Police You Can Trust: Enriching Our Imagination about What's Possible in Criminal Justice

Last night I had a real treat in listening to the wonderful James Forman Jr. speak at the Nourse Theater with Lara Bazelon, as part of the City Arts and Lectures series, about his excellent new book Locking Up Our Own. Among the issues that came up was the big question behind the book: why did so many people in color in a city where African Americans hold power positions--mayors, chiefs of police, prosecutors--make again and again choices that aligned with law and order interests? In the book, Forman does not mince words about how misguided these choices were, but at the same time shows you, through careful analysis of personalities and socio-cultural contexts, where these people were coming from: they were responding to calls of distress coming from their own community. At yesterday's talk he added that, like all of us, these lawmakers and actors suffered from a lack of imagination in terms of what we might expect as good solutions for social problems. Violence in the streets? The answer is more law and order. War on drugs? The answer is more law and order. Why, asked Forman, do we never pause to think that, given how unsuccessful the previous prison term was, another one might be a waste of time and money?

Part of this "poverty of the imagination" in responding to criminal justice issues, Forman explained, was in tackling various street and quality of life offenses. What if the police, rather than arresting someone, could take that person directly to a drug problem? Or, better still, what if the police were not at all involved and there were social workers or therapists at the frontline of the problem, as befits a true public health model?

Forman's words reminded me of a fascinating and pragmatic blog post by Broke-Ass Stuart, titled What To Do When Someone Is Having a Mental Health Crisis in the Street. When confronted with that situation, Stuart himself reports of his dilemma:

I knew for sure that I didn’t want to call the police. There’s the great quote by Abraham Maslow that says “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” And unfortunately that’s often how it is with the American police. They are trained in ending crisis situations forcefully, but there isn’t enough training in how to deescalate them so that no one gets hurt or killed. While that is in the process of changing as we speak, I’d still rather involve people who already have the training. 

I understand where Forman and Stuart are coming from. It is scary to consider the possibility that calling the police to an incident site starts a chain reaction that classifies the incident as criminal, the person involved as a threat, and could lead to violence. But I'm wondering if the understandable and well-meaning reaction not to involve the police doesn't reflect its own version of "poverty of the imagination", in the sense that it gives up on the possibility of a police force we can trust and believe in.

One of the first cases I teach in my criminal procedure class is City of San Francisco v. Sheehan. Teresa Sheehan, who was severely mentally ill, lived in a group home; one day, when her social worker, who was concerned about her came to check in with her, she threatened him with a knife. The social worker retreated and got the police; the cops, Reynolds and Holder knocked on the door and Sheehan threatened that she would kill them. The case tells what happened next:

Reynolds and Holder had to make a decision. They could wait for backup—indeed, they already heard sirens. Or they could quickly reenter the room and try to subdue Sheehan before more time elapsed. Because Reynolds believed that the situation “required [their] immediate attention,” the officers chose reentry. In making that decision, they did not pause to consider whether Sheehan’s disability should be accommodated. The officers obviously knew that Sheehan was unwell, but in Reynolds’ words, that was “a secondary issue” given that they were “faced with a violent woman who had already threatened to kill her social worker” and “two uniformed police officers.”  

The officers ultimately decided that Holder—the larger officer—should push the door open while Reynolds used pepper spray on Sheehan. With pistols drawn, the officers moved in. When Sheehan, knife in hand, saw them, she again yelled for them to leave. She may also have again said that she was going to kill them. Sheehan is “not sure” if she threatened death a second time, but “concedes that it was her intent to resist arrest and to use the knife.” In any event, Reynolds began pepper-spraying Sheehan in the face, but Sheehan would not drop the knife. When Sheehan was only a fewfeet away, Holder shot her twice, but she did not collapse. Reynolds then fired multiple shots. After Sheehan finally fell, a third officer (who had just arrived) kicked the knife out of her hand. Sheehan survived.

Sheehan sued the city and the cops under  42 U.S.C. §1983 making a novel and interesting argument: In crafting their response to the situation, the cops were providing a "service," and under the Americans with Disabilities Act had to take her disability into account when doing so. The Supreme Court took the case in order to decide whether the Fourth Amendment's requirement that search and seizure activities be "reasonable" should be informed by the individual's condition (in other words, that what is "reasonable" for a healthy person is "unreasonable" for someone suffering from a schizoaffective disorder, such as Sheehan.)

In court, things were complicated by the fact that the city chose to rely on particular aspects of Sheehan's behavior to show that, given the threat she posed, she was not "qualified" for accommodations. The Court, albeit miffed with this change in legal tactics, ultimately sided with the city and the cops. Holder and Reynolds were under no obligation to apply the ADA to the situation at the time, said the Court, because the had no “fair and clear warning of what the Constitution requires.” It didn't matter, for the Court's analysis, that "the officers did not follow their training." According to the expert witness heard by the court,

San Francisco trains its officers when dealing with the mentally ill to “ensure that sufficient resources are brought to the scene,” “contain the subject” and “respect the suspect’s “comfort zone,” “use time to their advantage,” and “employ non-threatening verbal communication and open-ended questions to facilitate the subject’s participation in communication.” Likewise, San Francisco’s policy is “‘to use hostage negotiators’” when dealing with “‘a suspect [who] resists arrest by barricading himself.’” 

Even if an officer acts contrary to her training, however, (and here, given the generality of that training, it is not at all clear that Reynolds and Holder did so), that does not itself negate qualified immunity where it would otherwise be warranted. Rather, so long as “a reasonable officer could have believed that his conduct was justified,” a plaintiff cannot “avoi[d] summary judgment by simply producing an expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.” Considering the specific situation confronting Reynolds and Holder, they had sufficient reason to believe that their conduct was justified.

But what if the training had been thorough and effective to the point that officers like Holder and Reynolds were more likely to follow it? Our tax dollars pay for the police; policing our streets is, after all, a service that our government provides us--in ADA terms, but also in general. Shouldn't we want this service to be of exceptional quality, so that you and I would not need to hesitate when calling 911? Wouldn't you want to rest safe in the knowledge that the people responding to your call would tailor their responses to the situation at hand, including the mental condition of the person involved?

