Saturday, May 30, 2009
Thursday, May 28, 2009
Tuesday, May 26, 2009
A while ago, the CDCR website announced that CDCR had declared war against inmate cellphones. We didn't feature that at the time, since we felt other news were more important; but there are important angles to this issue that should be explored. Communications with the outside from prison are difficult and expensive; the costs are so expensive that some businesses are trying to offer alternatives to the collect call system.
The latest news on this come from Just A Guy, an unusual blogger from an unusual location on the SF Bay Guardian, whose other knowledgeable and intelligent recent posts have been highlighted here before. I really recommend reading what he has to say about this; a reminder that sometimes thinking out of the box is cheaper, and not more harmful to public safety.
Monday, May 25, 2009
Sunday, May 24, 2009
One thing that is being considered, as the L. A. Times reports, is the Governor's plan to move inmates from prisons to local jails. The idea is to target a category of offenses known as "wobblers" - offenses that could be classified as felonies or misdemeanors - and classify them as misdemeanors, thus changing the jurisdiction to allow confinement in local jails rather than in state prisons. Local officials, who deal with overcrowded jails, have balked at this option, and the proposal's fate remains to be seen.
The petitioner, William Byrd, a pretrial detainee in jail at the time, was searched for contraband. He and other inmates stood in front of a row of Academy cadets, some of whom were female. Someone in the room held a handheld camera (filming, as it turns out, for the cadets' Video Yearbook, though no footage of this particular search survived). The majority opinion, by Judge Ikuta, describes the search, which followed county regulatons, as follows:
When it was Byrd’s turn, the officers ordered Byrd to walk over to the cadets, stand facing away from them, raise his arms above his head, and spread his legs. O’Connell approached Byrd from behind and conducted the search as follows: She ran her hands across the waistband of Byrd’sboxer shorts and pulled the waistband out a few inches to check for anything hidden or taped inside; she did not look into his boxer shorts. She lightly frisked over his boxer shorts and down the outside of his thigh, stopping at the bottom of the shorts. Through the boxer shorts, O’Connell moved Byrd’s scrotum and penis with the back of her hand in order to frisk his groin, applying light pressure to feel for contraband. She then placed her hand at the bottom of his buttocks, ran it upward over his boxers, and separated the cheeks to search for any contraband taped, placed, or hidden inside.
Byrd's legal argument was based on his Fourth Amendment rights to be free from unreasonable searches and seasures, as well as his Fourteenth Amendment rights to due process and equal protection. The search, he argued, caused him unnecessary pain and humiliation.
Byrd's 1983 equal protection suit was dismissed, since "he fatally 'failed to allege that defendants’ acts or omissions were motivated by discriminatory animus toward' male prisoners". His Fourteenth Amendment argument was rejected, since the search was not proven to have been motivated by punitive intent. The search was thus distinguished from the intrusive searches that the 9th Circuit had struck down in Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993), where male guards performed searches on female inmates.
As to the Fourth Amendment argument, the Court builds on Bell v. Wolfish, according to which "when reviewing conditions and restrictions placed on prisoners and pretrial detainees, we must bear in mind the inherent difficulties in managing a detention facility, and that "the problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions'". Therefore, "the 'reasonableness of a particular search is determined
by reference to the prison context.'" The factors in Bell and Turner require the court to take into account the circumstances of the search (measuring the level of intrusiveness), the justification for the search, and the existence of alternatives.
Applying these factors to the current situation, the court explains that cross-gender searches, per se, are not unreasonable: "while we have not foreclosed the possibility that a cross-gender
search could violate an incarcerated person’s constitutional rights, we have noted that 'our prior case law suggests that prisoners’ legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited.' . . . We have never held that a cross-gender search in a prison setting [in itself--H.A.] violated an inmate’s Fourth Amendment rights". Beyond the cross-gender search aspect, the court did not find factors that would make the search unreasonable: "As noted, the jury found that the search was not done in an inappropriate manner. The record indicates that O’Connell wore gloves at all times, and conducted the search professionally and swiftly, finishing in, at most, 60 seconds. The invasion of Byrd’s bodily privacy in this case does not substantially exceed the cross-gender observations and searches we upheld in Michenfelderand Grummet. Moreover, the County has provided a legitimate justification for the cross-gender aspect of the search: the County adduced undisputed evidence that the cross-gender search was justified by its legitimate security and staffing needs, focusing primarily on the shortage of adequate personnel."
