Monday, August 29, 2016
street news, views and stories of justice and injustice
Follow me on Twitter

Search WitnessLA:

Recent Posts





In an Important New Opinion, Fed Judge Talks About “Collateral Consequences” of a Felony Record, & Declines to Give Prison Sentence

May 27th, 2016 by Celeste Fremon

In a remarkable 42-page opinion handed down in a New York federal court on Tuesday,
U.S. District Court Judge Frederic Block explained why he had decided not to sentence a 20-year-old woman named Chenille Nesbeth to federal prison for trying to smuggle 602 grams of cocaine into the U.S. from Jamaica.

Instead of prison time, Block gave Nesbeth a year of probation and 100 hours of community service because, he wrote, the “number of statutory and regulatory collateral consequences she will face as a convicted felon,” many of them for the rest of her life, was punishment enough:

“I am writing this opinion because from my research and experience over two decades as a district judge, sufficient attention has not been paid at sentencing by me and lawyers – both prosecutors and defense counsel – as well as by the Probation Department in rendering its pre-sentence reports, to the collateral consequences facing a convicted defendant.’ And I believe that judges should consider such consequences in rendering a lawful sentence.


In explaining his actions, Block quoted from, among other sources, Michelle Alexander’s influential book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness.

The effects of these collateral consequences can be devastating. As Professor Michelle Alexander has explained, “[m]yriad laws, rules, and regulations operate to discriminate against ex-offenders and effectively prevent their reintegration into the mainstream society and economy. These restrictions amount to a form of ‘civi[l] death’ and send the unequivocal message that ‘they’ are no longer part of ‘us.’”

This “broad range” of collateral consequences, Block wrote, “serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.” Moreover, many of these after-effects of a felony conviction, under both federal and state law, “attach automatically upon a defendant’s conviction.”

The effects of such collateral consequences, he said, “can be devastating.”

Justice advocates have been making similar point for years, but coming from a well-known federal judge the thesis was both startling and significant.

And case anyone reading failed apprehend his seriousness on the topic, in the pages that followed, Block provided a short course on the scope of those consequences, and on the deleterious affects that reach beyond the lawbreaker to his or her children, family and the community in general.

He noted, for example, that federal law imposes “nearly 1,200 collateral consequences for convictions generally, and nearly 300 for controlled-substances offenses.”

Under federal law alone, he wrote, a felony conviction may make an individual permanently ineligible for public housing, Section 8 vouchers, food stamps, student loans and more. Add to that the fact that most employers don’t want to hire people with a criminal record, and the chances of someone successfully integrating him or herself back into society is drastically diminished.

“The inability to obtain housing and procure employment,” Block continued, “results in further disastrous consequences, such as losing child custody or going homeless. In this way, the statutory and regulatory scheme contributes heavily to many ex-convicts becoming recidivists and restarting the criminal cycle.”


Despite the unusual nature of this week’s sentencing, Block was careful to point out that he was in no way letting Nesbeth off the legal or moral hook for the crime she committed.

“There is no question that Ms. Nesbeth has been convicted of serious crimes,” he wrote. “Her criminal conduct is inexcusable.”

As for the crime itself: it seems that Nesbeth took a trip to Jamaica “at the behest of a boyfriend.” Then, prior to her return, friends of the boyfriend gave her two suitcases and asked her to bring them to another person when she arrived back in the U.S. Evidently the drugs were in the handles of the suitcases. At trial, Nesbeth claimed that she didn’t know there were drugs in the suitcases.

The jury didn’t buy it—particularly since the “friends” had purchased her ticket.

Yet, it also came out in the trial, according to Block, that Nesbeth was to receive no payment or other monetary gain from acting as a courier. It seems she’d mostly done the whole thing for the boyfriend.

Even the U.S. Probation Department in their sentencing recommendation, urged that Nesbeth be given a 24-month sentence, which was at the low end of the federal sentencing guidelines for the crime of which she’d been convicted. Probation pointed to the fact that she was “a first-time offender, was enrolled in college, employed, and “has otherwise lived a law-abiding life and is at a low risk of recidivism.”

Probation went on to write, “the defendant is a college student and she has held internships working with young children as it was her original intent to become a teacher and eventually a principal. The defendant will be ineligible for grants, loans, and work assistance for a period of two years, the duration of her college career.”

She would also be unlikely to ever hold a job as teacher, or a school administrator, and other related professions that had originally been the focus of her education and ambition.


At the end of his writing, in case anyone has missed the point, Block made it clear that he intended the opinion to be far more than simply an explanation for what some might perceive to be an unusually lenient sentence.

In specific, Block expressed the hope that his writing would cause other jurists to examine the issues he laid out:

“While consideration of the collateral consequences a convicted felon must face should be part of a sentencing judge’s calculus in arriving at a just punishment, it does nothing, of course, to mitigate the fact that those consequences will still attach. It is for Congress and the states’ legislatures to determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted, and to take a hard look at whether they do the country more harm than good.

“Hopefully, this opinion will be of value to the bench and bar, and to all those who are committed to serving the ends of justice.”

There is, of course, no way to know for sure whether or not Block’s opinion will have an effect on the actions of other judges, yet Gabriel J. Chin, a professor at the University of California, Davis, School of Law, who was quoted in the NY Times story on Tuesday’s ruling, called the opinion “groundbreaking.”

“This is by some distance the most careful and thorough judicial examination” of collateral consequences in sentencing, said Professor Chin, who has written on the subject and whose work the judge cited in the opinion.

“It’s going to generate debate on a critical issue in the criminal justice system — the ability of people convicted of crimes to get on with their lives,” he said.


Block, who will turn 82 on June 6, was appointed to the federal bench in 1994 by President Bill Clinton, and is the author of a well received memoir called Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge.

When doing publicity for the book, Block was asked by reporter David Lat of Above the Law, which case in his career he looked back on with the most pride, he pointed to a 2008 case involving two Egyptian-born men who were questioned for four hours after a cross-country flight in 2004. Block ruled that it was wrong to arrest the men solely because of their ethnicity. “…perceived ethnicity alone,” he wrote, “cannot give rise to reasonable suspicion or probable cause.”

During that same post publication period, Block told Larry McShane of the New York Daily News something that may have bearing on THE 2008 case and on this week’s decision.

“I’m at the DGS stage of life,” Block said to McShane

Then, chuckling, the judge—who was then a mere 78-years-old—translated for the reporter.

“Don’t give a s—. I don’t care what any of you say. I feel freed up to do what I really feel is the right thing.”

Judge Block on Collateral Consequences of Felony Conviction by Celeste Fremon

Posted in Sentencing | 5 Comments »

Sentence Enhancements, LASD Psychologist Accused of Molesting Kids, and One School’s 100% College-Bound Student Body

May 10th, 2016 by Taylor Walker


Sentence “enhancements” on the books in California can turn a sentence of a few years into one of multiple decades.

During it’s first Senate vote, at the end of last month, CA Sen. Holly Mitchell’s bill to get rid of the three-year sentence enhancement for prior drug convictions missed winning a majority, because of three Democrats who voted with Republicans against the bill, and five Democrats who abstained.

Sentence enhancements for drug crimes
disproportionately affect poor and minority people, reduce the likelihood of successful reentry, and are representative of a failed war on drugs, says Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, and former director of the Racial Justice Project at the NorCal ACLU.

Sen. Mitchell’s bill might return this week to the Senate floor for another vote, and Senate and Assembly members should support the measure “as an important step in the state’s belated journey toward justice and healing in our communities.”

Here’s a clip from Alexander’s op-ed:

Sentence enhancements like these were marketed as deterrents to drug use and sales, supposedly out of concern for the harm drugs cause people. But drastic sentences impede rehabilitation and treatment and worsen the odds of successful reintegration.

There is no evidence that enhanced sentences reduce drug availability or the number of people harmed by illicit drug use. After decades of the war on drugs, it is clear that purely punitive approaches to drug crime are counterproductive. Drug use has not declined, controlled substances are now cheaper and more widely available than ever before, and the death rate from drug overdoses continues to rise.

