New Policy re Good Time Credits toward Release at CDCR: Truth, Misrepresentation, and Panic

On Friday afternoon, CDCR announced an amendment to its regulations regarding the earning of good time credits. It’s always important to pay attention to such regulations, because as Kevin Reitz, Ed Rhine, and their colleagues at the Robina Institute remind us, whether a sentence is determinate or indeterminate is a question with many moving parts and many institutional actors, including prison administrators.

The new regulations are good news, albeit modestly so. For people doing time for nonviolent felonies, the good time credits will increase from 33% to 50% credit earned. For people doing time for violent felonies, the increase will be from 20% to 33.33%. In addition, the new regulations establish a new credit, called “minimum camp credit”: those who make it to conservation camps, earn a day for each day at the camp.

Reading these plain facts doesn’t suggest much cause for alarm, does it? But someone at the Associated Press decided that injecting some inflammatory, dehumanizing language was de rigueur, so they published this article, which was originally titled “76k California violent, career felons get earlier releases.”

The article is not only inflammatory, but deeply misleading. The number of people eligible for credits is far fewer than 76,000. First, the people presumably doing time for the most serious offenses–lifers without parole and people on death row–are ineligible for the credits. Second, for all those serving life sentences with the possibility of parole, release is not automatic, but rather conditioned upon success before the parole board which, if you’ve read Yesterday’s Monsters, you know is exceedingly rare (less than 20% of applicants receive parole.) Third, anyone who is already in the parole pipeline–including people with youth offender parole dates (who have aged out of crime) and people with elderly parole dates (who have also aged out of crime)–is not eligible. Fourth, the credits will be fairly modest because the regulations are not retroactive: the new percentage will only apply to the remaining portion of the person’s sentence, effective May 1, 2021. And finally, the choice of headline highlighting “violent, career felons” produced (as far as I could see) the predictable fatuous shrieks on Twitter, I’m sure will play a role in the similarly fatuous recall campaign, and is not the sort of thing that is conducive to reasonable conversations about criminal justice reform.

The regulations are a small step in the right direction. In the last few weeks, Chad and I are noticing increases of approximately 150-200 people at CDCR, presumably intake from jails. To curb new outbreaks and prevent the next pandemic, we must keep prison population lower to offset these transfers.

BSCC Publishes Data on COVID-19 in Jails

Finally, the BSCC has published its COVID-19 data on juvenile and adult county facilities. But don’t rejoice yet: it’s very sparse. For Alameda County, Santa Rita Jail is still seeing active infections, as you see above. Thankfully, so far no cases in Alameda youth facilities, but they also report having done less than 11 cases (which could or could not mean zero tests.)

Things look grimmer, as you’d expect, in Fresno, where people in jail are suing the sheriff over inadequate prevention and treatment. Note that, to get a sense of the cumulative outbreak, you need to look at “adult outcomes” at the bottom. They report 507 cases resolved (how many of these folks were released? hospitalized? isolated? no answers.)

I’m not sure why this tool isn’t providing us with an aggregate picture for jails, like the CDCR one does, but I’m glad it at least groups jails from the same county on the same page. I would have liked to see the juvenile and adult jails on the same page. In any case, this allows me to overlay data from the L.A. Times for each county onto the situation in the jails and show how the traffic of staff and residents between the community and the institution operates. My suspicion is that, given the shorter stays in jails, we’re going to see more interactions between jails and the community. I also worry about whether some of these places are acting now as “bottlenecks” because local prisons are seeing outbreaks.

In other news, CCI and Avenal are in very bad shape, again, which indicates that we cannot assume that the outbreak truly abated there (or, for that matter, anywhere else where there’s no new infections.)

The Prefrontal Cortex Strikes Again: Bill to Raise Age for Trying Juveniles as Adults to 20

The Sac Bee reports:

A California lawmaker argues that 18- and 19-year-olds aren’t mature enough to do prison time if they break the law, and so she has submitted a bill that would treat them like juveniles.

“When teenagers make serious mistakes and commit crimes, state prison is not the answer,” said bill sponsor Sen. Nancy Skinner, D-Berkeley. “Processing teenagers through the juvenile justice system will help ensure they receive the appropriate education, counseling, treatment, and rehabilitation services necessary to achieve real public safety outcomes.”

