Sunday, May 29, 2011

Overcrowding Images

Several commentators remarked this week of the role of images in the Plata litigation. Courtesy of Mother Jones, here is a series of images depicting the overcrowding crisis.

Props to Rohen Peterson for the link.

Saturday, May 28, 2011

In the Aftermath of Plata: Wrong Releases and Declining Crime

Two big stories, coming in the heels of Brown v. Plata, present a spectrum of issues that should have us occupied in the next few years as California struggles to find its way out of mass incarceration.

The first story appeared in the Los Angeles Times on the very next morning. Apparently, due to a computer error, hundreds of parolees were wrongfully released. The timing of this story is rather peculiar; it coincides not only with the decision, but also with the budget cuts to CDCR and to parole departments in particular. Apropos parole, a proposal for medical parole has begun making the rounds in the legislature.

The second story, featured in yesterday's Chron, is about the decline in violent crime in California, which, in accordance with the national trend, has fallen to a 44-year low. As many experts have demonstrated, this decline has very little to do with incarceration, and is the outcome of various longitudinal developments unrelated to the administration of justice.

Wednesday, May 25, 2011

Shame on You, Justice Scalia

Our previous post was devoted to Justice Kennedy's opinion in Plata, and discerning readers may have noticed we did not discuss the dissents. I didn't comment on those because, to me, they represent the worst kind of populist alarmism and rhetoric of fear, and pretty much the last thing we need now. But I have to say something about the rhetoric in Justice Scalia's dissent, because being silent about such matters is tantamount to letting them happen without outrage in the public sphere.

Justice Scalia writes:

One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result.

Uhmmmm, no.

The "outrageous result" is having human beings caged and soiled in their feces and urine for want of medical treatment, Nino. The "outrageous result" is that people needlessly die waiting to be examined and diagnosed. Your comments about the lack of standing of inmates are disenfranchising and dehumanizing. It's fairly obvious that the thought that there, by the grace of God, goes you, has never crossed your mind. Clearly, because during the oral argument, when Justice Sotomayor was horrified and heartbroken to hear about these inflictions of needless suffering, you told her off, saying "don't be rhetorical."

Your cruel mockery of human beings like you and complete lack of human empathy really shine through in this remarkable passage:

Most of them will not be prisoners with medical conditions orsevere mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.

This has to be one of the most backwards, Lombrosian, objectifying, smug paragraphs ever written by a judge about inmates, or really, about anyone. It recalls Justice Holmes' infamous comment in Buck v. Bell, that "three generations of imbeciles is enough", ironically shattering the life of someone who was not mentally defective.

These are shameful words, but Justice Scalia is not the only one who needs to be ashamed. We all share in the shame. Because the bottom line is that all the horrific abuses in the California correctional system would not have occurred, despite alarmist politics, fear-mongering media, redball cases, and a powerful prison guard union, had it not been for our collective lack of empathy for our fellow Californians behind bars. We have "othered" crime long enough. Empathy has been a long time coming. Fortunately, five out of nine Supreme Court Justices were able to find some within their hearts. Here's hoping that many taxpayers and policymakers follow their example.

Monday, May 23, 2011

Brown v. Plata Decision Analysis: Justice Kennedy's Opinion of the Court

As per legal requirements, the Supreme Court reviewed the factual findings of the three judge panel using a standard of "clear error", which allows them less leeway for intervention than in the legal findings, which are reviewed de novo. For this reason, the factual basis for the decision is quite familiar to those who read the original three-judge-panel order, but the legal analysis is rather extensive.

The decision outright rejects the state's contention that the three judge panel was convened incorrectly, stating that the time that passed and the lack of relief necessitated this step. Documenting the standard of care, the abundant vacancies for medical and mental health staff, and the shortfall of resources, Justice Kennedy states that the court had waited long enough before recurring to this admittedly drastic step. Justice Kennedy supports and affirms the three-judge-panel conclusions that overcrowding was the dominant reason for the violations, as well as their conclusion, after considering many other options, that other remedial efforts had not borne fruit and therefore the only recourse would have to be reducing the population.

