Tuesday, August 30, 2011

Beautiful Op-Ed on BART Police Shooting

Yesterday morning at the Oakland Local: The physician who treated the latest BART police shooting victim wrote an evocative letter. Read it here in its entirety.

Last month, I learned that one of my former patients - Charles Hill - was shot and killed by BART police. Per the police, he was armed with a bottle and a knife and had menacing behavior. Per eye witnesses, he was altered and appeared to be intoxicated, but did not represent a lethal danger.

I remember Charles vividly, having taken care of him several times in the revolving door, which is the health care system for the people who do not fit neatly into society. Charles was a member of the invisible class of people in SF - mentally ill, homeless and not reliably connected to the help he needed. While I had seen him agitated before and while I can't speak to all of his behavior, I never would have described him as threatening in such a way as to warrant the use of deadly force.


I would like to lend my voice to the growing protest of the BART police's excessive use of violent force and know that weekly protests are being organized on Mondays until demands are met for BART to fully investigate the shooting of Charles Hill, disarm its police force and train them properly, as well as bringing the officer who shot him to justice.

The media is portraying the annoyance of the protests to commuters more than the unbelievable horror that an innocent man was shot dead by the force that is meant to protect us. I don't want to upset commuters or be a nuisance. I would like to be part of educating and not letting this slip under the proverbial rug, in honor of Charles Hill and in order to help prevent something like this from ever happening again.

Monday, August 29, 2011

Legislative Effort Against the Death Penalty Revived!

The Sac Bee reports:

Opponents of the state's death penalty announced a new effort Monday aimed at getting an initiative before voters next year that would abolish the death penalty and replace it with life without parole.

The effort uses the enormous costs of California's death penalty as a sales point with voters, and organizers said this morning that roughly $4 billion has been spent since 1978 to execute only 13 inmates.

Usually, one would predict that such an initiative had better odds at the legislature than among the public, who has consistently supported the death penalty, and given its failure earlier this week, odds would look rather grim. But with the budget crisis what it is, the public is less likely to be held hostage by victim groups. We will be following this up closely.

Sunday, August 28, 2011

SB9 Defeated in Assembly

Short by five votes, the measure to allow juveniles serving life without parole to have their sentences reviewed by a judge after fifteen years failed in the Assembly. The Huffington Post reports (complete with links):

[T]the United States is the only country that sends people under 18 to prison for life with no parole. "No other country sentences kids to die in prison," said Yee's chief of staff, Adam Keigwin. In California, juvenile offenders are ineligible for a death penalty sentence, but they can be sentenced to life with no parole, guaranteeing that they will die in prison. SB9 aimed to change that by offering a chance to appeal if a defendant served a minimum of 25 years and showed remorse and serious change.

The arguments against the bill were victim-centered. For various reasons we explained in an earlier post, this is political rhetoric more than realistic concern. What a disappointment, albeit not as great as the disappointment over the demise of the death penalty abolition bill. Overall, a disappointing week for Californian criminal justice.

Saturday, August 27, 2011

WM3: A Personal Perspective

Even on weekend mornings, in which I could stay in bed and sleep, I wake up a bit after 5am. It's still cold and dark, and the pool is not open yet, so there is no hurry. This evening we have dinner guests and are planning to watch Paradise Lost, a documentary about the recently released West Memphis Three. Next week I'll be showing the same movie to my seminar students. It's not an easy movie to watch, and for the most part what I remember from the last time I saw it are the horrifying crime scene photos, shown at the very beginning with a Metallica soundtrack. This is why I don't buy the radical criminology paradigm wholesale, but find myself more in Jock Young's camp of radical realism. Crime is real and victimization is real. It's not all socially constructed. Someone did murder those kids and abuse them in horrifying ways, leaving them in the woods, their little bodies in deplorable condition. But I believe, as do many others, that that someone was not Damien Echols, nor was it Jason Baldwin or Jesse Misskelley.

I don't remember whether I knew about the case when I was in law school in Israel. It was in the early 1990s, and Damien Echols and his supposed accomplices were arrested when I was in my second year. Echols and I are the same age. Since 1993, I graduated law school, worked criminal defense for five years, changed countries several times, finished two advanced degrees, handled health and family changes, made many new friends, and have been very blessed in a life of research, pedagogy, political action, endurance sports, and music of all kinds. Throughout this time, Damien Echols lived on Death Row in Arkansas, his skin turning translucent white from the lack of sun. He seemed almost extraterrestrial last week, giving interviews, pale as death itself and wearing dark sunglasses to protect himself--from what? The sun, the people, the abundant stimuli of which he was deprived for eighteen years?--sitting by his wife and co-defendants and quietly proclaiming his innocence, as he had done throughout his arrest, trial, and lengthy incarceration.

The documentary is rather long and includes extensive in-court footage. Seeing it years before the Alford plea that released the three defendants was like witnessing a dreadful train wreck in progress. Richard Ofshe, an expert on false confessions and memory fallacies, testifying about the many problems with Jesse Misskelley's confession; the Arkansas prosecutor sneering at him, saying, "we're not in Berkeley." The "cult expert", on the witness stand with his mail-order degree, blaming the defendants for a murder showing supposed Satanic features, as they were the only kids in town who wore black and listened to heavy metal. The complete lack of physical evidence.

Several commentators said this week that the DNA evidence "excluded" the defendants' involvement in the crime .That's not true, but it's as good as true. DNA was found at the crime scene, and it does not belong to any of the defendants. It is, of course, possible that the defendants were at the scene of the crime and did not leave DNA there, but it is highly unlikely. It was a messy set for extensive, cruel carnage, and high school boys would probably not have the sophistication and know-how to avoid leaving any marks. So, the convictions rested on the confession of Misskelley, a frightened boy with low IQ, pushed and manipulated by the police, who planted details of the crime within his confession.

The big mystery, of course, is the Alford plea. It doesn't exactly mean the defendants have pled guilty. Alford pleas allow defendants to maintain their innocence while acknowledging that there is factual basis for their convictions. Why the state offered the deal is a no-brainer. The plea explicitly rules out the possibility of a 1983 lawsuit, which would entitle the three defendants to a hefty sum in damages. Moreover, it allows the state actors to escape accountability for what appears to have been a terrible miscarriage of justice. The defendants' decision to accept the plea makes sense when considering the alternative, but raises some serious questions. Their new hearing, complete with DNA evidence, was to be held in a few months (and might still be held.) I can only imagine the horrors of repeated miscarriages of justice would drive one to admit anything, as long as it entails a certain release from prison, and particularly death row, rather than take one's chances on one more hearing. Nonetheless, odds seemed better than ever that the miscarriages would finally be examined and fixed. One can only imagine the set of cost-benefit considerations that went into deciding whether to agree to this plea.

So, this week my friends, my students and I will revisit a particularly dark chapter in the book of American criminal justice, and will have an opportunity to ponder upon the inevitability of human cruelty, alienation, and hatred, and the destruction it brings to lives and communities.

