The SF Bay Guardian political blog features Just A Guy’s perspective on how a policy of early releases with no rehabilitation programs to speak of is destined to fail.
Reading the San Francisco Chronicle these days is like watching a traffic accident about to happen. The budget disaster is so alarming that every day brings news of future depressing decrees and policies.
— $750 million from the University of California and California State University systems, bringing the total reduction over two fiscal years to nearly $2 billion.
— $10.3 million – Eliminate all state general fund spending for UC Hastings College of Law.
— $173 million – Eliminate new Cal Grants.
— $70 million – Eliminate general fund support for state parks, potentially closing 80 percent of them.
— $247.8 million – Eliminate the Healthy Families program, which provides health care to nearly 1 million poor children.
— $1.3 billion – Eliminate the CalWorks program, which primarily helps unemployed single mothers find jobs.
— $809 million – Release nonviolent, non-serious, non-sex offenders one year early, and reduce the Corrections Department’s contract work, rehabilitation and education programs.
A while ago, the CDCR website announced that CDCR had declared war against inmate cellphones. We didn’t feature that at the time, since we felt other news were more important; but there are important angles to this issue that should be explored. Communications with the outside from prison are difficult and expensive; the costs are so expensive that some businesses are trying to offer alternatives to the collect call system.
The latest news on this come from Just A Guy, an unusual blogger from an unusual location on the SF Bay Guardian, whose other knowledgeable and intelligent recent posts have been highlighted here before. I really recommend reading what he has to say about this; a reminder that sometimes thinking out of the box is cheaper, and not more harmful to public safety.
As the budget conversations continue, including the possibilities of cutting parole, local parole task forces arrest parolees for parole and probation violations in Coachella and in Vallejo. Interestingly, while the latter operation targeted sex offenders (listed by name in the article), the actual violations included “possessing illegal contraband, pornography and drug paraphernalia, being under the influence of drugs or alcohol and failure to pass on-site drug testing”.
As the CDCR struggles to handle the dismal budget situation, through the guard layoffs, other initiatives are on the table. While some prison expansions are still scheduled to take place, others have been canceled; and the question of inmate release still hangs in the air.
One thing that is being considered, as the L. A. Times reports, is the Governor’s plan to move inmates from prisons to local jails. The idea is to target a category of offenses known as “wobblers” – offenses that could be classified as felonies or misdemeanors – and classify them as misdemeanors, thus changing the jurisdiction to allow confinement in local jails rather than in state prisons. Local officials, who deal with overcrowded jails, have balked at this option, and the proposal’s fate remains to be seen.
The petitioner, William Byrd, a pretrial detainee in jail at the time, was searched for contraband. He and other inmates stood in front of a row of Academy cadets, some of whom were female. Someone in the room held a handheld camera (filming, as it turns out, for the cadets’ Video Yearbook, though no footage of this particular search survived). The majority opinion, by Judge Ikuta, describes the search, which followed county regulatons, as follows:
When it was Byrd’s turn, the officers ordered Byrd to walk over to the cadets, stand facing away from them, raise his arms above his head, and spread his legs. O’Connell approached Byrd from behind and conducted the search as follows: She ran her hands across the waistband of Byrd’sboxer shorts and pulled the waistband out a few inches to check for anything hidden or taped inside; she did not look into his boxer shorts. She lightly frisked over his boxer shorts and down the outside of his thigh, stopping at the bottom of the shorts. Through the boxer shorts, O’Connell moved Byrd’s scrotum and penis with the back of her hand in order to frisk his groin, applying light pressure to feel for contraband. She then placed her hand at the bottom of his buttocks, ran it upward over his boxers, and separated the cheeks to search for any contraband taped, placed, or hidden inside.
Byrd’s legal argument was based on his Fourth Amendment rights to be free from unreasonable searches and seasures, as well as his Fourteenth Amendment rights to due process and equal protection. The search, he argued, caused him unnecessary pain and humiliation.
Byrd’s 1983 equal protection suit was dismissed, since “he fatally ‘failed to allege that defendants’ acts or omissions were motivated by discriminatory animus toward’ male prisoners”. His Fourteenth Amendment argument was rejected, since the search was not proven to have been motivated by punitive intent. The search was thus distinguished from the intrusive searches that the 9th Circuit had struck down in Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993), where male guards performed searches on female inmates.