While the population reduction is of "unprecedented sweep and extent", writes Justice Kennedy, "yet so too is the continuing injury and harm resulting from these serious constitutional violations." Justice Kennedy devotes a large portion of the opinion to a detailed description of the overcrowded conditions, mentioning the San Quentin converted gym (the very first picture we posted on this blog.) He provides details of numerous incidents in which inmates received appalling mental and physical care. He also provides details of the history of both cases, Coleman and Plata, and how the various measures to which the state resorted throughout the years (including a special master for the mental health system and a federal receiver for the medical system) failed to improve conditions. In this part he relies extensively on data from the receiver and the special master, as well as in the three-judge-panel decision. His description of how overcrowding is a direct and indirect cause for the abysmal health care follows closely the original panel order, citing, among other factors, the unsanitary conditions and the reliance on lockdowns, both discussed extensively in the original order.

"To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison's failure to provide sustenance for inmates 'may actually produce physical 'torture or a lingering death'.'. . . Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society. . . [i]f the government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation."

As far as its practical implications, the decision is a mixed blessing. Readers looking for an unequivocal statement on behalf of decarceration will find its bottom line a bit more disappointing than it leads to believe. Justice Kennedy is cautious to mention, in the very opening paragraphs, that "[t]he order leaves the choice of means to reduce overcrowding to the discretion of state officials. But absent compliance through new construction, out-of-state transfers, or other means--or modification of the order upon a further showing by the State--the State will be required to release some number of prisoners before their full sentences have been served." By framing the issue in this way, Justice Kennedy sets the stage for the state to avoid early releases by recurring to damaging, malignant techniques, which will only increase mass incarceration in the long run.

However, there are also more optimistic bits. Justice Kennedy seems fairly convinced by the evidence presented to the original panel about the possibility of reducing population without causing an increase in crime and endangering public safety. He also affirms the panel's estimate as to the extent of the reduction. His words on that are a vote of confidence in the panel's work, comparing their projection that a 137.5% capacity would be reasonable under the circumstances to the situation in other states and in the federal prisons.

Justice Kennedy is careful to cut the state some slack in the timing of its plan. He encourages the state to "move for modification of the . . . order to extend the deadline for the required reduction to five years from the entry of the judgment of this court, the deadline proposed in the State's first population reduction plan. . . [t]he three-judge court, in its discretion, may also consider whether it is appropriate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release." For this purpose, an extension of time is encouraged. While some inmate advocates may scoff at this, it's important to remember that, from now on, the state and the courts need to cooperate, and in the course of this long-term cooperation, many compromises will have to be made.

BREAKING NEWS: Supreme Court Affirms Plata Decision, Orders Decrowding

Today, the Supreme Court decided, 5-4, to uphold the three-judge panel decision in Plata v. Schwarzenegger (now Brown v. Plata). Justice Kennedy wrote the Opinion of the Court, which is very sensitive to the inmates' plight, and orders the state, and CDCR, to reduce prison population by a considerable percentage (about 40,000 inmates).

A detailed analysis of the decision will follow later tonight, but for now, here are some important implications:

The majority decision gives the state a lot of leeway in the timeline of achieving the reduction. Justice Kennedy is willing to cut the state significant slack in timely reduction if there is evidence to show that efforts to decrowd are well under way. Contrary to the alarmist tone in Justice Alito's dissent, mass early releases will not happen tomorrow.

The state has considerable discretion not just in when, but also in how, the reduction is to be achieved. Much to my dismay, Justice Kennedy explicitly offers two decrowding methods that I consider shortsighted and malignant: More prison construction (already happening) and more out of state incarceration (already happening). My hope is that the state will not make the huge mistake of relying on incarceration-increasing methods for a short-term reduction which will come back to bite us in a few years with an increased prison population, and will instead rely on benign methods: Sentencing reform, good credits, and parole reform.

More later.

Sunday, May 22, 2011

Roundup: CDCR Budget Cuts, Prison and Slavery

As many of you probably noticed, we're posting with less frequency than usual these days; CCC will be on a mini-hiatus until late July due to an immense workload. We will, however, provide short updates on criminal justice policy and sentencing.

First, the Sacramento Bee reports that most of the personnel cuts in the Brown budget will be in corrections (a full list of cuts is available here.)

Also, recently, Michelle Alexander, author of The New Jim Crow, surprised the audience at a public talk with the sad fact that more Black men are currently imprisoned than were originally enslaved.

Props to Eric Chase and Leslie Davis for the links.