"This planet upon which I live is ostracized from God." --Jacob Wassermann, Das Gold von Caxamalca

Friday, August 26, 2011

Death Penalty Bill Will Not Go Forward

SB490, the proposition to abolish the death penalty in CA, will not move forward. The Chronicle reports:

A bill that would have let California voters decide whether to repeal the death penalty will not move forward because of a lack of support in the Legislature, the measure's author announced Thursday.

SB490 by Loni Hancock, D-Berkeley, was introduced in June following the release of a study that found the state is paying $184 million more a year to keep people on death row than it would if inmates were simply left in prison for life.

But look at the statement from Hancock:

"The votes were not there to support reforming California's expensive and dysfunctional death penalty system," Hancock said in a written statement Thursday. "I had hoped we would take the opportunity to save hundreds of millions of dollars that could be used to support our schools and universities, keep police on our streets and fund essential public institutions like the courts. Study after study has demonstrated that the cost of maintaining the death penalty when so many basic needs are going unmet has become an expense we can no longer afford."

If this is not humonetarianism, I don't know what is.


Props to David Takacs for alerting me to this.

Medical Parole Law in Action: The State Focuses on Expensive Inmates

SB1399, recently passed by the legislature, allows the state to grant inmates medical parole. It confirms sections already in the existing penal code, but note the cost-related rationale:

The California state prison health system has identified 21 inmates whose average annual health care and guard costs total more than $1.97 million apiece. This is approximately $41.4 million a year for the care of 21 prisoners. These inmates are located in off-site nursing facilities or hospitals which require paying guard time, even though these prisoners are severely incapacitated. Eleven other inmates are inside prison health centers, where their annual medical bills average $114,395 each. There are currently 1,300 California state inmates whose health care costs exceed $100,000 a year. Inmates released on medical parole would shift the cost of their health care from the state to the federal government as prisoners cannot enroll in Medi-Cal or Medicare, but paroles [sic] can.

CDCR news has reported granting medical parole to the 7th inmate since the passage of the law.

As I've said elsewhere, humonetarianism is not unlike the risk management regime that has permeated corrections in that it is busy conducting selective incapacitation and grouping people into categories. But note the shift in focus: Rather than focusing on risk as the dominant category for classification, we are now focusing on cost.  The cost-centered discourse and practice are shifting the way we look at the prison population. Rather than focusing on the high-risk inmates, we are focusing on the expensive ones as targets for reform and legislation.

Oh, and apropos costs: I'm working on a book that examines the impact of the financial crisis on the American correctional landscape, focusing particularly on California. Basically, it would be a book about humonetarianism. Your thoughts and contributions about this fascinating phenomenon, which I've been documenting here for the last two and a half years, are most welcome.

Wednesday, August 24, 2011

Isolation at SHU Reconsidered

The Pelican Bay hunger strike has created a ripple effect of attention. This morning's piece on the San Jose Mercury News is encouraging.

State regulations say there are two ways to enter the Security Housing Unit: commit a new violation while incarcerated or be a validated member of one of six prison gangs.
It is the gang designation that has caused the most controversy.

At the Assembly hearing, several speakers said the California Department of Corrections should move from showing mere association with a gang to proving criminal activity.

"I've seen a great deal of variance as to how gang validation protocols are applied," said San Francisco Bay Area attorney Charles Carbone. He attributes the "wildly different interpretation" to a lack of training, and said gang validations are "decided by personality, not by policy."

Many relatives of SHU inmates said their loved ones had been unjustly validated. For example, one of the three pieces of evidence needed to validate an inmate could be the word of a debriefing informant or possession of a George Jackson book, such as "Soledad Brother."

Jackson was a founder of the Black Guerilla Family, which corrections officials define as a prison gang. He was shot to death by prison guards in San Quentin Prison during an escape attempt.

In addition to those who may have been wrongfully labeled, the SHU is by gang members' own admissions home to members and leaders of the Nuestra Familia, Aryan Brotherhood, Mexican Mafia and the Black Guerilla Family.

In fact, the Nuestra Familia's rules state that its top leaders must reside in Pelican Bay's Security Housing Unit. Current and former gang members have told The Monterey County Herald they thought it was a point of pride to be sent to the SHU, because all the leaders were housed there.
To earn a gang SHU term, corrections regulations state that an inmate must be more than a street gang member, such as Norteño or Sureño.

The SHU stay for a prison gang member is indeterminate, meaning the inmate cannot leave the unit until his prison sentence ends -- or he leaves his gang through a process of debriefing, which carries the stigma of "snitching."

Corrections officials have contended this is the only viable way, because transferring an active prison gang member into the general population would jeopardize inmate and officer safety.
Other states, though, offer programs based on good behavior that can lead to release from a SHU without having to inform on others.

California corrections undersecretary Scott Kernan said his department is studying SHU criteria from 28 other states and is developing new policies.

Those policies will next be reviewed by "stakeholders," he said.

Not a week goes by that I don't receive a letter from Pelican Bay, in which an inmate protests a wrongful classification as gang member. Reconsidering the way in which these classifications are made is long overdue.

Tuesday, August 23, 2011

SB9, Review of Juvenile LWOP: A Few Misperceptions Corrected

Our posts about SB9 yielded several reader comments, some of which I had to refrain from publishing because of their incendiary tone. I thought it might be worthwhile to tackle some of the misapprehensions regarding SB9. While I think SB9 is a great idea and endorse it wholeheartedly, I am not officially affiliated, politically or financially, with Senator Yee or anyone else involved. Therefore, consider this an academic's opinion, rather than political propaganda.

This proposal sets dangerous people loose in the streets.

The proposal addresses only two hundred inmates or so, and none of them is being set loose in the street quite yet. What the bill does is allow a judge to review again the case of juveniles sentenced to LWOP after they have already served at least a fifteen-year sentence. And even then, the judge will only have the ability to modify the sentence to twenty-five to life. Overall, it's a fairly mild proposition.

Aren't these people dangerous?

Well, some of them might be, and some of them might not. It will be up to the judge to review their history, when petitioned to do so, and to assess whether it is risky to make them eligible for parole. There will be discretion about this. What we know about the trajectory of criminal careers tends to suggest that, for many folks who committed crime in their teens, age tends to "mellow people out" and they become less dangerous as they age.

If it's only a few hundred people, why is this such a big deal?

In the grand scheme of things, it's not a big deal at all. A handful of inmates will be serving a very long prison term, rather than an even longer one. But the difference to the individual, in terms of offering a ray of hope, is immense.

Doesn't that teach juveniles that it's okay to murder?

Not at all. Twenty-five to life is a very long time for a young person. And that's assuming that juveniles even think about the repercussions when committing crimes, many of which are expressive crimes rather than cold, calculated ones.

We're not really saving a lot of money by letting these people out earlier than expected, are we?

