Sunday, August 30, 2009

Community Justice Center Picks Up

We now take a break from the State's budget woes - though not entirely, as you'll see - to report on the news at the San Francisco Community Justice Center.

A quick bit of background: as some frequent readers may recall, the Community Justice Center was formed to address misdemeanors and non-violent felonies committed in the Tenderloin area. Its beginnings were difficult, with politically-charged budget struggles and a high percentage of non-appearances; it later received some publicity due to the personal appearance of the SF Public Defender, who was trying to make a point about budget difficulties.

Recently, the court has been getting some media attention. The Examiner reported on the Public Defender's Office's objections to the court, which included, as it turns out, the argument that many of the services it offers duplicate services available elsewhere.

“Other than being able to sign up for [social security insurance] and in some cases get shelter, the services at the CJC were essentially the same type of outcomes as at the Hall of Justice,” said Adachi, who has tried to pull his staff out of the center, which he views as a waste of scant public resources. “This court was set up to provide different outcomes than what would happen at the Hall of Justice.”

A study commissioned by Adachi’s office found that 90 percent of justice center clients — the percentage served by a public defender — were found to be eligible for drug court and several other drug diversion programs already in place.

Much of the study, which was prepared by UC Berkeley Ph.D. candidate Melissa Sills using public defender data from March to June of this year, is disputed by the justice center. Measuring duplication of services requires further analysis, said the center’s coordinator, Tomiquia Moss.

Nathan Ballard, a spokesman for Mayor Gavin Newsom, also disagreed with Adachi.

“He’s wrong,” Ballard said. “A similar program transformed Midtown Manhattan in the 1990s and we need to give it a chance to succeed here in San Francisco.”

Statistics from both the CJC and the Public Defender’s Office show that about 55 percent of cases handled by the justice center are dismissed. But supporters say that even in those cases, people are referred to critically needed services. About 55 percent of offenders showed up to court in the first four months, compared to 25 percent at the Hall of Justice, according to CJC data.

That attendance rate is steadily improving, and is currently at more than 60 percent, Albers said.

At the Chron, C.V. Nevius, whose previous pieces on the subject were quite supportive of the court, offers sharp criticism of Adachi's objection, arguing against his disappearance from the scene precisely when the court is starting to show promise.

It took five months, but the CJC is finally making progress.

Now where is Jeff Adachi? The public defender complained that defendants at the Tenderloin court never showed, and that the court was a waste of time and resources. But now that it is seeing results, Adachi's office is AWOL.

"If I had the staff, I would definitely staff it," Adachi said. "Certainly these are cases our office would handle if they were filed in the Hall of Justice, but we barely have enough staff to cover the Hall."

Look, either you're the public defender or you're not. Your mandate is to fulfill every citizen's right to legal representation - not every defendant whose case is heard in the building where your offices are located.

Frankly, exasperation is building.

"What are our over 400 clients supposed to do?" asked CJC coordinator Tomiquia Moss. "At what point do the numbers become important enough to be worth a lawyer's time?"

Friday, August 28, 2009

Nixonland Mentality Wins the Day: Assembly Decision a Bitter Disappointment

Yesterday's Assembly decision, emptying much of the initiative to reform our broken system from its content and neutralizing any healthy effect it would have on prison population, is not only a disappointment; it is also a bitter reminder that, while cost-related arguments have the potential to bring issues to the forefront of public discourse, they can't always carry the day against the older genre of arguments, consisting of unsubstantiated moral panics and political hysteria.

It was a sobering experience to read this morning's paper, which, in addition to these disappointing news, included a report on the unveiling of a hideous crime: kidnapping, rape, and a nightmarish "compound" where the alleged perpetrator kept his victims. Beyond the immediate horror at these events, my concern is that such abnormal, outlier experiences are perceived, and raised, as the norm, feeding our fear and insecurity.

"Crime" is a generic name for a large universe of phenomena that are very easily distinguishable from each other. The Garridos of this world are very different from the vast majority of imprisoned Californians; for every Phillip Garrido there are tens of thousands of arrestees, inmates and parolees whose property and drug crimes are closely linked with the environmental and spatial dimensions of their lives. Yes, there is some free choice and rational calculation in all of this, and the best path out of prison life must include a certain component of assuming responsibility (a little about this in a following post this weekend); but these choices exist in a universe in which not everyone is offered the same set of alternatives. When the limited opportunities contribute to crime, we should be thinking about providing opportunity, in tandem with requiring responsibility. The key is to understand that the answer to crime needs to be more tailored to suit a particular situation or social reality. There is no "one-size-fits-all" answer to crime. And certainly, shaping our response to crime based on the demons we hear about, perceive, and sometimes create, will not generate anything we will be pleased with in the long run.

Who, and what, poses a risk to public safety? What are we afraid of? Those are two different questions. The former requires hard evidence and the willingness to accept the answers we might not have assumed. The latter, unfortunately, is what has been informing criminal justice policy since the Nixon Era. Our budget woes had the potential to shake us out of indifference and generate a real change. The crisis brought together lawmakers of both parties, police officers, reformers, academics, prison personnel, and Federal judges, all of whom realized that these difficult and trying times were an opportunity to generate real change and turn around the collision course that we have been navigating since the 1970s. I fear this opportunity has been, to a large extent, missed by yesterday's decision.
For the Governor's disappointment with the Assembly's decision, read here; for other discontents, see here.

BREAKING NEWS: CA Assembly Guts Inmate Release and Sentencing Reform Plan

Yesterday, the CA Assembly made so many changes to the Senate-approved Governor's plan to release 27,300 inmates and reform sentencing, that it is hardly recognizable. The Chron reports:

The changes would reduce the state's prison population by about 16,000 inmates instead of 27,000, and would save the state about $325 million instead of $525 million.

Set aside were some of the most controversial parts of the legislation, such as allowing sick and elderly inmates to finish their sentences at home or in community hospitals, where they would be monitored by GPS tracking devices, according to Shannon Murphy, a spokeswoman for Assembly Speaker Karen Bass, D-Baldwin Vista (Los Angeles County).

The bill also put aside plans for creating a sentencing commission to revamp the state's rules on punishment and parole, an idea backed by many Senate Democrats including President Pro Tem Darrell Steinberg, D-Sacramento. The bill, in its original form, passed the Senate by a 21-19 vote last week.

The original package, negotiated in part by Bass, stalled in the Assembly late last week despite Democrats' strong majority in the lower house of the Legislature.

The revised bill eliminates changes to some crimes - such as writing bad checks and receiving stolen property - so that they are always charged as misdemeanors. The bill was revised to reset the grand theft threshold to $950, higher than the current $400, which was set in 1982, but significantly lower than the $2,500 that the Senate approved last week.

What's left in the bill are changes to the state's parole system so that some low- and moderate-risk offenders would not be subject to parole revocation; allowing certain felons who violate probation to serve time in county jails; and allowing the early release of inmates who complete certain rehabilitation programs such as earning GEDs.

This is, to say the least, very disappointing. We will follow up with a more thorough analysis later in the day. For now, we'll just point out two things:

1. This is proof that budget-based arguments, without a deep understanding of what is ailing the system, can only take us so far. OldThought is still around, and unsubstantiated public safety arguments can still win the day.

