More on Religion in Prisons: Five Faiths, Four Meals?

Recently, we discussed prison and religion in the context of Patrick McCollum’s suit to acknowledge the need for a paid Wiccan chaplain in CDCR institutions. The brand new Prison Law blog led us to a piece on the Fresno Bee, which reports that CDCR plans to add a Halal food option to its already existing Kosher meat and vegetarian fare.

The department is seeking the change in the face of pressure from several Muslim inmates who have filed lawsuits alleging discrimination. Inmate attorneys have seized on the department’s decision in 2006 to offer special kosher meals to Jewish inmates.

“They’ve said Jewish prisoners have a right to practice their religion in a certain way, but Muslim prisoners don’t have that same right,” said Nathaniel Garrett, the court-appointed attorney for Menefield, who filed a civil rights complaint in federal court in 2008.


Victims-rights advocates counter that the state made a mistake in offering any religious meals. Prisoners lost those rights when they committed a crime, said Harriet Salarno, president of Crime Victims United of California.


“It would be cruel if we denied them food … but we’re not denying them nourishment,” she said. “This country is made up of all kinds of religions. Where is it going to end?”
This may seem like a relatively minor issue, but it has a rich history, that has to do with the struggle of Muslim inmates to obtain rights and their incredible contribution to inmate litigation in California. Some of the important religious struggles in prison have had to do with concerns over safety and riots, whose roots are in the radicalized Black Muslim population of the 1970s. The relationship between prison administration and the Muslim inmate population has been a concern for the Federal Bureau of Prisons for quite some time, and some are concerned that the post-9/11 world has led to “Islamophobia” in correctional institutions.
While reading materials and worship gatherings have the potential to incite rebellion, food is a significantly less controversial matter. The issue is the importance of religion vis-a-vis the expense involved. In this particular case, before even engaging in that balance, it is a case of religious discrimination, plain and simple. Since the prison already offers Kosher and vegetarian meals, it would appear that the argument raised by Ms. Salarno has clay feet (and that’s before even looking at the argument for morality or on its merits). The question that CDCR does not need to currently face would be the detail with which they should comply with minute differences in religious requirements for different sects (for example, there are several different levels of Jewish Kosher certification; there is glatt certification to consider, ethnic differences, etc).

