What Is the Arnold Foundation Hiding?

By Eric Siddall

As stories emerge about the Arnold Foundation’s “algorithm” pretrial release tool, we should be disturbed about the results. As covered in a previous blog, use of the tool is linked to two murders and the wholesale release of dangerous felons.

However, a Wired story raises even more questions about the Arnold Foundation algorithm. It turns out the tool was given to San Francisco for free, but with conditions that bars the disclosure of “any information about the use of the Tool, including any information about the development, operation and presentation of the Tool.”

That insistence on secrecy about a program that could greatly affect public safety is disturbing. Laughable is the Arnold Foundation stated reason for non-disclosure: to prevent local governments or rivals from using or copying the tool without permission. Since the tool was given to San Francisco for free–i.e., there was no profit motive–why would the foundation have concerns about the use of the tool without permission?

While the Arnold Foundation has now released the formulas and factors that guide the tool, it still refuses to release the data set on which the tool was based or any validation tests that may have been performed. In short, the Arnold Foundation will not allow independent researchers to evaluate the critical factors behind the “tool.”

While John Arnold (after whom the foundation was named) may have used secret algorithms in his natural gas future trading while working at Enron and his own hedge fund, the worst result he could face was the loss of money. The bad calls this algorithm has made has been linked to at least two murders, one in San Francisco and one in New Jersey. How many more people need to die before this social experiment is ended?

Eric W. Siddall is Vice President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.

It’s Time to Deal with Recidivism

By Eric W. Siddall

California needs a comprehensive approach to lowering incarceration rates – a plan that will not only lower incarceration levels, but preserve the historically low crime rates we currently enjoy. Sacramento’s current approach to this problem is mass early-release for felons – potentially at the expensive of public safety. A more ambitious and effective strategy – that simultaneously reduces incarceration and crime rates – would be to invest in comprehensive programs that reduce recidivism. This will require government spending on meaningful work programs for those released from state prison.

Since 1980, incarceration rates skyrocketed from 80 inmates for every 100,000 Californians to a peak of 701 per 100,000 in 2006. A combination of factors forced California to confront this problem, most notable of which was a 2009 federal court order mandating the state to abate prison overcrowding. State leaders had two options: Build more prisons or release prisoners.

Our leaders opted for the cheaper option by reducing our prison population by 55,000 inmates. This mass early-release was implemented by a combination of laws that shifted our prison population to local jails (Realignment), produced much-needed reforms to the Three-Strikes law (Proposition 36), and effectively decriminalized theft and drug crimes (Proposition 47). In 2016, the voters approved Proposition 57-another instrument designed to lower the prison population via mass release-under the false promise that lower sentences would increase public safety.

All of these measures were designed to lower incarceration rates on the cheap. However, despite the dramatically lower prison population, the budget for the California Department of Corrections and Rehabilitation (CDCR) actually went up from $9.1 billion in 2006 to a proposed $11.3 billion in 2017.

Not only did the measures fail to reduce costs. They did virtually nothing to ensure a sustained reduction in the prison population in the future. That longer-term approach requires tackling recidivism- an underlying driver of continuously elevated incarceration rates. Yet recidivism rates continue to remain high despite the promises made during Realignment that local control and ending parole violations would reduce them. Again, the state decided to take the inexpensive approach to deal with this problem. The cheap solution was to not send parole violators back to state prison for their violations. Instead, they shifted supervision to county probation agents. These changes aimed to lower cost but not resolve the underlying problems.

The underlying problems turn on recidivism. If we want to lower recidivism rates that hover around 70 percent, we need to confront a fundamental question: how do we reintegrate felons back into society after they spend years in prison?

As with high incarceration rates, government leaders have opted for the cheap and narrow fix when it comes to high recidivism rates. Take the “ban the box” proposal. It costs government nothing. It sounds progressive. It’s not a counterproductive idea, but it is a naïve and cheap effort to resolve a complicated problem. It only takes an employer a Google search and basic arithmetic to figure out an applicant’s incarceration record.

Recidivism reduction is an area where government should take the lead. A key first step would entail creating the equivalent of the California Conversation Corp (“CCC”) for those leaving prison. The state will benefit because it will improve our infrastructure and our environment. Those leaving prison will benefit from the stability provided by the CCC and the skill set obtained by working on infrastructure and environmental projects.

For those unfamiliar with this program, the CCC was modeled after FDR’s CCC. It trains, employs, and houses young people and sends them out on projects across the state. It was founded in 1976 by Governor Jerry Brown who envisioned it as “a combination Jesuit seminary, Israeli kibbutz and Marine Corps boot camp.”

We could use this program to clean a felon’s criminal record of certain types of convictions. If graduates remain crime-free after a decade of being in the program, they could get their convictions dismissed. This program would create a real path towards redemption and reintegration. We would need the active participation of district attorney’s offices, parole, and the newly created CCC to recommend removal. Together this triad of stakeholders would then ask the courts to dismiss the conviction.

