Triggers and Vulnerabilities: Why Prisons Are Uniquely Vulnerable to COVID-19 and What To Do About It

When I reviewed the causes and effects of the 2008 Financial Crisis for Cheap on Crime, I relied partly on a series of lectures given by Ben Bernarke, Director of the Federal Reserve. As he explained it, the Great Recession was a case of "triggers and vulnerabilities:"

The triggers of the crisis were the particular events or factors that touched off the events of 2007-09--the proximate causes, if you will. Developments in the market for subprime mortgages were a prominent example of a trigger of the crisis. In contrast, the vulnerabilities were the structural, and more fundamental, weaknesses in the financial system and in regulation and supervision that served to propagate and amplify the initial shocks. In the private sector, some key vulnerabilities included high levels of leverage; excessive dependence on unstable short-term funding; deficiencies in risk management in major financial firms; and the use of exotic and nontransparent financial instruments that obscured concentrations of risk. In the public sector, my list of vulnerabilities would include gaps in the regulatory structure that allowed systemically important firms and markets to escape comprehensive supervision; failures of supervisors to effectively apply some existing authorities; and insufficient attention to threats to the stability of the system as a whole (that is, the lack of a macroprudential focus in regulation and supervision).

The distinction between triggers and vulnerabilities is helpful in that it allows us to better understand why the factors that are often cited as touching off the crisis seem disproportionate to the magnitude of the financial and economic reaction. 

Bernarke's distinction between triggers and vulnerabilities is useful to the current crisis as well. Today we learned that a man behind bars in Chino is the first acknowledged COVID-19 casualty in CA prisons, and that 59 of his fellow prisoners have tested positive. As of today, we've also seen the first positive test in the San Francisco jail system. It's all going to mushroom from here. 

Several of my colleagues (see especially here and here) are making the important argument that the spread of COVID-19 in prisons is a very big deal, to the point that not addressing it properly could negate much of our social distancing effort outside the prison walls. But what is it about prisons that make them such an effective Petri dish for the virus to spread?

Think of COVID-19 as the trigger, and think of the disappointing--even shocking--reluctance of federal courts to do the right thing as another trigger. These triggers operate against a background of serious vulnerabilities, some of which preceded the decision in Brown v. Plata and some of which emerged from it.

First, what gets called "health care" in CA prisons really isn't. Litigation about it took a decade and a half to yield the three-judge order to decarcerate, and until then, horrific things were happening on a daily basis. Despite ridiculous expenses, every six days, a CA inmate would die from a completely preventable, iatrogenic disease. The cases that spearheaded Plata, including the story of Plata himself, were emblematic of this (see Jonathan Simon's retelling of these stories here.) 

It is important to think again of what it was, exactly, about overcrowding that made basic healthcare impossible to provide. First, medical personnel were, and still are, difficult to hire and retain. California has gigantic prisons in remote, rural locations, and it is difficult to attract people willing to work healthcare in these locations. Housing, clothing, and feeding so many people in close proximity meant not only that violence and contagion were more likely to occur, but also that the quality of these things--diet, especially, comes to mind--was extremely low. Every time someone had to be taken to receive care, the prison would have to be in lockdown, which meant more delays and big administrative hassles. The administration and pharmacies were total chaos. People would wait for their appointments in tiny cages for hours without access to bathrooms. People's medical complaints were regularly trivialized and disbelieved--not, usually, out of sadism, but out of fatigue and indifference in the face of so much need. Moreover, the scandalously long sentences that a fourth of our prison population serves mean that people age faster and get sick, and make the older population an expensive contingent in constant need of more healthcare and more expense.

The outcome of the case--reducing the prison population from 200% capacity to 137.5% capacity--was mixed in terms of the healthcare outcomes. But it also yielded four important side-effects. First, it exposed the inadequacy of county jails for dealing with a population in need of both acute and chronic healthcare. Second, it created big gaps in service between counties that relied more and less on incarceration. Third, because the standard was the same for the entire prison system and relied on design capacity (rather than, following the European model, on calculating minimum meterage per inmate), it yielded some prisons in which overcrowding was greatly alleviated alongside others in which the overcrowding situation was either the same as, or worse than, before Plata. And fourth, because of the way we dealt with Plata, we became habituated to resolving overcrowding with cosmetic releases of politically palatable populations (i.e. the "non-non-nons") rather than addressing a full fourth of our prison population--people doing long sentences for violent crime and getting old and sick behind bars.

So, now we face this trigger--COVID-19--with the following vulnerabilities:

1. We still have a bloated system, because the Court used the wrong standard to create minimal space between people for their immediate welfare.
2. We're now dealing with lots of small systems that answer to lots of different masters and have different priorities and ideologies.
3. We already have a lousy healthcare system behind bars, which could not be fixed even with the release of more than 30,000 people, and that was *without* a pandemic going on.
4. We have gotten used to doing a "health vs. public safety" equation that doesn't make sense and biases us against people who committed violent crimes at the wrong time and for the wrong reasons. In fact, we are so married to the idea that we can't second-guess mass incarceration, that the newest preposterous suggestion has been to protect people from COVID-19 by... introducing private prisons into the mix. 

Stack these vulnerabilities against the trigger, and what you have is an enormous human rights crisis waiting to happen in the next few weeks. It's already started. 

And if you wonder whether this can be contained in prisons, well, it can't. Guards don't live in prison, obviously; prison staff has already been diagnosed positive in multiple prisons. Stay at home all your like, wear your home-sewn masks all you wish; we have dozens of disease incubators in the state and apparently very little political will do do anything to eliminate them.

What should we do about it? Follow the excellent roadmap that Margo Schlanger and Sonja Starr charted here, primarily point four: get over your icky political fears about public backlash and let older, sicker people out--even if they committed a violent crime twenty or forty years ago. If you are a governor or a prison warden with some authority to release people, do as Sharon Dolovich implores in this piece and use your executive power to save lives.  

Cause of Death

Source here.

Today I came across this sobering table, which struck me as important not only for the obvious reasons. You'll note that homicide is nowhere in the top-ten list of causes of death for Americans. If you look at the CDC reports for causes of death in 2017 based on vital statistics, you'll see homicide ranked anywhere between #106-108 (interestingly, "legal intervention" is ranked 109.)

Yet, to browse through the list of Netflix and Prime Video shows we are offered to numb our souls from the pandemic experience, you could be mistaken to believe that a much higher proportion of Americans succumb to homicide. And to me, this suggests that the current debate about who to release on the basis of "public safety" is guided more by folk devils than by real concerns.

Assuming that you include people in prison in the overall category of human beings whose lives and health matter (if you don't, thank you for reading this far--we probably don't speak the same language and I hold no hope of convincing you, nor should you hope to convince me), it should be obvious that COVID-19 poses a much greater risk to public safety, broadly defined, than homicide.

Now, releasing people convicted of violent crimes is not really a trade-off between COVID-19 deaths and homicide deaths, given that the folks most at risk healthwise, as I explained yesterday, are old and sick and also happen to have committed violent crime decades ago.

So, if there is reluctance to release the folks colloquially known as "violent offenders"--many of whom would barely have a technical write-up or two for the last two or three decades--it's not really coming from concerns for public safety, is it? It's coming from concerns for palatability and an idea that this is the right time for abstract ideas for retribution.

If I put the state's resistance to do the right thing here together with the mismanagement of homeless populations, it almost seems like, at our time of need, we've simply decided that the bottom rung or two in the American class ladder don't matter. And they do, which makes my heart hurt.

