San Fran Lawsuit Challenges CA Cash Bail System

Photo credit: Michael Coghlan via Flickr

Photo credit: Michael Coghlan via Flickr

The procedure of charging and posting cash bail has prompted a historic lawsuit out of San Francisco.

Evidence has been mounting for years that the bail system places the poor in an untenable position when they are arrested. As the Economist noted, ?around 1,800 San Franciscans every year are detained before their trials because they are poor.? But a new case with unusual details has resulted in a class action suit that strikes at the heart of the practice. ?Crystal Patterson didn?t have the cash or assets to post $150,000 bail and get out of jail after her arrest on an assault charge in October,? as the Associated Press recounted. ?So Patterson, 39, promised to pay a bail bonds company $15,000 plus interest to put up the $150,000 bail for her, allowing her to go home and care for her ailing grandmother.?

That?s where things took a turn for the absurd. ?The day after her release, the district attorney decided not to pursue charges,? the AP observed. ?But Patterson still owes the bail bonds company. Criminal justice reformers and lawyers at a nonprofit legal clinic in the District say that is unconstitutionally unfair.?

According to the lawsuit, filed by the nonprofit group?Equal Justice Under Law, ?the due-process and equal-protection guarantees? contained in the 14th Amendment ?have long prohibited imprisoning a person because of the person?s inability to make a monetary payment.?

Bail on trial

?Yet that is just what San Francisco?s bail schedule does,? the Economist added. ?Even the city?s former?sheriff, Ross Mirkarimi,?laments?the injustice and inefficiency of its bail policy. Most inmates in its jails have been charged with minor crimes or misdemeanors like public urination or petty larceny and are at scant risk of ducking their trials and compounding their legal woes. Jailing these people before their trials costs the city. It would be cheaper and more humane, he suggests, to use pre-trial services like electronic monitoring to usher defendants back to court.?

The EJUL lawsuit was filed in October. ?A judge will decide in next month whether to temporary suspend San Francisco?s bail system until the lawsuit is resolved,? according to the AP. The organization?s attorneys have suggested that the legal argument they have trained on San Francisco would have to apply across California as well if it is accepted in court. ?Center lawyer Phil Telfeyan says if a judge strikes down San Francisco?s bail system, similar policies in the state?s 57 other counties will also have to be changed,? the wire?reported.

Nationwide concern

As dismaying anecdotes have accumulated, cash bail has begun to encounter organized opposition outside California as well. ?When Miguel Padilla?landed in jail?for driving with a suspended license, his fianc?e scrambled to raise $1,000 in bail to get him out of New York City?s Rikers Island. They couldn?t come up with the cash,? as Take Part reported. ?So the 35-year-old decided to plead guilty, rather than fight his case, to get back to his three kids as fast as possible. In the five days Padilla spent behind bars, he lost both of his low-wage jobs. After his release, he struggled to find another job ? thanks to his new criminal record.?

Years of data has suggested?Padilla?s problem is endemic. ?In a 2011 report by the city?s Independent Budget Office, 79 percent of pretrial detainees were sent to Rikers because they couldn?t post bail right away,? wrote Maya Schenyar in a 2015 editorial at the New York Times. ?Across the United States, most of the people incarcerated in local jails have not been convicted of a crime but are awaiting trial. And most of those are waiting in jail not because of any specific risk they have been deemed to pose, but because they can?t pay their bail.?

Originally published by CalWatchdog.com

In a first, California agrees to pay for transgender inmate’s sex reassignment

As reported by the Los Angeles Times:

California is first in the nation to agree to pay for a transgender inmate’s sex reassignment operation, but the state’s settlement of a recent court case sidesteps the question of whether such surgery is a constitutional right.

The state concedes that Shiloh Quine, who entered the California prison system in 1980 as Rodney, suffers severe gender dysphoria that can be treated only by physically conforming her body to her psychological gender.

The agreement to settle Quine’s federal lawsuit seeking the surgery was announced late Friday, with a brief statement from the corrections department that “every medical doctor and mental health clinician who has reviewed this case, including two independent mental health experts, determined that this surgery is medically necessary for Quine.”

Click here to read the full story

Employment Struggles for Ex-Offenders New Focus of CA Legislation

The good news is that the California Department of Corrections offers program to help inmates become opticians.

The bad news is that there are four different state statutes that allow the state to refuse to license an ex-offender as an optician,?established?in explicit language in the law.

It?s the riddle of reform, as California?s prison inmate population dropped 17 percent between 2005 and 2014 while the number of individuals on parole dipped 61 percent.

Where do they go, though?

Ineligible for employment

Both stats are relatively sunny reflections on Gov. Brown and the state Assembly?s effort to reduce both crime and criminals.

