SB 1462, proposed by Mark Leno, passed today in the Senate. It authorizes sheriffs to release inmates from county jail for transfer to a hospital or a hospice, upon the advice of a physician, if the inmate is deemed to have a life expectancy of six months or less and is not a danger to public safety. The bill states that, for inmates eligible for Medi-Cal, the county will continue to pay the nonfederal share of the costs after release.

This is one more block in the general trend of paying close attention to elderly and infirm patients, such as geriatric parole. One of the major features of doing selective incapacitation on a budget is that we still classify people into groups, but now the groups are arranged based on cost, not just risk.

SB1070 protest poster, courtesy NuevaRaza

In another momentous decision, the Supreme Court has struck down portions of Arizona Senate Bill 1070 as violating the Supremacy Clause.

In Arizona et al. v. United States, the Opinion of the Court, by Justice Kennedy, held that Congress gave the Federal Government’s power over regulating immigration. This authorization has preempted state law, and therefore does not leave room for states to legislate on this matter. Several provisions of SB1070, therefore, violate the Supremacy Clause.

The first problematic section, Section 3, set up a state registration program, violating the intent for the Federal plan to be a “single integrated and all embracing system.”

Another problematic section, 5(c), which made it a crime for an undocumented alien to be employed by the State of Arizona, violates the federal scheme, which criminalized employees for employing “illegal aliens”, but not the aliens themselves.

Section 6, which is most of concern to criminal justice enthusiasts, allowed local police officers to make warrantless arrests of certain aliens suspected of being removable. The Supreme Court unequivocally states that it is not a crime, generally, for a removable alien to remain in the United States, and it is only at specific stages of the removal process that there is authorization for arrest, such as when the alien is “likely to escape before a warrant can be obtained.” The state system is not the one created by congress, and thus violates the Supremacy Clause.

It is important to state, however, that section 2(b) has remained intact. It allows for mandatory checks and has some limitations (such as the presentation of a valid AZ driver’s license and the prohibition on racial profiling.) According to the Supreme Court, enjoining that section is premature, as it is not yet clear whether local police will enforce it in a discriminatory fashion, or detain people for longer than required to check their immigration status.

Evan Miller. Image courtesy The North Star News.

In a 5-4 decision this morning in Miller v. Alabama and Jackson v. Hobbs, the Supreme Court has decided that the Eighth Amendment prohibits mandatory life without parole for juveniles.

The Opinion of the Court, written by Justice Kagan, relies on prior case law – particularly Roper v. Simmons and Graham v. Florida – to delineate the differences between juveniles and adults, particularly their less-formed character and vulnerability to outside influences. While Graham addressed crimes other than murder, its statements about children’s development was not crime-specific. Reliance on the discretion of prosecutors, wrote Justice Kagan, is not enough, as many states have mandatory sentencing schemes that require life without parole.

I would like to draw your attention to two important points regarding the Court’s decision, which work at cross purposes. On one hand, much of the Graham v. Florida discussion draws a comparison between life without parole and the death penalty. This is a powerful hook that could serve, sometime in the future, as an attempt to abolish life without parole, after we have abolished the death penalty. On the other hand, the case relies heavily on the differentiation between children and adults, which might hinder a delegitimization of life without parole for adults.

The initiative to allow voters to reform the Three Strikes Law has qualified to be on the 2012 California ballot.

What is this about? The full text of the initiative is here, and as a careful read will show, this offers considerably less than ardent activists against mass incarceration would hope for. The opening, as is customary in anti-punitive proposals, reads as being extremely punitive, and the rhetoric is so dense that it’s hard to read through it. But let’s give it a try. Here are the main premises of the proposed act:

Third-strikers will come in two varieties: Minor and major third-strikers.

Minor third-strikers – that is, folks with two prior serious/violent offenses but a third nonserious/nonviolent offense – will receive double the sentence, in lieu of 25 years to life.

Major third-strikers – that is, folks whose third offense is serious/violent, will still receive 25 years to life.

Even if your last offense is nonserious/nonviolent, you will be sentenced as a major third-striker if one or more of your prior strikes was a sex offense, a homicide, certain narcotics offenses, assault on a police officer, and a few other exceptions.

The time between convictions will still not make a difference.

Second strikers’ fate will not change. Second strikers with a serious felony (following conviction of a serious felony) will get a five-year sentence enhancement, unless the situation is covered by a greater enhancement statute. The time that passed between the convictions does not matter, and the sentence will be served at a state prison.

Resentencing: Third strikers sentenced to life for a third nonviolent/nonserious offense under the old law will be allowed to submit a petition for resentencing within two years from the law’s passage. Anyone else (third strikers in prison for violent third strikes, second strikers) cannot benefit from this provision.

As with everything, there’s a prominent financial angle. The initiative’s website promotes immense budget savings and links to this report, which highlights the budgetary strain by elderly and infirm inmates such as three-strikers.

