Gov. Brown Reveals Plan to Comply with Plata Mandate

A gym at the Deuel Vocational Institution in Tracy
emptied of triple bunks. Photo credit AP.

Yesterday, Gov. Brown revealed the State’s plan to comply with the Supreme Court’s mandate in Plata. The Greenwich Time reports:

Options in the state’s plan include:

— Granting more early release or “good time” credits to inmates, including second-strike inmates who have serious prior convictions.
— Paroling elderly and medically incapacitated inmates who are deemed unlikely to commit new crimes.
— Expanding the number of inmate firefighters by letting some serious and violent offenders participate.
— Increasing the use of drug treatment centers.
— Paying to house more inmates at county jails with extra space, and possibly at private prisons within California.
— Slowing the return of the 8,400 inmates who are being housed in private prisons in three other states at an annual cost of about $300 million.
— Adding space for 1,700 sick and mentally ill inmates when a new $840 million treatment facility opens in Stockton this summer.
— Freeing a projected 900 inmates because voters in November softened the state’s tough three-strikes lifetime sentencing law for career criminals. Proposition 36 changed the law to require that the third strike be a violent or serious felony and lets third-strikers with lesser offenses apply for shorter sentences. The administration rejected a proposal to release about 2,800 eligible inmates without court hearings.

The administration argued against many of the proposals even as it presented the options to the court in a series of legal filings.

There don’t seem to be many surprises here; in essence, the plan follows standard paths to decarceration. But it is also important to note that CA intends to slow down the rate at which it will bring back inmates held out of state in private institutions.

The other thing that is not surprising is the state’s tendency to speak in two voices at once every time these plans are discussed. The message is: We’ll comply, so as not to be held in contempt, but we don’t like this one bit, and are concerned about the implications for public safety. By now, Gov. Brown’s grumpy rhetoric – there’s no crisis, gyms are empty, everything’s fine, inmate’s lawyers and court-appointed masters are getting rich on taxpayer dollars, etc etc – should be familiar to regular readers. But the contempt threat, rarely made in the context of federal litigation, seems to have upped the ante.

It’s also notable that CA intends to expand its fire camp program as a plan for decarceration. Any readers interested in learning more about fire camps, and about the difference in conditions, demeanor, and interpersonal relationships between prisons and fire camps, I highly recommend Philip Goodman’s work, such as this terrific article.

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Props to Caitlin Henry for the Greenwich link; I am surprised not to see this covered in CA periodicals.

Effort to Speed Executions Dies in Committee

Image courtesy KALW News.

One of the main features of the Prop 34 campaign was an increase in support for abolition by people who are not necessarily ideologically opposed to the death penalty, but resent the wastefulness of essentially holding people in life imprisonment conditions in a costly and dilapidated facility while allowing them free representation and litigation space. The campaign emphasized that, since resuming the death penalty, only 13 people have been executed in California, while 84 died of natural causes. And several conservative editorials in support of Prop 34 explicitly said that they fully support the death penalty, but not as administered by the state. This trend is pretty pronounced not only in CA policymaking, but also in states that recently abolished the death penalty. The recent issue of the ABA Criminal Justice section journal features an article by yours truly and Ryan Newby in which we analyze the way in which savings have impacted the anti-death-penalty activism realm (I’ve said similar things here.)

But, Houston, there’s a problem. One of the negative consequences of eliminating all activist arguments against punitivism save for the cost argument is that one can conceive of rather horrific criminal justice policies that are also cheap. You don’t have to go as far as Texas to see the ill effects of tough-‘n’-cheap mentality. If the death penalty is broken, a potential conservative argument goes, just fix it by making sure that these people DO get executed, and save money that way!

Which is why I found Bob Egelko’s story on today’s Chron fascinating. Apparently, the California District Attorneys Association proposed to amend the death penalty law in CA, proposing SB779, which would shorten death penalty appeals and habeas proceedings and resuscitate the gas chamber as an execution method (in response to the chemical shortage that postponed an execution a while ago.) The proposal died in the Public Safety Committee, 5-2. The Chron reports:

The bill would have limited most condemned prisoners to one round of appeals in the state court system and another in federal court. Other provisions would have eliminated public review of regulations on execution procedures, barred disclosure of the suppliers of drugs used in executions and authorized a new method of gas chamber executions. 

