In 2008, Californians overwhelmingly supported the passing of Proposition 9 (hereinafter Marsy’s Law), approving the proposition by a 53.8% to 46.2% margin. The passing of Marsy’s law suggests that Californians currently believe in a criminal justice system that provides a voice for victims of crime and their family members. However, while Marsy’s law was held out to the public as a bill primarily concerned with victims’ rights, it also has the potential to greatly change California’s parole system.
As mentioned in a previous post, Marsy’s Law is only a year removed from its enactment and has just started to affect California victims and convicts. Until more analysis can be conducted to determine the impact of Marsy’s Law on California parole policies, Californians will have to wait to determine whether Marsy’s Law was an appropriate change to the California Constitution. However, Californians can begin to speculate as to what effects Marsy’s Law might have on the parole system in California and what reforms might be needed to make Marsy’s Law compatible with California’s current parole system.
Option 1: Eliminate Provision Requiring Longer Periods Between Parole Hearings.
Under Marsy’s Law inmates are denied a chance for release for up to 15 years at a time without "clear and convincing evidence" for a shorter period between hearings. Prior to Marsy’s Law inmates could only be denied parole for one to five years. This is a dramatic change and one that is likely to further contribute to the overcrowding of California’s prison system. This change will also cost the state considerable resources during this period of budget shortfalls. Some analysts currently predict that Marsy’s Law could cost the state hundreds of millions of dollars by restricting the state's ability to release inmates early from overcrowded prisons. While proponents of Marsy’s Law originally argued that California would save money because of the reduced parole hearings, the money saved from the reduced parole hearings will undoubtedly be offset by the record number of inmates in prison.
I submit that in order to lessen the burden on the California prison crisis, citizens might consider advocating for a proposition that strikes out the portion of Marsy’s Law lengthening the periods of time between inmates’ parole hearings. Eliminating this portion of Marsy’s Law will ensure that more individuals receive the opportunity to be heard by a parole board. Also, eliminating this provision will lessen the prison population in the state.
Further, in an era where educational and vocational training while in prison are being severely cut, inmates’ only hope of getting out of prison early and rejoining society is the opportunity to stand before a parole board and plead their cases for parole. If Marsy’s Law remains part of California’s Constitution, inmates will have to wait a decade or longer in order to plead their cases to parole boards. This will disadvantage those inmates who have been reformed and can make a contribution to society. Meanwhile, striking out the provision of Marsy’s Law lengthening the period between parole hearings will not affect the provisions granting victims and victims’ families further rights.
Potential Cost: Unknown. However, reducing the amount of inmates could save the state millions of dollars over the next decade.
Option 2: Take Marsy’s Law to Court
In March 2009, less than six months after the passage of Marsy’s Law, a federal judge blocked a portion of the crime victims' rights measure. A U.S. District Court ruled that a permanent federal injunction previously agreed to by Governor Arnold Schwarzenegger's administration trumped voters' support for Proposition 9. In 2004, the Schwarzenegger administration agreed to provide, at taxpayers' expense, lawyers for ex-convicts who risk being sent back to prison for violating parole conditions. The administration also agreed that California would act quickly on parole violation allegations. The judge rejected the administration's argument that voters' approval of Marsy’s Law nullifies the administration's settlement of the class-action inmates’ rights lawsuit. The authors of Marsy’s Law wrote language into the initiative intended to overturn the lawsuit settlement. However, the federal judge concluded that it was “not enough to overturn the injunction. A change in state law standing alone is not the type of change in factual circumstance that renders continued enforcement of a consent decree inequitable.[i]"
The above situation highlights the fact that certain portions of Marsy’s Law might be subject to legal challenges or even declared unconstitutional. Critics of Marsy’s Law have stated that it violates nearly all of parolees’ due process rights and directly conflicts with the protections put in place by established constitutional law. Critics have also stated that Marsy’s Law eliminates a parolee’s guarantee of counsel except in narrow circumstances, eliminates the ability to confront certain witnesses at parole hearings, and restricts consideration of alternatives to prison. If critics are correct then one option citizens have is to attack Marsy’s Law through the legal system. Reformers can find public interest organizations and attorneys willing to file litigation challenging the victims’ rights bill.
Potential Cost: Unknown
Option 3: Launch Pledge to Repeal Marsy’s Law
Another option potential reformers of Marsy’s Law might have is campaigning for a proposition that repeals Marsy’s Law. Citizens who are opposed to last November’s passage of Prop 8 are currently taking this approach. Supporters of a proposition to repeal Prop 8 have already begun the process of taking their issue to the voters. In order to repeal Marsy’s Law supporters will first have to file ballot language with the State of California for an initiative to repeal. Next, supporters would have to begin circulating petitions to gather the 1 million signatures needed to qualify the initiative. To gain support, reformers of Marsy’s Law could use new social networking technology to build the community around the signature gathering process.
Potential Cost: Unknown
As mentioned above, Californians have yet to discover the effects of Marsy’s Law. Thus, any change to the recently passed legislation will come after the public knows its effects. However, the above are potential avenues future reformers might take.
