They May Be Intelligent, But Are They Wise?

Speaking of fair shakes, here is a wise word of caution about the emerging, expanding use of computer programs to evaluate people in the justice system, whether at bail hearings, sentencings, or elsewhere.

The author is a former software engineer at Facebook who’s now studying law at Harvard. Her point isn’t that we shouldn’t use or consult these programs, but we should know what we’re getting into and proceed with caution. It’s troubling, for example, if we use programs that no one in the field fully understands—not judges, not lawyers, not probation—because the manufacturer won’t disclose a proprietary algorithm.

She says we turn to computers in part to control for our own biases, “[b]ut shifting the … responsibility to a computer doesn’t necessarily eliminate bias; it delegates and often compounds it.” That’s because these programs mimic the data we use to train them, so even the ones that accurately reflect our world will necessarily reflect our biases. Plus, they work on a feedback loop, so if they’re not constantly retrained, they lean in toward those biases and drift even further from reality and fairness. So they don’t just parrot our own biases; they amplify them. She saw this phenomenon time and again as a software engineer.

She agrees that algorithms can work for good. They’ve reportedly helped New Jersey reduce its pretrial jail population, for example.

But let’s proceed with caution, she says:

“Computers may be intelligent, but they are not wise. Everything they know, we taught them, and we taught them our biases. They are not going to un-learn them without transparency and corrective action by humans.”

New California Criminal Laws in 2017

Let’s get right to it.

We already covered three of them in prior posts. One was Proposition 64, which legalized recreational marijuana. Another was Proposition 57, which expanded parole eligibility for nonviolent felons and cut back on prosecuting kids as adults. A third was Assembly Bill 1909, which made it a felony for prosecutors to commit Brady violations in bad faith.

Here are five more.

Ransomware is a form of extortion. This is Senate Bill 1137. It amended the Penal Code to punish anyone who introduces ransomware into a computer system or network. It doesn’t matter whether you actually got the ransom or not; it’s a felony punishable by two, three, or four years in the county jail. See Pen. Code § 523.

New business search warrants, less drama. This is Senate Bill 1087. It amended the Evidence Code to make it easier for innocent businesses to comply with search warrants for their records. Now, if a business is not a subject of the underlying investigation, it may be able to produce its records by mail or in some other arms-length way. That’s a lot better than having agents show up to go through your stuff. See Evid. Code § 1560(f).

New motion to vacate a conviction or sentence based on immigration consequences or fresh evidence of innocence. This is Assembly Bill 813. It allows you to ask a court to throw out your case in two situations even though you’ve served out your sentence. The first is if you pleaded guilty because of a legal mistake that undermined your ability to understand the immigration consequences of your plea. The second is if you can present fresh evidence that you were innocent. See Pen. Code § 1473.7.

No more possibility of probation for sex offenses where the victim was unconscious or too intoxicated to consent. This is Assembly Bill 2888. It eliminated probation as a possible sentence for rape, sodomy, oral copulation, or sexual penetration with a foreign object if the victim was unconscious or too intoxicated to consent. It extended a rule that already applied to other, serious sex offenses. See Pen. Code § 1203.065.

No more statute of limitations for felony sex and child-molestation cases. This is Senate Bill 813. It eliminated the statute of limitations for a litany of sex crimes, which now may be prosecuted at any time. Previously, they had to be prosecuted within ten years, or if the alleged victim was under 18, before he or she turned 40. See Pen. Code § 799.

The Lowdown on California’s Proposition 57

Last week it was Proposition 64; this week, it’s Prop 57.

Voters approved it by a wide margin, but what does it do?

Two things.

First, it amended the California Constitution to ensure parole eligibility for people who have been convicted of a nonviolent felony, once they have served the full term for their primary offense. In layman’s terms, that means that you’re eligible for parole once you’ve served the meat and potatoes of your sentence, even if you were sentenced to additional, consecutive time on lesser counts or for sentencing enhancements. But this just means you’re eligible; it doesn’t mean you get released. It just means you’ve got a shot at parole, and something to work toward. No one is automatically released, and no one is entitled to parole.