Thursday, May 12, 2011

Jeanne Woodford Joins Death Penalty Focus

Former San Quentin Warden Jeanne Woodford is to become the executive director of Death Penalty Focus. The L.A. Times reports:

On Thursday, the abolitionist nonprofit Death Penalty Focus will announce Woodford's appointment as executive director, a new role that will see her standing on the other side of the walls of San Quentin should any of the 713 death row inmates meet his or her end at the hands of the state.

"I never was in favor of the death penalty, but my experience at San Quentin allowed me to see it from all points of view. I had a duty to carry out, and I tried to do it with professionalism," Woodford, 56, said in explaining how she had to put her personal abhorrence of execution aside to do her job. "The death penalty serves no one. It doesn't serve the victims. It doesn't serve prevention. It's truly all about retribution."

Wednesday, May 11, 2011

A California Gambling Court?

Some of the problem-solving programs are fairly old and well established. An upcoming event in Los Angeles examines the possibility of creating a gambling court, built upon the existing therapeutic program Beit T'shuvah (some of whose residents come from jail, but is not an official sentencing possibility.) It promises to be an interesting evening.

I wonder what our readers think about the potential for a gambling court. If one accepts the rather established notion that gambling, like alcoholism and narcotics, is an addiction/disease, integrating such programs into the courts falls into the problem-solving pattern rather neatly by dealing with issues holistically. Looking forward to learning more about Beit T'shuvah, particularly about any research done on the impact of the program on recidivism rates and rehabilitation.

Monday, May 9, 2011

Off the Hook playing in Redding and Belmont This Month!

The Poetic Justice Project's production Off the Hook - a play set entirely inside a California prison - is playing this month in Redding (May 26) and Belmont (May 28). CCC will enthusiastically attend and review, and you, gentle readers, come in your thousands!

For Tickets for the May 26 performance at United Methodist Church in Redding, call 530 243-2403.

For tickets for the May 28 performance at Notre Dame University Theatre in Belmont, click here.

Sunday, May 8, 2011

BREAKING NEWS: California Will Not Resume Executions This Year

The Los Angeles Times reports:

California corrections officials have put off until at least next year any attempt to resume executions among the 713 condemned inmates on death row, according to court documents.

The request by the California Department of Corrections and Rehabilitation to delay review of newly revised lethal-injection protocols until January at the earliest follows a decision last week by Gov. Jerry Brown to scrap plans to build a new death row facility at San Quentin State Prison.

Now would be a very good time to poll the public for support of the death penalty, including controls for information about expenditure.

Props to Simon Grivet.

Thursday, May 5, 2011

Prison Guards and Legal Reform

Lots of interesting posts lately about the CCPOA, its compensation, and its complicity in the crisis. Today's post from Joshua Page addresses an important distinction between the legitimate and illegitimate aims of the union. Following Sara Mayeux's point from yesterday (the system is broken and the CCPOA involvement is the outcome of that), he argues:

In a perfect world, taxpayers wouldn’t need to offer carrots to a public employee union to reform a state’s criminal justice system. But California politics, to put it mildly, is not quite a perfect world, and unless campaign financing and plenty of other structural matters are radically altered, the governor must get the CCPOA’s buy-in to downsize prisons.

Brown’s realignment proposal is projected to reduce the state prison population by upwards of 40,000. Although it would alleviate overcrowding and satisfy the federal courts, it would not necessarily shrink the overall correctional population (instead it would simply shift state prisoners to the counties). Truly shrinking the system still requires sentencing reform. Neither Brown nor the legislature has shown any willingness to shorten prison sentences or increase alternatives to imprisonment, but if they do take up serious sentencing reform, they will again have to deal with the CCPOA and its allies. By addressing union members’ fears, policymakers can soften their resistance. And while a smaller prison system will eventually lead to fewer officers (and union members), it will also benefit those who continue to toil on the tiers and on the yards.

Some of those fears are, of course, legitimate. Guards' lives are in peril, their jobs are difficult to do, and given the size of our correctional monster, they provide an indispensable service dealing with a situation that is largely invisible to the public (save, of course, when it touches the public wallet in overt ways.) There is a golden mean between the approaches of Schwarzenegger and Brown in their dealings with CCPOA, and here's hoping it can be found soon.

