Will prisoners be released in response to prison overcrowding?

(image courtesy cdcr.gov)

As reported on the Chron, on Monday the Federal judicial panel at the District Court heard closing arguments regarding prison overcrowding. A few snippets:

Inmates’ attorneys argued Tuesday that releasing tens of thousands of prisoners is the answer.

“The entire system is collapsing because of the overcrowding,” Don Specter, director of the nonprofit Prison Law Office, told the three-judge panel in U.S. District Court.

If the panel agrees, it could order the population cut by one-third in California’s 33 adult prisons. That would lead to the early release of some 52,000 inmates.

***

Attorneys representing Gov. Arnold Schwarzenegger, about 80 local law enforcement officials and 44 Republican lawmakers agreed that California’s prisons are dangerously overcrowded, despite steps taken in recent years to relieve the problem.

But they also argued that freeing tens of thousands of inmates or diverting them to county programs would overwhelm local police, jails and rehabilitation programs. Crime would go up, and many parolees would go without supervision, they said.

***

The judges have indicated they support the premise that the prisons’ problems stem from overcrowding. U.S. District Judge Lawrence Karlton acknowledged the “very profound effect” on counties if an early release was ordered, but also said 52,000 inmates might not be enough. He suggested that nearly half of the current 158,000 inmates may need to be freed.

“The state of the evidence is you can’t solve the problem without solving the overcrowding,” Karlton said Tuesday.

The governor’s position is rather interesting. As we know, the most recent version of the budget included releases of non-violent prisoners, as well as cutting parole for the same population. The governor actually supported the release of 15,000 prisoners. It would therefore appear to be the case that the argument is no longer about whether to release prisoners, but how many, and how the choice is to be made.

Don Specter, and Judge Karlton, will be among our speakers at the upcoming California Correctional Crisis Conference.

Prisons Under Pressure documentary series

screenshot courtesy ccpoa.ca.gov

In the course of responding to an email avalanche from you, our gentle readers, expressing interest in our conference (thank you!) and in the blog (thank you!), I came across the four-part documentary series Prisons Under Pressure, an interesting attempt to present the various perspectives on the overcrowding and medical crises in California prisons. It seems to be available as a pay-per-view, but I have just watched the first episode for free on their website. It’s a good introduction to the crisis for those of you joining us for the first time, and it provides a lot of insight into the financial part of the mess, which at this point may seem incomprehensible to many of us.

An interview with Sunny Schwartz


(image courtesy SF Chronicle)

Today’s Chronicle features an interview with Sunny Schwartz, whose thoughts on rehabilitation and restorative justice are inspiring and thought provoking.

A small excerpt:

My dream is that every jail and prison will be a place of no-nonsense change and responsibility. And that we build the safety nets for continuing education and programming – through our probation departments, churches, synagogues, chambers of commerce – that continue to invest in people’s success.

Can you imagine if we had economic incentives for jails and prisons so they get more money if people don’t return?

Ms. Schwartz will speak at our California Correctional Crisis Conference on March 19-20.

Zen and the Art of Prison Maintenance

California’s prison health care imbroglio received a lot of press this week:  Gov. Schwarzenegger and AG Brown filed a motion before federal district judge Thelton Henderson, asking him to remove Clark Kelso, the receiver he appointed to oversee reform of the state’s troubled prison health care system, and return control to the state. The motion, likely directed at higher courts who may be more sympathetic than Henderson, is the latest in what is becoming an increasingly nasty political struggle between the state and Kelso.  

The debate between the two has focused recently on the ability of the state to manage the department of corrections (see Aaron’s post below about the receiver’s most recent tri-annual report), but has relegated the proposed reforms themselves to the sidelines.  Tucked near the end of articles are lines like the following:   

LA Times: State officials estimate that the facilities would cost up to $2.3 billion a year to operate, and draft plans have included exercise rooms, music and art therapy areas, natural light and landscaping. “The environment should be ‘holistic,'” Kelso’s plan says.

SF Chronicle: An early draft of plans for new construction includes space for activities such as yoga and gymnasiums with basketball courts, among other amenities. [Kelso] said that his office did not propose the yoga space but that it was required under state mental health standards. 