[i] For a complete article on this issue see http://articles.latimes.com/2008/oct/23/local/me-victims23?pg=2
Monday, October 12, 2009
California's Options in Response to the Parole Elimination Trend
If the past has any bearing on the future, the only certainty in the fate of California’s parole system is that its future is uncertain. Surveying parole systems among the fifty states illustrates a wide range of public sentiment regarding parole’s role in criminal justice. Californians echo the national voice. Various factions support differing reform measures. Still, all seem to agree that at least some change is necessary. So, with social forces gathering behind parole change, the time seems ripe to make progress. But the question remains, what constitutes progress in the parole system? With sixteen states completely eliminating parole, and dismal parole practices here in California, should the state follow suit and eliminate parole altogether?
I submit that any change to California’s parole system is meaningless if that change does not conform to society’s penalogical objectives. Therefore, parole reform decision makers must first identify Californian’s objectives in the reform process. Only when those objectives are identified may the direction for change be set. Under this framework, I submit three reform alternatives for California’s parole system based on three general penalogical views. No doubt countless intermediate positions are possible, but the following options illustrate three generalized positions California may adopt.
Option 1: Eliminate Parole
The fact that sixteen states have recently eliminated parole may indicate that society’s view is shifting. The idea is that people don’t believe that justice is being served through parole. While many factors could contribute to this view, the most obvious inference is that people feel that crimes deserve certain sentences. Anything short of those sentences robs justice of the punishment and deterrence the crime requires. Under this view, punishment serves the primary objective in criminals’ sentences.
Punishment may be society’s oldest identifiable criminal objective. In our time, many Californian’s continue to see punishment as the primary, if not solitary, objective our criminal justice system should pursue. Even individuals who prefer rehabilitative objectives often admit strong punitive feelings toward violent and sexual crimes. With punishment forming the foundation of sentencing, sentences must be fully served. The nature of our current parole system reduces sentences for mitigating reasons. This approach contravenes complete and just punishment. Were this not so, initial sentences must necessarily be too long. Therefore, parole only destroys adequate punishment. Therefore, parole should be eliminated. Parole elimination proponents also cite ancillary benefits from their course. For example, the public would save the entire cost of the parole system. While opponents may counter that the cost analysis should consider the expense of keeping would-be parolees in prison, proponents can counter that nearly seventy percent of parolees quickly return to prison anyway. As such, incarceration costs exist with or without the parole system. In sum, should society determine that punishment best serves the primary objective for our penal system, then eliminating parole seems to be the logical choice for reform efforts.
Option 2: Increase Discretionary Parole Availability Conditioned on Rehabilitation
Despite the fact that 16 states have eliminated parole, or under the assumption that these eliminations are only a result of broken parole systems generally, Californians may determine that parole is not just worthwhile, salvable, and desirable, but that it is necessitated by the state’s focus on rehabilitation. Modern history tells the story of society’s long-term perspective to the criminal dilemma. Simple incarceration merely removes wrongdoers from society with no forethought of criminals’ reentry into local communities. Incarceration without rehabilitation fails to correct the root of crime, subjecting communities to potential crime upon every release. On the other hand, rehabilitating criminals improves society by reducing crime rates and prison costs while increasing society’s economic productivity.
In theory, fully rehabilitated criminals no longer threaten society. At this stage, deterrence is unnecessary. Successful rehabilitation may also diminish punishment’s utility. First, the criminal’s effort and progress during rehab constitutes positive steps that counter punitive value. Second, incarcerating fully rehabilitated individuals may no longer actually punish someone with once their moral void is filled. Nevertheless, one should not assume that rehabilitation and punishment are mutually exclusive. It is entirely feasible to issue a sentence that includes a mandatory punitive component, followed by a period only extended until complete rehabilitation occurs. Regardless, should society determine that rehabilitation trumps punishment or deterrence, post-rehabilitation incarceration is difficult to justify. The parole system solves this issue.
Perhaps Californians’ biggest criticism with the parole system is that many parolees are not actually reformed. The recent travesty involving Jaycee Dugard and Phillip Garrido exemplifies this critique, leaving people puzzled as to how an apparently nonrehabilitated Garrido managed to get paroled, slip through monitoring mechanisms, and commit unthinkable crimes against Dugard. While the point may appear obvious, a parole system justified by rehabilitation presupposes actual rehabilitation. As such, prisons must invest in rehabilitative programs and establish mechanism to determine when rehabilitation is complete. Opponents criticize this approach because of the initial expenses these reforms will require. The state can’t afford the current system. How can it justify an increase to the prison system budget? The counter to this argument is that an initial increase in expense will more than pay off in the future with reduced recidivism, saving money in crime detention, prosecution and detention. Additionally, the security and comfort local communities feel when prisoners return rehabilitated rather than delayed has value, albeit difficult to quantify. In sum, should Californian’s determine that rehabilitation forms their primary penalogical objectives, parole reform should begin with establishing rehabilitation programs in the prisons and mechanisms to identify rehabilitated prisoners.
