California Chronicle

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Real Prison Reform Must Include Sentencing and Parole Changes
Dr. B. Cayenne Bird


Dr. B. Cayenne Bird is an ordained minister and a 37-year veteran op-ed journalist and publisher. She volunteers her time as founder and director of United for No Injustice, Oppression or Neglect UNION. The UNION is active in prison reform and criminal justice issues. She is a mother and grandmother and focuses on human rights and restorative justice. She is also the host of television series "Cayenne Common Sense" and publishes a daily online newsletter to subscribers. 

September 25, 2006

My previous two columns in this series on prison reforms discussed the need to deal with current emergency situations threatening prisoners and their families and with cleaning the (big) house of extremely serious wrongs. You can find these columns at the following links:

Voters Must Demand Sane Prison Reforms to Protect the Public Safety

Prison Reform for Dummies: What’s Right and What’s Wrong

This and future column(s) will discuss a wide range of reforms that I believe could begin to heal, that is, repair and maintain, California’s horribly broken and dysfunctional criminal justice system -- from arrest though parole. This burgeoned system has remained virtually unchanged to this day despite some good reform ideas having been presented over decades. Today’s column focuses on the critical need to revise and revamp elements of the system that continue to feed into its injustice, ineffectiveness, and lack of accountability: ailing sentencing laws, ailing parole boards, and ailing parole agents.

It has been nearly three decades since California adopted its “tough on crime” stance with tougher sentencing laws, more prisons, fewer paroles, and longer (yet ineffective) parole terms. Experts say California has experienced one of the most ill-planned and flawed prison expansions in the country -- especially in the early 90's when then Republican Governor Pete Wilson took the prison population from 20,000 to 150,000 in an effort to run for the presidency on a tough-on-crime platform. Still, lawmakers and prosecutors are sending far more criminals to prison than even a well functioning system could handle. The result has been such massive overcrowding that critical prison programs and services have broken down -- completely in most prisons -- and living conditions are deplorable and dangerous. 

California’s distinction of having the worst overcrowding in the country -- more than 71 percent over capacity -- should be no surprise. It is a direct result of other distinguishing factors: some of the toughest sentencing laws and the highest rate of parolees returning to prison, currently at about 70 percent. Overcrowding has cut prison rehabilitation programs to almost nil, and the cycle continues out of control, producing an increasingly older, sicker, and socially maladjusted (to put it mildly) inmate population with increasingly more expensive medical and ultimately rehabilitative needs. 

States, such as Mississippi and Louisiana, which historically have been known as strict law-and-order states, are embracing new models, which include shorter sentences, improved rehabilitation programs, shorter parole periods, and more upfront alternatives to prison. Even Texas, which has a higher crime rate than California and houses nearly as many inmates, returns only a fraction as many parole violators to prison. Why can’t we learn from states such as these?

The roots of California’s mushrooming prison overpopulation horrors were planted in the late 1970s, when Democratic Governor Jerry Brown joined Republican legislators bent on toughening the state's criminal justice agenda. Brown signed legislation that to this day requires judges to impose fixed or “determinate” sentences. Subsequent laws provided longer sentences for drug crimes, sex crimes, and for habitual offenders. The epitome of this trend came in 1994, when the "Three Strikes'' law was passed. Today, another “conveyor belt” law, Jessica’s Law, is threatening to not only add to the overcrowding and attendant prison crises, but to create serious civil rights issues for many sex offenders and their families, as well as extremely (and prohibitively) high costs and law enforcement nightmares.

Revise sentencing laws

The one-size-fits-all, lock-them-up, punitive approach of California’s sentencing laws is unjust. California desperately needs more reasonable, flexible, and sane sentencing laws. The inherent problems with determinate sentencing laws in effect today are described in detail in Understanding California Corrections (2006) by Dr. Joan Petersilia, a leading research criminologist. She says, “The determinate sentencing system is widely regarded as a failure -- even by its creators. It has both reduced incentives for inmates to participate in rehabilitation programs while in prison and tied the state’s hands in dealing with particularly dangerous offenders whose mandated sentence has elapsed.” “. . . time served by offenders is primarily determined by the length of the sentence imposed by the judge rather than by the discretionary release decision-making of a parole board.” 

