Archive for September, 2013

September 30, 2013

Checking the box.

Timothy P. Silard (Huffington Post)
A job can help formerly incarcerated people turn their lives around, take care of themselves and their families, and make positive contributions to their communities.

However, one small but powerful barrier — a box on a job application — stands in the way of formerly incarcerated people getting a second chance to live productive lives. In California and around the country, the applications of otherwise qualified candidates are summarily tossed into the trash bin because of the box that requires applicants to disclose any prior offenses, even for arrests that are very old or minor.

More Americans than ever are being impacted by this unfair hiring practice. The National Employment Law Project estimates that nearly 65 million Americans, or one in four adults, have arrest or conviction records that often follow them throughout their lives. In California, an estimated seven million people have criminal records that might cause them to lose out on even the chance at a job.

There is good news. A movement to “ban the box” is growing around the country, with cities, counties and states moving to replace that box with a new process that allows human resource managers to ask the right questions at the right time. Of course employers should be able to make sure the people they are seriously considering for a job haven’t committed crimes that would make hiring them inappropriate for a particular position. But the door need not be slammed shut before anyone with a prior arrest or conviction gets a chance to compete.

More than 50 U.S. cities and counties, such as New York City and 10 in California, have joined the movement. Nine states, including Minnesota, New Mexico and Colorado, are building on the success of local initiatives by adopting similar policies. These reforms have been supported by Republicans and Democrats, liberals and conservatives alike. The state of California could be next.

“Ban the box” would direct California’s local and state government agencies to stop requesting criminal background information on job applications, and instead ask those questions after determining whether a given candidate meets the minimum job qualifications. Agencies may still ask direct questions about criminal history in interviews and screen out candidates with prior convictions as the hiring process progresses. But eliminating the box gives motivated and qualified job seekers a chance at getting their foot in the door to prove that they are the right person for the job.

That’s what happened to Linda, who didn’t think she’d be able to find a job in Richmond, California, after serving time behind bars for a drug offense. Despite the obstacles, she was determined to give back to the community she called home and needed to find a way to be a supportive mother to her son. While looking for a job, she spent her time volunteering in her community. Then, in 2012, Richmond passed a policy removing the question of conviction histories from city job applications. Linda finally had the chance to interview for a job where she talked about her work as a community advocate, her participation in violence prevention programs, and her active churchgoing. The city found the right candidate for the position. And Linda has been working successfully ever since, and is now a new grandmother.

There is no question that stable employment is a powerful crime-fighting tool, helping individuals rebuild their lives and avoid returning to jail or prison. Banning the box makes it possible for the millions of people with criminal records to at least be able to compete for a job. In turn, we all benefit when we can ensure that people have a fair chance at getting their lives back on track.

September 27, 2013

Juvenile sentencing.

The United States leads the world in its rates of incarceration. Attorney General Eric Holder recently took an important first step in reducing the federal prison population when he announced that he will instruct United States Attorneys to avoid charging low-level, nonviolent drug offenders with crimes that trigger severe mandatory minimum sentences.

The next obvious step is to bring the United States in line with a series of recent U.S. Supreme Court decisions that recognize juvenile offenders as being immature, impulsive, and highly susceptible to peer pressure, and therefore less culpable than adult offenders. Unfortunately, most states still punish youth without regard to these findings. Attorney General Holder should now tackle the extreme sentencing of youth.

In the late 1980s and early 1990s, a surge in violent youth crime led crime control conservatives to predict a “coming Armageddon” of “superpredators” — remorseless, juvenile criminals who would run wild in the streets raping, killing, and maiming anyone who got in the way. This prediction seduced politicians from both the left and the right, and led candidates to adopt popular tough on juvenile crime slogans like “adult crime, adult time.” Fear of superpredators and sensationalized media coverage led the federal government to increase its involvement in juvenile crime matters and promote grossly inappropriate sentencing guidelines for youthful offenders.

