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

THERE’S A DISPUTE OVER HOW MUCH PROP. 47 IS SAVING CALIFORNIA, LEAVING FUNDS MEANT FOR REHABILITATION AND MENTAL HEALTH SERVICES IN LIMBO

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.

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A $30 MILLION SETTLEMENT WILL GO TO JOB TRAINING FOR PEOPLE AFFECTED BY LA’S GANG INJUNCTIONS

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.

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OBAMA’S SCOTUS NOMINEE, MERRICK GARLAND, AND THE FUTURE OF CRIMINAL JUSTICE REFORM

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.

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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.

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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.

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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.