Monday, May 31, 2010

Birth of the Immigrant-Criminal

I'm back from the Law and Society Association annual meeting in Chicago. The conference itself was fascinating and fun, and offered, among other things, a panel on special criminal court proceedings. The papers examined various aspects of this issue: the promise of a new problem-solving court model, the delicate power dynamics between courts and women who are victims of domestic violence seeking restriction orders, the criteria used by caseworkers to assess who is "sick enough" to neatly fit in a mental health court program, and the thoughts and actions of parents to juvenile delinquents while their children are in the system. Another fun experience, the panel about David Simon's The Wire, featured David Simon himself on Skype and was absolutely fascinating. Simon's take on his own creation consists of two main strands: rampant capitalism and the loss of mutual responsibility and care, and a process he calls "shit to gold", by which failing strategies are not corrected, but rather misrepresented to give the illusion of progress. As he was talking, I had sobering thoughts about how this principle manifested itself in mass incarceration.

I wanted to expand a bit, however, about a strand of conversation we had in the context of a book panel about Mona Lynch's Sunbelt Justice, which we reviewed here a while ago. Since the book involves the penal history of Arizona, discussion inevitably turned to the recent developments there, including SB1070, the anti-immigrant measure that received so much coverage and critique in California among other places. The interesting thing about the California critique is that we are struggling with similar issues ourselves, and our readers will remember that Governor Schwarzenegger's plan for decrowding prisons devoted special attention to undocumented immigrant inmates, and some of his ideas on the matter boarded on the grotesque. San Francisco's experimentation with sanctuary status for juvenile offenders who are undocumented immigrants is yet another signal of our obsession with this particular group. So, it is rather sanctimonious of Californians to perceive the Arizonian law as unique or peculiar in any way. We are just as busy as our neighboring state in addressing illegal immigration through the lens of crime. As Jonathan Simon deftly observed on our panel, "Arizona is California's id."

But one of the things we briefly touched upon was the connection between the two labels: Immigrant and criminal. We floated the idea that the universal "bogeyman", the common enemy whom we fear and bond against in Durkheimian fashion, might have shifted from The Drug-Selling Gang Banger to The Undocumented Immigrant. As we were talking about this, I thought that there is a better way of understanding what happened in Arizona and might happen in California: We have a composite public villain now, the Immigrant-Criminal. Now, xenophobia is not new, of course, but this is a newer version of it. We toyed with some of the characteristics of this villain.

Immigrants are the source of all evil. As per some of the political speeches we hear these days from Steve Poizner and others, "illegals" are the source of our problems. They are to be blamed for the faltering economy, our sense of security, and everything else.

Immigrants are criminals per se, and illegal immigration is a mala per se. This is what criminal law professors refer to as "status offenses": one is an offender not because of what one does, but because of what one is. Moreover, undocumented immigration is perceived not as a documentation problem, but one of moral failing: Public discourse draws a difference between people who arrive to the United States from Mexico legally to participate in, say, the highly exploitative market of strawberry picking, to those who do the same thing illegally. The latter are making a morally depraved choice. This construct completely misunderstands the reasons why U.S-Mexico relationship and economic interdependence not only encourages illegal immigration, but generates it. If you want to know more about it, I strongly recommend the last chapter of Eric Schlosser's Reefer Madness.

On top of that, immigrants are more likely to commit crime. The correlation between illegal immigration and crime is not a new thing, as we know. After 9/11, visa requirements tightened, under the assumption that threats to U.S. security come from these undocumented immigrants, leading to many difficulties entering the country. Recall, by the way, that most of the perpetrators of the 9/11 atrocity were in the States on legitimate visas.

The technologies for battling crime are reapplied to battle illegal immigration. Note how the new proposal shifts the usage of searches and profiling from street crime to immigration, including an allocation of police resources for this matter. This is not a new slice of the police expenditure pie; it is a legitimate use of crime-fighting resources. Moreover, as we said elsewhere, the public gets to have a say when not enough money is allocated to the new crusade.

Immigrants are expensive villains; ousting them is cheap. Governing many of our technologies vis-a-vis the immigrants is the anti-humonetarian misperception that they eat up public resources, and that criminalizing them is a wise move, wallet-wise. It is supposedly cheaper to arrest them in the streets than to provide them with social services; it is supposedly cheaper to house them in federal deportation camps than in state institutions. This is a false savings measure, which might or might not displace the costs of illegal immigration, rather than diminishing them. I don't know whether that would be the case, savings-wise, but neither do those proposing these measures for savings-related reasons.

