Expanding Operation Boo: Thoughts on the Place of Sex Offenders in a Financially-Strapped System

Today’s news from CDCR are provoking a sigh and a head shake, as we’ve already discussed, ad nauseam, the ridiculous love affair the parole authorities have with Operation Boo here and here. Doesn’t the Division of Adult Operations grow tired of this festival of spook? Is no one critical of the fact that there have been ZERO recorded incidents of molestation during trick-or-treating?

My only comment for this year’s gloomy shaming ritual is this: Sex offenders are the only population who I believe will not benefit from the cost argument. Their lobbying power is, well, nil, and the fact that these baseless operations go on year after year are an indication that the public wants to continue believing that they are all, uniformly, monsters to be monitored and controlled in the face of no evidence whatsoever. We can turn around several important punitive trend, but it’ll be a long time before we reassess the devastation our excessive policies toward a population with extremely low recidivism rates has wreaked on released inmates and their families.

Realignment Starts Monday

A great story by the Chron’s Marisa Lagos explains the realignment. The piece is a must-read in its entirety and I highly recommend it. I want to highlight one pierce people may not have been attentive to: The important role probation officers will play.

Realignment is not just a numbers game. Under the new law, counties have been given new legal tools meant to help them get at the root issues that lead to criminal behavior.

Most of those tools consist of increased flexibility for judges, prosecutors and probation officers in deciding how to punish a person.

For example, in the past, if a drug offender failed to meet the terms of his probation, the only real option a probation officer had was to send him back to court, where a judge would consider whether to ship him back to prison or jail – a long, ambiguous process that resulted in delayed punishment.

But research shows that open-ended, uncertain punishments do not encourage criminals to change their behavior. What does, according to experts, are swift and certain sanctions – such as a tactic known as “flash incarceration,” in which an offender is jailed for a day or two almost immediately after violating the terms of their probation.

Under realignment, a probation officer could make this decision without sending the person back to court. And, the probation officer can tailor the punishment to an offender’s work schedule, so they don’t lose their job.

Judges will also now be allowed to mandate a split sentence – combining jail time with at-home detention, drug abuse treatment or parenting classes, for example.

Marisa Lagos, Keramet Reiter, and I will participate in an hour-long conversation about the California correctional crisis on KALW tomorrow at 7pm. Tune in, call in with your questions, and join the conversation.

Realignment in Alameda

Read this interesting interview with David Muhammad, the Chief Probational Officer for Alameda County. Seems like his heart is in the right place, and he’s doing some serious thinking on how to make this work. This can be a big success if agencies follow Muhammad’s example, rather than be pulled into the realignment plan kicking and screaming.

On October 1, California will move 848 prisoners from state prisons to Alameda County jails to finish their sentences. The county anticipates an additional 47 new inmates each month after that.
Also, any low-level parolee from Alameda County who violates their parole will go to county jail instead of back to the state prison where they served their sentence.
Once realignment is in full swing, the county expects 267 more people in jail on any given day than are serving time there today.

. . . 

Sergeant J.D. Nelson of the Alameda County Sherriff’s department said they have the space for the new prisoners in county jail. But they still need the additional state funds for new inmates. “You need to be provided with money,” he said, “to feed and clothe them.”
Eventually, Muhammad’s department expects to supervise and serve an estimated 1,900 new cases.
“I hope that it’s actually huge — that we are doing a much, much better job than the State had been doing,” said Muhammad.
The state, he added, has focused too much on incarceration instead of rehabilitation.
Muhammad wants to shift the focus towards rehabilitation by changing the county’s risk assessment system. When a person is first released to the probation department, officers there assess their likelihood to commit another crime. Probation officers then give the most attention to the people who are at the highest risk.
While this system is good in theory, Muhammad said, they are incorrectly assessing people. Under the current system, someone likely to commit 18 small thefts will score the same as someone likely to commit armed robbery – and will be supervised accordingly.
A study by The Pew Center for the States, however, concludes that low-risk people do better with less supervision.
For example, low-risk people are more likely to have a job, Muhammad said, but if they have to go to the probation office during working hours to meet with a probation officer once a week, they are more likely to lose that job.
Muhammad identified another crucial area where the Alameda County probation can improve – he wants to get the department to the point where each probation officer supervises 50 people.
“Right now,” he said, “the ratio is all over the place.”
Currently 15,000 people are on probation in Alameda County. Eleven thousand of them don’t have probation officers because of a lack of staffing and funding.
AB 109 will provide some of that funding.
“I actually see this as an opportunity where we can fix everything at once,” Muhammad said.

Did the Victim Participation Bill Increase Victim Participation?

