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.

Congratulations, Graduates


(image courtesty of CDCR.ca.gov)

Several CA correctional institutions report the number of GED certificates, and other diplomas and degrees, earned by inmates.

Congratulations to those who have achieved this important milesone, which will be invaluable on the other side of the fence. As this data from NCSALL demonstrates, one’s earning potential, particularly if one belongs to a racial minority, substantially increases with a GED. The good folks at Brown University, particularly John Tyler, are continuing to keep track of the impacts of prison education and of other issues pertaining to employment prospects after release, for those of you who want to learn more.

Critical Perspectives on Quality of Life Policing

The new Tenderloin Community Justice Center has potential to improve community-police relations in the neighborhood. In order to make sure the project doesn’t stray toward further unfair criminalization of homeless people and other disempowered members of the community, it’s useful to take a look at some of the recent criticism of “Quality of Life” policing. For a critical perspective on the issue, take a look at Incite!’s FAQ and factsheet, available at http://www.incite-national.org/index.php?s=107

Community Justice Center: Alive and Kicking!


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Community Justice Center Commissioner Ron Albers, and the CJC coordinator Tomiquia Moss, held a town hall meeting yesterday at the Tenderloin police station, in which they discussed the findings of the baseline survey conducted by the Department of Public Health as a phone and street survey (multilingual, and involving a cross-section of the Tenderloin population). The findings are a pleasant surprise to those who thought that the objecting supervisors accurately represented community concerns. Despite a rather low level of trust in courts in general, 59 percent of those surveyed expressed “positive” or “very positive” attitudes toward the opening of the CJC. Just 8 percent reported a negative opinion about the CJC.

A few other findings of interest: respondents identified drug dealing and homelessness as the main problems in the area. They reported feeling very safe during the day, and confident that people would come to their aid, but unsafe during the night. As opposed to the mistrust in the court system, respondents expressed faith in the police.

It seems that the rumors on the CJC’s death were premature. Despite the Board of Supervisors’ vote on the one-time construction fund, the CJC is determined to proceed on its regular yearly budget, albeit with less resources then it hoped for.

Many issues, which were up in the air in previous town hall meetings, appear to have been more carefully thought of, such as the court’s jurisdiction over drug dealers arriving to the community from the East Bay. It seems that the court would exercise authority on a case-by-case basis, deciding in which cases it makes sense for the person who offended the community to provide community service in it.

Another interesting issue that came up involved the relationship between the community justice center and other specialized courts, such as drug courts and mental health courts. With respect to those follow-up programs, the CJC would act more as a referring agency; the CJC itself would have the capacity and the budget to intervene only in short-term, acute crisis situations, and chronic care would have to be handled by other services. The CJC would ideally hope to preserve the status of its clientele vis-a-vis their existing aid situation, and work on creative solutions to long-term problems.

An audience member mentioned the issue of representation. According to Commissioner Albers, the CJC is to be staffed by two full-time DAs and two full-time PDs. His belief is that, as time goes by and the Hall of Justice caseload is diverted to the more productive CJC, this presence will increase. One can hope that this is in the realm of the possible in light of the cuts to the PD budget.

A spirit of hope was in the air. The police and probation seemed to be much more on board with the program than they were at the meeting a year ago. And, President Obama’s job creation plan was mentioned as a possible ray of hope for CJC defendants in search of a long-term betterment plan; his acquaintance with community organization and collaborative justice efforts might be helpful in creating a regime hospitable to these programs.

FYI: the CJC Advisory Board, comprised of members of the involved agencies and community representatives, meets every 2nd Wednesday of every month, between 4-5, at the Civic Center Courthouse (400 McAllister Street, Room #617). The meetings are open to the public.

Commissioner Albers will also be among our speakers at the California Corrections Crisis conference.

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.