Triggers and Vulnerabilities: Why Prisons Are Uniquely Vulnerable to COVID-19 and What To Do About It

When I reviewed the causes and effects of the 2008 Financial Crisis for Cheap on Crime, I relied partly on a series of lectures given by Ben Bernarke, Director of the Federal Reserve. As he explained it, the Great Recession was a case of "triggers and vulnerabilities:"

The triggers of the crisis were the particular events or factors that touched off the events of 2007-09--the proximate causes, if you will. Developments in the market for subprime mortgages were a prominent example of a trigger of the crisis. In contrast, the vulnerabilities were the structural, and more fundamental, weaknesses in the financial system and in regulation and supervision that served to propagate and amplify the initial shocks. In the private sector, some key vulnerabilities included high levels of leverage; excessive dependence on unstable short-term funding; deficiencies in risk management in major financial firms; and the use of exotic and nontransparent financial instruments that obscured concentrations of risk. In the public sector, my list of vulnerabilities would include gaps in the regulatory structure that allowed systemically important firms and markets to escape comprehensive supervision; failures of supervisors to effectively apply some existing authorities; and insufficient attention to threats to the stability of the system as a whole (that is, the lack of a macroprudential focus in regulation and supervision).

The distinction between triggers and vulnerabilities is helpful in that it allows us to better understand why the factors that are often cited as touching off the crisis seem disproportionate to the magnitude of the financial and economic reaction. 

Bernarke's distinction between triggers and vulnerabilities is useful to the current crisis as well. Today we learned that a man behind bars in Chino is the first acknowledged COVID-19 casualty in CA prisons, and that 59 of his fellow prisoners have tested positive. As of today, we've also seen the first positive test in the San Francisco jail system. It's all going to mushroom from here. 

Several of my colleagues (see especially here and here) are making the important argument that the spread of COVID-19 in prisons is a very big deal, to the point that not addressing it properly could negate much of our social distancing effort outside the prison walls. But what is it about prisons that make them such an effective Petri dish for the virus to spread?

Think of COVID-19 as the trigger, and think of the disappointing--even shocking--reluctance of federal courts to do the right thing as another trigger. These triggers operate against a background of serious vulnerabilities, some of which preceded the decision in Brown v. Plata and some of which emerged from it.

First, what gets called "health care" in CA prisons really isn't. Litigation about it took a decade and a half to yield the three-judge order to decarcerate, and until then, horrific things were happening on a daily basis. Despite ridiculous expenses, every six days, a CA inmate would die from a completely preventable, iatrogenic disease. The cases that spearheaded Plata, including the story of Plata himself, were emblematic of this (see Jonathan Simon's retelling of these stories here.) 

It is important to think again of what it was, exactly, about overcrowding that made basic healthcare impossible to provide. First, medical personnel were, and still are, difficult to hire and retain. California has gigantic prisons in remote, rural locations, and it is difficult to attract people willing to work healthcare in these locations. Housing, clothing, and feeding so many people in close proximity meant not only that violence and contagion were more likely to occur, but also that the quality of these things--diet, especially, comes to mind--was extremely low. Every time someone had to be taken to receive care, the prison would have to be in lockdown, which meant more delays and big administrative hassles. The administration and pharmacies were total chaos. People would wait for their appointments in tiny cages for hours without access to bathrooms. People's medical complaints were regularly trivialized and disbelieved--not, usually, out of sadism, but out of fatigue and indifference in the face of so much need. Moreover, the scandalously long sentences that a fourth of our prison population serves mean that people age faster and get sick, and make the older population an expensive contingent in constant need of more healthcare and more expense.

The outcome of the case--reducing the prison population from 200% capacity to 137.5% capacity--was mixed in terms of the healthcare outcomes. But it also yielded four important side-effects. First, it exposed the inadequacy of county jails for dealing with a population in need of both acute and chronic healthcare. Second, it created big gaps in service between counties that relied more and less on incarceration. Third, because the standard was the same for the entire prison system and relied on design capacity (rather than, following the European model, on calculating minimum meterage per inmate), it yielded some prisons in which overcrowding was greatly alleviated alongside others in which the overcrowding situation was either the same as, or worse than, before Plata. And fourth, because of the way we dealt with Plata, we became habituated to resolving overcrowding with cosmetic releases of politically palatable populations (i.e. the "non-non-nons") rather than addressing a full fourth of our prison population--people doing long sentences for violent crime and getting old and sick behind bars.

So, now we face this trigger--COVID-19--with the following vulnerabilities:

1. We still have a bloated system, because the Court used the wrong standard to create minimal space between people for their immediate welfare.
2. We're now dealing with lots of small systems that answer to lots of different masters and have different priorities and ideologies.
3. We already have a lousy healthcare system behind bars, which could not be fixed even with the release of more than 30,000 people, and that was *without* a pandemic going on.
4. We have gotten used to doing a "health vs. public safety" equation that doesn't make sense and biases us against people who committed violent crimes at the wrong time and for the wrong reasons. In fact, we are so married to the idea that we can't second-guess mass incarceration, that the newest preposterous suggestion has been to protect people from COVID-19 by... introducing private prisons into the mix. 

Stack these vulnerabilities against the trigger, and what you have is an enormous human rights crisis waiting to happen in the next few weeks. It's already started. 

And if you wonder whether this can be contained in prisons, well, it can't. Guards don't live in prison, obviously; prison staff has already been diagnosed positive in multiple prisons. Stay at home all your like, wear your home-sewn masks all you wish; we have dozens of disease incubators in the state and apparently very little political will do do anything to eliminate them.

What should we do about it? Follow the excellent roadmap that Margo Schlanger and Sonja Starr charted here, primarily point four: get over your icky political fears about public backlash and let older, sicker people out--even if they committed a violent crime twenty or forty years ago. If you are a governor or a prison warden with some authority to release people, do as Sharon Dolovich implores in this piece and use your executive power to save lives.  

Gov. Newsom, Please Release More Prisoners to Prevent CDCR from Becoming a Mass Grave

Dear Gov. Newsom,

Many thanks for your tireless work on behalf of Californians in their hour of need. I can only imagine the multiple emergencies on your agenda and the many proverbial fires you must put out to "flatten the curve" and give our emergency services a fighting chance against the COVID-19 pandemic.

