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.  

Cause of Death

Source here.

Today I came across this sobering table, which struck me as important not only for the obvious reasons. You'll note that homicide is nowhere in the top-ten list of causes of death for Americans. If you look at the CDC reports for causes of death in 2017 based on vital statistics, you'll see homicide ranked anywhere between #106-108 (interestingly, "legal intervention" is ranked 109.)

Yet, to browse through the list of Netflix and Prime Video shows we are offered to numb our souls from the pandemic experience, you could be mistaken to believe that a much higher proportion of Americans succumb to homicide. And to me, this suggests that the current debate about who to release on the basis of "public safety" is guided more by folk devils than by real concerns.

Assuming that you include people in prison in the overall category of human beings whose lives and health matter (if you don't, thank you for reading this far--we probably don't speak the same language and I hold no hope of convincing you, nor should you hope to convince me), it should be obvious that COVID-19 poses a much greater risk to public safety, broadly defined, than homicide.

Now, releasing people convicted of violent crimes is not really a trade-off between COVID-19 deaths and homicide deaths, given that the folks most at risk healthwise, as I explained yesterday, are old and sick and also happen to have committed violent crime decades ago.

So, if there is reluctance to release the folks colloquially known as "violent offenders"--many of whom would barely have a technical write-up or two for the last two or three decades--it's not really coming from concerns for public safety, is it? It's coming from concerns for palatability and an idea that this is the right time for abstract ideas for retribution.

If I put the state's resistance to do the right thing here together with the mismanagement of homeless populations, it almost seems like, at our time of need, we've simply decided that the bottom rung or two in the American class ladder don't matter. And they do, which makes my heart hurt.

In Tricycle Magazine, Chenxing Han writes so beautifully:

The Buddha is often likened to a physician. He diagnosed the unsatisfactoriness of the human condition and revealed its cause. The Buddha was no doomsayer, however: his teachings were treatments that promised a cure, an ultimate freedom from that which ails us. SARS-CoV-2 is a truth-teaching virus. It has revealed to me a deep well of fear: of my loved ones dying, of dying myself (or, during more mundane moments, of running out of brown rice). More incisively, it has revealed society’s disturbing inequities and gross iniquities, forcing us to confront the truth of how the most vulnerable among us—the poor, the disabled, the unhoused, and the otherwise marginalized—bear the brunt of this crisis.   

What this cruel teacher will teach our state about caring for its most vulnerable wards remains to be seen--hopefully before it is too late.

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.

Body-Worn Cameras in Prison?

I just got off the phone with a person who is serving a long sentence in a CA prison (I will keep the person's details to myself to preserve their anonymity.) The person heard my KPFA interview about Yesterday's Monsters and some of the reforms I suggested resonated with them. They had some reform ideas of their own, which struck me as interesting and important, and I promised them I would float them to the criminal justice reform community, and here's the most obvious and interesting one: Why not require that correctional personnel wear body-worn cameras in prison?

It's certainly an idea whose time has come; I've looked at a few correctional gear websites and the technology exists. Problems with privacy and technology quality now have solutions. More importantly, everybody wins. I think it's an easy sell to the correctional community: look at this CorrectionsOne article from 2014, before the technology became ubiquitous in police departments around the country. Prison guards might be well served to rely on the proven effects of the technology in improving the behavior of the incarcerated people they interact with, as well as addressing false accusations of brutality and avoiding lengthy and costly litigation. Incarcerated folks could use them to pursue redress in cases of physical or sexual assault. Moreover, footage captured in the course of an incident leading to a disciplinary write-up (115/128 in CA) could be used to explain the circumstances of the write-up to the prison authorities and/or to the parole board. In short, everyone wins. 

The privacy concerns that are often raised in the context of police-worn cameras are largely mitigated in a prison environment. Prisons are already equipped with cameras (apparently woefully antiquated ones compared to the capabilities we have now) and people do not have what the law recognizes as a reasoanble expectation of privacy in prison (e.g., Samson, Florence). 

Aili Malm and Mike White have a wonderful new book out about body-worn cameras for police officers. They review the scientific evidence we have on the impact of body-worn cameras on policing quality, use of force by and against the police, behavior toward the police, complaints (true and false), etc., and offer some helpful policy guidelines for how to regulate the use of cameras. The thorniest issue, I think, is how the footage gets used. Prisons would require careful regulation of the footage use and access to it--even more so than in the police context, because the access to technology to see, let alone use, the footage is so asymmetric. But that something is difficult doesn't mean it should not be done. If it's something that is likely to improve behavior in prisons and prevent violence and abuse, it should be in everyone's benefit to implement it. 