In Tricycle Magazine, Chenxing Han writes so beautifully:

The Buddha is often likened to a physician. He diagnosed the unsatisfactoriness of the human condition and revealed its cause. The Buddha was no doomsayer, however: his teachings were treatments that promised a cure, an ultimate freedom from that which ails us. SARS-CoV-2 is a truth-teaching virus. It has revealed to me a deep well of fear: of my loved ones dying, of dying myself (or, during more mundane moments, of running out of brown rice). More incisively, it has revealed society’s disturbing inequities and gross iniquities, forcing us to confront the truth of how the most vulnerable among us—the poor, the disabled, the unhoused, and the otherwise marginalized—bear the brunt of this crisis.   

What this cruel teacher will teach our state about caring for its most vulnerable wards remains to be seen--hopefully before it is too late.

Yes, We *Have* to Release People Originally Convicted of Violent Crime: The Last Hearing of Susan Atkins

Susan Atkins wheeled into her last parole hearing in 2009, accompanied by her husband,
James Whitehouse. Photo credit: Ben Margot for the Associated Press.

Latest news on prisoner release: A couple of days ago, the three-judge Plata panel denied relief for procedural reasons (TL;DR "we are not the appropriate forum for this - go to the original courts.") As good people are scrambling to put together writs for those courts, I wanted to address something that I *thought* would be obvious, but apparently isn't.

In the aftermath of putting up my petition to release prisoners, I've been hearing commentary that we should limit the releases to "nonviolent criminals." I use the quotation marks because the definitions of what is and is not "violent" and "nonviolent" is not as clear as people think, and because someone's crime of commitment is not necessarily an indication of their violent tendencies at present, nor does it predict their recidivism.

In Cheap on Crime and elsewhere I described the post-recession efforts to shrink prison population, which targeted only nonviolent people; reformers understandably thought that such reforms would be more palatable to the public. The problem with this kind of policy, though--as this excellent Prison Policy report explains--is that these kind of reforms ignore the majority of people in prison, who happen to be doing time for violent crime.

In addition to this, if we are looking at releases to address a public health crisis, we have to release the people who are vulnerable to the public health threat. And who, in prison, is most vulnerable? Aging and infirm prisoners.

The math is simple. Out of the prison population, folks who were sentenced for a violent crime are the ones most likely to be (1) aging and (2) infirm. Aging, because the sentences are much longer; and infirm, because spending decades in a hotbed of contagion, with poor food and poor exercise options, does not improve one's health. We know that a considerable portion of the health crisis in California prison is iatrogenic; not so long ago, Supreme Court Justices were horrified to learn that a person was dying behind bars every six days fo a preventable disease. So, a person who has spent decades in prison is more likely to be vulnerable to health threats. Such a person is also more likely to be older (by virtue of having been in prison for 20, 30, 40 years!) and therefore far less of a public risk of reoffending than a younger person who's been inside for a few months for some nonviolent offense.

So, if there's any reluctance to release people who are (1) old, (2) sick, and (3) more likely to contract a serious form of disease that will (4) cause more suffering and (5) cost more money, it's time to look in the mirror and ask ourselves - why?

Is it really because of a mission to protect the public? Because old, sick people are not a safety risk to the public.

So, is it perhaps because we think of these releases not as an essential public health action, but as some kind of "reward" for people who we think are "worthy" or "deserving"?

The correctional system's ignorance of old age and sickness is a topic I know something about. In Chapter 6 of my book Yesterday's Monsters I describe the 2009 parole hearing for Susan Atkins, one of the Manson Family members who participated in the murder of Sharon Tate and her friends in 1969. Forty years later, in her early sixties and ravaged by an inoperable brain tumor, Atkins--a devout Christian with a clean disciplinary record for decades--was wheeled into her hearing on a gurney. At her side was her 17-year husband, lawyer James Whitehouse, who represented her in the hope that she be allowed to spend the last few months of her life by his side.

The Parole Commissioners' treatment of the case was shockingly obtuse. They started by offering the barely conscious Atkins a hearing aid (as if she could hear them), analyzed old psychological reports from her file, and addressed her educational and rehabilitation "prospect." They even mocked her husband for being able to afford palliative care for his wife. Incensed by this facetiousness, Whitehouse exploded:

For the record, she’s lying in her gurney here. She is paralyzed over 85 percent of her body. She can move her head up and down. She can move it to the side. She used to have partial use of her left arm, partial limited use, meaning she can’t wave to you. She can’t give you a thumbs up. She no longer can point at you, I believe. She can’t snap her fingers. And this is the evidence. . . . We haven’t been able to get her in a wheelchair for well over a year. Permanent speech impairment—“does not communicate, speaking or writing”—complex medical needs, assistance needed eating, bathing, grooming, moving, cleaning, permanent speech and comprehension impairment due to underlying medical problems. . . . That’s the only evidence regarding her medical condition. And all those things have to do with what we are supposed to be looking for the future of behavior. In light of that, is there anything that her commitment offense has to do that’s probative to what she’s going to be doing in the future as far as you know? That’s a question.

The Parole Board refused to release Atkins, arguing that "these Manson killings and the rampage that went on is almost iconic and they have the ability to influence many other people, and she still has that ability as part of that group." Atkins, who had no ability to do anything at all, died alone in prison a few months later.

If this outcome feels okay to you, ask yourself: what's it to you? Do you have an idea of deservedness, of a price to pay, of just deserts? Do you think your idea of an appropriate time spent behind bars bows to no one, to nothing, not even to old age, sickness, and death?

Do you feel comfortable sentencing thousands of California prisoners to death because of these ideas of deservedness, or appropriate retribution, that you have? Will these ideas give you comfort when CDCR has to reckon with thousands of preventable deaths of human beings, just like you?

And if your answer is, "well, they didn't consider that when they killed their victims, right?", I have news for you: The victims are not coming back. They've been gone for decades. It's horrible, and tragic, and we can't fix that. Certainly not with another tragedy.

Get in touch with our common humanity. Write to the Governor. Sign my petition. Do something.

Gov. Newsom, Please Release More Prisoners to Prevent CDCR from Becoming a Mass Grave

Dear Gov. Newsom,

Many thanks for your tireless work on behalf of Californians in their hour of need. I can only imagine the multiple emergencies on your agenda and the many proverbial fires you must put out to "flatten the curve" and give our emergency services a fighting chance against the COVID-19 pandemic.

I appreciated learning about your recent commutations, as well as about the plans you have put in place to release 3,500 prisoners from CDCR custody. It is a good start, but, unfortunately, it will likely be merely a drop in the bucket.

Less than a decade ago, the Supreme Court found healthcare conditions at CDCR so appalling that, every six days, a person behind bars died from a preventable, iatrogenic disease. The Court attributed this massive failure to deliver anything that could be even remotely called "health care" to overcrowding in prisons, and supported the federal three-judge panel recommendation to release approximately 30,000 prisoners. That has somewhat improved the situation, but even with massive efforts toward a turnaround on the part of the federal receiver, we are still seeing woefully deficient healthcare--interminable lines and wait times, people treated in cages in which they have to wait for hours, "group therapy" consisting of a semicircle of cages.

And that's without a pandemic going on.

Gov. Newsom, our prisons are a Petri dish for contagion and disease. It is impossible to provide minimal health care to this many people with a highly contagious virus on the loose.