The result is sentences that often do not fit real-life circumstances. Determinate sentencing is subject to serious error from two perspectives: 1) a model prisoner who has managed to rehabilitate, in spite of the lack of programs today, will be held beyond his need to be incarcerated, or 2) a dangerous prisoner will automatically be released at the end of his term, regardless of his lack of rehabilitation or potential risk. 

The state’s heavy use of technical revocation of parole followed by brief stints back in prison is another problem that needs to be solved. As two leading crime analysts, Alfred Blumstein and Allen Beck, illustrated in a recent study (“Reentry as a Transient State Between Liberty and Recommitment,” in Jeremy Travis and Christy Visher, eds., Prisoner Reentry and Crime in America, Cambridge University Press, Cambridge , Massachusetts , 2005.), “California’s catch-and-release model of crime control is creating a destructive situation by constantly cycling offenders in and out of prison and their home communities in a way that blurs the distinction between the two and combines the worst elements of each.”

Alternative sentencing options (e.g., mental health and drug programs, job training, family counseling, parenting classes, and performing community service) should be incorporated into the law, particularly for technical parole violations. There are many forms of alternative sentencing possible at the community level. Proposition 36 is a good example of successful sentencing reform. Passed in 2000, Proposition 36 requires all nonviolent drug offenders who do not have a non-drug-related charge to be sent to treatment instead of jail. Studies have shown that treatment is seven times more effective than incarceration in reducing drug use.

The shame-and-blame, retributive form of justice has never worked; all it does is break people in body, mind, and spirit. Often people who sent to prison are on the edge experiencing a crisis in their lives. In the mismanaged prisons, they will predictably go over the edge into a total breakdown. If the objective is to return people to their communities in better condition than before they were arrested, California would do well to study how the Scandinavian countries have successfully conducted their programs, using an integrated multi-partner approach. Go to this link: Scandinavian Research Council for Criminology and search for “restorative justice.” 

Restorative justice is a paradigm shift for traditional criminal justice philosophy. The victim and offender meet in a mediation setting and experience an emotional shift from hostility towards empathy and cooperation. They learn to creatively reach win-win agreements. According to research data, there are many advantages to mediation: Viable agreements are reached fairly quickly and at a low cost. Offenders are motivated to compensate for damages, and both parties end up satisfied with the process. Juveniles must meet with and face their victims so they can see the damage their wrong actions have caused. This method promotes victims’ rights rather than the state’s retributive interests. There is much evidence to support restorative justice as an actual solution to crime and far more advanced than the mindless punishing of retributive justice.

Revise Three Strikes Law

The Three Strikes Law, passed in 1994, defines certain violent or serious crimes as strikes. A felon with one strike who picks up a second strike must be sentenced to at least twice the normal term for the new crime. A person with two strikes who picks up a third strike must receive 25 years to life. This harsh law not only has significantly increased prison populations because of its longer sentences, it has unjustly imprisoned many in cases where a minor, non-violent crime as a third strike results in a 25-to-life sentence. Those with two or three strikes must serve 80 percent of their time. In the past, if they were sentenced to two or three years, they could with good behavior and hard work earn their way out in as soon as six months. But since the Three Strikes law passed, someone sentenced to four years must serve at least three regardless. 

This one-size-fits-all approach to crime, for non-violent crimes in particular, has resulted in an $8 billion human bondage industry. The law enforcement labor unions have put their own people into public office to preserve these conveyor-belt laws which provide a fresh supply of humans so that they will have jobs. Due to the current Three Strikes Law, there are people who are currently serving 25 years to life for stealing food! This is because certain misdemeanors can be considered a felony.

About 30 percent of prisoners are violent; the other 70 percent are non-violent. In the past, people often took a plea bargain for minor crimes, saving the taxpayers on court costs; but such is not the case today, as people are fighting for their lives over petty offenses. Somehow the judges became politicians and with 70 percent of them being Republican, anyone accused of a crime has very little chance for a successful defense. (I’ll discuss reforms needed in prosecution, trials, and judge selection in my next column.)