Second, Prop 57 mandates that a judge must always decide whether a minor age 14 or older should be prosecuted and sentenced in adult court. (Kids 13 and younger don’t go to adult court.) Before, you automatically went to adult court, even at 14, if you were charged with murder or an aggravated sex crime. Or the prosecutor could file your case directly in adult court if you were 16 or 17 and charged with a serious or violent felony or you were 14 or 15 and charged with an especially serious or violent felony. In all cases, the prosecutor could request the juvenile court to transfer your case to adult court, even for a misdemeanor.

Under Prop 57, there’s no direct filing of juvenile cases in adult court, and prosecutors have less discretion to request their transfer. For ages 14 or 15, they may request a transfer only if the kid is charged with a serious or violent felony. For ages 16 or 17, it can be any felony but not a misdemeanor.

Some things haven’t changed, like the criteria for deciding whether a minor’s case should be transferred to adult court. These include the following:

  • the nature and seriousness of the charges
  • the degree of criminal sophistication he displayed, given his age, maturity, intelligence, environment, and upbringing
  • his prior history of delinquency, if any
  • whether he can be rehabilitated by the time he comes of age or close to it

If Prison Walls Could Talk

Here’s an interesting story about a just-released report on prison reform, with a kick: it’s written by the prisoners.

The authors are five inmates, all first-time offenders, who have spent a combined 95 years in the Texas prison system.

They write from their own experiences and those of others, but many of their observations apply across the country. They write about food, medicine, discipline, parole, programming, solitary confinement, and other things. And they write well.

Here are six examples to give you a flavor. Even if we don’t adopt every suggestion, doesn’t it make sense to listen?

The intake process. It ought to help steer people toward reform and rehabilitation, but it doesn’t. Instead, it degrades them and strips them of their dignity. Sometimes, new arrivals are greeted with words like, “Welcome to hell,” and then treated accordingly. Staff may yell obscenities in their ear throughout the process, among other things. This routine demands submission but discourages rehabilitation. It isn’t necessary and doesn’t comport with the state’s mission statement.

The commissary. Stock it appropriately to reduce the black market for goods that inmates otherwise steal from the kitchen or laundry at taxpayers’ expense. Stock it with healthier foods, including fruits and vegetables, and inmates will eat them. Don’t worry about their making wine out of the fruit because they’re making the wine, anyway. “[They] make wine without fruit by using fruit juice, mint sticks, raisins stolen from the kitchen, and other black-market items procured in prison. Trying to eliminate the exceptional activities of a few by prohibiting healthy items for all serves no purpose. The wine is still being made!”

Computers and technology. Expand inmates’ access to it. You can monitor and regulate their use, but keeping them from it only impedes their successful reentry into society. “When an inmate is released, they should be familiar with the technology they are expected to interact with on a daily basis.”

Visitation. Expand visiting hours and improve the experience. Don’t make it more difficult or unpleasant for people. Nurture the bonds that inmates have with their loved ones. Don’t fleece them with surcharges on phone calls and emails.

Differences among staff. Bad officers create hostile work environments for other officers and foster bad behavior among the inmates. Good officers try to treat inmates with respect and make the prison safer for staff and inmates alike. They view inmates as people who are worthy of respect and who will one day rejoin society.

Reward good behavior. Don’t just punish bad behavior. “Giving inmates the ability to set themselves apart … would give an inmate a reason to care about his future; it would give him hope that his future can be different; and giving inmates hope about a better future will change the culture of the prison system.”


Why Soak the Rich When We Can Punk the Poor?

Speaking of probation, it’s supposed to be that you don’t go to jail for being poor.

Thirty years ago, the U.S. Supreme Court ruled that a court couldn’t revoke your probation and imprison you for not paying a fine or restitution unless the court found, after inquiry, that you somehow could pay the fine or restitution, or even if you couldn’t, that no other alternative to imprisonment, like community service, would adequately punish or deter you. See Bearden v. Georgia, 461 U.S. 660 (1983).

But according to a yearlong NPR study, we’re not there yet. The study researched the law in all fifty states and conducted over 150 interviews with lawyers, judges, public officials, policy experts, and probationers in and out of jail. Two key findings emerged:

  1. Defendants are charged for a long list of services that were once free—including ones that are required by the Constitution.
  2. Poor people sometimes go to jail when they fall behind on their payments.