The Public Policy Institute of California, relying on CDCR statistics, reports that 23% of California inmates are 50 or older. Aging prisoners may be contributing to California’s prison health care costs—now highest in the nation. The state spent $19,796 per inmate on health care in fiscal year 2015, according to the Pew Charitable Trusts. These costs were more than three times the national average and 25% more than in 2010. Moreover, many California prisoners serve extremely long sentences: Approximately 33,000 inmates are serving sentences of life or life without parole. Another 7,000 are “third strikers,” fewer than 100 of whom are released annually after serving about 17 years. Fewer than 1,000 of these inmates are released every year, typically after spending two or more decades behind bars.

Isn't decades in prison enough? How much retribution or deterrence do we still need for people serving sentences of 30, 40, or 50 years, that we must keep them behind bars for longer in the face of a lethal pandemic?

Robust research about aging in prison confirms that people age much faster behind bars than they do on the outside, and they are much more vulnerable to disease--partly because of confinement conditions and partly due to faulty health care.

The scale of releases we should contemplate is in the tens of thousands, not in the thousands. If you do not act now, within a few short weeks, the CDCR will become a mass grave.

Please, don't let the current litigation be the only push to do the right thing. You have done the right thing so many times--as Mayor of San Francisco and as our Governor. The prisoners are Californians, too. They can't vote from prison, but they are your constituents and you must consider their welfare.

Please, act now, before thousands of lives are lost.

Readers, please join this open letter by signing my Change.org petition.

CA Divests from Private Prisons: Realistic? A Good Thing?

Hailed, and partly for good reasons, as a positive development, the Guardian today announces:

The private prison industry is set to be upended after California lawmakers passed a bill on Wednesday banning the facilities from operating in the state. The move will probably also close down four large immigration detention facilities that can hold up to 4,500 people at a time. 

The legislation is being hailed as a major victory for criminal justice reform because it removes the profit motive from incarceration. It also marks a dramatic departure from California’s past, when private prisons were relied on to reduce crowding in state-run facilities. 

Private prison companies used to view California as one of their fastest-growing markets. As recently as 2016, private prisons locked up approximately 7,000 Californians, about 5% of the state’s total prison population, according to the federal Bureau of Justice Statistics. But in recent years, thousands of inmates have been transferred from private prisons back into state-run facilities. As of June, private prisons held 2,222 of California’s total inmate population.

What does this mean, exactly? Keep in mind that there are no actual private prisons on California soil--and yet, California is one of the private prison industry's best clients, as it houses thousands of its inmates in Arizona and other states that have a flourishing array of private facilities (mostly owned by CoreCivic, formerly the CCA, and the Geo Group.) The bill, AB 32, changes this relationship by barring the state from contracting with private providers outside the state. This includes, importantly, the use of private prisons for holding undocumented immigrants: “Detention facility” is defined in the bill as "any facility in which persons are incarcerated or otherwise involuntarily confined for purposes of execution of a punitive sentence imposed by a court or detention pending a trial, hearing, or other judicial or administrative proceeding."

Is it realistic for CA legislature to divest from private prisons? It is, to the extent that "private prison" is, as defined in the bill, "a detention facility that is operated by a private, nongovernmental, for-profit entity, and operating pursuant to a contract or agreement with a governmental entity." But what about the many functions provided inside so-called governmental prisons in CA through private subcontractors? This interesting magazine article about prison food in Chino depicts what is an atypically good reality; prison food is hard to provide without recurring to private contracting, and is awful whether provided through public or private means. Similarly, the much-maligned CA prison healthcare system, which has been for years in the hands of a federal receiver, extensively contracts with private health care providers. This stuff is not the alternative to a public prison economy: it *is* the economy. How do we make sure that prisoners have beds to sleep on, doctors and nurses to take care of them, and two or three (meager, yucky) meals a day? In the neoliberal capitalist world, there aren't a lot of options out there. So divesting from private prisons completely is not a particularly realistic premise, nor is it particularly desirable (private providers are not categorically worse for the inmates than public providers, and everyone is motivated by greed, as I explain here.) It does have one important, unqualified positive effect: we are not building new public prisons, and we are not housing people in private prisons anymore, so we should incarcerate less people, period. That in itself will be a success.

But there's something else I find somewhat fishy here, and that's the supposed divestment of CA from private detention of immigrants. The picture here is much more complicated, because undocumented immigrants are primarily the responsibility of DHS and ICE, the latter of which incarcerates and prepares people for removal as the federal arm of law enforcement (Richard Boswell explains this separation of powers very well here.) What the feds do is contract with states such as CA to house undocumented immigrants, over whom Congress has plenary power and ICE has enforcement prerogatives. Some CA cities house immigrants in their public jails; others contract with private subcontractor providers to meet ICE's demand. CA's complicity with awful federal policies is not so much in the fact that they deal with private contractors; its in the awful conditions in both private and public facilities and in poorly supervising the conditions in these places. To be fair, it's not all CA's fault - their inability to supervise more effectively stems largely from the general chaos in immigration detention and from hurdles placed by ICE. But I'm unclear on whether these undocumented minors are worse off in private facilities than they are in post-Plata public jails, which do a notoriously poor job distinguishing between immigrants and "real criminals" (whatever the heck that means.)

In short, before dancing a jig about divestment from the public industry, let's ask ourselves some hard questions about the market itself and how it incentivizes public and private institutions alike to do a poor job locking people up (including people whose only supposed "crime" is saving themselves and their families from the conditions in Central America.)

CDCR Eliminates Inmate Copayments for Health Care

Today CDCR announced that, effective March 1, they will eliminate inmate copayments for healthcare, because an internal analysis reveals that copayments "have minimal fiscal benefit and are not aligned with patient care." 

Specifically, copayments may hinder patients from seeking care for health issues which, without early detection and intervention, may become exacerbated, resulting in decreased treatment efficacy and/or increased treatment cost. The Department’s health care delivery system, known as the Complete Care Model, is based on a preventative and comprehensive approach to patient care. Early detection and preventative health care aligns with most public and private health care organizations and can prove to be fiscally prudent.

The first thing that occurred to me upon reading this was how many people are probably unaware that incarcerated patients make copayments, just like patients on the outside. How did that come about? CDCR provides background:

In 1994, Section 5007.5(a) was added to the Penal Code (PC) to read: CDCR is authorized to charge a fee in the amount of five dollars ($5) for each inmate-initiated medical or dental visit of an inmate confined in the state prison, which will be charged to the prison account of the inmate. If the inmate has no money in his or her personal account, there shall be   no charge for the medical or dental visit. An inmate shall not be denied medical care because of a lack of funds in his or her prison account. The medical provider may waive the fee for any inmate-initiated treatment and shall waive the fee in any life-threatening or emergency situation, defined as those health services required for alleviation of severe pain or for immediate diagnosis and treatment of unforeseen medical conditions that if not immediately diagnosed and treated could lead to disability or death. Follow-up medical visits at the direction of the medical staff shall not be charged to the inmate.

This section aligns with other savings trends I reviewed in Cheap on Crime. The most egregious one is, of course, the pay-to-stay jail, but less egregious examples abound and participation in health care costs is one of them. 

What I find interesting is that the same savings rationale used for imposing the costs in the first place is now being used for getting rid of them--copayments are not vile and unjust; rather, the problem is that they don't pay off, because they deter people from seeking health care and thus make their condition worse and therefore more expensive.

