Wednesday, February 27, 2013

The Limits of Savings: Cutting Prisons but Not Populations

Inmate working on a flag at the Prison Industries Autority at CCWF.
Image from story on struggle to maintain
vocational programs in prison.
Credit Lea Suzuki for the San Francisco Chronicle.
Over the last five years, we've spent a considerable amount of time on this blog discussing the impact of the financial crisis on reversing the punitive trend, a phenomenon that I refer to, in my forthcoming book with UC Press, as humonetarianism. A recent story by Truthout's Victoria Law is more skeptical about the potential of the crisis for changing real policies, and in fact highlights the perverse ways in which closing prisons and shifting populations negatively affect prison conditions.

Law provides some examples of how consolidating inmates in fewer institutions makes overcrowding worse:

In December 2011, on the heels of the US Supreme Court's decision that the overcrowding in the California state prison system is unconstitutional, the CDCR proposed converting Valley State to a men's prison and transferring its women and transsexual prisoners to the neighboring Central California Women's Facility (CCWF). That month, CCWF was at 160 percent capacity with 3215 people.

"The CDCR has been talking about gender-responsive and gender-humane prisons. They said that women have different needs than men, but look at us now - women are overcrowded with eight to a room," Wendy stated. A room, according to the Merced Sun-Star, is 348 square feet.

After the CDCR announced the conversion, despite threats of retaliation, 1000 people inside VSP and 200 inside CCWF sent letters against the plan to advocacy groups the California Coalition for Women Prisoners (CCWP) and Justice Now. "Women are not cattle. You can't just shove us into a barn and [expect that] we will be all right," wrote one woman. As of January 16, 2013, with Valley State having been emptied of all but five women, CCWF is at 187 percent capacity with 3748 women, making it the state's most crowded prison.

During the transfers, medications were withheld. Once at CCWF, women reported difficulties receiving them. CCWP campaign coordinator Colby Lenz told Truthout that one woman was taken off her medications for two weeks before she was able to appear before a 12-doctor panel; they reassigned a new medication regimen.

Medical staff reportedly told an 81-year-old woman that she was old and going to die anyway, so they weren't going to give her anything. Others complained about a particular nurse who was randomly withholding medications.

In addition, those in VSP's mental health programs must be placed on a waiting list before accessing any mental health counseling. Wendy noted that, although CCWF only has six self-help groups, VSP's 56 self-help groups, run by the women themselves, have been discontinued.

"No one was able to take their materials to start a [new] group. They [prison staff] are citing overcrowding and the cost to taxpayers of shipping these papers across the street," said Lenz.
"People [transferred] are in a really horrible state. They are really traumatized," she said. "The prison wasn't giving people blankets, pillows, toilet paper, tampons or cleaning supplies."

Claiming a shortage of staff to supervise the increased numbers, the prison placed many under lockdown. CCWP has been told that some women were transferred from general population at VSP directly into segregation units at CCWF. In addition, women reported that guards were provoking violence against the VSPW "bitches." The mother of one transferee told Truthout that her daughter had said that conditions were so awful that she was contemplating suicide.

I don't doubt any of this for a moment. Not only good things have happened in the correctional world since the financial crisis; bad and ugly ones abound. This is not just about increased overcrowding in consolidated institutions. Private prison companies have been making more profit offering local governments savings. Educational and vocational programs have been slashed (in fact, here's an example of that in the very prison Law writes about). More inmates are housed in presumably more efficient out-of-state settings, taken away from relatives and friends. The trend of rolling incarceration expenses on the backs of the inmates themselves has increased as a "creative solution" for incarceration costs.

But I maintain that a lot of this comes from a misguided, short-term view of the expense argument. When seeking an emergency way to save money, correctional policymakers are likely to make these mistakes, ignoring the potential expensive implications they might have on the future in terms of recidivism rates. It is easier to adopt emergency measures than to think holistically about the challenges of mass incarceration and how they affect our spending later.

Short-term thinking about incarceration is not a new mentality. In a way, you could say this is what started the whole thing. What characterized our thinking about prisons in the 1970s was lack of actually thinking about them. The Nixon administration fueled money into law enforcement, and the expansion of prisons was an afterthought, a result of the increased number of arrests by a better funded and empowered police force. Even our way of funding prisons is a way of passing the buck to future generations, not through taxes we pay in real time but through hidden bonds that will be due later. Is it any wonder that, when trying to patch up the hole in our finances, we're not considering the possibility that unprogrammed, overcrowded institutions, are a recipe for deteriorated health and decreased skills, which mean more costs and more recidivism?

The key to changing this is to transform the cost argument in a way that incorporates consideration of future recidivism rates into the assessment of everything we try to do. This is not easy to do, because measuring recidivism is tricky, and so is predicting recidivism. But I really hope we can do it, because there doesn't seem to be any other motivation for change that holds the same amount of public appeal.

Props to Caitlin Henry for the link.

Tuesday, February 26, 2013

Ninth Circuit Revives Inmate Lawsuit for Pagan Chaplaincy

A three-judge panel of the Ninth Circuit has acknowledged, apriori, that Pagan inmates complaining about the lack of a paid chaplain might have two valid legal claims, and remanded the case to a lower court for consideration of such claims.

