Is the Jail Early Release Statute Retroactive?

A few days ago we reported on the early releases from California local jails. It seems that the trickle of releases triggered a question of retroactivity; to what extent are early releases available for people who had served significant parts of their sentence before the statute came into effect?

Attorney General Jerry Brown says no. As the Chron reports, different counties have applied different standards for deciding on early releases:

Some counties, including Contra Costa, adopted that interpretation and started releasing inmates who had served at least half their sentence by Jan. 25.

Others, including San Francisco, applied the new credits only to the time an inmate served after Jan. 25. Santa Clara County extended the new credits only to those who were actually sentenced after Jan. 25.

Brown, the state’s top law enforcement officer and a prospective candidate for governor, said Tuesday he had concluded the new credits are not retroactive and apply only to time an inmate spends in custody after Jan. 25.

Does this make sense? That’s a good question. Usually, legal provisions apply only prospectively. In this particular case, however, the new statute’s purpose could be completely thwarted by a prospective application. This is essentially a humonetarian law, rather than one aimed at actually changing penal policy in California. This is a good reminder that the future of our correctional apparatus lies not only in making the right laws, but also in applying them with their goal in mind.

The Granddaddy of Three Strikes Laws: Baumes Law


The commonly told story of American penology usually starts in the late sixties, highlighting a newly increased “tough-on-crime” ideology, and leading not only to determinate sentencing in the 1970s and 1980s, but also to the extremely punitive measures of the 1990s. Among those, we often mention the Three Strikes Law as the epitome of punitive legislation. While some, like Roger Matthews, argue that this increased punitiveness is largely a myth propagated by progressive realist accounts, it’s difficult to argue against the realities of increased imprisonment rates.

Elsewhere, we suggested that the Three Strikes Law’s impact on incarceration is a bit more subtle and complex than might seem, and it probably operates more as plea bargaining leverage than as a direct cause of overcrowding. Much of its evil comes from the absurd examples of injustice it propagates, as well as from its contribution to the aged and infirm prison population. At the time of its enactment, it was one of four alternative proposals, and the most draconian of the four.
Not many people know, however, that the concept of Three Strikes is not an invention of the 1990s. A couple of weeks ago, at the San Francisco Film Noir festival, I had a chance to see the dark and entertaining 1953 film Pickup on South Street, set in New York City. One bit of the dialogue caught my ear: the pickpocket, played by Richard Widmark, expresses concern about being caught shoplifting for the fourth time because he already has “three strikes” and will be sent away for life.
This issue plagued me for a couple of weeks, and so I spent a bit of my day researching. The law the Widmark character refers to is Baumes Law, enacted in New York City in 1926. Like the California 1994 version, the New York 1926 version was a habitual offender act imposing a life sentence for repeated felonies. And like our Three Strikes Law, the Baumes Law brought with it a set of injustices and absurdities, including the story of repeat shoplifter Ruth St. Clair (interestingly, Pickup on South Street also deals with shoplifting “strikes”). While the law was enacted to appease public punitivism, interesting developments followed. As Khalil Muhammad points out in this cool piece, “[b]y 1932, shortly after the Baumes Law passed, a ground swell of public and judicial outrage mounted against the law, resulting in it being ‘liberalized’ from a mandatory life to a minimum-15-years-to-life provision.”
What does all this mean? First, it appears that there is nothing new under the sun. Some novel legislative ideas have already been pursued before, and we can learn from their implications and discontents. Second, perhaps punitivism, like legislative ideas, is cyclical. The public’s taste for punitivism may decrease in time. And third, that sound and logical public opinion can turn back the wheels of the punitive machine.
Have an excellent long weekend.

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.

