Tuesday, March 31, 2009

Prisons and Media

(image courtesy sfgate.com)

This Sunday's Chron reported on the inmate newspaper at San Quentin. According to the article, rather than being merely a mouthpiece for the administration, the paper holds itself to objective standards of reporting.

Witness the tough-minded piece that ran in the January issue about San Quentin's administrative segregation unit, "The Hole," where recalcitrant prisoners are disciplined by being locked up for most of the day in one-man cells. The News described the wing's dirty cells, ripped and shredded mattresses and generally appalling conditions.

Before the story was published, however, the News' senior volunteer adviser, retired Associated Press newsman John Eagan, told editor-in-chief Ken Brydon, serving a life term for murder, and managing editor Michael Harris, doing 28 years for attempted murder and drug crimes, that they had to get the other side.

They did, quoting prison Sgt. D. Kilmer to the effect that officers go through a checklist of a cell's condition, but that "the maintenance repair on lights could be better." The article was approved by Luna and ran in the newspaper, and the next issue carried a follow-up quoting prison officials at length.

(incidentally, the Pulse of San Quentin's report is timely and important; yesterday's New Yorker has a fascinating and disturbing piece on the effects of solitary confinement.)

Prison newspapers are not a new phenomenon. Some of you may find interest, for example, in this historical issue of The Prison Press from 1899. And there has been constant litigation regarding the right of inmates to participate in outside media, whether it be mainstream media or specialized projects like Prison Radio. For some of California's legacy of outspoken inmates, I strongly recommend Eric Cummins' excellent The Rise and Fall of California's Radical Prison Movement.

Props to Emily Hoag for pointing me to the New Yorker article.

Monday, March 30, 2009

More on Jim Webb's Initiative

More on the new interest in national corrections: Glenn Greenwald, on Salon.com, has a favorable post on Jim Webb, highlighting the importance and merit of his interest in the correctional system.

Props to Adam Scales for the link.

Sunday, March 29, 2009

The National Correctional Crisis Goes Mainstream

Senator Webb is a man on a mission.

As the national criminal justice commission bill starts its journey, Webb has a piece out in this morning's Parade Magazine, which many of you may have received with your Sunday papers. The bottom line - which is nothing new to our loyal readers, but may raise the public profile of the problem - is as follows:

With so many of our citizens in prison compared with the rest of the world, there are only two possibilities: Either we are home to the most evil people on earth or we are doing something different--and vastly counterproductive. Obviously, the answer is the latter. 

Friday, March 27, 2009

National Criminal Justice Commission Bill

(image courtesy webb.senate.gov)

The State's correctional crisis is but one disappointing piece in a national mosaic of alarmingly growing incarceration rates. A recent more-or-less bipartisan attempt to solve this problem on the national level is Senator Webb's new National Criminal Justice Commission Bill, reported on TPM.

What does this consist of? Here's the full text of the bill. The initial remarks on the bill reiterate all the somber things we already know: booming incarceration rates, public punitiveness, the overrepresentation of minorities, number of parolees, high recidivism rates, high prevalence of gang activity, problems of addiction, and inmate mistreatment.

The bill proposes the creation of a National Criminal Justice Commission, who will provide evidence-based information on a non-exclusive list of issues, including comparative incarceration rates, prison administration around the US, prison costs, gang activity, drug policies, the treatment of the mentally ill, and the historical role of the military in preventing crime (?). The commission will make recommendations for reform in a report, which will be submitted 18 months from the date of the commission's appointment. The report will be available to the public. The 11-member commission will be bipartisan and will include members appointed by Republican and Democrat lawmakers and governors, with expertise in criminal justice and corrections.

While, in general, more information and less moral panics are something to strive for, several questions can be raised:
  • How much will this evidence-based information contribute to criminal justice policies? Conducting our affairs based on empirical evidence has not been our strongest suit.
  • Crime is, for the most part, a local phenomenon; does it make sense to address it at the national level?
  • Don't we already know much of this information, to no avail?
  • Will this be torn to pieces on the floor due to costs?
Stay tuned.
Props to Adam Maldonado for sending this my way.

Humonetarianism: The New Correctional Discourse of Scarcity

Diligent followers of recent correctional policies may have noticed a recurring leitmotif in our discussions of various different initiatives and solutions to the crisis. I refer, of course, to money. Recent examples we've discussed on this blog were the Death Row moratoria; the demise of Prop 6, mainly due to costs; the San Quentin Death Row expansion; the cuts to the overall budget; the battles regarding the Community Justice Center; and, of course, this recent quibble about Prop 9's counsel provisions. It seems like, in the last few months, the only arguments for or against any given correctional policy are all about the money.

I've started working on a broader piece about this. Here's the abstract:
What do a community court, an expansion to Death Row, and an extension of incarceration periods prior to parole have in common? All three have recently fallen out of favor with California correctional policymakers, not for substantive reasons, but for lack of resources. This paper analyzes the impact of the financial crisis on correctional policies in California, identifying an emerging discourse I call “humonetarianism”. Humonetarianism is characterized by a value-free, superficial, cost-centered approach to correctional initiatives and institutions, which are assessed by their contribution to the state’s deficit rather than on their actual or even perceived merits.
The paper opens by tracing the history of humonetarian discourse and its interaction with the punitive, public-safety-centered discourse of corrections since the 1980s, and the actuarial warehousing policies of the 1990s. The history of sentencing and parole policies in the state shows how humonetarianism emerged when punitive policies, pushed to their logical conclusion, became untenable. The paper continues by providing several examples of humonetarianism: the 2008 correctional propositions (5, 6, and 9), the San Francisco Community Justice Center, the expansion to San Quentin’s Death Row, the decrease in parole supervision over foreign-born inmates, and the recent Plata/Coleman tentative decision. It then generalizes, from these examples, the main features of humonetarianism: cost-driven discourse, political bipartisanship, and a sense of emergency. While this discourse may appear, at first blush, to be less punitive than policies from previous decades, the paper argues that it is extremely harmful in the long run, due to its superficiality, cynical usage by interest groups, and shortsightedness.
I'll be happy to get your feedback on the idea, here, or by email to aviramh at uchastings dot edu.

Karlton v. Prop 9: 1:0

More news on several controversial portions of Prop 9, which we discussed here in the past. As our gentle readers may recall, Prop 9 put into legislation more victim involvement in the criminal justice system, including parole hearings. While some of this was not news - and in several counties, at least, was common practice before the passage of Prop 9 - this is the aspect that was prominently displayed on the supporters' website. However, Prop 9 also included punitive provisions: lengthening parole procedures as well as limiting the right to counsel in parole revocation hearings for indigent defendants.

Yesterday, Judge Karlton invalidated the portions of Prop 9 that infringe on parolees' rights, particularly the restrictions on the right to counsel, due to a contradiction with a permanent injunction, reached as a consent decree, in 1994 following litigation regarding parolees' rights. The Sac Bee reports:

In the parolees' 1994 lawsuit, Karlton found the state's existing procedures were in violation of the 14th Amendment's due process guarantee. His resulting permanent injunction was ratified by the state and is legally construed as a consent decree.

"To the extent that Proposition 9 conflicts with the permanent injunction, the former may not be enforced," Karlton said in Thursday's 34-page published opinion, which cited the supremacy clause of the U.S. Constitution.

The Constitution defines itself as the "supreme law of the land, and its judiciary supreme in construing what the law is," the judge declared.

"The state's action is not given special deference by virtue of having occurred through the initiative process," he added.

Interestingly, the debate about Prop 9 has, yet again, been framed in terms of money. The Chron cites some of the arguments:

"Especially now, we cannot afford to be spending tens of millions of dollars on unnecessary privileges for convicted felons," said Nina Salarno Ashford, representing Crime Victims United of California. She urged the state to appeal the ruling "to defend the will of California voters, and the pocketbooks of California taxpayers."

Indeed. Because, what would get us talking about victim rights and due process for parolees, if not our pocketbooks?

Thursday, March 26, 2009

The Oakland Police Multiple Homicide: Aftermath

Over at Governing Through Crime, Jonathan Simon offers some thoughts on the tragic murder of Oakland police officers, which he sees as an opportunity to examine our broken parole system. Simon spoke at our conference recently, addressing the issue of parole and dangerousness, so his thoughts on this instance, which, in hindsight, is all about dangerousness and public safety, are particularly illuminating.

