In 1969, the world was shocked by a series of murders committed by Charles Manson and his “family” of followers. Although the defendants were sentenced to death in 1971, their sentences were commuted to life with parole in 1972; since 1978, they have been regularly attending parole hearings. Today all of the living defendants remain behind bars.
Relying on nearly fifty years of parole hearing transcripts, as well as interviews and archival materials, Hadar Aviram invites readers into the opaque world of the California parole process—a realm of almost unfettered administrative discretion, prison programming inadequacies, high-pitched emotions, and political pressures. Yesterday’s Monsters offers a fresh longitudinal perspective on extreme punishment.
Book reading, signing, parole reform, food, drink!
In a few days, Jerry Brown will end his tenure as Governor of California and cede the gubernatorial seat to Gavin Newsom. Newspapers are already summarizing his career, including a record number of pardons and commutations. Indeed, the Brown administration stands out from previous gubernatorial administrations in the extent to which it intervened in release processes, including, as I write in my forthcoming book Yesterday’s Monsters, considerably more parole grants than Brown’s predecessors.
So one has to wonder: Since Brown is a staunch opponent of the death penalty, why won’t he get rid of it de facto by commuting all death row sentences?
Mass commutations of death row are not new. In 1972, as a consequence of the California Supreme Court’s decision in People v. Anderson, the sentences of all 174 inmates on death row were commuted to life with parole. Among those whose sentences were commuted, as I explain here (and in Yesterday’s Monsters) were Charles Manson and his followers, as well as Sirhan Sirhan. The decision infuriated many in California and led to a backlash legislative workaround (Proposition 17) whose constitutionality was hotly debated in California courts for years.
The difference between then and now was that, in 1972, California law did not include a life without parole option. Moreover, the actual sentences served for homicide offenses were much shorter than they are now. The dramatic gap between the death penalty and a parole hearing after seven years–it was not outlandish at all for a person convicted of murder to be released after ten or fifteen years–infuriated the public.
True, a gubernatorial move here would differ from the post-Anderson situation in that there hasn’t been a court decision forcing the governor into action. But the gap in people’s fates (and the implications to public safety, to the extent that this is even a consideration for aging, sick inmates) would be much smaller than in 1972.
Brown and Kamala Harris, in her prior office as Attorney General, had a chance to bring death penalty abolition a step closer after Jones v. Chappell and chose not to do so, even though all it would require would be doing nothing. But now, doing something is not only possible (free of technicalities) but imperative. Before leaving office, Brown can join a critical mass of abolitionist states by getting rid of death row de facto. He would be handing the Newsom administration a correctional apparatus that is $150 million a year cheaper to administer.
There are still a few days left to do the right thing.
The proposal was well thought and empirically backed: According to the principles of harm reduction, the best perspective we have on saving lives that could be claimed by drugs and alcohol, a safe injection site in San Francisco would be a good idea (so would legalizing opioids, but we live in this world, not in a better one.)
Then, Governor Brown, in an incomprehensible statement, vetoed a California bill that would enable San Francisco to pursue a four-year pilot with a safe injection site.
Before we move on to thinking how San Francisco could get around this veto–and I believe it could–let’s pause for a moment. Why would Brown veto the proposal? Surely not to curry favor with conservative and moderate California voters–he is not running for reelection. Surely not to curry favor with the Trump administration (we’ve done our very best, and justifiably so, in the opposite direction.) Surely not to support thoughtful, evidence-based reform, which this proposal surely is. What is going on? Honestly, I don’t know, and feel free to chime in with comments.
The key to a possible safe injection site lies in the fragmentation of policing and prosecution. As I explained elsewhere, policing in America is conducted on the municipal level. Prosecution is conducted on the county level. San Francisco is one of those rare locations where city and county overlap.
To the extent that the San Francisco District Attorney’s office and SFPD are on the same page, there is nothing to prevent San Francisco from establishing enforcement priorities that deemphasize opioid enforcement within a particular area of the city (a-la Hamsterdam from The Wire.)
What Would SF Hamsterdam Entail?
