by Sam Levin
Part One: Victim Discrimination
A state program that’s supposed to help crime victims denies people who have had run-ins with the law or are afraid of being victimized again.
The front door was wide open when police arrived at the home of Samantha Rogers at 3:21 a.m. on February 23, 2010. Inside the Stockton, California apartment, Rogers was alone, sitting on the kitchen table, wiping her face with a towel. The television was overturned and there was blood smeared across the living room carpet and walls.
Rogers didn’t think she needed to go to the hospital. “I was like, ‘There’s nothing wrong with me. I’m okay,’” Rogers, now 46, recalled. “They could see I was in shock.”
Rogers was not okay. Her whole face was swollen, she had a large cut under her eye and her nose was broken, according to a Stockton Police Department report and Rogers’ own recollection of the incident. Earlier that night, she and her boyfriend of three years had invited friends over to play cards and dominoes at their shared home. At one point, the couple got in an argument about money, and Rogers’ boyfriend started getting violent. The guests “decided to leave before things escalated,” the police report stated. On their way out, the friends could hear Rogers screaming for help, but they did not call police. Eventually, a neighbor did. By then, Rogers’ boyfriend had dragged her on the floor and punched and kicked her in the face and head multiple times, the report said.
When cops arrived, the boyfriend was already gone – and he had taken her wallet and credit card with him.
Police immediately called in medics, who tried to convince Rogers that she needed to go to the emergency room. “They were like, ‘Ms. Rogers, you don’t understand how bad you’re messed up. We can see, because we’re looking at you,’” she recalled. Finally, they found a pocket mirror in her bedroom and handed it to her.
“I just started crying,” she said. “My face was unrecognizable.”
At St. Joseph’s Medical Center, doctors told her she needed five sets of stitches, but that was not the only bad news she received. Soon after, she learned that the California Victim Compensation Program, which provides financial assistance to victims of violence, would not give her a dime of support. At the time, Rogers was on felony parole, which automatically disqualified her from receiving any aid from the state. She had been released from state prison a year earlier after more than seventeen years in and out of the criminal justice system for a range of nonviolent, victimless crimes, mostly tied to drug offenses and her battle with substance abuse. Rogers said that when she was attacked in 2010, she still had roughly eight more months left on parole. That meant the state would not help her with one of her most pressing needs – moving away from her home in Stockton where her ex-boyfriend could find her.
Just a few weeks after Rogers went to the hospital, an official from the San Joaquin County District Attorney’s Office informed her of the state’s Victim Compensation rules. “They said there’s nothing they could possibly do to help me in any way,” she said. “I had to keep my cool. But in actuality I was outraged. I was like, fucking for real? Parole is stopping me from getting the support I need? Just because I’m on parole or ... had something to do with another crime that makes me less qualified to get help?”
“That makes me feel like I’m less human,” Rogers continued, noting that finding a new place to live away from her violent ex-boyfriend was critical to her safety. “I feared that if he came back, he might want to finish me off.”
Over the past year, Victim Compensation, a state program that reimburses victims for a range of expenses like hospital bills, relocation and mental health services, has come under increased scrutiny for its discriminatory practices. In December 2013, critics won a victory when the board that oversees the program voted to allow sex workers to access aid; the now-defunct regulation had stated that a victim’s involvement in “prostitution” leading up to the act of violence barred her or him from receiving compensation. A sex worker who spoke out about being brutally attacked and then subsequently denied aid sparked the debate. While social justice advocates celebrated that change – which is still in the process of being finalized and implemented – other activists, especially prisoners’ rights groups, continue to lament the other inequities written into state law. Namely, formerly incarcerated people who become victims of violence are barred from receiving any financial assistance while on felony parole and probation. And in California, that includes people convicted of nonviolent drug offenses.
It’s not uncommon for low-income people who get caught up in the criminal justice system to become victims of violence themselves. In this way, the program’s exclusion of people with criminal records punishes some of the most vulnerable victims – those struggling to rehabilitate their lives after incarceration and who already have little to no support. They often can’t find a safe place to live, a steady job, or enough money to survive. In these challenging circumstances, people reentering society can get caught up in gun violence and abusive relationships. And when they do, the state’s denial of aid can send them on a downward spiral and, advocates argue, revictimize them.
But this isn’t the only group that the program refuses to help. The state also generally rejects applicants who don’t cooperate with police, which can be an obstacle for victims of domestic violence who are trapped in dangerous situations and afraid to talk with cops. And for victims caught up in gang activity, cooperating with law enforcement can be fatal – in some cases even exposing family members and friends to retaliation and violence. Program officials say they consider these kinds of risks, but advocates say unfair denials due to lack of cooperation are common. And as these victims work to protect themselves and their loved ones, the lack of basic financial aid can dramatically hinder their ability to recover from a violent episode.
Critics of the program, which is primarily supported by fines criminal offenders are ordered to pay when they are convicted, also argue that the state has more than enough cash to aid victims it currently excludes: In fiscal year 2012-13, California officials reported a program fund “reserve” of nearly $80 million.
“The fact that categories of people are barred from any type of compensation exposes such deep problems with the way in which the fund is administered,” said Diana Block, an advisory board member of the California Coalition for Women Prisoners.
Rogers today still struggles to understand why a victimless, nonviolent crime in her past – one for which she already served time behind bars – prevented her from getting the basic help she needed. “You keep saying you want me to get rehabilitated.... But where do we get some healing?”