There are some prisoners who need to be removed from society because they are extremely mentally ill and are a danger to themselves or others. But society benefits when it seeks healing as opposed to revenge. Those people who are removed from society for acting out, however heinously, still need to be treated in a healing manner instead of with so much hatred. The mentally ill imprisoned under Three Strikes -- or otherwise for that matter -- should be in mental hospitals, not prisons!

Many politicians who understand the shortcomings of the current Three Strikes law are afraid that their vote to make it more sensible will be used against them in the next election campaign. Unfortunately, power and politics has replaced justice in California. Such motivation is disgraceful compared to the injustices of Three Strikes. A primary principle of criminal justice is that punishment must be in proportion to the crime. Only violent crimes are serious enough to warrant such a drastic sentencing policy. California should revise the Three Strikes Law to (1) allow only violent felonies to count as strikes, (2) put a time frame around when these violent felonies can be counted, and (3) disallow all juvenile offenses to be counted as strikes. Our Constitution is based on the importance of the individual and one-size-fits-all laws are not what our forefathers had in mind. There are no statistics anywhere that locking people in cages does one thing to reduce crime since so many people who act out are mentally ill and are not thinking rationally. I would not be opposed to throwing out the failed Three Strikes Law altogether.

Vote down the latest so-called child protection initiative, Jessica's Law.

This initiative, Proposition 83 on the November 7 ballot, is the latest war on the people that will do nothing to protect children. Prosecutors and judges are sending far too many innocent or minor sex offenders to prison, while the public erroneously believes that only serious sex offenders go to prison. Don’t the judges understand that due to the overcrowding, any sentence to prison is a potential death sentence? Judges should ask themselves, "Do I really want to impose a death sentence on this person for this minor crime by sending him to prison?"

Estimated to cost taxpayers hundreds of millions of dollars, Jessica's Law will be a disgraceful waste of resources on those who don't pose any serious risk, leaving fewer resources available for mentally ill, high risk offenders who need to be watched -- or for working on actual solutions to crime, such as the prevention of mental illness and substance abuse, which are often the root causes of the problem. This initiative is not even clear about whether the state or the local governments would pay the extra hundreds of millions of dollars. 

Read the text of the initiative for yourself at this link Jessica's Law and see how it would place severe and cruel restrictions on all sex offenders released from prison -- not just child molesters, as fear-mongering politicians would have us believe, but any and all sex offenders regardless of their offense or when it took place. This blatantly unconstitutional law would require that all sex offenders live 2000 feet away from any park, school or other areas the community deems necessary for the duration of their registration requirement, (which is usually for life). It also would mandate that all sex offenders wear global positioning system (GPS) ankle bracelets so that their whereabouts can be continuously tracked, not only for the duration of their parole, which will be increased to five and even ten years, but for their entire lives! Nothing in this initiative would prevent those who are intent upon harming children from removing their GPS devices and committing crimes.

There are many types of sex offenses, and very, very few sex offenses involve the kidnapping and rape of young children. Statistics show that more than 90 percent of child molestations take place in families or family circles, and child rape is almost always committed by someone the child knows. Many non-violent sex offenders who would unjustly fall under Jessica’s Law: young adults (19-20 years old) who had sexual relations with their 16-17 year-old boyfriend or girlfriend and those convicted of non-violent offences such as indecent exposure (urinating outside, mooning), possession of child pornography, or bigamy. It would also needlessly destroy the lives of the one million women and children who are related to a sex offender.

So think about it: Jessica’s Law is misdirected; it is deceptive; it is a very expensive shotgun approach that other states now are trying to repeal! The sex offenders who might warrant such scrutiny have either been sentenced to death or life in prison, or have been (possibly mistakenly) paroled, or they have not yet been caught! Why not focus on the known child-abductors and child-rapists who are out there?

No one should buy into the deceitful fear-mongering and political posturing taking place right now. Candidates need the donations and endorsements of law enforcement labor unions, and they know Jessica's Law will produce a steady of flow of inmates to keep the over-crowded prison industry booming. They are pandering and using a very emotional subject to get themselves elected by the punishers' well-oiled voting machines. People such as Sharon Runner and others who are promoting this initiative are running for office and have taken hundreds of thousands of dollars from law enforcement labor unions.

