Less Gubernatorial Interference with Parole For Lifers Under Brown

More this morning from the Chron on the Era of Jerry: Governor Brown interferes with parole board recommendations of parole for lifers much less than his predecessor.

Brown has reviewed 130 decisions by the Board of Parole Hearings granting release to murderers sentenced to life with possible parole and has approved 106, or 81 percent, according to the governor’s office. He has vetoed 22 paroles and sent two back to the board for new hearings.

In comparison, former Gov. Arnold Schwarzenegger approved about 30 percent of lifers’ paroles. Former Gov. Gray Davis – who declared early in his term that “if you take someone else’s life, forget it” – vetoed 98 percent of murderers’ parole cases he considered.

Now, here’s the nice bit, in which happily, facts somewhat trump the fear-mongering public-safety rhetoric:

For those who see crime as the overriding issue, Brown said, state records show that only a small fraction of the 900 life-sentenced prisoners paroled in the past 15 years have committed new crimes, compared with nearly 70 percent of other parolees.

Of course, even these cited statistics are presented in an inaccurate manner: The 70 percent non-lifer recidivists are, for the most part, parole violators, so their recidivism reflects not so much a return to a criminal career as the type of conditions they are subject to after release. A new report from Pew contains data that is sensitive to this breakdown. In 2004, for example, California’s 58% recidivism rate was comprise of 40% parole violators and only 18% commissions of new crimes. And, as the report states,

[i]n some states, released offenders who break the rules of their supervision are routinely punished with a short prison stay. California, for example, has for years taken this route, an approach that has helped to keep its prison population the highest in the nation.

Setting aside this misleading slant on recidivism rates, it is still refreshing to see Brown’s administration paying attention to lifers’ low recidivism rates without apologetic or panic-generating rhetoric. The low recidivism rates of lifers can be attributed to age as well as to the type of crime (murder does not tend to be an offense that generates recidivism.)

Numbers of Parolees at Large: An Exercise in Data Presentation

(image courtesy CDCR website)

The CDCR website features a story about the Division of Adult Parole Operations’ success in bringing about a decline in the numbers of parole absconders in California since the formation of the new Parole Apprehension Team. That, in itself, could be good news (provided that these people should’ve been under parole supervision in the first place). We’ll set aside for the moment the heftier discussion of the growing resemblance between parole operations and policing, and the erosion of the concept of parole as an instrument of hope (read Mona Lynch‘s terrific ethnography of parole agents for more insight on this mentality). We’ll also set aside the question whether reporting a decline in absolute numbers makes sense in an era of supposed parole reform, a regime that ostensibly should focus on high risk parolees and thus produce less parolees in the first place. And we’ll even set aside the question of how many of these apprehended absconders were the high risk, violent, dangerous parolees that the public should really be concerned about (hint: the answer is “not many”, as many of the absconders are GPS noncompliant sex offenders, whose recidivism rates are among the lowest). Instead, I challenge my readers to take a look at this graph from the story and come up with at least three different faulty things in the data presentation.

Panel on Isolation Units

Almost once a week I receive mail from inmates or family members concerning the solitary confinement conditions at the SHU unit in Pelican Bay. We have previously blogged about the discontents of solitary confinement and behavioral modification here and here. Now, the Center for Constitutional Rights is organizing an upcoming panel about the conditions in isolation units.

Where: The Women’s Building, Audre Lorde Room, 3543 18th Street #8, San Francisco, CA
When: Tuesday, April 5, 6:30pm-8:00pm
  • Dr. Terry Kupers, M.D.
  • Alexis Agathocleous, Staff Attorney with the Center for Constitutional Rights
  • Zahra Baloo, Executive Director, Council on American-Islamic Relations (CAIR)-San Francisco Bay Area
  • Keramet Reiter, JD, PhD Candidate Berkeley Law

“We Don’t Want Another Garrido”

The Sac Bee reports:

[Newly formed law enforcement teams] are designed to apprehend parolees who have become fugitives or are otherwise violating terms of their release.

“We’re going to look over the fences. We don’t want another Garrido,” Greg Shuman, who supervises a Sacramento-based California Parole Apprehension Team, told agents heading out for one sweep. “It’s no-tolerance. Anything, any violation, they’re going to jail.”

Five teams were created this year in different parts of California, while five more will start in January.

