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Criminal Law and Procedure

SNCJ Spotlight: Brown, Lawmakers Reach Prison Compromise

California Gov. Jerry Brown (D) reached a deal with legislative leaders last week to ease overcrowding in the state's prison system by boosting spending on rehabilitative services intended to keep inmates from returning to prison after their release. Brown announced the deal in concert with Assembly Speaker John A. Perez (D), Senate President Pro Tem Darrell Steinberg (D), Assembly Minority Leader Connie Conway (R) and Senate Minority Leader Bob Huff (R).

The new proposal marks a truce of sorts with Steinberg who vociferously opposed a plan Brown, Perez and GOP leaders issued last month that focused primarily on sending thousands of prisoners to private prisons both in and out of California (see "In our view: Brown still not facing reality with prisons" in the Sept. 2 issue of SNCJ). Steinberg called Brown's proposal a plan "with no promise and no hope" and vowed to prevent it from passing the Senate. He also intimated the Senate Democratic Caucus would consider going around the legislative process by submitting their plan directly to a three-judge federal panel that has ordered the state to reduce its inmate population.

California has struggled with prison overcrowding for years, sparking multiple lawsuits that alleged inmates were not receiving constitutionally-mandated health care. The state is currently under the order of a three-judge federal panel to reduce the inmate population from its current 149 percent of capacity to 137.5 percent by Dec. 31 of this year. That prompted Brown in 2011 to introduce his prison realignment plan, a program that sends most non-violent, non-sexual offenders to county jails rather than to a state prison. The new system has culled over 25,000 inmates from the prison population since taking effect in October, 2011.

But the system is still around 8,000 inmates away from reaching the new population cap set by the court. To hit that mark, Brown had proposed spending $730 million over the next two years to send more prisoners into private lockups out of state and leasing a privately-owned California facility that would then be staffed by state-employee prison guards.

But while the plan drew strong support from Perez and the GOP legislative leaders, it was a non-starter with Steinberg, who insisted it would be only a temporary fix that would lead to even more overcrowding down the road. He instead issued a proposal to invest around $500 million on post-release rehabilitative services and set up a temporary commission to review and possibly overhaul the state's prison sentencing structure. He also proposed settling the outstanding litigation that had led to the court order in the first place as a means of convincing the judicial panel to give California three more years to achieve the 137.5 percent cap. Although Brown initially scoffed at the suggestion of "turning over California's criminal justice policy to inmate lawyers who are not accountable to the people," he finally relented to a compromise. Under that deal, the state will seek the extension that is the linchpin to Steinberg's proposal. If it is granted, the state will then invest approximately $400 million into inmate drug, alcohol and mental health services over the next few years with the goal of reducing the prison population by helping inmates stay out of jail once their sentences are up. But there is a caveat: If the court rejects the extension request, Brown's plan goes into effect in its original form. Steinberg acknowledged he is taking more of a gamble than the governor, but said it was a worthwhile gambit. "We are taking a risk, but it is a very good risk," he told reporters last Monday. "Because we know that everybody, including the court, wants a long-term solution."

It is not clear if representatives for the inmate plaintiffs will endorse the new proposal. Donald Specter of the Berkeley-based Prison Law Office greeted Steinberg's initial proposal on August 27 with enthusiasm, calling it "substantive" and saying his office was "open to an extension of the date for compliance with the three judge court's order if an agreement produces an effective and sustainable approach that will resolve the chronic overcrowding problem in the state's prisons."

But another plaintiff attorney was much more skeptical about the plan announced last week.

"The governor hasn't built up a lot of trust here," Michael Bien, who represents inmates suing over prison health care, told the Los Angeles Times. "We are supportive of the effort to reduce the total burden on prisons by changing California laws...but we have not agreed to the length of time."

He also expressed doubt the three-judge panel would grant the state another extension if the inmates' legal teams are not on board.

Brown was slightly more optimistic when speaking to reporters last Monday, saying, "There are little smoke signals emanating from the mountaintops," presumably meaning the judicial panel. He is expected to formally submit the new proposal to that panel by Sept. 16. (STATE NET, LOS ANGELES TIMES, SACRAMENTO BEE)

CRIME & PUNISHMENT: The CALIFORNIA Senate gives final endorsement to SB 606, the so-called "paparazzi bill," which significantly increases penalties against photographers and others who harass the children of public figures. It moves to Gov. Jerry Brown (D) for review (STATE NET). • Still in CALIFORNIA, Gov. Brown signs AB 508, which bars Golden State courts from garnishing the wages of homeless veterans with unpaid citations for loitering, curfew violations or illegal lodging (STATE NET). • Staying in CALIFORNIA, Gov. Brown signs AB 65, which clarifies that an attacker who impersonates someone else to coerce a victim into sexual activity can be prosecuted for sexual assault (LOS ANGELES TIMES). • NEW JERSEY Gov. Chris Christie (R) signed AB 2948, legislation that requires out-of-state law enforcement to report surveillance activities they undertake in the Garden State (STAR-LEDGER [NEWARK]).

EDUCATION: The CALIFORNIA Senate unanimously endorses AB 256, which authorizes school superintendents to discipline students who engage in cyber-bullying or other forms of electronic harassment of another student. It moves to Gov. Jerry Brown (D) for review (STATE NET).

