The Good, the Bad, and the Ugly

The Good

This comes to us via our friends at the Prison Law Blog: A meditation program in San Quentin.

The Bad

Governor Schwarzenegger vetoes AB 1900, which would prohibit the shackling of pregnant inmates. The reason? “CSA’s mission is to regulate and develop standards for correctional facilities, not establish policies on transportation issues to and from other locations. Since this bill goes beyond the scope of CSA’s mission, I am unable to sign this bill”.

The Ugly

The state has now restocked on sodium thiopental.

Underage Prostitution: A Policy Conundrum


Yesterday, our Hastings Criminal Justice Film Club watched the excellent documentary Very Young Girls, examining teenage prostitution in New York City, and especially the vulnerability of the girls and their fragile dependence on their pimps. This morning’s Chron highlights a similar phenomenon in California.

Peter Doesburg of Upland in San Bernardino County told The Daily Breeze of Torrance Thursday that he believes his daughter was abducted by Leroy Bragg, 34, while she was in Los Angeles a few months ago.

Vice officers arrested Bragg on Tuesday after a foot chase. He pleaded not guilty Thursday to trafficking of a minor, solicitation and other crimes in the abduction of another 13-year-old girl. He was being held on $1.3 million bail.

Upland police said Thursday they don’t have evidence that Bragg kidnapped Doesburg’s daughter, but believe she was abducted by people she knew.

“These subjects are believed to be associated with a group of individuals from the Los Angeles area involved in the exploitation and prostitution of young girls,” Upland police Sgt. Greg Signorio said in a statement.

Doesburg said she was arrested last week in Los Angeles and returned home, but disappeared again because Bragg allegedly made threats toward her family if she did not return to work for him. He said she might not be aware that Bragg is in jail.

“Come home,” Doesburg said. “Everything’s OK and we will protect you. You’ve got nothing to worry about.”

She described living in apartments with other girls who have been forced to meet with men for money and were beaten if they could not meet their quotas, he said.

These cases raise a number of questions about criminalization of special populations. As is the case in many US states (though not necessarily so in all countries), prostitution itself, not just pimping, is a crime. Section 647(b) of the CA Penal Code makes it a misdemeanor to–

(b) . . . solicit[s] or . . . agree[s] to engage in or . . . engage[s] in any act of prostitution. A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution. No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, in addition to the agreement, is done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. As used in this subdivision, “prostitution” includes any lewd
act between persons for money or other consideration.

This means that the girls, who incidentally would be legally beneath the age of consent for all other sex, are committing a misdemeanor by engaging in commercial sex. As you can see, the Johns are committing an offense, too. Incidentally, this offense does not carry automatic registration as a sex offender, but in some cases judges might order such registration. Some lawyers offer legal advice for Johns; for the girls, such legal advice is useless because of their young age and dependence upon the pimps for their livelihood. Many of the girls are very deeply attached to the pimps, which doesn’t help. That makes them, in effect, more victims than offenders. Combine this with family lives and, frequently, drug problems, and you have a bundle of problems, which are not cured by criminalizing and prosecuting girls for the symptom.

It is a very tricky situation to legislate. In 2008, San Franciscans voted against Prop K, which called for legal prostitution in the city. While some thought it healthy to allow sex workers access to medical services and unionization, this would not solve the problem of underage sex and of exploitation. The other tricky aspect of all of this is prosecuting the pimps, often very difficult without the girls’ testimony. The Alameda County DA’s office is making efforts to shift their energy away from the girls toward the pimps and johns, including necessary changes in legislation.

Our attention to sex trafficking emerged as we learned of it as an international phenomenon. It appears, however, that it is a problematic and important issue on the domestic arena, as well. One hopes that organizations such as GEMS manage to survive in these difficult times.

Panel at Stanford: Reproductive Rights in Prison

Stanford’s Shaking the Foundations, at Stanford Law School, offers a series of panels, one of which might be of interest to blog readers:

Locked Up and Locked Out: Reproductive Rights of Women in Prison

Date, Time and Location
October 15, 4:15-5:45 PM

Speakers

  • Kim Buchanan (Panel Moderator), Associate Professor of Law, University of Southern California, Gould School of Law
  • Sara Ainsworth, Senior Legal & Legislative Counsel, Legal Voice
  • Amy Fettig, Staff Counsel, ACLU National Prison Project; Adjunct Professor of Law, Georgetown Law School
  • Sally Lieber, Former State Assembly Member, State of California
  • Carolyn Sufrin, M.D., M.A., Clinical Faculty, Department of Obstetrics and Gynecology, University of California, San Francisco; Women’s Health Specialist, San Francisco Department of Public Health/Jail Health Services.

