OAKLAND -- Alexander Diaz, a 36-year-old Cuban national, was released from California's Delano State Prison in early February as a state-supervised parolee after serving four months of a 16-month sentence for grand theft. Five months later, Diaz went off the radar.
At some point, he traveled to Alameda County, where police said he stole a delivery van. They say Diaz was driving on the morning of Oct. 4 when the van slammed into Fremont police Officer Patrick Brower, pushing him and his motorcycle across two lanes of traffic into a light pole.
Brower suffered a compound fracture in one leg, but survived and was recovering at home last week after intensive surgery.
On Tuesday, Diaz appeared in Alameda Superior Court for a preliminary hearing on charges of attempted murder and auto theft. If he is convicted, Diaz could return to prison for a long time.
The fates of the two men could have turned out differently if it weren't for an obscure, but far-reaching California statute that is affecting thousands of state inmates, as well as the people who cross their paths, like Brower.
At the time of his arrest, Diaz was the beneficiary of "nonrevocable parole" status. California categorizes thousands of parolees as NRPs each month if they meet certain key criteria and are deemed "nonserious and nonviolent" offenders.
NRP status can change a parolee's life dramatically, and often for the better. Parole officers stop monitoring them. They are free to travel. And unless they commit another crime -- and are rearrested, retried and reconvicted -- the state can't send them back to prison for routine technical violations of any kind.
The law's proponents argue it is a commendable attempt to give nonviolent felons a chance to thrive after prison.
Critics contend the law is defective and even dangerous, and has enabled scores of violent criminals to roam free and unchecked across California, committing crimes that might never have happened if they had been under active parole supervision.
A series of recent high-profile assaults by NRPs have increased tensions around the issue. Victim advocacy groups and police protection organizations are uniting in their efforts to dismantle the law entirely -- or at the least spur a review of its efficacy.
On Oct. 8, a state judge in San Diego heard arguments in a lawsuit brought by Crime Victims United, which is protesting the law's constitutionality. Assemblyman Ted Lieu, D-Torrance, one of the law's most vociferous opponents, has pushed for an investigation by the state inspector general.
"Most members of the Legislature were duped into believing that felons that committed violent, serious crimes would not be eligible for NRP," Lieu said, "But it turns out that it includes all sorts of heinous crimes."
Even as opposition to the law mounts, experts and officials who work in the prison system are acknowledging the pitfalls that years of repeatedly incarcerating nonviolent offenders have had on both the system itself, in the form of overcrowding, and on the well-being of the largely African-American and Latino communities most affected.
"In theory, it's a good idea," said Allyson West, the executive director of the California Reentry Program at San Quentin State Prison. "But what I see in practice is that NRPs often need services that suddenly aren't available to them, they can't get the right referrals, or a safe place to live; it can hurt their ability to get the programs and services they need to avoid going back to prison."
Since the statute was enacted in January, NRPs have been involved in a number of assaults across the state.
On July 10, police shot and killed 28-year old Joseph Javier Rueda in Sun Valley after Rueda, who had been classified as "low level and nonviolent" and given NRP status, led police on a car chase, then took out a handgun and started shooting.
Another case that drew Lieu's attention was that of Tammy Caroline Bouslaugh, a resident of Tulare County, who was convicted of killing her husband and cutting him up into small pieces. She was convicted of involuntary manslaughter and later given NRP status.
Lieu wrote an angry letter in May to Matthew Cate, who heads up the California Department of Corrections and Rehabilitation. "In laypersons' terms, we basically have a psychotic, illegal-drug-using murderer who killed her spouse and chopped him up now being granted no parole supervision and no ability for law enforcement to arrest her for a parole violation," he wrote.
Cate responded to Lieu that the policy made sense because her offenses were deemed "nonserious and nonviolent" under the law.
The state Department of Corrections has acknowledged that due to a "flaw" in its system over the spring and summer, the state granted more than 600 inmates NRP status, only to realize afterward that the inmates were, in fact, violent and required active parole supervision after all. By then, however, many had disappeared. The department is still looking for about 10 percent of them.
"We're close to bringing 90 percent of them under supervision again," said Ed Achziger, an NRP Case Manager for Region 2, which includes much of Northern California, "They have to be put back under regular supervision."
News like this infuriates Harriet Salarno, of Crime Victims United. "Why in the world are we releasing them to the counties when they are not rehabilitated?" Salarno said. "You've got to wait until they murder somebody?"
California's method of adjudicating NRP status has also come under criticism. To qualify for NRP status, inmates must meet several criteria. Sex offenders, murderers and rapists are immediately excluded. Those who pass the first screenings are then subjected to a review by the California Static Risk Assessment tool, an automated system adopted three years ago. Based on the 1-to-5 score they receive -- 1's and 2's are deemed nonviolent, while 3's, 4's and 5's are considered violent and excluded -- they may be placed into the NRP program.
"This law was passed based on the assumption that there would be a human review of these folks," Lieu said. "But I don't believe a computer could adequately do what we trust juries, judges and parole officers to do."
Achziger said the computer is the "chief factor" in determining NRP placement. "Once it's approved or disapproved, there's no discretion," he said. Not so, said Rick Winistorfer, the associate director of department of corrections' Adult Parole Operations. Though Winistorfer acknowledges that the system is "flawed," he counters that "mechanisms" have been put in place to minimize error. "Every case is touched in one way or another," he said. "Our staff has to review line by line that rap sheet looking for eligibility."
Even so, there are errors.
Alexander Diaz, it turns out, was arrested in 2006 for attempted murder, according to Department of Justice records, though charges were never filed. However, the risk assessment tool doesn't take into account arrests for violent offenses, only convictions. And even if it did, California has classed plenty of serious crimes as "nonviolent."
According to Lieu, at least 68 felons have been granted NRP status after being convicted of offenses including involuntary manslaughter (12), solicitation of murder (8), cruelty against children (10), elder abuse (15) and battery causing serious bodily injury (22). The state's Penal Code even deems domestic violence a "nonviolent, nonserious" crime. The system is "a form of parole with no oversight," Winistorfer said.
Supporters speak out
NRP's defenders point out that recidivists-turned-violent garner news attention, but society ultimately benefits from the program.
"NRP is a step in the right direction," said Kris Lev-Twombly, the director of programs at the Ella Baker Center for Human Rights in Oakland.
Lev-Twombly and others argue that the state needlessly wastes money and resources locking up people who would be better served by rehabilitative systems that focus on substance abuse, mental health and trauma. The savings, Lev-Twombly calculates, would be considerable: "almost a billion dollars."
The parolees themselves may pay the highest cost. Many may not actually want the freedom that NRP status confers.
"The saddest thing is when parolees come to you and ask for help, but they can't get it because they've been classified as NRP," said San Quentin's West. "That's regrettable."
It's difficult to say whether Diaz would have benefitted from more attention. He didn't fight or resist arrest when he was recaptured this month. Fremont police Sgt. Chris Mazzone said he simply looked "stunned."
It's not so difficult to understand why.
Scott Johnson is the Oakland Tribune's violence reporting fellow, an investigative-reporting position funded by the California Endowment. Johnson will be with Bay Area News Group for a year, reporting on a wide range of issues, including those related to the effects of violence on the mental health of Oakland residents. Contact him at 510-208-6429.