Federal judges said California’s prison conditions violated inmates’ constitutional rights and forced the state into a historic prisoner-release experiment.
LOS ANGELES –It was at one of the most popular tourist destinations in Los Angeles that public safety came face-to-face with what one legal scholar has called “probably the greatest de-incarceration experiment in American history.”
During a visit to the Hollywood Walk of Fame on June 19, Christine Calderon, 23, spotted three transients displaying signs asking for money with four-letter insults and a smiley face. One of those transients, Dustin Kinnear, had only been on the streets for a couple of months after being released from state prison as part of the historic “realignment” of California’s correctional system that was passed by the Legislature in March 2011. Kinnear was — in the official parlance — an Assembly Bill 109 post-release supervised person.
After Calderon took a picture of the transients with her cellphone, it was Kinnear who allegedly jumped on her and stabbed her to death. The apparent provocation? She had refused the transients’ demand that she pay them a dollar for the picture.
Kinnear, 26, is now awaiting trial for murder, a charge that could send him back to prison for life. To critics of AB 109, his case is a glaring example of the deficiencies of a law they believe has endangered public safety by moving California away from incarceration and toward rehabilitation of felons in a judicially-imposed effort to relieve prison overcrowding. As a result of the law, about 18,000 offenders who in past years would have been in either prison or jail are not serving time behind bars.
“This is an experiment with people’s lives,” said Michael Rushford, president of the Criminal Justice Legal Foundation.
AB 109 allows non-violent, non-serious, and non-sex offenders to be supervised at the county level after their release from prison instead of reporting to state parole officers. It also mandates that individuals sentenced to non‐serious, non‐violent or non‐sex offenses serve their sentences in county jails instead of state prison. Most parole violations, moreover, are now served in county jail rather than prison.
Last January, a dozen bills were introduced in the Legislature to reform realignment. Only one of those, a measure that sends sex offenders who remove court-ordered GPS monitoring devices to county jail for 180 days, became law, but Rushford and others see momentum building for additional legislative reform or a ballot initiative.
“Crime and public safety issues are surfacing in California today,” Mark Baldassare, president of the Public Policy Institute of California, recently said.
But a MintPress investigation suggests that the concerns over AB 109 may be misplaced or exaggerated. While violent crime increased 3.4 percent and property crime went up 7.6 percent between 2011 and 2012, the increases in violent crime “appear to be part of a broader upward trend also experienced in other states,” the PPIC concluded in an October report. Crime rates remain at historically low levels.
Incidents like the slaying of Christine Calderon have grabbed the headlines, but they can be blamed at least in part on the abbreviated rollout of realignment, which left county probation departments with little time to ramp up for the influx of released inmates.
“This was new,” said Carol Lin, spokeswoman for the Los Angeles County probation department. “This was building an airplane in flight.”
Judicial hammer comes down
California did not volunteer to host any experiment in correctional philosophy. It was dragged there, unwillingly, by federal judges who found that conditions in its prisons violated the constitutional rights of inmates and that judicial action was required to force the state to remedy the problem.
The judicial hammer came down in August 2009 when a three-judge court, after a 14-day trial, ordered California to reduce its prison population to 137.5 percent of the prisons’ design capacity within two years, amounting to a reduction of 38,000 to 46,000 inmates. In upholding the order in May 2011, a 5-4 majority of the U.S. Supreme Court said the degree of overcrowding in California’s prisons was “exceptional.” Prisons designed to house just under 80,000 inmates were crammed with a population almost double that, with as many as 54 prisoners sharing a single toilet.
“Without a reduction in overcrowding, there will be no efficacious remedy” for the unconstitutional conditions, the majority said.
In a dissent, Justice Antonin Scalia said the majority had affirmed “what is perhaps the most radical injunction issued by a court in our nation’s history.”
California Gov. Jerry Brown was no less critical of the three-judge panel’s order, calling it “a blunt instrument that does not recognize the imperatives of public safety, nor the challenges of incarcerating criminals, many of whom are deeply disturbed.”
But even before the Supreme Court issued its decision, he proposed lowering the inmate population by sentencing certain felony offenders to county jail and replacing parole supervision with probation for many offenders. Underlining the state’s move away from the incarceration model, he also canceled $4.1 billion in previously authorized prison-construction bonds that would have added another 53,000 prison beds.
At the governor’s urging, the Legislature — with relatively little debate — passed AB 109 on March 17, 2011, and the law went into effect only seven months later, opening the prison doors to thousands of inmates who would no longer be subject to the rigorous supervision of parole officers but would instead report to probation officers more accustomed to interviewing pretrial detainees and supervising minor offenders.
“There’s a cultural difference between the two agencies,” Lin noted. “Parole is not about rehabilitation … It’s more about ‘tail and nail.’”
One of those AB 109 inmates, or PSPs, was a man who, according to his mother, had been in and out of mental health facilities since age 5, had a lengthy criminal record including seven arrests for assault with a deadly weapon, and had begun roaming the streets of Hollywood in 2008.
