Moving from Tough and Cheap to Lenient and Cheap: Why Conservative States are Ahead of the Curve

Emily Luhrs from the CJCJ posted a really great think piece today. Taking on the ACLU point on the bipartisanism of criminal justice reform, they point out that conservative states have had a much easier time closing down prisons and decrowding institutions than, say, California.

Texas prisons, for example, went from a projected increase of 17,000 new prison beds in 2007 to below capacity in 2011, paving the way for an unprecedented state prison closure this year. The reforms have not only reduced system-swelling, but have led to the desired goal of increased safety. In the years following the reform efforts, crime rates have continued to drop more than the year before. In fact, research proves longer sentences have no effect on deterring future crime.


. . .


While California often leads the country with progressive reform efforts, it is not leading the way on the issue of incarceration. The same issues that are bloating California’s prison population were identified in previously prison-reliant states like Texas, providing hope that California can seek effective rehabilitative options as the state begins to reduce its prison population. CJCJ has long advocated for smart alternatives to incarceration and if Texas can close prisons, maybe California can too.

Here’s my take on the phenomenon Luhrs highlights: This is all about humanitarianism. Clearly, the dominant, if not only, factor at operation here is the wish to cut costs, and it’s the only factor that has succeeded in reversing the punitive pendulum. Conservative states like Texas and Arizona have a distinct edge over California in doing so, because traditionally, both of these penal systems have operated on the cheap. In fact, as Mona Lynch explains in her terrific book Sunbelt Justice, during the big Rehabilitation Years in California (before the 1970s brought disillusionment with that ideal), Texas and Arizona boasted farm/plantation models that were self-sufficient and did things on the tough and cheap. So, operating on the cheap is not a new consideration in these states. They’ve always done corrections with less. They are simply doing less with less. Here in CA, on the other hand, savings and corrections are not concepts that have traditionally gone hand in hand. We’ve done everything–incarceration, parole, probation, death row–on a mammoth scale and are used to decades of immense expenditure on corrections. That mindset may be even more difficult to change than the punitive mindset. The approach that corrections, by definition, have to be expensive, has always been part of the Californian paradigm, and has always been alien to the Texan and Arizonian paradigms.

So, as Californians, we need to learn how to be two things that we haven’t traditionally excelled at: Being lenient and being thrifty. Ironically, despite Three Strikes and Marsy’s Law and determinate sentencing and all that, we have a better track record with the former than with the latter. But reality is forcing us to acknowledge that and seeking more financial wisdom with corrections, and this will guide us on the right path with regard to punitivism.

BART Riots and Police Brutality: More on the Othering of Crime

As I write this post, BART is finally opening its downtown stations, after shutting them down in an effort to curb protests against police violence. What has been referred to in the media as “civil unrest” is yielding broad coverage, not least because of BART’s decision to cut down cellular phone service within its premises. Now that’s what some would call grounds for “civil unrest”.

But back to the topic of protest. So, the stations have been shut down, and it is rush hour. The Chronicle reports:

BART police closed the Civic Center station after at least one protester blocked a door of a Dublin-Pleasanton train for two minutes as others chanted “No justice, no peace.” The train continued east, and a dispersal order was soon issued.


“Once we got to a situation where the BART platform was unsafe, we cleared the station,” said BART Deputy Police Chief Daniel Hartwig, referring to the first closure. “We cannot jeopardize the safety of the patrons or the employees here.”


Some transit riders were infuriated. Jennifer Cohn, an attorney who works downtown, arrived at the Civic Center station at about 6 p.m. with her two sons, ages 3 and 4, after picking them up from day care. She was trying to get home to the Glen Park neighborhood.


With the station closed, she tried to catch a cab, but they seemed to be avoiding the area.


“This is an outrage. We just want to get home,” Cohn said. “I don’t really see why they should be shutting down the stations. If they have an issue with BART, they should go to BART headquarters.”

No, Ms. Cohn; what’s outrageous is that the police shoot innocent people. This “issue” is a prime example of people standing up to police abuse. And there are good reasons for all rush hour commuters to join them, rather than complain. We posted here before about the scathing review of BART police practices in the aftermath of Oscar Grant’s tragic death.

