Incidentally, I am posting this from the Law and Society Annual Meeting in Denver, where I just had the chance to see Susanne Mason's fantastic documentary Writ Writer, about Fred Cruz, the inmate who started the avalanche that would end in the Ruiz v. Estelle case, which revolutionized the cruel, slavery-like Texas prison system. It is absolutely fantastic and I strongly recommend it. More on the film here.
Saturday, May 30, 2009
Sentencing Commission Bill Update - and a Trailer for an Excellent Film
Earlier this month, we reported on the Sentencing Commission Bill's move to the suspense file. The bill has passed on the committee (12 ayes, 5 nos) and is moving on to a third reading at the Assembly. Perhaps this reflects the wish for a more systematic alternative to the threatened mass-releases to relieve overcrowding, but your guess is as good as mine.
Thursday, May 28, 2009
Some Reactions to the Budget Cut Pandemonium
For some more reactions on the budgetary issue, and how prison cuts fit into the picture, here are a few things worth reading:
And Jonathan Simon, blogging on Governing Through Crime, is urging Gov. Schwarzenegger to fire his wife.
The Butterfly Effect of Public Policy
Reading the San Francisco Chronicle these days is like watching a traffic accident about to happen. The budget disaster is so alarming that every day brings news of future depressing decrees and policies.The latest news come to us from the Governor's office. Schwarzenegger's hope that the initiatives would be approved did not materialize; the problem got bigger. And so, a series of proposed cuts came into being. As reported on the Chron, some of the cuts include:
-- $750 million from the University of California and California State University systems, bringing the total reduction over two fiscal years to nearly $2 billion.
-- $10.3 million - Eliminate all state general fund spending for UC Hastings College of Law.
-- $173 million - Eliminate new Cal Grants.
-- $70 million - Eliminate general fund support for state parks, potentially closing 80 percent of them.
-- $247.8 million - Eliminate the Healthy Families program, which provides health care to nearly 1 million poor children.
-- $1.3 billion - Eliminate the CalWorks program, which primarily helps unemployed single mothers find jobs.
-- $809 million - Release nonviolent, non-serious, non-sex offenders one year early, and reduce the Corrections Department's contract work, rehabilitation and education programs.
Distressed as I am about the prospect of irrational cuts of all general fund spending to my home institution, which produces tomorrow's nation's foremost judges, policymakers, public interest lawyers, and business entrepreneurs (and thus extinguishing hope that we can invest enough in their education to produce people capable of solving the problems generated by today's policymaking!) I think there's a bigger lesson to be learned here. My concern is that the bottom line regarding prison releases will generate a public outcry that will gear discussion in a nonproductive way.
You see, everything is connected, just like in Edward Lorenz's much-quoted (and misquoted) chaos theory maxim, according to which the flap of a butterfly's wings in Brazil sets off a tornado in Texas. I'm sure there are many voters and Chron readers who are being exposed, perhaps for the very first time of their lives, to the realities of the imprisonment project in California and how it directly affects their lives, their taxes, and their children's education. For many years, since the passage of Prop 13, Californians have mistakenly thought that keeping taxes low and guaranteeing money for education had nothing to do with the invisible world of prisons. If you think about it, that is a bit like children who close their eyes, wishfully believing that what is out there does not exist if you cannot see it. So, many Californians may be finding out that many other Californians, who had been appearing and disappearing in their world, were held in massive, expensive institutions, and moreover - financing this institutions, in a world of scarce resources, is something to be considered, not ignored.
Prisons in California are not butterflies in Brazil, and their impact on our lives and wallets is much more direct than the connections in chaos theory. The sooner we understand that non-punitive cuts need to be made (albeit intelligently and after careful planning), the less we have to eat our future as a State, which relies on enough well-educated and skilled scientists, engineers, politicians, and, yes, lawyers.
Tuesday, May 26, 2009
Cellphone Wars
A while ago, the CDCR website announced that CDCR had declared war against inmate cellphones. We didn't feature that at the time, since we felt other news were more important; but there are important angles to this issue that should be explored. Communications with the outside from prison are difficult and expensive; the costs are so expensive that some businesses are trying to offer alternatives to the collect call system.
The latest news on this come from Just A Guy, an unusual blogger from an unusual location on the SF Bay Guardian, whose other knowledgeable and intelligent recent posts have been highlighted here before. I really recommend reading what he has to say about this; a reminder that sometimes thinking out of the box is cheaper, and not more harmful to public safety.