The elephant in the room, of course, is the question of quality. Health care in California prisons is becoming more and more expensive and we are once again taking heat from the Ninth Circuit for the disappointing quality of mental health care in prison. But if it's not getting better, it is at least being offered for free.

Heat Wave in Corcoran: Holding Hostages, Talking Consumers

A couple of weeks ago, a friend sent me an email about a serious heat wave in Corcoran prison. According to inmates' family members, the temperatures in the cells were unbearable, and many people needed urgent medical attention. Some of us participated in a "phone zap" to the warden's office, and the mother of one of the inmates received a communication from her son, saying, "I don't know what you did, but they finally came to check the temperature in my cell."

This incident is a grim reminder of the unfortunate location of prisons in California in the central valley, which makes them vulnerable to ecological calamity. In the last few years, California towns have been ravaged by fires and floods, and we all rushed to help. But ordinary people, even when threatened by environmental disasters, have a choice: they can pick up a few personal belongings and leave. They can call and demand help. They can sometimes stay with friends. People who are locked up and at the mercy of the state cannot: they are at the mercy of the state. Moreover, inmates and their families are in a bind, as this thread on PrisonTalk shows. People are concerned to speak up, even when their loved ones drip sweat on the letters they send out and can't concentrate and get hospitalized, because they fear retaliation.

In Cheap on Crime I talk about the shift from perceiving inmates as wards of the state to regarding them as economic burdens or consumers of services. The problem with the "consumer" language is that consumption is normally assumed to be voluntary. When someone pays for a room at a hotel, they do so by choice. When we demand that people pay for sleeping in a jail cell, a choice they did not make, they are not consumers. They are economic hostages.

The state has essentially put its inmates in an impossible situation: On one hand, nothing about their conditions of life is voluntary. On the other hand, all this talk of paying for "services rendered" creates a false equation between their situation and that of and people on the outside. Which means that, when something like the heat wave in Corcoran happens, the quintessential consumer weapon--boycott and complaint--doesn't work nearly as well as it works on the outside. Put fans in the room, or else? or else, what? The families have no negotiation leverage. We made the phone calls because the situation was untenable, and we knew we were running a risk.

This is why inmate families cannot, and should not, carry all the burden in these situations: people from the outside who have clout and influence must get involved. This is hard, because despite everything that has happened in the last few years, prisons are still like the "other city" in China Mieville's The City and the City: it's all around us, and yet we don't know it's there. The only coverage I found of the horrible heat wave and its implications was on prison family chatrooms--no one in the mainstream media picked it up. I've been working on prison issues in California for more than ten years, and even I would not have known about it had a friend not forwarded me the email from the families. What is it going to take for us to say--as a united front, and regardless of political opinion or criminal justice worldview--that, no matter what bad thing someone might have done twenty-five years ago, we cannot keep a human being in a cage in a 114-degree-heat without providing some form of air conditioning or ventilation? What on earth would be "soft on crime" about saying that?

Getting the prison to care about the heat wave was an important first step. But we absolutely must do better.

The Ninth Circuit: The Feds are Responsible for the Health of Inmates in Privately-Managed Prison

Petitioner Richard Nuwintore with his attorneys,
Ian Wallach and Jason Feldman, after their Ninth Circuit victory

Today the Ninth Circuit decided Edison and Nuwintore v. U.S.--two cases involving the government's responsibility for the valley fever epidemic at Taft, a federal prison located in Kern County. Taft is owned by the U.S. government but operated by the GEO Group, the second largest private prison company in the country.

Gregory Edison and Richard Nuwintore were sent to Taft without warning about the dangers of valley fever. The disease, also known as coccidiodomycosis, has a severe variation that disproportionally manifests in African American patients. Both Edison and Nuwintore fell ill; Nuwintore, who has been released, is now treated under Obamacare, and Edison is being released soon and will also receive care under Obamacare. The condition is chronic and can make people too sick to work.

Is the United States responsible for their illness? The federal government tried to argue that, under the independent contractor exception to the Federal Tort Claims Act, it cannot be held responsible for the actions of a private contractor. Today, the Ninth Circuit found that, due to the government's special responsibility for the plaintiffs (as their jailer), the exception does not apply and the government is liable. I had the great pleasure to correspond with Ian Wallach of Feldman and Wallach, who told me a bit more about the case:

Walk me through the ownership/operation structure of Taft. I understand that Taft is the only federal facility which is owned by the Government and operated by a private contractor. Why is this arrangement so rare?

Taft is presently owned by the USA, who contracted with Management and Training Corporation back in 2007 to operate the facility.  I don’t know why the arrangement is so rare.  It did create some novel issues with the application of the independent contractor exception.  Colleagues have wondered if it is because of the valley fever issue.  It may sound like a conspiracy theory, but there are some legitimate concerns.  The USA recognized the cocci (another word for valley fever, short for coccidiodomycosis) problem potentially in 1999, and knew some would get ill, and perhaps die.  And the USA has less liability if someone else is operating the facility, even though the USA sends people there.  And the facility is, for unknown reasons, primarily a pre-deportation facility.  That means that people facing low terms, or people about to be deported, are held there.  If they get sick, and are deported, there is not much practical legal recourse available.  Worse than that — there isn’t much access to medical care.  This is why we know of only one fatality from valley fever at Taft, but there may be many more.

Given Taft's unique status as government-owned and privately operated, would the government's responsibility in this case extend to private prisons in which the facility is both owned and operated by private contractors? How much government involvement should create responsibility and prevail over the independent contractor exception?

Sure.  As to the failure to warn claim.  And the negligent implementation of policy claim — if the USA developed and implemented policy.  And if the USA reserved control over any aspect of the facility — as it did here with structural changes.

The test, as adopted by the Court, is “is there an independent basis for liability?”

If yes, then the claim should stand. As to your second questions, people have brought challenges, in other contexts, to the independent contractor exception, asserting that the USA asserted so much control that it didn’t really delegate the duties at issue.  I have some charts with summaries of cases on this issue I prepared for use in the oral argument (which can be seen here).  I should clean them up before circulating them, and today has been busy, but let me know if I should send them along.  The standard was too high for us to meet, so we didn’t make that argument on appeal (we did below).  And we had some independent bases for liability, which we felt was the right way to go.

Should we be concerned about a potential incentive for the federal government to distance itself from inmates and shift any potential liabilities on the shoulders of private contractors?

Absolutely.  And that may be what happened here.  Plus privatization of prisons is messy.  I understand that there is a private prison in Ohio that successfully petitioned to control parole hearings (and even here, parol boards can consider reports by an inmate’s prison in determining parole).  And these corporations have a financial incentive for parole to be denied.  That’s flesh-peddling.

This case involved a federal privatized facility, but as we know, state facilities, which are public, are often public only by name, and much of the health care in California state prisons is privatized. Does today's decision shed any light on questions of liability in this context?

Only to the extent that if you can identify a breach of a separate and distinct duty, and get around any immunity, then your claim should proceed. Today’s case was about federal governmental immunity. This would not apply to private actors (although their attorneys have litigated that it does).

And California has separate immunities.  Which are awful.  In the class action we have, Jackson v. Brown, where 800 inmates need life-long care, and where 40 inmates died, all as a result of infections at Avenal and Pleasant Valley state prisons, the District Court dismissed the case arguing that qualified immunity protected everyone from 8th Amendment claims, because even if the conduct was “cruel and unusual”, there was no “clearly identified right” at issue.  We think it was the right to be housed in a safe facility, but the court claimed it was the right to be in a facility without an excessive amount of valley fever spores, determine by societal standards.  That is on appeal.

