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Stanford Criminal Justice Center
Stanford Criminal Justice Center

STANFORD LAW SCHOOL STUDENTS PRESENT KEY RESEARCH FINDINGS ON REALIGNMENT AND ON LIFER PAROLE TO CALIFORNIA GOVERNOR JERRY BROWN

Criminal justice students outline the implementation and impact of moving the state’s offenders from state prisons to county jails and also report on two empirical studies of the parole process for life prisoners

Class with Gov Brown_2

A group of Stanford Law School students recently presented their research findings to California Governor Edmund G. Brown Jr. on the implementation and impact of California’s Public Safety Realignment legislation and on key aspects of the parole process for California “lifer” inmates.

The students conducted the research as part of a course, Advanced Seminar on Criminal Law and Public Policy: A Research Practicum. The course was created byJoan Petersilia, the Adelbert H. Sweet Professor of Law, and the research was supervised under the auspices of the Stanford Criminal Justice Center (SCJC), which Petersilia co-directs along with Robert Weisberg, the Edwin E. Huddleson, Jr. Professor of Law. The research produced by the class is intended to contribute to the State’s and counties’ understanding of the impacts of Realignment in real-time.

According to Petersilia, “California’s Realignment is the biggest penal experiment in modern history, but little has been done to consider Realignment’s impact broadly, or to evaluate its statewide impact on crime, incarceration, justice agencies, or offender recidivism.”

Petersilia told students to envision the class as if it were a “makeshift policy institute” and to treat the Governor as a client.

The student researchers worked closely with the Governor’s top agencies, asking them to pose their most pressing questions. Their research methodology included conducting 90 interviews across 12 counties, speaking with practitioners on the ground about how AB 109 has impacted their daily work. They interviewed staff in the offices of the district attorney, public defender, probation chief, judiciary, sheriff, parole, and victim-witness services. They surveyed the following counties: Alameda, Fresno, Kern, Los Angeles, Orange, Riverside, Sacramento, San Francisco, San Joaquin, Santa Barbara, Santa Clara, and Solano. In addition, they collected detailed data on each of California’s 58 counties, pre- and post-realignment.

Five students delivered summarized reports, and in all, seventeen students were on hand to answer tough, detailed questions from the Governor and his accompanying staff, Gabriel Sanchez, Deputy Legal Affairs Secretary, and Anne Gust Brown, Special Counsel to the Governor and California’s First Lady.

Stanford second-year students Mariam Hinds and Matthew Owens, and third-year Jessica Spencer presented, “Voices from the Field: Emerging Trends in Realignment.” Jackie Robinson and David Friedman presented, “Marsy’s Law and Lifer Parole Denial Periods.” Second-year law student Michael Ruiz, whose study was done with Stanford undergraduate Eric Dunn, presented “Base Term Enhancements for Lifers Found Suitable for Parole.” The other students who were on hand to field questions from Governor Brown were John Butler, Eric Dunn, Mark Feldman, David Friedman, Kevin Jason, Corrine Keel, Marissa Landin, Rachel McDaniel, Camden Vilkin, Alyssa Weis, Jenny Williams, and Jordan Wappler.

At the conclusion of the presentation, Petersilia said, “Governor, these students are among the state’s experts on the implementation of Realignment and on the parole of California’s “lifer’ population—and all at no cost to the taxpayer!”

“This class has provided me and my classmates a unique educational opportunity to see how a major piece of criminal legislation plays out on the ground,” said student researcher Mark Feldman. “It is not often that, as a law student, one gets to feel like your research is serving a public interest need or that it will be read and considered by policymakers and practitioners around the state.”

On behalf of the Governor, Steve Acquisto, Chief Deputy Legal Affairs Secretary, praised the research, saying, “These areas often don’t get the attention or analysis they deserve, which makes the research your students have performed especially valuable.”

In an earlier pilot of this course, Petersilia and her students worked with California State Attorney General Kamala Harris and the Santa Clara County’s Community Corrections Partnership (CCP).

