On Gascón and the Death Penalty

Another source of concern associated with Gascón’s appointment is his recent declaration that he plans to seek the death penalty in cases that “warrant” it. Gascon is surely aware of the meager community support for the death penalty in San Francisco, but I am sure there are currently prosecutors in office who were unhappy with Harris’ policy of not seeking the death penalty who will welcome this change.

As to pursuing the death penalty in politically progressive counties: The ACLU data show (jump to Appendix A) that Alameda county, consistently “blue”, has been well above the California average in death sentences between 2000 and 2009. San Francisco may now face the same fate.

Newsom Appoints Police Chief George Gascón as San Francisco D.A.

“In the criminal justice system, the people are represented by two separate yet equally important groups: the police who investigate crime and the district attorneys who prosecute the offenders. These are their stories.”

–Law & Order opening narration

Lt. Government Elect Gavin Newsom’s choice, in the last days of his mayoral tenure, to appoint George Gascón as San Francisco D.A., was described by the Chronicle as a “bold move”. The article, however, focuses on Gascón’s personal qualities, rather than on an institutional “leap” he will have to perform. Policing and prosecuting, while traditionally on the same side of the adversarial field, are very different occupations, and they require different skills. The prosecutorial realm extends over charging and trial, and while police may be involved in such matters, their traditional realm is that of the investigative phase. Prosecutors are a systemic check over police investigatory practices, by way of incorporating decisions about constitutional violations into their decision whether to charge. This implies a requirement of nonpartisan consideration on the part of prosecutors. Of course, realistically, the relationship between prosecutors and police officers is much more complicated (for some insights on that, check out this Jefferson Institute publication). But it will require a certain shift in thinking. This will certainly change what the SF Weekly Snitch has referred to as a “long history of tension and soured relations” between the prosecution and the police in San Francisco.

Granted, there are some trends in both occupations that make them similar. Both are undergoing continuous change and a redefining of priorities and tasks. Community policing, a set of policies designed to help police be proactive and address community needs, now has a counterpart in the shape of community prosecuting. Both policies aim at transcending the traditional mode of law enforcement by being sensitive to residents’ needs, such as addressing quality of life crimes, something in which Gascón has gained some experience while policing the Tenderloin. And police officers are increasingly more attentive to matters traditionally reserved for other actors in the system, such as reentry and rehabilitation.

It will be interesting to follow up and see what insights Gascón has gained in policing and will bring with him to the prosecutorial office.

Trouble in Paradise: The Hawaiian Correctional Crisis


This semester I’m on research leave at the University of Hawaii at Manoa. And, as I have started to learn, Hawaii has its own correctional issues and concerns, which are different from California’s, but similar in some important ways.

The Community Alliance on Prisons highlights some important problems with the Hawaiian correctional system. In 2009, when we held our CCC conference, the CAP held its own conference about the local crisis (the proceedings, in full, are here.) The conference debunked the myth that “there are no bad prisons in paradise”, highlighting the oppressive war on drugs, and the disproportionate number of Hawaiian natives behind bars. As late as the mid-1980s, conditions in Hawaiian prisons were outrageous, and included inmates sleeping on floors and cruel corporal punishment. These methods were, apparently, justified by treating inmates the way they supposedly were treated in their native cultures.
Hawaii’s incarceration rate is half that of the United States in average, but it is still alarmingly high. Shockingly, Hawaii is the country’s third largest consumer of private prison services with 34% of Hawaii state inmates in private prisons.
As reported by Meda Chesney-Lind, whose research focuses on gender issues in the criminal justice system, the rates of female incarceration in Hawaii (mostly for low-level drug offenses) are on the rise. Hawaiian prison population in general appears to be comprised mostly of drug offenders, and as explained by Marilyn Brown, the incarceration policy has not been very useful in addressing the problem. And, according to Tom Lengyel, who has studied the impact of drug-related incarceration on families in Hawaii, more benefits with less social costs can be attained through residential programs.
This evening I happened to catch Kat Brady from CAP on the local TV channel, speaking of the sporadic and unsystematic reentry initiatives in Hawaii. She mentioned several policies that made life difficult for inmates, and particularly for female inmates. Women in drug programs, for example, who form friendships within the program, are then prohibited from keeping in touch with their friends after being paroled.
I look forward to learning more about the Hawaiian correctional system, as well as keeping a watchful eye on things back in California.