It seems to me that it is best to adopt a dialectic approach toward this. In the near future, until such training is available, Broke-Ass Stuart's advice is well taken. But I think it is unwise to just give up wholesale on the idea of effective policing, and even as we are concerned about police responses we need to continue pursuing improvement of the police force. Because the ideal endpoint is not doing away with a public order organization altogether, it's having an organization that is trustworthy, knowledgeable, well trained, and accountable.

Good News on Health Care for Transgender Inmates

Today a settlement was reached in Quine v. Brown, a case involving housing and healthcare for transgender inmates. The Transgender Law Center reports:

Today, the California Department of Corrections and Rehabilitation reached a groundbreaking settlement with Shiloh Quine, a transgender woman held in a men’s prison, to move her to a women’s facility and provide medical care, including gender-affirming surgery, determined necessary by several medical and mental health professionals. In the settlement, the state also agreed to change its policies so that transgender prisoners can access clothing and commissary items consistent with their gender identity. The state also affirmed that it is revising its policies regarding transgender inmates’ access to medically necessary treatment for gender dysphoria, including surgery.

“This historic settlement is a tremendous victory, not just for Shiloh and transgender people in prison, but for all transgender people who have ever been denied medical care or basic recognition of our humanity just because of who we are,” said Kris Hayashi, Executive Director of Transgender Law Center, which represented Shiloh along with pro bono counsel from the law firm of Morgan, Lewis & Bockius LLP. “After years of unnecessary suffering, Shiloh will finally get the care she desperately needs – and transgender people nationwide will hear a state government affirm that our identities and medical needs are as valid as anyone else’s.”

How to Determine Intellectual Disability for Death Penalty Purposes?

This morning, the Supreme Court decided Brumfield v. Cain, a Louisiana case that raised the question how to determine intellectual disability for death penalty purposes.

The facts are as follows: In 1993, Brumfield murdered off-duty police officer Betty Smothers. The crime, as recounted in Justice Thomas' dissent, was a random, heartless shooting into a car in the process of a "hustle", and can only be explained by Brumfield's antisocial personality--he showed no remorse for it. Moreover, it was the culmination of a horrific two-week-long crime spree.

At the time of Brumfield's trial, there were no constitutional limitations on executing mentally disabled inmates. At the sentencing phase of Brumfield's trial, the Baton Rouge court heard mitigating evidence on Brumfield's behalf: his mom, a social worker who compiled his personal history; and a neuropsychologist who examined him. The court psychologist examined him as well, but did not testify. The evidence, at the time, demonstrated that Brumfield had registered an IQ score of 75, had a fourth-grade reading level, had been prescribed numerous medications and treated at psychiatric hospitals as a child, had been identified as having some form of learning disability, and had been placed in special education classes.

In 2002, years after Brumfield had been sentenced to death, the Supreme Court decided Atkins v. Virginia, in which it ruled that the execution of the intellectually disabled was unconstitutional--a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. In State v. Williams, the Louisiana Supreme Court interpreted Atkins as requiring, for a new hearing to establish a diagnosis of "mental retardation", that the petitioner would have to raise a reasonable doubt that the following conditions might be met:

(1) subaverage intelligence, as measured by objective standardized IQ tests; 
(2) significant impairment in several areas of adaptive skills, which are: (i) Self-care. (ii) Understanding and use of language. (iii) Learning. (iv) Mobility. (v) Self-direction.
(vi) Capacity for independent living); and 
(3) manifestations of this neuro-psychological disorder in the developmental stage.

After Williams was decided, Brumfield, who was in the process of appealing his conviction and sentence, amended his petition to include a request to hold a hearing to establish that his mental capacity fell beneath the minimum required for execution. He also requested funds to help him procure evidence he could present at the hearing. The state court refused his request, and, relying on the original record at the time of his sentencing, stated that there was no evidence, rising to the level of a "reasonable doubt" that Brumfield was intellectually disabled, that justified such a hearing.

The Supreme Court, in a 5:4 decision authored by Justice Sotomayor, sided with Brumfield. The Court argued that an IQ of 75 could, within the margin of error expected of such tests, be consistent with a mental disability. Moreover, contrary to the decision that denied Brumfield's petition, the evidence he presented at the original sentencing hearing suggested significant impairments in several areas of adaptive skills, including language and learning. Not that Brumfield had to positively prove any of these things; all he had to do was show reasonable doubt that they might be true. And given the indications in the original record, he would probably have had a much better chance to prove his disability in a full hearing.

Justice Thomas' dissent, as mentioned above, went in depth into the particulars of the crime and the plight of the victim's family, particularly her two eldest sons (she was a mother of six.) And while the victims understandably are enraged at the victim and his postconviction efforts--are we served, as a whole, by the clinging to dogmatic criteria in identifying who is fit to kill and who is not? Suppose Brumfield's IQ had been 80, not 75--would that really make us more comfortable killing him? Suppose Brumfield's IQ had been 70, not 75--would that have made the victim's family's loss easier to bear?

I'm sure that, for some victims, the prospect of the death penalty provides some closure. But I can think of nothing more demeaning and tiresome for many victims than the need to suffer through decades-long legal quibbles about the minutiae of their loved one's murderer's mental capabilities. The number of executions, even in Louisiana, is in decline. In the last twenty years, they consist of seven executions, the last one in 2010 and the one before that in 2002. Is it really worthwhile to continue tinkering with the machinery of death this way, rather than send convicted murderers, particularly those who might recidivate, to long prison sentences?

Bringing to Light: Invisible Abuses in Prison

Today I attended the Hastings Women's Law Journal symposium Bringing to Light: Invisible Abuses against Women and LGBT People in Prison. The symposium had three panels: reproduction, family, and specific issues concerning trans inmates.