‘Egregious and outrageous’
According to police, Dustin Kinnear came to Hollywood from Tucson, Ariz., after a court ordered him to undergo mental health treatment. Between November 2010 and December 2012, he was arrested for, among other things, hitting a guard at a Subway sandwich shop in Hollywood on the head with a broomstick, defecating in public, and assaulting his girlfriend with a knife and brass knuckles.
“We have a young man who is bipolar, paranoid, schizophrenic and epileptic,” his attorney told a judge in September 2011.
Kinnear served various short jail terms before a judge in December 2012 sentenced him to three years in state prison on probation violations related to the assault on his girlfriend. But because of credits for his jail stints, that sentence was drastically reduced and he was released on April 6. A little more than two months later, he allegedly stabbed Christine Calderon to death.
“It happened at 8 o’clock at night, in a tourist area,” said Joel Bellman, spokesman for L.A. County Supervisor Zev Yaroslavsky. “It’s egregious and outrageous at every level.”
By that time, several other AB-109 offenders had been accused of high-profile violent crimes. In December 2012, Ka Pasasouk allegedly shot four people to death outside a boarding home in the L.A. suburb of Northridge; in April, Tobias Summers was charged with kidnapping a 10-year-old girl from her Northridge home. An analysis of the first year of AB 109 releases to L.A. County found that more than 30 percent of the 11,000 inmates placed under county supervision during the year were rearrested for crimes including 16 murders, 23 attempted murders and 205 robberies, along with other less serious crimes.
“The governor’s failed realignment program is a proven threat to public safety which has overwhelmed probation departments and local law enforcement agencies statewide,” Supervisor Michael Antonovich said in response to the Summers case.
Crime victim advocate Marc Klaas called AB 109 a “felon dump,” and the founder of Army of Angels, a coalition of child advocates, urged repeal of the law. With the Calderon slaying adding to the outrage, the L.A. County supervisors approved Yaroslavsky’s motion ordering the probation department and other agencies to provide a full report on the chronology of relevant events from Kinnear’s release to the murder.
The agencies responsible for AB-109 offenders “must determine whether current laws or procedures are adequate to protect against any of the possible gaps in the AB 109 process,” Yaroslavsky said.
That chronology was redacted from a version of the report that was made public in August. However, a copy of the timeline obtained by MintPress details a convoluted tale of bureaucratic missteps beginning with county probation not receiving Kinnear’s file from the state corrections department until the day before his release. That, apparently, was far from unusual. After AB 109 went into effect, Lin recalled, “FedEx was dropping off state prison files [when] the offenders were at the door.”
Between April 10 and May 29, the timeline shows, Kinnear repeatedly failed to report to his probation officer in the San Fernando Valley and was arrested for providing a false ID to a police officer and for battery. At the direction of the probation department, he served three “flash” incarcerations at the Twin Towers jail, where he was evaluated by mental health specialists and assured officials that, on his release, he would live with friends and seek employment.
Due apparently to a delay in updating court records, the probation department was not aware of Kinnear’s false ID arrest. The department was also not informed of the May 26 battery arrest until three days later — by which time Kinnear had served his time in jail and was back on the streets of Hollywood. According to the report, Kinnear’s parole might have been revoked and he might have been returned to state prison if not for these inter-agency communication breakdowns.
“[T]he department is struggling with integrating the multiple data systems maintained by multiple law enforcement agencies that would allow us to more efficiently flag a new arrest by [an AB 109] offender,” the report said.
The report also found that the department’s response to Kinnear’s “frequent noncompliance events” was “less than optimal” given his many issues.
“The county probation department dropped the ball,” Bellman told MintPress in an interview. “They never really went after him … The [Los Angeles Police Department] were the only ones doing their jobs.”
Attorney Donald Specter heads the Prison Law Office and represents the inmates whose lawsuits ultimately forced California to address prison overcrowding. In October, he won another victory when the Supreme Court refused to hear Gov. Brown’s appeal of the three-judge panel’s order to release another 9,600 inmates. The state has until April to comply.
According to Specter, rehabilitation is a rational — and cost-effective — alternative to expanding prison construction and locking up more offenders.
“You really can’t build your way out of the problem,” he said. Brown’s revised 2013-14 budget allocated $107 million to county probation departments for AB-109-related costs. Local supervision of offenders is “much cheaper and more effective than prison,” Specter said.
In its October report, the Public Policy Institute of California found that between 3.5 and seven times as many crimes would be prevented by spending an additional one dollar on police rather than on prison incarceration.
“[S]afer and smarter approaches to corrections and crime prevention are within reach,” it recommended. “As the realignment process continues to unfold, the state — and the counties — should look to a variety of ways to effectively, and cost-efficiently, handle their public safety responsibilities.”
Two years after local governments were thrust into the experiment of realignment, there are signs that they are adjusting to the law and trying to improve their enforcement of it. The Los Angeles County probation department, which is responsible for about one-third of all AB-109 offenders, has created a “complex case committee” to ensure that cases of of ex-cons who don’t report to probation officers don’t fall through any cracks. Other proposals include expanding residential and outpatient programs for offenders with mental health disorders and seeking state funding for mobile response teams that could serve the AB 109 population.
“Dustin Kinnear is not a good example of AB 109 in general,” Lin insisted.