A Personal Perspective on Prison Healthcare

Some readers may recall the excellent posts that appeared in the SF Bay Guardian politics blog for a while, authored by an unnamed inmate in a CA facility. Now released from prison (congratulations, and welcome back!) Just A Guy continues to post about his experiences.

His recent post in the Guardian criticizes Governor Schwarzenegger for the decision to appeal the Plata/Coleman ruling.

Don’t Arnold and the state government see this isn’t about just health care for inmates, but also about rational laws, rational sentencing, and treating human beings with dignity and respect? I know the majority of the public would rather bury its head in the sand than face this issue, but this issue is in your living rooms, in your classrooms, and on your streets. It isn’t just the gang-banging jerk from the hood that’s being thrown in jail for ridiculous amounts of time in California -- it’s also middle class addicts, college students etc … It’s your neighbors, your friends’ kids, and your kids that are all affected by this insanity.

New San Quentin Hospital Opens

As reported by the Associated Press on Seattle Pi:

The receiver who once ran California's prison health care system promised three years ago that he would use his court-backed muscle to build a new medical facility in record time.

The pledge has come true with the opening of a $136 million, five-story hospital at San Quentin State Prison - four months earlier than its ambitious schedule and $10 million under budget.

Yet the state-of-the-art facility already is a relic from a time when California had money and the federal receiver could act with impunity. Its aggressive advocate, receiver Robert Sillen, is gone, too.

Officials showed off the 50-bed hospital and its dental, medical and mental health outpatient clinics in an exclusive tour for The Associated Press last week, even before it was seen by top state officials. Parts of the facility are already in use and the rest are scheduled to open in January.

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props to Jerry Jarvis for the link.

The Fruit of Humonetarianism: An Expected Decline in Incarceration

As reported recently on the Chron, tight state budgets are expected to lead to a reversal of the incarceration trend nationwide:

The United States may soon see its prison population drop for the first time in almost four decades, a milestone in a nation that locks up more people than any other. The inmate population has risen steadily since the early 1970s as states adopted get-tough policies that sent more people to prison and kept them there longer. But tight budgets now have states rethinking these policies and the costs that come with them.

"It's a reversal of a trend that's been going on for more than a generation," said David Greenberg, a sociology professor at New York University. "In some ways, it's overdue."

The U.S. prison population dropped steadily during most of the 1960s, but it has risen every year since 1972, according to the Bureau of Justice Statistics.

About 739,000 prisoners were admitted to state and federal facilities last year, about 3,500 more than were released, according to new figures from the bureau. The 0.8 percent growth in the prison population is the smallest annual increase this decade and significantly less than the 6.5 percent average annual growth of the 1990s.

Happy Holidays to our readers, and a Happy New Year.

Decline in Inmate Death Rate; Rise in Preventable Deaths

The Federal Receiver's office has recently released information regarding the 2008 inmate death reviews. According to the report, there is an overall decline in inmate deaths, from 248.6 to 215.5 per 100,000 inmates.

Out of a total of 369 deaths, 122 - the largest category - were due to cancer. Suicides, accounting for 38 deaths, come in second as causes of death. The report classifies 17% of deaths as "possibly preventable". Out of the 303 non-preventable causes, cancer, suicide, and liver disease are the leading causes, which, as the report states, are "not unexpected given the high incidence of smoking, drug abuse and depression in the incarcerated population". Out of the 61 possibly preventable deaths, cancer, sudden cardiac arrest, and pneumonia top the list. The most common lapses in care identified by the report are misdiagnosis (81 cases) and lack of access to appropriate care (25 cases). The report finds strong causal connections between the identified lapses in care and preventable deaths.

The report also provides some interesting discussion of preventability, which, as it states, is "in the eye of the beholder". The multiple lapses of care are, of course, a cause for concern, but I for one am thankful for the transparency of information.

Resuscitating the Michigan Deal?

(image courtesy Michigan Radio)

Attentive followers of the overcrowding crisis may recall the failure of the deal to house California prisoners in Michigan institutions back in August. Since then, the correctional institutions in question - the maximum security Standish facility and the minimum security Hiwatha facility - have been standing empty, even after Michigan reached a deal to house Pennsylvania prisoners.

The Chron reported yesterday that Michigan is looking at several possibilities, among them a new proposal for CA. Another possibility is housing Guantanamo prisoners, and as Michigan Public Radio reports, Obama administration officials have toured the facility in order to determine whether it would be suitable for the job.

Prop 9 Lives: Access to Parole Suitability Hearing Content

The CDCR website reports on an implementation of one of Prop 9's aspects: Victims, and others, will have access to an online transcript of the inmate's parole suitability hearing before the parole board. The transcripts are emailed to the victim, free of charge, or mailed for a flat fee of $25 per transcript.

This raises understandable concerns about confidentiality, which are answered by limiting the availability of this information to registered victims. The request webpage reads:

Marsy’s Law, Penal Code section 3041.5 (a) (4) permits the victim, next of kin, members of the victim’s family, and two representatives designated by the victim to request and receive a stenographic record of all proceedings. Any persons requesting a hearing transcript must be registered and meet the criteria of a victim as identified through the Office of Victim and Survivor Rights and Services (OVSRS). Please note: You must be registered in order to have your transcript request processed.

Now, the form used to request victim services (see image) allows you to register even if you are a "concerned citizen." However, it does limit notifications of parole hearings to victims and next of kin. It would make sense to similarly limit the ability to request a transcript. Moreover, this mechanism does not prevent forwarding the email received by victims to others.

Given the potential for wide dissemination of parole suitability hearing information, the question is: Does the public have a right to know the content of the hearing? What do you think?

Back on Track Graduation

Two weeks ago, 15 formerly incarcerated men and women graduated from the San Francisco District Attorney's program Back on Track. The video above, from a 2007 news segment, provides an introduction to the premise of the program. The program has a record of dramatic recidivism reduction, but very few participants. Nevertheless, it might be the herald of similar initiatives.

Book Review: Sunbelt Justice by Mona Lynch

Mona Lynch’s new book Sunbelt Justice will hit very close to home for Californian readers. The book tells the story of the Arizonian correctional system, starting with the early twentieth century and ending with Janet Napolitano’s time as governor. It is a fascinating account, which those of us interested in California corrections will read like a good political thriller.

Two principles underlie the Arizonian correctional philosophy: an ethos of self-sufficiency, which led to a lack of sympathy toward offenders, and a dislike for large governments, accompanied by sentiments of frugality. The early days of Arizona corrections were shaped by these ideas. Unencumbered by a yet-nonexistent central command and headed by strong personalities, prisons and juvenile institutions were run on the cheap, relying on a combination of inmate work and tough discipline for their daily operations.

Things briefly changed during the late 1960s with the formation of the Department of Corrections, which was headed, in its initial years, by outsiders. Its first Director, Allen Cook, was a veteran of the California correctional apparatus, and brought with him the large bureaucracies and rehabilitative ideals that characterized California corrections at the time. Initially welcomed, Cook ended up overstaying his welcome. The series of outsiders that succeeded him – most notably McDougall, who brought with him a system of good credits and community corrections reminiscent of Machonochie and, more recently, Murton – were unsupported, and eventually ousted, by the state politics.

