By Allen Hopper, ACLU of Northern California

The revised California budget is out and sentencing reform is, well, left out. In his revised budget Gov. Brown recommitted to his criminal justice realignment plan, but didn’t include any sentencing reforms that would help ensure that the plan is effective and affordable. Realignment reserves state prison for people with the most serious offenses and redirects people with low-level offenses to local control. This is a step in the right direction but it leaves a key piece of the puzzle missing: we should convert minor offenses from felonies to misdemeanors so that the punishment and its associated taxpayer cost fit the crime.

Two reforms alone would save the state hundreds of millions annually while keeping communities safe: making possession of a small amount of drugs for personal use a misdemeanor instead of a felony and making low-level, non-violent property offenses–like vandalism or writing a bad check–a misdemeanor. These sentencing reforms also help lower the cost of realignment. By making low-level offenses misdemeanors instead of felonies, we decrease costs because sentences are shorter and court costs are lower.  

California spends hundreds of millions of dollars every year locking people up for minor offenses when they pose no threat to public safety. We can save money and keep our communities safe by reserving felony sentences for serious crimes. In addition to their high costs, felonies should be reserved for serious crimes because they impose lifetime obstacles to employment, housing, education, and public benefits.

We recently asked voters what they thought, and the results were striking. A solid majority of Republicans, Democrats and Independents from every corner of the state believe that too many people are imprisoned and that penalties for minor offenses are too harsh. Nearly three-quarters (72%) of likely voters support reducing the penalty for simple possession of a small amount of drugs for personal use. (We commissioned the poll along with Drug Policy Alliance and the Ella Baker Center for Human Rights. The full results and analysis are online.)  

At the end of the day, the time should fit the crime. (Just a few weeks ago a man was charged with a felony after stealing a $2.95 Godiva candy.) Realignment is a promising good first step. The legislature and Governor have recognized, through the realignment plan, that low-level crimes don’t merit sending people to state prison. Now, let’s realign our sentencing laws: felony sentences should be reserved for serious offenses that truly threaten public safety.  

By Allen Hopper, ACLU of Northern California

California voters came out in droves to support Proposition 19 this November. More than 4.1 million people voted for Prop. 19, which would have allowed adults 21 and older to possess and grow small amounts of marijuana for personal use and allow cities and counties to tax and regulate commercial sales. That’s more votes than Meg Whitman or Carly Fiorina garnered. Though the measure didn’t pass, the degree of support marks an undeniable leap forward in the movement to end marijuana prohibition. In the end, Prop. 19 achieved a higher percentage of “yes” votes (46%) than any state-level legalization measure on the ballot over the past decade.  

This is clearly only the beginning of a new, more rational public discussion about marijuana. It’s no longer a question of whether marijuana prohibition should end, but rather when and how. Post-election polling data shows that many voters who rejected Prop. 19 nonetheless believe that marijuana should be made legal. Even the leaders of the opposition to Prop. 19 publicly stated that they are not opposed to marijuana legalization, “if it’s done the right way.”  

There is already talk about another initiative on the California ballot in 2012, and California Assemblyman Tom Ammiano has pledged to introduce a new statewide tax and regulate bill. And California is not alone in its efforts. Several other states are likely to have legalization or decriminalization on the ballot in the near future, including Washington, Oregon, Alaska, Colorado and Nevada. What we know is that it is clear that states do indeed have the right to decide for themselves whether or not to keep state marijuana prohibition laws on the books.  

The war on drugs has failed, and people are ready for a change. The United States has the highest documented incarceration rate in the world. One in every 31 adults is on probation, in jail or in prison. FBI figures show that over 800,000 people in the U.S. are arrested for marijuana offenses each year. The vast majority of these arrests are for low-level, nonviolent simple possession offenses. Drug law enforcement in the United States is a driving force behind some of the worst aspects of our flawed criminal justice system, including tragic racial disparities. People of color are arrested at far higher rates than whites for marijuana offenses, even though rates of drug use are equal across racial lines.  According to the Prison Policy Initiative, we incarcerate black men in the United States today at rates more than five times higher than in South Africa during apartheid.  

The public is taking notice that ending marijuana prohibition will ease our overwhelmed state and local budgets, and will free up law enforcement resources to address serious and violent crime.

