Drug Court Humonetarianism

Reuters has a fascinating article here on drug courts, empathy, and the monetization of humanitarianism. The author discusses shifting economic priorities in the war on drugs.

Contextually, it begins with Judge Gorsalitz’s drug court in Kalamazoo, MI. The writer’s title, “America’s new touchy-feely war on drugs,” and tone suggest amusement or even contempt for the drug-court approach, but then the litany of drug war harms and legalization benefits belies a different understanding.

The piece favors Judge Aim’s Project Hope in Hawaii, which saves money by making drug treatment voluntary not mandatory, and uses penalties of short jail stays instead of reinstating full sentences. Of course, here in the City&County of SF we have Judge Albers’s Community Justice Center — for its drug court context see Prof. Aviram’s post here.

State Plan a Mix of Releases and Correctional Expansion

I’ve just finished going over the CDCR population reduction plan in all its more-than-100 page glory (including the depositions). For those who rejoiced in the original August order to reduce population, the plan will be a disappointment; but even those who found the panel’s reasoning problematic will find little cause for rejoice.

Here are the essentials: The state stands behind the measures it proposed previously, in the noncompliant plan submitted September 18. Those included credit enhancements for good behavior, a certain quota of inmates housed in out-of-state facilities, more reliance on community corrections, sentence commutation, and parole reform (including the recently approved summary parole for nonviolent offenders).

In addition, the state proposes to seek changes to legislation that impedes broader use of the out-of-state option, privatization, shifting jurisdiction to county jails, and accelerated construction of prisons. It does so while expressing doubts about the federal panel’s authority to require violation of state laws; according to the state, therefore, these measures are necessary to bring the plan to the 137.5% reduction level.

The depositions provide concrete numbers regarding the reduction rates.

Jay Atkinson (Chief of Offender Information Services Branch) estimates that the California Community Corrections Performance Incentives Act of 2009 generates a system of rewards for probation success. Implementing it will achieve an approximate reduction of 1,915 inmates. In addition, releases based on good behavior credits will yield 2,921 reduction; raising the threshold of grand theft from $400 to $950 will yield a 2,152 reduction; and programs for alternative custody for low-risk offenders will achieve a 4,800 reduction. My summary: 11,788 total reductions. Atkinson cannot provide estimates for the reductions resulting from parole reform, but those may yield additional reductions.

Scott Kernan (Undersecretary of Operations) states that, by approximately January 2011, CDCR anticipates housing a total of 10,468 inmates at out-of-state facilities. In addition, it will push to remove an existing clause that mandates termination of the out-of-state program. Changing this clause will allow the state to expand its out-of-state program by 1,500 beds by December 31, 2011. In addition, the state plans to pursue privatization options more aggressively (the out-of-state options themselves are privatized.) Contracting with private facilities will provide an additional 5,000 beds for inmates removed from state institutions. Finally, CDCR will engage in a complicated game of musical chairs, which will involve shifting inmates around, switching between male and female inmates in some institutions, closing down 3 male facilities, and creating more community correctional facilities. This option will yield no more than a 800 inmate reduction. Total seems to be 17,768. Combining the two statements, the grand total seems to be a 29,556 reduction.

I haven’t checked up the math on the additional 10,000 reduction, but the plan suggests that this will be achieved through a combination of programs: commutation sentences, changes in juvenile facilities, and other measures that were mentioned in the original plan.

***

As can be seen by these two contrasting depositions, the state is pursuing two “prongs” of overcrowding solutions: the type that the court wished to encourage – namely, early releases, parole reform, and sentencing reform – and the type that the court will be very disappointed in, such as increasing prison construction and shipping more inmates out of state. Interestingly, these measures are predicted to yield more reductions than shuffling people within the existing incarceration options. The plan has, therefore, a bit of a “split personality”. Some of it expands the penal monster and some of it works to decrease it (in the spirit of humonetarianism.) I assume the court will be rather dismayed by this. Leaving the reduction methods up to the state opened the door for the state to cling to the old solutions of expansion, contraction, and exporting Californians to other states; but since the panel was convened for the sole purpose of solving the problem of constitutional violations in health care, its ability to have a general say regarding the system’s size is rather limited.

***

There is another issue which, while not directly yielding reductions, merits attention. At the panel’s request, the remaining depositions describe the impact of cuts to rehabilitative programs on prison conditions.

