Felon Disenfranchisement and the California Realignment

In 1974,  California voters passed a constitutional amendment extending voting rights to all Californians with criminal records, save for those “imprisoned or on parole for the conviction of a felony.” Prior to the amendment, disenfranchisement was permanent in CA once you were convicted of a crime. The impetus for the amendment was, hard as it may be to believe in the days of public safety rhetoric and redball crime panic, the wish to help people regain their full citizenship after they complete their parole. In a landmark 2006 case, the CA Supreme Court interpreted this provision as follows: Folks in state prison, and under state parole, can’t vote. Folks in jail or under probation (or in jail for a probation violation) aren’t considered “imprisoned” and therefore can, and do, vote.

A new piece I’m working on (coauthored with Jessica Willis) for the upcoming Loyola Constitutional Law Colloquium examines the application of this provision, and this interpretation, to a new population of offenders created by the Criminal Justice Realignment in California.

Let me present the legal dilemma. In the aftermath of Brown v. Plata, and in order to resolve the serious financial crisis faced by the state (corrections eat up about 7% of CA’s entire budget), the California Penal Code has been amended to sentence non-serious, non-violent, non-sexual offenders to do time in county jail rather than in state prison. Are these people “imprisoned” for the purpose of the constitutional provision?
Constitutional provisions that give people fundamental rights should be interpreted broadly, right? Whenever there’s ambiguity, we should support people’s right ot vote, right? Wrong. The CA Secretary of State instructs felons that, if they are among the realigned group, they cannot vote.

Several civil rights organizations, and several folks doing time in jails or on community supervision, petitioned the CA Court of Appeals for an original writ allowing them to vote (full disclosure – yours truly and coauthor Jessica Willis wrote an amicus brief on behalf of thirty criminal justice scholars in support of the petitioners). The Director of Elections for the City of San Francisco – one of the respondents – actually agreed with petitioners that they should be allowed to vote, and merely asked the Court for instructions what to do. The court threw the case in petitioners’ faces with no reasoning. Petitioners took to the CA Supreme Court, and received pretty much the same response.

In the Article I go in depth into what the Court should have weighed and considered if it took these Californian citizens’ rights seriously. But in a nutshell, here’s what I think is going on: There are two visions of Realignment. You can see it as a technical way to resolve a budgetary problem and warehouse people on someone else’s dime. Or, you can see it as  a real opportunity to bring people back to their communities, through a correctional method that actually might make sense for people who will eventually come out of prison and reintegrate into society. And by throwing the case out, the Court has opted, regrettably and apparently without much thought, for the former vision. A huge opportunity has been missed. People who could, and should, have been reintegrated into society; who could’ve channeled their experiences into civic engagement; and who could’ve started to care about their communities and neighborhoods will remain isolated and alienated.

In the movie Recount, a fascinating flick about the Bush v. Gore election, a person mistaken for a felon is sitting at home, watching Bush’s acceptance speech. His face is difficult to read. Is he angry? Sad? Disillusioned? Robbed of the promise of a voice or full citizenship? When you vote in November, think about the immense number of U.S. citizens behind bars, or under supervision, from whom this right has been denied.
———–
cross-posted on PrawfsBlawg.

“Smart on Crime”: Retreating from Punitive Discourse Citing Financial Prudence

 In the decades prior to the financial crisis, as Jonathan Simon writes in Governing Through Crime, no politician, regardless of party affiliation, could afford to sound “soft on crime.” Propositions running counter to the received wisdom that more punitive is better had to be marketed assmarter, more efficient, or safer law enforcement – and, of course, these drowned in a sea of punitive propositions. But one of the key features of humonetarian discourse – the correctional discourse in the wake of the financial crisis – has been a partial liberation for politicians from the tough/soft on crime dichotomy. The usual tricks for dressing nonpunitive propositions as, well, not nonpunitive, still apply, but now there’s justification to do so: Punitiveness is not financially sustainable. 

Our friends at Sentencing Law and Policy posted a link to an “astute recent Washington Post piece” reviewing the GOP’s platform on crime after the RNC convention. The piece compares GOP criminal justice policies and ideals to those of yesteryear. The bottom line: Republicans are softer on crime. Here are a few snippets:
Policy experts agree that the omission [of the War on Drugs from the GOP platform] is significant. “This is less a ‘tough on crime’ document than you would have expected. And leaving out the War on Drugs [is] quite astounding,” says Mark Kleiman, a crime policy expert and professor at UCLA. “It’s a bit more of a libertarian attitude,” says Marc Levin, who runs a conservative criminal justice reform project called “Right on Crime” that’s attracted the support of Newt Gingrich and Grover Norquist.

