California’s correctional crisis is increasingly gaining national attention. In an editorial today entitled, “The California Prison Disaster,” the New York Times notes that California “has the largest prison population, the highest recidivism rate, and a prison budget raging out of control.”
What is to be done? The Times argues that “the solution for California is to shrink its vastly overcrowded prison system,” by moving “away from mandatory sentencing laws” and by reforming what is “perhaps the most counterproductive and ill-conceived parole system in the United States.”
The Times isn’t optimistic the state can turn itself around. “State lawmakers . . . have failed to make perfectly reasonable sentencing modifications and other changes the prisons desparately need. Unless they muster some courage soon, Californians will find themselves swamped by prison costs and unable to afford just about anything else.”
In 1964, Herbert Packer published his classic piece (later to become the centerpiece of his 1968 book), Two Models of the Criminal Process. The piece, inspired by the Warren Court changes to criminal procedure, presented two hypothetical models of criminal justice administration: the Crime Control model, whose main purpose is efficiency, and the Due Process model, which aims at reducing mistakes. In a crime control model, the process is shaped to weed out, at the earliest stages, cases in which guilt is dubious; the best way to do this is in the police investigation stage, which is not hindered by legal technicalities, and which is ideally designed for investigative truth-finding. After the problematic cases are removed from the system, we can assume a statistical, non-normative, “presumption of guilt” about the other cases, which can later be handled via plea bargaining. By contrast, a due process model is willing to sacrifice efficiency for the purpose of avoiding any chance of convicting the innocent. It therefore includes various guarantees for defendants’ rights, including the normative “presumption of innocence”, and indicates a preference for adversarial trials as truth-finding mechanisms over biased and overzealous police investigations. Existing legal systems, Packer suggested, could be placed along the spectrum; the Warren Court’s enterprise could be explained as a shift along that continuum from crime control to due process.
Packer’s analysis became a classic in the field, but was immediately the source of much criticism. Some argued that crime control and due process were not both hypothetical, normative models; while due process was a normative prescription, much empirical research conducted in the 1960s and 1970s showed that the realities of crime control subverted constitutional provisions. Others pointed out the absence of an important factor: the victim.
Soon after the publication of Packer’s work, John Griffiths argued that the typology does not offer the opportunity for less adversarial, more conciliatory models, which might help victim and offender, with the help of the community, bridge their differences. A different type of victim-inclusive model was provided by Douglas Evan Beloof, who argues that a model sensitive to victims requires adding that third perspective. In his 1997 article, he argues that victims’ rights are not adequately served by automatically aligning them with crime control and “war on crime” models. While sometimes victims seek more punitiveness and safety, in other settings their interests could align with the defendants (for example, if the victim and the defendant have reconciled and the government pursues the case), or could be adverse to both defendants and government (for example, if the latter parties have reached a plea agreement and the victim would like a trial).
Kent Roach offers a richer analysis, including two different victim-inclusive models: a punitive perspective, which he likens to a rollercoaster, and a non-punitive, restorative-justice-oriented model. The first model is driven by victims and their advocates, who are heard at any step of the process, and who invariably oppose any leniency. The second model is driven by a community seeking to address, and redress, wrongs that have been done, and advocates reparation and reconciliation. For more insights on victims’ role in the criminal process, see Leslie Sebba’s article.
Which of these models is the one advocated by Prop 9? It seems that Prop 9 has aligned itself with the punitive version of the victim-inclusive model. By voting “yes” on Prop 9, one has not only to agree that victims could, and should, be active participants in the criminal process; one also has to agree that victims’ interests require putting more limitations on parole, including representation in parole hearings. This assumes that victims’ interests will always side with the government against the defendant, which seems to be a less nuanced approach to the diverse realm of victim experiences, but which aligns with various similar legislation initiatives, such as those requiring registration and notification of sex offenders. It should be pointed out, though, that Prop 9, or “Marsy’s Law”, is not limited to sex offenders.
Prop 9 proposes a constitutional amendment to our Bill of Victims’ Rights, which would include the following rights: o punishment and deterrence of the offender o finality of the legal process o public safety and protection from the defendant (bail and parole) o fairness and respect o confidentiality about details regarding the victims’ personal lives o notice of trial developments and conference with prosecution o hearing at any proceedings
Among other things, the victim would be entitled to see the presentence report and to receive the scheduled release date of the offender. Prop 9 also prioritizes monetary restitution to victims.
Other main provisions of Prop 9 address parole hearings, presumably under the assumption that the victims’ natural interest is in hindering them. Some of these proposed changes are summarized below:
Parole hearings o the victim, as well as the inmate, is entitled to stenographic record of all proceedings o the parole hearing date should be established so that suitability for parole can be established o after denial of parole, the next hearings should be scheduled only after consultation with the victim o a big change: parole denial postpones the next hearing by longer periods of time (ranging from 3 to 15 years for lifers). Only one request to expedite will be considered every three years. This seriously limits inmates’ access to parole hearings. o parole hearings become de novo hearings; they do not rely on findings in previous parole hearings. However, inmates do not have a right to interrogate the victims during the hearing.