Judge Fernandez dissented from the Fourth Amendment aspect of the opinion, writing: "In my view, cross-gender strip searches are generally uncalled for and unreasonable. . . There may be emergency or other situations where a cross-gender strip search is proper, but this case presents no facts to suggest that there was an emergency or some other unique reason for authorizing the search. In fact, the record shows that this sort of search is a regular part of the
jail’s routine, and that there were plenty of men available, who could have conducted the search. . . When all is said and done, I would not think it was reasonable for males to strip search females in this kind of situation, and I do not think it was reasonable to have females strip search males. If our law does approve of it, and the majority opinion cogently reasons that it does, I reluct; the law should change".
This case brings up a whole host of interesting issues. The first one has to do with the role of women in law enforcement. The gender segregation of prisons, and its implications to gender-segregated prison staff, is well documented in Dana Britton's At Work in the Iron Cage. While the work performed by men and women in these settings is similar, there are social forces and stereotypes at work that generate gender inequalities in this particular work environment. The majority opinion seems to be marginally sensitive to this issue, when it says "The determination sought by Byrd, that it is per se unreasonable for a female officer to conduct searches of male inmates when male officers are also present, would significantly limit the usefulness of female officers for meeting a detention facility’s security needs."
The interesting bit, of course, is that these needs to make the workplace an equal playing field, and to allow female guards to perform their work except when there are particular circumstances that disallow identical performance for justified reasons, severely clash with the patriarchal norms that govern much of the inmates' and guards' cultural lives. It is interesting to note, in this context, the double standard regarding the unfortunate fact that many inmates have a history of sexual victimization. In this case, "Byrd states that he suffers from a history of sexual abuse, and therefore the cross-gender aspect of the search was particularly traumatic." However, in Jordan, the same Court struck down searches of female inmates by male guards, "in light of substantial evidence that many of the female inmates had been violently sexually abused prior to their incarceration and were psychologically fragile, and that the cross-gender searches would cause some inmates substantial suffering." This brings up a whole host of questions regarding the role of patriarchy and gender in our sensitivity to issues of sexual abuse.
Finally, as in many other Fourth Amendment cases, this case brings out the question of measuring the "reasonability" of searches and seizures. Part of the court's decision, it seems to me, stems from the fact that they place much more weight on the issue of justification for the search than on issues of proportion and intrusiveness. More generally, one serious problem with Fourth Amendment Analysis is its lesser attention to issues beyond the level of suspicion. If anyone is interested in any of this, Dan Portman and I have written a piece on this, which we call Inequitable Enforcement, which will be presented at the Law and Society Association Annual Meeting next weekend; we'll post it on SSRN at some point next month, and if there's interest, I'm happy to post the link then.
Thursday, May 21, 2009
The prison guard union, having swelled its well-paid ranks after voter mandates helped to produce a system where 750,000 Californians are either locked up, on parole or on probation, was upset at Governor Arnold Schwarzenegger for balking at their demands.
And on the disastrous impact of the proposition system on our priorities list, particularly with regard to incarceration and education:
But I do blame the voters. They’re part-time citizens, and not very good at it. They shackled the tax system back in 1978 with Proposition 13, limiting how much government could take from a homeowner. It was a reasonable middle class revolt. But then, in succeeding years, voters passed laws that packed California’s prisons with criminals (many of them petty) but also mandated that the education system get a lion’s share of the budget. On top of that, the voters made it nearly impossible to pass a budget. Then they walked away from their car wreck.
It's a good reminder that we have ourselves to thank, and to blame, for the situation.
Props to my fabulous colleague Dorit Rubinstein-Reiss for alerting me to this.
Wednesday, May 20, 2009
Just a quick post to alert you to the terrific and eye-opening Prison Photography Blog, featuring images from prison around the world. The image in this post is Jacob Holdt's Prison Meal on Toilet, taken in a California prison.
"This short-term savings is going to have long-term costs, and the costs will be measured, unfortunately, in lives. . . I anticipate some incredibly sensational crime committed by an individual that should have been incarcerated."
