Letter of Commendation to Senator Paul

NOTE: Last week, I wrote of Senator Rand Paul’s support for the “The Justice Safety Valve Act of 2013″ and his positions on other criminal justice issues (see article immediately below). Here is the letter i sent to him (as promised), for publication, and your consideration.


April 1, 2013

208 Russell Senate Office Building
Washington DC, 20510

Dear Senator Paul,

I am writing as a retired California Judge, and editor of a small internet site focused on prison reform (“reentrycourtsolutions.com” ).

I wish to commend you for your co-authoring of “The Justice Safety Valve Act of 2013″, a federal prison reform bill, with Senator Patrick Leahy of Vermont.  I was heartened by your position against federal mandatory sentencing in that bill as well as your position that too many offenders are being sent to federal prisons for terms that are out of proportion to the offenses committed.

As someone who favors prison reform, I sincerely hope that you will continue to speak out on criminal justice and prison reform issues. I believe that your positions on these and other criminal justice issues are placing you at the forefront of those concerned about the ascendance of oppressive practices that threaten out constitutional rights and threaten our personal liberties.

Judge Jeffrey Tauber (ret.)

Editor, Reentry Court Solutions

Senate Bill to modfiy Mandatory Minimums

Sen. Rand Paul photo rand-paul.jpgTwo sentators, Leahy of Vermont, and Rand of Kentucky, have introduced far-reaching legislation, “The Justice Safety Valve Act of 2013”. The bill, if passed, gives federal judges greater latitude in making sentencing decisions.  Ultimately, this could be the beginning of the end of “Federal Mandatory Minimums”.

What is so extraordinary about this effort is not that Democratic Senator Leahy has introduced the bill, or that it is bipartisan effort, but who the republican co-sponsor of the bill is. Rand Paul has been making a name for himself, taking libertarian stands on everything from filibustering  the use of drones within the U.S., to adocating for non-custodial sentences for marijuana users . His championing of flexibility for federal judges’ sentencing, should be a clear sign to the right that this is a safe position to take in the battle over prison reform.

Paul is quoted as saying “Our country’s mandatory minimum laws reflect a Washington-knows-best, one-size-fits-all approach, which undermines the Constitutional Separation of Powers, violates the our bedrock principle that people should be treated as individuals, and costs the taxpayers money without making them any safer. This bill is necessary to combat the explosion of new federal criminal laws, many of which carry new mandatory minimum penalties.”

 I could not have said it any better. Alllies sometimes come from the strangest places. I am going to write him a letter, thanking him for taking his position on federal manatory minimums. This might be a good use of your time as well. I’ll release mine, when the next edition of RCS is published, next Monday,

Cal. Repub introduce bill to roll back Realignment

March 25, 2013

Screen Shot 2013-03-24 at 5.51.53 PMSenaor Morell (R-Rancho Cucamonga), introduced a bill last week that would substantially alter the realignment reform Plan currenty in place in California. Republican leaders in the state Senate and Assembly had included Morrell’s bill as part of a 13-point plan to reform “realignment. The Assembly Public Safety Committee voted Morell’s bill down March 12 on a party-line vote.

Among other substantial modifications, was a change in the law that would allow those with a three year sentence or greater, to be sent to State Prison. It isn’t strain see how that modification would devastate the current realignment’s  intent to keep less serious offenders under county supervision, and financial responsibility with the county. The provision alone is a major reason that state prisons populations have been reduced by over 40,000 prisoners over the past two years.

Virtual Incarceration is Here!

March 19,2013

Screen Shot 2013-03-19 at 10.02.16 AMIt sounds like something out of an “Arnold” movie. We all knew it was coming. GPS, home detention, long range alcohol detection, all were leading us to the next level of alternatives to custody; “Virtual Incarceration”. Personally, it’s taken a while before I could climb aboard the band wagon, but here I am. There are people that need to be in prison because they are a danger to society and there are those, at the other end of the spectrum of supervision, that can be supervised, monitored , and even treated through digital technology.

