Special Edition: Punishment Beyond Borders: California Corrections and Criminal Deportation

(image courtesy of Brian Concannon’s excellent Haiti Justice Blog)

I have just returned from a week in Jeremie, Haiti, with the Hastings to Haiti Partnership (HHP). The program is based on a collaboration between UC Hastings and the Ecole Superieure Catholique de Droit de Jeremie (ESCDROJ), a law school operating under difficult conditions and devoted to public interest. The two law schools hold a joint conference in Jeremie, in which students and faculty present topics of interest. This year, we had a chance to conduct a criminal case simulation, as well as meet with individual law students to discuss their research interests and help them out with comparative materials.

The experience was rather interesting given our California Corrections Conference coming up next week. As disturbing and problematic as our prison overcrowding issues are, the prison conditions in Haiti in general, and in Jeremie in particular, are so much worse. Our students, who visited the prison to interview inmates, as well as local activists, church figures, and professionals, tell of conditions so dire they can hardly be imagined, which seem to have worsened over the last few years. With the number of inmates per cell sometimes exceeding forty, the men have no room to sleep, and have to sleep standing up, like farm animals. This sometimes takes months, as the legal system is highly corrupted and it takes months before a given prisoner gets to see a judge for the first time. Sometimes, people are held in these dire circumstances with only very flimsy evidence against them. As we were told by the local assistant prosecutors, the Haitian civil law system is not conducive to plea bargaining, so even pleading guilty to alleviate or shorten this misery is not an option. There are good people, both in Haiti and abroad, who are working hard to change this situation, such as the Institute for Justice and Democracy in Haiti, but things at this point look very grim. While at Haiti, I gave a talk about the Stanford Prison Experiment, and some of the local students reflected on the lessons from the study as they apply to local prison conditions; if social situations create a prisoner’s master status and self image, there is no hope for rehabilitation for any of the Jérémie inmates.

One of the Haitian students I met is writing his memoir (a research project required for graduation, akin to a Master’s thesis) on the causes of crime in Haiti, and is focusing on the issue of criminal deportees from the United States. He points out that the deportees are treated horribly upon arrival, which is not conducive to rehabilitation. Michelle Karshan from Alternative Chance/Chans Alternatif, who advocates for Haitian criminal deportees, reports that they are often held in horrifying health conditions and do not receive food.

What does this have to do with our correctional system here in California? I have been thinking about two main issues. The first is the change in CDCR policies regarding criminal deportees who return to the US. As reported on the CDCR website:

In 2007, CDCR turned over approximately 12,000 paroled criminal aliens, who committed a crime in our state while here illegally, to the federal government for deportation upon completion of their state prison sentence. Of those 12,000, nearly 1,600 deported parolees illegally returned to California. California’s only recourse was to further clog our prisons by imposing short revocation terms – usually four to eight months – for a parole violation on these repeat offenders.

In the spirit of creative solutions for overcrowding, from now on, such returning deportees will not be under parole supervision in California. Instead, they will be turned over to the Federal government. This is not to say that law enforcement will not continue to track them down;

The motivation for the change in policy is, to a great extent, fiscal:

The policy is expected to reduce California’s average daily prison population by up to 1,000 inmates annually, resulting in up to $10 million savings per year from the state’s prison and parole budgets. CDCR expects to spend approximately $970.1 million in total in 2008-09 for the incarceration of undocumented persons. The state expects to receive $110.9 million in federal State Criminal Alien Assistance Program (SCAAP) funding for 2008-09.

My second reflection on the situation sprang from the proximity of our Haiti visit to the CCC conference. If inmates in developing countries are held under much worse conditions than our own, does this mean we should direct our efforts to help those people before working to improve conditions closer to home? Or is the case that, paraphrasing Rashi, “the poor people of your own town come first”?

I’ve already pondered these questions elsewhere, and Patrick O’Donnell’s excellent comment there directed me to some readings on global distributive justice. As Patric argues in his comment, quite convincingly, “[i]n fact, given the enormous global disparaties of welfare and well-being or respective points on ‘quality of life’ indices, there’s much that can be done to help out those in emerging polities and so-called developing countries even if the bulk of our efforts are focused on what’s close at hand.” In addition, I think that our hightened sensitivity to the fate of the weaker links in society will, in time, also increase our empathy to people in dire conditions across the globe.

Community Justice Center Opens Its Doors

(image courtesy SF Chronicle)

The Chronicle reports this morning that the Community Justice Center opened its doors yesterday for the very first time. The article documents the CJC’s history, including the struggles for funding that we examined here and here.