What’s more, the 2012 platform includes new provisions that emphasize the importance of rehabilitation and re-entry programs to help ex-prisoners integrate back into society—using language that Kleiman describes as “a lot less ‘lock ‘em up and throw away the key.’” “While getting criminals off the street is essential, more attention must be paid to the process of restoring those individuals to the community,” the platform says. “Prisons should do more than punish; they should attempt to rehabilitate and institute proven prisoner reentry systems to reduce recidivism and future victimization.” The document also criticizes the “overcriminalization of behavior,” though it doesn’t elaborate on the point much further.

Both Kleiman and Levin believe it’s partly the outgrowth of a prison-reform push on the part of GOP governors whose state budgets have been saddled with high incarceration expenses. In recent months, Pennsylvania Gov. Tom Corbett, Ohio Gov. John Kasich, and Gov. Chris Christie have embraced crime reform legislation to support the kind of rehabilitation programs that the GOP platform now advocates, with some also reducing jail time for non-violent offenders. Conservative reformers like Levin are heartened by the changes. “We’ve gone a long way in four years,” he says, crediting the growing interest in more cost-effective ways to tackle crime.

This is not a coincidence. A coalition of conservative politicians, including recent signatory Jeb Bush, identifies as “right on crime“. The emphasis is on being fiscally prudent, which this post, again analyzing the RNC and the resulting platform, calls “reapplying basic conservative principles” to criminal justice. Yes, there are some punitive ideals advocated by the GOP – most notably with reference to gang conspiracies – but being comfortable 
Who else feels comfortable being less belligerent on drugs? Well, Pat Robertson, for one. But if you want to get more serious, that the father of classic market economics (and inspiration of the Reagan Administration)Milton Friedman would find marijuana prosecutions a waste of resources is perhaps not surprising, but the timing of this review, and the focus on revenue, means that these times call for new approaches among conservative politicians.
I’ve focused on conservative politicians so far, but the same analysis applies to progressive ones. In 2007, when Simon wrote Governing Through Crime, progressive politicians could not afford to be “soft on crime.” That hasn’t changed. What has changed is that progressive politicians, like conservative ones, apply to financial prudence as reasoning. One interesting example is the marketing of Prop 19 (“regulate, control and tax marijuana”), which failed at the ballot, as a revenue-enhancing proposition. I spoke to folks at Tom Ammiano’s office; going into the election, support for the proposition significantly rose when they marketed the proposal as revenue enhancing. There is some indication that the proposition’s failure was due to its vague tenets (leaving the mechanisms of sales up to the individual counties) rather than due to the basic idea.
To sum up: I don’t thin politicians have become ideologically soft on crime. But the crisis is giving them a license to be cheap on crime, in a way that appears more genuine and does not damage their credibility.
———–
Cross-posted to PrawfsBlawg.

Bill Allowing Resentencing of Lifer Juveniles Passes Assembly

Excellent news: SB9 – a Senate bill allowing lifer juveniles to have their life without parole sentence reevaluated by a judge – has passed the California Assembly.

This is a major achievement. Leland Yee has been pushing this issue for years. The full text of SB9 is here. And there is more information on the Fair Sentencing for Youth website.

In order to pass, the bill needs to be reaffirmed by the Senate (which has already approved it) and signed into law by the Governor, who is already being pressured by opposition groups.

Here’s what you can do to help: Click here to contact the Governor, and your Senator, and express your support for the bill.

And: Regarding our last post – the California Supreme Court has done the right thing. In CA v. Caballero, the Court has held a 110-year sentence to violate Graham v. Florida. This case joins CA v. Mendez, in which the Court struck down a 84-year sentence for a juvenile who did no harm.

Once you’ve emailed your Senator and the Governor, rejoice with all Californians who believe that everyone, especially at a very young age, should be offered a glimmer of hope and redemption.

Solitary Confinement for Juveniles

Earlier this week, the Public Safety Committee killed SB 1363, a bill that would disallow subjecting any minors, whether in prison or in jail, to solitary confinement, unless they pose an immediate and substantial risk or harm to others and other options have been exhausted. Even in the latter case, the juvenile would have to be constantly evaluated.

Activists are making one more push for it this coming Tuesday. Linda Roldan’s post on the Ella Baker Center blog, A Mother’s Nightmare, offers a personal perspective on the immense harms of solitary confinement for minors.