Option 3: Maintain Current Parole Philosophy with Improved Implementation
Finally, Californians can opt to keep their current system. In theory, the will of the people is reflected in the current system. But theory and reality many not inseparably connected. Determining whether the current system meets Californian’s expectations is dually problematic. On one hand, without comprehensive polling it is difficult to know Californian’s penalogical goals. Do Californian’s prefer punishment, deterrence, retribution, rehabilitation, or a mix? Do these objectives shift depending on the crime? On the other hand, even if the people’s objectives are clearly identified, is the current parole system even remotely related to those objectives? The seemingly inconsistent application of parole makes this difficult to determine. Nevertheless, perhaps determining identifiable penalogical objectives is itself a futile task. As such, there may be no principled methodology by which parole can be reformed. Additionally, pragmatism may guide decision makers to make incremental rather than monumental parole changes. Regardless, many possible reforms can improve the current parole system while leaving it largely intact. Examples of meaningful and identifiable targets for progress include increased numbers of parole officers, integrated parole monitoring, improved community immersion programming, and increased fairness in parole board hearings.
In conclusion, whether Californians accept one of the three aforementioned options or any possible variation, I reiterate my call to do so only after identifying the objectives and goals that the parole system serves.
I submit that any change to California’s parole system is meaningless if that change does not conform to society’s penalogical objectives. Therefore, parole reform decision makers must first identify Californian’s objectives in the reform process. Only when those objectives are identified may the direction for change be set. Under this framework, I submit three reform alternatives for California’s parole system based on three general penalogical views. No doubt countless intermediate positions are possible, but the following options illustrate three generalized positions California may adopt.
Option 1: Eliminate Parole
The fact that sixteen states have recently eliminated parole may indicate that society’s view is shifting. The idea is that people don’t believe that justice is being served through parole. While many factors could contribute to this view, the most obvious inference is that people feel that crimes deserve certain sentences. Anything short of those sentences robs justice of the punishment and deterrence the crime requires. Under this view, punishment serves the primary objective in criminals’ sentences.
Punishment may be society’s oldest identifiable criminal objective. In our time, many Californian’s continue to see punishment as the primary, if not solitary, objective our criminal justice system should pursue. Even individuals who prefer rehabilitative objectives often admit strong punitive feelings toward violent and sexual crimes. With punishment forming the foundation of sentencing, sentences must be fully served. The nature of our current parole system reduces sentences for mitigating reasons. This approach contravenes complete and just punishment. Were this not so, initial sentences must necessarily be too long. Therefore, parole only destroys adequate punishment. Therefore, parole should be eliminated. Parole elimination proponents also cite ancillary benefits from their course. For example, the public would save the entire cost of the parole system. While opponents may counter that the cost analysis should consider the expense of keeping would-be parolees in prison, proponents can counter that nearly seventy percent of parolees quickly return to prison anyway. As such, incarceration costs exist with or without the parole system. In sum, should society determine that punishment best serves the primary objective for our penal system, then eliminating parole seems to be the logical choice for reform efforts.
Option 2: Increase Discretionary Parole Availability Conditioned on Rehabilitation
Despite the fact that 16 states have eliminated parole, or under the assumption that these eliminations are only a result of broken parole systems generally, Californians may determine that parole is not just worthwhile, salvable, and desirable, but that it is necessitated by the state’s focus on rehabilitation. Modern history tells the story of society’s long-term perspective to the criminal dilemma. Simple incarceration merely removes wrongdoers from society with no forethought of criminals’ reentry into local communities. Incarceration without rehabilitation fails to correct the root of crime, subjecting communities to potential crime upon every release. On the other hand, rehabilitating criminals improves society by reducing crime rates and prison costs while increasing society’s economic productivity.
In theory, fully rehabilitated criminals no longer threaten society. At this stage, deterrence is unnecessary. Successful rehabilitation may also diminish punishment’s utility. First, the criminal’s effort and progress during rehab constitutes positive steps that counter punitive value. Second, incarcerating fully rehabilitated individuals may no longer actually punish someone with once their moral void is filled. Nevertheless, one should not assume that rehabilitation and punishment are mutually exclusive. It is entirely feasible to issue a sentence that includes a mandatory punitive component, followed by a period only extended until complete rehabilitation occurs. Regardless, should society determine that rehabilitation trumps punishment or deterrence, post-rehabilitation incarceration is difficult to justify. The parole system solves this issue.
Perhaps Californians’ biggest criticism with the parole system is that many parolees are not actually reformed. The recent travesty involving Jaycee Dugard and Phillip Garrido exemplifies this critique, leaving people puzzled as to how an apparently nonrehabilitated Garrido managed to get paroled, slip through monitoring mechanisms, and commit unthinkable crimes against Dugard. While the point may appear obvious, a parole system justified by rehabilitation presupposes actual rehabilitation. As such, prisons must invest in rehabilitative programs and establish mechanism to determine when rehabilitation is complete. Opponents criticize this approach because of the initial expenses these reforms will require. The state can’t afford the current system. How can it justify an increase to the prison system budget? The counter to this argument is that an initial increase in expense will more than pay off in the future with reduced recidivism, saving money in crime detention, prosecution and detention. Additionally, the security and comfort local communities feel when prisoners return rehabilitated rather than delayed has value, albeit difficult to quantify. In sum, should Californian’s determine that rehabilitation forms their primary penalogical objectives, parole reform should begin with establishing rehabilitation programs in the prisons and mechanisms to identify rehabilitated prisoners.