For those serious about redemption, this additional carrot is likely to improve an inmate’s performance pending release from prison. Inmates will be incentivized to do well in prison so that they will be accepted into the CCC with the hope that their record would be cleansed.

Since the societal value of a conviction diminishes with the time lapsed between the defendant being crime-free and the date of conviction, cleaning a felon’s record will pose little danger to public safety. This is because a prior conviction is only valuable to determine and enhance sentences. If the convict is living a productive and socially integrated life, the usefulness of the conviction actually acts against society’s interest by creating an unnecessary stigma on that person. This stigma includes a barrier to employment. Not only are felons barred from certain positions – including, ironically, the CCC – but they are less likely to be hired by the private sector because of their criminal background. Therefore the removal of a criminal record benefits society by removing an unnecessary barrier to otherwise productive people – a barrier that could lead criminals with fewer viable avenues other than crime.

It is time that Sacramento begins a real discussion that does not lead off with myopic approaches, such as early-release of prisoners or lower sentences, which may simply be counteracted by high recidivism and crime rates. We need to tackle this problem with long-term solutions that require a substantial investment capable of giving meaningful employment to our newly released felons. We need to give them the opportunity to clean their records. We need to give them the opportunity to remain forever free.

Eric W. Siddall is Vice President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.

The Real World and The Failure of “Bail Assessment Tools”

By Eric W. Siddall

How many people will have to die before the Arnold Foundation‘s “risk assessment tool” is dumped in the trash?

If you aren’t following “bail reform,” you may not be aware it relies upon a “risk assessment tool” to determine who should be detained on bail before trial. This algorithm makes a determination on which candidates should post bail. The Arnold Foundation is one of the main proponents of this system-not surprisingly because its founder was a hedge fund manager-and many hedge funds rely upon algorithms to determine their investments. They brag that their “risk assessment tool” is the cutting edge tool providing an objective assessment in this area, with their chief developer boasting she wanted to “Moneyball criminal justice“. Unfortunately they are more akin to Bernie Madoff.

The Arnold tool has led to the massive release of violent criminals and tragic results. Three recent events should be a warning sign for us all before we start giving up on judges and rely upon a Madoff worldview.

In New Mexico, a story noted the Arnold Foundation assessment tool has led to virtually every defendant arrested for a violent crime being released without bail. “Even with the highest rate of failing to appear in court and the highest rate of new criminal activity for a defendant, the tool still recommends that person be released on their own recognizance unless the prosecutors have filed for preventative detention.”

In New Jersey, the Arnold Foundation tool determined that a man jailed for illegally possessing a gun was not a danger and recommended his release. Days later, that man hunted down a rival and shot at him 22 times, killing him. The family of the victim is now suing the Arnold Foundation, amongst others, for the death.

In San Francisco, Mr. Mims, who was arrested for the murder of Edward French, was released days before the slaying after being arrested for possession of two guns and despite being on probation for burglary. Relying on the assessment tool, the judge rejected the deputy district attorney’s recommendation that the man be kept in jail on a probation violation. A spokesman for the San Francisco District Attorney’s office noted use of the tool has caused “many instances of contention.” Contention! Tell that to Mr. French. Of course, we should not expect too much criticism from the San Francisco District Attorney’s Office since it was their DA, Gascon, who supported this public safety debacle.

It is brutally ironic that the Arnold Foundation argument for the use of their tool included the following passage: “failing to appropriately determine the level of risk that a defendant poses impacts future crime and violence, and carries enormous costs -both human and financial.” The use of the Arnold Foundation “risk assessment tool” in New Mexico, New Jersey, and San Francisco certainly attests to the truth of that statement.

Eric W. Siddall is Vice President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.

The Lies Behind the Selling of Prop 47 & 57

By Michele Hanisee

Politics will never exist without spin doctors. Yet, as cynical as our political system has become, recent ballot measures sold to the public as “public safety” measures have gone beyond the pale. Nearly every soft on crime law enacted in the last half decade included the words “safe” or “safety” in the description. No two better examples exist than Propositions 47 and 57.

Prop 47 advocates called it the “Safe Neighborhoods and Schools Act.” Prop 47 did nothing for neighborhoods except to dramatically increase property crime. It did nothing for schools except for making undelivered promises to increase funding.

Last week, the California Supreme Court delivered some common sense reality to Prop 47 in People v. Valencia. At issue were “third strikers” — criminals who have two or more prior convictions for serious or violent crimes. Under the “three strikes” law, a criminal who had two or more prior “strike” convictions and who then committed any new felony offense would receive a sentence of 25 years to life. As originally written and implemented, that sentence was mandatory unless a judge used her discretion to “strike” one or more of the prior convictions at sentencing. But the public became disillusioned with a sentencing scheme that was, at times, perceived as inflexibly harsh.