2. If the Prison Law Office needs any proof that the state is incapable of carrying out the appropriate and necessary decrowding plans, for the purposes of the Plata/Coleman appeal, this is it.

Wednesday, August 26, 2009

Relying on Technology: GPS Monitoring of Sex Offenders

(image courtesy CDCR)
Yesterday, the CDCR website featured a press release about the use of GPS monitoring to preclude sex offenders from attending the California State Fair. This is an addition to a series of reports about the increase in using GPS monitoring systems to track down parolees and offenders on bail. As one might expect, the focus of supervision has been, in the last years, on sex offenders (read this fascinating 2006 report by Jesse Janetta on GPS usage on San Diego sex offenders), but its uses exceed this category. A while ago, we reported the intent to use GPS systems to follow domestic abusers on restraining orders in California; according to the New York Times, this seems to be a growing trend in other states as well.

The appeal of electronic monitoring is quite understandable. The technology itself is readily available from commercial providers, and, once the system is set in place, the marginal cost of adding parolees to the pool of supervised subjects is not overwhelming. It is certainly less time consuming than adding one more file to the already overflowing docket of parole officers. However, it is important to keep in mind not only what GPS is, but also what it is not.

  • GPS does not necessarily prevent crime. Technology does not make the streets crime-proof, and once in a while, tragedies will occur.

  • GPS is not the perfect community-based sentencing alternative. In our enthusiasm to seek out alternatives for incarceration, we should keep in mind that technology is just technology - nothing more, nothing less. In the absence of help with housing, education and vocational skills, GPS monitoring in itself will probably not significantly contribute to a decrease in recidivism.

  • GPS harbors the threat of expansion. In his 1985 book Visions of Social Control, Stanley Cohen warned us against the tendency of correctional systems to "widen the net" and expand. As surveillance becomes cheap and available, there are likely to be less restraints on including more people in the pool of supervised subjects. This is part of a larger trend, which Malcolm Feeley and Jonathan Simon identify as The New Penology: perceiving people in large aggregates, according to their level of risk.

Monday, August 24, 2009

Police Chiefs Support Decrowding Plan

(image courtesy City of Pasadena Police Department website)

This remarkable statement, by Bernard Melekian, President of the Police Chiefs Association, has been circulated quite widely. I reproduce it verbatim for you.

A few comments: I think this is a fine example of the fact that, as Rahm Emanuel (in)famously said recently, we don't want to let a serious crisis go to waste. If something good has come out of all this, it is the willingness of different parties to thoughtfully and systematically examine what we have been doing so far and where to go from here.


Because of all of the information out in the press and at the capitol, I wanted to reiterate Cal Chiefs' position on the Corrections Budget legislation. It is important to note that in spite of the various rumors and allegations, our position has not changed in the last few weeks. The floor letter we sent on the 19th is attached again as a reference, and our comments to Jillena Eifer, the Police Advisor to Assembly Member Pedro Nava, appear below to clarify our points on the issue:

"As you can see, the underlying concepts of Alternative Custody and Banked Parole are fundamentally sound, and the Police Chiefs Association believes that those details can be ironed out. What IS critical is that the legislative language implementing the Corrections Reduction package be transparently and openly shared. I strongly believe that the various groups who have issues concerning the Corrections package can iron out all of those details in a constructive fashion that enables the legislative goals to be achieved in a fashion that also protects public safety.

The Sentencing Commission issue is the most troubling part of the package. First, we do not believe it ought to be linked with the Corrections Population Reduction package, at all. One piece does not relate to the other. We are willing to sit down and discuss the Sentencing Commission issue as a free-standing matter, unrelated to the Corrections Reduction package. With respect to the Commission, we believe it is possible to negotiate a construct that is consistent with the long-standing position of the California Police Chiefs Association (and virtually every other law enforcement organization) and also assures that there is a serious examination of California’s sentencing structure.

Bottom line is that I believe that all of the dissenting law enforcement organizations are of the same mind – constructive solutions are possible if only policymakers will take a deep breath and engage in collaborative discussion of the Corrections package. If Assembly Nava can successfully communicate that to legislative leadership, we could then spend the next few days in serious discussion to craft a package that would meet everyone’s needs, rather than engaging in the counter-productive efforts of trying to squeeze 41 votes for a package that could be a consensus item if there were only open discussion."

President Bernard Melekian

California Police Chiefs Association | P.O. Box 255745 | Sacramento, California 95865-5745 | United States

props to Kara Dansky for alerting me to this fascinating letter.

Friday, August 21, 2009

KPFK interview on Plata/Coleman

I was on KPFK this morning, speaking about the Plata/Coleman decision and about the recently approved Governor's plan with Roy Urlich on Morning Review Friday. Click here and find today's date to listen.

State Senate Approves Governor's Plan and Sentencing Commission Bill

Yesterday, the State Senate approved the Sentencing Commission Bill, by a narrow margin of 21 to 19 voters. The discussion was quite polarized, with concerns about public safety raised by Republican lawmakers. The next step for the bill is the Senate Assembly's approval.

The bill was approved as part of the narrow approval of the broad plan proposed by Governor Schwarzenegger to release 27,300 inmates.

The approved measures - and the savings they entail - are as follows:

-- $42 million saved by allowing the early release of inmates who complete certain rehabilitation programs, such as by earning GEDs and taking vocational training classes.

-- $134 million saved by reducing the influx of new prisoners by changing some property crimes that now qualify as felonies to misdemeanors. Petty thefts, writing bad checks and receiving stolen property would no longer be charged as felonies. Stealing cars valued at $2,500 or less could be charged as misdemeanors instead of an automatic felony.

-- $120.5 million saved by allowing certain inmates to finish their sentences at homes or hospitals under GPS monitoring. Qualifying inmates would need to be at least 60 years old or severely ill and have less than one year to serve.

-- $30 million saved by allowing certain felons who violate probation to serve time in county jails instead of having them sent back to prisons.

-- $198.5 million saved by changing the state's parole system so that some low- and moderate-risk offenders would not be subject to parole revocation. Also, certain serious offenders would be eligible for early parole discharge if they successfully complete drug treatment.

Wednesday, August 19, 2009

Inmate Release: How Would Good Credits Work?

(image courtesy ACT Corrective Services,

In May 1840, Alexander Maconochie, a Scottish administrator with a Navy background, was appointed to run and manage Norfolk Island, . Norfolk was, at the time, one of the toughest correctional institutions in the British empire, housing hardened violent criminals who were sent to Penal Australia.

Maconochie's correctional ideology was quite revolutionary for the time. Firm in his belief that punishment without reform was a socially empty act, he sought to generate a system under which convicts would earn their own freedom through "marks", which they would earn for good behavior and hard work. The "marks" could be used to purchase luxuries beyond a diet of bread and water, or to purchase one's freedom. The imprisonment experience, beginning with a period of solitude, would gradually loosen as convicts rose from level to level (or tighten back for those who "slipped"), to the point of being a closer simulation of life on the outside.

