Wednesday, December 29, 2010

More Construction... This Time, in California

In the heels of the report from Michigan come two new construction projects within California, both funded by AB 900. In Calaveras County, the local jail's capacity is to be quadrupled. And the expansion in San Bernardino adds maximum security beds.

Unsurprisingly, the Republican Caucus has been following on the progress made with AB 900 funding. From their perspective, "[i]t does not help that CDCR seems to have little direction and produces a new strategy plan on an annual basis. In the meantime, Democrats are pushing policies through the legislature – and supported by the Governor – that decrease the population through early release and place the burden of monitoring and controlling these individuals on local entities. Sadly, these are the exact same policies and actions that AB 900 was supposed to prevent."

From an empirical perspective, however, it is the massive construction of more prison cells that should be prevented. Building prisons is akin to building public highways; as we build more to prevent congestion, congestion gradually increases to fill the volume available. It is frightening to think that incarcerating one in 100 Californians is not enough. But perhaps they are the "wrong" kind of Californians, and therefore the Republican caucus should lose no sleep over them.

In any case, these new construction projects highlight the dark and problematic side of the Plata/Coleman decision. In an effort to be courteous to the state, and not to micromanage its affairs, the three-judge panel asked for a population reduction without mandating methods the state might employ to achieve such reduction. In his response to SCOTUS Justices, Don Specter seemed to agree that building new facilities would be among the range or responses that would be in compliance with the order. I actually think a narrow interpretation of the Plata/Coleman order is not only possible, but reasonable. The court did use the word "reduction" and stated a number of inmates. To say that "reduction" is the same as "dilution" of inmates is a bit of an interpretive push. But the real point is, of course, that building new prisons, in the long run, will push California away from compliance with the order, because the new facilities will, in due course, become just as overcrowded as the old ones.

Friday, December 24, 2010

Michigan: Preparing a Prison for California Inmates

(image courtesy Cory Morse from the Grand Rapids Press)

The Michigan dream, which encountered some serious hurdles before getting back on track, is apparently becoming reality. Via Sara at the Prison Law Blog, here are some details about the preparations to receive California inmates at this new Michigan facility:

As The GEO Group Inc. prepares to reopen the site once known as a “punk prison” for youth convicts, the California Department of Corrections and Rehabilitation is getting ready to send nearly 2,600 inmates here to help solve the state’s prison overcrowding.

This time, the inmates will not be deviant youth, but adults who ran afoul of California law for a variety of reasons.

The prisoners coming to Baldwin as part of a $60 million-a-year contract with GEO will be medium-security inmates deemed not extremely dangerous. Still, their backgrounds may include everything from murder to sexual assault.

Michigan has been hailed as a model for inmate population reduction. Apparently, these commendable steps have put them, and GEO corporation, in a position to benefit from our failure to act similarly.

A Surprising Voice Against Mandatory Minimums and Criminalization

"Tough on crime, tough on crime, lock 'em up! This is how these guys ran, but it isn't working! . . . We're locking up people who take a couple puffs of marijuana and next thing you know we lock them up for ten years. . . Judges say there's nothing we can do, we got these mandatory sentences. . . They go in as youths, they come out as hardened criminals..."

Bipartisanism reaches new surprising heights with this surprising little Pat Robertson video clip. Happy Holidays!

Many thanks to Billy Minshall for this bit of holiday news.

Wednesday, December 22, 2010

Merry Christmas, Taxpayers

After a conference and travel hiatus, CCC returns to a semi-regular posting regimen. And what better than a post on California Watch, according to which, despite the fee hikes in the UC system, "on a per-capita basis, UC is still cheaper than another big and expensive component of the California state bureaucracy – the prison system."

We've posted in the past about the gubernatorial problematic effort to create legislation that curbs prison expenditures in relation to educational expenditures. We also reported on the correctional angle to student protests of fee hikes. Here's hoping that 2011 will be a year that continues the nascent trend of decrease in incarceration rates, and as a result, incarceration expenditures.