Despite the disappointing outcome, Prop. 19 was a giant step in the right direction. Let’s keep the discussion going.    



Allen Hopper is the Police Practices Director at the ACLU of Northern California.

By Bethany Woolman, Communications Fellow, ACLU of Northern California

In California, we shackle pregnant women in prison.

And despite widespread opposition, we will continue to do so.

Last week, California Gov. Arnold Schwarzenegger vetoed a bill that would have ordered county jails and prisons to stop shackling pregnant women. The bill, AB1900, required new guidelines on restraining pregnant women and would have encouraged counties to adopt these policies. It had overwhelming bipartisan support and passed the legislature without a single “no” vote.

The governor, however, opted to let the dangerous practice of shackling pregnant women continue.

As I type, jails and prisons across the state are forcing pregnant women to walk with shackles around their swollen ankles, chains around their middles, and handcuffs behind their backs – even through the first minutes of labor. This practice is inhumane.

The bottom line is this: shackling a pregnant woman puts her health at risk. Doing so can result in nasty falls and cause miscarriage or other serious injuries. Accordingly, doctors have opposed the use of shackles on pregnant women.

And it gets worse.

Although it’s already against California law to shackle women during labor, AB1900 would have gone further to prevent shackling of women at all stages of pregnancy while they are in transit. Disturbingly, only one third of county jails currently enforce pre-existing law preventing shackling of women in labor, making the passage of AB1900 even more crucial. This is unacceptable. Shackles can impair a doctor’s ability to treat a woman in labor in an emergency situation, putting her health at risk. No doctor should have to argue with correctional officers over when to unshackle a patient.

Shackling these women is cruel and unusual punishment – a violation of the Eighth Amendment. Incarcerated pregnant women have a right to safe treatment during pregnancy and delivery. The use of shackles violate that right and puts the health of pregnant women at risk. Kudos to the supporters and advocates who work every day to unshackle pregnant women, and to the legislature for advancing the bill. And shame on Gov. Schwarzenegger for keeping such a barbaric policy in place.

Although it is regretful that the governor clearly undermined the legislature on this issue, it is heartening that AB 1900 passed both houses of the California legislature with tremendous support from across the political spectrum. A tide of public opinion and awareness is turning. The movement to end the shackling of pregnant women is growing. This year Washington state joined ranks with a handful of other states to limit the shackling of women in labor. We hope that in the future these protections will extend to women in all stages of pregnancy. Let’s keep the drumbeat going.

We have no budget, no money for child care centers and college students, and no hope that these problems will be solved anytime soon. But take heart California, what we do have is a state-of-the-art death chamber. And soon we will have the best and brightest death row housing facility. Can anyone in Sacramento say “priorities”?

On September 22, “Day 83 Without a Budget,” the Governor revealed a brand new execution chamber. This was his latest leap into the budgetary black hole that is the death penalty. While state employees have been furloughed, the inmates at San Quentin have been hard at work building the new facility to replace the rigged-up gas chamber they had been using. After a judge ruled it was too small and poorly lit to put people to death without risk of serious error, the new one boasts such improvements as a room with lights.

Its price-tag? A mere $853,000.

 A few weeks earlier, back on “Day 41 Without a Budget,” the Governor “borrowed” $64 million from the state’s general fund, to be paid out of our still non-existent state budget. That money will be used to begin construction of the new death row housing facility, which in the end will cost $400 million to build. That breaks down to about a half a million dollars per cell. The facility is being designed to hold 1,400 inmates—twice the number of people currently on death row. That’s because the government knows that almost everyone sentenced to death in California will not actually die in the shiny new execution chamber. In fact, almost all will die of natural causes, just like they do now.

The Attorney General’s office claims we will use San Quentin’s brand new, well-lit execution facility next week, on “Day 91 Without a Budget,” to execute Albert Brown. But with three on-going legal challenges to the lethal injection procedures, legal experts doubt the execution will actually take place.

Mr. Brown has been on death row for 28 years. Based on averages of the costs of death penalty trials, state-level appeals, and housing in San Quentin, the ACLU estimates his case has cost California $4,788,750 over and above the cost that would have been incurred if Mr. Brown was sentenced to life without the possibility of parole.

