Saying No To Tough On Crime, Yes To Sensible Prison Policy That Works

In between budget posts, I've lately been in a bit of a tiff with Chris Kelly, an Attorney General candidate and former Chief Privacy Officer at Facebook, over his stale, predictable fearmongering about potential early prison releases. There are a bunch of other estimable candidates in the Attorney General's race, one who did himself a ton of good yesterday by leading the fight against the offshore drilling proposal. So maybe I shouldn't take too much time on Kelly. But there's a short-term policy fight coming up next month to determine how to implement $1.2 billion in cuts to the corrections budget, and with some good activism and common sense we can stare down the Tough on Crime crowd and post a needed victory for sensible criminal justice policies. Therefore it's worth looking at Kelly's latest post:

The prison release plan is supposed to save $1.2 billion, but that’s just accounting trickery. In fact, a Federal Bureau of Justice Statistics study finds that nearly 70% of early-released inmates are rearrested within three years, 20% of them for violent crime. That will mean more than $3 billion in increased costs from crime while causing serious harm to hundreds of thousands of innocent victims.

I've spoken to police chiefs, law enforcement groups and civic associations throughout California about the issue, and they're deeply worried about the crime wave this scheme will unleash. It will be hard enough to make San Jose a safer community in tough economic times without the problems caused by early release.

Obviously, Kelly hasn't talked to the California Police Chiefs Association, which endorsed the plan as a smart step to begin to move away from the failed prison policies of the last thirty years. Foremost among these new ideas is the concept of targeting resources - instead of warehousing the terminally ill or blanket strict supervision on everyone released regardless of determining possibility of recidivism, we can put resources into programs that provide opportunity for prisoners to pay their debt to society and move on. This deal doesn't do all of that, but it does, for example, put ill and infirm prisoners under home detention or in a care facility, which doesn't impact public safety and saves money. It offers incentives for prisoners to complete rehabilitation plans. It reviews the cases of illegal immigrants in jails instead of just tossing them in the lap of the ICE to deal with, which would actually be the kind of misguided policy Kelly warns against. And most important, it includes an independent sentencing commission, outside of politics, which can look at our sentencing laws and make recommendations for the legislature to adopt on an up-or-down vote.

Using the buzzword of "early release" of "dangerous prisoners" is an old Tough on Crime ploy from way back, evoking memories of the Willie Horton ad in the 1988 Presidential race. It's irresponsible and not relevant to what is being discussed. We have the perfect Tough on Crime prison policy right now - and it's not working in every respect, to the extent that federal courts have stepped in to take control of it. Overcrowded prisons cannot fulfill their core mission of rehabilitating those jailed, and that's especially true where nonviolent offenders who need medical treatment for addiction and not incarceration are concerned. Brute force has not worked in making the state safer and has certainly caused our budget to skyrocket. And the truth is that more sensible policies can save money and create better prisons at the same time.

We need real reform in prison and parole policy, through concentrated resources, community corrections, and maintaining manageable prison capacity for those who really need to be there, and what will get decided in the legislature next month represents an important step. It can be easily derailed by fearmongering from the likes of Chris Kelly, trying to win an election on the backs of the poor and disenfranchised, on whom such brute-force policies typically rain down.

Over the next month I'll be looking far more closely at this issue, as it's the first big battle in regaining control of our state. And it's a winnable fight.

More Toughy Toughness From Chris Kelly

Chris Kelly, who thinks he's running for Attorney General next year, has responded to my criticism of his perpetuation of fearmongering "tough on crime" policies with an email to supporters:

The politics-as-usual crowd is attacking my opposition to the early release plan -- even saying that "Chris Kelly is making a fool out of himself" for standing up for safe California communities. Well, releasing 20,000 convicted felons early might be Sacramento's idea of prison reform, but it isn't one that will keep California safe -- and it won't save a single dollar in the process, which was the whole rationale for doing it in the first place!

I'm apparently part of the "politics-as-usual" crowd for arguing against the mentality that has produced 1,000 sentencing laws in the last thirty years that increased sentences. But some facts throughout this would help. First of all, the 20,000 number from the Governor came in part from releasing all imprisoned undocumented immigrants to Immigration and Customs Enforcement, a provision that was long ago scaled back, since ICE showed no interest in taking the responsibility, and the Governor circumscribed that proposal with so many caveats that only 1,400 of the more than 18,000 undocumented qualified. In reality, the scale of release will be lower than initially proposed. So Kelly is engaging in the familiar tactic of arguing against something that won't happen so he can post a "win" after the fact.