In other states, similar laws have backfired because they pushed sex offenders into sparsely populated rural and suburban neighborhoods where law enforcement is thin and where counseling, psychiatric and other social services that many mentally disordered offenders need are in short supply or nonexistent. The same is likely to happen in California.

I strongly believe that a new trend is on the rise. Future polls will show a reversal in the current majority of yes votes predicted, as more people educate themselves about this ridiculous proposition. The Sacramento Bee, a generally conservative newspaper, ran an editorial on September 19, 2006, in which they stated, “Proposition 83 is, in short, costly and counterproductive. Sadly, politicians who know better are afraid to tell voters the truth. Voters should see through this deception and vote No on Proposition 83.” See through the deception and vote NO on Jessica’s Law.
 

In California there are no consequences for judges or prosecutors who lie, withhold, or distort the facts, although in South Dakota, the citizens have qualified Measure E for the ballot, which will curb such broad immunity. Visit their Judicial Accountability Initiative Law web site for more information. Until Californians can organize well enough to get a similar initiative passed, hundreds of thousands of families will continue to be destroyed under laws that are already extremely harsh. All it takes is an accusation; there need not be any witnesses, DNA, or physical proof to be convicted of a sex crime. 

Almost no one will stand up for an accused sex offender, which makes it very easy for opportunistic politicians, prosecutors, and judges to build their careers off these types of allegations. In child custody and divorce cases, an accusation of sex offense becomes an easy way to win, which is one of the reasons why there are 100,000 sex offenders in California. Less than l/2 of 1 percent has been convicted of the type of snatch-and-run crime that Jessica's Law addresses. Many are innocent of having committed any crime at all.

Other states that have passed similar laws are desperately trying to get them repealed. Please visit our web pages on Jessica’s Law -- No Way! for news articles and letters from real people as well as the facts on Jessica's Law and other ridiculous laws passed by unscrupulous politicians.

Revamp the Board of Parole Hearings 

An estimated 20,000 of California’s prison population is comprised of “lifers” with indeterminate sentences who are eligible for parole. Approximately 5,000 of these have attained maximum parole suitability and been adjudged by Board of Parole Hearings (BPH) forensic experts to no longer pose an unreasonable risk to public safety. Yet historically, the BPH ultimately denies parole to over 99 percent of eligible inmates. More than 1,000 parole denial appeal cases have been filed in the state’s backlogged courts. The cost of this litigation to taxpayers is in the tens of million of dollars annually. The cost to maintain these parole-eligible, aging prisoners averages approximately $50,000 each per year, costing the State approximately $250,000,000 annually. 

The Board of Parole Hearings is behind on hearing cases to the extent that some 4,000 prisoners with indeterminate sentences, many of them now elderly, frail, and seriously ill, continue to be held long past their parole dates. The current BPH is comprised of people who will most assuredly almost never grant a parole, even to those who have earned it. Every entity of the government is purchased and/or dominated by law enforcement labor unions so that virtually no “lifer” gets out, even those who have earned it or are well past being a danger to society.

Just one example of this corruption and injustice is the case of Mark Grangetto. Mark is a blind diabetic, wheelchair-bound man with Hepatitis C. Born organically brain damaged, this poor prisoner now weighs less than 100 pounds and is dying a painful and slow death. He was recently denied parole! It is hard to imagine denial of parole when in fact doctors have stated under affidavit that the prison system cannot take care of Mark and that they recommend release to a nursing home or to his mother, who is willing and able to pay for this care. But the parole board members cruelly rubber-stamped this shocking denial as they do to 99 percent of those who come before them. Mark’s crime? A motorcycle accident, and of course, the heinous crime of being born mentally ill. I have been writing about this case for more than a year and a half and still there is no help for either he or his desperate mother, Nora Weber, an insurance agency owner who kept meticulous records. 

