Most of Cal. Realignment funds go to Jail Expansion

January 20,2013

It’s disheartening to see the negligible amount of money that has been made available for rehabilitation and reentry programs under California’s Realignment Reform. Most of the state’s money comes from a discretionary realignment fund that counties can use to fund realignment projects as they see fit.

According to a report last year by the Stanford Criminal Justice Center, criminal justice critics say county leaders could have spent more of their new money on rehabilitation. In the first year of realignment, counties budgeted 16 percent of the $367 million they received from the state for services such as mental health and drug treatmentScreen shot 2012-11-04 at 6.14.22 PM (Sacramento Bee, Jan 14,2013).

“Leaders at the California State Association of Counties, the Chief Probation Officers of California and the California State Sheriffs’ Association say they need more money for job training, mental health care and substance abuse treatment.” But still the state overwhelmingly supports funding jail expansion at the expense of treatment and rehabilitation dollars. California’s new budget proposal plans to give counties $500 million for new jail space, on top of $500 million that is now being distributed through a competitive grant program.

Part of the problem is that the California Department of Corrections and Rehabilitation historically has not emphasized rehabilitation,  Just 5 percent of department spending goes to programs and services for offenders,

And part of the problem is that counties are fearful of the political consequences of crimes committed by offenders serving prison sentences in jail facilities. According to the Sacramento Bee article,” Sixty percent of parolees released to counties from October 2011 through September 2012 were arrested for new offenses within 12 months of leaving prison, the same rate as a comparable population of parolees managed by the state the year before the law took effect.”

There are several promising provisions in the Governors new state budget that may have a substantial impact on those statistics. The budget proposal authorizes  $81 million to go toward re-entry centers, mental health services and drug treatment for offenders.

Most significantly, the Budget  proposal would require that all felony sentences served in county jails be split between jail time and mandatory supervision, unless a judge concludes that a split sentence is not in the interest of justice. That last provision promises to reverse the current trend, where judges across the state are overwhelmingly sentencing felons to county jail  under AB109 for straight time (straight time may not include “mandatory supervision, basically community based supervision or probation).

Until the counties meet their responsibility to provide substantial rehabilitation resources and monitoring for prisoners released from jail under P.C. AB109, we are unlikely to see significant benefits from the transfer of felons from state prisons to county jails.

Brown’s Budget makes good on Reform Mandate (mostly)

Screen Shot 2013-10-07 at 3.06.13 PMJanuary 6, 2013

Gov. Jerry Brown’s budget for the coming fiscal year includes several proposals welcomed by reformers. They are also intended to help the state comply with a federal court order requiring the reduction of prison overcrowding by mid-April to improve medical and mental health care for inmates.

According to the Sacramento Bee, the budget package:

—allows for the parole of medically incapacitated inmates; considering parole for inmates age 60 or older who have served at least 25 years in prison; and increasing good-time credits for non-violent second-strike offenders

— Frees up $81 million for rehabilitation programs that otherwise would be spent to house inmates, if the federal judges grant the two-year extension to meet a court-ordered prison population cap.

— Spends $8.3 million to redesign the 600-bed Northern California Reentry Facility in Stockton, although it will take more than two years to ready the facility to house male inmates.

— Adds $14 million to fight the smuggling of drugs and other contraband, including cellphones.

— Allocates nearly $65 million for the Department of State Hospitals to help the agency deal with a more violent mentally ill population that increasingly comes from the criminal justice system. A U.S. District judge last year ordered increased federal oversight after finding problems with the department’s treatment of mentally ill inmates.

— Gives counties $500 million for new jail space, on top of $500 million that is now being distributed through a competitive grant program. The proposal requires that counties demonstrate they are taking steps to lower their jail populations by freeing more suspects who are awaiting trial.

— Inmates sentenced to more than 10 years in county jails under the state’s two-year-old criminal justice realignment law would again serve their time in state prisons. That would increase theprison population by a projected 300 inmates, felons that sheriffs have said they are not equipped to handle. The shift would come only if the state is able to comply with federal judges’ prison crowding reduction order.

— Reduces the cost to counties to send local inmates to state-run firefighting camps. Counties have said the current $46 daily rate is too costly. Counties would pay $10 a day for each inmate at a firefighting camp, and $81 each day the inmates are being trained.

— Requires that all felony sentences served in county jails be split between jail time and mandatory supervision, unless a judge concludes that a split sentence is not in the interest of justice.

That last item is extraordinarily important. Though Courts have had the power to split sentences under “Realignment” they overwhelmingly have declined to do so. If passed, this provision will create a right to a split sentence (unless the court makes a special finding), which will require the courts to grant “mandatory supervision” to less serious prisoners housed in county jails, releasing offenders into the community under the supervision of Probation and optimally involving them in rehabilitation programs that will help reintegrate them into the community.

