In between budget posts, I’ve lately been in a bit of a tiff with Chris Kelly, an Attorney General candidate and former Chief Privacy Officer at Facebook, over his stale, predictable fearmongering about potential early prison releases.  There are a bunch of other estimable candidates in the Attorney General’s race, one who did himself a ton of good yesterday by leading the fight against the offshore drilling proposal.  So maybe I shouldn’t take too much time on Kelly.  But there’s a short-term policy fight coming up next month to determine how to implement $1.2 billion in cuts to the corrections budget, and with some good activism and common sense we can stare down the Tough on Crime crowd and post a needed victory for sensible criminal justice policies.  Therefore it’s worth looking at Kelly’s latest post:

The prison release plan is supposed to save $1.2 billion, but that’s just accounting trickery. In fact, a Federal Bureau of Justice Statistics study finds that nearly 70% of early-released inmates are rearrested within three years, 20% of them for violent crime. That will mean more than $3 billion in increased costs from crime while causing serious harm to hundreds of thousands of innocent victims.

I’ve spoken to police chiefs, law enforcement groups and civic associations throughout California about the issue, and they’re deeply worried about the crime wave this scheme will unleash. It will be hard enough to make San Jose a safer community in tough economic times without the problems caused by early release.

Obviously, Kelly hasn’t talked to the California Police Chiefs Association, which endorsed the plan as a smart step to begin to move away from the failed prison policies of the last thirty years.  Foremost among these new ideas is the concept of targeting resources – instead of warehousing the terminally ill or blanket strict supervision on everyone released regardless of determining possibility of recidivism, we can put resources into programs that provide opportunity for prisoners to pay their debt to society and move on.  This deal doesn’t do all of that, but it does, for example, put ill and infirm prisoners under home detention or in a care facility, which doesn’t impact public safety and saves money.  It offers incentives for prisoners to complete rehabilitation plans.  It reviews the cases of illegal immigrants in jails instead of just tossing them in the lap of the ICE to deal with, which would actually be the kind of misguided policy Kelly warns against.  And most important, it includes an independent sentencing commission, outside of politics, which can look at our sentencing laws and make recommendations for the legislature to adopt on an up-or-down vote.

Using the buzzword of “early release” of “dangerous prisoners” is an old Tough on Crime ploy from way back, evoking memories of the Willie Horton ad in the 1988 Presidential race.  It’s irresponsible and not relevant to what is being discussed.  We have the perfect Tough on Crime prison policy right now – and it’s not working in every respect, to the extent that federal courts have stepped in to take control of it.  Overcrowded prisons cannot fulfill their core mission of rehabilitating those jailed, and that’s especially true where nonviolent offenders who need medical treatment for addiction and not incarceration are concerned.  Brute force has not worked in making the state safer and has certainly caused our budget to skyrocket.  And the truth is that more sensible policies can save money and create better prisons at the same time.

We need real reform in prison and parole policy, through concentrated resources, community corrections, and maintaining manageable prison capacity for those who really need to be there, and what will get decided in the legislature next month represents an important step.  It can be easily derailed by fearmongering from the likes of Chris Kelly, trying to win an election on the backs of the poor and disenfranchised, on whom such brute-force policies typically rain down.

Over the next month I’ll be looking far more closely at this issue, as it’s the first big battle in regaining control of our state.  And it’s a winnable fight.

Chris Kelly, who thinks he’s running for Attorney General next year, has responded to my criticism of his perpetuation of fearmongering “tough on crime” policies with an email to supporters:

The politics-as-usual crowd is attacking my opposition to the early release plan — even saying that “Chris Kelly is making a fool out of himself” for standing up for safe California communities.  Well, releasing 20,000 convicted felons early might be Sacramento’s idea of prison reform, but it isn’t one that will keep California safe — and it won’t save a single dollar in the process, which was the whole rationale for doing it in the first place!

I’m apparently part of the “politics-as-usual” crowd for arguing against the mentality that has produced 1,000 sentencing laws in the last thirty years that increased sentences.  But some facts throughout this would help.  First of all, the 20,000 number from the Governor came in part from releasing all imprisoned undocumented immigrants to Immigration and Customs Enforcement, a provision that was long ago scaled back, since ICE showed no interest in taking the responsibility, and the Governor circumscribed that proposal with so many caveats that only 1,400 of the more than 18,000 undocumented qualified.  In reality, the scale of release will be lower than initially proposed.  So Kelly is engaging in the familiar tactic of arguing against something that won’t happen so he can post a “win” after the fact.  

But the real danger of Kelly whipping up opposition to this is how it impacts any sensible sentencing or parole reform.  Here, Kelly shows that he has no idea what he’s talking about with respect to criminal justice policy:

Instead of protecting California communities, the politics-as-usual crowd ignores the fact that early release of more than 10% of the state prison population won’t just include “terminally ill, nonviolent drug offenders and people returned to prison for the crime of technical parole violations” — many dangerous felons will be back on the streets too.