I have been present and chimed in at Senate hearings where Ms. Weber has begged that her helpless son be given a wheelchair and medical care which was met with no response. He is today, even after repeated appeals to the Judges and the Federal Receiver, and everyone in between, still crawling around on the floor of a cell in the Corcoran SHU as if he were an animal. We have yet to see relief for many UNION members in this same type of predicament which has resulted in at least 27 lawsuits. A movie is being made about our UNION struggles to bring about relief, the hundreds of people who have died and those who are still suffering such as Mark Grangetto. What is a mother supposed to do in this very typical circumstance?

The prisoners have families and are not livestock which the bureaucrats and politicians capitalizing off their misery often fail to consider. Their children have overburdened the failed foster care system as parents are often taken from their homes for minor, non violent crimes.

It is outrageous that parole denials are the norm when Penal Code Section 3041, which governs the granting of parole, establishes a presumption of parole suitability which states that the Board of Prison Terms, now incorporated into the Board of Parole Hearings (BPH), “shall normally set a parole date . . . after the inmate’s minimum eligible parole date.” Despite this presumptive language, nearly all paroles are denied, and BPH decisions are frequently accompanied by the use of boilerplate language at each hearing that denies parole based upon the gravity of the inmate’s commitment offense.

The current understaffed, biased, and bought-and-paid-for Board of Parole Hearings needs some new blood. It needs members who can look at a case without prejudgment, bias, and the hardened, punitive attitude that cannot see past the original crime to the rehabilitative progress the prisoner may have made.

Granting parole to those who have earned it gives the other prisoners hope and motivation, which are lacking now. This is another reason why California has the highest suicide rate of prisoners in the nation. Hope is an essential element of humanity. At this time, there is no hope amongst prisoners with ridiculously long sentences.

Revamp the local Parole Departments 

The Little Hoover Commission's November 2003 report stated that two out of three California parolees return to prison as compared to one out of three nationally. "Parolees are a challenge for all states," the report said." California's parole policies are simply out of sync with the rest of the nation. California puts a greater percentage of felons on parole. The state offers little assistance to parolees. And then it sends parolees back to prison for violations that in other states would land a parolee in drug treatment, work furlough or some other 'intermediate' sanction.”

In March 2005, James L'Etoile, the department's then new Deputy Director for Adult Parole and Community Services, said many of the parole reforms promised more than two years earlier were beginning to be implemented. Changes included: giving parole officers more options to punish parole violators short of sending them back to prison; more pre- and post-release counseling, training and treatment to help ex-convicts fit in with society; using electronic monitoring to track more parolees; and ending parole after a year for ex-cons with a good release record. These reforms were to have come in time to trim the inmate and parole populations by thousands and the department's budget by several hundred million dollars. Where is there any evidence that any of this has been done? Why are these reforms not evident?

Perhaps Parole needs to be taken away from CDCR’s and law enforcement's purchased influence. Prisoners should be released to places where they might have support such as a family, hope for a job, a car to drive, and some money in their pockets. This would be less costly than sending them back to prison -- because they were set up to fail. Releasing a prisoner takes careful consideration and planning, early coordination with the potential parole agent, and most importantly early coordination with the specific community services that each parolee will need to have a chance at success. 

Sometimes, after lengthy incarceration with no re-entry program, a half-way house would be a good choice. In many cases, it may not be a good idea to release prisoners back to the same community of their arrest, as the law requires. This could put them in that same criminal element, around the same so-called friends or possibly the same gang members, which most likely contributed to their crimes in the first place. It also could place them under the jurisdiction of the same biased parole agents and courts which convicted them in the first place. Typically, none of this planning is done. Instead a week or two prior to the release date, the local parole agent will get notification, which he will put on the bottom of his already impossible caseload pile. Parole officers’ caseloads are so high that they have little time, nor inclination, to do more than round up parole violators. 

To actually help parolees make it on the outside, local parole departments need state funding, local funding (which can be supplemented by federal dollars), infusion of a new healing and supportive culture, new parole agents trained in the new paradigm, retrained old-school parole agents, and new community centers staffed with drug and alcohol counselors, employment counselors, social workers, mental health professionals, and family counselors. 

How can parolees be expected to get a job when the State goes to such lengths to inform potential employers that they have an indelible black mark on them? The California Department of Corrections excels at destroying the bodies, minds and spirits of people who were on the edge when they entered prison. No one emerges better off than before they were incarcerated. This is why recidivism is so high. Many parolees have Post Traumatic Stress Disorder from what they endured and witnessed in prison. No consideration is given to parolees for this life-threatening illness upon release.

