Category Archives: Department of Corrections

Skagit County Jail: Who Will Provide Inmate Medical Care?

According to Stone’s article, Skagit County currently employs jail medical staff itself, saving money over contracting for services while accepting sole responsibility for union negotiations and potential malpractice lawsuits. At an estimated $1.9 million a year, county-provided services at the new jail would be cheaper than contracting with NaphCare, a private, Alabama-based jail healthcare company that has expressed interest in working with the county.

Private-sector estimates come in at about $2.1 million, Neill Hoyson said. Both the county and private-sector numbers factor in an expected increase in inmate population at the larger jail – with 400 beds, the new jail is much larger than the current 83-bed facility.

Both plans would provide for about 12 full-time equivalent positions. Neill Hoyson said county staff recommend hiring a consultant to evaluate the different models, but that recommendation was not discussed by the commissioners.

Dr. Marc Stern, an assistant professor at the University of Washington’s School of Public Health, told the commissioners Tuesday that by spending about $3,000 to $4,000 per inmate per year, Skagit County currently falls on the lower end of the spectrum for jail medical care. The new plans would increase that number to about $8,000.

Jail inmates tend to have more health issues than the general population, he said. Studies indicate that investments in medical care for inmates tend to save money for the public health system when those inmates return to the community, he said.

However, Mr. Stern, stakeholders from the jail and the commissioners were skeptical about privatization.

“I think privatization is more expensive,” Stern said. “(To make a profit), it has to be.”

Chief of Corrections Charlie Wend said he has worked to build relationships between the jail and mental health and drug addiction treatment facilities in the community. Those relationships may not carry over to a private provider, he said.

“There are just some functions of government that should stay with the government,” Wend said.

However, Stern anticipated NaphCare would have an easier time hiring medical staff because it would pay higher wages. The county has said it’s had trouble with staffing because it can’t offer competitive wages. Skagit County’s Jail Finance Committee, made up of city and county representatives, meets Sept. 20, and the commissioners are expected to come to the table with a suggestion.

My opinion? Granted, I know very little about the discussion and what the real issues are. My knee-jerk reaction, however, is that privatization is not the answer. In Prison Healthcare: Medical Costs, Privitization, and Importane of Expertise, author Kip Piper discusses the pros and cons of outsourcing medical care to prison inmates. I’m confident those involved will make the right decision.

Overbroad Parolee Searches

Image result for parolee searches

In State v. Livingston, the WA Court of Appeals Division II held that evidence collected during a warrantless search of the defendant’s vehicle following the defendant’s arrest on a D.O.C. warrant is only admissible if there is a nexus between the community custody violation and the searched property.

On May 29, 2014, DOC Officer Thomas Grabski observed a person, later identified as Darian Livingston, who he recognized as having an outstanding DOC arrest warrant; Livingston was washing a vehicle alone at a car wash. Officer Grabski called for assistance, and two more officers arrived to assist him.

When the additional officers arrived, Livingston was talking with a person on a motorcycle. The person on the motorcycle drove away when the officers approached. Livingston was the only person near the vehicle. After confirming Livingston’s identity and the warrant, the officers arrested Livingston.

The officers then asked Livingston about the vehicle he had been washing. He said it belonged to his girlfriend who had gone to a nearby store, but he later admitted that his girlfriend was in Seattle and could not pick up the vehicle.

Livingston also admitted that he regularly drove the vehicle and that he had placed the key on the motorcycle when he first saw the officers. At the time of his arrest, Livingston was on active DOC probation. The DOC warrant issued in his name said there was “reasonable cause to believe Mr. Livingston] violated a condition of community custody.

DOC Officers Grabski and Joshua Boyd conducted a “compliance search” of the vehicle. When they conducted the search of the vehicle, the officers did not have any information about the nature of the violation that triggered the issuance of the DOC warrant.

Inside the vehicle, the officers found mail and other documents with Livingston’s name on them, a single pill, and a prescription bottle containing eight pills. In the vehicle’s trunk, the officers found a black backpack containing scented oils, a loaded .40 caliber handgun, a box of ammunition, and more mail addressed to Livingston. During booking, Livingston revealed that he was also carrying a baggie of cocaine on his person.