Now, granted, I entirely agree that mass releases are a very bad short-term solution for a big problem. Releasing people without skills or support programs into an abysmal job market is an extremely faulty strategy. Nevertheless, one would hope that the mass-released folks would not be the ones committing "sensational crimes", nor is it ever a good idea to focus on those as the catalysts of public policy. Our pals at Prison Movement dissect this better than I could, pointing out inaccuracies, lack of logic, and moral hysteria, but I'll just add this: at a time when public opinion is probably swaying away from moral panics toward cost-benefit analysis, I doubt this will win many hearts. Corcoran may be speaking the language of yesterday to an audience facing today's budget shortages.
CA: Well, the layoffs assume you can move 19,000 illegals out of the system. But we've always had the ability to do that. We've advocated for the last three years a look at the undocumented aspect of the prison population and turn them over to the feds, or send back across the border.
TSW: The administration says it will release or transfer low-level offenders.
CA: The problem is that most of those 19,000 have already been rejected (for transfer out of the system) because they're violent offenders. (The plan) is a sham. I would venture to guess that most of those 19,000 -- if there are that many in the prison system -- have an enhancement or serious violent felony.
The connection between these two problems is quite interesting; the problem of undocumented immigrant inmates, as it turns out, runs heavy and deep. At our conference in March, Angie Junck from the Immigrant Legal Resource Center discussed the challenges dealing with the situation, which involve inaccurate litmus tests based on the inmates' last names; placing suspected undocumented immigrants on a "hold" that lengthens their imprisonment time; and facing not only less privileges while in prison, but also harsh conditions at the center for deportation following the prison experiences. Is this population really what would make a big difference for CCPOA? And are we sure that shipping them off to the feds would result in budget savings (gien the lengthier prison times)?
Sunday, May 17, 2009
The CDCR website features two news items about recent graduations. The first of these is the March 11 graduation of inmates with certificates in marine technology and carpentry. The marine technology graduates laugh as the speaker tells them that they are uniquely skilled for the profession, being more acclimated than others to live in small quarters. As the speakers congratulate the graduates for their newly acquired skills, they inform them, and the audience, that recidivism rates are significantly lower than for the general population (20% for carpentry graduates, and almost no recidivism at all for marine technology). Leonard Greenstone says, beaming with pride "I just hope you guys succeed in this program... every time a group of your leave, stay out of prison, aren't coming back... really, it's the most heartwarming, satisfactory feeling a human being can have... we all can take all kinds of credit, but this wouldn't be here, or successful, without you. God bless you". Secretary Cate said, "I have become a born again believer in these programs that provide our graduates... with the skills necessary to be successful on parole", and mentioned that in budgetary constraint times, "this program pays for itself". He adds, though, "[i]t's not about politics or about the economy... this is about human beings... one life change impacts many others... one man who has the pride of a skill set and can support a family, can impact a generation".
While CDCR is not currently accepting applications for guard positions, they feature the first 2009 Peace Officer Graduation streamlined video on their website. Prison guards are assigned to handle a variety of prison and parole operations, including transportations, escort, gang investigations, etc. The 16-week training takes place at theBasic Peace Officer Academy, located in
Finally, my own students are graduating today. While I'm very sad to say goodbye to so many people I have such professional respect and personal affection for, I am proud and happy for them. They are not only exceptionally smart and hardworking people, but also imbued with a strong sense of social conscience and a commitment to making our society better. Many of today's graduates played an important role in envisioning, organizing, and running our conference this March. While their opinions on law enforcement and corrections vary, they all have a healthy interest in doing their part in improving our criminal justice system. I hope that, despite the current job market situation, they will all be soon gainfully employed in places that allow those of them who wish to do so, to be part of the solution for the California Corrections Crisis. Congratulations, folks; I love you and believe in you.
Friday, May 15, 2009
Marin officials Thursday cheered a proposal by Gov. Arnold Schwarzenegger to sell San Quentin State Prison, part of a plan to raise between $600 million and $1 billion to help close the state's budget deficit.
But although local officials who have long fought planned construction of a new $356 million death row complex at San Quentin welcomed the governor's change of heart, they stopped short of declaring victory....