Kelso v. Schwarzenegger: 1:0 to Kelso

Here's an update to our continuing coverage of the medical services litigation; this round of the fight over funding the prison medical services, it seems, goes to the receivership. Yesterday, the District Court addressed the state's refusal to pay Kelso the first $250 million dollars mandated by the court, by reinstating contempt proceedings against the Governor for declining to do so. The Chron reports:

In Wednesday's ruling, the court said the state had acted prematurely in appealing an order Henderson issued in October to pay $250 million as the first installment of a plan by the receiver, Clark Kelso, to build new medical and mental health centers and renovate existing ones.


Henderson said the money was available in a bill the Legislature had approved, and scheduled a hearing in November to hold Schwarzenegger and state Controller John Chiang in contempt of court for withholding the funds. Officials who are found in contempt can be jailed, but Henderson said he planned to assess financial penalties against the state until it complied with his order.

The state won a stay from the appeals court while judges reviewed the issue. But the three-judge panel dismissed the appeal Wednesday, saying Henderson's order would not be final until Schwarzenegger and Chiang were actually held in contempt.

The state's arguments - that the receiver was appointed illegally and that his construction plan violates federal law - can't be evaluated until Henderson rules, the appeals court said. The court noted that the governor had consented to the receiver's appointment and had not objected to his construction plan until last summer, when he balked at paying for it.

Lisa Page, a spokeswoman for Schwarzenegger, said the governor would keep urging Henderson "to recognize the fiscal restraints facing California and the excesses included in the receiver's construction plan." She declined to say whether the governor would comply with Henderson's order to pay $250 million.

Kelso's lawyer, James Brosnahan, said the ruling clears the way for a trial on contempt, "something that nobody wants to do, but we'll do it if we have to."

As explained in the Sac Bee, this is slightly more complicated because of Tuesday's ruling by the 9th Circuit Court, according to which the state's argument against Judge Henderson's order is still premature.

A three-judge circuit panel said in a 15-page opinion it does not yet have jurisdiction over the issue because Henderson's order is not final, "but is rather an interim step." . . .

The state had maintained Henderson's order amounted to an injunction, which would be appealable, but the three circuit judges rebuffed that argument as well. "Although the state presents important questions, which may be matters of first impression, concerning the 11th Amendment, the PLRA, and the prison construction program as a whole, none of those challenges has been properly raised in the district court," the panel said.

However, while the opinion was issued Wednesday, it was obviously written before Henderson's Tuesday order rejecting the state's motion to terminate Kelso and his construction program. In that order, Henderson did address whether he has overstepped boundaries imposed on him by the PLRA, finding he has not.

The judges pointed to Henderson's orders creating the receivership and mandating the state's obligation to fund efforts to bring inmate health care into line with the Constitution's Eighth Amendment bar on cruel and unusual punishment.

Not only did the state not contest these orders, it consented to them, the judges recalled. They remarked that the state's consent "may affect or even negate its claim of 11th Amendment immunity … and … the claim of violation of the PLRA."

Incidentally, Schwarzenegger says he is not running for another office.

Schwarzenegger. . . explained that he has more freedom to make policy decisions (including tax increases, a break from past campaign promises) precisely because he doesn't have to run for another office. . .

"The point was that I am not running for anything, so no one could threaten me, because I'm not running for Senate, I'm not running for Congress, I'm not running for another term as governor," Schwarzenegger said.

The governor is termed out in January 2011, and he has never said what he will do once he leaves his Sacramento office.

Tuesday, March 24, 2009

Goro Toshima's Documentary A Hard Straight

Several people who couldn't make it to the conference have asked for more information on Goro Toshima's film we showed on Thursday, A Hard Straight: A Documentary About Doing Time on the Outside. The film is absolutely phenomenal. It provides an intimate peek into the life of three people - a tattoo artist with a poetic soul and strong gang affiliations, a drug dealer trapped in the Tenderloin, and a mother of three working on repairing her relationship with her children - who, upon release from prison, are trying to rebuild their lives.
For more information on the film director, and to contact him regarding the film, visit his website.

Interrupted Life: Incarcerated Mothers in the United States

If you're interested in issues of women in prison, this upcoming event at the Sonoma State University Library seems interesting. The program looks great, and includes not only a panel and talks, but also a documentary and a performance.

Receivership Salaries

(image courtesy sacbee.com)

Another attack leveled at the medical system receivership - this time, on the receivership employees' salaries. The Sac Bee reports:

Last year, seven of 26 staffers – including two part-timers – still were paid more than the $225,000 annual rate earned by corrections chief Matthew Cate. Eight enjoy large Department of Corrections and Rehabilitation pensions on top of their salaries.

And prison doctors and nurses dominate the state's best-paid roster. More than 240 doctors or nurses, state employees overseen by the receiver, were paid more than the $226,359 earned by the state prison department's medical chief.

The receiver's request to raise salaries was granted by the court in 2006 in order to "improve quality of care, help fill vacancies, reduce cost of contractors".

The Fresno Bee has a somewhat more forgiving take on the salary issue:

The first federal receiver earned far above what a public service mission entails -- a salary and benefits package of $620,000. The current receiver, J. Clark Kelso, hired a little more than a year ago, earns $224,000 -- in line with the California corrections chief's pay of $225,000.

Now, after a year in office, Kelso has eliminated three positions and shifted most of the remaining 25 receivership positions to state pay scales. That's the right approach and will save a few million dollars.

But beyond focusing on receivership salaries, Californians ought to keep in mind the major driver of staggering costs for prison medical care: The state imprisons too many old, feeble and chronically ill prisoners no longer considered dangerous.

Monday, March 23, 2009

Sister Helen Prejean to Speak in Walnut Creek

More events of interest: Sister Helen Prejean, author of Dead Man Walking (made into an excellent movie), will be speaking next Monday at the Mount Diablo Unitarian Universalist Church in Walnut Creek. These are exciting times for those interested in the death penalty, as New Mexico abolished capital punishment four days ago, and as other states place moratoria on executions, citing costs. To get a sense of the broader cultural implications of the death penalty, I strongly recommend Austin Sarat's When the State Kills.

Sunday, March 22, 2009

Jeff Adachi Shows Up in Person to Defend Clientele at the CJC

(image courtesy sfgate.com)

Here's another piece of news that got away during our conference preparations: the new battle arena between San Francisco Public Defender Jeff Adachi and the Mayor is the Community Justice Center.

As reported by the Chronicle a few days ago, Adachi had said that, if the Public Defender's budget would not be adjusted, he would have to staff the CJC in person, which he did, representing a homeless woman he located himself on the street. I really recommend reading the article - Albers' and Adachi's personalities really shine through. And, those interested in seeing more of Adachi as a litigator will enjoy the PBS movie Presumed Guilty.

Chron Editorial on Medical Services Litigation

The Chron is finally picking up the slack with today's edition, in an editorial regarding the medical services litigation

A fiscal emergency is an enormous problem. But it's no excuse for the state to try, once again, to abdicate its responsibilities toward those it keeps locked up.

Saturday, March 21, 2009

More Big Picture Information

"It's extremely bad. So you have more people coming in with more problems and more calamities to add to the frustration of the people that are there. Some of these people have no respect or compassion. So when they come here, they take their aggression on the next man, which is right next to you, again because the bunks are so close to you. And then in turn, turmoil, fights, arguments constantly. The noise level is beyond measure, on a constant level. It's very very hard."

--Raymond, inmate sleeping in gym

Those who attended the conference and would like more background - and those who didn't and would like to know more about the broader picture - will benefit from Prisons in Crisis, a radio documentary produced by JoAnn Mar. The entire documentary can be downloaded and listened to; and for those of you who prefer reading, the transcript is available from the same location.

Reentry and Returning to the Community

The last panel, Reentry and Returning to the Community, was a mixture of somber observations on the correctional process and of rays of hope. It started out with Dorsey Nunn, Program Director for Legal Services for Prisoners with Children, who put much of the financial crisis into perspective. The current concern over the national 13 percent employment rate, he said, would be cause for rejoice among the prisoner population; with thousands of formerly incarcerated men and women looking for employment, only a precious few will be able to rebuild their lives. Part of the problem, argued Nunn, is structural in nature; when released inmates are denied basic survival needs, such as jobs that provide medical insurance, the problem is propagated. Even simple, technical things that middle-class citizens would not notice, discriminate and marginalize, such as a "have you ever been convicted?" box on life insurance forms. Much work still needs to be done around discrimination; and the middle-class person's paranoia when confronted with "someone who looks like me", said Dorsey, is only half of the picture; released inmates experience a parallel sense of paranoia when asking for houses and jobs. The good news are that formerly incarcerated people are organizing, and questioning much of society's structure, including their exclusion from the very institutions and enterprises designed to "solve" their "problems".