In 2012, Proposition 36 was passed, limiting the 25 years to life sentence to cases where the new felony offense was also a serious or violent crime. It also allowed inmates sentenced under the old rules to petition for resentencing. Crucially, however, a judge could deny a petition to reduce the sentence if the court, in its discretion, determined that the inmate “would pose an unreasonable risk of danger to public.”

Enter Prop 47. It reduced certain drug and theft felonies to misdemeanors. Prop 47 also had a resentencing provision which allowed inmates to petition for a reduction in their felony sentence if that crime had since been reduced to a misdemeanor. Like Prop 36, Prop 47 gave the court discretion to deny a reduction if resentencing “would result in an unreasonable risk of danger to public safety. But the discretion granted was so limited as to be illusory. Under Prop 47, a judge could only refuse to reduce the sentence if he or she found an unreasonable risk that the inmate would commit one of eight specific types of violent crime: homicide, attempted homicide, murder, solicitation to commit murder, sexual assault on a child under age 14, assault with a machine gun on a police officer or firefighter, possession of a weapon of mass destruction, or any offense normally punishable by life or death.

Based on the overlap in these different provisions, two third-strike inmates petitioned for resentencing, arguing that the language contained in Prop 47 should apply to them.

The California Supreme Court observed that if the petitioners’ argument was correct, it would make it easier “for recidivist serious or violent offenders to have their life sentences vacated, and render them more likely to be released.”

The California Supreme Court wisely rejected the inmate’s appeal, holding that there was nothing in Prop 47 that suggested it was intended to apply to serious and violent third strikers seeking resentencing. “[N]either the initiative’s text nor its supporting materials describe any intention to amend the criteria for the resentencing of recidivist or violent felons. . ..” Nor, said the court, was such a result predicted by the Attorney General or the Legislative Analyst in their summary of the measure, or discernable to the voting public.

Most illuminating, however, was the dissent of Justice Liu, who in blasting the majority for the decision wrote: “The court today concludes that the drafters of Proposition 47 pulled a fast one on an uninformed public.” Truer words have never been spoken. With their deliberately misleading title referencing “safe schools” and platitudinal language about public safety, the drafters of Prop 47 fooled the public to accomplish their goal of decriminalizing property crimes and releasing convicted criminals from custody.

Those behind Prop 57 took their cues from Prop 47, selling the public with assurances that its early parole provision only applied to “non-violent” offenders. That’s news to the California Department of Corrections and Rehabilitation, whose published regulations on early parole explicitly include inmates sentenced to prison for violent offenses. This week, was an example of that regulation in effect, with the Fresno DA’s office highlighting an inmate who attempted to stab two people being paroled two years into an eleven year sentence thanks to Prop 57.

Lawyers can pore over the Valencia opinion for its lessons on the intricacies of statutory construction. The big takeaway from Valencia was contained in the dissent, which inadvertently highlighted a truth worthy of repeating: “The court today concludes that the drafters of Proposition 47 pulled a fast one on an uninformed public.”

Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.

This commentary originally appeared in the Los Angeles Daily Journal.

CDCR Seeking Public Comment on Prop 57 Regulations

By Michele Hanisee

The California Department of Corrections and Rehabilitation (CDCR) is accepting public comments on the regulations to implement Proposition 57, which was approved by voters last November.

The Proposition 57 regulations include an increase in credit-earning opportunities for inmate participation in in-prison programs and activities, as well as early release consideration that was touted as applying only to nonviolent offenders. The ADDA believes that the regulations, as drafted, far exceed what the language of Prop 57 authorized or what the voters were told the initiative would accomplish. Simply put, the regulations allow early release of inmates convicted of violent offenses if those inmates were also convicted of a nonviolent crime. The regulation can be found here. For the definition of who the department qualifies as a “nonviolent offender” see page 23 of the attachment, under subsection (b) of the proposed Section 3490 of the California Code of Regulations.

According to CDCR Secretary Scott Kernan, “The public plays an extremely important role in this rulemaking process, and by commenting on the proposed regulations, we can ensure the department is taking the right approach to the reform the way we incarcerate inmates in California.”

Members of the public that want to comment can do so in several ways.
By mail to the CDCR, Regulation and Policy Management Branch, P.O. Box 942883, Sacramento, CA 94283-0001
By fax at (916) 324-6075
By e-mail at CDCR-Prop57-Comments@cdcr.ca.gov
People can also submit their oral comment at a public meeting on the regulations scheduled to take place on Friday, September 1 from 9 a.m. to noon at the Department of Water Resources, Building Auditorium located at 1416 Ninth Street, Sacramento. The public comment period will end on September 1 at 5 p.m.

Below is the letter the ADDA sent to the CDCR.