It’s easy to characterize any spending on inmates that isn’t strictly orange jumpsuits and cells as frivolous, especially in times of economic crisis when people are more averse than ever to seemingly unnecessary expenditure. But sentences like “the environment should be ‘holistic’” give the impression that we are spending $2.3 billion to turn our prisons into Zen gardens, and, perhaps more than the political posturing, do a disservice to our attempts at substantive debate about what the problems in the prisons actually are, and whether Kelso’s proposed reforms are the right way to address them. 

The Dark Side of Gideon


It is universally acknowledged that the 1960s were good years for criminal defendants. The Warren court, subscribing to a philosophy of constitutional incorporation, bright-line rules and prioritizing accuracy over efficiency, provided defendants with a series of constitutional rights which would be chipped at by the post-Warren courts for many years afterwards. The right of rights – a right as well as a tool to achieve other constitutional rights – was the right to counsel, affirmed in Gideon v. Wainwright, and later (in Argersinger v. Hamlin and in Scott v. Illinois) more narrowly defined as to include any situation of “actual imprisonment”. Those of you seeking some of the story behind the monumental Gideon decision, will find it in Anthony Lewis’ fantastic Gideon’s Trumpet. 

By making the decision applicable against the States, the Warren court did more than intervene in State systems of values; it intervened with their budget. It required the states to come up with good strategies to provide subsidized representation for indigent defendants. An important rationale behind this decision was the wish to generate more equality between defendants of different classes. One way of doing so was through creating Public Defender offices around the country, though not all states did so, and some chose to work with contracting and retainer systems. 
The dark side of providing broad, free legal services has to do with the quality of service. Research in the 1960s and 1970s was not oblivious to this fact, and was notably skeptic about the quality of representation offered by public defenders to indigent clients. Abraham Blumberg compared such representation to “a confidence game”, in which the public defender, in cahoots with other members of the “courtroom workgroup”, “cons” the client into agreeing to plea bargains, thus making the system run more soothly and efficiently. The recently and sadly deceased David Sudnow, in a no-less classic and more systematic study, shows how defense attorneys assess the extent to which a specific case is a “normal crime”, which can be “sold” as such to the prosecution for a preset tariff. Newer studies, such as Debra Emmelman’s 1996 article and her subsequent book, Justice for the Poor, had a more positive and less cynical perspective on legal services to indigents; however, Emmelman points out to the lack of resources faced by lawyers in these situations.
And, indeed, with no resources, institutions that provide ample representation cannot guarantee quality representation. Just a few months ago, the New York Times reported on several Public Defender offices around the nation who had refused to take on new cases, being unable to properly and adequately handle the load they faced. 
These budgetary problems have come to haunt the Bay Area as well. As reported in today’s Chronicle, the San Francisco Public Defender, Jeff Adachi, is reporting a dire lack of resources, and arguing that if the office does not get two more paralegals, some cases will need to be referred to firms outside the office. This bothers me profoundly not only as someone who cares about the criminal justice system, but also as an educator who prepares public-interest-minded students for, among other vocations, careers in public defense. This year, scores of bright, talented, and hardworking students will graduate from top law schools, and many of those who seek public defender careers will find themselves working temporary hourly-paid jobs, or, worse, unpaid clerkships. 
The system is not only bankrupt where prisons are concerned; it is bursting at the seams in other stages of the criminal process. Here’s hoping that things get better sooner rather than later.

CA Correctional Crisis Conference website launched!

Our conference website is up and running, and you are welcome to visit it for information on our upcoming conference on the California correctional crisis.

The conference will address and discuss many of the issues we have highlighted – and continue highlighting – on this blog: sentencing, alternative adjudication mechanisms, prison overcrowding, the prison administration, the health system crisis, budgetary issues, parole, risk, release and reentry.

You are all warmly invited to attend.

When: March 19-20
Where: CA State Building, 350 McAllister Street, San Francisco, CA

Law Enforcement and Corrections: A Message from the New Administration


The new White House website is attracting some attraction (some of it from bloggers comparing it to the previous version which, in all fairness, was made eight years ago). Given Jonathan Simon’s statement, that no American politician has ever gotten elected on a platform of being soft on crime, it is interesting to state a few things about the new administration’s criminal justice policy.

First, the list of topics on the agenda does not seem to include crime control or law enforcement in any particularly visible way.

Second, these issues have been located under “civil rights“.

