Krenwinkel Denied Parole: Some Questions on Remorse


(Image courtesy AP and the Sac Bee)

A while ago we reported on the parole denial for Susan Atkins, a member of the Manson “family” who died a year and a half ago of a terminal illness after spending decades in prison. This morning’s Sac Bee reports of a similar hearing regarding another member, Patricia Krenwinkel. As in the Atkins case, the reason for not granting parole were retributive; her efforts to rehabilitate in prison were outweighed, said the parole board, by the heinousness of the crimes. But in addition to this assessment of the seriousness of the crime, and the victim impact statements, there was some talk of the symbolic effect of the crimes:

This is a crime children grow up hearing about,” said parole commissioner Susan Melanson. She said they had received 80 letters from around the world advocating Krenwinkel’s continued incarceration. “These crimes remain relevant.”

There is no question parole boards are influenced by public opinion. It is a good question whether they should be. Should the notoriousness of a crime and its symbolic baggage impact parole decisions? What do our readers think?
The other interesting aspect of the Krenwinkel hearing is related to remorse issues. Here’s the Sac’s take on Krenwinkel’s performance before the board:

Krenwinkel, now gray haired and grandmotherly looking at 63, wept and apologized.

“I’m just haunted each and every day by the unending suffering of the victims, the enormity and degree of suffering I’ve caused,” Krenwinkel said.

She was soft spoken and contrite in response to board members’ questions, describing the downward spiral of her life after she met Manson and came under his spell.

“He sang to me and made love to me,” she said. “…I left everything and went with him. He seemed like the answer to my salvation.”.

Because of him, she said, “Everything that was good and decent in me I threw away.”

It was her late father, she said, who helped her realize during his visits to her in prison, “what had happened, and the monster I became.”

And here’s the response from the prosecutor and victims:

“If Patricia Krenwinkel has remorse, I don’t see how she could walk into this room,” said a tearful Anthony Di Maria, the nephew of Jay Sebring, who was killed along with Tate. “No punishment could atone for the cold-blooded murders in this case.”

Los Angeles Deputy District Attorney Patrick Sequeira also suggested that if Krenwinkel was remorseful she would waive her parole hearings and accept her punishment.

These are interesting comments. They suggest that, for someone convicted of a truly heinous crime, there is no way to show remorse except not showing it and accepting one’s punishment. That is, that showing remorse and seeking release from imprisonment are incompatible. Setting aside the particulars in Krenwinkels’ case, this premise seems to evoke the religious undertones of the original penitentiary – seeing the prison as an institution for understanding the full meaning of one’s bad deeds and redeeming one’s soul through serving one’s time. These goals shaped the American prison from its early days; the isolation method at Eastern State Penitentiary (which we visited in late 2009), with no one to talk to except for the pastor and nothing to read but the Bible, were designed by Quaker reformer with those exact aims in mind.

While assuming that our version of a correctional system is a suitable vehicle for fulfilling this goal may be somewhat naïve, there are bigger questions here about public perception or expectations regarding remorse. As a society, it would be a good thing to reflect on how we expect remorse to be expressed in the criminal process. Stephanos Bibas and Richard Bierschbach have suggested integrating remorse and apology into all parts of the process, precisely because of its healing properties. If parole hearings are seen as unsuitable venues for expressing remorse (because the offender has something to “gain” from expressing remorse), perhaps the answer to the problem is expecting remorse to be expressed when the offender does not stand to gain from it. That, however, generates two problems. The first is potential lack of honesty on the part of offenders who might repeatedly express remorse they do not feel so that it might later count at the parole hearings, and as a result a decline in the moral value of remorse. The second problem is that, as a society, we do believe that defendants should benefit in some ways from remorse. The Model Penal Code recognizes abandonment (when internally driven, albeit not necessarily by remorse) as a defense in attempt cases (here’s an interesting take on that in the context of a recent 8th Circuit case). So, how do we reconcile our desire to acknowledge someone’s remorse in the trial and sentencing phases with our wish that the remorse be “authentic”?

CDCR Recidivism Report

CDCR has just released its recidivism report, which is fairly detailed and merits some discussion. First, I think these reports are a good start and CDCR should be commended for tracking down the information and analyzing it. The Office of Research did an overall good job at highlighting some of the major issues and, while I’m sure more could be mined from the raw data, there is enough content to comment on.