I'd like to hear from you, readers, what you think about this idea. What do we know about current camera coverage of prisons? What gaps are there in the factual accounts of narratives about encounters between prisoners and guards that cameras could fill? How much would it cost to fit the entire correctional staff at CDCR with cameras and to process and store the footage on the cloud? Most importantly, are there any drawbacks to this idea that my correspondent or I might not have thought about?

Distress Call: Suicide Rates in California Prisons

A couple of years ago, Michael Bien alerted us at his keynote speech at WSC to an alarming trend: mental illness was on the rise in CA prisons even as they were getting decrowded. He and his lawyers ran the numbers lots of possible ways, and couldn't find a comprehensive explanation.

And now, we have some distressing data about the suicide rates in CA prisons. The Chron reports:

Last year, an average of three California inmates killed themselves each month in state cells — 34 total suicides in a system with 129,000 inmates. That amounts to an annual rate of 26.3 deaths per 100,000 people, the highest rate in California since at least 2006. 

That figure is higher than the national average for state prisons (20 per 100,000 in 2014) and federal prisons (14.7 in 2018, according to the Washington Post). From 2001 to 2014, according to the Bureau of Justice Statistics, twice as many people killed themselves in California cells than in the entire federal system, which contains more prisons and inmates. There were 448 total suicides in California prisons during that period and 222 in federal prisons. 

The inmate suicide rate has now increased for four straight years in California, and it may rise again in 2019. According to the state, 16 inmates committed suicide during the first six months of this year. Michael Bien, an attorney who represents mentally ill prisoners, said he knows of 10 more inmate suicides since then, for a total of 26 so far in 2019. A state spokeswoman said she couldn’t confirm the 10 recent deaths because “some investigations are still ongoing.”

Read the article in its entirety: it exposes a disturbing pattern of neglect and cover-your-asses mentality and the futility of the ongoing Coleman litigation. What is wrong? and how can we fix it?

CA Divests from Private Prisons: Realistic? A Good Thing?

Hailed, and partly for good reasons, as a positive development, the Guardian today announces:

The private prison industry is set to be upended after California lawmakers passed a bill on Wednesday banning the facilities from operating in the state. The move will probably also close down four large immigration detention facilities that can hold up to 4,500 people at a time. 

The legislation is being hailed as a major victory for criminal justice reform because it removes the profit motive from incarceration. It also marks a dramatic departure from California’s past, when private prisons were relied on to reduce crowding in state-run facilities. 

Private prison companies used to view California as one of their fastest-growing markets. As recently as 2016, private prisons locked up approximately 7,000 Californians, about 5% of the state’s total prison population, according to the federal Bureau of Justice Statistics. But in recent years, thousands of inmates have been transferred from private prisons back into state-run facilities. As of June, private prisons held 2,222 of California’s total inmate population.

What does this mean, exactly? Keep in mind that there are no actual private prisons on California soil--and yet, California is one of the private prison industry's best clients, as it houses thousands of its inmates in Arizona and other states that have a flourishing array of private facilities (mostly owned by CoreCivic, formerly the CCA, and the Geo Group.) The bill, AB 32, changes this relationship by barring the state from contracting with private providers outside the state. This includes, importantly, the use of private prisons for holding undocumented immigrants: “Detention facility” is defined in the bill as "any facility in which persons are incarcerated or otherwise involuntarily confined for purposes of execution of a punitive sentence imposed by a court or detention pending a trial, hearing, or other judicial or administrative proceeding."

Is it realistic for CA legislature to divest from private prisons? It is, to the extent that "private prison" is, as defined in the bill, "a detention facility that is operated by a private, nongovernmental, for-profit entity, and operating pursuant to a contract or agreement with a governmental entity." But what about the many functions provided inside so-called governmental prisons in CA through private subcontractors? This interesting magazine article about prison food in Chino depicts what is an atypically good reality; prison food is hard to provide without recurring to private contracting, and is awful whether provided through public or private means. Similarly, the much-maligned CA prison healthcare system, which has been for years in the hands of a federal receiver, extensively contracts with private health care providers. This stuff is not the alternative to a public prison economy: it *is* the economy. How do we make sure that prisoners have beds to sleep on, doctors and nurses to take care of them, and two or three (meager, yucky) meals a day? In the neoliberal capitalist world, there aren't a lot of options out there. So divesting from private prisons completely is not a particularly realistic premise, nor is it particularly desirable (private providers are not categorically worse for the inmates than public providers, and everyone is motivated by greed, as I explain here.) It does have one important, unqualified positive effect: we are not building new public prisons, and we are not housing people in private prisons anymore, so we should incarcerate less people, period. That in itself will be a success.

