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Life Without a Chance

By Tanya Greene, Advocacy and Policy Counsel, ACLU

We as a nation need to stop throwing away our children. Kids are still maturing and developing — as I like to say, they are not done yet. As a result, society treats kids and adults differently in a wide array of contexts: kids cannot drive, sit on juries, enter contracts, join the military, smoke, drink, marry or hold political office. Yet we lock them up and literally throw away the key. Making matters worse, we condemn black youth forever at 18 times the rate of white youth and Latino youth at five times the rate of whites.

Young people need to be held accountable for their criminal actions in a way that allows them to grow and develop into successful adults. California’s Senate Bill 9 would improve the law to reflect kids’ capacity for rehabilitation, plus it protects public safety and is fiscally sound. S.B. 9 would allow youth who were sentenced to life in prison without parole for an offense committed while they were under 18 an opportunity to show remorse, rehabilitation and redemption. Under this new law, youth could petition the court for review of their sentence after serving 10 to 25 years first, with no guarantee that a lesser sentence would be imposed. There would also be no guarantee of parole, simply a hope of it where there is now none. Isn’t this the least we could do for our future generation?

Right now, there are over 2,500 individuals in prison for the rest of their entire lives because of behavior they engaged in as children, including almost 300 in California. We sentence children as young as 13 and 14 to die in prison; we consider charging 5-year-olds with murder. No other country in the world does this to its young people.

Consider Anthony C., Michael A., Sara K. Aren’t our most fragile, vulnerable community members owed a second chance? Cyntoia Brown is but one of our inmate children. Shouldn’t we consider the circumstances of her life of forced prostitution that played into the murder of her pimp at age 16?

Last year, the United States Supreme Court agreed that children convicted of non-homicide crimes were too young to warrant absolute hopelessness. Fourteen states already recognize that children should not be sentenced to life in a box, or just don’t do it. California is poised now add another law to the list in recognizing that no child, regardless of his crime, should be forsaken.

We have to take responsibility and own how we raise our kids — and how we punish them.

Lawmakers in California passed S.B. 9 out of the appropriations committee this week and the entire legislature may vote on it as soon as next week. If you live in California, take action today. Contact your assembly member and urge him or her to support S.B. 9.

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The ACLU’s 12-Step Plan to End California’s Addiction to Incarceration

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By Allen Hopper, Police Practices Director, ACLU of Northern California

The Golden State has a problem. An addiction problem. California is addicted to incarceration. We’ve hit rock bottom, and it’s time for an intervention. To help the state break the addiction, yesterday the ACLU of California sent a 12-step plan to every county in the state, as part of a larger ACLU comprehensive public safety realignment report. The report urges a fundamental shift in criminal justice policies toward smart on crime alternatives to incarceration.

California is facing unprecedented challenges. State and local governments continue to struggle to close record budget deficits, making deep cuts in core programs including public safety, education and social services. On top of that, the Supreme Court decision in Brown v. Plata ordered the state to immediately remedy its unconstitutionally overcrowded prison system, which is so overburdened that it is jeopardizing the health and safety of inmates and staff alike.

Gov. Jerry Brown’s new public safety realignment legislation, A.B. 109, attempts to address the Plata decision by "realigning" public safety responsibilities from state prisons and parole officials to county governments. If California counties implement this legislation properly, the state is poised for a paradigm shift in how we deal with crime, punishment and sentencing. The legislative findings contained in A.B. 109 are remarkable in their acknowledgment of the utter failure of 30 years of "lock ’em up and throw away the key" mentality in California:

"Criminal justice policies that rely on building and operating more prisons to address community safety concerns are not sustainable, and will not result in improved public safety…California must reinvest its criminal justice resources to support community-based corrections programs and evidence-based practices that will achieve improved public safety returns…"

The state is counting on A.B. 109 realignment to reduce the prison population and bring it into compliance with the Plata mandate; most people sentenced after October 1 for low-level felonies will be subject to local jurisdiction rather than being sent to state prison. But instead of simply adding local jail capacity to handle this new population at the county level, A.B. 109 instructs counties to employ sanctions and services that have been demonstrated to reduce recidivism and increase public safety — and cost less than incarceration.

That’s where the recommendations in the ACLU’s report come in. Among other things, the report urges counties to adopt new programs to reduce costs and lower jail populations. These include pre-arrest diversion — which diverts appropriate low-level offenders into rehabilitation and treatment instead of booking them into jail and overburdened court systems — and revamping immigration enforcement policies, which have thus far left county jails responsible for housing too many federal immigration detainees.