Skinner’s proposal is the last in a series of legislative and judicial changes reflecting what I referred to, in Yesterday’s Monsters, as the “rediscovery of childhood.” Since the early 2000s, our understanding of childhood and its implications as to accountability has undergone a dramatic scientific, legal, and social transformation. Recall the miscarriage of justice depicted in Ken Burns’ documentary The Central Park Five, in which five teenagers were accused, and wrongly convicted, of assaulting Trisha Meili in New York’s Central Park in 1985 and leaving her for dead. 

Current audiences bristle at the tough prosecutorial interrogation of children, but the newspaper headlines of the day (as well as rabid ads and media appearances by a younger Donald Trump) depict the youngsters as a “wolf pack” of “superpredators.” This case was no outlier: prompted by the media frenzy over the crack epidemic,  young criminal offenders, particularly African Americans, were regularly dehumanized, their age denoting danger rather than mitigation or rehabilitative potential.

However, the early 2000s, new brain imaging technologies enabled neuroscientists discover that the prefrontal cortex, which is responsible for the ability to delay gratification, exercise emotional regulation, and resist pressure, continuously grows well into our mid-twenties,  which explains impatience and rash decisions by teenagers and adolescents.

These developments first permeated the legal field in Roper v. Simmons,  where the Supreme Court struck down the death penalty for minors as unconstitutional. The court found that juveniles to be immature and irresponsible, more vulnerable to peer pressure, and possessing a “more transitory, less fixed” character. These differences “render suspect any conclusion that a juvenile falls among the worst offenders”, and therefore, from a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” 

The decision in Roper energized petitioners serving lengthy sentences for crimes committed when they were minors, and other landmark decisions followed. In Graham v. Florida,  the Supreme Court struck down life without parole for non-homicide offenses committed by juveniles, citing similar rationales, and explaining that the aims of punishment do not support such a harsh sentence for crimes other than homicide. Subsequently, in Miller v. Alabama,  the Court invalidated, for juvenile offenders, sentencing schemes under which certain murder convictions yielded mandatory life without parole sentences, finding that such schemes “preclude a sentencer from taking account of an offender’s . . . chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. . .  And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.”

Miller did not explicitly state that it would apply retroactively, to the many inmates already serving lengthy sentences under sentencing schemes that violated Miller. One such inmate was Henry Montgomery, convicted of the murder of a police officer when he was sixteen years old; at the time Miller was decided he was already in his late fifties, still serving time in Louisiana’s notorious Angola prison. Montgomery appealed his sentence,  arguing that Miller should apply retroactively.  Under constitutional doctrine, as established in Griffith v. Kentucky and in Teague v. Lane,  defendants whose cases are final face an uphill battle in reopening their cases in light of Supreme Court landmark decisions. They must convince the court of one of the following three arguments: first, that the landmark decision does not announce a “new rule,” but merely interprets prior precedent; second, that the “new rule” is substantive, rather than procedural, in nature; or third, that the “new rule” is a “watershed rule of criminal procedure,” of such seminal importance that justice requires it to be retroactively applicable.

In Montgomery, the Supreme Court was convinced of the second argument. It found that the Miller rule, according to which mandatory life without parole schemes could not apply to juveniles, was a substantive rule—a rule that “rendered life without parole an unconstitutional penalty for a class of defendants because of their status”, and therefore should apply retroactively. The Court was less decisive about the appropriate remedy, and Justice Kennedy opined that parole hearings might be a suitable forum for raising the age argument. 

 Before the Supreme Court announced its decision in Miller, a large California campaign waged by criminal justice nonprofits and human rights organizations yielded SB 9,  which required holding a judicial resentencing hearing for all juveniles serving life without parole. Subsequently, California lawmakers also adopted SB 260,  which expanded the access to resentencing hearings to juveniles serving other extreme sentences, short of life without parole. SB 260 was later amended by SB 261, further expanding the resentencing hearings to those who were under 23 years of age when committing the crime. This amendment better reflects neuroscience developments, according to which the prefrontal cortext continues to develop well into one’s early twenties. In this respect and others, California is ahead of the rest of the nation in acknowledging the contribution of youth to crime.  A subsequent bill signed into law in 2017, SB 394, set the date for the first opportunity for a hearing by a minor at 24 years of incarceration.   All of these developments, particularly in CA, explain the logic behind Skinner’s proposal.