Third, the priorities seem to have shifted toward rehabilitation and re-entry, at least on paper. An excerpt from the agenda page:

  • End Racial Profiling: President Obama and Vice President Biden will ban racial profiling by federal law enforcement agencies and provide federal incentives to state and local police departments to prohibit the practice.
  • Reduce Crime Recidivism by Providing Ex-Offender Support: President Obama and Vice President Biden will provide job training, substance abuse and mental health counseling to ex-offenders, so that they are successfully re-integrated into society. Obama and Biden will also create a prison-to-work incentive program to improve ex-offender employment and job retention rates.
  • Eliminate Sentencing Disparities: President Obama and Vice President Biden believe the disparity between sentencing crack and powder-based cocaine is wrong and should be completely eliminated.
  • Expand Use of Drug Courts: President Obama and Vice President Biden will give first-time, non-violent offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior.

How much these national priorities will be reflected in California in the wake of the failed Prop 5? It may well be that the tendency to release prisoners and eliminate parole, supported by Governor Schwarzenegger as a budgetary emergency measure, may actually reflect some of these priorities.

Taking the Gloves Off


On January 15, 2009, Clark Kelso, the Federal Receiver in charge of reforming California’s prison medical system, released his latest “Tri-Annual Report.”

From the report’s opening lines, it’s clear that the fight over the prison medical system is entering a particularly bitter and contentious phase.

Kelso’s anger with the State is apparent from the opening paragraph: “Since the reporting, period, the Governor and the Attorney General of the State of Calfornia executed a ‘flip-flop’ and ‘bait and switch.’ The immediate victims of the State’s turnabout are the four federal courts and respect for the rule of law; the ultimate victims are the tens of thousands of class members who are waiting for constitutionally required improvements in their medical care as well as the citizens of the state of California.”

Kelso proceeds to outline a list of frustrations and failings. The State has “refus[ed] to work with the federal court to develop a funding mechanism” for reform. It’s response to the budget crisis has been “scattershot, unpredictable and inappropriate.” It’s proposals for corrective action “violate federal court orders and will, in both the short and long-term, serve only to increase existing State funding shortfalls.”

The report continues: “No purpose is served attempting to prove the personal or political motivations which have led the Governor to renege on his Administration’s assurances to pursue a public-private financing transaction to support the Receiver’s construction program if legislation failed, or which now drive the Attorney General to attempt to rewrite the history of four federal court class action cases and wage a war against district court orders to which the State has previously agreed. However, the threat to the orderly administration of justice from their actions cannot be ignored. Court orders are not Hollywood contracts where . . . promises to perform are cheaply given and then ignored when convenient. . . . There are appropriate legal processs for challenging and reconsidering court orders; however, flat out disobedience of courts orders is not the appropriate course of action.”

Hearings on the state of the prison medical system are expected to resume before a three-judge panel during the first week of February.

Civics and Corrections: A Reminder


As we get ready to watch the momentous transfer of power on Capitol Hill tomorrow, I thought we’d ponder for a moment about the rationale behind excluding prisoners, and in some cases ex-felons, from the right to vote.

Four years ago, released prisoners on parole, and probationers, were surprised to find out that they had a right to vote in California. Activists have been working on raising awareness of the right to vote among those who have been, for a while, excluded from the civic process. In other states, such as Florida, in some cases voting rights can only be restored after a hearing.

In their excellent book Locked Out: Felon Disenfranchisement and American Democracy, Jeff Manza and Christopher Uggen uncover some of the reasons why the American system does not award voting rights to its prisoners. Disturbingly, they draw links between felon disenfranchisement and racism, which go beyond a mere coincidence. Even more interestingly, they marshall empirical data, meticulously collected and analyzed, to prove that, had felons been allowed to vote, two presidential elections (1960 and 2000), and several Senatorial elections, would have been reversed.

Some change has already occurred after the publication of the book, as some states loosened restrictions on voting rights. And, as some readers may know, many countries around the world see no problem in allowing prisoners (current and released) to participate in voting.

This weekend, Parade Magazine published a letter from President-Elect Obama to his daughters and to every child in the country. Obviously, our children, whose future we hold so dear and care so much about, did not vote in the last elections. The Presidential stewardship, as Obama so movingly said in his acceptance speech, transcends those who voted for him; it extends to those who voted for other candidates, and hopefully will also extend to other groups who did not have the privilege to vote at all. As many of us hope for change in many ways, we can hope that our future paths and endeavors also direct us to re-entry, restoration and reintegration after punishment.