Many people hear that and reason we could reduce the cost by decreasing the time spent on death row – after all, if he wasn’t on death row for 28 years, he couldn’t have racked up that $4 million dollar bill, right? Unfortunately not. In fact the reverse is true: speeding up the system would only cost more money. The California Commission on the Fair Administration of Justice concluded we would need to pay at least $95 million more per year to speed up the death penalty and increase its efficiency. That finding was agreed upon unanimously, by death penalty advocates and opponents alike.

Why? Because the bottle-neck in death penalty cases isn’t too many appeals or sympathy for death row inmates, it’s the same thing that bottle-necks every other bureaucratic enterprise on earth: money. Currently, a person sentenced to death waits an average of five years before an attorney is even appointed for appeal and 10 years before the first appeal is actually heard in court. Faster appointments and hearings can only be accomplished by hiring more attorneys and court staff. In short, by spending more money.

While state employees prepare for an execution in between their furlough days, millions of dollars are sucked into California’s machinery of death. Every state program is facing drastic budget cuts, from education to health care to law enforcement, but we can still scrape together more than $800,000 for a state-of-the-art, well-lit killing chamber and remain on track to spend $1 billion on the death penalty in the next five years.

 A safe and cost-effective alternative exists that can still salvage California from these absurd priorities. By cutting the death penalty and converting the sentences of more than 700 death row inmates to life without parole with work and restitution to the victims, we can save $1 billion in five years without releasing a single prisoner. Permanent imprisonment is swift and certain justice that keeps the public safe without sucking the budget dry.

By Diana Tate Vermeire, Racial Justice Project Director, ACLU of Northern California

The state’s criminal justice system is quickly becoming the only social service California is willing to fund. Our prison system is bursting at the seams, while school funding is drying up at the well. In the midst of a fiscal crisis — one that only seems to be getting worse — California continues to prioritize criminal justice spending instead of investing in the future of our state. Public education and crucial social service programs like welfare-to-work continue to experience drastic cuts, but California is loath to cut criminal justice spending.

Rather than choosing to prioritize basic necessities like a quality education, a job, and a place to live, our state’s leaders are instead forcing social service agencies to close their doors, deny services, or turn certain individuals away altogether. Meanwhile, our jails and prisons remain open to anyone brought to their doors, no matter the cost. That choice-pouring scarce financial resources into the criminal justice system rather than much-needed social services-has resulted in the disproportionate incarceration of people of color, and an alarming uptick in the number of women – both women of color and white women –  who are behind bars.

A new study by the ACLU of Northern California and the W. Haywood Burns Institute explores how racial, ethnic, and gender disparities in access to education, employment, and housing impact presence in the criminal justice system in three California counties: Alameda, Fresno, and Los Angeles. An important finding is that — surprise, surprise — these factors are related to how likely it is someone will wind up in jail or prison. It’s no far leap to presume that this is not an accident, but a direct result of the choices California makes.

But our study also found that counties are not collecting data in a way that allows us to fully understand how the existence of the racial, ethnic, and gender disparities outside the criminal justice system creates or reinforces those same disparities within it. This lack of data means that policymakers are creating policies without fully understanding the impact of their decisions.

Without adequate data from the counties, we turned to first-hand stories of people’s life experiences before and after their contact with police, jails, or prison.  

We interviewed people on probation, and their responses were alarming.

–  Those who attended schools where police officers regularly patrolled campuses had a greater likelihood of being arrested at a young age, expelled, and suspended.

–  Nearly two-thirds of the people interviewed reported they had inadequate income at the time of their arrest, and around 20 percent indicated that they turned to crime to help make ends meet.

–  In Alameda County, people on probation were less likely to have graduated high school, compared to the county’s average graduation rate.

–  In Fresno County, with a county unemployment rate of less than 10 percent, 29 percent of men interviewed and 59 percent of women interviewed were unemployed at the time of their most recent arrest. Nearly 21 percent of the Black labor force in Fresno County is unemployed, but 64 percent of Black interviewees were unemployed at the time of their most recent arrest.

Our findings point to a disturbing reality: we have overfunded California’s criminal justice system at the expense of critical social services. Those services, which are meant to ensure our citizens have access to the basic necessities of life, have been sacrificed for more prisons and an expensive new death row.