As we’ve noted before, the problem gets worse when we outsource these core public functions to private, for-profit enterprise.

Here’s how one civil-liberties lawyer put it: “It’s not that it’s wrong to charge people money as a way to punish them. But there have to be alternatives for people who can’t pay. And that alternative cannot be: incarceration if you’re poor, payment if you’re rich.”

Meanwhile, meet two Harvard-trained lawyers whose non-profit law firm works to reconcile our values and reality. In particular, they’ve sued private probation companies to stop abusive practices that fleece people for minor offenses then throw them in jail when they can’t pay the surcharges. You can find their website at

They deserve our support.

Out of the Mouths (or Lives) of Babes

If you’re on probation, can the court require you to surrender your passwords to your electronic devices and social-media accounts, so they can be searched at any time?

California has been weighing that question lately, and one month ago, the Court of Appeal issued decisions in two separate juvenile cases—one with a girl and one with a boy—that help shed light on the answer.

For starters, courts have plenty of discretion in formulating probation conditions, and when it comes to kids, they have even more latitude than they do with adults because kids need more guidance and supervision, and their rights haven’t ripened to maturity.

The final analysis, however, is the same for kids or adults: A probation condition is invalid if it’s not reasonably related to any of the following: (1) your underlying crime; (2) conduct that is criminal in itself; or (3) conduct that makes it more likely you’ll commit more crime. See People v. Lent (1975) 15 Cal. 3d 481, 486; In re D.G. (2010) 187 Cal. App. 4th 47, 52-53 (applying Lent to juvenile probation conditions).

First, the girl’s case. It began one day when she was meeting with her school counselor, who thought she was high on something because she was acting fidgety and her pupils were dilated. After their meeting, the girl left her purse behind, so the counselor opened it and found a sandwich bag of 30-45 orange pills. The counselor took one of the pills before the girl came back for her purse, and the pill later tested positive for amphetamine.

Subsequently, the girl admitted to misdemeanor possession of ecstasy, and the court put her on probation, which included drug testing as well as searches of her person, room, vehicle, and property.

She didn’t fight those conditions, but another one was that she submit to searches of her electronic devices and surrender her passwords to them. The probation office hadn’t recommended that, and the girl objected to it, but the court wouldn’t budge.

On appeal, however, the court struck that condition because there was nothing in the record that tied the girl’s drug possession to her use of electronic devices. The government argued that she could’ve used her devices to sell the pills, but there was no evidence she ever did that. Since her use of electronic devices was not criminal in itself, and it bore no reasonable relationship to her risk of getting in trouble again, the court struck the condition.

Next, the boy’s case. It began one night when he and his friends robbed and assaulted three different people. The boy was already on probation because of a prior robbery, and he admitted the new violations. The court ordered him detained, and it also ordered all his probation conditions to remain in place, including existing search conditions for his person, room, vehicle, and property. The prosecutor then suggested an additional search condition for his electronic devices, and the court agreed, ordering the boy to submit to searches of his electronic devices and social-media accounts and to turn over all his passwords.

On appeal, the court agreed that the boy, who’d stolen cell phones in the past, would need to submit to searches of devices found in his possession to confirm that he owned them.

But the court stopped short of permitting unfettered searches of the devices he did own or requiring him to give up his social-media passwords. That was a step too far because there was no evidence that the boy used email, text messaging, social media, or other personal data to facilitate his criminal activity, and his personal data implicated not just his privacy rights but those of other kids and people who were not subject to court supervision. So the court modified the electronics-search condition accordingly.

Parole and Realignment in California

Want to know about parole in California?

Well, it’s complicated because the law changes all the time in all kinds of ways, and it recently changed in a big way on October 1, 2011 when the Criminal Justice Realignment Act went into effect. Actually, the new law kind of changed everything. The purpose was to reduce the state’s prison and parolee populations and to shift some of the burden of housing and supervising them to the counties. The law responded to the U.S. Supreme Court’s ruling in 2011 that California’s prisons were so overcrowded—at nearly 200% of their capacity—that they violated the Eighth Amendment. The Court ordered the state to reduce its prison population to 137.5% of capacity, and the Realignment Act followed.