In his three years on the island, Maconochie had created a culture of learning and improvement within Norfolk. The library was stocked with books and prisoners would congregate, read and debate. Theatrical productions were considered. Musical instruments were ordered. Contrary to the previous practice of anonymous graves, headstones were placed on deceased prisoners' graves. Queen Victoria's birthday was celebrated as an island holiday, during which the prisoners were free to roam about the island.

Maconochie's methods produced prodigious results with regard to recidivism rates. During his tenure at Norfolk, he discharged 920 of the twice-convicted offenders; by 1845, only twenty of them had been convicted again. However, these methods, which were initially endorsed by the Empire, became increasingly controversial. Critics complained that inmates were not receiving enough punishment in the initial statements and were horrified to hear about the island holiday. Under much political pressure, Maconochie was sent back to England in late 1843.

Revolutionary rehabilitative systems sometimes work, but they seem to be contingent upon strong personalities with strong convictions, and don't tend to survive political pressure. Another example is Thomas Murton, a thoughtful administrator and criminologist who revolutionized the Arkansas prison with similar ideals in mind, and whose work at the prison is depicted in the fiction film Brubaker.

So, could such a system work in California prisons? One of the mechanisms considered for inmate release relies on good work credits. A National Conference on State Legislatures report examines the various mechanisms for credit earned. At least 31 states offer such credits in one form or other; usually, state legislation authorizes the correctional authorities to define which programs merit earned time. 21 states reward education and 18 states reward work (California provides credits for disaster relief work). Some states, like Nevada, Pennsylvania and Colorado, have actually expanded their reliance on such systems, due to budgetary difficulties (humonetarianism in action!). The amount of time earned (how many days of participation are required for one day of early release) also varies from state to state, and also, within a state, between different programs. California offers day-for-day in some programs, and others sometimes provide more than a 1:1 credit ratio.

Do these programs affect recidivism? Several evaluation studies done on good credit programs found no significant difference in recidivism rates between early released inmates and inmates who served the full term. In fact, one study even found a significantly lower recidivism rate for those who were released on good credits.

To read more about Maconochie, read Norval Morris' terrific book Maconochie's Gentlemen.

Tuesday, August 18, 2009

The Michigan Deal Goes South: Too Expensive for California

California's inmates will not be shipped to Michigan, the Detroit News reports. The reason? Michigan is too expensive.

Michigan bid too high on the daily rate it would charge to care for prisoners at either the Standish or Muskegon facilities -- and won't get a contract at either facility, said Seth Unger, press secretary for the California Department of Corrections and Rehabilitation.

Michigan would have charged $89 per day, per prisoner, and that didn't include medical care, Unger said.

"Our average is $63 at other facilities ,and includes medical care", Unger said of other arrangements with privately run prisons in Arizona, Mississippi, Oklahoma and Tennessee that hold California inmates. "It's also the remoteness of the facilities."

Here's the letter sent by Secretary Cate, rejecting the offer.

While these days, our first, second, and third concerns pertain to our wallets, there are various other problematic issues with "exporting" inmates. One such concern is that the distance from family and friends would hinder visitation and contact with the outside world, which is already compromised by the locations of California facilities. The other concern, which the Plata/Coleman panel underscored in their decision, is the concern about the level of care, particularly health care, available to prisoners in other states.

Also, while not an immediate, practical issue, inmate transfers to other states are a stark illustration of the distance - physical and mental - of the public from the invisible realm of prisons. The economic crisis, as well as the Plata/Coleman decision, has significantly increased the visibility of prison-related issues, which is an important step on the way to remedy the crisis. Even if inmates are sent away, they do not cease to be the state's problem; forgetting them is a trap that policymakers would be well advised to avoid.

Addendum: I wonder what it's like for a Californian to do time at a Tennessee private facility. If you, or someone you know, is or has been in such a predicament, please comment and enlighten us.

props to Jerry Jarvis for keeping us updated.

Saturday, August 15, 2009

Who is Afraid of Early Releases and Non-Custodial Sentences?

Not the American public, according to a study conducted by the National Council on Crime and Delinquency. The findings are summarized as follows:

  • A majority of US adults believe that some crimes, for which offenders are currently incarcerated, do not demand time behind bars.
  • Eight in ten (77%) adults believe the most appropriate sentence for nonviolent, nonserious offenders* is supervised probation, restitution, community service, and/or rehabilitative services; if an offender fails in these alternatives, then prison or jail may be appropriate.
  • Over three-quarters (77%) believe alternatives to incarceration do not decrease public safety.
  • More than half (55%) believe alternatives to prison or jail decrease costs to state and local governments.
  • US adults more often think alternatives to incarceration are more effective than prison or jail time at reducing recidivism (45% vs. 38%).
  • Respondents cited a variety of reasons they believe justify sending fewer people to prison or jail, including expense, overcrowding (danger to guards, danger to inmates), the ability of proven alternatives to reduce crime, and the fairness of the punishment relative to the crime.

While the questions emphasized "nonviolent" and "nonsexual" offenders, and are therefore not devoid of bias, they are more specific than questions targeting "offenders" in general, which used to be the modus operandi in public polls and the like. This is very good news, and it proves the point that punitivism has not been our lot simply because "that is what the public wants". We are smarter than that.

The full study can be found here.

For a review of other studies and trends, arriving at similar conclusion (with more rigorous metrics), see our previous post on the topic.

Thursday, August 13, 2009

Update on Vera Report

I have just received word from the Vera Institute with an update of their report, which was released July 29 in light of new information about the influence of stimulus funds in a number of states and new budget information from four additional states.

The revised report, which is based on survey responses from 37 states, finds at least 26 states have reversed the trend of recent decades and cut corrections spending. In three states-Kansas, Nebraska, and South Dakota-officials reduced initial general fund appropriations knowing that a portion of the reduction would be made up by federal stimulus funds. Thus, although general fund appropriations decreased by double-digits in these states, the actual operational impacts were smaller.

Other updated findings include:

  • At least 31 states are reducing staff, instituting hiring freezes, reducing salaries or benefits, and/or eliminating pay increases.
  • At least 22 states are closing facilities or reducing beds, or delaying expansion or construction of new facilities.

The Fiscal Crisis in Corrections: Rethinking Policies and Practices was funded by the Public Safety Performance Project of the Pew Center on the States.

Download the revised report here.

Prison Cuts in Lean Times: Vera Institute Survey Reveals Cuts in 23 States

How much effort are other states making to save on corrections?

The Vera Institute of Justice conducted a survey, trying to establish the impact of the financial crisis on correctional policies. California was one of the states that did not respond to the survey, possibly because it had not yet enacted its 2010 budget. The full survey (only 16 pages and very much worth a read) can be found here in PDF format. Here are some of the highlights.

