The Department of Corrections Is Broken
Terry B. Davis
The California Department of Corrections and Rehabilitation is broken, and no one is trying to fix it. Between the California politicians, the director(s) of the Department of Corrections, the courts, the lawyers, the special administrator(s), and special interests, it will not be fixed anytime soon.
The prison system has been under assault by the Politicians, who are influenced by the special interest groups, and the courts and lawyers are used to intimidate the Governor, and the Director(s). This was made clear in the Valdivia decision. The Valdivia decision on its surface, to the ordinary person would seem valid. On a closer look it is merely a way to release prisoners and parolees, by instituting costly and unnecessary procedures and rights that honest law abiding citizens are not entitled too. A parole hearing, the process that is used to either release or not to release dangerous inmates from prison, and the parole revocation hearing that is used to adjudicate parole violations, and either return the parolee to custody for a certain period of time, anywhere from several weeks to a year, or release them back into the community. These hearing are referred to as administrative hearings, the same type of hearing you, a law abiding citizen would receive in a traffic court for driving a infractions.
To fully understand the changes and increase in costs to the tax payer, you need to understand the system that was in place prior to the Valdivia decision, and the abuses that led to its implementation. Originally, a parolee would be returned to custody by a parole agent for a violation of his/her conditions of parole. The parole agent would become aware of a possible parole violation by either and individual reporting it directly to the agent, or by Police Officers that had observed a parole violation, or had arrested or cited a parolee for a violation of law. The parole agent would investigate the allegation and then take this information to his supervisor. The agent would give the supervisor a brief overview of the parolee's criminal history, his/her behavior, good and bad, since their release from custody to parole. The agent would then inform the supervisor of the information received and the results of his investigation, and his recommendation. The supervisor would then make a decision to either, document the violation and retain the parolee on parole, or to take or keep the parolee in custody, complete a violation report, and forward it to the Board of Prison Hearings. The parolee was to have a hearing with-in 35 days in Northern California and 45 days in Southern California. In many cases these time frames were not met and the then, Board of Parole hearings commissioners usually ignored the violations by the Department of Correction of their own policies and procedures. In addition, the Commissioners took little or no notice as to the ability of the parolee to understand the violation and their ability to defend or speak for themselves during the hearing. At the hearing there was a commissioner, the parole agent and the parolee. The commissioner would have received an original copy of the parole agent's violation report, and the parolee would receive a redacted copy of the violation report, prior to the hearing. The parole agent would also request subpoenas' for individuals needed to testify at the hearing to prove the violation. While the parolee could request witnesses, his request would be reviewed by the Commissioner and either approved as relevant or disapproved as irrelevant. At the hearing the parolee was given the opportunity to give his side of the story and call his witnesses. The commissioner would ask questions to the parolee and his witnesses to clarify their testimony, and in like manor ask the parole agent and his witnesses' questions to clarify the evidence presented. In administrative hearings the rules are different than a criminal case and the level of guilt is a preponderance of the evidence presented 50.001% for a guilty finding, as opposed to a criminal trial of beyond a reasonable doubt. After the hearing the parolee could contest the results thru the administrative procedure known as an inmate appeal, which would go through several levels of review with- in the Board of prison hearings and could eventually, be submitted to the courts. However, due to the time frames involved in this process it was very seldom used, usually the parolee would be released before the process was completed, and as soon as they were released they no longer cared to proceed with their appeal. In some cases the procedures were not followed. Violations reports from the agents were not filed on a timely basis, or not filed at all and the parolee would sit in prison for months and discharged from parole without any documentation of why he was taken into custody, or any type of a hearing, or at least did not receive his hearing with-in the time frames dictated by the policies and procedures. Additionally, many times parolee's were not evaluated as to their ability to understand and defend themselves against the charges. Due to these abuses by the Board of Prison Hearings and the parole department a case made it to the courts.
Before we go into the Valdivia decision you need to understand that the Prison system and the Board of Prison terms are separate from each other, but do have ties that cause interactions. The prisons are under the control of the Director of Corrections and the Board has their director. The prisons and parole have no over sight or control over the Board of parole hearings. When the Valdivia case was filed the Department of Corrections basically said, your right the system is flawed and we will correct it, which they did. While the Board of Parole hearings said, it's our system, it works and you can't make us change.