Here in California, thousands of families have been broken apart and communities throughout the state have been destabilized. Instead of helping those targeted by the war on drugs, we have sentenced them not just to prison but to the lifetime of discrimination and stigma that follows it.

It is no secret that the war on drugs has had a grossly disproportionate impact on people who are black, brown and poor. People of color are far more likely to be stopped, searched, arrested, prosecuted, convicted and incarcerated for drug violations than are whites, who can typically commit the same acts in upper- and middle-class neighborhoods without criminal consequences. Sentence enhancements based on prior drug convictions magnify these disparities, falling on those who have been unable to successfully re-integrate into society after earlier prison sentences.


On Monday, 41-year-old psychologist Michael Ward, a civilian employee of the LA County Sheriff’s Department, was charged with sodomy of a minor under age 10, four counts of committing a lewd act on a child, two counts of committing a forcible lewd act on a child under 14, and three counts of forcible oral copulation or sexual penetration with a child 10 years old or younger. It’s not yet clear how Ward knows the victims—a 9-year-old boy and 10-year-old girl—or where those alleged crimes took place according to City News Service. Ward pleaded not guilty to the 10 felonies.

A statement released by the sheriff’s department called the charges “deeply troubling,” and said that the “allegations were not as a result of contacts he made within the scope of his work with the Sheriff’s Department.”

Ward, whose job involved training investigative personnel, was relived of duty last week. His bail is set at $2 million. If convicted on all counts, Ward faces life in prison.


For the ninth year in a row, all 56 seniors graduating from Watts’ Verbum Dei High School have been accepted to college. About 70% of the students at Verbum Dei, a private Jesuit school, are Latino, and 30% are black. Most will be the first in their families to attend college. The students—all of whom come from low-income households—participate in a work-study program to pay for part of their tuition. The remaining tuition money comes from scholarships, grants, and fundraisers.

You can read more about the school and its students over at LAist.

Posted in Sentencing | 3 Comments »

The Prop. 47 Funding Debate, $30 Million Gang Injunction Settlement, and Merrick Garland

March 18th, 2016 by Taylor Walker


In November 2014, 60% of California voters passed Proposition 47, which reclassified six non-serious, non-violent drug and property felonies as misdemeanors. The measure was supposed to ease overcrowding in prisons and save the state more than $100 million each year. That $100 million (or more) was to then be spent on preventing recidivism through mental health and rehabilitation programs, truancy and dropout prevention efforts, and victims services (via the Safe Neighborhoods and Schools Fund).

Gov. Brown’s January budget tallied net savings from Prop. 47, which reduced six non-serious felonies to misdemeanors, at $29.3 million—$62.7 million in savings from smaller caseloads, fewer hospital stays, and fewer prisoners, minus $33.4 million in extra parole and resentencing costs. The budget allocated the net savings of $29.3 million for the Safe Neighborhoods and Schools Fund.

A recent report from California’s non-partisan Legislative Analyst’s Office found a few problems with those figures: Brown’s budget underestimates savings by about $100 million, overestimates costs, and diverts money from the Safe Neighborhoods and Schools Fund—where all the Prop. 47 savings is supposed to end up—and sends it back into the prison system.

While the 2014 law has resulted in the release of more than 4,500 offenders, prison staff and operating costs have not dropped. In fact, prison costs are increasing. The California Department of Corrections and Rehabilitation’s newly-appointed Secretary, Scott Kernan, says for any significant savings to occur, the state would have to close a prison.

State lawmakers will have to step in and decide what savings Prop. 47 is responsible for producing. The legislature has until this summer to settle the issue.

KPCC’s Annie Gilbertson has more on the issue. Here’s a clip:

Though the administration found the measure eliminated the need for more than 4,500 prison beds, the governor’s office primarily based its savings calculation on a 400-unit decline in contract beds, spots in private prisons California pays for to keep prisons from becoming more crowded.

“The remaining population reductions resulted in fewer inmates being housed in CDCR’s institutions where there are limited possibilities for reduced expenditure,” said Jeffrey Callison, press secretary for the California Department of Corrections and Rehabilitation in an email.

Despite the decline in drug offenders in prison, Callison said, prisons are not incurring savings in staffing and other necessary operating costs. For that to happen, he said, the state would need to close a prison.

Secretary Scott Kernan, who heads the prison system, said cutting money from his budget isn’t feasible. The system’s been beleaguered by overcrowding, inadequate mental health and health care, and a host of court orders to improve conditions.

“So I think that in this challenging environment there is going to be a base line cost,” Kernan said.

And, those costs are going up.

Despite 2011′s prison realignment, which shifted supervision for lower-level offenders to counties in an effort to stem overcrowding, the prison population is expected to rise over the next year, along with the prison budget.

Early budget proposals up the corrections budget to $10.5 billion in 2016-2017 - higher than the year before realignment went into effect. Cutting into the budget now, Kernan said, could compromise court orders.

The state’s obligated to provide “a constitutional level” of care, he said.


On Wednesday, the LA City Council unanimously approved a $30 million settlement in a lawsuit accusing the LAPD of enforcing old gang injunction curfews that had been struck down years earlier, in 2007.

The settlement amount will depend on how many of the 5,700 people affected by the gang injunctions—and thus the unconstitutional 10:00 p.m. curfews—come forward. According to the terms of the settlement, over the next four years, at least $4.5 million and as much as $30 million will go to job training, tattoo removal, and other programs to help people designated as gang members by LA injunctions.

The LA Times’ Joel Rubin and Emily Alpert Reyes have more on the issue. Here’s a clip:

City Atty. Mike Feuer urged council members to approve the deal in a confidential memo obtained by The Times. The settlement, one of Feuer’s deputies emphasized in the memo, would establish clear rules for enforcing injunctions and avoid the possibility of a jury verdict that could have forced the city to pay off gang members.

“The city must resolve this litigation,” the memo said. “The settlement creates opportunities for gang members to obtain basic job skills … that can turn their lives around, and does so without giving any direct payments to gang members.”

In an interview, Feuer called the deal “an opportunity for the city to grapple with one of its most important problems in a constructive way.”

Nearly four dozen injunctions are in place throughout some of the city’s roughest neighborhoods. They are court orders that aim to severely curtail gang activity by, among other things, prohibiting gang members and their associates from socializing with one another, carrying weapons or wearing certain clothing inside an injunction’s designated area — typically the neighborhoods where the gangs are active.

Although gang crime has climbed recently, the city has made large gains over the last decade in tamping down gang violence, drug dealing and other crimes. While officials credit the injunctions with playing a large role in that progress, critics point to the rosters of people ordered to abide by the injunctions, saying they include those who have no gang ties.

In 2011, attorney Olu Orange filed a federal lawsuit challenging curfew provisions included in 26 of the city injunctions, which prohibited people from being outside after 10 p.m.

In enforcing the curfews, police and city officials were willfully ignoring a 2007 California appeals court ruling that a similar curfew in another city violated individuals’ due process rights, Orange contended. In that ruling, the court found that an injunction against an Oxnard gang did not adequately define what it meant for someone to be “outside” during the hours of the curfew.

The wording was “so vague that men of common intelligence must necessarily guess at its meaning,” the court concluded.


On Wednesday, President Barack Obama announced DC Circuit Chief Judge Merrick Garland as his nominee to replace the late Supreme Court Justice Antonin Scalia. Out of President Obama’s top three choices (the other two were Judges Sri Srinivasan and Paul J. Watford), Judge Garland, a white, 63-year-old federal prosecutor, appears to be Obama’s best chance at getting a nominee past the Republican Senate, which has vowed to oppose any nomination from the current president.