* * *
As a victim of domestic violence with medical bills, a damaged home and a perpetrator on the loose, Rogers was just the kind of candidate the state is supposed to help. When it was formed in 1965, the Victim Compensation Program was the first of its kind in the nation solely dedicated to providing financial aid to those who have faced violence. The program is a “provider of last resort,” explained Jon Myers, deputy executive officer of public affairs and outreach for the Victim Compensation and Government Claims Board. “We help victims who really don’t have anywhere else to turn to.” That means the state program can help with crime-related expenses not covered by other sources, such as private insurance or Medi-Cal. (It can cover co-pays, for example).
The program supports victims of domestic violence, child abuse, sexual assault, drunk driving accidents, robbery and hate crimes, among others. It also offers aid to the families of homicide victims and people legally dependent on victims for financial support. (It does not support victims of nonviolent offenses, like financial crimes). Victim Compensation can help with a wide range of expenses, including medical and dental treatment, mental health services, income loss, funeral and burial expenses, home security, relocation and crime-scene cleanup. “We see it as a big relief to victims in helping them overcome the trauma of a violent crime,” said Myers, noting that expenses can quickly add up and overwhelm victims.
In fiscal year 2012-13, the state approved 41,470 claims, representing 78 percent of the total applications it received, said Anne Gordon, spokesperson for Victim Compensation. The state denied 11,649 people – 22 percent of total applications. (Those figures do not factor in whether a denied claim was appealed and subsequently approved). On average, the board receives two hundred applications per workday and approves 40,000 to 50,000 per year. In fiscal year 2012-13, the program paid nearly $62 million to victims in total, which averages about $1,500 per approved applicant.
“That’s a lot of services and a lot of people that we are helping,” Myers said. Since its inception, the program has provided victims with more than $2.2 billion in total assistance.
Victims can apply through county Victim Witness Assistance Centers or through the state, and generally must do so within three years of the crime being committed. The state sets financial limits for different categories, such as a $63,000 cap on medical reimbursements and a $5,000 maximum for funeral and burial costs.
There are also a series of factors that render an applicant ineligible. In general, people who “knowingly and willingly participated in or were involved in the events leading to the crime” and victims who do not cooperate with law enforcement don’t qualify for any reimbursements.
Furthermore, as was the case with Rogers, a person who is convicted of a felony may not be granted compensation until that person has been discharged from probation or parole. Probation is administered by counties and parole is run by the state and involves people convicted of felonies released from prison. Gordon said that individuals on felony probation or parole are not automatically denied and that their claims can gain initial approval, but they cannot collect any assistance until they are off probation or parole. And even at that time, expenses incurred while on probation and parole can’t be retroactively covered.
In short, the program is inaccessible to people recently convicted of felonies. In California, that’s a large group. As of January 2014, the California Department of Corrections and Rehabilitation had 47,525 parolees assigned to its adult parole operations division. The length of probation differs by county. In Alameda County, the standard period for felonies is five years, and the county probation department supervises approximately 13,000 people at a given time. A majority of them have been convicted of felonies. There are 58 counties in the state. And there are hundreds of non-serious, low-level offenses that are classified as felonies.
“Simply put, it’s just not fair,” said Alameda County Public Defender Brendon Woods. “I don’t honestly understand the rationale as to why the victim of a crime who is on probation or parole is not entitled to the same compensation as someone who’s not.”
The policy “uniquely disadvantages people from underserved communities,” added Kimberly Horiuchi, an attorney with the ACLU of Northern California, arguing that it’s wrong for the state to make judgments about who is worthy and who is not. “Victims are victims. Rape is rape.”
Gordon said her office has no data on the number of felony parolees and probationers who seek compensation. She said the most common reasons for denial include an incomplete application, a submission outside of the required filing period or from someone out-of-state, a request from a victim of a non-violent crime, and an applicant having participated in the crime or refused to cooperate with police.
But some victims may not even fill out an application once they learn the program is not available to them. “They already know the door is slammed in their face,” said Ida McCray, director of Families With A Future, an organization affiliated with the San Francisco-based nonprofit Legal Services for Prisoners with Children. “We get the message. It’s ‘we don’t give a fuck about y’all.’ We are used to the wounds.”
The policy limiting this fund to a certain class of people also serves to reinforce deep prejudices against those with criminal records. “It perpetuates the lie that someone’s humanity ends once they get a conviction,” said Eliza Hersh, director of the Clean Slate Practice at the East Bay Community Law Center. “People who suffer are people who suffer regardless of their supervision status or past mistakes.”
For those rejected, a denial is not simply a financial inconvenience. Rogers, who is now a program assistant for the California Coalition for Women Prisoners, which is based in San Francisco, was unable to find a new place to live after her boyfriend beat her savagely in 2010. Even though she got an emergency restraining order against him, he repeatedly harassed her by phone after the incident, seemingly trying to convince her not to press charges, she said. Rogers’ apartment was also in a complex where her boyfriend’s family lived, giving them an opportunity to keep tabs on her activities and report back to her estranged partner, she added.
“He knows everywhere I go,” she said. Rogers wanted to move to Sacramento or Los Angeles where she had family. And Victim Compensation offers up to $2,000 for relocation, which could have helped her pay for transportation, first month’s rent and a security deposit. “I would’ve had that opportunity to relocate and get a fresh new start,” she said.
Without the financial aid, Rogers stayed in Stockton, started using drugs again, and by April 2010, just two months after the incident, was living on the streets.
