Receiver Advocates Medical Parole

Clark Kelso encourages voters to endorse medical parole for chronically ill inmates as a measure for significantly reducing expenditures on the prison health system. This morning’s Sac Bee reports:

“I am keenly aware, as are the courts,” Kelso said, “that a dollar that we can save in the prison health care program is a dollar that can be spent on other important priorities for the state, such as education, money for children, the elderly, other health care programs.”

An aide in Kelso’s office said that, conservatively, the prison system could save $213 million over five years by paroling just 32 inmates identified as severely incapacitated.

Twenty-one of those 32 inmates are in nursing facilities or hospitals outside prisons, which requires spending for expensive guard time – including overtime – as well as huge health care costs.

These 21 inmates’ average annual health care and guard costs total more than $1.97 million apiece – a total of $41.4 million a year for 21 individuals, said Kelso aide Luis Patiño.

The bill was introduced by Mark Leno. Interestingly, the bill would do something else that reverses a 40-year trend: it would give parole boards some of their power and discretion back. Medical releases would depend on a parole board determination that the inmate no longer poses a danger to society due to his or her medical condition.

As I told my students last week, one of the most significant implications of the shift from indeterminate to determinate sentencing was a shift in power within the system. The most noticeable effect of this change was the transfer of power from judges to prosecutors and legislators; determinate sentencing “locked” the defendants into a sentence based on the charge, and therefore awarded prosecutors a powerful bargaining chip in deciding which offense to charge. However, these changes were accompanied by “truth in sentencing” laws, requiring that inmates serve the majority of their sentence, stripping the parole board from its previously immense power to assess rehabilitation and risk.

It seems that the new proposal would reinfuse parole boards with some of that discretion, but keep it within reasonable boundaries. The concern about disparities and inconsistent criteria for release is significantly narrowed when the parole board has to hear evidence from doctors about the extent to which a certain inmate might be incapacitated due to his or her illness. This seems to be a not-unreasonable assessment, especially since much of the argument against early releases has to do with the concern about putting violent, dangerous people back on the streets. If someone’s illness renders him or her non-dangerous, the only argument remaining for keeping them behind bars is retribution. And the question is whether we can afford pure retribution, as things stand today.

BREAKING NEWS: 9th Circuit Affirms Karlton Decision in Valdivia

Today, the 9th Circuit ruled in Valdivia v. Schwarzenegger. Our original coverage of the case is here and the full decision can be read here.

More expansion on this over the weekend, but the bottom line is:

1) Admissibility of hearsay in parole revocation hearings is still subject to the Comito rule, that is, the need to decide whether to hear the hearsay evidence based on a determination on its importance and the circumstances. Valdivia 1, Schwarzenegger 0.

2) Conflicts between Prop 9 and the court injunction in Valdivia: The case is remanded for the District Court’s determination which aspects of Prop 9 violate constitutional rights. This one is a bit more complicated, and it seems that the next move would be the state submitting a plan to the District Court (which they could’ve done before).

RI Leads Nation in Reducing Incarceration

Adding to our last post on the new Pew study, as a transplanted Rhode Islander I was thrilled to see Pew report that Rhode Island now leads the states in prison population reduction. As Bruce’s post reminds me, we never thought we’d see the day RI had fewer than 4,000 state prisoners. The RI General Assembly has recently eliminated mandatory minimum sentences for drug crimes, restoring judicial discretion. The Department of Corrections has increased sentence reductions for inmates’ good behavior.

Last night, the RI Senate Committee on Marijuana Prohibition released its final report, and concluded its business by releasing its final report and voting to recommend that the legislature decriminalize marijuana. This change would result in vast savings: in 2009 RI arrested 2,546 people for first-time marijuana possession. According to re-entry institute OpenDoors’s new report, in 2008 RI imprisoned 188 people and jailed 396–who spent a collective 2,366 days in jail.

Early Releases Law Under Attack

A few days ago we reported on an unusual narrow coalition between inmate advocates and victim advocates about the cuts to inmate rehabilitation programs. This weekend demonstrates the fragility of that consensus.