Valdivia v. Schwarzenegger: Today at the 9th Circuit

The 9th Circuit heard today oral arguments in Valdivia v. Schwarzenegger. I went to hear Geoffrey Holtz and Ernest Galvan argue for the petitioners; they presented arguments in two matters relating to parole revocation hearings.
The first issue, which is less interesting for our purposes, has to do with the admissibility of hearsay evidence in parole revocation hearings, in light of new caselaw regarding confrontation rights (I’ll probably inflict that on my Criminal Procedure students this semester. Have a good semester, folks!). The second issue, on which I’ll expand, has to do with Judge Karlton’s decision to set aside parts of the state statute enacted as part of Prop 9 due to the content a federal consent decree.
Background: the federal consent decree in Valdivia was finally reached after a decade of litigation, aimed at clearing up the procedures for parole revocation and crafting them so they would comply with minimal constitutional due process requirements. The decree mandated appointing state counsel for all parolees in danger of revocation, and required proceedings for proper notification and discovery to the defense; created procedures to speed up hearings so people would not be held in unnecessarily before their status was determined; and ordered to simplify forms and documents so that the parolees could understand them. A special master was appointed to work with plaintiffs and defendants to ensure compliance with the decree, and gradual progress was made.
Prop 9 (which the State Attorney repeatedly referred to during the hearing as Marsy’s Law) threw this situation into chaos. While some of its provisions did apply, as advertised, to victims’ rights, other provisions made changes to parole revocation procedures, most importantly by denying counsel to a large portion of parolees.
The elephant in the room, during the oral arguments, was the actual constitutionality of the new provisions enacted in Prop 9, and whether they really fell beneath the minimal due process owed to parolees; in fact, if I’m not mistaken, it appeared that the state conceded that some of these provisions might raise constitutional issues. Instead, the discussion focused on the legal question of whether Judge Karlton’s decision to set aside the Prop 9 provisions was correct. As the parolees’ representatives argued, this was a classic supremacy clause situation; a federal consent decree trumps state law. The state, according to Mr. Holtz, was under a burden to prove that circumstances have changed to an extent that required modifying the consent decree. All the state did, argued Mr. Holtz, was point to the existence of a new state law; they did not seize the opportunity to actually argue that this new state law has implications that require modifying a federal decree. Under the circumstances, introducing a chaotic element into a recently-modified process, which serves to funnel 10,000 cases a month through the correctional system (yes, you read it correctly) was an irresponsible thing to do, and the state had to provide a viable alternative if it wanted to change the elements of the decree.
Much of the back-and-forth between the judges and the parties had to do with the extent to which Prop 9 turned back the clock to the unconstitutional proceedings prior to the consent decree. The answer to this question seems to be, according to both parties, somewhat complicated. Some Prop 9 provisions are, indeed, a return to the pre-decree times, while others are actually better for parolees than the consent decree guaranteed (such as provisions for a preliminary hearing). The state attorney, Ms. Johnson, argued therefore that a flat-out dismissal of this provisions was problematic. Mr. Holtz pointed out, in reply, that the state should have done a better job at providing an alternative process, which complied with Prop 9, and satisfied the constitutional requirements (there would naturally be some debate about the features of such a process, but at least it would be more than merely informing Judge Karlton of the existence of the new statute and expecting him to bend the federal decree to accommodate this development).
Judge Smith seemed interested in examining the possibility of remanding the case for examination at the District Court. Mr. Holtz pointed out that such a remedy was possible, but unnecessary; the state could return to Judge Karlton at any time with a proposal for a Prop 9-compatible revocation hearing process.
We’ll report on the outcome of this case as it comes out.

Valdivia v. Schwarzenegger: 9th Circuit Hearing This Monday

This Monday, at 11am, in Courtroom 3, the United States Court of Appeals for the 9th Circuit will hear oral arguments in Valdivia v. Schwarzenegger, regarding the applicability of certain provisions approved by voters last November as part of Prop 9.

Fair disclosure: I’m somewhat involved in this case (as are several of my colleagues in CA universities) as a party to an amicus brief on behalf of the plaintiffs. Therefore, what follows is (as always) my own analysis, rather than any neutral introduction to the case.
The story behind Valdivia is this: after lengthy litigation between parolees and the state regarding parolees’ rights in parole revocation hearings, federal courts issued a consent decree, according to which the state consented to reform its procedures so as to grant parolees the right to a fair hearing, requiring probable cause, a speedy hearing within 35 days, the right to representation, and a larger array of intermediate sanctions.
Prop 9, adopted in 2008 under a title of victim rights, included some provisions that violate this consent decree. As you may recall, the proposition limited the cases in which legal counsel would be awarded to the indigent, as well as allowed for participation of more parties and relaxed evidentiary requirements for parole violations. Judge Karlton refused to implement these changes, arguing that they violate the prior consent decree, which was consistent with constitutional requirements. As a result, the victim-rights part was severed from the parole hearing limitations part, and Prop 9 came to life only partially.
The argument on behalf of the plaintiffs is, basically, that upholding Prop 9 in its entirety violates the minimum constitutional requirements for due process, the standards of which were the cornerstone for the consent decree. In addition, upholding Prop 9 will mean a disastrous return to the state’s abysmal parole proceedings, generating more “revolving door” situations and exacerbating our severe overcrowding problem. Since the parole system has proven immune to every effort at reform save for compliance with court orders, rolling back these reforms will have terrible consequences.
Here is our brief. To keep things fair, here is the opposing amicus brief, arguing, in a nutshell, for upholding what is now state law. You can read and form your own opinion.