But there's something else I find somewhat fishy here, and that's the supposed divestment of CA from private detention of immigrants. The picture here is much more complicated, because undocumented immigrants are primarily the responsibility of DHS and ICE, the latter of which incarcerates and prepares people for removal as the federal arm of law enforcement (Richard Boswell explains this separation of powers very well here.) What the feds do is contract with states such as CA to house undocumented immigrants, over whom Congress has plenary power and ICE has enforcement prerogatives. Some CA cities house immigrants in their public jails; others contract with private subcontractor providers to meet ICE's demand. CA's complicity with awful federal policies is not so much in the fact that they deal with private contractors; its in the awful conditions in both private and public facilities and in poorly supervising the conditions in these places. To be fair, it's not all CA's fault - their inability to supervise more effectively stems largely from the general chaos in immigration detention and from hurdles placed by ICE. But I'm unclear on whether these undocumented minors are worse off in private facilities than they are in post-Plata public jails, which do a notoriously poor job distinguishing between immigrants and "real criminals" (whatever the heck that means.)

In short, before dancing a jig about divestment from the public industry, let's ask ourselves some hard questions about the market itself and how it incentivizes public and private institutions alike to do a poor job locking people up (including people whose only supposed "crime" is saving themselves and their families from the conditions in Central America.)

Assessing the Dangerousness of Redball Criminals: Two Israel Examples

My forthcoming book Yesterday's Monsters examines the parole hearings of the Manson Family, who have been consistently denied parole for decades. A key issue in the book is the notoriety of the murders and the prevalence of a narrative about them, which I call "the Helter Skelter narrative", that portrays the crimes as bizarre, sui generis occurrences. You'll have to read the book to see how the Board of Parole Hearings handles these cases. For now, since I'm visiting Israel for a few weeks, here are two stories of local "redball criminals" and how their requests for parole and vacation have been handled.

A few words about prison sentences for murder in Israel: Until a recent amendment, the only sentence possible for murder was life in prison. The court did not announce a minimum time like in the U.S. (such as "twenty-five to life"); it merely announced "life". The authority to decide how long "life" lay solely in the hands of the President of Israel--a role he inherited from the British High Commissioner prior to Israeli independence. Life prisoners submitted a request to set the length of their prison sentence, and a special department at the President's office made a recommendation. From then on the sentence would be treated as a finite sentence for release purposes, whose clock starts ticking after the inmate has served two thirds of the sentence; for example, if the President set the sentence at, say, thirty years, the prisoner would come up for parole after twenty years. There's been a recent amendment that Americanizes the scheme of homicide offenses in Israel, but it's not particularly relevant to this post.[1]

Another important note pertains to vacations. Under the Prison Ordinance and relevant regulations, prisoners are eligible for short vacations from prison. These depend on the prisoner's level of dangerousness, the purpose for the vacation (an important family event, such as a funeral or an important birthday), and the time the prisoner has spent behind bars. Some of my lifer clients from the late 1990s have been receiving vacations regularly.

In 1995, as not only Israeli readers know, Prime Minister Yitzhak Rabin was murdered by political assassin Yigal Amir. The murder shook the country to the core, and as we all know, irrevocably changed the course of history by derailing the peace process, assisting Netanyahu in ascending to the Prime Minister role, and legitimizing hate campaigns against Israeli Arab citizens, Palestinian residents, and the Israeli left-wing. But closer to the events themselves, there was still some horror and shock about the crime, which led the Knesset to legislate a special personal law, colloquially known as the "Yigal Amir Law": a law that binds the discretion of the parole board in cases of people who murder the Prime Minister for political-ideological reasons. There's only one such person (so far), and the law was specifically tailored to address his particular case. The President may theoretically disregard the Board's legally-mandated "recommendation" not to release Amir, and in these times it's not completely farfetched to imagine a President who might do so, but disincentives abound (the committee is chaired by a Justice of the Israel Supreme Court.)

Interestingly, some members of Meretz, the left-wing, civil-rights political party, abstained from the vote. They explained that creating a special, personal law for just one person was a violation of the principle of legality, no matter who the person was. Others expressed similar trepidation, but thought this was such a rare and unique case that there was no concern about a snowball effect (things have gone so seriously awry in the civil rights arena in Israel to the point that I'm no longer sure this is true.)