The formulation of this proposition raises a few questions. First, is this enough? It’ll certainly prevent travesties such as sentencing pizza thieves to life, but it maintains three strikes for all other offenders. Despite the language preventing prosecutors from plea bargaining, there is still wiggle room, and folks with certain violent or sex convictions in their history–regardless of how long it’s been since then–will not benefit from this modification.

 Second, will the public safety and fiscal prudence veneer be enough to convince centrist voters that this is a good idea? I doubt that staunch Three Strikes supporters will buy into the “dangerous criminals are released because pizza thieves are serving life sentences” rhetoric. Back in 1994, voters could have approved a more lenient version of Three Strikes; four or five of those were on the table. They chose to vote for the most punitive one they were offered. Centrists, however, might be persuaded to support this initiative if they take the trouble to read it. It’ll convince them that it covers a fairly small number of cases and retains the draconic punishment structure for a variety of situations. This might be cause for calm for some voters, and cause for dismay for those supporting broader reforms.

Third, what about the advertised huge savings? The Legislative Analyst’s Office report on the initiative answers that in the affirmative, estimating savings for the state system in the $100 million range. However, it also mentions that costs for local government and jails may increase by millions to tens-of-millions, albeit those costs may decrease.

I love the “freeways” analogy in today’s excellent op-ed from former assemblymember Jackie Goldberg!

Viewpoints: Fear mongers were wrong about prison system’s ‘realignment’

Special to The Bee

Published Tuesday, May. 29, 2012

A year into Gov. Jerry Brown’s plan to realign public safety, the Department of Corrections and Rehabilitation has produced a vision of “The Future of California Corrections,” whose plans, not surprisingly, are mirrored in the recent May revise budget. The plan is an attempt to overhaul and redirect a prison system that has been floundering for at least a decade, but it doesn’t go far enough.

A year ago we heard fear-mongering voices warning of dangerous criminals being released and counties too broke to provide jail space, parole officers or programming for realigned prisoners.

One year in, how’s realignment actually working out? The number of people held in state prison has dropped by more than 25,000 in 16 months since Brown has been in office. The count of people on parole is down almost 30,000, and the number of people held in private out-of-state prisons is down 10 percent; all that without a spike in crime.

The crime rate continues to fall and putting fewer people in state prisons means saving tax dollars, and given the $15.7 billion gap forecast in the May revise those savings have never been needed more than they are now. CDCR estimates that it is saving $1.5 billion a year through realignment and will save another $2.2 billion a year by canceling $4.1 billion in new construction projects.

As we see budgets slashed for In-Home Supportive Services, poor families being pushed out of child care and off Medi-Cal, and fewer high school graduates being able to afford to attend our public higher education system, we know where the money is needed.

Based on an encouraging first year, can we expect further parole and sentencing reforms resulting in even more reductions in corrections spending in the next few years? Unfortunately, some are making other plans.

Realignment is an idea that was floating around the Capitol when I arrived in 2000. The U.S. Supreme Court order to reduce deadly overcrowding in our prisons provided political cover for the meek and a political opportunity for the bold to turn around a bloated corrections system. So why is CDCR proposing to raise the population cap to 145 percent of capacity and build $810 million worth of new prison beds?

In my years in Sacramento, I saw that CDCR had developed a culture of construction. Got a problem? Build a new prison. As a Los Angeles native, I understood the culture of construction, familiar from decades of freeway building in Southern California. “Freeways crowded? Build more” was common sense for too long. Now we understand that new freeways will get crowded soon and that we need to invest in a culture and infrastructure of affordable public transit, and in housing people close to where they work.

Building more freeways wasn’t the answer; it was the problem. We’re just beginning to understand that about prisons and jails. Building all those prisons also meant borrowing billions – a big part of the wall of debt that Brown is trying to chip away at by cutting from health and human services, and education.

Fear of further expanding that debt has led the nonpartisan Legislative Analyst’s Office to recommend the Legislature consider closing prisons and act on alternatives to CDCR’s plan to build more.
As the Legislature examines CDCR’s “Future of California Corrections” and the governor’s May revise budget, the question is whether the Legislature takes steps to complete the turn away from 30 years of disastrous corrections policies or blindly shifts overcrowding and jail expansion to our 58 counties. If the proposed $500 million for new or bigger jails makes it through the budget process, we’ll know which direction our elected officials have chosen.

Corrections built prisons, but it was the Legislature that filled them with hundreds of laws that created new crimes and lengthened sentences. Serious sentencing and parole reforms are long overdue and communities, advocates, and other experts throughout the state have been providing ideas of where to start for decades.

An easy step could be to address the rapidly aging population by implementing a geriatric parole process, and expanding medical parole and compassionate release. Other options include passing legislation to decriminalize drug possession, or supporting the initiative to reform the “three strikes” law on the November ballot. We need only the political will to move away from sentencing and parole policies that have done more to bankrupt our state treasury than to secure safety in our neighborhoods.

Do we return to the course of expanding prisons and jails and expanding the percentage of our resources that go to filling them? Or do we take realignment as only a first step toward further downsizing, offering us the opportunity to use tax funds to invest in the well being of our residents now and in the future? I advocate for the latter.