The reign of Director Sam Lewis and his successors can best be seen as a reinstatement of a “new-old regime”. Lynch does an excellent job presenting this era’s complexities. On one hand, it is very much in line with (or ahead of) developments that were occurring elsewhere in the nation: the disillusionment with the rehabilitative idea and the emergence of law-and-order politics. On the other hand, in the Arizonian context, it is a variation on the original old theme of harsh discipline and no rehabilitation, a nostalgic return to the roots, albeit with the complication of exponential growth in prison population and a much larger bureaucratical apparatus.

Particular emphasis is given to this transformative period between the late 1970s and mid-1990s; Lynch provides a multilayered account of state politics, federal prison litigation, and their detrimental impact on prison conditions.

It is illuminating to compare Lynch’s insightful and informative account with the parallel Californian history. Arizona was not nearly as committed as California to the rehabilitative ideal, and its early correctional style was much more “Texan” than Californian. The model of inmate farm labor, accompanied by harsh discipline, reminded me very much of the incredible footage in Susanne Mason’s Writ Writer. In that respect, the backlash of the 1980s felt much more like a “homecoming” to toughness and frugality. However, many features are familiar. The political shift to the New Right and the increasing centrality of crime control to political campaigns are very familiar. So are the various legislative acts and voter initiatives of the mid-1990s, which in Arizona, as in California, failed to take into account the disastrous financial effect of county-level increasing sentences on state-level corrections. Even victim initiatives, which are downplayed in Lynch’s account, are in the background, as in California.

The questions I’m left with have to do with the level at which history is made. Arizonian correctional history was shaped by strong personalities, who played, to varying levels of success, on a changing political arena. Is it possible to swing back the punitive pendulum, citing costs? That is what Director McDougall attempted to do in the early 1980s, with only limited and temporary success. This Arizonian lesson does not bode well for an era in California in which the only effective argument against punitiveness is related to taxpayers’ wallets. The other ominous lesson is that of the Supreme Court’s limited support for federal intervention in Arizona prisons, providing only weak support to Judge Muecke’s constant supervision and review of the state’s prison population and conditions. The Roberts court may exhibit a similar level of inhospitability toward the federal intervention in California. Under such conditions, forceful and innovative personalities can prevail only for a limited time, and the fate of the system is ultimately shaped by broader socio-political developments. Perhaps we are now in a better place, and state citizenry recognizes the unsustainability of our correctional monster. In the meantime, Lynch’s excellent book offers an opportunity for grim reflection.

Wiccan Prison Chaplain Case Before Ninth Circuit

(image courtesy Cherry Hill Seminary website)

The religious freedom of inmates has been a central theme in prison rights litigation. The California prison movement has been transformed in important ways through litigation on behalf of Black Muslim inmates; for background on this, check out Christopher Smith's excellent paper or Eric Cummins' wonderful book The Rise and Fall of the California Radical Prison Movement. Following these cases, and others, CDCR employs a "five-faith policy", according to which it employs five paid prison chaplains in the following faiths: Protestant, Catholic, Jewish, Muslim and Native American. Now, a Wiccan clergyman, who has volunteered in California prisons for many years, is challenging this policy before the Ninth Circuit.

Patrick McCollum is a well-respected Wiccan authority, the author of Courting the Lady and a faculty member at Cherry Hill Seminary, a Neo-Pagan educational institution. He has testified before the U.S. Commission on Civil Rights on prisoners' religious freedom. According to the information on the book flap, McCollum began his service as a statewide Wiccan chaplain in 1997, after advising the State in a dispute involving a Pagan inmate. He is a member of the American Correctional Chaplains Association.

McCollum's case was defeated in the District Court, for a preliminary issue of standing. The District Court decided that McCollum lacked standing and could therefore not sue CDCR; the only people with standing to sue in such matters are current inmates, not people looking to be hired for the position. After all, said the court, at most McCollum could argue for CDCR to assess the limitation of chaplaincy positions to five, but even applying broader standards would not necessarily lead to including Wicca among the faith groups that merit a paid position, nor to hiring McCollum himself.

Interestingly, CDCR initially argued that, in assessing the need for prison chaplaincy positions, it applied a set of objective criteria: (1) liturgical needs, (2) the numbers of the group, (3) existing and alternative accommodation means, (4) security, (5) cost, and (6) other practical factors related to institutional operational needs. However, at a later stage CDCR stated that it never applied these criteria, though it intended to use it from now on.

The summary judgment decision has been appealed to the Ninth Circuit Court of Appeals. In a brief submitted to the court, Americans United for Separation of Church and State, the Anti-Defamation League, and other organizations, argue that the District Court's decision was erroneous.

Some of the arguments for and against McCollum's position are presented in this Opposing Views piece. Should there be standing in this case? Have McCollum's rights been violated? On the merits, does the "five faiths" policy constitute religious discrimination? Curious to hear what our readers think.

Here are some words from McCollum, in an interview included in the documentary A Hero Denied, which focused on the rights of Wiccan soldiers.

Federal Raid on Undocumented Immigrants with Records

The L.A. Times reports:

Immigration agents arrested nearly 300 foreign nationals with criminal records during a three-day sweep in California, officials announced Friday.

. . .

Officials said 96 of the 286 arrests took place in Los Angeles County. Among those arrested in the county were a suspected gang member from El Salvador who had a 2004 robbery conviction and a Guatemalan man with a 1993 conviction for lewd acts with a child under 14.

"These are not people we want walking our streets," Morton said.

The arrests were conducted as part of a controversial program designed to arrest and deport immigrants who have criminal records, who have ignored deportation orders or who were deported and illegally reentered the United States. About 400 officers and agents took part in the operation. The arrests included people from Mexico, Denmark, Taiwan and Tonga.

These news make a powerful juxtaposition to the "sanctuary city" policy, which has just become law in San Francisco.

Violence, Victimization, Self Defense

I have just returned from an exhilarating, terrifying, moving, transformative weekend, learning self defense at Impact Bay Area. It was an intense experience that made me think about victimization and punitiveness, and about the difference between laying blame and taking responsibility.

Much of our discussion of the overuse of prison has to do with the mammoth-scale incarceration of nonviolent offenders. The fiscal, moral, and efficiency-related arguments against a huge correctional system should not cloud the fact that, in fact, there are folks out there for whom there really is no solution beyond incapacitation. The percentages are much lower than we may be led to believe in legislation campaigns. Nevertheless, the fact that horrifying incidents are uncommon does not make them any less horrifying.

It is important to say these things, because otherwise everyone involved in debates about penology and corrections end up on both sides of a divide: pro-victim or pro-offender. This boundary is false for several reasons. Research consistently shows that victims and offenders are not mutually exclusive populations. On the individual level, as David Farrington finds, growing up in violent homes is a good predictor of later violent behavior; on the broader spatial level, crime often affects low-income neighborhoods. While overenforcement tends to disproportionately target minorities, and the poor, underenforcement (as Alexandra Natapoff argues in this law review piece) might harm and overlook the same populations.