Underlying all these features is a deep and basic misunderstanding of the problem: Whether or not American society, and particularly the economies of Sunbelt states like California and Arizona, is endangered by undocumented immigrants, it needs them, and its political and economic realities has created them, for better or for worse. As with our complicity in the picture of crime, we cannot ignore our complicity in the creation of illegal immigration.

Wednesday, May 26, 2010

Justice Policy Institute release

May 24, 2010

CONTACT: Adam Ratliff,, (202) 558-7974 x306

Crime report shows crime fell in 2009 as prison growth rates decreased

Drop in crime comes as states seek ways to reduce prison populations and improve savings for state budgets

WASHINGTON, D.C.-Reported violent crime in the United States fell by 5.5 percent and property crime by 4.9 percent in 2009, according to an analysis released today by the Justice Policy Institute (JPI). The analysis, which was based on the FBI's Preliminary Annual Uniform Crime Report, released earlier today, also found that this drop in crime coincided with decreasing use of prisons from previous years. This corresponds with a national trend of states seeking ways to curtail corrections spending in light of the economic downturn. JPI applauded the news, saying it highlights that states can save money, promote alternatives to incarceration and still maintain public safety.

"Increased incarceration does not increase public safety," said Tracy Velázquez, executive director of the Justice Policy Institute. "The FBI's report shows that we can improve public safety and put fewer people in prisons, which means savings for taxpayers in addition to stronger communities. Investments in jobs, education and treatment are areas where states should focus their dollars, as all of these will help reduce crime more effectively and fairly than building more prisons."

According to the analysis, the 2009 drop in crime came at a time when the prison growth rates fell from previous years. While the number of people in prison is still growing, it is at a slower rate than the last few decades.

"Contrary to the conventional wisdom that locking people up makes communities safer, the data is clearly showing that crime is going down as fewer people are being put in prison," Velázquez added. "Rather than spending more money unnecessarily on policing and incarceration, we recommend that states increase their investments in people and communities, rather than prisons, as a better way of ensuring that public safety continues to improve."

The Justice Policy Institute (JPI) is a Washington, D.C.-based organization dedicated to reducing society's use of incarceration and promoting just and effective social policies.

For a more in-depth analysis of crime trends, and information on effective public safety practices, please visit our website at


SF Public Defender: Justice Summit

On May 19 I attended the San Francisco Public Defender's 2010 Justice Summit, at the SF Public Library. Jeff Adachi eloquently introduced a day of 3 panels, one Clara Foltz impersonator, a TV PSA, and free lunch. The PSA video was a startling, professionally-produced 15-second spot promoting the abstract concept of the public defender ("PD").

The first panel, "Ordinary Injustice," offered a scathing critique of every level of our criminal justice system. The title was taken from the book of the same name by Amy Bach, who spoke first and stole the show with firsthand stories of miscarriages of justice in rural courtrooms. She also noted that these problems affect everyone, not just those caught up in this system, because our tax dollars become the collateral consequences. Laurence Benner made the point that this injustice will inherently remain so long as local politicians are entrusted with funding our indigent defense system. Kenneth Tanaguchi, Fresno PD, mentioned thatjustice suffers in counties using contract defenders because of their innate conflict of interest: turning a profit will trump clients' best interests when criminal defense services are auctioned. John Terzano, Justice Project ED, explained prosecutorial misconduct as a product of prosecutors' discretion, lack of accountability, and entrenched culture. Sam Webby described his series of stories for the San Jose Mercury-News about the San Jose's defendants going without representation at their first (and usually only) appearances, which led to a change in policy: now those courtrooms have lawyers in them everyday for the first time.

The second panel discussed PDs' public relations problem: "Public pretender or public crusader?" Former prosecutor Jonathan Shapiro, now famous for The Practice and Boston Legal, started controversially by telling the audience of PDs to cut their ponytails, lose their earrings, and wear dark suits with white shirts and red ties. His main point was that PDs need more self-promotion, and collective national representation to educate the public on their purpose and worth. Jami Floyd of tv's The Best Defense agreed that the media contributes to misperceptions of the PD's role, because of the pro-prosecution bias in the assumption that defendants did something wrong (violating innocent-until-proven-guilty). A New Yorker, she argued that reforming draconian drug laws is the best issue to start with reshaping the PD's image. Criminal defender Gerald Schwartzbach drew applause for, "You don't fight crime by cutting social services," and for, "Putting a black robe on a jackass doesn't get you a judge," and for, "The whole criminal defense bar, public and private, needs to circle the wagons" and unify to improve its reputation/image. Carol Dee Huneke of PD Revolution ( pointed out that even though emotionality usually favors victims, occasionally it works for defenders, and then they ought to call the media.