What’s He Building In There? Part III

More building plans come in the heels of the Michigan construction and the Calaveras and San Bernardino projects. These projects, however, seem to be more benign and have a reentry/therapeutic purpose. The CDCR website describes the three projects as follows:

 Renovation and reuse of the former Northern California Women’s Facility in San Joaquin County as a 500-bed adult male secure community reentry facility pursuant to the mandates of AB 900, which envisioned this new type of correctional facility for inmates within 6-12 months of parole;

 Renovation and reuse of the former El Paso De Robles Youth Correctional Facility in San Luis Obispo County (closed in 2008) as a 1,000-bed Level II adult correctional facility to be named the Estrella Correctional Facility, and

 Renovation and reuse of the former Dewitt-Nelson Youth Correctional Facility in San Joaquin County (closed in 2008) as a 1,133-bed adult correctional facility with a mental health treatment mission.

More Construction… This Time, in California

In the heels of the report from Michigan come two new construction projects within California, both funded by AB 900. In Calaveras County, the local jail’s capacity is to be quadrupled. And the expansion in San Bernardino adds maximum security beds.

Unsurprisingly, the Republican Caucus has been following on the progress made with AB 900 funding. From their perspective, “[i]t does not help that CDCR seems to have little direction and produces a new strategy plan on an annual basis. In the meantime, Democrats are pushing policies through the legislature – and supported by the Governor – that decrease the population through early release and place the burden of monitoring and controlling these individuals on local entities. Sadly, these are the exact same policies and actions that AB 900 was supposed to prevent.”

From an empirical perspective, however, it is the massive construction of more prison cells that should be prevented. Building prisons is akin to building public highways; as we build more to prevent congestion, congestion gradually increases to fill the volume available. It is frightening to think that incarcerating one in 100 Californians is not enough. But perhaps they are the “wrong” kind of Californians, and therefore the Republican caucus should lose no sleep over them.

In any case, these new construction projects highlight the dark and problematic side of the Plata/Coleman decision. In an effort to be courteous to the state, and not to micromanage its affairs, the three-judge panel asked for a population reduction without mandating methods the state might employ to achieve such reduction. In his response to SCOTUS Justices, Don Specter seemed to agree that building new facilities would be among the range or responses that would be in compliance with the order. I actually think a narrow interpretation of the Plata/Coleman order is not only possible, but reasonable. The court did use the word “reduction” and stated a number of inmates. To say that “reduction” is the same as “dilution” of inmates is a bit of an interpretive push. But the real point is, of course, that building new prisons, in the long run, will push California away from compliance with the order, because the new facilities will, in due course, become just as overcrowded as the old ones.

Michigan: Preparing a Prison for California Inmates


(image courtesy Cory Morse from the Grand Rapids Press)

The Michigan dream, which encountered some serious hurdles before getting back on track, is apparently becoming reality. Via Sara at the Prison Law Blog, here are some details about the preparations to receive California inmates at this new Michigan facility:

As The GEO Group Inc. prepares to reopen the site once known as a “punk prison” for youth convicts, the California Department of Corrections and Rehabilitation is getting ready to send nearly 2,600 inmates here to help solve the state’s prison overcrowding.

This time, the inmates will not be deviant youth, but adults who ran afoul of California law for a variety of reasons.

The prisoners coming to Baldwin as part of a $60 million-a-year contract with GEO will be medium-security inmates deemed not extremely dangerous. Still, their backgrounds may include everything from murder to sexual assault.

Michigan has been hailed as a model for inmate population reduction. Apparently, these commendable steps have put them, and GEO corporation, in a position to benefit from our failure to act similarly.

A Surprising Voice Against Mandatory Minimums and Criminalization

“Tough on crime, tough on crime, lock ’em up! This is how these guys ran, but it isn’t working! . . . We’re locking up people who take a couple puffs of marijuana and next thing you know we lock them up for ten years. . . Judges say there’s nothing we can do, we got these mandatory sentences. . . They go in as youths, they come out as hardened criminals…”

Bipartisanism reaches new surprising heights with this surprising little Pat Robertson video clip. Happy Holidays!

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Many thanks to Billy Minshall for this bit of holiday news.

Merry Christmas, Taxpayers

After a conference and travel hiatus, CCC returns to a semi-regular posting regimen. And what better than a post on California Watch, according to which, despite the fee hikes in the UC system, “on a per-capita basis, UC is still cheaper than another big and expensive component of the California state bureaucracy – the prison system.”

We’ve posted in the past about the gubernatorial problematic effort to create legislation that curbs prison expenditures in relation to educational expenditures. We also reported on the correctional angle to student protests of fee hikes. Here’s hoping that 2011 will be a year that continues the nascent trend of decrease in incarceration rates, and as a result, incarceration expenditures.