Not all of these provisions can be considered reforms (the provision allowing counties to shift prisoners from county jail to prison when a sentence is more than ten years is of particular concern), but they are an important step in the right direction, including many provisions that reformers have sought since Realignment was announced in 2011.

Holding Steady in the New Year

Screen Shot 2014-01-05 at 11.26.21 PMJanuary 6, 2014

Reading the articles, studies, and editorials over the past few month can bring on an attack of schizophrenia. Different news sources review the same studies regarding sentencing and prison reform and come to completely different conclusions. It’s interesting to track the stories as they have played out in the media. What started out  last year as widespread over the top endorsements of prison and sentencing reform  has morphed into a mixed bag of modest optimism and panicked defeatism.

I think I  have an idea of what’s going on. The reforms that are playing out across the country are having some success, but not the extraordinary early success predicted by some. That allows the more reactionary elements (especially those financially tied to  existing incarceration models), to redouble their efforts to undermine reform efforts.

The expectation is that releasing an offender into the streets should result in immediate rehabilitation . Well it doesn’t work that way. It takes sustained and systemic effort to get folks to change their ways. Consider, can we really expect those released with no resources, skills, family, jobs and/or education and often without housing or sustenance, to change on their own. It defies logic to expect that, but that is what those attacking sentencing and prison reform are arguing should happen.

In California, in particular, Prison Realignment, the historic reform being implemented, moves less serious offenders out of prison into county jurisdiction (meaning county jail for many). Recently it has come under attack as precipitating a “crime wave”, both in our communities and in our jails.

We’ve heard how jail violence has increased in California and how it must be inextricably linked to the violent offenders held in jail rather than prison. At the same time the critics seem to ignore the fact hat violence in prison is substantially down as well (see: Cal Jails see increased violence since Realignment)

We hear about the latest  news reports on those released under realignment from 2011 through 2012 and read how their has been an uptick in California crime which must be the result of realignment. However, if you read the actual report by  Magnus Lofstrom  and Steven Raphael of the Public Policy Institute of California, “Public Safety Realignment and Crime Rates in California” [click on image on left for PDF], you come away with little reason for panic. It should concern us, that the lack of structured reentry systems  in much of California is a problem, and one sufficient to cause  reassessment  and modification of the existing  sentencing systems.

For example, while there is little evidence of any increase in violence there is substantial evidence of a small increase in property crime, in particular car theft. We also know that there are 18,000 fewer offenders in custody (27,000 fewer in prison minus 9,000 additional in our jails). It stands to reason that we need to modify how we deal with the non-violent property offender, including the use of the funds we are saving (by not locking up 18000 prisoners), to provide resources and assistance as well as increased monitoring where appropriate. None of these changes come easy, but there is excellent reason to believe they are slowly working themselves out, if you manage to hold steady in the new year.

Cal jails see increased violence since Realignment?

Screen shot 2012-11-04 at 6.14.22 PMDec. 2, 2013

The media is having a field day quoting anonymous sources, arguing that an increase in jail violence in California Jails is due to the more violent offenders who would have been placed in prison, and now being placed in California jails under Realignment Reform.

The story is accurate as far as it goes but it doesn’t necessarily go far enough. The combined population In the 10 largest county jails grew 14 percent through 2012 while inmate-on-inmate assaults rose 32 percent and inmate-on-staff assaults rose 27 percent. Clearly a significant increase.

But when you look behind the numbers, you find some obvious and even some unsuspected causes.

1. When you put more offenders in a jail (as in a prison), there will be more violence as the overcrowding causes an increase in tension and violence (remember the experiments with rats in a cage from high school). The fact is that while some jails are experiencing greater violence, jail population is up; prison populations are down and prison violence is down.

“Simultaneously, the state Department of Corrections and Rehabilitation saw a 15 percent drop in inmate-on-inmate assaults within state prisons, while attacks on employees dropped 24 percent as the prison population dramatically declined last year, according to statistics obtained through a separate public records request by the AP.” (NBC News)

2. Jails aren’t designed for long term offenders. If you put those with ten year sentences in a jail (as realignment allows), there will be consequences. But that ignores the very purpose of Prison Realignment. In pre-realignment times, counties dumped their bad boys and girls in state prisons far from home where they wouldn’t have to deal with them for as long as the county judge sent them up for. It was a free ride, the state picked up the tab and a lot of counties took full advantage of that. Realignment is bringing accountability and financial responsibility back to the sentencing county where it ought to be.