Yesterday my students and I were talking about legislation initiatives. One of the insights of our discussion, prompted by the experiences of some of them in drafting bills, was bringing up the question whether legislation was always designed to achieve its stated goals, or to serve some other enforcement goal. Some examples we floated around were the San Francisco sit-lie ordinance, which aims not at criminalizing sitting on the sidewalk per se, but rather to provide the police with an easy enforcement tool against undesirable urban elements without having to spell out the problem. This gap between proclaimed legislative intent and actual intent to enforce is something Dan Portman and I refer to in this piece as “inequitable enforcement.”

As has often been the case since the mid-1990, our example this morning comes from the world of pro-victim legislation. The 1990s, as Jonathan Simon convincingly argues in Governing Through Crime, were the decade of the victim, who became the symbolic citizen, occupying the role previously occupied by the yeoman farmer and the small business owner. In 2008, California citizens voted for Prop 9, also known as Marsy’s Law. Ostensibly a victim rights proposal (pretty much granting the same rights victims already had before the law passed), the big changes made by the proposal included lengthening the period before a given inmate is entitled to a parole hearing. At the time, we floated around the question whether Prop 9 violated the single subject rule, and some aspects of it were challenged at the 9th Circuit.

But the real question, which we could not answer at the time, was of course whether a legislative initiative ostensibly designed to increase victim participation in the criminal process really does so. And we now have an empirical answer, from a study by Laura Richardson: No, but it sure impacted the process in other ways.

Here is what the black-letter law purported to do:

Marsy’s Law has made major changes to many aspects of parole. Section 3041.5 of the California Penal Code was the most significantly altered by the adoption of Marsy’s Law. Marsy’s Law changed the default time for the date of the next parole hearing from a single year to fifteen years. It changed the amount of time that could be set between parole hearings from 1-5 years to 3-15 years. It altered the standard for deciding when to set the next hearing, shifting the burden from the state on justifying why the inmate continued to be a threat to public safety necessitating a longer time before the next hearing, to the inmate in showing the non- existence of reasons why he or she continues to be a threat to public safety. It also gave the board less discretion in setting parole hearings only allowing parole hearings to be initially set at either 3, 7, 10 or 15 years.

Section 3043 of the California Penal Code was significantly changed by the adoption of Marsy’s Law as well; allowing for victims, victims’ families and up to two representatives to have greater input during the parole hearing. Victims’ [sic] are now entitled to have their “entire and uninterrupted statements” heard by the Parole Board. Additionally, the inmate does not have the right to cross-examine the victim at the parole hearing.

After coding and analyzing 211 randomly-selected parole hearings both before and after the implementation of Marsy’s Law, Richardson’s findings are twofold: First, the time between parole hearings has nearly doubled, and the law is a strong determining factor of parole setting. 

Controlling for the factors described in Part II, the coefficient for Marsy’s Law in the regression shows a positive increase in the amount of time set by the Parole Board until the next hearing by 2.06 years (+/-0.72) for full parole hearings . . .  No other variable showed an equal positive increase in the amount of time set between parole hearings by the Parole Board. Marsy’s Law had a more significant impact on the time set until the next parole hearing by the Parole Board than any of the factors that the board must utilize in making their parole decisions or the inmate’s activity. 

And, the analysis fails to find any increase in victim participation in the process:

Using least squares regression to test the validity of my model I was unable to find any impact of Marsy’s Law on victim participation at the parole hearing. The only variable that was significant was whether the hearing was an initial or subsequent hearing. When the hearing was a subsequent hearing victim participation decreased by 1.219 (+/1 .46). 

Wait – Decreased?

This raises an open-ended question: In light of these findings, is Marsy’s law a failure or a success?

Props to our friends at the Prison Law Blog and at Crim Prof Blog for the link.

Medical Parole Law in Action: The State Focuses on Expensive Inmates

SB1399, recently passed by the legislature, allows the state to grant inmates medical parole. It confirms sections already in the existing penal code, but note the cost-related rationale:

The California state prison health system has identified 21 inmates whose average annual health care and guard costs total more than $1.97 million apiece. This is approximately $41.4 million a year for the care of 21 prisoners. These inmates are located in off-site nursing facilities or hospitals which require paying guard time, even though these prisoners are severely incapacitated. Eleven other inmates are inside prison health centers, where their annual medical bills average $114,395 each. There are currently 1,300 California state inmates whose health care costs exceed $100,000 a year. Inmates released on medical parole would shift the cost of their health care from the state to the federal government as prisoners cannot enroll in Medi-Cal or Medicare, but paroles [sic] can.

CDCR news has reported granting medical parole to the 7th inmate since the passage of the law.

As I’ve said elsewhere, humonetarianism is not unlike the risk management regime that has permeated corrections in that it is busy conducting selective incapacitation and grouping people into categories. But note the shift in focus: Rather than focusing on risk as the dominant category for classification, we are now focusing on cost.  The cost-centered discourse and practice are shifting the way we look at the prison population. Rather than focusing on the high-risk inmates, we are focusing on the expensive ones as targets for reform and legislation.

