This Is the Way to Go: Senate Dems Propose Expenditures on Health, Rehab

As a response to Governor Brown’s idiotic $315 mil privatization plan from yesterday, Senate president Steinberg and 16 other Democrat senators “proposed a plan that would spend $200 million more for each of the first two years on rehab and mental health programs to reduce the prison population by the 9,600 inmates ordered by federal judges.”

The L.A. Times reports:

“The governor’s proposal is a plan with no promise and no hope,” Steinberg said. “As the population of California grows, it’s only a short matter of time until new prison cells overflow and the court demands mass releases again. For every 10 prisoners finishing their sentences, nearly seven of them will commit another crime after release and end up back behind bars.”

Steinberg has support among Senate Democrats for a broader approach. Sen. Mark Leno (D-San Francisco) said that the plan put forward by the governor is inadequate and that he will not support it. It requires $315 million this year and $400 million in future years, said Leno, chairman of the Senate Budget Committee.

“That is a huge sum of money to be spent on a nonsolution,” Leno said. “I could not support a solution to the court mandate that is based only on greater capacity. And that’s all I see in this proposal, greater capacity.”

Leno said any plan should include greater effort to reduce the recidivism rate, including a revision of the sentencing structure. “If we have learned anything over the past 30 years of criminal justice policy leading to this crisis, it’s that we cannot incarcerate our way out of it,” Leno said. “It doesn’t appear that the proposal deals with the core problems that we have, which are clearly in our sentencing structure and our lack of investment in preventing recidivism.”

A huge sum of money spent on a nonsolution, indeed. I gave an interview to the Daily Journal today (link tomorrow), in which I was asked whether this new proposal from senators is a game changer. I replied there was nothing new here; all criminal justice experts who cared to offer an opinion have repeatedly been saying that building more cells and privatizing more does nothing to ameliorate the prison crisis, and in fact guarantees that we’ll have a more serious crisis for years to come. All Steinberg proposal does is suggest spending the money where it matters – in helping people not come back to prison.

Regulating Public Space: Excluding BART Offenders from Trains

Photo credit Rhett Aultman.

The picture on the left is of a public ad found in many BART cars recently. The text reads:

A new state law allows BART to prohibit individuals who have committed violent acts, certain misdemeanors or felonies on the system from entering BART property.
The state law references is Assembly Bill 716. The BART website elaborates:

Assembly Bill 716 allows BART to issue a “prohibition order” against anyone who commits certain offenses on BART property, banning them for 30 days to a year, depending on the offense. For infractions such as defacing property or urinating in public, a person must be cited on at least three separate occasions within a period of 90 days to receive a prohibition order. For more serious crimes such as violence against passengers or employees, the ban can take effect after the first instance.

There is a committee that decides on issuing the prohibition orders. And, there are apparently mechanisms in place to curb misuse of this law:

The new law also contains extensive safeguards to address concerns that the authority it grants could be misused. Anyone receiving a prohibition order can request an administrative hearing, the law states. The hearing officer can overturn the order if he or she determines the person “did not understand the nature and extent of his or her actions or did not have the ability to control his or her actions.” 

If the cited person is dependent upon transit for “trips of necessity,” including travel to or from medical or legal appointments, school, work, or to obtain food and clothing, the order must be modified to allow for those trips. If the person is not satisfied with the hearing officer’s decision he or she may seek judicial review.

The new law raises a lot of interesting considerations regarding the regulation of public space. BART property is the property of a governmental agency, and this exclusion is not unlike the exclusion of, say, sex offenders from public fairs and events. While it is important to keep in mind that there’s a thematic connection between the conduct and the sanction – the violation has to be related to BART – it does beg the question how are said individuals to be identified and apprehended in busy stations without recurring to profiling methods that are banned by the BART police manual. It also brings up sad and angry memories from the Oscar Grant killing on New Year’s Eve of 2009; Grant and his friends were arrested after a brawl on BART.

Excluding offenders from public space, especially mobility, also has important class implications. I’m happy to see that the law allows for modifying the order to accommodate “necessary trips”, but verifying whether a given trip is “necessary” or not is a complicated matter and does not eliminate hassle and suspicion in the first place. It also means that folks who may not be able to afford alternative means of transportation to “non-necessary” destinations are now curbed from reaching these destinations.

We’ll have to wait and see how “prohibition orders” are issued and executed. Email us if you experience anything related to this law on BART.

Props to Richard Boswell and to Rhett Aultman.

Happy Father’s Day to Incarcerated Dads

Every Mother’s Day and Father’s Day, the Get on the Bus project brings children to visit parents in prison. This laudable initiative should draw our attention to the fact that, for all other days in the year, many children still have incarcerated parents.