There is a great case from the Cal. Supreme Court — Giraldo v. Cal. Dep’t of Corrs. & Rehab., 85 Cal. Rptr. 3d 371 (2008), which we relied on and the 9th Circuit expanded upon in today’s decision, that spoke of the Jailer’s duty to inmates, and set forth a special relationship.  It’s a great read and a positive expression of the law.

As the sad facts in this case remind us, individuals of certain ethnicities are more prone to certain medical conditions; this is true for valley fever, and also for other diseases and chronic conditions. Would this create an incentive for private prison contractors to refuse inmates of certain ethnicities, because their healthcare would be more complicated or costly? And should we resist such bargaining with regulation?

I am not aware of any vehicle where this could occur.  A bidding process is set up to operate a facility, and the bidders know who will be housed there and what is apparently needed, and can request to transfer people away, but no one has to listen to that request.  In three other valley fever cases we have, the contractor argued that they had no say in who they accepted, and the injury was the delegation.  These cases (People v. Hammond, Sutton, and Aluya) were also dismissed on summary judgment — because the court bought it.  This is on appeal too (and you are beginning to see how Eastern District court respond to claims by inmates about valley fever.  Add that there are no attorney’s fees provisions, and these are exhausting mid-level tort cases, so few lawyers fight them.  Which is why these dangerous practices continue, as there is very little accountability).  Regulation is a great idea — but in the interim, I’ll keep suing.

Finally, a big part of today's decision involved the government's duty to warn inmates about the medical dangers involved in serving their prison term at Taft. But if inmates have no choice on where they are incarcerated, what lends this duty legal value?

The failure to warn deprived these individuals of four avenues of redress.  Had they been warned, they could have done the following:

• Seek an administrative remedy to be housed elsewhere, before ever arriving at Taft.
• Seek an administrative remedy the day they arrive, seeking transfer.  Most people are infected within the first few months of arrival, but if they are lucky, they could be transferred out before getting infected.
• Change their lifestyle while there. This is largely a camp facility with tons of leisure time.  Which, if warned, would be better spent inside. 
• And they can choose not to take certain jobs (like those that involve digging or gardening or any contact with soil).  They can wear N95 filtration masks if they wish.  

And these changes may greatly decrease their exposure.

The Ninth Circuit decision sheds an interesting light on the malleability of the public-private divide in the context of prison privatization. Congratulations to the plaintiffs and their attorneys, and wishes of good health to everyone impacted by the epidemic.

Good News on Health Care for Transgender Inmates

Today a settlement was reached in Quine v. Brown, a case involving housing and healthcare for transgender inmates. The Transgender Law Center reports:

Today, the California Department of Corrections and Rehabilitation reached a groundbreaking settlement with Shiloh Quine, a transgender woman held in a men’s prison, to move her to a women’s facility and provide medical care, including gender-affirming surgery, determined necessary by several medical and mental health professionals. In the settlement, the state also agreed to change its policies so that transgender prisoners can access clothing and commissary items consistent with their gender identity. The state also affirmed that it is revising its policies regarding transgender inmates’ access to medically necessary treatment for gender dysphoria, including surgery.

“This historic settlement is a tremendous victory, not just for Shiloh and transgender people in prison, but for all transgender people who have ever been denied medical care or basic recognition of our humanity just because of who we are,” said Kris Hayashi, Executive Director of Transgender Law Center, which represented Shiloh along with pro bono counsel from the law firm of Morgan, Lewis & Bockius LLP. “After years of unnecessary suffering, Shiloh will finally get the care she desperately needs – and transgender people nationwide will hear a state government affirm that our identities and medical needs are as valid as anyone else’s.”

Bringing to Light: Invisible Abuses in Prison

Today I attended the Hastings Women's Law Journal symposium Bringing to Light: Invisible Abuses against Women and LGBT People in Prison. The symposium had three panels: reproduction, family, and specific issues concerning trans inmates.

The main theme that stood out for me was the question of choice and alternatives, and especially the inability to offer good alternatives in the context of a prison regime. Surely we can do better than the quality of health care that is offered to pregnant women, but that requires a lot of thought and working within difficult constraints. The first panel was held, of course, in the shadow of the horrifying discoveries about sterilizations in California prisons, and many of the panelists referenced that incident, as well as other horrors involving the management of pregnancy and birth in prison. The birth process itself and the immediate separation from the child are obvious problems. But what about, for example, the practice in Riverside of having pregnant women wear neon orange bracelets? The intent is probably good--to ensure that they are handled with extra care and safety--but what about a woman who wants to terminate her pregnancy and does not necessarily wish for the pregnancy to be common knowledge?

The same issue reverberated in the last panel, the one about trans inmates. The options for classification are fairly limited: a trans woman, for example, could be exposed to atrocious forms of abuse on the part of inmates and guards if placed in a men's prison, but would also be ostracized in a women's prison. And, as it turns out, different trans people have different preferences in this regard--some involving their safety and some involving their desire to form intimate relationship (which is very human and understandable and, in my opinion, deserving of the same amount of respect.) Isolation may protect one from some forms of abuse, but open other avenues of abuse, and has its own huge detriments. So what's to be done?

Subjecting people to regimes of incarceration inherently robs them of a modicum of autonomy about their lives, and the choices are not abundant or good. Even when there are good intentions--and that is not always the case--they can be distorted by misunderstandings and generalizations. Advocating for special populations under these circumstances can be extremely fraught, and I'm very grateful to have learned more about this from the folks at the front line of advocacy.

New Jails: If You Build It, They Will Come?

Yesterday's interesting L.A. Times editorial addresses the plan to build a new jail in Los Angeles, which prison activists have been resisting for a long time. When I visited Los Angeles at the ACLU of Southern California's invitation, our conversation about the plan was fraught with misunderstandings. The Sheriff's Office's position was that a new jail was necessary because conditions in the existing jail were horrific, particularly with regard to treatment for mentally ill inmates.

Can't argue with them on that point, of course; the County Jail is America's largest psychiatric ward. Indeed, recently the authorities have finally started to question the wisdom of jailing the mentally ill and come up with alternatives, but there's still a long way to go. There are some things that the jail gets right, such as when they properly use strategic segregation, as Sharon Dolovich explains here and here. But some of its effects are harmful and problematic, and the need for change is something we can all agree on.

But what sort of change? Yesterday's editorial posits the plan as follows:

The Los Angeles County Board of Supervisors spent the last decade putting off those questions. Then, in May, it adopted a $2-billion plan to demolish the complex and build a new 4,800-bed downtown jail designed around the clinical needs of the large number of inmates with mental health and substance abuse problems, as well as the security requirements of inmates who pose a high risk of harm to others. Also part of the plan is a 1,600-bed campus-like women's jail in Lancaster.

The supervisors chose the plan from among several presented by Vanir Construction Management Inc., a firm in the business of building such facilities. The price tag makes the construction project the most expensive in county history.

The updated design would certainly be an improvement over the current jail, yet it remains rooted in questionable estimates and bygone practices. It ignores the conclusions of a 2011 jail population study commissioned by the board, then for all practical purposes forgotten.