The State charged Livingston with first degree unlawful possession of a firearm (count I), unlawful possession of a controlled substance with intent to deliver (cocaine) (count II), bail jumping (count III), unlawful possession of a controlled substance (oxycodone) (count IV), and unlawful possession of a controlled substance (hydrocodone/dihydrocodeinone) (count V). Before trial, Livingston moved to suppress the evidence discovered during the vehicle search. The judge denied Livingston’s motion. He appealed.

Livingston argued that the trial court erred in deciding that the vehicle search was lawful under RCW 9.94A.631(1) because the officers had a reasonable belief that he had violated a community custody condition or sentencing requirement. Instead, he asked the Court of Appeals to follow State v. Jardinez and hold that to justify such a search, the property searched must relate to the violation that the community custody officer (CCO) believed had occurred.

First, the Court of Appeals reasoned that both article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution prohibit warrantless searches unless an exception exists. Washington law recognizes, however, that probationers and parolees have a diminished right of privacy that permits warrantless searches based on reasonable cause to believe that a violation of probation has occurred. This reduced expectation of privacy for parolees is recognized in RCW 9.94A.631(1), which states,

If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a [CCO] may require an offender to submit to a search and seizure of the offender’s person, residence, automobile, or other personal property.

Second, the Court reasoned that pursuant to State v. Jardinez, there must be a nexus between the violation and the searched property. In Jardinez, the defendant’s parole officer searched his iPhone for no reason and found evidence linking Mr. Jardinez to criminal behavior. He was charged and convicted. On his appeal, the Court of Appeals examined the following official comment from the Sentencing Guidelines Commission (Commission) on RCW 9.94A.631(1):

“The Commission intends that [CCOs] exercise their arrest powers sparingly, with due consideration for the seriousness of the violation alleged and the impact of confinement on jail population. Violations may be charged by the [CCO] upon notice of violation and summons, without arrest. The search and seizure authorized by this section should relate to the violation which the [CCO] believes to have occurred.”

Noting that Washington courts “have repeatedly relied on the Commission’s comments as indicia of the legislature’s intent,” Division Three concluded that the italicized portion of this comment “demands a nexus between the searched property and the alleged crime.” Following Jardinez, the Court of Appeals held that the trial court erred when it failed to consider whether there was a nexus between the violation and the searched property.

With that, the Court affirmed Mr. Livingston’s bail jumping conviction, count III, and his unlawful possession of a controlled substance conviction charged as count II. However, the court reversed the order denying Livingston’s motion to suppress the evidence discovered in the vehicle search and remanded Livingston’s case back to the trial court for further proceedings consistent with this opinion.

My opinion? Good decision. i blogged about Jardinez in another post, and found that opinion compelling as well. Excellent use of prior precedents and stare decisis.

Jails Aren’t Liable to Control Released Inmates.

Image result for freed jail inmates

In Binschus v. Skagit County, the WA Supreme Court held a jail’s duty to supervise and control inmates during incarceration does not include a general duty to somehow prevent inmates from committing crimes after they are lawfully released from incarceration.

Isaac Zamora was incarcerated at Skagit County Jail for nonviolent crimes from April 4, 2008, until May 29, 2008, when he was transferred to Okanogan County Corrections Center. Zamora then served the rest of his sentence at Okanogan County Corrections Center and was released on August 2, 2008.

On September 2, 2008, Zamora had a psychotic episode and went on a shooting spree in Skagit County. He ultimately killed six people and injured several others.

Some of his victims and their families sued a number of parties, including Skagit County. The plaintiffs alleged that Skagit County failed to exercise ordinary and reasonable care while Zamora was incarcerated in Skagit County Jail several months prior to the shooting.

The trial judge granted summary judgment to Skagit County and ultimately dismissed the causes of action against the Skagit County jail. The Court of Appeals reversed. Ultimately, the case was appealed to the WA Supreme Court.

The Court reasoned that, as a general rule, people and institutions are not responsible for preventing a person from physically harming others. However, there is an exception when a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct.