Arguing against too much incarceration does not equal arguing that crime and violence are not real. They are real, and so is fear of crime. Where you stand on such matters is very much up to your personal conscience. I've come to believe that the best way to fight against violent victimization is to be prepared for it; and the best way to take care of actual and potential victims is to take real steps to ensure that they cease to be victims as fast as possible. Maybe, if victims know how to defend themselves better, there will be less victimization, and people who have been truly hurt by violent crime will not have to resort to punitive politics as a tool to cope with their horrifying experiences.

Impact Bay Area is a nonprofit organization that teaches self defense to women using a technique called "model mugging". Participants learn basic and useful techniques to defend themselves in a myriad of possible situations and do many practice fights against padded instructors who simulate muggers and rapists. The fights are done in an adrenalized state and feel truly real and terrifying. When (not if) you prevail, you feel incredibly empowered. Since fighting is one's last resort, the course also teaches one to effectively set boundaries against assailants, to use one's voice and body language effectively, and, if these important measures fail, to effectively fend off attackers. Even in situations that seemed hopeless to me, it turns out there are many things one can do to continue fighting.

On a feminist level, self defense is incredibly empowering. Rather than theorizing patriarchy and male domination, self-defense transforms the classic perspective on the body (as an object of domination) to a tool of strength and wisdom in dangerous situations (if you're into this sort of discussion, check out this fabulous piece by Martha McCaughey).

I have yet to fully process the journey I went through this weekend. I was placed in terrifying situations, in which our mock assailants did a terrific job pinning me to the ground, grabbing me by the hair, insulting me using vile words, and creating situations that I would consider hopeless before this weekend. In all these situations, I fought back and prevailed. It was fantastic, and thought-provoking, and exhilarating.

I've learned that several places teach effective self-defense techniques. Girl Army is another option in the Bay Area, and a short search on the internet should help you find something helpful in your area. This course should be on the curriculum of every high school or college in the world. Until that happens, educate yourself and learn what to do to protect yourself. You are worth fighting for. Go kick some ass.

Community Justice Center Update

The Chronicle provides a good updated account of how things are going at the Community Justice Center. Among other things, it seems that the attendance rate for drug felony charges is 86%, and for low-level misdemeanors, 22%.

As a comparison, this piece about a probation experiment in Hawaii, and its impact on recidivism reduction, may be of interest.

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Props to Aaron Rappaport for the Chron piece, and to the Collaborative Justice blog for the Hawaii piece.

Death Row Expansion Halted!

California Treasurer Bill Lockyer is halting the issuance of bonds to pay for the Death Row expansion endorsed earlier this year by Governor Schwarzenegger. The delay is due to the efforts of Assemblyman Jared Huffman and Senator Mark Leno. The Marin Independent Journal reports:

Huffman and Leno. . . sent a letter to Lockyer on Wednesday asserting that sale of the bonds would be illegal until resolution of litigation challenging Gov. Arnold Schwarzenegger's veto of budget language on conditions for financing of the project.

The language prohibited issuance of bonds until the California Department of Corrections and Rehabilitation determined that it could lawfully double-cell condemned inmates; federal court litigation on prison overcrowding currently before a three-judge panel was resolved; and the correction department completed California Environmental Quality Act analyses for any modifications to the project.

Huffman said the governor had no authority to use the line-item veto on policy language.

This delay may be good news for death penalty activists, but its long term impact on the death penalty will depend, to a large extent, on the next administration and on the 2010 elections.

Understanding the Punitive White Male

As the chronology of California correctional policies shows, many of the punitive measures in sentencing, corrections, and risk management, emerged from voter initiatives. Whether or not the public is punitive, or is being pushed in that direction by politicians and the media, and what can be done to change public opinion, are complex and delicate questions that we discussed in a previous post. Today, I'd like to turn to the findings of some recent work, pointing to the fact that some potential voters and jurors, namely, white males, are more punitive than others.

In a recent piece, Michael Costelloe, Ted Chiricos and Marc Gertz measure public punitivism as a factor of various worldviews, among them what they call "economic insecurity." As it turns out, people tend to be more punitive, and their belief in rehabilitation and second chances declines, when they feel that their own economic situation will worsen over time. This effect is particularly salient among white males; Costelloe et al attribute this connection to a sentiment that welfare policies, and giving people a break, rewards the underserving and comes at one's own expense, a sentiment which they find overrepresented among white males.

This weekend I received more confirmation for this finding, albeit in a different context. Mona Lynch and Craig Haney's recent study, presented at the Conference for Empirical Legal Studies, used mock juries of 4 to 7 jurors, who were shown a video of a death penalty trial and asked to deliberate the case. The study was masterfully done, providing the jurors with two identical versions of the video - except for the races of the offender and the victim. The clothing and acting of the different witnesses was exactly the same; the only thing manipulated was race. As Lynch and Haney found, white male jurors were significantly more likely to sentence the black defendant to death. These findings had ripple effects. White males were overrepresented as elected forepersons, and they exhibited the power to sway the other jurors in a punitive direction. As the following chart depicts, juries with a higher concentration of white male jurors tend to differentiate more between white and black defendants when deliberating and deciding on the death penalty.



What is going on? Lynch and Haney explain the findings by arguing that white male jurors tend to exhibit less empathy toward black defendants. This echoes the argument by Costelloe et al, according to which economic anxiety and lack of empathy are related.

What are we to do, though? Exclude white males from voting on initiatives and serving on juries? Of course, not all white males lack empathy and are punitive. But the next time the propositions come around, or the next time we serve on a jury, we should ask ourselves how our demographics, experiences, and biases, impact our opinions about crime.

Unintended Consequences of Population Reduction Orders

I've just returned from the Fourth Conference on Empirical Legal Studies, held at University of Southern California. The whole thing was absolutely fascinating, and the papers were top notch. I will probably refer to some of these in the days to come, but the one most pertinent to our blog is Richard Boylan and Naci Mocan's interesting paper Intended and Unintended Consequences of Prison Reform. Analyzing data from many states (predominantly in the south) that were ordered by federal courts to reduce prison population, Boylan and Mocan find that complying with these orders required an increase in correctional expenditures. The graph in this post depicts the "jump" in expenditures after court orders, compared to states that were not subject to such orders.

Now, where did that money come from? Unfortunately, from welfare. The increase in expenditures on prison improved condition within walls, but outside, it led to cuts in welfare programs. Worse, after the period of court supervision is over, the money is not returned to welfare. The irony, of course, is that prison reform and welfare target mostly people of the same social class, and once conditions improve and the population is released, folks come out to a world that offers them little in the way of help and assistance.

Granted, there are a few things that are difficult to control for even in a project as tightly designed as this one. One of these is the content of the court order. We know that population reduction methods vary according to their costs. Good credits will probably not cost as much as, say, out-of-state incarceration. These things make a lot of difference. Perhaps the policymaking lesson to be learned is that courts can and should leave states less free reign when ordering population reduction, and in the planning stage, consider the possible effects of these methods on the remaining state budget.

Thanksgiving

A Baha'i friend has shared the following video with me.



I have been following stories of the Baha'i persecution in Iran for quite some time. It is an abominable situation, and one which we have very few tools to improve through international negotiation and pressure.

