Prop 9 To Be Examined by 9th Circuit

The Ninth Circuit is to finally examine the premises of prop 9 that led Judge Karlton at the District Court to decide they were unconstitutional. Avid followers of this saga will recall that Prop 9, marketed as a pro-victim proposition, pretty much provided victims with the rights they already had in many counties, but in addition made several modifications to parole proceedings, including placing substantial limitations upon the right to counsel. The constitutionality of these premises will be central to this upcoming hearing:


Gilman v. Schwarzenegger, 10-15471

California State government appellants challenge the district court’s grant of a preliminary injunction barring enforcement of Proposition 9, the “Victims’ Bill of Rights Act of 2008: Marsy’s Law,” which affects California’s parole system, including the availability and frequency of parole hearings.
For previous chapters of this saga, read here, here, and here.

Props to colleague Marsha Cohen for alerting us to the date.

CDCR Partners with FTB to Collect Victim Restitution

The CDCR website features a story about its initiative to collect victim restitution fees from inmates.

California Department of Corrections and Rehabilitation (CDCR) Secretary Matthew Cate today announced CDCR is on pace to set a record for collection of victim restitution orders from inmates and parolees, due to an innovative relationship with the state’s Franchise Tax Board (FTB).

California is world-leading in the collection of restitution orders on behalf of crime victims. These collections are sent to victims and survivors of crimes as restitution. The first month of CDCR’s new partnership with FTB resulted in the collection of more than $155,000 from among the 3,100 initial cases sent to FTB.

. . .

A number of reforms and changes were made since the CDCR reorganization that strengthens the Department’s responsiveness to victims and survivors of violent crimes.

The most significant change occurred earlier this year when CDCR and FTB entered into an interagency agreement which states that FTB will act as an agent for the CDCR in collection of victim restitution from adult parolees and discharged adult offenders.

The Interagency Agreement, signed in December, was spurred by the passage of AB2928 earlier in 2009. Victims suffer staggering economic costs as a result of crime. This agreement encompasses over $2 billion owed to more than 100,000 victims of crime. Crime victim compensation programs reimburse victims for part of this loss.

Yesterday, Jonathan Simon came to talk to my class about Governing Through Crime, and one of my students asked him how he saw the optimal role of the victim. An interesting discussion ensued: To what extent do we want to frame victims as passive citizens, expecting the state to act on their behalf? To what extent can we empower victims to act on their own behalf without crossing the line toward blaming them for their situation? Seems to me that, of all the victim-oriented policies, collecting restitution for them makes a lot of sense. It doesn’t raise the same concerns that punitive legislation and participation in the criminal process raise. It does, however, raise some questions: Can money really make up for crime or harm? What role does class and money play in equalizing the leveling field and righting the wrong that occurred? And, finally, would a process of restorative justice (possibly fostered by CDCR after trial is over) do more for victims than monetary compensation?

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:

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.

Kristof on Humanity

In case you missed Nicholas Kristof’s column in the 1/27/10 New York Times, it’s right here. Kristof relates statistics and instances of violence in prisons, especially sexual violence, especially in juvenile prisons, especially by prison guards. “I’ve never written about the horrors that unfold in American prisons — especially juvenile correctional facilities — on a far larger scale than at Guantánamo.”

Of course, it is a premise of this blog that our prisons are in a financial crisis. But as Kristof indirectly recognizes, sometimes the economic angle lets me temporarily forget the human angle. Rights that we can often take for granted in this country, including physical safety, are daily struggles frequently lost in our prisons. The real human costs of our failing correctional institutions are sickeningly deplorable, and prison reform will always be about more than money.

Book Review: Dreams from the Monster Factory by Sunny Schwartz with David Boodell

The constant conversations about budget, prison expenditures, and cutting programs, raise the question of cost-benefit from prison programming. Which rehabilitation enterprises are worth investing in for the long run? Which programs actually reduce recidivism to a point that makes them cost-effective for the prison system? Dreams from the Monster Factory provides some thought-provoking information about programs offered at a San Francisco jail by the Sheriff’s Department and rekindles hope in rehabilitation and re-entry programming.

