Even in Pandemic, Prison Releases Pose Political Risk

3 min
A California Department of Corrections and Rehabilitation (CDCR) officer wears a protective mask as he stands guard at the front gate of San Quentin State Prison on June 29, 2020. A COVID-19 outbreak has ravaged the prison's population. (Justin Sullivan/Getty Images)

When Michael Mendoza was arrested at age 15 in 1996 for his involvement in a gang-related murder, California was in the throes of its tough-on-crime phase.

Gang violence was exploding. Bill Clinton was president and Republican Pete Wilson was governor. Two years earlier, led by Democrats, Congress had passed a national crime bill, while California voters overwhelmingly approved the state's draconian three-strikes law a few months later.

It was a movement that crossed party lines.

"I found myself standing before a judge ... where I was being sentenced and tried as an adult and basically told that I was gonna go to prison for the rest of my life," Mendoza recalled.

"(I was) called the super predator, a monster, a kid who was never going to succeed ... At that age, I couldn't fathom or understand why I was being thrown away. And it felt really hopeless," he said.

Mendoza likely would have spent the rest of his life in prison. But in 2013, state lawmakers passed a bill allowing parole hearings for inmates like him, who committed their crimes as juveniles.

Even in the face of a 2011 U.S. Supreme Court order to reduce the state's prison population, that legislation is the type of go-slow, incremental approach to prison release that California has embraced over the past decade.

The federal court order to reduce the inmate population is still in place – and now, with COVID-19 exploding in state prisons, Gov. Gavin Newsom has moved to release thousands of state prisoners early.

Newsom's decision is being criticized by criminal justice hardliners as as a threat to public safety even as advocates for prisoners say it doesn’t go far enough. More than 8,300 prisoners have tested positive for COVID-19 and 50 inmates have died so far from coronavirus complications.

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Mendoza, who is now national director of the #Cut50 campaign, which aims to reduce both incarceration and crime across the nation, said it's not surprising that Newsom hasn't gone even further with those releases, offering them only to people who would be getting out within six months anyway or are at severe risk of dying from COVID-19.

"I believe that within the last five governors, starting from 2000 till now, (criminal justice reform) has been piecemeal and it's been piecemeal because of the scare tactics and the Willie Horton stories and the politics," he said.

Willie Horton. It’s a name that inevitably comes up when you talk about the intersection of politics and criminal justice.

Horton, a Black man, was used in Republican campaign ads to attack Democrat Michael Dukakis during the 1988 presidential race against George H.W. Bush. Horton, a convicted murderer, was furloughed from prison for a weekend and went on to commit rape, assault and robbery.

It's the nightmare scenario for any politician, said Loyola Law School professor Jessica Levinson.

"What governors don't want when we're talking about prisoner release is the headline that says, 'Gov. Newsom released this prisoner and then they did this egregious thing,' " she said.

Even a progressive Democrat in a deep-blue state will consider the political tradeoffs, Levinson said. She noted that under both Newsom and his predecessor, Jerry Brown, the state only moved to cut the prison population under duress: first a court order, now a global pandemic.

"What's gonna hurt Gov. Newsom more? Is it a story that there was a coronavirus explosion in the prisons or is it a story that a prisoner that he released committed a heinous crime? I think it's probably door number two, and I think that could be part of his reticence," she said.

Mark Leno spent 14 years in the state Legislature starting in 2002. He had a front-row seat to the state's evolution on criminal justice policy over that period, as voters became more disillusioned with prison spending and more open to rolling back the harsh laws of the 1990s. He acknowledged that just one Willie Horton can do lasting political damage.

"Just one, just one. That's all you need. One horrible situation where someone re-offends in a very unpleasant, brutal way," Leno said. "And so that's always in the back of someone's mind. And nothing is foolproof. Nothing is 100% ... There is risk involved."

Leno was among the Democrats pushing most aggressively for more prison releases during his time in the Legislature, and he came up against staunch opposition, even when the prisoners in question were comatose.

"You'd think that would be the low-hanging fruit, that would be the slam dunk," he said of the bill to release medically incapacitated prisoners, who were costing the state tens of millions of dollars a year. "We got a lot of resistance to this."

Leno noted that it wasn't just the Supreme Court order that finally prompted state leaders to consider laws aimed at reducing the prison population: It was that order, combined with a state budget crisis, as well as shifting public opinion. Many of the most significant criminal justice reforms enacted in California over the past decade were passed by voters, not lawmakers.

Among those who have voted against those types of laws consistently is state Sen. Jim Nielsen, R-Tehama. He opposes Newsom’s release plan, even though it is largely limited to prisoners set for release soon anyway, saying it ignores the rights of victims.

"The victims, they are the most forgotten individuals in all of criminal justice today ... They have no standing anymore. And that's very tragically sad," Nielsen said.

Nielsen also believes that the prisoners set for release are not yet rehabilitated, and that they could spread COVID-19 to the broader community.

"They will be doing what un-rehabilitated criminals do. They will re-offend," he said. "And in this particular case, they have been in an infected environment. And it's rather ironic and risky, ironic and risky, to put individuals who have been in a high-risk environment into the community."

But former prisoners like Michael Mendoza are hopeful. He said he's seen a notable shift among both state leaders and the public in recent years, and the substantive policy change that's come out of that evolution.

"There are more people that are impacted by the criminal justice system like myself that are out here and advocating, sharing our stories ... How we are human beings, how we do have the capacity to grow, mature and change," Mendoza said.

While Newsom may be not going as far or as fast as Mendoza would like, he still sees this governor as the most willing to try in recent memory.

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