On this Thanksgiving, I am thankful for the relative transparency of the California prison system. I am grateful for public court documents and for the CDCR website. I am grateful for public fiscal reports, which inform Californians of the effects our prison population has on their wallets. I am grateful for the Senate and Assembly websites, where we can learn how our legislature thinks about these matters. I am grateful for National Public Radio and for newspapers. I am grateful for my colleagues in the research community who write about criminal justice, prisons, and the death penalty; they work hard to obtain access to databases and information, which we can later find, analyzed and discussed, in their illuminated books and articles (several of these excellent sources will be reviewed here over the next few weeks). I am grateful for organizations like NOBLE, NACDL, and Books Not Bars, for their efforts to produce external reports on police proceedings, courts, and juvenile institutions. I am grateful for the ability to pick up the phone, or send an email, so I can get accurate information from its source that can be shared with our readers. I am grateful for you, our readers, for emailing us with information that can only be obtained from you.

We have a big problem on our hands. A very big problem. But we have ways of obtaining information about the situation, and ways to communicate with policymakers, officials, activists, inmates, and their families. These are important tools and they are not to be taken for granted.

Movie Review: The Released

The Released, a Frontline production, examines how mentally ill inmates fare after their release from prison. Filmed in Ohio, the film follows up on five men who are being let out of prison and their trials and tribulations in homeless shelters, group homes, and state mental institutions.

These experiences are shadowed by the "Great Decarcerations" of the 1970s. Following the invention of Thorazine, and under a philosophy highlighting free choice and freedom, various U.S. states began closing down their mental institutions. Some readers may recall Ken Kesey's One Flew Over a Cuckoo's Nest as a cultural harbinger and representative of this ideology.

The problem was that no viable alternatives were created. Medication is a suitable alternative to prison only if one is sure to take one's medication. And, in many such cases, the organization and cognitive presence required for consistently taking medication is lacking.

Several of the people interviewed in The Released manage shelters and group homes, and while they have plenty of good will and energy to help, their powers are limited if one of their residents decides to take off. These places are ill-equipped to supervise medication; the only place who does a decent job at it is the mental institution, and therein lies the paradox; once medicated, the inmate is functioning well, and therefore released, whereupon he ceases taking medication again, leading to a new incarceration or hospitalization.

According to the movie, a million inmates in the U.S. are mentally ill. Thinking about our local problems, one can only guess what the incarceration experience is like when surrounded with so much dysfunctionality. Is it possible that the Plata/Coleman descriptions of flawed mental health treatment are actually better than what the inmates are to expect on the outside?

An aspect portrayed, though not deeply explored, in the movie, is race. We see a white man -- the only uplifting, redemptive story in the film -- obtaining a placement at an excellent group home, Bridgeview Manor, with great facilities and conditions. All other residents are also white. At the end of the movie we see him doing well. The other people portrayed in the film -- black inmates -- are not so fortunate; the shuttle from shelters to jail and back, and some face further tragedies. The extent to which race and class play a part in placements, and as a result, in the hope of a regulated, supervised life, is disturbing. But more disturbing is our notion of what counts as "good". There has to be a point of balance between unnecessary paternalism and laissez-faire abandonment of people to their fate. I fear we are not there yet.

You can watch the full movie right here on the PBS website.

Privatization - the answer to rights violations?

San Diego Correctional Facility image courtesy ACLU.org.

The state's willingness to rely on privatized institutions as a partial contribution to population reduction might be a questionable choice when the final aim is improving medical and mental health in prisons. This is especially true when considering complaints regarding health care and improperly unreported deaths in privately-run institutions. The August 20 New York Times article raises important questions about record keeping, treatment, staff qualifications and staff presence at a Corrections Corporation of America institution designed to keep undocumented immigrants.

Currently, CCA runs two private correctional facilities in California: the low security California City Correctional Center and the minimum/medium security San Diego Correctional Facility. The former is advertised, in a Ventura County brochure, as a source of employment for 551 locals and a source of affordable land. The latter institution--just like the one featured in the New York Times piece--was recently sued over lack of medical care, as reported on the ACLU website.

CA Still Needs Sentencing Commission

I'm at the International Drug Policy Reform Conference, hosted by the Drug Policy Alliance in Albuquerque, New Mexico, where today Assemblymember Tom Ammiano mentioned his support for a California Sentencing Commission ("We will have a sentencing commission"), and said that our state could have a sentencing commission already if not for opposition from "conservative Democrats."

State Plan a Mix of Releases and Correctional Expansion

I've just finished going over the CDCR population reduction plan in all its more-than-100 page glory (including the depositions). For those who rejoiced in the original August order to reduce population, the plan will be a disappointment; but even those who found the panel's reasoning problematic will find little cause for rejoice.

Here are the essentials: The state stands behind the measures it proposed previously, in the noncompliant plan submitted September 18. Those included credit enhancements for good behavior, a certain quota of inmates housed in out-of-state facilities, more reliance on community corrections, sentence commutation, and parole reform (including the recently approved summary parole for nonviolent offenders).

In addition, the state proposes to seek changes to legislation that impedes broader use of the out-of-state option, privatization, shifting jurisdiction to county jails, and accelerated construction of prisons. It does so while expressing doubts about the federal panel's authority to require violation of state laws; according to the state, therefore, these measures are necessary to bring the plan to the 137.5% reduction level.

The depositions provide concrete numbers regarding the reduction rates.

Jay Atkinson (Chief of Offender Information Services Branch) estimates that the California Community Corrections Performance Incentives Act of 2009 generates a system of rewards for probation success. Implementing it will achieve an approximate reduction of 1,915 inmates. In addition, releases based on good behavior credits will yield 2,921 reduction; raising the threshold of grand theft from $400 to $950 will yield a 2,152 reduction; and programs for alternative custody for low-risk offenders will achieve a 4,800 reduction. My summary: 11,788 total reductions. Atkinson cannot provide estimates for the reductions resulting from parole reform, but those may yield additional reductions.

Scott Kernan (Undersecretary of Operations) states that, by approximately January 2011, CDCR anticipates housing a total of 10,468 inmates at out-of-state facilities. In addition, it will push to remove an existing clause that mandates termination of the out-of-state program. Changing this clause will allow the state to expand its out-of-state program by 1,500 beds by December 31, 2011. In addition, the state plans to pursue privatization options more aggressively (the out-of-state options themselves are privatized.) Contracting with private facilities will provide an additional 5,000 beds for inmates removed from state institutions. Finally, CDCR will engage in a complicated game of musical chairs, which will involve shifting inmates around, switching between male and female inmates in some institutions, closing down 3 male facilities, and creating more community correctional facilities. This option will yield no more than a 800 inmate reduction. Total seems to be 17,768. Combining the two statements, the grand total seems to be a 29,556 reduction.

I haven't checked up the math on the additional 10,000 reduction, but the plan suggests that this will be achieved through a combination of programs: commutation sentences, changes in juvenile facilities, and other measures that were mentioned in the original plan.

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As can be seen by these two contrasting depositions, the state is pursuing two "prongs" of overcrowding solutions: the type that the court wished to encourage - namely, early releases, parole reform, and sentencing reform - and the type that the court will be very disappointed in, such as increasing prison construction and shipping more inmates out of state. Interestingly, these measures are predicted to yield more reductions than shuffling people within the existing incarceration options. The plan has, therefore, a bit of a "split personality". Some of it expands the penal monster and some of it works to decrease it (in the spirit of humonetarianism.) I assume the court will be rather dismayed by this. Leaving the reduction methods up to the state opened the door for the state to cling to the old solutions of expansion, contraction, and exporting Californians to other states; but since the panel was convened for the sole purpose of solving the problem of constitutional violations in health care, its ability to have a general say regarding the system’s size is rather limited.