As to the Fourth Amendment argument, the Court builds on Bell v. Wolfish, according to which “when reviewing conditions and restrictions placed on prisoners and pretrial detainees, we must bear in mind the inherent difficulties in managing a detention facility, and that “the problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions'”. Therefore, “the ‘reasonableness of a particular search is determined
by reference to the prison context.’” The factors in Bell and Turner require the court to take into account the circumstances of the search (measuring the level of intrusiveness), the justification for the search, and the existence of alternatives.
Applying these factors to the current situation, the court explains that cross-gender searches, per se, are not unreasonable: “while we have not foreclosed the possibility that a cross-gender
search could violate an incarcerated person’s constitutional rights, we have noted that ‘our prior case law suggests that prisoners’ legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited.’ . . . We have never held that a cross-gender search in a prison setting [in itself–H.A.] violated an inmate’s Fourth Amendment rights”. Beyond the cross-gender search aspect, the court did not find factors that would make the search unreasonable: “As noted, the jury found that the search was not done in an inappropriate manner. The record indicates that O’Connell wore gloves at all times, and conducted the search professionally and swiftly, finishing in, at most, 60 seconds. The invasion of Byrd’s bodily privacy in this case does not substantially exceed the cross-gender observations and searches we upheld in Michenfelderand Grummet. Moreover, the County has provided a legitimate justification for the cross-gender aspect of the search: the County adduced undisputed evidence that the cross-gender search was justified by its legitimate security and staffing needs, focusing primarily on the shortage of adequate personnel.”
Judge Fernandez dissented from the Fourth Amendment aspect of the opinion, writing: “In my view, cross-gender strip searches are generally uncalled for and unreasonable. . . There may be emergency or other situations where a cross-gender strip search is proper, but this case presents no facts to suggest that there was an emergency or some other unique reason for authorizing the search. In fact, the record shows that this sort of search is a regular part of the
jail’s routine, and that there were plenty of men available, who could have conducted the search. . . When all is said and done, I would not think it was reasonable for males to strip search females in this kind of situation, and I do not think it was reasonable to have females strip search males. If our law does approve of it, and the majority opinion cogently reasons that it does, I reluct; the law should change”.
This case brings up a whole host of interesting issues. The first one has to do with the role of women in law enforcement. The gender segregation of prisons, and its implications to gender-segregated prison staff, is well documented in Dana Britton’s At Work in the Iron Cage. While the work performed by men and women in these settings is similar, there are social forces and stereotypes at work that generate gender inequalities in this particular work environment. The majority opinion seems to be marginally sensitive to this issue, when it says “The determination sought by Byrd, that it is per se unreasonable for a female officer to conduct searches of male inmates when male officers are also present, would significantly limit the usefulness of female officers for meeting a detention facility’s security needs.”
The interesting bit, of course, is that these needs to make the workplace an equal playing field, and to allow female guards to perform their work except when there are particular circumstances that disallow identical performance for justified reasons, severely clash with the patriarchal norms that govern much of the inmates’ and guards’ cultural lives. It is interesting to note, in this context, the double standard regarding the unfortunate fact that many inmates have a history of sexual victimization. In this case, “Byrd states that he suffers from a history of sexual abuse, and therefore the cross-gender aspect of the search was particularly traumatic.” However, in Jordan, the same Court struck down searches of female inmates by male guards, “in light of substantial evidence that many of the female inmates had been violently sexually abused prior to their incarceration and were psychologically fragile, and that the cross-gender searches would cause some inmates substantial suffering.” This brings up a whole host of questions regarding the role of patriarchy and gender in our sensitivity to issues of sexual abuse.
Finally, as in many other Fourth Amendment cases, this case brings out the question of measuring the “reasonability” of searches and seizures. Part of the court’s decision, it seems to me, stems from the fact that they place much more weight on the issue of justification for the search than on issues of proportion and intrusiveness. More generally, one serious problem with Fourth Amendment Analysis is its lesser attention to issues beyond the level of suspicion. If anyone is interested in any of this, Dan Portman and I have written a piece on this, which we call Inequitable Enforcement, which will be presented at the Law and Society Association Annual Meeting next weekend; we’ll post it on SSRN at some point next month, and if there’s interest, I’m happy to post the link then.