The book reads as a half-personal, half-professional memoir of Sunny Schwartz, a 27-year veteran of the Sheriff’s Department, who joined the jail staff in the 1980s as part of an initiative to ad programming to the jail daily routine. Her program was rather ambitious and, in some ways, counterintuitive. Rather than creating voluntary programs, she created an ambitious study curriculum, with mandatory attendance and a dense schedule. With the collaboration of (most) of the deputies, she managed to create a series of special programs targeting women, general education and substance abuse. The most impressive part of the book, however, is Schwartz’s description of RSVP (Resolve to Stop the Violence Project), a special program involving a dorm of violent men whose reeducation away from violence instincts is based on the Manalive program. The unique aspect of RSVP is the collaboration between a variety of community advocates whom we are used to thinking of as being at odds with each other: victim organizations, religious organizations, community groups, and counseling services. The role of victims in the program is described in a particularly appreciative, sensitive way, and generates hope that some victim organizations may see beyond punitiveness to healthier paths for activism. Despite the program’s success, Schwartz does not flinch from describing the less glorious moments of this difficult and often frustrating work.
Not all readers will appreciate the book’s unique mix of professional and personal information. Schwartz delves into descriptions of events in her own personal life, including some difficult descriptions of her family and relationships. The strength of these narratives, to me, lay in creating the sense that the inmates were not “different” in any sort of substantial, deterministic way, and that all of us, who have been through life’s trials and tribulations can empathize with their challenges and frustrations. Schwartz does not come off as a “fixed”, “enlightened” prison reformer with all the answers in her pocket, but as a flawed individual who looked inward to find the strength to light a beacon of change, beckoning to the flicker of light in the soul of most of the program’s participants. This will make a good read for those interested in an insight into prison life and in thinking about the potential of programs for generating change.

Sue Dealers For Selling You Drugs?!

This is more civil justice, but so startling and intriguing I had to say something. According to the The Gadsen Times of Alabama, a state representative there has just introduced a bill that would provide a cause of action “for someone who has lost a loved one due to a drug overdose” against the dealer when “the person who sold the drug has been convicted of distribution, manufacturing an illegal drug, or other similar charge.” The proponents, parents who lost a child to an opiate drug overdose, cite deterrence as their policy motivation.

While I’m sorry for this family’s loss, this argument widely misses its target, even leading aside overarching concerns balancing free will and personal responsibility versus paternalism. As if criminal penalties, the loss of the right to liberty itself, would not deter someone who would be deterred by monetary penalties. Further, under civil asset forfeiture laws, someone already convicted of selling or manufacturing drugs is already potentially liable for basically everything they own. To return to personal responsibility, is our next step start suing alcohol producers for alcohol poisoning or drunk driving fatalities?

Prop 9 Lives: Access to Parole Suitability Hearing Content

The CDCR website reports on an implementation of one of Prop 9’s aspects: Victims, and others, will have access to an online transcript of the inmate’s parole suitability hearing before the parole board. The transcripts are emailed to the victim, free of charge, or mailed for a flat fee of $25 per transcript.

This raises understandable concerns about confidentiality, which are answered by limiting the availability of this information to registered victims. The request webpage reads:

Marsy’s Law, Penal Code section 3041.5 (a) (4) permits the victim, next of kin, members of the victim’s family, and two representatives designated by the victim to request and receive a stenographic record of all proceedings. Any persons requesting a hearing transcript must be registered and meet the criteria of a victim as identified through the Office of Victim and Survivor Rights and Services (OVSRS). Please note: You must be registered in order to have your transcript request processed.

Now, the form used to request victim services (see image) allows you to register even if you are a “concerned citizen.” However, it does limit notifications of parole hearings to victims and next of kin. It would make sense to similarly limit the ability to request a transcript. Moreover, this mechanism does not prevent forwarding the email received by victims to others.

Given the potential for wide dissemination of parole suitability hearing information, the question is: Does the public have a right to know the content of the hearing? What do you think?

Violence, Victimization, Self Defense

I have just returned from an exhilarating, terrifying, moving, transformative weekend, learning self defense at Impact Bay Area. It was an intense experience that made me think about victimization and punitiveness, and about the difference between laying blame and taking responsibility.