A.B. 109 realignment is a step in the right direction, but even the state legislative analyst’s office acknowledges realignment alone will not be enough to solve California’s overincarceration problem. That’s why the ACLU is also calling for meaningful statewide sentencing reform to reduce low-level drug and property crimes from felonies to misdemeanors, and for a state sentencing commission to evaluate and reform California sentencing policies.

California counties are at a fork in the criminal justice road. It makes no sense to stay on the current path, cycling and recycling people through overcrowded and broken jail and prison systems that fail to address the underlying problems. It’s time to admit we have a problem, and to take a new approach.

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California Ignores Obvious Budget Solution: Cut the Death Penalty

California’s new governor Jerry Brown confronted the state’s dire budget crisis this week when he released his budget proposal. True to his word, the proposal contains hard cuts to social services across the board, ensuring that California’s most vulnerable will have an even tougher time staying healthy and making ends meet.

He was slightly less true to his word, though, when it came to his oft-repeated slogan that "everything is on the table." At least one overfunded, broken government program was allowed to keep its bloated budget without a single cut: the state’s billion-dollar death penalty.

Did the governor miss this massive drain on funds, or is there a sacred cow in California’s budget after all?  Maybe he can be excused on the grounds that there’s no "death penalty" line item anywhere in the budget. But, of course, the reason there’s no "death penalty" line item is that the $1 billion the death penalty will cost over the next five years is hidden throughout a half-dozen judicial and corrections budget items — any one of which could be trimmed by the governor. Let’s go down the line:

  • There’s the $1 million per death penalty trial over and above the cost of non-death penalty murder trials, which comes from county prosecutors’ budgets.
  • Then there’s the $63 million per year extra spent housing people on death row and another $60 million spent on their appeals, again over and above the cost of housing and appeals for life without parole. Those costs are tucked away in the budgets for corrections, the Supreme Court, the attorney general’s office and public defense.
  • Finally, the kicker is the brand new death row facility we’re about to build that will cost $400 million.

Over five years, that tally comes to just over $1 billion.

Now, repealing the death penalty in California can only be done at the ballot box, but defunding the whole system can be done with a few strokes of the governor’s pen: just ask any senior citizen, recipient of in-home medical care, or single working parent. They’ll tell you how powerful that pen can be when it comes to cutting government programs.

Alternatively, if the governor converted the sentences of California’s more than 700 residents of death row to life without parole, he’d save that whole billion dollars in one swoop: no more extra housing costs, no more extra appeals costs, no more new death row. That’s a lot of money that could go towards much-needed programs and services.

And it’s not as if the people of the state are clamoring for more death penalty spending over other issues, like, education, crime prevention, health care, or social safety nets. While Gov. Brown may have assumed that the death penalty really is precious to California voters, his own election proved otherwise. Even after Meg Whitman saturated the airwaves bashing Brown for his anti-death penalty record, Californians still elected the guy. We also voted down a Senate candidate who campaigned on being pro-death penalty, and elected an anti-death penalty attorney general, Kamala Harris, over a prosecutor known nationwide for his aggressive pursuit of death sentences.

Why did we vote in Jerry Brown again? Maybe we’re ready for some realistic and pragmatic change. Maybe we’re ready to prioritize victims, community safety, and health above executions. Maybe we’re ready to Cut This. Send Gov. Brown a message that if he’s going to cut anything from California’s budget, he should cut the death penalty.

California

“I’ve Got a Secret Mission for You.”

By Natasha Minsker, Death Penalty Policy Director, ACLU of Northern California

The California Department of Corrections and Rehabilitations (CDCR) finally released 989 pages of heavily redacted records to the ACLU of Northern California revealing how it acquired one of the drugs needed for executions. The documents literally mention a “secret mission” to get the drugs. They show the expense and incredible lengths California government officials were willing go to in order to carry out executions — and to keep it all secret.

The ACLU believes that it is crucial for us to have full transparency and accountability in government, especially when it comes to executions. These documents dramatically highlight some of the reasons that is so, and clearly show that taxpayer money, not to mention hundreds of hours of public employee time, were no object to acquiring these drugs.

Back in September, California Attorney General Jerry Brown suddenly hurried to carry out an execution, after a nearly five-year hiatus. Judges, reporters and the public all asked themselves “What’s the rush?” Then we found out: the state’s supply of one of the critical execution drugs, sodium thiopental, was about to expire on October 1. After a week-long legal rollercoaster, California courts ruled that the expiration date of pharmaceuticals was not a good enough reason to cut short judicial review in a death penalty case. The execution was halted.