The main theme that stood out for me was the question of choice and alternatives, and especially the inability to offer good alternatives in the context of a prison regime. Surely we can do better than the quality of health care that is offered to pregnant women, but that requires a lot of thought and working within difficult constraints. The first panel was held, of course, in the shadow of the horrifying discoveries about sterilizations in California prisons, and many of the panelists referenced that incident, as well as other horrors involving the management of pregnancy and birth in prison. The birth process itself and the immediate separation from the child are obvious problems. But what about, for example, the practice in Riverside of having pregnant women wear neon orange bracelets? The intent is probably good--to ensure that they are handled with extra care and safety--but what about a woman who wants to terminate her pregnancy and does not necessarily wish for the pregnancy to be common knowledge?

The same issue reverberated in the last panel, the one about trans inmates. The options for classification are fairly limited: a trans woman, for example, could be exposed to atrocious forms of abuse on the part of inmates and guards if placed in a men's prison, but would also be ostracized in a women's prison. And, as it turns out, different trans people have different preferences in this regard--some involving their safety and some involving their desire to form intimate relationship (which is very human and understandable and, in my opinion, deserving of the same amount of respect.) Isolation may protect one from some forms of abuse, but open other avenues of abuse, and has its own huge detriments. So what's to be done?

Subjecting people to regimes of incarceration inherently robs them of a modicum of autonomy about their lives, and the choices are not abundant or good. Even when there are good intentions--and that is not always the case--they can be distorted by misunderstandings and generalizations. Advocating for special populations under these circumstances can be extremely fraught, and I'm very grateful to have learned more about this from the folks at the front line of advocacy.

Criminal Justice Bills Signed Into Law by Gov. Brown, 2013 Season

Image courtesy NBC San Diego.

A month ago we provided a brief overview of the criminal justice bills on Gov. Brown's desk. With the end of the legislative session, we have some important updates on some of these bills. This is the first of two posts, reporting on bills signed into law; the second post reviews vetoed bills.

We've all heard the news about the passage of AB 4, otherwise known as the TRUST Act. Federal law authorizes federal immigration officers to advise state and local law enforcement agents that a given person under custody has to be held for deportation. Under the new bill, CA law enforcement officials are not allowed to detain someone based on an ICE hold after the person is eligible for release from custody, unless certain conditions apply, such as a conviction for specified crimes.

Regular readers may recall our failed attempt to restore voting rights to non-serious, non-sexual, non-violent offenders in jail or on community supervision. AB 149 requires each county probation department to maintain a link to the Secretary of State's voting rights guide, explaining clearly people's rights to vote, which is particularly important in the case of probationers, who are eligible to vote in California and may not know that.

And we all remember the happy announcement that AB 218, otherwise known as Ban the Box, passed and was signed into law. The bill prohibits state or local agencies from asking an applicant to disclose information regarding a criminal conviction until the agency has determined the applicant meets the minimum qualifications for the position. From the reentry perspective, it is a laudable initiative that gives formerly incarcerated people a fair shot at being considered for a position on their merits and qualifications. Fewer people are aware of SB 530, which prohibit employers from asking about convictions that have been judicially dismissed or ordered sealed, except in special circumstances.

There were a multitude of gun bills on the Governor's desk, and the end result on those was fairly mixed. The higher-profile bills were vetoed, such as SB 374, which would have banned semi-automatic rifles with detachable magazines and require registration of even low-capacity rifles, and SB 567, which would have defined some rifles and shotguns as assault weapons. However, AB 231, which makes it a misdemeanor to store loaded weapons where children might have access to them, passed, and so did bills creating prohibitions for businesses from applying for assault weapons permits and two bills restricting firearms for mentally ill patients.

AB 494 increases CDCR's accountability for literacy programs for inmates. Current law requires CDCR to implement literacy programs that would bring inmates, upon parole, to a 9^th grade reading level. ABA 494 requires CDCR to implement literacy programs that allow inmates who already have that level of literacy to acquire a GED certificate or its equivalent, as well as offer college programs through voluntary education programs. It also lists priorities. AB 624 is also a source of similar good news for inmate advocates. The bill allows sheriffs and other county directors of corrections to increase the number of programs that provide inmates with good credits toward release. Along the same lines, AB 1019 requires that the Superintendent of Education set goals for technical education programs in prison.

In helping folks reintegrate into their communities, record-cleaning and expungement issues are incredibly important. Now that AB 651 has been signed into law, defendants who did jail time for felonies may apply for expungement (withdraw their plea of guilty) after one or two years following the completion of the sentence, if they have an otherwise clean record; this makes their situation vis-a-vis expungements similar to that of defendants on probation. Defendants who completed prefiling diversion programs may also petition to seal the arrest records, under newly enacted SB 513. There are special rules about expungement of juvenile records, and AB 1006 creates an obligation to notify juvenile defendants of their rights to petition for sealing and destruction of the records.

There are other bills specifically geared toward juvenile defendants. SB 569 requires recording all interrogations of juveniles accused of murder (why only juveniles? why only murder? I suppose someone thought an incremental approach would be best.) And, of course, there's SB 260, which, as we pointed out in the past, extends SB 9 to allow resentencing petitions for juveniles sentences to lengthy periods of time.

And more good news on the health care front: AB 720 requires the board of supervisors in each county to designate an entity to assist certain jail inmates to apply for a health insurance affordability program, and will prohibit county jail inmates who are currently enrolled in the Medi-Cal from being terminated from the program due to their detention, unless required by federal law or they become otherwise ineligible.

While SB 649, intended to reclassify simple drug possession as a "wobbler" (in order to allow it to be prosecuted as a misdemeanor) was vetoed (and more on that on the next post), there are some developments. AB 721 redefines drug transportation as transportation for sale purposes, effectively decriminalizing transportation for personal use.

There are also some expansions to police authority and some new criminal offenses, but at least from my perspective they seem fairly reasonable--a far cry from the super-punitive voter initiatives of elections past. SB 255 prohibits "revenge porn", that is, distributing someone's nude photo to cause them distress. [EDITED TO ADD: Notably, the law does not cover "sexting" situations, that is, redistribution of photos the victim took him/herself.] SB 717 allows issuing a search warrant to authorized a blood draw from a pesron in a "reasonable, medically approved manner, for DUI suspects who refuse to comply with police request for a blood draw. There's also SB 57, which prohibits registered sex offenders from tampering with their GPS devices, which I suppose is good news for folks who think these devices are good tools for recidivism prevention (I have doubts.)