Public Radio international, reports that, “A group of panelists at this year’s South by Southwest interactive media conference in Austin, Texas, presented an idea to improve the U.S. prison system with smart phone technology.The consulting firm, Deloitte, and its think-tank, GovLab, led a discussion on alternatives to the brick-and-mortar prisons low-level criminals are sent to. suggested the U.S. keep low-level criminals out of prison, using smart phone technology”. (click on the image on the left for the article and audio of the panel discussion)

One senior consultant for Deloitte, suggested “virtual incarcerations,” where nonviolent, low-level offenders are taken out of prison cells with support and monitoring that keeps both the community and the offender safe.

“When a court determines a low-level criminal is a good candidate for the smart phone program, they would be equipped with an ankle-monitoring device to track them with GPS, and given a locked smartphone with specific apps related to their needs.” For example,  A DUI offender might require Breathalyze, an app that detects eye movements in the camera on your phone”. The app would also allow the offender to meet with his parole officer via FaceTime on his phone.

These are good ideas, many of which are already being used in some jurisdictions. But it would be interesting to see a pilot project that put together all aspects of high tech supervision into what is now called “Virtual Imprisonment”.

Oklahoma turns back on Prison Reform

March 18,2013

Screen Shot 2013-03-19 at 11.57.54 AMOaklahoma consistently is among the top five states in the use of incarceration (number one for women). Under these circumstances one might expect it to follow in the steps of its conservative neighbors, especilly Texas, who have led in the extraordinary reduction in imprisonment and adoption of alternative to prison policies.

That was the case until recently, when according to the City Centinel, Governor Mary Fallin’s administration did an about face in its commitment to prison reform. The “justice reinvestment” initiative” (JRI), has in recent weeks seen a substantial weakening of prison reform plans, culminating in the resignation of JRI author Kris Steele, former speaker of the state House, from the inter-agency and private sector working group that was overseeing implementation”….Once again according to the Sentinel,”Gov. Mary Fallin’s legal counsel, Steve Mullins, has guided major shifts in administration and oversight in recent weeks, effectively gutting the infrastructure that led implementation until mid-February.”

The easiest way to follow the conflict and its various parambuations is to look at the individuals these changes are likely to affect.

According to Corrections Officials,” only a handful of parole violators were in the agency’s pipeline for intermediate sanctions (short of a return to full-fledged imprisonment) for what were described as technical rather than substantive or deliberate parole violations. While” Mental Health Department officials, in contrast, described early implementation touching more than 120 individuals…”

The “Tulsa World” describes this latest failure of will, as just one of a long history of planned prison reform failures in Oklahoma. This, of course, is just another example of the backsliding we are observing, as conservative states and jurisdictions actually come up against real reform and its consequences. More than a few step back from the brink, a phenomenum that is important to note and report as happens.

As I’ve descried in the past, the failure of states to embrace reform is important to note, but failures to implement or provide the  structure, resource or institutional support that can make prison reform and reductions in recidivism real, are a more insidious form of failure, that we need to be ever vigilant about.

Penn. to Scrap Current Half-Way House Contracts

March 4,2013

Screen Shot 2013-03-04 at 11.47.48 AMAn article in the Patriot Post, reports that “the state [Pennsylvania] is scrapping all contracts with the private companies that run 38 community corrections centers – better known as half-way houses – requiring them to rebid and making the new contracts performance-based. Pennsylvania is reacting to statistics showing that people who go through half-way houses are actually more likely to return to prison than people paroled directly to the street.

At first, it appears a reasonable plan, but there are concerns that need to be addressed. One issue  relates to the  nature of  different prolee populations in half-way houses.  Those with a high risk assessment may do poorly, as will drug addicts vs. those who are only drug abusers. Furthermore, it makes sense that those who are under greater observation in a half-way house will be found  in violation of their parole at a greater rate than those who are under minimal supervision. These are realities that one would expect the governor’s office to understand.

And then there are the intangibles.. The proposed program intends to include the number of arrests during and after half-way house residence, rather than relying heavily upon returns to prison. In some communities, this plan would give the police license to close down half way houses at will (and possibly return parolees to prison).  In my experience as a Reentry Court Judge in San Francisco, I fould that parolees were arrested more frequently than parolees in any other California county. Upon looking into the matter further, it was obvious that San Francisco parolees were an easy arrest target for police (a parolee with a search clause). Living in a twenty block area known as the Tenderloin, all parolees lived in a ghetto of drug addicts, the mentally ill, those on probation or their Own Recognizance, the old and infirm, and their predators. In a high income city’s ghetto, with little opportunity to live elsewhere, it was nearly impossible for parolees to live  a healthy,drug and crime free life.  In 2010, the return to prison rate for non-reentry court parolees was approximately 78%. Making arrests of parolees in the Tenderloin was like shooting fish in a barrel.