Much of our discussion of the overuse of prison has to do with the mammoth-scale incarceration of nonviolent offenders. The fiscal, moral, and efficiency-related arguments against a huge correctional system should not cloud the fact that, in fact, there are folks out there for whom there really is no solution beyond incapacitation. The percentages are much lower than we may be led to believe in legislation campaigns. Nevertheless, the fact that horrifying incidents are uncommon does not make them any less horrifying.
It is important to say these things, because otherwise everyone involved in debates about penology and corrections end up on both sides of a divide: pro-victim or pro-offender. This boundary is false for several reasons. Research consistently shows that victims and offenders are not mutually exclusive populations. On the individual level, as David Farrington finds, growing up in violent homes is a good predictor of later violent behavior; on the broader spatial level, crime often affects low-income neighborhoods. While overenforcement tends to disproportionately target minorities, and the poor, underenforcement (as Alexandra Natapoff argues in this law review piece) might harm and overlook the same populations.
Arguing against too much incarceration does not equal arguing that crime and violence are not real. They are real, and so is fear of crime. Where you stand on such matters is very much up to your personal conscience. I’ve come to believe that the best way to fight against violent victimization is to be prepared for it; and the best way to take care of actual and potential victims is to take real steps to ensure that they cease to be victims as fast as possible. Maybe, if victims know how to defend themselves better, there will be less victimization, and people who have been truly hurt by violent crime will not have to resort to punitive politics as a tool to cope with their horrifying experiences.
Impact Bay Area is a nonprofit organization that teaches self defense to women using a technique called “model mugging“. Participants learn basic and useful techniques to defend themselves in a myriad of possible situations and do many practice fights against padded instructors who simulate muggers and rapists. The fights are done in an adrenalized state and feel truly real and terrifying. When (not if) you prevail, you feel incredibly empowered. Since fighting is one’s last resort, the course also teaches one to effectively set boundaries against assailants, to use one’s voice and body language effectively, and, if these important measures fail, to effectively fend off attackers. Even in situations that seemed hopeless to me, it turns out there are many things one can do to continue fighting.
On a feminist level, self defense is incredibly empowering. Rather than theorizing patriarchy and male domination, self-defense transforms the classic perspective on the body (as an object of domination) to a tool of strength and wisdom in dangerous situations (if you’re into this sort of discussion, check out this fabulous piece by Martha McCaughey).
I have yet to fully process the journey I went through this weekend. I was placed in terrifying situations, in which our mock assailants did a terrific job pinning me to the ground, grabbing me by the hair, insulting me using vile words, and creating situations that I would consider hopeless before this weekend. In all these situations, I fought back and prevailed. It was fantastic, and thought-provoking, and exhilarating.
I’ve learned that several places teach effective self-defense techniques. Girl Army is another option in the Bay Area, and a short search on the internet should help you find something helpful in your area. This course should be on the curriculum of every high school or college in the world. Until that happens, educate yourself and learn what to do to protect yourself. You are worth fighting for. Go kick some ass.

Parole Documentary from Prisons Under Pressure

I have been pleasantly surprised by the CCPOA-funded documentary series Prisons Under Pressure. The series is a bit dramatic in terms of editing and presentation, and somewhat shallow in its coverage of the broader social issues, but actually provides a lot of interesting information and includes some fascinating interviews. Episode 4, which you can see here, discusses the dysfunctionalities of parole in California and examines the roots behind the success of some programs. The video includes interesting interviews with Mimi Silbert from the Delancey Street Foundation and with Harriet Salarno from Crime Victims United of California.

While the CCPOA’s political power and relationship with governors since the 1980s has been criticized by some as a major contributor to the ratcheting up of sentencing, and their involvement in funding political campaigns (such as the Three Strikes Law and the No on 5 campaign) a source of concern, I think they should be commended for funding this documentary, as well as for their public support for a sentencing commission.

Dominick Dunne and the Punitive Victim Model

Amidst the budget developments, CJC news, and other pressing events, it is worthwhile to pause for a minute and reflect on Dominick Dunne’s recent passing. Others have done a better job at discussing his life, work, and legacy as a journalist and author; I would like to spend a bit of time discussing the victim paradigm advocated by Dunne, its impact on the criminal justice system, and some lessons to be learned from the combination of society intrigue and justice administration.

In a 1999 article, Kent Roach details four models of the criminal process. He supplements the original two models provided by Herbert Packer in a classic piece with two newer ones, arguing that the original models – the crime control model and the due process model – did not account for victims and for the victimization experience. Roach proceeds to provide two versions of criminal justice that include and respect victims: the punitive and non-punitive victim models.
The punitive victim model, argues Roach, is like a rollercoaster. Fuelled by victim advocates and organizations, it features constant pressure to amend criminal provisions in punitive directions, ratcheting up sentences and generating specific regimes to deal with crimes that are prone to moral panic. Calls for victim rights are invariably accompanied by calls for changes in penal policy. A classic example of legislation in this vein is last November’s Proposition 9.
Dominick Dunne’s work was a contribution to this punitive victim perspective. His writings on celebrity trials often protested what he perceived as horrible crime going unadressed and powerful defendants escaping the system unscathed. In reporting on such cases, he may have found some peace after his horrible ordeal. But when I came across his pieces, on occasion, I have always found them incredibly sad, and have often thought whether he would have found more solace in embracing something akin to Roach’s non-punitive victim model, which consists of ways to reconcile, restore, and make amends.
There is, however, an important message to be taken from Dunne’s work, though it was never an explicit part of his writings. His pieces, it should be remembered, focused often on upper-crust socialite defendants. In highlighting the ways in which power and social advantage works to thwart the criminal process, he could have drawn a contrast between these rare cases and the cases that constitute the vast majority of courtroom caseload. We can draw these parallels ourselves, though, and contemplate the disadvantages and difficulties of those for whom the process is the punishment, rather than an inconvenience that can be resolved with financial resources.