Wednesday, May 4, 2011

A First Look at Inmate Diet: The Nutrition and Violence Connection

CDCR's regulations about inmate diets start off with a commitment to provide inmates with --

a healthy and nutritionally balanced diet, served in an orderly manner with food flavor, texture, temperature, appearance and palatability taken into consideration. Current Recommended Dietary Allowances (RDA), and Dietary Reference Intakes (DRI) as established by the Food and Nutrition Board of the Institute of Medicine, National Academy of Science shall be considered authoritative in setting levels of nutritional need. Sanitation, safety, and food handling standards and practices shall be established and maintained in keeping with applicable requirements established by the Industrial Safety Standards (California Code of Regulations (CCR), Title 8) and the California Health and Safety Code (H&SC).

The standard menu for all institutions is a "heart healthy" low-salt, low-fat diet. All prison meals, save those served in camps, are pork free, and the regulations make allowances for vegetarian, Jewish, and recently added Muslim ("meat alternate") meals.

This week, Emily Deans over at Evolutionary Psychiatry has posted links to several studies, conducted with double-blinds and control groups, which suggest that nutrition may play an important role in inmate violence reduction. Her first post cites two such studies, and her second post speaks of Gesch's work in this field and his assessment that recommendations for vitamin supplements would not be heeded due to political reasons. I assume providing inmates with medication might be portrayed as "coddling" them and make for bad press, but maybe it should be considered as a public safety measure, considering its reductive effects on violence?

I've been trying to look at the Receivership's organizational tree to figure out if anyone at the prison medical services did work concerned with preventative medicine, including dietary recommendations. Dear readers - if you can provide us with sample daily/weekly menus at CA institutions, or with stories on what friends or family members purchase at the canteen to supplement their meals, we'll all know a bit more about prison nutrition.

props to Yossi Kikayon for bringing this to my attention.

A Balanced Look at Guard Compensation

Sara Mayeux of the Prison Law Blog posted a guest post on American Prospect about the Wall Street Journal story we recently covered. Some excerpts follow:

Do you know what "overtime" consists of when you are a prison guard? Hours and hours of your life! Spent inside a prison! Doing the soul-crushing labor of corraling other human beings! Instead of, you know, playing baseball with your kids, or whatever else you might want to be doing. Who wouldn't give up late-night doc review and expense-account dim sum for that? Quelle luxe!

Look, the solution to the high cost of prison staff is to put fewer men and women in prison. If, however, a state is going to put itself into the business of the custodial care of hundreds of thousands of men and women, then it's going to have to hire people to oversee them. And, you know what, it's going to have to pay them semi-decently, and it's also going to have to allow them vacation. So what if it's seven weeks of vacation? So what if they retire at 55? Considering what Philip Zimbardo taught us that being a prison guard does to a person after even a day or two, I wouldn't exactly call that a sweetheart deal.

It is, indeed, a problem that California legislators and voters have prioritized punitive criminal-justice policies at such great fiscal cost and, more importantly, at such great human cost. It is a problem that the political economy of California has rewarded the CCPOA so handsomely over the past 30 years for its advocacy of ever-more punitive sentencing laws. It is a problem that California has nearly 170,000 men and women in prison. The CCPOA did not c3reate those problems so much as it's astutely exploited the system that made those problems possible.

While Mayeux's critique of Finley's comparison is, of course, justified, I think she's cutting CCPOA a bit too much slack. Exploiting a problematic system is not a ticket out of responsibility; ask the many California unions who do not hold the state government hostage, and the many unions that do not have well-funded, deceptive puppet organizations supposedly advocating for victims. And while a system vulnerable to lobbying is not unique to prisons or to California, the war on crime (as opposed to the war on other social ills) has unique features and has had unique consequences as to the urban landscape and life choices of Californians.

I would like to hope that Finley's critique was not aimed at individual prison guards. As Luke Whyte from Voices of Justice reminded us recently, working in corrections is not a piece of cake. And while this calls for a strong union and good work conditions (as per the recently passed contracts), none of this absolves the organization from its cynical exploitation of victim voices to push the government toward solutions that push as further toward mass incarceration. I would like to hear more from CCPOA about their support of a sentencing commission and about community-based solutions. They have a substantial share in the responsibility we all have for the current system and they have the power to be an important player in fixing it.

Monday, May 2, 2011

Jerry, Cut This

Just a few days ago we reported on Governor Brown's decision not to build the new death row, commenting that abolition would save even more. Today, Death Penalty Focus is circulating a cost-centered petition to Governor Brown to abolish the death penalty.