That depends. Hamsterdam could feature merely a lesser-enforcement area, where law enforcement commit to getting involved only if there’s violence (agreements like that have been worked out in other contexts, such as Operation Ceasefire.) We would need to carefully thing about protecting the status of employees and volunteers from the helping professions who might offer treatment, 12-step programs, and clean needles at the site, and how to best protect them, and if there’s a way to protect them as well, Hamsterdam could feature treatment options as well.
But Won’t the Feds Sweep In and Arrest Everyone?
That also depends–this time on how high we are on Jeff Sessions’ shit list. Arguably, fairly high–this vile administration has not shied away from attempting to penalize us for our sanctuary city policy–but having a concentrated DEA presence at a municipality might require more energy than the DOJ is willing to spend on a few folks addicted to opioids, with the possible lack of enthusiasm on the part of federal district judges (I’m not sure this is true–Mona Lynch’s work has shown judges with a great appetite for draconian sentencing of drug offenders with microscopic quantities, but her book does not cover Northern California.)
What’s important to keep in mind, though, is that our status vis-á-vis the feds is the same whether or not there’s a state law kosherizing the safe injection site. Possession of narcotics is a federal offense whether or not sanctioned by the state, and we obviously do not have the kind of understanding we used to have with the Obama administration about proper federal priorities in this regard. Even had Brown signed the bill into law, Sessions and the DEA would be able to sweep in, arrest people, and charge them federally with drug laws. Nor do I think the lack of a state law is likely to make them hungrier for these kinds of prosecutions–I think they abhor our state and our city with comparable ferocity (this, by the way, makes Brown’s veto even more puzzling.)
Can Jerry Punish Us for Going Through With It?
Theoretically, yes. There is no realistic scenario in which state law enforcement descends upon San Francisco and arrest safe injection patients; for one thing, they would have to be prosecuted in San Francisco absent a change of venue motion. There is, however, the possibility of monetary sanctions or withholding of state funds. But it’s hard to see Brown committed to punish San Francisco for going through with this. He has bigger battles to wage in the month he has left in office.
Should We Try Again After November?
DEFINITELY. I think Gavin Newsom will be open to this idea. He has been consistently pro-legalization in the marijuana context and might sign this into law. He is also advocating for an openly anti-Trump position at the gubernatorial mansion, and sticking a thumb in the eye of Trump by approving this plan statewide might play into his symbolic resistance to the feds.
Bottom line: Activists, do not despair. There is plenty we can do to win both this battle and the overall war against the war on drugs.
There are basically two parts to the reform. One of them, which I covered in my previous commentary, is the move away from determinate sentencing and toward parole hearings–and as I said in my previous post, this is only a good thing insofar as we believe that parole commissioners will make better decisions than prosecutors. Granted, any decision that takes into account the particular individual’s situation is better than a rubber stamp based on severity of the offense, one’s rap sheet, and these two factors alone, but I have come to see the way parole boards exercise unfettered discretion regarding lifers as something to worry about, and would like to see some supervision and standards (not to mention more training) for commissioners.
The other part is the abolition of direct filing and placing the decision whether to try a juvenile as an adult in the hands of the court, not the prosecutor. As Ball points out, the numbers are pretty small, but for the individual, how discretion is applied could matter a great deal.
I remain overall optimistic, even enthusiastic, about this–but only to the extent that we’re not merely transferring the exercise of unfettered discretion from one actor to another without thinking about effective guidelines and supervision for its application.
Forty years after signing strict, fixed-term sentencing standards into law – and more than a decade after panning them as an “abysmal failure” – Gov. Jerry Brown on Wednesday proposed a ballot measure to make it easier for nonviolent offenders to gain parole. In a rebuke of criminal enhancements that can dramatically extend prison terms, the measure would let felons convicted of nonviolent offenses seek parole after serving only their base sentences. It would also restructure what Brown called a “crazy quilt” of credits for good behavior, benefiting prisoners who demonstrate evidence of rehabilitation.
The initiative language would also undo provisions of Proposition 21, the measure approved by voters in 2000 that allows prosecutors rather than judges to decide when teenagers are tried as adults. Brown will need valid signatures from 585,407 registered voters to qualify the measure for the November ballot.
Brown, announcing the measure in a conference call with reporters, said the “determinate sentencing” law he signed when he was governor before “had unintended consequences.”