The third panel focused on prisoner re-entry services, from the mixed viewpoints of service providers, former prisoners, and advocates. It was pretty depressing, as highlighted by Eliza Hersh of the East Bay Community Law Center's Clean Slate program: "There's not really such a thing as a 'clean slate' in California."

Tuesday, May 25, 2010

State Appeal to Terminate Receivership Denied

In a recent decision from April 30 that received surprisingly low coverage, the Ninth Circuit dismissed the State's appeal to terminate Clark Kelso's receivership of the prison health care system.

The state's arguments targeted the District Court's jurisdiction in appointing the receiver, as well as the receivership itself not being the "least intrusive" measure and the receiver's construction plans.

In reviewing the District Court's decision de novo, the Circuit Court found that the Prison Law Reform Act did not bar the appointment of a receiver. Moreover, given the horrifying standards of medical care, the receivership was the least intrusive measure, and the state did not oppose it at the time of the receiver's appointment. In addition, the state's inability to comply with its own plans necessitated external intervention.

Props to Aaron Rappaport, as well as to Shaun Martin over at the California Appellate Report.

Monday, May 24, 2010

Sit/Lie Ordinance Will Be on Ballot

My moral standing is lying down.
--Nine Inch Nails, "The Only Time"

Today's Chron reports Mayor Newsom's intention to bypass the Board of Supervisors and take the Sit/Lie Ordinance to the voters on the 2010 ballot. We have discussed this ordinance here and there, but now that the decisionmaking has been shifted unto the voters, it is time to talk a little bit about the details.

If San Francisco voters are presented with a sit/lie ordinance in 2010, there are a few parameters that are worth considering:

Are there alternatives? If the San Francisco police can arrest or cite offenders for loitering, aggressive panhandling, assault, and drug offenses, what is the marginal benefit of this ordinance?

Time/space limitations? An ordinance of this sort is more likely to conform to constitutional standards if it doesn't pursue and persecute people whenever and wherever they are. Similar pieces of legislation elsewhere have limited the criminal prohibition to certain hours in the day and certain areas of the city.

Warning? The law is significantly less draconian if it gives people the opportunity to move away. In some municipalities, a warning needs to be given in writing; in others, an oral warning will suffice.

Authorization to arrest? Does violating the law trigger the risk of arrest? If so, voters might be interested in weighing the interest of proportonality.

Sentencing? This goes to the question how comfortable we are with people doing time in jail--overcrowded as it is--for a municipal petty offense. It is rather likely that, in light of jail overcrowding, most of these cases will be dismissed anyway or dealt with through a fine system, in which case the efficacy and deterrence of the new law should be assessed. And if there is a fine, how much should it be, and how will its amount be tailored to the likely offenders?

Alternative shelter and related expenses? Sit/Lie Ordinances in other municipalities have been found unconstitutional by the 9th Circuit when the court found that the folks lying in the street had nowhere else to go. Providing enough shelter, so as to assure the new law's constitutionality, may cause the city to incur additional preparation and expense.

And, finally--impact on budget? Beyond the issue of shelter, voters need to take into account the impact that citations, arrests, and sentencing will have on the city budget. The more severe the implications of ordinance violation are, the more expensive this measure will be. Even if massive case dismissals will thwart the effort (which may very well be the case), it will still eat up valuable prosecutorial time and money.

Props to KCBS, with whom I talked about this topic this afternoon, for prompting the discussion, and to Adam Maldonado for some very useful information.

Friday, May 21, 2010

Pregnant Inmate Bill Passes Assembly

A couple of months ago we reported on the introduction of AB1900, a bill aimed at the protection of pregnant inmates. The bill passed yesterday, 70:0. It is an important step toward the protection of pregnant inmates' welfare and well-being.