Then, just days later, the CDCR announced it had a new stash of the drug, despite a nationwide shortage. The ACLU of Northern California immediately began asking questions, submitting a Public Records Act request (PDF) to find out how the CDCR got these drugs, how much it paid, and who was involved. For two months, CDCR officials did everything they could to hide the truth. So we filed suit on November 17, to enforce the public record request.

Still, the CDCR would not turn over records on its bizarre shopping spree until a California Superior Court ordered the CDCR to give up the records by December 7, 2010.

Some lowlights from the just-released documents include:

  • One CDCR official telling agents he has a “secret mission” for them — to go to Arizona and pick up the drug from prison officials there. Arizona officials agreed to “give” sodium thiopental to California only after California provided them with pancuronium bromide, another drug used in executions.
  • A failed global search for the drugs: California officials asked the federal Drug Enforcement Agency (DEA) for special permission to import the drugs from Pakistan. The DEA refused, though we don’t know why since their response is not included in the disclosed records.
  • State officials also reached out to nearly a hundred California hospitals and community clinics looking for the drug. They paid $65 for a list of community clinics so they could continue the search. None gave the department the drug.
  • The CDCR had a hard time even finding a doctor willing to help them order the drugs. Because this is a lethal controlled substance, a doctor’s authorization is needed to purchase it. It took the CDCR three years to find doctors willing to do so, and it appears the CDCR had to hire them just for this purpose.
  • The CDCR now has its own drug buyer on payroll. Following the lead of Arizona, the CDCR has contracted with a specialist to continue the worldwide search for execution drugs. This appears to be how the department was able to order a half-kilo of sodium thiopental from a company in the United Kingdom. Last we heard, that order was sitting at an East Coast post office waiting for the FDA to release it.
  • CDCR officials in their emails discuss the need to “find” a reason to avoid putting the contract out for bid (as required by state law), how to avoid state rules regarding payments for international shipments, and how to prevent disclosing that they are the ones making the purchase (as required by federal law).

We still have many questions. More than a hundred pages were withheld and the documents we have received are heavily redacted. What we do know is that while public safety and health care resources are dwindling in California, state officials are wasting huge amounts of the public’s time and money, and doing everything they can to keep their bungled process secret. It’s time to save our precious resources and replace the death penalty with permanent imprisonment.

Jerry Brown

California’s $4 Million Rollercoaster Ride

By James Clark, Death Penalty Field Organizer, ACLU of Southern California

California’s death penalty has always been a bit of a head-scratcher, but the news over the last two weeks may have the record for furrowed brows and rolled eyes. The legal drama that has unfolded as the state tries to execute Albert Brown has shocked legal experts, but just confused everyone else.

There’s a reason for that. Five years ago, when executions were put on hold, it was because of myriad problems with the process of putting people to death. Execution teams were poorly trained, didn’t understand the deadly substances they were handling, and were working in dark, cramped conditions. That’s a recipe for botched executions, which has happened too often in California. When Judge Jeremy Fogel, a federal judge, heard that evidence, he told the state they had to fix the procedure.

So that’s what the state tried to do for nearly five years. The problem is, it wasn’t fixed. When Albert Brown’s execution date was originally set, legal experts reported little chance of the execution taking place because of no less than three pending lawsuits over the procedure and a brand new set of regulations that had never been reviewed by a judge. There were just too many open questions, and the state had simply not finished its task of creating a workable procedure. But Attorney General Jerry Brown went ahead anyway and set an execution date for Albert Brown, knowing full well all of these questions remained.

The result has been a legal rollercoaster with weeks of court hearings and media coverage in which Mr. Brown’s ultimate fate has changed almost by the hour.

Finally on Wednesday, barely a day before the scheduled executions, orders from both state and federal courts said the execution cannot proceed because the courts had not been given enough time to address all the remaining legal issues. Finally, just 30 hours before the scheduled execution, the AG acknowledged that the execution would not proceed.

Why the sudden rush to kill? After all, California has gone 4 1/2 years without any executions and in that time, the murder rate has gone down. The answer is an odd one: the expiration date of the lethal drug. The AG revealed on September 25 that the drugs they need to kill go bad on October 1, and the manufacturer says there won’t be any more available until 2011 (along with a statement about how this drug is supposed to heal people not kill them). Interestingly, the state seems very concerned about at least one line on the drug’s label (its expiration), but wholly unconcerned with another line (its intended use).

The courts have finally put a stop to the rollercoaster, telling the Attorney General quite clearly that we need to take the time to answer these questions before we rush to take a man’s life. The expiration date on the bottle should have nothing to do with it.

This fiasco has shown just how broken California’s death penalty has become. The people of California will be better off when we replace the death penalty with life without parole, requiring people in prison to work and provide restitution to victims’ families.