“Unintended consequences” is right. The original pioneering California move in the late 1970s to determinate sentencing was a bipartisan collaboration between conservatives, who were concerned that light sentences amounted to coddling offenders, and progressives, who were concerned about the arbitrariness of parole powers and about its disparate impact on poor people and minorities. The last forty years in California, if seven years’ worth of posts on this blog haven’t made it clear, have been a very, very bad idea.
“And one of the key unintended consequences was the removal of incentives for inmates to improve themselves,” he said, “because they had a certain date and there was nothing in their control that would give them a reward for turning their lives around.” Though his measure would not change sentencing standards, Brown said “it does recognize the virtue of having a certain measure of indeterminacy in the prison system.” “The driver of individual incentive, recognizing that there are credits to be earned and there’s parole to be attained, is quite a driver,” he said.
The announcement of the initiative was the first specific sign of how Brown plans to involve himself in the November ballot measure campaigns. The fourth-term governor holds a campaign war chest of about $24 million.
Asked if he would finance the initiative, Brown said he will do “whatever it takes to get this done.”
Brown will enjoy a relatively favorable electorate, with high turnout for a presidential election typically benefiting Democratic politicians and their causes.
California voters in recent years have demonstrated a willingness to move away from tough-on-crime policies. In 2014, voters approved Proposition 47, which reduced penalties for some drug and property crimes. Two years earlier, voters passed Proposition 36, revising “three strikes” to require that the third strike be a violent or serious felony.
The initiative is likely to face opposition from some conservatives. State Sen. Jim Nielsen, R-Gerber, said in a prepared statement that “weakening the criminal justice system will only increase the victimization of California citizens.”
Brown said the ballot measure’s proposal followed “intense conversation” with law enforcement groups, representatives of which joined him on his conference call. Brown said he considered including violent offenders in the initiative but that it “met with, I would say, near-universal disinterest” from law enforcement.
“It became a nonstarter,” he said.
Brown, who helped create the state’s “determinate sentencing” system when he was governor before, has said for years that it should be revisited. In a speech to judges in Sacramento in November, Brown said he didn’t foresee the dramatic impact determinate sentencing would have on the growth of California’s prison population. The policy scaled back judicial discretion in prison sentences.
I haven’t seen the full text yet [UPDATE: I just read it–here it is–and am posting a follow-up], and will of course comment in depth when I do, but I think some preliminary remarks are in order:
In many ways, the last forty years made us smarter than we were in 1977. We know that Martinson’s somber prediction that “nothing works” in rehabilitation was not true, and that doing rehabilitation properly can reduce recidivism. And we also know that determinate sentencing, and that treating kids as adults, achieves little in the way of equality and streamlining and plenty in the way of packing prisons.
Another way in which we’re smarter now is that we understand that discretion doesn’t go away–it merely moves around. What we did in 1977 was shift it from the hands of judges and parole boars to the hands of prosecutors and legislatures–to the point that some commentators, like John Pfaff and the always fabulous Grits for Breakfast, attribute mass incarceration primarily to prosecutorial charging decisions gone amok.
But let’s not throw the baby with the bathwater. One of the reasons California moved away from determinate sentencing in the first place was concern about unfettered discretion by judges and parole boards. Even now, when parole hearings are relegated to lifers, the board enjoys a lot of discretion and very little transparency. My research for my book in progress about the parole hearings of the Manson family members, Yesterday’s Monsters, shows the very limited responsiveness of the parole board to the California Supreme Court’s supervision, and if we want to get the good stuff (incentives to rehabilitate, shorter sentences) without the bad stuff (discrimination and arbitrariness) we need to design parole in a smarter way. With great power, Spiderman’s uncle reminds us, comes great responsibility, and there are no guarantees that parole boards are much better than prosecutors in the discretion department.
So, what happens to the California Penal Code if this passes? Do we rewrite felony sentencing to eliminate the “triad” and affix broad ranges to allow judges discretion? This is going to be a massive redrafting job, but quite an interesting one, and how successful it is depends on how controlled it might be by partisan politics.