SB 458 tempers the legal requirements for including people's name in gang databases. Under the new law, a person, or his/her parent/guardian in case of a minor, now gets notified that there's an intention to include him/her in the gang member registry, and the person may contest, with written materials, said designation. Local law enforcement has to prove verification of the designation, with written materials, within 60 days.

And finally, SB 618 extends the ability to receive compensation for wrongful conviction to felons serving jail time. Also, the bill extends the time to apply for compensation to two years, requiring the Attorney General to respond within 60 days, and also removes the burden on the exoneree or pardoned person to prove that they did not intentionally contribute to bringing about the arrest or conviction.

Some important themes emerge. First, note the emphasis on reentry and reintegration in the job market, which is a healthy recession-era policy to allow formerly incarcerated folks at least a fighting chance finding employment and rebuilding their lives. We're also seeing particular care with regard to juvenile offenders, especially those charged with or convicted of serious offenses. There isn't a lot of hyperpunitive legislation, and the few new offenses seem tempered and reasonable. The next post deals with the vetoed bills.

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Assembly to Consider Bill Allowing Parole for Juveniles Sentenced as Adults

SB 260, proposed by Senator Loni Hancock, offers the possibility of judicial review of sentences of juveniles who were tried as adults. From the bill [cleaned-up text]:

This bill would require the Board of Parole Hearings to conduct a youth offender parole hearing to consider release of offenders who committed specified crimes prior to being 18 years of age and who were sentenced to state prison and. The bill would require parole consideration to be given during the 15th year of incarceration if the person meeting these criteria received a determinate sentence, during the 20th year if the person received a sentence that was less than 25 years to life, and during the 25th year of incarceration if the person received a sentence that was 25 years to life. The bill would require the board, in reviewing a prisoner’s suitability for parole, to give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law. The bill would require that, in assessing growth and maturity, psychological evaluations and risk assessment instruments, if used by the board, be administered by licensed psychologists employed by the board and take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual. The bill would permit family members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the young person prior to the crime or his or her growth and maturity since the commission of the crime to submit statements for review by the board and would permit the individual to designate one person to attend the youth offender parole hearing and read a brief statement. 

This bill is, in a way, an extension of SB 9, which created a similar process for juveniles sentenced to life without parole. It would extend the courtesy of judicial review to juveniles serving long sentences. The release is not automatic or mandated, and as the text says, the offenders will have already served lengthy sentences - 20 or 25 years, depending on the original sentence. The bill will not apply to third strikers or to folks whose resentencing is covered by SB 9.

The bill hits the Assembly floor tomorrow.

Same Sex Marriage and CA Prisons

The big news in the correctional world is that the CA assembly has approved Gov. Brown's recent proposal to use $315 million of my money and yours to build private prisons. This is not the end of the story, however, because--

[a]pproval by the full Assembly would set the stage for a showdown in the Senate, where Democrats oppose the measure. They want more money spent on rehabilitation services and drug and mental health treatment so offenders do not end up back in prison after their release.

Meanwhile, Day 58 of the hunger strike brought a statement of frustration from the mediation team, who was encouraged to hear about the potential public hearings, but concerned for the strikers' deteriorating health.

And, Assemblymember Tom Ammiano has submitted a query to CDCR regarding same-sex marriage for inmates. Here is the CDCR memo, verbatim, from scribd:

CDCR memo regarding same sex marriage between inmates by MelodyGutierrez

In other words, inmates are now allowed to wed non-inmates in CDCR institutions. There are two notable things about this: First, that inmates who are both currently incarcerated cannot get married. This is, presumably, a continuation of the previous policy, but since prisons are segregated by gender it becomes much more meaningful now that folks of the same sex can get married. And second, that chaplains may refuse to perform the ceremony on conscience grounds, but in that case CDCR will substitute the refusing chaplain with another officiant.

The no-marrying-already-incarcerated-inmates rules, which is presumably in line with previous policy, raises some interesting questions. What happens if two women, who are already married, both get prison sentences (say, for unrelated felonies)? Does CDCR have policies about whether they should be kept in the same facility or in different facilities? And, while inmates can't marry each other, surely they can have relationships with each other, and so, why the prohibition?

CCA-Backed Legislation in Arizona Mowed Down by 4th Circuit

Last brief item of news for today: The Fourth Circuit has determined that police officers in Arizona cannot harass people for immigration papers based solely on their appearance. The Washington Post reports:

On Wednesday, a federal appeals court slapped down Mr. Jenkins and the county sheriff’s department. The appeals court said that law enforcement officers may not go around accosting people merely on the suspicion that they may lack immigration documents, no matter what they look like or how limited their facility with English. As the court pointed out, an individual’s unauthorized presence in the United States is not a crime; it’s a civil violation of immigration law.

The ruling by the U.S. Court of Appeals for the 4th Circuit, in Richmond, is consistent with last year’s Supreme Court ruling on Arizona’s anti-immigrant statute. In that case, the Supreme Court allowed police to determine the immigration status of people they stop or arrest for other reasons. But Justice Anthony Kennedy, writing for the court’s majority, noted it is not a crime for an illegal immigrant to be present in the country. “Detaining individuals solely to verify their immigration status would raise constitutional concerns,” he wrote.

In the case of Ms. Santos, the appeals court pointed out that police who start asking questions based solely on the race or ethnicity of their interlocutor may also run afoul of the Fourth Amendment’s equal protection clause.

A special reason to delight in this outcome is that AB 1070, which provided for this and other abominable maneuvers for monitoring immigration status by state officials, was financially backed by Correctional Corporations of America, who surely expected it to yield more imprisoned bodies to profit from now that the domestic inmate market is dwindling. Today is a good day for justice.

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Props to Dorit Reiss for the link.