Although the federal government prosecutes only a small number of juveniles each year, it can play a leading role in shaping criminal justice policy by providing incentive grants to states that pursue its policies. The superpredator-theory led Congress to condition the receipt of federal money upon states cracking down on youthful offenders. Between 1993 and 1999, virtually every state in the country enacted new laws aimed at prosecuting more juveniles as adults. At the same time, states increased “adult time” by requiring increased mandatory minimum sentences, “truth in sentencing,” gun enhancements, “three strikes” and the abolition of parole. Between 1990 and 2000, the number of persons incarcerated in state prisons nearly doubled, rising from around 700,000 inmates in 1990 to more than 1.2 million inmates in 2000, and costs to state taxpayers rose sharply, almost bankrupting some states.

In the case of juveniles, the federal incentives were premised on faulty information and false fears. Instead of confronting a new generation of superpredators, juvenile violent crime plummeted to record lows. By 2001, then Surgeon General David Satcher declared the superpredator threat a myth. Even its most vocal proponent, John DiIulio, backtracked, saying that Congress distorted his message and that he never intended for legislatures to pass such punitive laws against juvenile offenders. Recently, Mr. DiIulio backed up his words with action, supporting the successful challenge to life without parole sentences for juvenile offenders in a case before the Supreme Court.

Now that the superpredator-myth has been discredited, the attorney general should revisit the draconian laws that were passed in its wake. He should follow the Supreme Court’s lead and declare what science and common sense teach: The actions of teens should not be treated the same as adults. He should be clear that juveniles will be held accountable, even occasionally punished as severely as adults for certain rare, horrific crimes — but he should give judges the option of punishing other youth less severely, based upon their individual circumstances. He should reward states with incentive grants for passing laws that keep more youth in juvenile court where they belong and that give judges the discretion to opt out of mandatory minimums, gun-enhancements, “truth in sentencing” and other “automatic” adult sentencing schemes that continue to fill our adult prisons with young people.

Now is the right time for Attorney General Holder to lead the way and speak up for America’s children, not only to remedy past mistakes but to make sure those mistakes and injustices are not continued.

Steven A. Drizin is a Clinical Law Professor at Northwestern University School of Law.