But by nominating the “old school” Garland, Obama has missed out on an important opportunity to “walk the walk on criminal justice reform” by appointing someone who has a public defender background, says Doug Berman of Sentencing Law and Policy:

In this prior post, I (apparently foolishly) suggested that Prez Obama might be leaning to appointing a former federal defense lawyer to the Supreme Court given his comments about looking for a nominee with “a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook [but who has] life experience earned outside the classroom and the courtroom.” But Chief Judge Garland, like far too many of the current Justices in my view, is a career “inside-the-Beltway” lawyer having served in the Justice Department during the Clinton Administration and having spent the last two decades serving on the most insulated and isolated of all the US Circuit Courts. Notably, at a time when American voters on both sides of the aisle have shown an interest in changing “politics as usual” in Washington DC, the President has decided to nominate the most “old-school” SCOTUS candidate I could imagine.

Readers will not be surprised to hear that what really has me irked about this SCOTUS choice is that it provides yet more proof that President Barack Obama is never actually willing to “walk the walk” on criminal justice reform when he has a real opportunity to use his power and platform to engineer real change. Appointing someone with a public defender background would be a powerful statement that lawyers who defend those accused of crimes have a critically important perspective on the operation and application of the rule of law. Instead, Prez Obama has nominated a former Criminal Division DOJ lawyer who supervised the Oklahoma City bombing case and the case against the Unabomber. Tellingly, in his announcement this morning, Prez Obama stressed Chief Judge Garland’s “sterling record as a prosecutor” and expressed admiration for his prosecutorial efforts to avoid the possibility that the Oklahoma City bomber “might go free on a technicality.”

So where does Garland stand on criminal justice issues? In 2010, when Garland was short-listed as a possible replacement for Justice John Paul Stevens, SCOTUSblog’s Tom Goldstein wrote a profile of Garland, which included a review of the judge’s past decisions in specific areas of law. Goldstein found that Garland leaned moderate-to-conservative on important criminal justice issues, rarely voting in favor of criminal defendants. Here are some clips:

The most significant area of the law in which Judge Garland’s views obviously differ materially from those of Justice Stevens is criminal law. Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions. I identified only eight such published rulings, which should capture all the significant cases. Judge Garland did not author any of the opinions…

…in ten criminal cases, Judge Garland has disagreed with his more-liberal colleagues; in each, he adopted the position that was more favorable to the government or declined to reach a question on which the majority of the court had adopted a position favorable to a defendant. Because disagreement among panel members on the D.C. Circuit is relatively rare, this substantial body of cases is noteworthy…

In another case, Judge Garland dissented from a panel ruling by two of the court’s more conservative judges in favor of a criminal defendant.

Vox’s German Lopez explains why Garland may prove even more conservative than Justice Scalia on certain criminal justice issues, if he makes it past the Senate. Here’s a clip:

…while Scalia was broadly very conservative on criminal justice issues, he occasionally sided with liberals and reformers to defend criminal defendants’ rights — in a way that Garland may not.

“Casual observer or non-lawyers have not recognized that, even though Justice Scalia was very conservative in most criminal procedure cases,” Evan Lee, a law professor at the UC Hastings College of Law, told me, “there were a few really important cases in which he — and Justice Thomas — created new and important rights for criminal defendants based on their reading of the original intent of the framers.”

Scalia’s biggest decision to this end was, according to Lee, Apprendi v. New Jersey in 2000, in which the Supreme Court effectively expanded criminal defendants’ rights — despite a case that involved an allegedly racist defendant.


Now, Scalia was certainly not a liberal on criminal justice issues. In his nearly 30 years as a justice, he had far more cases in which he sided against criminal defendants, particularly on the death penalty. In one case, Scalia argued that the Supreme Court had never found that executing innocent defendants violated the Constitution if they got a “full and fair trial.” Although an extreme example (and technically correct), Scalia’s tone reflects the approach he took for the bulk of criminal procedure cases.

But as conservative as his views in most cases were, Scalia still had a few moments in which he stridently sided with defendants. And the few examples show Scalia was not as conservative on criminal justice issues as liberals may think. So if he’s replaced by someone who’s moderate to conservative — like Garland — then criminal justice reformers could end up gaining little to nothing from the replacement.


Another big distinction: While Scalia was more likely to overturn previous law and tradition to fit his view of the Constitution, Garland will likely avoid changing current precedent. “He is a centrist, a call-them-as-I-see-them, I-have-no-interest-in-changing-the-law kind of guy,” Goldstein said.

That could sometimes extend in favor of defendants when current law is in their favor. For example, Scalia despised the “exclusionary rule” — which requires courts throw out evidence that police obtained illegally — out of worry that it can ruin otherwise good cases against criminals, and he seemingly wanted to undo it. But Garland would probably be unwilling to overturn a standing rule, so he would be more likely to throw out illegally obtained evidence through the existing exclusionary rule.

Given Scalia’s extremely pro–death penalty views, Garland will also very likely be much more liberal on capital punishment. Goldstein said that Garland, for instance, will probably be more willing to let defendants challenge their death sentences if they claim to have received an inadequate legal defense. But Goldstein would be very surprised, he said, if Garland ruled to strike down the death penalty, which some of the more liberal justices have shown interest in doing.

Still, Garland has generally favored prosecutors and sided against defendants as a DC judge, and it seems unlikely he would create big, new rights for defendants as Scalia did in a few cases.

But it seems unlikely that the Senate Republicans will confirm Garland. During the judge’s first trip to the capitol as Obama’s nominee, Republican leaders said they refused to hold hearings or vote on Garland’s confirmation this year, no matter what.

The New York Times’ David Herszenhorn has the story. Here are some clips:

It was a strange day even for an often-fractious Capitol. Democrats moved forward with the traditional opening pageantry for a Supreme Court nominee, including staged photo opportunities and two largely ceremonial meetings. At the same time, the majority leader, Senator Mitch McConnell, Republican of Kentucky, sought to dismiss the fight over the court vacancy as an irreconcilable difference that should be set aside, like some routine piece of failed legislation, as the Senate moved on to other business.

Tensions boiled over early after Senator Orrin G. Hatch, Republican of Utah, and others suggested that Republicans might take up Judge Garland’s nomination in the lame duck session — should Hillary Clinton or Bernie Sanders win the White House — and outraged Judiciary Committee Democrats called Republicans duplicitous.


By the end of the day, Republican leaders made clear they were sticking to their original position and flatly ruled out any action on the nomination during the lame duck session.

Senator John Cornyn of Texas, the No. 2 Republican and a member of the Judiciary Committee, said on Thursday that he expected Democrats to keep repeating their demands for a confirmation vote, but he urged them to desist.

“It’s frankly a waste of time,” Mr. Cornyn said at the Judiciary Committee’s business meeting. “The decision has been made that we are going to wait for the voters to choose the next president and allow that president to make the nomination at which time that nomination, whether it’s a Democrat or a Republican will be processed. But not before then.”

Even Mr. Hatch had retreated. “If it’s Hillary, it’s Hillary,” he told reporters with resignation at the Capitol, acknowledging that party leaders had decided Mr. Obama’s nominee would not be confirmed under any circumstance.

Posted in Rehabilitation, Sentencing | 12 Comments »

California Supremes Clear the Way for Gov. Brown’s Justice Reform Initiative to Reach Voters

February 29th, 2016 by Celeste Fremon

On Friday evening, the California Supreme Court cleared the road
of obstacles—at least for the moment—allowing Gov. Jerry Brown to proceed in gathering signatures for his ballot initiative that proposes reduce

The high court, originally planned to consider the matter on Monday, but instead acted Friday after Brown warned that further delay could make it difficult to get the necessary 585,000 voter signatures needed to put his initiative on this year’s ballot.

On Thursday of last week, Governor Jerry Brown and his attorneys filed an emergency petition with the California Supreme Court requesting an immediate stay of a ruling issued by a lower court judge that could keep the governor’s new sentencing reform ballot issue out of the voters’ hands until 2018.

The came after, on Wednesday of last week, Sacramento County Superior Court Judge Shelleyanne Chang blocked Governor Jerry Brown’s proposed ballot initiative, known as “The Justice and Rehabilitation Act,” ruling amendments to the initiative were not done correctly.

