Thursday, February 28, 2008

Too Many Jails/Not Enough Imagination

So here we are, as the Associated Press (AP) reports, with more people incarcerted per capita than ever before (one in 99), and we are still somehow talking about building more jails. Looked at in the microcosm of Santa Barbara County, it might make some sense to build a modest facility in North County (the place generating more felony arrests), to deal with a long-standing concern (mostly among law enforcement officials) that there is an over-crowding problem. But where does this ultimately lead us? You guessed it: further down the path toward a bankruptcy of money and good ideas. Sheriff Bill Brown is trying to raise at least $90 million dollars to build a new jail facility. I wonder if he, or anyone else, has asked what the impact of that money would be (or even half of it) were we to devote it to some of the neglected social services that don't have nearly the political power of a Sheriff. What about County Mental Health Services or, for that matter, the County Probation Department? Ask the Chief Probation Officer what could be done in terms of added personnel and community supervision if they had an additional $10 million in their budget. There are any number of agencies, departments and non-profits which are already doing well to combat the core problems leading to crime that can be combatted. The big three are: Mental Illness, Poverty and Substance Abuse. Why don't we support them in their effective and laudable efforts in crime prevention; and, more fundamentally, giving disadvantaged and wayward people a chance to succeed without resorting to crime?

The Pew report, cited in the AP article, was compiled by the Center on the State's Public Safety Performance Project, which is working directly with 13 states on developing programs to divert offenders from prison without jeopardizing public safety.

"For all the money spent on corrections today, there hasn't been a clear and convincing return for public safety," said the project's director, Adam Gelb.

I think the same might be true here in Santa Barbara. I encourage Sheriff Brown, and others in charge of our money, to put more thought into jail alternatives. Maybe we can do our part to show others that more people incarcerated is not the answer to the problem, but rather is the problem itself.

Wednesday, February 20, 2008

If You Build It...

I need to go on record about something. I used to work in a county that had recently built a new jail facility. What I noticed was that people were doing real jail time for a variety of the least serious crimes (the most noteworthy being "Driving on a Suspended Licensed"). People with priors were being thrown by red-faced judges into jail for lengthy stints in actual jail. Also, the equivalent of the most common jail alternative, the Sheriff's Work Alternative Program (SWAP), which was called "Work Release", had a couple of special rules that prevented many defendants from entering the program. For example, if the defendant had ever been arrested for resisting arrest (not necessarily convicted, just arrested), then into jail they went; no jail alternatives. Also, if the defendant was serving a sentence for any act of domestic violence, no work program; just jail. I predict the same will happen in Santa Barbara. Yes, there is a jail over crowding program, but the severity of it is debatable. Moreover, if the prevention programs that are supposed to tied to the program are effective, then that too should lessen the inmate population.

Now I don't doubt the sincerity of Sheriff Bill Brown, in his quest for a new jail facility, for a minute. But asking a sheriff whether jails are a good thing is kind of like asking a queen bee whether hives are a good thing. As Max Weber pointed out, bureaucracies must grow; that is what they do. They don't necessarily intend to grow, but growing brings so many collateral benefits to the individual actors, that they do so naturally and instinctively. They draw more funding, more employees, and sooner or later they are bigger of a big shot, and are making a bigger salary with a better retirement.

I have another prediction. The so-called anti-recidivism and other prevention programming that are NOW tied to the new jail proposal are going to fall by the wayside in the name of fiscal responsibility. The true purpose of the money now being sought from the County, directly from the taxpayers, and the State, is to build a new jail facility, not to trump years of budget cuts of social welfare. It sounds great, of course, to increase spending on mental health programs, homeless shelters, drug rehabilitation, etc. However, it will be easy to dump these as "pie in the sky", and generally unsatisfying expenditures that we just can't afford. The success of these programs is hard measure. The success of a jail, however, is easy to measure. If it's full of inmates; it must be working!

Thursday, February 14, 2008

Vomiting in Public Declared Unlawful

With flu season mercifully coming to a close, it's not too late for me to warn the local population (and particularly the residents of Isla Vista, California) that, yes indeed, the act of vomiting in public is likely to get you detained if not arrested, and I'm dead serious. No, vomiting, though thoroughly unpleasant for everyone in the near vicinity of it, is not actually illegal. For one thing, it is usually involuntary. In fact, often times, you can't stop it if you try. Yes, of course, alcohol abuse is a common cause of vomiting. But vomiting, as a physician recently explained to me, is a disease. Vomiting, per se, is not an act as much as it is a symptom of indigestion and it knows many causes. Alcoholic beverages can be, and often are, a contributing factor, but common experience teaches us that there are many other factors (e.g., allergies, bad food, influenza, excessive ingestion of any substance, exercise, being around others who are vomitting, and gory/disgusting images, sounds and/or odors). The union of alcohol consumption and one or more of these other factors may lead to vomit, and that doesn't mean that a crime has been committed.
I am calling on the local population that drinks alcohol to slow down. I am also asking the local police to slow down on arresting people simply because they vomited and they suspect (or know) alcohol was involved. What's wrong with giving them a rub on the back, a towel to wipe off their mouth and maybe a ride home? This is how we would treat a friend or family member in their hour of need, would we not? In this same regard, I will continue to call upon the powers that be to install a sobering center in Isla Vista; as much as that may reduce my earnings as a lawyer with a number of clients facing public intoxication misdemeanor charges. It's the right thing to do.