My son is not a tough kid and wasn’t ready for the gladiator school called DJJ. On his very first day, he was beat up. He’s seen things he should never see, like kids fighting each other and guards assaulting and pepper-spraying kids on a daily basis. After experiencing solitary confinement, violence, and humiliation by guards, he now suffers from severe depression and hallucinations. He never had serious mental health issues before. Now he is suicidal.

We’ll keep you posted as to the status of the bill.

New Bill Proposal to CIrcumvent Wholesale Strip Seaches in CA

This recent post discussed the Supreme Court’s decision in Florence v. Board of Chosen Freeholders of the County of Burlington, in which strip searches were allowed for all those entering general population in jail. A new proposed California bill would bypass this process by creating more hurdles in the path of placing people in general population in the first place.

SB 1536, proposed by Senator Mark Leno –

would prohibit a person arrested and held in custody on a misdemeanor or infraction offense not involving weapons, controlled substances, or violence, from being confined in the general jail population unless a judge or magistrate has determined that the person does not qualify to be released on his or her own recognizance and that, after being given a chance to post bail, the person is not able to do so within a reasonable time. By changing the definition of a crime, this bill would impose a state-mandated local program.


The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.


This strikes me as eminently sensible. I was not one of the commentators who were shocked by the Supreme Court decision. I think security reasons when entering general population require everyone to be searched. I also think that arbitrarily searching only some inmates would give rise to ugly profiling practices and accusations. This proposal is excellent in that it makes sure that non-dangerous folks don’t get committed to general population in the first place, if it can be avoided, thus bypassing the problem entirely. Good job, Senator Leno!

De-Felonizing Drugs

Image courtesy ACLU of Northern CA.

SB 1506, a new bill introduced by Senator Mark Leno, aims at changing drug possession offense classification from felonies to misdemeanors.

Currently, the distinction between different types of drugs also yields a distinction between felonies and misdemeanors. Possession of cocaine, heroin, and Schedule III, IV and V narcotic drugs is a felony; possession of cannabis and Schedule III, IV and V nonnarcotic drugs, is a misdemeanor.

Should SB 1506 pass, possession offenses will become misdemeanors regardless of the type of drug, and moreover, they will not require registering with the police station for folks with convictions.

The ACLU of Northern California, as well as California Attorneys for Criminal Justice, Drug Policy Alliance, Ella Baker Center for Human Rights, the California NAACP, and William C. Velásquez Institute, support the bill, arguing that it will enable a considerable shortening of prison sentences for simple possession while focusing resources on policing and drug treatment.

What do our readers think? Is there a good reason to distinguish between simple possession of different types of drugs for sentencing purposes?

BREAKING NEWS: Bill to Amend Three Strikes Law Passes Assembly

Assembly Bill 327, introduced by Assembly Member Davis, passed in the assembly today. The new bill, whose text can be found here in full, would activate the “third strike” life imprisonment provision only if the third felony is for a serious or violent felony.

What counts as “serious or violent” felony is defined in section 667.5 of the existing penal code. The category includes serious offenses like murder, attempted murder, rape and kidnapping, but also first degree burglary, extortion and the like. It would seem to exclude some of the more scandalous examples of three strikes practices, in which the third offense would be petty theft of some sort.

The bill now moves to the senate floor. But getting too excited about this may be premature; the bill explicitly specifies that it only comes into effect if approved by voters in the 2014 election.

Happy New Year from the CCC Blog

And what a year it will be!

The Criminal Justice Realignment will figure prominently in our posts this year, with a special focus on the recent news regarding cuts that may endanger many juvenile programs. The most serious concern stemming from the cuts is that juveniles will be tried as adults. Some thoughts on the proper direction to take from Selena Teji and Emily Luhrs are posted here.

We’re also excited about the prospect of SAFE California’s initiative to end the death penalty in California in 2012, as well as a possible amendment of the Three Strikes Law to include only violent felonies.

Thank you, as always, for your readership, and stay with us by reading, commenting, and emailing.

Brown Vetoed Anti-Shackling AB568

When a pregnant woman goes into labor in California prisons, guards chain her up, transport her to a medical facility in chains, and then chain her to a bed for the entire birthing process. This practice is a disgusting outrage, and would have been ended by this year’s AB 568. Yesterday Governor Brown decided to veto this legislation. Unbelievable.

Expert Alicia Walters has more info here.