Rather than go with the spirit of Prop 47 and reduce incarceration, this plan may perpetuate the problem. The editorial goes on to say:

In pushing forward with a new jail that could keep as many people locked up as were, say, two years ago, the Board of Supervisors is in effect making an astounding policy statement: The current jail population is the correct one, despite the theoretical embrace of mental health diversion, the ability to authorize some no-bail, pretrial releases, and the recent reduction of sentences for some crimes. And the $2 billion — or perhaps twice that, when including bond interest — should all be spent on incarceration rather than more effective, and cost-effective, alternatives.

I tend to think of prison construction like road construction: traffic congestion increases with road development because it creates an incentive for more private vehicle transportation. This is why activists oppose the new plan. Let's solve the overcrowding problem by, well, not overcrowding the jail with people who are far better off treated in the community for their underlying mental health problems.

All Counties Committed to Enrolling Inmates in Health Care!

A new report by Californians for Safety and Justice and the Local Safety Solutions Project announces good news: pretty much all California counties are committed to enrolling their criminal justice populations in health care, and 70% of counties are actively doing so.

Where does the funding for this welcome activity come from?

This is excellent news. As we know, many formerly incarcerated people don't necessarily have the resources or know-how to deal with the intricacies of Obamacare and are walking out of jail systems whose health care services are sometimes truly deficient. This guarantees that, as people return to life on the outside, they'll be covered and protected.

Book Review: Mass Incarceration on Trial by Jonathan Simon

Hidden from sight and forgotten from mind, American prisons in the last forty years have been horrific Petri dishes for medical neglect, interpersonal cruelty, and unspeakable conditions. California, which incarcerates the largest number of inmates (albeit not the largest per-capita), has been particularly notable for its abysmal incarceration practices, so much that, when commenting about his first impression of supermax institutions, Judge Thelton Henderson said to criminologist Keramet Reiter, “what was surprising to me was the inhumanity of the thing.” Jonathan Simon’s new book offers the general public a sobering look into California prisons through the prism of federal court decisions, which encourages humanism and empathy and does not allow the reader to look away.

 The book tells the story of several federal court decisions that tackled, head-on, the crux between mass incarceration and prison conditions. It begins with Madrid v. Gomez (1995), which exposed the conditions at supermax institutions and critiqued their application to the mentally ill, and proceeds with Coleman v. Wilson (2009) and Plata v. Schwarzenegger (2009), which addressed, respectively, serious mental and physical health care neglects, culminating in the Supreme Court decision in Brown v. Plata (2011), which affirmed the connection between the mass incarceration project and its outcome—extreme prison overcrowding—and the conditions behind bars. Simon’s account of the decisions, and the horrific abuse and dehumanization that brought them about, highlights two main themes. The first is the nature of American incarceration (and California incarceration in particular) as a veritable human rights crime of massive proportions, pulling it out of the American tendency to view things through an internal, exceptionalist lens. The second is the inherent connection between mass incarceration and prison conditions, which are frequently discussed separately in academia and public policy. To Simon, both are manifestations of an overall correctional mentality of “total incapacitation”: a systemic fear of crime and blanket assumption of dangerousness, coupled with insecurity about the ability to correctly gauge risk, which leads to indiscriminating incarceration of high-risk and low-risk individuals for lengthy periods of time without consideration of the conditions of their incarceration, or of the logistics necessary for their humane confinement. The court decisions reviewed in the book, argues Simon, signal a departure from this ideology, which he defines as a “dignity cascade”: a willingness to relate to the inmates as human beings who are entitled to more than “bare life”, but to personal safety, health, and human company.

Indeed, Simon’s book itself can be seen as an important contributor to a “dignity cascade”. Written in an engaging, accessible style, and providing the personal stories of plaintiffs in prison condition cases, Simon humanizes the individuals involves and evokes empathy and care for their preventable, horrible plight, while still making the bigger point that the violations are a systematic problem rather than isolated occurrences. While the book does not clarify the extent to which Simon attributes intent, or design, to the correctional officials, it certainly drives home the point that cruelty is the rule, rather than the exception, and the need to change that through a deeper commitment to treating humans with dignity and respect regardless of their transgressions.

There are a few places, however, in which Simon and I part ways. One of them is in his historical account of the path to total incapacitation, which paints the rehabilitative period in California corrections in what I think are overly rosy hues—especially when he ties the medical approach to incarceration to the eugenics movement. I also think that Simon gives the court decisions, which are undoubtedly important, too much significance in the overall scheme of California corrections. I wish I could be persuaded that these few decisions, the most recent of which and the focal point of the book was decided 5:4, were powerful enough to create a veritable “dignity cascade”. The book cites extensively dignity-promoting language from Justice Kennedy’s opinion in Plata, but does not include the parts in Justice Scalia’s dissent in which he referred to the inmates as “specimens”—a shameful opinion that I find hard to ignore with four Supreme Court Justices behind it. Even federal judges who are hailed as champions of inmate rights don’t always make decisions that promote dignity; in the fall of 2013, Judge Henderson (of Madrid v. Gomez fame) cleared the path to force-feeding inmates in solitary confinement who were protesting against indefinite segregation. Moreover, attributing the change in California—namely, the Criminal Justice Realignment—solely to the decision in Plata ignores the lengthy political machinations behind the Criminal Justice Realignment, which were driven by budgetary concerns and by other pressures as well as by the court’s decision. This is particularly problematic given the state’s acrobatic wiggling out of responsibility and its inability, and unwillingness, to follow up on the decision, almost to the point of contempt of court. While the language of the opinions themselves is important and meaningful, I wish we were offered more political and legal backstage access to the litigation, as well as more credit to the grassroots activism of inmates themselves, included but not limited to the hunger strike.

While I am less optimistic than Simon about a veritable transformation of public opinion about the mass incarceration project through federal court decisions, I find his call for dignity and for acknowledgment of the vast human rights violations incredibly inspiring, and like him, and anyone invested in the promotion of human dignity, I hope to see the spirit of John Howard’s progressive prison reform, and of the 1960s Warren Court decisions, channeled into this new era of prison litigation. After reading Mass Incarceration on Trial, no one can remain in a state of denial or indifference to the plight of fellow human beings, and this book is an important contribution not only to their dignity, but also to our own.

From Reproductive Crimes to the Prison Industrial Complex

This coming October, the Hastings Women's Law Journal will hold a special symposium on family and reproduction in prison, which is incredibly timely. Several important stories from the last few years have raised serious concerns about the correctional authorities' responsibility for women's health, pregnancy, and birth in prison.

First, as you may recall, there were efforts to restrict the notorious and common practice of having incarcerated women give birth while shackled. It's fairly obvious why this is an extremely barbaric practice, and this ACLU report adds some important details.

Then, we heard with shock about a sterilization of female prisoners in California, with very questionable consent. This eventually yielded SB1135, which prohibits the practice.

And just a couple of days ago, this was in the news. Nicole Guerrero, a pregnant inmate in Texas' custody, was placed in a solitary cell, repeatedly begging for help as her water broke and she was in labor, her cries for care ignored by the guards. Guerrero's baby died, and the chronology that led to this horrific tragedy includes a nurse who works for a private healthcare contractor. Guerrero is pursuing a §1983 lawsuit against the prison.