Money to fund them comes from savings created by a law that took effect this year. That law eliminated parole supervision for thousands of ex-convicts, some of whom served time for serious crimes.

It allows agents to focus on the parolees that state corrections officials consider the greatest risk to the public. Supervising fewer people lets agents concentrate their attention on sex offenders, gang members and violent criminals, said Robert Ambroselli, who heads the Department of Corrections and Rehabilitation’s adult parole division.

The move to use budget savings from early release to target high-risk offenders is, of course, a sensible one. But are these folks high-risk offenders? The article mentions that 480 out of the 900 parole violators who have been arrested recently are sex offenders, which, according to CDCR’s own recidivism report, are the lowest risk group among released inmates. That is, if one does not count parole violations. Whether any risk has been prevented by a registered sex offender’s arrest would depend on whether the parole violation that led to the arrest is, indeed, a crime in its own right, or some technical violation.

This surge in law enforcement energy might explain the following curious story that appeared this week in the San Jose Mercury News:

Lawrence Joseph Brown, 52, was taken back into custody in Tustin just 30 miles from the California Institution for Men in Chino.

“We had investigators following him, and he was in a car with a woman,” a violation of a stipulation of his parole, Orange County District Attorney Tony Rackauckas told The Associated Press in a phone interview.

The woman was Ruby Huggler, a woman Brown had stayed with during a brief parole earlier this year, and Rackauckas said he believed she picked him up from the prison.

This week I showed my students Fritz Lang’s 1931 masterpiece M. In one of the movie’s best scenes, Lorre, a child murderer and sex offender, is apprehended by the mafia, and “tried” by a kangaroo court trying to decide whether to execute him or hand him over to official law enforcement. His speech, and their reactions to it, is truly fascinating, and goes to the heart of the question here–do we believe that these offenses come from evil, or from disease, or both. Our persecution of released sex offenders seems to suggest the latter; we rearrest them because we are concerned about compulsion. A student of mine once called this unique perception of guilt “culpable sickness”. Feeding our fears of the unknown and unexplainable is important, but it is more important to deal with actual recidivism than with imagined and feared recidivism. I hope we are, indeed, preventing dangerous and risky reoffending by directing our energy toward these released offenders, rather than merely substituting one form of oppressive and wasteful enforcement with another.

Risk Management: Psychological Evaluation of Parolees

The public concern with risk and dangerousness in the context of release always sparks lively debates, much of which focus on the management and containment of sex offenders. It is therefore curious that two recent new items, relating to release practices, have retained relatively low profiles.

The first one is related to psychological evaluation of parolees. Part and parcel of the release of any California inmate is a psychological risk assessment. However, no such risk assessments were required for federal or out-of-state parolees who then served their parole in California. Jaycee Lee Dugard’s kidnapping by Philip Garrido, who served time in Nevada before being a California parolee, was the inspiration for this bill, whose full text is here.

This bill would require the Department of Corrections and Rehabilitation to assess every person on parole transferred from any other state or by the federal government to this state who has been, or is hereafter convicted in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would require the person to register as a sex offender, as specified. The bill would specify that this assessment shall occur no later than 60 days after a determination by the Department of Justice that the person is required to register as a sex offender, as specified. The bill would revise the definition of “eligible person” for the purpose in the paragraph above to include all persons required to register as sex offenders pursuant to the Sex Offender Registration Act.

I wonder if this legislation (which, in itself, is fairly sensible, depending on the reliability of the risk assessment tool) would have really prevented Dugard’s kidnapping. The answer to that lies not only in conditions for release, but also with the indicia of dangerousness and rehabilitation that parole agents later look for. Would a man with a steady job, a house, and a seemingly functional family drawn any attention? Would his deep pathologies have revealed themselves through the risk assessment tool? These are very hard questions to answer.

In other (not unrelated) news, Cathleen Gagliani, a Democrat assemblywoman from Stockton, has approached Gov. Schwarzenegger to help prevent the release of Loren Herzog, convicted for multiple murders. More on why this is somewhat of an outlier case from the Sac Bee:

In a letter to Schwarzenegger this week, Galgiani asks the Republican governor to “intervene and request a clinical review and risk assessment of Loren Herzog’s mental status” in an attempt to keep him incarcerated as a sexually violent predator.