Some background: CDCR employs a five-faith policy, which acknowledges, for purposes of religious accommodation, Catholicism, Protestant Christianity, Judaism, Islam, and Native American spirituality. For years, volunteer Wiccan prison chaplain Patrick McCollum waged a legal struggle to obtain ackowledgment, and lost due to lack of standing: The right to a chaplain belongs to the inmates, not the chaplain.

A recent survey of religion in prison has revealed that Paganism, or Earth-based spirituality, is one of the fastest growing faiths in correctional institutions, and according to McCollum, the survey is tainted by underreporting on the part of inmates that were concerned about the repercussions.

In Hartmann and Hill v. CDCR, decided a few days ago, inmates argued that the lack of an official chaplain position also leads to other forms of religious discrimination and lack of accommodations. Their main contention is that the "five-faith policy" is not based on any neutral considerations, and that in Chowchilla, where the plaintiffs are incarcerated, there are more Pagan inmates than members of some of the approved five faiths.

In reversing the district court's dismissal for failure to state a claim, the Ninth Circuit court was careful to state that the First Amendment does not require CDCR to provide all faiths with a chaplain. Nor did the Court find an equal protection violation. However, the court did find that the inmates' claim that CDCR violated the Establishment Clause is valid; that is, that the existing arrangement potentially unreasonably burdens the practice of religion on the basis of preferential treatment. The plaintiffs also have a valid claim based on the California Constitution. In remanding the case to the lower court, the Ninth Circuit court instructed to view the Establishment Clause argument through the lens of facts - conditions of employment for chaplains, number of inmates in need of religious services, etc.

For excellent, informed commentary on the decision, including from Patrick McCollum himself, see Jason Pitzl-Waters' blog The Wild Hunt. Or, for a dosage of ignorance and bigotry, see Debra Saunders' poor excuse for a column on the Chron.

Monday, February 25, 2013

Today: Solitary Confinement Hearing in Sacramento

Today marks the beginning of a new wave of protest and action against the overuse of solitary confinement in California. Protesters meet for the State Assembly Public Safety Committee Hearing held following Tom Ammiano's recent visit to Pelican Bay.

The Prisoner Hunger Strike Solidarity website reports the intent to resume peaceful protest against these conditions of incarceration starting July 8, unless demands are not met; the protest will include a hunger strike and work stoppage.

There is reason for optimism. Not only is solitary confinement piercing the invisibility screen and making its way to public consciousness, commentators like George Will, whom no one would suspect of being a bleeding-heart liberal, are speaking out against these incarceration practices. As is the case with all narrow coalitions nowadays, he includes the steep price tag of solitary confinement in the list of reasons to end it.

But there's more: More people are being released from solitary confinement, and a federal lawsuit is challenging indefinite segregational incarceration. The L.A. Times reports:

Department spokeswoman Terry Thornton this week said the agency has so far reviewed 144 inmates who were placed in the SHU because they allegedly associated with prison gangs, an activity that now no longer merits segregation. Of those reviewed, she said, 78 have been released into the general population and 52 have entered the "step down" program. An additional seven inmates have been retained in segregation, 

Thornton said, "for their safety," and the remaining 10 have agreed to debrief, the term the corrections department uses for providing prison investigators information on gang activity. Thornton said the department intends to eventually review all SHU inmates for possible release, though there are about 1,200 in segregation at Pelican Bay State Prison alone, some held there more than 20 years.

If you can't attend the protest in Sacramento today, you can follow it live on Tweeter following @stoptortureCA.

Props to Ashley Toles and Zafir Shaiq.

Thursday, February 21, 2013

Book Review: Prison Profiteers, Edited by Tara Herivel and Paul Wright

Many books and articles decrying mass imprisonment use the term "prison industrial complex", and many of us know that it refers to the financial aspects of incarcerating a population of immense scale. Many of us also know about the for profit business of private prisons and its many ills. But few are privy to the nitty gritty aspects of the prison industry.

The edited collection Prison Profiteers: Who Makes Money from Mass Incarceration fills this gap with a distressing collection of snapshots of the prison industry. Herivel and Wright did an excellent job of picking authors with intimate knowledge of the crevices of the financial machine behind mass incarceration, and the essays illuminate aspects that, even to those of us who study prisons, often remain unseen.

The essays in the first part of the book, The Political Economy of Prisons, provide a general background to prison finance, explicating (in Kevin Pranis' essay) the mechanism of bond finance and the collaboration between banks and local governments that leads to opaque, disturbing financial deals that remain hidden from, and thus uncriticized by, the public. Jennifer Gonnerman's discussion of "million dollar blocks," that is, neighborhood blocks the incarceration of whose residents costs the nation untold amounts of money, calls for a different distribution of funds - to invest them in the neighborhoods that yield prison population in the first place, rather than in the distant prison. The distance between prisons and the communities of origin of inmates is illuminated in Gary Hunter and Peter Wagner's discussion of the impact of prisons on the census, and the detrimental effect that a a large population of non-voting, non-deciding citizens has on the democratic process and on local government funding. Clayton Mosher et al provide data that refutes the assumption that cities that agree to build prisons in their midst fare better economically. And Paul Wright discusses the harm of glorifying prisons in popular culture.