Option 3: Maintain Current Parole Philosophy with Improved Implementation
Finally, Californians can opt to keep their current system. In theory, the will of the people is reflected in the current system. But theory and reality many not inseparably connected. Determining whether the current system meets Californian’s expectations is dually problematic. On one hand, without comprehensive polling it is difficult to know Californian’s penalogical goals. Do Californian’s prefer punishment, deterrence, retribution, rehabilitation, or a mix? Do these objectives shift depending on the crime? On the other hand, even if the people’s objectives are clearly identified, is the current parole system even remotely related to those objectives? The seemingly inconsistent application of parole makes this difficult to determine. Nevertheless, perhaps determining identifiable penalogical objectives is itself a futile task. As such, there may be no principled methodology by which parole can be reformed. Additionally, pragmatism may guide decision makers to make incremental rather than monumental parole changes. Regardless, many possible reforms can improve the current parole system while leaving it largely intact. Examples of meaningful and identifiable targets for progress include increased numbers of parole officers, integrated parole monitoring, improved community immersion programming, and increased fairness in parole board hearings.
In conclusion, whether Californians accept one of the three aforementioned options or any possible variation, I reiterate my call to do so only after identifying the objectives and goals that the parole system serves.
Proposals on Parole System Reformation Regarding the Number of Parolees and Increasing Recidivism Rate
1. Different levels of parole regulation and monitoring:
3. Proper transition programs and coordination with private social services groups:
Sunday, October 11, 2009
Proposals to Change the Victims' Bill of Rights
Emil raises two questions which my proposals seeks to address: “Who should be defined as a victim?; and have the rules of evidence been expanded too much so as not to adequately protect a defendant’s rights?”
My proposals presume that the Victims' Bill of Rights does not adequately protect the rights of defendants because the definition of “victim” is too expansive, and because defendants at parole hearings do not have the right to have members of the community speak on their behalf. The goal of prisons should be to rehabilitate prisoners. Parole is a supervised reintroduction of defendants into the community prior to the completion of their sentence; it is an opportunity for defendants to be rehabilitated outside of the confines of a prison.
Proposition 8’s constitutionality was upheld in Brosnahan v. Brown in spite of its far-reaching scope. The California Supreme Court held that the numerous facets that Proposition 8 addresses all advance the common purpose of promoting the rights of actual or potential crime victims.
However, the Victims' Bill of Rights is far too broad because the definition of victim is: “a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act. The term ‘victim’ also includes the person’s spouse, parents, children, siblings, or guardian, and includes a lawful representative of a crime victim who is deceased, a minor, or physically or psychologically incapacitated. The term ‘victim’ does not include a person in custody for an offense, the accused, or a person whom the court finds would not act in the best interests of a minor victim.”
Proposal #1: Redefine Victim
The majority of California voters support the Victims' Bill of Rights – they voted for it in 1982 and expanded it in 2008. Although a definition of victim was on the 51st page of the 62-page text of propositions in 2008, it is unlikely that many Californians were aware that any member of such a large group of people could determine the fate of a single defendant. Further, once a victim dies not as the result of the defendant, the victim no longer has an interest in preventing the defendant’s release.
The definition of victim should be limited to: “a person who suffers direct or threatened physical or psychological [or financial] harm as a result of the commission [or attempted commission] of a crime or delinquent act. The term ‘victim’ also includes the person’s spouse, parents, children, siblings, or guardian, and includes a lawful representative of a crime victim who is deceased as the result of the commission of the crime for which the defendant is accused, a minor, or physically or psychologically incapacitated. The term ‘victim’ does not include a person in custody for an offense, the accused, or a person whom the court finds would not act in the best interests of a minor victim.”
Economic Cost: unknown savings
Limiting the number of victims who have the right to appear at parole hearings will save the criminal justice system money.
Proposal #2: Allow Defendants to Have Someone Speak on Their Behalf
Although the Sixth Amendment only applies to criminal prosecutions, defendants should have the right to rebut the contentions of their accused at parole hearings. Under Penal Code Sec. 3041.5 (a)(2): “Neither the prisoner nor the attorney for the prisoner shall be entitled to ask questions of any person appearing at the hearing pursuant to subdivision (b) of Section 3043 [victims or victims’ next of kin].” Permitting defendants to confront victims in parole hearings may dissuade victims and their families from asserting their rights, but allowing a guardian or next of kin to speak on the defendant’s behalf may ameliorate the impact of the victim’s statement in parole hearings.
Ultimately, it is in the interest of the community to rehabilitate the defendant. Although the victim can speak to her experience, she may not be able to supply the information that the parole board needs to make its determination: whether the defendant is sufficiently rehabilitated. Thus, one member of the defendant’s family should be permitted to state the extent to which the defendant has been rehabilitated and the impact the defendant’s incarceration has had on the family.
The defendant’s spouse, parents, children, siblings, or guardian, or lawful representative should have the same rights that victims and victims’ families have for notice and the right to be heard at parole hearings.
Economic Cost: unknown cost
According to the Legislative Analysts Office: “the addition of various criminal court procedures and hearings, and the expanded ability of victims to take part in them, is likely to lengthen criminal proceedings. This, in turn, is likely to increase the costs of conducting these proceedings. These costs would affect both the state, which pays for the operation of trial courts, and counties, which pay for some staff, such as prosecutors and public defenders, who take part in criminal proceedings. Because the implementation of these provisions could vary across the state, it is not possible to estimate the exact fiscal impact of these changes, but they are likely to be significant on a statewide basis.”