Native Hawaiians Over-Represented in Hawai’i’s Criminal Justice System

Groundbreaking research shows that Native Hawaiians are more likely to be incarcerated than other racial or ethnic groups in Hawai’i

FOR IMMEDIATE RELEASE:
September 29, 2010

NATIVE HAWAIIANS OVER-REPRESENTED IN HAWAI’I’S CRIMINAL JUSTICE SYSTEM

Groundbreaking research shows that Native Hawaiians are more likely to be incarcerated than other racial or ethnic groups in Hawai’i

HONOLULU, HAWAI’I – The Office of Hawaiian Affairs (OHA) released a new report today, The Disparate Treatment of Native Hawaiians in the Criminal Justice System , which examines the impact of the criminal justice system on Native Hawaiians. While detailing how Native Hawaiians are disproportionately impacted at various stages of Hawai’i’s criminal justice system, the report also includes first-hand accounts of Native Hawaiian concerns with the criminal justice system and how it affects their families and their culture. Native Hawaiians are the indigenous, native people of Hawai’i. Findings from the report show that the criminal justice system incarcerates Native Hawaiians at a disproportionate rate.

“This crucial research shows the need to address the unfair treatment of Native Hawaiians in our state’s criminal justice system,” said Clyde Nâmu’o, OHA’s chief executive officer. “Native Hawaiians make up almost 40 percent of the populations in Hawai’i’s prisons and jails. We are more likely to be sent to prison, and for longer periods of time, than nearly every other racial or ethnic community in Hawai’i. OHA strongly supports a fair justice system and this study sets the course for change.”

Additional key findings in the report include:

* Of the people serving a prison term in Hawai’i, approximately 50 percent are housed in facilities on the mainland. Of this population, about 41 percent are Native Hawaiian, the most highly-represented group. While incarcerated out of state, these people are further disconnected from their communities, families and culturally appropriate services for re-entry.
* Native Hawaiians do not use drugs at drastically different rates from people of other races or ethnicities, but Native Hawaiians go to prison for drug offenses more often than people of other races or ethnicities.
* Once released from prison, Native Hawaiians experience barriers that prevent them from participating in certain jobs, obtaining a drivers license, voting, continuing education, obtaining housing and keeping a family together.
* Without a sufficient number of culturally appropriate services, Native Hawaiians are not given the best chance at achieving success upon re-entry into the community.

“In 2009 the OHA Board submitted Concurrent Resolutions to the 25th Legislature noting that a study would be helpful in determining the extent, nature and impact of perceived disparities. The Senate urged with the House of Representatives concurring in HCR27, HD1, that OHA should contract a nationally respected and objective consulting firm to conduct a study of disparate treatment of Native Hawaiians in Hawai’i’s criminal justice system. That study is now complete.” said OHA Chairperson Apoliona.

The resulting report provides a number of recommendations to reduce the unfair impact of the justice system on Native Hawaiians, including:

* Reform the criminal justice system in Hawai’i to embrace the cultural values of Native Hawaiians. Changing the justice system so it is in line with culturally significant norms and values will help preserve a historic culture and strengthen the Hawaiian community and its identity.
* Develop a targeted plan to reduce racial disparities. One immediate proposal by OHA is the establishment of a task force that will review the findings and recommendations of the report, and formulate policies and procedures to eliminate the disparate treatment of Native Hawaiians in the criminal justice system. Members of the task force will include OHA, government agencies, legislators, prosecutors, public defenders, the state attorney general, the judiciary, public safety and probation officials, the police, a former prisoner and treatment providers.
* Concentrate efforts to reduce the punitive nature of the criminal justice system and fund community-based alternatives to incarceration. Investing in alternatives to incarceration and the investment of funds into re-entry and preventative programs will aid in addressing the disproportionate impact on Native Hawaiians.
* Reduce collateral consequences associated with criminal justice involvement. The current system deprives pa’ahao of full integration into the community. Barriers to education, housing, employment and parental rights only serve to increase the likelihood of future re-imprisonment which would further destabilize families and communities.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System was written at the request of the Hawai’state legislature following the approval of House Concurrent Resolution 27, and was compiled through research by the Washington, D.C.-based Justice Policy Institute (JPI), and experts at the University of Hawai’i and Georgetown University.