But the real danger of Kelly whipping up opposition to this is how it impacts any sensible sentencing or parole reform. Here, Kelly shows that he has no idea what he's talking about with respect to criminal justice policy:

Instead of protecting California communities, the politics-as-usual crowd ignores the fact that early release of more than 10% of the state prison population won't just include "terminally ill, nonviolent drug offenders and people returned to prison for the crime of technical parole violations" -- many dangerous felons will be back on the streets too.

The critics seem to have forgotten that a man with a technical parole violation shot and killed four officers in Oakland just months ago, and they also conveniently ignore that releasing 20,000 prisoners will disproportionally impact some of California's most vulnerable communities.

The ignorance of this comment is stunning. As Berkeley law professor and parole policy expert Jonathan Simon illustrated a couple months back, the Lovelle Mixon shooting was an example of what's WRONG with our parole system, not what's right. The incident has been used to raise the fear of crime and the dangers of releasing felons. What is not mentioned is that Mixon's violation of ridiculously stringent parole policy, which meant a sure trip back to jail, arguably CAUSED the shooting, as Mixon vowed not to return to prison and chose to shoot his way out of the problem. That's aberrant behavior, and using it to make any larger point about how frightening it is to release prisoners is Willie Horton-izing to the extreme. But it's a function of the extreme pressure of three years of supervisory parole on everyone who walks out of California prisons.

But unlike many other states that also eliminated early release through parole, California continued to require parole supervision in the community for all released prisoners. And that, I think, is a big part of what's broken. People are sent to California prisons for a determinate amount of time, based upon the seriousness of their crime. After they've served this sentence, it's neither justified nor effective to add up to three years of parole supervision for each and every ex-offender - without making any distinction between those whose criminal record or psychological profile suggest they'll commit a crime that will harm the community, and those who pose no such threat.

So the parole system has little real capacity to monitor and protect us from those who pose a danger of committing serious new crimes. And it exposes ex-offenders - many of whom pose little threat of committing such crimes - to the likelihood of being sent back to prison. (This is a really big problem, when you think of our prison overcrowding and our budget crisis).

Parolees are required to consent to searches of their person and property. If officers stop a car in Oakland, and somebody in that car is on parole, police have a lot of leeway to disregard normal constitutional limits on search-and-seizure authority. They can use any evidence collected in this situation against the parolee - and also, of course, can attempt to use the coercion of plea bargaining to get evidence against other people in the car.

In recent years, as many as 70 percent of those on parole in California have been sent back to prison - only a small percentage of whom have committed a new crime (14 percent in 2007); more than half were sent back for what are called "technical" parole violations. These parolees are "returned to custody" by the Board of Prison Terms, very often for conduct that would not earn them (or other California citizens) prison time in a court. Turning in a positive drug test is an example; even missing an appointment with parole staff can result in re-imprisonment.

Kelly asked his fans of the Protect California Communities Facebook cause to comment on my post about him, which has yielded a whopping 0 negative comments. Maybe that's because his Cause has attracted an almost-as-whopping 225 members, clearly a social networking firestorm rippling through the state. Actually that number wouldn't be so bad if it didn't come from a Cause promoted by THE FORMER EXECUTIVE FROM FACEBOOK. The $175 raised on Facebook shows massive Web 2.0 acumen as well.

It's also hilarious that Kelly thinks stopping release of nonviolent offenders harms public safety, not eliminating drug treatment and vocational training in prisons, or forcibly taking local government monies so they have to slash their public safety budgets, but that's for another time.

Chris Kelly: Tough On Crime FAIL

Far be it from me to agree so aggressively with my friend Steve Maviglio, but he's absolutely right that Chris Kelly is making a fool out of himself by holding to outdated and dangerous Tough on Crime rhetoric in his campaign for Attorney General. Kelly, the former Facebook chief privacy officer, has created a Cause called "Protect Our Communities." As Maviglio says, George Runner couldn't have done it better himself:

Do you think the early release of 20,000 convicted felons will solve California's budget crisis? I don't.

