Realignment and the Corrections Crisis, or "9 Fellows Walk Into a Bar..." (Pt.5)

I visited Sacramento four months ago with my fellowship cohort to meet with policy wonks, and to ask some uncomfortable questions about the state of the State. A $26B budget deficit, gridlocked politicians, a frumpy economy, a mess of jurisdictional mishaps and dozens of uncoordinated populist initiatives that don't look so hot the next morning had (and still have) all conspired to ruin everything.  Wild rumors had been flying about in San Francisco that the state was considering a wide-reaching reorientation of public services, and that local governments would expectedly "get the shaft" in these changes. That turned out to be true.

It was hailed as the great "Realignment" and in this shifting of authorities, monies and services, prison reform (kinda) made it onto the list. And rightly, considering that California has one of the largest prison populations out of any state in the Union, and that the Union has the highest per capita incarceration rate in the ENTIRE WORLD. That mean's we're the best!

My group has started working with the County Sheriff's office on a project to evaluate the levels of recidivism in San Francisco, the effectiveness of corrections programming and alternative sanctions, and CCSF's ability to adapt some of those services to a new population. It could not be timelier. The US Supreme Court last month upheld an injunction against California's Department of Corrections and Rehabilitation for civil rights violations like inadequate medical care and services, and violence, due to overcrowding (see Brown v. Plata). The number of prisoners incarcerated in California since the 1970s has increased sevenfold, and the system is now over 175% of its official inmate capacity with 143,000 prisoners (down from 173,000 in 2006). This was identified as a significant cause of the rights violations, and so the State was ordered to either (a) increase capacity and services or - since California’s annual budget is still short by several billion dollars - (b) to release or redistribute approximately 33,000 prisoners.

The ruling itself was no surprise. The case was pending for several years, and it was really a matter of time before the High Court followed up in the case - it was just a bit earlier than anyone thought. Unfortunately this means San Francisco and hundreds of other municipalities across California will be absorbing some of the State prisoners into their jails and local corrections programs. The official objective is to move low-level offenders closer to their communities, as this has shown to encourage rehabilitation and stabilization - but it's also about money and a federal injunction.

This is a new demographic for county sheriffs - more serious crimes, different affiliations, somewhat more radical behaviors, and parolees. Counties are generally ill-equipped to manage these offenders, but we have to learn. The City's expecting at least 700-800 new state prisoners next year. It's hard to know a definite number, though; the state doesn't share all inmate records that signify who's eligible for the transfer.

As a state, we need to ask some important questions, foremost of which is how our already enormous corrections system has swelled to nearly twice its official capacity. Is it the judges, or lawyers, or the police? Whoever it is, they're clearly crazy. Unfortunately the problem isn't that simple. There does not seem to be any single mechanism to blame or switch to flip that would resolve this crisis - and with costs skyrocketing, a structural state deficit, abuses gaining public attention, report after report indicating that the prison systems are often overtly and procedurally racist, and with a new court injunction, it really is a crisis for the state. 

But if I were to dismiss nuance and point to something as a fundamental structural flaw, I would start with California's infamous Three Strikes Law.

Liu's 9th Circuit nomination blocked by GOP (again), withdraws

"Oh, come oooooonnn!"

In the latest round of GOP obstructionism, Republican representatives in the Senate have blocked through fillibuster the nomination of UC Berkeley law professor Goodwin Liu to the 9th Circuit Court of Appeals in San Francisco. Liu was first nominated in February of 2010 by President Obama. He is a Rhodes Scholar and Supreme Court clerk, and he has received the highest rating possible from the American Bar Association.

Republicans protested his history with the American Constitutional Society, of which he served as Chairman. The ASC was first formed at the Georgetown Law Center in 2001 as a "liberal" research institute ('think tank'). It has pursued such crazy liberal issues as individual rights and liberties, access to legal resources, and structural inequalities in public institutions, and even publishes the Harvard Law & Policy Review (ew gross!). Liu has also spoken out on legal issues surrounding same-sex marriage and affirmative action, which he seems to support.

Republicans also voiced concern over his age and experience (ummm...). Liu is 39 years old, and would have been among the youngest appointees to the 9th Circuit. However, among the 18 youngest candidates nominated to the federal appellate courts since the Reagan administration, ALL OF THEM have been Republican nominees.