To read the Executive Summary and the full report of The Disparate Treatment of Native Hawaiians in the Criminal Justice System visit www.oha.org/disparatetreatment. For more information on OHA, please visit www.oha.org. If you are interested in reading additional research from the Justice Policy Institute on racial disparities and efforts to reduce the number of people affected by the criminal justice system, please visit www.justicepolicy.org.

About OHA

The Office of Hawaiian Affairs (OHA) is a unique, independent state agency established through the Hawai’i State Constitution and statutes to advocate for the betterment of conditions of all Native Hawaiians, with a Board of Trustees elected by the voters of Hawai’i. OHA is guided by a vision and mission to ensure the perpetuation of the culture, to protect the entitlements of Native Hawaiians, and to build a strong and healthy Hawaiian people and nation. For more information, visit www.oha.org.

Religious Freedom: Is a Courthouse Holding Cell a “Pretrial Detention Facility”?

While this is not a correctional issue per se, it raises interesting questions. Today’s Chron reports:

A panel of the Ninth U.S. Circuit Court of Appeals in San Francisco ruled 2-1 in May that Orange County deputies hadn’t violated Souhair Khatib’s rights by making her take off the religiously mandated headscarf for security reasons when she was placed in the holding cell.

But the court said Monday that a majority of its 27 judges had voted to set that ruling aside and refer the case to an 11-judge panel for a rehearing in December.

The dispute affects thousands of inmates throughout the nine-state circuit who are taken to holding cells before being brought to court, said Khatib’s lawyer, Becki Kieffer. She said it was the first such case to reach a federal appeals court.

Kieffer argued that the majority in the three-judge panel’s ruling had misinterpreted a federal law that broadly protects inmates’ religious freedoms.

The law prohibits government agencies from imposing a “substantial burden” on the right to practice one’s religion in a prison, jail or pretrial detention facility. The issue in the case is whether a courthouse holding cell, where inmates are held up to 12 hours before hearings, is a pretrial detention facility.

9th Circuit: State Responsible for Disabled Inmate Conditions in Jails

Is the state of CA responsible for meeting disabled inmate needs in local jails? The official state position has been to take responsibility only for accommodations in state prisons. However, the Ninth Circuit has expanded this responsibility, and allowed lawyers for disabled inmates to provide evidence of violations in a hearing to be held at a later date. The Chron reports:

The lawsuit dates to 1994 and resulted in a court-approved plan in 2001 to accommodate the needs of disabled inmates in state prisons. Tuesday’s ruling applies to inmates who were sentenced to prison for felonies but are now in county jail for drug treatment, or were jailed after being arrested or resentenced for violating their state parole.

Despite assigning those inmates to county custody, the state remains responsible for maintaining equal access to educational and treatment programs and to “the fundamentals of life, such as sustenance, the use of toilet and bathing facilities, and elementary mobility and communication,” Judge Stephen Reinhardt said in the 3-0 ruling.

The ruling is important because “the state is contracting out more and more” of its prisoners to local agencies, said Michael Bien, a lawyer for the inmates.

He said the court action was not aimed at requiring the state to provide wheelchairs, sign-language interpreters and other assistance to disabled jail inmates, but instead at ordering state prison and parole officials to notify counties about the inmates and their needs.

A recurring motif throughout this crisis has been the relegation of state responsibility to state facilities. The best example of this is the overcrowding crisis, which according to Governor Schwarzenegger’s plan would be remedied, in part, by reclassifying offenses so that inmates would be incarcerated in county, rather than state, facilities. This modest success for the plaintiffs, requiring state actors to be in contact with county facilities, may be one of the first examples of cooperation. Since only joint action will eventually lead to decrowding, it is a step in the right direction.