TV Series Review: Orange is the New Black

The new Netflix original series, Orange is the New Black, is a dramatization of a book by the same name by Piper Kerman (referred to as Piper Chapman in the series), who a few years ago served fifteen months in a federal prison camp for her role in a drug trafficking conspiracy.

Kerman's story, while not imaginary, is fairly unique. In her early twenties, through her romantic involvement with a woman who worked for an international drug cartel, she helped deliver money internationally. When the relationship disintegrated, so did Kerman's involvement in the cartel, and she moved on to live a normative, white, middle-class life and get engaged to a man who did not know of her past. Then, ten years after the commission of the offense, the FBI knocked on the door; Kerman's involvement in the cartel was exposed, and she ended up pleading guilty and being sentenced to fifteen months in federal prison.

The first season of the show, which now streams on Netflix, walks us through the beginning of Chapman's imprisonment, from her initial surrender at camp through her adjustment to prison life. We are introduced to the other inmates and guards, to prison dynamics, and to the mix of cruelty and compassion that is part and parcel of the incarceration experience.

A few notable examples of the show's excellent storytelling include the racial divisions among the women and the way the prison system itself uses them to divide the inmates; the underground economy of prison; and the informal socialization mechanisms behind bars. Particularly notable is the show's attention to sexual assault on the part of the guards, which is a very unfortunate and prevalent aspect of women's incarceration. One episode draws an analogy between the birth experience of one of Piper's friends on the "outside" and one of her fellow inmates, taken to the hospital in shackles and returning to prison without her baby. While the show portrays romance behind bars, it steers clear from the lesbian inmate sensationalism that usually characterizes women's prison dramas and empathizes with the need for human connection. And, while not depicting the many complexities involved in incarcerating trans women (and the practices of administrative segregation involved), it is particularly sensitive to a trans woman's plight at receiving decent health care in prison.

Because the timing of the show coincided with the California inmate hunger strike, Episode Nine, which depicts the show's main protagonist spending a night at the SHU, was particularly poignant. Her stay there is portrayed as a frightening, dehumanizing experience. And while there, she speaks through the wall to another inmate--or is it a ghost?--who has lost count of how long she has been there. The terror, isolation and grief involved in the experience has moved many viewers to tears, and I have gotten many inquiries about whether the SHU "is really like this" (it's much worse and for much longer periods of time.)

Some critique has been leveled at the show's portrayal of race and class, arguing that black and brown nudity is treated more licentiously than white nudity. There has also been a concern that the show negatively portrays poor and working class women, in a way that is inattentive to the history of black activism. While the former point bothered me, too, when I watched the show, the latter point reminded me a little bit of the complaints leveled, a few years ago, at the American version of Queer as Folk: Not representative enough, not complimentary to Every Gay Person on the Planet, not educational in the manner of a Very Special Episode of a teenage drama or a carefully-racially-balanced Benetton commercial.

I didn't find the show remiss in its portrayal of politics behind bars. Yes, there's a history of racial and social activism in prison. But to argue that, in presenting a federal prison camp the series is remiss in not presenting inmates of color as activists is to ignore the realities of prison. Activism and uprising are the exception, not the norm (this is what is making the California hunger strike, now entering its 17th day, so notable). While many inmates develop consciousness regarding their experience and its broader meaning, incarceration is a difficult experience and for most people "doing time" does not involve political activism. This also goes to the portrayal of race in the show: uniting in the struggle front across barriers of race is also an exception. And, at least in the context of the hunger strike, it's not the result of some form of racial enlightenment, but rather a response to abysmal, inconceivably degrading prison conditions that offend people's dignity beyond their racial alliances.

As to the main critique against the show--its atypical narrator and removal from the class/race experience of prison--I think it is important to keep the potential audience in mind. Indeed, while Kerman/Chapman's story is atypical in terms of her background, introducing the viewers to prison through her eyes is a masterful storytelling device. The passage, by referendum, of so much punitive legislation illustrates how few middle-class taxpayers humanize, and empathize with, the prison population. Even the powerful stories of exonerated inmates haven't made nearly as much impact as they should, because the average citizen simply cannot imagine himself or herself suffering such indignity. This lack of imagination is startling, considering that 1 in 100 Americans is behind bars, but as we know, that share is not randomly distributed among the population. My experience in explicating the realities of incarceration is that spewing the overworked "prison industrial complex" cliche at white middle-class voters does nothing to deepen their understanding and empathy. On the other hand, giving them a character they can identify with--a woman who, to them, does not "naturally belong" behind bars--can do wonders for their ability to imagine themselves in such a setting. Moreover, while the story is told from a white, middle-class woman perspective, all of its characters come to life as complex, interesting women, aspects of their lives before incarceration shown in flashbacks, and their interactions with each other offered authentically and believably.

Does Orange is the New Black tell viewers everything they need to know about incarceration in America? Of course not. It portrays a federal prison camp of women and does not expose its viewers to overcrowding. Its exposure of SHU isolation practices is menacing, but minimal. And its engagement with the literature on prison politics and economics is superficial. But television cannot educate without entertaining, and judging from the immense interest this series has provoked, it is doing its job as well as can be expected. Many people who did not know about the hunger strike have now resolved to educate themselves and understand it better. Just seeing one night in the SHU on screen will help millions of viewers try to imagine what it could be like to spend five, ten, twenty, thirty years without seeing a living soul. If that raises consciousness and awareness to one of the biggest human rights struggles in America, I will be more than pleased.

Finally, those seeking a more realistic dimension to complement their perception of the prison experience for women should read Inside This Place, Not Of It, which drives home the frightening prevalence of sexual abuse by guards and of atrocious health care practices.
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Props to RJ Johnson for providing fodder for this review through the lively discussion on his Facebook page.

Tubal Ligations to Female Inmates in CA Prisons With Questionable Consent

Yes, you read it right. The Sac Bee reports:

At least 148 women received tubal ligations in violation of prison rules during those five years – and there are perhaps 100 more dating back to the late 1990s, according to state documents and interviews.

From 1997 to 2010, the state paid doctors $147,460 to perform the procedure, according to a database of contracted medical services for state prisoners.