That's impossible to answer accurately without proper data. However, it stands to reason that the older our inmate population is, the more we'll be spending on its health care, which is already approximately one third of our correctional budget. Letting someone out when he or she is in his or her fifties, rather than letting him or her die behind bars, might spare us some of the costlier inmates and allow us to focus resources on others who need urgent care.

They committed murder and deserve never to see the light of day again.

Well, that is a legitimate opinion, but what someone "deserves" depends on your definition of just desert. Spending twenty-five to life behind bars, subject to violence, overcrowding, and prisons devoid of rehabilitative programming is very far from being a walk in the park.

What about the victims' families?

That is very much a matter of personal feeling. Many families of murder victims feel immense amounts of rage and sadness and translate those to a wish that the perpetrator of their tragedy rot behind bars. That is understandable. But it doesn't mean that the state has to grant these wishes to the letter. Moreover, there are plenty of families of victims who do not derive satisfaction from revenge or retribution, and would much rather the money spent on incarceration be spent on more and better homicide investigation, to prevent future tragedies. There are many people who feel this way; the media exposes you to the vocal, angry ones, and they do not necessarily represent everyone.

If the legislators think LWOP sentences should be reviewed, why not abolish LWOP for juveniles altogether?

At this point, Supreme Court case law regards LWOP for juveniles as constitutional for murder (not for other offenses.) Maybe future cases will follow the rationale of Roper v. Simmons and extend the abolition of LWOP to murder as well. But this is an opportunity to do something, now.

For a matter pertaining to so few people, this is eating up plenty of public energy and discourse. Why are we dealing with this, rather than with death penalty abolition and fighting mass incarceration?

Because this is easier to achieve, and these folks need some attention, too. But there is a bill on the CA ballot to abolish the death penalty. There's also a bill to reform the Three Strikes Law. And it's about time.

Monday, August 22, 2011

Crimmigration: The Dark Side

The Lawyers' Committee for Civil Rights, with the ACLU and several other civil rights organizations, have filed a lawsuit seeking to stop the practice of shackling undocumented immigrants appearing before immigration court. The Huffington Post reports:

According to the lawsuit, the overwhelming majority of prisoners who show up in immigration courts have no violent criminal history. The lawsuit seeks to compel the Department of Homeland Security to make individual determinations about shackling rather than have a blanket policy. DHS officials declined to comment Wednesday.

This practice, and others, are an example of the false dichotomy between criminal and immigration matters. Make no mistake - these two issues are closely interrelated, as the financing of Arizona's SB 1070 by private companies demonstrates. Shackling is a distressing practice, and we'll be following this lawsuit closely.

Extra credit: As always, the question if one of incrementalism versus radicalism: Is the call to "stop treating undocumented immigrants as criminals" equivalent to a call that perpetuates treating criminals the way we have been treating them? Hmmmm.

Saturday, August 20, 2011

Book Review: The New Jim Crow by Michelle Alexander

A couple of months ago I attended a dinner fundraiser by the American Friends Service Committee and had the pleasure of hearing Michelle Alexander speak about her book (full video of the speech, as well as an interview with Alexander, available here.) I immediately bought a copy of the book and was very much looking forward to reading it. It did not disappoint, and while its basic argument is not novel, the book presents it in a compelling, engaged way.

The New Jim Crow is an attempt to take the prison-slavery comparison, often made as hyperbole, seriously. In order to do so, the book begins by providing a basic and concise introduction to race relations in the United States before, during, and after slavery. Readers unfamiliar with the post-reconstruction nadir of American race relations would do well to examine the particulars of life at the time, because, as Alexander demonstrates, much of the racial discrimination we see today through the correctional system has its roots in the disenfranchisement and separation of those days. Simply put, in the aftermath of the Civil War, the seeds were planted for a thriving system of discrimination and segregation that would utilize very similar methods to create a caste system, originally based on the color of one's skin, and now using one's status as a felon as proxy for said color.

The following two chapters provide a basic summary of the criminal process, relying for the most part on Supreme Court cases, and demonstrating how racial biases permeate the process from policing till release from prison. Readers with legal and socio-legal backgrounds may find these chapters somewhat oversimplified and spot some inaccuracies, but for a general audience this overview clearly communicates the message: A seemingly colorblind system is loaded with opportunities for discretion that generates the overrepresentation of African American men in the criminal process, and by exposing them in vast disproportion to this horrifying experience, generates an underclass deprived of a share in American conformity.

Alexander sets out to show that the role of race in the criminal process and in mass incarceration is not accidental. This argument, in itself, is not new. In her 1999 book Making Crime Pay, Katherine Beckett provides a full analysis of the political campaigns of the late 1960s and clearly shows how Nixon, and other candidates, relied on fear of crime and rising crime rates to confront, head on, the civil rights movement of the 1960s. The Warren Court's lenient approach to defendants, and its tendency to generate bright-line rules limiting the discretionary powers of the police and prosecution, became the enemy, and was a thinly-veiled foil for the 'real' enemy, race inequality. Alexander's book, however, makes this argument more accessible to the general public. By substituting crime for race, Nixonian politics succeeded in combating their real enemy, while maintaining a façade of race-neutrality.

My favorite chapters of the book are the last ones, in which Alexander takes on the broader implications for society of a caste system driven by crime control. She discusses the impact of criminal record and inmate disenfranchisement on a complete alienation of the African-American community from the political process and from access to basic necessities and rights. And, she sounds a loud wake-up alarm to those who have basic sympathy to the idea of criminal justice reform and race equality but who may not have made the connection explicitly. The ideal audience for this book, whom Alexander mentions in her introduction, would be folks who think that the comparison between Jim Crow and mass incarceration is merely rhetorical hyperbole. Upon reading this book, they may be convinced otherwise.

More Realignment Information

Sara at the Prison Law Blog has posted a clear, helpful analysis of how realignment will work. Highly recommended.

Friday, August 19, 2011

The West Memphis Three are Finally Free

Incredibly good news. The West Memphis Three, who have fought since the 1990s for their exoneration, have been freed from prison.

Three men convicted of killing three 8-year-old boys in a notorious 1993 murder case were freed from jail on Friday, after a complicated legal maneuver that allowed them to maintain their innocence while acknowledging that prosecutors had enough evidence to convict them.

A district court judge declared that the three men — Damien W. Echols, 36, Jason Baldwin, 34, and Jessie Misskelley Jr., 36, known as the West Memphis Three — who have been in prison since their arrest in 1993, had served the time for their crime. The judge also levied a 10-year suspended sentence on each of the men.

With his release Friday, Mr. Echols became the highest-profile death row inmate to be released in recent memory.

The agreement, known as an Alford plea, does not result in a full exoneration; some of the convictions stand, though the men did not admit guilt. The deal came five months before a scheduled hearing was to be held to determine whether the men should be granted a new trial in light of DNA evidence that surfaced in the past few years. None of their DNA has been found in tests of evidence at the scene. The Arkansas Supreme Court ordered the new hearing in November, giving new life to efforts to exonerate the three men.