* * *
The exclusion of people on parole and probation appears to be rooted in a belief that people who commit crimes cannot then become victims, too. Notably, the statute outlining Victim Compensation eligibility states that people who have been convicted of a felony should be considered a lower priority than non-felons. Wayne Strumpfer, chief counsel of the Victim Compensation and Government Claims Board, said this part of the law currently has no practical application, and that once off parole and probation, applicants with felonies on their records are treated the same as others. Still, the language reflects an ingrained bias against people with criminal records – a fact that today can play out in ways beyond the ban on parolees and probationers.
Ruben Leal was shot on October 11, 2010 in East Oakland. Leal, then 22 years old, suffered a collapsed lung and fractured shinbone and temporarily had to use a wheelchair. Two days after the shooting, his life got a lot worse. On October 13, 2010, the City of Oakland held a press conference announcing that it was seeking an injunction against 42 alleged members of the Fruitvale “criminal street gang” known as the Norteños. Leal, who was born and raised in Oakland and had been taking classes at Laney College at the time, was named as one of the gang members. The Oakland City Attorney’s Office, with support from the Oakland Police Department, was seeking a civil restraining order that would restrict the activity of the named defendants. Leal said he was not involved with the gang at the time of the injunction.
“Me being shot was used as evidence for the gang injunction,” said Leal, who is now 25 and works as an outreach coordinator with Communities United for Restorative Youth Justice. As part of the injunction, OPD officer Douglass Keely filed a declaration outlining each defendant’s criminal history and evidence of gang ties. Summarizing Leal’s involvement, Keely noted that the East Oakland resident had been injured in a drive-by incident in which as many as twelve rounds were fired. The report also listed Leal’s criminal history – all minor incidents that OPD said tied him to the Norteños gang. (The report mentioned a “pending” felony case, but prosecutors eventually dropped those charges against Leal).
After the shooting, the officer who showed up at his home to talk to him about the incident was Keely, Leal recalled. “This is the same guy that wants to put this gang injunction on me. This guy wants to talk to me?”
His attorneys advised against it. “It was a conflict of interest,” said Leal. “I would’ve talked with any cop and tell them my story, but not ... Keely.”
Michael Siegel, one of the lawyers who represented alleged gang members in the case, said that police searched and raided the homes of those named in the injunction soon after it was filed. When Keely arrived at the home of Leal, it wasn’t even clear if he was there to talk about the recent shooting or simply to advance OPD’s gang injunction case against him in court, Siegel said. “It was an incredibly unjust situation. Keely is providing direct evidence against Ruben. It was definitely not in [Leal’s] interest ... to have communications with him.”
Siegel further noted that, at the time, Leal “was not an active gang member. He was making a positive impact on his community.”
Leal’s medical bills related to the shooting, however, had started to pile up, to more than $100,000 total at the time. He applied for Victim Compensation to cover some of the costs, which he could not afford. Within about a month, he got a notice of rejection, citing the fact that he did not cooperate with police.
“I felt like I was being revictimized,” said Leal. “I felt like I didn’t have no support from nobody.”
He and his attorneys appealed the denial, but never heard back, according to Leal and Siegel. They said they also tried to make it clear to OPD that Leal would be willing to talk to a different cop. OPD spokesperson Frank Bonifacio noted that Victim Compensation approves claims – not police departments. Keely declined to comment on Leal’s case, but said that, in general, a victim can have his attorney present when talking to police and in some cases can give a statement to a different officer if there is a concern about a specific investigator. But it is crucial that victims cooperate, he said: “The most important thing for us is to solve the case any way possible.”
Regardless, Leal did not get the financial support California typically provides to victims of gun violence, which was a significant obstacle to his physical and psychological recovery.
“The folks that have suffered this trauma – they should invest in these people. This is not rocket science,” said Leal. “If you don’t help them overcome that traumatic experience, they’re going to find a way, and the way they find is not going to be healthy for them or for others.... The way they are going to feel better is reproducing that trauma onto someone else.”
In other words, the cycle of violence continues. And the pain lingers. After the shooting, Leal suffered several serious panic attacks. “He had hurt in his eyes and in his spirit,” said George Galvis, executive director of Communities United for Restorative Youth Justice, recalling his first time meeting Leal, shortly after the shooting. “He looked wounded.”
Leal said he has made significant progress since the incident. Still, he added, “Some of those scars are never going to heal.”
* * *
The Victim Compensation program’s rejection of Leal is a relatively common occurrence, according to some Alameda County activists. People caught up in street violence often have had past interactions with law enforcement, which can become an obstacle to receiving the aid they need to recover. Leal said he could think of about ten people he knows who have been denied, even some who cooperated with police despite the risks associated with snitching. The only time he has heard of approvals were for families of homicide victims seeking coverage for funeral expenses.
Victim Compensation also bars access for those involved in the events leading up to the crime, including “mutual combat,” “illegal drug-related activity” and “gang involvement.” The program’s regulations state that gang membership alone is not a disqualifying factor, but several advocates who help victims navigate the application process said it seems that way in practice.
“If you’re wearing any particular color that a police officer might deem is gang related, then that’s something ... that can get you denied,” said Linnea Ashley, training and advocacy manager of the National Network of Hospital-based Violence Intervention Programs. Ashley is based in Oakland at the offices of Youth ALIVE!, a nonprofit and a founding member of the network.