In the traditional court system, defendants are given citations and told to appear at the Hall of Justice in 45 days. But many of them are homeless or struggling with mental health or substance abuse problems, so remembering a court date several weeks later is unlikely. At the new court, people will be arrested and seen by a judge within days – and in the same neighborhood where the crime occurred.

Getting people to show up is just one of the many challenges that have plagued the court since Newsom borrowed his idea from Manhattan’s Midtown Community Court, which is credited with turning around the once-notorious Times Square.

The court, which has been replicated in cities around the world, sentences perpetrators to a mix of community service to pay back the neighborhood and social services like mental health or drug treatment to address underlying issues. The idea is to keep perpetrators from cycling in and out in jail.

I found the Chron report to be surprisingly negative. In its subheadings, the article reports that “even voters rejected court”, and somewhat ridicules the fact that the first five “clients” of the court were no-shows (a very common phenomenon at the Hall of Justice as well). I have no horse in this race, but at the risk of sounding over-protective, I wish the Chron had given this a fair chance before introducing the gloomy undertone.

At the last town hall meeting, Commissioner Albers and coordinator Tomiquia Moss were very conscious of their accountability to the community, and said they would closely monitor their progress and report to the public. Part of this includes external evaluation, and I understand that the RAND corporation will be pursuing a study of recidivism rates among CJC defendants. Program evaluation takes time; look at what the Red Hook Community Justice Center has achieved since it opened its doors in 2000. We already know that the old program doesn’t really work. I would urge Chron writers, and readers, to reserve their judgment of the new program until there is actually something to judge.

I hope the collaborative justice blog will provide us with updates on the new court’s function.

So… We’re Not the Worst?


This morning’s Sacramento Bee Capitol Alert alerted us to a newly published study by the Pew Center on the States, which has numbers on prison and parole numbers and expenditures in U.S States. Apparently, when looking at numbers per capita, rather than rates, we are not the worst state in terms of incarceration. 

Nationwide, Pew says, 1 in 31 adults – about 7.3 million men and women altogether – are either behind bars or under parole or probation supervision for crimes. But in California it’s one in 36, slightly below the national average. Even so, that amounts to about 750,000 Californians, with more than a fifth of them in state prison.

Georgia, with one of every 13 adults in the correctional system, has the highest ratio, with Idaho, at one of 18, in second place. At the other end of the scale are New Hampshire, with one of 88 adults, and adjacent Maine at one of 81. Among larger states, Texas and Florida have substantially higher ratios than California while New York is much lower at just one in 53.


In 2008, Pew says, the 34 states “for which data are available” spent about $20 billion on prisons, probation and parole, but for some reason the study omitted California which spends more than half that sum all by itself when probation and parole costs are included.

This, in itself, is not news, in the sense that the per-capita imprisonment rates have appeared earlier in the New York Times. What’s important to stress is that this does not mean there is no cause for concern. Not only should we be concerned about our expenditure on corrections and our inadequate facilities, but every jurisdiction in which 1 in 36 adults is under the state’s punitive apparatus should take a hard, grim look in the mirror, regardless of how other states are doing. The fact that 1 in 13 adults in Georgia is in prison or under law enforcement supervision is no cause for rejoicing in California.
The important question seems to be whether CA is merely a private case of an American affliction, or whether there is something unique to how we do things in this particular state. If the former is correct, and CA is more of an extreme case than an idiosyncrasy, we should also ask ourselves whether these rates of imprisonment correspond with what Frank Zimring calls, in one of his recent books, The Great American Crime Decline. Have we managed to produce a decline in crime because of our imprisonment rates, or is this an unrelated trend? Zimring produces convincing evidence to argue that the decline is a rather complex trend, in which law enforcement and punitive measures play a rather small part. Notwithstanding the important conversations that need to be had on the state level, there is a bigger picture here, and the national war on crime has not, so far, addressed it on a fact-based, informed, moral-panic-free level.
Frank Zimring will be on our opening panel at the upcoming California Correctional Crisis conference. 

Is the Death Penalty Too Expensive?


(image courtesy NYT.com)

The New York Times reports on a trend we’ve already seen here a couple of times: penal reform and punitive measures being abandoned not on their merits, but because of their costs. The article is not California-specific; the picture you see is from Virginia, and the data in the piece come from Maryland.

Nevertheless, the point is an interesting one: whatever the public thinks about the death penalty, it’s expensive, and several states are abandoning it in light of the costs.