I appreciated learning about your recent commutations, as well as about the plans you have put in place to release 3,500 prisoners from CDCR custody. It is a good start, but, unfortunately, it will likely be merely a drop in the bucket.

Less than a decade ago, the Supreme Court found healthcare conditions at CDCR so appalling that, every six days, a person behind bars died from a preventable, iatrogenic disease. The Court attributed this massive failure to deliver anything that could be even remotely called "health care" to overcrowding in prisons, and supported the federal three-judge panel recommendation to release approximately 30,000 prisoners. That has somewhat improved the situation, but even with massive efforts toward a turnaround on the part of the federal receiver, we are still seeing woefully deficient healthcare--interminable lines and wait times, people treated in cages in which they have to wait for hours, "group therapy" consisting of a semicircle of cages.

And that's without a pandemic going on.

Gov. Newsom, our prisons are a Petri dish for contagion and disease. It is impossible to provide minimal health care to this many people with a highly contagious virus on the loose.

The Public Policy Institute of California, relying on CDCR statistics, reports that 23% of California inmates are 50 or older. Aging prisoners may be contributing to California’s prison health care costs—now highest in the nation. The state spent $19,796 per inmate on health care in fiscal year 2015, according to the Pew Charitable Trusts. These costs were more than three times the national average and 25% more than in 2010. Moreover, many California prisoners serve extremely long sentences: Approximately 33,000 inmates are serving sentences of life or life without parole. Another 7,000 are “third strikers,” fewer than 100 of whom are released annually after serving about 17 years. Fewer than 1,000 of these inmates are released every year, typically after spending two or more decades behind bars.

Isn't decades in prison enough? How much retribution or deterrence do we still need for people serving sentences of 30, 40, or 50 years, that we must keep them behind bars for longer in the face of a lethal pandemic?

Robust research about aging in prison confirms that people age much faster behind bars than they do on the outside, and they are much more vulnerable to disease--partly because of confinement conditions and partly due to faulty health care.

The scale of releases we should contemplate is in the tens of thousands, not in the thousands. If you do not act now, within a few short weeks, the CDCR will become a mass grave.

Please, don't let the current litigation be the only push to do the right thing. You have done the right thing so many times--as Mayor of San Francisco and as our Governor. The prisoners are Californians, too. They can't vote from prison, but they are your constituents and you must consider their welfare.

Please, act now, before thousands of lives are lost.

Readers, please join this open letter by signing my Change.org petition.

Are CA Prisons Really Less Crowded?

Hello, Dear Readers,

It's been a while since I updated this blog, and it's time for an update as well as a substantive post. I am hard at work trying to finish the manuscript of Yesterday's Monsters, my new book, which examines the parole hearings of the Manson Family--and am doing so as the new mom of a (delightful) infant, so my days are packed! In addition, I became interested in a variety of topics beyond California corrections, as this administration provides us daily reminders of how bad things can be if we don't actively stand guard on our civil rights. Local readers probably know I've been appearing on TV and on the radio several times a week discussing immigration reform, the Mueller investigation, various excesses and civil rights abuses, and the possibilities and implications of an impeachment campaign. I also find that my opinions on various issues, ranging from the #metoo cultural moment to state support for parenting, exceed the boundaries of our topic, and am therefore hesitant to share them here. Would love to hear thoughts in the comments.

In the meantime, I received a fascinating email from our reader Nick Jones, who has taken an interest in population counts in CA prisons. As our readers recall, under the Plata decision, CDCR was under obligation to reduce the population in CA prisons to 137.5% capacity, and complied with the order. But things are, apparently, not what they seem.

CDCR publishes its monthly population report here, but the format they use does not allow for any sort of manipulation or statistical testing. Nick very graciously, out of his curiosity and the goodness of his heart, created an online tool to parse out the data, and we now have a .csv file containing the population since 1996, broken down by prison. Nick is offering the file freely to me and you under a digital commons license and you can find it here. Thank you, Nick!

Analyzing the data brought Nick to a disturbing conclusion. Yes, technically the system as a whole is not overcrowded beyond the Plata requirement. But the general number in all prisons combined hardly matters when the very reason for the Plata decision was that it is impossible to provide minimal medical treatment when there's overcrowding at the individual prison level. And indeed, no less than 15 of California's 33 correctional institutions are beyond the Plata crowding mandate:

It is interesting to note that among the least crowded prisons (hovering around 100% capacity) are both Pelican Bay and Corcoran, which might be attributed to the Ashker settlement. But does that mean that people who were previously held in the SHU are now held in general population in other institutions? Yes, holding people in solitary is inhumane, but how is holding them in overcrowded facilities a solution?

Alternatively, it might be the case that the 15 overcrowded institutions feature new entries. In which case, why are we so bad at judging where to send people based on capacity? Is there anything distinctive about the geography of the overcrowded prisons? Their security classification? I think this calls for deeper thinking, and will continue to work with the data and reflect on what this means.

If any prisoner rights litigators are reading this post, it seems to me that this result is NOT what the Supreme Court intended when it set the 137.5% upper limit in Plata. If anyone wants to talk about more research on this, and possibly legal recourse on behalf of the folks who are doing time in the top 15, please reach out to me via email.

Not Long Sentences or War on Drugs: Problem Is Prosecutorial Discretion

My colleague John Pfaff from Fordham (who is quoted extensively in Chapter 1 of Cheap on Crime) is an economist, and has tested the various explanations given for mass incarceration. His conclusion: the main cause for prison growth was not an increase in sentencing or the war on drugs. The problem is prosecutorial discretion.

"I understand where they come from. It’s true that legislators have passed a lot of new, tougher sentencing laws over the past 30 or 40 years. And it’s true that we have increased the attention paid to drugs. But in the end, there are other things that play a much, much bigger role in explaining prison growth. The fact of the matter is in today’s state prisons, which hold about 90 percent of all of our prisoners, only 17 percent of the inmates are there primarily for drug charges. And about two-thirds are there for either property or violent crimes."

. . . 

"What appears to happen during this time—the years I look at are 1994 to 2008, just based on the data that’s available—is that the probability that a district attorneys file a felony charge against an arrestee goes from about 1 in 3, to 2 in 3. So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies. I can’t tell you why they’re doing that. No one’s really got an answer to that yet. But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down."

New Jails: If You Build It, They Will Come?