3. Following  up on Point 2, Realignment was designed to encourage county judges to split prison sentences and use alternatives to incarceration whenever appropriate. Those sentenced to prison, yet placed in county jail (I know, it can be hard to get a hold of that concept), would receive a portion of the sentence in jail and the rest in what is euphemistically called “mandatory supervision”,  (another way of describing probation for the serious offender). What was envisioned was judges using split sentencing to transition offenders from jail into the community under supervision, where alternatives to incarceration would be available to the offender The last statistics I’ve seen suggest that the courts are not up to the task. Except for some outstanding exceptions (Santa Clara, San diego, and a few more), sentenced prisoners get straight jail sentence more than eighty percent of the time. And when a judge does that, the sentence is final, and the offender remains in jail for the full term.

So when you read about how California Realignment isn’t working, it’s a good  idea to read down to the bottom of the article, for a fuller picture “Sacramento County was the only one to see a decrease in inmate-on-inmate assaults, while Alameda, Los Angeles and Santa Clara counties saw declines in assaults on staff.”

This is a work in progress that many would like to roll back. While Realignment is unlikely to go away, the big push is to build jails that are virtual prisons. Watch for it.


Cal allows expungement of some prison felonies

061909Prison3_186762fOctober 14, 2013

As reported by the” Lawyer’s Committee”, co-sponsor with the ACLU among others, of the bill signed by the Governor on October 13.

“As a result of the “Public Safety Realignment Act” of 2011, some individuals will now serve sentences in a local jail for lower-level felony convictions that used to have state prison as the only sentence available. Under AB 651, after these individuals serve their time in jail, they will have an opportunity to ask the court to set aside their convictions, subject to a waiting period and a showing of rehabilitation. AB 651 provides a critical step forward for people who have served their sentences, helping them to avoid the stigma associated with prison time and to better access the jobs and housing they need to leave the criminal justice system permanently behind them.”

I agree with the “Lawyer’s Committee”. AB 651 is an important step forward. It allows felony offenders to seek expungement of less serious felonies, where the offender is sentenced to prison (but under California’s “Realignment Reform” serve their term in county jail). It is estimated that as many as half of offenders sentenced to prison in the future, will serve their term under county jurisdiction and post sentence supervision. That means that those offenders can return to the court to request expungement (as post-felony probationers do now), after they have completed their jail and/or court supervision. The D.A may object as they often do now, and the court may ultimately deny the request,  but the jurisdiction is with the court, as to whether a felon sentenced to prison (yet serving under county jurisdiction), may have their offense expunged by the court.

In all, a very good indicator of the direction of the criminal law, placing jurisdiction and discretion with the court as to  the felony offender’s criminal status,reentering the community.

The easy part of prison reform

Screen Shot 2013-01-14 at 12.59.00 PMFeb.10, 2013

The following article is reprinted from a February posting, as it speaks to the dilemma that California criminal justice policy makers.

According to the Sacramento Bee, “Gov. Jerry Brown had his “Mission Accomplished” moment…… He believes “victory should be declared” in the state’s prison overcrowding crisis” He was also quoted as saying “California’s prison health care system is now a model for the nation,” and that any further reduction in state prisoners would endanger the public’s safety.

Clearly the Governor has much to be proud of. He had pushed through the legislature, AB109, a bill that reduced prison populations by about 50,000 prisoners in a year, and fought successfully for Proposition 30, making billions of dollars available to counties impacted by Brown’s transitioning of responsibility  for non-violent, non-serious, and non-sex-offenders to the counties. Still, what has been accomplished is the first part, the easy part of prison reform, More complicated and critical reforms have not begun to be addressed.

State prisons still house offenders who could do better in their own communities, even if it means spending additional time in county jail. AB109 was intended to encourage alternatives to incarceration, but relatively few counties are accepting that challenge, Instead most are expanding and/or building new jail facilities. Somehow, we must encourage counties to spend more of their Proposition 30 money on alternatives to prison rather than jail substitutes for prison. One obvious reform would be to encourage judges to sentence AB109 offenders to spit sentences  (offenders who must be housed in jail, even though the offense is defined as a prison offense), so that the court could supervise their jail conduct and rehabilitation in the community. More than 80% of AB109 offenders sentenced to jail receive a jail sentence that cannot be reduced or transferred to community supervision.

While Governor Brown’s prison reform limits those sent to prison to more serious offenders, it ignores the doubling of prison sentences for serious offenders over the past twenty years. Why assume that the legislature’s response to sensational crime with ever increasing penalties is rational or justified. Why assume that the labyrinth of sentencing law and enhancements make sense or are necessary or appropriate.

Then there are the obvious reforms that almost everyone supports, but for some reason are almost never implemented. Drug, alcohol and mental health treatment, education, and job training while the offender is in custody, is almost universally supported by the public. Half-Way Houses or similar Institutions, that allow the offender to transition to the outside, while continuing under custodial or other substantial supervision are also favored by most.  Finally, continued oversight of the offender while in the community, under the care and supervision of the court and supervisory agencies (through AB109 split sentencing or reentry courts) is a necessity for most successful prisoner rehabilitation.