The women were signed up for the surgery while they were pregnant and housed at either the California Institution for Women in Corona or Valley State Prison for Women in Chowchilla, which is now a men's prison.

As you'll see in the piece, the issue of consent is contested.

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.

Bill Allowing Resentencing of Lifer Juveniles Passes Assembly

Excellent news: SB9 - a Senate bill allowing lifer juveniles to have their life without parole sentence reevaluated by a judge - has passed the California Assembly.

This is a major achievement. Leland Yee has been pushing this issue for years. The full text of SB9 is here. And there is more information on the Fair Sentencing for Youth website.

In order to pass, the bill needs to be reaffirmed by the Senate (which has already approved it) and signed into law by the Governor, who is already being pressured by opposition groups.

Here's what you can do to help: Click here to contact the Governor, and your Senator, and express your support for the bill.

And: Regarding our last post - the California Supreme Court has done the right thing. In CA v. Caballero, the Court has held a 110-year sentence to violate Graham v. Florida. This case joins CA v. Mendez, in which the Court struck down a 84-year sentence for a juvenile who did no harm.

Once you've emailed your Senator and the Governor, rejoice with all Californians who believe that everyone, especially at a very young age, should be offered a glimmer of hope and redemption.

Solitary Confinement for Juveniles

Earlier this week, the Public Safety Committee killed SB 1363, a bill that would disallow subjecting any minors, whether in prison or in jail, to solitary confinement, unless they pose an immediate and substantial risk or harm to others and other options have been exhausted. Even in the latter case, the juvenile would have to be constantly evaluated.

Activists are making one more push for it this coming Tuesday. Linda Roldan's post on the Ella Baker Center blog, A Mother's Nightmare, offers a personal perspective on the immense harms of solitary confinement for minors.

My son is not a tough kid and wasn’t ready for the gladiator school called DJJ. On his very first day, he was beat up. He’s seen things he should never see, like kids fighting each other and guards assaulting and pepper-spraying kids on a daily basis. After experiencing solitary confinement, violence, and humiliation by guards, he now suffers from severe depression and hallucinations. He never had serious mental health issues before. Now he is suicidal.

We'll keep you posted as to the status of the bill.

State Juvenile Program Profile

Photo credit Lea Suzuki for the San Francisco Chronicle.

Juvenile realignment is such a thorny issue these days, with so much talk about direct filing concerns and proper institutions. Here's one more thing to consider: Some unique state programs, which are costly, but truly make a difference for juvenile state inmates convicted of serious crimes.

These programs are the focus of a story by Marisa Lagos on yesterday's Chron (only available online as of this afternoon. Lagos visited two of these unique institutions, O.S. Close and N.A. Chaderjan, and brought back stories from the administrators and the wards.

Here's a description of one of these facilities:

The facility is oriented around Chad's sprawling central yard, a huge expanse of grass that includes football and soccer fields and an adjoining basketball court. In the early evenings, before dinner and nighttime treatment sessions, the yard fills with youths in matching outfits, playing sports and participating in other recreational activities. 


But during business hours, vocational programs are under way in the squat buildings that are the hallmark of these correctional facilities.


Inside one of those large rooms, various pieces of computer hardware rest in neat piles as five wards - dressed in polo shirts emblazoned with a "Merit Partners" logo - inspect open hard drives.
The youths are employees of the nonprofit Merit Inc., which was founded 14 years ago with the goal of training incarcerated youths in useful job skills. The Stockton facility is a registered Microsoft refurbisher, and the wards that work here are all trained in rebuilding and repairing dated equipment that is donated by corporations.


Unlike most prison jobs, they are paid well - starting at minimum wage, which is $8 an hour in California, and up to $10 an hour. They work up to 40 hours a week, money that goes toward restitution for victims of violent crimes, room and board at the facility, family support if appropriate, and a savings account in the worker's name that will help them land on their feet when they are released.
The workers also learn "soft skills," such as how to create a resume, apply for a job and dress for and conduct themselves during an interview.


"I've learned a lot - I never thought I'd be learning about fixing computers," said Terrance Turner, a 21-year-old ward who grew up in San Francisco's Potrero Hill neighborhood. "And before I was scared to talk to groups of people. Now I am trying to overcome that."

Would the counties be able to come up with comparable, and less expensive, rehabilitative options for their juvenile population?

"Unnecessary" Medical Treatment Ban Passes Senate Committee

The Senate Committee passed today SB 1079, initiated by Democrat Senator Michael Rubio. The proposal, whose full text is here, would amend the Penal Code to prevent CDCR from providing medical services unless they are "based on medical necessity and supported by outcome data as effective medical care." The proposition gives the treating physician the discretion whether to provide a certain medical treatment.

This, in itself, is interesting. In the lacuna created by the end of the Receivership health services, questions about the quality and quantity of medical services are bound to arise. And, one of the trends stemming from the financial crisis is saving on health care. But wait, there's more; SB 1079 provides a list of treatments that it deems "medically unnecessary." Some highlights follow:

• The proposal proclaims that mononucleosis and mild sprains "improve on their own without treatment" and therefore will not be treated.
• The proposal proclaims that some conditions are so severe that they don't respond well to treatment, and will therefore not be treated, and includes in the list multiple organ transplants and grossly metastatic cancer.
• Then, we are regaled with a list of conditions that are "cosmetic;" some of these include conventional plastic surgery, but some of them include surgery for the purpose of sex reassignment and removal of tattoos (which could save someone's life in a prison environment for obvious reasons.)
• And finally, we're explicitly told that gender reassignment surgery is not "medically necessary."
• Interestingly, the proposal goes as far as to explicitly rule out acupuncture and other methods, expressing not only a preference for Western medicine, but also a rejection of techniques that may be preventative and might actually save the state money in terms of disease prevention.

I'm dismayed, particularly about the classification of gender reassignment as not "medically necessary." Try and tell a trans woman who is serving her sentence at a men's prison that reassignment is not essential not only to her health, but to her immediate safety and well being. People do not pursue these operations on a whim; they do so because their gender expression does not match who they really are, and in a prison environment, it can save them from rape and torture. This is proposal, of which Michael Rubio brags on his website, is deplorable and should be protested and fought.