Death penalty opponents say they still face an uphill battle, but they are pleased to have allies raising the economic argument.

Efforts to repeal the death penalty are part of a broader trend in which states are trying to cut the costs of being tough on crime. Virginia and at least four other states, for example, are considering releasing nonviolent offenders early to reduce costs.

What about the CA costs? The California Commission for the Fair Administration of Justice provides some data. The report offers abundant information on other aspects of death penalty administration, pointing primarily to long delays in carrying sentences and to inadequate representation. However, if the fiscal argument is the one that might win the day, the bottom line is as follows:

The additional cost of confining an inmate to death row, as compared to the maximum security prisons where those sentenced to life without possibility of parole ordinarily serve their sentences, is $90,000 per year per inmate. With California’s current death row population of 670, that accounts for $63.3 million annually.

The report makes a variety of suggestions regarding reforms in death penalty administration, including guarantees for adequate representation. Those in themselves might be quite costly, and the public might be as reluctant to implement them as the legislators were when they killed the planned expansion to the San Quentin Death Row just a little while ago. One wonders how the new trend in other states may play out in California, or at least in counties in which the prosecution actually seeks the death penalty.

Some Conference Logistics

This post is nothing more than a preview of the California State Building, where we are holding our conference in three weeks. It’s a beautiful space, full of art, which will provide a great setting for what we believe to be extremely important discussions.

More About Zen Prisons and Other Magical Gardens


The 1960s were revolutionary years in penology; they mark a thriving period in prison research. Many big names in the field, influenced by Erving Goffman’s concept of total institutions (and, more broadly, by Howard Becker’s framing of labeling theory), became interested in the social dynamics of prison and its impact on human behavior. This interest in prison yielded a number of classic studies, whose findings now seem obvious to us, and who may be somewhat dated, but whose basic insights are still true.

One such classic was Gresham Sykes’ 1965 article The Pains of Imprisonment, in which he made the then-revolutionary argument that imprisonment does not consist solely of a loss of freedom, but carries with it a number of other impairments to the inmate’s quality of life. He named four such pains: the loss of material goods; the loss of heterosexual relationships; the loss of autonomy; and the loss of personal security. Each of these merits a discussion of its own, and since the original publication, several people have suggested additional pains of imprisonment. In his book Reforming Punishment, Craig Haney develops the idea of the psychological impact of imprisonment. Long before our current crisis, he argued that prison management and funding adversely impacted inmates and, therefore, contributed to the problems within walls and after release.

(Incidentally, Sykes’ full original study, The Society of Captives, has recently come out again, with a new and excellent introduction by Bruce Western. )

As faithful readers may recall, Melissa’s post a while ago highlighted the current heated debate about prison conditions in light of the initiative to end the medical system receivership; the receiver’s aim to create a “holistic environment” for prisoners caught much flak from critics. One way of framing this controversy is by realizing that Sykes’ point has been turned on its head; we seem to take for granted, and agree with, the imposition of pains of imprisonment in addition to the deprivation of liberty.

A good illustration of the pains of imprisonment is the comparison between the food and hygiene items offered to prisons and to other institutions. Basic comfort items are difficult to come by in prison, and families and friends who want to help inmates naturally would like to supplement these. One of the simplest ways to send a package to an inmate in the U.S., without having to face searches and confiscations, is to do so through My Care Pack, an internet service offered by Canteen. Canteen also offers food services for institutions and vending machines. I encourage you to pick a facility and browse through the products. Here, for example, is a $17.95 gift pack:

Most products sold by Canteen are quite cheap and basic. Still, in prisons dominated by gangs and a strong illicit economy, a pack like this might provide a lot of comfort. The profit margin for Canteen is significant (grad student readers will be interested in examining the price of instant ramen), but the service provided is hassle-free, in the sense that delivery is relatively painless, and freedom from administrative searches is a good thing. Obviously, other Canteen clients (restaurants, institutions, and NASCAR) get an entirely different set of offerings, for a different price range. And, naturally, prison economy does not equal communism; prisoners with more means, and more affluent supporters outside prison walls, will be living better, comfortwise, than prisoners who lack friends and relatives, or whose friends and relatives cannot afford to furnish them with supplementary goods. These inequalities, and the importance of creature comforts, are some of what fuels the prison economy, which is to a large extent driven by supply and demand for drugs (see this little piece from Prison Life Magazine). Again, this is nothing new; Lloyd McCorkle and Richard Korn provided the foundation for a discussion of the prison’s internal economic system in their classic 1965 piece Resocialization Within Walls.