A good example of this might be San Francisco's Safe Communities Reentry Council, about which we heard from Jessica Flintoft. The Council is meant to be a collaboration of formerly incarcerated people with various community figures such as the sheriff's department, county probation, and human services. In true San Francisco fashion, the idea was kicked off with two councils, one headed by the chief Public Defender and a sympathetic supervisor, the other by the District Attorney and the Sheriff. One of Flintoff's priorities is combining the two, which requires some compromise regarding their roles and conceptions. The purpose of the Council is to develop local oversight over reentry services and options, which so far have been provided sporadically and on a local level.

Flintoft shared some of the principles and challenges guiding her in her work. First, she mentioned, there is an emphasis on transparency and on allowing everyone to come to meetings and speak up. Second, there have been struggles with her intention to allow parolees to serve (and, as of now, they cannot vote, but they can be council members!). Third, she discussed the need to generate collaboration between the DA and the PD as participants in the process, and to transcend the courtroom adversariness for the purpose of advancing reentry. And, finally, she highlighted the importance of making city services available to people regardless of their offense; this requires educating various segments of the community, who express reluctance to offer housing to drug offenders, services to sex offenders, and the like. Flintoft extended an invitation to seven formerly incarcerated people to join the Council.

The closing speaker of the panel - and the conference - was Professor Gerald Lopez from UCLA, who provided us with sobering reflections on the historical dimensions of criminalization, marginalization, and reentry. Contrary to correctional lore, said Lopez, criminalization and the war on crime are not a product of the 1980s and the Reagan era. The same communities and neighborhood were targeted in many of the same ways; minorities and low-income people were routinely hassled, prosecuted and locked up even in the supposedly more benign days of the 1950s and 1960s. It is also important to remember that rehabilitation programs - what we now call "re-entry" - are also not a new invention.

The transformation in the 1980s, and the worsening of fear-mongering and mass hysteria, operated, said Lopez, in utterly predictable ways. Certain populations suffered disproportionate impact. While there hasn't been a single "master coordinator" of the war on crime, the system we currently have was ultimately the product of design and choice. Policymakers could predict that the same people who were historically targeted by the criminal justice process would be targeted again; the policies were an utterly racial, and racist, perspective on who was safe, who was not, and what to do with them. Moreover, they reflect an immense indifference to the plight of the communities from which the targeted people came and to which they would eventually return.

Fighting these campaigns of fear and cruelty has been an uphill battle, and in the course of the last few decades activists have encountered situations that seemed imaginary - such as the release of people in NY to random places without an ID. It is, said Lopez, sadistic and stupid to design answers for these problems without involving the people themselves in designing their own fate; they must have a voice in the process, and they must have at least access to information on the available services, let alone some measure of how effective and helpful these services are.

Some of the problems with this sort of activism have to do with our tendency to invent the wheel and make up new words (such as reentry), ironically precisely when we have so little that would count as re-entry. Other issues relate to the bureaucracy, meetings, and talk without action that is often a feature of this work. But, as Lopez said, among the cops, parole agents, correctional officers, lawyers, and academics, one can find truly rebellious people, who will cut through red tape and meaningless words to get stuff done. It is these folks who are the true hope for change, and their energy can and must be harnessed to generate that change.

Dangerousness, Risk, and Release

As the day's panels progressed, it became quite clear that every step of the correctional process was impacted not only by what happened earlier, but also by what happened later. Parole violations, and parole risks, are enormously important considerations for prison population size; also, the phrase "public safety" had so far remained unexamined. Our panelists for the Dangerousness, Risk, and Release panel were going to help us unpack and question the assumptions and considerations underlying our release policies.

Professor Jonathan Simon started by drawing an intriguing analogy between our risk assessment process for crime and for cancer. Why are we so willing to examine evidence-based, empirically tested risk rates for the latter, while at the same time keeping the real risk levels for the former clouded in a mist of public fear? A brief look at the genealogy of this fear revealed our collective "stranger danger", generated gradually by Manson and other iconic fear figures, as well as by presidential assassinations. This public fear was generated and perpetuated by government officials of all stripes; a brief look at republican and democrat governors revealed their unified position on issues of public safety. The wall-to-wall opposition to the passage of Prop 5, led by Schwarzenegger and supported by others, was a good demonstration of what Mark Leno had said earlier in the day: no one, regardless of political association, wants to appear soft on crime.

Simon highlighted four important points in respect to our culture of fear. First, he said, risk assessment is a very difficult thing to do. Violence is highly situational, rather than an individual's pesronal trait. Second, while CDCR asks for increased budget to lock up Level IV inmates, the decision to classify inmates as Level IV goes unexamined, and it may well be that this is yet another example of risk overestimation. Third, we must not forget that the supposedly neutral "risk factors" always carry with them social factors, such as race and class, and by doing so, perpetuate stereotypes and generate more demographic divides; and, finally, mass incarceration itself interacts with the broader problem. The mention of feeble, elderly lifers on breathalyzers as "public risks" denied parole was nothing short of absurd. Instead, suggested Simon, why not direct our public safety concerns toward more urgent, and less stigmatizing, needs, such as training our prisoners to help with the very real public risks posed by disasters such as Katrina? Our labeling of people who helped others during the hurricane as potential looters and rapists is very telling of our tendency to allow moral panics about crime cloud the real sources of concern.

For some, however, objections to release are based on a much more private threat to Safety. Shadia Merukeb, a victim consultant with the Alameda County DA's office, provided the victims' perspectives on parole. A great part of the problem for victims, she explained, consists of a lack of familiarity with a difficult system, which does not conform to what victims expect based on their crime-TV experiences. Long before the passage of Prop 9, Alameda County provided rights to victims, but without assistance these often went unutilized. The challenges a victim faces in terms of presence in parole hearings range from simple issues of transportation to far away prisons (fees, schedules, and child care!) to issues of fear and concern; often, the victim has to encounter the offender at rather close range, or wait with the offender's family in the waiting room for the parole hearing. Under these circumstances, the victim advocates fill in the gaps for DAs and parole agents who are unable to provide them with the unique assistance that they require.

The parolees' perspective was provided by Robin Rederford, community liaison for Legal Services for Prisoners with Children. The problem with release, explained Rederford, lies in releasing people completely unprepared for life on the outside, and with the same substance abuse and unemployability issues they went into prison with in the first place. The return home becomes a frightening prospect when one does not have a supportive family outside; having been humiliated and dehumanized, one has to rebuild one's life with precious little in the way of resources. Some housing programs actually become unavailable to those with criminal convictions. The concern with public safety, said Rederford, might be greatly alleviated if people were offered services and opportunities for employment which would preclude them from parole violations.

Finally, we heard the CDCR's perspective on parole reform from Evelyn Lara-Lowe, Deputy Regional Administrator for Parole. She assured us (and I believe her!) that the CDCR has no interest in bringing people back into prison. The issue of general parole is a legal given, which CDCR has to work with; she was willing to concede that there are people on parole who do not need to be under supervision. Ironically, those are the people who actually complete parole without violations. The problem is, said Lara-Lowe, lack of resources. Parole agents, and professional staff, are extremely busy and overloaded; support needs to come from the community, which is often inhospitable to formerly incarcerated people. Also, it is problematic to provide the same level of services in remote places with a relatively small parolee population.

The questions from the audience were absolutely fantastic. We got to discuss parole caseload, as well as to question the link between victimhood and punitiveness. One commentator, a psychiatrist for CDCR, said she couldn't think of a better way to make people dangerousness and unsafe than to house them in a CDCR prison.

Restorative Justice and Sentencing

(this post by Keith Ogden)

This panel, chaired by Hastings Professor Kate Bloch, brought to light several different models of restorative justice in practice in California today. A common theme in this morning’s panel was, “What are we not addressing in our traditional approach to criminal justice system that causes (or doesn’t mitigate) high recidivism rates?”