“This practicum is a perfect example of the extraordinary research opportunities available to Stanford Law School students,” said Stanford Law School DeanElizabeth Magill. “What’s quite exceptional is that our students are able to have a real impact on public policy while they are still in school.”

Headed by faculty co-directors Robert Weisberg and Joan Petersilia, and executive director Debbie Mukamal, the Criminal Justice Center operates as a public service consultant to public officials at all levels of government and encourages collaborative criminal justice policy by forging partnerships with government entities in the criminal justice arena that can benefit from social science research to develop empirically-validated, data-driven criminal justice programs and policies.

The SCJC’s research on the implementation and impact of California’s Public Safety Realignment Legislation is supported by four grants totaling $650,000 from the U.S. Department of Justice, Office of Justice Programs, National Institute of Justice; the James Irvine Foundation; and the Public Welfare Foundation.

The research presented to Governor Brown has been shared with the relevant state agencies.

SUMMARY: FINDINGS ON REALIGNMENT

“Realignment”—or AB 109— was passed in 2011 and transferred authority for convicted felons from the state prison and parole system to local counties and allocated $2 billion in the first two years for local programs. The statute offers counties an unprecedented amount of flexibility in most areas of community supervision, including sentencing and early release for low-level offenders, the use of alternative sanctions (electronic monitoring, substance abuse treatment, etc.), supervised probation, and delivery of social services. To date, more than 100,000 offenders have been “realigned” back to the counties as a result of AB 109.

Realignment was California’s direct response to a 2011 Supreme Court ruling inBrown v. Plata, which upheld a district court order requiring the state to reduce the prison population by approximately 30,000, to 137.5 percent of its capacity by 2013 (it has been as high as 200 percent of capacity) and improve medical and mental healthcare throughout the system.

While the overall population of incarcerated individuals in California may not change over time as offenders shift from state to local custody, the student researchers told the Governor Realignment can still be considered to have achieved its aims in both satisfying the court order and keeping offenders closer to their communities while investing in evidence-based treatment programs. In meeting these goals, California could simultaneously reallocate resources without compromising public safety.

Third-year student Jessica Spencer told the Governor and his team that, “Most counties feel like they are starting to ‘get their feet under them,’ and most report that the second year of Realignment is going much smoother than the first.”

The researchers found that Realignment has prompted counties to innovate in constructive ways, For instance, a number of sheriffs have taken the lead in developing rehabilitation and reentry programs.

“Every sheriff we interviewed firmly believed that they can treat offenders at home if given the proper resources,” explained second-year student Matthew Owens.

“Realignment has spurred counties to develop risk assessment tools, some for the first time, to manage their populations,” said Petersilia, “Some local jails had never managed their facilities and their inmate release decisions based on risk factors before. Now they are starting to.”

The student researchers demonstrated that in true “realignment,” the costs of incarceration should be “aligned” with the decision-making that leads to incarceration. Law enforcement, prosecution, and sentencing occur at the local level, and released prisoners eventually return home to their local communities. Realignment shifts back to counties the resources and responsibility for supervising their offenders. This has spurred agencies within counties to share resources and collaborate in ways they never did in the past. The cost shifting back to the counties created by Realignment also allows the state prison system to focus its resources on the most dangerous and long-term prisoners.

While Realignment allows counties to experiment in their own ways in handling the new jail and supervision populations, the student researchers have been collecting data on county differences. One example they reported is the use of new hybrid or “split” sentences which combine a jail term with a period of mandatory probation supervision. The researchers reported great variation among the counties in judges’ use of (and prosecutors’ recommendation of) such sentences and observed that the differences may lie in varying degrees of confidence these practitioners have in the quality of the supervision provided. For instance, in Riverside County judges have used split sentences in 60 percent of realigned cases whereas in Los Angeles County only 5 percent of sentences are split.

One repeated concern the student researchers heard from numerous practitioners across the state is the challenge counties face in effectively supervising a new type of offender. As explained by second-year student Mariam Hinds, “Counties are dealing with a more criminally sophisticated and hardened caseload due to the fact that some realigned offenses are more serious than pre-Realignment offenses that would have been sentenced locally and some inmates being released back to the counties from prison on post-release community supervision have serious or violent criminal histories.”