California’s last execution by cyanide gas was in 1993. A federal judge ruled a year later that the gas chamber at San Quentin caused excruciating pain and violated the constitutional ban on cruel and unusual punishment. 

Lethal injections at the prison were halted in 2006 when another federal judge ruled that the executions, carried out by poorly trained staff in a dimly lit chamber, posed an undue risk of a prolonged and agonizing death. The court-imposed moratorium is likely to remain in place at least through 2013 as the state tries to validate new regulations and cope with a shortage of execution drugs. 

Under SB779, a gas execution would have been carried out by filling the chamber with a nontoxic gas, such as nitrogen or helium, displacing the oxygen and suffocating the prisoner. The condemned inmate could choose between gas and lethal injection, but the bill specified that the execution would be conducted by gas if injections were not legally available. 

To readers who are death penalty supporters, this is an interesting turn of events. It seems like, even in principle we endorse the death penalty, it is hard to live with the consequences of thinning out due process. There is no way back, folks. The only direction to go is forward, and any fantasy of saving money by hanging people in the town square cannot override the reality of many decades of death penalty litigation. Abolition is the only way to go now.

Today in the Senate: Abolishing Solitary for Juveniles?

SB 61, proposed by Leland Yee and scheduled to be voted on today in the Senate, aims at abolishing solitary confinement for juvenile inmates, except for periods not exceeding 24 hours in severe cases and for therapeutic assessment purposes. Let’s all hope it will pass!

Three-Judge-Panel: State Must Comply with Population Reduction Order; Jerry Threatened with Contempt

Image from CDCR’s three-judge-panel page.

A decision came out yesterday from the three-judge-panel that issued the original Plata v. Schwarzenegger decision: The state must comply with the original order. Moreover, should it not do so, it will be held in contempt. The L.A. Times reports:

In a blistering 71-page ruling, the jurists rejected Brown’s bid to end restrictions they imposed on crowding in the lockups. The state cannot maintain inmate numbers that violate orders intended to eliminate dangerous conditions behind bars, they said.

Brown and other officials “will not be allowed to continue to violate the requirements of the Constitution of the United States,” the judges wrote.

“At no point over the past several months have defendants indicated any willingness to comply, or made any attempt to comply, with the orders of this court,” they said. “In fact, they have blatantly defied them.”

The judges gave the state 21 days to submit a plan for meeting the population target by the end of the year. Administration officials said they would appeal the decision to the U.S. Supreme Court.

The piece pretty much speaks for itself, but I do want to say something about this to readers wondering why the state hasn’t been held in contempt so far, which is a question I get asked a lot when I talk about this. I think it’s important to understand that, while federal courts–rather than state administrators–have pretty much been the go-to place for inmate rights suits, courts are not natural policy designers. The judicial system is built on the premise of case-by-case arbitration, with an outcome that “takes sides” in a dispute between two parties (Martin Shapiro calls this “the logic of the triad“). Their ability to generalize and supervise is limited. The ways they perceive the world, discursively, are limited to assessing whether state agencies behaved in a way that violated constitutional standards – yes or no. Orders, supervision, revisiting issues–courts do all of those, but they do them because they have to. The hard work has to be done primarily by the state. Which is why, whenever possible, having a consent decree is a priority, and if that is impossible, it is at least useful to get some cooperation from the state and refrain from steps that will escalate the animosity between the state and the courts.

The escalation here–actually threatening the Governor with contempt–is understandable if one considers what Jerry has done in the last few weeks. He has attacked the special masters and receiver, and even griped about attorney’s fees for the inmates’ advocates. When seen in the context of this public relations crusade to besmirch the other side and the court-ordered mechanism, a threat of contempt is a logical response. And of course, the state retaliates by threatening an appeal to the Supreme Court. This is a collision course that will not end well, and it would behoove the Governor, and the state representatives, to consider growing up and collaborating with the courts. As things stand now, everyone has plenty to lose.