There's hardly anything I can say about this truly horrible incident and the cruelty that led to it that won't trivialize it, and the basic facts behind it do not seem to be in dispute. My only additional thought about this has to do with the fact that Guerrero's tragedy occurred in a public setting--a Texas state prison--but one of the people whose behavior was questionable worked for a private healthcare provider. I think we need to problematize the distinction often made by progressive commentators between state institutions and private providers' institutions. At this point, and in the context of a neoliberal, hypercapitalist economy, it makes a lot less difference who runs the correctional facility overall than these commentaries would suggest. Many functions within state prisons--utilities, phones, cantine services, food, transportation, health care--are partially or completely privatized, as was health care in the institution in which Guerrero was held. Moreover, state actors are behaving like private actors in the market, and many of the corruption scandals and human rights crimes we saw in the last few years--such as Alabama's Sheriff Bartlett's profiteering off his wards' starvation and former Philadelphia Judge Mark Ciavarella essentially selling juveniles to a private contractor for kickbacks--involved public actors. Private prison companies have not cornered the market on cruelty, stinginess, and indifference to human suffering. And wherever a wicked contract is signed, one party tends to be a public actor.

The only answer to this that I can think of is regulation that carefully examines which actors play which roles in exploiting human suffering for profit. Only recently, AB 1876 prohibited the common practice by which sheriffs received kickbacks from phone providers to give them the contract for prison phone services. There are probably ways for sheriffs to bypass this, and we will have to stay fairly attentive to those, but the bottom line is that the lines between the public and the private are so blurred in this economy that maligning "private prisons" misses the point. All actors in these dramas of human cruelty and profiteering--the state included--are acting in a laissez-faire, capitalist market, responding to market pressures, and trying to get ahead; all actors are vulnerable to the sort of indifferent, dehumanizing mentality that seems to have produced the tragedy that happened to Guerrero; and all actors, private and public alike, should be carefully watched and monitored by those who do not want to see more cruelty.
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Cross-posted on Prawfs Blawg.

Gubernatorial Budget 2014-2015

The Governor's proposed budget for 2014-2015 is out and its full text is here. Public safety is addressed on pages 65-88 and the correctional budget is addressed on pages 89-93.

The budget proposes total funding of $9.8 billion ($9.5 billion General Fund and $320 million other funds), which is 9% of the state budget - only slightly less than our expenditures on higher education.

The report reviews the history of realignment and the Plata litigation, mentioning the state prison system's commitment to reentry as per the Blueprint titled The Future of California Corrections (here is the Blueprint, for your convenience.) The report emphasizes CDCR's commitment to expanding the rehabilitation menu to reach 70% of all inmates.

The report goes, at length, into the changes brought about with realignment, including the following useful classification of the prison population:

Still, the state prison population is higher than projected in 2013 - about 135,000 inmates vs. the 129,000 projected. The parolee population is expected to increase in 2013-2014 and decrease in 2014-2015, as a result of realignment and the transference of post-sentence supervisees to the counties. There are also more juvenile wards than projected, as a result of an increase in first admissions and in parole violations.

The budget report explicitly refers to the legal battle waged around the 137.5% capacity cap mandated by the federal court, and assumes that the deadline for meeting the cap will be extended by two years. Remember the $315 million that Governor Brown appropriated at the very last minute of the last legislative session? If there is an extension, the budget will allocate the first $75 million of the money to recidivism reduction (state reentry, substance abuse treatment, services for the mentally ill, and a special reentry facility) and the rest to the general fund. However, should the population cap deadline not be delayed, the money will be invested in private prisons "to avoid the early release of inmates." You can see where this is going; the money is essentially there to more-or-less extort the Three Judge Panel and circumvent its perceived intention. The message is - play nice and give us two more years, in which case we'll invest in rehabilitation, or you'll get private prisons galore.

More interesting stuff: A projected expansion of medical and elderly parole. The age cutoff for the latter is 60, which means 5.4 percent of male inmates and 4.4 percent of female inmates (as of June 30.) If they pushed the age cutoff back to 55, which makes criminological and gerontological sense (people age faster in prison, and people leave crime behind at an earlier age), you'd be releasing 11.2 percent of men and 10.4 percent of women. So - a step in the right direction, but plenty of room for improvement.

The report also mentions two other savings mechanisms: nonviolent third-striker releases per Prop 36 and juvenile parole per SB260. While the report doesn't explicitly take credit for them, it is a bit surprising to read such positive reports of these from an entity that fought the spirit of these initiatives for years.

A considerable amount of the money will be spent on improving health scores in state prisons so they can be wrangled away from the Receiver. Much of the money is allocated to fund litigation, to fight the Receiver and class-action suits in court; the rest of it on improvements to pharmacies, facilities, and staff training. The report mentions the impact of Obamacare on health care for county inmates as opposed to state inmates.

Lastly, there are some notable comments on realignment in the counties. There's a proposal to make split sentences the default, but it still leaves a considerable amount of discretion to county judges, and would still create big disparities between county. Also, the report notes that keeping long-term inmates in county jails is not a great idea, but does not volunteer to take them back into state institutions en masse (as Manuel Perez has just suggested) because of the need to comply with the Plata/Coleman caps. The state is willing to take in offenders who are serving 10 years or more - that's about 300 years annually - but that, of course, raises the question why people receive 10 years in prison for non-non-non offenses in the first place.

Corporal Punishment for the Mentally Ill? Judge Karlton to Decide

Two shocking videos depicting prison guards at Corcoran subduing mentally-ill inmates with pepper spray and batons are the subject of federal litigation aimed at ending such brutal corporal punishment. The videos are not available for sharing online, but they have been viewed in court, and the Sacramento Bee describes their content:

In the first video, played to a hushed crowd of lawyers and reporters in Karlton’s 15th-floor courtroom in downtown Sacramento, an inmate in a mental health crisis unit at Corcoran State Prison is shown refusing to take medication from a psychologist visiting him in his cell.

“He refused to take it,” the psychologist tells a waiting team of guards wearing gas masks, helmets, padded vests, gloves, protective jumpsuits and shin guards.

The inmate, locked in his cell, was playing with his feces and threatening to throw two cups of an unknown substance on anyone who entered. Almost immediately after the psychologist emerged, the team began pumping pepper spray through the food port of the metal cell door, repeatedly dousing the inmate between warnings that he better come out.

The team opened the door, dragging the inmate out and wrestling him to the floor as he alternately sobbed and screamed, “Don’t do this to me,” “help,” and “I don’t want to be executed.”

The motion focuses on Eighth Amendment and Fourteenth Amendment violations, including force against inmates manifesting symptoms of mental illness, excessive use of pepper spray and of expandable batons, and requests that the Court order CDCR to revise their use-of-force policies to provide training, quality and assurance processes.

As Bakersfield Now reports, things have not been looking good for the state in court:

In its response brief, CDCR argues that it has a comprehensive use-of-force policy, revised in 2010, that takes into account mentally ill inmates and includes appropriate training and discipline provisions. The brief also argues that the high standard for intervention under the Prison Litigation Reform Act (PLRA) has not been met. The two videos, the defendants argue, do not demonstrate a "pattern or practice" of disproportionate force.

The state's own expert witness testified that guards use pepper spray far too often and in quantities that are too great. He also said previous recommendations for changes were rejected or ignored.

The Contra Costa Times quoted Michael Stainer, Director of CDCR's Division of Adult Institutions, who described the depicted incidents as "at best, controlled chaos."

Judge Karlton is to issue his decision in a few days.

Criminal Justice Bills Vetoed by Gov. Brown in 2013

Image courtesy the Los Angeles Times.