It’s easy to see that the governor has done well in beginning the prison reform process in California. Stopping now, without continuing and expanding its scope, providing resources, assistance, and supervision to those coming out of custody, will surely set the incarcerated up for continued failure and and a return to custody.


California Realignment gets Mixed Reviews

Sept.9, 2013

Screen Shot 2013-09-09 at 8.28.52 PMOver the summer, I followed the flow of prison reform news and found that one of the biggest stories of the year, continued to command the attention of the criminal justice field: California’s bold experiment with realignment. For those who haven’t been following the issue, realignment is simple in concept; those who do not commit violent, serious , or sex crimes do not go to prison, no matter how egregious the offense is supposed to be. It’s reduced the number of prisoners in California from approx.145,000 to under 120,000.

But the controversy over the reform has heated up over the summer. Law enforcement continues to demand more prison beds (translation: more prisons)  for non-serious offenders, the Supreme Court ordered Governor Brown to release 10,000  more prisoners (the reason for realignment in the first place was the Court’s finding that California’s prison overcrowding amounted to “cruel and unusual punishment”, recent research released describes realignment as working and not working. Rather than explore these issues now; let me suggest you follow them yourself, by checking my “Reentry Court Solutions” Facebook Page where relevant articles on the “Courts and Reentry”, include articles on “California Realignment”.

I will try to start off this fifith year on a positive note. Last year I visited and interviewed three counties that took very different approaches to their county’s “Realignment” responsibilities. They all appeared to show substantial potential for success with offenders sentenced to prison, who were to serve little time in local custodial institutions. With one last look backward, here are three county realignment models (as they were being structured in October of 2012), ranging from a highly involved court to one that hardly engaged “Realignment” at all.

[Note: I will be returning to the three counties (described below) this year and hope to provide  an update on their progress]

Santa Clara Realignment: A Collaborative Court Model


The Santa Clara Realignment Model: This model builds on a comprehensive collaborative court system, well established in Santa Clara County over the past fifteen years.  It probably is closer to an evidence-based “Court-involved Realignment Model” than any other in California. Conceptually, the Model attempts to use the reentry court to separate the high risk offenders (many with histories of violence),  from the felons who pose little threat to the community.[click on image on the left for the 2011 Santa Clara County Public Safety Realignment implementation Plan]

Under the leadership of Judge Stephen Manley, Santa Clara County has  been able to expand and provide coverage beyond drug offenders to veterans,  the mentally ill, parolees and other criminal justice populations, working with over 2000 offenders a year. It was natural for  Santa Clara County’s Probation Department to work closely with the county’s Collaborative Court System to assist both supervision and rehabilitation of AB109 Realignment participants:

1. Offenders sentenced as felons under 1170H, (known as triple nons; non-violent, non-serious, non sex-ofenders) are assessed early in the process,  so that twelve sentencing judges can determine high risk offenders who need the special attention  of the reentry court.

2.Probation often refers parole violators (triple nons released from prison on Post Release Community Supervision; PRCS)  to the Parole Reentry Court for closer supervision and rehabilitation, even before filing a petition to revoke.  Using a retired treatment judge as the AB109  Revocation Hearing Officer, the Court retains PRCS offenders for special attention, while referring others to the Parole Reentry Court or other alternative to jail (if not to jail itself).

3. Finally, parolees supervised by parole officers, are turned over to the Parole Board for revocation hearings and sanctions (to be taken over by the Realignment Revocation Officer come July 2013). Parole currently sends a significant number of high risk parolees to the Parole Reentry Court  for supervision and rehabilitation services.

There are over 200 AB109 participants among the three categories of AB109  offenders presently being supervised by a reentry court (with some estimating the number to double over the next year).

The 2012 Santa Clara County Realignment Implementation Plan is expected to be submitted to the Board of Supervisors shortly.

[published in October, 2012]





San Joaquin County: A Hybrid Realignment Model

The San Joaqun Realignment Model: The Probation Department takes the lead in assessing, reporting, monitoring, supervising, and rehabilitating offenders. A probation based system where the court plays a key supporting role. The court  reduces its footprint, by dealing mostly with those cases and individuals where it will have the most impact, only directly involved when the offender has committed a substantial supervision violation [click on image on left for 2012 Report]

 California’s Realignment Mandate (under AB109)  is to move prisoners and prison offenses from state institiutions to county supervision. The Head Probation Officeer of the County, is by statute, Chair of the Communtiy Corrections Partnership, responsible for setting up a countywide AB109 sentencing system.

The courts are free to follow their traditional role of sentencing offenders to prison (even though most will serve their terms in county facilities) and dealing with revocations when they arise. By my reckoning the  majoirty of counties are following that conventional approach (resulting in widespread expansion of jail facilities across the state).  At the other end of the spectrum are counties who are creating comprehensive court-based sentencing systems, that to the extent possible, are involved with the offender from the time of plea through sentencing and community supervision ( Santa Clara County, works with over 2,000 participate in its Comprehensive Collaborative Court System).