The Department of corrections made the following changes to their administrative hearing process. If an inmate was unable to understand the charges, his rights or present a defense, an officer was assigned to assist the inmate through-out the process to assure he understood the charges, his rights and present his defense during the hearing. If the inmate was locked up, making it impossible for him to interview witnesses, or collect and present evidence in his defense, an investigating officer would be assigned. The investigative officer, unlike the officer assigned to assist the inmate, worked for the hearing officer and would collect evidence to prove or disprove the charges, and document his investigation. A copy of this documentation would be given to the hearing officer and to the inmate. At the beginning of the hearing the Hearing officer would assure, thru prior documentation and the inmates answers, that all rights and due process procedures had been met. The hearing officer was to be an impartial tryer of fact, if the hearing officer had anything to do with the original incident, reports, or even had past negative contact with the inmate, he could not adjudicate the case. If errors were made or time frames not met the hearing officer could reschedule the hearing to assure time frames and procedures were met, dismiss the case due to the violations, or rule that the infractions did not violate the inmate's rights and continue with the hearing. After the hearing the inmate must receive the hearing officers ruling and documentation regarding the hearing. From the time the inmate receives the hearing officers documentation he has a set time frame to file an inmate appear. The courts reviewed the new policies and procedures and approved them.
The Board of Parole Hearings went to court, cost the state large sums of money and lost. The court asked the attorneys representing Valdivia to submit a plan to correct the parole hearings process. Now that was putting the fox in charge of the hen house. Not surprising this is the plan they came up with. Upon placing a parolee in custody, the agent has five working days to complete his report and submit it to his supervisor. In most cases this is an acceptable time frame, but in some cases it is impossible to get a copy of police reports, as the police departments have different time frames, policies and procedures. With that said we will continue, the supervisor has two days to review the violation report and either recommend he be retained in custody and forwarded to the board of parole hearings, or decide to release the parolee from custody, place him in a program, or take other local sanctions such as enrollment in a program, increase anti-narcotic testing, or no sanctions at all. The case is then forwarded to the parole administrator that oversees the office that submitted the report. He can agree with the agent and the supervisor, and refer it to the Board of parole hearings, or disagree, over ride the recommendations of the agent and supervisor and order him released from custody. There is no recourse for the agent or supervisor to contest this action. Once the administrator has referred it to the Board of Parole hearings, a new position was instituted, the case is reviewed again and with input from an attorney assigned the case, the case is rejected and the parolee ordered released or it is again referred to the Board of parole hearings. So far the case can be reject by four different levels, the agent, the agent's direct supervisor, the parole administrator, and the newly created reviewer. This brings up another problem, you have career administrators and want-to-be promoted individuals that can overturn cases and release dangerous parolee's back into the community regardless of facts, but mainly to assist the department in reducing parolee's returned to prison, thereby reducing prison populations. Sounds like politics to me, but that's a different story. The board receives the case, assigns and attorney and must schedule, and hold the parole hearing with-in thirty days of the parolee having been taken into custody. At the hearing you now have the commissioner, parole agent, parolee and the parolee's attorney. This is where it get's interesting, the attorney can contest anything and everything, question all witness's and the agent, contest evidence and throw out case histories or case law that the agent and in some cases the commissioner have no knowledge of. In fact, in one case the attorney convinced the commissioner that a police report was not a legal document, and that a letter from the victim was more legally binding, because in the letter the victim never mentioned that the parolee threatened to kill her, therefore the officers statement in the police report, as to the victim's statement to him, has to be over ruled due to the victims letter never mentioning the parolee's threat, proving it never happened. Now, parole agents are not trained or have the knowledge to perform the role of a prosecutor, but are either required too in the interest of justice, or not and allow a dangerous parolee be returned to the community. I have talked with several commissioners, off the record and they told me that they are under pressure not to return parolee's to custody if possible. So in some or many cases, Commissioners are pressured to grasp at straws to let parolees back onto the streets. You must also remember that commissioners are appointed position and must complete a probationary period. If they fail to do what they are told, they can and will be replaced.