Sharon Aungst (Chief Deputy Secretary of the Division of Correctional Health Care) states that the decrowding will not improve treatment for the mentally ill, but the cuts in rehabilitative programs will have an adverse effect on weekly activities for mentally ill patients.

Robert Ambroselli (Acting Director, Division of Adult Parole Operations) estimates that the parole sites and programs have served a combined 18, 449 people, though some of these may be repetitive (enrolled in more than one programs). The expected $41,000,000 reduction in operational budget will lead to delays in finalizing and activating new sites.

Finally, Elizabeth Siggins (Acting Chief Deputy Secretary for Adult Programs) states that the budget cuts will lead to a significant reduction in treatment slots. 4,633 inmates (a 5000 reduction) will be benefitting from community-based aftercare treatment. Substance abuse programs will be available to 1588 inmates (4000 reduction). There will not be changes to in-custody drug treatment, the parolee service network (serving 863 inmates) and the female offender treatment and employment program (serving 412 inmates). 80,000 parolees will be getting employment opportunities through California New Start.

***

These are grim news indeed. It would appear that, over the next few years, possible gains with regard to health care will be offset by losses in terms of rehabilitative programs. The panel’s program to reform California prisons through the opportunity to intervene in health care seems to have been frustrated by the methods adopted by the state.

A final thing to remember is that the state’s plan is not to be construed as abandonment of its appeal to the Supreme Court. The state consistently repeats, throughout its legal documentation, the right to appeal the order, which it still maintains is erroneous. Given the particulars of the current plan, it remains to be seen whether the Supreme Court will see the panel’s attempt to fix the health care system in a favorable light. It is a sober reminder, though, that judicial review of state institutions is an imperfect and limited solution, and while it has the ability to change policies and practices in ways that are impossible through legislative and administrative channels, its narrow, case-by-case focus may have unpredictable, and disappointing, outcomes.

Sentencing Commission to re-evaluate mandatory minimums

Today’s Wall Street Journal points out that October’s National Defense Authorization Act tasks the U.S. Sentencing Commission with reviewing federal mandatory minimum sentencing. Mandatory minimums, which remove judicial discretion in sentencing, are almost always for drug crimes, and have greatly contributed to the explosion in the federal prison population. This is the first issue I’ve seen the Fraternal Order of Police take a position aligned with Families Against Mandatory Minimums.

When I moved to California from Rhode Island, it had the highest unemployment rate of any state besides Michigan, making sentencing reform a high economic priority. Sure enough, this year the RI General Assembly voted to eliminate mandatory minimum sentencing for drug possession. The state legislature also decided not to return probationers to prison for violations other than the crime of which they were originally convicted. These changes, at the federal and California state level, would take a big chunk out of our corrections crisis.

Book Review: Smart on Crime by Kamala Harris

Kamala Harris’ new book, Smart on Crime: A Career Prosecutor’s Plan to Make Us Safer, written with Joan O’C Hamilton, is a refreshing book on prosecutorial practices, and on the need to disengage law enforcement from practices of severe sentencing and mass incarceration.

In the book, Harris, who is the San Francisco District Attorney, and running for Attorney General, speaks up about her prosecutorial philosophy, but also discusses more broadly America’s criminal justice priorities.

The book opens with an examination of several “myths about crime”. Harris seeks to situate the crime debate outside the partisan lines, pointing out that there is an alternative transceding the “tough/soft on crime” dichotomy. She also debunks the idea that there are no alternatives to current correctional techniques by examining a series of innovative reentry programs. The novelty of this account lies in the fact that these programs are sponsored by law enforcement – prosecution offices and sheriff’s offices.

While Harris treats crime and victimization very seriously, she emphasizes the fact that violent and sensational crime constitutes a small percentage of the entire crime picture. The universe of nonviolent offenders, who are not as much of a danger to society, will not be properly handled using lengthy prison sentences, which contribute to recidivism.

Harris suggests an expansion of the traditional prosecutor’s role, arguing for including reentry projects and community involvment in the scope of prosecutorial responsibility. One issue in particular that she highlights is the need to address school truancy. As Harris explains in the book, she sees truancy as a major predictor of a criminal career, and therefore believes that addressing education, and making sure children are not truants, will go a long way toward preventing crime in the long run. The District Attorney’s office’s efforts in this regard have already yielded a decline in truancy rates in San Francisco. Nevertheless, the question is whether criminalizing the truants’ parents is a truly effective measure in reducing crime. In adopting this measure, Harris may have fallen into the same trap she warns us about in the book – focusing on criminalization rather than on problem solving.