Proposal #3: Limit the Weight Given to Victim’s Statements
Under Penal Code Section 1191: “The victim, or up to two of the victim's parents or guardians if the victim is a minor, or the next of kin of the victim if the victim has died, have the right to appear, personally or by counsel, at the sentencing proceeding and to reasonably express his, her, or their views concerning the crime, the person responsible, and the need for restitution.” (Note that Prop 9 has expanded this section to allow as many members of the victim's family who wish to attend or make a statement)
Although these statements may assist the parole board in assessing the defendant’s crime and the victim’s need for restitution, such statements provide little value to the determination of whether the defendant has been sufficiently rehabilitated. Thus, the victim’s statements concerning the defendant’s prior acts should not outweigh statements concerning the defendant’s progress.
Economic Cost: $0
My proposals presume that the Victims' Bill of Rights does not adequately protect the rights of defendants because the definition of “victim” is too expansive, and because defendants at parole hearings do not have the right to have members of the community speak on their behalf. The goal of prisons should be to rehabilitate prisoners. Parole is a supervised reintroduction of defendants into the community prior to the completion of their sentence; it is an opportunity for defendants to be rehabilitated outside of the confines of a prison.
Proposition 8’s constitutionality was upheld in Brosnahan v. Brown in spite of its far-reaching scope. The California Supreme Court held that the numerous facets that Proposition 8 addresses all advance the common purpose of promoting the rights of actual or potential crime victims.
However, the Victims' Bill of Rights is far too broad because the definition of victim is: “a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act. The term ‘victim’ also includes the person’s spouse, parents, children, siblings, or guardian, and includes a lawful representative of a crime victim who is deceased, a minor, or physically or psychologically incapacitated. The term ‘victim’ does not include a person in custody for an offense, the accused, or a person whom the court finds would not act in the best interests of a minor victim.”
Proposal #1: Redefine Victim
The majority of California voters support the Victims' Bill of Rights – they voted for it in 1982 and expanded it in 2008. Although a definition of victim was on the 51st page of the 62-page text of propositions in 2008, it is unlikely that many Californians were aware that any member of such a large group of people could determine the fate of a single defendant. Further, once a victim dies not as the result of the defendant, the victim no longer has an interest in preventing the defendant’s release.
The definition of victim should be limited to: “a person who suffers direct or threatened physical or psychological [or financial] harm as a result of the commission [or attempted commission] of a crime or delinquent act. The term ‘victim’ also includes the person’s spouse, parents, children, siblings, or guardian, and includes a lawful representative of a crime victim who is deceased as the result of the commission of the crime for which the defendant is accused, a minor, or physically or psychologically incapacitated. The term ‘victim’ does not include a person in custody for an offense, the accused, or a person whom the court finds would not act in the best interests of a minor victim.”
Economic Cost: unknown savings
Limiting the number of victims who have the right to appear at parole hearings will save the criminal justice system money.
Proposal #2: Allow Defendants to Have Someone Speak on Their Behalf
Although the Sixth Amendment only applies to criminal prosecutions, defendants should have the right to rebut the contentions of their accused at parole hearings. Under Penal Code Sec. 3041.5 (a)(2): “Neither the prisoner nor the attorney for the prisoner shall be entitled to ask questions of any person appearing at the hearing pursuant to subdivision (b) of Section 3043 [victims or victims’ next of kin].” Permitting defendants to confront victims in parole hearings may dissuade victims and their families from asserting their rights, but allowing a guardian or next of kin to speak on the defendant’s behalf may ameliorate the impact of the victim’s statement in parole hearings.
Ultimately, it is in the interest of the community to rehabilitate the defendant. Although the victim can speak to her experience, she may not be able to supply the information that the parole board needs to make its determination: whether the defendant is sufficiently rehabilitated. Thus, one member of the defendant’s family should be permitted to state the extent to which the defendant has been rehabilitated and the impact the defendant’s incarceration has had on the family.
The defendant’s spouse, parents, children, siblings, or guardian, or lawful representative should have the same rights that victims and victims’ families have for notice and the right to be heard at parole hearings.
Economic Cost: unknown cost
According to the Legislative Analysts Office: “the addition of various criminal court procedures and hearings, and the expanded ability of victims to take part in them, is likely to lengthen criminal proceedings. This, in turn, is likely to increase the costs of conducting these proceedings. These costs would affect both the state, which pays for the operation of trial courts, and counties, which pay for some staff, such as prosecutors and public defenders, who take part in criminal proceedings. Because the implementation of these provisions could vary across the state, it is not possible to estimate the exact fiscal impact of these changes, but they are likely to be significant on a statewide basis.”
Proposal #3: Limit the Weight Given to Victim’s Statements
Under Penal Code Section 1191: “The victim, or up to two of the victim's parents or guardians if the victim is a minor, or the next of kin of the victim if the victim has died, have the right to appear, personally or by counsel, at the sentencing proceeding and to reasonably express his, her, or their views concerning the crime, the person responsible, and the need for restitution.” (Note that Prop 9 has expanded this section to allow as many members of the victim's family who wish to attend or make a statement)
Although these statements may assist the parole board in assessing the defendant’s crime and the victim’s need for restitution, such statements provide little value to the determination of whether the defendant has been sufficiently rehabilitated. Thus, the victim’s statements concerning the defendant’s prior acts should not outweigh statements concerning the defendant’s progress.