Under state law, a judge can order a sexually violent predator incarcerated for an additional two-year period, with review once that stint ends, if the person is found by two psychiatrists or psychologists to have a mental disorder that makes reoffending likely.

Galgiani wants Schwarzenegger to target Herzog for such a mental evaluation before his release, saying in her letter that “I believe that Loren Herzog will be found to likely reoffend.”

One potential obstacle for Galgiani is that the law permitting continued incarceration of sexually violent predators, beyond their parole date, targets those who have been convicted of sex offenses against two or more victims.

Though Herzog pleaded to voluntary manslaughter, Galgiani said in her letter that he was “believed to have been a participant in two rapes” and that “two women testified against Shermantine and Herzog for alleged rapes they never pressed charges for.”

This raises another big issue, namely, that of the extent to which we rely on convictions as a record of the “truth”. As many of our readers probably know, the vast majority of criminal cases end in plea bargains, in which defendants plead to more lenient charges than those originally pressed in return for a predictable sentence. It is problematic to rely on these records as a genuine expression of what the defendant is believed to have done, but it is also very problematic to assume the opposite, given the prosecutorial incentives to overcharge for the purpose of bargaining. So, when assessing Herzog’s dangerousness, do we take into account only the offenses he was convicted of, or also those for which there was evidence but not charges?

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.

Oral Arguments Re: Prop 9 in 9th Circuit

Yesterday morning the Ninth Circuit heard oral arguments in Gilman v. Schwarzenegger. As some of our readers may recall, petitioners challenged the changes made in Prop 9 to the parole hearings, and in particular the deferrals in holding parole hearings. The District Court, after finding out some statistical information about the timing of hearings before and after Prop 9, ruled on behalf of the plaintiffs. The Governor appealed, and the Ninth Circuit will regard the arguments as pertaining not only to the specific prospective parolees, but to the entire class of parolees as well.
The main premises of the Prop 9 changes to parole hearings are outlined in this excellent memo from the Prison Law Office. As the memo explains, Prop 9, marketed as a victim rights proposition, actually made substantial changes to the way parole hearings are conducted. The topic of yesterday’s arguments was the provision lengthening the time before an inmate is eligible for a parole hearing.
In the arguments yesterday, the Judges asked whether it made a difference that the new law has a “safety valve”, that is, a provision that allows for an expedited hearing at the parole board’s discretion. The governor’s representative replied in the affirmative. According to the state, the existence of the safety valve rules out any sort of statistical confidence that a given inmate would be necessarily worse off by the Prop 9 provisions. After all, a given inmate might receive an expedited hearing and be released faster than he or she would under the old law. The attorney, however, left open the possibility that statistical evidence to the contrary might be provided in the years to come. Another problem the judges had was related to the fact that in other cases in which such “safety valves” left the law intact, the default was serving the minimum sentence, whereas after Prop 9 the default is serving the maximum, unless the expedited review is provided.
The representative for the original plaintiffs did not think that the “safety valve” rules out the possibility to argue that, as a class, inmates are worse off after Prop 9. First, the ex-post-facto review the court has to pursue is irrespective of any “safety valves”, as other cases prove. And second, the terms are very problematic. Expedited review is an option only if there are new circumstances or a significant change, and it is a complicated request to make, paperwork-wise and timewise. An interesting question was whether expedited reviews should only be available if circumstances change, given the fact that different panels might rule differently on the fate of a given inmate.
We will follow the litigation and report on the results. Stay tuned!
The full oral arguments can be heard here.

More from SCOTUS: Congress May Impose Civil Commitment on Mentally-Ill, Dangerous Sex Offenders

The other big SCOTUS decision to come out today is United States v. Comstock. It is a federal case, but it has important implications for state law and for federal-state relationships.

The law in question is 18 U. S. C. §4248, which authorizes a federal district court to order the civil commitment of an offender beyond his or her release date from prison, if the government proves that he or she:

(1) has previously “engaged or attempted to engage in sexually violent conduct or child molestation,”

(2) currently “suffers from a serious mental illness, abnormality, or disorder,”
and (3) “as a result of” that mental illness, abnormality, or disorder is “sexually dangerous to others,” in that “he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”

What happens next is an interesting exercise in jurisdictional battle. The AG is supposed to convince a state to take over treatment for the offender, and only if this is unsuccessful, the feds will commit the offender to a federal facility.