Wednesday, August 17, 2011

SB9 Discussed in Today's Chronicle

This morning's Chron features a front-page discussion of Senator Leland Yee's SB9, which would allow juveniles sentenced to life without parole to have their sentences reviewed by a judge.

This is a very tame, limited version of the proposal.

The California measure, which Yee has tried to make law several times before, is not as ambitious: It would let inmates, after 15 years behind bars, petition the court to change their sentence to 25 years to life, with the possibility of parole. That means that even if the court agreed to modify a sentence, there is no guarantee the inmate would get out: The offender would have to wait until 25 years have been served, then could appeal to the state's parole board for release. To request a reduced sentence, the offender would have to "describe his or her remorse" and prove he or she has worked toward rehabilitation.

Interestingly, as is often the case with parole-related proposals, the possibility that someone who maintains his or her innocence might want to make use of the review mechanism is not even considered.

Rally in Support of Pelican Bay Inmates

Tuesday, August 16, 2011

Don't you know? Talkin' 'Bout a Revolution, It Starts Like a Whisper.

More good news, confirming the general trend that the financial crisis is beginning to push the punitive pendulum in the opposite direction.

The death penalty is quietly losing its grip in the American penal landscape. One reason: Costs.

A ballot initiative to reform Three Strikes is in the works. One reason: Costs.

And finally, the tables are starting to turn.

Moving from Tough and Cheap to Lenient and Cheap: Why Conservative States are Ahead of the Curve

Emily Luhrs from the CJCJ posted a really great think piece today. Taking on the ACLU point on the bipartisanism of criminal justice reform, they point out that conservative states have had a much easier time closing down prisons and decrowding institutions than, say, California.

Texas prisons, for example, went from a projected increase of 17,000 new prison beds in 2007 to below capacity in 2011, paving the way for an unprecedented state prison closure this year. The reforms have not only reduced system-swelling, but have led to the desired goal of increased safety. In the years following the reform efforts, crime rates have continued to drop more than the year before. In fact, research proves longer sentences have no effect on deterring future crime.

. . .

While California often leads the country with progressive reform efforts, it is not leading the way on the issue of incarceration. The same issues that are bloating California’s prison population were identified in previously prison-reliant states like Texas, providing hope that California can seek effective rehabilitative options as the state begins to reduce its prison population. CJCJ has long advocated for smart alternatives to incarceration and if Texas can close prisons, maybe California can too.

Here's my take on the phenomenon Luhrs highlights: This is all about humanitarianism. Clearly, the dominant, if not only, factor at operation here is the wish to cut costs, and it's the only factor that has succeeded in reversing the punitive pendulum. Conservative states like Texas and Arizona have a distinct edge over California in doing so, because traditionally, both of these penal systems have operated on the cheap. In fact, as Mona Lynch explains in her terrific book Sunbelt Justice, during the big Rehabilitation Years in California (before the 1970s brought disillusionment with that ideal), Texas and Arizona boasted farm/plantation models that were self-sufficient and did things on the tough and cheap. So, operating on the cheap is not a new consideration in these states. They've always done corrections with less. They are simply doing less with less. Here in CA, on the other hand, savings and corrections are not concepts that have traditionally gone hand in hand. We've done everything--incarceration, parole, probation, death row--on a mammoth scale and are used to decades of immense expenditure on corrections. That mindset may be even more difficult to change than the punitive mindset. The approach that corrections, by definition, have to be expensive, has always been part of the Californian paradigm, and has always been alien to the Texan and Arizonian paradigms.

So, as Californians, we need to learn how to be two things that we haven't traditionally excelled at: Being lenient and being thrifty. Ironically, despite Three Strikes and Marsy's Law and determinate sentencing and all that, we have a better track record with the former than with the latter. But reality is forcing us to acknowledge that and seeking more financial wisdom with corrections, and this will guide us on the right path with regard to punitivism.

Monday, August 15, 2011

BART Riots and Police Brutality: More on the Othering of Crime

As I write this post, BART is finally opening its downtown stations, after shutting them down in an effort to curb protests against police violence. What has been referred to in the media as "civil unrest" is yielding broad coverage, not least because of BART's decision to cut down cellular phone service within its premises. Now that's what some would call grounds for "civil unrest".

But back to the topic of protest. So, the stations have been shut down, and it is rush hour. The Chronicle reports:

BART police closed the Civic Center station after at least one protester blocked a door of a Dublin-Pleasanton train for two minutes as others chanted "No justice, no peace." The train continued east, and a dispersal order was soon issued.

"Once we got to a situation where the BART platform was unsafe, we cleared the station," said BART Deputy Police Chief Daniel Hartwig, referring to the first closure. "We cannot jeopardize the safety of the patrons or the employees here."

Some transit riders were infuriated. Jennifer Cohn, an attorney who works downtown, arrived at the Civic Center station at about 6 p.m. with her two sons, ages 3 and 4, after picking them up from day care. She was trying to get home to the Glen Park neighborhood.

With the station closed, she tried to catch a cab, but they seemed to be avoiding the area.

"This is an outrage. We just want to get home," Cohn said. "I don't really see why they should be shutting down the stations. If they have an issue with BART, they should go to BART headquarters."

No, Ms. Cohn; what's outrageous is that the police shoot innocent people. This "issue" is a prime example of people standing up to police abuse. And there are good reasons for all rush hour commuters to join them, rather than complain. We posted here before about the scathing review of BART police practices in the aftermath of Oscar Grant's tragic death.

Now, why would Ms. Cohn and other riders be indifferent to this important issue? Could they possibly think that the abuses of force, unfettered discretion, and lack of professionalism at BART are good things? In all likelihood, they have not been paying much attention to the news. Or maybe, like Costelloe, Chiricos and Gertz's survey subjects, they think that, at the receiving end of police abuse, are only people who deserve such abuse. Thuggish people. Scary people. Gang-y people. People who don't look or behave like them.

Because, as we all know, if you don't finish the vegetables off your plate, a cop will come get you. But if you do, no harm will befall you.

I heartily wish to all those perturbed rush-hour BART passengers, that they will never be shot in the back when handcuffed by an officer who was, assuming the best of scenarios, untrained in distinguishing between his gun and his taser (gentle reader, you can assume other scenarios if you prefer.) And that, if by any chance or bad luck, they are ever mistaken by an overzealous cop with poor vision for one of those "other" "bad" people, that others will be willing to stand up for them and raise their voice in protest. Even if it means that a few good, law-abiding citizens get home for dinner fifteen minutes late.

Many thanks to Kathryn Nettles and Tom Oster for the conversation that inspired this post.