Friday, December 10, 2010

The Fight Over Preston Youth Correctional Facility

On occasion, we have covered the abysmal state of juvenile prisons in California. Since our juvenile prison population has been declining, Some of them, like the juvenile institution in Chino, have been closed and repurposed into adult incarceration facilities. The Books Not Bars project at the Ella Baker Center for Human Rights lists some of the atrocious occurrences in these institutions:
  • Young people locked in 20- to 23-hour-a-day solitary confinement for days, weeks and months on end;
  • Young people locked in 4'x4' cages for temporary detention;
  • Guard and staff abuse, neglect, manipulation, and humiliation of the young people in their care;
  • Rampant sexual assault;
  • Guard/staff abuse of chemical weapons against the young people;
  • Virtually non-existent care for young people with mental health or substance abuse needs;
  • Shocking negligence in medical care, especially emergency care;
  • Woefully inadequate educational programming;
  • A culture and atmosphere of constant intimidation, isolation, fear and violence;
  • Five deaths of young people in less than three years.
Their report states,

Stark and Preston youth prisons are the most severe examples of the DJJ’s continuing failures, where daily chaos prevents most youth from participating in programs. Even where programs are administered with regularity, almost no programming proven to reduce recidivism is available, and at many prisons, only a small minority of youth participates. The DJJ has so dramatically failed to comply with court-ordered remedial plans that in 2008, plaintiffs sought a receiver to take over the reforms.

Today's Chron article is about one of these most notorious juvenile facilities, Preston Youth Correctional Facility. And, it appears that the hurdle in the path of doing the right thing and closing Preston is a lawmaker concerned about job losses among her constituents.

Preston, located an hour northeast of Stockton, houses just 224 youths and, as one of the state's oldest correctional facilities, is in terrible condition. Most of the youths serving time there are hours away from their families.

The facility employs about 450 people in a county with just 38,000 residents and a 12.4 percent unemployment rate. Closing it would save the state $30 million this fiscal year and more in future years, officials estimate.

"It's like closing a military base," said Don Specter, director of the Prison Law Office. "People want to keep it just for jobs, but that shouldn't be the reason that the state or government implements a program."

Huber's arguments against the closure are as follows:

Huber said the closure of Preston would "kill an entire county," because it is one of the largest employers in the area.

"This is going to turn the city of Ione into Flint, Mich.," Huber said, referring to the depressing impacts the closure of General Motors facilities had on that company town 20 years ago. "I'm not disagreeing with the fact that a facility needs to be closed ... the question is how do we decide which is the best facility to close."

Huber contends that Preston has higher graduation rates than other youth facilities; is best complying with the settlement that came out of the 2003 lawsuit; and, because of its dorm settings, offers a better setting for youths.

"The five facilities we have are like a school district," she said. "I think Preston is the best school - if you have to save $30 million, do you close the best-performing school?"

I recommend reading the entire article - it provides more information on Preston, quoting references to it as a "dungeon".

Thursday, December 9, 2010

The Crime of Punishment in California: NYT Editorial

Earlier this week, the New York Times published an editorial on the California correctional crisis, apropos the Plata/Colemen arguments.

At the intense, sometimes testy argument, Justice Samuel Alito revealed the law-and-order thinking behind the California system. “If 40,000 prisoners are going to be released,” he said overstating the likely number, “you really believe that if you were to come back here two years after that you would be able to say they haven’t contributed to an increase in crime?” To Justice Alito, apparently, it was out of the realm of possibility that, rather than increasing crime, the state could actually decrease it by reducing the number of prison inmates.

Among experts, as a forthcoming issue of the journal Criminology & Public Policy relates, there is a growing belief that less prison and more and better policing will reduce crime. There is almost unanimous condemnation of California-style mass incarceration, which has led to no reduction in serious crime and has turned many inmates into habitual criminals.

Jonathan Simon writes in Governing Through Crime:

For the Court's "liberals", the staggering portrait drawn by the many experts who testified before both original courts and the 3-Judge panel of the way physical and mental health needs are unmet appears to have broken through their own instincts to defer on criminal matters. The routine way in which California prisoners met death not through lethal injections, but by fatal neglect of their obvious and remediable medical needs, or by suicide after florid psychotic symptoms were ignored, animated a livelier questioning of the state in a criminal matter than in a long time. The Court's "conservatives", stripped of their preferred grounds of deference to the state's penological rationality, by the sheer scale of California's organizational failures over a twenty year period, were left to rest on the primal fear of violent crime and the biblical conviction that keeping people locked up must mean fewer crimes. Of course even if the Supreme Court (5-4), upholds the population cap, it will not end mass incarceration, that claim was not yet before the Court (and probably never will be).

Sobering words.

LA Times favors parole for youth LWOPs

Today's LA Times carries this piece:,0,2931752.story subtitled, "Sara Kruzan's case shows why juveniles should not sentenced to life without parole."