Let’s first discuss what this decision did NOT deal with. The original standard of proof by the government for civil commitment was “clear and convincing evidence”; the federal district court has decided that standard was not enough and required proof beyond a reasonable doubt. This ruling was not changed by subsequent litigation, so presumably the standard of proof now is beyond a reasonable doubt. If any federal court experts think otherwise, feel free to comment.

SCOTUS, instead, only discussed the other argument, which is that Congress has exceeded its authority under the Necessary and Proper Clause (Art. I, §8, cl. 18). In other words, as Justice Breyer says in his Opinion of the Court, it examined “whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” Breyer answers this question in the affirmative, for five reasons:

1. Congress has broad authority to legislate in many arenas not specifically mentioned in the clasue, and in this case, there is a connection between the end (protecting the public) and the means (civil commitment);
2. Congress has long been involved in the issue of mental health care for federal prisoners and civil commitment;
3. There are sound reasons for the law: protecting the public where the states fail to do so.
4. The law does not violate state sovereignty, but rather requires accommodation of state interests; the state may or may not choose to take the federal inmate under its medical wing (moreover, as Justice Kennedy adds in his concurrence in judgment, it does not intervene with the state’s ability to decide on civil commitment of its OWN inmates).
5. The law is not excessive; it applies to only a small fraction of federal prisoners who are already in federal custody.

Interestingly, both Justice Alito (who concurred in judgment) and Justices Thomas and Scalia (who dissented) expressed classic concerns about federal standards being applicable to the states and infringing upon their sovereignty. As opposed to the conservative view during the Warren Court days, in which federal standards were pro-defendant, in this case, the dissenters find it difficult to agree to a federal standard that actually generates more punitiveness.

It remains to be seen how much the feds will make use of this new power, and how much the states will acquiesce to the request to host federal inmates in state facilities at the state’s expense.

Portugal Decriminalized All Drugs; Drug Use Dropped

As of this week, it’s been one year since the Cato Institute published its land report “Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies,” authored by Glenn Greenwald. The report examines eight years of Portugal’s drug policy: decriminalization of possession of all substances.

Here in America, last week the Providence Journal (the news source of record for the state of Rhode Island) took a related stance. The editorial board called for, not decriminalization, but taxation and regulation of all substances. The editorial argues, “Even if legalization were to increase drug use, that risk is overshadowed by the benefits. Crime would drop in our streets as dealers lose their livelihood, and users don’t have to rob others to support their habit. Governments can regulate the drugs for purity and collect taxes on their sale.”

However, the Cato report found that Portugal’s total decriminalization actually led to declines both in drug usage rates and in HIV infection rates. People found in possession of drugs are sent to a panel of a psychologist, a social worker, and a legal adviser to consider treatment and rehabilitation options. For the short version, read the TIME Magazine summary. This usage decline suggests that the public safety and economic benefits of drug policy reform would not merely offset harms of any increase in drug use, but rather, represent independent public policy gains.

Management Board: Sex Offender Legislation Ineffective

Yesterday’s Chron reported, in its print edition, on an issue we have discussed elsewhere: the effectiveness of Jessica’s Law housing restrictions on recidivism.

Apparently, the California Sex Offenders Management Board has seriously critiqued the existing restrictions, pointing out several flaws in them, the most obvious one being the fact that San Francisco’s abundance of state and parks excludes sex offenders, basically, from the entire city save for Lake Merced and Hunters Point. As a result, many sex offenders live in the street, a situation that, according to Jill Levenson, leads to instability and thus might actually increase recidivism.
The article also mentions the fact that the residency requirements are not retroactively enforceable, and therefore do not apply to people placed on parole or probation before the law took effect in 2007. It does, however, apply to people imprisoned before its enactment, per the recent CA Supreme Court decision on the matter.
The challenge? Changing policies to make them more effective might be perceived as being soft on sex offenders, a position politicians can hardly afford to take regardless of their party affiliation (and therefore propose laws such as this one or this one.)
Oh, and as a special bonus: We have not discussed the San Francisco Crime Lab scandal, which does not have a direct relationship to our coverage. But as it turns out, beyond lax supervision and cocaine theft from the drug lab, evidence is also in danger from an army of feral cats. I know this is a serious matter, which raises heavy concerns about due process and about the prosecutorial enterprise in general, but I could not resist: The picture below from the Sunday Chronicle is begging for a caption.