Monday, May 25, 2009
Localized Parole Operations
As the budget conversations continue, including the possibilities of cutting parole, local parole task forces arrest parolees for parole and probation violations in Coachella and in Vallejo. Interestingly, while the latter operation targeted sex offenders (listed by name in the article), the actual violations included "possessing illegal contraband, pornography and drug paraphernalia, being under the influence of drugs or alcohol and failure to pass on-site drug testing".
Sunday, May 24, 2009
Passing the Buck? Shifting "Wobbler" Offenders to Local Jails
As the CDCR struggles to handle the dismal budget situation, through the guard layoffs, other initiatives are on the table. While some prison expansions are still scheduled to take place, others have been canceled; and the question of inmate release still hangs in the air.
One thing that is being considered, as the L. A. Times reports, is the Governor's plan to move inmates from prisons to local jails. The idea is to target a category of offenses known as "wobblers" - offenses that could be classified as felonies or misdemeanors - and classify them as misdemeanors, thus changing the jurisdiction to allow confinement in local jails rather than in state prisons. Local officials, who deal with overcrowded jails, have balked at this option, and the proposal's fate remains to be seen.
One thing that is being considered, as the L. A. Times reports, is the Governor's plan to move inmates from prisons to local jails. The idea is to target a category of offenses known as "wobblers" - offenses that could be classified as felonies or misdemeanors - and classify them as misdemeanors, thus changing the jurisdiction to allow confinement in local jails rather than in state prisons. Local officials, who deal with overcrowded jails, have balked at this option, and the proposal's fate remains to be seen.
The Ninth Circuit Rules: A Male Prisoner Can Be Searched by Female Guards
On May 18, the Ninth Circuit issued a majority opinion allowing female guards to perform strip searches on male inmates.
The petitioner, William Byrd, a pretrial detainee in jail at the time, was searched for contraband. He and other inmates stood in front of a row of Academy cadets, some of whom were female. Someone in the room held a handheld camera (filming, as it turns out, for the cadets' Video Yearbook, though no footage of this particular search survived). The majority opinion, by Judge Ikuta, describes the search, which followed county regulatons, as follows:
When it was Byrd’s turn, the officers ordered Byrd to walk over to the cadets, stand facing away from them, raise his arms above his head, and spread his legs. O’Connell approached Byrd from behind and conducted the search as follows: She ran her hands across the waistband of Byrd’sboxer shorts and pulled the waistband out a few inches to check for anything hidden or taped inside; she did not look into his boxer shorts. She lightly frisked over his boxer shorts and down the outside of his thigh, stopping at the bottom of the shorts. Through the boxer shorts, O’Connell moved Byrd’s scrotum and penis with the back of her hand in order to frisk his groin, applying light pressure to feel for contraband. She then placed her hand at the bottom of his buttocks, ran it upward over his boxers, and separated the cheeks to search for any contraband taped, placed, or hidden inside.
Byrd's legal argument was based on his Fourth Amendment rights to be free from unreasonable searches and seasures, as well as his Fourteenth Amendment rights to due process and equal protection. The search, he argued, caused him unnecessary pain and humiliation.
Byrd's 1983 equal protection suit was dismissed, since "he fatally 'failed to allege that defendants’ acts or omissions were motivated by discriminatory animus toward' male prisoners". His Fourteenth Amendment argument was rejected, since the search was not proven to have been motivated by punitive intent. The search was thus distinguished from the intrusive searches that the 9th Circuit had struck down in Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993), where male guards performed searches on female inmates.
As to the Fourth Amendment argument, the Court builds on Bell v. Wolfish, according to which "when reviewing conditions and restrictions placed on prisoners and pretrial detainees, we must bear in mind the inherent difficulties in managing a detention facility, and that "the problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions'". Therefore, "the 'reasonableness of a particular search is determined
by reference to the prison context.'" The factors in Bell and Turner require the court to take into account the circumstances of the search (measuring the level of intrusiveness), the justification for the search, and the existence of alternatives.
Applying these factors to the current situation, the court explains that cross-gender searches, per se, are not unreasonable: "while we have not foreclosed the possibility that a cross-gender
search could violate an incarcerated person’s constitutional rights, we have noted that 'our prior case law suggests that prisoners’ legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited.' . . . We have never held that a cross-gender search in a prison setting [in itself--H.A.] violated an inmate’s Fourth Amendment rights". Beyond the cross-gender search aspect, the court did not find factors that would make the search unreasonable: "As noted, the jury found that the search was not done in an inappropriate manner. The record indicates that O’Connell wore gloves at all times, and conducted the search professionally and swiftly, finishing in, at most, 60 seconds. The invasion of Byrd’s bodily privacy in this case does not substantially exceed the cross-gender observations and searches we upheld in Michenfelderand Grummet. Moreover, the County has provided a legitimate justification for the cross-gender aspect of the search: the County adduced undisputed evidence that the cross-gender search was justified by its legitimate security and staffing needs, focusing primarily on the shortage of adequate personnel."
