Recently in Probation and Parole Category

Remember when Gov. Moonbeam told us about "realignment?"  Remember that we were all going to be safe?  That crime wasn't going to spike just because we were putting criminals back on the street?  Remember that?  Remember when "community supervision," strongly fortified with ankle bracelets, was going to do the job, keep tabs on everybody?  Don't need all this prison stuff  --  remember that?

In the 1960s, America made a terrible mistake.  We believed too easily in experts who supposedly had the answers for corrections.  They knew how to "fix" criminals who were, after all, sick and not evil.  When the fixes were actually subjected to scientific scrutiny to determine which of them worked, the stunning answer was that none of them did.  In the meantime, lax sentencing contributed to the horrific rise in crime, a rise that was brought back down only after we got tough.

Fast-forward 50 years, and those who do not remember this history are working to condemn the nation to repeat it, over the vehement objection of those who do remember.  One of the programs touted to rehabilitate criminals so we won't need to lock so many up is halfway houses.  Or maybe not.  Sam Dolnick has this story in the NYT:

The federal government and states across the country have spent billions of dollars in recent years on sprawling, privately run halfway houses, which are supposed to save money and rehabilitate inmates more effectively than prisons do.

But now, a groundbreaking study by officials in Pennsylvania is casting serious doubt on the halfway-house model, concluding that inmates who spent time in these facilities were more likely to return to crime than inmates who were released directly to the street.

The findings startled the administration of Gov. Tom Corbett, which responded last month by drastically overhauling state contracts with the companies that run the 38 private halfway houses in Pennsylvania. The system costs more than $110 million annually.

Pennsylvania's corrections secretary, John E. Wetzel, who oversaw the study, called the system "an abject failure."

Thanks to Michael Santella for the link.

Dana Nichols has this article on realignment in Calaveras County, California (locale of Mark Twain's first published piece of fiction).

The agencies charged with enforcing laws and supervising criminal offenders in Calaveras County aren't getting along with each other and are bungling key tasks required under California's 2011 criminal justice realignment, according to a county grand jury report.

Along with shifting a lot of incarcerated felons from state prison to county jail, the realignment bill also shifted the supervision of a lot of released felons from the state parole system to county probation offices.  Over the years, probation officers have developed a different culture from parole officers.  I'm sure this is due in large part to the differences in the criminal populations they have supervised.  The people supervised by probation officers in the past were, by definition, those that the judge thought were suitable for probation, largely based on the judge's assessment of their potential for rehabilitation.  Those who ended up being supervised by parole officers tended to be the hardened criminals.  Probation officers therefore tended to develop more of a rehabilitation viewpoint, while parole officers tended toward a viewpoint that their job was to protect the public from this still-dangerous criminal.

Don Thompson reports for AP:

The number of paroled sex offenders who are fugitives in California is 15 percent higher today than before Gov. Jerry Brown's sweeping law enforcement realignment law took effect 17 months ago, according to figures released Wednesday by the state corrections department.

The increase amounts to 360 more sex offenders whose whereabouts were unknown and who were not reporting to their parole officers last year.

An Associated Press analysis of the Department of Corrections and Rehabilitation data shows that 2,706 paroled sex offenders dropped out of sight in the 15 months since the new law took effect in October 2011, compared to 2,346 in the 15 months before realignment. The numbers were obtained by the AP before their public release.

That's an average of 180 sex offender fugitives each month, up from 156 before realignment.

The California Supreme Court today upheld the retroactive application of parole changes in Proposition 9 of 2008, Marsy's Law.  The decision is In re Vicks, S194129.

The law in this area is largely set by two US Supreme Court decisions, California Dept. of Corrections v. Morales, 514 U.S. 499 (1995) and Garner v. Jones, 529 U.S. 244 (2000).  (CJLF filed an amicus brief in Morales.)

Vicks is a poster boy for the kind of criminal whose release victims should not have to go back and oppose more than once in a great while, if ever.  He committed a string of violent offenses including kidnapping, armed robbery, and gang rape.  He received well-deserved sentences of life with parole and 37+ years, consecutive.  His minimum parole eligibility date was 2010 for 1983 crimes.

California's law of parole was once so criminal-friendly as to require preposterous annual parole hearings, even for multiple murderers.  This has been tightened up since, once by the law at issue in Morales and again in Marsy's Law.  Under the Morales and Garner precedents, a change in parole consideration intervals can apply retroactively if it does not add too much risk that a prisoner will be denied parole at a time when he would otherwise have been granted it.