This is the ballot initiative that would take the decision about whether a child defendant will transferred to adult court away from prosecutors, and put it back into the control of judges who—unlike prosecutors—are presumably neutral parties.

The initiative also makes it easier for adult offenders to earn credits awarded by prison officials through educational and rehabilitative efforts and good behavior.

In addition, Brown’s initiative would allow non-violent inmates to be eligible for parole after they have completed their full sentence for their primary offense.

Brown characterized this second part of the proposed ballot measure as more than a way to lower the state’s prison population (as demanded by the U.S. Supreme Court in it’s 2010 Plata v. Brown ruling), but also a much needed strategy to make the state’s prison system more rehabilitative.

“By allowing parole consideration if they do good things,” the governor told reporters in a conference call at the end of January, “they [prisoners] will then have an incentive…to show those who will be judging whether or not they’re ready to go back into society.”

Although various law enforcement figures across the state agreed and came out in support of Brown’s initiative, the California District Attorney’s Association was not at all pleased to have yanked from them the power to have teenagers as young as 14-years old tried as adults.

In an effort to defeat measure before it ever got to the ballot, the CAL DAs who brought the lawsuit that resulted in the lower court’s block.

Friday’s CAL Supreme ruling is only a temporary victory, however, allowing Brown and Co. to gather signatures while the court considers the whether or not Brown and company and Attorney General Kamala Harris followed the law.

For details of the legal argument, check our earlier story on the lower court ruling, and Brown’s lawyer’s emergency petition to the California Supreme court.

Posted in Sentencing | 1 Comment »

Governor Jerry Brown Turns to CAL Supremes After Judge Blocks Initiative – UPDATED

February 26th, 2016 by Celeste Fremon

UPDATE: The Cal Supremes temporarily removed the judicial roadblock
that would stop Brown from collecting signatures to put his voter initiative on the ballot. For the rest of that story, go here.


On Thursday, Governor Jerry Brown and his attorneys filed an emergency petition with the California Supreme Court requesting an immediate stay of a ruling issued by a lower court judge that could keep the governor’s new sentencing reform ballot issue out of the voters’ hands until 2018.

Here’s the background: On Wednesday of this week (as we reported here), Sacramento County Superior Court Judge Shelleyanne Chang blocked Governor Jerry Brown’s proposed ballot initiative, known as “The Justice and Rehabilitation Act,” ruling amendments to the initiative were not done correctly.

To remind you, this is the ballot initiative that would take the decision about whether a child defendant will transferred to adult court away from prosecutors, and put it back into the control of judges who—unlike prosecutors—are presumably neutral parties.

The initiative also makes it easier for adult offenders to earn credits awarded by prison officials through educational and rehabilitative efforts and good behavior.

In addition, Brown’s initiative would allow non-violent inmates to be eligible for parole after they have completed their full sentence for their primary offense.

Brown characterized this second part of the proposed ballot measure as more than a way to lower the state’s prison population (as demanded by the U.S. Supreme Court in it’s 2010 Plata v. Brown ruling), but also a much needed strategy to make the state’s prison system more rehabilitative.

“By allowing parole consideration if they do good things,” the governor told reporters in a conference call at the end of January, “they [prisoners] will then have an incentive…to show those who will be judging whether or not they’re ready to go back into society.”

Various law enforcement figures across the state agreed and came out in support of Brown’s initiative, including San Diego District Attorney Bonnie Dumanis, who is known for her law-and-order leanings, and Los Angeles Police Chief Charlie Beck, both of whom were present with Brown when he announced the initiative less than a month ago.

The California District Attorney’s Association, however, was not at all pleased to have yanked from them the power to have teenagers as young as 14-years old tried as adults.

“It takes a tool away from us,” said Yuba County District Attorney Pat McGrath, president of the California District Attorneys Association, after Brown announced the ballot initiative.


The Cal DAs quickly expressed their unhappiness with legal action in the form of a law suit filed to prevent Attorney General Kamala Harris from issuing the official title and summary of the proposed measure that would let supporters begin gathering signatures.

The prosecutors claimed in the lawsuit that Brown had amended the initiative (which is true, but legal) but that he had done so in such a way that the DAs contended violated a 2014 state law that was intended to improve the initiative process by allowing amendments of initiatives within a certain time frame prior to the initiatives being approved for signature gathering.

According to the 2014 law, amendments are to be “reasonably germane to the theme, purpose, or subject of the initiative measure as originally proposed.”

The prosecutors contend that Brown’s amendment did not meet the legislature’s standard, and also accused Attorney General Kamala Harris with letting the governor get away with the allegedly wrongfully applied amendments without the proper period of public comment on the amendments.

Interestingly, it was the original, unamended initiative that contained the proposed change to state law that the DAs found so loathsome, as it would have taken away from prosecutors the choice to try kids as adults instead of allowing them to be tried in juvenile court, and given that discretion back to judges, which had previously held the power in the first place.

(The original initiative also expanded parole eligibility for adult prisoners whose crimes were committed before the age of 23.)

The amendments that are the basis of the lawsuit, however, were the addition of the sections that would allow prison officials to consider sentencing credits for adult inmates, and would additionally allow the possibility of earlier parole for non-violent felons.

In any case, Judge Chang agreed with Sacramento District Attorney Anne Marie Schubert and the Cal District Attorneys Association and ruled that there was “no substantial compliance” by Harris with the 2014 state law. (Her ruling is more complicated, but that’s the upshot.)

If it stands, Chang’s ruling means that Brown and company will be forced to start the initiative process over from scratch, meaning that there will not be enough time to gather the needed 585,000 voter signatures for the measure to qualify for the November ballot.


In the emergency petition filed with the Cal Supremes on Thursday, Jerry Brown and his attorneys, Robin B. Johansen and James C. Harrison, state that the amendments, which they contend “would further advance the measure’s rehabilitation and public safety goals,” for adults and juveniles, were filed within the time period laid out by the law, that the governor reached out appropriately for comment about the amendments to a wide swath of people—including the CAL DAs. Furthermore, they stated, the law doesn’t require public comment for the amendments. After all, the public can gets to weigh in at the ballot box.

Brown and company’s overall argument is 46-pages long, and makes for interesting reading for those who want more of the legal details. (See below) But the snippets below represent much of the heart of it:

“Waiting until 2018 to qualify this measure for the ballot is not an option,” wrote Johansen and Harrison. “If the superior court’s order stands, the people will have been deprived of their right to use the initiative process to remedy problems that urgently require attention now. The ruling of the Court below turns the Legislature’s amendment process on its head and thwarts rather than promotes the initiative power granted.

“…Because the amendments are reasonably germane and because it is imperative that the people have an opportunity to vote on this measure in November, the Court should immediately stay the lower court’s order and allow the Attorney General to issue her title and summary.”

In addition, Brown’s attorneys wrote, allowing Judge Chang’s ruling to stand “will encourage strike suits, like the one that prompted this writ, by opponents of a measure to try to keep an initiative off the ballot.” In other words, they argued, it allows the use of lawsuits filed for political reasons, not because there is any flaw in the way the initiative was filed.

“If left uncorrected, the superior court’s error will bar voters from even considering whether to sign a measure that would improve public safety by promoting rehabilitation rather than incarceration for juveniles and adults and allow judges, not prosecutors, to decide whether juveniles should be charged as an adult.”

So what will California’s top court do with this emergency request?

Justice reformers across the state with whom we’ve spoken are anxiously awaiting the answer to that question.

We do know, however, that late on Thursday, the California Supreme Court asked the interested parties, namely the CAL prosecutors, Sacramento District Attorney Anne Marie Schubert, and Attorney General Kamala Harris, to file responses to the emergency petition by 5 pm this coming Monday, January 29.

So stay tuned.

Gov. Brown Justice Reform Initiative Writ Petition (00268671-11xAEB03) by Celeste Fremon

Posted in Sentencing | No Comments »

LA County’s New Prop 47 Task Force

December 2nd, 2015 by Taylor Walker

As the 2017 deadline for California’s Proposition 47 nears, LA County will ramp up efforts to help the 690,000 county residents eligible for felony sentence reductions.