Wednesday, May 19, 2010

Impact of Strikers' Health Care on Prison Budget

Marisa Lagos's story this morning on the Chron discusses the impact of old and infirm inmates on prison budget. The piece references a report by State Auditor Elaine Howle (which you can access here in full). Her key findings are as follows:

43,500 inmates currently sentenced under the three strikes law (striker inmates) make up 25 percent of the total inmate population. Further, with regards to striker inmates:
  • On average, they receive sentences that are nine years longer—resulting in approximately $19.2 billion in additional costs.
  • More than half are currently imprisoned for convictions that are not classified as strikes.
  • Many were convicted of committing multiple serious or violent offenses on the same day, while some committed one or more of these offenses as a juvenile.
Health Care Services has not fully estimated potential savings from its proposed cost containment strategies. Further, a significant portion of the cost of housing inmates is for providing health care, which includes contracted specialty health care.
  • Roughly 41,000 of the 58,700 inmates that incurred specialty health care costs averaged just more than $1,000 per inmate and cost $42 million in total. The remaining 17,700 inmates incurred costs of more than $427 million in the same year.
  • Specialty health care costs averaged $42,000 per inmate for those inmates that incurred more than $5,000 for such costs and were age 60 and older.
  • The specialty health care costs associated with inmates that died during the last quarter of the fiscal year were significantly greater than any specific age group—ranging from $150 for one inmate to more than $1 million for another.
Nearly 32 percent of overtime costs in fiscal year 2007–08, or $136 million, were related to medical guarding and transportation for health care.

Custody staff’s growing leave balances—due in part to vacancies, errors in Corrections’ staffing formula, and exacerbated by the State’s furlough program—represent a future liability to the State of at least $546 million and could be more than $1 billion.

We discussed this issue before. While Strikers and infirm prisoners are not the majority of prison population, their impact on the budget is enormous.

Monday, May 17, 2010

More from SCOTUS: Congress May Impose Civil Commitment on Mentally-Ill, Dangerous Sex Offenders

The other big SCOTUS decision to come out today is United States v. Comstock. It is a federal case, but it has important implications for state law and for federal-state relationships.

The law in question is 18 U. S. C. §4248, which authorizes a federal district court to order the civil commitment of an offender beyond his or her release date from prison, if the government proves that he or she:

(1) has previously “engaged or attempted to engage in sexually violent conduct or child molestation,”
(2) currently “suffers from a serious mental illness, abnormality, or disorder,”
and (3) “as a result of” that mental illness, abnormality, or disorder is “sexually dangerous to others,” in that “he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”

What happens next is an interesting exercise in jurisdictional battle. The AG is supposed to convince a state to take over treatment for the offender, and only if this is unsuccessful, the feds will commit the offender to a federal facility.

Let's first discuss what this decision did NOT deal with. The original standard of proof by the government for civil commitment was "clear and convincing evidence"; the federal district court has decided that standard was not enough and required proof beyond a reasonable doubt. This ruling was not changed by subsequent litigation, so presumably the standard of proof now is beyond a reasonable doubt. If any federal court experts think otherwise, feel free to comment.

SCOTUS, instead, only discussed the other argument, which is that Congress has exceeded its authority under the Necessary and Proper Clause (Art. I, §8, cl. 18). In other words, as Justice Breyer says in his Opinion of the Court, it examined "whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power." Breyer answers this question in the affirmative, for five reasons:

1. Congress has broad authority to legislate in many arenas not specifically mentioned in the clasue, and in this case, there is a connection between the end (protecting the public) and the means (civil commitment);
2. Congress has long been involved in the issue of mental health care for federal prisoners and civil commitment;
3. There are sound reasons for the law: protecting the public where the states fail to do so.
4. The law does not violate state sovereignty, but rather requires accommodation of state interests; the state may or may not choose to take the federal inmate under its medical wing (moreover, as Justice Kennedy adds in his concurrence in judgment, it does not intervene with the state's ability to decide on civil commitment of its OWN inmates).
5. The law is not excessive; it applies to only a small fraction of federal prisoners who are already in federal custody.

Interestingly, both Justice Alito (who concurred in judgment) and Justices Thomas and Scalia (who dissented) expressed classic concerns about federal standards being applicable to the states and infringing upon their sovereignty. As opposed to the conservative view during the Warren Court days, in which federal standards were pro-defendant, in this case, the dissenters find it difficult to agree to a federal standard that actually generates more punitiveness.

It remains to be seen how much the feds will make use of this new power, and how much the states will acquiesce to the request to host federal inmates in state facilities at the state's expense.

SCOTUS: No Life Without Parole for Juveniles Charged with Offenses Other than Murder

This just in--the Supreme Court's decision in Graham v. Florida. The bottom line:

The Constitution prohibits the imposition of a life with- out parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.