This commentary should not be taken as a simplistic critique regarding the meager offerings to prisoners, or a cry for more coffee brands, but rather as a way to conceptualize the fact that simple comforts, like readily available brand snacks, are not readily available to inmates. Another aspect is the capitalist concept of choice. The dazzling array of, say, toothpaste types, does not exist for inmates. Whether or not this should be a part of punishment is not really the question (admittedly, one could not accommodate full access to capitalist economy from within walls even if we wanted to); the point is that it is, de facto, part of the prison experience, which is often hidden from commentators and critics.

Craig Haney, author of Reforming Punishment, will be on the opening panel of our upcoming conference.

Stimulating Corrections: Federal and State Levels

image courtesy ebudget.com

As many of us were relieved to find out this week, the State of California FINALLY has a budget, (albeit dependent upon voters) of which corrections expenditures constitute 7.3%. A summary is here and the full breakdown by numbers is here. As in all state agencies, you’ll note cuts across the board for all departments. Several things in particular that stand out, in no particular order:

  • The general budget decreases from $431,285 in 2008-2009 to $394,996 in 2009-2010.
  • Treatment programs are cut down from $83,059 in 2008-2009 to $58,937 in 2009-2010. The cuts will be particularly felt in mental health treatment programs, which will be losing about 60% of their budget. However, the cuts in medical services are far less dramatic.
  • Prison security will suffer much less than treatment programs: from $91,651 in 2008-2009 to $87,077 in 2009-2010.
  • There seem to be less cuts to the juvenile justice system. Educational programs for juveniles will not suffer very much, and juvenile parole services will be funded at almost the same level. There’s even a modest increase in medical services to juveniles.

And, on the federal level, our friends over at the Criminal Sentencing blog have observed that the stimulus favors punitive over rehabilitative programs. Others at TalkLeft have numbers to support these arguments. This doesn’t seem to reflect what we have been promised by the White House.

Seven Nagging Questions about the Post-Plata/Coleman World

1. Is this really going to happen after the final decision, or will we all wait for the appeal, which will surely come?

2. If we are about to dramatically relieve prison overcrowding, how do we guarantee that people don’t end up back in prison anyway, due to parole violations, and with precious little reentry resources?
3. Doesn’t the decision render the release part of Prop 9 pretty much irrelevant?
5. How large is the backlash going to be?
7. If we’re worried about recidivism among released inmates, isn’t it better to systematically find out what works in the real world, rather than work with simplistic, imaginary models?
Do you have any nagging questions about the aftermath of the District Court’s decision? Please post them in the comments, and we’ll try and answer them together.

Coleman/Plata v. Schwarzenegger: Initial Insights

The full text of the District Court’s tentative opinion is here.

A few points of interest:

The court was basically faced with an issue of causality, namely, whether the health system’s conditions are due to overcrowding. It agrees with the Govt. that “the delivery of constitutional medical and mental health care in prisons is a complicated and ‘polycentric’ problem”. In doing so, the court is invoking a concept from Lon Fuller’s 1971 classic “The Limits and Forms of Adjudication“. But, interestingly, by invoking that concept it may be saying some difficult thing about its own ability to properly adjudicate this conflict. Fuller says:

Now, if it is important to see clearly what a polycentric problem is, it is equally important to realize that the distinction involved is often a matter of degree. There are polycentric elements in almost all problems submitted to adjudication. A decision may act as a precedent, often an awkward one, in some situation not foreseen by the arbiter. Again, suppose a court in a suit between one litigant and a railway holds that it is an act of negligence for the railway not to construct an underpass at a particular crossing. There may be nothing to distinguish this crossing from other crossings on the line. As a matter of statistical probability it may be clear that constructing underpasses along the whole line would cost more lives (through accidents in blasting, for example) than would be lost if the only safety measure were the familiar “Stop, Look & Listen” sign. If so, then what seems to be a decision simply declaring the rights and duties of two parties is in fact an inept solution for a polycentric problem, some elements of which cannot be brought before the court in a simple suit by one injured party against a defendant railway. In lesser measure, concealed polycentric elements are probably present in almost all problems resolved by adjudication. It is not, then, a question of distinguishing black from white. It is a question of knowing when the polycentric elements have become so significant and predominant that the proper limits of adjudication have been reached.