Second only to Medicaid, corrections has become the fastest growing general fund expenditure in the United States. Two million three hundred thousand people in the U.S. are now in prison or jail—more than one in 100 adults. On any given day 7.3 million adults are under federal, state, or local correctional control (including those on probation, parole, and other forms of supervision)—one in 31 adults. In FY2008, the most recent year data are available, states spent an estimated $47 billion of general funds on corrections, an increase of 303 percent since 1988. They spent an additional $4 billion in special funds and bonds and $900 million in federal funds, bringing total corrections expenditures to nearly $52 billion. (p. 2)

The basic cuts can be seen in a chart from the report, which I lovingly converted to JPG for your convenience (click on the image to clearly see the chart). As you'll see, at leats 23 states have taken on cuts in their correctional operations. The executive summary identifies most of the activity as occurring in three areas:

Operating Efficiencies: Though many state corrections departments squeezed out efficiencies during the last recession, they are trying to eke out even more savings now. States are reducing healthcare services or joining in purchasing agreements to lower the cost of inmate pharmaceuticals. Many states have reduced corrections staff, instituted hiring freezes, reduced salaries or benefits, and/or eliminated pay increases. Others
are consolidating facilities or halting planned expansions. Still others are eliminating or downsizing some programs.

Recidivism Reduction Strategies: High rates of failure among people on probation and parole are a significant driver of prison populations and costs in most states. To cut down on new offenses and the incarceration of rule violators, several states are strengthening their community corrections systems. Many states began these efforts in the past few years as part of the national emphasis on helping people successfully return to the community following their release from prison. States are now bolstering both their reentry programs and community
supervision programs and working to improve outcomes for people on supervision.

Release Policies: The biggest budget savings come from policy changes that impact how many people come into prison and how long they stay. Staffing typically accounts for 75 to 80 percent of corrections budgets, so substantial cost reductions can be achieved only when the prison population shrinks enough to shutter a facility—whether a single cellblock or an entire prison. In FY2010, states looking for large cuts have turned to release policies and found that they can identify some groups of people who can be safely released after serving shorter terms behind bars.

The report also anticipates further cuts, in the form of transitioning to non-custodial alternatives.

Props to our friends at The Real Cost of Prisons for alerting us to this.

Wednesday, August 12, 2009

The Aftermath of Chino

(photo courtesy L.A. Times)

The L.A. Times report on the Chino riot provides some insight into the extent of the violence and destruction, but very little in the way of cause, beyond the volatile combination of overcrowding and racial unrest.

It was the kind of explosive violence threatened throughout the state's 33 prisons, which are packed with nearly twice as many inmates as they were built to hold. The destruction wreaked here has served to intensify pressures throughout the penal system as at least 1,100 Chino inmates have been moved to other prisons.

The prison remains on lockdown, in a "state of emergency," Hargrove said as he picked his way through the riot scene.The two dormitories hardest hit by the clashes are surrounded by yellow crime scene tape. Trash bags line the chain-link fence topped with concertina wire. Olive-clad security officers comb the grassy field with metal detectors, looking for weapons the prisoners might have buried during the four hours that they had control of the area.

Corrections officers got word that violence was brewing at the prison, prompting a lockdown imposed Thursday night. Tensions between Latino and black prisoners flared two days later, according to officers here.

But in the end, inmates of every race were involved, leaving the cause of the clash unclear, said Terry Thornton, spokeswoman for the California Department of Corrections and Rehabilitation.

My colleague Jonathan Simon, over at Governing Through Crime, comments:

My observations (limited) of California corrections in recent years is that race operates as a default way to manage risk (for both the prison system and the prisoners) in a system of mass incarceration which has both lost any semblance of traditional prisoner community, and has failed to provide a secure and dignified life within a penal complex to which hundreds of thousands are consigned for years and many tens of thousands for decades of their lives. This basic lack of planning for anything but warehousing bodies has been exacerbated by the systemic overcrowding that has brought the system under federal court control.

Tuesday, August 11, 2009

More Images of San Quentin Baseball...

Photos and words by Emilio Granado. See the full slideshow here.

Playing Baseball in San Quentin, by Alex Casnocha

(image of pitcher for San Quentin Giants courtesy
Alex Casnocha is a Hastings student who has had the unique experience of playing baseball in San Quentin, and has kindly volunteered to share his experiences with the blog readers. Enjoy!
And, for a documentary on baseball in San Quentin, watch Bad Boys of Summer.

San Quentin Baseball

As a San Francisco native and current law student at UC Hastings, I had heard about the San Quentin baseball program years ago. After my own baseball career ended after college, I hoped to find a way to join an adult team that would play against the prisoners, and my opportunity finally arrived this past spring and summer. In exchange for missing an hour of my Criminal Law class last spring, my Professor required that I write a summary of my experience in the prison, and so I’ve put together some notes and stories from my experiences.

During the summer, the prison fields two teams, and they each play two home games each week, not against themselves, but against outsiders, made up of different adult teams from across the Bay Area. The outsiders’ team name is always “The Willing.” The San Quentin Giants (the prison’s “A” team) wear jerseys and equipment all donated by the San Francisco Giants. Their “B” team is called the Pirates.

Nearly all the prisoners on the Giants are serving life sentences. Some of them were victims of the Three Strikes Law, but many of them are also serving life for murder. Their best pitcher, Chris Rich – or “Stretch” as he’s called because he’s 6’8, who pitched St. John’s to the College World Series twice in the 70’s, "lost his cool one night" and killed his wife with a bat. Their catcher had murdered someone. Their outfielder in a recent interview "just asked for forgiveness from the victim's family." So clearly many of these guys did something very bad to end up there. The rules of the prison are that you cannot wear anything blue, because that is the color of prisoners clothing and in case anything "goes down," they want to be able to distinguish the non-prisoners from the prisoners. They also announce as you walk in that they will not negotiate for hostages. I wore bright red socks, a red belt, and a red shirt.

Anyways, with that backdrop, we entered the prison at a little after 8:30 am on beautiful and sunny Saturday. We had to go through a number of security checkpoints, but finally ended up inside the prison yard. I was kind of caught off guard because there are so many things that catch your eye immediately upon entering, including the brand new hospital that is almost completed. For some reason I thought we would be funneled into the field and that the field would be enclosed by a chain link fence that separated us from the prisoners, but I was way off with that assumption. We got in and immediately a group of huge prisoners walked by us and asked us to "beat the sh-t outta the Giants today." We then walked down this narrow alleyway and all of a sudden the general rec yard opens up in front of you. It was a pretty surreal moment for me. It was exactly how you see it on MSNBC Lockup. There were hundreds of prisoners milling around, mostly separated by race. Some were doing calisthenics, pushups, pull-ups, some were jogging around the outside lap, some were just hanging out against the wall, dealing cigarettes – and probably some other things as well. Clearly (hopefully?) these guys must have had very clean records while in prison to earn the privilege to be out there, because we literally walked right through them all to get to the field.

But we got to the field, put on our spikes, and got ready to play. While I was standing around warming up, an Asian prisoner came up to me and drew a diagram into the dirt to show me how small their cells were. Suffice it to say that they were incredibly tiny. It was ridiculous. A bunch of other prisoners came by to agree with the diagram and emphasize how small their cells were. I talked with the umpire for a little while (the umps are all prisoners as well) and he talked about how the three strikes law had 'screwed' some of the guys on the team. He was pretty smart and knowledgeable about the law and other things. (At one point during the game, he was standing there and another HUGE 50 year old guy came by and was like "Yo dude! You were at Chino back in '99 weren't you? Yeah man I recognize you, Cell Block H! What up man, I was doing three years back then.") But he was also incredibly nice guy. (I learned during my second game that he in fact was in prison because of the Three Strikes Law. He told me had did two things when he was 19 years old and a ‘fool’ and then got caught for petty theft 30 years later – his third strike - and is now serving life. He also played two years in the NFL before coming to prison.)