The second part of the book, The Private Prison Industry, discusses a better known part of the problem - private prison companies. But the essays do a great job at exposing the mechanisms through which these companies make money and lobby for punitive legislation and policy. Having just read in the paper that a university stadium in Florida is destined to bear the name of a private prison company, GEO, these essays are even more poignant. Ian Urbina's essay on the prevalence of prison labor, and the multiple ways in which it destroys the larger labor market, is particularly notable.

The third part of the book, Making Out Like Bandits, is a series of ground-level exposes on different aspects of the for-profit industry: The deceitful marketing techniques of tasers (by Anne-Marie Cusac), the horrific abuse and neglectful safety measures taken by private prison transportation companies (by Alex Friedmann, the exorbitant prices of telephone calls and their detrimental ostracizing impact on inmates and their families (by Steven Jackson), the proliferation of high-tech gear and workshops for prison staff (by Jennifer Gonnerman), and the horrors of privatized prisons for youth (by Tara Herivel). But the most devastating essays are by Will Hylton and Paul von Zielbauer, which dissect the private health care providers. Here in CA, the standards exposed in Plata and Coleman might lead one to think that no one can provide worst health care than the states. These essays offer sobering evidence to the contrary, and the multiple examples of medical neglect and indifference are truly heartbreaking.

The collection does not offer high-level analysis of the meaning of the incarceration industry. For that, one must turn to the many big-picture works already out and available. Instead, it provides much-needed foci on the many aspects in which privatization permeates every possible aspect of incarceration. The essays are full of examples and written in an easy-to-read journalistic style. I highly recommend educating yourself not only about your tax money's role in this, but about the many businesses that benefit from this somber enterprise.

Saturday, February 16, 2013

Film Review: West of Memphis

I have just returned from watching West of Memphis, the latest film in the West Memphis Three saga. This is a case I care about a great deal, and I have been following it for eighteen years, until its surprising ending last fall in an Alford plea.

Those of you who have followed the case and were convinced, as I am, of the defendants' innocence, may have been drawn to the case by Joe Berlinger and Bruce Sinofsky series of documentaries Paradise Lost (1996), Paradise Lost 2: Revelations (2000), and Paradise Lost 3: Purgatory (2011). What could a fourth documentary possibly add to those?

Plenty, apparently. West of Memphis, directed by Amy Berg and produced by Damien Echols and his wife and staunch supporter Lorri Davis, as well as supporters such as Peter Jackson, offers fresh perspectives on the case that were not highlighted in the previous documentaries. If you thought what you saw in Paradise Lost of the trial was an absolute travesty, wait until you see incredible footage of the trial not seen in the original documentary. This movie also benefits from the passage of time and the discovery of new forensic evidence, as well as recantations by several key witnesses from the original trial.

The film has many strengths, but the most interesting bit, to me, was the blow-by-blow documentation of the Alford plea process, and in particularly the excruciating dilemma faced by Jason Baldwin, who did not want to plead guilty to a crime he did not commit. We got to hear moving words from the judge accepting the pleas (who was clearly convinced of the defendants' innocence) and some ridiculous statements from prosecutors, present and past.

The weakness of the film is in its overemphasis on the alternative theory, according to which Terry Hobbs, stepfather of one of the children, committed the crime. It is true that some forensic evidence ties Hobbs to the crime, and he is therefore a more convincing suspect than John Mark Byers, who was cast as a possible suspect in Paradise Lost 2. At the time, I thought that the case against Byers was no less a witchhunt than against the original defendants. While these filmmakers have a bit more to support their theory, including DNA from the alibi witness, I can see a talented defense attorney explaining away the DNA evidence. The crime does not necessarily make sense, there is no clear motive, and the hearsay evidence about a late confession could be as problematic as the bogus evidence about Damien Echols' alleged confession in the original trial. I think we can easily come to believe in Echols', Baldwin's and Misskelley's innocence without casting aspersions on new suspects without conclusive proof.

That said, the film is a masterpiece: Beautifully filmed, fast paced, intelligent, and providing a fascinating perspective into the case and the defendants'. I urge you all to see it.

Thursday, February 14, 2013

Starving the Messenger

It strikes me that yesterday's post about Governor Brown's gripe against the Prison Law Office and Rosen, Bien, Galvan and Grunfeld requires more blogging attention, because it hits at the heart of the problem: We shouldn't begrudge people who work for human rights for getting paid to do their work. We should be grateful that they are willing, and able, to do it effectively.

I invite you, gentle reader, to revisit the figures offered by the Washington Post regarding the expenses on Plata/Coleman. The Prison Law office is reported to have received $8.3 million in attorney’s fees; Rosen, Bien, Galvan and Grunfeld have received $19 million. But, while it might be convenient for Brown to focus on these expenses, there were other lofty expenditures on this case, including the salaries for Brown’s own attorneys and for the people appointed by the court to mix his mess of a correctional health care system, which he conveniently ignores.  The expenses related to the federal receiver were $7 million, and the expenses related to the special master in charge of the mental health system were $48.4 million. And of course, state attorneys, and private attorneys hired by the state, also need to be paid for their services. The Justice Department salaries amount to more than $4 million, and the private attorneys hired by the state were paid $15 million.

