Receiver Advocates Medical Parole

Clark Kelso encourages voters to endorse medical parole for chronically ill inmates as a measure for significantly reducing expenditures on the prison health system. This morning’s Sac Bee reports:

“I am keenly aware, as are the courts,” Kelso said, “that a dollar that we can save in the prison health care program is a dollar that can be spent on other important priorities for the state, such as education, money for children, the elderly, other health care programs.”

An aide in Kelso’s office said that, conservatively, the prison system could save $213 million over five years by paroling just 32 inmates identified as severely incapacitated.

Twenty-one of those 32 inmates are in nursing facilities or hospitals outside prisons, which requires spending for expensive guard time – including overtime – as well as huge health care costs.

These 21 inmates’ average annual health care and guard costs total more than $1.97 million apiece – a total of $41.4 million a year for 21 individuals, said Kelso aide Luis Patiño.

The bill was introduced by Mark Leno. Interestingly, the bill would do something else that reverses a 40-year trend: it would give parole boards some of their power and discretion back. Medical releases would depend on a parole board determination that the inmate no longer poses a danger to society due to his or her medical condition.

As I told my students last week, one of the most significant implications of the shift from indeterminate to determinate sentencing was a shift in power within the system. The most noticeable effect of this change was the transfer of power from judges to prosecutors and legislators; determinate sentencing “locked” the defendants into a sentence based on the charge, and therefore awarded prosecutors a powerful bargaining chip in deciding which offense to charge. However, these changes were accompanied by “truth in sentencing” laws, requiring that inmates serve the majority of their sentence, stripping the parole board from its previously immense power to assess rehabilitation and risk.

It seems that the new proposal would reinfuse parole boards with some of that discretion, but keep it within reasonable boundaries. The concern about disparities and inconsistent criteria for release is significantly narrowed when the parole board has to hear evidence from doctors about the extent to which a certain inmate might be incapacitated due to his or her illness. This seems to be a not-unreasonable assessment, especially since much of the argument against early releases has to do with the concern about putting violent, dangerous people back on the streets. If someone’s illness renders him or her non-dangerous, the only argument remaining for keeping them behind bars is retribution. And the question is whether we can afford pure retribution, as things stand today.

Residence Restriction for Sex Offenders violated… in Piedmont


(image courtesy the City of Piedmont official website)

There is so much going on in this New York Times piece, I hardly know where to begin.

A convicted sex offender has moved into a home across the street from Wildwood Elementary School in Piedmont, infuriating parents, who are asking school officials and the police why the 2006 state law mandating a minimum distance of 2,000 feet between schools and the residences of sex offenders is not being enforced.

But the Piedmont police, on the advice of county and state law enforcement officials, say there is nothing they can do.

As it turns out, the 2,000 feet requirement is unenforceable, because while it contains ex-ante provisions, it does not include an ex-post sanction for violators. This sort of legislation–like the one we showcased earlier today–screams symbolism, demonization, and electoral appeal, rather than practicality and prevention.

The story itself includes all the elements of sex offender policy and panic: a horrible redball crime discovered that inflames the discussion, an account of the unintended negative consequences of the law (many transient registered sex offenders), and plenty of interviews with concerned parents. Note these interesting comments, including the neighbor’s paternalist concern for the registered offender himself:

District Attorney O’Malley, who sits on the management board, said officials across the state spent a disproportionate amount of time on where registered sex offenders lived.

“With Jessica’s Law, the residency restriction component has been an enormous challenge,” she said, adding, “It has probably taken up a huge portion of our time and attention over the last year in just trying to figure out how to support locals to keep their communities safe.”

John McWeeny, who lives adjacent to Ms. McCaffrey, said that as a neighbor and parent of two children who attend Wildwood Elementary, he was “disturbed” by the situation.

“A hundred kids probably walk by these houses every day on their way to and from school,” Mr. McWeeny said. “You could throw a rock from here and hit it. This can’t be a good environment for him either.”

And then we have another usual component of these stories: both parties–the sex offender and his neighbors–confounding pedophilia with child porn, and confounding both of these with homosexuality. I can’t possibly quote it all here.

But this story also includes a prominent class element. The setting for this community affair is the affluent Piedmont neighborhood, the images of which are on the heading of this post. As it turns out, the only place where there sex offenders can live in compliance with the Jessica’s Law 2000 requirement is Hunters Point.


(image courtesy the Examiner)

It is a sad commentary on the Bay Area, that the school requirement is a good index for the relative affluence of the different vicinities. And an even sadder aspect of it is that Hunters Point becomes a site of banishment for sex offenders, driven away from the more affluent communities.

Not surprisingly, there is commentary from George Runner, who has plenty of experience generating “not in our backyard” class-based banishment of released inmates:

State Senator George C. Runner, Republican of Lancaster and an author of the proposition, bristled at the idea that it was inadequate. The Piedmont situation is “outrageous,” Mr. Runner said, but he rejected the idea that the law was to blame.