Another famous case involved the horrific murder of Asaf Shtierman in 1996, which remained unsolved until 2000. When a woman named Sandrine Ben-David reported severe domestic violence incidents to the police, the investigation revealed that her young husband, Rei Horev, and two young women, Sigalit Heimovitch and Lihi Gluzman, were responsible for the murder. Horev, the main instigator (for psychopathic reasons that are very hard to undestand - Shtierman was a stranger to him), received life in prison, and has been behind bars for nearly twenty years. He is, according to reports, a model prisoner with a clean disciplinary record, entrusted with responsibilities such as working on a computer. When Horev's son with Ben-David turned 13, Horev received a short vacation from prison to attend his Bar Mitzvah (under heavy Prison Authority guard.) However, when Horev's son enlisted in the army, Horev's request for a vacation was denied. The judge who chaired the committee wrote a decision that reminded me a lot of the Californian equivalent Board's vague justifications to keep the Manson Family behind bars: "According to his employers in prison, he is a responsible, essential prisoner, devoted to work, contributing, serious, and meaningful. . . he participates in educational activities and has successfully completed several therapeutic group. His psychological assessment diagnosed a significant tendency to avoid negative feelings, aggressive urges, and to see the world in an overly optimistic way. This mechanism serves him now, but might make things difficult for him when he confronts situations that evoke strong feelings. Despite a high level of insight about his past, he is lacking a deep understanding about the destructive dynamics of his past close relationships, which could be a source of difficulty in the future."

A couple of days ago I posted about convicted rapist-murderer Shlomo Haliwa, who gets out in 2024; Horev, if he receives the customary reduction of a third of his sentence ,gets out in 2025. Who is to say which of these men is or is not dangerous? Anyone who's heard Haliwa on tape explaining to crime documentary producers that he "likes to fuck" and that all his "relationships" were consensual with girls who "wanted them" can conclude that this is not someone who's shown a smidgeon of insight. When he gets out, he will be 75 years old, and is still a strong, healthy man, probably as easily capable of overpowering and coercing a woman as he did in his thirties. Horev, on the other hand, has expressed remorse for his horrific crime; the extent to which he can be believed is debatable.

These cases raise the same difficulties that Yesterday's Monsters raise about the Manson Family inmates. To what extent does the notoriety of a case impact decisions to release? And is it a legitimate consideration? Is it legitimate to factor the public's distaste for a particular murderer in decisions to deny parole or vacations? And is there a proper measure of whether the distaste is justified? Redball crimes matter a lot in creating public policy and fueling the public's imagination about crime, but they also feature real victims and real perpetrators who are, after all, just people.

Yesterday's Monsters comes out early 2020 from UC Press.


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[1] It is, however, relevant to some of my other work: I've been studying American influences on Israeli criminal justice.

Three Jail Guards Arrested in Santa Clara Jail Inmate Death

The shift of numerous inmates from state prisons to county jails has turned our attention to conditions in these local institutions. This morning's news present a particularly tragic example: the brutal killing of 31-year-old Michael Tyree, an inmate at the Santa Clara jail, who was beaten to death by three guards. The San Jose Mercury reports:

The three guards at Santa Clara County Main Jail were only supposed to be conducting a routine search of Michael Tyree's cell, looking for extra clothing or toiletries that inmates often try to hoard. Instead, the correctional officers did something "violent and cowardly," Sheriff Laurie Smith said Thursday, that left the 31-year-old mentally ill man lying naked on the floor, covered in lacerations and bruises and bleeding to death internally.

During a news conference Thursday, flanked by 18 uniformed members of her command staff, Smith announced the arrest of the three correctional officers on suspicion of murder, just a week after Tyree's severely beaten body was found in jail wing 6B.

"The disappointment and disgust I feel cannot be overstated," she said. "His life had value."

The murder allegations against correctional officers 28-year-old Jereh Lubrin, and 27-year-olds Matthew Farris and Rafael Rodriguez, unprecedented in the 165-year history of the Sheriff's Office, have put the jail it runs under a harsh spotlight and drawn attention to the difficult plight and placement of the mentally ill.

Smith said she spoke privately with Tyree's family, just hours after the arrests.

"I want to express my profound sorrow over the loss of Mr. Tyree," Smith said, accusing her officers of losing their "moral compass."

"This violent and cowardly act that took Mr. Tyree's life is not indicative of the values we expect and honor with the men and women of this department."

The murder allegations may be unprecedented, but other problems in the Santa Clara jail, and particularly violent behavior on the part of the guards, are not. In 2014, the jail observer reported that "the guards run the jail" and that numerous calls and complaints pertain to guard behavior.

The sheriff is to be commended for arresting the responsible guards--and if the system works properly, this should be no different than any other brutal homicide trial--but the county's liability largely depends on the extent to which it was negligent in hiring, training, and supervising its staff.

How the Media Talks About Prison Homicide: A Murder in Vacaville

A couple of months ago, news outlets reported a murder in California State Prison, Solano. The murder did not make headlines until yesterday, when it suddenly returned to the news with some gruesome details and discoveries.