Finally, the article talks about the possible broad support by California voters–the same ones that voted, by large majority, to make lots of punitive changes that we regret to this day. And it may well be that, beyond cost, one of the major reasons that the Republican lawmaker’s it’s-a-scary-world retort falls flat is that crime rates are low. Very low compared to what our predecessors in 1977 were facing. It may be the case that it’s time to put aside the hubris and conclude that crime rates, like the weather, happen for a variety of causes, of which sentencing reform is only one, and that our decisionmaking process should not sway to and fro every time the pendulum swings.
The most important of these for CCC readers is the passage of Prop 47 with 58.5% voter support. The proposition will downgrade several nonviolent, nonserious offenses to misdemeanors, and will allow people currently serving felony time for these misdemeanors to petition for resentencing.
A few things that bear mentioning: First, many of the people whose offenses are affected by Prop 47 are already doing time in jails, as a function of Realignment, and some of them might even be doing a split sentence, which means they’re not in confinement at all. As such, they are also already under the authority of local probation offices and not of the statewide parole apparatus. It would be interesting to know, therefore, how much resentencing would really need to happen. My suspicion is that the effects of Prop 47 will be mostly felt in the counties that did Realignment wrong–building more jails and not using split sentencing–rather than in counties that embraced the reform. The late awakening of the Los Angeles D.A. preceded this proposition only by a few months.
Second: if that’s the case, and if Realignment already did most of this, what practical impact might this have? Well, for starters, think of all the offenders doing time who could not vote in 2014 because they were classified as felons–even though they were physically doing time in jail. Reclassified now as misdemeanants, these folks will be allowed to vote in 2016. This is excellent news that affect many thousands of Californians. Also, there are several Third Strikers whose third offense would now qualify as a misdemeanor, not a felony, and would therefore not trigger the law at all. Those folks are applying for resentencing anyway, as a result of Prop 36 and thanks to the efforts of the Stanford Three Strikes clinic, but I think their chances of prevailing may have improved.
And third: The passage of Prop 47 doesn’t mean that people have become more humane or care more about offenders. The proposition was a classic humonetarian move, appealing to people’s financial prudence, and it was supported by folks of all political stripes, including Newt Gingrich. I only regret that the proofs for Cheap on Crime are already set, otherwise I could add a few hefty paragraphs about this campaign. It’s right out of the Cheap on Crime playbook.
Other than that: Prop 46 did not pass; it was a mixed bag of arguably good things and litigation-hungry things, and I’m not quite sure whether to celebrate or mourn its defeat.
And finally:
Dear Governor Brown, I congratulate you for earning a second term. As California limits governors to two terms, this is your opportunity to take the prison crisis seriously without worrying about reelection statistics. This is an opportunity to reform felon voting laws, to abolish the death penalty (which I know you think is ridiculous and expensive) and to make good things happen for formerly incarcerated people in their communities. This is an opportunity to outlaw Pay to Stay and to abolish long-term solitary confinement in California. Please, take this opportunity and let’s make history. Don’t let a serious financial crisis go to waste.
Today’s Daily Journal story about our petition. Please click to enlarge.
On July 16, US District Court Judge Cormac Carney issued a decision in Jones v. Chappell (2014), vacating Ernest Dewayne Jones’ death sentence. But this was far from a decision in a particular case: Judge Carney declared the death penalty in California unconstitutional, citing the lengthy delays in its administration.
As the decision notes, since the reinstatement of the death penalty in California in 1978, only 13 people have been executed. Meanwhile, 95 inmates have died of natural causes or suicide, 39 were granted relief from their sentence, and the remaining 748 are languishing on Death Row, some of them for decades. More than 40% of the condemned population has been on death row for more than 19 years, and nearly all of them are still engaged in expensive, lengthy litigation—direct and collateral review proceedings—funded by the state. The arbitrariness in the administration of executions, according to Judge Carney, echoes the historical concerns in Furman v. Georgia (1972), and undermines any deterrence arguments, to the extent that these are still credible.
But while Judge Carney believes that these delays have made the promise of capital punishment an empty one to California citizens, to jurors, to victims and their loved ones, he does not believe that these defects can be remedied simply by streamlining the death penalty and executing inmates faster. He convincingly argues that much of the delay in litigation is the state’s fault, but points out that all efforts to reform post-conviction remedies have failed, and that cutting them would increase the grave risk of mistakes and wrongful executions. While the order pertains only to Mr. Jones, generalizing Judge Carney’s conclusions to all those affected by a system that “serves no penological service” is unavoidable.