Per the Chron, Crime Victims United of California is suing Gov. Schwarzenegger, arguing that the statute, which includes parole reform and good credits for early releases, is unconstitutional:
The suit contends that the state Constitution prohibits the early release of prisoners because of crowding, that crime victims have a right to weigh in before an inmate is released and that the state is legally bound to provide adequate prisons. It also challenges a key portion of the law, the so-called day for day provision that awards nonviolent inmates a six-month credit reduction for every six months served. Previously, inmates who behaved themselves served as little as two-thirds of their sentence; now, nonviolent convicts can serve as little as half their sentence.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/02/18/BAM51C3416.DTL#ixzz0g5i6rYWj

Nina Salarno’s interview for ABC News tries to explain the apparent contradiction:
“We believe in good time credit if it’s earned and earned means participating in true rehabilitation, not just sitting there and getting it, as they call it, for breathing.”
CVUC devoted some thought to forum shopping. Placer County, according to Wikipedia, is a stronghold for Republicans. Lest you think this is accidental, this is not merely a pro-victim move. CCPOA provides financial backing for Crime Victims United; according to some sources, 95% of the group’s funding comes from CCPOA. The CCPOA website keeps close watch over victim issues in general and CVUC in particular.
Another attempt at challenging the new law occurred when Assemblyman Alberto Torrico joined a lawsuit filed by the Sacramento County Deputy Sheriffs’ Association, attempting to interpret the new law as applying only to state prisons rather than to jails. The attempt failed; Judge Loren McMaster, though expressing dismay with the new law, applied it to inmates in both prisons and jails. A similar effort to block releases in Orange County also failed.

SBX3 18: Parole Reform

A recent CDCR press release reports that the implementation of SBX3 18, the compromised, watered-down version of Governor Schwarzenegger’s proposal for population reduction, is well under way. As you may recall, the original plan was approved by the Senate but gutted by the Assembly. For your reference, here is the full text of the bill. The press release focuses on implementing changes in parole, focusing on the following reforms:

Reforms required by SBX3 18

  • Two-tier parole system, with less parole supervision on parolees deemed as low risks.
  • Drug and mental health reentry courts for parole violators.
  • Usage of the PVDMI risk-assessment instrument (the pilot precedes the bill). Here’ s some history about the instrument’s origins. Apparently, it was developed for CDCR and tested by Susan Turner and other researchers at UC Irvine. Replicating work done in Washington State, it is an actuarial tool examining recidivism, and its predictive qualities are based on recidivism information in 103,000 cases from 2002/2003. The database predicts reoffending based on information about arrests, case disposition, demographics, and other risk factors.

In addition, the press release specifies caseload reduction for parole officers, by hiring new officers and changing some job definitions. It also explicitly states the intention to supervise parolees focusing “on a parolees successful transition into the community rather than how many times they are revoked.”

Given the recent discussion in Valdivia, I’m unclear on whether these improvements would apply retroactively to people who are already on parole. My sense is that they would. After all, it doesn’t make much sense to keep low risk parolees under close supervision when the idea is to eliminate costs. Plus, supposedly parolees (as well as the system as a whole) would be benefiting from these changes.

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?

GPS Monitoring: Now Expanded to Include Gang Members

Yesterday’s edition of the Chron reported that the state plans to monitor 1,000 recently paroled gang members using GPS devices. The Chron website does not include this lengthy and interesting article, but the printed edition reports that, rather than complementing early releases, this is merely a parole monitoring aid.

One of the challenges of using GPS is the fact that the information the monitors provide, in itself, is worthless without interpretation. Other issues have been the lack of studies regarding the impact of GPS monitoring on recidivism rates. The ACLU supports monitoring as an alternative to incarceration, but not as an additional requirement. The article also mentions the inability to detect serious sex offenders, such as Phillip Garrido, through GPS monitoring.
Reliance on GPS monitoring has been an important part of the Governor’s proposition to cut costs, and have been used on sex offenders, as well as to enforce restraining orders in domestic violence cases.

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.