Professor Bloch opened up the panel with introductions and a few remarks about restorative justice. She noted that restorative justice is an ancient model for resolving issues of crime and harm in communities. She highlighted several features common to the various iterations of restorative justice practice in world today, including offender responsibility/empowerment and creation of understanding and healing between victims and offenders. She framed the discussion by introducing the general concepts of Victim-Offender Mediation (VOM) and noting that VOM is used in some settings as a replacement for incarceration and sometimes, in various forms, as a supplement to incarceration.

Sunny Schwartz, Director of the San Francisco Sheriff’s Department’s Resolve to Stop the Violence Project (RSVP), shared reflections on her groundbreaking work with us. She reminded us that we’ve been implementing some form of criminal justice system in our state for 150 years without effectively including criminals, prison staff and others in the conversation about the purposes and outcomes of incarceration. She challenged us to think about who benefits from the system as it is.

Working within the system for over 25 years, Sunny has witnessed corrections fail the men and women who spend time in prison over and over again. She has seen three generations of family members in prison at the same time. She has seen recidivism persist at consistently high rates. She decided to do something.

In 1990, Sunny initiated programs to bring education and pro-social living (via open dormitories) to a prison drug program for women in San Francisco. However, recidivism remained high. In the 1990s she stumbled across restorative justice. Inspired by the emphasis on accountability, community involvement, and the underlying premise that crime hurts everyone, she told her boss, Sheriff Michael Hennessey, “we’ve got to start this” in our prisons. She did, and the RSVP program took flight.

Sunny’s greatest professional joy is her work with RSVP. The program takes 60 men who’ve been involved in violent crimes and who would traditionally be locked up in guarded prison cells, and places them in a dormitory setting with counselors. It brings victims who have suffered violent acts to share their stories with violent offenders. Sunny showed a short and powerful video depicting the program in action. One victim shared that “the violence does not end when the act is over.” An offender responded by saying that hearing such stories helped him become more aware of what it’s like to be on the other side. The video resonated with many audience members’ sense – the sense that drives Sunny – that inmates, even the many of the most violent inmates, can change for the better. An evaluation of the RSVP program by a Harvard psychiatrist has demonstrated that for participants who spend at least four months in the program, violent re-arrests drop by 80%.

Marissa Wertheimer, an attorney mediator at Marin Mediation Services and coordinator of their Victim-Offender Restorative Justice Program, shared her journey from social justice and children’s advocacy to restorative justice work.

Marissa raised the important question: “What do we as a community want to do when harm occurs?” The traditional answer is that we outsource our response to crime and harm to others – the police, the courts, the criminal justice system. Restorative justice challenges us to think well beyond rehabilitation and towards empowerment, healing and the responsibility of the community.

In her work with juvenile offenders, Marissa noted that follow-up surveys report 95% satisfaction with the Victim-Offender Mediation process. One might imagine that neither victims nor offenders would report such a high rate of satisfaction with the traditional criminal justice system.

Marissa’s description of restorative justice circles was fascinating. She first learned about the process a few years ago, and viewed it instantly as a means to improve upon traditional Victim-Offender Mediation. The restorative justice circle process involves three steps. (1) “Pre-circle.” The juvenile offenders and the victims have the opportunity to discuss who they feel needs to be in the circle and what they hope to achieve by participating in the circle. They also have an opportunity to opt out if they do not want to participate. (2) “Circle.” Victims and offenders meet in a mediated setting to attempt to reach a mutual understanding and develop a plan of action. Marissa emphasized that it is critical in this step to nail down specifics in order to be able to hold all involved accountable. (3) “Post-circle.” Follow-up. Is the plan being implemented? If not, why not, and what can be done to fix it?

Audience members brought up several questions and concerns. Is it possible for a criminal justice to utilize restorative justice to the exclusion of incarceration? Both panelists commented that some inmates will not respond to their programs and incarceration is necessary. Marissa noted that in New Zealand restorative justice is always the first option in addressing a crime and its attendant harm to the victim, the offender and the community. If restorative justice fails, then the traditional retributive system is invoked. Sunny shared that there all prisons should have programs like RSVP.

The question of whether restorative justice can work for violent offenders was raised. Sunny designed her RSVP program to offer hope for the most egregious offenders. Marissa noted that she is seeing more and more success with violent offenders.

Time was short and some questions were either not raised or not fully answered. For example, can restorative justice circles be used successfully for adult inmate populations? If restorative justice is supposed to be about making victim, offender and community whole, what role is/should the community be playing? How should studies be designed and implemented to assess the success and promise of restorative justice initiatives? Do we want to be “tough” on crime, or “smart” on crime? Marissa noted that the public’s concern for public safety will drive our choices about what system we put in place to address crime. That begs the question, “Does restorative justice meet the goal of increasing public safety?” Our panelists made a strong case that it does. The evolving practices within the realm of restorative justice offer hope that we can be smarter in how we address crime and harm in our communities by creating opportunities for healing and empowerment, and by reducing recidivism.

Special Populations in Prison

One of the often hidden aspects of corrections are populations that do not conform to the public image of the American male offender. Our next panel, on special populations in prison, was designed to draw attention to these underserved populations and the special problems they face during and after incarceration.

The first speakers, Miss Major and Alexander Lee of the TGI Justice Project, spoke to the plight of transgendered prisoners. This plight is best understood through the general background provided by Miss Major on discrimination against the trans population. As she pointed out, the lack of opportunity to exist in a "normal" fashion, the rampant discrimination and ousting from schools, training, and workplaces, sometimes leads trans people to criminal activity. Another aspect of the etiology of trans incarceration is the criminalization of broad areas in trans people's lives (incidentally: last year Hastings held a Transposium, which provided more background on transgender issues, and whose program can be found here). Lee expanded on the prison situation in particular: the assignation of prisoners to male and female institutions is done on the basis of genitalia, which leads many unoperated trans people to institutions that do not match their gender identity, and produces horrifying phenomena, ranging from rampant verbal harrassment to sexual assault. Lee also mentioned a few cases of what he called "sexual assault by proxy", in which clients reported having been sent to problematic cells as fodder for violent, aggressive inmates, and being told by guards about this express purpose. The TGI justice project faces immense challenges in organizing prisoners, which it overcomes by producing a newsletter; there is a ray of hope, which lies in the inmates' acquired high level of legal literacy and their awareness of their rights.

Our next speaker, Dr. Barbara Bloom of Sonoma State University, discussed the issue of women prisoners. The demographics of this population, which constituted 7% of the entire encarcerated population and 12% of the parolee population in 2007, differ from those of males in several important ways. Only about 30% of women are imprisoned for violent offenses; the vast majority are property and drug offenders. In terms of risk, less than 10% of them are considered Level IV prisoners, and almost 70% are Levels I and II. Most of them are in prison for parole violations. This led Bloom to ask whether this large low-risk population would need to be in prison at all, and would not be better served in a scheme of community-based corrections. The concern is particularly true in light of the fact that women prisoners are disporportionately women of color, poor, unemployed, and many of them are mothers of small children, survivors of sexual abuse, and with serious histories of substance abuse.

A big step in improving correctional policies for women was a 2004 report from the Little Hoover Foundation titled Breaking the Barriers for Women on Parole. The report, which recognized the lack of gender responsiveness in supervision, called for important changes in assessment and case management. Some of the highlights of the report, which later became official CDCR goals, included creating a comprehensive case management plan, creating alternatives to the overreliance on mega-prisons for women, and providing a continuum of housing and service options for transfering women seamlessly into the community. Some of these have been implemented: a training curriculum has been created, a special risk-and-needs assessment tool is in use, and some gender-responsive programs are in existence. However, women are still largely held in overcrowded facilities with no comprehensive continuum of care. There is much to be done particularly in the realm of alternative housing facilities.

Finally, Angie Junck of the Immigrant Legal Resource Center allowed us a peek into the hidden and disturbing world of correctional policies directed at foreign-born inmates. As it turns out, California prisons contain 30 percent of all noncitizen inmates in state prisons nationwide. Contrary to what some of us may have thought, many of these folks are not "illegal" or "undocumented", but rather lawful permanent residents, or even naturalized citizens. Most of them come from Mexico, but there are many who hail from Central America and Asia.