Although the  “duty to control” relationship naturally extends between a jail and an inmate, the court clarified, when the relationship begins and when it ends:

“We did not previously, and do not today, expand it to a general duty to prevent a person from committing criminal acts in the future . . . The practical implications of imposing such a broad duty on jails are striking. By some estimates, the recidivism rate is well over 50 percent . . . Thus, one could argue that in almost any case, it is foreseeable that an inmate may commit another crime after release. Are jails civilly liable for those crimes if they failed to take adequate measures to prevent that foreseeable recidivism? Such an expansive interpretation is not supported . . .”

With that, the WA Supreme Court concluded that jails have a responsibility to control violent inmates while they are incarcerated, but they do not have a general duty to prevent such inmates from committing crimes after they are lawfully released from incarceration.

Prisoners on Strike

Reporter Alice Sperry of theintercept.com  wrote an article describing how prisoners around the country have called for a series of strikes against forced labor and  demanded reforms of parole systems and prison policies; as well as more humane living conditions, a reduced use of solitary confinement, and better health care.

Apparently, Texas prisons are a hotbed for the controversy. Weeks ago, inmates at five Texas prisons pledged to refuse to leave their cells because of the strike. The organizers even drafted a letter articulating the reasons for the strike. Their demands range from the specific, such as a “good-time” credit toward sentence reduction and an end to $100 medical co-pays, to the systemic, namely a drastic downsizing of the state’s incarcerated population.

The 13th Amendment to the United States Constitution bans “involuntary servitude” in addition to slavery, “except as a punishment for crime whereof the party shall have been duly convicted . . .”

Today, however, the prison industrial complex is $2 billion a year industry, according to the Prison Policy Initiative, a nonprofit research institute.

Sperry article describes how a majority of prisoners work for the prisons themselves, making well below the minimum wage in some states, and as little as 17 cents per hour in privately run facilities. In Texas and a few other states, mostly in the South, prisoners are not paid at all, said Erica Gammill, director of the Prison Justice League, an organization that works with inmates in 109 Texas prisons.

“They get paid nothing, zero; it’s essentially forced labor,” she told The Intercept. They rationalize not paying prison laborers by saying that money goes toward room and board, to offset the cost of incarcerating them.”

In Texas, prisoners have traditionally worked on farms, raising hogs and picking cotton, especially in East Texas, where many prisons occupy former plantations.

Although they comprise nearly half the incarcerated population nationwide — about 870,000 as of 2014 — prison workers are not counted in official labor statistics; they get no disability compensation in case of injury, no social security benefits, and no overtime.

The Texas action is not an isolated one. Prisoners in nearby Alabama and Mississippi, and as far away as Oregon, have also been alerted to the Texas strike through an underground network of communication between prisons.

In March, protests erupted at Holman Correctional Facility, a maximum security state prison in Alabama, where two riots broke out over four days. At least 100 prisoners gained control of part of the prison and stabbed a guard and the warden. Those protests were unplanned, but prisoners there had also been organizing coordinated actions that they say will go ahead as planned.

“We have to strain the economics of the criminal justice system, because if we don’t, we can’t force them to downsize,” an activist serving a life sentence at Holman told The Intercept. “Setting fires and stuff like that gets the attention of the media,” he said. “But I want us to organize something that’s not violent. If we refuse to offer free labor, it will force the institution to downsize.”

“Slavery has always been a legal institution,” he added. “And it never ended. It still exists today through the criminal justice system.”

“Good Time” Early Release

A recent news article from The News Tribune and the Bellingham Herald discussed how inmates earn time off their sentences. Also, earned release time is at the heart of the mistaken early release of inmates that is roiling the state prison system.The scandal has shown just how complicated the calculations involved can be, requiring software whose programming errors freed as many as 3,200 inmates early yet went undetected for a decade. At least two of the inmates prematurely released were later charged with deaths that happened while they should have been in prison.

These recent developments inspired this blog.

Although I’m highly successful at resolving serious criminal cases in a manner which avoids prison sentences, if prison is unavoidable then I do my best to reduce and/or amend their criminal charges in a manner which allows for early release through “Good Time.” It’s time to clarify some misunderstandings about what “Good Time” really is.

THE BASICS

“Good Time” is governed by RCW 9.94A.728 and RCW 9.94A.729Washington’s Department of Corrections does not allow Good Time to individuals serving life without parole or sentenced to death. Also, Good Time cannot reduce a mandatory minimum prison sentences. There is no good time awarded on deadly weapon or firearm enhancement time. DOC does not award good time for sexual motivation enhancements. There is no good time awarded when confinement is imposed on conviction of a sex offense under Washington’s Special Sex Offender Sentencing Alternative (SSOSA).