Letters from Sanctuary City: More on the Federal-State Divide

Regular readers may recall our invitation to stay tuned for the San Francisco Board of Supervisors’ decision regarding the city’s “Sanctuary City” policy. The bill, initiated by Supervisor David Campos, consists of an amendment to the San Francisco Administrative Code, chapter 12H. The amended section now reads:

SEC. 12H.1. CITY AND COUNTY OF REFUGE.
It is hereby affirmed that the City and County of San Francisco is a City and County of Refuge.

SEC. 12H.2. USE OF CITY FUNDS PROHIBITED.
No department, agency, commission, officer or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of federal immigration law or to gather or disseminate information regarding the immigration status of individuals in the City and County of San Francisco unless such assistance is required by federal or State statute, regulation or court decision. The prohibition set forth in this Chapter shall include, but shall not be limited to:

(a) Assisting or cooperating, in one’s official capacity, with any Immigration and Naturalization Service (INS) investigation, detention, or arrest procedures, public or clandestine, relating to alleged violations of the civil provisions of the federal immigration law.

(b) Assisting or cooperating, in one’s official capacity, with any investigation, surveillance or gathering of information conducted by foreign governments, except for cooperation related to an alleged violation of City and County, State or federal criminal laws.

(c) Requesting information about, or disseminating information regarding, the immigration status of any individual, or conditioning the provision of services or benefits by the City and County of San Francisco upon immigration status, except as required by federal or State statute or regulation, City and County public assistance criteria, or court decision.

(d) Including on any application, questionnaire or interview form used in relation to benefits, services or opportunities provided by the City and County of San Francisco any question regarding immigration status other than those required by federal or State statute, regulation or court decision. Any such questions existing or being used by the City and County at the time this Chapter is adopted shall be deleted within sixty days of the adoption of this Chapter.

The Board of Supervisors meeting agenda illuminates the intent behind the amendment:

Ordinance amending the San Francisco Administrative Code by amending Sections 12H.2, 12H.2-1, and 12H.3 to allow City law enforcement officers and employees to report information regarding the immigration status of a juvenile to any state or federal agency when the juvenile has been adjudicated to be a ward of the court on the ground of felony conduct, the court makes a finding of probable cause after the District Attorney directly files felony criminal charges against the minor, or the juvenile court determines that the minor is unfit to be tried in juvenile court and the superior court makes a finding of probable cause; and to update references to the federal agency responsible for enforcing federal immigration laws.

While this is an interesting development in itself (and in relation to how the entire issue of undocumented immigrants has played in the context of overburdening the criminal justice and correctional system), it becomes particularly interesting when contrasting it with the recent news re marijuana legalization: Why, only yesterday, in a different context, we saw the federal criminal justice apparatus prepared to step away from state affairs, unless state agents were violating their own laws.

The question is, will the feds be as forgiving of undocumented immigrant delinquents as they might be of medical marijuana. Seemingly, in both situations a local entity is creating policy, through legislation, which violates federal rules. However, one indication that these are two very different matters, criminalization-wise, is Mayor Newsom’s stance on the subject. The mayor’s spokesman, Nathan Ballard, is quoted in the Chron as saying that “the Campos bill isn’t worth the paper it’s written on — it’s unenforceable and he knows that”.

Criminalization and Jurisdiction: Thoughts on the Federal-State Divide

Yesterday’s news about the policy to refrain from federal raids on medical marijuana dispensaries raise an interesting issue. One of the criteria, which according to the Department of Justice memo should be taken into account, is whether state dispensaries are violating state law. The implication, theoretically, is that prosecutors that examine dispensaries on a case-by-case basis will have to pay attention to CA procedures and potentially raid CA dispensaries when these violate CA law.

This tidbit has a few interesting implications. First, if the message is, as the memo implies, that prosecutors need to use limited resources wisely, it is unclear whether encouraging the feds to spend time and money inquiring on the (dubious and unclear) status of CA dispensary regulation is an effective use of those resources. The status of dispensaries varies from county to county and from city to city. Are the feds really expected to keep up with this?

Second, is this a message to state prosecutors to “shape up” and enforce state laws in lieu of the feds? If so, it doesn’t seem to be a very effective one.