The petitioner, Graham, was convicted of armed robbery, which he committed at the age of seventeen after a history of previous crime, and for which he was sentenced to life in prison, which under Florida law does not allow for parole. The Supreme Court decided that such a sentence constitutes "cruel and unusual punishment" under the Eighth Amendment.

The opinion of the court was written by Justice Kennedy. It is crafted around the notion of proportionality, mentioning that the court has been bitterly divided on some "close cases", such as sentencing under Three Strikes. In this case, however, the proportionality argument is a bit different:

The present case involves an issue the Court has not considered previously: a categorical challenge to a term-of- years sentence. The approach in cases such as Harmelin and Ewing is suited for considering a gross proportionality challenge to a particular defendant’s sentence, but here a sentencing practice itself is in question. This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes. As a result, a threshold comparison between the severity of the penalty and the gravity of the crime does not advance the analysis. Here, in addressing the ques- tion presented, the appropriate analysis is the one used in cases that involved the categorical approach, specifically Atkins, Roper, and Kennedy.

Following these precedents, Justice Kennedy proceeds by seeking "objective indicia of national consensus." Seeing that different states have different legislative schemes for juveniles charged with crimes other than murder (for our purposes: California allows LWOP for juveniles charged with offenses other than murder), he notes that "[a]ctual sentencing practices are an important part of the Court’s inquiry into consensus." And, as the court finds, "an examination of actual sentencing practices in jurisdictions where the sentence in question is permitted by statute discloses a consensus against its use. Although these statutory schemes contain no explicit prohibition on sentences of life without parole for juvenile nonhomicide offenders, those sentences are most infrequent. According to a recent study, nationwide there are only 109 juvenile offenders serving sentences of life with- out parole for nonhomicide offenses." (more on that here). Kennedy finds the state's arguments against the study "unpersuasive". The rarity of such sentences, he says, is particularly striking when compared to the base rate of such offenses.

Kennedy also makes an interesting comment about the "adultification" of juvenile proceedings:

Many States have chosen to move away from juvenile court systems and to allow juveniles to be transferred to, or charged directly in, adult court under certain circumstances. Once in adult court, a juvenile offender may receive the same sentence as would be given to an adult offender, including a life without parole sentence. But the fact that transfer and direct charging laws make life without parole possible for some juvenile nonhomicide offenders does not justify a judgment that many States intended to subject such offenders to life without parole sentences.

He then moves on to adopt the reasoning in Roper v. Simmons, where the Supreme Court declared the death penalty for juveniles cruel and unusual. The findings cited in Roper with regard to juvenile cognitive developments are seen as still valid and material for deciding about LWOP as well. The "death is different" argument made by the state did not carry the day.

Finally, Justice Kennedy goes over the aims of punishment, concluding that none of them are served by this exceedingly harsh punishment for juveniles. He rejects a case-by-case solution (such as requiring jurisdictions to take the offender's age into account), explaining that the uniqueness of juvenile proceedings calls for a categorical rule.

Justice Stevens, soon to retire, wrote a beautiful concurrence, including the following:

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commit- ment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete[.]

Chief Justice Roberts concurred with the judgment in Graham's case, arguing that in some other cases, which involve more heinous crimes, LWOP might be appropriate. Predictably, Justices Thomas and Alito dissent.

The battle for reforming sentencing and rolling back punitivism is far from over. Moreover, this ruling will affect a very small number of juveniles. However, where life without parole is concerned, every potential person who will now have a light at the end of the tunnel is a boon. It is a good day for all of us who care about humane punishment.

Friday, May 14, 2010

Crime Pays? For Whom?

This morning's Bloomberg Businessweek has a fascinating piece on California inmates housed in out-of-state private facilities run by Corrections Corp. It's hard to pick a paragraph to quote; the whole piece is a gem. It appears that CCA, at least superficially, does a better job than CDCR at housing inmates in decent conditions. Also, note how privatization is presented as an economic boon for towns in Arizona, who become "Prison Town, USA" because of the prospect of jobs and prosperity.

My concerns, however, lie with the incentives:

In investor presentations, Corrections Corp. touts as benefits to the company demographic trends that in other contexts would be considered societal ills.

“At current incarceration rates, jail and prison populations would grow by about 121,000 between 2010 and 2015, or more than 24,000 per year on average,” Corrections Corp. said in a February presentation. Both “high recidivism” among felons and “inmate population growth following prior recessions” are highlighted as positives for the company in the 48-page report.