Erroneous statements in police reports can also disqualify victims from receiving compensation, said Rafael Vasquez, lead hospital intervention specialist with Youth ALIVE!’s Caught in the Crossfire program. That program offers case management for victims, often starting at hospitals immediately after a shooting. Part of that work involves helping them navigate the Victim Compensation process. Vasquez recalled one case of a young teenager who was shot in the head and survived – but was denied compensation because of a belt found at the crime scene that cops said indicated his gang involvement. In actuality, Vasquez said, the belt didn’t even belong to the victim, who was not a gang member; rather, the crime simply occurred in an area with regular gang violence.
In these kinds of cases, people are essentially rejected because of where they live, a form of victim-blaming, said Kyndra Simmons, Caught in the Crossfire program manager. “You went into an area where you know there’s criminal activity. It’s almost as if you put yourself in that situation. But that’s where they can afford to live.”
Youth ALIVE! sometimes reaches out to police, requesting that they amend or clarify statements so that a victim is not incorrectly declared responsible for the crime. From there, the organization appeals the compensation denials, a process that can be successful. But not all victims have these advocates. In addition to these more nuanced obstacles at Youth ALIVE!, around 20 to 30 percent of the victims that the organization supports are on parole and probation.
“The system that is currently in place views victims and perpetrators in a very simplistic way,” said Nicole Lee, founding executive director of Urban Peace Movement, an anti-violence group in Oakland. “You’re either a victim or a perpetrator and you can’t be both. The reality is ... violence is a cycle. And as a society, we have to find policies that disrupt the cycle.”
For a variety of reasons, domestic violence victims can also be very reluctant to file charges or cooperate with police, but that doesn’t mean they aren’t deserving of aid, said McCray, who works as a domestic violence counselor at S.F. Bay Counseling and Education. “When they try to separate, that’s the most dangerous time,” she said of people who attempt to get away from their abusive partners. McCray also noted that domestic violence survivors face risks when reporting their partners to cops. Plus, she said, “women often times stay in domestic violence situations because of their children. They are the glue of the family.”
Deep distrust of law enforcement can also motivate their lack of cooperation, said McCray, who works with formerly incarcerated people as the director of the Women’s Resource Center, which is affiliated with the San Francisco Sheriff’s Department. “There’s a cultural stigma behind talking to cops, because these communities have already been oppressed ... and targeted by police forces.” And the Victim Compensation denials sting, she said. “It keeps them depressed. It keeps them angry.... And it’s just so fucking petty.”
Strumpfer, the Victim Compensation chief counsel, said that the program has limitations in place for “public safety purposes.” If a victim is refusing to talk to police and withholding information, then the state cannot support that individual by offering benefits, he said.
“The burden is on us to show a lack of cooperation,” he said, noting that there are exceptions to the rule and that Victim Compensation would consider the risks a victim faces in talking to law enforcement. The state cannot aid victims who break the law or irresponsibly put themselves in harm’s way prior to the incident, he continued. Strumpfer cited examples of a burglar who is shot during the act or an individual actively enticing someone to fight at a bar.
Ken Ryken, head of the Alameda County District Attorney’s restitution unit, explained it this way: “If a person is engaged in criminal activity that’s dangerous, they assumed that risk.... The state shouldn’t have to bear that cost.”
In cases of domestic violence, state law states that victims should not be rejected solely because they did not file a police report and that the program should consider other evidence such as medical records or the existence of a restraining order. But victims can still be denied compensation if they refuse to testify, request that the suspect not be prosecuted, or decline to “completely and truthfully” respond to a request for information “in a timely manner.”
Regarding the question of gang involvement, Strumpfer said that the state reviews applications on a case-by-case basis and only rejects requests when it finds involvement in the crime in question. “It’s not just a throwaway line in the police report.”
Asked why the state does not compensate felony parolees and probationers, he responded that this policy has been written into law for a long time and that it is “just another condition of being on probation or parole.” And it’s not necessarily about saving the state money, Myers noted: “It’s more of a policy decision, not a financial decision.”
Strumpfer pointed out that the program is funded by offenders through restitution fees, which are the mandatory fines required of all adults convicted of misdemeanors and felonies in the state. “If you’re a criminal offender, you’re paying into the program,” Strumpfer said. “You may very well likely owe restitution.”
Critics reject this notion, arguing that people forced to financially support this fund should not be disqualified from accessing it when they are in need. (Prisoners’ rights groups also strongly oppose the restitution fines on a more fundamental level, due to the fact that the fees can become insurmountable debts for people reentering society after incarceration).
Because discrimination against people on felony parole and probation is written into law, expanded access would require legislative action. I asked Strumpfer if last year’s debate around sex workers’ rights had sparked further evaluation within the program about its ongoing exclusionary practices, including the exclusion of people convicted of nonviolent crimes, like drug offenses. He replied: “The [program’s] board members have not showed any signs of wanting to review anything else.”
* * *
When the Victim Compensation program is a dead end, people recovering from violence must look elsewhere for support. And advocacy organizations all too familiar with the state’s denials have focused on alternative ways to support victims, while recognizing that financial aid can only go so far anyway.
Communities United for Restorative Youth Justice sometimes leads “healing ceremonies,” for example, which give victims and family members a meaningful opportunity to grieve and reflect, said Galvis, the executive director. “It’s about how we restore balance and restore that spirit for people who have suffered from trauma,” he said. “There’s strength and healing in letting those tears flow.”