NYT on Compassionate Relief puts CA in perspective

The New York Times has a story today on compassionate release for inmates who are physically or cognitively unable to present a threat to society. This paragraph stands out:

“In California, where federal judges ordered the state to cut the prison population by 40,000, three people were granted compassionate release last year. In Alabama, where prisons are at double their capacity, four sick inmates were let out on compassionate release in the 2009 fiscal year; 35 other prisoners in Alabama died while their applications were being reviewed. Since New York adopted medical parole in 1992, at the height of the AIDS crisis, 364 people have been released.”

The situation may be egregious in New York, and proportionately worst in Alabama, but by sheer quantity California’s prison crisis is most dire. What values are we pursuing, what metrics are we optimizing, by paying for incapacitated inmates to die in prison rather than at home?

LAO: Prisons v. Universities Expenditure Measure Unwise, Unflexible

(graph courtesy http://www.lao.ca.gov)

More interesting items today on the Legislative Analyst’s office website: This time, LAO examines the Governor’s proposed constitutional amendment to limit correctional expenditure to 7 percent of General Fund support and to set a minimum of 10 percent for California public universities.
The report is far from enthusiastic about the proposal. While LAO supports efficiency and savings (see yesterday’s post on their recommendation to add GPS monitoring as a prison alternative), the report recommends against adopting the Governor’s proposal. As specified in the report, the measure ignores the impact of student fees on university revenue, highlights two budget items rather than examining the whole picture (thus constraining General Fund usage for a large percentage of the budget), and leaves open the question of using the increased university funding for public benefit. As to corrections, the LAO report reminds us of the principle that Frank Zimring refers to as the “correctional free lunch”: correctional expenditures are not managed solely on the state level, but actually dictated on the county level, where sentencing takes place. Moreover, as LAO points out, a constitutional amendment is unnecessary: a simple budgetary decision would suffice.
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props to Eric Chase for sending this my way.

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?

Valdivia v. Schwarzenegger: Today at the 9th Circuit

The 9th Circuit heard today oral arguments in Valdivia v. Schwarzenegger. I went to hear Geoffrey Holtz and Ernest Galvan argue for the petitioners; they presented arguments in two matters relating to parole revocation hearings.
The first issue, which is less interesting for our purposes, has to do with the admissibility of hearsay evidence in parole revocation hearings, in light of new caselaw regarding confrontation rights (I’ll probably inflict that on my Criminal Procedure students this semester. Have a good semester, folks!). The second issue, on which I’ll expand, has to do with Judge Karlton’s decision to set aside parts of the state statute enacted as part of Prop 9 due to the content a federal consent decree.
Background: the federal consent decree in Valdivia was finally reached after a decade of litigation, aimed at clearing up the procedures for parole revocation and crafting them so they would comply with minimal constitutional due process requirements. The decree mandated appointing state counsel for all parolees in danger of revocation, and required proceedings for proper notification and discovery to the defense; created procedures to speed up hearings so people would not be held in unnecessarily before their status was determined; and ordered to simplify forms and documents so that the parolees could understand them. A special master was appointed to work with plaintiffs and defendants to ensure compliance with the decree, and gradual progress was made.
Prop 9 (which the State Attorney repeatedly referred to during the hearing as Marsy’s Law) threw this situation into chaos. While some of its provisions did apply, as advertised, to victims’ rights, other provisions made changes to parole revocation procedures, most importantly by denying counsel to a large portion of parolees.
The elephant in the room, during the oral arguments, was the actual constitutionality of the new provisions enacted in Prop 9, and whether they really fell beneath the minimal due process owed to parolees; in fact, if I’m not mistaken, it appeared that the state conceded that some of these provisions might raise constitutional issues. Instead, the discussion focused on the legal question of whether Judge Karlton’s decision to set aside the Prop 9 provisions was correct. As the parolees’ representatives argued, this was a classic supremacy clause situation; a federal consent decree trumps state law. The state, according to Mr. Holtz, was under a burden to prove that circumstances have changed to an extent that required modifying the consent decree. All the state did, argued Mr. Holtz, was point to the existence of a new state law; they did not seize the opportunity to actually argue that this new state law has implications that require modifying a federal decree. Under the circumstances, introducing a chaotic element into a recently-modified process, which serves to funnel 10,000 cases a month through the correctional system (yes, you read it correctly) was an irresponsible thing to do, and the state had to provide a viable alternative if it wanted to change the elements of the decree.
Much of the back-and-forth between the judges and the parties had to do with the extent to which Prop 9 turned back the clock to the unconstitutional proceedings prior to the consent decree. The answer to this question seems to be, according to both parties, somewhat complicated. Some Prop 9 provisions are, indeed, a return to the pre-decree times, while others are actually better for parolees than the consent decree guaranteed (such as provisions for a preliminary hearing). The state attorney, Ms. Johnson, argued therefore that a flat-out dismissal of this provisions was problematic. Mr. Holtz pointed out, in reply, that the state should have done a better job at providing an alternative process, which complied with Prop 9, and satisfied the constitutional requirements (there would naturally be some debate about the features of such a process, but at least it would be more than merely informing Judge Karlton of the existence of the new statute and expecting him to bend the federal decree to accommodate this development).
Judge Smith seemed interested in examining the possibility of remanding the case for examination at the District Court. Mr. Holtz pointed out that such a remedy was possible, but unnecessary; the state could return to Judge Karlton at any time with a proposal for a Prop 9-compatible revocation hearing process.
We’ll report on the outcome of this case as it comes out.