Before instituting an incentive based half-wayhouse program, Pennsyvania may want to review the scientific literature on half-way houses. Those that are most successful have prepared the parolee for the transition to the community while still in prison, providing counseling, education, and job training, and importantly “cognitive behavioral therapies” (the only program dealing with criminogenic risk showing significant success).

People ultimately make a program successful or not. Half way houses often are poorly resourced, with staff who have little expertise or training for their positions. Additionally many states stuff hundreds of transitioning parolees into half-way houses with deplorable but expected results. New Jersey was rocked this past July by revelations in a Series in The New York Times, describing “escapes, drug use, lax security and violence — including sexual assaults — at facilities intended to transition individuals back into the community, often after serving jail time. The report said since 2005, there have been about 5,100 escapes from the state’s halfway houses, many run by Community Education Center”.( a predictable outcome where hundreds of offenders were in individual half-way houses, when what is needed is individual programs made up of a few dozen particpants at best, with a high ratio of workers to participants; to view comprehensive New York Times articles, click on photo on left.)

Since Pennsylvania is prepared to hold Half-Way Houses responsible for the arrests made after parolees leave the facility, one must consider what kind of follow-up the half-way house will have with the parolee. Will the parolee be required to attend aftercare sessions and remain in close contact with their half-way house counselors. Will they be assisted by the half-way house in guiding  their reentry into society. And finally, what will be the nature of supervision to contain drug abuse and criminality. And as importantly,  will the parolee be required to engage in pro-social activites, like school, job training, volunteer work, and other forms of community involvement. It was my experience that the court was an excellent means to institute a controlled return into the community. As the judge is universally acknowledged as a community leader, all intervenors seem to work well with the judge, even when they are reluctant to work with each other, encouraging a more collaborative, and comprehensive level of supervision and rehabilitation ofr the parolee in the community.


Big Labor, a Big Opponent of Prison Reform

March 4, 2013

Screen Shot 2013-03-04 at 12.27.52 PMAs reported by James Ridgeway and Jean Casella in Mother Jones magazine, “On January 4, the Tamms Correctional Center, a supermax prison in southern Illinois, officially closed its doors. Tamms, where some men had been kept in solitary confinement for more than a decade, was notorious for its brutal treatment of prisoners with mental illness—and for driving sane prisoners to madness and suicide. The closing, sought by human rights and prison reform advocates was vociferously supported in demonstrations outside the prison’s gates ( for Mother Jones article, click on image on left photo image on the left).

What was surprising was the fierce opposition of big labor, even when all staff was promised continued state employment.The major force holding up the closure of  was the American Federation of State, County, and Municipal Employees (AFSCME), which, according to its website, represents 85,000 corrections employees nationally (as well as a total membership of1.6 million members. As well described in the Mother Jones article, prison unions and their partners in big labor have taken a more and more aggressive stance against prison closures. The article holds out some hope that the fissure between labor and prison reform cn be closed.



Momentum for Prison Reform?


Screen Shot 2013-02-18 at 10.46.15 AMA new article, in “Think Progress”, cites a host of authorites and experts who claIm that a burst of activity in the prison reform field, may signify a change of course in the criminal justice system. The article goes on to cite authorities such as the Wall Street Journal and the conservative website “Right on Crime” , as well as, the National Conference of State Legislatures and the progressive “Sentencing Project”. As a check on over-enthusiam, the Sentencing  Project reminds us, “25 states still had stable or increasing [prison] population” (click on image on left for Sentencing Project’s “On the Chopping Block: State Prison Closings”)

The question I posed at the beginning of the year “A New Year’s Editorial: Has Penal Reform Peaked“, continues to concern me.  The momentum for Prison And Sentencing Reform,  that “Think Progress” reports, is good news that should not be discounted, but the question remains as to whether reform will be substantial and self-susutaining. It’s important to monitor the extent of existing and proposed reform and the quality of that reform.