SUMMARY: FINDINGS ON PAROLE OF LIFERS

While Realignment has been the boldest criminal justice experiment in California, prisoners serving life sentences—who comprise 25 percent of the state prison population—represent a major challenge to the system. The parole grant rate has varied greatly under different gubernatorial administrations. The SCJC recognized that consideration of the parole release for this population should be part of a comprehensive evaluation of criminal justice in the state—especially in light of thePlata injunction.

The student research teams studying individuals serving life sentences with the possibility of parole worked on two distinct issues related to the parole process. In accordance with a research partnership Stanford has with the Governor’s office to study lifer parole, both student teams took on research that was requested by the Governor’s office and the Board of Parole Hearings for in-depth review. Law student Jackie Robinson, who did this research with fellow student David Friedman, presented an explanation of how the Board of Parole Hearings decides the length of time to defer the reconsideration of parole for prisoners found unsuitable for parole release.

Under Marsy’s Law (passed in 2008), lifers found unsuitable for parole have their subsequent hearing set at a period of 15 years from the present date unless the Board can find by “clear and convincing evidence” that the interests of the victim and public’s safety do not warrant such a lengthy period. If commissioners find sufficient evidence, they can set the denial length to 10, 7, 5, or 3 years. The students reviewed transcripts from 2011 and found that inmate characteristics like parole readiness, social and criminal history and institutional behavior largely explain who receives longer or shorter denials, but that other factors like gender, whether the inmate attends the hearing, and the identity of the particular commissioner also determine outcomes.

The students encouraged the State to establish clearer guidelines for the Board to use in making the parole denial length decision.

Second-year law student Michael Ruiz, whose study was done with Stanford undergraduate Eric Dunn, presented research examining one specific part of the parole process for those prisoners found suitable to be released on parole.  Specifically, this team studied how often the Board adds time to prisoners sentences by converting concurrent counts into consecutive ones as permitted under California regulations. The students closely analyzed 367 cases from 2011 and compared 30 variables to see if any patterns emerged in why some lifers received term enhancements from the Board of Parole Hearings that would keep them in prison longer and others did not. The team found enhancements were applied for 30 percent of lifers who had concurrent sentences (14 percent of all lifers total) and that none of the factors analyzed explained why some received enhancements and others did not. While the initial population that was being affected was small (only ten inmates), the researchers reported that “the number of ‘lifers’ affected by concurrent enhancements will increase as lifers are found suitable for parole earlier and as California does a more effective job in rehabilitating ‘lifers.’”

Additional Resources:

Professor Joan Petersilia is co-author, with Stanford Law student Jessica Snyder, of a recent study on Realignment: “Looking Past the Hype: 10 Questions Everyone Should Ask About California’s Prison Realignment” (forthcoming in California Journal of Politics and Policy, April 2013). Additionally, she has co-authored an article with Stanford Law student Jessica Spencer, “California Victims’ Rights in a Post-Realignment World,” forthcoming in Federal Sentencing Reporter, June 2013.

SCJC Briefing: Marsy’s Law and Lifer Parole Denial Periods

SCJC Briefing: Base Term Enhancements for Lifers Found Suitable for Parole

Stanford Criminal Justice Center Awarded Major Grants to Fund Its Research on the Effects of California’s Prison Realignment

Studying Prison Realignment in RealtimeStanford Lawyer, October 28, 2011

Stanford Criminal Justice Center webpage on Realignment

Note: A few of the students have or will be presenting their research:

  • Jessica Spencer to the California Victim Compensation and Government Claims Office on March 4, 2013
  • Marisa Landin and Corinne Keel at the April 12, 2013, “Police, Prisons, and Power: Interdisciplinary Perspectives on Criminal Justice” sponsored by The City University of New York’s Prison Studies Group (in New York City)

Prisons Can’t Afford to Cut Rehabilitation Funds

The title of this post is also the title of a recent Op Ed in the SF Chronicle by the President of California’s Crime Victims United Harriet Salarno and State Assemblyman Ted Lieu.