The conclusion from the numbers is that Governor brown is misled at best, and misleading at worst. Yes, the lawyers for the inmates won attorneys’ fees – as they well deserve for their important service. It would be na├»ve to expect so many people, on both sides of the litigation, to commit so many hours to these cases as volunteer work. As Governor Brown no doubt knows, this is how civil rights cases are litigated in this country: Relentlessly, and by taking a financial gamble that the court will eventually see the serious civil and human rights violations for what they are, the inmates will win, and their attorneys will recoup their costs as well as make a well-deserved living.

But the remark is also infuriating in principle. Nonprofits that help those to whom the state turns its back are important watchdogs in the struggle to humanely treat the weakest links in our social chain. And solid, prosperous law firms who devote a substantial amount of their human and material resources to civil rights litigation, rather than pay lip service to the idea of pro bono, should be commended and encouraged.

As a coda, it would behoove Governor Brown and his number crunchers to get a broader perspective. In 2012—the year at the end of which the state began realigning its non-serious offenders to county jails—the total budget for the California Department of Corrections and Rehabilitation (CDCR) was $10 billion dollars. Out of this amount, $2 billion was spent on correctional health services, to mixed results. These expenditures dwarf the dwindling funds spent on inmate vocational and educational programming. They also dwarf the expenses of the lawsuit itself. Governor Brown is to be commended for advocating fiscal responsibility, but perhaps some of CDCR’s expenses could be lowered if Californians had abolished our costly and broken death penalty years ago, or if anyone had considered the possibility that some the many people we are now diverting to county jails need not be incarcerated in the first place. Perhaps retooling parole as an instrument of hope, rather than a revolving door of recidivism, could have lowered the price tab. Perhaps our nineteen-year affair with the Three Strikes Law brought into prison thousands of people, many of them for nonviolent offenses, for disproportionately lengthy sentences that encumbered us with their health care expenses. And perhaps providing people with skilled, prompt and humane health care could prevent the many iatrogenic health problems that plague our systems and jails and save a few nickels and dimes as well.

As to the accusation of prolonging litigation in this matter, perhaps the fault for that lies with the state’s stalling techniques in what could amount, under a less forgiving judicial system, to contempt of court. Complying with the court mandate, which left the state ample leeway in choosing its course of action, would also be a way to save money.

The California health care cases shone a bright light on one of our state’s most invisible populations and its plight. We would not have known that our tax money was being wasted on abysmal medical treatment to a population doing time (sometimes excessive and sometimes unnecessary) under overcrowded, unsanitary conditions, sleeping in triple bunks in converted gyms, and receiving medical attention in cages. Like Governor Brown, I am pleased that serious steps have been taken to cure this disease. But when someone draws our attention to human rights violations, we don’t shoot the messenger, nor do we complain about his salary. We thank them for opening our eyes. 

Monday, February 11, 2013

What's Cheaper: Litigating or Realigning?

Today brings with it an interesting financial gripe: Governor Brown's concern with the money made by private law firms representing inmates in prison conditions litigation. ABC News Report:

A tally by The Associated Press, compiled from three state agencies, shows California taxpayers have spent $182 million for inmates' attorneys and court-appointed authorities over the past 15 years. The payments cover a dozen lawsuits filed over the treatment of state prisoners, parolees and incarcerated juveniles, some of which have been settled.

The total exceeds $200 million when the state's own legal costs are added.

While the amounts are a blip on California's budget, they provide a continuous income stream for the private attorneys and experts involved in the ongoing litigation. And that is the point Brown is trying to make.

The AP sought the tally after the Democratic governor began using court filings and public appearances to call for an end to two major lawsuits that have forced the state to spend billions of dollars improving its medical and mental health care for prison inmates. Brown says the complaints are expensive, frivolous and motivated by attorneys' own financial interest.

"They don't want to go away," he said last month, standing behind a stack of court documents. "I mean, the name of the game here is, 'Come to Sacramento and get your little piece of the pie.'"
Brown says that, thanks to recent overhauls, California now offers inmates the best medical and mental health care of any prison system in the nation.

The response from Prison Law Office:

"It's ridiculous for the governor to merely characterize these cases as being about money, when in fact these cases have been the only impetus in the last 20 years for reducing the prison population and improving conditions," said Donald Specter, director of the nonprofit Prison Law Office in Berkeley, which has won several major cases against the state.

And from Rosen, Bien, Galvan and Grunfeld:

Michael Bien, the lead attorney representing the welfare of mentally ill inmates in one of the major class-action lawsuits, said Brown is wasting more of the state's money on a legal fight he has little hope of winning. Moreover, Bien said, inmates' attorneys expect the court battle will reveal additional lapses in inmate care that will cost the state even more money to fix.

"He's litigating with your money and my money," said Bien, of the San Francisco law firm Rosen Bien Galvan and Grunfeld, which is among the law firms that have been paid $19 million by the state in the inmate mental health lawsuit.

He said Brown and the state would be better off complying with a prison population cap supported by the U.S. Supreme Court and by working with Lopes to reduce inmate suicides and improve mental health treatment.

"It's a distraction from the primary issue here, which is, 'Why is the state still running unconstitutional prisons where prisoners are dying unnecessarily?'" Bien said. "The easiest way to stop this process is to fix the problem."