Valdivia v. Schwarzenegger: 9th Circuit Hearing This Monday

This Monday, at 11am, in Courtroom 3, the United States Court of Appeals for the 9th Circuit will hear oral arguments in Valdivia v. Schwarzenegger, regarding the applicability of certain provisions approved by voters last November as part of Prop 9.

Fair disclosure: I’m somewhat involved in this case (as are several of my colleagues in CA universities) as a party to an amicus brief on behalf of the plaintiffs. Therefore, what follows is (as always) my own analysis, rather than any neutral introduction to the case.
The story behind Valdivia is this: after lengthy litigation between parolees and the state regarding parolees’ rights in parole revocation hearings, federal courts issued a consent decree, according to which the state consented to reform its procedures so as to grant parolees the right to a fair hearing, requiring probable cause, a speedy hearing within 35 days, the right to representation, and a larger array of intermediate sanctions.
Prop 9, adopted in 2008 under a title of victim rights, included some provisions that violate this consent decree. As you may recall, the proposition limited the cases in which legal counsel would be awarded to the indigent, as well as allowed for participation of more parties and relaxed evidentiary requirements for parole violations. Judge Karlton refused to implement these changes, arguing that they violate the prior consent decree, which was consistent with constitutional requirements. As a result, the victim-rights part was severed from the parole hearing limitations part, and Prop 9 came to life only partially.
The argument on behalf of the plaintiffs is, basically, that upholding Prop 9 in its entirety violates the minimum constitutional requirements for due process, the standards of which were the cornerstone for the consent decree. In addition, upholding Prop 9 will mean a disastrous return to the state’s abysmal parole proceedings, generating more “revolving door” situations and exacerbating our severe overcrowding problem. Since the parole system has proven immune to every effort at reform save for compliance with court orders, rolling back these reforms will have terrible consequences.
Here is our brief. To keep things fair, here is the opposing amicus brief, arguing, in a nutshell, for upholding what is now state law. You can read and form your own opinion.

Schwarzenegger Confronts Prisons in Speech

By now some of you may have caught Governor Schwarzenegger’s State of the State speech today. The full speech can be accessed here. And, here is the Governor’s proposal, titled “Reshaping our Priorities to Shift Funding from Prisons to Universities”. Among other things, the proposal reads:

To realize cost savings in corrections, the amendment expands the authority of the California Department of Corrections and rehabilitation (CDCR) to lower costs by contracting with entities outside state government for prison operations and services. In line with the Governor’s commitment to public safety,the measure prohibits releasing prisoners early as a means of reducing costs.