Federal Judge Enforces "Valdivia Remedial Plan"
for California Parole Violators

On June 8, 2005, the United States District Court enforced its order in Valdivia v. Davis, 206 F.Supp.2d 1068 (E.D. Cal. 2002) [PLN, Jan.2003, p.16] and its March 9, 2004 Stipulated Permanent Injunction implementing the ensuing Valdivia Remedial Plan" (VRP) [PLN, Apr.2004, p.24], after California's Secretary of Corrections Roderick Hickman unilaterally announced (Hickman Memo) that effective April 11, 2005, California would no longer offer alternatives to re-incarceration for technical violators of parole.

In so doing, Hickman buckled under political pressure from the powerful prison guards union (CCPOA) and its puppet victims' rights organizations who, emboldened with six-figure CCPOA cash infusions, ran TV and billboard ads in central California claiming the VRP threatened public safety" and that all parole violators should simply be imprisonedeven if that meant violating their court-affirmed constitutional rights to prompt and fair parole revocation hearings.

The enforcement came swiftly after the prisoners' attorneys Donald Specter of the San Quentin, California, Prison Law Office (PLO) and Michael Bien filed a motion for enforcement and civil contempt against Hickman on April 13, 2005. The court addressed two areas of VRP non-compliance. First, Hickman's fiat abolished the remedial sanction options (i.e., in lieu of revocation) of Electronic Monitoring [ankle bracelets] and Substance Abuse Treatment Control Units (SATCU) [90 day voluntary residential drug programs]. Second, Hickman eliminated the alternative of Community Correctional Reentry Centers (CCRC) [Halfway Back" program]. The questions before the court were whether these two actions violated the VRP and if so, did they constitute civil contempt.

Structured Care Programs
Ordered Reinstated

Hickman argued to the court that there were really two instruments, the Permanent Injunction (PI) and the VRP, and because the language of the PI did not detail the remedial sanctions, the state was free to unilaterally drop them. The court rejected this narrow interpretation. Focusing upon the plain language of the PI, the court noted that it specified that [t]he Policies and Procedures will provide for implementation of the August 31, 2003 Remedial Outline." In other words, the VRP was literally attached to and became a part of the PI. Applying Federal Rules of Civil Procedure 65(d) [the four corners" rule], the court held that such attachment and reference made it inescapable that Hickman was bound by both the PI's and VRP's terms.

Reviewing what was made mandatory by the VRP, the court found that the PI commanded Hickman to (1) consider remedial sanctions throughout the new parole revocation process, and that the remedial sanctions include (2) the Substance Abuse Treatment Control Units, Electronic Monitoring, Self-Help Outpatient/aftercare programs and alternative placement in structured and supervised environments.'" Since the Hickman Memo creates a new policy and practice which prohibits..." all of the above, it violated the PI. The court granted the plaintiffs' motion in part and ordered that the defendants were in violation of the Permanent Injunction Order by virtue of the elimination of remedial sanctions of Electronic Monitoring and SATCUs.

Residential Care Programs
Not Protected

Closing the CCRCs was a closer question." Parsing the PI's language, the court determined that if Hickman would still keep the Self-Help" and alternative placement in structured and supervised environments" available, potential parole violators could still avail themselves of this option. The court accepted Hickman's explanation that these options include the Substance Abuse Recovery and Treatment (STAR) program, a classroom alternative available at local parole offices. Valdivia's counter-argument that STAR was unacceptable because it was not a residential" program was not persuasive because residential" was nowhere announced in the VRP or other authority. This gave Hickman discretion" to tailor such programs, and since the court must accord deference to the appropriate prison authorities" (citing Turner v. Safley, 482 U.S. 78, 85 (1987)), the closure of the CCRCs was deemed not in violation of the PI.

Finally, the court found that Hickman's actions were at most erroneous, [but] arguably reasonable," and as such, did not rise to the level of bad faith necessary to constitute civil contempt.