The Fight Over Preston Youth Correctional Facility

On occasion, we have covered the abysmal state of juvenile prisons in California. Since our juvenile prison population has been declining, Some of them, like the juvenile institution in Chino, have been closed and repurposed into adult incarceration facilities. The Books Not Bars project at the Ella Baker Center for Human Rights lists some of the atrocious occurrences in these institutions:

  • Young people locked in 20- to 23-hour-a-day solitary confinement for days, weeks and months on end;
  • Young people locked in 4’x4′ cages for temporary detention;
  • Guard and staff abuse, neglect, manipulation, and humiliation of the young people in their care;
  • Rampant sexual assault;
  • Guard/staff abuse of chemical weapons against the young people;
  • Virtually non-existent care for young people with mental health or substance abuse needs;
  • Shocking negligence in medical care, especially emergency care;
  • Woefully inadequate educational programming;
  • A culture and atmosphere of constant intimidation, isolation, fear and violence;
  • Five deaths of young people in less than three years.
Their report states,

Stark and Preston youth prisons are the most severe examples of the DJJ’s continuing failures, where daily chaos prevents most youth from participating in programs. Even where programs are administered with regularity, almost no programming proven to reduce recidivism is available, and at many prisons, only a small minority of youth participates. The DJJ has so dramatically failed to comply with court-ordered remedial plans that in 2008, plaintiffs sought a receiver to take over the reforms.

Today’s Chron article is about one of these most notorious juvenile facilities, Preston Youth Correctional Facility. And, it appears that the hurdle in the path of doing the right thing and closing Preston is a lawmaker concerned about job losses among her constituents.

Preston, located an hour northeast of Stockton, houses just 224 youths and, as one of the state’s oldest correctional facilities, is in terrible condition. Most of the youths serving time there are hours away from their families.

The facility employs about 450 people in a county with just 38,000 residents and a 12.4 percent unemployment rate. Closing it would save the state $30 million this fiscal year and more in future years, officials estimate.

“It’s like closing a military base,” said Don Specter, director of the Prison Law Office. “People want to keep it just for jobs, but that shouldn’t be the reason that the state or government implements a program.”

Huber’s arguments against the closure are as follows:

Huber said the closure of Preston would “kill an entire county,” because it is one of the largest employers in the area.

“This is going to turn the city of Ione into Flint, Mich.,” Huber said, referring to the depressing impacts the closure of General Motors facilities had on that company town 20 years ago. “I’m not disagreeing with the fact that a facility needs to be closed … the question is how do we decide which is the best facility to close.”

Huber contends that Preston has higher graduation rates than other youth facilities; is best complying with the settlement that came out of the 2003 lawsuit; and, because of its dorm settings, offers a better setting for youths.

“The five facilities we have are like a school district,” she said. “I think Preston is the best school – if you have to save $30 million, do you close the best-performing school?”

I recommend reading the entire article – it provides more information on Preston, quoting references to it as a “dungeon”.

The Crime of Punishment in California: NYT Editorial

Earlier this week, the New York Times published an editorial on the California correctional crisis, apropos the Plata/Colemen arguments.

At the intense, sometimes testy argument, Justice Samuel Alito revealed the law-and-order thinking behind the California system. “If 40,000 prisoners are going to be released,” he said overstating the likely number, “you really believe that if you were to come back here two years after that you would be able to say they haven’t contributed to an increase in crime?” To Justice Alito, apparently, it was out of the realm of possibility that, rather than increasing crime, the state could actually decrease it by reducing the number of prison inmates.

Among experts, as a forthcoming issue of the journal Criminology & Public Policy relates, there is a growing belief that less prison and more and better policing will reduce crime. There is almost unanimous condemnation of California-style mass incarceration, which has led to no reduction in serious crime and has turned many inmates into habitual criminals.

Jonathan Simon writes in Governing Through Crime:

For the Court’s “liberals”, the staggering portrait drawn by the many experts who testified before both original courts and the 3-Judge panel of the way physical and mental health needs are unmet appears to have broken through their own instincts to defer on criminal matters. The routine way in which California prisoners met death not through lethal injections, but by fatal neglect of their obvious and remediable medical needs, or by suicide after florid psychotic symptoms were ignored, animated a livelier questioning of the state in a criminal matter than in a long time. The Court’s “conservatives”, stripped of their preferred grounds of deference to the state’s penological rationality, by the sheer scale of California’s organizational failures over a twenty year period, were left to rest on the primal fear of violent crime and the biblical conviction that keeping people locked up must mean fewer crimes. Of course even if the Supreme Court (5-4), upholds the population cap, it will not end mass incarceration, that claim was not yet before the Court (and probably never will be).

Sobering words.