I was playing first base so I got to chat with a bunch of the prisoners as they came down the line. They were cracking jokes about this and that, they are all older about 30-50 in age, and all pretty solid players as well. We got up big to start the game, so that took the air out of them a little, but when they scored their first run the entire yard went nuts. There were about 750 guys out there, and a lot of them were watching the game. Probably the largest crowd I've ever played in front of.

A couple of mini-stories:

My first at bat, I hit a line drive hard straight back to the pitcher, and drilled him right in the groin. I was afraid he was going to come high and tight on me next at bat. Thank god that didn't happen.

At the beginning of the game, our coach comes up to us and says "Alright guys, this umpire is notoriously sh-tty. Just terrible, so don't let his bad calls shake you." (Yeah coach…not planning on arguing with a prisoner who is umping our game anyways.)

My buddy the umpire told me that when all TVs went from analog to digital they all got paid the price. Nearly every tv in prison was analog, so they basically have no channels now to watch on TV.

It was also a little tricky to figure out what you want to talk with these guys about. I obviously wasn't going to start grilling each prisoner as to why they are in prison, what they did, etc. So mostly we just stuck to baseball chat. We discussed the game, discussed the players, cracked jokes, and really there was never an awkward moment.

Another thing was that there were about 30 prisoners standing right behind the backstop chatting and heckling you for most of the game. They were all really good sports, and since we were winning by a lot, they wanted to know who we were and where we came from, but for my last at bat, I stepped to the plate, and one of the dudes is like "yeah, this kid's not a nice little swing. Alright big man, where you gonna hit it, call your shot." I didn't want to show that guy up, so I pointed my bat towards left field. (It was a short porch out to left field so I figured I could maybe poke one out of the park.) The whole group of prisoners starts laughing and cheering. The pitcher was this guy with long blonde hair, like Fabio, and everyone called him Fabio. So the group behind the backstop starts shouting "alright Fabio throw him a fastball, man vs. man, man up Fabio and throw this kid a fastball." (with a few other choice words interspersed. First pitch - fastball, right down the plate. I swung as hard as I could and swung right through it. Whole backstop starts cheering. I ended up weakly grounding out to the pitcher. It was an exciting moment though, and Fabio was pretty pumped up as well.

But all in all, I'd say the biggest thing I walked away with was knowing how truly great all these guys were. Obviously, at some point in their lives they did something very bad. But for a lot of them, that was 10, 20, 30 years ago, and they've been in there their whole life. Clearly, some of them seemed to be pretty hardcore guys on outside. Their catcher for example, was no joke. Tattoos all over the place, all over his neck, broken left thumb, definitely a 'balls to the wall' kind of player. During my second at bat he was telling me how the pitcher was throwing too slow for us, so I mentioned that "yeah the pitches look pretty good" which kinda seemed to tick him off. He immediately says "Yeah, but he's my F-CKING boy, and I'd do anything for him." Message sent. But even all the prisoners who were watching would come up and chat, cheer us and them on. I think they just really appreciate getting the chance to play every week. Frankly, the field was nice, the weather was beautiful, and it was legit baseball. To be serving a life sentence in prison, and be able to play like that, must be something truly special for these prisoners. After the game, each one made a point to come up, shake our hands, hug us, and thank us for coming out.

Afterwards, and even during the game, I tried to imagine what some of these guys would do if they got released today. For some of the guys, especially the older ones, they seemed to be perfectly rehabilitated. Obviously I was only privy to this little glimpse into their daily lives, but I couldn't help but think that many of these guys had been in there for a long time, and their crime was so long ago, that they were no longer a danger to society. Yet in class, when we did hypothetical scenarios involving a murder, I almost always raised my hand for a life sentence. I think my attitude now has definitely changed. Maybe I would still vote for a life sentence, but I would at least provide an opportunity for parole after 20, 30, 40 years. The pitcher who killed his wife with a bat, was maybe the nicest of the bunch, and was genuinely grateful for the opportunity to play us. I'm sure he's seen a lot of very bad things in his time in prison, but I could only imagine him getting out of prison and being able to help and coach other youth baseball teams.

In fact, during my second game at the prison, he opened up a little about his view on the prison system. Years ago, he had requested to be transferred to San Quentin when he heard about their baseball program. He stood behind our dugout for the entire second game chatting with us about this and that. As we got to talking, he mentioned “You will find very few people in here, who believe that most of the guys here should really not be in prison. We all look around and realize that there are a lot of people in here that belong in here, and not on the outside. They are just too dangerous to be out in the real world, and nearly all of us acknowledge that. But for some of us, it kills me that I am costing the taxpayers of California forty-thousand dollars a year, or whatever it is, to be in here, when I could be on the outside, working, contributing to society.” I think that is a very revealing look into the minds of some of these prisoners, how they understand their continuing burden to society.

Maybe these were just my idealized visions, but they all went through my mind while playing on the field. More than anything, it opened my eyes to how difficult it is to sentence people who have committed murder. You want to be able to sentence people on an individualized basis, taking into account their personalities, and perhaps leaving the option open for them to get out later in life, and yet, that is simply not realistic. There needs to be some standards and guidelines. And generally the one our society has created is a life sentence, if not worse.

When I tell some of my friends and their parents about my experience, they all almost unilaterally can not believe that I would put myself into that situation with those "monsters" and "murderers." I now get a little defensive when I try to explain to them that most of the guys were really nice, and you could never imagine them doing something that horrific. And yet, at some point in most of their lives, they did commit a crime that was bad enough that they probably could be called "monsters." It is just hard having to know that that reality exists when you meet them on a personal level on a baseball field on a beautiful Saturday morning or Thursday evening.

Chino Riot and Overcrowding

(image courtesy L.A. Times blog)

Some sources, this morning, link the Chino riot to overcrowding. The New York Times editorial piece refers to the three-judge-panel:

Officials are still investigating, but a major cause is already clear: 5,900 men were being held in a facility designed for 3,000. The violence should serve as a warning to officials across the country not to try to balance state budgets by holding inmates in inhumane conditions.

The L.A. Times Blog provides provides some more specific background on the Chino situation, including the racial issues, here and here.

The disturbance, reportedly sparked by racial tensions between Latino and black inmates, appeared likely to deal a setback to efforts by the California Department of Corrections and Rehabilitation to desegregate the teeming “reception centers” in the state’s 33-prison network that house incoming prisoners and probation violators.

But it remains unclear what role, if any, the Supreme Court decision played in the Chino problem. [Terry] Thornton [speaker for CDCR] said the court ruling only applied to prisoners in cells. The violence in Chino broke out in an area where prisoners are housed in baracks, which she said was not covered by the decision. Only two prisons with cells have been integrated since the 2005 ruling, and Chino is not among them, she said.