Somewhere in the middle of that spectrum, between the conventional hands off approach and the comprehensive court-involved system, is San Joaquin County.  San Joaquin County is in dire financial circumstances, with a population of approx.700,000 (400,000 in the city of Stockton alone) with a serious drug and gang problem. It doesn’t have the financial resources that would allow it to develop a more Comprehensive Court Sentencing System.

Instead San Joaquin county is creating a hybrid sentencing system, that combines the more traditional sentencing/probation model,with intensive court-based interventions when its community corrections system requires it. The conceptual heart of the San Joaquin model is that the court is there to assist, motivate, and serve the community-wide reentry process, not to drive the process.

Under the leadership of newly appointed Probation Chief Stephanie James, the Communtiy Corrections Partnership has taken the  lead in creating a framework for the sentencing system. A county- wide probation-based plan was approved by the County Board of supervisors on Sept.25, 2012. [click here: San Joaquin County Public Safety Realignment Plan]

The Court already has a substantial and successful collaborative court presence, with at least five existing collaborative courts (Parole Reentry Court, Drug Court II/Proposition 36, DUI Drug Court, Dependency Drug Court, among others).  While the court could be involved earlier and more intensively (as with its drug courts), it instead limits its reentry interventions to those cases and individuals where it will have the most impact.

The court receives pre-plea assesssments and sentencing reports from Probation, but in most cases does not become directly involved in the offender’s supervision, until their is a substantial violation. Along with an existing Parole Reentry Court (for parolees with parole violations), a Post-Release Supervision Court  (Compliance Court) is planned for  those felons who have serious drug problems that result in supervision violations, as well as, a Violent Offender Reentry Court for those high-risk violent offenders who have violated their Supervision. This Hybrid Realignment Model is an alternative to a comprehensive Court-Based Sentencing System [see: “A Model Court-Based Sentencing System”].

[published; October, 2012]

San Francisco Realignment : A Well Resourced Traditional Model

The San Francisco Model: San Francisco has adopted a model that places almost all the responsibility for AB109 realignment participants on social services, criminal justice, and community agencies. The courts have almost no role in this model, except for the court’s tradition adjudicatory role of sentencing offenders and hearing revocation petitions.The City & County of San Francisco Public Safety Realignment & Post-Release Community Supervision 2012 Implementation Plan was passed on June 1, 2012. [click on image on the right , for a copy of the plan]

The San Francisco Model is one that clearly takes a community based approach to felon rehabilitation, with the city and county of San Francisco providing special resources to deal with the offender. San Francisco has a large, highly experienced and educated cadre of intervention specialists, both in the community, as well as in social service, public health and criminal justice agencies. They are using the court in a strictly traditional fashion, solely in its adjudicatory role. (Interestingly, as of March 30, approximately 2/3 of felons sentenced for new offenses under 1170H of the Realignment Statute, were sentenced to jail, without community supervision)

Probation has taken the lead in developing the Implementation plan, as is required by statute, with Chief Probation Officer Wendy Still chairing the Community Corrections Partnership. Prisoners returning to the community under Post Release Community Supervision (PRCS) are pre-assessed at their prison facility approximately two months before returning to San Francisco. Once released under PRCS, offenders are screened at Probation’s new Community Assessment and Social Services Center, a one stop hub, where participants have their housing, drug and alcohol treatment, health, psychological, job, education, and other needs assessed and allocated. Probation has also  created a special team to provide supervision and case management to the participants.

The Sheriff’s Department  has the resources to assess and provide additional services to AB109 felons in custody.  A special Realignment Pod is being prepared for participating felons.There are plans for prisoners to be returned to the jail two months before their prison term ends, for a pre-release process to prepare the felon for release into the community..Similarly both the Public Defender and District Attorney’s Offices  have resources to work with this special population. Finally San Francisco has a wealth of non-profit and other community organizations that are enthusiastic about assisting the reintegration of this new population into the community.

The San Francisco Realignment Plan is a traditional realignment plan in regards to the role of the court, relying on the community itself and relevant government agencies to successfully rehabilitate those placed in jail as felons under 1170H,  or those returned to the community under PRCS. What makes this plan noteworthy, is the commitment of the community and the resources available to accomplish their mission.

[published; October. 2012]


Judges and Post-Sentencing Discretion

The Best Of: Published in April of 2013, this article delves into the thinking of judges who are being given post sentencing jurisdiction over serious felons, and analyzes the relative absence of judicial involvement in  post sentence decision-making.