Victim notification and attendance o the victim would be notified of a parole hearing 90 days in advance, and has to notify back about his or her intention to attend 30 days in advance. o the victim can attend with limited number of family and representatives (including victim advocates!) all of whom can provide testimony at the hearing.
Parole revocation hearings: o inmates would only be entitled to counsel in parole revocation hearings if they are indigent and some special circumstances apply.
By linking “War on Crime” considerations with victim rights, does Prop 9 violate the single-subject rule? Your opinion is as good as mine. It is clear, however, that if it doesn’t, it certainly chooses one particular type of victim model over others.
In a previous post, I briefly presented the three criminal-justice-related propositions on the California ballot. In this post, and two more posts to follow, I’ll expand about each of these, starting today with Proposition 5.
NORA, or the Nonviolent Offender Rehabilitation Act, builds on the ruins of Prop 36, which was passed in 2000. Prop 36 promised drug abuse treatments for offenders charged with simple possession. Since 2000, the plan received praise as well as critique. Some point to a reduction in recidivism, and others highlight that less than half of the offenders complete treatment. Recently, Prop 36 lost close to half its allocated budget through gubernatorial fund cuts (and here‘s what the critics think about the cuts).
NORA aims to propose a modified version of Prop 36, and it might affect drug offenders in a variety of ways. It emphasizes rehabilitation as an answer to the prison overcrowding crisis, and provides mechanisms that exist in a variety of countries, such as drug treatment which is not accompanied by an official conviction. In this post, I’d like to highlight some aspects of Prop 5, some of which have not been emphasized on other web discussions.
As mentioned in an earlier post, “nonviolent drug offenses”, for the purposes of Prop 5, include simple possession of drugs or paraphernalia, as well as being under the influence. Any such scenario that includes trafficking purposes is excluded from this definition.
The drug treatment programs offered by Prop 5 follow a principle of “harm reduction”, and would be personalized to fit the particular offender and his or her circumstances. They could include science-based instruction, outpatient services, residential treatment, medication, mental health, and aftercare.
The proposition offers three tracks of diversion and treatment, which are left to the court’s discretion: • Track I: treatment diversion with deferred entry of judgment (carrying no criminal conviction) • Track II: treatment diversion after a conviction, as a probation requirement, including sealing of records after probation • Track III: treatment diversion after a conviction for possession of controlled substances: other nonviolent offenses: judicial discretion (for people who failed Track II and continue to have a problem). I should point out that “second chances” are a crucial component of drug programs, because it is unrealistic to expect addicts not to “fall off the wagon”.
Placement is established upon clinical evaluation and is quite flexible.
Prop 5 also addresses the meaning of drug treatments in prison. Successful completion of drug programs in prison would provide “good behavior” credits, equivalent to those earned through work, which add up and might lead to one’s early release. Another important and often neglected aspect of Prop 5 is its emphasis on reentry. Under the proposed legislation, contact with the offender is established 90 days before release from prison, in an attempt to create a good support network, workwise and treatmentwise, upon release.
In addition to these, Prop 5 also includes provisions that make it more difficult to return offenders to prison due to technical parole violations. When the violation is a misdemeanor, non-incarceration options are prioritized.
Prop 5 would require a reorganization of the CDCR, adding a Secretary of Rehabilitation and Parole with increased resources devoted to parole, probation, and rehabilitative programs in prison. There are also a variety of fact-based assessment mechanisms, built to examine the success of Prop 5 programs, including academic evaluation studies and research conferences.
How much money will this cost? The answer to that question is uncertain, as expenses on programs may be offset by savings in prisons. The amount of savings would depend on the success of drug programs in reducing recidivism. What do you think?
My student Billy Minshall has just directed my attention to a short piece by Jeff Adachi, the public defender for San Francisco, on today’s Examiner. Adachi is referring to a special event on re-entry today. Among other things, he writes:
Every year, more than 137,000 parolees are released in California, including 2,400 who return to San Francisco. Of these, only 21 percent are expected to successfully complete parole. Most, like Jesse, have low levels of education, reside in poor neighborhoods and lack basic marketable job skills. With the advent of online criminal background checks, many are eliminated before they are even considered for employment.
Employers are understandably reluctant to hire offenders. Some jobs — such as transport, teaching, and child or patient care — automatically bar offenders. Employers may also fear legal liability if an offender commits a crime while employed. In a recent survey of employers, less than 40 percent said that they would consider hiring an offender.
So, what can be done to help a formerly incarcerated man or woman who wants to work and avoid the revolving prison doors?
The answer is stunningly simple: convince employers to hire offenders.
Not an easy task, but one that can be facilitated through Supervisor Mirkarimi’s plan to insure employers prepared to participate. Given the rates of incarceration, this should really be a top priority.
On the same topic, Jennifer Gonnerman’s new book Life on the Outside documents the re-entry challenges faced by Elaine Bartlett upon her release from prison. The book’s website is a good resources for those of us seeking to connect the broad re-entry issue with a particular human face and story.
California’s correctional crisis is increasingly gaining national attention. In an editorial today entitled, “The California Prison Disaster,” the New York Times notes that California “has the largest prison population, the highest recidivism rate, and a prison budget raging out of control.” 