Economic Cost: $0
Tuesday, October 6, 2009
Parole or Not to Parole: A question for 21st Century America
Beginning in 2002, 16 states had abolished parole discretionary release from prison by a parole board for nearly all types of offenders. Currently, many other states have curtailed the power of parole authorities by decreasing the number of parole eligible offenders and by eliminating parole entirely for certain offenses, most commonly violent felonies or sexual offenses. A debate now exists among various interest groups and politicians over whether parole should be further curtailed or whether more discretion should be given back to parole boards. Overshadowing these debates are increases in prison populations resulting in overcrowding, the skyrocketing financial costs of maintain prisons, and the general sentiments of the American public.
While many states have curtailed the power of parole boards, states have also enacted truth-in-sentencing laws, which require those convicted of select violent crimes to serve 85 percent of the announced prison sentence. This development coincided with the passage of the Violent Crime Control and Law Enforcement Act (“the Crime Act”) also amended in 1996, which aimed to promote reform by providing states with grants to expand their prison capacity if they required violent offenders to serve at least 85 percent of their sentence. To meet these sentencing laws, states have limited the powers of parole boards to set release dates and to award good time and gain time (time off for good behavior or participation in work programs).
The movement away from parole coincides with general opinions in America regarding its faith in prison rehabilitation. Both political liberals and conservatives favored proposals curtailing the power of parole boards. Those on the left were concerned with the liberal use of parole, which could result in dramatically different sentences for nearly the same exact crime. On the other hand, conservatives were concerned the parole boards were simply too lenient. The general public also lost faith in rehabilitative nature of American prisons and according to Harris polls taken between 1970 and 1995, there was a 43 percent decline in those that felt prison’s primary purpose was rehabilitation.
Underscoring the movement away from discretionary parole is a series of tragic incidents, where parolees committed further violent acts on the public. For instance, on Father’s day in 1986, Richmond police officer, George Taylor, father of two daughters, was shot and killed one day before his fortieth birthday by Wayne DeLong a convicted murderer, who was released early and served only a fraction of his sentence. In 1991, the same happened to Leo Webb, a baker and a man who liked helping people, including James Steele a man on parole for a malicious wounding. Steele, shot Webb to death at his bakery, took his money and went out partying. Perhaps the most shocking case was that of Phillip Garrido, who was convicted to 50 years in jail for the 1977 kidnapping of a woman. In that case, Garrido kidnapped the woman and took her to a storage facility and repeatedly raped over the course of 5 hours. However, Garrido was released in 1988 by a parole board, after just 10 years in jail. In 1991 he kidnapped 11-year-old Jaycee Lee Dugard and held her for over 18 years and fathered two children with her, who he hid at his home.
Supporters of the abolition of parole claim that eliminating parole ultimately makes society a safer place. Former governor of Virginia George Allen ran on this platform by claiming that the elimination of parole would save both lives and money. According to his statistics, more than 4,300 felony crimes would have been prevented between 1986 and 1993 if parole had been eliminated in Virginia. Likewise, at the time of implementing Allen’s parole reforms, he estimated that over the next 10 years in Virginia 3,700 women will be saved from rape, 119,000 felonies will be prevented, 475 lives saved, and over $2.7 billion would be saved in direct costs.
Proponents of discretionary parole also cite a host of statistical evidence in support of retaining parole. In an article by Joan Petersilia, a professor of criminology at University California at Irvine, Petersilia argues that discretionary parole should be reinstated in all 16 states that abolished it. Her research suggests that the public was misinformed about the nature of abolishing parole and claims that data shows that inmates released on discretionary parole actually serve longer sentences, on average, than those released mandatorily. Likewise, she suggests that discretionary parole focuses prison staff and resources on planning for release, rather than having a policy that is unconcerned with release. Other research indicates that inmates released by parole boards had increased success rates (lower recidivism rates) than those released on mandatory parole.
The debate over parole will continue into the 21st century, as victim’s rights groups, prisoner’s rights groups, prison guard unions, police officer unions, criminologists, sociologists, prosecutors, defense attorneys and lawmakers, among many other special interests and the general public try to determine the best course for our society. Often values such as rehabilitation end up conflicting with those like safety. While there seems to be a trend moving away from discretionary parole, there is a solid movement which is attempting to re-implement discretionary reform in these states. At this time, however, there appears to be no general consensus on the issue.
Monday, October 5, 2009
Parole Officers are Responsible for Too Many Parolees
In 2007, California had 126,906 people on parole. Each of these parolees must be monitored by a parole agent. The number of parolees assigned to a parole agent, however, is extremely high. According to Seth Unger, a spokesperson for the California Department of Corrections and Rehabilitation (CDCR), some case officers oversee as many as 100 parolees. Like so many other programs in California’s criminal justice system, parole agents are understaffed and overworked.
Because parole agents are responsible for a high number of parolees, they experience difficulty monitoring them. Reporting to parole officers is infrequent. Approximately one in four parolees visits their parole officer only twice a year. “High control” parolees must make two in-person contacts a month. These parolees are considered to pose a higher risk to public safety because they have either committed a violent felony, are a sex offender, or belong to a gang. “Control service” parolees—a middle tier of parole classification—must report once a month. Such reporting “varies from mailing in a form to a parole officer, to a periodic phone call to a clerical staff person, to a face-to-face visit with a parole agent.”