Thornton said the 1,100 inmates were either waiting to be transferred or en route to one of four institutions: the Calipatria State Prison in Imperial County, the California Rehabilitation Center in Norco, the Correctional Training Facility in Soledad and the Heman G. Stark Youth Correctional Facility in Chino.

Monday, August 10, 2009

Chino Prison Riot

(image courtesy

Some of you may have heard of the recent riot at Chino prison. The L.A. Times reports:

Staff continue to evaluate the extent of inmate injuries and damages to state property following the riot that occurred on Saturday, Aug. 08, 2009, with inmates at the California Institute for Men, Reception Center West Facility.

Thirty-eight inmates of the initial 55 inmates who were transferred to local community hospital for medical treatment for more serious injuries have been returned or are en-route back to the institution following medical treatment.

None of the facility's employees was hurt in the melee, which broke out at about 8:20 p.m. Saturday at the Reception Center West facility, Hargrove said. Guards used pepper spray, "less lethal force, and lethal force options" to regain control by 7 a.m. Sunday, he said.

The scene of the violence was the medium-security housing facility with seven units, each of which houses about 200 inmates, he said.

Some 80 officers responded to the riot, during which a housing unit was heavily damaged by fire, he said.

CDCR reports are here and here. There is also a little bit of background on Chino:

California Institution for Men, which opened in 1941, serves as a Reception Center for parolees returning to custody and newly committed male felons from several Southern California counties. The Reception Center completes diagnostic tests, medical and mental health screening, and literary assessments for classification in order to determine inmates’ appropriate institutional placement. CIM houses currently 5,911 inmates and employs approximately 2,100 people.

I should probably add - if anyone has any light to shed about the riot, please do so in the comments.

Saturday, August 8, 2009

Plata/Coleman Decision Analysis: Part V

(image courtesy

I'd like to conclude this series of posts by pointing out a few strengths and weaknesses of the panel's decision. These are important to keep in mind, since the decision will undoubtedly be appealed to the Supreme Court.


All in all, my impression is that the panel not only made a brave, no-nonsense decision, but it also supported it quite firmly and thoroughly. The opinion does not beat around the bush, and it addresses each of the PLRA concerns with a well-supported array of data. Moreover, the decision benefits from using the defendants' own experts and plans. After all, there could hardly be a disagreement about the population explosion as a key complicating factor in each and every aspect of prison life, certainly in providing essential services; the government more or less has conceded it, and its own plans to deal with overcrowding are remarkably similar to those proposed by the court. The only difference seems to be in scope.


I see three main issues that may be brought up against the decision on appeal; two of them can be easily addressed, and the third one is rather open to speculation.

First, the court has rejected the government's argument that it has already intervened quite dramatically in the matter by appointing the receiver and special masters, and yet, it has argued that these institutions will still have plenty of room for improvement and hard work after the overcrowding crisis is alleviated. This argument coudl be said to undermine the statement that overcrowding is the primary reason for the dysfunction .The proper response to this argument, I believe, is to differentiate between necessary and sufficient factors. While alleviating overcrowding is an essential factor in improving medical services, it is by no means sufficient, and much work - staffing, construction, generating best practices - will still need to be done.

Second, while the three-judge-panel's jurisdiction emerged from a discussion limited to the medical system, the judges may be said to exceed these limits by discussing other ills of the prison system, such as the broken parole apparatus and recidivism rates. However, a close reading of the decision reveals that these additional issues are addressed as a direct response to PLRA requirements; recidivism rates and other issues are not discussed in and of themselves, but in the context of public safety and remedy feasibility.

What seems to be a problem, though, is not so much the language of the decision or its reasoning, but its timing. The order was given days after the Governor came up with a reduction plan of 27,300 inmates. Since the court itself states that no number is "magical", a possible argument before the supreme court could be that the reduction the state is willing to embrace is "enough" of a reduction. The answer to the "how much" question is rather difficult, and I can see the Supreme Court, in the spirit of federalism and state autonomy, leaving the amount of releases to the (already exercised) discretion of the Governor and prison authorities. Those who rejoice in the panel's courageous decision today should hope that its reasoning for the percentage of reduction will stand.

We'll have to wait and see.

Plata/Coleman Decision Analysis: Part IV

(image courtesy

Wait! Won't reducing the prison population compromise public safety?

The panel answers this question in the negative; while, as the decision states, it is impossible to anticipate what kind of effect the order will have on public safety, the court believes there are ways to craft a reduction plan that will not compromise the state's responsibilities to protect the public. The panel makes the following points:

The experience of imprisonment in an overcrowded institution itself has a criminogenic effect; therefore, reducing its scope might actually benefit public safety. The current incarceration experience backfires in terms of protecting the public, by being a "petri dish" for crime. Overcrowding hinders the possibility to properly classify inmates, thus housing them according to levels of risk. It also hinders the inmates' access to rehabilitation programs. Under such conditions, inmates learn new criminal behavior while "doing time", which actually increases recidivism rates.

Rather than mindlessly throwing the prisons' doors open, there are thoughtful ways to reduce population without compromising public safety. The court agrees that a wholesale release of inmates without a thoughtful plan is not a good solution. It proposes several ways to reduce prison population without compromising public safety: credits for good behavior and achievements, which act as an incentive to pursue rehabilitation options; diversion of technical parole violators, who constitute a large population of returning inmates; diversion of low-risk offenders with short sentences; sentencing reform; increasing rehabilitative programs in prison; and modifying statutes. The court points out that most of these have been endorsed by the state; faithful blog readers will probably remember them from the Governor's reduction plan of 27,300 inmates, which we discussed here. The plan, therefore, need not be all that different from the Governor's plan, save for the fact that the reduction is larger in scope.

The assumption that community resources will not suffice for containing the released inmates is exaggerated. The panel considers several ways in which the community might be affected by population reduction. It concludes that the releases will not have a significant impact on population in local jails. They also state that parole supervision would not be affected, since many of the problems with it stem from inadequate resource allocation, particularly from an unnecessary focus on low-risk parolees and technical violations. The court also rejects the (cynical?) assertion that rehabilitation/reentry resources will be taxed by the reduction, noting (cynically?) that the considerable financial savings from a population reduction could be put to good use creating more rehabilitation and reentry programs, thus contributing to public safety in a more effective way.

There is no evidence of a significant relationship between early releases and a rise in crime rates. Empirical evidence presented by experts supported the conclusion that "population reduction measures have been adopted in various states without an adverse impact
on public safety". This alleviates concerns over the order's potentially adverse impact on public safety.

There is no public safety reason to exclude mentally ill inmates from the release order. Numerous experts supprted the assertion that community-based treatment is a better strategy to handle mentally ill inmates. While it is possible that some mentally-ill patients may do better being treated within people rather than outside, this is not true for many others, whose treatment will be more effective - and cheaper - outside prison walls. The release plan could take these classifications into account, by crafting, for example, good credits so that "only those mentally ill individuals with the greatest level of psychiatric stability and the greatest potential to “voluntarily” follow up on outpatient care would be eligible, at least until appropriate community programming is in place."