And then there's this, which raises concerns about inappropriate lobbying:

U.S. states are forecasting budget deficits of $136.1 billion through 2012, according to figures released in February by the National Association of State Budget Officers and the National Governors Association.

“It cuts both ways,” said Jane Cotroneo, a Moody’s analyst who follows prison operators and real estate investment trusts. Decisions by some states to eliminate mandatory minimum sentencing and release some prisoners early may hurt Corrections Corp., she said. “Even if they didn’t continue to grow, or leveled off for a while, they would do fine where they are.”

Do the benefits--decent conditions, classes, vocational training, inmate satisfaction--outweigh the concerns?

Wednesday, May 12, 2010

Update re: Behavioral Modification Units

This just in from Charles Piller:

On Monday, in response to The Bee series, the state Department of Corrections and Rehabilitation announced a full-scale investigation of the alleged abuses, reversing its previous position. The department will look at claims detailed by The Bee, the apparent cover-up of those claims, and revelations in our series that corrections department experts who urged an investigation apparently were muzzled for years and may have been retaliated against.

On Tuesday, Governor Arnold Schwarzenegger announced his support for a full probe of the issues raised by The Bee. California Senate leaders vowed to conduct their own investigation, to oversee the corrections department effort, and to ensure that the results are reported to the public.

Monday, May 10, 2010

The New Rehabilitation?

The recent investigative pieces in the Sacramento Bee about behavior modification units have made me reflect again about the concept of rehabilitation. Whether the examples in the Sac Bee investigative report are outlier "rotten apples" or systematic abuse and neglect, they are certainly a reminder that rehabilitative/medical approaches do not necessarily imply benign coddling of inmates.

This would seem obvious, but the political realities of the correctional debate would suggest otherwise. As Francis Cullen argues here, rehabilitation has become a political counterweight to punitivism, as anything that can be rhetorically labeled "rehabilitation" might still garner public support and yet be less harmful than hopeless warehousing. Nevertheless, the usage of the term "rehabilitation" in rhetoric is very different from its application in practice. Elsewhere we discussed the tendency to accept the academic received wisdom that determinate sentencing is the root of all evil in U.S. corrections, and that in the "good old days" of indeterminate sentencing there was much attention to rehabilitation and betterment.

This nostalgia, according to people who studied the systems at the time, is misplaced; much of the support for determinate sentencing came from progressive circles, who were aware of the abuses and exploitation involved in the so-called rehabilitative scheme and hoped that the determinate sentencing system would be more benign. Moreover, even when rehabilitation was taken seriously, the techniques used were far from benign and "soft"; the history of corrections in the United States started with the Philadelphia and Auburn prisons, both of which used isolation as a technique to induce self-reflection and repentance (more so in Philadelphia, where inmates were kept in absolute seclusion from each other, ironically much like today's inmates at SHU and the behavior modification units).

The problem, therefore, lies not in our choice between punitivism and rehabilitation; it lies in the method we use to assess what might constitute rehabilitation. Over the years, we have implemented policies based on unfounded, untested assumptions about recidivism, repentance, and the like: isolation, tough love, confrontation with nature, have been tried not only in prison, but in various programs like reform schools and boot camps. The call for evidence-based rehabilitative programs is not about implementing benign or coddling programs; it is about implementing programs that have been proven, through careful assessment and sound methodology, to work in the real world. This is something that everyone concerned with rational resource allocation, on either side of the political map, should agree on. And until our resources focus on such programs, all we are doing, really, is warehousing our fellow Californians, and we should at least be honest about it.

Behavior Modification Units: Part 2

This morning's Sac Bee features the second part of the investigative report on conditions in CDCR's behavior modification units. This time, much of the article focuses on the substance abuse units at Corcoran State Prison and at Calipatria. With cuts to the actual rehabilitative programs in these institutions, behavior modification consists mostly of deprivation and isolation, and inmates prefer the hole to the special unit.

The behavior units were sold to lawmakers as a way to reduce recidivism. But the corrections department researchers who evaluated High Desert pointed out that with an emphasis on punishment, such units likely would lead to more crime in the community and more convicts returning to prison.

"This program is not going to help us – our behavior – because they keep us in the cell all day," said Robert Lane, housed in the Calipatria behavior unit for the past year. "They don't give us no recreation, they don't give us no day room. We don't get no phone calls. We can't talk to our family. So we building up more and more anger."