The Times had previously written in favor of Sen. Yee's narrowly-defeated SB 399 to change this policy statewide; today's Times asks Governor Schwarzenegger to offer clemency, if only in this one extreme case.

My favorite quotes: "She has volunteered for dozens of rehabilitation programs and won awards for her participation and attitude. ... The CYA felt that she should have been prosecuted as a juvenile rather than as an adult, which would have put her into a rehabilitation program from which she could have been freed by age 25 — seven years ago."

Sentenced a minor to life behind bars with no chance of parole is a ghastly, inhumane, cruel practice.

Tonight! A Hard Straight screened at the San Francisco Public Library

The Reentry Council and the San Francisco Public Library present A Hard Straight, a documentary film by Goro Toshima, about the real experiences of three people transitioning from prison to life outside. Featuring individuals on parole in San Francisco, the film highlights some of the struggles and triumphs of people returning to their communities. A panel discussion will follow.

Where: San Francisco Public Library, Koret Auditorium
When: 5:30pm-7:30pm

The film is terrific; we reviewed it last year and very much recommend seeing it.

Friday, December 3, 2010

More Out-Of-State Prisoners

The Plata/Coleman oral arguments included an exchange about the means by which the state purports to reduce prison population. Don Specter mentioned, in his arguments, the possibility of doing so not through mass releases, but through shipping inmates out of state. And, sure enough, the Chron recently reported that our inmate export business will be expanding in the near future.

The latest deal will ship 5,800 inmates to private prisons across state lines, bringing the total to more than 15,000. The transfers will begin in May under a contract that runs through June 2013 - nearly halfway through the term of Gov.-elect Jerry Brown.

. . .

Critics of moving prisoners to out-of-state facilities say it does little to relieve the underlying problems that have caused crowded conditions and questioned the timing of the new, no-bid contracts with two private companies. One of the companies houses nearly 10,000 California prisoners.

"This is the governor doing what he wants to in the last minutes of his administration," said state Sen. Mark Leno, D-San Francisco. "It is a way he can, on his watch, knock another 5,000 from the official numbers."

When California first signed contracts to ship prisoners over state lines four years ago, it began with 2,260 inmates at a cost of $51 million annually. Now, it is set to pay the companies $330 million a year to house 15,424 prisoners, and spend a total of $365 million once administrative costs are factored in.

If the outcome of Plata/Coleman will be further reliance on the privatization/export option, I fear the whole purpose of the exercise will be missed. The underlying issue of mass incarceration will remain unaddressed, private companies will have further incentive to support and fund measures like Arizona's notorious 1070 bill (now at the risk of being replicated in other states), and what's worse, the momentum gathered by the public's exposure to the costs involved will be lost as the problem recedes underground.

Wednesday, December 1, 2010

More on Plata/Coleman Oral Arguments

A few more details on the oral arguments for the benefit of our readers:

The State's case, presented by Carter Phillips, started with strong statements regarding the receiver, and how his appointment and deeds were remedy enough. Phillips caught much flak on this from Justices Ginsburg and Sotomayor, who pointed out that the receiver himself declared several times that his efforts at improvement would be futile without a decrease in population.

Justice Sotomayor left little doubt as to where she stood on the state's failure to provide care (and generated some rudeness from Justice Scalia):

JUSTICE SOTOMAYOR: So when are you going to get to that? When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?
Your Honor.
JUSTICE SCALIA: Don't be rhetorical.
MR. PHILLIPS: I'll do my best. Thank you, your Honor.

Justice Kennedy, who as many commentators said is key in this case, seemed to accept the idea that overcrowding is the cause for the medical crisis.

JUSTICE KENNEDY: Overcrowding is the principal -- overcrowding is the principal cause, as experts have testified, and it's now time for a remedy. The Court can't -- has to at some point focus on the remedy, and that's what it did, and that it seems to me was a perfectly reasonable decision.

And elsewhere:

But I think it means that overcrowding must not be ordered unless that is the only efficacious remedy in -- in a permissible period of time. And it seems to me there is massive expert testimony to support that proposition on the part of the prisoners.

Justice Breyer also seemed to be sympathetic to the appellees, from a pragmatic standpoint:

I mean, I read the newspaper. It doesn't seem to me California has been voting a lot of money for new programs. The -- the -- what is it -- what is it specifically that would happen that would cure this problem were we to say -- I mean, a big human rights problem -- what would we say -- what would happen if we were to say, no, this panel's wrong? What would happen that would cure the problem?