Saturday, August 13, 2011

Tony Platt on Pelican Bay

Historian Tony Platt has a wonderful blog post out about the Pelican Bay hunger strike, titled The Shame of California. You should really read the whole thing, but here is a short excerpt:

On July 1st, a small group of prisoners in Pelican Bay’s SHU, calling themselves the Short Corridor Collective, initiated a hunger strike, calling for the abolition of long-term solitary confinement, improvement in programs for SHU prisoners, and an end to various abusive administrative procedures. Unlike a similar action by prisoners in 2002, this strike drew the support of thousands of prisoners throughout the state. Moreover, Prison Hunger Strike Solidarity was so successful in getting out information about the strike that European human rights organizations urged the Governor to respond to prisoners’ demands and the New York Times carried an Op Ed condemning the “bestial treatment” of prisoners in Pelican Bay State Prison (Colin Dayan, “Barbarous Confinement,” 17 July 2011).

During the strike, according to the Short Corridor Collective, at least seventeen strikers, including three leaders, were transferred to another prison for medical treatment. The Collective ended the action on July 22nd after gaining the right to wear cold weather caps, to have calendars in their cells, and to have access to educational programs in the SHU. Though these concessions by prison authorities are modest, we should not underestimate the larger significance of the strike. It draws worldwide attention to the widespread use of torturous practices by the United States against its own citizens; it forces the government of California to sit down, face-to-face, and negotiate with people who have been demonized as semi-human beasts; and it raises the possibility of once again incorporating prisoners into a larger struggle for social justice.

Thursday, August 11, 2011

Great ACLU report today on AB109 realignment!

De-mystifying and evaluating realignment, and offering crucial implementation advice to counties: http://www.aclunc.org/issues/criminal_justice/aclu_of_california_ab_109_realignment_implementation_report.shtml

Inmates' Facebook Accounts

The security issue de jour seems to be inmates' usage of Facebook. CDCRtoday reports:

The California Department of Corrections and Rehabilitation (CDCR) today announced it has begun reporting Facebook accounts set up and monitored by prison inmates to the Facebook Security Department.

Facebook accounts set up and/or monitored on behalf of an inmate will be removed, as it is a violation of Facebook’s user policies.

“Access to social media allows inmates to circumvent our monitoring process and continue to engage in criminal activity,” CDCR Secretary Matthew Cate said. “This new cooperation between law enforcement and Facebook will help protect the community and potentially avoid future victims.”

. . .

Inmates are allowed to have Facebook profiles created prior to incarceration. If any evidence shows the account has been used while in the facility, Facebook Security will disable the account.

Over the past few years CDCR has seen a massive influx in the number of cell phones being used by prisoners. In 2006, correctional officers confiscated 261 devices, while in the first six months of this year, more than 7,284 were confiscated.

This brings up a few interesting issues. First, it's a good reminder that the categories "inmate" and "non-inmate" are not insular. In a reality in which 1 in 100 citizens does a stint in prison during his or her lifetime, it is very probable that said person, like the rest of us, will have a Facebook account and online friends. The account can, of course, be used for both social and nefarious reasons. Naturally, the CDCR story highlights the nefarious examples; but one can imagine that, for the most part, Facebook is used by lonely folks to find some human connection, either with the friends they have or with friends they hope to make. These links may only work for those of you with Facebook accounts, but here's an Ohio service to find pen pals for inmatesThis one seems to have a matchmaking/hooking up angle. Inmates seem to be looking for the same things non-inmates are looking for on Facebook: Friends, drama, romance, sex, contact with family... this is not very surprising, is it?

There are also enforcement difficulties. The authenticity of establishing whether the account "had been used while in the facility" may be challenging. A family member may log on in the name of an inmate to provide information and maintain the inmate's connection with friends and relatives. Several campaigns on behalf of inmates, such as the campaign to save Troy Davis from a wrongful execution, feature said inmates' pictures.

In addition, there is a slippery slope risk. The CDCR story highlights the concern of a mother whose daughter is being stalked by a sex offender within walls. Are parolees' Facebook pages monitored?

Our notions of what incarceration and isolation mean are challenged in a variety of ways; I hope they'll make us question the need for mass incarceration and isolation in the first place.

Monday, August 8, 2011

Rise of the Non-Punitive Victim

An op-ed in the local San Gabriel Valley tribune is a strong testament to the changing sentiments of victims' families, a growing number of whom are not adequately represented by punitive organizations such as Crime Victims United of California and the like. Judy Kerr's op-ed eloquently provides a humonetarian critique of the death penalty from the perspective of the family of a murder victim.

In California, in the last ten years, 46 percent of murders went unsolved. This means over 25,000 murders remain unsolved, and 25,000 other families are waiting, like mine, to know who killed their loved ones. And it means as many as 25,000 killers roam freely on our streets. In the midst of this crisis of unsolved murders, we are also facing the biggest budget crisis in our state's history. While people literally get away with murder, the public safety network in California has unraveled. Police officers in every county in the state are being laid off. And, in every county, we are cutting back on homicide investigations and eliminating victims' services.

As thousands of family members wait for justice only to be told there is not enough money to fund an investigation, we watch as hundreds of millions of dollars are spent on the death penalty each year. Death penalty appeals, special housing for death row inmates, additional corrections officers to monitor them, a double-trial system which separates guilt and penalty phases - the costs associated with the death penalty are endless.

Many hear this and ask: Can't we just speed up the execution process? Reports from respected judges and criminal justice experts, both for and against the death penalty, have shown that the only way to make the system move faster while still preventing the execution of an innocent person is to spend even more money.

This local op-ed is notable for various reasons - its invocation of a humonetarian discourse, its disavowal of the traditional victim sentiments - but it is particularly important because a legislative proposal to abolish the death penalty in California is on the agenda, advanced and advertised for humonetarian reasons.

Saturday, August 6, 2011

PlataWatch: CDCR to Begin Population Reduction, Albeit Behind Schedule

CaliforniaWatch (via Sara at the Prison Law Blog) reports:

The court’s first benchmark orders the corrections department to lower it prisoner population to 167 percent of capacity by Dec. 27. The department says it expects to reach that benchmark by Jan. 27, 2012.

Corrections department spokesman Oscar Hidalgo said the delay is necessary to allow the department to get a better estimate of the state's prisoner population.

In a declaration in support of Wednesday's filing, Jay Atkinson, the department's acting deputy director of the Office of Research, said:

"CDCR forecasts population levels by using a simulation model, which employs data trends and projected new admissions, to determine how long the new admissions will stay, the number of offenders who will be returned to prison, and how long they and the current inmates will stay. …This simulation is repeated for each individual inmate until the total population is projected. After the Fall 2011 projection is completed, staff in the Office of Research will project the impact on CDCR’s population that Assembly Bill 109, the realignment legislation, will have."

The decrowding process is being executed pursuant to the Realignment law. Stay tuned in the next months for a blow-by-blow followup on the decrowding process.

More on Prison Diet: Food Choice as a Site of Autonomy and Self Expression

Giuseppe Arcimboldo, "Summer"

A story on the New York Times' Bay Citizen tells of a jail inmate, Dave McDonald, who was denied a vegetarian diet during his jail term.

He refused to eat anything that he did not know was animal-free, and as a result, his weight plummeted nearly 50 pounds to 155.

“I don’t want animal corpses on my plate,” said Mr. McDonald, who is now free on bail. “My belief in not hurting animals is more powerful than any religious belief.”