Yesterday's interesting L.A. Times editorial addresses the plan to build a new jail in Los Angeles, which prison activists have been resisting for a long time. When I visited Los Angeles at the ACLU of Southern California's invitation, our conversation about the plan was fraught with misunderstandings. The Sheriff's Office's position was that a new jail was necessary because conditions in the existing jail were horrific, particularly with regard to treatment for mentally ill inmates.

Can't argue with them on that point, of course; the County Jail is America's largest psychiatric ward. Indeed, recently the authorities have finally started to question the wisdom of jailing the mentally ill and come up with alternatives, but there's still a long way to go. There are some things that the jail gets right, such as when they properly use strategic segregation, as Sharon Dolovich explains here and here. But some of its effects are harmful and problematic, and the need for change is something we can all agree on.

But what sort of change? Yesterday's editorial posits the plan as follows:

The Los Angeles County Board of Supervisors spent the last decade putting off those questions. Then, in May, it adopted a $2-billion plan to demolish the complex and build a new 4,800-bed downtown jail designed around the clinical needs of the large number of inmates with mental health and substance abuse problems, as well as the security requirements of inmates who pose a high risk of harm to others. Also part of the plan is a 1,600-bed campus-like women's jail in Lancaster.

The supervisors chose the plan from among several presented by Vanir Construction Management Inc., a firm in the business of building such facilities. The price tag makes the construction project the most expensive in county history.

The updated design would certainly be an improvement over the current jail, yet it remains rooted in questionable estimates and bygone practices. It ignores the conclusions of a 2011 jail population study commissioned by the board, then for all practical purposes forgotten.

Rather than go with the spirit of Prop 47 and reduce incarceration, this plan may perpetuate the problem. The editorial goes on to say:

In pushing forward with a new jail that could keep as many people locked up as were, say, two years ago, the Board of Supervisors is in effect making an astounding policy statement: The current jail population is the correct one, despite the theoretical embrace of mental health diversion, the ability to authorize some no-bail, pretrial releases, and the recent reduction of sentences for some crimes. And the $2 billion — or perhaps twice that, when including bond interest — should all be spent on incarceration rather than more effective, and cost-effective, alternatives.

I tend to think of prison construction like road construction: traffic congestion increases with road development because it creates an incentive for more private vehicle transportation. This is why activists oppose the new plan. Let's solve the overcrowding problem by, well, not overcrowding the jail with people who are far better off treated in the community for their underlying mental health problems.

Plata/Coleman Sequel: We Can't Release Inmates - We Need Their Labor!

If you've followed the litigation in Plata/Coleman from the mid-2000s forward, you probably think you've seen it all: the dawdling, the evasion maneuvers, the political blackmail. But today I have something really special for you. As you might know, the court has ordered a special parole regime to ensure early releases. What did the Attorney General's office have to say? The L.A. Times reports:

Most of those prisoners now work as groundskeepers, janitors and in prison kitchens, with wages that range from 8 cents to 37 cents per hour. Lawyers for Attorney General Kamala Harris had argued in court that if forced to release these inmates early, prisons would lose an important labor pool.

Yes, you've read it right. The Attorney General's office now opposes early releases BECAUSE THOSE WILL DEPRIVE IT OF A CHEAP LABOR FORCE. The prisons can only function if prisoners work in them, so... we need to keep them in.

I'm sure I don't need to explain why this is a shockingly conscienceless rationale to keep people incarcerated and pay them abysmal wages, and much as I resist the unsubtle comparisons made in The New Jim Crow, this really, really reeks of postbellum resistance. Ugh. Shame on you, Ms. Harris.

Book Review: Mass Incarceration on Trial by Jonathan Simon

Hidden from sight and forgotten from mind, American prisons in the last forty years have been horrific Petri dishes for medical neglect, interpersonal cruelty, and unspeakable conditions. California, which incarcerates the largest number of inmates (albeit not the largest per-capita), has been particularly notable for its abysmal incarceration practices, so much that, when commenting about his first impression of supermax institutions, Judge Thelton Henderson said to criminologist Keramet Reiter, “what was surprising to me was the inhumanity of the thing.” Jonathan Simon’s new book offers the general public a sobering look into California prisons through the prism of federal court decisions, which encourages humanism and empathy and does not allow the reader to look away.

 The book tells the story of several federal court decisions that tackled, head-on, the crux between mass incarceration and prison conditions. It begins with Madrid v. Gomez (1995), which exposed the conditions at supermax institutions and critiqued their application to the mentally ill, and proceeds with Coleman v. Wilson (2009) and Plata v. Schwarzenegger (2009), which addressed, respectively, serious mental and physical health care neglects, culminating in the Supreme Court decision in Brown v. Plata (2011), which affirmed the connection between the mass incarceration project and its outcome—extreme prison overcrowding—and the conditions behind bars. Simon’s account of the decisions, and the horrific abuse and dehumanization that brought them about, highlights two main themes. The first is the nature of American incarceration (and California incarceration in particular) as a veritable human rights crime of massive proportions, pulling it out of the American tendency to view things through an internal, exceptionalist lens. The second is the inherent connection between mass incarceration and prison conditions, which are frequently discussed separately in academia and public policy. To Simon, both are manifestations of an overall correctional mentality of “total incapacitation”: a systemic fear of crime and blanket assumption of dangerousness, coupled with insecurity about the ability to correctly gauge risk, which leads to indiscriminating incarceration of high-risk and low-risk individuals for lengthy periods of time without consideration of the conditions of their incarceration, or of the logistics necessary for their humane confinement. The court decisions reviewed in the book, argues Simon, signal a departure from this ideology, which he defines as a “dignity cascade”: a willingness to relate to the inmates as human beings who are entitled to more than “bare life”, but to personal safety, health, and human company.

Indeed, Simon’s book itself can be seen as an important contributor to a “dignity cascade”. Written in an engaging, accessible style, and providing the personal stories of plaintiffs in prison condition cases, Simon humanizes the individuals involves and evokes empathy and care for their preventable, horrible plight, while still making the bigger point that the violations are a systematic problem rather than isolated occurrences. While the book does not clarify the extent to which Simon attributes intent, or design, to the correctional officials, it certainly drives home the point that cruelty is the rule, rather than the exception, and the need to change that through a deeper commitment to treating humans with dignity and respect regardless of their transgressions.