Marsha Levick is the Deputy Director and Chief Counsel at Juvenile Law Center

September 24, 2013

Debra Milke

Debra Milke retrial in son’s death set for 2015

By Michael KieferThe Republic | azcentral.comTue Sep 24, 2013 9:21 AM
“Debra Milke walked through the hallways of Maricopa County Superior Court with the uncertain step of a sleepwalker. She pressed her back into a corner of the elevator as it filled with people, her eyes big, her expression tentative, looking, in effect, like a person who had spent the last nearly 24 years in a cell and was now walking free.
She was wearing street clothes, not prison orange or jailhouse stripes. Her hands were free of handcuffs, her legs of manacles. Her hair was combed and styled, in contrast to the bristly gray shag of her recent court appearances. She was wearing makeup and had taken off her eyeglasses, which softened the expression she had on death row.
Assuming prosecutors can salvage their case against Milke, it will be months or perhaps years before they could possibly put her back behind bars. On Monday, the judge in her case set a trial date of January 2015. But there are two hearings scheduled for December and January that could derail the case altogether.
Milke, 49, is charged with murdering her 4-year-old son, Christopher,in 1989. She was convicted of the crime in 1990, but a three-judge panel of the 9th U.S. Circuit Court of Appeals overturned the conviction and death sentence in March because a judge had denied her defense attorneys’ request to use a former Phoenix police detective’s sordid personnel record to counter his claims that Milke confessed to him.
The court ordered that she be retried or released by Oct. 7.
Earlier this month, Judge Rosa Mroz granted her release on $250,000 bond. It was expected that she would go back to trial before the end of this year. Now that Milke is free on bond, there is no longer any immediacy in taking her to trial.
Milke was in court on Monday. Her ex-husband, Arizona Milke, Christopher’s father, sat in the front row of the gallery wearing black leather pants and an ascot, brandishing a large and ominous cane whose handle had been carved into the shape of a human skull the size of a grapefruit.
Mroz set the January 2015 trial date, as well as a Dec. 6 court hearing to determine whether Armando Saldate, the former detective who claimed Debra Milke confessed, can refuse to testify.
Milke denies confessing; there was no recording of the confession and no witnesses to corroborate that it ever took place.
Saldate has said through his attorney that he will invoke his rights under the Fifth Amendment not to incriminate himself and refuse to testify about the confession. Mroz has said that if Saldate does not testify, the confession cannot come into evidence.
In its ruling, the 9th Circuit asked that the U.S. attorney for Arizona and the U.S. Department of Justice investigate whether Saldate violated Milke’s civil rights.
The court also noted that if Saldate were to contradict court rulings that he had committed misconduct in other cases, he could conceivably commit perjury. Under that pressure, Saldate said he would invoke his right not to incriminate himself.
But Maricopa County Attorney Bill Montgomery challenged the 9th Circuit ruling in a Sept. 13 news conference and produced a letter from the U.S. Attorney’s Office saying that the statute of limitations had run out on any potential charges against Saldate. Montgomery would have Mroz compel Saldate to testify and accused the defense of witness intimidation.
The news conference instead piqued Mroz’s ire, and she demanded that the prosecutor in the Milke case, Vince Imbordino, explain why she was not informed about the letter before Montgomery took it to the media.
On Monday, Mroz reprimanded Imbordino in open court, saying, “If the information is relevant enough for the press, it’s relevant enough for me. After all, we’re not trying this case in the media, we’re trying this case with me.”
Mroz also took issue with the motion that Imbordino filed last week to explain why Saldate should testify and why he had not informed the court of the letter.
“It does basically nothing for me,” Mroz said, noting that the motion did not indicate “why or why not I should not allow him to invoke the Fifth.”
She asked him to file briefs explaining why case law should make her compel testimony.
If the confession is not admitted, the prosecution could have difficulty making a case against Milke.
Mroz set the Dec. 6 date for Saldate to state whether he still intends to invoke the Fifth Amendment and said that the prosecution will bear the burden of proving why he should be compelled to testify.
Then, in the event she makes Saldate testify, Mroz set aside three days, Jan. 13-15, for hearings about whether the confession is admissible.”

September 16, 2013

The company that funds private prisons. This is the company Jerry Brown wants for California.

BOISE, Idaho (AP) — A federal judge says private prison company Corrections Corporation of America is in contempt of court for persistently understaffing an Idaho prison in direct violation of a legal settlement.

U.S. District Judge David Carter made the ruling Monday in a lawsuit between inmates at the CCA-run Idaho Correctional Center and the Nashville, Tenn.-based company.

Carter wrote that CCA had ample reason to make sure it was meeting the staffing requirements at the prison, yet the level of understaffing was apparently far worse than the company originally acknowledged. He is appointing an independent monitor to oversee staffing at the prison, and says steep fines — starting at $100 an hour — will incur if the company violates the agreement again.

The judge also rejected CCA’s contention that the former warden and other company officials didn’t know about the understaffing, saying that they had been warned of the staffing problems multiple times and at the very least failed to check it out.

“For CCA staff to lie on so basic a point — whether an officer is actually at a post — leaves the Court with serious concerns about compliance in other respects, such as whether every violent incident is reported,” Carter wrote.

The American Civil Liberties Union sued on behalf of inmates at ICC in 2010, contending that the prison was so violent inmates dubbed it “Gladiator School.” CCA denied the allegations but reached a settlement that required increased staffing levels and other operational changes.

That settlement was set to expire this month, but the ACLU asked the judge to extend it and find CCA in contempt for failing to abide by the agreement.

CCA acknowledged earlier this year that its employees filed reports with the state that falsely showed 4,800 hours of vacant security posts as being staffed during 2012. But during the contempt of court hearing, witnesses revealed that number only included the night shift during a seven-month span.