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There is another issue which, while not directly yielding reductions, merits attention. At the panel’s request, the remaining depositions describe the impact of cuts to rehabilitative programs on prison conditions.

Sharon Aungst (Chief Deputy Secretary of the Division of Correctional Health Care) states that the decrowding will not improve treatment for the mentally ill, but the cuts in rehabilitative programs will have an adverse effect on weekly activities for mentally ill patients.

Robert Ambroselli (Acting Director, Division of Adult Parole Operations) estimates that the parole sites and programs have served a combined 18, 449 people, though some of these may be repetitive (enrolled in more than one programs). The expected $41,000,000 reduction in operational budget will lead to delays in finalizing and activating new sites.

Finally, Elizabeth Siggins (Acting Chief Deputy Secretary for Adult Programs) states that the budget cuts will lead to a significant reduction in treatment slots. 4,633 inmates (a 5000 reduction) will be benefitting from community-based aftercare treatment. Substance abuse programs will be available to 1588 inmates (4000 reduction). There will not be changes to in-custody drug treatment, the parolee service network (serving 863 inmates) and the female offender treatment and employment program (serving 412 inmates). 80,000 parolees will be getting employment opportunities through California New Start.

***

These are grim news indeed. It would appear that, over the next few years, possible gains with regard to health care will be offset by losses in terms of rehabilitative programs. The panel’s program to reform California prisons through the opportunity to intervene in health care seems to have been frustrated by the methods adopted by the state.

A final thing to remember is that the state’s plan is not to be construed as abandonment of its appeal to the Supreme Court. The state consistently repeats, throughout its legal documentation, the right to appeal the order, which it still maintains is erroneous. Given the particulars of the current plan, it remains to be seen whether the Supreme Court will see the panel’s attempt to fix the health care system in a favorable light. It is a sober reminder, though, that judicial review of state institutions is an imperfect and limited solution, and while it has the ability to change policies and practices in ways that are impossible through legislative and administrative channels, its narrow, case-by-case focus may have unpredictable, and disappointing, outcomes.

TODAY: Decrowding Plan Deadline

Today is the deadline for the state to submit its decrowding plan to the Plata/Coleman panel. No indication so far as to whether it will comply and what the plan will look like. As a reminder, per the October 21 order, should the state fail to submit a plan, the court will turn to the petitioners for an alternative plan. Contempt proceedings, which were stayed, are a very remote possibility (plus, one might mockingly say, prisons are already full). Stay tuned and we will provide updates by tonight or tomorrow.

Sentencing Commission to re-evaluate mandatory minimums

Today's Wall Street Journal points out that October's National Defense Authorization Act tasks the U.S. Sentencing Commission with reviewing federal mandatory minimum sentencing. Mandatory minimums, which remove judicial discretion in sentencing, are almost always for drug crimes, and have greatly contributed to the explosion in the federal prison population. This is the first issue I've seen the Fraternal Order of Police take a position aligned with Families Against Mandatory Minimums.

When I moved to California from Rhode Island, it had the highest unemployment rate of any state besides Michigan, making sentencing reform a high economic priority. Sure enough, this year the RI General Assembly voted to eliminate mandatory minimum sentencing for drug possession. The state legislature also decided not to return probationers to prison for violations other than the crime of which they were originally convicted. These changes, at the federal and California state level, would take a big chunk out of our corrections crisis.

Book Review: Smart on Crime by Kamala Harris

Kamala Harris' new book, Smart on Crime: A Career Prosecutor's Plan to Make Us Safer, written with Joan O'C Hamilton, is a refreshing book on prosecutorial practices, and on the need to disengage law enforcement from practices of severe sentencing and mass incarceration.



In the book, Harris, who is the San Francisco District Attorney, and running for Attorney General, speaks up about her prosecutorial philosophy, but also discusses more broadly America's criminal justice priorities.

The book opens with an examination of several "myths about crime". Harris seeks to situate the crime debate outside the partisan lines, pointing out that there is an alternative transceding the "tough/soft on crime" dichotomy. She also debunks the idea that there are no alternatives to current correctional techniques by examining a series of innovative reentry programs. The novelty of this account lies in the fact that these programs are sponsored by law enforcement - prosecution offices and sheriff's offices.


While Harris treats crime and victimization very seriously, she emphasizes the fact that violent and sensational crime constitutes a small percentage of the entire crime picture. The universe of nonviolent offenders, who are not as much of a danger to society, will not be properly handled using lengthy prison sentences, which contribute to recidivism.

Harris suggests an expansion of the traditional prosecutor's role, arguing for including reentry projects and community involvment in the scope of prosecutorial responsibility. One issue in particular that she highlights is the need to address school truancy. As Harris explains in the book, she sees truancy as a major predictor of a criminal career, and therefore believes that addressing education, and making sure children are not truants, will go a long way toward preventing crime in the long run. The District Attorney's office's efforts in this regard have already yielded a decline in truancy rates in San Francisco. Nevertheless, the question is whether criminalizing the truants' parents is a truly effective measure in reducing crime. In adopting this measure, Harris may have fallen into the same trap she warns us about in the book - focusing on criminalization rather than on problem solving.

The book is meant for popular readership, and much of the rhetoric (including examples of violent, dangerous offenders whom Harris has helped remove from the streets) will soothe readers who are concerned about violent crime and victimization. These sections do not read as a fake attempt to placate the masses so that a "soft on crime" agenda will remain unnoticed. As a prosecutor, Harris comes off as committed to law enforcement and genuine in her belief that some offenders need to be removed from society for a long time. It is precisely this genuine perspective that lends credibility to her "smart on crime" argument, which comes from a concern for public safety in the broader sense rather than from pity. This decidedly not-soft-on-crime stance is enhanced by Harris' humonetarian arguments for her "smart on crime" solution, which is advocated as a means to save money as well as achieve more public safety.

Prison scholars and inmate rights' activists who read the book may be concerned that Harris does not go far enough. I do not see this as a shortcoming in the book. Harris is a prosecutor and she writes from a prosecutor's perspective. Even under a more benign, less punitive correctional regime, law enforcement officials and prison activists will not see eye to eye. The important thing is that this book opens the door for open minded prosecutors to transcend the government/offender divide, and more importantly, the right/left divide, and to agree on general solutions, the most promising of which is a focus on reentry programs such as San Francisco's Back on Track program. This program, which uses deferred entry of judgment as a "test period", under the D.A.'s office supervision, combined with vocational skills, jobs, and other support, is advocated as a method to reduce recidivism rates.

You can find more information about the book on Kamala Harris' website.

The Game Is Afoot: CDCR Submits Bed Plan

... and back to California.

The 21 days are up, and today, the CDCR filed its plan for medical and mental health beds, which, it is argued, complies with the Plata/Coleman requirement.

I have not yet seen the full detailed plan, but there is a list of projects whose aggregates will provide a number of beds. Funding for the project comes from AB 900, which enables prison construction and improvement, and facilitates fund transfer for such projects.