The unavoidable question is, what next? The ball is currently in Governor Brown and Attorney General Harris’ court. They must decide whether the state will appeal the decision to the Ninth Circuit. A day after Judge Carney’s decision, I started a petition on Change.Org, asking Attorney General Harris not to appeal the decision, which, as I write these words, bears 2,078 signatures. The Governor and the Attorney General are not known to be fans of capital punishment, and I believe that a refusal on their part to stand behind the death penalty can communicate an important symbolic message that has the potential to place us on the much-awaited path to abolition. It would signal that our state government is fiscally responsible, and unwilling to continue wasting $100 million annually (according to the Legislative Analyst’s Office calculations) on the incarceration of a few people in a dilapidated facility, paying for expensive conditions and litigation, with or without an execution at the end. It would signal an acknowledgment that consistency and fairness are important tenets of our penal policy. It would signal that the botched execution of Joseph Rudolph Wood in Arizona—and the botched executions of many others, estimated as 3% of executions every year—indicate that there is no way to divorce the infliction of death from the infliction of suffering, even behind a sanitized, medicalized window-dressing. It would signal that, like Justice Blackmun in 1980s, we have tired from “tinkering with the machinery of death” and have finally acknowledged its profound dysfunction. And it would signal that these new considerations join the old abolitionist arguments, based on ethics, racial equality, and innocence concerns—in ushering in an era of abolition.
But beyond the symbolic message, there are the practical consequences associated with the State’s decision whether to appeal. Should the Attorney General appeal the decision, the Ninth Circuit might affirm it, in which case it will apply to the entire State of California, rendering the death penalty effectively abolished. However, the current Supreme Court makeup does not seem promising to the abolitionist cause, and an appeal of the Ninth Circuit decision will, in all likelihood, reverse Judge Carney’s decision. A possible appeal of such a decision to the Supreme Court will, likely, reverse the decision. The best scenario, therefore, for abolition would be a final, affirming decision on the Circuit level, without a subsequent appeal—but that scenario depends on a favorable Ninth Circuit panel and the Attorney General’s restraint in appealing that decision.
If, on the other hand, the Attorney General decides not to appeal the decision, we will find ourselves in an interesting situation. As many California residents recall, the Governor and Attorney General did not appeal Judge Vaughn Walker’s District Court decision, according to which Proposition 8, which amended the California constitution to forbid same-sex marriage, was unconstitutional. Supporters of the initiative, who appealed the decision in their stead, were found by the Supreme Court to lack standing, and Judge Walker was left as the final decision on Proposition 8’s constitutionality. Lest our short memory confound us, California’s death penalty is also the product of a voter initiative: Proposition 7, the Death Penalty Act, of 1978. Moreover, some of the original supporters of Proposition 7 have now joined the abolitionist cause, so even if they had standing, they would probably lack the motivation to fight the decision.
There is, however, an important legal difference: Judge Walker’s order was an injuctive relief against the state. Judge Carney’s decision merely vacates Mr. Jones’ death sentence. In the absence of an appeal to the Ninth Circuit, further legal and political steps would be required to move from a particular case to a de-facto abolition of the death penalty in California.
The easiest situation would be that of inmates under sentence of death who have a pending federal habeas claim in the Central District, who could argue their case should be heard by Judge Carney, as a “related case”. The decision would be up to Judge Carney’s discretion, though it seems clear from the tenor of his decision that he meant for it to have an impact beyond Jones’ case alone. Also, the decision raises the question whether other Central District judges can ignore it in similar cases if Judge Carney does not, for some reason, find that they are “related”.
Inmates outside the jurisdiction of the Central District would face more of an uphill battle. Judge Carney’s decision, while of persuasive value, is not binding in other district, nor could they benefit from an “issue preclusion” claim, as they were not original parties to the action. This is where the good will of the Attorney General’s office and the other District Courts would come into play; surely we wouldn’t want to see the death penalty effectively ended in one California district and have other inmates on death row. Another possible scenario would be that, in order to correct the grave injustice of having some inmates benefit from a general decision while others don’t, the Governor could commute the sentences of all death row inmates to life without parole, and with the support of the California Attorney General, we could enter another period of moratorium.