Plata/Coleman Decision Analysis: Part III

(image courtesy

Crafting the appropriate population reduction

The panel then moves on to figure out which remedy would be enough to solve the problem, and yet no more than enough; the statutory limitation requires them to craft the least intrusive measure possible. While they believe that the plaintiff's request for a reduction to 130% capacity is "reasonable and finds considerable support in the record", they opt for a lesser level of reduction. Establishing that the cut should be between the levels of 130% and 145%, they opt for a cut to 137.5%.

1. Where should population be reduced?

The panel considers, and rejects, the possibility of requiring population reductions in specific institutions: "[T]he constitutional violations identified by the Plata and Coleman courts exist throughout the California prison system and are the result of systemic failures in the California prison system". Moreover, "defendants have never contended that the problems at issue in Plata and Coleman are institution-specific". In addition, the panel sees specific institution capping as micromanaging, and potentially more of an intrusion into the state's ability to manage its prison population than an overall cap.

2. How should population be reduced?

The process for planning the population reduction is a combination of collaboration and coercion: The plan will come from the state, but be modified by the court with input from the plaintiffs and other parties, and the courts will retain jurisdiction to ensure compliance or modify further. This model, which was proposed by the plaintiffs, leave the state with some flexibility about the best mode of reduction, and follows similar orders given in other cases.

3. How much population reduction is necessary?

Aaaah, this is the $64,000 question. While the panel believes that the plaintiffs' request for a reduction to 130% capacity is "reasonable and finds considerable support in the record", the decision opts for a lesser level of reduction. The panel cites Dr. Craig Haney, who pointed out, in his expert opinion, that “there’s nothing magical” about any specific percentage, including 100%. The court points out that even in institutions at 100% capacity there are problems stemming from crowding, and that California prisons, by design, are unable to provide an appropriate level of care to even 100% of the population. However, the panel mentions that the plaintiffs requested a reduction to 130%, relying on plans drawn by the Governor's own personnel. Experts' estimates, however, wavered between 130% and 145%. The latter, according to some of the testimony (including Haney's, in response to some wardens' suggestions), is a very conservative estimate of what would be required, taking into account physical space and staffing. The court phrases its final estimate as follows: "Rather than adopting the 130% limit requested by plaintiffs, we will out of caution require a reduction in the population of California’s adult prison institutions to only 137.5% of their combined design capacity – a population reduction halfway between the cap requested by plaintiffs and the wardens’ estimate of the California prison system’s maximum operable capacity absent consideration of the need for medical and mental health care. At the adult institutions’ present design capacity of 79,828. . . (CDCR weekly population report as of August 27, 2008), this equates to a population of just below 110,000. Should the state prove unable to provide constitutionally adequate medical and mental health care after the prison population is reduced to 137.5% design capacity, plaintiffs may ask this court to impose a lower cap. Similarly, should it appear that the provisions set forth in the plan adopted by the court will not achieve the expected population reduction, plaintiffs may seek to have the plan amended."

Plata/Coleman Decision Analysis: Part II

(photo courtesy CDCR)

1. Is overcrowding the primary cause for the medical system's dysfunction?

The court reponds in the affirmative. It starts by noting that "[a] prison system’s capacity is not defined by square footage alone; it is also determined by the system’s resources and its ability to provide inmates with essential services such as food, air, and temperature and noise control". It then moves on to explain the causal link between overcrowding and poor medical services, not before mentioning that four former CA prison administrators testified in support of this assertion.

The testifying administrators pointed out to several ways in which overcrowding hinders health care. First, the decision mentions that, in general, overcrowding leads to a set of priorities impacted by various emergencies, thus relegating health services to a lower place in the list of priority.

Second, the court emphasizes several problems stemming from the lack of space: the inadequate use of reception centers to house inmates rather than treat them, the severe shortage of treatment space, and the inability to place inmates according to classification because of space constraints. This is a problem particularly with respect to mentally ill inmates, who "languish in clinically inappropriate settings".

Third, overcrowding directly impacts the quality of care: "Bad bed" areas are understaffed, unsanitary (thus exacerbating the risk of spreading infectious diseases), and toxic for the severely mentally ill.

Fourth, there are other ways in which overcrowding hinders care. Understaffing is a problem not only with respect to medical and mental health stuff, but also with respect to the custodial stuff expected to keep the peace and escort inmates to receive medical treatment; the pharmaceutical system is unable to keep up with delivery demands; there are huge backlogs in receiving specialty medical care; and the growing need to rely on lockdowns as a way to keep the order hinders the provision of medical care during such times.

Finally, the impossibility of manually filing the huge number of medical records leads to inadequate record keeping, which leads to chaotic administration.

The panel then draws a line of causality between the overcrowding and some of the horrendous examples of preventable misdiagnoses, disease exacerbation and preventable deaths. It also points out that overcrowding exacerbates the plight of mentally ill prisoners. A variety of experts - including former prison administrators, prison scholars, administrators, physicians, and psychologists - are cited as supporting the causal link. Moreover, the court points to the litigation history in the Plata and Coleman cases as proof of the worsening of the situation, due to overcrowding, despite efforts to improve medical care with other measures.

2. Is there really no other way?

The court's response, in a word, is no. As support, the panel examines a series of alternative measures, pointing out their inadequacy as solutions to the problem.

First, the panel states the inadequacy of further construction as a remedy to the problem. Currently, there are no plans to build new prisons; re-entry facilities would take years to build and would not provide immediate relief; and building medical facilities is now compounded by the financial crisis. In general, construction is inadequate because it could not be completed in a timely manner, though if it were to be completed, it could be part of the solution.

Second, additional hiring is, according to the panel, impractical, given the difficulty of filling in current vacancies. As the decision points out, the overcrowding issue in itself discourages new hires, and a less crowded system would be more conducive to quality hiring.

Third, the court responds to the state's argument that the appointment of the receiver and special masters has been enough. While some progress has been achieved, it hs been slow. The receiver and special masters themselves testified as to how overcrowding has hindered their ability to improve the system. In addition, since solving the crowding problem will not immediately make the medical system's deficiencies disappear, their services will still be needed after the acute difficulties are resolved.

The panel also rejects the state's reliance on shipping inmates out of state as a solution, not only because of the small numbers that can be accommodated, but also because of the unknowns regarding the standard of care in those states.

More in Part III.

Plata/Coleman Decision Analysis: Part I

Here are some thoughts regarding the Plata/Coleman decision; they are by no means systematic or exhaustive.

First, I should probably mention that my "simple math" estimations from the previous post were not so simple, and as it turns out, somewhat exaggerated. Based on the most recent data on the California prison population (as of July 29, 2009)The Prison Law Office calculates the order to e calculate the reduction as 40,000 to a level of 110,000. The Order says at page 37, fn 35:

In this opinion and order, we will hereafter consider only figures and percentages relating to the CDCR's thirty-three in-state adult prison institutions. We do not consider camps, community correction centers, or Department of Mental Health state hospitals, all of which also house CDCR inmates. It is the thirty-three in-state adult prison institutions that are the subject of the Governor's Prison Overcrowding State of Emergency Proclamation and were the focus of the evidence at trial before this court. All references to "system" and "systemwide" encompass only those thirty-three adult institutions.