Among other things, the state hiked credits toward early release for non-violent and minimum custody offenders and established a new parole system for non-violent second time criminals.

But if you?re looking for a job and have been convicted of a crime involving a controlled substance ? and this includes marijuana? forget about getting work on an ambulance crew, a litter van, or a wheelchair van. You could become a real estate broker, a midwife or a speech pathologist, but you?d have to make a case for it.

Any misdemeanor will keep you from working at as a smog check station attendant, a locksmith, a repo man or board member of a humane society.

The information comes from a database assembled by the American Bar Association. Users can search dictates in each state for how a conviction of a variety of crimes can affect a person?s ability to get a job, a business license, a judicial position, housing, education and 10 other endeavors.

The findings can be comforting ? someone with a felony conviction can?t serve on a grand jury ? and amusing, as a felon is also ineligible to participate in the cap-and-trade program for greenhouse gas emissions.

Contradictions in law

The database also exposes the contradictions in the law regarding employment restrictions on inmates. In California, ?not much work has been done on fixing the employment and licensure issues,? said W. David Ball, an associate professor at Santa Clara University School of Law.

?These laws are generally written broadly, and there are laws that are easy to understand, like you would not want someone who was involved with financial fraud to be a CPA,? Ball said. ?But it makes no sense that someone convicted of drunk driving can?t be a cosmetologist.?

The ABA database is part of a broad effort to loosen restrictions on ex-offenders. There is a national move to create a bill in all states forcing them to examine their laws regarding ex-offenders and employment. Advocates claim passage would bring recidivism rates down.

In California, 61 percent of felons returned to prison within three years, according to a 2014 annual state report on recidivism.

The study found that ?inmates committed to prison for property crimes consistently recidivate at a higher rate than those committed for other types of crimes, including crimes against persons, drug crimes, and ?other? crimes.?

The move to a national retooling of restrictions on ex-offenders is not welcomed by all parts of the legal community.

Too soft on criminals?

?This was like a liberal do-gooder thing,? James Bopp, a Terre Haute, Ind., lawyer told the Wall Street Journal earlier this month. ?The law is constructed in a way to grossly favor the criminal who is seeking relief from these collateral effects of their conviction.?

The passage in November of Proposition 47 pruned the ranks of the incarcerated even more, as the law softened criminal classifications for some crimes including drug possession and shoplifting. It also made the theft and reception of stolen goods under $950 a misdemeanor.

Under Prop. 47, part of the projected $400 million to $700 million projected to be saved statewide by cutting down on the state?s incarceration bill is to be spent on mental health and substance abuse services.

Such services, while they can help treat an ex-offender, also exclude the ex-offender community: A misdemeanor conviction excludes a person from becoming a vocational nurse, treating an adolescent in a drug treatment program or obtaining a psychiatric technician license.

Additional legislation

Lawmakers are still making adjustments to the effects of the bill, plugging holes and shaping the mandate. Some are concerned that a provision in the measure would allow the theft of a gun to be lumped in with stealing a bag of Twizzlers in the under $950 category.

A measure authored by state Sen. Cathleen Galgiani is winding its way through the statehouse, seeking to fix that, making the theft of any firearm a crime not subject to the parameters of Prop. 47.

Another bill, SB205, looks to fund a university study of the effects of Prop. 47.

Still another bill, SB527, seeks to allocate money from the expected corrections savings for truancy and dropout prevention, funding over four jobs for that task alone.

Collateral consequences are also often unintended consequences, said Ball, the associate professor at the Santa Clara law school.

?I?d like to raise the bar higher so you have to make a case for ?why not?? rather than reasons to impose,? Ball said. ?These collateral consequences really do prevent people from starting over.?

Steve Miller can be reached at 517-775-9952 and?avalanche50@hotmail.com. His website is?www.Avalanche50.com

Originally published by CalWatchdog.com

Judge Rules CA Inmate Entitled to Sex-Change Operation — With Taxpayer Money

What looked at first like a belated April Fool?s Day joke may turn out to be a landmark ruling in Eighth Amendment jurisprudence. On April 2, a federal district court judge in San Francisco?ruled that a convicted murderer serving a 17-years-to-life sentence is entitled to a sex-change operation at taxpayer expense. Judge Jon Tigar, a Barack Obama appointee, determined that Jeffrey Bryan Norsworthy should have the $100,000 procedure ?as promptly as possible.?