Via Email
CDCR-Prop57-Comments@cdcr.ca.gov

Re: California Department of Corrections and Rehabilitation
OAL Matter Number: 2017-0324-01

To whom it may concern:

Since the California Department of Corrections and Rehabilitation is now accepting public comments on Proposition 57 regulations, this letter is to inform you of the Association of Deputy District Attorneys’ objection to proposed changes to California Code of Regulations, Title 15, Division 2, Board of Parole Hearings, sections 2249.1 (a)-(f), 2449.2, 2449.3, 2449.4, and 2449.5. These emergency provisions, as currently written, violate case law and the California Constitution, Article 1, Sections (b) (7) and (8) which allow a victim to be heard at any parole or other post-conviction review proceeding.

Section 2249.1

Section 2249.1 (b)(1) proposes to classify as a “non-violent” offender an inmate who has “completed a determinate or indeterminate term of incarceration and is currently serving a determinate term for a nonviolent in-prison offense.” This effort to grant Proposition 57 relief to “violent offenders” through sleight of hand re-classification contradicts the stated intent of Proposition 57– namely that it would only apply to “non-violent” inmates-and is in violation of statutory and case law.

The proposed regulations expand the definition of “nonviolent offender” far beyond what the language of Proposition 57 envisioned or what was described to the voters. Proposition 57 was sold to the voters as only affecting “non-violent” offenders. The language of Section 32, Article I of the California Constitution, as enacted, limits early parole eligibility to “a person convicted of a non-violent offense.” [Emphasis added.]

Subsection (b)(1) of section 3490 of the California Code of Regulations has impermissibly expanded the definition of “a person convicted of a non-violent offense” to include inmates convicted of a violent offense, if the inmate is also serving time for additional non-violent offenses. The Department’s reliance on case law (In re Reeves (2005) 35 Cal.4th 765) relating to issuance of conduct credits cannot reasonably be construed as permitting the Department to define a person convicted of a violent offense as “a person convicted of a nonviolent offense.” Such a definition defies logic. It is disingenuous to claim that a person who stands convicted of a violent crime can be considered a “non-violent offender” because they also stand convicted of a non-violent offense.

Subdivision (b)(2) of section 3490 also defines as a “nonviolent offender,” “[a]n inmate who has completed a . . . indeterminate term of incarceration and is currently serving a determinate term for a nonviolent in-prison offense.” First, all indeterminate terms (i.e. life sentences) are specifically defined as violent by Penal Code Section 667.5. Therefore an inmate serving a life sentence is a person convicted of a violent offense and cannot be defined as a “a person convicted of a nonviolent offense.” Second, an indeterminate term is only “completed” when the inmate is paroled or when the inmate dies. Until the inmate is paroled or dies, the indeterminate term is not “completed.” To redefine an inmate serving a life sentence for a violent crime as a “nonviolent offender” because they committed a new crime while in prison is disingenuous.

Sections 2449.2, 2449.3, 2449.4, and 2449.5.

The provisions regarding how parole hearings are conducted violates Proposition 9 (Marsy’s Law) which amended the California Constitution and expanded the rights of victims of crime. The purpose of that initiative was to protect a victim’s right to justice and due process. The California Constitution enforces those rights in two important ways.

First, a victim is to be provided “reasonable notice of all public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings, and to be present at all such proceedings.” (Article 1, section (b)(7).)

Next, a victim has the right to “be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue.” (Article 1, section (b)(8).)

As presently formulated, the emergency changes in sections 2249.2-5 eviscerate these rights limiting a victim’s participation to a written statement rather than a right to be heard by the parole board.

Nothing in the language of Proposition 57 eliminates or conflicts with these provisions of the California Constitution. Therefore, CDCR has no legal authority to eliminate the victims’ rights provided for in Article 1, Sections (b)(7) and (8).

CCDR was directed to adopt regulations “in furtherance” of Proposition 57. Such regulations should continue to enforce the rights of victims, and not pretend the inmates serving sentences for violent crimes become “non-violent” inmates via baseless reclassifications. If CCDR will not respect the will of voters, then it will be necessary for a court to ensure it does so.

Sincerely,

Michele Hanisee
President

Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.

Rollback of Mandatory Gun Enhancements Rejected by State Assembly

In a victory for victims of gun violence, the California Assembly rejected Senate Bill 620. SB 620 sought to end mandatory sentences for criminals who use a gun when they commit the most heinous felonies. We blogged multiple times about the reasons that SB 620 should be defeated. One of those blogs exposed the lies told by Kim McGill of the Youth Coalition to a Senate Committee. McGill fabricated a story that attempted to paint mandatory gun sentences as being draconian. This story included lies about the defendant’s criminal record, his criminal conduct, and comments made by the judge. Her story helped convince senators of the “unfairness” of gun enhancement penalties. We applaud those Assembly Members who stood by common sense and public safety.