Marsy's Law sets a presumptive interval of 15 years, but it allows some discretion for setting shorter intervals and for reconsideration upon receipt of new information or a change in circumstances.  The court has to make some pretty generous assumptions about how this discretion will be used to get under the "significant risk" bar.  The facial attack has been rejected, and Marsy's Law has been upheld for now, but we are not out of the woods.

The parents of Hadiya Pendleton, murdered at the age of 15, were present as President Obama delivered his State of Union speech last night.  Would Hadiya's tragic murder have been prevented by any of the measures Mr. Obama proposed?  Probably not.

Would a ban on assault weapons have prevented this crime?  No, the killer probably used a revolver.  Would background checks have helped?  Probably not, despite what the expert interviewed in the preceding link says.  Extending background checks to gun shows or even to private sales by law-abiding individuals won't stop criminals from getting them through black-market sales or just stealing them.  (I am not against background checks.  I just don't think they will have a large effect on crime rates.)

So what does work?  Mostly measures that are opposed by the same people calling for these ineffective measures.  First, locking criminals up works.  Jason Meisner of the ChiTrib reports:

The reputed gang member accused of gunning down 15-year-old Hadiya Pendleton last month was on the street even though he had been arrested three times in connection with break-ins and trespassing while on probation for a weapons conviction in recent months, the Tribune has learned.

In two of those arrests, including one just 2 1/2 months ago, Cook County probation officials failed to notify prosecutors or the judge that Michael Ward had been arrested on the new misdemeanor charges and allegedly violated his probation.

The head of the county's probation department acknowledged Monday that his office fell short in its responsibilities and vowed to find out what went wrong.

If they hadn't "fallen short" in locking up this criminal, Hadiya would be alive.

Another measure that works is the proactive policing of the kind New York City uses over the vehement opposition of the Politically Correct.  Holman Jenkins has this column in the WSJ:

Phillip Matier and Andrew Ross have this column in the SF Chron:

What do Charles Manson, Sirhan Sirhan and Scott Peterson have in common besides murder?

They are all classified as "low-risk" repeat offenders by the California Department of Corrections and Rehabilitation.

The "low-risk" appraisals are based on everything from their age (in Manson's case, 78) and conduct behind bars to the number of years since their last arrest.

Luckily, an inmate's risk score isn't the only criterion for parole, says Corrections spokeswoman Terry Thornton. "It only predicts the likelihood of reconviction of a felony upon release," she said.

The terms "low risk" - and "non-serious" - and the public's perception of what the terms mean - have become central to the politics and public relations of prison overcrowding.

Kent's post about High Supervision brought to mind one I wrote three weeks ago about the things a career criminal can get done on Enhanced Probation.  The whole idea would be laughable, if it were funny.

The Sixth Circuit today held that Michigan's parole scheme does not create a constitutionally protected liberty interest cognizable on federal habeas review:

[I]n determining whether Michigan's parole system creates a liberty interest, we must determine whether Petitioner had "a legitimate claim of entitlement to" parole, rather than "an abstract need or desire for it."

A murderer a day shy of his 18th birthday is categorically exempt from a death sentence.  Should that arbitrary cut-off based on chronological age alone similarly exempt him from a true life-without-parole sentence, regardless of the circumstances of the crime and regardless of the length of his criminal record?  Incredibly, a bill to do just that has made it to the floor of the California Assembly.

Margaret Bengs has this article in the Sacramento Bee:

Prosecutors and judges already have discretion in seeking and imposing life-without-parole sentences and have reserved it for the "worst of the worst." Most teen criminals in California are tried in the juvenile court system and must be released at age 25. Of those tried in adult court, only first-degree murder with special circumstances can result in life without parole, and only for 16- and 17-year-olds. All states allow juveniles to be tried as adults in criminal court under certain circumstances, according to the U.S. Justice Department.

Rong-Gong Lin reports in the LAT:

Los Angeles County supervisors on Tuesday condemned Sacramento's cost-cutting decision to keep some state prisoners in local lockups and have parolees be supervised by county agencies, asserting that both would lead to an increase in crime.

*                               *                            *

[County Supervisor Michael] Antonovich said it is likely that Los Angeles County will run out of jail beds unless it "uses other models of supervisions such as electronic monitoring, work furloughs, weekenders and GPS tracking."