The critics seem to have forgotten that a man with a technical parole violation shot and killed four officers in Oakland just months ago, and they also conveniently ignore that releasing 20,000 prisoners will disproportionally impact some of California’s most vulnerable communities.

The ignorance of this comment is stunning.  As Berkeley law professor and parole policy expert Jonathan Simon illustrated a couple months back, the Lovelle Mixon shooting was an example of what’s WRONG with our parole system, not what’s right.  The incident has been used to raise the fear of crime and the dangers of releasing felons.  What is not mentioned is that Mixon’s violation of ridiculously stringent parole policy, which meant a sure trip back to jail, arguably CAUSED the shooting, as Mixon vowed not to return to prison and chose to shoot his way out of the problem.  That’s aberrant behavior, and using it to make any larger point about how frightening it is to release prisoners is Willie Horton-izing to the extreme.  But it’s a function of the extreme pressure of three years of supervisory parole on everyone who walks out of California prisons.

But unlike many other states that also eliminated early release through parole, California continued to require parole supervision in the community for all released prisoners. And that, I think, is a big part of what’s broken. People are sent to California prisons for a determinate amount of time, based upon the seriousness of their crime. After they’ve served this sentence, it’s neither justified nor effective to add up to three years of parole supervision for each and every ex-offender – without making any distinction between those whose criminal record or psychological profile suggest they’ll commit a crime that will harm the community, and those who pose no such threat.

So the parole system has little real capacity to monitor and protect us from those who pose a danger of committing serious new crimes. And it exposes ex-offenders – many of whom pose little threat of committing such crimes – to the likelihood of being sent back to prison. (This is a really big problem, when you think of our prison overcrowding and our budget crisis).

Parolees are required to consent to searches of their person and property. If officers stop a car in Oakland, and somebody in that car is on parole, police have a lot of leeway to disregard normal constitutional limits on search-and-seizure authority. They can use any evidence collected in this situation against the parolee – and also, of course, can attempt to use the coercion of plea bargaining to get evidence against other people in the car.

In recent years, as many as 70 percent of those on parole in California have been sent back to prison – only a small percentage of whom have committed a new crime (14 percent in 2007); more than half were sent back for what are called “technical” parole violations. These parolees are “returned to custody” by the Board of Prison Terms, very often for conduct that would not earn them (or other California citizens) prison time in a court. Turning in a positive drug test is an example; even missing an appointment with parole staff can result in re-imprisonment.

Kelly asked his fans of the Protect California Communities Facebook cause to comment on my post about him, which has yielded a whopping 0 negative comments.  Maybe that’s because his Cause has attracted an almost-as-whopping 225 members, clearly a social networking firestorm rippling through the state.  Actually that number wouldn’t be so bad if it didn’t come from a Cause promoted by THE FORMER EXECUTIVE FROM FACEBOOK.  The $175 raised on Facebook shows massive Web 2.0 acumen as well.

It’s also hilarious that Kelly thinks stopping release of nonviolent offenders harms public safety, not eliminating drug treatment and vocational training in prisons, or forcibly taking local government monies so they have to slash their public safety budgets, but that’s for another time.

Far be it from me to agree so aggressively with my friend Steve Maviglio, but he’s absolutely right that Chris Kelly is making a fool out of himself by holding to outdated and dangerous Tough on Crime rhetoric in his campaign for Attorney General.  Kelly, the former Facebook chief privacy officer, has created a Cause called “Protect Our Communities.”  As Maviglio says, George Runner couldn’t have done it better himself:

Do you think the early release of 20,000 convicted felons will solve California’s budget crisis?  I don’t.

Please stand with me:  Click here to join my new “Protect California Communities” cause on Facebook and help me build grassroots opposition to this phony budget plan!

Our state is already more than $26 billion in debt and issuing hundreds of millions more in IOUs every week.

We need innovative solutions to get out of this mess. But a plan by Governor Schwarzenegger and some in the Legislature to early release nearly 20,000 felons from state prison is not one of them.

I’m all for prison reform — but this is surrender, not reform. Even if it would save us money — which it won’t — putting thousands of dangerous criminals back on the streets is a risk that California should never take.

Please stand with me: Click here to join my new “Protect California Communities” cause on Facebook and help me build grassroots opposition to this phony budget plan!

“Dangerous criminals” back on the streets include the terminally ill, nonviolent drug offenders and people returned to prison for the crime of technical parole violations, which eats up about 2/3 of total incarcerations in California in any given year.  This is the kind of absurd rhetoric that has our prisons full to bursting, that has created 1,000 sentencing laws passed by the Legislature in the past 30 years, ALL OF THEM increasing sentences, that has turned our parole policy and prison health care systems into a national joke and a federal crime, that has cost the state billions in overtime for prison guards and overall system costs, that has scared the public into passing really dangerous, pernicious laws like three strikes, that has nearly busted our Treasury, destroyed our corrections system and eliminated any possibility for rehabilitation.  

The Attorney General position can be one of leadership in producing alternatives to our prison crisis.  Kelly has forfeited any ability to call himself a leader by playing to the least common denominator.  He can go back now to devising schemes to strip privacy on social networking sites.