Jackie Goldberg, a former Assembly member from Los Angeles, served on the Public Safety Committee.

http://www.sacbee.com/2012/05/29/v-print/4521707/fear-mongers-were-wrong-about.html

From Californians United for a Responsible Budget (CURB):

We need you to take action today to stop new funding for prison and jail beds throughout the state.

This Monday, the Governor released his May Revise of the budget with a Corrections section that almost exactly matches the CDCR master plan released April 23^rd.  For detail on the plans, check out our press release on the May Revise, and our one page response to the CDCR Future of California Corrections Plan.

In the May Revise the Governor slashes billions from healthcare, housing, education, parks, childcare, workers and all the social services our communities depend on while funding massive prison and jail expansion plans: in this case $500 million for expanded jails and $810 million for more prison beds.

We can’t all make it to Sacramento this week, but we can make our voices heard loud and clear. Budget hearings on Public Safety start today, so we must act immediately to influence these decisions.

Here are 3 ways we need you to get involved:

1.    Call and Email the Senate and Assembly Public Safety Subcommittee Members on the Budget
 
If you are a constituent, be sure to mention that first.  Each call should take less than a minute, but if you’ve only got time for a few, prioritize your representative(s), then the committee and budget chairs (in RED below).   Here’s what to say when you call:

Hi, My Name is ______________ and (I am a constituent of ______________ and) I am calling to urge Senator/Assemblyperson ______________ to say no to $500 million for jail construction and $810 million for new prison beds in the Governor’s Budget.  It is shameful that the CDCR continues to ask for more money to expand the prison system while we are drastically cutting funds for Health and Human Services and Education. I am asking the Senator/Assemblyperson to support budget policy that builds strong communities, not prisons and jails.  We need a prison and jail moratorium now. 

To send an email click on the Legislators name above and you can also add:

·      The impacts that prisons, jails, and budget cuts have had on you and your community

·      Encouraging counties to expand jails when they could take simple, safe steps to reduce their jail populations is following 30 years of failed state policy.  Realignment was meant to reduce prison overcrowding by reducing the population, not by transferring the problem to the counties.  Funds should be sent to counties to fund community services, not build more cages.

·      Similarly, you could avoid $810 million of construction costs and the millions of dollars of debt and operating costs to come if you implement common sense reforms that have been successfully implemented in other states, such as geriatric and medical parole, restorative justice, compassionate release, and drug reform.  Why would we spend more than a billion dollars to build prison hospital beds for infirm and elderly people while we are cutting more than a billion dollars for health services in our communities?

·      California needs from our elected officials to implement commen sense parole and sentencing reform policies that will continue to lower the prison population and the CDCR budget.

2.    Spread the Word
Forward this email, share this link on your Facebook wall and your friend’s walls, and repost from our Twitter!
   
3.    Attend a Budget Hearing in Sacramento and Speak to These Issues

If you will be or can be in Sacramento in the next two weeks, come testify at the budget hearings. We can provide you with talking points and other support. Get in contact with Emily at emily@curbprisonspending.org

Senate Sub 5 Hearings on Corrections & Public Safety

Thursday, May 17th – 9:30am in Room 113

Tuesday, May 22nd – 1:30pm in Room 113

Stop the cages. Stop the Cuts. We need a Budget for Humanity.

In Solidarity,

Emily Harris, Statewide Coordinator for CURB

General Admission ticket purchase ($15)
Student Admission ticket purchase ($10, please show student ID at door)

Today’s Prison Law Blog, an outfit I like and respect, features a guest post by Peter Wagner from the Prison Policy Initiative. Wagner tries to make an anti-gun argument based on a graph depicting gun homicide and gun production.

Here’s what Wagner would have you conclude from this:

The gun lobby would rather not talk about the correlation between the production of handguns and dying. The evidence there is clear. So the question, then, is whether the gun lobby is trying to distract from the problems that guns cause, or are they trying to create them?

I’m no big lover of guns, believe me, and I firmly believe in strict regulation to prevent deadly weapons from being in the wrong hands (of course, sometimes that can’t be helped, unfortunately.) But I do believe that if one wants to make a serious argument based on data, one should read data accurately and honestly.

Take another look at the graph. If Wagner would have you believe that gun production causes gun homicides, wouldn’t gun production have to precede gun homicides? The graph shows quite the contrary. Homicide rates peak before production rates rise. If so, the graph tells us the implausible story that gun manufacturers are responding to the demands of homicidal maniacs. Since only a fraction of all guns sold are used for homicide, that’s not only nefarious, but also rather unlikely. Also, note that for the last five years in the graph, gun production goes up and gun homicides decline. The decline probably has to do with various factors that have nothing to do with gun production (read more about this in Frank Zimring’s new book). This bivariate correlation is close to meaningless.

Accusing the right of alarmism, panic-mongering and inaccuracy doesn’t really work if one resorts to the same tactics. And if you want to make a serious argument for gun control (and there is one to be argued), take the care and diligence to argue it properly.

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Props to Chad Goerzen for shooting the breeze about this with me this morning.