The Washington Post offers the breakdown on legal costs for Plata/Coleman, 1997-2012:

  • Inmates’ attorneys (lead firm, Prison Law Office, Berkeley), medical lawsuit: $8.3 million. 
  • Inmates’ attorneys (lead firm, Rosen Bien Galvan & Grunfeld, San Francisco), mental health lawsuit: $19 million. 
  • Court-appointed receiver’s attorneys and experts, medical lawsuit: $7 million. 
  •  Court-appointed special master and experts, mental health lawsuit: $48.4 million. 
  •  Private lawyers hired by the state, medical lawsuit: $14.3 million. 
  •  Private lawyers hired by the state, mental health lawsuit: $714,312. 
  •  Justice Department attorneys representing the state, medical lawsuit: $589,797. 
  •  Justice Department attorneys representing the state, mental health lawsuit: $3.5 million. 

Total legal costs for medical and mental health lawsuits: $101.8 million. 

Query: Wouldn't taxpayers--particularly the ones exposed to the medical horrors that prompted the Plata/Coleman litigation in the first place--have preferred to see the medical system fixed without any need for litigation?

Props to Caitlin Henry for bringing this to my attention.

Sunday, February 10, 2013

Assemblyman Ammiano Arrives in Pelican Bay

Image courtesy
Assemblyman Tom Ammiano, whose efforts to reform the criminal justice system are well known to frequent readers of this blog, is paying a visit to Pelican Bay. The Examiner reports:

After more than two months delay, Assemblyman Tom Ammiano (D-SF), Chair of the Assembly Committee on Public Safety, arrives today at one of California’s Maximum Security correctional facilities to see for himself the progress the State’s prison system is making to address concerns of judges and reform advocates for the care of incarcerated Californians.

Earlier this year Ammiano likened California’s 33 prisons to “Gladiator Academies,” where Californians incarcerated for homelessness, victimless crimes like drug possession and those with mental illness must choose between “being victimized or victimizing others.”

. . . 

Perhaps surprisingly, Ammiano’s visit is welcomed by CDCR. “When I heard about his plans my first thought was, ‘What took him so long,’” CDCR spokeswoman Terry Thornton told California Progress Report. “I wish more legislators would visit our prison system.” 

Thornton admits the prison system has made mistakes, many of which were thrust upon it as the legislature cut from its budget money earmarked for re-entry programs like education, vocation-training, drug rehabilitation and counseling and mental health services – cuts that have led to California’s notoriously high recidivism rate. 

“Look, if you’re going to cut social services, education and healthcare for senior citizens – even my own salary was cut, as were the salaries of most state employees, and that really hurt, believe me – why wouldn’t the CDCR experience cuts to [programs geared toward the successful return of parolees to society], asked Thornton. “But things have turned around, funding has been restored, and our recidivism rate is down.”

Props to Caitlin Henry for the link.

Book Review: Golden Gulag by Ruth Wilson Gilmore

So many great books have come out in the 21st century examining the genesis of mass incarceration; we've discussed many of them here. While many of these books look at trends nationwide, or even in the industrialized West, it is no coincidence that they tend to focus on California. Not only does California have the largest prison population (in absolute numbers; we are not leading the gloomy per-capita parade), but it has pioneered many of the punitive legislation and policies later adopted by other states.

Which is partly why Ruth Wilson Gilmore's Golden Gulag provides a necessary local context to much of the conversation. Gilmore, a geographer, focuses on somewhat less analyzed aspects of mass incarceration in the Golden State: The economic and geographic conditions that have yielded massive prison construction.

After providing a dense and detailed introduction to the California political economy, Gilmore moves on to provide the central thesis of the book: California's prison boom is a "prison fix" to a problem of fourfold surplus: Capital, land, labor, and state capacity. Her discussion of the mechanism behind prison finance, done through bonds to avoid accountability to taxpayers, shows how supply and demand has worked to create a prison boom that empowered the California Department of Corrections and rendered its construction activities immune to public critique.

1982 is a key year for Gilmore's narrative. That year, the legislature approved facilities in Riverside, LA, and San Diego, as well as $495,000,000 in general obligation bonds to build new prisons, with the express goal to enhance public safety. In the same year, the legislature also reorganized CDC in a way that exempted its bidding and budgeting practices from the competitive process and instead allowed to assign work to outside consultants, to guarantee that construction occur quickly.

While prisons were initially funded by general obligation bonds, which are backed by the full faith and credit of the state, underwriters and legislators had to deal with "politically contradictory limit to taxpayers’ willingness to use their own money to defend against their own fears". Their solution was to use lease revenue bonds, usually issued by the Public Works Board for college and university facilities, as well as for veterans and farmers. LRBs carried more risk, as they were only backed by a moral obligation rather than a fiscally binding one, but the expense was offset by the fact that LRBs did not have to be placed before the voters in general elections, and could therefore be quickly organized and issued so prisons could be built close to the time they were bid on, to avoid cost hikes. As a result, in less than a decade, the state debt for prison construction expanded from $763 million to $4.9 billion, an increase from 3.8% to 16.6% of total state debt.

In the next section, Gilmore examines the economic, demographic and geographic push for partnerships between CDC and various central valley towns who wanted to revitalize their economy through the labor and land improvement that would result. As her case study, she looks at Corcoran, an agrarian town with a diverse population suffering a serious economic downturn, in part because of ten years of weather calamities. Most Corcoran residents were hopeful that a prison would put their real property to work and generate employment; their visit to Susanville impressed them with the potential of a prison to revitalized the city. Despite vocal objection, the prison was built, but the town's hopes were crushed. Employment and opportunities for locals did not improve, confirming general research that shows that, over time, prison towns compare unfavorably with depressed rural places that do not acquire prisons.