Screen Shot 2013-04-15 at 11.08.02 PMRecently there was a tragedy in Colorado that exposed the vulnrbility of the judge in sentencing matters. A violent and mentally ill offender was sentenced to 8 years in prison and an additional  4 years for assaulting a prison official. That same offender killed two men within a month of his direct release into the community from administrative custody (solitary confinement). One of the men murdered was the Director of Corrections, Tom Clement (photo image on left). That single parolee has temporarily slowed the movement in Colorado toward prison reform.

The issue faced by the courts and judiciary in sentencing offenders, is whether they should  remain involved with the offender until he or she completes both the sentence and post-sentence supervision. If you are the sentencing judge or a judge involved in post-sentecing  decision-making, you may come to regret  a decision that the public comes to see as a mistake.

It is one reason that judges are reluctant to engage returning offenders from prison or reduce prison terms as allowed by statute. Judges can and should be a part of a process to move an offender from prison into post-prison rehabilitation and supervision in the community. But the agencies and institutions responsible for preparing the prisoner for release and the the supervising authority in charge of the offender once released  must have the resources, expertise, and commitment  to make the post sentence release work for the community, the court and the offender.

To put it simply, if the sentencing process, the custodial experience, or the release process are seen as inadequate, the court and judge maybe be vulnerable to a  backlash that could cost the judge his or her job.. It is that reason, among others, that hold many judges back from releasing offenders early or getting involved in post sentence supervision of offenders.

In the case of the alleged Colorado murderer. he was recognized as someone with a serious mental problem and a danger to the community. His mental illness and violent tendencies were so severe that he spent the last two years of his sentence in isolation. There are unanswered questions at this time as to the nature, intensity and quality of the treatment and services provided after he was sentenced, and the lack of transitional housing and intensive supervision when he was released [there is some issue as to the court and/or judge’s error in sentencing the offender, but any court/judge error was not post-sentence]

This issue goes far beyond the tragedy in Colorado. Many states (including West Virginia, where judges have new discretion under prison reform legislation) allow their judges to alter prison terms or add supervision terms to released offenders.California has put in place one of the most progressive sentencing and prison reform processes in the nation. Offenders who are sentenced on non-violent, non-serious offenses to prison, actually serve their sentences in county jail. If the sentencing judge wishes to, he or she can maintain jurisdiction over the offender while in custody and  reduce the custodial term and/or order probation supervision for the offender when released into the community

Even though this discretion exists, over 80% of California’s eligible offenders are sentenced to straight custody, with no probation or supervisory term attached. Judges are clearly reluctant  to accept discretion to resentence or reduce a prison term or attach probation and/or other continuing judicial supervision.

It is unclear whether different custody conditions  or treatment would have made a difference in the Colorado case. But the involvement of the court in post-sentencing is a fundamental change  that should not be abandoned because of the court’s fear of reprisals. It is only through the courts effective partnering in post-sentencing systems, that we can provide  the improvement  in sentencing outcomes we so desire. I’ll have more to say about this issue on next weeks website (see 12 part article on sentencing systems).


Court-Based Realignment Recommendations

THE BEST OF: The following article,  originally posted on September 9, 2012, describes how California Counties can make the best use of the state’s new realignment reform process.                  PDF


I have set out possible sentencing reforms, based on the “Twelve Part Series on Evidence-Based Sentencing Systems” that may be relevant to a California County’s Realignment Process.


  1.  Start the risk assessment and classification process at plea or sentencing if possible, so the judge can make the most appropriate sentencing decisions.
  2. Create a seamless process for offenders, with a designated sentencing judge and staff monitoring and supervising offenders through the entire sentencing period.
  3. Develop court tracks that reflect probation classifications based on risks/needs assessments, and tailor appropriate court involvement and contacts to that data.
  4. Where appropriate, hold court hearings for in-custody offenders to encourage compliance with a rehabilitation plan through continued court monitoring.
  5. Use the court’s jurisdiction to motivate offenders to do well in their program by providing substantial incentives keyed to an incentives guideline.
  6. Have all newly released offenders, on “mandatory supervision”, meet with the judge for a brief interview, to set goals and remind the offender of program rules.
  7. Use custody as a sanction of last resort, relying on increased rehabilitation and treatment requirements, as well as, community service to correct misbehavior.
  8. Take advantage of the latest scientific findings, using evidence based sentencing practices to engage the offender in pro-social activities and cognitive therapies.
  9.  Create a technology system able to share data and information, reducing the need for team member’s personal presence, but maintaining court’s presence/influence.
  10. Look to probation, other government agencies, and community for partnerships.
  1.  Involve the court early, if only as a symbol of the system’s new found solidarity and commitment to work together, with the judge assisting in the process.
  2. The court should be considered an important resource in the reentry process, and while not directing the rehabilitation plan, assisting probation and the community.
  3. The court should  briefly interview the offender returned to the county, to remind the offender of the court’s interest, support, and concern.
  4. A Reentry Court. authorized by statute at the time of the revocation hearing,  may become involved as a community and probation based option even before a violation occurs, in a way, similar to the process defined above under 1170 (H).