Timothy Egan’s opinion piece on today’s New York Times places the recent CA vote on the budget proposition in context, and ties it to the prison crisis. On the guards, some of whom make $100,000 annually, he says —
The prison guard union, having swelled its well-paid ranks after voter mandates helped to produce a system where 750,000 Californians are either locked up, on parole or on probation, was upset at Governor Arnold Schwarzenegger for balking at their demands.
And on the disastrous impact of the proposition system on our priorities list, particularly with regard to incarceration and education:
But I do blame the voters. They’re part-time citizens, and not very good at it. They shackled the tax system back in 1978 with Proposition 13, limiting how much government could take from a homeowner. It was a reasonable middle class revolt. But then, in succeeding years, voters passed laws that packed California’s prisons with criminals (many of them petty) but also mandated that the education system get a lion’s share of the budget. On top of that, the voters made it nearly impossible to pass a budget. Then they walked away from their car wreck.
It’s a good reminder that we have ourselves to thank, and to blame, for the situation.
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Props to my fabulous colleague Dorit Rubinstein-Reiss for alerting me to this.
Just a quick post to alert you to the terrific and eye-opening Prison Photography Blog, featuring images from prison around the world. The image in this post is Jacob Holdt’s Prison Meal on Toilet, taken in a California prison.
I strongly recommend reading the commentary on Larry Corcoran’s panicked words on the Chron yesterday, from the good folks over at the Prison Movement Blog. Just to whet your appetite, Corcoran, spokesman for CCPOA, said yesterday:
“This short-term savings is going to have long-term costs, and the costs will be measured, unfortunately, in lives. . . I anticipate some incredibly sensational crime committed by an individual that should have been incarcerated.”
Now, granted, I entirely agree that mass releases are a very bad short-term solution for a big problem. Releasing people without skills or support programs into an abysmal job market is an extremely faulty strategy. Nevertheless, one would hope that the mass-released folks would not be the ones committing “sensational crimes”, nor is it ever a good idea to focus on those as the catalysts of public policy. Our pals at Prison Movement dissect this better than I could, pointing out inaccuracies, lack of logic, and moral hysteria, but I’ll just add this: at a time when public opinion is probably swaying away from moral panics toward cost-benefit analysis, I doubt this will win many hearts. Corcoran may be speaking the language of yesterday to an audience facing today’s budget shortages.
Everyone is having it rough in the correctional system, not least of all prison guards and correctional personnel. It seems that more than 3,600 of the 5,000 layoff notices were sent to CDCR employees (yesterday’s elections are not making it easy to balance the State checkbook). The lists have not been yet presented to the unions, but the decisions take into account seniority. These dire prospects fall on a fertile ground; CCPOA has been disgruntled with the administration for quite a while now. In an interview with the Sac Bee’s State Worker, CCPOA Acting President Chuck Alexander reflects on the problematic aspect of focusing most of the layoffs on prison guards, and brings up a surprising issue:
CA: Well, the layoffs assume you can move 19,000 illegals out of the system. But we’ve always had the ability to do that. We’ve advocated for the last three years a look at the undocumented aspect of the prison population and turn them over to the feds, or send back across the border.
TSW: The administration says it will release or transfer low-level offenders.
CA: The problem is that most of those 19,000 have already been rejected (for transfer out of the system) because they’re violent offenders. (The plan) is a sham. I would venture to guess that most of those 19,000 — if there are that many in the prison system — have an enhancement or serious violent felony.
The connection between these two problems is quite interesting; the problem of undocumented immigrant inmates, as it turns out, runs heavy and deep. At our conference in March, Angie Junck from the Immigrant Legal Resource Center discussed the challenges dealing with the situation, which involve inaccurate litmus tests based on the inmates’ last names; placing suspected undocumented immigrants on a “hold” that lengthens their imprisonment time; and facing not only less privileges while in prison, but also harsh conditions at the center for deportation following the prison experiences. Is this population really what would make a big difference for CCPOA? And are we sure that shipping them off to the feds would result in budget savings (gien the lengthier prison times)?