Now, why would Ms. Cohn and other riders be indifferent to this important issue? Could they possibly think that the abuses of force, unfettered discretion, and lack of professionalism at BART are good things? In all likelihood, they have not been paying much attention to the news. Or maybe, like Costelloe, Chiricos and Gertz’s survey subjects, they think that, at the receiving end of police abuse, are only people who deserve such abuse. Thuggish people. Scary people. Gang-y people. People who don’t look or behave like them.

Because, as we all know, if you don’t finish the vegetables off your plate, a cop will come get you. But if you do, no harm will befall you.

I heartily wish to all those perturbed rush-hour BART passengers, that they will never be shot in the back when handcuffed by an officer who was, assuming the best of scenarios, untrained in distinguishing between his gun and his taser (gentle reader, you can assume other scenarios if you prefer.) And that, if by any chance or bad luck, they are ever mistaken by an overzealous cop with poor vision for one of those “other” “bad” people, that others will be willing to stand up for them and raise their voice in protest. Even if it means that a few good, law-abiding citizens get home for dinner fifteen minutes late.

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Many thanks to Kathryn Nettles and Tom Oster for the conversation that inspired this post.

Tony Platt on Pelican Bay

Historian Tony Platt has a wonderful blog post out about the Pelican Bay hunger strike, titled The Shame of California. You should really read the whole thing, but here is a short excerpt:

On July 1st, a small group of prisoners in Pelican Bay’s SHU, calling themselves the Short Corridor Collective, initiated a hunger strike, calling for the abolition of long-term solitary confinement, improvement in programs for SHU prisoners, and an end to various abusive administrative procedures. Unlike a similar action by prisoners in 2002, this strike drew the support of thousands of prisoners throughout the state. Moreover, Prison Hunger Strike Solidarity was so successful in getting out information about the strike that European human rights organizations urged the Governor to respond to prisoners’ demands and the New York Times carried an Op Ed condemning the “bestial treatment” of prisoners in Pelican Bay State Prison (Colin Dayan, “Barbarous Confinement,” 17 July 2011).
During the strike, according to the Short Corridor Collective, at least seventeen strikers, including three leaders, were transferred to another prison for medical treatment. The Collective ended the action on July 22nd after gaining the right to wear cold weather caps, to have calendars in their cells, and to have access to educational programs in the SHU. Though these concessions by prison authorities are modest, we should not underestimate the larger significance of the strike. It draws worldwide attention to the widespread use of torturous practices by the United States against its own citizens; it forces the government of California to sit down, face-to-face, and negotiate with people who have been demonized as semi-human beasts; and it raises the possibility of once again incorporating prisoners into a larger struggle for social justice.

Inmates’ Facebook Accounts

The security issue de jour seems to be inmates’ usage of Facebook. CDCRtoday reports:

The California Department of Corrections and Rehabilitation (CDCR) today announced it has begun reporting Facebook accounts set up and monitored by prison inmates to the Facebook Security Department.


Facebook accounts set up and/or monitored on behalf of an inmate will be removed, as it is a violation of Facebook’s user policies.


“Access to social media allows inmates to circumvent our monitoring process and continue to engage in criminal activity,” CDCR Secretary Matthew Cate said. “This new cooperation between law enforcement and Facebook will help protect the community and potentially avoid future victims.”


. . .


Inmates are allowed to have Facebook profiles created prior to incarceration. If any evidence shows the account has been used while in the facility, Facebook Security will disable the account.


Over the past few years CDCR has seen a massive influx in the number of cell phones being used by prisoners. In 2006, correctional officers confiscated 261 devices, while in the first six months of this year, more than 7,284 were confiscated.

This brings up a few interesting issues. First, it’s a good reminder that the categories “inmate” and “non-inmate” are not insular. In a reality in which 1 in 100 citizens does a stint in prison during his or her lifetime, it is very probable that said person, like the rest of us, will have a Facebook account and online friends. The account can, of course, be used for both social and nefarious reasons. Naturally, the CDCR story highlights the nefarious examples; but one can imagine that, for the most part, Facebook is used by lonely folks to find some human connection, either with the friends they have or with friends they hope to make. These links may only work for those of you with Facebook accounts, but here’s an Ohio service to find pen pals for inmates. This one seems to have a matchmaking/hooking up angle. Inmates seem to be looking for the same things non-inmates are looking for on Facebook: Friends, drama, romance, sex, contact with family… this is not very surprising, is it?