There are a few places, however, in which Simon and I part ways. One of them is in his historical account of the path to total incapacitation, which paints the rehabilitative period in California corrections in what I think are overly rosy hues—especially when he ties the medical approach to incarceration to the eugenics movement. I also think that Simon gives the court decisions, which are undoubtedly important, too much significance in the overall scheme of California corrections. I wish I could be persuaded that these few decisions, the most recent of which and the focal point of the book was decided 5:4, were powerful enough to create a veritable “dignity cascade”. The book cites extensively dignity-promoting language from Justice Kennedy’s opinion in Plata, but does not include the parts in Justice Scalia’s dissent in which he referred to the inmates as “specimens”—a shameful opinion that I find hard to ignore with four Supreme Court Justices behind it. Even federal judges who are hailed as champions of inmate rights don’t always make decisions that promote dignity; in the fall of 2013, Judge Henderson (of Madrid v. Gomez fame) cleared the path to force-feeding inmates in solitary confinement who were protesting against indefinite segregation. Moreover, attributing the change in California—namely, the Criminal Justice Realignment—solely to the decision in Plata ignores the lengthy political machinations behind the Criminal Justice Realignment, which were driven by budgetary concerns and by other pressures as well as by the court’s decision. This is particularly problematic given the state’s acrobatic wiggling out of responsibility and its inability, and unwillingness, to follow up on the decision, almost to the point of contempt of court. While the language of the opinions themselves is important and meaningful, I wish we were offered more political and legal backstage access to the litigation, as well as more credit to the grassroots activism of inmates themselves, included but not limited to the hunger strike.

While I am less optimistic than Simon about a veritable transformation of public opinion about the mass incarceration project through federal court decisions, I find his call for dignity and for acknowledgment of the vast human rights violations incredibly inspiring, and like him, and anyone invested in the promotion of human dignity, I hope to see the spirit of John Howard’s progressive prison reform, and of the 1960s Warren Court decisions, channeled into this new era of prison litigation. After reading Mass Incarceration on Trial, no one can remain in a state of denial or indifference to the plight of fellow human beings, and this book is an important contribution not only to their dignity, but also to our own.

New Bill Proposes Allowing Counties to Import/Export Inmates

One of the declared purposes of the Realignment was to benefit from the added rehabilitative value of doing time within one's community, close to one's family and social network, and in the context of one's future housing and job opportunities upon release. But this concept turns out to be more malleable than we might've thought in 2011. A new bill, AB 1512, aims at allowing counties to import/export inmates from/to other counties. The introduction to the bill elaborates:

Existing law, until July 1, 2015, authorizes the board of supervisors of a county, where, in the opinion of the county sheriff or the director of the county department of corrections, adequate facilities are not available for prisoners, to enter into an agreement with any other county whose county adult detention facilities are adequate for and accessible to the first county and requires the concurrence of the receiving county’s sheriff or the director of the county department of corrections. Existing law also requires a county entering into a transfer agreement with another county to report annually to the Board of State and Community Corrections on the number of offenders who otherwise would be under that county’s jurisdiction but who are now being housed in another county’s facility and the reason for needing to house the offenders outside the county.

This bill would extend the operation of those provisions until July 1, 2020.

Existing law, operative July 1, 2015, authorizes a county where adequate facilities are not available for prisoners who would otherwise be confined in its county adult detention facilities to enter into an agreement with the board or boards of supervisors of one or more nearby counties whose county adult detention facilities are adequate for, and are readily accessible from, the first county for the commitment of misdemeanants and persons required to serve a term of imprisonment in a county adult detention facility as a condition of probation in jail in a county that is party to the agreement. Existing law, operative July 1, 2015, requires these agreements to provide for the support of a person so committed or transferred by the county from which he or she is committed.

This is not a particularly original solution to jail overcrowding. After all, we already export thousands of CA inmates to other states, where they are housed in private facilities. Compared to the uprooting and difficulties of out-of-state incarceration, this is really small potatoes. On the other hand, at least with state prisons there was no pretense of trying to rehabilitate people close to their communities. California is a very large state; a family visit to Corcoran or Pelican Bay requires many, many hours of driving from the Bay Area. Large scale import/export of inmates by counties wishing to utilize their facilities to improve their budgets works against the idea of local justice, frustrating one of the purposes of Realignment.

UPDATE: CURB has circulated a petition against the bill. 

Rolling Back Realignment

Yesterday, Assemblymember V. Manuel Perez introduced AB 1449, also to be known as the Realignment Omnibus Act of 2014. The bill, if passed, would significantly regress the achievements of realignment and increase overcrowding in state prisons. Here's what it purports to do:

(1) Under existing law, certain specified felonies are punishable by imprisonment in a county jail for 16 months, or 2 or 3 years or, where the term is specified, for the term described in the underlying offense. Notwithstanding these provisions, existing law requires that a sentence be served in state prison where the defendant has a prior or current conviction for a serious or violent felony, has a prior felony conviction in another jurisdiction that has all of the elements of a serious or violent felony, is required to register as a sex offender, or has an aggravated white collar crime enhancement imposed as part of the sentence.

This bill would additionally require a sentence to be served in the state prison when the defendant is convicted of a felony or felonies otherwise punishable in a county jail and is sentenced to an aggregate term of more than 3 years.

(2) Existing law requires that all persons released from prison after serving a prison term for a felony, be subject to postrelease community supervision provided by a county agency for a period of 3 years immediately following release, except for persons released after serving a term for a serious felony, a violent felony, an offense for which the person was sentenced pursuant to the 3 strikes law, a crime where the person is classified as a high-risk sex offender, or a crime where the person is required to undergo treatment by the State Department of State Hospitals because the person has a severe mental disorder. Existing law requires these persons to be subject to parole supervision by the Department of Corrections and Rehabilitation following release from state prison and the jurisdiction of the court in the county in which the parolee is released, resides, or in which an alleged violation of supervision has occurred.

This bill would also require any person who is released from prison who has a prior conviction for any of the above crimes to be subject to parole supervision by the department and the jurisdiction of the court in the county in which the parolee is released, resides, or in which an alleged violation of supervision has occurred.

(3) Existing law, the Postrelease Community Supervision Act of 2011, requires certain inmates released from state prison to be subject to 3 years of supervision by a county agency. The act provides that if the supervising county agency has determined, following application of its assessment processes, that authorized intermediate sanctions are not appropriate, the supervising county agency is required to petition the revocation hearing officer to revoke and terminate postrelease supervision of the inmate. Existing law allows the revocation hearing officer to order the person to confinement in a county jail for a period not to exceed 180 days, among other sanctions. This bill would, if the person has been found to have violated the conditions of postrelease community supervision on 2 or more prior occasions, allow the revocation hearing officer to revoke and terminate postrelease community supervision and order the person to confinement in the state prison for a period of one year.