The state recently spent more than $164 million on new medical facilities and $850,000 for a new lethal injection room to replace the cramped gas chamber that was deemed unacceptable by a federal judge.
California has also already spent $17 million toward the new complex for condemned inmates. San Quentin, which opened in 1852, has 639 inmates on death row.
State and Consumer Services Secretary Fred Aguiar said the governor has not decided where San Quentin's 5,150 inmates should go if the prison were sold, or which other prison would perform executions.
Aguiar estimated it would cost more than $350 million to move death row alone, because that's what the state plans to spend rebuilding the condemned unit at San Quentin.
Is this sale a good idea? What do you think?
Props to Simon Grivet for alerting me to this.
What impact might this information have on the proposal's chances? As you may recall, the proposal was amended and its text is now very vague on what the role of the commission might be. Sometimes, vague legislation is passed in hopes that later it will be amended by the Senate. There are some encouraging aspects to all this, which suggest that the proposal might not die a slow death in the suspense file:
1) The proposal comes from Karen Bass, the Assembly Speaker. The previous incarnations of sentencing bills came from a variety of lawmakers.
2) The analysis that accompanied the bill created a strong link between sentencing reform and avoidance of overcrowding. While the expenditures and savings that might result from what is currently a very vague bill are unclear, a strong argument in its favor might be that this is a much better, more organized, and more controlled, alternative to the arbitrary release of tens of thousands of prisoners, and is therefore a more palatable response to overcrowding. In that sense, ironically, the bill has perhaps a better chance to pass in times of scarcity than in times of plenty.
Wednesday, May 13, 2009
1)Because this measure is in skeletal form, precise costs cannot be determined. Based, however, on earlier sentencing commission models, annual costs would be in the range of $2.5 million, depending on the authority of the body.
For example, this committee estimated costs for SB 110 (Romero, 2008) - which was charged with developing mandatory sentencing guidelines and significant tasks, such as preparing inmate population projections, developing recommendations on the state's inmate population, providing training to criminal justice practitioners, conducting research, and developing materials, information systems and annual reports to the legislature - would be in the range of $2.5 million, with a staff of about 20.
2) Prospective costs/savings due to actions of the body cannot be determined, though it is likely a non-politicized sentencing commission, using evidence-based practices and models, could recommend a sentencing/parole scheme that results in significant net state savings.
In non-legislative language: Since we don't know what is proposed, we don't know how much it costs. But if this is a cover for the same thing that has been proposed time and time again, we've already estimated the cost of that. The initiative's potential for savings depends on how well it does its job.
We'll post an update as soon as we know what happened at the hearing.
Tuesday, May 12, 2009
[T]he executive level structure of the California Prison Health Care Services has been reorganized. This structure, staffed with state-employed civil servants, is designed so that CPHCS will be prepared to function as an entity within the State of California once the goal of improving prison health care services to a constitutionally acceptable and sustainable level has been met.
The newsletter contains some basic facts about the Receivership, as well as the fact that that it has recently received MCE (Medical Continuing Education) accreditation. There's also an interesting piece about the Supportive Care Services - a hospice program at the California Men's Colony, which, among other things, trains prisoners to offer spiritual comfort to their dying friends. It makes a fascinating read, particularly given the rising rates of aging and chronically ill inmates. It is also a good reminder that people not only live - but also die - within walls.
Sunday, May 10, 2009
...Gov. Arnold Schwarzenegger opened a new front for discussion this week, saying that while it's not time to legalize pot, he's willing to talk about it as a revenue-raising measure.
Schwarzenegger, who was filmed smoking a joint in the 1977 film, "Pumping Iron," sparked headlines by responding to a reporter's question about a Field Poll. The survey found that 56 percent of voters support taxing pot used for pleasure or partying.
"I think all of those ideas of creating extra revenues – I'm always for an open debate on it. … But just because of raising revenues, we have to be very careful not to make mistakes at the same time," Schwarzenegger said.
California would be the first to legalize recreational pot use under legislation introduced months ago by Assemblyman Tom Ammiano, D-San Francisco, who has shelved it until next year.
The state Board of Equalization has estimated that legalizing marijuana would reduce its street price by 50 percent, increase consumption, and generate about $1.3 billon annually in taxes.