Communities of color and women can no longer afford California’s business as usual. The rates of incarceration for people of color — and increasingly, women — are not caused solely by the systemic bias within the criminal justice system. They are also directly related to the racial, ethnic, and gender disparities of who has access to the basic necessities of quality education, employment, and housing.

It’s time California prioritizes public safety by investing in prevention and intervention strategies, particularly those that reduce racial, ethnic, and gender disparities. By no means will all crime be eliminated. But we can choose to invest in programs that help turn lives around and give opportunities, instead of giving up so easily. To help us get there, counties must collect better data so we know the realities of what we are working with, and policymakers can make better, more informed decisions.

Imagine you’re a soldier stationed overseas and discover you’re pregnant. If you want to have an abortion but are living in a country where it’s illegal, you might as well be living in pre-Roe v. Wade America. Why? Current federal law prohibits almost all abortion services at U.S. military hospitals, even if a woman pays for the procedure herself.

By Maggie Crosby, Staff Attorney, ACLU of Northern California

Imagine you’re a soldier stationed overseas and discover you’re pregnant. If you want to have an abortion but are living in a country where it’s illegal, you might as well be living in pre-Roe v. Wade America. Why? Current federal law prohibits almost all abortion services at U.S. military hospitals, even if a woman pays for the procedure herself. So, like a woman in the 1950s, you can fly to another country to obtain safe, legal abortion care (if you can afford to travel and can arrange leave) or take your chances with an unsafe, illegal, local or self-induced abortion.

Here in California, we are sending thousands of women into military service and have the highest proportion of female veterans of any state-and these numbers are growing. We have among the strongest laws in the country protecting reproductive rights. But when California servicewomen are shipped out of state or overseas, they are deprived of the fundamental right to make pregnancy decisions.

The ban, which has no exception for pregnancies that jeopardize a woman’s health, poses grave risks for women stationed in countries where abortion is outlawed. Coupled with a tremendously high number of incidents of sexual assault in the military, a disturbing scenario emerges. A new analysis from  the Guttmacher Institute documents that “the restrictions fall hardest on the most junior of enlisted ranks, who are also the most likely to have an unintended pregnancy.”

This ban on abortion at military facilities hasn’t always been in place. Prior to 1988, military women were allowed to use their own funds to obtain abortions on military bases overseas. Military officials had wisely recognized that at many overseas stations-or even isolated areas in the U.S.-safe and reliable civilian facilities that provide abortion care are not always available.  

An amendment to the pending National Defense Authorization bill would repeal the dangerous ban on privately funded abortion care and allow U.S servicewomen to use their own money to obtain abortion services at U.S. military facilities. Congress will likely pass the bill sometime in the fall. Since the  House version doesn’t include a repeal of the ban, it’s important to reach out to representatives to urge them to support reproductive health care for our soldiers.

California  congresswoman Jane Harman has said that military women are more likely to be raped by a fellow soldier than killed by enemy fire in Iraq. Several studiesindicate that as many as a third of military women report rape or attempted rape during their military service. Department of Defense research reveals 3,230 reported sexual assaults in 2009, up 11 percent from the previous year. Servicewomen and veterans indicate that, due to incredibly low reporting rates, the actual number of sexual assaults of military women is much higher. DOD’s own statistics confirm low reporting rates.

Although the ban on abortion at military facilities includes an exception for rape and incest, it is meaningless when women in the military don’t feel that they can report sexual assault, especially if that assault is by commanders or fellow soldiers.I recently met with a young veteran who told me that when she reported being raped to her commander, his response was “What is it with you women? You’re the third this week.”

Journalist Kathryn Joyce reported the story of a 26-year-old Marine named Amy* who was stationed in Fallujah when she realized she was pregnant as a result of rape. Amy didn’t report the rape, fearing backlash from her male comrades. The abortion ban meant there was no other way to end her pregnancy. She attempted to self-abort using a cleaning rod from her rifle.

Lifting the ban would return the Department of Defense to the policy that existed for many years: women soldiers facing unintended pregnancies could obtain safe abortion care from doctors willing to provide it. It’s such a cruel irony that America’s young women who volunteer to protect our constitutional rights are denied theirs.

Congress should act now to end the ban on private funding of abortion at military facilities. Our Armed Services women deserve more from their country.

*pseudonym