Saturday, February 9, 2008

A Public Place

In my practice I am often asked "what is considered a "public place"?" (i.e., in terms of where the police can enter without a warrant, and whether you are considered in public under the definitions of certain misdemeanors like "public intoxication" and "minor in possession"). The following is an excerpt from the recent Krohn case (cited below) which gives some guidance on this case by case inquiry:

"The term “public place” generally means “a location readily accessible to all those who wish to go there … .” People v. Perez (1976) 64 Cal. App. 3d 297, 301. The key consideration is whether a member of the public can access the place “without challenge.” People v. Olson (1971) 18 Cal. App. 3d 592, 598. Thus, the Olson court considered a house's front yard to be a public place because “defendant, a complete stranger to [the homeowner], was able to walk through the outside area of her home to the front door without challenge.” In contrast, a location guarded by a fence or locked door is not readily accessible to the public, and is not a public place. In People v. White (1991) 227 Cal. App. 3d 886, the court refused to deem another house's front yard a public place because it was “surrounded by a three-and-a-half foot-high fence with a gate which was unlocked at the time.” (Id. at p. 892.) It noted “the fence, gate, and [three pet] dogs all provided challenge to public access.” (Ibid.) And an interior hallway of an apartment building was considered to be a public place because “[t]here were no locked gates or doors to keep the public from entering” it. (Perez, supra, 64 Cal. App. 3d at p. 301." People v. Krohn, (Cal. Ct. App. 2007) 149 Cal. App. 4th 1294, 1298-1299.

If you don't want random people, including police officers (whether you consider them "random" or not), snooping around your yard, balconies and other outdoor places on your property, and don't want you or your guest to be arrestable for public intoxication and/or minor in possession in these areas, you should enclose these areas with a fence. It doesn't have to be a tall fence, nor even locked, per White. Dogs and "No solicitors"/"No Trespassing" signs may present these legal cognizable "challenges" to unwanted intruders, however, it seems the only clear way to protect these areas from being considered a public place is to fence them in. I will say this: I'd feel more "challenged" by a rottweiler than a 3 and half foot fence.

Saturday, February 2, 2008

The Whine Country

Caught between the CHP, who want to want to discourage drinking and driving and the winemakers, who are saying they want to prevent limos, vans, and buses from bringing them literally busloads of customers (some a little too tipsy for their tastes; no pun intended), are the wine tourists. Interestingly, the winemakers are now speaking out against their most enthusiastic customers; those who show up in limos, buses, and vans to get their drink on. Gasp! Can you believe that people who choose to travel from other parts of the state to taste wine are, for the most part, actually quite fond of getting drunk? Those that make their living selling fermented grape juice, at a healthy profit per unit sold, are really complaining that these genuinely enthusiastic members of their customer base are showing up by the busload.
It's unbelievable. It seems that winemakers should be happy that their sales are now soaring in the wake of the hit movie Sideways, rather than whining about some of the predictable pitfalls associated with successfully peddling alcohol; an addictive and oft-abused substance. And, considering the findings of a recent study at Caltech, which shows that peoples' taste in wine is highly correlated with price, it would seem that the industry might want to count their blessings. While there are some oenophiles who go to tasting rooms to check out the latest releases and actually speak "intelligently" about them as they swirl tiny amounts of them in their glasses, roll them around their palates for a minute or two only to spit them out, the majority of their sales are to the people who like the sensation created by gulping these alcoholic beverages in copious amounts much more than they enjoy the "complex" flavors associated with them.
It is truly unfortunate that the winemakers, in an effort to uphold their phoney image of catering primarily to the sophisticated connoisseurs, are speaking out so stridently against the best DUI prevention mechanism of all: designated drivers.

Friday, February 1, 2008

The "Sideways effect"...

The Coastal CHP, responding to what they call the "Sideways Effect", has just received a grant of $658,000 to pay for more enforcement of DUI laws due to what they are saying is an increase in the numbers of "wine-related activities" that have come about since the acclaimed movie Sideways hit the theatres in 2004. Just in time, guys! Actually, I haven't seen any data which proves that more wine tasters in Santa Ynez has led to more DUI related accidents, but I will at least concede that it would be logical if there were at least a few more than average now that the Santa Ynez wine country is "on the map". So, I won't speak out against this effort to deter and prevent crashes which are caused by inebriates. But I will ask that our buddies in beige honor the US Constitution in all of their grant-funded activities, and make sure they follow the prescriptions of the California Code of Regulations and the Department of Health services in administering breath and blood tests as they do so. Thanks in advance.