Leal said it made a huge difference when advocates like Galvis reached out to him. “These different community members came out and supported me on their own dime just because they wanted to.... That helped me with my healing journey.”
Communities United also organizes fundraisers for victims, Galvis said. This can be critical when families don’t get adequate compensation from the state.
As for Samantha Rogers, she was homeless for several months in 2010 after the state refused to help her relocate. She ended up at a rescue mission and eventually received significant counseling, which helped her get back on her feet. But it took time. And Victim Compensation could have put her on a very different path, she said. “If they could’ve supported me back then, there’s no telling where I could’ve been four years later.”
Rogers has been off of parole for more than three years and now gets to spend more time with her four children, daughters ages 30 and 25 and sons ages 22 and 20. Today, she regularly speaks at events and marches in rallies advocating for the rights of incarcerated people.
Part Two: Sentenced to Poverty
The state often traps formerly incarcerated people – even those convicted of low-level offenses – with insurmountable debts.
When Chloe Turner was in state prison, her family sent her money on a few occasions. It wasn’t much, but it was more than her fellow prisoners – many of whom were serving life sentences – received, since they often went years without getting any mail at all. So she was grateful for the contact. And even a tiny amount of cash helped.
“It’s really hard because you’re put in a position where the only freedom you really have is once a month you can do some shopping,” explained Turner, a 35-year-old East Bay resident who spent most of her twenties in and out of jail and prison for various drug-related offenses.
In prison, “shopping” means purchasing basic necessities from the commissary, such as soap, deodorant and snacks. And without financial support from loved ones, most prisoners are forced to rely on low-paying prison jobs to make money. Turner cleaned toilets. She also briefly worked in the kitchen, but spent a majority of her time doing janitorial jobs – mopping floors, picking up trash and cleaning bathrooms. She made roughly seventeen cents an hour. California state prisoners can earn a maximum of 37 cents an hour.
With these kinds of measly wages, many prisoners just don’t have enough money to buy the basic items they need. Moreover, much of the money they earn or receive from family members is confiscated by the California Department of Corrections and Rehabilitation. The department automatically seizes half of the income that most prisoners earn, as well as half of the money deposited into their prison bank accounts by family members. The state collects this money to pay off a prisoner’s restitution fines, which are the financial penalties that all people convicted of crimes in the state are ordered to pay upon sentencing. It is the criminal offender’s so-called “debt to society,” a punishment in addition to being sent to prison or jail or put on probation.
Along with exacerbating the financial hardships placed on prisoners, the confiscation of a family member’s gift can be emotionally upsetting, given the symbolic value this support can carry. “Your money is being taken and you’re not able to buy the stuff you need – you are completely helpless,” said Turner, noting that she eventually told her family to stop sending cash altogether.
And when Turner was released from prison in 2008, the burden of restitution was far from over. Her debts from a series of convictions added up and quickly became insurmountable, dragging her down as she struggled to turn her life around and move beyond her criminal past. Six years later, she still owes more than $10,000 in unpaid restitution fines and is unsure when she will ever be able to pay it off. Turner has a full-time job, helping women reenter society after prison as a program coordinator with Community Works West, a nonprofit affiliated with the Women’s Resource Center at the San Francisco Sheriff’s Department. But even though she has a job, it doesn’t pay well enough for her to live in the pricey Bay Area and make a significant dent in her debt at the same time. “I can’t get my life together because I owe all this money,” she said. “I’m just trying to live.”
In California, restitution fines support the Victim Compensation program, a state fund that provides financial aid to many victims of violent crime, helping them with a wide range of expenses, such as medical bills, mental health services and crime scene cleanup. The program has faced a backlash over the last year because it denies certain victims the right to collect compensation.
But the institutionalized discrimination against certain victims is not the only reason that prisoners’ rights advocates contend that California’s Victim Compensation program is broken. Activists also lament the fact that the program, on a fundamental level, is funded on the backs of low-income people trying to rehabilitate their lives after incarceration. The money for victims supported by the program does not come from taxpayers, but rather from all adults convicted of felonies and misdemeanors in California, including people who commit drug crimes and other nonviolent, victimless offenses.
“The whole way in which the fund is set up puts the burden on a group of people ... that really have no money and are sucked into a debtor situation,” said Diana Block, a founding member of the California Coalition for Women Prisoners.
Critics further argue that, from a financial standpoint, there’s no reason the fines levied on people convicted of crimes in California have to be so steep in the first place. In fiscal year 2012-13, state officials reported a restitution fund “reserve” of nearly $80 million.
In addition, there’s evidence that the financial penalties levied by judges are simply too large for most people to afford. Data from the Department of Corrections shows that most people sentenced to state prison have been unable to pay off their restitution debts.
As is the case with Turner, the financial burdens of restitution can stay with people for years, creating yet another barrier to rehabilitation post-incarceration – one that can make it hard to secure a job, go back to school or even keep up with rent. In this way, the state traps people in poverty, shackling them to the prison system after they’ve left it.
* * *
Ruben Leal knows firsthand how the state’s Victim Compensation system can intensify the suffering of those already in pain. As described in Part One, after Leal was shot in a drive-by incident in 2010, the state refused to offer him any aid due to his alleged failure to cooperate with police. The East Oakland resident is also intimately familiar with the burden that the state’s restitution system can place on families trying to help their loved ones behind bars. Leal’s brother has been in prison since 2004, and every time his mother sends his brother money, the department takes its 50 percent cut.