As an aside, because Yesterday’s Monsters is about parole hearings, I’ll say that these developments did, eventually, find their way into the parole hearing room with the parole grant recommendation for Leslie van Houten in 2016, in which the Board anchored its decision in the new understanding of youth:

Your choices that you made in your life at an early age based on the belief system that the family was over when there was a dissolution led you to a lifestyle of drugs, running away, unplanned pregnancy, the abortion, anti-establishment philosophy of the times. You exhibited these hallmarks of youth at the time of the crime as compared to adults, lack of maturity, underdeveloped sense of responsibility, leading a reckless, impulsive lifestyle. So that was 261. That was what the Supreme Court has ruled on, and that is on point with the case factors we see before the Panel here today, so the great weight played a role. Your age played a role.  


 It remains to be seen whether attention to youth significantly reforms the parole process. Recently, Beth Schwartzapfel observed that parole boards find ways to thwart the Court’s decision in Montgomery, arguing that long-term inmates who committed their crimes at a young age have not yet developed “insight.” The outcome is “a wave of lawsuits from those who claim parole officials are undermining their new constitutional obligations.” 

This is especially true in California, where political considerations might lead the Governor to reverse release recommendations, thus retaining political good will and protecting the gubernatorial office from public backlash. Notably, Governor Brown reversed the Board’s recommendation and denied Van Houten’s parole.

Nevertheless, it is telling that the Board—albeit more politically insulated than the Governor—felt comfortable recommending the release of a high-profile inmate on the basis of age, a fact widely known from the time the crime was committed but only recently considered. This development bodes well for other inmates, and specifically for members of the Manson “family,” whose young age was a deciding factor in their involvement with Manson in the first place. 

Which Juveniles May Be Tried As Adults? CA Supreme Court to Decide

A legislative clash regarding the prosecution of juveniles in adult courts has reached the California Supreme Court. Bob Egelko of the Chron reports:

At issue is whether youths under 16 must be tried in juvenile court, where the maximum sentence is until age 25, or can be sent to adult court and face lengthy prison sentences, including life terms for murder. 

A 2000 ballot measure allowed California prosecutors on their own to charge 14-year-olds as adults for serious crimes. Proposition 57, a state constitutional amendment passed by the voters in November 2016, required prosecutors to request such transfers from a juvenile court judge, who would consider the youth’s history and potential for rehabilitation and the nature of the charges before deciding whether to send the case to adult court. 

The new law, SB1391, passed by the Legislature last year and in effect since January, prohibits adult court prosecution for anyone younger than 16. Prosecutors have challenged the law, arguing that it conflicts with Prop. 57, but four appellate courts had upheld the law before Monday.

To put things in context: Both SB1391 and Prop. 57 aimed to do the same thing – scale back the ridiculous appetite for prosecuting juveniles in adult courts. To put things into perspective, this is a backlash against the “direct filing” policy enacted in 2000, under which the decision to prosecute a juvenile as an adult lay exclusively with prosecutors. Keep in mind that this was five years before the Supreme Court decided Roper v. Simmons, in which they relied on neuroscience and developmental psychology to “rediscover” what we forgot throughout the 1980s and 1990s: children are different than adults, and the prefrontal cortex, which allows for delayed gratification, consideration of consequences, and empathy, continues to grow and develop well into a person’s twenties. As we are reeling from the characterization of children as “superpredators” or “sociopaths”, especially in the racialized context of the crackdown on crack, we are trying to fix things.

The problem is that these two laudable propositions are trying to do things that could be interpreted as at odds with each other. Under Prop 57, the discretion in trying juveniles as adults shifted from prosecutors to judges; under SB1391, juveniles under 16 cannot be tried in adult courts at all. Prosecutors, who are losing ground under both propositions, argue that SB1391 prevents them from presenting the case of, say, a 15-year-old boy at a hearing to determine where to try him.

My hope is that the Supreme Court will rule that these propositions are not actually at odds with each other. SB1391 sets a firm limit of 16 for adult courts; within this firm limit, juveniles–people aged 16 and 17–go through a hearing to determine whether they should be tried as adults. In that sense there is no contradiction. If the Court does find a contradiction, I hope they will resolve it in a similar fashion.

Today in the Senate: Abolishing Solitary for Juveniles?

SB 61, proposed by Leland Yee and scheduled to be voted on today in the Senate, aims at abolishing solitary confinement for juvenile inmates, except for periods not exceeding 24 hours in severe cases and for therapeutic assessment purposes. Let’s all hope it will pass!