The fate of these inmates is quite interesting. While they serve their sentence, the CDCR alerts immigration officials to the identity of anyone they believe to be a noncitizen; their mechanism for doing so is incredibly crude and relies on people's last names. Immigration and customs enforcement officials then place a "hold" on the inmate, that is, a request that the prison or jail hold the pesron after their scheduled release time in order for immigration to assume custody and initiate deportation proceedings. At that point, they are transferred to the center for deportation, where the conditions are considerably worse than in California prisons. The hold itself has devastating effects on one's prison experience: prisoners on hold are subject to higher security classification; according to data collected in 2000, their prison terms are, on average, 10 percent longer than those of comparable inmates. They cannot be paroled or released, are disqualified from rehabilitative prison programs, and are often located in a facility far away from home, presumably under the assumption that one does not have family and therefore does not need to be close to visitors. Information collected by the California Coalition regarding women immigrants revealed big difficulties in obtaining medical care due to language issues, greatly exacerbated by the fact that medical forms are all in English.

The suggested - and accepted - state policies regarding these inmates are characterized by anti-immigrant sentiments; immigrant inmates are seen as a bureaucratic inconvenience best dealt with by deportation and on federal dime. Parole is not revoked for illegal presence in the United States; instead, the deportees are transferred to the Federal system where they will serve ten times the time they would serve for the parole violation.

Our exposure to these issues means that we can no longer use the excuse that the populations are small and unseen.

Judge Karlton's Luncheon Address

(image courtesy law.com)

It was our great pleasure to have Judge Lawrence Karlton as our luncheon speaker. Naturally, Judge Karlton could not directly comment on the ongoing Plata/Coleman cases; he did, however, discuss the principles underlying them and some of the broader concerns surrounding them.

Judge Karlton opened with a discussion of the long nature of the problem; the Coleman case hails from Governor Wilson's days, and the Valdivia case was originally filed against Governor Davis. In hindsight, the expectation that a 1995 determination that the state had violated its inmates' Eighth Amendment rights would yield immediate results seems rather naive; there is still much work to be done before the system can be brought into compliance with constitutional standards. Fourteen years later, there is still no bed plan for mentally ill people; there is no systematic program for evaluating inmates; treatment programs are few, and sorely lacking sufficiently trained administrators; the confidential maintenance of medical records is far from perfect; and there is no system for identifying suicide risks. Much of the plight of the medical system can be traced back to the massive closing of mental institutions during the Reagan era; so far, no CA institution can be said to comply with constitutional standards. Not much progress has been made with parole revocation reform, either.

The question then becomes why the CDCR does not rectify the situation to rid itself from the federal judiciary; the answers are complex and subtle. One possible answer provided by Judge Karlton is that prison administration is a large bureaucracy, and in such institutions, existing rules have a tendency to perpetuate the status quo and discourage change. There is the additional complicity of other professional systems, such as the psychiatric system; it is difficult to hire professionals to work in prisons located in remote places. As Judge Karlton reminded us, we do not have to have an evil disposition to end up with a dysfunctional system. There is also the issue of lobbying power; prisoners and their families do not represent a real constituency.

As to the broader issue of the court's role in reforming prisons, Judge Karlton had interesting things to say. Federal judges do not stand for reelection, they present a hope for change. However, law and courts, he argued, are bludgeons; what is needed for these problems is a scalpel. Federal courts can only intervene when state standards fall beneath the Federal constitution. What is desperately needed is a change in culture within the state, and attention to the parts that are hidden from state citizens; those which, according to Dostoyevsky, are the measuring rods for our true level of civilization.

Neuroscience, Treatment, and Drug Courts

After the morning panels, it seemed that reforming our sentencing scheme was almost as impossible as being in three places at once, which is why I was only able to attend one of the concurrent panels on alternative sentencing. Dr. Emily Murphy, a behavioral neuroscientist working at Stanford, provided us with some fascinating information on the potential of neuroscience in rehabilitation in general, and in drug addiction situations in particular.

One of the problems with the emerging trend of neurolaw, which is otherwise a fascinating and promising field, is the tendency of some professionals to aggrandize its promise and advocate it as a cure-all, magic bullet for social ills. Murphy strongly advised against such simplistic perspectives, and her talk was an excellent example of nuanced, intelligent, sane discourse on the promise and limitations of science. Having briefly examined California's history with brain-altering therapies, in particular the controversial UCLA Violence Project of the 1970s, Murphy turned to dicussing three avenues in which neuroscience could be helpful in criminal justice enterprises.

The first of these, prediction, focuses on the ability to foresee who might recidivate or benefit from a certain kind of treatment. This is a goal we are, at this point in time, far from achieving; there is no such thing as a single "crime spot" or a "violence spot" in the brain we can identify. One thing some scientists have done is focus on the category of psychopathy; psychopaths, sophisticated and manipulative, are highly overrepresented in the incarcerated population. Current diagnostic tools are not very helpful for screening purposes, since they consist of lengthy interviews by extensively trained people; however, Dr. Kent Kiehl has done some research on this on New Mexico inmates using a portable MRI scanner and is optimistic about its predictive potential.* Another issue is the possibility of predicting dangerousness. The Macarthur foundation has devleoped some multifactorial quantitative measures which, albeit imperfect, might have some predictive value. The key would be to obtain brain mapping, follow up on the inmates after their release from prison to see recidivism patterns, and then use the correlation to offer predictions. It should be remembered, however, that typical analysis of MRI relies heavily on statistical correlations, rather than on identifying a single spot on the brain, and therefore cannot be dispositive. It is also quite difficult to predict whether a certain type of treatment would be suitable for a certain offender; pharmacological treatment is akin to a sledgehammer in that it impacts the entire brain, and therefore often has complicated side effects.

Some treatment options are also being explored. In drug addiction cases, this mostly consists of substitution (replacement of the drug with another drug) and/or direct antagonism (drugs which suppress the craving by creating adverse consequences). Going through the existing substitutes - the well-known methadone and several others - was fascinating; naturally, treatment efficacy is seriously impacted by compliance. Also, some of the antagonizing drugs produce other bad reactions that might, ironically, exacerbate drug use.

Some more extreme treatment measures include psychosurgery and brain stimulation, which share an ugly, frightening history. However, brain stimulation has been found to be effective for treating Parkinson's disease, and may also be valuable for various addictive conditions. The problem is finding dependable studies, based on ethical research, and published in reputable journals, that would confirm the efficacy of treatment.

The mixed results of treatment led Murphy to advocate a research focus on prevention. Several avenues were explored, such as the possibility of vaccination against addiction (which raises compliance issues) and the potential for actual erasure of drug-related memories, thus eliminating the positive associations to drug use. The problem is, as some audience members pointed out, that drug use becomes such a pervasive aspect of a person's whole life, that a great many things and situations may be associations.

Murphy closed her talk by emphasizing the fact that neuroscience cannot be, in itself, a magic answer to drug prevention, and that holistic, environmental factors should also be taken into account. The perfect environment for considering all these factors is a drug court, which could create the sort of support system that would enhance the efficacy of any treatment chosen. She also reminded us of the need to be subtle and sophisticated about raising ethical questions - not accepting things at face value, but also not ruling them out with a knee-jerk reaction.

* props to Nadja Habinek for the link.

Sentencing Reform in California

One thing that became crystal clear on the Thursday opening panel was the lack of coordination between the different steps of the correctional process, starting with sentencing; but the deep problems, and the immense challenges in fixing them, were fully introduced only on Friday morning on the sentencing panel.

The panel was opened by Judge Tricia Bigelow, Associate Justice at the 2nd District Court of Appeal, who teaches sentencing to judges, and who used the words "labyrinth" and "byzantine" when describing the CA sentencing scheme (citing a colleague who compared our sentencing laws to bureaucratic memoranda and toy assembly instructions!). Since 1977, Judge Bigelow explained, the basic structure for single-count felony sentencing consists of choosing a "base term", and then adding conduct and status enhancements. The penal code provides "triads" for each particular crime (for example: 2, 3, or 5 years); after Cunningham v. CA, a temporary legislative fix allows the judges to select one term out of the triad based on a set of factors from a non-exclusive list. After adding enhancements - additional prison time due to the nature of the crime (injury, gun, excessive taking in a theft) or to the circumstances of the criminal (previous convictions) - the judge can review a variety of statutory reasons for mitigation or aggravation. This is a fact-specifc process, which is difficult to systematize. The judge must also state reasons for selecting the base term out of the triad.

