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.

SB9, Review of Juvenile LWOP: A Few Misperceptions Corrected

Our posts about SB9 yielded several reader comments, some of which I had to refrain from publishing because of their incendiary tone. I thought it might be worthwhile to tackle some of the misapprehensions regarding SB9. While I think SB9 is a great idea and endorse it wholeheartedly, I am not officially affiliated, politically or financially, with Senator Yee or anyone else involved. Therefore, consider this an academic’s opinion, rather than political propaganda.

This proposal sets dangerous people loose in the streets.

The proposal addresses only two hundred inmates or so, and none of them is being set loose in the street quite yet. What the bill does is allow a judge to review again the case of juveniles sentenced to LWOP after they have already served at least a fifteen-year sentence. And even then, the judge will only have the ability to modify the sentence to twenty-five to life. Overall, it’s a fairly mild proposition.

Aren’t these people dangerous?

Well, some of them might be, and some of them might not. It will be up to the judge to review their history, when petitioned to do so, and to assess whether it is risky to make them eligible for parole. There will be discretion about this. What we know about the trajectory of criminal careers tends to suggest that, for many folks who committed crime in their teens, age tends to “mellow people out” and they become less dangerous as they age.

If it’s only a few hundred people, why is this such a big deal?

In the grand scheme of things, it’s not a big deal at all. A handful of inmates will be serving a very long prison term, rather than an even longer one. But the difference to the individual, in terms of offering a ray of hope, is immense.

Doesn’t that teach juveniles that it’s okay to murder?

Not at all. Twenty-five to life is a very long time for a young person. And that’s assuming that juveniles even think about the repercussions when committing crimes, many of which are expressive crimes rather than cold, calculated ones.

We’re not really saving a lot of money by letting these people out earlier than expected, are we?

That’s impossible to answer accurately without proper data. However, it stands to reason that the older our inmate population is, the more we’ll be spending on its health care, which is already approximately one third of our correctional budget. Letting someone out when he or she is in his or her fifties, rather than letting him or her die behind bars, might spare us some of the costlier inmates and allow us to focus resources on others who need urgent care.

They committed murder and deserve never to see the light of day again.

Well, that is a legitimate opinion, but what someone “deserves” depends on your definition of just desert. Spending twenty-five to life behind bars, subject to violence, overcrowding, and prisons devoid of rehabilitative programming is very far from being a walk in the park.

What about the victims’ families?
That is very much a matter of personal feeling. Many families of murder victims feel immense amounts of rage and sadness and translate those to a wish that the perpetrator of their tragedy rot behind bars. That is understandable. But it doesn’t mean that the state has to grant these wishes to the letter. Moreover, there are plenty of families of victims who do not derive satisfaction from revenge or retribution, and would much rather the money spent on incarceration be spent on more and better homicide investigation, to prevent future tragedies. There are many people who feel this way; the media exposes you to the vocal, angry ones, and they do not necessarily represent everyone.

If the legislators think LWOP sentences should be reviewed, why not abolish LWOP for juveniles altogether?

At this point, Supreme Court case law regards LWOP for juveniles as constitutional for murder (not for other offenses.) Maybe future cases will follow the rationale of Roper v. Simmons and extend the abolition of LWOP to murder as well. But this is an opportunity to do something, now.

For a matter pertaining to so few people, this is eating up plenty of public energy and discourse. Why are we dealing with this, rather than with death penalty abolition and fighting mass incarceration?

Because this is easier to achieve, and these folks need some attention, too. But there is a bill on the CA ballot to abolish the death penalty. There’s also a bill to reform the Three Strikes Law. And it’s about time.

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.