The court, a judge that was once a struggling attorney, accepted and implemented the attorney's recommendations. The cost, attorney's get paid a lump sum to represent the parolee, in the area of $500.00, and in some cases, if the parolee is found guilty, I have seen the attorney give the parolee their business card, tell them they have a good chance to appeal the case and that they would be willing to represent them. Now the parolee cannot pay the attorney for an appeal, so guess who will, the California tax payers. Additionally, the costs for the newly created position, for agents that do all the serving of legal documents, processing and assigning cases, and the administrators to review and recommend dispositions. No wonder the state is going broke and corrections is getting blamed for it.
This is only one area where costs have increased due to the state failing to hold employee's accountable for their actions, politician's, courts and attorney's actively involved in legislation from the courts to push their agenda of reducing the inmate population in prisons and set the ground work for the socialist ideology that the government take care of us all from cradle to grave. They are already active in turning prisons into mental and medical health care systems, as a form of social engineering. How is this going to happen? When the citizens see inmates and parolees being taken care of in all aspects of their lives by the state and they will say, hey, what about me, I am a law abiding citizen, why doesn't the government give me the same thing they are giving to criminals and thugs?
How about the old, the infirmed, the ill, shouldn't the government take care of them also? Take from those that have too much and give to the people that need it to live. Sorry, I had a senior moment.
The parole hearing process is so cumbersome and costly that it eventually will drain money from the state until it bleeds to death. Now to our elected officials, every one of them, both parties, create laws to protect the citizens from career criminals. They hold news conferences and declare crime is being vanquished, and the people will be saved from these violent criminals. Then in back rooms with no camera's and no reporter's they pass laws to give criminals time off for good behavior, and even if they lose goodtime, they can get it back if they are good for 6 months. Then they come up with another twist, a new law is passed telling the judges it is mandatory that they give the mid-term sentence. Many crimes are punished by a tier concept, example is that punishment for a crime is usually something like 2, 4 or 6 years. If the criminal has never been in trouble and the crime wasn't violent or there were circumstances beyond his/her control the judge can give the low term of 2 years. If he has prior crimes of the same or similar, and he has no mitigating factors the judge can give him 4 years and if he is a career criminal with numerous crimes and they show an escalation in the violence or planning of the crime or if he is a gang member the judge would give him the top term. A lot of times these criminals don't want to go to prison, they will spend a year in county jail fighting their case and eventually will plea bargain to serve a sentence of 18 months. With day for day or half time his actual time served will be 9 months, then credit for time served and he is beyond his release date. He is sentenced, returns to the jail and is processed out never having set a foot in prison, and knowingly plays this came for his benefit and to cost the tax payers money going thru the process knowing the outcome.
Now on the parole side recently, if a non violent drug offender, which is similar to Military Intelligence, is a misnomer. All drug users that make it to prison have numerous arrests for drug possession, drug use, theft, burglaries, id theft, and forgery. They did not go to prison on the first arrest. Also drug user's and especially meth users are a walking time bomb. All they have to do is be on a 3 or 4 day run, get paranoid and believe that some innocent person in the area is going to kill them and they explode. That aside, parole now has a program that if a parolee convicted of a drug crime does 6 months on parole in a drug program, completes it and doesn't use he is removed from parole. Now if there is no program available or if the program doesn't have room, doesn't matter, he does 6 months without a dirty test and he's off parole. Now many of these early parole releases ending up reoffending. Additionally, some of these drug users have violent histories, and sometimes plea bargains will reduce violent crimes to less violent type charges to get a conviction. Just to throw a wrench into the fire, a lot of parole agents tell parolee's when they are to report to the office to be tested a month prior to the test. If cops would tell me where they would be looking for speeders, I would never get a ticket.
I have presented to you part of the problem that is the California Dept. of Corrections and Rehabilitation. In my next blog I will discuss the Departments history on rehabilitation, how Arnold was tricked by the Director of corrections and why the Departments plan will fail. The third part will then be the Department of Corrections restructuring according to yours truly.