For those trying to get their heads around this, see below for a timeline of the basics.

August 30, 2010:        Albert Brown’s execution is scheduled for Sept. 28 at 12:01 am, even though the five-year-long time out on executions is still in place.

August 31:                  A judge in Marin County affirms that the moratorium is still in place; execution off.

September 20:            Court of appeals says the Marin judge was wrong and the moratorium on executions is lifted; execution back on.

September 24:            Judge Fogel, still not satisfied with the procedure, comes up with a compromise: Albert Brown can choose between the same old procedure that probably never worked, or a new untested one that no one’s been trained for; execution still on.

September 25:            Dept. of Corrections reveals that its lethal injection drugs will expire on October 1, and new drugs won’t be available until 2011. Execution still on, but it better be quick.

September 27:            Governor Arnold Schwarzenegger moves the execution to Sept. 29 at 9pm to give defense time to file appeals. Later, the 9th Circuit Court of Appeals reverses Judge Fogel’s order, saying his “compromise” was inappropriate and the expiration of the drug is not a sufficient reason to move forward. Execution in limbo.

September 28:            Judge Fogel orders a stay of execution, agreeing with the 9th Circuit that he needs more time to figure out if the procedure actually works; execution off for now, but the Attorney General promises to appeal.

September 29:            State and Federal courts agree with Judge Fogel: we need more time. Execution off for good, Dept. of Corrections issues a stand down order.

Albert Brown could have been sentenced to die in prison 28 years ago and the people of California could have forgotten all about him. Instead, we’ve spent months in court and over $4 million to end up right back where we started, with Albert Brown in prison.

Tell Gov. Schwarzenegger to cut the death penalty and convert all death sentences to life imprisonment.

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How Would You Spend $64 Million?

By James Clark, Death Penalty Field Organizer, ACLU of Southern California

Remember that episode of The Simpsons where Homer is so broke he breaks into his daughter’s piggy bank, only to find it full of IOUs from himself?

On Wednesday, that scene was reenacted in Sacramento, with Gov. Schwarzenegger playing the role of Homer. The governor announced that he would be "borrowing" $64 million from the General Fund in order to move forward with one of his pet projects, the construction of a new death row facility at San Quentin. And $64 million is just the tip of the iceberg. Altogether, the new facility is expected to total upwards of $400 million. That’s half a million dollars per prison cell — roughly the cost of a nice house in California.

Of course, the General Fund is virtually broke already, so our governor is borrowing against nonexistent budget. And didn’t Gov. Schwarzenegger threaten that he wouldn’t sign a budget at all? Every government agency in the state is in fiscal emergency, our social safety net is in tatters, and the state is weeks away from paying state employees with IOUs.

Which is why building a new death row is exactly what we don’t need need right now.

California has by far the largest and most costly death row in the country, with over 700 inmates, nearly double the closest runner-up. All of these inmates live in a prison that predates the Civil War. And its resident population keeps climbing: Some California counties are sending even more inmates to death row, ignoring the fact that nearly everyone on California’s death row dies of natural causes, just like people sentenced to life without parole. Last year, California sentenced more people to death than any state in the country, with Los Angeles County alone sending more people to death row than the entire state of Texas.

Those death sentences come with a steep price tag. Each one costs at least $1.1 million more than a trial seeking permanent imprisonment. But that’s just the trial cost for each death penalty prosecution paid by the county. The cost for the entire death penalty system — paid by the state’s General Fund — only mounts from there. With constitutionally-mandated appeals, housing, and upkeep on our current dilapidated death row facility, the annual cost of California’s death penalty is $126 million per year.

Plus, there’s that new death row facility at $400 million. All told, that’s $1 billion in five years.

That’s the amount the governor could save California’s taxpayers if he would cut the death penalty and convert all of those costly death sentences to permanent imprisonment. All without releasing a single prisoner and ensuring swift and certain justice for murder victims and their families. Permanent imprisonment saves money, saves time, and avoids the decades of turmoil from drawn out death-penalty appeals.

So where would you like to see Gov. Schwarzenegger spend that $64 million from the California budget, instead of building a new death-row facility? Post your ideas in the comments section, then Tweet the governor and tell him how he should spend it! Tweet @Schwarzenegger Say No to Death Row! Spend #64million on [insert your preferred state program] #cabudget.

Budget

Let’s Cut the Death Penalty and Save California $126 Million a Year

By Ramona Ripston, Executive Director, ACLU of Southern California

The California Supreme Court has just ‘sentenced’ our state’s taxpayers to an additional debt of at least $180,000 more per year. How? The state’s high court upheld the death penalty in two cases.