Had Mr. McDonald said he was a vegetarian for religious reasons, or because of a medical condition, the county would have been legally required to comply. But Marin County officials said that simply believing in the sanctity of animal life was not enough.

This story, dealing perhaps with whom some might see as an atypical inmate, may bring to middle class's consciousness the deeply rooted problems in an incarceration system based on selective incapacitation and a refusal to see its charges as individuals. We've discussed diets here before, when reporting on the addition of a Halal food option as one of the "five faiths" recognized by CDCR and on a study finding a decline in inmate violence when prison diet improves. But today's story highlights another important aspect of prison nutrition.

Food plays a fundamental role not only in human survival, but also in self expression. The Internet is populated by abundant food blogs and articles. Food is a source of pleasure for many of us, but for many it is also an opportunity to live our beliefs and values through out palate. Recent online battles in the wars of vegetarianism and veganism brought home just how much people care about these food choices. Michael Pollan has proclaimed a set of rules for omnivores: "Eat food. Not too much. Mostly Plants." Author Jonathan Safran Foer has written Eating Animals in defense of vegetarianism. Eric Schlosser's Fast Food Nation, and the movies Food, Inc and Super Size Me, highlighted the many harms of an agribusinesss-managed food economy. Nina Planck's critique of vegan diets for children was strongly criticized for its portrayal of vegans. A well-known vegan food blogger recently moved away from her vegan diet for health reasons and received harsh critique and death threats from the vegan community. And then there's Lierre Keith's recent book The Vegetarian Myth, in which she speaks against industrialized, monopolized agriculture, saying vegetarianism and veganism still participate in a system that is fundamentally unjust - opinions for which she has been assaulted in public appearances. While it's best to leave the discussion of the nutritional and political merits of vegetarianism and veganism to blogs that focus on such matters, clearly these folks' food choices - on both sides of the debate - are inexorably tied to their identities, to the point that they are willing to endure harm to themselves or threat harm to others in the name of these choices.

The point is not to admire or criticize vegetarian, vegan, locavore, organic, paleo, low carb, low fat, or any other diet choice. The point is to remind all of us that people in custody are denied these choices. And for many people, the choice not to consume flesh or use animal product is as important and as deeply held as someone else's sincere belief in one of the "five faiths."Apparently, in California, vegetarian and vegan options are offered in state prisons as a courtesy; vegan meals started being provided after mass arrests of PETA members, prior to which they were only offered on a religious basis. As we see in today's paper, in local jails the situation can be more precarious. As to other ideological choices, individualization is problematic. The implications of dietary choices touch on fundamental issues of prison management. Will the meal be served buffet style, so inmates have some choice in what is put on their plates? In supermax institutions and SHU units, does one have a say in what is pushed into one's cell? Understandably, a system providing food to 160,000 people cannot make concessions for people's tastes and whims, and I imagine the political outcry that would result if it did. But as it stands, the official stance on food choices, tying them inexorably to religion and offering few concessions beyond that, is discriminatory and illogical. Moreover, cheap as it may seem to feed many people uniformly (and badly), the price is paid in the form of violent behavior and health costs.

I'm also wondering what prison and jail policies are with respect to people whose diets are shaped not by their ideological preferences, but by their allergies and intolerances. If you'll allow me a personal comment, it is difficult enough to be wheat intolerant in the accepting world of the Bay Area, where abundant choices exist. Bread is a basic food stable; it is cheap and mass produced, and as such, is the cornerstone of any attempt to feed people on a large scale in an industrial complex. The prison industrial complex is no different. So, is an inmate diagnosed with celiac, for example, offered an energy source in lieu of bread, like rice and potatoes? How can a system of mass incarceration ensure no contamination, when consuming even a small amount of wheat can be extremely debilitating and, in the longer term, lethal? And what about inmates who have anaphylactic reactions to certain kinds of food? True, exquisite shellfish are not on the menu in most prisons, but what about folks extremely sensitive to albumin, a component of egg? And what about the many people who have suffered digestive, respiratory, and musclo-skeletal debilitating conditions all their lives because they do not have the resources to be diagnosed with an allergy? In California's broken correctional medical system, what are the odds that someone like that will be flagged as suffering from a real condition, let alone diagnosed with a specific allergy? Managing allergies is difficult enough for us average folks on the outside. I can't even imagine what the protocols for such a situation are on the inside, nor can I imagine any concessions made to the general diet to accommodate them. If any of our readers is better informed about this, please share your information in the comments.

On October 24, the UC Hastings Consortium will hold a Food Day event on the topic of Food Deserts. Our conference will feature discussions involving food professionals, lawyers and physicians regarding the social sites that have no access to healthy, nutritional choices, including prisons and jails. Yours truly will be there, and I hope you will, too.

Addendum: Of course, all this discussion underscores the use of food refusal, in the form of a hunger strike, as a political tool. We remember Pelican Bay inmates and other inmates and their hunger strike. Stay strong.

Thursday, August 4, 2011

Book Review: Josh Page, The Toughest Beat

California has often been proclaimed ungovernable, its politics described either as too dense to fathom or, in an oversimplified fashion, as a mess generated by unfettered direct democracy and shortsighted financial policies. But some astute political actors have accrued the knowledge and skills to navigate these complex political seas, and the California Correctional Peace Officers’ Association (CCPOA) is one of them.  Joshua Page’s new book The Toughest Beat  clearly and intelligently transcends theoretical abstractions and simplistic clichés to provide a sobering, thorough analysis of the CCPOA’s role in shaping California’s penal policies, and in doing so, provides an excellent primer to the entire landscape of California politics and decisionmaking.

The book begins with a detailed, fascinating history of the rise of the CCPOA from an “old boys’ club” providing social opportunities and camaraderie for its members to a powerful player in state legislation and policy. Using a myriad of sources, in the tradition of “old-school,” well-done ethnographies, the book cleverly tells this story oscillating between the macro world of the state and national contexts and the microcosm of specific personalities. Don Novey‘s role as the architect of the CCPOA’s lobbying and influence strategy is particularly highlighted. Emphasis is placed on the CCPOA’s bipartisan alliances with Democracts (with respect to union concerns) and Republicans (with respect to punitiveness concerns).

This account is followed by two somber chapters, which illuminate the role played by CCPOA in shaping penal policies. The first reveals the complex interdependency between the CCPOA and a few victim organizations, such as the Crime Victims United of California; the latter organizations, representing the interest of specific demographics and a particularly punitive and vengeful victim perspective, were effectively created, managed, and puppeteered by CCPOA. Rather than flinging radical accusations and conspiracy theories, Page’s careful analysis of this web of interdependency and coalitions is understated and backed with hard evidence, including a personnel and finances analysis and ethnographic data. The CCPOA’s wisdom in fostering such mutually beneficial coalitions with victim organizations, district attorneys, sheriffs, and wealthy private citizens, is grimly shown to prove itself in the following chapter, which analyzes, blow-by-blow, the passage of the Three Strikes Law, California’s pioneering piece of punitive legislation. While the story behind California’s return to determinate sentencing, and the subsequent story of its romance with an ultrapunitive sentencing regime, are a larger story than that of the CCPOA, the union played a pivotal role in selected phases, and was a dominant factor in swinging the punitive pendulum. This account is an indictment not only against CCPOA, but against a system in which the idea of direct democracy is marred by a reality of unregulated funding, misleading advertisements and abundant disinformation and ignorance.