“It is clear that the non-compliance was far worse than the report of about 4,800 hours would lead one to believe,” Carter wrote. “… There is also no reason to believe the problem only began in April 2012 and was solved after October 2012. Indeed, even in the weeks prior to the contempt hearings, mandatory posts were still going unfilled — thus there remains persistent staffing pressure that is the backdrop to prison employees fabricating records. The difference today is that CCA may finally be presenting an accurate picture of its inability to fully staff its prison.”

The Idaho State Police are currently investigating whether CCA committed any crimes when it gave the false staffing reports to the Idaho Department of Corrections and when it failed to meet the minimum staffing requirements under its $29 million contract with the state.

The federal judge said it would be up to the state to determine just how understaffed the prison was, and that he wouldn’t order CCA to carry out its own audit.

“Further, IDOC has contractual remedies against CCA; it is up to that agency to determine what compensation it pursues for having been lied to,” Carter wrote.

He also rejected CCA’s “no harm, no foul” claim that the understaffing didn’t lead to increased violence or other problems.

“Having enough correctional officers can deter violence, but also it offers other benefits, such as having enough staff on the prison floor to accurately track the levels of violence in the first place,” he noted.

The private prison company better have its checkbook ready if the violations persist, according to the ruling: Carter indicated he would make the fines as stiff as necessary to make CCA comply.

“If a prospective fine leads to $2.4 million in penalties, CCA has no one to blame but itself,” Carter wrote.

CCA spokesman Steven Owen said in a prepared statement that the company was reviewing the ruling and considering next steps.

“We believe we are taking all appropriate steps to correct the staffing matter and are unaware of any new findings beyond what we’ve previously acknowledged. We are meeting the contractual staffing requirements and are working on an ongoing basis to ensure that continues,” Owen wrote. “… Our top priority is the safety of our staff, the inmates entrusted to our care and the communities where we operate, and we are committed to providing the state and Idaho’s taxpayers with the highest quality corrections service.”

ACLU attorney Stephen Pevar said in a prepared statement that the organization was thankful to the judge for carefully examining the evidence.

“It took great effort to uncover the truth,” Pevar wrote. “ICC was missing thousands of hours of guards. What is particularly disturbing is that CCA failed to adequately staff ICC despite the obvious additional risk of assault that created for both prisoners and staff and the unnecessary stress and fear it generated.”

September 11, 2013

New York Times editorial board

Curbing Rape Behind Bars
Published: September 9, 2013

The Prison Rape Elimination Act, signed into federal law 10 years ago this month, requires correctional facilities receiving federal money to develop intensive programs for preventing the sexual violence that has long been endemic behind bars. A crucial provision of the act requires that new programs be audited by examiners who are trained and certified by the Justice Department. But the department has certified nowhere near enough examiners required to inspect the thousands of prisons, jails and other institutions that need auditing.

The department’s regulations require all facilities covered by the act to adopt a zero-tolerance approach to rape, develop procedures for investigating allegations of sexual assault, and improve medical and mental health care for victims. One shortcoming of the rules is that they discourage, but do not forbid, sending young felons to adult facilities, where they are at greater risk of exploitation and harm. Congress needs to end this risky practice.

Despite these shortcomings, the act has already made a difference. Some prisons, for example, have taken the unusual step of allowing inmates access to rape crisis counselors skilled in helping victims through trauma. But, on the whole, correctional institutions are still falling short of what the law requires in terms of rape prevention.

Earlier this year, the Bureau of Justice Statistics released a study based on a survey of incarcerated people carried out between February 2011 and May 2012. An estimated 80,000 prison and county inmates experienced sexual abuse during the previous 12 months — about 4 percent of prison inmates and 3.2 percent of jail inmates nationwide. High rates of abuse were found among gay, lesbian and mentally ill inmates and inmates who had been abused before incarceration. The study also found that more than 40 institutions — including two military facilities — were particularly dangerous, with rates of sexual abuse at least twice the national average.