DOC uses specific terms for what we call good time: DOC calculates “earned release time” (ERT) as a combination of “good conduct time” and “earned time credit.”  “Good conduct time” is time awarded for good behavior and “earned time credit” is time awarded for participating in DOC approved programming such as work and school.  A person who earns early release time and who shall be supervised by DOC will be transferred to community custody in lieu of earned early release. A comprehensive guide to good time and other related issues can be found at the DOC web site.

CAN OFFENDERS GET 50% OFF?

No. Under state law, the 50% good time rule expired on July 2, 2010, and has not been reinstated.

WHAT CALCULATES POTENTIAL “GOOD TIME?”

The chart below lists the potential good time that an inmate can receive.  Individuals may not be released on their early release date if they do not have a Release Plan, even if they have earned the time.

Crime type/classification Eligible Good Time Notes
Serious Violent or Class A Sex Offense Up to 10% if sentenced on or after 7/1/2003

 

Up to 15% for individuals sentenced from 7/1/90-7/1/2003
All other offenses Up to 33%

For all individuals sentenced July 2, 2010 and after, unless they are sentenced as a persistent offender.

Previously – up to 50% for certain offenses, depending upon risk level and other factors, if sentenced July 1, 2010 and before.

 

For the most part, offenders may receive 10% – 33% off for “Good Time.”

RISK ASSESSMENT TOOL

In 2009, the DOC implemented a standardized assessment which conducts an offender’s risk assessment upon arrival. That assessment determines the offender’s classification. Factors include criminal history (including in other states), current crime, and history and type of infractions. The “tool” is supposed to be more effective at determining risk. From DOC’s standpoint, this approach is supposed to be more effective at determining risk.

However, the Defense Bar has criticized DOC’s standardized assessment criteria as being “static” and “inflexible.”  Before 2009, individuals could see their classifications change for the better. Now, however, it doesn’t ever improve for the better– the risk category stays the same or gets worse.

ARE IN-CUSTODY PROGRAMS AVAILABLE?

Washington’s prisons house more than 16,000 people. More than 2,000 of them work for Correctional Industries, which is one way inmates can qualify for earned release time. Another 1,000 are on the waiting list, according to the job-training program.

About 9,000 are involved in some kind of education program, according to the community-college system that runs the programs. Hundreds more are on waiting lists for classes. The college system offers high-school level education, vocational training, and other programs such as job-search, parenting and anger-management courses. State law doesn’t allow state money to be used to award associate degrees.

Keeping all of this in mind, it’s imperative for defense attorneys to properly advise clients facing prison sentences of their eligibility for earned release and opportunity for rehabilitative programs.

Bill Seeks Prison Time for Drone Crimes

Drone and Moon

Interesting news article from the Skagit Valley Herald. In an article titled, “Senate OKs Bill That Would Add Prison Time For Drone Crimes,” The WA Senate passed a bill that would allow prosecutors to seek an extra year in prison for offenders who use a drone aircraft while committing a crime.

Senate Bill 5499 passed on a 34-15 vote Tuesday and now heads to the House forconsideration. It adds the allegation of a “nefarious drone enterprise” to Washington criminal law. The state currently has no restrictions on the use of drones, although 20 other states have enacted laws on drone-related issues.

The bill adds a year to the sentencing range that dictates how judges can punish an offense. The measure was one a handful of other bills concerning drones that were filed in the Legislature this session in the wake of Gov. Jay Inslee’s veto of a bill last year that would have restricted how state and local government agencies use the unmanned aircraft.

My opinion? Although sad, Senate Bill 5499 was foreseeable. For example, under  RCW 46.20.285, defendants convicted of felonies get their driver’s licenses revoked for 1 year if a vehicle was used during the commission of a crime. It makes sense, therefore, that Prosecutors would get aggressive toward defendants if drones were used to further the commission of a crime. Sad but true.

What Caused the Decline In Crime?

Interesting reading.

A new report examines the dramatic drop in crime nationwide over the past two decades — and analyzes various theories for why it occurred.