Though no inmate in a California prison has ever received sex-reassignment surgery while in custody, Judge Tigar found that the Eighth Amendment of the U.S. Constitution requires that Norsworthy receive a vaginoplasty ? a procedure that involves removing the patient?s male genitals and creating female genitals. In 38 pages of judicial reasoning, Tigar declared that forcing Norsworthy to keep his male parts while behind bars at the all-male Mule Creek State Prison in Ione amounts to ?cruel and unusual punishment.? This is a decision bordering on lunacy.

In 2000, a prison psychiatrist diagnosed Norsworthy with ?gender dysphoria,? meaning that he would like to be a woman instead of a man. According to experts, this condition can cause frustration and anxiety for ?transsexual? men who are disgusted by their male genitalia. In extreme cases, untreated gender dysphoria can lead to suicide or self-castration. The American Psychiatric Association, which not so long ago treated homosexuality as a mental disorder, now has elaborate and presumably more enlightened views on the subject of gender-identity disorder, which Judge Tigar dutifully adopted. Though prison records list Norsworthy by his given name, Tigar?s opinion refers to him throughout as ?Michelle-Lael Norsworthy? and describes him as a ?pleasant looking woman.?

At only 16 words, the Eighth Amendment is the most succinct article of the Bill of Rights and has nothing to say about vaginoplasty. It states, in its entirety, ?Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.? The ban on cruel and unusual punishments was meant to limit gruesome penal methods such as flogging, stoning, and burning at the stake. (Ironically, castration has been held to be cruel and unusual, but in the Norsworthy case, a judge is ruling that significantly more intrusive surgery is constitutionally required.)

To contend that ?forcing? a prisoner to continue as a man violates the Constitution is absurd. Norsworthy was born male, and he was male when he committed a murder on April 15, 1987 and when he was sentenced to prison later that year. Though he is allowed to take female hormones, have a pony tail, wear a brassiere, and shower out of the sight of other inmates in prison, he has been a male for all of his 51 years. Manifestly, the state of California did not make Norsworthy a male. His punishment?which is what the relevant provisions of the Eighth Amendment address?did not include a specification of his sex or gender. Rather, prison authorities merely decided that Norsworthy is not eligible for an elective cosmetic procedure at government expense while incarcerated. In this regard, vaginoplasty is no different than a facelift, tummy tuck, liposuction, nose job, Botox injections, or lap band surgery. No federal appellate court has recognized a right to sex-reassignment surgery. In the only related case that Tigar cites in his decision, the First U.S. Circuit Court reversed a district court ruling that had ordered the procedure for an inmate in Massachusetts. What Norsworthy chooses to do with his body at his own expense, if and when he is released from prison, is up to him.

Judge Tigar is a Berkeley-educated activist judge and the son of noted radical lawyer Michael Tigar, who once represented Angela Davis. He displays what University of Colorado law school professor Paul Campos terms ?jurismania?: the irrational conceit lawyers and judges frequently exhibit that presumes all of society?s problems?no matter how complex or intractable?can and should be solved through litigation, especially if the ?solution? is characterized as an interpretation of ?constitutional law.? In his 1998 book of the same title, Campos contends that the ?obsessive pursuit? of litigation and ?irrational worship? of legal rules in contemporary American culture ?can come to resemble a form of mental illness.? Resorting excessively to legal procedures comes at the expense of common sense and leads to ?tendentious jargon,? self-serving posturing, fraudulent rhetoric, undue deference to ?experts,? and overreliance on decision-making by privileged elites such as lawyers and judges?all of which are on display in Judge Tigar?s ruling.

Punishing criminals is a basic state function, and deciding how (and at what expense) to run prisons is a quintessential legislative judgment. As long as prisoners are adequately fed and housed and are not arbitrarily abused, it should be of no concern to a judge?and especially a federal judge?whether prisoners have access to color TV, air-conditioning, recreational facilities, or elective medical procedures. Serving a prison sentence is a punishment; it is not supposed to be enjoyable.

It is nonsensical to grant imprisoned convicted felons health-care ?entitlements? that many law-abiding, hardworking taxpayers don?t enjoy. One hopes that the state appeals Judge Tigar?s unprecedented ruling. Unless resisted, jurismania will destroy popular sovereignty. Campos reminds us that judges are ?nothing more than an especially politicized subclass of lawyers.? And they rely on the docility of their subjects to impose their baseless edicts. Jeffrey Norsworthy is not Rosa Parks, vaginoplasty is not a civil right, and Tigar?s ridiculous decision is not a credible interpretation of the Constitution. It should not stand.

State prison officials aim to halt prisoner?s sex reassignment

As reported by the San Francisco Chronicle:

California prison officials moved Friday to halt a transgender prison inmate?s court-ordered sex reassignment surgery, arguing that the unprecedented order was medically unnecessary and would subject prison health care to ?an inmate?s personal preferences.?