Has the District Court reached the “limit of adjudication”, beyond which it is engaging in managerial, rather than judicial, tasks? The panel judges do not think so. They go on to say:

[W]e believe that a polycentric problem can have a primary cause – a cause that underlies and affects nearly every dimension of the problem and that in this case must be substantially mitigated before the constitutional failure can be resolved. Evidence offered at trial was overwhelmingly to the effect that overcrowding is the primary cause of the unconstitutional conditions that have been found to exist in the California prisons. There is, for example, uncontroverted evidence that, because of overcrowding, there are not enough clinical facilities or resources to accommodate inmates with medical or mental health needs at the level of care they require. There is also uncontroverted evidence that, because of overcrowding, there are not enough clinical or custodial personnel to ensure that inmates with medical or mental health needs are receiving appropriate treatment, are taking the medications that they need to take, are being escorted to their medical appointments in a timely manner, and are having their medical information recorded and filed properly. Additionally, as the Governor has stated, and as the California appellate court has found, overcrowded conditions – the use of triple bunks in gymnasiums and other areas not intended to be used for housing, for example – have “substantially increased the risk of the transmission of infectious illnesses among inmates and prison staff.”

Another interesting bit is the role played by the medical system’s Receiver’s work in all this. As the court notes, the argument against releasing prisoners relies, in part, on attributing the conditions to other factors. As proof of this,

[t]he defendants argue that the work of the Receiver and the Special Master has significantly improved the conditions in the prisons, and that with more time the Receiver and California Department of Corrections and Rehabilitation (sometimes referred to as CDCR), as monitored by the Special Master, can remedy the constitutional violations without decreasing the prison population.

This is somewhat ironic, because the government seems to be relying on the quality of the Receiver’s work while, at the same time, trying to remove him from his position. The irony does not escape the court:

The defendants argue that the Receivership and the Special Master’s monitoring efforts constitute other “relief” short of a prisoner release order that could remedy the constitutional violations. But the defendants have opposed the Receiver’s work in Plata and are seeking the dissolution of the Receivership.

And it becomes even more interesting when the court goes on to protect the receivership by presenting the Receiver’s position regarding what is and is not possible to achieve in CA prisons:

The Special Master stated that although much has been achieved in the past eleven years, “many of these achievements have succumbed to the inexorably rising tide of population.” Pls.’ Exh. P-35. The Receiver stated in a letter to the Governor and legislators dated July 24, 2006, that “[i]t will not be possible to raise access to, and quality of, medical care to constitutional levels with overpopulation at its current levels.” Pls.’ Exh. P-55. In addition, of course, the Receiver’s ability to help ameliorate the overcrowding is currently seriously threatened by the defendants’ actions to cut off his funding and terminate the receivership.

Another interesting aspect of the decision is the court’s assessment of what level of capacity would constitute compliance with constitutional standards. The evidence cited in the decision points out to levels far above 100% capacity as “acceptable”.

One important argument made by the Govt., which does not seem to be adequately answered in the decision, is the economic impact of releasing tens of thousands of inmates into the job market without proper skills or a decent re-entry program. The court responds to the counties’ concerns by saying,

This, however, appears to be an existing problem regardless of whether the prisoners are released under the current regime or pursuant to the reform measures. More important, the Expert Panel found that, if CDCR were to adopt the recommended combination of earned credits and parole reform, it could save $803 to $906 million annually. These savings could be diverted from the current prison budget to fund community based programming, which would allow the communities to continue and expand the programs that they have described to the Court.

But, for the saved money to optimally provide systematic reentry programs, these need to be carefully thought out and created in an atmosphere of cooperation rather than contention. And what good might it do to release folks without a properly designed and funded guiding hand without reforming parole regulation to provide a sensible, consistent regime of assessing parole violations?

It is important to note that the order is a tentative ruling, meant to prepare the parties to the implications of the final order, which brings us back to Fuller and his polycentric problems. Part of the reason why adjudication is unsuitable, by design, to address such problems, is that adjudication is a zero-sum game; there are winners and losers. This might not be the best approach to solve the problem CA prisons face. Is the tentative order conducive to bringing all concerned parties together and seeking a sensible release and reentry regime?

Breaking News: Federal Judges Order Inmate Release


Today, the District Court has issued its decision in the prison overcrowding case we have been following for quite a while. As reported by Reuters, the gist of the decision is that —

As many as 57,000 could be let go if the current population were cut by the maximum percentage considered by a three-judge panel. Judges said the move could be done without threatening public safety — and might improve a public safety hazard.

The state immediately said it would appeal the final ruling to the U.S. Supreme Court.

…

The three judges specifically said they planned to order the system, swollen to about double its capacity last year, to cut down to 120 percent to 145 percent of capacity within two to three years. They did not give a target headcount.

More on this to follow.