What this means, in plain speech, is that the definition of "non-non-non" offenses, which now trigger judicial discretion to sentence a person to jail or to mandatory supervision, will dramatically change, sentencing people who received longer prison sentences to state institutions. That may not be all tragic, as many jails are very poorly equipped to handle people who are sentenced for long periods; but many of those folks shouldn't go in for such long sentences in the first place, and this would only solidify that.

It also means that the idea behind realignment, to supervise people locally in their communities, will be rolled back, and state parole will receive some of the power it lost back from county probation departments, some of whom did a stellar job retooling supervision as an instrument of reentry and hope.

This is a very disappointing bill, and for your good deed of the day, please call your representatives in the Assembly and Senate and tell them how you feel.

California Prison Overcrowding: State of the State, October 2013

And now, this is how things stood: the cat was sitting on one branch, the bird on another… not too close to the cat... and the wolf walked around and around the tree looking at them with greedy eyes.

                                                                           --Sergei Prokofiev, Peter and the Wolf (1936)

Developments in the last few months raise grim questions about the wisdom of leaving California to its own devices in trying to solve its overcrowding problem. Since the initial three-judge panel order in Plata v. Schwarzenengger (2009), the state has fought tooth and nail against the order to reduce population, and the struggle against the court mandate continued even after the Supreme Court confirmed the order, 5-4, in Brown v. Plata (2011). Numerous state appeals and motions to change the order and delay the timeline for population reduction (some of them bordering on contempt of court) have been thwarted. The last of these is the Supreme Court's rejection of the state's appeal yesterday. The Chron reports:

The high court's one-line dismissal - which said only that the court lacked jurisdiction to step in - leaves intact a three-judge federal panel's directive to the state to slash its population of 120,000 inmates in 33 prisons.

. . . 

Brown has been fighting for years the prospect of releasing some prisoners early, saying he was worried it could increase crime. Advocates and attorneys for prisoners have pushed for reforms in sentencing that they say would safely shrink the prison system.

Through a spokeswoman, Brown referred Tuesday to a statement released by California Department of Corrections and Rehabilitation spokeswoman Deborah Hoffman, which said officials were "disappointed the state's case won't be heard."

But this rejection is far from being the big victory that inmate rights advocates are seeking. The original order in Plata was to reduce overcrowding in prison to 137.5% capacity, but it famously left it up to the state to find the means to do so. Moreover, Justice Kennedy's celebrated opinion of the court in 2011 explicitly stated that one way of doing so could be via more prison construction. In 2011, activists and advocates felt comfortable in the knowledge that prison construction was impossible; the state was broke and public sentiment was that correctional expenditures were already excessive, to the point that former Governor Schwarzenegger suggested enacting a law that would prohibit correctional expenditures to exceed educational expenditures. It now, however, appears that "the money is there" to start privatizing California's prisons en mass, via lucrative contracts with Correctional Corporation of America and the GEO Group.

California never had dealings with private prison providers on its own soil, though it did send 10,000 of its inmates to CCA institutions out of state and was a significant source of income for the company. This was not because of some principled objection to privatization; rather, it was because the California Correctional Peace Officer Association (CCPOA) actively resisted privatization out of concern for the guards' employment. As Josh Page reveals in The Toughest Beat, CCPOA is so powerful in California that even a prison built in CA by CCA entirely on speculation was left empty. But these difficulties have been resolved: Governor Brown, historically a good friend and ally of the prison guards union, has promised them that they would be employed in these newly-constructed private prisons. This promise made old enemies - state prison guards and private prison providers - into allies, and sealed the deal toward a projected expenditure of $315 million of my money and yours on prison construction.

Obviously CCA is laughing all the way to the bank - a rare and enviable position for a corporation at the end of a recession and during a government shutdown. Here's how this lucrative contract looks from Tennessee, home of CCA. The Nashville post reports:

The lease agreement between CCA and the California Department of Corrections and Rehabilitation calls for the state — which is under a court order to reduce overcrowding in its jails — to pay Nashville-based CCA $28.5 million per year starting Dec. 1. If the two sides agree to two-year extensions after three years, the rent will begin to increase gradually. CCA also has committed to spending $10 million on improvements at its 2,304-bed California City Correctional Center; renovations beyond that will be paid for by California.

"We appreciate the opportunity to expand upon our longstanding relationship with the CDCR and the state of California," said CCA CEO Damon Hininger. "Our ability to react quickly to our partners' needs with innovative solutions that make the best use of taxpayer dollars exemplifies the flexibility that CCA is able to provide."

In conjunction with its California contract news — which had been expected since August — Hininger and his team also said CCA's fourth-quarter profits will be hurt by a number of factors, including the spending needed to reopen its California City complex. Among them: Lower inmate counts related to its contracts with the U.S. Marshals Service and Immigration and Customs Enforcement agency, which are believed to be "due to the furlough of government employees and other consequences of the federal government shutdown."

On top of that, CCA's leadership has begun spending money to prepare vacant prisons in anticipation of more business from California late this year. The total impact of those factors on Q4 numbers isn't yet clear, the company said. Analysts are expecting the company to earn 49 cents per share during the fourth quarter.

Investors chose to put more emphasis on the new California cash that will start arriving in December. As of about 1:35 p.m., shares of CCA (Ticker: CXW) were up about 1.5 percent to $35.81, putting them back in positive territory for the year.

If you're still capable of keeping your breakfast down, you didn't read carefully enough.

Governor Brown essentially put the ball in the hands of the federal courts, by saying - if you don't give us some time to cope with the expected releases, we'll have to recur to privatization and high-expense construction. This option was produced, as if out of a magician's hat, in the height of the California Criminal Justice Realignment, which presumably redistributes overcrowding and internalizes its expenses by making counties, who are responsible for charging and sentencing, think about incarceration alternatives and manage their own convict population. One has to wonder what good this experiment is if, suddenly, we're building private prisons in three counties and contributing $28.5 million per annum, to the foreseeable future and beyond, to CCA's bottom line.