The possible legal outcomes of Jones, therefore, run the gamut from one inmate’s victory to a de-facto moratorium in California. The eventual impact of the decision depends on the sound discretion and good will of many actors in the legal and political arena in the state. Last, but not least, of these actors is the public. In 1978, 71% of California voters supported the death penalty amendments. After many years of delays, mistakes, discrimination, litigation over chemicals, and expenses, support for the death penalty plummeted to 53% in 2012. Whether the courts and administration will bravely turn the tables before the public tide is completely reversed remains to be seen, but a comparative perspective shows that the road toward abolition—toward progress—is a one-way street. Let’s get this done.
In the last few days, we’ve made a huge effort to circulate a petition to Governor Brown and Attorney General Harris, asking them not to appeal District Court Judge Carney’s decision that the death penalty in California is unconstitutional. We’ve just hit 500 signatures, and I’ve sent the petition to the Governor and the AG. Thank you for your support, signing, and sharing!
What happens next?
Our elected officials decide whether they want to pursue an appeal to the Ninth Circuit.
What if California appeals the decision?
Then, we’ll have to take our chances with the Ninth Circuit. The hope is that we’ll draw a favorable panel, who will affirm Judge Carney’s decision. It’s possible, albeit not very probable. Regardless of the result, a further appeal to the Supreme Court is unlikely to yield a good result for abolitionists.
The best of all worlds would be a decision from the Ninth Circuit affirming the death penalty’s unconstitutionality, and THEN a commitment from the Attorney General that she would not appeal the decision. If that is the case, the decision will apply to all of CA, and would basically mean that the death penalty has been abolished. But for that to happen we have to be lucky twice: the Ninth Circuit has to go our way and the AG has to decide not to appeal that decision. That’s quite a gamble.
What if our elected officials hear our plea and do not appeal the decision?
In that case, we’re left with a great, favorable decision, but by a District Court, which means it doesn’t create immediate effect in all of California. But we also gain an important political advantage: we have a great decision, that became final, AND the political gravitas of the AG’s support for the result. That, then, allows us to consider political pressure on the Governor’s office to commute current capital sentences, which do not conform to constitutional standards, as well as a valuable weapon against various proposals to “fix” the death penalty.
What are the odds that there will be an appeal?
Hard to tell. As you may recall, last time the State did not defend its laws in federal court was in the context of Prop 8, and the initiators of the proposition were ruled by the Supreme Court not to have standing. What this means is that if the AG does not want to defend CA’s death penalty, no one else can do so in her stead.
There is, however, a difference: Prop 8 was a voter initiative, and so the AG could more easily disengage from it by not appealing. Even though the AG is, personally, an opponent of the death penalty, she may think that solid administrative principles require seeing this thing to its end. And maybe she, too, is hoping that if she appeals the decision, the Ninth Circuit will rise to the occasion and decide the case for abolition.
In other words, your guess is as good as mine.
What can we do now?
Keep talking about this with friends of all political persuasions. Talk about the botched execution in Arizona; talk about the immense toll that incarcerating these folks and tending to their litigation effort is taking on the CA budget (to the tune of $150 million annually.) Talk about how we can see abolition in our lifetime, if we run with this ruling and make the most of this opportunity to drag our penal system to the 21st century.
The Governor’s proposed budget for 2014-2015 is out and its full text is here. Public safety is addressed on pages 65-88 and the correctional budget is addressed on pages 89-93.
The budget proposes total funding of $9.8 billion ($9.5 billion General Fund and $320 million other funds), which is 9% of the state budget – only slightly less than our expenditures on higher education.
The report reviews the history of realignment and the Plata litigation, mentioning the state prison system’s commitment to reentry as per the Blueprint titled The Future of California Corrections (here is the Blueprint, for your convenience.) The report emphasizes CDCR’s commitment to expanding the rehabilitation menu to reach 70% of all inmates.