Parole officers had the responsibility for ensuring adherence with the law, he said.

Mr. Runner also suggested that the law should be enforced at the local, not state, level — which in this case would mean that it fell to the Piedmont City Council to address the situation.

Sometimes I just don’t know what more to say; this is really a textbook example of doing everything as badly as possible. Public safety isn’t helped. The symbolic, futile, unenforceable message is thwarted and becomes a vehicle of hate. Class differences raise their ugly head, spearheaded by politicians whose allegiances are defined by class and locale. Different issues, which require different treatment, get mixed up with each other. The entire affair reminded me very much of a scene in the excellent 2006 movie Little Children, based on Tom Perrotta’s excellent novel. In this particular scene, Ronnie, a registered sex offender well known to the parents of this affluent suburb, goes to the pool on a hot day. The movie does not take sides with regard to registration; Ronnie is a fairly sinister, albeit miserable and pitiable, character. Note the complexity and the subtlety of the movie’s portrayal of community panic, and the delicate hand with which it portrays the class aspect of the disturbing event. The police materializes within seconds; the community congregates around the swimming pool. What a powerful scene; it looks like something out of Durkheim or Kai Erikson.

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Props to David Greenberg for the NYT link.

New Sex Offender Law Proposal: Restriction from Social Networking Websites

Kamala Harris is proposing a new law that would forbid registered sex offenders from joining or maintaining accounts on social networking websites. Her website explains:

Today, one in five children have been sexually solicited online. Only 25 percent of those children ever told their parents.

Just since 2007, the number of users on social networking sites like MySpace, Facebook, and Bebo has doubled. An estimated 750,000 children between the ages of 8 and 12 use social networking websites, despite many of these sites’ prohibition on child users. Many millions more teenagers use social networking websites as one of their primary mechanisms for social interactions with other teenagers or adults. Nearly 80 percent of teen users report that they are not careful about giving out personal information online.

Currently, there is no prohibition for registered sex offenders on using social networking Internet websites. AB 2208 will prohibit any registered sex offenders from using any Internet social networking website, requiring all offenders to sign this prohibition in writing at the time of their registration. A violation of this law would be a misdemeanor punishable by imprisonment in a county jail for a period not exceeding six months, by a fine not exceeding one thousand dollars ($1,000), or by both imprisonment and fine.

If these stats are accurate, this is a grim picture indeed. There is some research out there about how the internet has changed our considerations about victim accessibility and grooming habits. And, according to researchers such as Ilene Berson, there needs to be more awareness of the way in which nonsexual “friending” can seamlessly become sexual grooming. However, resorting to legislation as a solution in this case seems extremely problematic. Rather than resort to cynicism regarding the role of sex offender legislation in electoral campaigns, I think it’s more interesting to take this thing at face value and think about the implications. The first thing that comes to mind is a constitutional challenge. Unless some readers believe that potential people subjected to this requirement have a plausible First Amendment argument, I don’t think this will practically hold water. Even if one’s freedom of expression includes the right to register for Facebook, it is unlikely that any judicial forum in today’s political reality will think these rights overweigh the risk to children (assuming the stats are true; I confess I didn’t check). Previous challenges to sex offender post-sentence regulation consistently passed constitutional muster, and this one will probably pass it as well.

The more interesting question, to me, is that of enforceability. How can one effectively monitor who does or does not log onto a social networking website? After all, you can register with an alias, and in some cases, join chat rooms as a guest without registering. Facebook doesn’t verify your identity or your picture. The only time this might become an issue is if a child complains about being harrassed or propositioned online. Given the underreporting problem mentioned by Harris, this might not yield as much information as law enforcement would like. And when there is a report, the police could investigate and the prosecution could charge with various offenses involving harrassing minors.

Which brings me back to the discussion I didn’t want to pursue: given the unenforceability problems, is this a piece of symbolic legislation used as yet another “tough on crime” tool in an electoral campaign? Your thoughts appreciated.

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Cross-posted on PrawfsBlawg. Props to Jeremy Seymour for alerting me to this.

SBX3 18: Parole Reform

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

Reforms required by SBX3 18

  • Two-tier parole system, with less parole supervision on parolees deemed as low risks.
  • Drug and mental health reentry courts for parole violators.
  • Usage of the PVDMI risk-assessment instrument (the pilot precedes the bill). Here’ s some history about the instrument’s origins. Apparently, it was developed for CDCR and tested by Susan Turner and other researchers at UC Irvine. Replicating work done in Washington State, it is an actuarial tool examining recidivism, and its predictive qualities are based on recidivism information in 103,000 cases from 2002/2003. The database predicts reoffending based on information about arrests, case disposition, demographics, and other risk factors.

In addition, the press release specifies caseload reduction for parole officers, by hiring new officers and changing some job definitions. It also explicitly states the intention to supervise parolees focusing “on a parolees successful transition into the community rather than how many times they are revoked.”