Imposing the death penalty adds enormously to the cost of prosecution and permanent lifetime housing for an inmate. The death penalty is certainly a polarizing public policy issue, but I wonder how many people realize that it’s also a vortex-like drain on their own pocketbooks.

Whether you’re for or against the death penalty, you are paying for it. Here are the staggering numbers, from a report by the ACLU of Northern California:

  • $90,000 a year: taxpayers’ extra cost of holding one inmate on death row, over and above the cost of keeping an inmate in the general prison population
  • $10.9 million: taxpayers’ cost of one death penalty trial, based on the records of a sample of trials
  • $117 million a year: taxpayers’ cost of seeking execution, after conviction, for inmates throughout the state

Altogether, Californians spend as much per year in pursuit of executions as the salaries of more than 2,500 experienced teachers, or 2,250 new California Highway Patrol officers.

Why are we putting our cash-strapped state and county governments, and ourselves, through this? The ACLU of Northern California’s county-by-county comparison, Death by Geography, found that counties that sentencing people to death do not experience lower homicide rates or raise rates of solving homicides.

Instead of California cutting $50 million from the fund for victims of violent crime, as the legislature and governor did last year, the ACLU California affiliates suggest the state cut its expensive death penalty. Instead of cutting programs emphasizing education, rehabilitation and addiction treatment, cut the death penalty. The state would save $1 billion over five years without releasing a single prisoner, including $400 million that would be saved by eliminating a new facility planned for death row inmates. Thousands of budget-minded Californians have joined our CUT THIS campaign.

As I testified to the Californian Commission on the Fair Administration of Justice in 2008: "California’s death penalty system is arbitrary, biased, expensive and susceptible to fatal error. It cannot be fixed. It should not be tinkered with. It should be ended."

California

It’s Your DNA – Or Is it?

By Michael Risher, Staff Attorney, ACLU of Northern California

Forcing people to provide a DNA sample without any judicial oversight, just because a single police officer has arrested them, violates the Constitution. That’s why California’s law mandating that DNA samples be taken from all felony arrestees is facing a legal challenge from the ACLU of Northern California (ACLU-NC).

At issue is Proposition 69, a voter-enacted law which mandates that anyone arrested on suspicion of a felony in California has to hand over a DNA sample, regardless of whether or not they are ever charged or convicted. As a result, tens of thousands of innocent Californians will be subject to a lifetime of genetic surveillance because a single police officer suspected them of a crime.

ACLU-NC filed suit in federal court last year seeking to stop this invasive law that violates the Fourth Amendment. Last week, the 9th Circuit Court of Appeals heard oral arguments in the ACLU’s appeal of a lower court’s denial of a request for a preliminary injunction to halt the law while the suit continues. The appeals court hearing on July 13 showed that the court takes the privacy concerns and other constitutional issues in this case very seriously. The court clearly recognized the importance of the case, questioning both sides closely and extending the time allotted for oral argument.

Instead of being limited to serious, violent offenses, this law even applies to someone who has written a bad check, shoplifters, and people arrested during political demonstrations. And because collection occurs before any review by a prosecutor or a court, even people who are wrongfully arrested — either because of police misconduct or because the police simply had been provided with incorrect information — will be ordered to provide a sample. For example, a domestic violence victim who injured her partner in self defense might well be arrested while the police investigated her story and then released when they confirmed it, but would still have had to provide a sample.

The practice of automatically collecting DNA from people who are merely arrested ignores the presumption of innocence and blurs the line between being suspected of a crime and being convicted.

The lead plaintiff in the suit, Lily Haskell, was arrested at a peace rally in San Francisco. She was not charged with a crime and was quickly released, but not before being required to provide a DNA sample. When your DNA is taken after an arrest at a political demonstration, it can have a silencing effect on political action. Now, her genetic information is stored indefinitely in a government database.

Data from the California Department of Justice reveal that nearly one-third of the 300,000 arrests every year in California on suspicion of a felony never result in a conviction. A disproportionate number of these arrestees are people of color. Communities of color will face an even greater burden from the impact of this kind of genetic surveillance. Moreover, there are reports from Great Britain, which also takes DNA from some persons who are arrested, of police making arrests without cause simply to obtain a DNA sample to put in the country’s database.

Databanks should focus on people who have been convicted of crimes, not on those whom a single police officer thinks may have committed a crime — that is a better use of our limited resources and it’s what the constitution demands.

Meanwhile, California’s huge forensic DNA database — the third largest in the world — already faces tremendous backlogs. The resources spent collecting thousands upon thousands of DNA samples from arrestees detract from the resources that could instead be devoted to processing crime scene samples to help solve violent and serious crimes like rape, assault, and murder.