Judge Fernandez dissented from the Fourth Amendment aspect of the opinion, writing: "In my view, cross-gender strip searches are generally uncalled for and unreasonable. . . There may be emergency or other situations where a cross-gender strip search is proper, but this case presents no facts to suggest that there was an emergency or some other unique reason for authorizing the search. In fact, the record shows that this sort of search is a regular part of the
jail’s routine, and that there were plenty of men available, who could have conducted the search. . . When all is said and done, I would not think it was reasonable for males to strip search females in this kind of situation, and I do not think it was reasonable to have females strip search males. If our law does approve of it, and the majority opinion cogently reasons that it does, I reluct; the law should change".
This case brings up a whole host of interesting issues. The first one has to do with the role of women in law enforcement. The gender segregation of prisons, and its implications to gender-segregated prison staff, is well documented in Dana Britton's At Work in the Iron Cage. While the work performed by men and women in these settings is similar, there are social forces and stereotypes at work that generate gender inequalities in this particular work environment. The majority opinion seems to be marginally sensitive to this issue, when it says "The determination sought by Byrd, that it is per se unreasonable for a female officer to conduct searches of male inmates when male officers are also present, would significantly limit the usefulness of female officers for meeting a detention facility’s security needs."
The interesting bit, of course, is that these needs to make the workplace an equal playing field, and to allow female guards to perform their work except when there are particular circumstances that disallow identical performance for justified reasons, severely clash with the patriarchal norms that govern much of the inmates' and guards' cultural lives. It is interesting to note, in this context, the double standard regarding the unfortunate fact that many inmates have a history of sexual victimization. In this case, "Byrd states that he suffers from a history of sexual abuse, and therefore the cross-gender aspect of the search was particularly traumatic." However, in Jordan, the same Court struck down searches of female inmates by male guards, "in light of substantial evidence that many of the female inmates had been violently sexually abused prior to their incarceration and were psychologically fragile, and that the cross-gender searches would cause some inmates substantial suffering." This brings up a whole host of questions regarding the role of patriarchy and gender in our sensitivity to issues of sexual abuse.
Finally, as in many other Fourth Amendment cases, this case brings out the question of measuring the "reasonability" of searches and seizures. Part of the court's decision, it seems to me, stems from the fact that they place much more weight on the issue of justification for the search than on issues of proportion and intrusiveness. More generally, one serious problem with Fourth Amendment Analysis is its lesser attention to issues beyond the level of suspicion. If anyone is interested in any of this, Dan Portman and I have written a piece on this, which we call Inequitable Enforcement, which will be presented at the Law and Society Association Annual Meeting next weekend; we'll post it on SSRN at some point next month, and if there's interest, I'm happy to post the link then.
The petitioner, William Byrd, a pretrial detainee in jail at the time, was searched for contraband. He and other inmates stood in front of a row of Academy cadets, some of whom were female. Someone in the room held a handheld camera (filming, as it turns out, for the cadets' Video Yearbook, though no footage of this particular search survived). The majority opinion, by Judge Ikuta, describes the search, which followed county regulatons, as follows:
When it was Byrd’s turn, the officers ordered Byrd to walk over to the cadets, stand facing away from them, raise his arms above his head, and spread his legs. O’Connell approached Byrd from behind and conducted the search as follows: She ran her hands across the waistband of Byrd’sboxer shorts and pulled the waistband out a few inches to check for anything hidden or taped inside; she did not look into his boxer shorts. She lightly frisked over his boxer shorts and down the outside of his thigh, stopping at the bottom of the shorts. Through the boxer shorts, O’Connell moved Byrd’s scrotum and penis with the back of her hand in order to frisk his groin, applying light pressure to feel for contraband. She then placed her hand at the bottom of his buttocks, ran it upward over his boxers, and separated the cheeks to search for any contraband taped, placed, or hidden inside.
Byrd's legal argument was based on his Fourth Amendment rights to be free from unreasonable searches and seasures, as well as his Fourteenth Amendment rights to due process and equal protection. The search, he argued, caused him unnecessary pain and humiliation.