We will continue following up on developments and reporting as we have for the last five years.

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Props to David Takacs and to Jim Parker.

Researching the California Criminal Justice Realignment

I am in Seattle, WA, for the West Coast Law and Society Retreat, where we just finished a panel examining various perspectives on the criminal justice realignment. The panel featured several folks doing work on criminal justice reform from various perspectives: W. David Ball from Santa Clara University, Mona Lynch from UC Irvine, Jonathan Simon from UC Berkeley, and Katherine Beckett from University of Washington. We all talked about the research that is being done, the research that should be done, how the research community can be relevant and influential in making healthy decisions about corrections in California, and the impediments and challenges that lie ahead.

David Ball spoke about the importance of communicating with decisionmakers in the field. His fieldwork (with Bob Weisberg) involves prosecutorial decisionmaking after realignment. They interview prosecutors about the existence, or lack thereof, of consistent prosecutorial guidelines. In presenting prosecutors with a series of hypotheticals, which they ask prosecutors to rate on a seriousness scale, they expose the discretionary nature of realignment prosecution: The choice what to charge a person with could impact whether s/he will be regarded as a "non-non-non" and therefore housed in a jail. They have also uncovered the subtle interactions between prosecutors and the police, primarily areas of non-enforcement and non-prosecution.

Mona Lynch mentioned that the two types of realignment research done most frequently are policy evaluation, which is the only thing that can be funded (and has been done by several organizations, notably CJCJ and the ACLU of Northern CA), and legal research that focuses on Eighth Amendment arguments. The challenges ahead lie in the "hydra risk" of bad conditions in many jails in lieu of a few prisons. She suggested two socio-legal avenues for research: returning to, and revisiting, the classic courtroom ethnographies in a way that would uncover the framing and understanding of offenders (think David Sudnow's Normal Crimes - first deciding what a person deserves based on a typology and then putting it together via the existing sentencing enhancements), and a study of the experience of jail incarceration (jails have been understudied; one great counterexample is Sharon Dolovich's study of the Los Angeles County Jail.) This research may entail access issues we should overcome.

Jonathan Simon reminded us that realignment cannot be framed as an improvement on the system, but rather as a cover-up for a human rights crime that we will some day grow to regret: "torture on the installment plan."He also encouraged us to challenge the assumption that rehabilitation and risk reduction programs need to be in place to combat the threat to public safety, problematizing the correlation CDCR draws between public safety and incarceration (with the drug war in the throes of death, are we reaffirming our commitment to locking up violent offenders for disproportionately long periods of time?).

Katherine Beckett provided a much-needed comparative context. She reminded us that other states are also punting their responsibilities to the county level. Also, many states have wobbler legislation, nonprosecutorial policies that yield county variation, and parole/probation reforms (as in Kansas), as well as drug law reform (New York State is an example). Her current project, reviewing prison admission data from 29 states, indicates that many states have seen a reduction in prison admission through these reforms, but these gains are offset by admissions for violence, public order, and property offenses, which are surprising given that arrest rates are falling. Beckett and other panelists highlighted the problem of entrenching the notion of "dangerous offenders", whose mass incarceration is being
kosherized via the decarceration of the presumably less-dangerous drug offenders.

We had a very lively discussion with audience members:

Are there opportunities for graduate students who want to do empirical qualitative analysis of the realignment? We should know what other people are studying, and maybe throw in some questions in questionnaires (the Federal Sentencing Reporter issue on realignment is a great example.)

What are the interactions with, and effect on, immigration law? Has realignment changed charging practices with offenses that may or may not trigger deportation?

How do institutional pressures - courtroom workgroups, profiteers, unions, the market - play a role? Nobody wants their organization to shrink, and therefore prosecutors have a vested interest in keeping mass incarceration at its current level.

What role does impact litigation and critical resistance play in the process of realignment? We should keep in mind that a third of the jails already have population cap orders.

With regard to policy evaluation studies, those are difficult to do, because realignment is not the only thing that has changed. Some panelists suggested longitudinal studies (following up on cohorts of offenders) and comparative between counties. But there is also a concern about how to frame the dependent variable: What would it mean for realignment to "work"? And from whose perspective? What do we want or expect from our criminal justice policy? And, how to measure recidivism?

One suggestion made on the panel was to look at home detention and GPS as a possible alternative for mass incarceration. While the prison is unique as an institution producing what we now know as a human rights disaster, replacing it by home detention would also have adverse and alienating effects.

We also discussed the problematic aspect of thinking that mass incarceration is "normal", and that we won't be able to really think outside the box given the stake so many institutions and organizations have in the existence of mass incarceration.

Finally, a workshop on realignment is being planned for October 2014, and we hope to be there and be able to say more about how realignment works.

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I'd very much like to invite the panelists and audience to send over links to research on realignment, so we can have a repository of resources here at the CCC blog.

New CJCJ Data: The Problem is in the Counties

Jerry, hold your horses; perhaps a comprehensive state plan is not what we need. New fact sheets produced by CJCJ based on data from CDCR and the Criminal Justice Statistics Center indicate that the problem with reducing prison population is located at the county level.

The first fact sheet shows the county disparities in incarceration. CDCR data are broken according to prison admission rates. As the fact sheet states, "the 17 counties with higher than average prison admission rates per felony arrest have imprisonment rates 60.7 percent higher than the 40 counties with lower than average rates." Those counties, ranked from the highest to the lowest imprisonment rates, are Kings, Riverside, Butte, Monterey, Yolo, Yuba, Shasta, San Joaquin, San Bernardino, Madera, Amador, Sacramento, Kern, Tehama, Santa Barbara, Merced, and Sutter. Los Angeles County was analyzed separately because of its population size.

Following David Ball's awesome recent paper, which suggests that violence rates are a good way to allocate money to counties because they are good proxy for actual incarceration needs, I would love to see violent crime statistics on these counties, to see whether these incarceration rates are justified.

My concern is that this is actually not about an increase in violent crime. The second fact sheet from CJCJ indicates a disturbing trend of increase in new prison admissions for property and drug crimes (see graph).

Maybe we can save ourselves $350 million of your money and mine by finding a way to incentivize high-incarceration counties to incarcerate less?