Book Review: Josh Page, The Toughest Beat

California has often been proclaimed ungovernable, its politics described either as too dense to fathom or, in an oversimplified fashion, as a mess generated by unfettered direct democracy and shortsighted financial policies. But some astute political actors have accrued the knowledge and skills to navigate these complex political seas, and the California Correctional Peace Officers’ Association (CCPOA) is one of them.  Joshua Page’s new book The Toughest Beat  clearly and intelligently transcends theoretical abstractions and simplistic clichés to provide a sobering, thorough analysis of the CCPOA’s role in shaping California’s penal policies, and in doing so, provides an excellent primer to the entire landscape of California politics and decisionmaking.
The book begins with a detailed, fascinating history of the rise of the CCPOA from an “old boys’ club” providing social opportunities and camaraderie for its members to a powerful player in state legislation and policy. Using a myriad of sources, in the tradition of “old-school,” well-done ethnographies, the book cleverly tells this story oscillating between the macro world of the state and national contexts and the microcosm of specific personalities. Don Novey‘s role as the architect of the CCPOA’s lobbying and influence strategy is particularly highlighted. Emphasis is placed on the CCPOA’s bipartisan alliances with Democracts (with respect to union concerns) and Republicans (with respect to punitiveness concerns).
This account is followed by two somber chapters, which illuminate the role played by CCPOA in shaping penal policies. The first reveals the complex interdependency between the CCPOA and a few victim organizations, such as the Crime Victims United of California; the latter organizations, representing the interest of specific demographics and a particularly punitive and vengeful victim perspective, were effectively created, managed, and puppeteered by CCPOA. Rather than flinging radical accusations and conspiracy theories, Page’s careful analysis of this web of interdependency and coalitions is understated and backed with hard evidence, including a personnel and finances analysis and ethnographic data. The CCPOA’s wisdom in fostering such mutually beneficial coalitions with victim organizations, district attorneys, sheriffs, and wealthy private citizens, is grimly shown to prove itself in the following chapter, which analyzes, blow-by-blow, the passage of the Three Strikes Law, California’s pioneering piece of punitive legislation. While the story behind California’s return to determinate sentencing, and the subsequent story of its romance with an ultrapunitive sentencing regime, are a larger story than that of the CCPOA, the union played a pivotal role in selected phases, and was a dominant factor in swinging the punitive pendulum. This account is an indictment not only against CCPOA, but against a system in which the idea of direct democracy is marred by a reality of unregulated funding, misleading advertisements and abundant disinformation and ignorance.
But Page’s book cannot be reduced to a good guy/bad guy formula. His masterful account of the CCPOA’s epic fight against prison privatization shows the different strategies employed by CCPOA and the private prison corporations, and relies on a deep, intuitive understanding of how the state works to explain how, despite resorting to nefarious techniques such as building a prison on speculation, the private companies did not prevail.
The book reads like a fascinating political thriller. It does not resort to extremism or unfounded proclamations, is concisely written, and is refreshingly free of jargon. Page’s reliance on Pierre Bordieu’s field analysis as his theoretical framework is light-handed and nimble; the theory facilitates, rather than obscures, the book’s clear narrative. It is a book that professionals and laypeople alike would appreciate and enjoy.
I take issue with two minor aspects of Page’s analysis. Firstly, in presenting the punitive background for the rise of the CCPOA, Page paints the “era of rehabilitation” and indeterminate sentencing in nostalgic, overly rosy colors. While the rhetoric and logic of rehabilitation and positivism governed the penal field in California, studies of actual incarceration practice and conditions reveal a grim picture of cruelty, hard labor in the guise of correction at the time, not to mention the arbitrary sentencing practices which dramatically disfavored minority and poor inmates. Determinate sentencing led to a great many evils in California’s correctional system, but it was preceded by a great many evils in its prior regime, which many activists and legal professionals fought to eradicate for all the right reasons.
Second, Page portrays the CCPOA in two somewhat contradictory ways: As an astute political player, who will choose alliances according to what suits its members’ narrow interests, and as an ideologically-committed “law and order” player. I am curious as to which of these frameworks he finds to be a better descriptor. When presenting the CCPOA’s involvement in the creation of Three Strikes, Page refers to it as an “exception” to the “nonintervention rule” regarding sentencing matters, adopted by the union, but his analysis of the involvement and ideological choices made could also regard Three Strikes as a pivotal moment in CCPOA policy, in which it morphed into an ideological player. As Page grimly reminds us at the end of the book, despite CCPOA’s support of sentencing commissions and seemingly more reasonable positions, its powerful, debilitating shadow still looms large over any attempt to reform the correctional system, and its interests in hindering such reforms go beyond its union objectives.
Notwithstanding these minor critiques, The Toughest Beat is a terrific read, and I highly recommend it not only to readers interested in penal policies, but to anyone interested in the inner workings of the political system in the Golden State.