In What Caused the Crime Decline? a team of economic and criminal justice researchers examined over 40 years of data, gathered from 50 states and the 50 largest cities. Their work examines one of the nation’s least understood recent phenomena – the dramatic decline in crime nationwide over the past two decades – and analyzes various theories for why it occurred. It concludes that over-harsh criminal justice policies, particularly increased incarceration, which rose even more dramatically over the same period, were not the main drivers of the crime decline. In fact, the report finds that increased incarceration has been declining in its effectiveness as a crime control tactic for more than 30 years. Its effect on crime rates since 1990 has been limited, and has been non-existent since 2000.

More important were various social, economic, and environmental factors, such as growth in income and an aging population. The introduction of CompStat, a data-driven policing technique, also played a significant role in reducing crime in cities that introduced it.

The report concludes that considering the immense social, fiscal, and economic costs of mass incarceration, programs that improve economic opportunities, modernize policing practices, and expand treatment and rehabilitation programs, all could be a better public safety investment.

Nobel laureate Dr. Joseph E. Stiglitz called the report “groundbreaking” in a foreword.

This is ineresting reading. Also, their research contained information on how/why specific states’ dropoff in crime happened.

 

State v. Jardinez: Parole Officer Conducts Overbroad Search of Defendant’s iPod

Good decision.

A community corrections officer’s (CCO) review of video on a parolee’s iPod Nano violated the parolee’s constitutional rights because the CCO did not have a reasonable suspicion based on articulated facts that the iPod Nano contained evidence of past, present or future criminal conduct or violations of the parolee’s conditions of release.

http://www.courts.wa.gov/opinions/pdf/313085.pub.pdf

The defendant Felipe Jardinez was an parole for Drive-By Shooting and Unlawful Possession of a Firearm Second Degree. He served prison time followed by 18 months of community supervision. The conditions of community custody included requirements to report to his CCO, refrain from possessing controlled substances and refrain from possessing firearms.

On November 3,2011, Felipe lardinez missed a scheduled meeting with his CCO. The CCO called Jardinez. The two scheduled to meet the next day. During the appointment, Martinez asked Jardinez to submit to a urinalysis test. Jardinez admitted that the test would show marijuana use.

The CCO instructed Jardinez to empty his pockets. Jardinez placed an iPod Nano onto a desk. The CCO was interested in the iPod because parolees occasionally take pictures of themselves with other gang members or “doing something they shouldn’t be doing.” When the CCO handled the iPod, Jardinez appeared nervous. Nevertheless, the CCO lacked facts that the iPod video player would show evidence of a crime or violation of the conditions of the defendant’s community custody.

The CCO accessed the iPod. He found a video recorded earlier that morning. The CCO played the video. It showed  Jardinez pumping a shotgun in his bedroom. Jardinez was arrested. Police searched his home and found the shotgun seen in Jardinez’s iPod video.

Jardinez was charged with Unlawful Possession of a Firearm First Degree. Jardinez moved to suppress the evidence obtained through the CCO’s search of his iPod, and all evidence seized as a result of law enforcement officers searching his home as the spoiled fruit of the unlawful viewing of the video on his iPod.

The trial court granted Felipe Jardinez’s motion to suppress. The court concluded that a warrantless search of the iPod would be justified only if the CCO had a reasonable suspicion based on articulated facts that the device contained evidence of past, present or future criminal conduct or violations of the defendant’s conditions of community custody. The case went up on appeal.

At issue was whether the CCO had legal authority to search the content of Jardinez’s iPod when the CCO did not expect the search to yield evidence related to either of the known parole violations, Jardinez’s failure to appear, or his marijuana use.

The Court of Appeals reasoned that unless an exception is present, a warrantless search is impermissible under both article I, section 7 of the Washington Constitution and the Fourth Amendment to the U.S. Constitution. A trial court may suppress evidence seized from an illegal search under the Exclusionary Rule or the Fruit of the Poisonous Tree Doctrine.

The Court further reasoned that Washington law recognizes that probationers and parolees have a diminished right of privacy that permits a warrantless search based on probable cause. Parolees and probationers have diminished privacy rights because they are persons whom a court has sentenced to confinement but who are serving their time outside the prison walls. Therefore, the State may supervise and scrutinize a probationer or parolee closely.  Nevertheless, this diminished expectation of privacy is constitutionally permissible only to the extent necessitated by the legitimate demands of the operation of the parole process.