Third, this memo seems to be in contrast of the Supreme Court’s decision in Virginia v. Moore (2008). There, the Supreme Court decided that a search incident to arrest conducted in Virginia was valid, despite the fact that the offense in question (speeding) did not allow for an arrest under Virginia law. In a 9-0 decision, the court said that constitutional review was not concerned, at all, with the prohibitions in state law, only with the question whether there was probable cause for the arrest. So, do we only care about state law when it works against the defendant?

And finally, what are the practical implications of the memo’s austere tone? Is it just to assure prosecutors that the Obama administration has no plans to legalize marijuana? Perhaps the concerns about future enforcement are unwarranted, and federal prosecutors will just get the general message, which is to back off from dispensary raids.

Click here to hear what my fabulous colleague Rory Little had to say about this this morning on KQED.

Progressive Lawyering Day 2009

Following up on this week’s posts on minors in California’s criminal justice system, this Saturday there will be a panel on the San Francisco police’s interrogation of immigrant youth, featuring Supervisor David Campos. The panel is part of Progressive Lawyering Day 2009, hosted by the San Francisco Bay Area Chapter of the National Lawyers Guild. The day also features a keynote lecture from civil rights attorney John Burris.

Here’s the full schedule for the event, 10a-6p Sat 10/3 at UC-Hastings, 198 McAllister St., SF:
10:00am Registration/Free Breakfast
10:30-12:00 2 Panels: Transgender Advocacy & SF Police Interrogation of Immigrant Youth feat. SF Supervisor David Campos
12:00-1:00 Free Lunch
1:00-2:30 2 Panels: Alien Tort Claims Act & Everything You Wanted to Know About Fellowships
3:00-4:30 Key Note Speaker John Burris (attorney for the family of Oscar Grant)
4:30-6:00 Reception with free food/drinks

Facebook invite here. Note that CLE credits are available for both afternoon panels.

Contempt or Cooperation?

Given the State’s population reduction plan, which falls short of the Plata/Coleman order, the question becomes: What can the court do, and what should it do?

I find the latter question much more interesting than the former. We know that courts have the authority to send one to prison for contempt, sometimes not as reasonably as one would hope. But I don’t see how that would be helpful in any way in this situation. But what about monetary penalties? Or asking for adjustments to the order?
There are various complicating factors here. On one hand, as Judge Karlton explained in his luncheon address at our conference last March, this is the last in a long series of problematic interactions between the state and federal courts regarding corrections and constitutional rights. Faithful followers of the crisis will recall how close the court was to hold Governor Schwarzenegger in contempt for not providing the receiver with funds to improve health care.
On the other hand, even the Plata/Coleman decision acknowledged that, while the state was late to respond to court requirements in the Coleman case, state officials eventually did cooperate with the special masters. Given the dramatic implications of federal intervention in prison population management, the court would prefer cooperation and, possibly, an incremental improvement of the proposed plan, to an adversarial step that will alienate the state even further.

BREAKING NEWS: Plata/Coleman Request for Stay Filed with the Supreme Court!

Today, the State filed for a stay regarding the Plata/Coleman order to come up with a 137.5% decrowding plan. Here is the application itself, which I placed on a free media host for your convenience.