The picture becomes murkier, though, because CA law is a patchwork of sentencing initiatives that create special sentencing schemes for special cases. Not only do we have a "ghetto" of indeterminate sentencing for lifers, but we also have three strike laws, which, incidentally, create changes in sentencing for two-strikers as well (double the punishment); special sentencing schemes for sex offenders, gun offenders, gang offenders, and others. Judge Bigelow amused/horrified/bewildered us with some of the example cases she gives to judges when she teaches sentencing; it is truly a difficult maze and, as she reports, none of them got one of the examples right. She mentioned the need for a unified system that produces predictable results.

How must we proceed in producing a unified system? Kara Dansky, Executive Director of the Stanford Criminal Justice Center, strongly advocated for a sentencing commission. She started by highlighting two themes in CA sentencing: the unique rigidity and complexity of our sentencing system, and the shift in discretion from the hands of judges and correctional officials to legislators and prosecutors. What we have now is remarkably different from what the original enactors of the Determinate Sentencing Scheme had in mind in 1976; the triads, which were supposed to simplify matters and provide certainty, ended up being part of a patchwork, and are surrounded by hundreds of enhancements. Every single time a sentencing commission has been proposed - and there have been 11 bills so far - it has died, been vetoed, or stalled. There is now a new bill for a sentencing commission before the Assembly, based on Tentative Draft #1 (which, despite its tentative name, is the last word from the people who brought you the Model Penal Code).

A sentencing commission would have several purposes. It would be expected to develop sentencing guidelines (with an eye toward creating uniformity while still allowing judges room to individualize the sentence); collaborate with judges (who should be more involved than they are now); provide information and generate knowledge from the entire system (there is no single nonpartisan forum for policy, nor is there any communication between the different silos maintaining datasets on CA sentences); explain the logic behind sentencing policy (a duty from which our lawmakers are exempt); and ensure that all of this happens on a permanent and ongoing basis.

Dansky also tackled several of the arguments against sentencing commissions, arguing that they were based on misconceptions of the institution and the logic behind it. Two worth mentioning were the concern that commissions would be undemocratic, when, in fact, they would be a transparent governmental agency, and the concern that voter initiatives would render them useless, which may be the case for some, but not all, sentencing situations.

It was a pleasant surprise to find out that not only judges and policymakers had concerns with sentencing; Michael Jimenez, President of CCPOA, showed us that correctional officers and guards have vested interest in what happens to their inmates before they arrive in prison. In fact, Jimenez argued, the sentencing scheme is so bad that he could not imagine anything worse. The CCPOA has been pushing for a sentencing commission as well, but very disheartened with the political process around it. It all revolves, said Jimenez, around money; there is no political fix for the sentencing problem as long as our policy calculations are influenced by short term, year-to-year tactics.

The politics of sentencing reform were furtherly driven home by State Senator Mark Leno, who shared with us the sobering realities of sentencing politics. California, said Leno, now spends 11 percent of its budget on corrections - that is, more than it spends on higher education, and obtains abysmal results. We have twice the national recidivism rate and half the national parole completion rate. 70% of the inmates come out of prison functionally illiterate; 70% face serious alcohol and drug problems; 60% will be homeless and unemployable. We are the only state that has both determinate sentencing and parole – three years of it, irrespective of the crime - and no intermediate sanctions. As prison population ages, the costs per prisoner rise; they double for inmates over 50, and triple for inmates over 60.

Leno told us of several attempts to amend CA laws and how they were fought - unfairly and inaccurately - by aggressive lobbyists using fear tactics. An attempt to amend the three strikes law a few years ago, to require that the third strike be a violent offense, seemed to make sense to voters - until the governor had a wealthy sponsor flood the media with statements on the potential to release dangerous rapists and murderers, information left out of the brochure because of its inaccurate, misleading nature. Another attempt to reform the system by allowing people to exit parole after 12 months - which would have saved 70 million dollars, which would then be directed into rehabilitation programs in prison - was killed by a floor alert saying that the bill would release thousands of rapists and murderers. Immediately after the bill was killed, Leno got the following message from the lobbyists: “we apologize for the inaccuracies in our floor alert”.

Leno highlighted that the fear tactics were not a republican problem. Neither republican nor democrat lawmakers want to appear soft on crime at any cost. Under the circumstances, and given the fear of elected officials, a sentencing commission is necessary.

Friday, March 20, 2009

Litigation over Medical Services in Prison

Our next panel, chaired by my terrific colleague Aaron Rappaport, highlighted one of the hottest issues on the correctional agenda today: the issue of litigation over medical services.

Don Specter, Director of the Prison Law Office, opened the panel by telling us some of the realities of prison litigation. The Prison Law Office has been litigating prison health care in CA for three decades, and with the exception of the first trial, they have won every single case by judgment or consent by proving Eighth Amendment violations, which are extremely difficult to prove. Despite these victories, the conditions persist. In the latest chapter, the courts were motivated to make the Plata/Coleman tentative ruling in light of truly alarming data (provided by the Receiver's office) on the standards of care, such as the shockingly high avoidable death rates in prison. Why did such conditions persist? Not only does overcrowding prevent the system from reaching acceptable standards of care, but the State is not committed, in the deep sense of the word, to the provision of medical treatment to inmates. The system focuses on the custodial aspects of its function; the medical services are an add-on, an afterthought, which the system is not designed, and unmotivated, to cope with, especially in cases of exigencies. Courts are rather poor institutions when it comes to solving such problems with injunctive relief, and are often dismayed at the State's noncompliance, to no avail. The current move to block the Receivership, said Specter, is one such example. Instead, said Specter, the priorities should be as follows: a reduction of prison population to manageable levels (104,000 prisoners); proper classification of prisoners; and providing the Receiver with proper resources to do his job.

The next speaker, Lori Kohler from the Department of Family and Community Medicine at UCSF, reminded us of an important value: compassion. Prison is an invisible city, and as a society we fail to accept its existence and needs, and simply assume that people just "go away". But this "city" in particular poses real challenges to medical staff: not only are minorities and poor people overrepresented - which raises questions of medical care prior to entering prison - but also, prison creates some of the most complex cases medical professionals have to deal with. Kohler spoke of the "culture clash" for medical professionals in prison: the doctors walk in with compassion and care, but prison environment constantly reminds one why people are there. There are plenty of opportunities to connect with the compassion of custodians and work together, since the guards themselves have vested interest in the provision of proper medical care; however, the need for safety, and system exigencies, complicate this. Safety rules (such as the inability to transfer people to appointments in the fog, or if someone lost a pair of scissors) complicate the provision of services. Also, the incredible low-tech environment problematizes the ability to take care of complicated medical situations such as HIV, Hepatitis C, and chronic pain. Another challenge is the hiring of proper staff; financial revenues are not enough to guarantee quality and care. Kohler reports having witnessed some truly horrific care, not just in the realm of passivity and neglect. She highlighted the importance of generating a culture shift within the institution by modeling compassion and care.

Clark Kelso, the Federal Receiver for the medical system, spoke of the health system as a symptom of the broader problems in prison: a prime example of insufficient resources to care for an exceedingly large number of prisoners, as well as bad allocation of the resources we already have. The receivership - a court-designated instrument to remedy the situation - is only one solution out of the four class actions dealing with medical, mental, and dental care, as well as with violations of the Americans with Disabilities Act. Part of the receiver's job is to coordinate with the institutions designed to solve the other pieces of the puzzle.

Since the Receiver cannot change sentencing policies in California, his role in that respect is limited to providing technical information and advice to policymakers, such as the possible impact of sentencing policies on prison population. His primary responsibility, though, is to provide care for whatever population the state decides to incarcerate. In that respect, he focuses on providing mroe access to care, a higher quality of service, more staff, and construction suited to house these needs. Despite the fierce battles with the State, the State and the Receivership actually agree on most of these.

One important point made by Kelso had to do with the need to invest more money as an initial cost, which will go down in time. For example, in order to use telemedicine in prison, network lines need to established, which is very costly (150,000,000) because of the distant locations of the prisons.

Kelso is able to marshal data to assess how much progress has been made, and is pleased to see some important improvements. 85% of medical appointments are successfully made. Staffing is increasing. The challenges in making faster progress have to do with the need to play "catch-up" with thirty-five years of a failure to invest in the medical services, as well as from the need to make the medical services applicable in a system that has custodial and security needs.