This is an interesting CDCR move in the Plata/Coleman chess match. As you may recall, the original Plata/Coleman order was very skeptical of prison construction as a possible solution to overcrowding, but the wording in the order left a narrow opening for such a solution. In fact, it went as far as to say:

Although it might be theoretically possible for California to build its way out of its prison overcrowding problem, it is not practical to anticipate that the state will do so in a timely manner, if ever, given “the time that it takes and . . . the huge costs that it takes to do things like this.” . . . Nonetheless, because our order requires defendants to reduce the prison population to
a specified percentage of the prison system’s design capacity, any additional capacity provided by completed construction could help the state meets its obligations and might allow it to increase the number of prisoners who could constitutionally be housed in the prison system. In such case an adjustment as to the specific terms of the population reduction order, although not to the percentage cap itself, might conceivably be appropriate. We see little prospect for such an occurrence, however, in the reasonably near future, andthus no prospect of remedying the constitutional violations in a timely manner, other than in accordance with the order we issue below.

Now, it seems that CDCR is walking through that narrow opening, and to some extent frustrating the possibly broader agenda of the Plata/Coleman panel, which, as the state argued upon the issuance of the initial order, was to use the medical crisis to make some progress on the broader overcrowding problem. It is a strong, and problematic, statement to make: since you are forcing us to comply with the order, we'll comply with it in the way least convenient to you, the budget, and the prison crisis. Look at what you've made us do.

Stay tuned. There will be more.

**** updated to add: I counted days again. It seems that the 21 days aren't up yet; they end on Nov. 11. The state might still come up with a population reduction plan irrespective of the prison construction plans in this proposal. ****

CCC Field Trip: Past, Present and Future Prisons in Philadelphia

This week I have been away from California, at the American Society of Criminology annual meeting, which took place in Philadelphia. The conference itself was very dense and there were many interesting papers and roundtables (including an excellent panel devoted to David Johnson and Frank Zimring's new book on the death penalty in Asia); however, what really moved and excited me was my morning visit to the Eastern State Penitentiary, the oldest modern prison in the United States, and possibly in the world.

As readers versed in penological history probably know, Eastern State Penitentiary owes its unique design to Quaker reformers. Quakers had always been interested in issues of criminal justice and corrections (among other things, their publication Struggle for Justice is credited for fueling the left-wing prong of the determinate sentencing movement); in this case, they aimed to reform previous correctional institutions, which kept prisoners together in large cells with abundant violence and very little in the way of sanitation or basic living conditions.

The alternative was to be a true penitentiary; a place that would turn the inmate's attention inward and encourage reflection and true remorse. For this purpose, prisoners would be placed in solitary cells and in absolute silence. They would have no contact with the outside world, no books to read save for the Bible, and no communal work to be done. Their brief exercise break would be enjoyed in a solitary yard surrounded by tall walls.

The irony is, of course, that today's Quakers have come to see solitary confinement as an evil, taxing the prisoners' well-being and sanity, and are strongly advocating against it. Here is their shocking and sad report on the effects of solitary confinement in California prisons.

The architecture designed to ensure these conditions, designed by John Haviland, is truly a marvelous feat, considering that construction took place in the early Nineteenth century. Its imposing facade, complete with gargoyles, reveals little of the interesting features within. The prison is built as a panopticon, with a central area from which one can see into each and every one of the cellblocks. The panoptic design, enabling efficient and immediate surveillance, was later adopted in many prisons around the world.

There were, of course, many documented violations of the silence requirement; prisoners did attempt to speak to each other through holes and pipes. Such transgressions were severely punished. At the same time, a rivaling system in New York had prisoners working in communal areas, but in complete silence. This innovative perspective delighted visitors like Alexis de Tocqueville, but horrified others, like Charles Dickens, who considered it worse than any form of physical torture.

In later years, the Penitentiary abandoned the solitude requirement, relaxing the conditions somewhat and creating a communal exercise yard, complete with a baseball diamond.

Some of the more notable inmates' stories are presented in the excellent audioguide; for example, that of a brave inmate - a free Black man - who helped free his wife from slavery and was convicted and imprisoned in Pennsylvania for doing so (incidentally: cell blocks were segregated until 1961). Al Capone's cell, complete with luxury items he was allowed to keep by the grace of the guards, is also restored.

After this fantastic visit, I had an excellent meal at Mugshots, a cafe across the street, where I found Grid magazine. Among various uplifting reports on sustainability initiatives in Philly, I found a delightful piece about City Harvest, a project which enables Philadelphia inmates to grow vegetables and feed the city's poor and hungry citizens. Beyond the project's practical benefits to the city, it provides a healthy, growth-oriented environment for the inmates, who learn some work skills and some basics of agriculture and nutrition. I was very moved by the fact that, as one of the people interviewed in the article mentioned, many of these imprisoned men and women had never had a chance to work in a green environment or be in close proximity to nature before.

Thinking about these projects, after visiting the prison, made me hope that we will do a better job learning from the mistakes of the past to envision a better future, and that we never let a grand program steer us away from basic human concern for society's weakest link.

CA pot arrest increases beat national average

Today's SF Chron has a story on page C-4 about Dr. Jon Gettman's new report on Marijuana Arrests in the US. Marijuana arrests from 2003-2007 increased nationally by less than 3% annually, but in California increased by over 5% per year. Also, Californian African Americans are now arrested for marijuana possession at a rate of 270% over Caucasians, versus about 75% nationally.

Gettman concludes that the overall national marijuana arrest rate (between 3%-6%) is too insignificant to deter crime. So what public policy goal is served by using my tax dollars on incarceration?

Arizona Privatizes Prisons

Last night Stephen Colbert hilariously reported that our neighbor Arizona will sell off nine of its prisons and privatize incarceration, check it out: http://www.colbertnation.com/the-colbert-report-videos/254665/november-03-2009/the-word---the-green-mile

Perhaps these newly private Arizonan prisons will end up housing some exported Californian inmates... Belgium is to the Netherlands as California is to Arizona.

Netherlands Closing Prisons

The Netherlands is closing 8 prisons, eliminating 1,200 corrections jobs -- http://www.nrc.nl/international/article2246821.ece/Netherlands_to_close_pris -- due to declining crime rates(!) and the economic crisis.

If crime continues to decline, the nation will have to choose between closing even more prisons, versus housing imported Belgian prisoners. California is to Belgium as Arizona is to the Netherlands?!

More Out-of-State Inmates

More prison privatization is occurring, with the added complication of out-of-state imprisonment. The press release reads:

Corrections Corporation of America (NYSE: CXW) ("CCA"), the nation's largest provider of corrections management services to government agencies, announced today that it has amended its agreement with the California Department of Corrections and Rehabilitation ("CDCR") to allow for the housing of 2,336 additional offenders from the state of California. Under the amended agreement California will have the ability to house additional inmates at CCA's North Fork Correctional Facility in Oklahoma and its Red Rock Correctional Center in Arizona. The 2,336 additional beds provide the CDCR the ability to house up to 10,468 offenders in five CCA owned facilities located in the states of Arizona, Mississippi and Oklahoma. CCA currently houses approximately 7,900 offenders from the state of California.