The vote to cut off debate through super majority was held last Thursday, but the final vote fell to 52-43. On Wednesday, Liu asked President Obama to withdraw his nomination in an effort to end the senseless controversy. Liu suggests that the recent fighting over his candidacy may be holding up other nominees from getting proper reviews. The 9th Circuit Court of Appeals covers 9 western states and Guam (jurisdiction), and has been short-staffed with judges for several years running due to delayed reviews and protests over nominees. The problem is only getting worse.


Read more from the SF Chronicle on SFGate.

Federal Judge, 'DOMA unconstitutional' after 14 years

In two companion rulings last week, US District Judge Joseph Tauro found that Section 3 of the Defense of Marriage Act ("DOMA") violates the Fifth and Tenth Amendments of the US Constitution.

This is surprising for two reasons: first, this ruling could strike a hefty blow to the 14-year old DOMA, though it is sure to be appealed by the DOJ; and secondly, NO ONE HEARD ABOUT IT! The story was able to make its way onto a handful of news cycles by Thursday morning (a week later...), but the issue has largely been ignored by major broadcasting media.

Gill v. Office of Personnel Management

Massachusetts v. U.S. Department of Health and Human Services

Thoughts?

If you don't know what I'm talking about, then you a bit of context. The Defense of Marriage Act was signed into law in 1996 by then-President Bill Clinton (a little disappointing) after the bill was fast-tracked through Congress with overwhelming support in both the Senate (85-14) and the House (342-67). [...Side note: Clinton was then, and for years remained and opponent of same-sex marriage until very recently. Though he pushed for the the adoption of "Don't Ask, Don't Tell" as a compromise with the Joint Chiefs and Congress to allow homosexual men and women to serve in the military (in theory), the White House likely saw the bill as an opportunity to court more conservative voters in the '96 election.]

Many policy makers at the time were freakin out and claiming that the recent recognition of same-sex marriages in Hawaii would lead to a (*cough) 'domino effect' among other states, as they would be required to also recognize those Hawaiian marriages under the Full Faith and Credit clause of Article IV of the US Constitution - which basically says each state has to respect the legal benefits or certificates issued in any other state of the US. This is a fair concern, because that is the law, and it says so in the Constitution. What happened next was a bit crafty. Key law makers realized that barring same-sex marriage across the US and in every state, with a federal law, could be seen as a little too overreaching, and it would certainly be struck down in the courts on grounds of infringing on state sovereignty. So instead of targeting the issue broadly and saying that states would not have to recognize certain legal marriages of other states (sticky ground again), the federal government decided to specify what the legal definition of "marriage" and "spouse" meant, on a federal level.

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

It's kind of like cheating, but it worked. Other states would not have to recognize those marriages that failed to meet the federal definition. The bill passed, but since 2005 the Act has faced a host of legal challenges. The Supreme Court has so far refused to accept any cases regarding the DOMA, but given Judge Tauro's scathing rebuttal of the legislation, it may soon be forced to. The decision cited contradictions to the the Tenth Amendment and the Due Process Clause of Amendment V. In the case of Gill the plaintiffs did not challenge the right of same-sex couples to marry, but rather the federal government's different treatment of couples legally married in Mass. and opposite-sex couples, citing health, retirement and tax benefits.

"DOMA fails to pass constitutional muster even under the highly deferential rational basis test. As set forth in detail below, this court is convinced that “there exists no fairly conceivable set of facts that could ground a rational relationship” between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection ... As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution."

In the Massachusetts case - in which plaintiffs presented specific costs and challenges faced by the state since the passage of DOMA - Judge Tauro cited the Spending Clause of the Tenth Amendment in his criticism of DOMA.

That DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens—also convinces this court that the statute violates the Tenth Amendment.

The Justice Department this week pledged to make an appeal within the 14-day 'waiting period' after the ruling, but this could also drop the Obama White House into a tricky position. In February of 2008, Obama's campaign issued a clear statement on LGBT rights. "Unlike Senator Clinton, I support the complete repeal of the Defense of Marriage Act (DOMA) – a position I have held since before arriving in the U.S. Senate," the statement reads. "While some say we should repeal only part of the law, I believe we should get rid of that statute altogether. Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does." In 2009, and again this week, the DOJ has seemingly contradicted this position by pursuing appeals to DOMA challenges, and this has justifiably concerned many gay-rights advocates who supported the original campaign. The White House will have to make its position clear in the coming months, but for now you can follow the story online at LA Times or PoliGlot blog.