I have known Ms. Salarno for several years and have found her to be a formidable voice on behalf of the victims rights movement. Yet, in my discussions with her, she has often spoken as passionately about the need to help nonviolent offenders rehabilitate as about the need to vindicate the rights of victims.

This Op Ed seems to adopt a view long held by many criminal justice reformers and victims rights advocates alike: offender rehabilitation and victim support need not be adversaries in the criminal justice system.

A Blue-Ribbon Look at Criminal Justice

The New York Times ran an editorial on Saturday endorsing Senator Jim Webb’s proposal to create a commission tasked with examining the nation’s criminal justice system.

Here’s a snippet from the editorial:

“The high imprisonment rate has long been troubling as a matter of fairness, but with the recession it has become an enormous financial burden. States have begun, out of fiscal necessity, to parole prisoners faster and in larger numbers, and to look for alternatives to incarceration. This scattershot approach is far from ideal. It would be better to have experts address these issues at a national level in a more methodical way.”

Most of the bill’s supporters to date have emphasized the commission’s role in examining the American criminal justice system’s high incarceration rate, racial imbalances, and proportion of inmates incarcerated for drug crimes. This editorial suggests another reason to support the bill – the commission’s ability to systematize states’ attempts to reduce corrections spending by releasing prisoners and help ensure releases are accomplished without threats to public safety.

Obama seeks to increase funding for crime research

According to The Crime Report, the President’s FY 2011 budget proposal includes a $22 million increase for the National Institute of Justice and a $2.5 million increase for the Bureau of Justice Statistics (these two agencies fall under the federal Office of Justice Programs and together perform the bulk of the nation’s research on crime and justice). At the same time, it proposes to cut $15 million from local prosecutions of gun crimes through the federal Project Safe Neighborhoods program.

Does this signal a shift on the part of the administration away from prosecution and toward research as a primary mechanism for administering the criminal justice system?

Child Pornography, and an Issue of Restitution

The title of this post is also the title of a recent NY Times article that poses the following question: should the individuals depicted in child pornography images be entitled to collect restitution from those who possess (but have not produced) the images?

Underlying this serious policy issue is a series of other questions American courts have yet to resolve. Questions such as:
– Are the children depicted in child pornography “victims” of the crime of possessing such pornography (it being well settled by now that children are victims of the crimes of abusing children and making child pornography)?
– Does possessing child pornography proximately cause any of the harms suffered by the children depicted in the images?
– Has society gone too far in punishing possessors of child pornography?
– If so, is the imposition of a restitution requirement an example of going “too far”?
– If imposition of a restitution requirement is an appropriate punishment in these cases, is joint and several liability the proper approach?

I find it hard to conceive of an argument that the children depicted in child pornography are not “victims” of the crime of possessing said pornography. The secondary harms suffered by sexual abuse victims is well-documented.

The argument that possessing child pornography is not a sufficient proximate cause of the child’s suffering to justify imposition of a restitution requirement is related to the question of whether the child is a “victim” of the crime of possession. Again, I find it difficult to conceive of an argument that there is insufficient proximate harm to justify a restitution award. One young woman has received 800 notices from the federal government in the last five years notifying her that pornographic photos of her as a child have shown up in a new child pornography prosecution. I haven’t seen the evidence purporting to document the harm she suffers from that experience, but I find it very difficult to deny the plausibility of her claim.

I am sympathetic to the argument that society has gone too far in punishing sex offenders generally. I don’t know enough about child pornography cases (the harms suffered by the victims, the recidivism rates of offenders, etc.) to form an opinion about whether society has gone too far in punishing possessors of child pornography, although evidence of increasing downward departures in the imposition of federal sentences in child pornography cases supports the argument that many federal judges think the prison sentences prescribed by the federal sentencing guidelines are too long. In any event, a thorough analysis of this issue is surely beyond the scope of this post.

Even if society has gone too far in punishing possessors of child pornography, however, I am not convinced that imposition of a restitution requirement is an example of this phenomenon. If it is true that child pornography victims suffer harms related to the need for counseling, lost wages, etc., and if these harms are caused in part by the possession of said pornography, it seems to me that restitution is both more beneficial for victims and less onerous for defendants than lengthy prison terms.