Parole, as you may know, is not quite the same as probation. Since the late 1970s, parole in California was a form of supervision that followed the end of your felony prison sentence. It was administered by parole agents or officers who were employed by and reported to the state’s Department of Corrections and Rehabilitation. Probation, on the other hand, was (and still is) a form of supervision that’s a part of your sentence, whether on a felony or misdemeanor. Probation reduces or replaces the amount of time that you may otherwise have to spend in custody, and it’s administered by the court or its probation department.

Since realignment, however, these two concepts have sort of converged because, for some felonies, you now serve your sentence in the county jail rather than state prison, and depending on where you go, you can now be paroled to the state or the county or not at all.

Here’s how it works. If you’re convicted of a non-violent, non-sexual, and non-serious felony then you generally will serve your time in the county jail, not the state prison, and if you’re sentenced to serve out your full term, then you’re released afterward without parole. Or, in such “non-non-non” cases, the court may split your sentence so that you serve part of it in the county jail and the rest on a form of parole that’s now called “mandatory supervision,” where you’re supervised by the county probation department, not the state department of corrections. On the other hand, if you’re convicted of a violent or serious felony or have such priors on your record, or if you’re deemed a high-risk sex offender or mentally-disordered offender, then you will still serve your time in state prison and be supervised afterward by the state’s parole authorities. And if you end up in state prison but don’t have such problems, then you will serve out your time and be released to the supervision of the county in what’s now called “post-release community supervision,” unless you’re already on parole from before October 1, 2011, in which case you remain under the supervision of the state.

The Power, Politics, and Problems of Parole

Here again from the nonprofit Marshall Project is this balanced, sobering look at our nation’s parole boards, part of its months-long investigation into our modern use and disuse of parole, especially in cases of a life sentence with the possibility of parole.

We may define parole in that context as the provisional release of a prisoner before the end of his maximum sentence based on his surrendering to certain conditions.

And it may be a tough nut to crack, but we must strive to do better than this.

One Parole Officer Answers Fifteen Questions Directly

That’s what you get in this feature from the Marshall Project, a nonprofit, nonpartisan news organization covering our criminal justice system. Some of the answers may surprise you, and to think, all they had to do was ask. Which questions would you ask?

  1. What is your average daily caseload?
  2. What is the hardest thing a parolee faces when reentering society?
  3. On average, do you believe that people are on parole for too long, the right amount of time, or not enough time?
  4. What is the best part of your job?
  5. What is the worst part?
  6. What is a common misconception that people have about what you do?
  7. How often do you think parolees are lying to you?
  8. Does parole make a difference?
  9. Do you think most parole conditions are too strict, appropriate, or not strict enough?
  10. What is the most important rule that parolees have to follow?
  11. What is the most ridiculous rule that parolees have to follow?
  12. Is there a specific parolee you often think about?
  13. If you had the power to do one thing to improve public safety, what would it be?
  14. How do you feel about new parole technology, like GPS monitoring?
  15. If you weren’t a parole officer, what do you think you’d be doing for a living?


Taxing the Poor: Private Probation and the Modern Debtors’ Prison

I remember reading about this a couple of years ago and shaking my head, but apparently, the problem hasn’t improved. In some of our more cash-strapped states and counties, courts are privatizing their probation departments, placing this core public function in the hands of private businesses.

Consider the example of Thomas Barrett. The Georgia resident was put on probation for stealing a can of beer. The private company that administered his probation charged him $360 per month in supervision and monitoring fees, even though he was poor and unemployed, and he couldn’t make the payments. He started skipping meals to save more money and catch up, but he fell behind anyway and eventually owed the company over $1000 in fees, which was more than five times the $200 criminal fine he was sentenced to pay for stealing the $2 beer. When he couldn’t pay the fees, the company petitioned to revoke his probation and had him jailed.

Across the political spectrum, we might agree that this is one of those non-delegable duties of government, and if government can no longer afford to do it, we ought to change something to ensure that it can, rather than outsource the job to for-profit enterprises with the wrong incentives. We might agree that we shouldn’t shake down poor people to make up the shortfall and then throw them in cages when they can’t pay.

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