State Jurisdiction in Court Based Reentry Systems

“Best OF” Series: Published in February 2012, this primer on State Court Jurisdiction  is an important introduction into potential opportunities for court involvement in prisoner reentry 

The Court Jurisdiction Chart” (above) is designed to help you analyze whether your state has the potential for a Court-Based Reentry System (or Judicially Supervised Reentry System) and/or Reentry Court


State court or Judicial connections to prisoners and ex-prisoners are much more common than generally believed, among the 50 states. State courts typically have some jurisdiction to intervene in prisoner reentry into the community, but rarely use that authority. Furthermore, relatively few such connections are organized into a systemic program that coordinates court or judicial intervention with community and correctional intervention.

While reentry court may be the best known of court based reentry systems, there are other systemic connections that exist between the court and prisoner/ex-prisoners, that have a substantial impact themselves or hold the potential for such an impact.

If your state does not provide your courts with the jurisdiction to intervene in prison reentry, the likelihood that you will be able to do so is small. A number of states have collaborative agreements or MOU’s with corrections and/or parole authorities that allow the court to either supervise the reentering prisoner directly or do so when the ex-prisoner has picked up a separate offense that the court does have jurisdiction over. There is also the possibility that your state legislature may give authority to your courts to intervene in prison reentry (.i.e California has made major changes to its reentry system, giving its courts jurisdiction over most prison sentences and parole violators).


When the court intervenes is probably the most important factor in determining the level of care, resources, and supervision appropriate to individuals reentering the community. For obvious reasons, interventions after four months of a custodial sentence are likely to be far less intrusive or intensive than an intervention after four years of prison.


The most obvious and immediate state court contact point is an early intervention; ordering a convicted felon to state prison immediately before or after sentence has been imposed, for an evaluation, assessment, or other purpose. While this power is found in most state courts, individual judges most often use it, on a case-by-case basis.

It is also used in a number of states, to intervene in a probationer’s drug usage or other criminal behavior, as part of a Reentry Court or other court-based intervention program. Frontloaded Courts (sometimes called Preentry Courts), typically work with participants who spend relatively short terms in prison (30 days to 4 months), although some front- loaded programs can sentence felons for up to one year in prison or other custodial setting. Of all Reentry Court participants, those engaged in a front-loaded reentry program, are most likely to have family, friends, jobs, skills, and connections to community, thus requiring the lowest level of court involvement and program intensity (a tier one intensity court).


A number of states allow the judge to determine at sentencing, the prison term and probation supervision to follow. Some courts can change the split while the offender is serving his/her prison term (.i.e Ohio).

Several Reentry Courts use this jurisdiction model as a basis for their Reentry Courts (i.e. Indiana, Texas, Ohio, California). This is typically a hybrid or second tier reentry court, where some participants spend substantial terms in prison while others do not (a split prison term typically has a minimum of 1 year). A good risk/needs assessment can determine the court resources and intensity level required to reintegrate the split sentence offender into the community (considered a second tier intensity court).


Post Prison Court-Based Reentry Systems are thought to be closest to the established reentry court model. The prisoner finishes the prison term, is released early to enter a halfway house and Reentry Court (.i.e Nevada), or enters the Reentry Court when he/she violates their parole/probation (i.e. California)


Court intervention can be done in an ad hoc fashion, based on the discretion of an individual judge or part of a systemic process, where decisions are made and resources and staff allow for substantial numbers of program participants.


Where the court has jurisdiction to do so, the intervention of an individual judges may recall a prisoner from prison, split a prison sentence, or release a prisoner early. This is often the decision of an individual judge, often operating without standards, guidance, or program staff, on a case by case basis. This use of this authority is uncommon in most states.


An organized court system or program requires court resources, and staff to intervene on a regular basis, to reduce a prison term (or other custodial term). Often the court system in question is a “Drug Court, or other problem-solving court, that makes use of “prison or other custodial setting to provide treatment, rehabilitation services, supervision, or other services.


This is a high intensity court-based reentry system, that often deals with ex-prisoners who have spent substantial periods of time in prison (typically 3 years or more) and are high risk offenders with serious and/or dangerous criminal histories. While reentry courts can be established at any one of the three intervention points (described above), the post prison segment is often used.

The court uses evidence based practices to determine the risk and needs of the offender and appropriate responses. Reentry Courts deal with the whole person, recognizing that participants often need significantly more than drug treatment; programs that provide room and board, cognitive behavioral therapy and family counseling, physical and mental health assistance, education and skill building and other rehabilitation services.

Importantly, the high risk, long – term prisoner often needs a reentry court to provide a surrogate community until real integration in the community can be accomplished. This 3rd tier Reentry Court demands a lot of the long term prisoner, requiring 40+ hours of pro-social activity per week and constant contact with court, counselors, and recovery community.

