Death Penalty halted by courts again

by Brian Leubitz

It’s been a long time since California actually executed anybody. 2006 to be precise, and we’ve only executed 13 people since 1976. Even if I were to support the death penalty, it is not hard to call this a broken system. We spend billions of dollars in legal challenges, extra security, suicide watch, etc, to keep these inmates alive long enough to kill them.

But the biggest reason that we haven’t executed anybody since 2006 is that we haven’t had approval from the courts. After federal courts struck down our lethal injection procedure in 2006, the case has been bouncing back and forth in both state and federal courts. The prison system released a new protocol two years ago. That didn’t turn out well, as we found out yesterday:

In a 28-page ruling, the 1st District Court of Appeal found that state prison officials failed to comply with administrative rules when crafting new regulations more than two years ago.

The appeals court upheld a Marin County judge, who faulted the prison department for a variety of procedural missteps, including offering no public explanation for why San Quentin officials opted to continue with a three-drug lethal injection method instead of a single-drug execution option being embraced by a number of other states. (Howard Mintz / BANG)

So, it is back to the drawing board for the prison system, as they’ll have to either appeal to the state Supreme Court or go through the process properly.  Gov. Brown will ultimately have to make the call on the appeal, but certainly the question of how long we will have the death penalty is still open.  Prop 34 to end it entirely  only failed by 47-53 last year. It is not the toxic issue that it once was. With all the other spending priorities, does it really make sense to spend billions of dollars on a punishment that is simply not effective at reducing crime:

In my view deterrence plays no part whatsoever. Persons contemplating murder do not sit around the kitchen table and say I won’t commit this murder if I face the death penalty, but I will do it if the penalty is life without parole. I do not believe persons contemplating or committing murder plan to get caught or weigh the consequences. Statistics demonstrate that states without the death penalty have consistently lower murder rates than states with it, but frankly I think those statistics are immaterial and coincidental. Fear of the death penalty may cause a few to hesitate, but certainly not enough to keep it in force, and the truth is that there is no way of ever knowing whether or not the death penalty deters. (Judge H Lee Sarokin)

Abel Maldonado Wildly Misses Mark in His Criticism of the Prison Realignment Policy

by Brian Leubitz

By any estimation, Governor Brown is in a tough spot politically and managerially with the issues surrounding the prisons. As Attorney General, he fought the federal courts on capacity and healthcare standards. As Governor,  he’s been forced to actually implement the reduction of population by those judges. And he’s been fighting it all the way.

But, in realignment, he probably struck on the path of least resistance to state prison population. It allows a significant reduction in population without actually setting all of the prisoners free. But that’s not what Abel Maldonado sees.

Maldonado, flanked by Fontana Mayor Acquanetta Warren and Erin Runnion, whose daughter Samantha was kidnapped and murdered in a high-publicized 2002 crime, argued in favor of an as-yet-unwritten ballot measure that would repeal A.B. 109, the law creating the state’s realignment policy, which Maldonado referred to as “early release.”

“The legislature and more importantly, the governor, won’t fix early release,” said Maldonado, a former lieutenant governor and legislator who represented communities in Santa Barbara County.(Daily Bulletin)

Abel Maldonado simply sees it as “early release” and plans on running some sort of initiative to address the issue. How it will address the issue while maintaining compliance with the federal rulings is anybody’s guess. It’s hard to see the ToughOnCrime act to be anything other than posturing for the 2014 race for governor. And he’s searching for Willie Horton. Desperately. Calitics diarist smoker1 pointed that out last week.

This week, Abel Maldonado held a news conference announcing a statewide effort to repeal the realignment program.  Proof of the dangers of realignment: the heinous murder of Mary Beth Blaskey.  Jerome Anthony Rogers has been arrested and charged with the murder.  Rogers, 57, has a lengthy criminal record, but was last in prison in 2003.  

Got it?  The last time he was in prison was 2003 and Maldonado is using this case as an example of how realignment is failing.  Realignment came last year, not 10 years ago. Why would Maldonado use a case that has nothing to do with realignment to promote an effort to repeal realignment?  Because there is no such case within the realignment universe.

The thing about the California prison system is that there is a lot of shades of gray. Way more than 50, it turns out. There are some hardened criminals, some murderers, some rapists and the like, that will probably never be rehabilitated to the point that we’ll want them on the streets. However, the total number in that category are a minuscule portion of an enormous system. The recidivism rate in our system was hovering around 70% for a while, dipping down to 65% in 2012. But considering that the national level is below 45%, there is still a ways to go.

But much of that increased rate is about parole violations. Increasing parole flexibility and working with former prisoners to increase the percentage of better outcomes could go a long way to reducing some of that recidivism.  Some of that has already been happening in a few counties, but there is a lot more work to be done.

Realignment itself laid a heavy burden on counties, and this is where the changes haven’t really been as successful as we would like. They were supposed to get reimbursed for much of that burden, and while they will see additional revenues from the state to pay for the increased expenditures, it seems unlikely that they will ever be made truly whole.  However, Brown knows what he’s doing. Counties should be held more directly responsible for the prison population. Allowing prosecutors to simply lock away a criminal and forget about them has a perverse effect on the extreme overcapacity at state prisons.