Here are some points that come to mind, in no particular order:

The recidivism rates in general, while not surprising, are disheartening, and attest to the complete failure of our prison system in achieving deterrence, rehabilitation, or both. It is telling that the statistics haven’t changed significantly over time, despite increased punitive measures. Clearly, what we are doing under the title “corrections and rehabilitation” does not correct OR rehabilitate. The percentages are particularly distressing for people who have been incarcerated at least once before.

Some interesting demographics: The report tracks people up to three years after release. Almost 50% reoffend within first six months; at one year, the percentage rises to 75%. Women recidivate at much lower rates than men (it would help to have a breakdown of this by offense, because perhaps offense patterns matter here). Unsurprisingly, recidivism declines with age. Also, recidivism rates for first-time offenders are highest for Native Americans, African Americans, and White inmates. But these effects dissipate for re-releases.

The releases from prison are unevenly distributed across counties (a large percentage of released inmates goes to LA). However, most of the folks that end up in LA are first-time releases, which explains why the recidivism rate in LA is actually the lowest. Other counties, such as SF, Fresno, and San Joaquin, have the highest recidivism rates, but they receive re-releases (for whom the rates are higher in general) more than first-time releases.

The distribution of offenses is interesting. 20% of released inmates were in for serious/violent crimes, and this percentage holds for recidivism, so it would appear that people do not “graduate” to more serious crime (perhaps they just do more of the same). Also, there doesn’t seem to be a connection between seriousness of crime and recidivism (which might suggest that it’s the institutionalization that contributes to it). Also, the report doesn’t track a connection between the original offense and the re-offense, save for sex offenders. Notably, however, 47% of returnees to prison are brought back in because of parole violations.

Re sex offenders:

This category merits special attention because it’s the one most often targeted by punitive legislative energy. 6.5% of released people registered as sex offenders. The data suggests that sex offender registration slightly reduces recidivism. However: Only 5% of released sex offenders who recidivate are convicted of an actual sex offense. 8.6% commit an unrelated crime, and 86% are back on a parole violation. This speaks volumes about the pervasiveness of registration rules and limitations and about the low risk of sex offenders.

More than half of the released inmates are in for short sentences – but for recidivists the length of sentence grows (this is probably just the effect of previous offenses enhance sentencing or of repeated parole violations.) There is a rise in recidivism for people who serve 0 to 24 months. After that, the rates decline. Possible intervening variables are health and age.

Recidivism rates rise significantly for folks released after their second incarceration (although subsequent re-incarcerations don’t make much of a difference). The returnees are also more likely to be assigned a high “risk score”. These two findings are not unrelated; I imagine that, when using the CSRA tool for predicting recidivism, one predictor of “high risk” is repeated prison sentencing. This classification therefore probably feeds itself.

On a more general note, I hope that releasing the data also means that our judicial apparatus might rethink some of its policies and approaches. In Malcolm Feeley and Jonathan Simon’s 1992 piece The New Penology, they argue that our “actuarial” approach to justice is behind a transformation from external correctional goals (e.g. reducing recidivism) to internal goals (e.g. reduce riots and escapes). If someone is keeping track of recidivism data, let us hope that the data actually gets used.

“Half Parole”?

Loren Herzog, whose impending parole after a conviction and a sentence for multiple murders led a California lawmaker to ask for Governor Schwarzenegger’s intervention, will be experiencing a rather unique parole experience. The Chron reports that, according to CDCR,

when Herzog is released, he will be kept on the state property belonging to the Susanville prison, but outside of the perimeter of the facility.

I wonder what might explain this peculiar arrangement, and if any of our readers can enlighten us, all the better. Does Herzog not have a place to live? Or, is his release on parole halfhearted because of the extent and heinousness of his crimes? Is this an arrangement made specifically for Herzog, or is this the beginning of a “half parole” netherland for other defendants, too?

Chelsea’s Law Approved by Senate, Almost on Governor’s Desk

AB 1844, also known as the Chelsea King Child Predator Prevention Act of 2010, has been approved by the Senate and, after some changes at the Assembly, will be submitted for the governor’s signature.