Please stand with me: Click here to join my new "Protect California Communities" cause on Facebook and help me build grassroots opposition to this phony budget plan!

Our state is already more than $26 billion in debt and issuing hundreds of millions more in IOUs every week.

We need innovative solutions to get out of this mess. But a plan by Governor Schwarzenegger and some in the Legislature to early release nearly 20,000 felons from state prison is not one of them.

I'm all for prison reform -- but this is surrender, not reform. Even if it would save us money -- which it won't -- putting thousands of dangerous criminals back on the streets is a risk that California should never take.

Please stand with me: Click here to join my new "Protect California Communities" cause on Facebook and help me build grassroots opposition to this phony budget plan!

"Dangerous criminals" back on the streets include the terminally ill, nonviolent drug offenders and people returned to prison for the crime of technical parole violations, which eats up about 2/3 of total incarcerations in California in any given year. This is the kind of absurd rhetoric that has our prisons full to bursting, that has created 1,000 sentencing laws passed by the Legislature in the past 30 years, ALL OF THEM increasing sentences, that has turned our parole policy and prison health care systems into a national joke and a federal crime, that has cost the state billions in overtime for prison guards and overall system costs, that has scared the public into passing really dangerous, pernicious laws like three strikes, that has nearly busted our Treasury, destroyed our corrections system and eliminated any possibility for rehabilitation.

The Attorney General position can be one of leadership in producing alternatives to our prison crisis. Kelly has forfeited any ability to call himself a leader by playing to the least common denominator. He can go back now to devising schemes to strip privacy on social networking sites.

Will Our Attorney General Candidates Get The Prison Crisis?

Today, Chief Privacy Officer at Facebook Chris Kelly announced an exploratory committee for the race for California Attorney General. He joins a field that includes Assemblymembers Ted Lieu, Pedro Nava and Alberto Torrico; San Francisco DA Kamala Harris, and Los Angeles City Attorney Rocky Delgadillo. In his statement, which you can find at his website, Kelly talked about efficienct and effective government, Internet safety, proper training and equipment for law enforcement, and stopping trafficking. The words "prisons," "jails," "corrections" or "parole" was not mentioned.

Our prison system is a mess. We have the highest recidivism rate in the country, mostly because 2/3 of our prisoners returning to jail go there because of technical violations of their parole. This turns jails into giant holding pens instead of areas for rehabilitation and treatment, as well as colleges for nonviolent offenders on how to get involved in violent crime. The overstuffed prisons cost more money to staff and service as they become more dangerous, leading to the state spending more on incarceration than higher education. Despite all this spending, conditions in the prisons are medieval, with the ACLU proposing the closure of the LA County Men's Central Jail. Prison officials are discussing release of 8,000 nonviolent and terminally ill offenders, but that's a drop in the bucket. We also have denied prisoners their Constitutional right to health care, and have a federal receiver now remedying that situation, taking it out of the hands of the legislature. The "tough on crime" mantra that has ruled the thinking of both parties on this issue has utterly and completely failed.

And yet, our Attorney General candidates and our gubernatorial candidates view this absolute crisis as just another check on their list, instead of the serious problem it is. Gavin Newsom didn't bring it up in his speech, though I did ask him about it in the blogger meeting afterwards. He talked about how we need a re-entry strategy better than the failed parole system, and cited some re-entry reforms in San Francisco that have helped matters. And he stated that having the courts step in to fix the problem presents an opportunity for real reform. With respect to the drug war, which lies at the heart of this, he expressed his support for drug courts and mental health courts and the kind of options that wouldn't consign nonviolent offenders to the rigors of overcrowded prison life when they need medical treatment. And he vowed to have more detailed programs available soon. But when it counted, on stage, he said nothing. Jerry Brown did tackle the issue, but his non-stop fight against the prison health care receiver and sensible steps like Prop. 5 destroy any credibility he may have had on the issue.

I have appreciated Greg Lucas' interviews with some of the candidates in the Attorney General's race, and I have paid particular attention to their views on the prison crisis.

Here are Alberto Torrico's ideas to deal with recidivism:

CC: What’s the best way to reduce recidivism?