All this argues for strong and timely inspections. The overall system is unlikely to change until correctional facilities throughout the country are audited several times over, provided with constructive feedback and, when necessary, threatened with the loss of federal funds unless they comply with the law.

September 9, 2013

More beds are not the answer.

Viewpoints: More prison beds won’t make Californians safer
By George Gascón
Special to The Bee
Published: Tuesday, Sep. 3, 2013 – 12:00 am
In my three decades in law enforcement, I have watched as needlessly harsh penalties have overcrowded our prisons, bankrupted our state, and fed a costly and unnecessary cycle of crime. As U.S. Attorney General Eric Holder recently put it, there are simply “too many people in jail for too long, and for not necessarily good reasons.” What’s worse, overincarceration is making Californians less safe, not more.
Gov. Jerry Brown has always been willing to make the difficult choices necessary to address this great state’s challenges. What we need now are systemic reforms that reduce incarceration for low-level, nonviolent offenses, such as drug possession. We can’t afford to revert to the solutions implemented in the 1990s that led to overcrowding in the first place. Spending an additional half-billion dollars on prison beds and staffing will only feed the fundamental problem of overincarceration. The California Legislatureshould reject this proposal and instead make modest, systemic changes that would reduce theprison population safely and for the long term.
Supporters of this enormous expense claim it’s needed to reduce overcrowding in our prisons to comply with the federal court’s order – and that the only alternative is the “early release” of 10,000 inmates.
This simply isn’t true. California is on track to meet the court order by the end of the year. According to court records, the California Department of Corrections and Rehabilitation has already reduced the number of inmates in California’s prisons by 4,819 by placing offenders in fire camps and out-of-state prisons. To comply with the court order, the state need only reduce theprison population by another 4,817 inmates by Dec. 31.
There are better, safer and more immediate ways to reach this target without dumping hundreds of millions of additional tax dollars into incarceration. In fact, the state is already rolling out a program to apply “earned time” credits to inmates participating in rehabilitative programming and for good behavior. The court indicates that allowing inmates to earn credits will incentivize participation in rehabilitation and result in a reduction of 5,385 prisoners by the end of the year – more than adequate to achieve the court-ordered level.
These credits can be applied safely. Just ask Corrections Secretary Jeffrey Beard, who was one of many national experts who testified in California’s prison-overcrowding case. He testified that incentivizing inmates to earn release through credit programs can be done safely.
The state should stick with credits, and it should also finally address the need for sentencing reform. For a start, the Legislature should change the penalty for possession of a small amount of drugs for personal use from a felony to a misdemeanor (reducing the penalty from a maximum three-year jail term down to one year). As of April 2013, the corrections department reports there were more than 4,100 people in state prison whose most serious offense was drug possession for personal use – at an annual cost of more than $210 million. Meanwhile, community treatment and drug rehabilitation programs go unfunded.
As the elected district attorney of San Francisco, my emphasis is on strategically deploying prosecutorial resources to focus on serious and violent crime, and on advancing crime-reducing strategies for low-level offenders. With this approach, San Francisco has lowered the number of drug prosecutions by 69 percent and dramatically increased the use of diversion programs and community-based supervision.
I have seen firsthand the impact of drug use on communities, the devastation of addiction, and the correlation between addiction and other crimes. Time and again, I have seen low-level drug offenders arrested and convicted, spend a few months or years incarcerated, and then come out and go right back to a life of drug addiction and crime.
Cycling addicts in and out of jail does not reduce crime or make the public safer. It makes it harder for them to get their lives back on track and become contributing members of our community. It’s time to do something different.
To make our communities safer, California must invest that half-billion dollars in education, treatment and job training. Our families can’t afford to waste another cent on failed, outdated solutions.

September 6, 2013

Lynne Stewart’s Page. Please help in any way you can.

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