“All these people, mostly from low-income families, are paying into this fund – and they’re the same people that don’t qualify [to receive victim compensation],” said Leal, who works as an outreach coordinator with Communities United for Restorative Youth Justice, a local nonprofit. “People think that money is coming from taxpayers, which it’s not. Folks are paying into that fund with restitution. I feel like the whole system is flawed.” Even as the state seizes half the money his mother sends him, Leal’s brother will very likely have large unpaid debts upon his release.
In addition to the misconception that Victim Compensation is a taxpayer-supported program, the role of restitution in the California criminal justice system is also widely misunderstood. While some assume that restitution simply means offenders paying victims for specific damages, in reality it’s more complex.
There are two main forms of restitution in the state: One is the “direct order” that offenders must pay to a victim. This is a financial penalty that a person convicted of a crime must pay directly to the victim to repay the losses he or she suffered. The other type is the restitution “fine” – the offender’s mandatory “debt to society.” Judges order these fines at sentencing for every misdemeanor and felony offense, and these payments go to the state, making up the majority of revenue of the “Restitution Fund.”
It is from this pool of money, which has generally remained static in recent years, that the state compensates victims of violence – beyond what they receive directly from the person convicted of the crime. The Victim Compensation program also gets some federal dollars from restitution fines paid by people convicted in federal court. Governor Jerry Brown’s fiscal year 2013-14 budget calls for Victim Compensation to spend $75 million of the fund on victims, but there is no cap, meaning victims are never rejected due to the financial limits of the fund.
“These are rights at a constitutional level, which means they are no less important than a defendant’s right to counsel,” said Ken Ryken, head of the Alameda County District Attorney’s restitution unit. He was referring to California’s Victims’ Bill of Rights, which first passed in 1982 and was amended in 2008. This amendment to the state constitution outlines a victim’s right to restitution, noting that people who suffer losses as a result of criminal activity have a right to seek and secure restitution from offenders – and that restitution shall be ordered from convicted wrongdoers in every case in which a victim suffers a loss.
When it comes to “direct orders,” there is little dispute that convicted offenders should be held financially responsible for the losses their victims incur as a result of the crime. The additional mandatory restitution fines, however, are controversial.
Ryken said that restitution fines make it possible to help victims with serious and costly needs. If a victim has hundreds of thousands of dollars in medical bills, for example, it’s likely that an offender, who may be serving a long prison sentence, would not be able to cover the expenses. The state can then draw from the Restitution Fund and reimburse the victim in a timely manner, which also ensures that the victim does not have an ongoing debtor relationship with the offender over time. In these scenarios, the offender is then in debt to the state, not the victim. “It’s really a smart idea at the state level,” Ryken said.
In California, the statutory restitution fine amounts have steadily increased in recent years. For misdemeanor fines, the minimum amount a judge can order, as of 2014, is $150, up from $100 in 2011; the maximum is $1,000. For felonies, the minimum fine is now $300, up from $200 in 2011; the maximum is $10,000. These fines are entirely separate from orders offenders may be paying to their victims. Payment of restitution fees is mandatory; the debt cannot be eliminated through bankruptcy.
“When I look at the victim restitution fund, what I see is a hostage relationship,” said Dorsey Nunn, executive director of Legal Services for Prisoners with Children. “We’re taxing the family members of incarcerated people by seizing money that they send their loved one.... They’re demanding ransom.”
Nunn said he never spent the ten dollars his daughter sent him while he was incarcerated, because it meant so much to him on a personal level. And having the state take half of a family member’s gift is incredibly painful for any prisoner, he said. Advocates also noted that losing a significant cut of already-paltry prison wages can be very frustrating. According to the Department of Corrections, wages for low-level jobs can pay as little as eight cents per hour. After the restitution payment, that’s four pennies.
“People don’t understand how much people have to pay for their own upkeep and survival in prison,” said Block, of the Coalition for Women Prisoners, citing the need to purchase basic toiletry items. “All the things that help you make it through, you have to pay for them. They are not given to you. And the only way you can pay for them is whatever small amount of money you can make ... or if you have families or friends who want to help support you.”
In a way, these criticisms bolster one of the policy arguments in favor of the restitution system, supporters say. Ryken pointed to case law that advocates for the ordering of full restitution in every case, regardless of the offender’s ability to pay. “It’s something the state wants the defendant to bear fully to appreciate the weight of their conduct and the full extent of their conduct,” he said. Restitution fines, he added, support “rehabilitation of the offender, making them fully responsible for their conduct, and deterring future misconduct. If the penalty or burden is large enough, it will cause the defendant from recidivating – from doing it again.”
But for some people with criminal records, restitution can have the opposite effect.
* * *
One day in the summer of 2011, De’Mario Lewis almost gave up. The 24-year-old West Oakland resident was trying to provide for his son, who was then six months old, but he could not find any work. At the time, Lewis had an unpaid restitution fine from a recent misdemeanor case. With the lingering debt, he could not clear his legal record, a fact that prevented him from getting a job. And without a job, he couldn’t pay off what he owed.
“What do we do? How do we make some money? Do we sit up here with a change cup?” Lewis said. “Or shit, do we hire ourselves and buy a bundle of crack cocaine and go sell it? That’d be the easiest route.”
Lewis remembered the day that he seriously considered making money selling drugs. At that very moment, he said, his baby boy stared up at him and poked his face with his tiny hand, temporarily blinding him. “He grabbed me between my eyes with his two fingers,” he said. “I looked at him, but I couldn’t see him.”