Beyond the sadness and horror (and, of course, condolences to Maria Rodriguez and her family), one has to wonder, again, about the media tendency to look for an "angle". It's fairly obvious that the story got a second life once media outlets found out (two months late) the horrific details of this heinous crime. But the Associated Press cannot resist looking for an "angle"--some way to generalize from this and make it into a moral panic we can all get behind--and here's what it finds notable:

Homicides are distressingly common in California prisons. More than 160 inmates have been killed in the last 15 years, and the state has one of the nation's highest inmate homicide rates.

. . . 

 "It's very difficult to cover every contingency with the limited staff that we have," said Chuck Alexander, president of the California Correctional Peace Officers Association that represents most prison guards.

   "This kind of thing at Solano, sad to say I predict it's just a precursor," he said. 

   He noted a 2011 California law that keeps lower-level offenders in county jails, leaving state prisons to hold the most violent criminals. Changes in prison policies, meanwhile, mean more dangerous offenders are being housed in lower-security prisons like medium-security. 

If you're a critical news consumer, this ought to leave you wondering: does California have a particularly violent prison population? and, if so, is this somehow attributable to the Realignment? to "changes in prison policies"?

The Bureau of Justice Statistics routinely collects information on inmate deaths in federal, state, and local custody. In this report, which covers the years 2001-2012, California is reported to have a yearly average of eight inmate homicides per 100,000 inmates. This number includes not only homicides by inmates, but also by staff (sadly, the numbers don't offer the breakdown.) Two things are notable about this number: first, it is not at all an outlier among other states. That honor falls to Oklahoma, with 14 per 100,000 homicides, or to Maryland, with 11 per 100,000 homicides. Just to show the number in context: Hawaii has had an average of 6; New Mexico and Tennessee, 9 each; Maine, 8; and Colorado, 6.

Second, it is not grossly out of proportion to the overall homicide rate in California, whose annual homicide rates for the years 1996-2013 veered between 9 and 5 homicides per 100,000 people. Of course, as is the case in the country in general, it was a downward slope; the prison data are presented in a way that makes it impossible to figure out if they've also had a downward slope.

It seems like the presentation of data in the article (160 homicides per 15 years) does not suggest anything particularly violent about California prisons as compared with the outside population or with other states.

But let's turn to Alexander's remarks. Would more homicides be prevented if there were more guards? Since the BJS data do not provide the breakdown between staff and inmate perpetrators, it's hard to tell. If the former accounts for a considerable number of the homicides, perhaps the relationship between number of guards and number of homicides should give us pause about hiring more.

The coup-de-grace, though, is the bizarre mention of Realignment and "changing prison policies". I assume by the latter Alexander does not refer to Prop 47, which was approved only in November, and therefore could not have affected the numbers in any way. As to Realignment, as the article correctly mentioned, it was a policy that focused on non-serious, nonviolent, nonsexual offenders, who were moved out of the prison system (according to a new study by Julie Gerlinger and Susan Turner, people who commit less serious offenses are not necessarily less risky or less likely to recidivate; they're just less likely to create public uproar when released). What sort of effect could it have had on homicide rates? Is there any evidence whatsoever that prison homicide rates have risen in the aftermath of Realignment? Is there any evidence whatsoever that the increased rate is that of homicide perpetrated by inmates, rather than by staff? I confess I'd be surprised if that were the case; one of the effects of Realignment was alleviating the massive overcrowding in California prisons was alleviated, so one possible factor in prison violence rates has actually been addressed. At a conference last year, Ryan Patten presented a paper that suggested that Realignment actually brought a rise in violence in local jails (as opposed to prisons), but I remember not being convinced that this correlation was not marred by confounding variables. Moreover, Patten didn't have a breakdown by perpetrator, either. In short, absent any actual data, it's hard to give credence to Alexander's assessment.

Here are three alternative suggestions for "angles" that might actually have something to do with prison homicide rate:

Bad cellmate choices. Just recently, CDCR refused to consider the possibility of taking inmate preference into account when allowing them to choose cellmates. Of course, there is no data about how many homicides are perpetrated by cellmates, but that would be one interesting thing to find out. Why resist a simple compatibility survey when it could save lives?

An overall unsalubrious environment. For 11 of the 15 years mentioned, inmates lived under horrific conditions that included overcrowding, massive medical neglect, and a whole host of iatrogenic diseases. There's still plenty to do on that front. Maybe this is a "broken windows" type of situation, in which people who are horrifically treated conform to the institution's conditions and expectations.