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Props to Caitlin Henry for alerting me to this.

Book Review: Inside This Place, Not Of It

A new title from Voice of Witness, Inside This Place, Not Of It, provides a series of narratives based on interviews with incarcerated and formerly incarcerated women. The book personalizes the background stories of women in prison, their experiences within walls, and their difficulties upon release.

The editing is graceful, light-handed, and almost invisible, making the stories ring true and fresh, as if the reader is sitting in the room with the speaker. Most of the time, the editors' hand is only seen in a helpful introductory paragraph, and the quality and sensitivity of the interviews themselves shines through the stories. There is something very genuine about some women's willingness to discuss the offense that brought them to prison, and others' reluctance to elaborate on the more difficult parts.

A few common themes emerge. So many of these stories begin with familial neglect and abuse, set in a general environment of deprivation and discrimination. The balance between being a product of one's environment and having personal responsibility for one's actions is delicate, but many of the interviewed women are very thoughtful and reflective, and provide a nuanced understanding of their actions in the context in which they were committed.

The two most alarming aspects of the narratives, for me, involved seldom-highlighted aspects of women's imprisonment. The first is the truly shoddy health care system. Shocking stories of giving birth while shackled and being separated from one's baby, receiving a mistaken HIV diagnosis that remained uncorrected for years (and treatment for it), having one's diabetes untreated and undiagnosed, callous carelessness about the possibility that an inmate might lose all her teeth, repeat themselves throughout the book.

The other aspect is the frequency with which sexual abuse by guards occurs in the prison environment. Many women report sex with guards under physical coercion or lack of choices, and for many of them, speaking up and complaining entails harsh retaliation and isolation from the prison staff as well as the inmates. Popular culture tends to focus on rape and sexual assault among inmates. It would appear that assault and exploitation on the part of staff requires much more serious and urgent attention.

The book also includes a series of great appendices, providing solid, readable information about topics such as the Prison Litigation Reform Act (PLRA), health care issues, and the incidence of prison rape. I can't recommend this enough as a great, honest window into lives seldom discussed publicly.

Juvenile Curfews?

Recently, the Oakland City Council degerred voting on a proposed juvenile curfew, titled the "Juvenile Protection Act". Is it a good idea to enact such curfews,and what is their effect on crime?

Some evidence, including this paper by Patrick Kline, suggest that youth curfews overall are effective in reducing crime for the juveniles below curfew age, but have no spillover effects above the curfew age. The study's population was that of cities with a 1990 population greater than 180,000, and compared cities with municipal codes that included youth curfews. The focus was on serious felonies, as other offenses could be attributed to police behavior rather than to youth criminality. The arrest data, he says--

suggest that being subject to a curfew reduces the number of violent and property crimes committed by juveniles below the curfew age by approximately 10% in the year after enactment, with the effects intensifying substantially in subsequent years for violent crimes.


The magnitude of any biases in the estimates due to spillover effects is difficult to assess. The data do not provide evidence of any spillovers, though given the imprecision of the estimates we also cannot reject modest sized effects. It does seem safe to say that there are probably not any large spillover effects, meaning that curfews do not seem to reduce crime in general, but rather only for the targeted age-groups. This suggests that cities designing curfew legislation should choose the statutory curfew age carefully according to which age-groups are in greatest need of intervention.

However, for Oakland and San Francisco specifically, there are reasons to be skeptical. A recent piece by Mike Males in the Chron was a good reminder of the fact that the US seems to be the only country that its citizens "can shop happily only when everyone under 18 is under house arrest. Not even in London during recent riots - and certainly not in Hong Kong, Tokyo, Rome, Mexico City, Rio de Janeiro, Toronto or other major cities - do police forcibly sweep young people off the streets."

Today's op-ed by Selena Teji makes similar arguments. Examining curfews and incarceration, she notes that the plummeting rates of juvenile crime in California are not due to incarceration-driven policy. In fact, she says, "over the last 15 years, California’s youth prisons and local youth jails have released more than 10,000 formerly incarcerated youths onto the streets and in 2010, California youth crime stands at an all-time low."

Incarcerating, therefore, is not a great idea. Would judicious use of curfews minimize our reliance on incarceration? That's unclear. But it would seem that, before making a decision about such steps, we should pay attention to actual crime rates, rather than to our perception of crime.

Expanding Operation Boo: Thoughts on the Place of Sex Offenders in a Financially-Strapped System

Today's news from CDCR are provoking a sigh and a head shake, as we've already discussed, ad nauseam, the ridiculous love affair the parole authorities have with Operation Boo here and here. Doesn't the Division of Adult Operations grow tired of this festival of spook? Is no one critical of the fact that there have been ZERO recorded incidents of molestation during trick-or-treating?

My only comment for this year's gloomy shaming ritual is this: Sex offenders are the only population who I believe will not benefit from the cost argument. Their lobbying power is, well, nil, and the fact that these baseless operations go on year after year are an indication that the public wants to continue believing that they are all, uniformly, monsters to be monitored and controlled in the face of no evidence whatsoever. We can turn around several important punitive trend, but it'll be a long time before we reassess the devastation our excessive policies toward a population with extremely low recidivism rates has wreaked on released inmates and their families.

Prison of Peace

Today at Hastings we had the pleasure of hosting Laurel Kaufer, founder of Prison of Peace, a unique program at Valley State Prison for Women in Chowchilla, CA. At the initiative of Susan Russo, one of the inmates, who sought to alleviate the violence in her immediate environment, fifteen women were trained in mediation skills and received mediation certification. Some of these women proceeded to become trainers, and now a hundred and fifty women in prison have skills that enable them to help others process conflict in healthy, empathetic ways. Prison authorities report a calmer, less violent prison. What a wonderful thing it is to provide people in a stressful, violent environment the skills they need to resolve conflicts, conduct peace circles, and listen attentively to others.