Tonight: San Francisco DA Candidate Debate

San Francisco District Attorney Candidates Debate – Civil Rights and Criminal Justice Reform
With candidates Sharmin Bock, David Onek, George Gascon and Vu Trinh

Doors open at 6:30pm
762 Fulton Street

Sponsored by Lawyers’ Committee for Civil Rights, ACLU-Northern California, African American Art & Culture Complex, Asian Law Caucus, Chinese for Affirmative Action, Citizen Hope, Equal Justice Society, Equal Rights Advocates, and Hastings Race and Poverty Law Journal

This event will be the first opportunity for all three of the major candidates for San Francisco District Attorney to engage in a dialogue with each other, leading civil rights advocacy organizations, and the community about critical issues in criminal justice and public safety policy.

Candidates will be asked to discuss topics such as the disproportionate impact of the criminal justice system on communities of color, alternatives to incarceration, immigration, police misconduct, criminal justice realignment under AB 109, and policies to promote reentry and reduce recidivism.

The leadership of the San Francisco District Attorney is essential in ensuring that the city’s criminal justice system is fair and equitable and fully respects civil rights. The San Francisco DA has also often played a critical leadership role in advocating for progressive and smart criminal justice policies statewide and nationwide.

With the recent Supreme Court case ordering a reduction of nearly 40,000 prisoners from California’s prison system and major changes at the state level re-aligning responsibilities for implementing public safety, the need for bold and innovative leadership on criminal justice policy is especially urgent.

We look forward to seeing you there. If you have questions for the candidates, please post them as a comment below.

Click here for the event flyer :​ebate_8.3.11.pdf

Making Sentencing Reform a Priority

Sign this ACLU-California petition at

Save Money and Increase Public Safety

To Governor Brown, Senate President Steinberg and Assembly Speaker Perez:

As you work to solve the long-term budget deficit, please make sentencing reform a top priority. Sentencing reform will help balance the budget, balance our priorities, and balance the scales of justice.

Two simple sentencing reforms would save California taxpayers hundreds of millions of dollars annually:

  1. Make possession of small amounts of drugs a misdemeanor instead of a felony.
  2. Make low-level, non-violent property offenses misdemeanors instead of felonies.

These two reforms fit with your realignment plan by keeping state prison for violent and serious offenses. But they provide additional benefitslowering court costs, shortening sentences and saving both state and local dollars that can be used for public safety, drug treatment, social services and public schools and universities.

You have the power to bring back balance to the State of California.

Support SB9 – the Fair Sentencing of Youth Act

(image courtesy the Fair Sentencing of Youth website)

CCC has been asked, and readily agreed, to endorse SB9, the Fair Sentencing of Youth Act. The bill, introduced by Senator Leland Yee, battles the evil of LWOP sentences for juveniles by making them subject to judicial review:

Existing law provides that the Secretary of the Department of Corrections and Rehabilitation or the Board of Parole Hearings, or both, may, for specified reasons, recommend to the court that a prisoner’s sentence be recalled, and that a court may recall a prisoner’s sentence.