It was a powerful sign, he continued. “God showed me that if I go out there and do that, I’ll never see my son again. That was my breaking point.”
Inspired by his son, Lewis chose not to sell drugs. But his internal battle underscores the contradictions of the restitution system. While some argue that these financial punishments are designed to discourage people from reoffending, in practice they can make it very challenging for debtors to stay out of trouble. Lewis’ struggle also highlights the way restitution can punish people who commit relatively minor crimes.
He was charged with illegal possession of a firearm in September 2009. After fighting the charge for months, in February of 2010, he was ordered to spend 45 days in county jail. When he was released he had nearly $800 to pay off in restitution.
“I was just so furious because I was like, ‘I really want to get my life back right,’” said Lewis. “I had this restitution hanging over my neck. It’s bullshit. It’s unfair.”
This catch-22 is just one of many ways in which fines can become obstacles after incarceration, drowning people in debt and trapping them in poverty.
When he was released from custody, Lewis initially started paying $50 a month, but even those small payments proved challenging. With an unpaid restitution debt he couldn’t clear his criminal record, and thus was not eligible to get the license he needed to get a job as a security guard. Meanwhile, he was trying to prepare for the birth of his first child, who was born in January 2011. He eventually landed a temporary, part-time job with Oakland Rising, a local nonprofit, but still could not pay off his debts for months.
“I can work towards something better in my life, but when you have certain limitations on you, you have to settle for less,” he said.
As he started raising his son, Lewis stopped paying restitution regularly. At the same time he managed to stay out of trouble. Last fall, he finally received some good news – he was offered a job as a teaching assistant. But he would not be able to start until he cleared his criminal record, which meant he had to pay his restitution in full. So with support from local advocacy groups United Roots Oakland, Urban Peace Movement and Urban Strategies Council, Lewis finally paid off his restitution debt in December 2013. He’s in the process of getting his record cleared and hopes to start teaching full-time soon. In the meantime, he has been working part-time as a ticket-taker at the Coliseum. “I’m back to being normal again,” he said.
But Lewis still struggles to understand why the system sets people up for failure. “People make mistakes ... but they do want to change their lives,” he said, adding, “if you’re paying restitution, I feel like you should be paying restitution to a victim ... people who got robbed or brutally beat up. That’s what restitution is for.”
While restitution made it difficult for Lewis to get a job, it can have more severe consequences for people convicted of serious crimes.
“Absolutely, victims have a right to restitution to be made whole,” said Alameda County Public Defender Brendon Woods. “The flipside is that one mistake by your client can essentially ruin their lives, and when you have those clients who have taken every step to get back on the right track – they’ve completed probation, they’ve stayed out of trouble, they’ve done what they’re supposed to do – and they have this huge financial obligation, it makes it very hard for them to move forward.”
At the state level, parole agents and officials with the Victim Compensation program refer formerly incarcerated people with unpaid restitution debts to the state Franchise Tax Board, which assumes responsibility for collection. The mechanisms are different for each county, but often involve private collection agencies that go after those in debt. These entities function in a similar manner to credit card companies in pursuit of debtors.
“Like any commercial practice, their compensation depends on how successful they are, so they may be fairly aggressive,” said Ryken of the Alameda County District Attorney’s Office. (Alameda County does not contract with private companies for this service and is one of two counties in California with a dedicated restitution court that oversees the collection process).
Debt collectors may intercept income tax refunds, withhold wages from paychecks and even take money directly from an individual’s bank account. In some cases, fees and premiums may add to a person’s debt. The state can also place a lien on inheritances. Meanwhile, debt can severely damage an individual’s credit, prevent people from getting a driver’s license and block an otherwise eligible person from clearing his or her record of misdemeanor convictions.
For some people with criminal records, the combined impact of these consequences can make it impossible to live a normal life – even years after incarceration.
* * *
The amount of time it takes criminal offenders to pay their restitution fees varies tremendously and cannot be tracked, according to Anne Gordon, a spokesperson for the Victim Compensation and Government Claims Board. It can range from a few months to years, she said.
Data on the amount of fines ordered versus the amount of fines collected, however, sheds some light on people’s inability to pay. In California, from 1992 to 2013, judges levied $812 million in restitution fines against criminal defendants who were sent to state prison, according to statistics provided by Dana Simas, spokesperson for the California Department of Corrections and Rehabilitation. During that same time period, the state collected only about $190 million, or 23 percent of the total. And the collection rate for restitution direct orders, which are supposed to be paid by criminal offenders directly to their victims, was even lower for people who were sentenced to state prison: Of the more than $3 billion in fines levied during that period, the state has collected the equivalent of about 2 percent.
Teeoni and Keyuna Newsom have learned the hard way how the restitution system traps people in debt. The two women met about five years ago shortly after they were both released from state prison, and they have been partners ever since. They got married last July and now live in Richmond where they’re raising their twelve-year-old daughter. Teeoni, 36, works full-time as the young men’s case manager at Community Works West, the nonprofit organization affiliated with the San Francisco Sheriff’s Department. Keyuna, 33, works as a part-time administrative assistant for Resolve to Stop the Violence, a program of Community Works.