The entire law enforcement community has begun a process of working to improve efficiency. As prisons have passed higher education spending, this is a conversation long overdue. But these changes can’t come overnight. But we can’t allow our prison budget to overwhelm the general fund, and we can’t build our way out of the prison crisis. We need to reduce the prison population, and that is done through hard work, funding education, including Brown’s effort to increase resources for disadvantaged students, and reducing the population of reoffenders.

Maldonado wants to simply revert back to the failed ToughOnCrime policies because that just might be an issue that scares voters. It’s simplistic and cynical.  

Governor wanted receivership lifted

by Brian Leubitz

In a major ruling today, after last week’s legal tussle between the administration and lawyers for prisoners rights, Judge Lawrence Karlton rejected the state’s effort to lift the prison health care receivership:

A federal judge today rejected Gov. Jerry Brown’s bid to regain control of the state’s prisons from federal oversight of inmates’ mental health care, ruling that the state has not done enough to improve conditions inside the prisons.

U.S. District Judge Lawrence K. Karlton, in a 68-page order, found that “systemic failures persist” in anti-suicide measures and other mental health care needs. (SacBee)

The state will surely try again at the next available opportunity, but the receiver will be sticking around for a while.

Corrections Secretary Jeffrey Beard: “As a society, we just have not done a very good job of dealing with the mentally ill.”

by Brian Leubitz

Dan Morain has a very thought provoking column today taking off from the recent discussion about the prison health care litigation. Long story short, Gov. Brown is working to once again attempt to emerge from the litigation that has upped the prison health budget from $732 million to over $2bln. He makes a fair point:

“That money is coming out of the university, it’s coming out of child care. It’s a situation you wouldn’t dream anyone would want.”(SacBee)

Our spending on prison health care is high, very high, but the problem is that we are spending money in the wrong place. Kind of like our health care system spending big money in ERs, rather than setting up more primary care clinics, we are pushing the mentally ill to the most expensive “treatment” facility available, and one with a poor track record of success. This  spending is really a symptom of the much larger issue of our failing on mental health care in general.

Morain does a good job explaining the process of closing the state hospitals that had been “caring” for the mentally ill. I have no doubt that the decision was completely justified at the time, but the funding necessary to really create a more just and humane system never really appeared. From Reagan on down through the years, the governors and legislators just never felt a high priority on mental health spending. There are many other (completely valid) competing priorities and the mental health lobby is comparatively weak. But on the flip side, there is a large lobbying infrastructure for prison dollars. And nobody wanted to become the politician that was “soft on crime,” so the prisons grew.

In just a few years from the great exodus of the hospitals, homelessness had markedly increased, and we were on our way to a crisis in mental health care. But the bottom line is that the cuts to mental health care, have a remarkably poor return. They boomerang back on us with higher prison and law enforcement cuts rapidly. Back in 2004, Californians voted for Prop 63, which increased taxes for mental health care. However, though the law required that the money not replace what was already being spent. But when the cuts came in earnest over the past 5 years, that part of the law was tossed aside, and mental health lost big. And, predictably, while the numbers are kind of fuzzy on this, the numbers of mentally ill finding themselves in prison increased.

At this point, whether or not we have a receiver for the prison health care system seems mostly beside the point.  It doesn’t address the point upstream where resources could have the most chance of being effective in the reduction of mentally ill inmates. There are plenty of recriminations to go around, but in the end, all of California’s leaders, for decades, have failed our mentally ill population.  

Counties differed widely on strike offenses

by Brian Leubitz

Prop 36 made some pretty logical tweaks to California’s Three Strike policy, and will hopefully eliminate some of the worst injustices that have resulted. But it is worth a look back to see how that policy went awry. The Chronicle took a look at the SF Bay Area counties for some background:

Of Bay Area counties, Santa Clara County had by far the most inmates become eligible for more lenient terms because their most recent convictions were for offenses that weren’t serious or violent. San Francisco, by contrast, had three.

It’s an indication that the three strikes law that California voters originally approved in 1994 hasn’t been enforced evenly among counties in the Bay Area or throughout the state. In some places, defendants whose third strikes were minor – in extreme examples, for stealing a bicycle or even a pizza – were more likely to have the book thrown at them. (SF Chronicle)

They also have a nice graphic if you go to that link, but the bottom line was that Santa Clara had 120 non-violent three strikes prisoners, while San Francisco, Alameda, and Contra Costa didn’t even hit 20. The original measure and the associated criminal justice processes gave prosecutors some discretion on how to charge, and whether an offense would count as a strike. And, rather unsurprisingly, they came away with very different results.

Steve Cooley, the now retired LA County DA that strongly supported Prop 36’s passage pointed out just this issue. Santa Clara wasn’t particularly special, there was a large variance between the counties across the state, not just the Bay Area.  And new Santa Clara DA Jeff Rosen endorsed the measure. But the disparity was a perverse outcome of the law, and hardly compatible with the fair administration of justice.

Prop 36 just passed a few months ago, and the process to review the sentences is just playing out now. And the Chronicle article has a good description of how that’s proceeding for the time being in Santa Clara. Prop 36 was a good start and, with time, we should get a better idea of how the system is going to work out.

California still has a lot of work left to do on the more general question of sentencing reform. (Take a look at a recent report from the Sentencing Project to see how 2012 broke down nationally on that subject.) But maybe the people of California are ready to lead the way.