The gist of what is going on is as follows:
In order to obtain a stay, the state has to show:
  1. a reasonable probability that four Justices will consider the issue sufficiently meritorious to . . . note probable jurisdiction;
  2. a fair prospect that a majority of the court will conclude that the decision below was erroneous; and
  3. a likelihood that “irreparable harm” will result from the denial of a stay.
  4. In close cases, the Court is called upon to do a balancing act of harms and interests.
The brief argues that these four conditions apply and require a stay in the Plata/Coleman case.
  1. The importance and drastic scope of the three-judge-panel’s relief will probably merit jurisdiction. The Federal interference in this case is unprecedented and the injunctive relief is dramatic. Questions of law concerning the PLRA will be raised (see our previous post on this) as well as issues of federalism and judicial restraint.
  2. Overcrowding is not the “primary cause” for the constitutional violations; a myriad other factors that have to do with prison administration and personnel are also to blame. Even if overcrowding is the main factor in the violations, decrowding will not necessarily result in solving the problem (note that the State does not disagree that there are constitutional violations and the state is to blame! Also note that the gravity of the problem, and the fact that even overcrowding will not solve it, is offered as an argument on behalf of the State!). In addition (this, IMHO, is the strongest point in this brief), the court has not justified its decision to set the reduction level at 137.5%. There are also some procedural issues that might work on the State’s behalf, such as the fact that no district court has ordered reduction.
  3. Obeying the order will create irreparable harm by diverting necessary resources to the decrowding plan (this is rather odd in light of the expected savings!) and by putting communities at risk;
  4. Finally, the brief argues, if this is a close case – which it isn’t – then there’s good reasons to weigh factors in favor of a stay. Since decrowding will probably take two years, there is less harm in waiting than there is in going ahead with the plan.
While it’s difficult to be sympathetic to the State’s arguments, especially in light of the fact that there is no argument about the ills and their reasons, two things stand out: first, the argument about the decrowding level is not bad and has not been addressed by the court in a tight enough way in the original decision. Second, SCOTUS may buy the argument that there is no harm in waiting. As to this second point, a plausible argument is that there is MUCH harm in waiting. In the meantime, more people are languishing without appropriate care and any time wasted is time during which unnecessary ailments and deaths may occur.
We’ll be keeping a close watch on these proceedings and reporting on developments.

Senate Bill to Eliminate LWOP for Juveniles Passes Committee Hearing

Since the death penalty was abolished for juveniles in Roper v. Simmons, public debate has shifted to the issue of life without the possibility of parole for juveniles. The most recent news on this come from the California Senate Committee, which, according to the Chron, approved Senator Yee’s bill to eliminate LWOP for juveniles and substitute it for sentences of 25 years to life.

The Chron reports:

The bill would overturn a component of Proposition 115, a tough-on-crime ballot initiative passed by voters in 1990.
The legislation pits law enforcement groups, which argue that there are teens who commit such horrendous crimes that they should spend the rest of their lives in prison, against some child psychiatrists and religious groups, which argue that teens’ brains are still developing and even those who kill should be given a chance at redemption. Parole would be granted only to inmates who convinced both the state’s parole board and governor that they deserve to be released.

Those interested in more information about the special problems concerning juveniles on LWOP might find interest in a PBS debate on the matter, or in the Frontline documentary When Kids Get Life.

Prisons and Media

(image courtesy sfgate.com)

This Sunday’s Chron reported on the inmate newspaper at San Quentin. According to the article, rather than being merely a mouthpiece for the administration, the paper holds itself to objective standards of reporting.

Witness the tough-minded piece that ran in the January issue about San Quentin’s administrative segregation unit, “The Hole,” where recalcitrant prisoners are disciplined by being locked up for most of the day in one-man cells. The News described the wing’s dirty cells, ripped and shredded mattresses and generally appalling conditions.

Before the story was published, however, the News’ senior volunteer adviser, retired Associated Press newsman John Eagan, told editor-in-chief Ken Brydon, serving a life term for murder, and managing editor Michael Harris, doing 28 years for attempted murder and drug crimes, that they had to get the other side.

They did, quoting prison Sgt. D. Kilmer to the effect that officers go through a checklist of a cell’s condition, but that “the maintenance repair on lights could be better.” The article was approved by Luna and ran in the newspaper, and the next issue carried a follow-up quoting prison officials at length.

(incidentally, the Pulse of San Quentin’s report is timely and important; yesterday’s New Yorker has a fascinating and disturbing piece on the effects of solitary confinement.)

Prison newspapers are not a new phenomenon. Some of you may find interest, for example, in this historical issue of The Prison Press from 1899. And there has been constant litigation regarding the right of inmates to participate in outside media, whether it be mainstream media or specialized projects like Prison Radio. For some of California’s legacy of outspoken inmates, I strongly recommend Eric Cummins’ excellent The Rise and Fall of California’s Radical Prison Movement.

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Props to Emily Hoag for pointing me to the New Yorker article.