For the first part, click here.

Sunday, May 9, 2010

Behavior Modification Investigation in today's Sac Bee: Part 1

Today's Sac Bee includes the first in a series of two investigative pieces by Charles Piller on behavior modification in the High Desert facility in Susanville (featured in the documentary Prison Town, USA).

A Bee investigation into the behavior units, including signed affidavits, conversations and correspondence with 18 inmates, has uncovered evidence of racism and cruelty at the High Desert facility. Inmates described hours-long strip-searches in a snow-covered exercise yard. They said correctional officers tried to provoke attacks between inmates, spread human excrement on cell doors and roughed up those who peacefully resisted mistreatment.

Many of their claims were backed by legal and administrative filings, and signed affidavits, which together depicted an environment of brutality, corruption and fear.

Behavior units at other prisons were marked by extreme isolation and deprivation – long periods in a cell without education, social contact, TV or radio, according to inmate complaints and recent visits by The Bee. An inmate of the Salinas Valley State Prison behavior unit won a lawsuit last year to get regular access to the prison yard after five months without exercise, sunlight or fresh air.

Stay tuned for the second part tomorrow.

Saturday, May 8, 2010

Sanctuary City No More?

In late 2009 we reported about the debate on reporting undocumented immigrants in San Francisco, and about the subsequent passage of a San Francisco city ordinance that would disallow the usage of city resources to report undocumented immigrants to the feds, including juvenile delinquents. It seems that this city policy has now been rendered irrelevant by a new governmental automated reporting system. The Chron reports:

Starting next month, the San Francisco County Jail must begin participating in an automated reporting system set up by the U.S. Department of Homeland Security. The program, Secure Communities, automatically links the fingerprint databases of state justice departments with a database used by the U.S. Immigration and Customs Enforcement Agency, known as ICE.

As part of San Francisco's 1989 sanctuary city policy, officials only report felony suspects whose legal status can't be readily confirmed upon booking to federal officials. The new program would end that discretionary practice because all digital fingerprints will automatically be forwarded to the state Department of Justice and on to federal immigration authorities for review.

"Essentially, this guts San Francisco's sanctuary ordinance in terms of criminal justice," San Francisco Sheriff Michael Hennessey told The Chronicle on Wednesday.

This change in practices, however, still keeps California well behind Arizona, in which confirmation of immigration status can be made not by database comparison after official booking, but based on simple profiling by police in the street.

Students v. Inmates: Financing Higher Education in Prisons

This interesting New York Times piece recounts a recent debate between teams of inmates and students on the question whether the government should finance higher education in prison.

In his dark green uniform and wire-rimmed glasses, Mr. Cooper had the look of a graduate student working some night shift to play the bills. He said that he had done some teaching while in prison, and that he occasionally spoke to at-risk youth about the consequences of “bad choices.” Fifteen years ago, while a student at Medgar Evers College in Brooklyn, he made a bad choice and joined a robbery on Long Island. “I was a fair student,” Mr. Cooper said. “But I went for the quick fix.”

He and his teammates displayed a consistently confident, Obama-inspired style: some measured, almost soothing oratory; some strategic finger-pointing; some appeals to reason. Statistics poured out at a steady rate, about the country’s high recidivism problem and the links between higher education in prisons and lower recidivism rates. Higher education, Mr. Cooper argued, represents “the last bastion of civility and the last hope for inmates to slip the bonds of incarceration and become tax-paying, productive, caring members of society.”

The New Schoolers could not quite bring themselves, as one of them, Santiago Posas, put it, to make some “Republican we-can’t-coddle-criminals argument.” Instead, they went nuclear, debate-style, rejecting the education system altogether: Even if higher education in prisons is ethical, Mr. Posas argued, that premise “does not address the basis for true equality within our society that is structured by complex and hierarchal racist, classist and gendered norms that produce the prison-industrial complex.”

The inmates won.

It appears that the New School Team didn't go for cost-saving arguments, but rather to post-structuralist rhetoric; they were also given an almost unsustainable position to argue. If I may suggest a more timely topic for a students v. inmates debate, with much more meaty policy-related arguments to make, it might be the question whether states should spend more money on correctional institutions than on higher education. Then again, I'm not sure the inmate team would disagree on the need to change the balance; the question is not whether our correctional expenditure should diminish (it should) but how to achieve the decrease.

Props to Colin Wood for the link.