Staff violence. Just recently, the Supreme Court decided Kingsley v. Hendrickson, which requires a legal objective test to assess excess violence toward pretrial detainees. The Court also left the door open as to the possibility of applying this test to prison inmates, too. I, for one, would have liked to see the breakdown between staff and inmate perpetrators and learn more about the source of prison violence.

I would have liked to see an article discussing prison violence from these perspectives, rather than throwing out conjunction and statistical inaccuracy, and presenting prison violence as merely a subset of overall violence. But I'm not holding my breath.

How Should People in Pretrial Detention Be Treated? And--a Primer on the "Reasonable Man"

Most issues reviewed on this blog that pertain to prison conditions are legally assessed under the Eighth Amendment's prohibition against cruel and unusual punishment. Therefore, one of the ways in which the state tries to avoid accountability for the way it treats people is to argue that their situation does not count as "punishment"; and, indeed, the Supreme Court has routinely decided that many situations don't count as "punishment", and therefore do not merit an intervention, no matter how cruel and unusual the state's behavior might be.

Pretrial detention has been explicitly left out of the category of "punishment", per Bell v. Wolfish (1979). But today's decision in Kingsley v. Hendrickson is a step forward in protecting pretrial detainees from use of force and violence while behind bars.

Michael Kingsley was arrested on a drug charge and held in a Michigan jail while awaiting his trial. Following the escalation of a dispute over Kingsley's refusal to remove a piece of paper from the light fixture, officers forcibly removed him from his cell and put him in another cell, forcing him to lie face down on a bunk bed with his hands cuffed behind his back. There's some dispute over what happened next; Kingsley said the officers slammed his head against the bed, which they denied. But everyone agrees that the officers subsequently tased Kingsley in the back for five minutes and then left him alone in the cell.

Kingsley filed a §1983 suit against the jail officials. Since he couldn't argue cruel and unusual punishment, he argued that the officers' behavior violated his due process rights. The legal debate that ensued revolved around the question: what legal standard should be used when adjudicating claims about use of force? Kingsley maintained that the appropriate standard was objective: that is, that all he needed to prove was that the use of force would have seemed excessive to a reasonable officer at the time. The officers, by contrast, argued that the appropriate test was subjective, i.e., that Kingsley would have to prove intentional conduct on their behalf (very much akin to the standard employed in Eighth Amendment analysis in similar cases involving inmates). Since officers are likely to perceive their actions as appropriate (or at least claim they were appropriate later in court), you can see why the former standard is more favorable to the plaintiff.

The court found, 5:4, for Kingsley. The division of votes is pretty much what you would expect; Justice Breyer wrote the majority opinion, finding that an objective standard is appropriate here.

Whenever I talk to my students about the reasonable man, I draw someone like this on the blackboard:

Whenever courts hold someone to an objective standard of behavior--and this can happen in the context of a trial for criminal negligence or in a disposition of a search and seizure incident--it essentially compares the behavior of the person in question to an imaginary person. The "reasonable man" is not a statistical aggregate of all the people in the world; even if one's attorney summons all the people in the world and they testify that they would behave just as the defendant has done, it's not enough. The court is the sole arbiter of what a "reasonable person" would have done, and sometimes it deliberately sets the standard just a bit higher than the behavior of an average person, or of the defendant himself. The reason for that is that negligence, reasonability, and other objective standards rarely address issues that were within the defendant's awareness and intent, and the court seeks to educate people who might be in the defendant's shoes at a later time on how to behave.

If this seems harsh, take into account that the court's "reasonable man" is not entirely divorced from the circumstances in which the actual actor found himself. As Justice Breyer reminds us in Kingsley, "[a] court must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight." In our case, in which the officers had to decide how to treat Kingsley for his paper-on-the-light-fixture violation, the court's assessment of the officers' reasonability may include the following factors: "the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff ’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting."

Justice Breyer explains why the objective standard is suitable in this case. He starts off by reminding us that, precisely since pretrial detention is not "punishment", whether or not the officers intended to "punish" the detainee does not matter for the disposition of the case. Moreover, it is a workable standard, which might even be included in training materials for jail personnel anyway. And finally, even though the standard is objective, since the examination takes into account the officer's perception at the time, it protects officers who acted in good faith.

Justice Scalia's dissent ties Kingsley to Wolfish, arguing that the objective standard is not enough to equate the behavior to punishment. Ironically, juxtaposing the majority and the dissent leads to some unclarity on which situation benefits the defendant more: framing pretrial detention as "punishment" or as something else. And Justice Alito's dissent brings up even one more possibility, which is as of now undecided--the question whether a detainee in Kingsley's situation could raise a Fourth Amendment claim.