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California Realignment: Will the Courts help create Balance?

The Best Of: The following article. published on April 15, 2012, describes the critical part the court can play in the development of balanced  sentencing plans under California’a AB109 Realignment Reform.

Reading dozens of articles over the past six months on how California’s AB109 Realignment is being implemented is not for the faint of heart (see Facebook collumn on right for exemplars). An ACLU report complains that counties that historically sent the highest percentage of offenders to prison are being rewarded with extra resources to jail those returning, and additional funds to build or expand existing jails( click here for Mercury News Article on ACLU Report). Prosecutors, Sheriffs, and law enforcement in general decry the very  existence of AB109; that non-violent offenders can be returned to the community without a terrible price being paid by law-abiding citizens (click for Law Enforcement concerns in Butte County). Probation offices and non-profit organizations (including community based agencies and religious institutions) generally favor giving individual offenders opportunities to engage in community based alternatives to incarceration( click here for article on Monterey County’s community-based initiatives).   And so in community after community, county after county, they fight it out, generally law enforcement against probation and non-profit community organizations, with the court often often an uninvolved, yet interested observer.

The courts have an unprecedented opportunity to impact their community’s quality of life. We have operated in a somewhat dysfunctional system, that weighed heavily toward sending offenders to prison. We now have a chance to help create a more balanced  and  reasoned approach to sentencing and incarceration. One way to accomplish this will be to develop more effective “Special Sentencing Courts” (see “Systemic Approaches to Sentencing”), that make better sentencing, probation, and custody decisions, based on validated risk/needs assessment tools (and other evidence based sentencing practices).  More importantly, the courts needs to get involved in their county’s realignment plan, by using their prestige and influence, to help establish a balanced community-wide approach to realignment.  Problem-Solving/Collaborative Courts have shown communities that the courts can make a difference, by providing the vision and leadership for important criminal justice reforms. And so it can be with Sentencing Courts and Realignment.

Success will depend on the degree of cooperation and accomodation individual communities are capable of. Once again the court can weigh in on the side of a rational, reasoned approach. Success in the end may start and end with a community’s willingness to provide the returning offender with job, education, and housing opportunites, as well as rehabilitation programs that have scientifically proven themselves. Jailers and probation staff will need to rely on evidence-based risk/needs assessments to determine who really needs to return to jail, and who can be supervised and rehabilitated in the community.  And the courts need to provide a sentencing system worthy of the community’s balanced realignment plan.  It’s being attempted in a number of counties, and one can only wish them well. And hope that other communities will learn from their example (click here for article on San Diego Realignment Plan).

Cal. budget modifies prison realignment reform

Screen Shot 2013-05-27 at 1.55.12 PMMay 27, 2013

The first major revisions to California’s Prison Reform Act (also known as AB109), have been made as a part of Governor Brown’s Budget Revisions submitted May 14th to the legislature. Among several proposed criminal justice provisions, is a paragraph that could have a substantial impact on the future of prison reform in California (click on image on left for full Budget Revision).

From the brief section on Corrections and Rehabilitation:

“Long‐Term Offenders—The May Revision proposes additional tools to assist counties in managing long‐term offenders. The proposal authorizes CDCR to house long‐term offenders, provided the county agrees to accept an equivalent average daily population of short‐term offenders. The proposal relies on County Parole Boards to make the determination to send long‐term inmates to state prison after inmates have served three years of their sentence in a county jail. Lastly,the proposal establishes a presumption of a minimum level of split sentencing, but authorizes a judge to make an exception if the judge determines that a split sentence is not appropriate.” 

California’s Prison Realignment Reform  (also known as AB109), was largely about keeping less serious offenders in county jail and under county supervision. Counties and county judges are forced to be more realistic and rational when sentencing offenders  to long term county jail terms. Prior to Realignment Reform, it was common for judges to sentence offenders to long prison terms, where the county kept neither  jurisdiction, nor financial responsibility for the prisoner’s incarceration. California Realignment Reform is important because it forces county officials to calculate the costs as opposed to the benefits of long terms of local incarceration, steering sentences toward shorter terms for non-serious offenders and the use of alternatives to incarceration.

One possible benefit found in the announced proposal is the final rider to the provision, “the proposal establishes a presumption of a minimum level of split sentencing, but authorizes a judge to make an exception if the judge determines that a split sentence is not appropriate.” Judges have been reluctant to sentence non-serious offenders to split sentences. This provision will encourage judges to use at least minimum split sentencing, allowing for alternative sentencing, probation involvement, incentive-based supervision, and continued judicial supervision.

It is unclear what ultimate impact this provision (if enacted) will have, how it will be administered by Parole Boards, and whether it will have a significant impact on existing realignment reform. Clearly, if it becomes law, it will need to be closely monitored.

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