But Page’s book cannot be reduced to a good guy/bad guy formula. His masterful account of the CCPOA’s epic fight against prison privatization shows the different strategies employed by CCPOA and the private prison corporations, and relies on a deep, intuitive understanding of how the state works to explain how, despite resorting to nefarious techniques such as building a prison on speculation, the private companies did not prevail.

The book reads like a fascinating political thriller. It does not resort to extremism or unfounded proclamations, is concisely written, and is refreshingly free of jargon. Page’s reliance on Pierre Bordieu’s field analysis as his theoretical framework is light-handed and nimble; the theory facilitates, rather than obscures, the book’s clear narrative. It is a book that professionals and laypeople alike would appreciate and enjoy.

I take issue with two minor aspects of Page’s analysis. Firstly, in presenting the punitive background for the rise of the CCPOA, Page paints the “era of rehabilitation” and indeterminate sentencing in nostalgic, overly rosy colors. While the rhetoric and logic of rehabilitation and positivism governed the penal field in California, studies of actual incarceration practice and conditions reveal a grim picture of cruelty, hard labor in the guise of correction at the time, not to mention the arbitrary sentencing practices which dramatically disfavored minority and poor inmates. Determinate sentencing led to a great many evils in California’s correctional system, but it was preceded by a great many evils in its prior regime, which many activists and legal professionals fought to eradicate for all the right reasons.

Second, Page portrays the CCPOA in two somewhat contradictory ways: As an astute political player, who will choose alliances according to what suits its members’ narrow interests, and as an ideologically-committed “law and order” player. I am curious as to which of these frameworks he finds to be a better descriptor. When presenting the CCPOA’s involvement in the creation of Three Strikes, Page refers to it as an “exception” to the “nonintervention rule” regarding sentencing matters, adopted by the union, but his analysis of the involvement and ideological choices made could also regard Three Strikes as a pivotal moment in CCPOA policy, in which it morphed into an ideological player. As Page grimly reminds us at the end of the book, despite CCPOA’s support of sentencing commissions and seemingly more reasonable positions, its powerful, debilitating shadow still looms large over any attempt to reform the correctional system, and its interests in hindering such reforms go beyond its union objectives.

Notwithstanding these minor critiques, The Toughest Beat is a terrific read, and I highly recommend it not only to readers interested in penal policies, but to anyone interested in the inner workings of the political system in the Golden State.

On Institutional Responsibility and Overcrowding

This week I traveled in Vancouver Island, BC. In Victoria, I was handed the local newspaper, the Times Colonist, which on Page 4 (!) reported of a prison protest in the Wilkinson Road Jail.

A 30-prisoner standoff broke out in the Wilkinson Road jail Thursday night after prisoners decided an inmate had been denied hospitalization and proper medication.

The inmate has liver cancer and hepatitis C, said Camille Davis, whose boyfriend, Samuel McGrath, is in the same unit as the sick prisoner.

Around 9 p.m., 30 inmates refused to be locked up because they said the issue wasn't being addressed, said Dean Purdy, a corrections officer supervisor and chairman of the Corrections and Sheriffs Service for the B.C. Government and Service Employees' Union. The B.C. Corrections Branch could not be reached for comment.

The result was a 25-minute standoff by the 30 inmates, who wanted the ailing prisoner to be sent to hospital, said Davis.

After the standoff, the sick prisoner was taken to hospital.

It would be rather simplistic to ascribe the differences between this coverage of this incident to the CA newspaper coverage of the Pelican Bay hunger strike, but nonetheless, I can't resist noticing four peculiar things:

1) Page 4? This Victoria Jail is, apparently, not invisible to the public.

2) Coverage is decidedly sympathetic to the inmates and reports of their success. Note - this is a protest, not a "riot", and the beginning of the story expands on the inmate's medical condition and the urgent need to hospitalize him.

3) The first interviewee is the girlfriend of one of the inmates. I don't recall seeing any CA newspaper being the least bit attentive to inmate families.

And, 4) - the big shocker - here's what the correctional authority had to say about the protest:

"We're severely overcrowded and it only stands to reason that when prisoners are incarcerated under these conditions, stress and agitation levels of inmates are going to be very high."

Wilkinson and eight other provincial jails are operating at 180 per cent of capacity, said Purdy.

He said the overcrowding increases the risk of violent behaviour, escape and deteriorating working conditions for correctional officers.

Overcrowding promotes a "mob-like mentality," he said. "It's a recipe for disaster."

Does anyone recall a current holder of a correctional position in the US offering such mild commentary about an inmate protest?

Support for Hunger Strikers in the New York Times

A New York Times editorial this week picked up the story about the Pelican Bay hunger strike, offering support for the strikers.

With their health deteriorating, those inmates continuing to fast resumed eating after state prison officials met a few modest demands. Inmates in Pelican Bay’s isolation unit will get wool caps for cold weather, wall calendars to mark the passing time and some educational programming. Prison officials said current isolation and gang management policies are under review. But the protest has raised awareness about the national shame of extended solitary confinement at Pelican Bay and at high-security, “supermax” prisons all around the country.

Once used occasionally as a short-term punishment for violating prison rules, solitary confinement’s prevalent use as a long-term prison management strategy is a fairly recent development, Colin Dayan, a professor at Vanderbilt University, said in a recent Op-Ed article in The Times. Nationally, more than 20,000 inmates are confined in “supermax” facilities in horrid conditions.

Prison officials claim the treatment is necessary for combating gang activity and other threats to prison order. It is possible to maintain physical separation of prisoners without ultraharsh levels of deprivation and isolation. Mississippi, which once set the low bar for terrible prison practices, saw a steep reduction of prison violence and ample monetary savings when it dramatically cut back on long-term solitary several years ago.

And there's a humonetarian angle, too:

Holding prisoners in solitary also is very expensive, and several other states have begun to make reductions. In any case, decency requires limits. Resorting to a dehumanizing form of punishment well known to induce suffering and drive people into mental illness is beyond them.

Wednesday, August 3, 2011

Tonight: San Francisco DA Candidate Debate

San Francisco District Attorney Candidates Debate - Civil Rights and Criminal Justice Reform
With candidates Sharmin Bock, David Onek, George Gascon and Vu Trinh

Doors open at 6:30pm
762 Fulton Street

Sponsored by Lawyers' Committee for Civil Rights, ACLU-Northern California, African American Art & Culture Complex, Asian Law Caucus, Chinese for Affirmative Action, Citizen Hope, Equal Justice Society, Equal Rights Advocates, and Hastings Race and Poverty Law Journal

This event will be the first opportunity for all three of the major candidates for San Francisco District Attorney to engage in a dialogue with each other, leading civil rights advocacy organizations, and the community about critical issues in criminal justice and public safety policy.

