Letter on Proposed Definition of Recidivism

Thursday, July 3, 2014

Ms. Linda M. Penner, Chair
Board of State and Community Corrections
600 Bercut Drive
Sacramento, CA  95811


Dear Chair Penner and Members of the Board:

Thank you for the opportunity to comment on the Board’s proposed definition of criminal “recidivism.”  As a member of the California State Senate and former Chairman of the California Board of Prison Terms, I applaud your efforts to provide the public, policymakers and the law enforcement community with a consistent standard of recidivism. I clearly understand that this task and the challenges that come with it were imposed upon you through legislation.

Recidivism is defined as a conviction of a new crime committed within three years of release from custody or committed within three years of placement on supervision for a previous criminal conviction.

There is an urgent need for consistent definitions and comprehensive data to better evaluate criminal justice outcomes under California’s prison realignment law.  This proposed definition of recidivism is, however, problematic on several fronts. It is designed to exclude criminal conduct that previously led to parole revocation and a return to prison.  If adopted, this definition will produce a statistic dramatically lower (as much as 15 percent lower) than CDCR’s traditional definition. Inevitably, a narrow definition will compromise comparative studies and give the public an egregiously false perception that criminal activity has declined.

The transfer of tens of thousands of felons from the state to overwhelmed county jurisdictions has been unambiguous; but conspicuously omitted from the realignment plan are data collection procedures to ensure transparency and accountability for outcomes.  Exacerbating the problem the California Department of Correction and Rehabilitation (CDCR) has suspended publication of several periodic reports which chronicle the characteristics and offenses of the inmate population.  What does CDCR have to conceal? Respectfully, this is not a rhetorical question. I am endeavoring to get a meaningful response from CDCR officials.

In May, my bi-partisan Senate Bill 1097 was held in Senate Appropriations Committee.  The bill would have required each county to prepare a standardized annual report summarizing data pertaining to offenders sentenced as felons to serve in local correctional facilities and felons released from prison to community supervision.  These purposeful omissions leave the public and policymakers in the dark.

Without meaningful data analyzing criminal justice trends and outcomes efforts to improve the system will be undermined at best.  The recently released U.S. Department of Justice study, Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 (2014) is instructive in this regard.  The comprehensive study (including California parolees) finds that:

“Overall, 67.8% of the 404,638 state prisoners released in 2005 in 30 states were arrested within 3 years of release, and 76.6% were arrested within 5 years of release….., 49.7% had either a parole or probation violation or an arrest for a new offense within 3 years that led to imprisonment, and 55.1% had a parole or probation violation or an arrest that led to imprisonment within 5 years.”

The federal study was designed to provide a “complete assessment of the number and types of crimes committed by released persons in the years following their release.”  This study reveals that property offenders are more likely to recidivate than violent offenders and when they do reoffend they are almost as violent as those who have been previously convicted of violent felonies.  It would be prudent for the State of California to adopt similar measures so that the criminal recidivism of California’s convicted felons can be productively assessed.  This Board’s current proposal to narrowly define recidivism as “conviction of a new crime” is clearly inconsistent with the definition employed by the U.S. Department of Justice, which is based upon arrests and new charges.  Moreover, the proposed definition will preclude meaningful comparison with CDCR’s traditional definition of recidivism which included parole revocations.

As Chairman of the Board of Prison Terms, I observed first hand that the vast majority of parole revocations (as many as 80%) were based upon commission of new crimes and not technical violations.  Even violations classified as technical are not always merely technical. A repetitious pattern of technical violations is an absolute indication of continuing criminality and escalating dangerousness.  Since realignment thousands of paroled sex offenders and gang offenders have illegally removed their GPS devices with little to no consequence.  Prior to realignment parolees who removed their GPS devices were subject to revocation and a return to prison for up to one year without any early release credits.  A parolee’s flight from the state was treated as escape.

Under the provisions of realignment some parolees are still subject to state supervision and can be returned to custody but not to prison.  Public attention has been drawn to the fact that convicted drug dealers, car thieves and commercial burglars are no longer being sent to prison.  It is not as widely understood that paroled robbers, child molesters, and gang offenders are also subject to incarceration in county jail in the event of parole revocation.  Many counties simply do not have the capacity to assume responsibility for the parole function abandoned by the state.  On June 21 the Los Angeles Times reported (Gov. Jerry Brown’s prison reforms haven’t lived up to his billing by Paige St. John) that counties have been forced to release jail inmates early.  “San Joaquin County holds parole violators as little as one day, and Fresno County sometimes refuses to accept any.” Record of these violations is accessible only through news reports, if at all.

Ignoring parole violations is not just a statistical problem but one with horrific consequences. The case of Sidney Jerome DeAvila provides a gruesome illustration. DeAvila, a convicted child molester was booked into the San Joaquin County Jail at least 10 times in less than a year for various parole violations but was released within 24 hours in almost every instance due to overcrowding.  In February of 2013, days after being released from jail once again, DeAvila was arrested on charges of robbing, raping and murdering his 76 year old grandmother.  Some may not consider parole violations to be recidivism but the victims and their families know better.

In the proposed definition of recidivism, we ignore these criminal lead indicators at our own peril.  Recidivism does not decrease simply because we neglect to record criminal activity.  The unintended consequence of your proposal would be an illusory reduction in recidivism based upon an under-inclusive definition rather than a real decline in criminal activity.  This would impede efforts to determine which policies and programs work best and would constitute a disservice to the people of California.

Thank you again for the opportunity to comment on your Board’s proposed definition of criminal “recidivism.”  In the interest of greater public safety and more transparent public policy, I urge you to reconsider your proposed definition in favor of one which can be productively compared with historical data or with the definition of recidivism employed by the U.S. Department of Justice.


Jim Nielsen
Senator, 4th District

Cc: Members, Board of State and Community Corrections