Friday, May 7, 2010

Junk Food in Jail: Pacifying or Paternalistic?

The printed edition of the Wall Street Journal published last week a piece about the increasing availability of junk food for purchase at county jail commissaries. Aramark Corp., a giant food provider, offers families the possibility to purchase hot wings, pizza, nachos, vanilla cappuccino and other food items, tailoring them to the different regulations of country jails through their icare website. The list of jails includes several CA facilities.

Advocates say the deliveries give guards a potent disciplinary tool: Be good or you won't get your jalapeno poppers.

Revenue from the meals has saved prison programs, such as parenting classes, wardens say. And in some institutions, inmates get job-trainign credit for preparing the hot meals in the jail kitchen and packaging the junk-food boxes.

Plus, said Deputy Chief Debra Jordan, who runs detention programs in Bexar County, given the "very humble" quality of prison food, letting an offender's mom buy him a club sandwich now and then "is an act of kindness."

Critics, however, fear the deliveries will inspire envy, violence and extortion. "It's like with kids--you don't bring cookies to school unless you've got enough for everyone," said Gordon Crews, a criminal justice professor at Marshall University.

Wardens who have tried the program say that hasn't been a problem. Many prisons have long let well-behaved inmates order good such as CD players, sneakers and mini-TVs. "Hails are always run better when your inmates are happy," said Capt. Richard Fisher, the jail administrator in Rock Island County, Ill.

This piece has made me think quite a bit about paternalism and the role of jail in behavior modification. I can see how interfering with grownups' food choices is a very problematic thing to do; the public debates about approaching obesity invoke the same sort of questions. And yet, when we lock people up, the hope is that we might do something better. I can't help but think that the industrialized aspect of the junk food delivery enterprise, complete with providing prison authorities with docile, buffalo-wings-fed inmates, is less exciting an opportunity than programs like Philadelphia's City Harvest, which creates a garden within walls and gives people the opportunity many of them did not have, to connect directly with nature and with their food. I'm not even talking about the potential health-expense implications of fast food consumption in jail, but rather about giving people the opportunity to consider their food choices, as well as other life choices, when they have time to consider those. Maybe I am being too paternalistic, or imposing my own food choices, which, granted, are class- and lifestyle-driven, on others. In any case, I don't feel entirely comfortable with this system, and I'd love to hear your comments.

props to Ocean Mottley who alerted me to this.

Tuesday, May 4, 2010

Three Thoughts on the Arizona Immigration Law

Much has been written in the last few days about the infamous Arizona measure--provided here in its entirety--which defines undocumented stay on Arizona soil a state offense and authorizes police officers to stop people based on reasonable suspicion that they might be in the country illegally. Beyond the obvious arguments regarding status offenses and racial profiling, here are a few issues that have received a little less publicity.

First, in creating a state offense of being in the country illegally, Arizona would generate somewhat of a conflict: Should people caught under the new measure be incarcerated or deported? It is quite astonishing that, in times of prison overcrowding and resource scarcity, a state would be willing to undertake the trouble and expense to handle people who can just as easily be handed over to the feds. Our regular readers may recall how much Governor Schwarzenegger emphasized the deportation, and federalization, of undocumented inmates, as a way to overcome the overcrowding crisis--even suggesting, at some point, to build special prisons in Mexico. Does Arizona not face similar problems? Mona Lynch's recent book is eerily apropos here: Over the last few decades, Arizona grew from a state of sparse, swift, cheap punishment, to a penal monster. Does it really need the budgetary burden of handling undocumented inmates?

Second, this brings up the question whether law enforcement agencies are even interested in enforcing this measure. We know the answer is affirmative at least in one case--that of Maricopa County Sheriff Joe Arpaio, famous for his humiliating punishment methods, odd penal innovations, and ruthless persecution of undocumented immigrants (Arpaio has only recently decided against entering the Arizona gubernatorial race). Other lawmakers, however, might resent the need to devote precious resources to the hunt of undocumented immigrants at the expense of curbing violent crime.

Third, the most astonishing bit of this bill seems to be a clause that allows Arizonians a private right of action if the police does not spend the appropriate resources to pursue undocumented immigrants. Given our previous conversations on public punitiveness, this is a great cause of concern; the lack of budgetary literacy in the public, and the lack of knowledge that any expenditure choice comes at the expense of something else, does not bode well for this measure.

props to my fabulous colleague David Levine for the conversation that sparked this post.