The report goes, at length, into the changes brought about with realignment, including the following useful classification of the prison population:
Still, the state prison population is higher than projected in 2013 – about 135,000 inmates vs. the 129,000 projected. The parolee population is expected to increase in 2013-2014 and decrease in 2014-2015, as a result of realignment and the transference of post-sentence supervisees to the counties. There are also more juvenile wards than projected, as a result of an increase in first admissions and in parole violations.
The budget report explicitly refers to the legal battle waged around the 137.5% capacity cap mandated by the federal court, and assumes that the deadline for meeting the cap will be extended by two years. Remember the $315 million that Governor Brown appropriated at the very last minute of the last legislative session? If there is an extension, the budget will allocate the first $75 million of the money to recidivism reduction (state reentry, substance abuse treatment, services for the mentally ill, and a special reentry facility) and the rest to the general fund. However, should the population cap deadline not be delayed, the money will be invested in private prisons “to avoid the early release of inmates.” You can see where this is going; the money is essentially there to more-or-less extort the Three Judge Panel and circumvent its perceived intention. The message is – play nice and give us two more years, in which case we’ll invest in rehabilitation, or you’ll get private prisons galore.
More interesting stuff: A projected expansion of medical and elderly parole. The age cutoff for the latter is 60, which means 5.4 percent of male inmates and 4.4 percent of female inmates (as of June 30.) If they pushed the age cutoff back to 55, which makes criminological and gerontological sense (people age faster in prison, and people leave crime behind at an earlier age), you’d be releasing 11.2 percent of men and 10.4 percent of women. So – a step in the right direction, but plenty of room for improvement.
The report also mentions two other savings mechanisms: nonviolent third-striker releases per Prop 36 and juvenile parole per SB260. While the report doesn’t explicitly take credit for them, it is a bit surprising to read such positive reports of these from an entity that fought the spirit of these initiatives for years.
A considerable amount of the money will be spent on improving health scores in state prisons so they can be wrangled away from the Receiver. Much of the money is allocated to fund litigation, to fight the Receiver and class-action suits in court; the rest of it on improvements to pharmacies, facilities, and staff training. The report mentions the impact of Obamacare on health care for county inmates as opposed to state inmates.
Lastly, there are some notable comments on realignment in the counties. There’s a proposal to make split sentences the default, but it still leaves a considerable amount of discretion to county judges, and would still create big disparities between county. Also, the report notes that keeping long-term inmates in county jails is not a great idea, but does not volunteer to take them back into state institutions en masse (as Manuel Perez has just suggested) because of the need to comply with the Plata/Coleman caps. The state is willing to take in offenders who are serving 10 years or more – that’s about 300 years annually – but that, of course, raises the question why people receive 10 years in prison for non-non-non offenses in the first place.
Our first post in this series reviewed the bills signed into law by Gov. Brown in 2013. This edition examines some of the bills vetoed by the Governor, complete with veto memos and some thoughts about the future of the ideas behind the bills.
We all heard, of course, with great disappointment about the vetoing of SB 649, which would have reclassified simple drug possession offenses as “wobblers”, thus allowing their prosecution as either felonies or misdemeanors. The passage of the bill would have put California on par with several other states. Not all, however, is lost. Gov. Brown’s veto message indicated that, while he wasn’t comfortable with this change, he might be open to other drug law reform (a good example is his signing of AB 721, which effectively decriminalizes drug transportation for personal use.)
There were other disappointments, and they were for the most part along the lines of failed attempts to create broad health-care and rehabilitation reforms or to curb police power. Examples of the former are AB 994, which proposed creating a postplea misdemeanor diversion program in each county; AB 1263, addressing Medi-Cal for low-income people, which would have had important implications for formerly incarcerated folks and their families, as it would establish CommuniCal, which would dispense information to folks with low proficiency in English; and AB 999, which would require CDCR to develop a 5-year plan to extend the availability of condoms in all CA prisons. An example of the latter is the veto on SB 467, which would prohibit a governmental entity from obtaining information from an electronic communication service provider without a warrant, and require that the subscriber/customer receive a copy of the warrant.
Some of these vetoes are deeply disappointing, but it is important to observe that they addressed extensive medical reforms, which the Governor may believe he is solving with his proposition to spend an enormous sum of money on privatizing prisons and thus reducing overcrowding.