A SHOT IN THE DARK: The next frontier in the ongoing battle over gun rights in this country may be Iowa. As the Des Moines Register reports, a new tussle is underway over whether the state should be handing out gun permits to folks who are legally blind. State law says folks with disabilities cannot be denied a permit solely on that basis alone — even if they can't actually see what they might be shooting at — so there you go. The law has caused a rift among law enforcement officials, but Chris Danielsen, director of public relations for the National Federation of the Blind, sees no reason a blind person shouldn't have a weapon. "Presumably they're going to have enough sense not to use a weapon in a situation where they would endanger other people, just like we would expect other people to have that common sense," he says. Hmmm...we believe it was Voltaire who once said, "Common sense is not so common."

— Compiled by RICH EHISEN

CO LAWMAKERS RECALLED OVER SUPPORT FOR GUN CONTROL: It was billed as a national referendum on gun control: the recall election of two Democratic lawmakers who helped pass tighter gun restrictions earlier this year in a swing state with a tradition of gun ownership but which had never recalled a state lawmaker. And last Tuesday gun rights supporters got their wish when Coloradans voted to oust Senate President John Morse and Sen. Angela Giron. But the election was about more than gun rights.

Colorado was one of the few states that passed stricter gun laws this year, spurred by the mass shootings in Aurora, Colorado and Sandy Hook, Connecticut. But even the state's most strident gun-rights advocates initially opposed the idea of a recall, believing their money would be better spent trying to pick off swing legislative seats from Democrats — who control both chambers of the General Assembly as well as the governor's office — in 2014. Backers of efforts to recall two other Democrats, Rep. Mike McLachlin and Sen. Evie Hudak, failed to collect enough signatures to force an election. And opponents of the recall campaigns against Morse and Giron argued the election was a waste of money because Morse was term-limited and Giron was up for re-election next year.

But others were incensed by the Democrats' gun-control agenda, which included seven bills at the start of the session, including an aggressive proposal by Morse that would have assigned liability for damages caused by assault-style weapons to their manufacturers and sellers, which he killed at the last minute because it didn't have the votes to make it through the Senate.

"I feel like all these gun bills have done — to quote the last words in the movie 'Tora! Tora! Tora!' — is to awaken a sleeping giant," said Sen. Lois Tochtrop, a Democrat who is also a longtime Second Amendment activist and opposed five of the seven gun control bills.

The recall effort was also fueled by a widening rift over the state's identity, what The New York Times described as a battle "between the Colorado of F-150s, hunting trips and rural towns, and the Colorado of Subarus, ski passes and downtown lofts." Tension between those competing identities was ratcheted up this year not only by the Democrat-controlled Legislature's passage of the new gun control laws, but also laws allowing illegal immigrants to pay in-state tuition and authorizing civil unions for same-sex couples.

Recall supporter Laura Carno of I Am Created Equal tapped into that conflict with a radio ad attacking recall opponents and New York Mayor Michael Bloomberg, who donated $350,000 to help fight the recalls.

"They think they can act like kings, telling us what soda to drink and how best to defend ourselves," she said.

That approach evidently worked. Voters in El Paso County's District 11 narrowly supported the recall of Morse by a margin of 51 percent to 49 percent — turning his seat over to Republican former Colorado Springs councilman Bernie Herpin — despite registered Democrats outnumbering Republicans in that district roughly 34 percent to 26 percent. And voters in Pueblo County's Senate District 3 supported the recall of Giron 56 percent to 44 percent — giving her seat to Republican former Pueblo Deputy Police Chief George Rivera — even though Democrats outnumber Republicans there roughly 47 percent to 23 percent. The Denver Post reported that it was unclear when the city of Pueblo was last represented in the Senate by a Republican.

The National Rifle Association, which contributed roughly $360,000 to support the recalls, hailed the outcome, saying it was "proud to have stood with the men and women in Colorado who sent a clear message that their Second Amendment rights are not for sale."

But other supporters of the recall were broader in their affirmations of the election result.

"Coloradans...sent a clear message that politicians who blatantly ignore their constituents will be held accountable," said Dustin Zvonek, state director of Americans for Prosperity. "Perhaps this will serve as a lesson that one-party rule in Denver doesn't give the majority license to take things to extremes or run roughshod over the values and rights of Coloradans who just happen, for the moment, to be in the minority."

Tim Knight, Founder of the Basic Freedom Defense Fund, likewise, said, "Tonight is a victory for the people of the state of Colorado, who have been subject to the overreach of a Democrat agenda on guns, taxes and accountability to the people."

There weren't many positives for the Democrats and gun control advocates to take away from the election. The most concrete one is that even with the loss of Morse's and Giron's seats, the Dems still hold a one-seat majority in the Senate, along with control of the House and governor's office. Mark Glaze, executive director of the group Bloomberg formed, Mayors Against Illegal Guns, said the election also demonstrated the NRA no longer has free reign at the ballot box when it comes to gun laws.

"Win, lose or draw, this will send a message to legislators who take risks to protect their community," he said. "We will have their back, and eventually, the tide will turn."

How convincing that argument will be to other lawmakers thinking about taking on the NRA remains to be seen. (DENVER POST, STATE NET)

— Compiled by KOREY CLARK

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