There are also enforcement difficulties. The authenticity of establishing whether the account “had been used while in the facility” may be challenging. A family member may log on in the name of an inmate to provide information and maintain the inmate’s connection with friends and relatives. Several campaigns on behalf of inmates, such as the campaign to save Troy Davis from a wrongful execution, feature said inmates’ pictures.

In addition, there is a slippery slope risk. The CDCR story highlights the concern of a mother whose daughter is being stalked by a sex offender within walls. Are parolees’ Facebook pages monitored?

Our notions of what incarceration and isolation mean are challenged in a variety of ways; I hope they’ll make us question the need for mass incarceration and isolation in the first place.

Rise of the Non-Punitive Victim

An op-ed in the local San Gabriel Valley tribune is a strong testament to the changing sentiments of victims’ families, a growing number of whom are not adequately represented by punitive organizations such as Crime Victims United of California and the like. Judy Kerr’s op-ed eloquently provides a humonetarian critique of the death penalty from the perspective of the family of a murder victim.

In California, in the last ten years, 46 percent of murders went unsolved. This means over 25,000 murders remain unsolved, and 25,000 other families are waiting, like mine, to know who killed their loved ones. And it means as many as 25,000 killers roam freely on our streets. In the midst of this crisis of unsolved murders, we are also facing the biggest budget crisis in our state’s history. While people literally get away with murder, the public safety network in California has unraveled. Police officers in every county in the state are being laid off. And, in every county, we are cutting back on homicide investigations and eliminating victims’ services.


As thousands of family members wait for justice only to be told there is not enough money to fund an investigation, we watch as hundreds of millions of dollars are spent on the death penalty each year. Death penalty appeals, special housing for death row inmates, additional corrections officers to monitor them, a double-trial system which separates guilt and penalty phases – the costs associated with the death penalty are endless.


Many hear this and ask: Can’t we just speed up the execution process? Reports from respected judges and criminal justice experts, both for and against the death penalty, have shown that the only way to make the system move faster while still preventing the execution of an innocent person is to spend even more money.

This local op-ed is notable for various reasons – its invocation of a humonetarian discourse, its disavowal of the traditional victim sentiments – but it is particularly important because a legislative proposal to abolish the death penalty in California is on the agenda, advanced and advertised for humonetarian reasons.

PlataWatch: CDCR to Begin Population Reduction, Albeit Behind Schedule

CaliforniaWatch (via Sara at the Prison Law Blog) reports:

The court’s first benchmark orders the corrections department to lower it prisoner population to 167 percent of capacity by Dec. 27. The department says it expects to reach that benchmark by Jan. 27, 2012.


Corrections department spokesman Oscar Hidalgo said the delay is necessary to allow the department to get a better estimate of the state’s prisoner population.


In a declaration in support of Wednesday’s filing, Jay Atkinson, the department’s acting deputy director of the Office of Research, said:


“CDCR forecasts population levels by using a simulation model, which employs data trends and projected new admissions, to determine how long the new admissions will stay, the number of offenders who will be returned to prison, and how long they and the current inmates will stay. …This simulation is repeated for each individual inmate until the total population is projected. After the Fall 2011 projection is completed, staff in the Office of Research will project the impact on CDCR’s population that Assembly Bill 109, the realignment legislation, will have.”

The decrowding process is being executed pursuant to the Realignment law. Stay tuned in the next months for a blow-by-blow followup on the decrowding process.

More on Prison Diet: Food Choice as a Site of Autonomy and Self Expression

Giuseppe Arcimboldo, “Summer”

A story on the New York Times’ Bay Citizen tells of a jail inmate, Dave McDonald, who was denied a vegetarian diet during his jail term.

He refused to eat anything that he did not know was animal-free, and as a result, his weight plummeted nearly 50 pounds to 155.


“I don’t want animal corpses on my plate,” said Mr. McDonald, who is now free on bail. “My belief in not hurting animals is more powerful than any religious belief.”


Had Mr. McDonald said he was a vegetarian for religious reasons, or because of a medical condition, the county would have been legally required to comply. But Marin County officials said that simply believing in the sanctity of animal life was not enough.

This story, dealing perhaps with whom some might see as an atypical inmate, may bring to middle class’s consciousness the deeply rooted problems in an incarceration system based on selective incapacitation and a refusal to see its charges as individuals. We’ve discussed diets here before, when reporting on the addition of a Halal food option as one of the “five faiths” recognized by CDCR and on a study finding a decline in inmate violence when prison diet improves. But today’s story highlights another important aspect of prison nutrition.