This poses a risk to public safety and contributes to the recidivism rate. Approximately 70 percent of parolees are sent back to prison. Parole agents just do not have the time or money to properly supervise people on their caseload. Parolees too often reoffend and re-harm the communities they are released back into.
Additionally, parolees are not receiving the types of reentry programs that parole was originally meant to provide. Parolees oftentimes need assistance finding employment, housing, health care services, and drug treatment. Parole agents, however, have few resources for providing these services. Because there are so many parolees assigned to an agent, they cannot “apply sustained personal attention and/or pressure in individual cases — short of deciding to return the parolee to prison, which continues to happen too often.”
Some efforts have been made to reduce the number of parolees per agent. For example, the Assembly Prison Reform Bill sought to reduce the average caseload of California parole officers from 70 parolees to 45 parolees. Additionally, the recent arrest of Phillip Garrido has many people thinking about this problem. Parole agents allegedly visited Garrido’s home several times, but never discovered that Jaycee Lee Dugard was living there with the two daughters Garrido purportedly fathered. The state inspector general is conducting an investigation into the manner in which CDC handled Garrido’s parole.
California’s parole system faces many challenges. The burdensome number of parolees assigned to each parole agent has many problems. Parole agents lack the ability to closely supervise parolees, which makes our communities less safe. They also lack the resources to assist in parolee reentry to reduce recidivism rates. Most importantly, it takes us further away from parole’s original purposes of rehabilitation and reintegration.
Because parole agents are responsible for a high number of parolees, they experience difficulty monitoring them. Reporting to parole officers is infrequent. Approximately one in four parolees visits their parole officer only twice a year. “High control” parolees must make two in-person contacts a month. These parolees are considered to pose a higher risk to public safety because they have either committed a violent felony, are a sex offender, or belong to a gang. “Control service” parolees—a middle tier of parole classification—must report once a month. Such reporting “varies from mailing in a form to a parole officer, to a periodic phone call to a clerical staff person, to a face-to-face visit with a parole agent.”
This poses a risk to public safety and contributes to the recidivism rate. Approximately 70 percent of parolees are sent back to prison. Parole agents just do not have the time or money to properly supervise people on their caseload. Parolees too often reoffend and re-harm the communities they are released back into.
Additionally, parolees are not receiving the types of reentry programs that parole was originally meant to provide. Parolees oftentimes need assistance finding employment, housing, health care services, and drug treatment. Parole agents, however, have few resources for providing these services. Because there are so many parolees assigned to an agent, they cannot “apply sustained personal attention and/or pressure in individual cases — short of deciding to return the parolee to prison, which continues to happen too often.”
Some efforts have been made to reduce the number of parolees per agent. For example, the Assembly Prison Reform Bill sought to reduce the average caseload of California parole officers from 70 parolees to 45 parolees. Additionally, the recent arrest of Phillip Garrido has many people thinking about this problem. Parole agents allegedly visited Garrido’s home several times, but never discovered that Jaycee Lee Dugard was living there with the two daughters Garrido purportedly fathered. The state inspector general is conducting an investigation into the manner in which CDC handled Garrido’s parole.
California’s parole system faces many challenges. The burdensome number of parolees assigned to each parole agent has many problems. Parole agents lack the ability to closely supervise parolees, which makes our communities less safe. They also lack the resources to assist in parolee reentry to reduce recidivism rates. Most importantly, it takes us further away from parole’s original purposes of rehabilitation and reintegration.
Victims' Bill of Rights: Proposition 8
California voters approved Proposition 8, also known as the “Victims’ Bill of Rights” in June 1982 by 56 to 44 percent. According to the California Legislative Analysts Office (LAO), the initiative amended the state Constitution and several statutes to grant crime victims the right to attend and state their views at sentencing and parole hearings. The initiative also supported the passage of separate statutes that have created additional rights for victims, such as a victim’s right to obtain restitution from any person who committed the crime that caused them to suffer a loss. The LAO reported in February 2008 that “[a] court is required under current state law to order full restitution unless it finds compelling and extraordinary reasons not to do so.”
Although the proposition’s supporters focused on the initiative’s role in expanding victims’ rights, the bulk of Proposition 8 targeted defendants' rights. For example, it changed the granting of bail from a right to a matter of discretion, changed sentencing guidelines, reduced the evidence available to prove diminished capacity, and restricted plea bargaining. Defendants’ rights were restricted to such an extent that Newsweek magazine called Proposition 8 a “counter-Constitution.”[1]
The Victims’ Bill of Rights received broad support as the state was emerging from a period of increased crime. The initiative was supported by a bipartisan group of state legislators and by George Nicholson, the Executive Director of the California District Attorneys Association at the time. The Committee to Stop Crime and then-Attorney General and Republican Candidate for California Governor George Deukmejian also advocated on behalf of the initiative. Supporters claimed victims should be able to participate in criminal proceedings because the relationship between the victim and the perpetrator created a private dispute that is similar to the rights that are triggered in tort claims. Supporters also claimed the initiative would keep society free from the fear of crime because it would ensure that criminals are detained and charged.