The book is meant for popular readership, and much of the rhetoric (including examples of violent, dangerous offenders whom Harris has helped remove from the streets) will soothe readers who are concerned about violent crime and victimization. These sections do not read as a fake attempt to placate the masses so that a “soft on crime” agenda will remain unnoticed. As a prosecutor, Harris comes off as committed to law enforcement and genuine in her belief that some offenders need to be removed from society for a long time. It is precisely this genuine perspective that lends credibility to her “smart on crime” argument, which comes from a concern for public safety in the broader sense rather than from pity. This decidedly not-soft-on-crime stance is enhanced by Harris’ humonetarian arguments for her “smart on crime” solution, which is advocated as a means to save money as well as achieve more public safety.

Prison scholars and inmate rights’ activists who read the book may be concerned that Harris does not go far enough. I do not see this as a shortcoming in the book. Harris is a prosecutor and she writes from a prosecutor’s perspective. Even under a more benign, less punitive correctional regime, law enforcement officials and prison activists will not see eye to eye. The important thing is that this book opens the door for open minded prosecutors to transcend the government/offender divide, and more importantly, the right/left divide, and to agree on general solutions, the most promising of which is a focus on reentry programs such as San Francisco’s Back on Track program. This program, which uses deferred entry of judgment as a “test period”, under the D.A.’s office supervision, combined with vocational skills, jobs, and other support, is advocated as a method to reduce recidivism rates.

You can find more information about the book on Kamala Harris’ website.

CA pot arrest increases beat national average

Today’s SF Chron has a story on page C-4 about Dr. Jon Gettman‘s new report on Marijuana Arrests in the US. Marijuana arrests from 2003-2007 increased nationally by less than 3% annually, but in California increased by over 5% per year. Also, Californian African Americans are now arrested for marijuana possession at a rate of 270% over Caucasians, versus about 75% nationally.

Gettman concludes that the overall national marijuana arrest rate (between 3%-6%) is too insignificant to deter crime. So what public policy goal is served by using my tax dollars on incarceration?

Netherlands Closing Prisons

The Netherlands is closing 8 prisons, eliminating 1,200 corrections jobs — http://www.nrc.nl/international/article2246821.ece/Netherlands_to_close_pris — due to declining crime rates(!) and the economic crisis.

If crime continues to decline, the nation will have to choose between closing even more prisons, versus housing imported Belgian prisoners. California is to Belgium as Arizona is to the Netherlands?!

Letters from Sanctuary City: More on the Federal-State Divide

Regular readers may recall our invitation to stay tuned for the San Francisco Board of Supervisors’ decision regarding the city’s “Sanctuary City” policy. The bill, initiated by Supervisor David Campos, consists of an amendment to the San Francisco Administrative Code, chapter 12H. The amended section now reads:

SEC. 12H.1. CITY AND COUNTY OF REFUGE.
It is hereby affirmed that the City and County of San Francisco is a City and County of Refuge.

SEC. 12H.2. USE OF CITY FUNDS PROHIBITED.
No department, agency, commission, officer or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of federal immigration law or to gather or disseminate information regarding the immigration status of individuals in the City and County of San Francisco unless such assistance is required by federal or State statute, regulation or court decision. The prohibition set forth in this Chapter shall include, but shall not be limited to:

(a) Assisting or cooperating, in one’s official capacity, with any Immigration and Naturalization Service (INS) investigation, detention, or arrest procedures, public or clandestine, relating to alleged violations of the civil provisions of the federal immigration law.

(b) Assisting or cooperating, in one’s official capacity, with any investigation, surveillance or gathering of information conducted by foreign governments, except for cooperation related to an alleged violation of City and County, State or federal criminal laws.

(c) Requesting information about, or disseminating information regarding, the immigration status of any individual, or conditioning the provision of services or benefits by the City and County of San Francisco upon immigration status, except as required by federal or State statute or regulation, City and County public assistance criteria, or court decision.

(d) Including on any application, questionnaire or interview form used in relation to benefits, services or opportunities provided by the City and County of San Francisco any question regarding immigration status other than those required by federal or State statute, regulation or court decision. Any such questions existing or being used by the City and County at the time this Chapter is adopted shall be deleted within sixty days of the adoption of this Chapter.