It should be remembered that we have been here before, and if we do not provide resources, supervision, and assistance as needed, we may find ourselves in a worse place than when this reform process began.


New Study Supports California Realignment Reform

Screen Shot 2013-01-27 at 11.39.45 PMJan. 28, 2013

From a press release by CSG:

“A study has been released  by the Council of State Governments, entitled The Impact of Probation and Parole Populations on Arrests in Four California Cities” (click on image on the left for a PDF copy). The study attempts to answer a question that to date has been a matter of speculation among law enforcement and corrections officials everywhere: to what extent do people on probation and parole contribute to crime, as measured by arrests?

Researchers at the CSG Justice Center collected and matched more than 2.5 million arrest, probation, and parole records generated between January 1, 2008 and June 11, 2011. Collecting and analyzing the data required the  efforts of 11 independent agencies, including four local police jurisdictions, four county probation agencies, two county sheriffs’ departments, and the California Department of Corrections and Rehabilitation.

Among the most notable findings in these four jurisdictions:

  • The majority of all adult felony and misdemeanor arrests were of people who were not currently under supervision. People under supervision accounted for only 22 percent of total arrests.
  • Whereas people under probation and parole supervision accounted for one out of every six arrests for violent crimes, they accounted for one out of every three drug arrests.
  • During a 3.5 year period in which total arrests fell by 18 percent, the number of arrests involving individuals under parole supervision declined by 61 percent and by 26 percent for individuals under probation supervision.”

It is argued that the 3.5 year study, immediately preceding the implementation of California’s Realignment Reform (starting in October, 2011) provides evidence of Realignment’s success. This preliminary information should encourage the legislature to move forward with rational prison reform, the simplification of the state’s sentencing laws, and the reduction in the extraordinary prison terms for violent crimes (that have doubled over the past thirty years).

On the other hand, sceptics of realignment, argue for an independent study of realignment, commissioned by the legislature, to determine the true effect of realignment ( see article by Dan Walters of the Sacramento Bee). To my mind, it is too early to come to any definitive conclusions, but that data should continue to be collected, while California moves forward with prison reform.



Longer sentences are not necessarily better

Screen shot 2012-11-04 at 6.14.22 PMJan. 28, 2013

Last week, I presented the Center for Juvneile and Criminal Justice Center’s Lizzie Buchen, whose article,  “For real prison reform, look beyond the non, non, nons”, argued that research coming out of the PEW Center of the States, supports the position that longer sentences are a major reason for the explosion in prison populations and  the enormous cost of keeping prisoners locked up.  (PDF of the PEW article, “Time Served; The High Cost, Low Return of Longer Prison Terms”)

This week, Lizzie Buchen, follows with a second article, that argues for a California Sentencing Commission; “Even for violent crimes, longer is not always better” She writes,

“For the offender, longer is certainly not better: As the years go by, inmates often become more distant from their families and communities, less employable, and more deeply ingrained in prison culture (becoming “institutionalized”), all factors that hamper reentry”.

Finally, I would argue that the public’s hunger for safety (1000 sentencing bills passed by the legislature over the past three decades), is a serious problem that we need to come to grips with. How long is enough? Why does California have an almost impenetrable web of sentencing law. California’s sentencing grid is a constantly changing labyrinth of overlapping, entangling, and bewildering law that is truly understood by the few who have taken upon themselves the task of enlightening the criminal justice field. These are unacceptable circumstances that need to be addressed by the governor  and the legislature, through a Sentencing Commission, that can rationally and reasonably review, clarify and simplify our maze of sentencing laws.

California prison terms for violent criminals more than double

In an article published by the Center on Juvenile and Criminal Justice, the Center disputes Governor Brown’s argument that all those who could safely be released from prison had already been released. The Center relies in part on a recent study by the Pew Center for the States (click on image on the left, to obtain a PDF of the PEW article, “Time Served; The High Cost, Low Return of Longer Prison Terms”)

The Center on Juvenile and Criminal Justice, relying on PEW data, argues that ”  California offenders who committed violent crimes can now expect to serve 7 years in prison — in 1990, they would have served less than 3. Looking at people who committed murder, those who were released in 2009 served an average of 16 years; now, they can expect to serve more than 50 years. This lengthening of sentences for violent crimes is a major reason California’s prisons are overflowing and will continue to do so. In 2009, nearly 100,000 of the state’s prison inmates were doing time for violent crimes, a number that will only grow as the exit door continues to recede.”