AT: First, we need to evaluate. See what programs work and don’t work. We’ve got to figure out what we’re going to do about these parolees. Put all these people out and then there’s too many parolees and too few parole officers. We can’t continue to pretend our prisons are drug rehab centers because they’re not. We need to get resources to people who can be helped and make sure when they’re tried at the local level they get put into programs that work.

I’ve been a criminal defense lawyer. I’ve been a labor lawyer. I represented a public agency. The judge tells people under Prop 36 (drug rehab law) that you’re not going to jail, you’re going to get counseling once a week for 12 weeks. You’re not going to beat an addition one hour a week over 12 weeks.

He seems earnest about lowering the recidivism rate as a financial and moral imperative, and these ideas are somewhat noble, but they read like bullet points, without the innovation necessary to really deal with this crisis. It's not just about hoping the locals solve the problem, but a strategy that focuses on rehabilitation, re-entry and alternatives to prison right at the top.

Here's Ted Lieu on the same subject:

CC: Not sure how much it costs but it has to be expensive when we parole 120,000 people a year and within two years over 70 percent are back in prison.

TL: It is a sort of downward spiraling problem. Because we have a prison-overcrowding situation we now aren’t doing any of the skills training in prison programs that teach people how to function in society when they leave prison. And then people come back to prison because they have nowhere to go and that increases the over-crowding.

I’m a big supporter of drug courts. If someone is addicted, they should get treated. When revenues are falling off a cliff its extremely difficult to fund the programs we need to help people when they get out of prison. Long-term view is that yes it costs some money now but in the long-term it would help the state save money.

If an inmate works toward a degree then they should get early release credits as an incentive to do such things. Part of the problem – and this is a much larger fix – is I think I we also need to improve our education system. If we did, we’d have less people in prison as well.

I just see a lot of people talking around the problem. I support drug courts as well, but I think there's a mindset change that's needed. The Attorney General at this point is in a position to transform the entire way we think about prisons and rehabilitation. Rocky Delgadillo gets closer to that.

CC: Speaking of costs, recidivism is very expensive. Something like 120,000 people are paroled each year and 70 percent are back behind bars within two years.

RD: We’ve got to get on the front end. One thing we know about gang members and people who have been in prison is they tend to have a shelf life it tends to end. But if they’re young and active and they go out they do it again. Why? Because in prison they get to hang out with the best in their business. And we pay for it. Great health care plan. So when they get out, they go back to it again. So the answer is to send less in.

We have a program called “First Chance.” I grew up in Northeast Los Angeles. People would say they’ll give you a second chance. You can’t have a second chance until you have a first chance. This is a program for young, but adults who get into our system. Not where they’ve done a serious crime but we know they’re involved with gangs or negative activity. We allow them to go to job training and school and if they complete it, we drop the charges. It’s a much better investment up front then to try and deal with them after they’ve been in prisons. In there, it’s an abyss.

Finally, here's Kamala Harris, who actually pre-empts the discussion by raising recidivism without being asked:

CC: What role can the Attorney General play in the state’s seemingly endless budget mess?

KH: First, critically examine how the criminal justice system is working and whether we are being most efficient with limited dollars. Here’s an obvious example: Recidivism. California has the highest recidivism rate in the country. On an annual basis we release more than 120,000 prisoners and within two years of their release 71 percent recidivate. That’s costing us a lot of money.

In San Francisco, we created a re-entry initiative in my office. Its called “Back on Track.” It’s for low-level, first-time, non-violent offenders. I brought on my friends from labor — the building trades guys — friends from the business community, non-profits, and we give the parolees job skills development, education and help them meet things like parenting needs. A lot of these young offenders are parents. We reduced recidivism for this specific population from 54 percent to less than 10 percent. The national DA’s association has designated “Back on Track” as a national model.

My vote in this crowded Attorney General's field will be almost entirely predicated on each candidate's approach to the prison crisis. Will they reverse the "tough on crime" myth and start talking about sentencing reform? Will they discuss serious options to reform parole? Will they bring up innovative strategies around re-entry and recidivism that would put the focus on rehabilitation and spend on the front end to save on the back end (Hint: check with Kansas)? Will they touch the third rail of the failed drug war by moving toward decriminalization and keeping tabs on those who commit crimes with victims instead of nonviolent drug abuse?

I eagerly await the answers.