Political Controversy Continues

But the court's enforcement did not end the political controversy. Of California's 114,000 parolees, 19,380 (7,000 in Los Angeles County alone) were reported in June 2005 as being at large," that is, not having reported to their parole agents. Daniel Macallair, director of the Center on Juvenile and Criminal Justice in Oakland, opined, We have too many inmates and not enough (rehabilitation) programs. The most neglected area is the entire field of parole. We are not able to provide any kind of meaningful re-entry services to help them make the transition from prisons to the streets. You couldn't invent a worse system." Los Angeles County Assistant Police Chief George Gascon concurred, we are failing miserably ... in the ability to provide people coming out of institutions the opportunity to rehabilitate themselves. Parole agents are overwhelmed.
Whenever a parolee not returned to custody (or kept there) per the VRP thereafter commits a new crime, the CCPOA and its victims' rights mouthpiece raise a hue and cry. When parolee Daniel McEvoy of Auburn, California, a sex offender, was released on May 6, 2005 because his VRP due process rights had not been timely met, it was alleged that three days later he raped a woman (but no charges were filed). He was at last reported a parolee-at-large, having not reported nor filed sex-offender registration notices giving his current whereabouts. Another poster-boy" was five-time parolee Royce Timmons, who upon being released to a substance abuse treatment alternative program in January, 2005, failed to attend and instead went on a six-day crime spree of drug abuse, robbery, stabbing, carjacking, and multiple kidnaps and rapes in San Bernardino County.

Guards Union Calls VRP Public Safety Failure

Not missing the opportunity, CCPOA Vice President Chuck Alexander said that without the [long-established Morrissey v. Brewer, 408 U.S. 481 (1972) constitutionally based] time constraints, the Board of Prison Terms could have continued [McEvoy's] hearing to find the [no show] witnesses," adding, this is a good illustration of one of the major flaws of the Valdivia decree." Or, restated more bluntly, Forget the parolees' constitutional rights." Ray McNally, CCPOA political consultant, was more honest, noting the possibility of political fallout that might harm Governor Schwarzenegger. Between January 1 and May 1, 2005, at least 231 parolees had been released from custody due to missing the 35-day VRP due process deadline, according to the Sacramento Bee.

The Big Lie" underlying the CCPOA-spawned hype about the danger of not simply re-incarcerating every parole violator [to fill empty prison beds] was blindly accepted in recent California Senate hearings. At the end of 2004, there were 2,529 (4.1%) fewer technical parole violators in California's prisons than there were at the end of 2003, but 2,141 parolees with new crimes had been added back to the prison population.
From these statistics, the CCPOAin television ads paid through their funded agent Crime Victims United of California president Harriet Solarnoinverted the logic and argued that not having incarcerated those now re-committed violators only served to spawn that many new avoidable crimes against, the public, and that therefore the experiment of alternative sanctions was a public safety failure.

The Statistics Tell Another Story

The fatal flaw in this argument is that the prison population in California is physically capped at about 165,000, and thus any new bodies coming to prison numerically absorb the variable slack" of bed-vacancy-driven parole violators who would have otherwise been purposefully swept up by union parole agents to fill those beds. In fact, California's parole-agent controlled technical-violator return-to-custody occupancy has declined from 74,000 (50% of the total prison population) in 2000 to about 41,000 currently, due solely to increasing non-violator population growth connected to harsher sentencing laws [e.g., Three Strikes] and California's vaunted no-parole policy for lifers. (See: PLN, Mar.2005, pp.1-8, California's Corrections System Officially Declared Dysfunctional; Redemption Doubtful.) Things got so bad that on June 10, 2005, CDC parole administrator Ed Carnegie issued a memo to parole supervisors to cut back on parole sweeps due to major overcrowding in State Prison Reception Centers," adding, things are really tight' in the institutions." It does not look good for the department. It is California's national shame that it returns more parolees to custody on technical violations than the total from 39 other statesbut it is no accident.

Victims' and Governor's
Interests Mold Policy

While the CCPOA circled its mobile billboard around the state Capitol, attacking Hickman as being soft on crime, an excited Solarno exclaimed about the Hickman Memo, You're kidding! You mean my commercial did it? This is step one, but we have a lot more to do." PLO attorney Specter's assessment of the Hickman Memo was more candid: I certainly hope they're not caving in to pressure from the unions based on the fact that the governor's poll ratings seemed to be declining." See: Valdivia v. Davis, U.S.D.C. (E.D. Cal.) No. CIV S-94-0671 LKK/GGH, Order, June 8, 2005. The ruling is available on PLN's website.

Other sources: Sacramento Bee, Los Angeles Times, Associated Press, Los Angeles Daily News.

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