This bill would authorize a prisoner who was under 18 years of age at the time of committing an offense for which the prisoner was sentenced to life without parole to submit a petition for recall and resentencing to the sentencing court, and to the prosecuting agency, as specified. The bill would establish certain criteria, at least one of which shall be asserted in the petition, to be considered when a court decides whether to conduct a hearing on the petition for recall and resentencing and additional criteria to be considered by the court when deciding whether to grant the petition. The bill would require the court to hold a hearing if the court finds that the statements in the defendant’s petition are true, as specified. The bill would apply retroactively, as specified.
Some FAQs provided by us:
What is this about?
Fancy name aside, this bill would allow the court to consider a petition for “recall and resentencing” by a person on LWOP who was a juvenile when he or she committed the crime. The court would look at the person’s arguments first, then, when appropriate, hold a hearing.
Why does this make sense?
The Supreme Court has acknowledged that juveniles differ from adults in how they cognitively perceive their actions and the repercussions of those actions. This was the reason why, in Roper v. Simmons (2005), the Supreme Court abolished the death penalty for juveniles. There is something profoundly cruel and unfair about locking up a young person for the rest of their life, which could be a very, very long time, without offering him or her any glimmer of hope, given the differences in how juveniles and adults process information.
Doesn’t this violate the Supreme Court’s position that LWOP for juveniles is constitutional?
The Supreme Court has not, so far, had an opportunity to decide that juveniles cannot be sentenced to LWOP. Therefore, at this point, we do not know what the Supreme Court would decide if confronted with the constitutionality question of LWOP for all juveniles. It is important to note that under Graham v. Florida (2010), it is not permitted to sentence juvenile offenders to LWOP for nonhomicide crimes. And, whatever the federal position on this may be, it is merely a bottom threshold; states can always guarantee more rights than the constitution allows. In fact, six jurisdictions do not allow LWOP for juveniles at all. Should SB9 pass, CA sentencing structure would be more reasonable and humane, but still more severe than in those six jurisdictions, because it would leave LWOP to judicial discretion.
So, are all juveniles on LWOP going to go free? Wouldn’t this hurt public safety?
Of course not. First, the final decision on resentencing is up to the judge, who will consider the circumstances and person in question. Second, someone who is resentenced could still end up spending a substantial period in prison. And third, the risk to public safety greatly depends upon the particular person. As a general statement, criminality dramatically decreases with age; we know that most criminals “grow out of it” as they mature. The lengthy incarceration until their death, therefore, burdens California’s correctional budget with no demonstrable detrimental effect on public safety.
What does it mean that the bill applies retroactively? Is that fair?
In this case, retroactive application is the fairest policy possible. It would allow the courts to reevaluate the sentences of California inmates who are currently on LWOP. It would have been very unfair to allow this option only to future juveniles sentenced by the system, because there is no material difference between their situation and that of present inmates.
CCC is happy to answer more questions. Please, feel free to add your own questions in the comment section, so that we are all better informed.

WSJ: DoJ ends safe surrender program +more

Great Wall Street Journal article this week about the economic crisis and fiscal austerity coming home to roost in federal law enforcement and sentencing/corrections policy. Full article here. My favorite part is the bullet points:

“—Increasing the amount of time deducted from prison terms for good behavior, which would immediately qualify some 4,000 federal convicts for release, and another 4,000 over the next 10 years.

—Eliminating the Federal Bureau of Investigation’s National Gang Intelligence Center, for a savings of $8 million in the next budget year.

—Sharing less of the proceeds from property confiscated from criminals with state and local authorities, and eliminating other funding to local police departments for some operations. The change would reduce spending by $120 million, according to the White House.”

And I found this paragraph the most intriguing: “The U.S. Marshals Service has quietly shelved the Fugitive Safe Surrender Program, which has cleared the books on thousands of low-level criminal cases in the past six years. Under the program, law enforcement officials set up temporary shop in a church or a public setting, urging fugitives to turn themselves in to resolve old warrants and often drawing hundreds in a single day.”

Kentucky reforming drug sentences (?!)

So apparently the state of Kentucky is debating legislation to reduce prison sentences and increase diversion for drug convictions. Today’s Lexington Herald-Leader has a detailed, well-written, very informative article about the bill, which was presented Tuesday by members of a special drug-specific sentencing committee called the Task Force on the Penal Code and Controlled Substances Act. Please read the whole thing here, but my favorite passage is:

“The bill would establish a penalty of “presumptive probation” for some lesser offenses, such as drug possession, requiring judges to sentence defendants to probation rather than prison unless the judges can state a compelling reason to do otherwise. It also would require addiction treatment for those convicted of drug possession.

Marijuana possession would drop from a Class A misdemeanor, with a penalty of up to a year in jail, to a Class B misdemeanor, with a maximum jail term of 45 days, if the judge ordered incarceration at all.”