The last part of Gilmore's book looks at anti-prison activism originated by mothers. While it is an interesting account, it delves too much into the personal and would be better as a piece on its own, as it is rather disjointed from the grand narratives and analysis that precedes it.

I'm not sure I am entirely on board with Gilmore's interpretation of Marxist surplus theory, and I think it does not fare well in providing a full explanation of mass incarceration. But as a piece of the puzzle, the book offers an informative and important explanation of prison construction, one which is sorely needed as the mechanics of prison finance are cleverly hidden from state voters and taxpayers. Her tale of Corcoran is told from the perspective of someone who is not only well informed, but who cares deeply about these towns and their crushed hopes. It is certainly helpful to me as I try to understand and explain what happened after 2007 (when the book was published) and how the financial crisis impacted these developments.

U.S. Bureau of Prisons to Review Solitary Confinement

Good news via Reuters:

A spokesman from the bureau confirmed that the National Institute of Corrections plans to retain an independent auditor "in the weeks ahead" to examine the use of solitary confinement, which is also known as restrictive housing.

"We are confident that the audit will yield valuable information to improve our operations, and we thank Senator Durbin for his continued interest in this very important topic," spokesman Chris Burke said in a statement. 

Prisoners in isolation are often confined to small cells without windows for up to 23 hours a day. Durbin's office said the practice can have a severe psychological impact on inmates and that more than half of all suicides committed in prisons occur in solitary confinement. 

In Durbin's state of Illinois, 56 percent of inmates have spent some time in segregated housing. 

"The United States holds more prisoners in solitary confinement than any other democratic nation in the world, and the dramatic expansion of solitary confinement is a human rights issue we can't ignore," said Durbin, who chaired a Senate hearing on the use of solitary confinement last year. "We can no longer slam the cell door and turn our backs on the impact our policies have on the mental state of the incarcerated and ultimately on the safety of our nation."

The Vera Institute's Segregation Reduction Project, in which they partner with states and help them reduce the population under solitary confinement, has yielded, to my surprise, impressive monetary savings and no decrease in prison security.

Yesterday, at the Western Society of Criminology, I heard something interesting. Ashley Rubin, who is joining the criminology faculty at Florida State University next year, presented a fascinating paper based on her archival study of Eastern State Penitentiary in Philadelphia (which we visited a few years ago.) In the 19th century, Eastern State advocated an incarceration model based on total isolation of inmates. Auburn prison, in New York State, did not isolate its prisoners, though it did require them to work in silence; Auburn model supporters critiqued Philadelphia for the inhumanity and wastefulness of solitary confinement. Officially, Philadelphia supporters rejected the critiques. But privately, they double-celled inmates. The warden's journal reveals the motivation behind this practice: Concern about the inmates' sanity and their need for company. They also allowed inmates to work out of the cell, when they needed to do so to reduce prison costs through inmate labor.

Apparently, there is nothing new under the sun. Keramet Reiter from UC Irvine has been studying the modern supermax and solitary confinement, and has found the exact same practice going on today: Double-celling in solitary cells in the supermax. Apparently, a second bunk had been thrown into solitary cells in supermaxes as an afterthought, and it's being used. Read this for more information. Whether CDCR does so to alleviate overcrowding, save money, or alleviate inmates' mental anguish, it raises the question whether being housed with another person for 23 hours a day in close proximity and tight quarters is better or worse than doing time alone. I suppose the answer depends greatly on the circumstances, the person, the mental state of both inmates, and the extent to which staff monitor the possibility of violence in the cell.

The U.S. Bureau of Prisons' willingness to examine solitary confinement is welcome news. I hope its findings, as well as the Vera Institute's important activity, will yield some thoughts on the state and local level about reducing the usage of solitary confinement.

Saturday, February 9, 2013

The New Correctional Discourse of Scarcity: Executive Summary

This morning I gave a talk about my upcoming book at the Western Society of Criminology Annual Meeting. Here is the gist of my comments.


The New York Times proclaims the end of mass incarceration; prison population in the US is declining for the first time in 37 years; Milton Friedman and Pat Robertson are advocating for marijuana reform; several states abolish the death penalty and others are closing prisons, importing and exporting inmates, and reducing their usage of solitary confinement.

What is going on? Is mass incarceration, indeed, coming to an end? Have we come to care more about the human rights of suspects, defendants, and inmates? Have we rejected the war on drugs?

This talk, based on my book in progress with UC Press, argues that these changes are the function of a new discourse of corrections, fueled by the financial crisis. As I argue in the book, the severe crisis, affecting especially local governments, generates new ways of conceptualizing criminal justice problems, new alliances between conservatives and progressives, new policies and practices of incarceration, and new ways of imagining the offender.