NYT Article on School-To-Prison-Pipeline

Photo credit Michael Stravato for the New York Times.

Today’s New York Times story addresses the school-to-prison pipeline:

The effectiveness of using police officers in schools to deter crime or the remote threat of armed intruders is unclear. The new N.R.A. report cites the example of a Mississippi assistant principal who in 1997 got a gun from his truck and disarmed a student who had killed two classmates, and another in California in which a school resource officer in 2001 wounded and arrested a student who had opened fire with a shotgun. 

Yet the most striking impact of school police officers so far, critics say, has been a surge in arrests or misdemeanor charges for essentially nonviolent behavior — including scuffles, truancy and cursing at teachers — that sends children into the criminal courts. 

“There is no evidence that placing officers in the schools improves safety,” said Denise C. Gottfredson, a criminologist at the University of Maryland who is an expert in school violence. “And it increases the number of minor behavior problems that are referred to the police, pushing kids into the criminal system.”

Of course, all of this echoes Jonathan Simon’s Governing Through Crime, in which he talks about the increasing management of education as an enterprise of crime control. But it also echoes recently deceased Stanley Cohen‘s Visions of Social Control, where he spoke of “widening the net.”

The accompanying slideshow tells the story as only photos can.

Federal Court: Mental Health System Not Improved Enough – Special Master Stays

We’ve been remiss in reporting the major development in the Coleman case – the counterpart to Plata that addressed the deficiencies in the mental health system. To Governor Brown’s dismay, Judge Lawrence Karlton has decided that the mental health system has not improved nearly enough to end the special master supervision. The L.A. Times reports:

Karlton found that “ongoing constitutional violations remain,” including failure to act on suicide-prevention methods recommended by the court’s special master and one of the state’s own experts. What gains California has made in reducing waiting lists for seriously ill inmates to receive psychiatric care “are new, and work remains,” he said. 

The judge found climbing suicide rates, shortages of mental health crisis beds and mental health workers, in addition to inadequate treatment space, despite years of planning, amounting to what he termed “deliberate indifference.” 

Court records show that Brown’s surprise Jan. 7 motion to end federal oversight had been in the works since at least late 2011. The motion triggered a 90-day deadline for a ruling, leaving inmate lawyers roughly 10 weeks to hire experts, tour prisons and build their opposing case and giving Karlton a matter of days to weigh thousands of pages of contradictory depositions.

We saw some of the images captured by the parties during Michael Bien’s talk at our recent conference.  The use of cages for everything, including group therapy, and the horrific condition of cells for people on suicide watch, stood out for me.

Reporter Nancy Mullane on Death Row

Photo courtesy Life of the Law.

The fantastic website Life of the Law includes an insightful piece by Nancy Mullane about her visit to Death Row.

“It’s all politics,” [death row inmate] Helzer says flat out [to Mullane], like this isn’t he first time he’s thought about it and now he has come to a conclusion, “Oh Death Row, tough on crime. It’s not a deterrent. The Death Penalty is not a deterrent. I’ll tell you why. One, is when people do commit crimes, they are not thinking, ‘Oh my gosh, I might get the death penalty, I better not do this.’ They’re in the moment. They want what they want. They have short-sighted. They don’t forsee the consequences of their actions because they’re impulsive. They do whatever they do, whatever crime it is. Now thinking about the ramifications. So that the notion that the death penalty is somehow a deterrent is a false premise.”

A Fundraiser for Homeboy Industries

As a few blog readers might know, when not fighting the California correctional ogre, I am an open water marathon swimmer. In 24 days, I will swim the Tampa Bay Marathon Swim – 24 miles of nonstop swimming in ocean water.

I am using the swim to raise funds for Homeboy Industries, a wonderful Los Angeles based reentry nonprofit. All the information is in this link. 100% of your contributions go to Homeboy Industries; the swim expenses come out of my personal pocket. If you can, please consider contributing so I can support their important enterprise!