Please read and sign. This is our chance to take this crisis and galvanize it into something positive.

More Information on CA Prison Guard Salary from the Wall Street Journal

A tongue-in-cheek Wall Street Journal op-ed compares the benefits of pursuing a Harvard degree and a career with CCPOA.

Training only takes four months, and upon graduating you can look forward to a job with great health, dental and vision benefits and a starting base salary between $45,288 and $65,364. By comparison, Harvard grads can expect to earn $49,897 fresh out of college and $124,759 after 20 years.

As a California prison guard, you can make six figures in overtime and bonuses alone. While Harvard-educated lawyers and consultants often have to work long hours with little recompense besides Chinese take-out, prison guards receive time-and-a-half whenever they work more than 40 hours a week. One sergeant with a base salary of $81,683 collected $114,334 in overtime and $8,648 in bonuses last year, and he's not even the highest paid.

The comparison, of course, makes no sense in many other ways, but it does draw attention to the salaries, justified by the "toughest beat" rhetoric CCPOA has used for years.

Sunday, May 1, 2011

Pricing the Correctional Free Lunch: Bill Facilitating County Jail Funding Passes Assembly

A new bill, AB94 (full text after amendments here), facilitating funding for county jails, was passed by the CA Assembly. Here's the stated purpose of the bill:

Existing law authorizes the Department of Corrections and Rehabilitation (CDCR), participating counties, and the State Public Works Board (SPWB) to acquire, design, and construct local jail facilities approved by the Corrections Standards Authority (CSA). Existing law authorizes the SPWB to issue revenue bonds, notes, or bond anticipation notes in specified amounts to finance the acquisition, design, or construction, and a reasonable construction reserve, of approved local jail facilities, as specified. Existing law requires a minimum of 25% in county matching funds for projects funded under these provisions and requires the CDCR and CSA to give funding preference to counties that assist the state in siting reentry facilities, as specified. AB 111 of the 2011–12 Regular Session, if it becomes operative, instead requires that the CDCR and the CSA give funding preference to counties that committed the largest percentage of inmates to state custody in relation to the total inmate population of CDCR in 2010.

This bill would, if AB 111 of the 2011–12 Regular Session becomes operative, authorize counties that have received a conditional award under one specified jail facilities financing program to relinquish that award and reapply for a conditional award under a separate financing program, as specified. The bill would lower to 10% the required county contribution and additionally require the CDCR and CSA to give funding preference to those counties that relinquish those specified local jail construction conditional awards and agree to continue to assist the state in siting reentry facilities, as specified. The bill would cap at $100,000,000 the amount a county may receive in proceeds from SPWB’s issuance of bonds, notes, or bond anticipation notes under those specified provisions.

This bill would appropriate $1,000 from the General Fund to the CDCR for purposes of state operations to be used by the CSA in the 2011–12 fiscal year.

This bill would declare that it is to take effect immediately as an urgency statute and a bill providing for appropriations related to the Budget Bill.

From a humonetarian perspective, this bill essentially addresses the "correctional free lunch" problem identified by Zimring and Hawkings in The Scale of Imprisonment:

The parable of the free lunch is relevant to the discussion of prison population because prisons in the United States are. . . paid for at the state level of government out of state correctional budgets, but prison populations are determined by the number of prisoners referred by local officials and the length of sentences imposed at the local level. Since localities do not contribute to central state correctional budgets, the marginal cost of an extra prisoner may be zero at the local level of government, where the decision to confine is made.

Governor Schwarzenegger's reform shifted the incarceration for several offenses from state prisons to county jails in order to address overcrowding at the state level. This change was heavily criticized by conservative lawmakers for endangering public safety, and opposed by local jail authorities arguing that there was overcrowding at the lower level, too. The new bill would supposedly allow localities to build jails more easily by fronting less money from the county budget before receiving state assistance. On one hand, this indicates fiscal commitment to the welcome trend of shifting population from distant facilities to their communities. On the other hand, this may be another initiative in the "if you build it, they will come" vein, which does not bode well for a decrease in prison population at any level. Also, note that this compounds the correctional free lunch issue: Facilities are built by the locality, but the state assumes more fiscal responsibility for them in the initial stages. Let's stay tuned on this one.