Many wonderful books have come out recently that tell the story of mass incarceration, offering political and cultural explanations both on the micro and macro levels. In adding my own narrative of what happened before, and especially AFTER the 2007 crisis, I do not wish to supplant political and cultural analyses with historical materialism. Rather, I argue that the expenditures on criminal justice tell a story of policymaking sincerity and of the limits of criminal justice project as a sound fiscal investment. That is, that a historical-materialist approach complements our understandings of politics and culture. To understand the extent of this, we need to go back in time to the first federally-initiated grand project of crime control.

Prohibition, initially the successful product of an effective narrow coalition, was repealed largely because of its economic consequences: a combination of poorly-funded law enforcement and the senselessness of giving up on considerable tax revenue in a lean economic period.  This poor experience impacted the federal laissez-faire approach to criminal justice in the postwar years. This trend began to be reversed by the Warren Court’s clamoring for federalization of rights. Ironically, the Nixon election, often described as capitalizing on high crime rates and protesting the Warren Court’s project of incorporation, put in place an administration that was equally eager to federalize criminal justice, but with a very different agenda in mind. The 1968 Omnibus Act’s primary effect was fueling federal money into law enforcement, with the aim to make police officers more effective in the streets. At that point, money had not yet been fueled into prison construction upfront; arguably, money was never fueled, wholesale, into prison construction at the federal level. Rather, this front-end federal investment led to an increased number of arrests, requiring room to house inmates. The trend of punitivizing local law by fueling federal money persists to this day.

The big project of managing the product of these policing tactics – prison building– was left to be financed at the local level, and mostly through bonds. The bond mechanism does to prison construction what the Nixon funding structure did to prison existence: It pushes it out of sight. Rather than an open tax requiring voter information and approval, the specific types of bonds used for prison construction act as a hidden tax, or rather, a tax on future generations. The hidden aspect of prison finance is particularly true with regard to private prison construction and operation.

And then, the financial crisis happened. While its epicenter was the banking industry, it has had profound impact on the fiscal health of local governments. Since the late seventies, most local governments have come to rely on a tax base that is increasingly income- and sales-based, rather than property-based. The former, compared to the latter, is much more sensitive to fluctuations in the market. Shaking the tax base, and dealing in various localities with the inability to pay for pensions, meant that local budgets became depleted.

To bring things back into the correctional realm, it’s important to remember that corrections constitute at least 7% of all expenditures in state budgets, exceeding, in some states, the expenditures on higher education. States and local governments—that is, the locations where the vast majority of law enforcement, criminal justice and corrections occur—have therefore had to face a reality so far hidden from the eye by the bond mechanism and the illusion of a war on crime: The need to do with less.


This need to save on corrections has yielded a discourse that I refer to as Humonetarianism: A scaling-back of the punitive project on account of its fiscal consequences. In the book, I identify four main features of Humonetarianism: New Discourse, New Allies, New Practices, and New Perceptions of Offenders. I want to shortly discuss each in turn.

The new discourse of correctional scarcity tends to be shallow and to focus on short term. Cost had always been part of the criminal conversation, but it had never been a centerpiece of policymaking and advocacy. A good example of this discourse is the new rhetoric of death penalty, whose successes and gains are significant. Since the financial crisis, five states – New York, New Jersey, New Mexico, Illinois, and Connecticut – have abolished the death penalty. Many more states have placed moratoria upon its use and executions slowed down considerably. In California, Prop 34, which failed to pass in the 2012, nevertheless closed the gap between supporters and opponents of the death penalty to a mere 6%. An analysis of these campaigns shows the extent to which abolition advocates moved away from arguments on human rights and deterrence, put racial discrimination arguments on the back burner, and focused their campaigns on costs. Similarly, conversations about legalization of drugs have emphasized the waste involved in pursuing low level nonviolent offenders, and the successful propositions in Washington and Colorado have relied on the persuasive power of drugs as a source of revenue, much like their predecessors, the prohibition repeal advocates.

The conversation about drug legalization and de-prioritizing drug law enforcement reveals the second aspect of this discourse: Its ability to generate new allies. The 2012 presidential election, and, to a lesser extent, the 2008 presidential election, were notable for the complete lack of any criminal justice discourse, and especially the absence of drugs. The Obama administration, despite its controversial commitment to bipartisanism, did not fear alienating centrists and moderates by explicitly making marijuana enforcement a low priority. Leading conservative voices are calling for an end to the war on drugs, citing fiscal responsibility and the possibility of revenue as a powerful incentive. Among such names we count Jeb Bush, Chris Christie, free market economist Milton Friedman, and religious figures such as Pat Robertson.

The impact of humonetarianism has gone beyond rhetoric and legislation, and has generated the third feature of this discourse: Innovative practices in the field. California’s criminal justice realignment, consisting of a refunneling of low-level offenders out of state prison and into county jails—was initiated as a budgetary savings mechanism, correcting decades of economic disincentives and ending what Frank Zimring referred to as the “correctional free lunch.” Many states are closing or repurposing their prisons, which yields a less savory aspect of humonetarianism: Deals with other states to house their surplus prison population and thus make a profit on closed institution. But many states, like California and Hawaii, are now questioning the economic value of shipping their inmates out of state, and coming up with structures to keep them at home. Even institutions that cannot be repurposed, such as supermax prisons, seem to be saving considerable amounts of money through reduction projects. Moreover, the financial crisis creates an increased reliance on community corrections. Expenditures on programs have been cut; the shallowness of the conversation in some localities does not allow for a long-term assessments of the savings promised by recidivism reduction. But there is an increasing reliance on GPS monitoring.