The Board of Supervisors meeting agenda illuminates the intent behind the amendment:

Ordinance amending the San Francisco Administrative Code by amending Sections 12H.2, 12H.2-1, and 12H.3 to allow City law enforcement officers and employees to report information regarding the immigration status of a juvenile to any state or federal agency when the juvenile has been adjudicated to be a ward of the court on the ground of felony conduct, the court makes a finding of probable cause after the District Attorney directly files felony criminal charges against the minor, or the juvenile court determines that the minor is unfit to be tried in juvenile court and the superior court makes a finding of probable cause; and to update references to the federal agency responsible for enforcing federal immigration laws.

While this is an interesting development in itself (and in relation to how the entire issue of undocumented immigrants has played in the context of overburdening the criminal justice and correctional system), it becomes particularly interesting when contrasting it with the recent news re marijuana legalization: Why, only yesterday, in a different context, we saw the federal criminal justice apparatus prepared to step away from state affairs, unless state agents were violating their own laws.

The question is, will the feds be as forgiving of undocumented immigrant delinquents as they might be of medical marijuana. Seemingly, in both situations a local entity is creating policy, through legislation, which violates federal rules. However, one indication that these are two very different matters, criminalization-wise, is Mayor Newsom’s stance on the subject. The mayor’s spokesman, Nathan Ballard, is quoted in the Chron as saying that “the Campos bill isn’t worth the paper it’s written on — it’s unenforceable and he knows that”.

Criminalization and Jurisdiction: Thoughts on the Federal-State Divide

Yesterday’s news about the policy to refrain from federal raids on medical marijuana dispensaries raise an interesting issue. One of the criteria, which according to the Department of Justice memo should be taken into account, is whether state dispensaries are violating state law. The implication, theoretically, is that prosecutors that examine dispensaries on a case-by-case basis will have to pay attention to CA procedures and potentially raid CA dispensaries when these violate CA law.

This tidbit has a few interesting implications. First, if the message is, as the memo implies, that prosecutors need to use limited resources wisely, it is unclear whether encouraging the feds to spend time and money inquiring on the (dubious and unclear) status of CA dispensary regulation is an effective use of those resources. The status of dispensaries varies from county to county and from city to city. Are the feds really expected to keep up with this?

Second, is this a message to state prosecutors to “shape up” and enforce state laws in lieu of the feds? If so, it doesn’t seem to be a very effective one.

Third, this memo seems to be in contrast of the Supreme Court’s decision in Virginia v. Moore (2008). There, the Supreme Court decided that a search incident to arrest conducted in Virginia was valid, despite the fact that the offense in question (speeding) did not allow for an arrest under Virginia law. In a 9-0 decision, the court said that constitutional review was not concerned, at all, with the prohibitions in state law, only with the question whether there was probable cause for the arrest. So, do we only care about state law when it works against the defendant?

And finally, what are the practical implications of the memo’s austere tone? Is it just to assure prosecutors that the Obama administration has no plans to legalize marijuana? Perhaps the concerns about future enforcement are unwarranted, and federal prosecutors will just get the general message, which is to back off from dispensary raids.

Click here to hear what my fabulous colleague Rory Little had to say about this this morning on KQED.

Obama and Holder: Feds to Stop Raids on Medical Marijuana Dispensaries!

Federal news that have direct bearing on Californians: The Department of Justice has sent a memo to prosecutors in the fourteen states that allow for medical marijuana dispensation, instructing them to refrain from prosecuting. Here is the original memo, which instructs prosecutors to assess marijuana cases on a case-by-case basis, and to prosecute only when there are sales to minors, firearms, violence, ties to organized crime, excessive amounts of marijuana or sales of other drugs.

The NYT reports:

The politics swirling around marijuana cross ideological lines. For instance, in effectively deferring to the states on some issues involving marijuana, the Obama administration is taking what could be seen as a states’ rights stance, more commonly associated with conservatives. That was a theme that echoed on many conservative and libertarian Internet sites in the wake of Monday’s announcement.

BREAKING NEWS – New Budget Plan: Less Felonies, Less Inmates, Less Parole

The Chron reports on the Governor’s plan for corrections cuts, which includes changing the definition of some offenses, charging wobblers as misdemeanors, moving undocumented immigrants to the hands of the Feds, and narrowing the scope of parole. This plan will reduce the CA prison population by 27,000 inmates, and is already generating much opposition from Republican politicians.

Stay tuned for more.