Finally, Joyce Hayhoe, Legislation Assistant Secretary at CDCR discussed some of the recent improvements the Department made. Reminding us of the situation prior to the Department's reorganization in 2003, she highlighted the punitive aspect of sentencing (ratcheting up sentences as a response to punitive public sentiments) as well as the lack of attention to rehabilitation. The recent Plata/Coleman litigation has impacted the CDCR quite deeply. First, the Receiver has managed to greatly improve health care for inmates (we were all invited to San Quentin to see for ourselves; we think we'll take the CDCR's invitation seriously!); and second, the three-judge panel decision requires a three-pronged approach to the overcrowding situation, which will include building more capacity, sentencing reform, and rehabilitation programs. She argued that the population is currently at a three-year low, and that the number of "bad beds" in gyms and cafeterias has been decreased by 7,000.

Defining the Problem

The conference launched yesterday to a great start. Our first panel, Defining the Problem, featured five thoughtful perspectives on the broad picture of the California problem.

Craig Haney, who opened the panel, had some disturbing realities to share with us. He had brought with him - and shared with us on the big screen - pictures from his visits to prison, each of which was really worth a thousand words. Inmates sleeping in cafeterias and gyms; medical examinations conducted in little cages; group therapy in cages inside a bathroom; triple bunks; and unbelievable density. The numbers were quite alarming. While the prisons become more and more overcrowded, crime rates have gone down; as Haney explained, most experts agreed that the rising imprisonment rates did not account for the crime decline. Also, the gap between prison population and prison capacity keeps growing. Haney did a terrific job of tying the California situation to the broader U.S. correctional disease, while highlighting the particulars that made CA a unique situation; particularly, the truly disappointing percentages of people exposed to rehabilitation programs and receiving medical care. And, as per one of the slides in his presentation, we got yet another sobering look at the expanding gaps between non-minorities and minorities in terms of their exposure to the correctional system.

Jeanne Woodford marshaled her extensive experience in prison management to identify three main sources for California's misery: sentencing policies, uniform policies, and overcrowding. She traced the history of determinate sentencing since the late seventies, pointing to the many deficiencies of our penal code. She also pointed out the lack of coordination between jurisdictions regarding implementation of correctional policies, highlighting the following amazing fact (which I didn't know): a person could be - and many people are - on probation in several different counties simultaneously, in which case one spends one's post-incarceration time shuttling between counties several weeks for drug testing and following often contradictory courses of action. Without fact-based policies, and without clear objectives for incarceration beyond "punishment", wardens and staff cannot be assessed by desirable measures such as decline in recidivism rates or program completion, but rather by how many prisoners escape; not a promising recipe for healthy corrections. Finally, Woodford discussed the fact that overcrowding is not only a problem in itself; it is a complicated factor which exacerbates everything else that happens in the system.

Harold Atkins
from Centerforce was cheered by the audience after providing us with a valuable personal account of the problem from the perspective of one who had gone through it and who now reaches out and educates others. Having gone into prison for the first time as a young adult, he told us of being shocked not only by the lack of personal space, but also by the lack of safety. He also highlighted not only on prison conditions but also on the success of programs; the good fortune to be picked up for a program does not fall into the lap of many, and the programs' reach is very minimal. The programs themselves, Atkins reminded, should not be implemented without thought; we must test them repeatedly to see what works and make them as widely available as possible. Another thing to consider are his wise words regarding the norms and codes that lead young people into prison; growing up in a difficult neighborhood, at the time of his incarceration he had already been well-schooled in the rules by which prison environment functions. Much of the educational work we have ahead of us needs to happen on the outside.

Frank Zimring followed by delivering a passionate "grumpy sermon" from the podium, in which he shared four important insights. First, the California problem is not an acute one; it is a chronic one. Prison population has been steadily growing for a long time, since the 1980s. Second, and importantly, the problem can be traced to the catastrophic error Zimring labeled the "correctional free lunch". As Zimring pointed out - and as most amazed audience members had not known before - the "division of labor" between county and state is not conducive to anything helpful. The county decides on the sentence, while the state (who, in the era of determinate sentencing has no control over the length of stay) picks up the cost. Therefore, sentencing does not take into account the broader correctional costs. If this was not shocking enough, the third and fourth insights have to do with the deeper causes for these horrors: they were not part of a broad conspiracy, but rather a combination of complete oversight on the part of the politicians who established determinate sentencing and the logical conclusion of direct democracy in california: citizens do not mind paying to let people rot, but they very much mind paying to make their life nicer. One important answer advocated by Zimring was to establish, as soon as possible, a coherent Penal code, which is not full of "pick and choose" voter-approved policies and special laws, and which is updated to reflect the real severity of crimes.

After these, CDCR Secretary Matthew Cate had his work cut out for him, and his reply reflected the kind of concern and thoughtfulness that one expects from someone in charge of a system in serious crisis. The overcrowding challenge, he argued, made everything in prison more difficult, and required serious prioritizing of services. He shared the big dilemmas faced by CDCR in light of the gubernatorial 400,000,000 budget cut. Cutting all programs was not an option, and curring staff was also problematic; one possible answer to the cuts was engage in parole reform. In tems of parole reform, said Cate, we need to pay attention to who we place on parole, and rather than using a general parole policy, reserve parole for serious offenders through identification of crime types (unsurprisingly, sex offenders came up) or more efficient crime indexing. We also need to consider the introduction of credits for achievement in programs on the inside as categories for release. Cate also advocated building more prison cells, particularly for the Level 4 population, as part of the plan to alleviate overcrowding and treat inmates humanely. One thing he had come to learn, said Cate, was that with the given resources - that is, reliance on state employees - capacity would never catch up with population, and community assistance was hugely important.

The audience asked some difficult questions, many of which were addressed to Secretary Cate. One such question involved the elderly and frail prisoners, and whether release policies were not better for this group than creating special wards for them. The other problem raised was that, while prisoners are generally assessed for their medical, mental, dental, and vocational needs, it is very difficult (and, as Atkins' experience shows, rare) to actually match a prisoner with a befitting program. Another important issue, directed at Zimring, involved an attempt to gauge an "acceptable" number of prisons, which turns out to be a very difficult number to produce.

Thursday, March 19, 2009

Conference Blogging Invite and Publication Options

Dear Readers,

Today and tomorrow we plan to blog about the conference panels, and we'd like to invite you to participate. If any of you has thoughts or ideas you would like to expand on in this forum, please be sure to comment on our posts; and, if you'd like to guest-post yourselves about any of the topics we will be discussing, please email me your post to aviramh at uchastings dot edu, and I'll be delighted to post it for you. The same goes for bloggers who might be interested in cross-posting.

We expect to be covering topics covered by the different panels:
  • "big picture" thoughts on the problem
  • the medical services litigation
  • the CA sentencing structure
  • alternative adjudication
  • special populations in prison
  • dangerousness, risk, and release
  • strategies for re-entry

I should also mention that the terrific journal that is co-hosting the conference, the Hastings Race and Poverty Law Journal, will be dedicating its fall issue to articles, comments, and writings on the conference topic and by conference participants, and that includes you! The Hastings Race and Poverty Law Journal is committed to promoting and inspiring discourse in the legal community regarding issues of race, poverty, social justice, and the law. If you are interested in submitting a piece for consideration in response to this conference to the Hastings Race and Poverty Law Journal’s forthcoming issue, please contact the Submissions Editor, Raegan Joern, at hrplj.submissions@gmail.com
. To learn more about the Journal, or to subscribe, please visit the Journal's website.

See you there!

Wednesday, March 18, 2009

TOMORROW! California Corrections Crisis Conference

In light of the medical services litigation, and many other recent developments, our conference tomorrow can't be more timely. With more than forty participants - academics, policymakers, activists - we are eagerly looking forward to an opportunity to discuss our crisis in an intelligent, comprehensive way, and to think together about solutions. We have hundreds of people confirmed to participate, coming from all over the country and even some from abroad. Advanced registration is closed, but we will reopen registration on the event day and let people in on an available space basis. We look forward to having you with us. 

The updated schedule for the conference, and other pertinent information, is here.

Monday, March 16, 2009

Opinion piece by the Federal Receiver

You have to give the Federal Receiver Clark Kelso credit. He's been attacked repeatedly in the press by Governor Schwarzenegger and Attorney General Brown for spending on "gold-plated" health care, for intruding on state sovereignty, and for other failings. Kelso, to his credit, hasn't backed down. And he has taken the fight to the press, as well.