Fourth and finally, humonetarianism has made salient some features and traits of the offender population. For decades, a policy of selective incapacitation has made us examine inmates through the lens of their level of risk; the financial crisis has come to make us see them in terms of cost. The recent modest success in scaling back Three Strikes in California was based on the increased salience of long-term Three Strikers as old and infirm inmates, whose lengthy incarceration drives up the costs of health care, already contested in California. And in many states, the introduction of geriatric parole and medical parole are a somber indication of how little Americans expect of their government: Not broad national healthcare for themselves, but less state-financed free healthcare for their inmates.


There are limits to the power of humonetarianism to transform the criminal justice apparatus. The for-profit aspect of our incarceration project arguably leads to particularly ferocious activities by private prison providers, who in this market of dearth try to offer an alternative to decreasing incarceration. This is not only an exploitation of the punitive state for profit, but sometimes generating more punitiveness by lobbying for punitive laws, as well as seeking new and emerging populations of potential inmates, such as undocumented immigrants.

It is also business as usual in many plantation-like institutions that have always relied on a “tough-‘n’-cheap” financial logic. The rhetoric of self sufficiency has a strong hold on many prisons and jails in the rural south, and it has not abated, but rather been strengthened, in the current crisis.

The dearth of rehabilitation programs, and their declining number in these lean years, is another reminder of a limitation of this discourse: It is mostly focused on emergency, short-term savings. Because humonetarianism is not accompanied, in any serious way, by a true change in perception of human rights, the idea of thinking about reentry and recidivism reduction as a long-term cost-saving mechanism has not been as successful as it could, perhaps, be. Recidivism studies are, by nature, difficult to do, and moreover, they take time, which cannot be translated to proven political gains in a short election cycle. The theoretical possibility to frame these as a deeper form of savings has not, so far, yielded much success in the correctional arena.

There are also big questions about the extent to which humonetarian arguments have any traction with regard to particularly violent or reviled offenders. Sex offender policies come to mind immediately. The last California elections showed that old-school punitivism, masquerading as victim rights discourse, is still a powerful incentive to voters in creating more post-incarceration sanctions on sex offenders.  The strong rhetorical pull of decades can, apparently, withstand any argument about financial waste, as it has withstood the evidence of low recidivism rates.

Given these challenges, can humonetarianism be successful and enduring, and for how long? Its main advantage is the broad appeal of the financial argument. A possible counterargument is that, by focusing on costs, we arguably pay an intangible price of cheapening public discourse and taking human rights arguments off the table. I am less concerned about this issue. Americans have always expressed their values and measured their priorities by their willingness to pay taxes. A vote of confidence in lowering the price tag on corrections is also an expression of preferences for road construction, education, health care, and other services, and a statement that the mass incarceration project has lost its appeal as a national priority.

What remains to be seen is whether cost-centered reforms will stand when the economy improves. And in that department, while it would be unwise to offer accurate predictions, my crystal ball offers this: Some things might come back, some things might not come back, and some things might come back in different forms. For example, I expect that, once a critical mass of states abolishes the death penalty on fiscal grounds, it will not come back. I expect that a recriminalization of marijuana, once it is perceived as any other product in the market, is not feasible. Will we find other wars and panics? Probably, and those will have to be addressed through other-than-cost arguments if they occur at a time of economic plenty.

While the lasting power of cost-driven changes in policy remains to be seen, a sincere and thoughtful appeal to the public’s sense of fiscal responsibility, accompanied by an effort to reframe the cost conversation as a long-term concern, are one of the major steps we must take to end mass incarceration, so that we do not, to quote Rahm Emmanuel, let a serious crisis go to waste.

Monday, February 4, 2013

CCC Conference 2013: Realignment and Reform

We're happy to announce our upcoming conference,

California Correctional Crisis: Realignment and Reform

March 21-22
CA State Building, San Francisco

Please mark your calendars and plan to join us!

Get Tough or Get Smart? Guest Post by Felix Lucero

On February 2nd a panel explored the theme of juvenile justice, from a brief history of reform schools to the over 10,000 adolescents incarcerated in the California Youth Authority by the mid-90’s.  The theme, Get Tough or Get Smart, explored child brain development, socioeconomic background, environmental stressors along with factors that increase the possibilities for rehabilitation and detour future criminal conduct by young offenders.  What stood out was the possibility of change by both youth offenders and the institutions that incarcerate them.  Today, less than 900 youth are incarcerated in CYA and more counties are using restorative justice models to address youth crime.  Innovative programs like the Huckleberry Community Assessment and Referral Center in San Francisco evaluate individual needs of youth offenders and offer solutions that reduce recidivism rates and strengthen the ties between the child and the community.  As a former youth offender and one of the panelists, I can say that I made a rational decision in an irrational situation.  Youth crime and poverty are parallel functions of society; it doesn’t excuse criminal conduct but at the very least we should recognize the transitory qualities of youth and make every effort to correct mal behavior rather than just punish.


Felix Lucero is an activist working in numerous self-help and community service programs, and a former youth offender.

Dan Macallair, mentioned in the panel, will also speak at our upcoming California Correctional Crisis: Realignment and Reform conference, March 21-22, at the State Building.