Detainee rights advocates may find some encouragement in the fact that the majority opinion subverts the usual problem with non-punishment confinement situation, which is the inability to apply Eighth Amendment protections to them, by supporting a test that is actually more favorable to the defendant. But what is even more remarkable is that the decision leaves the door open to Fourteenth Amendment claims of excessive force not only on behalf of detainees, but on behalf of convicted prisoners:

We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today.

What with this, and with Kennedy's concurrence in Davis v. Ayala last week, this was a good week for promising dicta sayings that are sensitive to prisoners' rights and to correctional excesses.

But lest we become overly overjoyed, let's keep in mind that Kingsley's ordeal dates back to 2010. The conversation about bail and pretrial detention often expounds on how much better off you might be if you are not detained before trial: it's easier to prepare your defense, communicate with your loved ones and with your attorney, and keep your job, not to mention avoiding doing time that might later become "time served" by default. Kingsley is a reminder that pretrial detention also exposes one to violence and force, which hindsight support from courts--even from the Supreme Court--cannot undo.

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Props to Mark Edwards for drawing my attention to this interesting case.

Cellmate Compatibility: Why Not?

According to media reports, California state prisoners are killed at a rate that doubles the national average [update: I'm not sure this is true, having looked at the numbers more recently]. A sensible proposition has been made--and rejected: The Merced Sun-Star reports:

The department will not reinstate a policy dropped 15 years ago that required potential sensitive needs cellmates to fill out a compatibility form before they are housed together, Ralph Diaz, acting deputy director for adult institutions, told a Senate budget subcommittee.

Sex offenders, former gang members and other vulnerable inmates are placed in special sensitive needs housing for their protection.

However, the inspector general and an analysis by The Associated Press published in February found that a disproportionate number of homicide victims were sensitive needs inmates.

The compatibility forms help officials assess whether inmates can live peacefully together. They are required for inmates housed together in other segregated living units, and Sen. Loni Hancock said they should be required for sensitive needs inmates as well.

"We do look for inmates who we feel should not be celling with others," Diaz testified. However, he said using the forms for sensitive needs and general population inmates would be too cumbersome and the department's current process can appropriately address housing concerns.

There are two ways of viewing this debate. One is through the usual old-skool impasse between carceral discourse and rights discourse. The other, however, is cost-oriented. CDCR is refusing to reinstate this policy because it believes that it would needlessly complicate its operations; Senator Hancock thinks that the costs in lives and healthcare offset these considerations.

This debate is an example of a situation in which a prison is not really sui generis. In any other setting, in which people are thrown together--especially in total institutions--it's best if they spend time in close quarters with people with whom they can get along. This is not merely a matter of finding the roomie's company enjoyable; it's about preventing exploitation, abuse, and conflict.

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.

BREAKING NEWS: CDCR To Ease Gang Restrictions

Reported an hour ago by the Associated Press:

Prison officials revealed new rules Friday that they say will make California the first state to recognize that inmates can quit prison gangs and put that lifestyle behind them, allowing them to escape the tough restrictions that gang members are subject to.

However, gang associates would have to steer clear of gang activities for about a decade to qualify, while gang leaders would have to behave for a minimum of 14 years.

The draft regulations made public Friday are the latest changes to rules that keep some gang members locked in special isolation units for years and have led to widespread inmate hunger strikes. A spokesman for a coalition of reform groups that backed the hunger strikers called the changes "woefully inadequate."

The new regulations are an extension of a 15-month-old pilot program that has allowed gang members to get out of isolation units at Pelican Bay in far Northern California and other prisons without renouncing their gang membership.

Since the start of the pilot, the department has reviewed 632 gang members who were in isolation units. Of those, 408 have been cleared to be released into the general prison population and 185 were given more privileges but remain in isolation.

Those 2012 policies, which are being updated in Friday's filing with the Office of Administrative Law, let the gang members and associates gain more privileges and leave the isolation units in as little as three years if they stop engaging in gang activities, and participate in anger management and drug rehabilitation programs.

Officials said that change was based on programs in seven other states. California is now the first to go a step farther by removing the gang designation entirely if the inmate continues to behave, said Terry Thornton, a spokeswoman for the California Department of Corrections and Rehabilitation, or CDCR.

CDCR gives reasons for the new regulation:

Despite the successes the CDCR has had in removing violent and disruptive STG affiliates from the general population settings of the institutions, the Department has recognized a need to evaluate current strategies and implement new approaches to address evolving STG trends consistent with security, fiscal, and offender population management needs. Fortunately, the inmate population reductions associated with Public Safety Realignment is affording CDCR the opportunity to reconstruct aspects of its STG policy that are consistent with successful models used in other large correctional agencies. The Public Safety Realignment will result in easing overcrowding and providing CDCR with more housing options to support this effort.