It would appear that Governor Brown’s suggestion to the rest of the nation, that they consider California as a model for Penal Reform, may be a bit premature. While the Governor’s realignment plan and funding are an important start in California’s Penal reform process, it would appear that we have a long way to go before we can describe the California Penal System California as a model.


Cal satisfied with reform, though 8900 in Private Prisons

Jan. 14, 2013

Governor Brown has made his position clear. He will take the issue of whether additional prisoners should be released, back to the Federal Courts. The question to be answered is whether California has he done enough to satisfy the courts, by reducing the number of prisoners by 43,000 inmates over the last 15 months.

Governor Brown claims that medical concerns, the basis of the federal court order, have been satisfied both by medical facility improvements and  by substantial reductions in the number of prisoners.  Brown has attacked the courts as meddling with the internal affairs of California. Reform advocates on the other hand, argue that California hasn’t done enough to reduce the number of inmates, and that even a reduction by an additional 13,000 inmates as the court order demands, is only a first step in enacting necessary prison reform in California.

A related issue is the number of California prisoners in private prisons. According to a recent article in the Los Angeles Times, “State prison reports show that since November, California has been increasing the number of inmates shipped out of state. Brown last year said he intended to end the state’s contracts with private prison operator Corrections Corp. of America as a way to save money. A July research brief for the Center on Juvenile and Criminal Justice, reports that the state currently spends more than $426 million a year to buy space at prisons operated by the Tennessee-based company. (The California Department of Corrections and Rehabilitation contends the spending is much lower: $316 million.) The number of out-of-state inmates has run from a high of 10,000 in 2010 to a low of 8,500 last October. State prison population reports show it rose to more than 8,900 in late December”


This is a “hot button” issue for many prisoner advocates, as private prisons, located outside the state, make contact with family and community difficult at best.It remains to be seen whether the courts will lift their demand that California reduce its prison population further or whether Brown will succeed in staving off further prison reductions. But the issue of whether California has gone far enough to reduce its prison population, will continue to be a highly charged issue.

A New Year’s Editorial: Has Penal Reform Peaked?

Judge Jeffrey Tauber (ret.)

Jan 8, 2013

There has been a noticeable slowing down of state penal reform over the past year. It is possible or even probable that the enormous volume of penal reform enacted is being digested by the states before further reform can be initiated. But there are reports coming out of a number of states that suggest that the wave of reform may  have peaked as state legislatures and governors, as well as county officals, balk at the results and costs of new reforms.

There are serious problems even in states that are making a good faith effort to make penal reform work. If states put serious offenders in overcrowded local jails or poorly structured and funded alternative programs to incarceration, they will be setting their penal reform efforts up for failure. As has happened so often before, reforms are embraced and those released into the community receieve neither the education, resources, or support to be successful on the outside.

One of the most debilitating examples of this phenomenum, was the closing down of mental hospitals between 1970 and 1980. the promise made was that half-way houses, community mental health programs, and other critical support would complete needed reform. The reality was that many of those released ended up on the streets and continue to be a sordid example of how institutional reform can be a sabotaged by government inaction.

Montana and Arkansas are examples of states that are second guessing their state’s  penal reform efforts (see facebook stream on the right). While many dislike the idea of releasing prison bound offenders to county facilities and local programs, even more are concerned with whether the states will provide sufficient funds to county probation departments and non-profit organizations to  provide the rehabilitative and supervisory services required. At the same time, it should also be acknowledged than states are dealing with penal reform during a period where fiscal restraints on the court and criminal justice system are paralyzing many good-fsith efforts to move forward.

I remain hopeful that the penal reform that has been sweeping the nation will continue to build momentum and that substantial reform will reach every state. But from what I’ve learned from discussions with criminal justice professionals nationwide (and  my experiences as an.assigned judge sitting in courtrooms across Northern Callfornia), I remain concerned. It appears that the best many states can do to provide a path to rehabilitation, is early release from prison with a  pat on the back and a referral to the nearest AA/NA meeting.

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