RCW 9.94A.631 provides exceptions to the warrant requirement. RCW 9.94A.631(1) reads:

If an offender violates any condition or requirement of a sentence, a community corrections officer may arrest or cause the arrest of the offender without a warrant, pending a determination by the court or by the department. If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a community corrections officer may require an offender to submit to a search and seizure of the offender’s person, residence, automobile, or other personal property.

Also, the Court based its decision principally upon the Sentencing Guidelines Commission’s comment about RCW 9.94A.631(1). The Commission wrote as its official comment behind the statute:

The Commission intends that Community Corrections Officers exercise their arrest powers sparingly, with due consideration for the seriousness of the violation alleged and the impact of confinement on jail population. Violations may be charged by the Community Corrections Officer upon notice of violation and summons, without arrest. The search and seizure authorized by this section should relate to the violation which the Community Corrections Officer believes to have occurred.

Based on the court’s reading of the statute and its counterpart comment, it found RCW 9.94A.631 did not authorize the CCO’s warrantless search of the contents of Jardinez’s iPod. It affirmed the trial court’s suppression of the evidence of Felipe Jardinez’s unlawful possession of a firearm.

My opinion? Good decision. I’ve posted similar blogs stating that CCO’s and probation officers exercise too much power over defendants. This certainly is one of those cases.

DOC: Budget Cuts Will Force Offenders to go Unsupervised

http://www.king5.com/localnews/stories/NW_042809WAB-doc-budget-KS.11e17c7db.html

Department of Corrections (DOC) Secretary Eldon Vail says the DOC witll stop supervising 9,000 people due to decreased state budgets.  The group includes property, drug, and non violent offenders.  The most violent offenders and high-level sex offenders, however, will not see a change in supervision or management.  Additionally, inmate beds will be reduced.  One DOC prison will also be closed.

Some worry that crime will increase.

My opinion?  Again, the embattled economy has caught up with the criminal justice system.  It’s interesting what happens when we’re forced to tighten our belts, both individually and collectively.  On an individual level, we spend less on luxury items.  We hope that our sacrifices are enough to pull us through hard times.  If not, we consider more drastic measures, and perhaps (gasp) a total retooling of our spending habits.

Collectively, our weakened economy makes our lawmakers to realize that jailing low-level crimes is an expensive luxury.  I’ve often blogged that incarceration is THE MOST EXPENSIVE solution to crime and punishment.  We can’t afford to blindly warehouse people any more.  It isn’t the answer.

New Findings: Decline in Black Incarceration for Drug Offenses

http://sentencingproject.org/Admin%5CDocuments%5Cpublications%5Cdp_raceanddrugs.pdf.

For the first time in 25 years, since the inception of the “war on drugs,” the number of African Americans incarcerated is state prisons for drug offenses has declined substantially.  According to a recent study released by The Sentencing Project, there exists a 21.6% drop in the number of blacks incarcerated for a drug offense.  This presents a decline of 31,000 people during the period 1999-2005.

Why the decrease?  The study shows that many states are softening their approach to crime by reconsidering overly punitive sentencing on defendants.  Diversionary programs are also being re-examined.  The changing approach is, not surprisingly, inspired by fiscal concerns.  Policymakers recognize that skyrocketing corrections costs cut into public support for higher education and other vital services.

Second, at the federal level, the U.S. Sentencing Commission has enacted changes in the sentencing guidelines for crack cocaine offenses, and members of Congress are considering proposals to reform the mandatory penalties for crack offenses.

My opinion?  Ironically, the recession has spurred positive changes in the criminal justice system.  Many lawmakers realize the foolishness behind incarcerating people for low-level drug offenses.  Also, I believe the “War on Drugs” has changed tactics.  Nowadays, police are more interested in busting defendants for methamphetamine (meth) than crack cocaine.  Meth is considered  a much larger risk to public safety and health.  Meth is also largely used/possessed by non-minorities.   This is partially because most meth labs are found in rural destinations; which have more caucasians, and not so much in the inner city, where more minorities dwell.

Just my two cents . . .