LWOP Reconsideration Bill Rejected

A few days ago we reported on Leland Yee’s Senate bill aimed at allowing juveniles sentenced to life without parole to ask the court to reconsider their sentences. Yesterday, the bill was rejected by the Assembly. A motion was made by Assemblymember Fuentes to reconsider, so this may resurface again. The rejection is regrettable, given the fact that this would not be a sweeping change and would enable relief in cases of severe injustice.

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props to Janet Gray for alerting me to this.

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.

Judicial Discretion to Alter Sentences of Lifer Juveniles?

The ball that initiated its roll after Roper v. Simmons, the case abolishing the death penalty for juveniles, continues rolling. More recently, the Supreme Court ruled in Graham v. Florida that Life Without Parole for juveniles was constitutionally appropriate only for murder. And now, a new Senate bill aims at providing the court with the possibility to reconsider sentences of juveniles sent to Life Without Parole.

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 aprisoner’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 ageat 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 recalland 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 defendant’s statement is true, as specified. The bill would apply retroactively, as specified.

The Chron adds some details:

Opponents, including the California District Attorneys Association and the Assembly Republican Caucus, flatly reject those contentions. They argue that the current system works and that only the “worst of the worst” are eligible for life without parole now.

Scott Thorpe, the association’s CEO, noted that juveniles are considered for lifetime sentences if they are tried as adults.

“We’re talking about the most serious types of crimes, and we’re also talking about defendants who, because of a number of factors, have been determined to deserve at least eligibility for that punishment. We’re talking about first-degree murderers,” he said.

Supporters, however, say juveniles are different from adults and should be treated as such. They are more likely to be influenced by other people and don’t have the same ability to grasp foresight and consequences, said Yee, a child psychologist. And, he said, their brains are still developing, giving them a larger capacity for rehabilitation than adults.

“We’re letting prisoners out because of overcrowding – ought we not at least look at children and see if they are deserving to be let out?” Yee asked.

Elizabeth Calvin of Human Rights Watch and other supporters also argued that juveniles tend to receive harsher sentences than adults for the same crimes, because they are less likely to agree to plea deals, don’t always understand their rights or refuse to accept responsibility if they were present for, but did not actually commit, a murder.

Senator Yee has been attentive to issue of juvenile justice. Another bill he authored aims at providing institutionalized juveniles with treatment for substance abuse.

Congress Moves to Reduce Crack/Powder Cocaine Disparity

CCC peeks in from a short summer vacation to inform you of news regarding the well-known, and widely-protested, sentencing disparity between crack and powder cocaine. The New York Times reports:

Under the current law, adopted in 1986 after a surge in crack cocaine smoking and drug-related killings, someone convicted in federal court of possession of five grams of crack must be sentenced to at least five years in prison, and possession of 10 grams requires a 10-year minimum sentence. With powder cocaine, the threshold amounts for those mandatory sentences are 100 times as high.

In the bill passed Wednesday, the amount of crack that would invoke a five-year minimum sentence is raised to 28 grams, said to be roughly the amount a dealer might carry, and for a 10-year sentence, 280 grams.

While crack use has declined since the 1980s, arrests remain common, and some 80 percent of those convicted on crack charges in recent years have been black. A growing number of criminologists have concluded that the sentencing disparity is unjustified and has subjected tens of thousands of blacks to lengthy prison terms while offering more lenient punishment to users and sellers of powder cocaine, who are more often white.
Some points of interest:
  • While a large number of experts expressed serious doubts about the justification of the disparity, there were some who argued the much higher sentences for crack cocaine were justified due to the effects of the drug and its addictive qualities, and were not necessarily a proxy for race.
  • This new development, while a welcome one, is not necessarily a surprising one. In 2007, the Supreme Court decided Kimbrough v. United States, which allowed judges to depart from the advisory federal sentencing guidelines, even if the reason they cited was disagreement with the cocaine/crack disparity.
  • Part of this change may be explained through fads and fashions; as the NYT article mentions, crack usage is on the decline, and it is easier to move forward with such an initiative with a drug that is less of an enforcement priority than it used to be.
  • Note the humonetarian bend in the justification for the legislative change: Shorter prison sentences mean savings.
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Props to Laura Beth Nielsen for alerting me to this.