Are Gang Members Special? From the California Supreme Court to Pelican Bay

This month the California Supreme Court, presiding at UC Hastings, heard oral arguments in People v. Vang, an assault case involving gang expert testimony. Under California sentencing laws, a gang sentencing enhancement requires the jury to decide whether the defendant committed the offense to benefit the gang. Evidence to this effect is often presented through the testimony of gang experts, usually police officers, who testify as to the norms and practices of gangs in general and the gang in question, to show whether a given defendant’s behavior falls in line with gang-related behavior. In Vang, the prosecutor asked the cop/expert two detailed hypothetical questions based on the facts of the assault according to the evidence, then asking the expert whether an assault under such facts would be gang related. By doing so, argued the defense, the prosecutor thinly disguised questions regarding the actual defendants’ behavior as hypothetical scenarios, effectively substituting the testifying cop/expert’s logic and common sense for the jury’s. The government, on the other hand, argued that it would be difficult to define permissible questions that are abstract enough to require the jury to make a “logical leap” and independently assess the perpetrator’s mens rea, while only being provided with guidelines from the cop/expert about the impact of gang membership on the development of such mens rea.

Setting aside the important criminal justice question of the merits and pitfalls of treating police officers as supposedly impartial ethnographers and gang experts—this practice is, by now, modus operandi in California courts—I would like to suggest that there is an even more fundamental issue at the root of Vang: The assumption that gang members are fundamentally different from other people; that their behavior is governed by special rules inaccessible through common personal experience; and, therefore, special knowledge is required to make sense of them and interpret their lifestyle to the ordinary jury member. This assumption did not originate with modern gangs; it is approximately 150 years old.

In 1865, a doctor named Cesare Lombroso wrote the first medical criminology book, titled L’Uomo Delinquente (“The Criminal Man”). Lombroso’s premise, a novelty at the time, was that criminals were innately different from law-abiding citizens, and predisposed to commit crime by virtue of being “atavistic”, that is, “stuck” in a less-developed evolutionary phase. Lombroso gleaned this predisposition from a series of medical findings involving the measurements of inmates’ skulls (based on the then-popular science of phrenology), their bodily and facial features, tattoos, handwriting, and laughter patterns. Pages upon pages of the book included photographs showing the common features of criminals and distinguishing these “special” features from those of ordinary people.

In the years since 1865, we have come to reject Lombroso’s “science”, both in itself and as a measure for establishing criminality (not before making a lamentable detour into the territory of eugenics for several tragic decades). However, the idea that criminals were special, or somehow different from law-abiding citizens, persisted. Much of the criminology of the early 20th century consisted of ethnographies and observations of criminal groups under the assumption that lack of privilege, living in a given neighborhood, or having a certain subset of role models shapes a unique human being, predisposed to commit crime. This literature—much of which was, admittedly, incredibly helpful for understanding phenomena such as juvenile gangs—suggests that, while some human beings are within the realm of the knowable through common sense and life experience, others cannot be understood without the benefit of special expertise.

Today’s California gang members are the new Lombrosian criminals. To curb criminal gang activity, we have adopted special sentencing rules and uniquely oppressive correctional practices. This special treatment goes beyond the mere development of special investigation practices, evidentiary rules and penal technologies; it includes the development of a new body of knowledge that regards gang members as special, their lives and behavior beyond the reach of ordinary human common sense. But we have done more: By examining gang practices as special and unique, through the lens of clinical expertise, we have relegated gang members to the status of incorrigible specimens, who can only be studied, controlled, governed, and suppressed through special, dehumanizing technologies.

The perversity of this approach is evident these days, as the Pelican Bay inmates plan on renewing their hunger strike on September 26th. The hunger strike, which lasted for 21 days in July and received woefully little media coverage, aimed at changing the correctional policies involved in incarceration at the Security Housing Units (SHU) in Pelican Bay. When inmates are identified as gang members, they are subject to a penal regime that consists of complete isolation for 22 ½ hours a day in tiny cells, their only companion often the blearing sound of a television set. Their daily respite from years of solitary confinement is a 90-minute outing in a barren exercise pen surrounded by 15-foot-high concrete walls and a limited sky view. The entrance ticket into the SHU consists of being identified by prison authorities as a gang member, placing the burden of “debriefing”—disavowing and disproving gang membership—on the inmates themselves, most of whom never find their way out of the SHU. Despite consistent findings by social psychologists about the immense, irrevocable harms of subjecting human beings to a regime of isolation, and despite a federal judge’s comment in 1995 according to which such practices “hover on the edge of what is humanly tolerable”, courts have consistently found SHU incarceration practices constitutional.

To add insult to injury, during the July Pelican Bay hunger strike CDCR officials went on record discrediting the strike because it is “led by gang leaders.” This argument is the epitome of Lombrosian thinking. It implies that the public is to disregard the merit in the striking inmates’ claims against the dreadful conditions of their confinement merely because they are (suspected to be) gang members or led by gang authorities. Why would the arguments against solitary confinement and its devastating effects on the human psyche be any less valid just because the humans making them, and subject to them, happen to be (suspected of) belonging to gangs?

Indeed, gangs are unique organizations. So are corporations, hedge funds, motorcycle clubs, cults, schools, military units, and academic departments. Crime has occurred in each and every one of these contexts, and while criminal decisionmaking has required an explication of the social setting for the crime, it has not deprived us of the sense that juries are capable of understanding these microcosms of human experience. Nor has it implied that any of these settings rightfully denies its participants of human status. While belonging to a subculture has important implications as to a person’s behavior, social context, and range of choices, it does not deny the person’s humanity, relegate his or her behavior to a place beyond the realm of the logically accessible, or make him or her less worthy of basic necessities and rights. Gang members may be more difficult to explicate—and empathize with—than people whose lives more closely resemble that of the average jury member, but they are people, just like prosecutors, jurors, and prison officials. As such, their lives are not completely beyond the realm of reasoning, understanding, and empathy. As we follow up on the upcoming hunger strike, we would do well to educate ourselves on the merits of the inmates’ demands and remember that the measure of a society is the dignity with which it treats its weakest members.