And here are the actual regulations, which define the step-down processes that are to be taken. The multi-step process of being cleared of gang affiliation (referred to in the regulations as STG - security threat group) is lengthy and features various monitoring options.

Corporal Punishment for the Mentally Ill? Judge Karlton to Decide

Two shocking videos depicting prison guards at Corcoran subduing mentally-ill inmates with pepper spray and batons are the subject of federal litigation aimed at ending such brutal corporal punishment. The videos are not available for sharing online, but they have been viewed in court, and the Sacramento Bee describes their content:

In the first video, played to a hushed crowd of lawyers and reporters in Karlton’s 15th-floor courtroom in downtown Sacramento, an inmate in a mental health crisis unit at Corcoran State Prison is shown refusing to take medication from a psychologist visiting him in his cell.

“He refused to take it,” the psychologist tells a waiting team of guards wearing gas masks, helmets, padded vests, gloves, protective jumpsuits and shin guards.

The inmate, locked in his cell, was playing with his feces and threatening to throw two cups of an unknown substance on anyone who entered. Almost immediately after the psychologist emerged, the team began pumping pepper spray through the food port of the metal cell door, repeatedly dousing the inmate between warnings that he better come out.

The team opened the door, dragging the inmate out and wrestling him to the floor as he alternately sobbed and screamed, “Don’t do this to me,” “help,” and “I don’t want to be executed.”

The motion focuses on Eighth Amendment and Fourteenth Amendment violations, including force against inmates manifesting symptoms of mental illness, excessive use of pepper spray and of expandable batons, and requests that the Court order CDCR to revise their use-of-force policies to provide training, quality and assurance processes.

As Bakersfield Now reports, things have not been looking good for the state in court:

In its response brief, CDCR argues that it has a comprehensive use-of-force policy, revised in 2010, that takes into account mentally ill inmates and includes appropriate training and discipline provisions. The brief also argues that the high standard for intervention under the Prison Litigation Reform Act (PLRA) has not been met. The two videos, the defendants argue, do not demonstrate a "pattern or practice" of disproportionate force.

The state's own expert witness testified that guards use pepper spray far too often and in quantities that are too great. He also said previous recommendations for changes were rejected or ignored.

The Contra Costa Times quoted Michael Stainer, Director of CDCR's Division of Adult Institutions, who described the depicted incidents as "at best, controlled chaos."

Judge Karlton is to issue his decision in a few days.

Music Review: Johnny Cash at Folsom and at San Quentin

It's been a while since a CCC update, and this was partly because I was hard at work wrapping up my book manuscript, Cheap on Crime: How Recession-Era Politics Transform American Punishment, and sending it off to the good people at UC Press. For those wanting a wee preview, my paper with Ryan Newby Death Row Economics and my forthcoming paper The Inmate Export Business should give you a flavor of the book, though the framework will be much broader than in the papers. Until the manuscript reviews arrive, I'm working on some new and interesting projects, including one about marriage and companionship in California prisons in the post-DOMA era.

But in the meantime, I have been listening to some good music, including Johnny Cash's two albums recorded as live performances in prison: The famous 1968 performance at Folsom, and the 1969 performance at San Quentin.

Johnny Cash needs no introduction. At the time he started considering a performance in prison, he had already had several brushes with the law himself, and his formerly glamorous career suffered serious setbacks because of his increasing dependence on drugs. Having kicked the habit at the end of 1967, Cash, whose interest in Folsom Prison was awakened long before (his Folsom Prison Blues was written back in 1953) reached out to San Quentin and Folsom through his new manager, Bob Johnston, and Folsom responded first.

Listening to the witty, subversive tracks makes one wonder how it was possible to organize a performance of this scale behind bars. The photos accompanying the CD depict Cash in front of an audience of thousands. Notably, the audience is largely white in those pre-drug-war days. Putting the show together must have been a logistic nightmare, and that CDC was willing to put up with it for subversive, anti-prison, pro-inmate, funny songs from a man whose own legal background was shady, seems incredible in 2013. The only example I can think of is Metallica's performance at San Quentin. But Cash's songs are risky and revolutionary. His 25 Minutes to Go is a wry, gallows-humor account of the minutes before the execution. "San Quentin, what good do you think you do? Do you think I'll be different when you're through?" He sings elsewhere, and even says, "San Quentin, may you born in hell; may your walls fall and I will live to tell."



The inmates' immense cheer is palpable.

The other tracks are also subversive and funny, and Cash's rich voice rings jovial and powerful. The audience seems to be enjoying the performance a great deal; I bet they were expecting it for a long time. Highly, highly recommended.

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.

***

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.

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?

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?