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Governor's Prison Plan Announced

Gov. Brown's website unveils the main features of his prison plan, AB 105, which:

• Authorizes up to $315 million in immediate in-state and out-of-state capacity.
• Lays the foundation for longer-term changes to the criminal justice system, in collaboration with the Legislature and stakeholders.
• Strengthens existing local efforts (SB 678) to manage offenders by increasing the amount of funding that county probation departments receive if they can serve felony probationers locally and keep them from coming to prison.
• Requires that if the court modifies the order in a way that reduces the cost of compliance, the first $75 million in savings will go to reducing recidivism.

The full text of the bill is here. Hear the Governor explain the plan here. More commentary on the plan in a later post.

This Is the Way to Go: Senate Dems Propose Expenditures on Health, Rehab

As a response to Governor Brown's idiotic $315 mil privatization plan from yesterday, Senate president Steinberg and 16 other Democrat senators "proposed a plan that would spend $200 million more for each of the first two years on rehab and mental health programs to reduce the prison population by the 9,600 inmates ordered by federal judges."

The L.A. Times reports:

“The governor’s proposal is a plan with no promise and no hope,” Steinberg said. “As the population of California grows, it's only a short matter of time until new prison cells overflow and the court demands mass releases again. For every 10 prisoners finishing their sentences, nearly seven of them will commit another crime after release and end up back behind bars.”

Steinberg has support among Senate Democrats for a broader approach. Sen. Mark Leno (D-San Francisco) said that the plan put forward by the governor is inadequate and that he will not support it. It requires $315 million this year and $400 million in future years, said Leno, chairman of the Senate Budget Committee.

“That is a huge sum of money to be spent on a nonsolution,” Leno said. “I could not support a solution to the court mandate that is based only on greater capacity. And that’s all I see in this proposal, greater capacity.”

Leno said any plan should include greater effort to reduce the recidivism rate, including a revision of the sentencing structure. “If we have learned anything over the past 30 years of criminal justice policy leading to this crisis, it’s that we cannot incarcerate our way out of it,” Leno said. “It doesn’t appear that the proposal deals with the core problems that we have, which are clearly in our sentencing structure and our lack of investment in preventing recidivism.”

A huge sum of money spent on a nonsolution, indeed. I gave an interview to the Daily Journal today (link tomorrow), in which I was asked whether this new proposal from senators is a game changer. I replied there was nothing new here; all criminal justice experts who cared to offer an opinion have repeatedly been saying that building more cells and privatizing more does nothing to ameliorate the prison crisis, and in fact guarantees that we'll have a more serious crisis for years to come. All Steinberg proposal does is suggest spending the money where it matters - in helping people not come back to prison.

Jerry, What on Earth Are You Thinking?

Photo courtesy Rich Pedroncelli for
the San Francisco Chronicle.

The new gubernatorial plan to solve the prison crisis Jerry Brown says we don't have has just been announced: Spending $315 million on private prisons.

No, I am not making this up. The Chron reports:

Gov. Jerry Brown on Tuesday responded to a federal court order to significantly reduce California's prison population by proposing a $315 million plan to send thousands of inmates to private prisons and vacant county jail cells, hoping to avoid what he said would be a mass release of dangerous felons.

The cost could reach $700 million over two years, with much of the money likely to come from a $1.1 billion reserve fund in the state budget.

During a news conference at the Capitol, Brown bristled at the court's suggestion that the state could continue its early release of certain inmates to meet the federal judges' population cap. He noted that California has already reduced the prison population by some 46,000 inmates to comply with the court's orders and said only the most dangerous convicts remain in state prison.

The judges have ordered the state to release an additional 9,600 inmates by the end of the year.

Brown, however, said sending them to available cells in privately run prisons within California and in other states, as well as to empty jail cells, is the best way to meet the court's mandate without endangering public safety.

"Public safety is the priority, and we'll take care of it," the governor said. "The money is there."

Governor Brown, what on Earth were you thinking when you concocted this wasteful, ridiculous, idiotic plan? What do you mean, "the money is there"? California is in a state of fiscal disaster, and suddenly we have $315 million to invest in private prisons? And where was all this mysterious money when federal courts asked you why we pack people up like sardines and let them languish in their own feces without appropriate health care? Moreover, how will this lucrative investment manifest itself? Will Correctional Corporation of America and Geo build prisons on Californian soil? Or will we send more inmates than the 9,000 we currently have out of state to Arizona and Tennessee? How are you squaring this off with your traditional allies at the CCPOA? Are you going to put state guards in private prisons to make sure their interests are served, as well? After all the effort we put into realignment--and after countless experts have made reasonable suggestions to keep jail population law by not locking up people who should not be locked up in the first place--this is what it's coming to? After expert witnesses agreed that decrowding prisons is not a danger to public safety, where does your information to the contrary come from? Can you find a decent, respectable criminal justice scholar in the entire state of California that thinks this is necessary? Are you trying to divert our attention from the fact that this is Day 51 of a hunger strike against the horrific conditions under which you hold inmates in solitary confinement? What the hell is going on?

Emergency State Appeal of Plata Before Supreme Court

Justice Kennedy, the deciding voice in Brown v. Plata, is to tackle overcrowding once more, in responding to an emergency appeal from Gov. Brown to block the Plata panel to release more inmates and ease overcrowding. The L.A. Times reports:

U.S. Supreme Court Justice Anthony M. Kennedy is in a position to decide — again — whether California's overcrowded prisons must release more than 9,000 inmates by the end of this year, but at the risk of sending some violent criminals back to the streets.

. . . 

Gov. Jerry Brown is now asking Kennedy and the high court to block a pending order from a special three-judge U.S. District Court panel that calls for releasing 9,600 more inmates by the end of the year.

In the emergency appeal, Brown's lawyers say the state has spent $1 billion to upgrade its prisons and improve the medical care of its 119,000 inmates.

In a brief filed late Monday, the state's lawyers said most of the prisoners who are nonviolent offenders are being kept in county facilities. Most of those who would be released now are classified as moderate- to high-risk inmates, the state said.

"Unless stayed, the three-judge court's order will release offenders with a history of serious or violent offenses who are very likely to commit more serious crimes," the lawyers said.

Because Kennedy oversees emergency appeals from the West Coast, Brown's request went to him. The justice could act on his own or refer it to the full court. But either way, the decision is likely to rest with Kennedy, a California native. The four liberal justices joined his 2011 opinion in the case, and the four conservatives dissented.