As was the case with previous sex offender legislation, AB 1844 was prompted by the tragic rape and murder of Chelsea King by John Gardner, a convicted sex offender. The new law:

  • Increases the sentence for assault with intent to commit a sexual act from 2/4/6 years to 5/7/9 years if victim is a minor.
  • Imposes a $100,000 fine on human trafficking when victim is a minor, in addition to the existing 4/6/8 prison sentence.
  • Increases the sentence for rape from 3/6/8 years to 9/11/13 years (for victims younger than 14) or to 7/9/11 years (for victims 14 or older). Sentences are even higher for offenses committed by multiple assailants (10/12/14 and 7/9/11 respectively)
  • Is applicable in addition to the existing charge of aggravated sexual assault.
  • Increases the sentence for lewd or lascivious act upon minors under 14, as well as upon dependent persons, from 3/6/8 to 5/8/10.
  • Expands upon Prop 83’s mandate to commit offenders to years to life for certain sex offenses against minors to allow life without parole in such circumstances, and adds infliction of bodily harm to the list of circumstances entailing LWOP. It also creates combinations of circumstances yielding LWOP.
  • Increases the sentence for offenses committed with great bodily injury from 15-to-life to 25-to-life for victims under 14.
  • Adds to Jessica’s Law’s requirements the prohibition from entering “any park where children regularly gather” withour parole officer’s permission.
  • Extends the parole period for sex offenders released after a life sentence to 10 years, and creates lifetime parole for habitual sex offenders, persons convicted of kidnapping a child under 14 with the intent to commit a specified sexual offense, and persons convicted of other specified sex crimes, including, among others,aggravated sexual assault of a child. For some offenses, a 20-year parole period is mandated.
  • Relaxes the minimal prison requirement for people convicted of petty theft and other offenses (2 priors) — except for sex offenders (1 prior).
  • Requires the use of STATIC-99 as the state’s risk assessment tool for adult male sex offenders as a static tool, and requires supplementing it with a dynamic tool.
  • Replaces the current requirement to place sex offense convicts in local treatment plan with a requirement of specific conditions, such as participation in an approved sex offender management program.
  • Requires an independent assessment of mental health needs in addition to that of the Department of Mental Health.
  • Is effective immediately.

The new law’s language makes it difficult for me to find the “few cases” in which, according to the Chronicle, “the number of restrictions placed on parolees” would be reduced. Overall, this is one more step in the direction pursued before in Megan’s Law and Jessica’s Law.

What Inmates Think About Early Releases

This piece is about a week overdue, but I trust our readers will find it interesting. Our friends at PrisonMovement are linking to a New America piece in which two inmates express insightful, grim opinions about the prospect of early releases. One of them, Dwight Abbott, writes:

The facts today are now known by anyone who reads the newspaper; California’s Corrections Administration has always known them. Yet, it took a federal takeover to squeeze out an admission that “there are problems.” This from the same people who immediately after, refused to comply with demands to repair what is broken. All the while, both sides — the courts who have the authority to force the reform, and the state officials not wanting it to — appear to have forgotten the inmates who are continuing to die unnecessarily because of the inhumane conditions being wrangled over… Collateral damage.

End overcrowding? End warehousing and abusing incarcerated juveniles? Compel California to act on previous court orders issued through the years? The Administration has no fear of the courts, with good reason. No person calling the shots in this matter has yet to be charged (much less jailed) for being in contempt of a court mandate after refusing to comply. Until that changes, the children will not be “rehabilitated.” They will not be allowed an education (locked inside a 4’x4’ screened cage five hours a day), participate in therapy, or to partake in vocational training, watched over by an independent watchdog group assuring what is supposed to be happening. The 90% recidivism rate among juvenile offenders will not change. They are fodder to fill the state’s bloated adult prisons.

What programs could be brought to life to change this dismal, unending record of failure? In the long run, only a return to indeterminate sentencing, with built-in incentives (like early release) for prisoners to participate can work to reduce a cycle that no one seems able or willing to break. If prisoners knew that immersing themselves in programs that teach them to read, to address their addictions, to learn violence reduction strategies, to have access to vocational training that actually prepares a prisoner for meaningful employment, you would see a dramatic decline in the worst aspects of prison life, and a dramatic increase in legal and productive behavior when they hit the streets, as almost all will.

What to do right now about overcrowding? Admit parole is a fake! Under California’s sentencing guidelines, those today being paroled have, in reality, completed their sentence. The problem lies with the courts adding on years of parole, to be served after a sentence is completed. Implemented, perhaps, with the best of intentions, in truth, parole only serves a huge number of men and women employed by the state as Parole Officers at a cost of over a billion dollars annually. They in turn guarantee the CDCR its prisons remain overcrowded with “technical parole violators,” which then guarantees prison guards (whose annual salary ranges between $50,000 and $60,000) an opportunity to pad their checks with an additional $100,000+ of taxpayer’s money in overtime pay each year.

What should be obvious to anyone reading this: there is no need to release so much as one convict who has not yet completed his/her sentence. Instead, release those who have, and are presently among the 30,000 “technical” parole violators who, at any given time, languish in California’s overcrowded prisons for up to one year, trapped by a broken system which has recidivism rates of close to 70%, the highest in the United States.