Byrd's 1983 equal protection suit was dismissed, since "he fatally 'failed to allege that defendants’ acts or omissions were motivated by discriminatory animus toward' male prisoners". His Fourteenth Amendment argument was rejected, since the search was not proven to have been motivated by punitive intent. The search was thus distinguished from the intrusive searches that the 9th Circuit had struck down in Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993), where male guards performed searches on female inmates.
As to the Fourth Amendment argument, the Court builds on Bell v. Wolfish, according to which "when reviewing conditions and restrictions placed on prisoners and pretrial detainees, we must bear in mind the inherent difficulties in managing a detention facility, and that "the problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions'". Therefore, "the 'reasonableness of a particular search is determined
by reference to the prison context.'" The factors in Bell and Turner require the court to take into account the circumstances of the search (measuring the level of intrusiveness), the justification for the search, and the existence of alternatives.
Applying these factors to the current situation, the court explains that cross-gender searches, per se, are not unreasonable: "while we have not foreclosed the possibility that a cross-gender
search could violate an incarcerated person’s constitutional rights, we have noted that 'our prior case law suggests that prisoners’ legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited.' . . . We have never held that a cross-gender search in a prison setting [in itself--H.A.] violated an inmate’s Fourth Amendment rights". Beyond the cross-gender search aspect, the court did not find factors that would make the search unreasonable: "As noted, the jury found that the search was not done in an inappropriate manner. The record indicates that O’Connell wore gloves at all times, and conducted the search professionally and swiftly, finishing in, at most, 60 seconds. The invasion of Byrd’s bodily privacy in this case does not substantially exceed the cross-gender observations and searches we upheld in Michenfelderand Grummet. Moreover, the County has provided a legitimate justification for the cross-gender aspect of the search: the County adduced undisputed evidence that the cross-gender search was justified by its legitimate security and staffing needs, focusing primarily on the shortage of adequate personnel."
Judge Fernandez dissented from the Fourth Amendment aspect of the opinion, writing: "In my view, cross-gender strip searches are generally uncalled for and unreasonable. . . There may be emergency or other situations where a cross-gender strip search is proper, but this case presents no facts to suggest that there was an emergency or some other unique reason for authorizing the search. In fact, the record shows that this sort of search is a regular part of the
jail’s routine, and that there were plenty of men available, who could have conducted the search. . . When all is said and done, I would not think it was reasonable for males to strip search females in this kind of situation, and I do not think it was reasonable to have females strip search males. If our law does approve of it, and the majority opinion cogently reasons that it does, I reluct; the law should change".
This case brings up a whole host of interesting issues. The first one has to do with the role of women in law enforcement. The gender segregation of prisons, and its implications to gender-segregated prison staff, is well documented in Dana Britton's At Work in the Iron Cage. While the work performed by men and women in these settings is similar, there are social forces and stereotypes at work that generate gender inequalities in this particular work environment. The majority opinion seems to be marginally sensitive to this issue, when it says "The determination sought by Byrd, that it is per se unreasonable for a female officer to conduct searches of male inmates when male officers are also present, would significantly limit the usefulness of female officers for meeting a detention facility’s security needs."
The interesting bit, of course, is that these needs to make the workplace an equal playing field, and to allow female guards to perform their work except when there are particular circumstances that disallow identical performance for justified reasons, severely clash with the patriarchal norms that govern much of the inmates' and guards' cultural lives. It is interesting to note, in this context, the double standard regarding the unfortunate fact that many inmates have a history of sexual victimization. In this case, "Byrd states that he suffers from a history of sexual abuse, and therefore the cross-gender aspect of the search was particularly traumatic." However, in Jordan, the same Court struck down searches of female inmates by male guards, "in light of substantial evidence that many of the female inmates had been violently sexually abused prior to their incarceration and were psychologically fragile, and that the cross-gender searches would cause some inmates substantial suffering." This brings up a whole host of questions regarding the role of patriarchy and gender in our sensitivity to issues of sexual abuse.
Finally, as in many other Fourth Amendment cases, this case brings out the question of measuring the "reasonability" of searches and seizures. Part of the court's decision, it seems to me, stems from the fact that they place much more weight on the issue of justification for the search than on issues of proportion and intrusiveness. More generally, one serious problem with Fourth Amendment Analysis is its lesser attention to issues beyond the level of suspicion. If anyone is interested in any of this, Dan Portman and I have written a piece on this, which we call Inequitable Enforcement, which will be presented at the Law and Society Association Annual Meeting next weekend; we'll post it on SSRN at some point next month, and if there's interest, I'm happy to post the link then.
Subscribe to:
Posts (Atom)