The Department of Corrections and Rehabilitation asked U.S. District JudgeJon Tigar to suspend his April 2 ruling ? allowing Michelle Lael-Norsworthyto undergo male-to-female surgery ? while the state asks a federal appeals court to overturn the ruling. It was the first such judicial order in California and the second in the nation.

Lael-Norsworthy, 51, was convicted of second-degree murder in 1987. She has identified as a woman since the mid-1990s, has received hormone therapy in prison since 2000 and has the appearance and voice of a woman. She remains housed in men?s prisons.

Click here to read the full article

Prison doctors double pay with O.T.

As reported by the U-T San Diego:

Twenty-nine state prison medical workers were paid more than $100,000 in overtime last year, including 15 doctors and nurses who were able to more than double their wages with the extra hours.

Physicians typically are not eligible for overtime under federal rules, as they are highly compensated professionals with advanced knowledge and training who work on salary.

But doctors are in short supply in the California prison system, and are represented by a union that has negotiated for them to receive overtime pay under certain circumstances. …

Click here to read the full story

What will it take to wake up an apathetic CA … prisoner release?

As the U.S. budget exploded with the twin trillion dollar TARP and Stimulus bills, Cash for Clunkers and $440 billion in losses at Fannie and Freddie, the voting public responded with the Tea Party movement that swept through America in 2009 and 2010. During the 2010 election cycle, while the nation was electing 80 (of 435) new representatives, California voters paid no heed, returning 96% of incumbents to office ? a record that would have made the old Soviet Politburo proud.

This same West Coast voter apathy has allowed a $26 billion budget deficit to remain unresolved for years. Rather than solve the fiscal spending crisis, Governor Brown has proposed tax hikes to close the gap, while protecting the all powerful labor unions in California, whose pension, pay and healthcare tabs have placed many California cities in near bankruptcy. California voters have responded with typical apathy to the Brown tax hike proposal paying little attention and raising no alarm. The same cannot be said for the United States Supreme Court which ruled 5-4 in Brown vs. Plata that California must release up to 46,000 inmates from California prisons citing deplorable conditions which caused “needless suffering and death” and ?amounted to cruel and unusual punishment?. Will Californians remain apathetic when tens of thousands of convicted felons are released to the streets and neighborhoods of their communities?

That conditions in California prisons are deplorable cannot be debated. The state’s prisons, which were built to hold 80,000 inmates, hold 143,335 inmates today, according to Matthew Cate, secretary of California’s Department of Corrections and Rehabilitation.

Supreme Court Justice Anthony M. Kennedy, a Sacramento native, spoke of suicidal prisoners being held in “telephone booth-sized cages without toilets” and others, sick and in pain, who died before being seen by a doctor. As many as ?200 prisoners may live in a gymnasium, and as many as 54 may share a single toilet,? he said.

Justice Anton Scalia, delivering his own dissent, said the majority had affirmed “what is perhaps the most radical injunction issued by a court in our nation’s history.” He added, “Terrible things are sure to happen as a consequence of this outrageous order.”

Los Angeles County Dist. Atty. Steve Cooley agreed, stating, “Citizens will pay a real price as crime victims, as thousands of convicted felons will be on the streets with minimal supervision.”

How long can Californians remained apathetic to their political and fiscal problems? In 1999, California pols wasted the $25 billion ?tobacco settlement? to pay for its current spending instead of ?health care through 2025? as was planned. After recalling Gray Davis for running a $30 billion deficit in 2003, they paid scant attention as politicians built another deficit hole that the Legislative Analysts Office reports will be ?$20 billion per year for years to come?.

If such fiscal insanity could not stir the California electorate, as it did Tea Party members across America, the release of 46,000 convicted felons may awaken a sleeping giant. California?s 23 million registered voters cleaned up their streets and neighborhood with a no-nonsense ?three strikes? policy that put repeat offenders behind bars while creating the nation?s largest prison population. Releasing 46,000 felons, 30% of its inmates, to its relatively safe communities and neighborhoods will undoubtedly cause a spike in crime that may finally gain their attention.

But California voters, if they awaken at all, will quickly learn that they may be too late. City employee pensions, pay and healthcare have also been allowed to spike during the spending binge, resulting in city deficits and lay-offs of police, fire, and probation officers. At the very time when they are most needed, their cities will be forced to lay off these critical employees.

Will California voters remain apathetic, or will this epical Supreme Court decision trigger California?s own Tea Party movement?

About the author: Robert J Cri sti ano PhD is the Real Estate Professional in Residence at Chapman University in Orange, CA, a senior Fellow at the Pacific Research Institute in San Francisco, CA and President of the international investment firm, L88