——–
Props to Jerry Jarvis for the link.

Oral Arguments Re: Prop 9 in 9th Circuit

Yesterday morning the Ninth Circuit heard oral arguments in Gilman v. Schwarzenegger. As some of our readers may recall, petitioners challenged the changes made in Prop 9 to the parole hearings, and in particular the deferrals in holding parole hearings. The District Court, after finding out some statistical information about the timing of hearings before and after Prop 9, ruled on behalf of the plaintiffs. The Governor appealed, and the Ninth Circuit will regard the arguments as pertaining not only to the specific prospective parolees, but to the entire class of parolees as well.
The main premises of the Prop 9 changes to parole hearings are outlined in this excellent memo from the Prison Law Office. As the memo explains, Prop 9, marketed as a victim rights proposition, actually made substantial changes to the way parole hearings are conducted. The topic of yesterday’s arguments was the provision lengthening the time before an inmate is eligible for a parole hearing.
In the arguments yesterday, the Judges asked whether it made a difference that the new law has a “safety valve”, that is, a provision that allows for an expedited hearing at the parole board’s discretion. The governor’s representative replied in the affirmative. According to the state, the existence of the safety valve rules out any sort of statistical confidence that a given inmate would be necessarily worse off by the Prop 9 provisions. After all, a given inmate might receive an expedited hearing and be released faster than he or she would under the old law. The attorney, however, left open the possibility that statistical evidence to the contrary might be provided in the years to come. Another problem the judges had was related to the fact that in other cases in which such “safety valves” left the law intact, the default was serving the minimum sentence, whereas after Prop 9 the default is serving the maximum, unless the expedited review is provided.
The representative for the original plaintiffs did not think that the “safety valve” rules out the possibility to argue that, as a class, inmates are worse off after Prop 9. First, the ex-post-facto review the court has to pursue is irrespective of any “safety valves”, as other cases prove. And second, the terms are very problematic. Expedited review is an option only if there are new circumstances or a significant change, and it is a complicated request to make, paperwork-wise and timewise. An interesting question was whether expedited reviews should only be available if circumstances change, given the fact that different panels might rule differently on the fate of a given inmate.
We will follow the litigation and report on the results. Stay tuned!
The full oral arguments can be heard here.

Prop 9 To Be Examined by 9th Circuit

The Ninth Circuit is to finally examine the premises of prop 9 that led Judge Karlton at the District Court to decide they were unconstitutional. Avid followers of this saga will recall that Prop 9, marketed as a pro-victim proposition, pretty much provided victims with the rights they already had in many counties, but in addition made several modifications to parole proceedings, including placing substantial limitations upon the right to counsel. The constitutionality of these premises will be central to this upcoming hearing:

THURSDAY, AUGUST 12, 9 a.m.


Gilman v. Schwarzenegger, 10-15471

California State government appellants challenge the district court’s grant of a preliminary injunction barring enforcement of Proposition 9, the “Victims’ Bill of Rights Act of 2008: Marsy’s Law,” which affects California’s parole system, including the availability and frequency of parole hearings.
For previous chapters of this saga, read here, here, and here.

————–
Props to colleague Marsha Cohen for alerting us to the date.

In Lieu of Parole Officers? LEADS 2.0

(image courtesy CDCR website)

CDCR has launched the usage of LEADS 2.0, the new version of a parolee-management database that is accessible to law enforcement agencies. The database is supposed to contain updated information about the status of parolees (at-large, deported, and anyone belonging to the new category of non-revocable parole) and allow simultaneous searches by multiple users.

Interestingly, the software is promoted partly as a mechanism to offset personnel loss, and in that respect seems to be a similar technological “save” as GPS monitoring.

SCOTUS: No Life Without Parole for Juveniles Charged with Offenses Other than Murder

This just in–the Supreme Court’s decision in Graham v. Florida. The bottom line:

The Constitution prohibits the imposition of a life with- out parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.

The petitioner, Graham, was convicted of armed robbery, which he committed at the age of seventeen after a history of previous crime, and for which he was sentenced to life in prison, which under Florida law does not allow for parole. The Supreme Court decided that such a sentence constitutes “cruel and unusual punishment” under the Eighth Amendment.