On Tuesday, the LA County Board of Supervisors voted unanimously on a motion by Supervisors Mark Ridley-Thomas and Hilda Solis to collect data on people who stand to benefit from Prop. 47′s reclassification of six low-level felonies to misdemeanors. The county will also create an inter-agency outreach task force to notify those eligible before the November 2017 deadline, assist with the complex application process, and connect them with crucial reentry services.

Out of the hundreds of thousands who stand to benefit from Prop. 47, LA County Public Defender Ronald Brown said his office has processed and granted 16,702 petitions. An estimated 4,000 petitions have been processed and approved through the alternate public defender’s office. According to a recent survey commissioned by the California Endowment, only 29% of Los Angeles residents were aware of Prop 47.

“If this deadline passes without a significant acceleration in applications,” said Supervisor Solis, “Los Angeles County will have missed a significant opportunity to set people on the road to productive citizenship, and by default, we will make our neighborhoods more vulnerable to potential crimes.”

Supervisor Ridley Thomas added that Prop. 47 offers low-level offenders a powerful (and time-sensitive) second chance. “We must not squander this opportunity, this mandate, to reform our criminal justice system so that it’s less punitive and more humane, with the potential to be healing and transformative.”

The task force will pull from many different county departments and organizations. The California Endowment, Californians for Safety and Justice, the Los Angeles Area Chamber of Commerce, LA County Federation of Labor, and LA Trade Tech College, the Archbishop of Los Angeles, the county’s mental health and public health departments, and at least two community members formerly impacted by incarceration and barriers to successful reentry, among others, are expected to participate in the large-scale effort.

The county will also pursue state legislation to extend the deadline for Prop. 47 petitions past 2017, or eliminate the deadline altogether.

The motion also called for collaboration between the Mayor Eric Garcetti’s Office of Reentry and the LA County Office of Diversion and Reentry to apply for state grants to bolster reentry programs for Prop 47ers leaving lock-up and those who have already been released and are in need of reentry services.

The Supervisors approved the creation of the Office of Diversion and Reentry in August, following the release of a major report from LA County District Attorney Jackie Lacey full of recommendations on how to divert the mentally ill from county jails into community treatment. The city’s Office of Reentry was created to formulate programs and policies that “support formerly incarcerated individuals find stability, resources, employment, housing, and reunification with their families.”

“Our communities grow stronger when we show mercy, compassion and understanding for those who have made mistakes in life and deserve a second chance,” said Mayor Garcetti. “It is also our mandate to help them rebuild their lives after incarceration, and today L.A. County took a tremendous step forward on the principle of restorative justice.”

Mayor Garcetti said that the city’s reentry office is ready to get to work with the county “to make a positive impact on the lives of the formerly incarcerated and to make our communities safer, and restore dignity to those who have been marginalized for too long.”

Posted in Reentry, Sentencing | 1 Comment »

Considering Risk of Reoffending, a $4.9M Settlement in Kelly Thomas Case, LA Justice System Portrayed in New Yorker, and New LAUSD Arts Money

November 25th, 2015 by Taylor Walker


Jurisdictions across the nation are turning to risk and needs assessment (RNA) information for use during sentencing to determine whether a person can be safely and successfully supervised in the community, rather than locked up in a jail or prison.

Judges (and prisons and parole boards) using RNAinfo look at factors such as prior offenses, marital status, age, sex, education, employment, and sometimes where a person lives.

A new report by the National Center for State Courts’ Center for Sentencing Initiatives looked at initiatives in ten jurisdictions nationwide, including Napa, California, through which RNA information is used during sentencing.

The other jurisdictions were Coconino County, Arizona; Mesa County, Colorado; Bonneville County/7th Judicial District, Idaho; Grant County, Indiana; Douglas County/4th Judicial District, Nebraska; Cuyahoga County, Ohio; Yamhill County, Oregon; Travis County, Texas; and La Crosse County, Wisconsin.

The initiatives included treatment programs, evidence-based supervision programs, and partnerships between the court system and probation departments.

The Napa County Probation Department employs risk and needs assessment info to assign offenders to a corresponding tier of supervision based on their risk of reoffending. Low-risk offenders report to their probation officers on a quarterly basis on the phone, and medium-risk cases were given to officers with a caseload of around 100. Thanks to the RNA system, Napa county is handing down lower jail sentences, utilizing more incarceration alternatives like electronic monitoring, and using treatment programs in probation case plans.

In Napa, probation officers also incentivize probation, reinforcing positive actions like going to a job interview, or being to the probation appointment on time with rewards, which include items from “a little basket of goodies.” Since Napa started using RNA information during sentencing, the probation department experienced a decrease in recidivism rates, but it’s still unclear whether the change can be attributed to using the RNA info.

Yamhill County, OR focuses specifically on offenders who would be sent to prison under Oregon’s sentencing guidelines or who are repeat property or drug offenders, but can be safely and successfully supervised in the community.

Travis County, TX has seen a 77% reduction in recidivism rates for low-risk offenders and a 50% reduction in recidivism rates for medium-risk offenders. The county estimates it saved $21.3 million between 2007-2011 by using RNA information during sentencing.

(The report is a companion to this 2011 report.)


On Monday, the city of Fullerton agreed to pay $4.9 million to the father of Kelly Thomas, the homeless schizophrenic man who died after being beaten and shocked multiple times by Fullerton police officers in 2011.

In a security video of police confronting Kelly Thomas, who was suspected of stealing personal items, Thomas can be heard screaming for his father.

Three former Fullerton police officers involved in the fatal beating, Manuel Ramos, Jay Cicinelli and Joseph Wolfe, were fired from the Fullerton Police Department. Ramos and Cicinelli were found not guilty and the charges against Wolfe were dropped.

The settlement is not an admission of legal liability, said Diana Fox, the attorney representing Fullerton.

The OC Register’s Lou Ponsi, Theresa Walker, and Sean Emery have the story. Here’s a clip:

Dana Fox, an attorney for the city of Fullerton, said the $4.9 million settlement is not an admission of legal liability by the city or police.

But Thomas’ father, Ron Thomas, disagreed.

“They know they were guilty of murder,” he said during a news conference that included blown-up photos of his son as a child playing with his family and holding up a fish he caught, and the now-familiar photo of an adult Kelly Thomas in a cowboy hat.

“By offering that amount, they feel they are getting off lucky.”

Civil rights lawyers and advocates for the mentally ill said the amount sends a strong message to all police and the public that the lives of the homeless have value.

“You can’t look at these folks on the streets and deal with them in any less a human manner than you would with a regular working Joe,” said Eric Traut, former president of the Orange County Trial Lawyers Association.

Erwin Chemerinsky, a constitutional scholar and dean of the UC Irvine School of Law, said the amount “sends a message that something really wrong was done here.”

“If the amount was $10,000, that’s a very different message than $4.9 million. Obviously, the city would not have settled for $4.9 million unless they felt there was a substantial risk that they would lose much more before a jury.”

The wrongful death lawsuit named the city, former Fullerton police Officers Manuel Ramos, Jay Cicinelli and Joseph Wolfe, who were all fired from the department. Others included in the suit: Fullerton Officers Kevin Craig and James Blatney, who remain with the department; ex-Chief Michael Sellers; and his predecessor, Patrick McKinley, who sat on the City Council at the time of the incident and was later recalled.

In a criminal trial that ended early last year, Ramos and Cicinelli were found not guilty and charges were dropped against Wolfe.

“These officers are trying to get their jobs back,” said Garo Mardirossian, an attorney for Ron Thomas.

“We wanted to make sure they can’t.”

Kelly Thomas, who was known as a transient in Fullerton and other North County communities, died five days after police tried to take him into custody at the Fullerton Transportation Center for possibly stealing small personal items.

A city security video that surfaced after the incident showed several officers threatening Thomas. Though the video isn’t clear on all that transpired, Thomas was unconscious at the end of the encounter and his injuries included a compressed trachea and broken bones in his face.