Teeoni said she was once a gang member in Southern California and spent roughly seventeen years behind bars for a range of crimes, including robbery, carjacking, assault and more. Teeoni has “two strikes” on her record under California’s Three Strikes Law, meaning she could get a life sentence if she were convicted of another serious felony. Keyuna spent about two years in prison for possession and grand theft in a case that she said involved an undercover cop (and thus no actual victim). Through a series of programs and job opportunities, the two have turned themselves around and are now focused on rebuilding their lives together and raising a family. By all measures, their criminal histories are behind them – except for their restitution fines.
When Teeoni was first released in 2009, she had an initial debt of roughly $3,000, which the state began collecting by taking a 10-percent cut from every paycheck. Then one day in 2010, collectors confiscated roughly $4,000 directly from the joint bank account she shares with Keyuna, who also had thousands of dollars to pay off. At the time, they weren’t even sure whose unpaid fines led to the sweep. But their account was wiped clean – seemingly out of nowhere.
“They took all of it, like every single bit that was in the bank account,” recalled Teeoni, noting that they only realized what had happened when their checks started bouncing. “What is the point of me having a job if you’re going to take all of my money?”
“I was devastated,” added Keyuna. “We had a nice chunk of change saved up ... and they took everything.”
And it didn’t end there. In January of this year, Teeoni had $316 more taken out of her paycheck, and learned that debt collectors intend to start taking a whopping 25 percent of her income. These deductions apparently will continue until she pays off a $2,000 debt, separate from the fines she first paid upon her release.
Teeoni said the lost income is already a significant strain on her family. “I can’t not feed everybody,” she said. “I could lose my house. I could lose my car. Am I going to lose everything that I’ve been working for all this time? Because I came out here to change everything and it’s like, as soon as I changed, you decided, ‘you know what? Here, pay this.’”
Teeoni said she understands the importance of taking responsibility for her past actions, but noted that she has served her time and has already paid thousands of dollars. The lingering fines seem meaningless and unbeatable to her. “Should I just quit my job and go back to what I was doing and then they can’t find me?”
Teeoni said she would never break the law again, but noted that, as a case manager, she regularly sees clients who, in the face of unpaid fines, start selling drugs or disappear altogether.
One woman with large restitution fines, who requested anonymity in order to protect her future job prospects, recalled through tears a time when she had to choose between paying for her cap and gown for her post-graduate ceremony at UC Berkeley and paying her next restitution fee. Another woman, a San Francisco mother of four, also requested anonymity due to the fact that she has temporarily stopped paying restitution because she can’t afford it. She said that after she was released from jail, she couldn’t purchase furniture for her children’s bedroom because of steep fines she owed. Her difficult financial situation is preventing her from moving out of a bad neighborhood, and she can’t find any full-time work while she has unpaid debts.
These challenges are common for low-income people saddled with hefty fines, said Woods, the public defender. “In the bigger scheme of things, it’s such a low priority, because they’re worried about housing and food ... getting their kids to school,” he said of restitution fines. “If you have addiction issues, you’re just worried about staying off the rock. There are so many other bigger issues that they are dealing with than the restitution fund fine.”
Critics argue that California could clearly reduce these restitution burdens without bankrupting its financial aid program for victims. The budget for fiscal year 2014-15 includes a nearly $62 million restitution fund “balance” or “reserve for economic uncertainties.”
Jon Myers, the deputy executive officer of public affairs and outreach for the Victim Compensation and Government Claims Board, argued that the program overall does not have cash to spare and has generally been spending more than it takes in each year. In 2012-13, the fund spent roughly $112 million while it collected roughly $108 million, the majority of which came from fines. The roughly $4.4 million difference illustrates the program’s “structural imbalance,” Myers said. “The fund is not completely secure,” he said, noting that state officials recently reduced payment rates for certain expenses for victims to help ensure the solvency of the program’s finances.
“I work with victims every day. I hear stories about a mother who lost a child and has to pay for a funeral she can’t afford,” he said. “What’s the cost of the casket that a mother has to pay? A domestic violence victim that has to go out and find a new home?”
His sympathy, he added, always falls to victims in debt, not criminal offenders.
* * *
For roughly three years, Chloe Turner worked two jobs seven days a week, while going to school full-time. It was exhausting, but necessary, she said, given that her unpaid restitution fines prevented her from accessing certain student loans. Still, she completed an entrepreneurship-training program at Stanford Law School as well as a post-prison health worker certificate program at City College of San Francisco. And last year, she graduated from the University of San Francisco with a bachelor’s degree in organizational behavior and leadership. Her plan is to eventually go to law school – a dream she will likely have to put on hold until she pays off all of her restitution.
The Newsoms, who are close friends of Turner, will also likely have difficulty achieving their long-term goals while they are still in debt. They said they want to someday start their own youth program to offer an alternative to gangs. But that would require a level of financial stability, which, at this point, seems unattainable, said Teeoni. “I don’t have money to save anymore.... And if I put money in the bank to try and save up, they are going to take it away from me.”
Turner is eager to advance her education and career partly because she wants to someday work as a public defender. “I really want to make a difference with the clients I work with,” she said. “I could advocate for them on a different level. I know where they come from. That would give me an advantage.”
But with outstanding restitution debts, Teeoni is unable to access many of the student loans she would need for law school. She also can’t get a Certificate of Rehabilitation, an official document that is required for admission to law school and one that could significantly boost her future job prospects.
This is despite the fact that she has, by every other measure, rehabilitated her life.
This two-part article was originally published by East Bay Express (www.eastbayexpress.com) in March 2014; it is reprinted with permission.
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