The opinion of the court was written by Justice Kennedy. It is crafted around the notion of proportionality, mentioning that the court has been bitterly divided on some “close cases”, such as sentencing under Three Strikes. In this case, however, the proportionality argument is a bit different:

The present case involves an issue the Court has not considered previously: a categorical challenge to a term-of- years sentence. The approach in cases such as Harmelin and Ewing is suited for considering a gross proportionality challenge to a particular defendant’s sentence, but here a sentencing practice itself is in question. This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes. As a result, a threshold comparison between the severity of the penalty and the gravity of the crime does not advance the analysis. Here, in addressing the ques- tion presented, the appropriate analysis is the one used in cases that involved the categorical approach, specifically Atkins, Roper, and Kennedy.

Following these precedents, Justice Kennedy proceeds by seeking “objective indicia of national consensus.” Seeing that different states have different legislative schemes for juveniles charged with crimes other than murder (for our purposes: California allows LWOP for juveniles charged with offenses other than murder), he notes that “[a]ctual sentencing practices are an important part of the Court’s inquiry into consensus.” And, as the court finds, “an examination of actual sentencing practices in jurisdictions where the sentence in question is permitted by statute discloses a consensus against its use. Although these statutory schemes contain no explicit prohibition on sentences of life without parole for juvenile nonhomicide offenders, those sentences are most infrequent. According to a recent study, nationwide there are only 109 juvenile offenders serving sentences of life with- out parole for nonhomicide offenses.” (more on that here). Kennedy finds the state’s arguments against the study “unpersuasive”. The rarity of such sentences, he says, is particularly striking when compared to the base rate of such offenses.

Kennedy also makes an interesting comment about the “adultification” of juvenile proceedings:

Many States have chosen to move away from juvenile court systems and to allow juveniles to be transferred to, or charged directly in, adult court under certain circumstances. Once in adult court, a juvenile offender may receive the same sentence as would be given to an adult offender, including a life without parole sentence. But the fact that transfer and direct charging laws make life without parole possible for some juvenile nonhomicide offenders does not justify a judgment that many States intended to subject such offenders to life without parole sentences.

He then moves on to adopt the reasoning in Roper v. Simmons, where the Supreme Court declared the death penalty for juveniles cruel and unusual. The findings cited in Roper with regard to juvenile cognitive developments are seen as still valid and material for deciding about LWOP as well. The “death is different” argument made by the state did not carry the day.

Finally, Justice Kennedy goes over the aims of punishment, concluding that none of them are served by this exceedingly harsh punishment for juveniles. He rejects a case-by-case solution (such as requiring jurisdictions to take the offender’s age into account), explaining that the uniqueness of juvenile proceedings calls for a categorical rule.

Justice Stevens, soon to retire, wrote a beautiful concurrence, including the following:

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commit- ment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete[.]

Chief Justice Roberts concurred with the judgment in Graham’s case, arguing that in some other cases, which involve more heinous crimes, LWOP might be appropriate. Predictably, Justices Thomas and Alito dissent.

The battle for reforming sentencing and rolling back punitivism is far from over. Moreover, this ruling will affect a very small number of juveniles. However, where life without parole is concerned, every potential person who will now have a light at the end of the tunnel is a boon. It is a good day for all of us who care about humane punishment.

Management Board: Sex Offender Legislation Ineffective

Yesterday’s Chron reported, in its print edition, on an issue we have discussed elsewhere: the effectiveness of Jessica’s Law housing restrictions on recidivism.

Apparently, the California Sex Offenders Management Board has seriously critiqued the existing restrictions, pointing out several flaws in them, the most obvious one being the fact that San Francisco’s abundance of state and parks excludes sex offenders, basically, from the entire city save for Lake Merced and Hunters Point. As a result, many sex offenders live in the street, a situation that, according to Jill Levenson, leads to instability and thus might actually increase recidivism.
The article also mentions the fact that the residency requirements are not retroactively enforceable, and therefore do not apply to people placed on parole or probation before the law took effect in 2007. It does, however, apply to people imprisoned before its enactment, per the recent CA Supreme Court decision on the matter.
The challenge? Changing policies to make them more effective might be perceived as being soft on sex offenders, a position politicians can hardly afford to take regardless of their party affiliation (and therefore propose laws such as this one or this one.)
***
Oh, and as a special bonus: We have not discussed the San Francisco Crime Lab scandal, which does not have a direct relationship to our coverage. But as it turns out, beyond lax supervision and cocaine theft from the drug lab, evidence is also in danger from an army of feral cats. I know this is a serious matter, which raises heavy concerns about due process and about the prosecutorial enterprise in general, but I could not resist: The picture below from the Sunday Chronicle is begging for a caption.