In Rachel Kushner’s “Fifty-Seven,” a short story in this week’s issue of The New Yorker, a homeless man who is released from an LA County jail with five dollars and nowhere to go quickly finds himself locked back up, this time for killing a woman during a robbery. The story follows the man through the court system, and back into prison, where he stabs a guard and gets himself thrown in solitary confinement indefinitely.

In conversation with The New Yorker‘s Deborah Treisman, Kushner says that “Fifty-Seven” was inspired by her many interviews with men and women in Los Angeles jails and the rest of California’s justice system, whose childhoods involved “extreme situations of poverty and abuse.” Here’s a clip:

The story emerged from what has preoccupied me both as a person and as a writer for the past few years, which is the world of Los Angeles jails and criminal courts and California prisons, and who moves through these structures (needless to say, very poor people and people of color, disproportionately). The character in the story is released with no place to go (as are probably half of the people let out of the county-jail system downtown every day and night). He then commits a crime that puts him in prison for life. I have spent a lot of time listening to people who are serving life sentences and getting to know them and the circumstances of their lives.

I have never met anyone serving a long prison sentence who had anything close to what I could call a childhood; instead, the upbringings always—always—involve extreme situations of poverty and abuse. The second half of the story, when the character is in prison, was influenced by what I’ve observed on prison yards, especially the Level Four maximum-security facilities, like Salinas Valley, which is the prison my character initially goes to. C Yard there is an intense place, a very “active” yard. These yards have specific energies. You can feel it when something is about to take place. And meanwhile these guards, all puffed up in their stab-proof vests (they supposedly get paid extra to wear them), are yelling at you to stay close to the wall, not to talk to groups of people, and so on, as if you were on, say, a safari. But these are people, not lions, and in a way the people I feared most were the guards themselves.


On Monday, the Los Angeles Unified School District announced a $1 million in funding for arts education—especially for schools lacking arts education—from the state.

KPCC’s Priska Neely has more on the new (and much-needed) funding. Here’s a clip:

Money went out based on student enrollment and the results of the district’s new Arts Equity Index, which was released this spring. That survey was used to figure out which schools were providing arts education and which weren’t — to help the district determine the greatest need.

“We are bringing more equity and access to the funding and support of schools,” said Rory Pullens, head of the district’s arts education branch, in an interview…

Principals can decide how to spend the money. One school that ranked low on the index, Madison Middle School, received nearly $5,000. “Our school is in desperate need of supplies, so this will go into supplies for art enrichment programs,” said principal Estelle Baptiste in a statement.

Another school is starting a new music program from scratch.

Posted in Sentencing | 11 Comments »

Exploring What’s Next on the Criminal Justice Reform Agenda

November 9th, 2015 by Taylor Walker


Juan, once homeless and addicted to heroin, was arrested when he broke into a warehouse. “It was empty, I just needed a place to sleep,” Juan said. The police found drugs on Juan, and charged him for possession, which was prosecuted as a felony. The arrest was not his first and he went to prison on what was originally a multi-year sentence. Juan said that he had been in and out of prison since 1983. “I became a real bad drug addict,” he said. “I burned every bridge in my family.”

After the 2014 passage of California’s Proposition 47, however, Juan was eligible for reduction of his conviction from a felony to a misdemeanor, and he was released earlier this year.

(Prop. 47 is the state initiative that reduced six non-serious felonies to misdemeanors.)

When he got out, Juan received little or no reentry assistance, and was fearful he’d slip back into his addiction. “I knew I needed more help,” he said. He’d heard about a drug rehab center called the Amity Foundation, and managed to snag a spot in their program. “I have a job today,” Juan said, tearing up as he explained that he now works at Ruth Chris Steakhouse in Beverly Hills and has stayed clean since his release from Amity. He has also repaired relationships with family members that he said he lost to his heroin addiction.

“All of the money I used to get went straight to the drugs…but today it goes to Chase,” he said, referring to the JP Morgan Chase Bank. “I have a debit card!” Juan said with a delighted grin. Now his family members ask him for a loan rather than the other way around, Juan said.

Juan told his story to a ballroom full of lawmakers, academics, and criminal justice reform advocates, with a sprinkling of state and local officials, all of whom gathered in LA’s Millennium Biltmore Hotel on Wednesday, November 4, the one-year anniversary of the passage of Prop. 47. The crowd showed up for this all-day “summit” called Smart on Safety to discuss next steps in the world of California’s justice reform.


One of the day’s most talked about panels featured San Francisco District Attorney George Gascón and Santa Clara County DA Jeff Rosen, who are two of only three of the state’s district attorneys (out of 58) who publicly endorsed Prop. 47. The prosecutors talked about their separate paths to the realization that California’s criminal justice system was in need of serious restructuring. Gascon and Rosen each made the point that prosecutors are in a unique position to bring about meaningful reform if they widen their perspectives.

Telling the story of his journey through law enforcement, which included serving as Assistant Chief of the LAPD, and San Francisco Chief of Police, Gascón said that it became “increasingly obvious” to him that “the doors to the prisons and the jails” are controlled by district attorneys. “District attorneys are the ones who decide who gets prosecuted, how they’re going to get prosecuted,” and to a great degree, the length of their sentence. As a result, they also have great power to affect reform, he said.

DA Rosen, who recently traveled to Germany to tour that country’s progressive prison system, told of his own awakening from the punishment-focused mindset, “I began to understand that, first of all, the distinction between crime victim and defendant is often artificial, and many of the defendants we were prosecuting were victimized early in their lives…and that if we did a better job helping people that were victims of crime, we may have fewer defendants in the future.”


In a later panel, Robert Rooks, the organizing director for Californians for Safety and Justice, and the former national criminal justice director for the NAACP, laid out a list of five areas for justice reform in the state that he felt were the most important for the gathered crowd to consider. In that CSJ is the non-profit that was the main organizer behind the passage of Prop 47, audience members listened carefully.

Rooks’ five-point “blueprint for reform” contained the following:

1. “We believe that we must get Smart on Jails,” he said. “We have too many people that are stuck [in jail] because of the cash bond system.” He also said he was inspired by a new pilot program in seattle called LEAD—Law Enforcement Assisted Diversion—in which cops participate in referrals to community programs, pre-booking.

2. “We also need to be Smart on Sentencing,” he said. For example, “we have thousands people incarcerated today on a non-serious second strike offense…. ”

3. Next on Rooks’ list was Smart on Youth and Adult Sentences. “Prop 21 has been talked about a number of times today,” he said, referring to the California ballot initiative passed in 2000 that increased a variety of criminal penalties for crimes committed by youth, and made it far easier to transfer young law-breakers into the adult criminal justice system. “It’s so past time to stop having babies as young as 14 being tried as adults. So it’s time to go to the ballot to overturn prop 21.”

4. “Smart on Reentry” was next up. If reentry is done right, he said, and some of the present barriers to success are removed that prevent the formerly incarcerated from succeeding, public safety is greatly enhanced, “And it builds trust back in the system.”

5. Last Rooks pointed to Smart on Safety, which he said meant Investing “in programs to help people”—trauma recovery centers, mental health treatment programs, more funding for schools. “We have a billion dollars still locked up in the criminal justice system. We need to get that money out and invest it in programs in the community.”


Among the day’s the most persuasive voices calling for criminal justice reform was former film producer Scott Budnick, best known for producing the Hangover movie franchise, who left Hollywood behind to found the Anti-Recidivism Coalition (ARC).

Budnick was instrumental in pushing for the 2013 passage of California’s SB 260, a law that gave a second chance at parole to kids who were convicted of murder before the age of 18 and sentenced to life-without-parole. He also was a prime mover behind SB 261, which built on 260, expanding parole eligibility to age 23, and was signed into law this year.

When questioned by panel moderator, Alex Johnson, executive director of the Children’s Defense Fund, CA, Budnick said he thought it was the personal testimony of those locked up for youthful crimes that was, to a great degree, responsible for the surprising passage of SB 261.