"It's irresponsible for us to turn around and dump these [prisoners] into our communities with an ankle bracelet and hope they don't re-offend," Antonovich said. Without finding a way to increase prison time, Antonovich said, "I believe we'll have a spike in crime."

When pollsters ask Californians about prisoner releases while describing the prisoners in innocuous terms, such as "low-level, nonviolent offenders," they get positive responses.  See, e.g., this USC/LA Times poll last month, Question 36. 

But the reality is quite different, and when the reality produces its inevitable consequences, people will realize they have been deceived.

Anita Bennett of the Culver City Patch has this story on a protest in LA last Friday.

Chanting "justice for the victims," about two dozen people marched in front of the Ronald Reagan State Building in downtown Los Angeles on Friday, demanding change in the state policy that allows "low-level" parolees to be out in society without supervision. "I'm hoping people realize that this is happening," said Fred Escobar, whose 27-year-old daughter Erica Escobar was killed, allegedly at the hands of an ex-convict who had been released on non-revocable parole status.

On May 3, Erica Escobar and 89-year-old Lucien Bergez were found dead in Bergez's Culver City home. A 31-year-old transient named Zackariah Lehnen was arrested two days later and charged with two counts of murder.

Lehnen is accused of fatally stabbing and beating Bergez and Escobar.  The young woman's father believes that if Lehnen had remained locked up, his daughter would still be alive. "He shouldn't have even been released. He had assault with a deadly weapon. If that's a low-risk criminal, we're pretty much nuts."

In LA Weekly Dennis Romero has earlier posts here and here with more info on the case.

Why, you might ask, am I linking to the Culver City Patch and not the Los Angeles Times for coverage of this protest?  Couldn't find a single word about it in the LAT.

A man already on federal death row for a horrific crime in Idaho and Montana will be sentenced to two life-without-parole terms for the murder of another child in California, AP reports.

[Joseph Edward] Duncan was sentenced to death in 2008 for the kidnapping, torture and murder of 9-year old Dylan Groene of Coeur d'Alene, Idaho. He abducted the boy and his 8-year-old sister Shasta after killing their older brother, mother and her fiance with a hammer at the family's home in 2005.

He then took the children to a remote western Montana campsite where he raped, tortured and threatened them before shooting Dylan in the head and burning his body.

Oral argument in the federal case was held in the Ninth Circuit on January 12, Duncan v. United States, No. 08-99031. 

Meanwhile, back in California,

On January 24, the US Supreme Court reversed the Ninth Circuit on the way it had been interfering in California parole decisions, and it did so in unusually strong language.  See prior posts here and here.  Today we were tipped to an unpublished memorandum disposition on Feb. 8 grudgingly implementing that decision, Kutylo v. Vaughn, No. 07-55829.  The main opinion simply affirms on the basis of Swarthout v. Cooke, the Supreme Court decision.  Then the notorious Judge Reinhardt chimes in with this:

Because the Supreme Court has held that whether there is "some evidence" to support a denial of parole, a right that California law affords inmates, is "no part of the Ninth Circuit's business," Swarthout v. Cooke, No. 10-333, Slip Op. at 6 (Jan. 24, 2011), and for that reason only, I reluctantly concur.

That rule -- that alleged errors of state law in state criminal cases are to be dealt with by the state courts and that federal habeas for state prisoners addresses only questions of federal law -- was not new this January.  It has been an integral part of the law since Congress first authorized federal habeas for state prisoners, and it is codified at 28 U.S.C. §2254(a). 

Judge Reinhardt apparently has his nose out of joint because the Supreme Court told him to obey an elementary rule of law that he has been flouting for years.  And this is not the first time the high court has done so.  "We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'"  Swarthout, at 4 (quoting Estelle v. McGuire, 502 U. S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U. S. 764, 780 (1990))).

How many times do they have to explain this before he gets it?

There are some events that everyone who is out of early childhood at the time remembers as long as they live, 9/11 being the most recent.  June 4, 1968 is another.

Well, almost everyone.  Sirhan Sirhan claims not to remember the events of the latter date, Linda Deutsch reports for AP.

Like the other once-death-sentenced murderers of the Class of '72, Sirhan is eligible to be considered for parole.  California had no "life without parole" sentence at the time, so everyone taken off death row in the debacle of that year became eligible for parole.

ABC-TV director William Weisel is a surviving victim of the crime.  "Having covered the White House through seven presidents, he said he does not ascribe to conspiracy theories because, 'The government can't keep a secret.'"