One of the most controversial aspects of Proposition 8 was that it gave victims the right to testify at sentencing and parole hearings. Crime victims’ right to testify has been codified in California Penal Code section 3043. Under this statute, the Board of Parole Hearings is required to send “notice of any hearing to review or consider the parole suitability or the setting of a parole date for any prisoner in a state prison” at least 90 days before the hearing is to take place if such notice is requested. The notice must be sent to “any victim of any crime committed by the prisoner, or to the next of kin of the victim if the victim has died.”
The victim, next of kin, members of the victim’s family, and two representatives are allowed to attend the parole hearing and reasonably express his or her views concerning the prisoner, including other crimes for which the prisoner has been convicted or paroled, the effect of the crimes on the victim or the victim’s family, the person responsible for the crimes, and the victim’s view of the appropriateness of parole. Importantly, under section 3043, the parole board is required to consider the victim’s entire and uninterrupted statements in deciding whether to release the person on parole.
Proposition 8’s success has been widely debated, with supporters pointing to reduced crime rates since enactment and opponents arguing that it places too many limits on defendants’ rights. Some of the initiative’s most controversial questions regarding parole include: Who should be defined as a victim? Does the initiative place too large of a burden on parole boards due to notice requirements? Have the rules of evidence been expanded too much so as not to adequately protect a defendant’s rights? In recent years, however, debate has switched from the impacts of Proposition 8 to discussion of its expansion under Proposition 9, or Marsy’s law, in 2008.
Sunday, October 4, 2009
Recent Changes to Parole: 2008's Proposition 9
Appearing on California’s November 4, 2008 ballot, Proposition 9 passed by a margin of 53.8% to 46.2%.[1] Also known as the Victims’ Rights and Protection Act of 2008 and Marsy’s Law, the proposition altered provisions of California’s constitution governing victims’ rights following the commission of a crime.
According to the California’s Legislative Analyst’s Office (“LAO”), the key provisions of Proposition 9 included:
- Expand victims’ rights to participate in public judicial proceedings, including notification by criminal justice agencies and the right to confer with prosecutors;
- Add rights for victims to the Constitution, such as the right to speedy recovery of property to be used as evidence;
- Prioritizes restitution owed by convicts to be paid to victims prior to other debts owed; and
- Restricts the early release of inmates via the parole system, including increasing the time that must pass between attempts for parole by inmates.[2]
The LAO pointed out that the proposition would reduce the financial burdens of the prison system by reducing the number of parole hearings and the judicial burden that comes with them. However, the proposition requires that the state have sufficient resources to support these inmates for the entirety of their sentences, which may actually increase the economic burden for the state.
The initiative was sponsored by Henry Nicholas, who contributed almost $5 million to the campaign before leaving due to personal conflicts. Nicholas’ goal in supporting Proposition 9 was to reduce the ability of convicted felons to receive repeated opportunities to apply for parole. Supporters pointed out that felons often have annual parole hearings despite little chance of success, draining California’s already limited resources. By installing mandatory time periods between hearings, California could more efficiently review parole applications. Supporters further stressed that victims need to have priority to receive the restitution they deserve. Proposition 9 would guarantee that any restitution properly went to the victims of the crime before any other debts.
Opposition to Proposition 9 emphasized that the unintended effects of the initiative could further overwhelm the state, mandating prison services when prisons already suffer from a lack of resources. By delaying parole hearings, California would be guaranteeing services for prisoners that may not be necessary where parole is appropriate. Furthermore, most of the changes that Proposition 9 provides for victims were previously approved in 1980’s Proposition 8, including the notification and involvement of victims in the sentencing process. For a state looking to reduce its prison population and cut its prison budget, mandating delays in parole hearings would appear to worsen rather than improve the problem.
Proposition 9 is representative of the current problems plaguing California’s prison system. On the one hand, the principles of the initiative would seem to enact positive changes that could greatly affect the California community and victims of crimes. It prevents parole resources from being drained by unnecessary hearings and procedures that are otherwise being improperly used by convicts. It provides vital restitution to victims to allow them to recover both psychologically and economically where otherwise there may be no remedy. California’s parole system may be strengthened by replacing unnecessary parole hearings with those convicts who truly deserve the opportunity to be heard and have earned the right to leave prison early.
However, Proposition 9 may be taking an extreme step to achieve its legitimate and beneficial goals. By mandating that convicts must wait given periods of time between parole hearings, California prisons are guaranteeing that they must provide services for those periods of time. This hard-line rule further burdens the state, which is currently enduring a major economic recession that has resulted in prison overcrowding. Further compounding the problem is the impending federal requirement to reduce prison populations in California. With a strapped budget and limited resources and facilities, California prisons may be paying the price for the changes enacted through Proposition 9.
Only a year removed from its enactment, Proposition 9 has just started to affect California victims and convicts. It has yet to be proven whether the fiscal effects of the initiative have been realized. While California prisons continue to suffer from overcrowding and underfunding, it is unclear whether Proposition 9 contributed to this. Victims have begun to take advantage of their new rights under the initiative, becoming more involved in the process and receiving their just remedy. However, until more analysis can be conducted to determine the impact of Proposition 9 on California prison populations, Californians will have to wait like convicts seeking parole to determine whether Proposition 9 was an appropriate change to the California Constitution.
[1] http://www.lao.ca.gov/handouts/crimjust/2008/Prop_9_9_23_08.pdf
[2] http://ballotpedia.org/wiki/index.php/California_Proposition_9_(2008)
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