Three Federal Judges to Jerry: Comply Immediately

Yesterday, a three-judge panel tired of the state's evasion maneuvers ordered the Governor to comply with the original Plata mandate. The Sac Bee reports:

In a sharp rebuke of Gov. Jerry Brown, the judges said the state must take immediate steps to release inmates toward compliance with the panel's 2009 order that the prison population be reduced to 137.5 percent of capacity, an order the U.S. Supreme Court later adopted.

"The history of this litigation is of defendants' repeated failure to take the necessary steps to remedy the constitutional violations in its prison system," the panel wrote in a scathing 51-page order and opinion that demands the state immediately slash inmate levels or face a contempt citation.

"We are compelled to enforce the Federal Constitution and to enforce the constitutional rights of all persons, including prisoners," the panel wrote in an order that left no doubt the judges believe the state has intentionally defied its previous orders.

The latest one essentially requires the state to cut its inmate population by nearly 10,000 inmates by the end of the year, and to take steps to ensure that the count will not jump back above the 137.5 percent level.

On other occasions, we've discussed the court's patience with the state and explained why it might seem a preferable course of action to get as much as possible accomplished consensually. But it seems that the court's patience has worn thin.

Interestingly, the original Plata decisions did not explicitly require a release, and neither does this one. Realignment-related measures could be taken to increase capacity. 

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Props to Simon Grivet for the link.

Gov. Brown Reveals Plan to Comply with Plata Mandate

A gym at the Deuel Vocational Institution in Tracy
emptied of triple bunks. Photo credit AP.

Yesterday, Gov. Brown revealed the State's plan to comply with the Supreme Court's mandate in Plata. The Greenwich Time reports:

Options in the state's plan include:

— Granting more early release or "good time" credits to inmates, including second-strike inmates who have serious prior convictions.
— Paroling elderly and medically incapacitated inmates who are deemed unlikely to commit new crimes.
— Expanding the number of inmate firefighters by letting some serious and violent offenders participate.
— Increasing the use of drug treatment centers.
— Paying to house more inmates at county jails with extra space, and possibly at private prisons within California.
— Slowing the return of the 8,400 inmates who are being housed in private prisons in three other states at an annual cost of about $300 million.
— Adding space for 1,700 sick and mentally ill inmates when a new $840 million treatment facility opens in Stockton this summer.
— Freeing a projected 900 inmates because voters in November softened the state's tough three-strikes lifetime sentencing law for career criminals. Proposition 36 changed the law to require that the third strike be a violent or serious felony and lets third-strikers with lesser offenses apply for shorter sentences. The administration rejected a proposal to release about 2,800 eligible inmates without court hearings.

The administration argued against many of the proposals even as it presented the options to the court in a series of legal filings.

There don't seem to be many surprises here; in essence, the plan follows standard paths to decarceration. But it is also important to note that CA intends to slow down the rate at which it will bring back inmates held out of state in private institutions.

The other thing that is not surprising is the state's tendency to speak in two voices at once every time these plans are discussed. The message is: We'll comply, so as not to be held in contempt, but we don't like this one bit, and are concerned about the implications for public safety. By now, Gov. Brown's grumpy rhetoric - there's no crisis, gyms are empty, everything's fine, inmate's lawyers and court-appointed masters are getting rich on taxpayer dollars, etc etc - should be familiar to regular readers. But the contempt threat, rarely made in the context of federal litigation, seems to have upped the ante.

It's also notable that CA intends to expand its fire camp program as a plan for decarceration. Any readers interested in learning more about fire camps, and about the difference in conditions, demeanor, and interpersonal relationships between prisons and fire camps, I highly recommend Philip Goodman's work, such as this terrific article.

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Props to Caitlin Henry for the Greenwich link; I am surprised not to see this covered in CA periodicals.

Devastating Overcrowding at Chowchilla Women's Prison

Litigation about overcrowding has focused on men's institutions. But what about women's prisons? Watch this video for some personal testimonies about heartbreaking tragedies caused by the lack of ability to attend to people medically at Chowchilla Women's Prison.

Three-Judge-Panel: State Must Comply with Population Reduction Order; Jerry Threatened with Contempt

Image from CDCR's three-judge-panel page.

A decision came out yesterday from the three-judge-panel that issued the original Plata v. Schwarzenegger decision: The state must comply with the original order. Moreover, should it not do so, it will be held in contempt. The L.A. Times reports:

In a blistering 71-page ruling, the jurists rejected Brown's bid to end restrictions they imposed on crowding in the lockups. The state cannot maintain inmate numbers that violate orders intended to eliminate dangerous conditions behind bars, they said.

Brown and other officials "will not be allowed to continue to violate the requirements of the Constitution of the United States," the judges wrote.

"At no point over the past several months have defendants indicated any willingness to comply, or made any attempt to comply, with the orders of this court," they said. "In fact, they have blatantly defied them."

The judges gave the state 21 days to submit a plan for meeting the population target by the end of the year. Administration officials said they would appeal the decision to the U.S. Supreme Court.

The piece pretty much speaks for itself, but I do want to say something about this to readers wondering why the state hasn't been held in contempt so far, which is a question I get asked a lot when I talk about this. I think it's important to understand that, while federal courts--rather than state administrators--have pretty much been the go-to place for inmate rights suits, courts are not natural policy designers. The judicial system is built on the premise of case-by-case arbitration, with an outcome that "takes sides" in a dispute between two parties (Martin Shapiro calls this "the logic of the triad"). Their ability to generalize and supervise is limited. The ways they perceive the world, discursively, are limited to assessing whether state agencies behaved in a way that violated constitutional standards - yes or no. Orders, supervision, revisiting issues--courts do all of those, but they do them because they have to. The hard work has to be done primarily by the state. Which is why, whenever possible, having a consent decree is a priority, and if that is impossible, it is at least useful to get some cooperation from the state and refrain from steps that will escalate the animosity between the state and the courts.

The escalation here--actually threatening the Governor with contempt--is understandable if one considers what Jerry has done in the last few weeks. He has attacked the special masters and receiver, and even griped about attorney's fees for the inmates' advocates. When seen in the context of this public relations crusade to besmirch the other side and the court-ordered mechanism, a threat of contempt is a logical response. And of course, the state retaliates by threatening an appeal to the Supreme Court. This is a collision course that will not end well, and it would behoove the Governor, and the state representatives, to consider growing up and collaborating with the courts. As things stand now, everyone has plenty to lose.