The Bureau of Justice Statistics has issued a special report on parenthood behind bars. The findings are fairly grim; as many as 60% of fathers in prison do not have contact with their children. The racial distribution is distressing as well, and means that entire communities lack the experience of regular father-child contact.

Sesame Street’s Little Children, Big Challenges, has stepped up to the plate and created a kit for children of incarcerated parents. This report includes various clips from the program. And while, as Time Magazine reminds us, the show cannot fight mass incarceration in its entirety, it is a small and important step toward acknowledging mass incarceration as an experience affecting a large number of American children.

Cutting Food Benefits for the Formerly Incarcerated?

An amendment to a farm bill, currently debated in the senate, would permanently drop anyone ever convicted of a violent crime from the Supplemental Nutrition Assistance Program (SNAP). Colorlines reports:

According to Robert Greenstein, president of the Center on Budget and Policy Priorities. . . 

The amendment would bar from SNAP (food stamps), for life, anyone who was ever convicted of one of a specified list of violent crimes at any time — even if they committed the crime decades ago in their youth and have served their sentence, paid their debt to society, and been a good citizen ever since. In addition, the amendment would mean lower SNAP benefits for their children and other family members.

So, a young man who was convicted of a single crime at age 19 who then reforms and is now elderly, poor, and raising grandchildren would be thrown off SNAP, and his grandchildren’s benefits would be cut. … Democrats accepted it without trying to modify it to address its most ill-considered aspects.

Two-thirds of SNAP recipients are children, elderly or the disabled, and two-fifths of SNAP households live below half the poverty line.

Beyond the obvious implications for the income gap and the disproportionate harmful impact on the African American community, this provokes some thought about the way the financial crisis has yielded a new perception of the offender. Our focus on inmates prior to their crisis had been on their risk level, and the crisis has focused our attention on their cost. This is what has yielded some of the advances in geriatric and medical parole, but it has also led to some bitterness over the “free healthcare” that inmates receive. This seems to be a development of the same ilk. In an era of competition over resources, formerly incarcerated folks are seen as somehow less deserving of help and compassion than others, and thus their benefits, regardless of economic condition, are first to go.

This is why, even though humonetarianism has made some significant dents in the mass incarceration machine, it cannot be relied upon as an exclusive strategy for reform. We’ve seen enough developments of the tough-‘n’-cheap variety to know that savings don’t always work in the direction of penal reform. The way to frame the savings argument here would be as a  long-term concern: Poor people with nothing to eat have less opportunities and might therefore resort to crime, and one way to save is to reduce recidivism.

A Fundraiser for Homeboy Industries

As a few blog readers might know, when not fighting the California correctional ogre, I am an open water marathon swimmer. In 24 days, I will swim the Tampa Bay Marathon Swim – 24 miles of nonstop swimming in ocean water.

I am using the swim to raise funds for Homeboy Industries, a wonderful Los Angeles based reentry nonprofit. All the information is in this link. 100% of your contributions go to Homeboy Industries; the swim expenses come out of my personal pocket. If you can, please consider contributing so I can support their important enterprise!

Why Civil Representation Matters

For the most part, this blog covers criminal and correctional matters. But this New York Times story makes me think that the distinction between criminal and civil law isn’t all that clear-cut.

As it turns out, the economic downturn has worsened a situation in which poor people don’t have access to lawyers and have to represent themselves in matters such as home foreclosures, child custody, job loss and spousal abuse. Without the knowledge and connections that an attorney can provide, and unshielded from the power of the law, the quality of justice poor people receive is reduced. The article reports:

The Legal Services Corporation, the Congressionally financed organization that provides lawyers to the poor in civil matters, says there are more than 60 million Americans — 35 percent more than in 2005 — who qualify for its services. But it calculates that 80 percent of the legal needs of the poor go unmet. In state after state, according to a survey of trial judges, more people are now representing themselves in court and they are failing to present necessary evidence, committing procedural errors and poorly examining witnesses, all while new lawyers remain unemployed. 

. . . 

According to the World Justice Project, a nonprofit group promoting the rule of law that got its start through the American Bar Association, the United States ranks 66th out of 98 countries in access to and affordability of civil legal services.

In April, thanks to a city ordinance championed by civil rights lawyer Robert Rubin and big firm partners James Donato and James Brosnahan, San Francisco became the first city to offer a “civil Gideon” pilot program, guaranteeing representation to the indigent in civil matters as well.  A 2009 California law funneling funds to legal aid groups to provide representation was bitterly contested, as was the San Francisco ordinance.

