[Pnews] Unfair Punishment Part One: Victim Discrimination

[Prisoner News]

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  Unfair Punishment 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.

By Sam Levin 
<http://www.eastbayexpress.com/oakland/ArticleArchives?author=1317645> 
@SamTLevin <http://twitter.com/SamTLevin>
mg_ft_3622.jpg

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 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, 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, 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, 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, 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 that showed up to 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 reject 
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; for more, see Part Two in our "Unfair Punishment" series 
next week).

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.

------------------------------------------------------------------------

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