there would be other regulatory aspects. Dosage, sources, zoning–all of those would have to be carefully defined. Rather than checking patient ID cards, drivers’ licenses would need to be checked to ensure no sales to minors. Personal growing areas would have to be measured to ensure a differentiation between a personal and a commercial growing operation. In other words, there is no guarantee that the eyes of law enforcement agent would immediately be diverted elsewhere, a-la The Eye of Sauron. More rules might mean more infractions.

What statewide regulation would do, however, is clarify the extent of commercialization we allow the medical marijuana industry. That is not necessarily a bad thing; it would be an opportunity to give some thought to the question why it has been important to keep this industry on a non-profit basis. I’d be curious to hear from our readers on this: How would you envision such statewide regulations?