Our first post in this series reviewed the bills signed into law by Gov. Brown in 2013. This edition examines some of the bills vetoed by the Governor, complete with veto memos and some thoughts about the future of the ideas behind the bills.

We all heard, of course, with great disappointment about the vetoing of SB 649, which would have reclassified simple drug possession offenses as "wobblers", thus allowing their prosecution as either felonies or misdemeanors. The passage of the bill would have put California on par with several other states. Not all, however, is lost. Gov. Brown's veto message indicated that, while he wasn't comfortable with this change, he might be open to other drug law reform (a good example is his signing of AB 721, which effectively decriminalizes drug transportation for personal use.)

There were other disappointments, and they were for the most part along the lines of failed attempts to create broad health-care and rehabilitation reforms or to curb police power. Examples of the former are AB 994, which proposed creating a postplea misdemeanor diversion program in each county; AB 1263, addressing Medi-Cal for low-income people, which would have had important implications for formerly incarcerated folks and their families, as it would establish CommuniCal, which would dispense information to folks with low proficiency in English; and AB 999, which would require CDCR to develop a 5-year plan to extend the availability of condoms in all CA prisons. An example of the latter is the veto on SB 467, which would prohibit a governmental entity from obtaining information from an electronic communication service provider without a warrant, and require that the subscriber/customer receive a copy of the warrant.

Some of these vetoes are deeply disappointing, but it is important to observe that they addressed extensive medical reforms, which the Governor may believe he is solving with his proposition to spend an enormous sum of money on privatizing prisons and thus reducing overcrowding.

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Criminal Justice Bills Signed Into Law by Gov. Brown, 2013 Season

Image courtesy NBC San Diego.

A month ago we provided a brief overview of the criminal justice bills on Gov. Brown's desk. With the end of the legislative session, we have some important updates on some of these bills. This is the first of two posts, reporting on bills signed into law; the second post reviews vetoed bills.

We've all heard the news about the passage of AB 4, otherwise known as the TRUST Act. Federal law authorizes federal immigration officers to advise state and local law enforcement agents that a given person under custody has to be held for deportation. Under the new bill, CA law enforcement officials are not allowed to detain someone based on an ICE hold after the person is eligible for release from custody, unless certain conditions apply, such as a conviction for specified crimes.

Regular readers may recall our failed attempt to restore voting rights to non-serious, non-sexual, non-violent offenders in jail or on community supervision. AB 149 requires each county probation department to maintain a link to the Secretary of State's voting rights guide, explaining clearly people's rights to vote, which is particularly important in the case of probationers, who are eligible to vote in California and may not know that.

And we all remember the happy announcement that AB 218, otherwise known as Ban the Box, passed and was signed into law. The bill prohibits state or local agencies from asking an applicant to disclose information regarding a criminal conviction until the agency has determined the applicant meets the minimum qualifications for the position. From the reentry perspective, it is a laudable initiative that gives formerly incarcerated people a fair shot at being considered for a position on their merits and qualifications. Fewer people are aware of SB 530, which prohibit employers from asking about convictions that have been judicially dismissed or ordered sealed, except in special circumstances.

There were a multitude of gun bills on the Governor's desk, and the end result on those was fairly mixed. The higher-profile bills were vetoed, such as SB 374, which would have banned semi-automatic rifles with detachable magazines and require registration of even low-capacity rifles, and SB 567, which would have defined some rifles and shotguns as assault weapons. However, AB 231, which makes it a misdemeanor to store loaded weapons where children might have access to them, passed, and so did bills creating prohibitions for businesses from applying for assault weapons permits and two bills restricting firearms for mentally ill patients.

AB 494 increases CDCR's accountability for literacy programs for inmates. Current law requires CDCR to implement literacy programs that would bring inmates, upon parole, to a 9^th grade reading level. ABA 494 requires CDCR to implement literacy programs that allow inmates who already have that level of literacy to acquire a GED certificate or its equivalent, as well as offer college programs through voluntary education programs. It also lists priorities. AB 624 is also a source of similar good news for inmate advocates. The bill allows sheriffs and other county directors of corrections to increase the number of programs that provide inmates with good credits toward release. Along the same lines, AB 1019 requires that the Superintendent of Education set goals for technical education programs in prison.

In helping folks reintegrate into their communities, record-cleaning and expungement issues are incredibly important. Now that AB 651 has been signed into law, defendants who did jail time for felonies may apply for expungement (withdraw their plea of guilty) after one or two years following the completion of the sentence, if they have an otherwise clean record; this makes their situation vis-a-vis expungements similar to that of defendants on probation. Defendants who completed prefiling diversion programs may also petition to seal the arrest records, under newly enacted SB 513. There are special rules about expungement of juvenile records, and AB 1006 creates an obligation to notify juvenile defendants of their rights to petition for sealing and destruction of the records.

There are other bills specifically geared toward juvenile defendants. SB 569 requires recording all interrogations of juveniles accused of murder (why only juveniles? why only murder? I suppose someone thought an incremental approach would be best.) And, of course, there's SB 260, which, as we pointed out in the past, extends SB 9 to allow resentencing petitions for juveniles sentences to lengthy periods of time.

And more good news on the health care front: AB 720 requires the board of supervisors in each county to designate an entity to assist certain jail inmates to apply for a health insurance affordability program, and will prohibit county jail inmates who are currently enrolled in the Medi-Cal from being terminated from the program due to their detention, unless required by federal law or they become otherwise ineligible.

While SB 649, intended to reclassify simple drug possession as a "wobbler" (in order to allow it to be prosecuted as a misdemeanor) was vetoed (and more on that on the next post), there are some developments. AB 721 redefines drug transportation as transportation for sale purposes, effectively decriminalizing transportation for personal use.

There are also some expansions to police authority and some new criminal offenses, but at least from my perspective they seem fairly reasonable--a far cry from the super-punitive voter initiatives of elections past. SB 255 prohibits "revenge porn", that is, distributing someone's nude photo to cause them distress. [EDITED TO ADD: Notably, the law does not cover "sexting" situations, that is, redistribution of photos the victim took him/herself.] SB 717 allows issuing a search warrant to authorized a blood draw from a pesron in a "reasonable, medically approved manner, for DUI suspects who refuse to comply with police request for a blood draw. There's also SB 57, which prohibits registered sex offenders from tampering with their GPS devices, which I suppose is good news for folks who think these devices are good tools for recidivism prevention (I have doubts.)

SB 458 tempers the legal requirements for including people's name in gang databases. Under the new law, a person, or his/her parent/guardian in case of a minor, now gets notified that there's an intention to include him/her in the gang member registry, and the person may contest, with written materials, said designation. Local law enforcement has to prove verification of the designation, with written materials, within 60 days.

And finally, SB 618 extends the ability to receive compensation for wrongful conviction to felons serving jail time. Also, the bill extends the time to apply for compensation to two years, requiring the Attorney General to respond within 60 days, and also removes the burden on the exoneree or pardoned person to prove that they did not intentionally contribute to bringing about the arrest or conviction.

Some important themes emerge. First, note the emphasis on reentry and reintegration in the job market, which is a healthy recession-era policy to allow formerly incarcerated folks at least a fighting chance finding employment and rebuilding their lives. We're also seeing particular care with regard to juvenile offenders, especially those charged with or convicted of serious offenses. There isn't a lot of hyperpunitive legislation, and the few new offenses seem tempered and reasonable. The next post deals with the vetoed bills.

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