If restitution is proper, is joint and several liability the right approach for imposing it? I’m not sure at the moment, but I hope someone will offer an answer in their comments.

Three years, 2603 killings

The title of this post is also the title of a recent entry in the LA Times’s The Homicide Report: The Times Chronicles L.A. County Homicide Victims.

The entry contains some painful statistics regarding the demographic characteristics of a typical Los Angeles homicide victim. It states, in part:

“Latinos are killed in greater numbers than all other races combined, accounting for 1,367, or 52%, of 2,604 county homicides recorded since 2007. Black people are killed at a rate far out of proportion to their presence in the county, making up more than 30% of the homicide victims and less than 10% of the county population. And homicide is overwhelmingly a phenomenon of young men, with 85% of all victims men and nearly four of every 10 victims between the ages of 17 and 25. Guns were used in almost three-quarters of all killings during the period.”

For several years, criminal justice reform advocates have been bringing public attention to the fact that young men of color make up a disproportionate number of criminal defendants and jail and prison inmates. This snapshot of LA sheds a light on another troubling facet of the relationship between race and the American criminal justice system: young men of color are disproportionately represented among the population of homicide victims as well.

The New Jim Crow: Mass Incarceration in the Age of Colorblindness

Michelle Alexander, author of a new book whose title is also the title of this post, will speak at Stanford Law School on Feb 10 at 12:45 p.m., not at 2:30 p.m. as previously announced.

Governor’s Plan for Prisons Ignores Racial History

The title of this post is also the title of an Op Ed in today’s Sacramento Bee, criticizing California Governor Arnold Schwarzenegger for failing to address the racial dimensions of California’s prison crisis.

In this timely Op Ed, Associate Professor at Ohio State University’s Moritz College of the Law and 2005 Soros Justice Fellow Michelle Alexander argues that

“… California, like the nation as a whole, has treated generations of African Americans and Latinos as largely disposable. They have been rounded up by the thousands, locked in cages, and upon release ushered into a parallel social universe in which they can be denied the right to vote, automatically excluded from juries and legally discriminated against in employment, housing, access to education and public benefits – reminiscent of an era we supposedly left behind. Most of the people labeled felons are not murderers or dangerous criminals. They are black and brown, very poor and paying the price of a get-tough movement driven not by crime rates, but by politics – a politics that has scapegoated the most vulnerable as a means of scoring political points.”

Professor Alexander’s Op Ed, like her new book, The New Jim Crow: Mass Incarceration in the Age of Color Blindness, calls attention to one of the most troubling, and challenging, facets of domestic policy today: the tremendous suffering inflicted by both crime and criminal justice policies on people and communities of color.

Professor Alexander will be speaking at Stanford Law School on February 10, 2010, at 12:45 p.m. in Room 230. Additional speaking engagements will be posted when they become available.

Senator Webb comments on National Criminal Justice Commission

In this YouTube video, Senator Jim Webb comments on his bill to create a National Criminal Justice Commission.

“When you’ve got 7 million people in a country our size involved in the criminal justice system … this is a leadership problem.”

Preliminary data suggests crime down

Preliminary 2009 data from the Uniform Crime Reports suggests that crime is down significantly from 2008. Across the country:

  • Violent crime generally is down 4.4%;
  • Murder is down 10%;
  • Forcible rape is down 3.3%;
  • Robbery is down 6.5%
  • Aggravated assault is down 3.2%;
  • Property crime generally is down 6.1%;
  • Burglary is down 2.5%;
  • Theft is down 5.3%;
  • Motor vehicle theft is down 18.7%;
  • Arson is down 8.2%.

Notably, most of the crime drop is occurring in cities with populations of over 1 million (murder down 13.4% and motor vehicle theft down 21.9% in these cities).

Perhaps of greatest interest to those who study the relationship between crime and incarceration, these crime drops are happening during a time when we may be seeing the first prison population declines in decades.

The FBI, which publishes the Uniform Crime Reports, is careful to note that the data are preliminary.