Why does all this matter? Because formerly incarcerated people rebuilding their lives on the outside may find that their brushes with the law happen outside the criminal realm, as well. Having to deal with the side effects of poverty and discrimination against felons (jobs and housing) and with the disintegration of family so commonly associated with incarceration, one might find oneself in dire need of an attorney, finding that outside of criminal matters, representation is difficult. “Civil Gideon” projects are, therefore, as important to reentering folks as criminal representation – perhaps more so.

But high caseloads, both civil and criminal, mean that even laws guaranteeing representation may find it difficult to offer quality representation. This is what I’ve referred to elsewhere as “the dark side of Gideon.”More funding means better representation, and this is one area in which humonetarianism will not be of much help.

Finally, apropos Gideon, this flick has just been released and should be worth seeing when it comes to California. Here’s a Democracy Now segment devoted to the film:

Robert Rubin, whose main area of litigation in the last ten years is voting rights, will be speaking at our conference on Friday about felon disenfranchisement and barriers to reentry.

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.

Realignment: Potential and Pitfalls

Photo courtesy Jamie Soja for SF Weekly.

Today’s SF Weekly features a detailed story by Lauren Smiley about rehabilitative initiatives for realignment inmates in San Francisco jails, complete with data, anecdotes, and an interview with yours truly. To whet your appetite about the story:

Last May, the U.S. Supreme Court upheld a three-judge ruling that California must reduce its overcrowded prisons to 137.5 percent of capacity by mid-2013, down from a peak of 202 percent capacity in 2006. That meant siphoning out about 34,000 prisoners, enough inmates to nearly fill the Oakland A’s stadium.

The state came up with a plan: Nobody gets out of prison early, but less-serious offenders would be sentenced to county jail, and the supervision of certain criminals released from prison would be moved from state parole agents to county probation officers. That means that if these ex-cons violate the terms of their release, they will be booked into county jail, not prison.

Voilà: Prisoner numbers are down for the state. The prisons are currently on track to meet the deadline, at 164 percent capacity and descending.

So San Francisco will now attempt what the state corrections system failed at: rehabbing Nate Bracy. It will try to override 17 years of criminal behavior and to get him — and the 700 others who will arrive in San Francisco over the next two years — to live like your average Joe Citizen.

Realignment: An Opportunity to Rethink Corrections

Some of the recent developments in realignment implementation, such as the request for jail expansion in Los Angeles County and Riverside’s shocking vote to charge inmates $140 per night for their jail stay, make one ponder whether counties really understand the idea behind realignment legislation.

AB 109 is not merely a jurisdictional change. The legislator intended an actual ideological shift in how California treats its inmates. A simple read of the bill’s text provides ample proof of that. The bill explicitly states that there would be a preference for intergration in the community, through programs like home detention. More importantly, it shifts inmates from state parole supervision to community postrelease, meant to provide better integration in the community. And to achieve that, community corrections partnerships have been formed in the counties and tasked with planning release in the context of a given community. Yes, the impetus for the realignment was fiscal, but there is ample evidence that this is intended to be a true paradigm shift. This story from Western Cities makes a great read in that respect.

If so, old-school thinking about construction and warehousing needs to be set aside and new models need to be considered. For example, why not reconsider felon disenfranchisement and extend voting rights to jailed inmates? As this ACLU guide explains, felons on parole currently cannot vote, but what about folks on community postrelease? Not only does it appear that these folks are not “on parole”, but rather under a probation-like regime, and can therefore vote, but it’s also sound public policy: There’s robust statistical proof that extending voting rights to people, and getting them involved in civic life, significantly contributes to recidivism reduction. Many countries in the world think nothing of providing inmates with voting rights as they do their time, not only upon release. Reintegration into society and reducing reoffending: Isn’t that what this is all about?

Here’s another example: As we discovered on our Food Deserts conference earlier this Fall, there are some beautiful prison projects that include community gardens and the like. The produce cannot, for various reasons, be consumed by CDCR inmates themselves. But why should local jail inmates not enjoy the fruits of their labor? And if, for some reason, that doesn’t make sense, why not combine their jail sentence with some landscaping work in urban gardens so that low-income families can get more fresh produce?

A third possible opportunity, borrowed from a suggestion Jonathan Simon made at a public talk in 2009, and which would become much more pertinent now: Given the concerns about infrastructure disasters and earthquakes in California, why not use jails and community postrelease programs to teach more inmates and released folks to save lives, homes, and businesses? It is an important function that we would all benefit from.

I truly hope that some counties will be able to think outside the box, set aside their appetite for construction and warehousing, and seize the realignment for what the legislators intended it to be: An opportunity to reverse the California correctional crisis.