CCA is America's largest private jailer, housing 75,000 inmates in its institutions.

______________

Props to Jerry Jarvis for alerting me to this.

Jerry Brown and Prisons

With Gavin Newsom's departure from the gubernatorial race, the serious Democrat candidate left standing is Jerry Brown, former Governor and current Attorney General. While the options may still be open, Brown's recent record with regard to the prison crisis merits some attention.

Brown is familiar with the correctional crisis, which has existed throughout his career as a public official in the state. The number of prisoners per capita increased throughout his previous gubernatorial positions, and his current position as Attorney General has required paying close attention to CDCR, particularly in the context of the Plata/Coleman ruling. Immediately after the original order in August 4, Brown declared his intent to appeal it, and he was closely involved in devising the state's plan for submission to the panel, a job which exposed him to petitions from rights organizations to comply with the order.

Brown's vast experience in the political system has solidified his array of friends and foes. In his position as Attorney General, Brown has worked to terminate Kelso's receivership of the prison health system, calling his plans "wildly excessive" :

“The court should terminate this unaccountable prison receivership and its $8 billion construction plan, restoring a dose of fiscal reality to the provision of inmate medical care in California,” Brown said in a prepared release. “The federal receivership has turned into its own autonomous government operating outside the normal checks and balances of state and federal law.”

On the other hand, the CCPOA's relationship with Governor Schwarzenegger, which was rife with animosity, is likely to be considerably better with Jerry Brown as governor. Like the CCPOA, he strongly opposed Proposition 5, which advocated treatment options for nonviolent drug offenders.

Californians are already familiar with Brown, and will take into account his position on a variety of matters. As one example of many, Brown considered Proposition 8 constitutionally indefensible and urged the court to void it. Nevertheless, we should be attentive to the way the prison crisis will be presented by the different gubernatorial candidates. This situation should exit the invisible realm and be confronted with practical, creative plans by whoever will be at the state's helm.

Partisan Politics

The difficulties in creating sentencing reform in California are better understood when considering the big picture. Yesterday's Sac Bee included a fascinating piece analyzing lawmakers' voting patterns, which demonstrates that they are extremely likely to vote with their party. The polarization, argues the piece, has increased in comparison with recent years.

What would be the best strategy to achieve prison decrowding under these circumstances? One possibility, which has yielded some success, is framing the question in terms of savings. Another one would be to implement Governor Schwarzenegger's decrowding plan as a response to the recent Plata/Coleman court order - a solution that the court has alluded to.

The future may depend on the outcome of the gubernatorial race. Let's hope that the next governor understands that California's future depends, to a large extent, on the state -- and cost -- of its prisons.

"Operation Boo" Strikes Again

The CDCR proudly presents: this year's Operation Boo.



For some thoughts on why we insist on enforcement against parolees to protect us against crime that HAS NEVER HAPPENED BEFORE, see our similar post from last year.

CJC Town Hall Meeting

Yesterday, October 28th, the CJC held a town hall meeting at 134A Golden Gate Ave. in an effort is to facilitate communications with the community and get some feedback. Unfortunately only about 10 to 11 people showed up including Tomiquia Moss, CJC head coordinator, and Judge Albers, everyone else was an interested party (members of the community court – not to be confused with the CJC, former CJC clients there to give a presentation, myself and one other Hastings student).

Presented at the meeting was an array of statistics about the past 6 months of the CJC. I will try to find out if the stats are posted online, but I will lay out some of the more interesting ones. Since its inception, the CJC has engaged over 400 clients in treatment services, 500 hours of community service have been served, 60% of the caseload is felony cases, there is an average of 24 in-custody defendants per day and 57 out of custody defendants per day. The attendance rate of felony drug offenders is 86% while the attendance rate of low-level misdemeanors remains at 22% (if you have been following the CJC you will remember that the first few weeks were slow because so few defendants showed up, as it turns out that is still the case for low level offenders). There are currently 250 active clients in the CJC, 98% of whom are compliant with treatment.

The most interesting aspect of the discussion revolved around the completion of the holding cells at the CJC. As stated above the court is averaging 24 in-custody clients per day, however the holding cell only has a capacity of 9. The court is now involved in trying to figure out how to continue to work with the same number of in-custody defendants because, according to Judge Albers, these clients are often the ones who benefit most from the services that the CJC has to offer. There is a suggestion that the sheriff may be able to bus the defendants back and forth, but this raises serious cost issues. Judge Albers states that this is “A problem that I am happy to have.”

The topic of this town hall meeting was how to break down barriers to employment in which two former clients of the CJC shared their experiences with fighting addiction and the lure of making quick money by selling drugs while trying to find employment with a criminal record. Ms. Moss then asked for any input from the audience, which did bear some good suggestions including mentorship programs between current and former CJC clients.

Regardless of what you think of the CJC, statistics show that it is growing quickly and may soon need another Judge. Apparently 575 Polk has two courtrooms, one of which has not been used in a long time, and the CJC coordinators are talking about adding another judge to help Albers with his growing caseload. It should be interesting to see how the in-custody matters will work when the holding cell is finally opened within the next few weeks.

Why is California Eliminating Rehabilitation?

Yesterday Prof. Aviram posted analysis of the newest Plata/Coleman panel court order. She points out, "The panel wants to hear more about the use of rehabilitation and reentry in the community as a population reduction measure that might actually improve public safety."

So I thought I'd post this cover story from 10/17 last Friday's LA Times. The piece highlights poignant personal stories of incarcerated, and formerly incarcerated, female addicts. It also provides a damning quote from a recent Schwarzenegger insider: "Kathy Jett, formerly Schwarzenegger's top aide for prisoner rehabilitation, said gangs may attempt to fill the void created by the absence of programs."

For purposes of this blog, though, the article also provides some worrisome statistics.

• Rehab services lose $250 million a year, more than 40% of what they now get and a quarter of the $1 billion total sliced from the prison system.
• "At the same time, the state is eliminating 45% of the seats in its substance-abuse programs for parolees."
• The featured rehab provider previously helped 756 women, and will now reach only 175.

These changes seemed almost calculated to increase addiction and recidivism. One might speculate that even the Governor is knowingly passing on the problem of prison overcrowding to the next administration rather than addressing any of its root causes.

Plata/Coleman Panel: We Were Not Fooled

Here is the order's text, placed on a free hosting service for your convenience. The bottom-line message from the panel: We were not fooled by all the chatter and alternative proposals going on. We read the newspapers. Deliver a plan that complies with our requirements within 21 days.

The panel starts by expressing extreme displeasure with the state's non-compliance:

Rather than reducing the population of the CDCR’s adult institutions to 137.5% of their combined design capacity within two years, it provides for a reduction of the population of those institutions to 166% of their combined design capacity in that period. Additionally, defendants’ plan fails to set forth effective dates for the various actions proposed and fails to provide estimates of the reduction in population they expect to achieve after six, twelve, eighteen, and twenty-four months; instead, it provides estimates of the fiscal year in which actions may take effect and estimated population reductions for each fiscal year through 2014/15. In light of these inadequacies, defendants’ September 18, 2009 Population Reduction Plan is REJECTED.