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

Residency Restrictions on Sex Offenders Apply to Parolees

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

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

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

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

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

Applying the “last act or event” test to Jessica’s Law’s residence restrictions, the court finds:

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

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

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

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

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

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

Kristof on Humanity

In case you missed Nicholas Kristof’s column in the 1/27/10 New York Times, it’s right here. Kristof relates statistics and instances of violence in prisons, especially sexual violence, especially in juvenile prisons, especially by prison guards. “I’ve never written about the horrors that unfold in American prisons — especially juvenile correctional facilities — on a far larger scale than at Guantánamo.”

Of course, it is a premise of this blog that our prisons are in a financial crisis. But as Kristof indirectly recognizes, sometimes the economic angle lets me temporarily forget the human angle. Rights that we can often take for granted in this country, including physical safety, are daily struggles frequently lost in our prisons. The real human costs of our failing correctional institutions are sickeningly deplorable, and prison reform will always be about more than money.

LAO assesses Governor’s Population Reduction Plan


The Legislative Analyst’s Office (LAO) has just released its report assessing the Governor’s population reduction plan. The full text of the report can be found here. Here’s the gist of the report.

As a reminder, this refers to the Governor’s initiative, which later became SBX3 18, under which the CA inmate population would be reduced by approximately 18,500 inmates in 2009-2010, and an additional 25,000 in 2010-2011. The legislative analyst reminds us, however, that “the actual reduction in the inmate population from the above policy changes is now estimated to be significantly less than initially planned—about 1,600 inmates in 2009‐10 and 11,800 inmates in 2010‐11. This is primarily due to delays and changes in the implementation of the new policies.” The report also mentions that the state’s plan for the Plata/Coleman panel included two additional measures which were not included in the governor’s plan: adjusting the dollar threshold for grand theft and placing some elderly and infirm inmates under GPS monitoring as an incarceration alternative.

The report recommends that the legislature consider four issues when assessing proposals: budget savings, actual reduction in population, public safety, and imposition on local jails and counties. Based on these criteria, LAO finds that the governor’s plan achieves some savings, but is overstated, partly because of the delays in state employee layoffs.

As to the population reduction, LAO estimates it at 24,000, which is considerably less than the Plata/Coleman requirements, but which “would put the state closer to meeting that poten‐ tial target. Moreover, it could reduce the need for the prison construction projects authorized in Chapter 7, Statutes of 2007 (AB 900, Solorio) to help alleviate the state’s prison overcrowding problem.”

LAO sees no compromise in public safety stemming from the proposals; short-term offenders would still be incarcerated, albeit in cheaper facilities, and prisons can accommodate the more dangerous offenders. It expresses, however, concern about depleting local resources by overcrowding jails. Also, in points out some possible unintended consequences: the proposal could be misconstrued to suggest that offenders with prior records must be convicted for a felony if committing one of the offenses in the proposal.

LAO recommends adopting the proposal, albeit with several modifications: Allowing counties to rely on alternatives to incarceration; revise the language; and consider adding reliance on GPS for elderly and infirm prisoners.

Sue Dealers For Selling You Drugs?!

This is more civil justice, but so startling and intriguing I had to say something. According to the The Gadsen Times of Alabama, a state representative there has just introduced a bill that would provide a cause of action “for someone who has lost a loved one due to a drug overdose” against the dealer when “the person who sold the drug has been convicted of distribution, manufacturing an illegal drug, or other similar charge.” The proponents, parents who lost a child to an opiate drug overdose, cite deterrence as their policy motivation.

While I’m sorry for this family’s loss, this argument widely misses its target, even leading aside overarching concerns balancing free will and personal responsibility versus paternalism. As if criminal penalties, the loss of the right to liberty itself, would not deter someone who would be deterred by monetary penalties. Further, under civil asset forfeiture laws, someone already convicted of selling or manufacturing drugs is already potentially liable for basically everything they own. To return to personal responsibility, is our next step start suing alcohol producers for alcohol poisoning or drunk driving fatalities?

GPS Monitoring: Now Expanded to Include Gang Members

Yesterday’s edition of the Chron reported that the state plans to monitor 1,000 recently paroled gang members using GPS devices. The Chron website does not include this lengthy and interesting article, but the printed edition reports that, rather than complementing early releases, this is merely a parole monitoring aid.

One of the challenges of using GPS is the fact that the information the monitors provide, in itself, is worthless without interpretation. Other issues have been the lack of studies regarding the impact of GPS monitoring on recidivism rates. The ACLU supports monitoring as an alternative to incarceration, but not as an additional requirement. The article also mentions the inability to detect serious sex offenders, such as Phillip Garrido, through GPS monitoring.
Reliance on GPS monitoring has been an important part of the Governor’s proposition to cut costs, and have been used on sex offenders, as well as to enforce restraining orders in domestic violence cases.