“It was the stories of the people going into legislature, saying ‘This is who I was when I was 14. This is who I was when I was 20. I made the worst mistake of my life. I got locked up… The system didn’t change my life… I chose to change my life, and now I’m out, and this is what I’m doing.’ And no matter if we were sitting with democrats, moderate democrats, or republicans, those stories blew their minds. And that was the game changer.”

Budnick talked about when he got his own mind blown at California State Prison at Pelican Bay, where he and a small cadre of advocates and attorneys held a seminar with people who had been convicted as juveniles, who were now locked in solitary confinement, but who could qualify for parole consideration under 260 and 261.

One of the encounters Budnick had was with a man who was about 60 years old. “I can’t get it out of my memory,” said Budnick. The man had been incarcerated for around 40 years for a teenage crime. Thirty of those years had been spent in isolation. “And when we told him about SB 260, he started weeping….knowing that he had the ability to now come home,” Budnick continued. Because the man was still solitary, Budnick could not talk to him face-to-face. Instead “he stuck his little finger through the hole in the cage and he shook my finger and said, ‘You’re the first person I’ve ever touched in 30 years.’”

Among the reform targets that Budnick wants to focus on next, he said, are the sentencing “enhancements” now on the books in California that can turn a relatively short sentence into one of multiple decades for young people, particularly if that young person can be labeled a gang member.

Panel member, Elizabeth Calvin, a children’s rights attorney for Human Rights Watch, agreed and listed additional justice issues affecting kids that she has in her radar. Front and center for Calvin is the matter of solitary confinement for juveniles, and the process of deciding whether or not a young person will be tried as adult, a decision she noted was once was in the hands of judges, that now, she said, was determined by prosecutors “about 70 percent” of the time.

In order to share some of the compelling justice stories he and fellow activists have witnessed, Budnick announced that he was working to raise $300 million to launch a new social justice-focused film company. The mission, Budnick said, was solely “to tell the right stories, and change the narrative.”


Philanthropic foundations, from the California Endowment, the Ford Foundation, the WK Kellogg Foundation, the Rosenberg Foundation, and the California Wellness Foundation, are all significant players in the state’s justice reform movement, and each of those foundations had representatives at the summit who talked about why their organizations were so committed.

For instance, Dr. Gail Christopher, who is the vice president and senior advisor at the WK Kellogg Foundation, talked about race and incarceration, arguing that that if we as a nation don’t own up to that “absurd notion,” of a “hierarchy of human value” which leads to “disparities in education…healthcare access, residential segregation, lack of affordable housing,” a large percentage of the next generation will find themselves behind bars, too.

Building on Dr. Christopher’s points, Dr. Robert K. Ross, President of the California Endowment said that justice reform work is “uncomfortable for many of our colleagues in the [philanthropy] field… because it forces us to confront issues of race and power.”

Foundations are much more comfortable funding research,” Dr. Ross said. “Getting the data out, and trusting that little elves will take those papers and turn them into really good public policies,” he continued.

Ross said that only within the last five years has the Endowment, a private foundation traditionally advocating for health access and equity in communities state-wide, focused on criminal justice reform as a health issue.

“We had our view of what a healthy community looked like. We had our data, and our slides, and our charts,” said Ross. “And then, the community told us what their definition of a healthy community was. Included in their definition…was the disruption and the dismantling of the prison pipeline. We could not escape that conversation anywhere we went.

As the day came to a close (following a bunch of discussions between heavy-hitter panelists about issues like the connection between community health care and public safety, and racial bias in policing, and arts in reentry and rehabilitation), civil rights attorney Van Jones praised California activists for helping to trigger the beginnings of bi-partisan reform on a national level. “The leadership in this room is changing the country,” Jones said. And still, miles remain on the road to equality in the criminal justice system.

Posted in Sentencing | No Comments »

Stanford Report Looks at Prop 47 Data, LA Sheriff Records Videos About Prop 47, SF Has a New Sheriff…and More

November 5th, 2015 by Taylor Walker


California’s release of thousands of prisoners through 2014′s Proposition 47 has not led to an increase in crime, according to a controversial Stanford report released this week.

In the year since the implementation of Prop. 47, which reduced six low-level felonies to misdemeanors, only 5% of the nearly 4,500 released early from jails and prisons have returned to lock-up. Pre-Prop. 47, 42% of state inmates went back to prison within a year of their release. It’s still too soon to calculate the full impact of the proposition on crime rates. And while the recidivism data recorded by the state prior to Prop. 47 is limited, the Stanford study suggests that the unusually low recidivism rate among Prop. 47ers indicates that higher crime rates in California should not be attributed to the 2014 law.

Since last November, there are 13,000 fewer inmates in CA prisons and jails. That number is significant because it means that fewer inmates have to be released early due to overcrowding. The study found that because of Prop. 47, counties reduced those early releases by 35%.

Stanford researchers estimated the state and counties will save a combined $300 million annually, from which $150 million will be earmarked for mental health and substance abuse treatment, efforts to reduce truancy in public schools, and services for crime victims.

In an interview on the blog, Stanford Lawyer , the report’s author, Justice Advocacy Project’s director, Michael Romano, discusses his findings, the ways he says Prop. 47 has been successful, as well as criticism of the law. Here are some clips:

News about rising crime rates has been getting a lot of attention lately. Is that the case in California—is crime going up here?

Romano: LA is reporting a rise in crime; other counties are reporting a decrease in crime. But there’s no state-wide crime data available yet. There is no evidence connecting Proposition 47 with crime rates. However, as I said, the data really isn’t in yet.

Where is that coming from?

Romano: I think the LA police department, which is obviously the biggest and most important in the state. I don’t doubt that their data is correct, but data provided by other counties and other police departments shows that crime in those counties is going down. Now, how each county reports crime and what they each consider to be property crime, versus violent crime, it’s all different, county to county, so it’s very difficult to say apples to apples.

Is there a correlation between a rise in crime, if there really is one, and Proposition 47?

Romano: There is no evidence that there’s a correlation. The correlation that is suggested by some law enforcement officials, frankly, does not square with the available data and, certainly, the data that has been released by state agencies—including the Department of Corrections, which indicates that those who’ve been released early under Proposition 47 are not responsible for the crimes being reported.

There have been several op-eds in the LA Times about Proposition 47, some critical of it. Marc Debbaudt, president of the Association of Deputy District Attorneys, said in one that criminal history is no longer taken into account for sentencing since passage of Proposition 47, even a history of serious crime, such as armed robbery and assault with a deadly weapon, which is contrary to what I’ve read about Proposition 47. Is he just wrong about that?

Romano: No. He’s right in that if you were convicted of an assault in the past and sentenced and served your time and then released, you start with a clean slate. If you commit a drug crime, then you are sentenced for that new drug crime. The punishment for that new crime has reduced from a presumptive sentence of 18 months to a presumptive sentence of one year.


Romano: There has been a lot of misinformation spread about Proposition 47 and I hope that this report helps paint a realistic picture based on real data.

The initiative was supported by key law enforcement individuals including San Francisco District Attorney George Gascón and William Lansdowne, former San Diego police chief. And Derek Byers, President of the California Public Defender’s Association, has voiced optimism about the data highlighted in your report.

Romano: Overwhelmingly, the people who have spoken up against Proposition 47 are folks in law enforcement who opposed it in the first place, who are now apparently seeing some rise in crime in their jurisdiction and, rather than looking to their own policies or other outside trends, are blaming concerns about public safety on Proposition 47, without any empirical data to support those claims.


Continuing the LA Times’ editorial series on Prop. 47, LA County Sheriff Jim McDonnell recorded a series of videos of his take on Prop. 47 and its effects a year after its implementation. Sheriff McDonnell says that the law has removed consequences beyond citations for certain offenses, and has made Californians less safe than they were a year ago.