Justice Kagan highlighted the main problems with judicial review - to some extent providing support for the original three-judge panel and its dedication:

JUSTICE KAGAN: Mr. Phillips, my trouble listening to you is that it seems as though you are asking us to re-find facts. You know, you have these judges who have been involved in these cases since the beginning, for 20 years in the Plata case, who thought we've done everything we can, the receiver has done everything he can; this just isn't going anywhere and it won't go anywhere until we can address this root cause of the problem. And that was the view of the judges who had been closest to the cases from the beginning and the view of the three-judge court generally. So how can we reach a result essentially without, you know, re-finding the facts that they have been dealing with for 20 years?

Phillips: there have been big developments, but the state itself limited discovery from 2008 onward.

Phillips also distinguished the medical from the mental health problems. The Coleman problem, as he stated, was worse; and he said,

if the Court were to conclude ultimately that Coleman ought to go back for another analysis based on the problems there, I could understand that. And it would be a very different prisoner release order under those circumstances because then you would have to take out all of the evidence with respect to Plata and let that play out.

Questions to Don Specter, arguing for the appellees, focused on the fact that the "cutoff date" was 2008 and things may have vastly improved since then, as well as on the percentage of reduction.

By contrast to Justice Kennedy, Justice Alito expressed his opinion that there was a disconnect between overcrowding and medical care.

You could have a prison where the -- the cells themselves are crowded, and yet there are other facilities available for medical care and plenty of staff to attend to those things. So what's the connection?

He then pressed Specter to reflect on the fact that the released inmates are not necessarily of the class that is arguably compromised. Specter explained that population reduction could be done by a variety of ways, conceding that transferring inmates out of state is one possible way. (not talking about overcrowding in itself as making the operations difficult).

Justice Roberts seemed to lean toward a 145% capacity solution and pressed

The other issue on which Specter had to answer questions had to do with the public safety angle. Note the Justices' shock at the California recidivism rates. They must truly be disconnected from the world they live in. I found this exchange particularly illuminating, and to be honest and personal, quite distressing.

JUSTICE ALITO: In general, what is the recidivism rate?
MR. SPECTER: Well, overall, the risk is around 70 percent, but for low-risk prisoners the risk is 17 percent who reviolate.
CHIEF JUSTICE ROBERTS: I'm sorry. I couldn't -- what was the first -­
MR. SPECTER: The first number when you take all parolees, all together, it's 70 percent.
MR. SPECTER: 7-0, because -- within three years. That's what -- the situation we have now, and that's the situation that the governor, the secretary,and the court described as a failure. With parole reform you could reduce that number in many ways, and the Court described how you could do that. But the lowest -
JUSTICE ALITO: What is the lowest? It's 17 percent.
MR. SPECTER: 17 percent, and California has a risk assessment instrument which the Court found - which the Court found could be used to make sure that what happened in Philadelphia doesn't happen again. If I understand it -­
JUSTICE ALITO: Well, I understood that of the low-risk -- if only the low-risk people are released, around 3,000 of them are going to commit another crime.
MR. SPECTER: They -- but they don't have to be released, first off. I want to make sure I emphasize the point that this is a crowding reduction measure. You don't have to release 30,000 prisoners.
JUSTICE ALITO: They don't have to be released if you can build enough cells -­
MR. SPECTER: Or you can divert, or you can improve the parole system so that parole violators don't commit so many crimes. If you offer rehabilitation alternatives, if you provide a number of diversion into the community, there are a number of options short of releasing prisoners. And the 70 percent figure concludes -­
JUSTICE ALITO: The 17 percent figure goes exactly to my concern. This is going to have -- it seems likely this is going to have an effect on public safety. And the experts can testify to whatever they want, but you know what? If this order goes into effect, we will see. We will see, and the people of California will see. Are there more crimes or are there not?
MR. SPECTER: Well, if it's based on the experience in other jurisdictions, the court found we wouldn't. And I wanted to say -- to clarify one point, Your Honor: The 70 percent figure includes -- doesn't always include crimes. It includes lots of technical parole violators. People who have missed their appointments, for example. So it's not as grave as some of the figures that are informed by the other side.

In rebuttal, Justice Kagan pressured phillips on whether the state could safely reduce population within five years.

My impression, overall, is that many of the Justices already have their minds made up, and that the oral arguments might have done little beyond furnishing them with ammunition for writing the decision. The big mystery, as Rory pointed out yesterday, is whether Justice Kennedy, who seems to see the causal connection between overcrowding and abysmal health care, will also approve of the remedy.