Saturday, May 9, 2009
The Commission recommended that the State begin a comprehensive evaluation of its sentencing system by establishing an independent sentencing commission with the authority to develop sentencing guidelines that become law unless rejected by a majority vote of the Legislature. The Commission said California should learn from states with effective sentencing commissions, such as Virginia and North Carolina.
"Critics who suggest that a sentencing commission is a code word for shorter sentences are misinformed,” Alpert said. “Other states have used sentencing commissions to lengthen sentences for the most dangerous criminals, to expand community-based punishment for certain offenders and to bring fiscal responsibility to criminal justice policies.”
The Commission asserted that the Supreme Court ruling on January 22, 2007 that found California’s determinate sentencing law unconstitutional provides one more impetus for an independent commission to conduct a systematic review of California’s sentencing laws and propose long-term solutions.
The analysis also details the many times in which sentencing commission bills came before the Assembly and failed. Will our economic concerns lead politicians to leave behind their fears of being soft on crime and fix the sentencing system? Stay tuned!
Wednesday, May 6, 2009
SACRAMENTO - The State Viral Lab is reporting that the inmate case at Centinela State Prison that had been categorized as 95% probable has now been confirmed. The inmate remains in Centinela Prison. His case remains mild. The infected inmate’s cellmate remains under quarantine but has not exhibited any symptoms of H1N1 Influenza. The actions taken by California Prison Health Care Services (CPHCS) and the California Department of Corrections and Rehabilitation (CDCR) appear to have stemmed the spread of the virus at Centinela Prison. No other potential cases have been reported there.
However, the receiver’s office is currently monitoring numerous other potential cases throughout the system that have been sent for testing. More detail on those cases will be available once they are deemed probable or are confirmed. Due to the new potential cases, the visiting restrictions will continue in effect until further notice.
Much has been said in the last few days about the justification for the swine flu panic that has been sweeping the world. Whether or not the panic and precautions are necessary is a topic for a different blog. It is certainly the case, however, that whatever the dimensions of the problem is, it is orders of magnitude more problematic in prisons and other total institutions than in other places, for obvious reasons.
Should this become more problematic, in terms of numbers of cases, it will be a real test of the Receivership's ability to handle such issues in a difficult environment.
Tuesday, May 5, 2009
The survey is anonymous and confidential and can be completed in a few minutes. I will very much appreciate your participation, and will be particularly grateful if you forward the link to your friends, colleagues, and students. We are looking for a large, diverse group of respondents.
The survey has been IRB-approved and I am happy to provide the exemption letter upon request.
Saturday, May 2, 2009
More news from CDCR: The state has submitted lethal injection procedures to the Office of Administrative Law, which are available for public review and comment. The public comment period will close on Tuesday, June 30, 2009 at 5PM. A public hearing has been scheduled for June 30, 2009 from 9AM-3PM at the Auditorium of the Department of Health Services, 1500 Capitol Ave.
Take a look at the regulations, or read more about them from our blogging friends over at PrisonMovement.
I find myself somewhat speechless at the entire computer-generated display, complete with euphemisms, so I'll just express puzzlement over the construction plans in the face of a $400,000,000 deficit. I prefer the New Mexico solution.
Twenty-five women can stay at the center from six months to a year. They are referred to the FRMSC from a parole agent or the Board of Parole Hearings upon release from prison, or in lieu of returning to prison for a violation.
The FRMSC offers a variety of gender responsive services including case management, trauma treatment, substance abuse and domestic violence education, life skills development, family focused services, parenting classes, educational services, GED preparation, vocational training and family reunification services.
When a woman arrives to the FRMSC she is assessed by the treatment team which includes an alcohol and drug counselor, family therapist, program director, vocational developer and parole agent. She is then evaluated in the following areas: substance abuse history, traumatic life events, family history, housing needs, legal issues, medical issues, employment and educational history. Based on these assessments, the team will identify strengths and needs and will try to maximize the potential of each individual woman.
In order to graduate from the FRMSC program, women either must be employed, enrolled in a vocational training program, or taking college courses. Also, graduates must have a stable place to live.
And true to the spirit of humonetarianism -
Housing a woman at an FRMSC is cheaper than the average cost of housing her in prison. It costs approximately $109 per day at the FRMSC compared to $126 per day at an institution.