For a successful Prop. 47, Sheriff McDonnell says, “we should have front-loaded the treatment portion with funding from the state.” Because substance abuse and mental health diversion courts were set up to serve people facing felonies with longer sentences, participation in these alternative courts is down 60% in Los Angeles. (In a separate op-ed for the Times, Superior Court Judge Stephen V. Manley, who founded Santa Clara County’s mental health and drug courts, said that for the courts to survive, they can and must evolve.)

McDonnell discusses the department’s use of risk assessment and triage with regard to jail overcrowding and which offenders stay locked up and which are released early. The sheriff also says he believes that a climate of mistrust and scrutiny of law enforcement across the nation may be responsible for rising crime, by making officers afraid to be proactive.

Go watch the sheriff’s video messages.

The Times had two more recent additions to the Prop. 47 series.

As the nation turns its attention to the 6,000 federal prisoners granted early release, a Times editorial says the most crucial thing for those 6,000 and the thousands released from California’s prisons and jails is reentry: substance abuse and mental health services, housing, employment and other services that are often underdeveloped and underfunded.

The editorial makes the case that while official Prop. 47 funds will not be available to use for reentry services until next year, there’s still untapped savings (from the reduction in felony prosecutions) that the state and local municipalities could put to work right now to beef up support for people exiting lock-up. Here’s a clip:

Prisoners come home every day. About 9,000 California inmates completed their sentences and returned home each month during the worst of the state’s prison crowding crisis. Their prospects for staying on the straight-and-narrow were not great because in-prison treatment and rehabilitation programs were too few to meet the need, and because the prisons were (according to federal judges) “criminogenic” — meaning the environment made it more likely that inmates who returned to their neighborhoods would return to crime. Yet as large numbers left prison, crime rates kept falling. Offenders were reabsorbed into society in fairly large numbers without touching off crime waves.

Those releases, however, have been accompanied by increases in the number of people living in misery on the streets who suffer from mental illness and drug addiction. It doesn’t take a leap of imagination to see the connection. The problem of draconian punishments for nonviolent acts such as drug possession is being addressed in large part by the resentencing and release of prisoners. But prisoners coming home without drug or mental health treatment, without jobs, without housing and without reentry counseling and support — this is a different problem and is a long way from resolution. When inmates were being released at a steady pace of 9,000 or 10,000 a month, society’s failure to offer assistance could be conveniently ignored. That will be harder to do as sentences are shortened and the number of prisoners coming home becomes larger.

In a third entry in the Times series,
the editorial board urges legislators to eliminate the three-year deadline for people with old felony convictions to take advantage of Prop. 47, in part because so many of those eligible are still unaware of the opportunity. Here’s a clip:

…old felony records still keep most of those people from fully taking their places in society, even if they have lived crime-free for decades.

Should that matter to the rest of us? It should. It’s a basic American value that people who have done their time ought to be able to return to society with their rights and opportunities restored, especially when the crime in question was neither violent nor serious. The crimes are still crimes, and the rap sheets won’t disappear, but the records should be updated to reflect the fact that the offenses are now misdemeanors, not felonies.

Many people with felony records remain legally marginalized, unable to get good-paying jobs, inadmissible to many schools and virtually ineligible to care for foster children or even their own kids. All told, according to some studies, they are burdened by more than 4,000 restrictions that don’t apply to people with only misdemeanor records. It’s in the interest of all Californians to ensure that as many former offenders as possible can transition from incarceration to responsible positions in society as parents, breadwinners and members of their communities.


Ross Mirkarimi lost his re-election bid for San Francisco Sheriff on Tuesday to Vicki Hennessy.

Hennessy, who won by a landslide, says she wants to repair the department’s relations with Immigration and Customs Enforcement, choosing on a “case by case” basis” when to notify ICE that an undocumented inmate is about to be released.

The new sheriff’s stance does not seem to fully line up with San Francisco’s “sanctuary city” status, which the SF Supervisors reaffirmed in October, despite criticism, after an undocumented man, whom ICE had wanted for deportation, shot and killed a woman on the pier.

Hennessy says she will also take a serious look at Mirkarimi’s recent decision to house transgender inmates according to their gender identities.

The NY Times’ Laura Holson has the story. Here’s a clip:

Ms. Hennessy will succeed Sheriff Ross Mirkarimi, whose four-year term was marked by personal scandals, confrontations with Mayor Edwin M. Lee, and — perhaps most dramatically — the release of an illegal immigrant in his jail who had several felonies.

The felon he released, Juan Francisco Lopez-Sanchez, had been deported to Mexico five times and, after winning freedom here, proceeded to shoot a tourist named Kathryn Steinle to death on a pier on the Embarcadero waterfront. The issue prompted San Francisco to re-examine — and reaffirm — its commitment to being a sanctuary city, one that shields immigrants from deportation.

Ms. Hennessy, who was backed by the mayor, said she would take a more inclusive approach in working with federal immigration officials, reviewing on a “case-by-case basis” whether to notify them when an unauthorized immigrant with a criminal record was due for release.

Ms. Hennessy said she did not have a political agenda but wanted to bring a sense of calm back to the Sheriff’s Department; many of Mr. Mirkarimi’s deputies had campaigned for her and against him. She takes office in January.

“I was an executive and manager for 25 years,” she said. “We are going to agree to disagree, but we will get things done together.”

Posted in Sentencing | 6 Comments »

Did California Voters Go Wrong With Prop 47?

October 26th, 2015 by Celeste Fremon

When Proposition 47 passed nearly a year ago, last November,
it did so by a healthy 17-percent margin, with more than 58 percent of those casting ballots in California voting YES for The Safe Neighborhoods and Schools Act, despite vehement opposition from the law enforcement lobby.

So were the state’s voters crazy to have voted as they did?

Certainly since Prop. 47 passed, there has been story after story in media outlets up and down the state in which officials claim that the measure is responsible for worrisome spikes in crime that compromise public safety, and that the new law also makes it nearly impossible for drug addicts now to receive court ordered treatment, among other deleterious effects.

So what is true?

This week the LA Times Editorial Board has decided to look into the claims and counterclaims, using its Opinion Page as the forum for what it hopes will be an honest and clear-eyed discussion.

We at WitnessLA applaud the Times’ refreshing move.

On Sunday, editorial board member Robert Greene kicks off the conversation by taking a hard and very welcome look at some of the actual facts of the matter.

Here’s how Greene’s Op Ed opens:

Police and prosecutors have lately attempted to link increases in crime to last year’s Proposition 47. Based on their overwrought statements, it would be understandable for Californians to start wondering whether they had been duped into completely decriminalizing drug possession and petty theft. They could be forgiven for asking whether it’s really the case that their law enforcement officers can no longer arrest thieves for stealing guns or breaking into cars, or have no option but to write tickets while watching all manner of mayhem unfold before them. They might hear that addicts have lost any incentive to choose drug treatment or to show up for court hearings.

None of those things are true, although officials in many communities throughout California appear to sincerely, although mistakenly, believe them. As is the case with all large bureaucracies, it is difficult for courts and for city and county agencies — police departments, sheriff’s departments, district attorneys, probation officers, county supervisors — to understand and constructively respond to changed circumstances. And Proposition 47 no doubt brought change, by converting six felonies to misdemeanors and allowing many people serving sentences for those crimes, and those who served their time long ago, to be resentenced and have their rap sheets adjusted.

We’d probably be better off if the various links in the public safety chain had opted to temporarily stick with their old practices following last November’s vote: if police kept arresting people for crimes reclassified as misdemeanors, and transporting suspects to jail and to court for arraignment, for example; and if prosecutors considered the circumstances (Is this the defendant’s first arrest for drug possession? The eighth?) and occasionally opted to seek the full sentence (up to a year behind bars); and if courts offered diversion or rehabilitation as an alternative — all of which not only remain available, despite assertions to the contrary, but absolutely must be used, selectively, if Proposition 47 is to work properly. They could have spent the last year examining their options and carefully and deliberately adjusting their practices so as to bring the maximum amount of public safety to the communities they patrol.

There’s lots more. So read on.

Posted in Sentencing | 5 Comments »

« Previous Entries