In these institutions, the data shows population of about 150,000 and a capacity of 80,000. 80,000 times 137.5%= 110,000. The reduction would thus be 40,000. Which is about 12,700 inmates less than the population under the Governor's proposed reduction plan.

Moving on to the decision itself, it is probably useful to learn a bit about the legal framework. This is not the first population reduction order in the history of prison litigation, and the panel cites cases from the 7th and 11th circuits, in which population reduction was deemed to represent "the proper balance between the duty of the district court to remedy constitutional violations and the right of the State to administer its prison and parole systems". However, since those decisions, Congress enacted the Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626, which raised the bar for providing relief in prison conditions cases.

The PLRA has two sets of requirements for relief: requirements regarding all prison-conditions-related litigation, and requirements that apply specifically to population reduction orders. The latter order - which can only be given by a three-judge panel - requires the court to find, by clear and convincing evidence, that --
(i) crowding is the primary cause of the violation of a Federal right; and
(ii) no other relief will remedy the violation of the Federal right.

In addition, as with all other prison litigation, the situation must satisfy the "needs-narrowness-intrusiveness" standard, that is, "[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm." The court must also take public safety into account, and "give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief".

The Plata/Coleman panel finds that all of these requirements have been satisfied; the next post will elaborate.

Tuesday, August 4, 2009

Live Web Streaming of Cate's Response: "We Do Have an Overcrowding Problem"

Watch Secretary Cate's response to the three-judge panel ruling here. The bottom line: the administration has a plan for decrowding over time, but it is not a Federal Court's job to impose such a plan. They are examining the appealability of the decision.

Read the gist of the ruling here.

The simple math: The court order requires the release of about 45,000 inmates. Schwarzenegger's plan is to release 27,300. How are 17,700 additional releases to be achieved?

BREAKING NEWS: the Federal Panel's Decrowding Order Becomes Final

The bottom line, fresh out of the court:



Within 45 days, defendants shall provide the court with a population reduction plan that will in no more than two years reduce the population of the CDCR’s adult institutions to 137.5% of their combined design capacity. Should any of defendants’ proposed population reduction measures require the waiver of any provisions of state law, the state shall so advise the court, and shall explain why the requested waiver is permissible under 18 U.S.C. § 3626(a)(1)(B). In preparing their plan, defendants shall consult with plaintiffs, intervenors, and other relevant stakeholders, including the Coleman Special Master and the Plata Receiver. Should such consultation fail to resolve any objections to the proposed population reduction plan, plaintiffs and intervenors shall file their objections no more than 20 days after defendants file their proposed plan, and defendants shall file responses to such objections no more than 10 days thereafter. Defendants shall set forth in their proposal the effective dates of the various actions they propose to undertake and their estimate of the reduction in population they expect to achieve after six, twelve, eighteen, and twenty-four months. The court will consider all of the written submissions and make any necessary modifications or changes to defendants’ proposed plan before issuing a population reduction plan as an order of the court. The court may before doing so request clarification on any matters and conduct any further hearings it deems necessary. However, given that this court issued a preliminary ruling on this matter almost six months ago so as to “give the parties notice of the likely nature of [this] opinion, and [] allow them to plan accordingly,” Feb. 9, 2009 Tentative Ruling at 1, the court will look with disfavor upon any effort to postpone or delay an expeditious resolution of the terms of the population reduction plan, including the submission of a proposed plan by the state and the issuance of the order adopting the final plan. The court will not grant any stay of the proceedings prior to the issuance of the final population reduction plan, but will entertain motions to stay implementation of that plan pending the resolution of any appeal to the Supreme Court. We will retain jurisdiction over this matter to ensure compliance with the population reduction plan and to consider any subsequent modifications made necessary by changed circumstances.


You can download the full opinion and order here, and we'll provide an analysis in the next few days.

The big questions - how does this work with the Governor's plan from the previous post without anyone being in contempt - remain open and will be discussed here in the days to come.

Inmate Release Plans: How the Governor Proposes to Reduce Prison Population by 27,300

On Aug. 17, our legislators will consider Governor Schwarzenegger's plan for alleviating the prison overcrowding situation. The Sac Bee provides some details on the Governor's plan, which you can see in the image to the left. As can be seen, the majority of releases are the product of reshuffling categories (undocumented immigrants, wobbler offenses) and a very small part of it consists of good-behavior credits. Also, note the ratio between use of low-cost alternatives to incarceration (such as GPS monitoring) and rehabilitation programs, considered high-cost alternatives.

Saturday, August 1, 2009

Taking Prison Capacity Into Account in Sentencing

I have recently come across an interesting resource which, while dated (published in 1997) offers some clues about how other states, and countries, cope with overcrowding through sentencing strategies.

Sentencing Reform in Overcrowded Times, edited by Michael Tonry, offers a wealth of information on various countries and their sentencing laws. The international comparison shows the trend we already know well: the US has the largest number of prisoners per capita (see the numbers in the World Prison Population List, compiled by Ron Walmsley from King's College London), and has not emphasized, as other countries have, proportionality in sentencing and seeking non-custodial alternatives. The book has short chapters on every country, summarizing its sentencing rules, and pays particular attention to strategies for battling rising imprisonment rates. A non-obvious example is South Africa, who started worrying about overcrowding back in 1976, and made some subtle changes to its sentencing structure, leading to a decrease in overcrowding in general, and to the overrepresentation of Africans in particular (the book estimates that the abolition of Apartheid crimes was only partly responsible for this change).

The U.S. chapters of the book do not include California, which does not have, as we know, sentencing guidelines and commissions. They also tell us something else that we already know - invariably, the introduction of determinate sentencing led to an increase in prison population across the board, particularly when accompanied by Three Strikes laws. But they also tell us that in Minnesota, Oregon, Pennsylvania, and various other states, prison capacity is factored into the sentencing guidelines as a criterion to be weighed in by the judges. There are various forms in which prison capacity is taken into account: several sentencing reforms, taking place in the mid-1990s, added some non-custodial sentences, and in some cases curtailed prisoners of the non-violent kind when scarce prison room was needed to house violent offenders. These strategies are not consensual; as Jeffrey Ulmer shows in his book Social Worlds of Sentencing, DA's officers are usually opposed to taking jail capacity into account, while judges embrace this consideration as a practical one.

Inversely, it is interesting to find out that changes in the opposite direction are also true; that is, enhancing prison capacity leads to an increase in imprisonment rates, as Stewart D'Alessio and Lisa Stolzenberg show in a paper published in Journal of Criminal Justice.

It is interesting to think whether the number of people sentenced to death in CA will increase with the construction of the New Death Row, and with the possible introduction of double-celling; also, when we consider alleviating overcrowding with new prison construction, we should take into account the increase in people sentenced to prison that, according to D'Alessio and Stolzenberg's findings, may follow such a move. It is also worth thinking of the sentencing commission bill, which we haven't heard about in quite a while, and on how a sentencing commission in CA might take prison capacity into account when fixing our broken sentencing policies.