Food plays a fundamental role not only in human survival, but also in self expression. The Internet is populated by abundant food blogs and articles. Food is a source of pleasure for many of us, but for many it is also an opportunity to live our beliefs and values through out palate. Recent online battles in the wars of vegetarianism and veganism brought home just how much people care about these food choices. Michael Pollan has proclaimed a set of rules for omnivores: “Eat food. Not too much. Mostly Plants.” Author Jonathan Safran Foer has written Eating Animals in defense of vegetarianism. Eric Schlosser’s Fast Food Nation, and the movies Food, Inc and Super Size Me, highlighted the many harms of an agribusinesss-managed food economy. Nina Planck’s critique of vegan diets for children was strongly criticized for its portrayal of vegans. A well-known vegan food blogger recently moved away from her vegan diet for health reasons and received harsh critique and death threats from the vegan community. And then there’s Lierre Keith‘s recent book The Vegetarian Myth, in which she speaks against industrialized, monopolized agriculture, saying vegetarianism and veganism still participate in a system that is fundamentally unjust – opinions for which she has been assaulted in public appearances. While it’s best to leave the discussion of the nutritional and political merits of vegetarianism and veganism to blogs that focus on such matters, clearly these folks’ food choices – on both sides of the debate – are inexorably tied to their identities, to the point that they are willing to endure harm to themselves or threat harm to others in the name of these choices.

The point is not to admire or criticize vegetarian, vegan, locavore, organic, paleo, low carb, low fat, or any other diet choice. The point is to remind all of us that people in custody are denied these choices. And for many people, the choice not to consume flesh or use animal product is as important and as deeply held as someone else’s sincere belief in one of the “five faiths.”Apparently, in California, vegetarian and vegan options are offered in state prisons as a courtesy; vegan meals started being provided after mass arrests of PETA members, prior to which they were only offered on a religious basis. As we see in today’s paper, in local jails the situation can be more precarious. As to other ideological choices, individualization is problematic. The implications of dietary choices touch on fundamental issues of prison management. Will the meal be served buffet style, so inmates have some choice in what is put on their plates? In supermax institutions and SHU units, does one have a say in what is pushed into one’s cell? Understandably, a system providing food to 160,000 people cannot make concessions for people’s tastes and whims, and I imagine the political outcry that would result if it did. But as it stands, the official stance on food choices, tying them inexorably to religion and offering few concessions beyond that, is discriminatory and illogical. Moreover, cheap as it may seem to feed many people uniformly (and badly), the price is paid in the form of violent behavior and health costs.

I’m also wondering what prison and jail policies are with respect to people whose diets are shaped not by their ideological preferences, but by their allergies and intolerances. If you’ll allow me a personal comment, it is difficult enough to be wheat intolerant in the accepting world of the Bay Area, where abundant choices exist. Bread is a basic food stable; it is cheap and mass produced, and as such, is the cornerstone of any attempt to feed people on a large scale in an industrial complex. The prison industrial complex is no different. So, is an inmate diagnosed with celiac, for example, offered an energy source in lieu of bread, like rice and potatoes? How can a system of mass incarceration ensure no contamination, when consuming even a small amount of wheat can be extremely debilitating and, in the longer term, lethal? And what about inmates who have anaphylactic reactions to certain kinds of food? True, exquisite shellfish are not on the menu in most prisons, but what about folks extremely sensitive to albumin, a component of egg? And what about the many people who have suffered digestive, respiratory, and musclo-skeletal debilitating conditions all their lives because they do not have the resources to be diagnosed with an allergy? In California’s broken correctional medical system, what are the odds that someone like that will be flagged as suffering from a real condition, let alone diagnosed with a specific allergy? Managing allergies is difficult enough for us average folks on the outside. I can’t even imagine what the protocols for such a situation are on the inside, nor can I imagine any concessions made to the general diet to accommodate them. If any of our readers is better informed about this, please share your information in the comments.

On October 24, the UC Hastings Consortium will hold a Food Day event on the topic of Food Deserts. Our conference will feature discussions involving food professionals, lawyers and physicians regarding the social sites that have no access to healthy, nutritional choices, including prisons and jails. Yours truly will be there, and I hope you will, too.

Addendum: Of course, all this discussion underscores the use of food refusal, in the form of a hunger strike, as a political tool. We remember Pelican Bay inmates and other inmates and their hunger strike. Stay strong.