Ideally taking people from society would be intended to help them become better people instead of obliterating them, which is what is taking place right now.

Cities and counties need to step up to the plate here. They need to aggressively seek funding, quality personnel, and space for facilities to ensure that the support needed by the members of their own communities is available. They should not be allowed to pass the buck by simply sending undesirables off to prison and neglecting them when they come home.

In summary, criminal justice reform inherently involves very complicated and tough issues that have been left to fester sometimes for decades. Sentencing reform and parole reform are often left out of the discussion because prison reform issues are so much in our faces. But let’s not forget that anything that can help to heal the ailing sentencing laws, parole boards and parole agents will in turn help to heal the prison system.

If we do not want elected officials who pander to law enforcement labor unions and who promote punishing so that they can all have jobs, -- including the bully guards who have destroyed hundreds of thousands of lives by breaking the mind, body and spirits of the prisoners -- the single most important thing we can do is register and vote. The public is becoming more aware that the majority of the prisoners are in prison for non-violent crimes and that many who have died unnecessarily there had minor sentences. This inhumanity deserves to be reflected at the polls. 

As voters we have the power to remove incumbents from office who pander to law enforcement and the prison industry and to elect candidates to office who want to empower healers in our society -- teachers, doctors, nurses, social workers, and ministers. Enough voters could ultimately make societal healing and crime prevention big industries too! According to a Public Policy Institute of California report just released, seven million eligible voters will not vote in November. Most of these seven million non-voters: are under age 45, are renters, do not have college degrees, and have household incomes of [much] less than $60,000. And . . .

As I’ve said many times, three million voters are connected to state prisoners. This does not include juvenile halls, federal prisons, the l.5 million on parole, or those in jails. The voting lobby potential here is huge! We have a general election coming up on November 7. Are you registered? Are your family and friends registered? Do you know which candidates support true criminal justice and prison reform? Are you getting out the vote for them? Are you educating people on the wrongs of Jessica’s Law? Will you go to the polls on November 7? Will you give rides to others to make sure they can get to the polls?
 

Again, the National Prison Commission Report has some great recommendations for reform as well. To read this report click on following link: National Prison Commission Report
 

Needed criminal justice reforms can bring our entire society forward and remove California's black reputation for torture. How, you ask, can all these changes ever happen? They can only happen if enough people demand that they happen. This is done two days. 1. By electing the right people to office in the first place 2. Forming ONE funded voting lobby that can do initiative campaigns made up of at least 6500 workers who will write, protest, recruit others and finally, get out the vote. Change cannot be for free but the poor are usually not educated on what to do and have a hard time making justice a high priority in their daily lives.

Our framers gave us the tools but each generation must use them. Each of us must make the time for our personal life, our work life but also our civic life which includes writing, protesting, organizing into groups that represent our interests and focus on getting out the vote against the law enforcement labor unions that are in power due only to apathy and ignorance.

“The highest measure of democracy is neither the 'extent of freedom' nor the 'extent of equality', but rather the highest measure of participation.”

--A. D. Benoist
 

“Democracy is not something you believe in or a place to hang your hat, but it's something you do. You participate. If you stop doing it, democracy crumbles.”

--Abbie Hoffman
 

“Elections belong to the people. It is their decision. If they decide to turn their back on the fire and burn their behinds, then they will just have to sit on their blisters.”

--Abraham Lincoln,

I would say that apathy of the voters has caused our backsides to be covered with Third Degree Burns instead of just "blisters."
 

If you would like to help me bring about these reforms, please join my UNION subscribers who write to editors, protest, and are working to build a voting lobby one person at a time that can turn this insanity around. It is a fact that 6,500 organized workers can change any law, elect or recall any politician, which is the only way anyone is going to see justice in their individual cases and improved prison conditions for all.

 rightor1@yahoo.com

Rev. B. Cayenne Bird
P.O. Box 34371
Sacramento, Ca. 95834

 www.1union1.com/Join_the_UNION.html
 


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