The panel then responds to the petition for contempt:

Plaintiffs’ response urges this court to initiate contempt proceedings against defendants on the basis of their failure to comply with our August 4, 2009 order. Action on this request is STAYED pending further proceedings detailed below.

The order requires defendants to submit a compliant plan, including explanations of their calculations and projections of reduction. It also addresses a few additional interesting matters:

1) On Sep. 17, CDCR issued a press release regarding rehabilitative program cuts, some of which were mentioned in their plan as essential for the reduction. The panel is referring to this press release, issued only one day before the submission of the reduction plan. What is up with that? asks the panel. Please let us know how this impacts any reduction measures you propose that rely on rehabilitation programs.

2) The panel wants to hear more about the use of rehabilitation and reentry in the community as a population reduction measure that might actually improve public safety.

And most importantly, in my opinion, (3): The panel is well aware of Governor Schwarzenegger's reduction plan, which, as avid followers of this issue may recall, was submitted to legislators, approved in the CA Senate, and then gutted in the CA Assembly. How does that plan match up to the one the state submitted? Would it really lead to a population reduction? Secretary Cate's involvement in the plan was widely reported in the press, says the panel. We read the papers. If this plan has promise, tell us how you'll try to fold it into compliance with our order.

I like the panel's reasoning quite a bit. It's a well-informed, no-nonsense order, which is keenly aware of the political and legislative realities that occurred since the original August 4 order was issued. Number (3) above is a masterpiece of political maneuvering. First, recognizing that the original Schwarzenegger plan had some promise before it was gutted by the Assembly, and that it was supported by Cate, the panel gives CDCR an honorable path of retreat. If, indeed, this plan is folded into the new submission ordered by the panel, it will be a plan that the state has already stood publicly behind. Second, it is a brilliant hint on which direction to go, subverting the failed legislative process: Governor Schwarzenegger gets exactly what he wanted, except he gets it through compliance with judicial authorities rather than through the Senate and Assembly. And third, with the state backing the new plan, the order is more secure against appellate review from the Supreme Court.

Now we wait for 21 days, and we'll report further.

BREAKING NEWS: Plata/Coleman Panel Displeased with State Plan

The Sac Bee reports:

Three federal judges on Wednesday rejected the prison reduction reduction plan submitted to them by the state and gave the Schwarzenegger administration three more weeks to produce a plan that complies with their wishes.

If the court doesn't get one by Nov. 12, the judges said they will order attorneys who represent sick inmates to submit a plan by the end of November, and the judges would order that plan be implemented.

More coverage from KPCC, including an interesting interview with Don Spector, is here.

The inmates have filed for contempt. The court's show of displeasure is less drastic (we predicted slim chances for an actual contempt ruling), but nevertheless, it puts the state in an uncomfortable position. I tend to agree with Jonathan Simon that justifying the new plan as one that keeps public safety in mind is preposterous given the order's language. I also find the court's position strengthened by the lack of stay from the Supreme Court (whatever that might mean on the merits). Stay tuned.

Exporting Defunct Sentencing Policies to Other Countries

One of the things comparative law scholars are interested in is the way in which legal policies are adopted in different places in the world. There are nuances and differences that stem from the cultural background. For example, my colleague Jim Nolan has studied the differences between drug courts in the U.S. and their counterparts in Europe and Canada, finding that reforms have yielded somewhat different reforms. He does conclude, however, that the end result is perhaps closer to the American version than these other countries intend.

There seems to be even less restraint when some countries adopt U.S. sentencing policies, despite what we know about their failure and financial implications.

We could take quite a number of countries as an example, but I'm choosing Israel, mostly for reasons of convenience and familiarity with its legal system. Israel has had, since the late 1940s, a penal code based on a less extreme version of indeterminate sentencing: Every offense has a maximum penalty and a few (such as sex crimes and assault on a police officer) have minimum sentences as well. The parole board is allowed to release inmates only after they have completed two-thirds of their prison sentence, so the overall effect of releases is far less extreme than the equivalent in pre-determinate-sentencing California.

The Israeli system has constantly been in a process of Americanization. U.S. legal initiatives arrive in Israel, usually with a 15-to-20-year delay since their implementation there, and adopted without much systematic, evidence-based reflection as to their success.

A few recent examples include a large-scale plan to shift to determinate punishment. Granted, the new system will not consist of legislator-generated "triads", but it will include a sentencing commission, whose membership is yet to be established, which will decide on "median punishments" for all offenses. These will be the starting point for departures, and the law lists a series of aggravating and mitigating circumstances. The former list is much longer than the latter. In addition, Israeli legislators are hard at work expediting their discussion of several punitive suggestions, including harsher punishment in a long series of crimes (with hardly any evidence of a statistical rise in crime rates), and particularly, of a version of the Three Strikes Law, which, in the Israeli case, will include a 12-year imprisonment sentence for the third felony. The law is somewhat less intense than the Three Strikes Law, but its effects on the prison population will be notable.

As of April 2008, Israel had 305 inmates per 100,000 citizens (the U.S. equivalent at the time was 751). I am not sure whether this rate includes Palestinian detainees and have not been able to find out. There are reports that Israel is already seeing a dramatic rise (close to 40 percent) in the number of inmates since the late 1990s. There has been prison litigation with regard to prisoner rights and conditions. In addition, any of these sentencing initiatives does not only have an effect on judicial discretion, ratcheting up sentences, but also on conviction rates. The Israeli system, just like the American one, is adversarial and works primarily through a very high percentage of plea bargains, leading to a 99.8 percent conviction rate. Each of these new litigation pieces serves as leverage for bargaining. What is going on, then? Are Israelis blind to the American crisis? Don't they know this doesn't work?

The answer is, I don't know; however, part of the explanation lies in the triangle of politicians-media-public, which has been analyzed by many scholars as a petri dish for moral panics and harsher sentencing (see for example this terrific piece by Burns and Crawford on the panic surrounding school shootings). The Israeli media is rife with critique of judicial leniency. In some important ways, they are not wrong. Human sentencing and decisionmaking has a quality of mercy that computers and set tables do not have. In 1986, the late Yael Hassin published the findings of a study that compared release rates between the parole board (consisting of a judge and members in therapeutic professions) and computer-generated statistical prevention. The computer predicted more recidivism and was more often right. Maybe this intangible quality of mercy has effects that spill beyond recidivism prediction to sentencing. And maybe that's not necessarily a bad thing; we will never know how many "false negatives" the computer from Hassin's experiment kept within walls, and would not have reoffended had they been released.

Another part of the puzzle may lie in the different nature of Israeli politics. As opposed to the situation in the U.S., criminal justice discourse in Israel (a multi-party system placing the Israeli-Palestinian conflict at the top of its priorities, leaving room for little else) it does not map neatly onto other political issues that generate bipartisan debate in the U.S. So, when such initiatives are brought up, there is little in the way of organized political response against them.

This analysis might, of course, be different for different countries, each of which examines its penal policy through its particular political and cultural lens. The big question that remains is why the decisions to adopt American policies do not take into account the abounding evidence as to their failure and, in these trying financial times, of their fiscal implications.

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This post is based on an idea on which I wrote a short piece in Hebrew with Yosef Zohar. Props to Yosef for coming up with the idea and thinking about it with me.