Just today, in the Sacramento Bee (my new favorite paper), Kelso published an opinion piece, entitled "Prison health care reform can save money." According to Kelso,the prison health care system has been racked by waste and abuse. According to Kelso, eliminating these inefficiencies (and worse) has been a central task of the receivership, and the work has started to bear fruit. As Kelso writes, "We have found ways to cut $500 million from the annual cost of prison health care by cutting waste."

Kelso focuses on three key reforms: (1) reducing the very expensive out-of-prison referrrals; (2) developming new cost-saving programs, like a new pharmacy program, and new measures to manage health records; (3) "Implementing performance measures in the prison medical care program."

Sunday, March 15, 2009

Is 10,000 beds excessive?

Readers interested in the prison health care crisis should take a look at a fascinating article in today's Sacramento Bee. The article offers a detailed look at work of the Federal Receiver, and it's not entirely laudatory. For example, the article raises questions about Clark Kelso's plans to build 10,000 long-term medical and mental health beds. That number, the article suggests, is widely out of line with what other prison systems offer on a per inmate basis. Whether you agree with the article's conclusions or not, the piece warrants a close read.

On a related point: The Sacramento Bee deserves to be commended for its coverage of the prison health care crisis. It seems to be one of the only papers today paying any significant attention to the issue (SF Chronicle, where are you?).

What's the Big Deal? Federal Receiver or Special Master?

As discussed in the previous post, the Governor has filed a motion asking Judge Henderson to replace the Federal Receiver, Clark Kelso, with a "Special Master." What's the difference? Is it really that big a deal? Well, yes it is.

Here's a helpful and concise explanation of the difference between the two from the Legislative Analyst's Office:

"A Receiver, such as the one appointed by the court in the Plata case, differs from special masters that have been approved in other legal cases affecting the California Department of Corrections and Rehabilitation (CDCR). A Receiver has direct executive authority, and acts in place of the Secretary of CDCR in regard to the management of the medical care system. We are aware of only a few federal court rulings involving prison systems that have involved the appointment of a receiver. They include a 1979 federal court order that made the Governor of Alabama the receiver of that state’s prison system and the 1995 federal court appointment of a receiver for the Washington DC jails. Special masters, such as the one appointed in a separate legal case known as Coleman v. Schwarzenegger involving improvements in inmate mental health care, are a more common remedy in such cases. Special masters monitor the compliance activities of other parties (in this case, CDCR). They lack, however, direct executive authority and must rely on the federal courts to order changes when they discover problems in compliance with court orders."

The excerpt makes clear what an unusual and extraordinary remedy the appointment of a Federal Receiver represents. But of course, sometimes extraordinary problems demand extraordinary remedies.....

And in this corner....

The next round in the battle between the State and the Receiver continues tomorrow. According to Saturday’s Sacramento Bee, Judge Henderson has scheduled a hearing for Monday to consider a motion filed by Attorney General Brown and Governor Schwarzenegger against the Federal Receiver, Clark Kelso.

The motion seeks to replace the Receiver with a special master. According to the State, “the Prison Litigation Reform Act of 1996 prohibits a federal judge from appointing a receiver and mandating construction” of facilities, even to remedy a constitutional violation. The motion also asks Henderson to terminate Kelso's plan to reform the prison medical system by building up to 10,000 new medical and psychiatric beds.

The Bee observes (rightly in my opinion) that the motion is unlikely to persuade Judge Henderson, who has “made it clear he does not feel the receiver's work is done.” More likely, “the state's lawyers are setting the stage for an appeal of the expected denial of their motion.”

Kelso’s office, of course, hasn’t been passive in this ongoing battle with the State. Kelso himself has asked the judge to hold the Governor (and State Controller John Chiang) in contempt of Court for refusing to provide $250 million the receiver says he needs to upgrade existing prison medical facilities. In fact, the Governor has declared, "The receiver will never get that money...Because I will not give it to him. I think the controller will not give it to him. And I don't think the legislators will give it to him."

Federal Receiver Clark Kelso and Secretary of CDCR Matthew Cate will both be attending the Hasting Conference on the California Correctional Crisis this Thursday and Friday.

Special Edition: Punishment Beyond Borders: California Corrections and Criminal Deportation

(image courtesy of Brian Concannon's excellent Haiti Justice Blog)

I have just returned from a week in Jeremie, Haiti, with the Hastings to Haiti Partnership (HHP). The program is based on a collaboration between UC Hastings and the Ecole Superieure Catholique de Droit de Jeremie (ESCDROJ), a law school operating under difficult conditions and devoted to public interest. The two law schools hold a joint conference in Jeremie, in which students and faculty present topics of interest. This year, we had a chance to conduct a criminal case simulation, as well as meet with individual law students to discuss their research interests and help them out with comparative materials.

The experience was rather interesting given our California Corrections Conference coming up next week. As disturbing and problematic as our prison overcrowding issues are, the prison conditions in Haiti in general, and in Jeremie in particular, are so much worse. Our students, who visited the prison to interview inmates, as well as local activists, church figures, and professionals, tell of conditions so dire they can hardly be imagined, which seem to have worsened over the last few years. With the number of inmates per cell sometimes exceeding forty, the men have no room to sleep, and have to sleep standing up, like farm animals. This sometimes takes months, as the legal system is highly corrupted and it takes months before a given prisoner gets to see a judge for the first time. Sometimes, people are held in these dire circumstances with only very flimsy evidence against them. As we were told by the local assistant prosecutors, the Haitian civil law system is not conducive to plea bargaining, so even pleading guilty to alleviate or shorten this misery is not an option. There are good people, both in Haiti and abroad, who are working hard to change this situation, such as the Institute for Justice and Democracy in Haiti, but things at this point look very grim. While at Haiti, I gave a talk about the Stanford Prison Experiment, and some of the local students reflected on the lessons from the study as they apply to local prison conditions; if social situations create a prisoner's master status and self image, there is no hope for rehabilitation for any of the Jérémie inmates.

One of the Haitian students I met is writing his memoir (a research project required for graduation, akin to a Master's thesis) on the causes of crime in Haiti, and is focusing on the issue of criminal deportees from the United States. He points out that the deportees are treated horribly upon arrival, which is not conducive to rehabilitation. Michelle Karshan from Alternative Chance/Chans Alternatif, who advocates for Haitian criminal deportees, reports that they are often held in horrifying health conditions and do not receive food.

What does this have to do with our correctional system here in California? I have been thinking about two main issues. The first is the change in CDCR policies regarding criminal deportees who return to the US. As reported on the CDCR website:

In 2007, CDCR turned over approximately 12,000 paroled criminal aliens, who committed a crime in our state while here illegally, to the federal government for deportation upon completion of their state prison sentence. Of those 12,000, nearly 1,600 deported parolees illegally returned to California. California’s only recourse was to further clog our prisons by imposing short revocation terms – usually four to eight months – for a parole violation on these repeat offenders.

In the spirit of creative solutions for overcrowding, from now on, such returning deportees will not be under parole supervision in California. Instead, they will be turned over to the Federal government. This is not to say that law enforcement will not continue to track them down;

The motivation for the change in policy is, to a great extent, fiscal:

The policy is expected to reduce California’s average daily prison population by up to 1,000 inmates annually, resulting in up to $10 million savings per year from the state’s prison and parole budgets. CDCR expects to spend approximately $970.1 million in total in 2008-09 for the incarceration of undocumented persons. The state expects to receive $110.9 million in federal State Criminal Alien Assistance Program (SCAAP) funding for 2008-09.

My second reflection on the situation sprang from the proximity of our Haiti visit to the CCC conference. If inmates in developing countries are held under much worse conditions than our own, does this mean we should direct our efforts to help those people before working to improve conditions closer to home? Or is the case that, paraphrasing Rashi, "the poor people of your own town come first"?

I've already pondered these questions elsewhere, and Patrick O'Donnell's excellent comment there directed me to some readings on global distributive justice. As Patric argues in his comment, quite convincingly, "[i]n fact, given the enormous global disparaties of welfare and well-being or respective points on 'quality of life' indices, there's much that can be done to help out those in emerging polities and so-called developing countries even if the bulk of our efforts are focused on what's close at hand." In addition, I think that our hightened sensitivity to the fate of the weaker links in society will, in time, also increase our empathy to people in dire conditions across the globe.