Candidates will be asked to discuss topics such as the disproportionate impact of the criminal justice system on communities of color, alternatives to incarceration, immigration, police misconduct, criminal justice realignment under AB 109, and policies to promote reentry and reduce recidivism.

The leadership of the San Francisco District Attorney is essential in ensuring that the city's criminal justice system is fair and equitable and fully respects civil rights. The San Francisco DA has also often played a critical leadership role in advocating for progressive and smart criminal justice policies statewide and nationwide.

With the recent Supreme Court case ordering a reduction of nearly 40,000 prisoners from California's prison system and major changes at the state level re-aligning responsibilities for implementing public safety, the need for bold and innovative leadership on criminal justice policy is especially urgent.

We look forward to seeing you there. If you have questions for the candidates, please post them as a comment below.

Click here for the event flyer : http://www.lccr.com/SFDA_D​ebate_8.3.11.pdf

Monday, August 1, 2011

7/31: SF Chronicle on 2-strikers

Two strikes have large impact on prison population

California's "three strikes" law is best known for locking up career criminals for life, but the vast majority of offenders serving prison time under the sentencing mandate were actually charged under the less-noticed second-strike provision.

These 32,390 inmates are serving sentences that were doubled as a strike-two penalty, and they account for nearly 20 percent of the state's prison population. Yet most efforts to reform the law have focused exclusively on the third-strike provision, which carries with it a mandatory 25 years-to-life sentence.

As prison costs in California continue to grow, and the state faces a Supreme Court order to reduce its inmate population by more than 30,000 over the next two years, the tens of thousands of second-strikers appear to pose a bigger challenge to state officials attempting to rein in prison costs than the 8,700 people serving time for a third strike.

"We're missing the significance of the second strike," said UC Berkeley's Barry Krisberg, director of research and policy at the school's Institute on Law and Social Policy. "It is having an enormous impact on our prison population, and many second-strikers are serving more time than third-strikers, but when people talk about the policy of reforming three strikes, nobody wants to touch the second strike."

'Arbitrary' sentencing

Under the three strikes law, approved by the Legislature and voters in 1994, anyone who was convicted of a serious or violent felony in the past can be charged with a strike if they commit a new felony. Someone charged with a second strike under the law will face double the prison time, regardless of whether the new offense is serious or violent; those charged with a third strike automatically are eligible for a 25 years-to-life sentence.

San Francisco Public Defender Jeff Adachi said the law means that someone convicted of petty theft or burglary who had a prior felony could face four to six years in prison instead of two to three years; and someone convicted of armed robbery would spend at least a decade behind bars instead of five years - or perhaps longer if prosecutors added on sentencing enhancements for using a gun.

"The problem with strike sentences is that it's not based on an individual determination of protecting the public and ensuring that the personal characteristics of the accused are taken into consideration," he said. "The rationale for second-strike cases really is arbitrary because you're not making a determination as to whether this person needs to be locked up. It's a mathematical equation that you're up against."

Most past reform efforts have focused on limiting when someone can be convicted of a third strike. Krisberg, however, said the tens of thousands of inmates serving sentences for second strikes demonstrate that piecemeal reform of three strikes will not solve the state's larger prison problem: "stiff, determinate sentencing."

"The fact that second-strikers make up such a huge part of the prison population should tell people that that's where we should focus our energy," he said.

Reasons behind costs

Critics of the law, seen as the harshest in the nation, often focus their complaints on the most egregious cases, such as people serving life sentences for shoplifting, drug possession and other nonviolent offenses. But the costs of the second strike are significant as well.

For one, offenders sentenced in the future under three strikes won't be eligible to be diverted to local jails - even if their most recent crime is nonviolent - under Gov. Jerry Brown's realignment plan, which calls for keeping more low-level inmates in the community. Those sentenced under the law also stay in prison longer, because they are only eligible to earn a fraction of the "good-time" credits that other inmates may accrue.

"That's (one) big difference with strike cases - even if it's a nonserious felony, they have to do 85 percent of their sentence," Adachi said.

Additionally, anyone sentenced under "three strikes" is likely more expensive to house, because under state prison policies, their long sentence automatically classifies them as a higher-security inmate, even if their latest offense was not violent.

Punishment questioned

Jeanne Woodford, a former Corrections Department chief who spent most of her career as a correctional officer, then warden at San Quentin Prison, said the "three strikes" law has unquestionably helped drive the state's prison crowding and spending problems, in part because higher-security inmates must be housed in cells, rather than dormitory-style situations. She said those sentenced under the second strike provision are a bigger issue for state officials than those in prison for a third strike.

"Some of these guys are literally serving 60, 70 years - more time than three-strikers," she said. "The bottom line is that we really do need to look at our sentences. They are just so all over the place that people could commit a very serious crime and get less time than a second-striker who did something far less serious. To be a deterrent, the sentencing system has to be consistent."

Krisberg agreed, pointing to a report he authored in 2008, which concluded that the biggest driver of California's growing prison population isn't the number of criminals behind bars, but the amount of time they spend there. He calls "three strikes" the coup de grace of the determinate sentencing movement, which began in the 1970s and grew over the years to include not just tougher penalties but also fewer opportunities for early release if inmates behave well.

How much is enough?

Longer sentences are especially troublesome when it comes to second-strikers, he said, because they are often eligible for sentencing enhancements on top of an automatically doubled sentence.

"If you get enhancements then a double penalty, you could end up serving 40 years, and it's not subject to (appeal) - they have to serve all their time," he said. "It comes back to the issue: What's enough time? Sometime along the way we've changed the assumption about what's proportionate, what's fair, what people deserve."

Second-strikers also have the potential to drive up prison costs in future years because they tend to come to prison in their 30s and 40s and often have decades-long sentences - setting the stage for growing medical costs as they age. A 2010 report by state auditor Elaine Howle concluded that on average, people sentenced under the law receive a sentence nine years longer than they would have without three strikes, at a cost of $19.2 billion to taxpayers. Nearly half of that additional cost, $7.5 billion, is spent on people whose most recent strike is for a nonviolent felony.

The report also found that a small, severely ill portion of the prison population accounts for 25 percent of the approximately $2 billion the state spends on inmate health care every year.

Aging inmates tend to cost more, said Nancy Kincaid, a spokeswoman for the federal receiver in charge of medical care in state prisons. And, she said, those who are severely ill often have to be treated at hospitals outside prison walls - at an even higher cost to taxpayers.

"Our largest driver of costs is outside contract medical care, at $390 million a year," she said. "Those inmates are the ones that are ... here long-term and are going to age and likely die in prison. The majority of medical costs come after age 60."

E-mail Marisa Lagos at mlagos@sfchronicle.com.