Oh, and apropos costs: I’m working on a book that examines the impact of the financial crisis on the American correctional landscape, focusing particularly on California. Basically, it would be a book about humonetarianism. Your thoughts and contributions about this fascinating phenomenon, which I’ve been documenting here for the last two and a half years, are most welcome.

SB9 Discussed in Today’s Chronicle

This morning’s Chron features a front-page discussion of Senator Leland Yee’s SB9, which would allow juveniles sentenced to life without parole to have their sentences reviewed by a judge.

This is a very tame, limited version of the proposal.

The California measure, which Yee has tried to make law several times before, is not as ambitious: It would let inmates, after 15 years behind bars, petition the court to change their sentence to 25 years to life, with the possibility of parole. That means that even if the court agreed to modify a sentence, there is no guarantee the inmate would get out: The offender would have to wait until 25 years have been served, then could appeal to the state’s parole board for release. To request a reduced sentence, the offender would have to “describe his or her remorse” and prove he or she has worked toward rehabilitation.

Interestingly, as is often the case with parole-related proposals, the possibility that someone who maintains his or her innocence might want to make use of the review mechanism is not even considered.

In the Aftermath of Plata: Wrong Releases and Declining Crime

Two big stories, coming in the heels of Brown v. Plata, present a spectrum of issues that should have us occupied in the next few years as California struggles to find its way out of mass incarceration.

The first story appeared in the Los Angeles Times on the very next morning. Apparently, due to a computer error, hundreds of parolees were wrongfully released. The timing of this story is rather peculiar; it coincides not only with the decision, but also with the budget cuts to CDCR and to parole departments in particular. Apropos parole, a proposal for medical parole has begun making the rounds in the legislature.

The second story, featured in yesterday’s Chron, is about the decline in violent crime in California, which, in accordance with the national trend, has fallen to a 44-year low. As many experts have demonstrated, this decline has very little to do with incarceration, and is the outcome of various longitudinal developments unrelated to the administration of justice.

Less Gubernatorial Interference with Parole For Lifers Under Brown

More this morning from the Chron on the Era of Jerry: Governor Brown interferes with parole board recommendations of parole for lifers much less than his predecessor.

Brown has reviewed 130 decisions by the Board of Parole Hearings granting release to murderers sentenced to life with possible parole and has approved 106, or 81 percent, according to the governor’s office. He has vetoed 22 paroles and sent two back to the board for new hearings.

In comparison, former Gov. Arnold Schwarzenegger approved about 30 percent of lifers’ paroles. Former Gov. Gray Davis – who declared early in his term that “if you take someone else’s life, forget it” – vetoed 98 percent of murderers’ parole cases he considered.

Now, here’s the nice bit, in which happily, facts somewhat trump the fear-mongering public-safety rhetoric:

For those who see crime as the overriding issue, Brown said, state records show that only a small fraction of the 900 life-sentenced prisoners paroled in the past 15 years have committed new crimes, compared with nearly 70 percent of other parolees.

Of course, even these cited statistics are presented in an inaccurate manner: The 70 percent non-lifer recidivists are, for the most part, parole violators, so their recidivism reflects not so much a return to a criminal career as the type of conditions they are subject to after release. A new report from Pew contains data that is sensitive to this breakdown. In 2004, for example, California’s 58% recidivism rate was comprise of 40% parole violators and only 18% commissions of new crimes. And, as the report states,

[i]n some states, released offenders who break the rules of their supervision are routinely punished with a short prison stay. California, for example, has for years taken this route, an approach that has helped to keep its prison population the highest in the nation.

Setting aside this misleading slant on recidivism rates, it is still refreshing to see Brown’s administration paying attention to lifers’ low recidivism rates without apologetic or panic-generating rhetoric. The low recidivism rates of lifers can be attributed to age as well as to the type of crime (murder does not tend to be an offense that generates recidivism.)

Numbers of Parolees at Large: An Exercise in Data Presentation

(image courtesy CDCR website)

The CDCR website features a story about the Division of Adult Parole Operations’ success in bringing about a decline in the numbers of parole absconders in California since the formation of the new Parole Apprehension Team. That, in itself, could be good news (provided that these people should’ve been under parole supervision in the first place). We’ll set aside for the moment the heftier discussion of the growing resemblance between parole operations and policing, and the erosion of the concept of parole as an instrument of hope (read Mona Lynch‘s terrific ethnography of parole agents for more insight on this mentality). We’ll also set aside the question whether reporting a decline in absolute numbers makes sense in an era of supposed parole reform, a regime that ostensibly should focus on high risk parolees and thus produce less parolees in the first place. And we’ll even set aside the question of how many of these apprehended absconders were the high risk, violent, dangerous parolees that the public should really be concerned about (hint: the answer is “not many”, as many of the absconders are GPS noncompliant sex offenders, whose recidivism rates are among the lowest). Instead, I challenge my readers to take a look at this graph from the story and come up with at least three different faulty things in the data presentation.